December 30, 2009 by Robert Tharp at 3:57:15 pm San Antonio attorney Allan B. Polunsky reappointed to Texas Public Safety Commission
San Antonio attorney Allan B. Polunsky has been appointed to a new six-year term on the Texas Public Safety Commission, the state board responsible for formulating and overseeing enforcing criminal, traffic and safety laws, for preventing and detecting crime, for apprehending law violators and for educating citizens about laws and public safety.
Mr. Polunsky is the only person to serve as chairman of the state's top two criminal justice agencies - the Texas Public Safety Commission and the Texas Board of Criminal Justice. He has served as Chairman of the Public Safety Commissoin since 2007. He previously served 13 years on the state Board of Criminal Justice, including five years as chairman.
"The safety and security of our state is a key concern of Gov. Perry and Texans everywhere," says Mr. Polunsky. "I am honored to assist the governor and law enforcement officials in assuring that all our resources are properly supported and coordinated in making Texas the safest state in the nation."
Mr. Polunsky is managing partner and founder of Polunsky & Beitel, LLP, a law firm that specializes in real estate and mortgage lending with offices in San Antonio and Dallas. He was among the first 50 attorneys in Texas to be Board Certified in both Residential Real Estate Law and Commercial Real Estate Law by the Texas Board of Legal Specialization.
Mr. Polunsky also has served the City of San Antonio as Chairman of the city's Zoning Commission, President of the Industrial Development Authority and member of the Planning Commission. He also served on the San Antonio River Authority Board of Directors for 12 years. Mr. Polunsky is a past board member of the Texas Lyceum Association, Special Olympics of Texas and San Antonio Food Bank.
December 30, 2009 by Robert Tharp at 1:59:23 pm White-collar defense attorney Bill Mateja: It's time for the federal honest services act to go
White-collar defense attorney Bill Mateja has penned an interesting op-ed analysis published in the Dallas Morning News regarding the federal honest services statute. Following oral arguments earlier this month in which the Supremes expressed grave concerns about the statute's constitutionality, it's widely believed that the Court will strike down this widely used statute.
Mateja, a former head of the DOJ's Corporate Fraud Task Force and now in practice at Fish & Richardson's Dallas offices, writes: What began in 1988 as a law targeting mail and wire fraud by making it a crime to deprive an employer or the government of the "intangible right of honest services" quickly has become a favorite tool of federal prosecutors targeting not just public officials but employees in the private sector. In many cases, it's the charge prosecutors turn to when nothing else will stick, a way to secure a fraud conviction without proving financial gain or any quid pro quo deal. And, it's been used to criminalize conduct that could be construed as nothing more than self-serving acts, conflicts of interest and slight ethical transgressions, including failing to give your employer an honest day's work. Undoubtedly, were the Supreme Court to strike down the statute, defendants previously convicted under the statute would come out of the woodwork asking to have their convictions overturned. Additionally, prosecutors who depend on the statute to prosecute worthy public corruption cases would be hamstrung. In Dallas, the statute was used just last October to obtain high-profile convictions against some of those involved in the Dallas City Hall corruption scandal, although those convictions were coupled with other charges that are safe from Supreme Court review. Striking down the statute, however, would have voided convictions obtained against three Baylor men's basketball coaches in the mid-1990s for scheming to obtain credits and scholarships for junior college transfers. The coaches' actions may have violated NCAA rules, but no law was broken except for this so-called honest services statute. Notwithstanding these potential shockwaves, the Supremes should strike down the honest services statute because its use leads to selective prosecutions and makes federal prosecutors omnipotent in interpreting the law. When a prosecutor's mere discretion (or whim) wields that kind of power, it can hardly be said that the rule of law is alive and well. While we're at it, our justice system should revisit the more than 4,000 federal offenses scattered throughout the federal criminal code, as well as untold numbers of federal regulatory criminal provisions. Enforcement of this ever-growing criminal code has contributed to a backlogged judiciary, overflowing prisons and the incarceration of innocent individuals who are persuaded to plead guilty not because they are guilty, but because exercising their constitutional right to a trial is all too risky. To this end, Congress heard testimony last summer from strange bedfellows who have formed a coalition to bring "overcriminalization" to lawmakers' attention, namely, the American Bar Association, American Civil Liberties Union, Cato Institute, Constitution Project, Federalist Society, Heritage Foundation, National Association of Criminal Defense Lawyers, and Washington Legal Foundation. Unquestionably, neither fraud nor public corruption can be tolerated, but relying upon flawed laws and an overcriminalized justice system are not solutions we can live with.
December 30, 2009 by Robert Tharp at 11:38:08 am Hankinson Levinger's Ryan Clinton honored with national animal welfare award
As a noted appellate attorney working for a highly respected Texas-based appellate firm, you'd expect Ryan Clinton of Hankinson Levinger to be the kind of guy who has passion for a cause. That drive extends outside the courtroom as well. Clinton has been named one of just six people nationwide honored by a national animal welfare organization for his work promoting no-kill animal shelters.
No Kill Advocacy Center, an organization committed to ending euthanasia at animal shelters, conferred its Henry Bergh Leadership Award on Mr. Clinton and five other individuals at animal welfare organizations across the country. The award is named for the 19th century animal advocate who founded the American Society for the Prevention of Cruelty to Animals. Among other things, Clinton was instrumental in the movement to place a no-kill item on the Austin City Council agenda. As a result of his work, the elected officials voted unanimously to direct the city manager to formulate a plan for Austin to implement no-kill policies and procedures.
"This is a tremendous honor, especially when you consider the other people that were named and the outstanding work they have done," Clinton says. "My hope is that this award will help inspire animal lovers all over the country to demand the enactment of life-saving policies and programs at their community animal shelters." Mr. Clinton is the founder of FixAustin.org, a grass-roots, non-profit organization dedicated to ending the killing of lost and homeless pets in Austin. The group has served as a national model for other such efforts in California, Florida, Oregon and North Carolina. Mr. Clinton also serves as volunteer legal counsel for Austin Pets Alive, a non-profit pet adoption group responsible for saving 2,500 lost and homeless pets from the city's shelter in less than two years.Prior to joining Hankinson Levinger, where he provides appellate services to a wide range of business clients, Mr. Clinton served six years as an Assistant Solicitor General for the State of Texas. He has successfully argued cases in state and federal appellate courts, including four arguments before the Supreme Court of Texas. He also has been named as one of the top young lawyers in Texas five different times in the Texas Rising Stars list published in Texas Monthly magazine.
December 29, 2009 by Robert Tharp at 3:40:13 pm Microsoft patent infringement case upheld, damages grow by $90 million
While the Seattle Post Intelligencer rates it as only the No. 7 biggest Microsoft-related news story of 2009, the stunning David vs. Goliath patent case involving i4i Inc.(represented by McKool Smith and Tyler, Texas-based Parker, Bunt & Ainsworth) is certainly one of the top IP stories of the year.
Writes the Seattle PI: Though the lawsuit was filed in 2007, the hubbub started in August when a judge slapped Microsoft with an injunction that said it could no longer sell Word. i4i Inc. had sued Microsoft for patent infringement, alleging the ubiquitous word-processor incorporated custom-XML technology owned by the small Canadian company. A Texas jury agreed that Microsoft was liable for willful infringement and awarded i4i $200 million in damages.Microsoft, determined to prove i4i's patent invalid, was granted an appeal and a temporary stay on the injunction. In September, the companies fought over the case in a Washington, D.C., federal appeals court - Microsoft arguing that i4i was out for easy money, and i4i arguing that Microsoft killed its business model. Just days before Christmas, a three-judge panel upheld the Texas ruling, reinstating the injunction and imposing $290 million in damages after fees and interest. Microsoft has until Jan. 11 to strip the custom-XML editor from Word - or stop selling Word altogether.
