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.”
September 30, 2011 by Robert Tharp at 4:07:04 pm The Dangerous Side of Family Law
There’s a popular saying that speaks volumes about potential for violence in family law disputes: Criminal court is where bad people are on their best behavior, while family court is where good people are at their worst.
While Michigan detectives and the ATF investigate the Sept. 20 car bomb explosion that targeted a Michigan lawyer and his two teenage sons, authorities continue to examine the possibility that the attack was related to his family law work. The bombing is just the latest reminder of the risks of violence facing lawyers, particularly those who handle family law cases, says Dallas-based family law attorney Brad LaMorgese. "More than any other area of the law, family law generates intense emotions that sometimes spill out of the courtroom in the form of violence and threats of violence," says LaMorgese, a partner in McCurley Orsinger McCurley Nelson & Downing.
An ABA survey found that 60 percent of family lawyers had been threatened by clients of opposing counsel and 17 percent by their own clients.
"It's something no one would dispute," McCurley Orsinger co-founder Mike McCurley told the American Lawyer Media back in 1999, adding that he’d been shot at twice, placed on an assassination list once and "threatened more times than I can imagine…In probably no other area of the law has our court system become more aware of the tendency for violence."
There are simply too many incidents of violence against lawyers to list, but below are just a fraction of the known cases:
September 30, 2011 by Robert Tharp at 11:13:14 am Expect RIpples From FTC Cap on Debit Swipe Fees
The big card-issuing banks are already implementing new fees for checking account holders in an effort to make up the $9 billion in revenue they expect to lose as a result of new FTC regulations capping the amount they can charge for debit card “swipe fees.” Bank of America was the latest with an announcement Thursday that account holders will be charged a $5 monthly fee for making debit card transactions.
Zahara Alarakhia, a partner in Dallas-based Munck Carter, says the swipe-fee regulations that are part of the Durbin Amendment will send ripples through the economy. "Bank customers accustomed to free checking and rewards perks will see those incentives disappear as banks try to recoup the lost revenue," says Ms. Alarakhia. "Merchants stand to gain by not having to pass along the higher fees, but it remains to be seen whether that will translate to lower prices for consumers."
Writes the Christian Science Monitor:
Why is Bank of America making this move? It certainly fits a trend: ATM fees have been rising, bounced check fees have been going up, and free checking accounts are fast becoming a thing of the past.
Bank fees have been changing rapidly in recent years. Back in 2009, 76 percent of checking accounts in the US were free. This year, that number is only 45 percent, according to a study by Bankrate.com. ATM fees are up an average of $0.07 from last year, and average overdraft fees went up $0.36 in the same time.
September 29, 2011 by Robert Tharp at 3:12:41 pm First of Its Kind Ruling on Social Media in Workplace
More than once, employees have found themselves holding pink slips because of something they said about their work life on Facebook, Twitter or other social media outlets. But Audrey Mross of Munck Carter in Dallas says employers should be very careful with such terminations. Earlier this month, for the first time, an administrative law judge with the National Labor Relations Board ruled that a Buffalo, N.Y., company wrongfully fired five employees because of what they said on Facebook. Writes the Wall Street Journal:
The NLRB complaint against Hispanics United of Buffalo reaffirms the agency's position in an earlier case that labor law allows employees to discuss the terms and conditions of their employment with co-workers and others—including postings on social-media sites.
In the latest complaint, an employee of Hispanics United who was scheduled to meet with management about working conditions posted on Facebook a co-worker's allegation that employees didn't help the nonprofit's clients enough, the NLRB said. That post drew responses from other employees who defended their work and blamed conditions such as work loads and staffing issues.
When Hispanics United learned about the postings, it discharged the five employees who participated, claiming their comments were harassment of the employee originally mentioned in the post, the NLRB said. The NLRB said the Facebook discussion was "protected concerted activity" under the National Labor Relations Act.
"Basically, the NLRB is saying even disparaging comments about terms and conditions of employment among co-workers can be protected speech, whether it happens at work or after hours, via Facebook," Mross says. The NLRB reports an increasing number of charges related to employees' use of social media to discuss their employer and each other.