December 29, 2009 by Robert Tharp at 3:14:18 pm 2009: The Year of the Ponzi Scheme
Thanks to the recession and heightened vigilance following Bernard Madoff's 2008 arrest, Ponzi scheme investigations really spiked in 2009, according to an excellent Associated Press analysis. In fact, the AP is declaring 2009 the year of the Ponzi scheme.The AP reports that 2009 saw four times as many Ponzi schemes unravel than in 2008. Writes the AP: Tens of thousands of investors, some of them losing their life's savings, watched more than $16.5 billion disappear like smoke in 2009, according to an Associated Press analysis of scams in all 50 states.In all, more than 150 Ponzi schemes collapsed in 2009, compared to about 40 in 2008, according to the AP's examination of criminal cases at all U.S. attorneys' offices and the FBI, as well as criminal and civil actions taken by state prosecutors and regulators at both the federal and state levels.A Ponzi scheme depends on a constant infusion of new investors to pay older ones and furnish the cash for the scammers' lavish lifestyles. This year, when the pool of people willing to become new investors shrank and existing investors clamored to withdraw money, scams collapsed across the country.They're also resulting in a spike in federal class-action filings. "Increasingly common are class actions based on what a bank should have known, even if the institution acted as a passive custodian of the funds," says Kenneth Johnston of Dallas's Kane Russell Coleman & Logan. "Banks may face costly claims for failing to identify that, for example, one of its customers was in fact a Ponzi scheme." Johnston also notes that SEC receivers and bankruptcy trustees are aggressively pursuing fraudulent transfer claims against both banks and investors who merely held or received Ponzi scheme distributions.
December 29, 2009 by Robert Tharp at 2:04:41 pm More signs that social media networks are here to stay
Social media guru Brian Solis posts some very interesting numbers regarding the explosive growth and our collective embrace of social media networks. Time spent on social networks tripled over the last year and now accounts for 17 percent of the time we spend online. As a result, we are now spending more time on social networks and blogs than e-mail.
Writes Brian: As a result of our online interaction, advertisers are following our activities attempting to capture our attention where it is focused. The same report also found that online display advertising in top social networks has more than doubled year-over-year, increasing 119 percent. The jump represents an increase in spending from approximately $49 million in August 2008 to roughly $108 million in August 2009. Also of note, the share of estimated spend in social networks as also increased, expanding from seven percent in August 2008 to 15 percent in August 2009.
December 18, 2009 by Robert Tharp at 3:41:06 pm McKool Smith's bankruptcy practice group expansion continues
Commercial bankruptcy has been one of 2009's hot spots in the legal industry, and McKool Smith's new bankruptcy practice group continues to expand with some of the industry's top legal minds. After forming its bankruptcy group and opening Houston offices led by noted bankruptcy specialist Hugh Ray, the firm has hired bankruptcy litigator Basil A. Umari.
Umari, who comes to the firm from Andrews Kurth, represents debtors, creditor committees, secured and unsecured creditors, and other parties in virtually every type of bankruptcy proceeding. He has represented clients from a variety of industries, including banks, oil and gas producers, healthcare entities, ship manufacturers, and many others.
December 17, 2009 by Robert Tharp at 4:46:03 pm Something to look forward to in 2010: More IRS audits of U.S. businesses
Here's something for business owners to look forward to in 2010 ... random IRS audits of payroll tax practices. With an estimated $14 billion in corporate tax underpayments every year, the IRS is ramping up an enforcement plan that will identify and target businesses with the greatest compliance risks. Those companies will be targeted for future audits. The IRS reportedly has its sites set on everything from executive compensation to fringe benefits, and some businesses have already received requests for documents."The major focus will be the traditional hot-button issues - worker classification, fringe benefits, reimbursed expenses and executive compensation," says Elizabeth Schartz of Thompson & Knight's Dallas office. "You can expect increased activity from both federal and state agencies that are looking to increase revenues in a difficult economic environment. Employers need to get ahead of the issue now by conducting a preemptive self-audit to correct any problems."Reports Reuters: The audits will begin in February 2010 and stretch across all types and sizes of companies. The exams will be deeper than typical audits, and also look at the use of independent contractors and other worker classification issues.IRS Commissioner Douglas Shulman has said the agency will focus on the wealthy and large corporations as it seeks to recover billions that go unpaid in taxes each year.
December 17, 2009 by Robert Tharp at 3:45:58 pm Toy safety list available for would-be Santas
It's now easier than ever for would-be Santas to research a toy's safety before hitting the check-out line. The new Web site, www.toysafety.mobi, allows shoppers to avoid common hazards and report potential dangers they find on toy store shelves, right from their mobile phones or home computers.Reports the Washington Post, despite stricter laws, toys containing dangerous chemicals are still prevalent on stores shelves. The Post note: In a report released Tuesday called "Trouble in Toyland," the U.S. Public Interest Research Group (U.S. PIRG) found that while many manufacturers and retailers are complying with the new law, a handful are not, and it is hard for consumers to tell the difference."This year's dangerous toy list is divided into three categories: choking hazards, chemicals - such as lead paint - and noisy toys that can harm a child's ears," says Dallas attorney Angel Reyes of Reyes Bartolomei Browne. He notes that safety advocates have made it easy for parents to check on toy safety even while shopping, with the new Web site, toysafety.mobi. "Beyond that, parents need to use common sense and remember that they are on the front lines in the battle to keep their kids safe."
December 17, 2009 by Robert Tharp at 3:15:33 pm Social media's brave new world of ethics for judges/lawyers
Did the Florida Judicial Ethics Advisory Committee go too far when it advised judges and lawyers to no longer "friend" each other on Facebook and other social media networking sites? The harm, according to a majority on the committee, is that such connections might create the impression of favoritism and special influence.
FindLaw columnist Anita Ramasastry sums it up this way: Judges may use Facebook for political campaigns (since many states require judges to run for election), for communicating with the public, or simply to communicate with friends and acquaintances. The Committee felt that the "friending" of lawyers by judges could send the wrong message to the public -- suggesting that certain attorneys have cozy relationships with a given judge, and thus have the power to influence his or her decisions. A person who is on Facebook might have dozens, hundreds, or even thousands of "Facebook friends." Some legal ethics experts thus conclude that being a Facebook "friend" conveys very little, and that the Committee got it wrong.And indeed, a minority of the Committee's panel would have allowed Facebook friendship between lawyers and judges, because the minority characterized being a Facebook "friend" as a status that is actually more like that of "a contact or acquaintance," one that does not convey the notion of "feelings of affection or personal regard." But there is a strong basis for the Committee's ruling: Judges hold a very special position of trust. They must take extra pains to avoid even the appearance of impropriety or conflicts of interest.
Thompson & Knight partner Greg Curry, president of the Texas Association of Defense Counsel, says that while the committee's intentions are well-placed, such passive and low-level contact is not likely to create ethical problems. However, lawyers with cases before a judge should rethink their on-line relationships. "The decision properly highlights that if you have an ongoing matter before a judge, then you should evaluate and properly limit any inappropriate contact." In such cases, Curry advises that it may be best for lawyers to remove a judge as a friend, and vice-versa.
December 17, 2009 by Robert Tharp at 1:27:37 pm Who do in-house counsel go to for IP and Business litigation? McKool Smith
In-house counsel at Fortune 500 companies have selected the national law firm of McKool Smith as a "Go-To Law Firm" for litigation involving business and intellectual property. The firm, which maintains offices in Texas, New York, and Washington, D.C., will be recognized in the upcoming legal guide, "In House Law Departments at the Top 500 Companies."
This marks only the latest in a long line of accolades and accomplishments earned by the attorneys at McKool Smith. In the last year alone, the firm has added new practice areas, opened an office in Houston and beefed up recently opened offices in D.C. and New York City. The firm was recognized in The National Law Journal as having won more of the nation's Top 100 verdicts in 2008 than any other U.S. law firm. The firm also was named as one of the country's most innovated law firms in The National Law Journal's "Midsize Hot List."
In 2009 litigation, the firm successfully took on some of the tech sector's biggest household names, including winning a $200 million patent-infringement verdict against Microsoft and a $139 million verdict against SAP AG. Meanwhile, McKool Smith attorneys turned heads in a closely watched class-action, winning a $20 million class-action jury verdict on behalf of more than 170 Texas cities.
December 16, 2009 by Robert Tharp at 1:30:16 pm Deadline looming for former First City workers to join $4.6 million class action settlement
The clock is ticking for potential members of a $4.6 million class-action settlement related to former First City Bancorporation workers whose retirement plans were mishandled. Eligible former employees have until Friday, Dec. 18, 2009, to submit claims and join the class, says business attorney David Furlow of Thompson & Knight LLP and counsel for the class.A Houston judge has approved a settlement in the case that would distribute approximately $4.6 million to former First City workers. The case centers around a defined-benefit retirement plan established and funded solely by First City for employees in 1976. First City cancelled the plan for being overfunded 10 years later. The company then made lump-sum payments to some participants and purchased long-term annuities on behalf of other employees from the Prudential Insurance Company. After First City was declared insolvent in 1992 and went through an involuntary bankruptcy, successor corporations took the position that the former First City employees should receive nothing from the annuity investments. Former First City employees who have questions about their eligibility should review the information on the Class Administrator's Web site at www.firstcityclassaction.com.Lead Class Counsel Robert S. MacIntyre, Jr. of Houston's MacIntyre & McCulloch, LLP, emphasizes that these payments will not affect anyone's right to receive pension benefits."These beneficiaries are likely to be retirees in their 70s and 80s for whom this financial settlement could be very welcome," Furlow says. "There remain several hundred former First City employees who have not responded to our efforts to contact them about their rights to receive a distribution from the settlement fund, and the deadline to do so is approaching."
December 15, 2009 by Robert Tharp at 4:16:16 pm As business world embraces cloud computing, expect more IP litigation like this
The folks over at the Legal Bytes blog have an interesting take on the recent settlement struck by NetMass regarding a cloud computing patent held by inventor Mitchell Prust. Says Legal Bytes: This may be just the beginning of a wave of intellectual property lawsuits as cloud computing begins to evolve and become part of a commercial operational toolkit around the globe - not much different from those surrounding ATMs, online banking, networking and other once-emergent technology platforms. Stay tuned. You will be hearing more from us about clouds in the year ahead.
According to the settlement signed off on by Judge T. John Ward of the U.S. District Court for the Eastern District, NetMass admitted to infringing three online storage and computing patents(specifically U.S. Patent Numbers 6,714,968; 6,735,623 and 6,952,724) held by Prust and permanently enjoining NetMass from infringing on those patents in the future.
"We are extremely pleased to have resolved this matter in favor of Mr. Prust," says Christopher D. Banys of The Lanier Law Firm , who represtented Mr. Prust. "The patents in this litigation represent the building blocks for some of today's most sophisticated online applications, and we will continue to help our client protect his interests in these valuable patents."
IP Law 360 weighed in on the case, writing: Cloud storage and cloud computing technology has to do with moving away from storing information in physical locations like hard drives and instead keeping that data "in the ether," Banys said. Prust has been working on cloud technology for some time, but the technology "is just now catching fire."Prust also is asserting the three patents against Apple Inc. in a separate case pending in the U.S. District Court for the Northern District of California.The stipulated judgment and request for permanent injunction filed on behalf of Prust and NetMass in the Texas court on Monday said NetMass admitted every allegation in the complaint, except to the extent that willful infringement is alleged or exceptional case status was sought.The case is ongoing with respect to Softlayer Technologies Inc., which Prust also named as a defendant when he filed the suit Aug. 5, though the parties are in settlement talks.Prust's case against Apple was filed in the Texas court in April, and Judge Ward granted a motion to transfer the case to California in October.
December 15, 2009 by Robert Tharp at 3:07:51 pm Unusual law school prof advice of the day: don't be ashamed to walk away from your underwater mortgage
Lots of jaws have been dropping over law professor Brent T. White's recent academic paper in which he advises beleaguered homeowners to stop feeling guilty about walking away from their underwater mortgages.
Writes the LA Times: Go ahead. Break the chains. Stop paying on your mortgage if you owe more than the house is owrth. And most important: Don't feel guilty about it. Don't think you're doing something morally wrong.
The main point is that too often people's emotions get in the way of clear financial thinking about mortgages, turning them into what he calls "woodheads" - "individuals who choose not to act in their own self-interest." Most owners are too worried about feeling so f shame and embarrassment after a foreclosure, and ignore the powerful financial reasons for doing so."
Real estate attorney Robert Miller of Dallas-based Prager & Miller says Texas' situation is less dicey than that of areas that saw dramatic home value run-ups, but much hinges on the economy. "If people have jobs and can afford the payment, they won't walk away," Miller says. "But if you're in a house with no equity and it's overvalued by 50 percent, people are deciding that there's no reason to continue, unless it's cheaper than renting." Against that backdrop, more mortgage lenders are participating in so-called short sales, selling foreclosed properties for less than the value of the foreclosed mortgage. In fact, the Obama administration is trying to reduce what has been described as a contentious, time-consuming short-sale process by requiring lenders and others to use nationally uniform documents, timelines and financial incentives.
December 8, 2009 by Robert Tharp at 2:36:54 pm The good news, you're an Internet sensation. The bad news, you're fired
Holiday parties are more dangerous than ever, thanks to the always-connected social media world we not inhabit. No longer are our embarrassing excesses limited to whispered comments around the water cooler - your drunken holiday party gaffs could become the next viral Internet sensation.
With party season in full swing, revelers should remember that these functions are rife with peril. "A work party is just that, an extension of work, and one false step can jeopardize your job," says Austin employment litigator Geoff Weisbart. "As a practical matter, you should never say or do anything at an office party that would not be permitted at the office." Weisbart notes that technology makes it increasingly easy to document events in any setting, and executives may be particularly susceptible to everything from embarrassment to sexual harassment claims when their bad behavior is immortalized in a worldwide YouTube video. "There is obviously a little relaxing of the lines of authority at a work party, but remember that the lines are not extinguished."
December 1, 2009 by Robert Tharp at 3:05:57 pm Environmental attorney Richard Faulk trades bar card for press pass to attend Copenhagen Climate Change Conference
As if environmental attorney Richard O. Faulk's CV isn't long and distinguished enough, the well-known litigator will soon add "working journalist" to his work history. Faulk, chair of Gardere's Environmental Practice Group and Climate Change Task Force, is one of the few U.S. lawyers traveling to Copenhagen for the United Nations Climate Change Conference. His presence in Copenhagen provides a ringside seat as countries hammer out a new international climate change agreement that would take the place of the Kyoto Protocol set to expire in 2012. But he's not just a passive observer, Faulk has secured a press pass as a credentialed journalist and plans to supply coverage of the proceedings to business and legal publications.
President Barack Obama is among world leaders representing more than 75 nations scheduled to attend the two-week conference, which begins Dec. 7 in Copenhagen, Denmark. Many nations and delegates believe that a global climate change agreement is necessary to limit the negative man-made effects on the climate system for future generations. Faulk says U.S. business interests need an agreement that's fair and includes industrialized and emerging nations. "This conference must produce an equitable international agreement to avoid the destructive effects of unilateral climate change measures on the United States economy. Even massive reductions in American greenhouse gas emissions will not be sufficient to impact climate in the absence of a universal agreement that binds all nations, including developing nations like China and India," he says.
That concern will be front-and-center in the conference, reports the Washington Post.