September 16, 2011 by Dave Moore at 9:34:07 am Houston Lawyer John Kim Gets Animated, Takes Message Straight to Clients
Many trial lawyers try their best to be animated in the courtroom. Houston trial attorney John Kim, however, has taken the step of being animated on his own website (shown here at thekimlawfirm.com). With assistance from the creative team at Androvett Legal Media & Marketing, Kim has cast himself in an animated short in which a cartoon artist captures his essence based on peer descriptions of his style and reputation. It’s the kind of lively approach to the world that we’ve come to expect from this talented business litigation attorney.
“Most lawyer ads . . . well they’re lawyer ads,” Kim said about the production. “I wanted something that was like me – quirky and entertaining, but not too obnoxious.”
We could go on and on about this video, but it really speaks well for itself.
September 12, 2011 by client-news at 11:23:13 am 7 Tips for a Better Website
The award-winning team of media and advertising professionals at Androvett Legal Media & Marketing has developed a list of seven simple and effective ways to take your website from bland to grand.
Whether you're creating a new website from scratch or simply updating your existing site, these seven essential steps can make your website more interesting, effective and relevant. For a more detailed discussion, visit the related white paper.
1. Make it Easy to Find
When it comes to online search, your goal should be simple: Have a website that’s easy for your potential and existing clients to find and read. It’s not about having a site solely focused around SEO (Search Engine Optimization); it’s about building a search-friendly architecture and providing targeted and relevant content.
2. Make it Easy to Navigate
Developing an intuitive and well-thought-out site map from the beginning allows you to direct how users travel your site and ensures they are able to quickly get where they want to be.
3. Write for Your Audience, Not Yourself
What information is going to be most important to someone who needs to hire a lawyer? They’ll likely want to know about your relevant experience, your fees and perhaps most important: What separates you from the many other lawyers and law firms who practice in the same area of law?
4. Update Your Content - Regularly
Your website doesn’t need an entire facelift every two months, but regularly adding interesting news stories, blog entries and case summaries, and refreshing your homepage and attorney bios at least twice a year will keep your content fresh and stimulate traffic to your site. Updating your content regularly also enhances search engine optimization.
5. Start a Blog and Stick With It
A blog can go a long way in positioning you as a leading expert sought for insights and information by new clients, colleagues and even the media. The key to any successful blog is providing valuable content, or more specifically, content that is unique and useful to your audience. One of the greatest advantages of a blog is that it ensures you are continually creating new content for your site, making it more “findable” (see point 4).
6. Share and Be Shared
Creating social media accounts and republishing your blog posts, new stories and other quality content can incite a social discussion that allows you to reach far beyond your website. Another effective technique is adding a “Social Media Bookmarking” widget to your site that allows readers to share information they find valuable directly with their social media accounts through the click of a button.
7. Go Mobile or Go Home
The web is accessible at all times on mobile devices such as iPhones and smartphones; having a parallel version of your site optimized for mobile viewing is now a requirement rather than an “add-on.” Whether users are reading attorney profiles, getting directions to your office or simply trying to call you, they want it in their hands and on the go.
September 2, 2011 by Robert Tharp at 4:19:54 pm (Red) Shoe Drops in Louboutin Trademark Fight
Fashion designer Christian Louboutin is famous for the distinctive red lacquered soles on his high-end heels – so much that he trademarked the color back in 2008 to fend off competitors and knock-offs. The enforceability of that trademark is now in doubt after a New York federal judge found that the color on the shoe is a "decorative element" rather than a feature that can be trademarked, although the legal challenge by designer YSL is far from settled.
The judge stated in his ruling, Louboutin's claim would cast a red cloud over the whole industry, cramping what other designers do, while allowing Louboutin to paint with a full palette.
"Louboutin shoes are readily identifiable by their red soles," says litigation attorney Jennifer Ingram of Dallas-based Munck Carter, who has experience in trademark matters. "Businesses of alltypes use trademarks to protect elements that make their products distinctive, including signature colors, but in this case the judge has given signals that he believes the use of color alone is overly broad."