That critical question -- to what extent China and India, which are not bound by the same obligations as industrialized countries under the U.N. process, would cut their emissions as part of a global pact -- remains unanswered. The top leader of each nation, both of whom met with Obama over the past week and a half, are expected to announce their own climate plans within days. Ned Helme, president of the Center for Clean Air Policy, said Obama is "walking a knife's edge" to encourage China and India to act without alienating Congress."
Faulk says such a comprehensive approach to climate change is vital to its success. "In the absence of universal and verifiable international accords, American industry will suffer major competitive disadvantages - and, more importantly, climate changes will not be effectively redressed," he says. "However important climate issues may be, we must have comprehensive tools to solve the situation as opposed to unilateral platitudes."
November 30, 2009 by Robert Tharp at 4:19:03 pm Unlikely new oil industry player: Cuba
Enormous off-shore oil discoveries are positioning Cuba as the oil industry's next big regional player. Indeed, a growing number of non-U.S. energy companies are making big investments in Cuba. The lure is the discovery of a vast oil filed off the Cuban coast, which the U.S. Geological Survey estimates at 4.6 billion barrels or more. "The Cuban government has already awarded production-sharing contracts with foreign corporations representing more than $3 billion in capital investments, and more deals are likely," says Scott Schwind of the Houston office of Thompson & Knight. "Some sources estimate that Cuban deep waters may hold as much as 20 billion barrels of recoverable, high-quality oil. Success in developing these resources will depend on Cuba's ability to manage a number of significant challenges, such as legal and economic restrictions, technological deficiencies, environmental concerns and, perhaps most of all, the current U.S. trade embargo."
As USA Today notes, Cuban drilling could be uncomfortably close to Florida beaches: One day soon an oil rig will maneuver into position in waters less than 100 miles from the coast of Florida. A drill will plunge into the inky sea and begin chewing its way into the ocean floor, hunting for oil.But the drilling rig won't belong to an American company, and any petroleum it discovers won't do a thing to curb the USA's addiction to foreign oil. Instead, any new sub-sea gusher will belong to Cuba.That's right: Cuba. The island nation long has been known for its aromatic cigars and sweet rums. But after years of limited oil production on lands around Havana and in neighboring Matanzas province, Cuba is poised for a significant expansion of its oil program into the waters that separate it from the United States. And thanks to U.S. law, Cuba's drilling partners will be working closer to Florida beaches than any American company ever could.
November 24, 2009 by Robert Tharp at 4:25:35 pm Cowles & Thompson probate litigation attonreys: Challenge of Jackson Estate's Executor Selection May Be Too Late
Joe Jackson's attempt to have the administrators of his son's will removed due to conflicts of interest is just the latest twist to the tangled mess that has followed Michael Jackson's death. But Steve Spitzer, head of the Probate Litigation Section at Cowles & Thompson, says the time to challenge the selection of an administrator is before the court appointment. "Prior to the executor being appointed, the claim that they are ‘unsuitable' can be made successfully for any number of reasons, but afterwards, it is very difficult to remove the executor," he says. Under Texas probate code, for example, proof of gross misconduct is among the only reasons a change would be made. "It comes down to the wishes of the deceased. If they knew of the conflict, there are no grounds for removal."
November 24, 2009 by Robert Tharp at 3:57:25 pm Cell phone makers targeted for stealing patent that reduces dangerous radation emissions
Cell phone companies have been scrambling to reduce the amount of dangerous radiation produced from phones and headsets, but a Texas-based company says many telecom companies left something out: credit for a ground-breaking patent now in wide use.
The Dallas litigation firm of Reyes Bartolomei Browne has filed patent-infringement litigation on behalf of Tyler, Texas-based DownUnder Wireless, LLC, against 21 companies. Defendants in the lawsuit including Samsung, as well as service providers including AT&T, Sprint Nextel, T-Mobile and Verizon. Retailers named in the litigation include Amazon.com, Best Buy, Target, Wal-Mart and others.
According to the lawsuits, DownUnder invented a design that calls for cell phone antennas to be placed in the base of the phone rather than the traditional placement in the earpiece near the user's head. DownUnder's design, which was awarded U.S. Patent No. 6,741,215, also angles the antenna away from the user. Both features work together to reduce the amount of potentially harmful radiation that could be transmitted into an individual's brain.
Researchers have already linked cell phones to a biological effect on the brain. Before the end of the year, the World Health Organization (WHO) is expected to publish the results of a decade-long investigation into links between cell phone radiation and brain cancer. Published reports say the WHO study will show a "significantly increased risk" of some brain tumors related to long-term usage of mobile phones.
Writes Wired magazine: The effect of cellphone radiation on users has become an important issue for scientists, environmental organizations and cellphone industry groups. In the United States, the Federal Communications Commission sets the acceptable radiation standards for cellphones. As part of the device certification process, all handset makers have to offer a certificate from an independent lab that show how the device rates.
Children have much thinner skull bones and their brains have a lot more fluid, so their brain tissues would likely absorb twice more radiation compared to an adult’s brain. But cellphone radiation standards set by the government remains the same for both groups.
November 23, 2009 by Robert Tharp at 4:56:37 pm Who says the defense doesn't have a chance in the Eastern District's Rocket Docket?
People love to bash the Eastern District's "Rocket Docket" as a plaintiff-friendly venue where defendants don't have a chance. The National Law Journal recently called it "ground zero" in the controversy over venue-shopping. Apparently someone forgot to tell the folks at Munck Carter, LLP.
The firm earned a hard-won defense factory late last week after jurors unanimously agreed that Plano, Texas, based Applied Optical Systems Inc. did not infringe on three patents owned by Amphenol Fiber Systems International. The verdict clears the way for AOS to continue manufacturing and distributing its copyrighted line of military specification complaint TFOCA-II style fiber optic connectors and trademarked EZ-MATE connector.
Amphenol, represented by Greenberg Traurig, first sued AOS in November 2006 over the ‘849 patent, seeking monetary and injunctive relief. As part of AOS' defense, Munck Carter sought reexamination of the ‘849 patent in the U.S. Patent and Trademark Office. During reexamination, Amphenol was forced to narrow its claims and pursue damages only for products sold after March 31, 2009, the day the USPTO issued its re-examination certificate.
"We always believed that this case was about an industry leader using its patent portfolio to restrain its competitors," says William Munck, managing partner of Munck Carter. "Our initial defense strategy was to narrow the patent's scope through the reexamination and then show how AOS' connectors did not infringe the narrower patent. The correct verdict was reached."
November 20, 2009 by Robert Tharp at 4:38:32 pm Off-the-clock work may be tempting in this economy, but it carries risk for employers
In a tight economy, it may not be just retailers who view this Christmas as a make-or-break season. Many salespeople, especially those on commissions, are under intense pressure also. As a result, these workers may be more than willing to skip breaks and work late without being compensated for the extra hours. However, employment attorney Carrie Hoffman of Gardere Wynne Sewell LLP cautions that not keeping an eye on the payroll clock could cost everyone. A federal report on judicial business of the United States courts notes that lawsuits under the labor standards act for misclassification, off-the-clock work and other violations jumped to 7,310 cases in 2007(the most recent year for which data is available) compared with 4,207 the previous year, and more than four times the 1,580 filings in 1995. The numbers for 2008 and 2009 will almost certainly reflect an increase. "It's problematic enough if the employees do it on their own, but worse if it is encouraged," she says. "In a down economy, payroll budgets have been slashed, leaving managers in need of more man-hours than the budget allows. Forcing off-the-clock work is not the answer though. What you may save will come back to cost you in the long run."