September 1, 2011 by Robert Tharp at 3:58:38 pm New Texas Laws Countdown: New vigilance for high school football concussions
A recent Purdue University found some startling statistics about the prevalence and severity of concussions in high school football. With roughly 1 million high schoolers playing football any given year, the study found some 67,000 reported concussions. But just as important as the concussions, a Slate.com article details, the researchers found an equal number of concussions go unreported “because fans, coaches, and parents don't want a star athlete pulled from a game.”
Reports Slate.com: Some of the high-schoolers studied suffered about 150 head impacts per week during the season, or about 1,500 impacts per year. On average, the hits carried a force of around 40G. (The force of impacts is measured by sensors within helmets.) These hits did not knock players out, but they caused systematic changes in their brain functioning. Unlike the violent helmet-to-helmet collisions in the open field that have drawn warnings and suspensions from the NFL, these blows usually involved routine blocks and tackles, often along the line of scrimmage.
A new Texas law (HB2038) is designed to take the guesswork out of whether to take student athletes out of games in such circumstances. The law requires to immediately remove players who show signs of a concussion during a game or practice and have them evaluated by a doctor.
“This is a great step for the safety of student athletes in Texas,” says The Lanier Law Firm’s Gene Egdorf, who has successfully represented injured student athletes and their families. “The University Interscholastic League has had some safeguards for players showing concussion symptoms, but getting these student-athletes checked out by a physician will help ensure that they are fit to play.”
August 31, 2011 by Robert Tharp at 4:51:15 pm Top Texas Laws Countdown: Parents get say-so over whether to paddle Johnny
As one of 20 states that still allow corporal punishment in schools, more than 49,000 Texas students received licks during the 2006-2007 school year, putting Texas at the top of the list, according to the Fort Worth Star-Telegram. Writes the Star-Telegram: the punishment continues to be a controversial and confusing subject, partly because school districts make their own policies and the line between discipline and abuse can be blurred.
HB359 allows parents to have some control over whether their children are paddled. The new law allows parents to forbid school districts from using corporal punishment on their children.
“This is a small victory in the war to prevent child abuse,” says Jeff Rasansky, whose clients at the Rasansky Law Firm include families whose children who have suffered abuse from caregivers at daycare centers. “Many people are still surprised to learn that children are abused physically, emotionally or sexually by daycare or other child care providers like nannies, babysitters, family members or teachers.”
August 31, 2011 by Robert Tharp at 4:18:56 pm Twitter Slander? #NotLikely
When Houston restaurant patron posted a tweet calling the nearby bartender a “twerp” and ending
her message with a hashtagged vulgarity, she probably knew the note would raise
a few eyebrows. But the last response she likely expected to receive was a
phone call from the general manager asking her to leave immediately. Despite the knocks he has received for the decision, he says he refuses to allow his employees to be “bullied,” and did not hesitate in making that call. The incident served to reignite the debate over what constitutes libel and slander in the digital era, an issue that Peter S. Vogel, co-chair of the Internet, eCommerce and Technology Industry team at Gardere Wynne Sewell LLP, says will be difficult to resolve.
August 31, 2011 by Robert Tharp at 3:40:15 pm Top New Texas Laws of 2011: Will New Ban on Funeral Protests Stand on Appeal?
In a law aimed directly at Westboro Baptist Church’s inflamatory protests of military funerals, HB718 makes it a crime to picket near any Texas funeral ceremony. According to the new law, protestors must cease three hours before a ceremony begins and wait for three hours to pass before resuming pickets.
Rep. Allen Fletcher, R-Tomball, says he drafted the law in direct response to the protests by Kansas-based Westboro Baptist Church, whose members have received national attention for their protesting of funerals for fallen U.S. soldiers, holding up signs with gems like: "Thank God for dead soldiers" and "God Hates the USA/Thank God for 9/11." In March, the Supreme Court sided with Westboro Church in a civil lawsuit regarding a 2006 protest of U.S. Marine Lance Cpl. Matthew Snyder. Matthew Snyder’s father Albert Snyder sued the church for damages, but the Supreme Court ruled 8-1 that the church’s speech fell under the “special protection” of the First Amendment. However, the court declined to evaluate the constitutionality of the more than 40 state statutes that have passed picketing restrictions, including HB718.
“This law is certain to be challenged on constitutional grounds,” says appellate lawyer Rick Thompson, whose practice at Dallas-based Hankinson Levinger includes constitutional law.
August 31, 2011 by Robert Tharp at 2:52:29 pm Top New Texas Laws Countdown: Lead-footed motorists, nocturnal truckers rejoice
Truckers, start your engines. HB1201/HB1353 bumps up the maximum speed limit in Texas to 85 mph. The higher speed limit will be applied to stretches of Texas roads deemed suitable by state officials – Texas currently has more than 520 miles of interstate highways where the speed limit is 80 mph. The law also does away with a separate, lower nighttime speed limit for big trucks. So as of tomorrow, big rigs and four-wheelers will have the same nighttime speed limits.
Writes the USA Today: According to the Insurance Institute for Highway Safety, high speeds were a factor in about one-third of all fatal crashes in 2009. The faster you're traveling, the greater the distance needed to bring your vehicle to a complete stop and the longer it takes a driver to react to emergency situations, according to IIHS. If an accident does occur at a higher speed, there is a strong likelihood that the crash impact will exceed the protection available to vehicle occupants. On top of safety concerns, speeding increases fuel consumption. Every 5 mph you drive over 60 mph is like paying an additional $0.24 per gallon for gas, according to the U.S. Department of Energy.“Even though the law says that the 85 mph speed limit will be permitted only on highways designed to accommodate travel at that speed, this doesn't account for human errors that we know are common in driving, as well as the mechanical failures that are bound to happen at such high speeds,” says Steven C. Laird, whose practice at The Law Offices of Steven C. Laird includes trucking wrecks caused by driver carelessness, sleep deprivation, intoxication, fires, bad brakes and other preventable events.
August 30, 2011 by Robert Tharp at 11:50:40 am No 6 in Top Texas Laws of 2011 Countdown: Protecting lost adults with the Ambert Alert
Created in response to the daylight abduction of 9-year-old Amber Hagerman from an Arlington parking lot in 1996, the state’s Amber Alert system has spread across the country and beyond as a useful tool for soliciting the public’s help in quickly finding lost or abducted children.
Starting Sept. 1 under HB1075, the state will broaden the Amber Alert umbrella to include allowing its use for cases involving missing adults diagnosed with developmental disabilities, such as Alzheimers and other forms of dementia. “Many would be surprised to learn how common it is for adult caregivers to lose track of their developmentally disabled patients and relatives,” says Jeff Rasansky of the Rasansky Law Firm. “This law will employ the vast resources of the AMBER network to help find these individuals.”
The Amber Alert is a voluntary partnership between law-enforcement agencies, broadcasters, transportation agencies, and the wireless industry, to activate an urgent bulletin in the most seriouschild-abduction(and now missing adult) cases. The goal is to instantly galvanize the entire community to assist in the search for and the safe recovery of the child.
August 30, 2011 by Robert Tharp at 11:09:55 am Top Texas Laws of 2011 Countdown: Criminal background checks for driver's ed teachers
At No. 7
on the Androvett Legal Media countdown of the top new Texas laws for 2011,
HB2678 requires that driver’s education teachers in Texas undergo a criminal
background check before they’re allowed to teach. HB2678 marks a continuation of efforts to crackdown on
improper teacher-student relationships. In 2003, Texas legislators made it felony
for a teacher to have sex with a student, regardless of the student’s age or
Chuck Noteboom, whose practice includes filing civil
lawsuits against sex offenders, says the law may have the best intentions, but a larger
problem is the state’s statute of limitations for reporting such offenses. “This
amounts to a Band-Aid on an amputation,” Noteboom says. “If they really want to
protect people, they should eliminate Texas’ statute of limitations on sexual
assault charges, because 80 percent of all rapes go unreported, mostly due to
shame and repressed memories.