November 20, 2009 by Robert Tharp at 4:09:24 pm New law bans use of genetic testing info in the workplace
Thompson & Knight attorney Russell Gully says GINA law will have broad impact for insurers and employersWhat the NY Times calls the "most important antidiscrimination law in two decades" quietly takes effect next weekend(Nov. 21). The so-called Genetic Information Nondiscrimination Act forbids health employers from delving into an individual's family medical history in hiring, firing and promotions. It prohibits health insurers from considering such information - such as an individual's family history of heart disease - to deny coverage or set premiums or deductibles.Writes the NY Times: The new law (called GINA) was passed by Congress last year because many Americans feared that if they had a genetic test, their employers or health insurers would discriminate against them, perhaps by firing them or denying coverage. In a nationwide survey, 63 percent of respondents said they would not have genetic testing if employers could see the results."The law is quite broad in its definitions," says Russell Gully in the Dallas office of Thompson & Knight. "When referring to family members the regulations are not just referring to those covered by the plan, but a wide range of individuals who may not even be full-blood relatives. These risk assessments can be used after enrollment, but any financial incentive or penalty to the employer or the individual is prohibited."
November 20, 2009 by Robert Tharp at 2:54:31 pm Horrific workplace violence grabs the headlines, but stats show 10-year drop in incidents
Labor & employment attorney Mark Shank credits improved training, recognition of warning signs with safer wrokplace environment.Despite heavily publicized incidences of workplace violence in recent months, such tragedies are actually on the decline according to federal statistics. Indeed, while stories of workplace violence have certainly grabbed the headlines lately - the Fort Hood tragedy, the San Diego bus mechanic who killed two co-workers or the unemployed man in upstate New York whose 12 shooting victims included a receptionist and a teacher - workplace violence has dropped over the last decade.
Part of the reason is that employers have learned the value of training and implementing safeguards that can prevent such tragedies. "Employers have become increasingly focused on training to recognize and report the potential for violence, while also making investments in electronic security and other safeguards," says Dallas employment attorney Mark Shank of Gruber Hurst Johansen & Hail. While the weak economy has boosted financial anxieties and stress levels, workplace homicides last year were the lowest in 16 years of tracking by the U.S. Labor Department - half the rate seen in the early 1990s - and most did not involve current or former employees. "Reporting concerns about a co-worker typically don't lead to a firing, but rather to counseling and other support programs that companies and insurers have created."
November 19, 2009 by Robert Tharp at 4:24:31 pm As near sourcing's popularity rises, Thompson & Knight outsourcing attorney Jeff Andrews has important advice to consider before signing the contract
Outsourcing is by now an established and attractive tool for businesses trying to increase productivity, but outsourcing and near sourcing guru Jeff Andrews has important advice for businesses to ensure that working agreements remain profitable throughout the lifetime of an outsourcing agreement.
In a column penned for NearShoreAmericas.com, Andrews describes how problems can arise in just about any long-term service agreement. However, a well-defined
contract can address the kind of problems that typically arise in service agreements. Andrews writes: Disagreements over the scope of the services, static pricing that fails to remain competitive, and the service provider’s failure to deliver promised innovation and performance improvements can lead to increased costs that erode the profitability gains achievable through outsourcing. To address these problems, customers should include provisions in their contracts that comprehensively define the scope of the outsourced services, provide for service evolution and continuous improvement, and provide for pricing resets tied to changes in market prices.
Andrews, a partner in the Houston office of the global law firm of Thompson & Knight LLP, notes in Industry Today magazine the rise in so-called near sourcing as a competitive and attractive option for U.S. companies that have traditionally looked to India and China for services. The outsourcing of functions from the United States is shifting again – and a growing number of those jobs are returning to the Western Hemisphere. The emergence of a growing middle class in India, spurred in large part by the growth of the outsourcing industry, has meant that outsourcing providers are now rigorously competing with other service and technological industries for labor. Outsourcing providers in the subcontinent have been compelled to increase wages to attract and retain employees, and these profitability pressures are leading companies, including Indian-based providers, to establish service centers in Central American and South American countries.
November 18, 2009 by Robert Tharp at 11:47:46 am As Arnold & Itkin files pain pump litigation, FDA orders makers of controversial pain pumps to clarify risks for users
Arnold & Itkin attorneys representing 28 who used controversial pain pumps following shoulder surgeryInteresting article in yesterday's Wall Street Journal highlights the FDA's increasing concern regarding so-called "pain pumps" that deliver pain killers directly to joints after surgery. Mounting complaints that these pain pumps are to blame for severe and often irreversible cartilage damage led the FDA last week to order the manufacturers to change warning labels on the devices.
Writes the WSJ: The Food and Drug Administration said from 2006 to 2008 it received 35 reports of severe cartilage damage in patients who were given pain pumps after joint surgery. Nearly all the reports involved patients who had shoulder surgery; more than half needed additional surgery, including joint replacement.Pain pumps are small plastic tubes that deliver and regulate pain medicine constantly, usually for two to three days. The anesthetics in the FDA's alert include bupivacaine, marketed as Sensorcaine or Marcaine, and lidocaine. These anesthetics, the FDA noted, have been used safely in single injections for many years without any reports of cartilage decay. The new notice says the FDA did not clear pain pump infusion devices using the anesthetics for "intra-articular" or joint surgery. The pumps are approved to be used after abdominal and other surgeries, such as hysterectomies. They are considered a better way to deliver pain-relieving medications because they target specific areas and don't involve narcotics. Attorneys at the Houston trial law firm, Arnold & Itkin LLP, have filed five lawsuits on behalf of individuals injured using pain pumps following shoulder surgery. "The dangers of these pumps have been known for years, and even the FDA knew it was a bad idea to use them in shoulder joints," says Arnold & Itkin attorney Mike Pierce, who represents the plaintiffs. "Many of our clients have undergone multiple surgeries, all trying to fix a problem caused by these faulty pumps."Named as defendants are several pain pump manufacturers, including Portage, Mich.-based Stryker Corp. (NYSE: SYK), London-based Orthofix Inc. (Nasdaq: OFIX), Lake Forest, Calif.-based I-Flow Inc. (Nasdaq: IFLO), East Aurora, N.Y.-based Moog Inc. (NYSE: MOG.A), San Jose, Calif.-based Sgarlato R.P. Inc., Vista-Calif.-based Breg Inc., Largo, Fla.-based Linvatec Corp., and Vista-Calif.-based DJO Inc. The lawsuits also name several leading pharmaceutical companies, including London-based AstraZeneca (NYSE:AZN), Abbott Park, Ill.-based Abbott Laboratories (NYSE:ABT), Schaumburg, Ill.-based APP Pharmaceuticals and Lake Forest, Ill.-based Hospira Worldwide (NYSE:HSP).
November 13, 2009 by Robert Tharp at 4:39:06 pm PrePack Bankruptcies Skyrocketing
Corporate Chapter 11 bankruptcy filings are way up in 2009, but recently released data from BankruptcyData.com show that the real story behind 2009 bankruptcies is the emergence of the so-called PrePack.
Consider: Prepacks have tripled compared to YTD 2008 figures. And the rate appears to be increasing, with five of the last 10 public companies that filed for bankruptcy protection choosing to go the prepack route. Think Six Flags, Lear Corp., CIT and Charter Communications, among others. In a prepackaged bankruptcy, companies and their creditors agree on a reorganization plan prior to the bankruptcy filing and creditors have even voted on the plan. In a pre-negotiated bankruptcy creditors are able to agree on some aspects of a plan, but it is not as formal as a "prepack." The multi-year traditional bankruptcy is now often referred to as a "free fall."
"Because of the lengthy time and expense involved in traditional Chapter 11 proceedings, it's not surprising that the number of prepacks are rising," says Rhett Campbell of Thompson & Knight. Mr. Campbell and a legal team from Thompson & Knight recently concluded a prepack bankruptcy plan in just 25 days, one of the fastest on record.
November 11, 2009 by Robert Tharp at 3:39:12 pm Lanier Law Firm's Palo Alto Office Growing With Contingency IP Litigation Workload
To state the incredibly obvious, litigation is expensive. Afterall, the average cost and duration of patent litigation is two years and $3 million, according to Managing Intellectual Property. Need an appeal? That'll be another $2 million. It's especially painful for smaller companies and solo inventors faced with the daunting prospect of trying to protect and enforce their patents, often against household name tech companies with large legal staffs.
The Lanier Firm, a national litigation firm led by Mark Lanier, has created a unique, contingency-fee approach to IP litigation where clients pay no fees up front, and the firm gets paid only if it wins. Patent litigation veteran Christopher Banys heads The Lanier Law Firm's Intellectual Property Practice Group out of the firm's Palo Alto, Calif., offices. "We're extremely confident in the cases we're handling, and we are committed to helping inventors and companies whose intellectual property rights are infringed, and often outright stolen," Mr. Banys says. The firm already is going up against tech heavyweights including Nintendo, Apple, as well as St. Jude Medical, one of the world's leading medical equipment producers.
November 9, 2009 by Robert Tharp at 2:32:08 pm Day Care Attorney Jeff Rasansky: Following choking death at Dallas day care, flow of information slow and unsatisfying
When 2-year-old Isabella Estep collapsed inside the northeast Dallas daycare center she attended in October 2008, precious minutes passed before anyone noticed her unconscious body. Isabella had choked on a small rock and died after an estimated 5 to 10 minutes passed before anyone in the room realized she was in distress. Details have emerged slowly about what happened inside the Woodbridge Day School. Investigators now say that the adult in charge of Isabella's classroom, Mia Jennings, did not have the required first-aid training and did not even have a high school diploma - details that school owners' Robert Hall and Neyse Hall were aware of when they hired her.
Perhaps more distressing, parents of children thinking about sending their young children to the school today have no way of learning about what happened at the day care center. That's because the business was quickly sold after Isabella's death, so records about the incident are not listed on a statewide database that is used by parents when selecting a day care facility. "I'm angry and I'm still a little confused about what happened," Isabella's mother, 25-year-old Marcelina Osorio, told the Dallas Morning News. "It still doesn't make sense to me."
Last week, attorneys from Dallas' Rasansky Law Firm filed a lawsuit on behalf of Isabella's mother, charging that the day care failed to provide the minimum degree of competency and good judgment as required by state law. "The response from this day care center has been pitifully lacking from the beginning of this terrible tragedy," says attorney Jeff Rasansky. "They have not been truthful about their role in this child's death, and they have taken steps to prevent parents of other children from ever learning about their involvement."
November 3, 2009 by Robert Tharp at 3:47:38 pm All that Yaz: Concerns mount over health risks of No. 1 selling contraceptive
Criticism is mounting against Yaz, the world's No. 1 selling birth control. Among other things, the FDA has admonished the makers of Yaz three times in recent years for its misleading ad campaigns. Meanwhile, more than 100 lawsuits have been filed related to medical complications blamed on the drug. Dallas attorney Angel Reyes of Reyes Bartolomei Browne says women taking this medication should consider speaking with their doctors about alternatives.
While most oral contraceptives carry a risk of blood clots, stroke or heart attack, studies show that women taking Yaz suffer such side effects in much greater proportion than do those taking more traditional birth control pills. "Women have the right to know the truth about Yaz," Reyes says. "Bayer marketed these pills to women in a way that the FDA says minimized the risks associated with the drug. Women need to understand those risks and make decisions based on the best information." Yaz is the top-selling oral contraceptive in the U.S., including 2008 worldwide sales of $1.8 billion.
November 3, 2009 by Robert Tharp at 3:01:40 pm First criminal trial underway in probe of YFZ polygamist sect
Despite flawed initial response, Family Law attorney Betsy Branch says criminal courts are proper venue for abuses uncovered at secretive West Texas compound
Texas child-abuse investigators were roundly criticized for the removal of hundreds of children from a West Texas polygamist sect last year. One of those early critics, Family Law attorney Betsy Branch of Dallas-based McCurley Orsinger McCurley Nelson & Downing, says that while the state's initial response went too far, the subsequent misdemeanor and felony charges are a proper outcome of the investigation. Testimony is now underway in the first criminal trial for Yearning For Zion sect member Raymond Jessop for the offense of sexual assault of a child. "The Supreme Court of Texas agreed that the state went too far with the wholesale removal of children from their parents at this compound," Branch says. "But at the same time, the action by Child Protective Services exposed evidence of very serious sexual offenses against some of the sect's teenage girls."
Authorities allege the girl, now 21, was married to Jessop at age 15 and gave birth at 16. Church records that defense attorneys are fighting to keep out of the trial indicate the girl had previously been married to Jessop's brother before being reassigned to Jessop, who authorities allege has nine wives, many of whom were underage when when they married. According to the Assoicated Press, forensic expert Amy Smuts testified Monday that the probability of Jessop being the father of the alleged victim's daughter was 99.999998 percent.
Jessop's trial is the first since Texas authorities raided the YFZ Ranch in April 2008, sweeping 439 children into foster case. The children have all been returned to parents or other relatives, but thousands of pages of documents and DNA tests taken in the raid have been used to build criminal cases against Jessop and 11 other sect men. The FLDS have historically been based around the Arizona-Utah line but purchased a ranch in Eldorado about six years ago, building numerous sprawling log homes and a towering limestone temple. The sect is a breakaway of the Church of Jesus Christ of Latter-day Saints, which renounced polygamy more than a century ago and does not recognize the sect.
November 3, 2009 by Robert Tharp at 11:22:57 am Q: What's harder than winning $1 million in the lottery? A: Collecting from the Texas Lottery Commission
It's hard not to sympathize with 67-year-old Grand Prairie resident Willis Willis. The Vietnam vet was a regular Texas lottery player, known on a first-name basis by the lottery agents/clerks at the Lucky Mart where he bought his numbers...That is, until one of the clerks stole his winning ticket. The Texas Lottery Commission is now taking a curious position: while fully acknowledging that Mr. Willis purchased the winning ticket, commission lawyers say the indicted lottery agent who stole Mr. Willis's ticket and fled the country is the ticket's rightful owner.
Lottery: Grand Prairie man won't get $1 million prize07:27 AM CST on Tuesday, November 3, 2009By AVI SELK / The Dallas Morning News email@example.com As if things weren't confusing enough for a man named Willis Willis. During a meeting on Monday, the Texas Lottery Commission told the 67-year-old Grand Prairie man that he is not the rightful winner of a $1 million prize - even though its own investigators have told police he bought the winning ticket. The real winner, the commission said, is the convenience store clerk who was indicted on charges that he cheated Willis out of his ticket in May. The clerk, 25-year-old Pankaj Joshi, is believed to have fled the country. "I feel like I've been stolen from twice," a crestfallen Willis remarked, according to his lawyers. The clerk "did it once - now the lottery's done it again." But even as Willis' attorneys discussed whether they should sue the lottery commission for the prize, the case took another twist. The Travis County district attorney's office jumped into the fray Monday evening, saying in no uncertain terms that Willis won the lottery. "That's Mr. Willis' money. He was the true winner," said Assistant District Attorney Patty Robertson. And the office promises to put its money where its mouth is - Robertson said $365,000 that has been seized from the store clerk's bank accounts will be turned over to Willis as soon as the paperwork goes through. But that's not enough for Willis, whose lawyers claim the commission owes him the full prize, regardless of what Joshi did. A lottery spokesman wouldn't comment about anything, citing pending litigation. Litigation is not quite pending but distinctly possible, Willis' lawyers said. "We're looking at all the alternatives we have," said attorney Randy Howry. "And a lawsuit is certainly one alternative." The debacle began in May when, according to police and lottery investigators, Willis unsuspectingly walked into the Lucky Food Store in Grand Prairie with a winning Mega Millions ticket. Joshi told Willis that his ticket was a loser and later cashed the prize himself. Joshi has been indicted on a charge of claiming a lottery prize by fraud, but while police search for him, Willis' lawyers are demanding the commission pay their client the full million - less taxes - right away. They say the commission was negligent to unquestioningly allow Joshi, "one of its own agents," to walk off with the prize. That argument didn't fly with the commission. According to Howry, lottery lawyers said they empathized with the out-of-work maintenance man but that Willis had "no recourse" with them. The ticket bearer is the winner, they said. Indicted or otherwise.