A recent Dallas
Morning News report found at least 19 reports of sexual relationships
between teachers and students in North Texas since January 2010. Such
relationships are a second-degree felony, regardless of the student’s age or
whether the sex was consensual. The penalty ranges from two to 20 years in
August 29, 2011 by Robert Tharp at 11:50:24 am No 8 in Top New Texas Laws Countdown: Targeting Water Polluters
At No. 8 on the Androvett Legal Media Top 10 list of new Texas laws is HB451, creating a “Don’t Mess With Texas Water” program. Come September 1, motorists will begin seeing signage at major highway water crossings with a toll-free hotline to report illegal dumping.
Backers of this law point to illegal dumping as a major environmental and public health issue that can significantly impact Texas lakes and rivers. The nature of illegal dumping -- often under the cover of darkness or out in rural areas -- makes it difficult for law enforcement agencies to combat this crime. According to a recent report by the Texas Legislative Study Group on the State of Our State, Texas ranks first in the amount of toxic materials released into the water.
“The goal here is fiscal efficiency,” says Houston lawyer Todd Mensing of Ahmad Zavitsanos & Anaipakos, who represents Harris County in pollution cases. “These are lean budgetary times. This is a low-cost, but potentially highly effective deterrent for illegal dumping, which is a growing public health concern in this state.”
August 26, 2011 by Robert Tharp at 3:59:36 pm Top 10 New Texas Laws Countdown: Bringing Hammer Down on Bar Violence
Coming in at No. 9 on Androvett Legal Media's list of the Top 10 new Texas laws for 2011, is HB2707, which empowers the Texas Alcoholic Beverage Commission or a county judge to shut down bars that have a documented history of bar fights or other violence. Like most of the newly created laws, it becomes effective Sept. 1.
The measure is known as “Erik’s Law” in memory of 26-year-old Fort Worth resident Erik Ozuna, who was killed in March 2008 in a volley of gunfire inside a Fort Worth bar. Before a 21-year-old man pulled a gun and started firing randomly into the crowd inside the bar, police had responded to more than 400 incidents there.
“This new law puts a premium on each bar not just adopting, but rigorously implementing employee training and enforcing responsible retailer policies, which is a big part of my practice,” says Andy Siegel from Shackelford Melton & McKinley, whose practice includes alcoholic beverage regulation. “It also means that bar and restaurant owners will need legal counsel to help design preventive programs and be ready to act to challenge any alleged violations in order to allow for continued business operations.”
August 25, 2011 by Robert Tharp at 11:34:37 am Countdown of Top 10 New Texas Laws: Feral Pigs Run for Cover
September in the Lone Star State means the return of Big Tex and the State Fair of Texas, football and, this year, the enactment of nearly 1,500 new laws passed by Texas lawmakers in the last session. Some of us at Androvett Legal Media & Marketing have compiled our top 10 new laws that take effect in Texas on Sept. 1, with comments from lawyers with expertise in these areas. And so begins our countdown to Number 1.
Coming in at Number 10 is what our lawmakers affectionately dubbed the Pork Chopper (HB716), which will allow Texas landowners to rustle up hunters willing to pay for the opportunity to shoot feral hogs and coyotes by helicopter. The law allows property owners to "lease" helicopter seats for hog and coyote hunts. As Texas Monthly reports in its August edition, "With a population now exceeding 2.6 million, feral hogs in Texas have hit critical mass. Females can have up to two litters a year, with an average of five to six piglets each, and they are outbreeding deer, humans and every other large mammal in the state...they roam in packs, long-toothed and short-tempered, willing to eat nearly anything, including their young."
Curtis L. Frisbie Jr., an antitrust and commercial litigation lawyer at Gardere Wynne Sewell, calls the law a positive step. “I am very much in favor of helicopter shooting of feral hogs,” says , and an avid hunter. “They are a pest and a menace, and cause a lot of property damage. Ask any Texas rancher. The National Rifle Association says that feral hogs cause an estimated $400 million in damages in Texas every year. Texas has the largest population of feral hogs in the US. It is estimated by some that there are 4 million feral hogs in U.S. That number will only increase.”