October 22, 2009 by Robert Tharp at 11:06:16 am On Seventh Annual Paralegal Day, outgoing Justice Linda Thomas honored for her support of the profession
Entire cottage industries are devoted to helping dissect the common traits of successful attorneys and judges. Here's one not-so-secret trait shared by most who have risen in the legal ranks: a genuine respect for the roles played and the work done by paralegals. Talk about underappreciated - try to think of a great attorney or law firm that doesn't also have a great paralegal or an entire team of them.
Justice Linda Thomas, who retires from the bench October 31 after nearly 15 years as chief justice of the 5th Court of Appeals in Dallas, has long appreciated the paralegal's role in the legal industry. In fact, she began her career as one(then called a "legal assistant"). Linda went on to earn her law degree and have a long and illustrious career on the bench. She shepherded the development of the paralegal profession as Chair of the State Bar of Texas Standing Committee on Paralegals. She also wrote the first Texas appellate opinion on the recovery of fees for work performed by paralegals.
Today marks the Seventh Annual Paralegal Day, and the State Bar's Paralegal Division, the Dallas Area Paralegal Association and the North Texas Paralegal Association honors Linda's commitment to the industry today with an award for her service.
October 16, 2009 by Robert Tharp at 2:39:57 pm With Natural Gas Prices at a 6-Year Low, Production Companies Looking Overseas
The rock-bottom price of natural gas has caused many oil & gas production companies to look elsewhere for better returns. Many of these companies are taking the drilling and extraction innovations developed in the U.S. in hotspots like the Barnett Shale in Tarrant County and northern Louisiana's Haynesville Shale to developing natural gas markets where production is less costly and natural gas brings higher prices.
"We're seeing significant interest from U.S. producers in developing unconventional gas resources in Europe and Asia," says Scott Schwind of the Houston office of Thompson & Knight. "Exploration and production is cranking up in China, India, Poland and France, in many cases using the imaging and extraction technologies developed in Texas and Pennsylvania. Until demand and prices increase, pursuing new domestic reserves may not be a sound fiscal decision. However, overseas investments may be a different story."
Writes the WSJ: The development of the Barnett Shale almost single-handedly reversed the decline in U.S. natural-gas production. Last year, the Barnett produced four billion cubic feet of gas a day, making it the largest field in the U.S. Other companies such as Newfield Exploration Co., Southwestern Energy Co. and Range Resources Corp. found shale fields across the U.S.
October 15, 2009 by Robert Tharp at 4:44:48 pm Popularity of Prepackaged Bankruptcy Grows; Thompson & Knight Assists Oil & Gas Co Through Chapter 11 in 25 Days
When Thompson & Knight helped guide Baseline Oil & Gas through Chapter 11 bankruptcy proceedings in 25 days, it marked one of the top 10 fastest bankruptcies to be completed in the U.S. Such is the value of increasingly popular prepackaged bankruptcies, which allow companies to streamline bankruptcies by negotiating with creditors before formally filing for reorganization. "Through the use of a pre-packaged Chapter 11 plan and a concentrated effort, we were able to receive confirmation of this reorganization plan in less than a month, with the confirmation hearing lasting only 60 minutes, which is truly extraordinary for this type of transaction," says Rhett Campbell of Thompson & Knight, who led Baseline's legal team. A publicly traded company that controls energy-producing properties in Texas and Indiana, Baseline's bankruptcy confirmation hearing was held and the order of confirmation was signed on the same day.
October 14, 2009 by Robert Tharp at 4:45:09 pm With Flu Season Upon Us, Employers Need to Prepare for Pitter Patter of Little Feet Around the Office
Youngsters are proving particularly susceptible to the H1N1 swine flu this year, and that's creating a noticeable increase in the pitter patter of little feet around the workplace. There have been more than 9,000 confirmed cases of the H1N1 flu strain reported in the United States so far this year, according to the latest data from the Centers for Disease Control, while the World Health Organization puts the number of 2009 cases worldwide at nearly 350,000, with at least 4,100 deaths resulting from the virus.
Yet, even as H1N1 spreads globally, many companies are woefully unprepared for the employee absenteeism that could result. Considering the seasonal flu hasn't even struck yet in most parts of the country, labor & employment attorney Audrey Mross, a partner at Munck Carter PC in Dallas, tells the HR Compliance Law Bulletin that it's never too soon for employers to review their policies regarding kids in the workplace. Writes the HR Compliance Law Bulletin:
In the spring, swine flu fears sparked sudden closures at more than 100 schools in at least eight states, sending parents scrambling for last-minute child care. Some parents stayed home, some found alternative care, and some brought their children with them to work. Not everyone agreed with the latter choice. "This morning, one of our workers stated she had to work from home since her son's school was closed due to the swine flu, or she could just bring her son up to the office and work. Ummmm-please stay home," wrote one person on a national parenting Internet forum.Mross tells the HR Compliance Law Bulletin that the key to a workable policy is consistency and communication, rather than an outright ban:"If the environment, including coworkers, are amenable to the occasional child at work, have a policy that explains the limitations which the parent will be responsible for enforcing, such as no roaming, noise, food/drink, off limits areas, and so on," she says. "The important thing is to have and communicate a policy so that everyone in the workplace has the same expectation. A policy puts everyone on fair notice."
Read the full article here.
October 14, 2009 by Robert Tharp at 10:17:00 am Houston's Lanier Law Firm to Expand Across the Pond in 2010
These days, more and more business deals and disputes cross geographic borders. In order to help clients facing those worldwide challenges, The Lanier Law Firm is continuing to expand its international reach. The firm recently launched an International Arbitration and Dispute Practice, and firm founder Mark Lanier also unveiled plans to open up shop in London in 2010.
Led by Mr. Lanier and Dana Taschner, Managing Attorney of the firm's Los Angeles office, the new International Arbitration and Dispute Practice will partner with Dallas attorney and noted forensic psychologist Lisa Blue to handle arbitration matters for corporations around the world. The new practice group also works to help other law firms trying to prevent possible conflicts with their corporate clients.
"Large law firms often want to avoid a particular arbitration matter so they can steer clear of a potential conflict, but they also want to protect their role in a corporate client's other legal matters," says Mr. Lanier. "Under these circumstances, our team is able to step in and handle arbitration proceedings in order to eliminate the conflict risk for law firms and their clients."
The Lanier Law Firm attorneys have represented clients in business and financial disputes around the globe, and serve as arbitrators on some of the world's leading international panels. Mr. Taschner currently serves on the Panel of Arbitrators at the World Intellectual Property Organization, and also belongs to the Association for International Arbitration and the London Court of International Arbitration.
The new practice group already has garnered its share of media attention, including an article posted on the popular legal Web site Law.com, as well as articles on the Web sites for the Houston Business Journal and Global Arbitration Review (subscription required).
October 13, 2009 by Robert Tharp at 11:38:12 am File this one under: Looming new federal regulations that quietly threaten thousands of U.S. businesses
On January 1, a new Environmental Protection Agency regulation quietly goes in effect that will require businesses of all types to monitor greenhouse emissions. According to the Chicago Tribune's The Swamp blog: The proposed regulation would apply to large-scale industrial sources of the heat-trapping gases which scientists blame for climate change but not to smaller sources, such as new schools, as some critics of EPA action had feared. It will force new - or substantially modified - industrial emitters to "demonstrate the use of best available control technologies and energy efficiency measures" to minimize greenhouse gas emissions, according to the EPA.