August 24, 2011 by Robert Tharp at 1:55:37 pm Feds Quietly Cracking Down on Unsafe Buses, Trucks
With little fanfair, the U.S. Department of Transportation has quietly increased safety oversight of busing companies, taking more dangerous motor carriers off the road in the last two years than in the previous nine years combined.
Writes the Commercial Carrier Journal: The Federal Motor Carrier Safety Administration(FMCSA) also has doubled the number of bus inspections and safety reviews of the nation’s estimated 4,000 passenger bus companies. Roadside inspections of motorcoaches have jumped nearly 100 percent, from 12,991 in 2005 to 25,703 in 2010, while compliance reviews are up 128 percent, from 457 in 2005 to 1,042 in 2010. In addition, FMCSA has initiated a greater number of enforcement cases against unsafe passenger carriers under the current administration: these cases have risen from 36 in 2008 to 44 in 2010.
The DOT now is asking Congress to allow greater ability to conduct safety inspections of buses and trucks and to require new motorcoach companies to undergo stringent safety audits. Transportation attorney Chuck Noteboom says the focus on bus safety is necessary. "Too often we've seen the deadly results of fly-by-night bus and truck operators who have been allowed to avoid scrutiny for too long," he says.
According to the CCJ, in May, FMCSA and its state and local law enforcement partners conducted more than 3,000 surprise passenger carrier safety inspections over a two-week period that resulted in 442 unsafe buses or drivers being removed from the nation’s roadways. The strike force took 127 unsafe drivers and 315 unsafe vehicles off the road during these unannounced inspections.
August 23, 2011 by Dave Moore at 2:58:58 pm Students’ Extracurricular Activities Can Cause Friction in Shared Custody
If Suzy’s lacrosse game runs long, it might make for a thrilling finish. But if the overtime encroaches upon the agreed-to visitation time of a divorced parent, it also can reignite simmering tensions over custody, cautions McCurley Orsinger McCurley Nelson & Downing LLP attorney Elizabeth Durso Branch.
“Extracurricular activities, particularly when they occur during visits with the non-custodial parent, can be the cause of a surprising amount of conflict,” she says, adding that custody orders should be as specific as possible to help defuse potential conflict.
Branch says that effective custody orders should require both parents to agree upon both the number and types of extracurricular activities a child can participate in. Updated copies of custody orders, a list of emergency contacts and any protective orders should be provided to the child’s school so that the administration will know with certainty who is authorized to pick a child up after school or remove them from classes during the day.
August 15, 2011 by Dave Moore at 10:42:25 am Employment Lawyer Neil Martin: Tiger Woods’ Dismissal of Caddie Poses a Lesson For All Execs
Perhaps the sweetest reward for former Tiger Woods caddie Steve Williams came with Adam Scott’s Aug. 7 victory at the World Golf Championship-Bridgestone Invitational. Williams, of course, caddied for Woods before the now-fallen star unceremoniously terminated their 12-year relationship. After his dismissal, Williams carried a golf bag for Scott, who scored his first world championship in golf in Akron.
Now, Williams is basking in the post-tournament glow, and is threatening to write a tell-all book about Woods and his innumerable personal indiscretions.
Woods’ poor handling of the Williams discharge should serve as a lesson to executives who face the prospect of severing ties with long-term employees, according to Houston employment attorney Neil Martin of Gardere Wynne Sewell LLP. Martin says managers need to treat loyal and long-tenured workers with the respect they deserve when ending their employment. "Subordinates' loyalty following discharge by a highly visible executive is always a concern for any business that promotes the public posture of that executive, especially if the executive has a history of questionable lifestyle choices," says Martin. “Confidentiality contracts can also help limit the risk of embarrassing exposés,” Martin says.
The best vaccination against employee retribution, however, is to show outgoing workers the appreciation and consideration that anyone at the end of a long-term relationship deserves, Martin says.
August 12, 2011 by Dave Moore at 10:36:52 am Texas Lottery Officials Find Themselves in Deposition Hot Seat
Rarely do state officials find themselves in the deposition hot seat, given the sovereign immunity that states enjoy from litigation. But the legal case of Texas Mega Millions Lottery winner Willis Willis is far from typical. Back in 2009, Willis bought a winning $1 million Texas Lottery ticket. Yet when he approached Texas Lottery agent and convenience store clerk Pankaj Joshi to check his numbers, Joshi lied, telling him that he didn’t win. The clerk then drove to the lottery’s headquarters in Austin and claimed Willis’ prize.
It’s been an uphill legal slog for Willis since then, but he’s scored a recent win, in which a Travis County judge has ordered lottery officials to answer key questions under oath regarding lottery fraud in Texas. “This is an important ruling because the success of the Texas Lottery hinges on the public’s confidence in the integrity of these games,” says Sean Breen of Austin-based Howry Breen & Herman. “The lottery so far has refused to acknowledge its role in this and other thefts by store clerks, and it’s about time they provide some answers to these questions.”
The situation of Willis might to seem unique, but as Dateline NBC reports, clerks in California and New York have also been caught pocketing prizes intended for lottery winners.
August 11, 2011 by Erin Dooley at 4:44:02 pm The Lawyer's Role in the Company's PR Crisis
We all know about Andy Warhol’s 15 minutes of fame, but in this rapidly changing media environment there’s a component to the 24/7 news cycle and multiplying social media platforms that can be terrifying to businesses. After all, a contentious lawsuit, a misguided communication, or a particularly vehement onslaught of client complaints can clog the gears of any business, bringing the usually well-oiled company machine to a grinding halt and—perhaps even worse— ruining the company’s reputation.
A new Androvett Legal Media & Marketing white paper, “The Lawyer’s Role in the Company Crisis,” provides a broad overview to help law firms prepare for and deal with a public relations crisis.
In the paper, Androvett Legal Media’s Mike Androvett, Mark Annick and Mary Flood describe key considerations that firms should review before a crisis occurs. The white paper addresses basics such as assembling a crisis team, identifying key stakeholders, designating spokespeople, crafting an honest, comprehensive message and, where appropriate, gracefully admitting guilt. To that end, it includes a list of questions all response messages must answer, including “What impact does this have on the customer?” and “What is the company doing to ensure this never happens again?”
In today’s 24/7 news cycle, a company easily can become a punch line overnight, even if eventually it wins in court. Said another way, the value lost in diminished reputation may far outweigh the cost of litigation…There should be an emphasis on speed, clarity and truth-telling, even in the face of negative publicity. Although the facts may be against you, many companies learn a painful lesson when they try to run away from bad news or, worse, fudge the facts.
“The Lawyer’s Role in the Company Crisis” also fiercely attacks the ‘no comment’ tactic taken by so many businesses today. “The tension between the lawyerly instinct to stay mum in anticipation of litigation, and the need to speak candidly internally and externally to soothe and reassure stakeholders is a classic tug of war in many crisis situations.”
The paper underscores the essential irony of crisis communications that many learn only after it’s too late: companies are often punished more for how they mishandle a crisis than for the crisis itself.
Click here to read “The Lawyer’s Role in the Company Crisis.”
August 3, 2011 by Dave Moore at 9:19:16 am Employers Should Heed Pilot Divorce Ruling in Continental Airlines Case
Human resource managers and pension plan administrators should know about a recent court decision involving the effect of a change in marital status for several pilots employed by Continental Airlines Inc., Rose●Walker attorney Jody Rudman told Texas Lawyer senior writer John Council recently on the Texas Lawyer video blog “Reversed and Remanded.”
The case discussed by Rudman and Council involved a Continental pilot retirement plan that included a lump-sum distribution to ex-spouses through Qualified Domestic Relations Orders. When the airline’s pension plan administrators questioned whether some divorces involving continental pilots were shams, the administrators sued to get the lump-sum payments back. The pilots and their ex-spouses, with whom each had now reconciled, won.
On July 18, the U.S. Court of Appeals for the Fifth Circuit affirmed a ruling that the Employee Retirement Income Security Act of 1974 (ERISA) doesn’t allow plan administrators to question the intentions or the good faith of a divorce.
Rudman says the decision could present similar issues for benefit plan administrators at other companies: “I would say to the plan administrator, take a good hard look at the terms of your employee benefit plan, so if something like this comes up again, (if) you get a Domestic Relations Order, and have no choice but to qualify it under the terms of erisa, what will you be looking at paying out?”
Yet as the Fifth Circuit’s opinion indicated, Rudman said the decision was a narrow one.
“I don’t know if this opens the floodgates necessarily,” she told Texas Lawyer. Rudman reiterated that while the case is an important one to know about, it involved a unique set of facts and appeared to be a case of first impression.
July 28, 2011 by Robert Tharp at 4:00:53 pm In Down Economy, Legal Malpractice Claims Spike
From fee disputes to allegations of negligent advice, lawyers are facing more malpractice claims from disgruntled former clients, according to a new survey of legal malpractice trends.
According to a 2011 Ames & Gough survey, a majority of the major legal malpractice insurance providers report an increase in malpractice claims. While claims are up as much as 20 percent, the survey also notes that large claims(with reserves over $500k) are also on the rise. There has also been an uptick in multi-million dollar claim payments – five of the six insurers surveyed were involved in paying a claim of $50 million or more.
Dallas attorney Nicole LeBoeuf, a partner at Shackelford Melton & McKinley who frequently defends lawyers in malpractice claims, says increased interest in legal malpractice is affected by a number of factors, including a sputtering economy. "In better economic times, people are more likely to move on than to place blame after a deal goes south," LeBoeuf says. "There's more at stake in a down economy and lawyers increasingly are finding themselves blamed when parties try to recoup losses."
Real estate, corporate & securities work, and trusts & estates cases account for the bulk of the legal malpractice claims. Meanwhile, conflict of interest is the single largest type of claim. The survey’s findings have been highlighted in the WSJ Law Blog and Insurance Journal.
“With more [real estate] transactions comes more closings and increased risk of errors,” the report states. “Further compounding this situation was the economic downturn that befan in the fall of 2008. As property values plummeted, more buyers and lenders began to look to the parties involved in these transactions to lay blame and seek to recoup their losses.”
July 19, 2011 by Erin Dooley at 3:03:15 pm MLB Reexamining Ballpark Safety Following Fan's Fatal Fall
The fatal fall of Texas Rangers fan Shannon Stone has captured the public eye. Stone, a firefighter who attended the game with his 6-year-old son, tipped over a railing and fell to his death 20 feet below after reaching to catch a ball thrown to him by Rangers left fielder Josh Hamilton. The New York Times, Washington Post, and Wall Street Journal all covered the tragedy.
More importantly, Stone’s death has garnered some serious attention from the Major League Baseball Association. Commissioner Bud Selig has asked all MLB franchises to conduct safety investigations, advising them to consider installing higher railings on ballpark decks. Many safety experts say team owners should have taken note of a string of non-fatal falls that have occurred since the ballpark opened in 1994 and taken appropriate safety precautions.
“Anyone with a basic understanding of physics would understand why these rails are potentially dangerous,” says Dallas trial attorney Frank L. Branson, who successfully sued the Dallas Cowboys over design flaws that resulted in the collapse of a team practice facility. “Unfortunately, the refusal to correct a serious safety issue probably cost this husband and father his life.”
Nationally known safety expert Nigel Ellis says the solution may be modifying rails so that they extend outward rather than upward. Increasing safety without compromising sightlines, this kind of guardrail is standard at hotels with tall atriums, says Ellis. Ellis tells the Dallas Morning News that it’s time MLB takes action.
According to the Dallas Observer Unfair Park blog, Rangers officials have been consulting with contractors, architects, and other experts, and have made plans to raise guardrails. In the interim, says John Blake, Executive Vice President of Communications for the Texas Rangers, ballpark officials will be taking precautionary measures, including installing signs deterring fans from leaning over rails and broadcasting a pre-game warning over the park’s public address system and on scoreboards.
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