The greenhouse gas regulatory system has a number of implications, particularly for publicly traded companies, says climate-change attorney Scott Deatherage, leader of Thompson & Knight's Climate Change and Renewable Energy Practice Group. "The costs, financial disclosures and public relations aspects of this and other pending climate change legislation should be a strategic issue for corporate directors and managers." Although some industries had sought to delay the new requirements, facilities now have less than four months to prepare. "It may be a challenge for some businesses to make the significant investments in monitoring equipment and processes to meet that deadline."
October 13, 2009 by Robert Tharp at 10:55:31 am Doctors, Hospitals Embracing Electronic Medical Records, But Legal Concerns Follow Financial Incentives to Make the Change
While health care reform remains firmly in the sausage-making political process, one component of the plan is rapidly gaining momentum. The movement toward digitizing medical records is well underway as physicians and hospitals make substantial investments to revolutionize the way patient records are maintained. According to a recent Daily Finance report: experts call the lack of communication and coordination among doctors, specialists, and hospital systems one of the biggest problems in our health system.
Between 2004 and 2006, as many as 238,337 deaths in the U.S. were potentially preventable, according to healthcare rating company HealthGrades. Some could have been avoided with electronic health records, which could more easily flag patients with other underlying conditions or who could experience dangerous drug interactions. There have been similar incentive programs to move physicians into the paperless age. In June 2008, Medicare announced a $150 million grant to help 1,200 small physician practices in 12 cities switch to electronic records.
In addition to tapping governmental assistance, many independent physicians are seeking financial help from hospitals to make the costly transition. Healthcare industry attorney Mary Jean Geroulo of Stewart Stimmel LLP in Dallas warns that hospitals must be careful in navigating the federal rules governing the delicate relationships between hospitals and non-employee doctors. "There isn't a one-size-fits-all model for making the transition," she says. "The regulations significantly limit what a hospital can provide as an incentive to a non-employee physician, and the consequences of not complying can be substantial."
October 8, 2009 by Robert Tharp at 11:33:10 am Climate Change: The New Mass Tort for the 21st Century?
It's hard to underestimate the potential business ramifications of the recent Second Circuit ruling in Connecticut v. American Electric Power Co. Over at Gardere's Environmental Practice Group, Richard O. Faulk calls the ruling "overly broad" and says it could have an extraordinary impact on any business that emits greenhouse gases like carbon dioxide far beyond the group of utilites named as defendants in the case.
While U.S. lawmakers are still trying to decide whether to regulate greenhouse emissions, the Second Circuit ruling allows a public nuisance lawsuit to move forward against a group of utilities with power plants in 20 states. Faulk says it's not a stretch to conclude that any business that produces greenhouse gasses could face similar legal exposure. "The decision entails major risks for all industries," he says. "Any industry that generates greenhouse gas emissions is implicated, and that category includes virtually all businesses."
Faulk says the ruling presents businesses with a "Hobson's choice" scenario in which it may become more advantageous to accept comprehensive federal regulations and statues addressing greenhouse gas emissions rather than risk exposure to such private legal actions. "If, however, the regulations and legislation are not sufficiently comprehensive, industries may still face lawsuits to the extent that claims are not completely preempted."
As the folks at the Environmental Law Prof Blog note: The case may go to the US Supreme Court and there is a chance that it could be reversed there. Or it may not. Also, the US Congress could (and almost certainly will) eliminate all such public nuisance lawsuits when it passes a comprehensive climate change law. The industry will now be lobbying heavily, saying something like this to the Congress: “Please regulate us (weakly, of course) so that the courts will stop doing so.”
This is a classic situation where environmentalists win a big environmental case based on an old, old legal concept and this gives them bargaining power in the legislative process. This happened with cases against factories polluting the water without permits in the 1960s, a case against the Trans-Alaska oil pipeline in the early 1970s; a case against clearcutting in the National Forests in the mid 1970s. In each of those three cases, the law that was involved was a statute that was around 100 years old. The public nuisance cases cited by the Second Circuit are more than 100 years old today. Now the bargaining will begin.
The ruling's impact will be among the issues discussed at the Oct. 28 U.S. Chamber of Commerce Legal Reform Summit in Washington, D.C., where Faulk will serve as a "Climate Change: The New Mass Tort For the 21st Century?" panelist.
October 7, 2009 by Robert Tharp at 4:31:02 pm After Beating Microsoft in IP Litigation, Eolas Files Suit Against More Tech Household Names
Small east Texas based internet technology innovator Eolas Technologies Inc. turned a lot of heads yesterday after filing patent infringement litigation against nearly two dozen of the biggest and best known companies that do business on the Internet.
Household names like Adobe, Amazon, eBay, Sun Microsystems and YouTube no doubt get sued all the time, but the Eolas litigation carries extra heft because the legal argument has already resulted in a $565 million federal judgment against Microsoft in 2004. That whopper has already withstood two separate reexaminations at the United States Patent and Trademark Office.
Reports PCMag: Eolas sued Microsoft in 1999, and won a $521 million settlement in August 2003. Microsoft appealed the following year, but the case was remanded. In 2005, the Supreme Court refused to hear Microsoft's appeal, so Microsoft tried to go through the Patent & Trademark Office. When that also failed, Microsoft and Eolas announced in 2007 that they had agreed upon a settlement, the terms of which were not released. The companies sued Tuesday are in violation of Eolas patents, the companies said, because they have "web pages and content [that is] interactively presented in browsers" and they use, offer, or sell "software that allows content to be interactively presented in and/or served to browsers." In Adobe's case, Eolas cited its adobe.com and tv.adobe.com Web sites, as well as Flash and Shockwave. When it comes to Apple, its Apple.com, QuickTime, and Safari products are in violation, Eolas claims, while Google is violating the patents with its Chrome browser. "We developed these technologies over 15 years ago and demonstrated them widely, years before the marketplace had heard of interactive applications embedded in Web pages tapping into powerful remote resources. Profiting from someone else's innovation without payment is fundamentally unfair. All we want is what's fair," Dr. Michael D. Doyle, chairman of Eolas, said in a statement.
Mike McKool, head of the national law firm McKool Smith and lead counsel for Eolas, says he hopes the lawsuit will put an end to the widespread unauthorized use of the company's technology patents. "What distinguishes this case from most patent suits is that so many established companies named as defendants are infringing a patent that has been ruled valid by the Patent Office on three occasions," says Mr. McKool.
October 6, 2009 by Robert Tharp at 11:48:19 am RE: Adidas' `We Not Me" advertising campaign, Attorney Stephen Drinnon says `Don't Tread on Me'
It's enlightening to look at Adidas aggressive efforts to protect its trademarked three-stripes logo from 70-year-old Brand Bobosky's standpoint. Adidas has been understandably aggressive in protecting its trademarked three-stripes logo. Just last year, the athletic apparel and sporting good manufacturer won an epic $305 million verdict against Payless Shoestores for selling shoes that looked a little too much like Adidas. The verdict included $137 million in punitive damages against Payless.
And that's what makes the company's multimillion dollas "We Not Me" advertising campaign such a head-scratcher, says Dallas attorney Stephen Drinnon of The Drinnon Law Firm. According to a lawsuit the firm filed on Bobosky's behalf, Bobosky had secured federal trademark and copyright protection over "We Not Me," years before Adidas roled out the commercials in 2007 featuring NBA MVP Kevin Garnett. He also incorporated We Not Me, Ltd., through the state of Illinois and created the Web site, http://wenotme.us , in 2004.
The Adidas advertising campaign included exposure during the World Series and the NBA playoffs. Drinnon says that Bobosky's complaints to Adidas had the opposite effect, and the media campaign expanded after Mr. Bobosky notified Adidas of his property rights to "We Not Me." Even today, NBA-sanctioned clothing featuring Mr. Bobosky's protected words can still be purchased. Adidas is an official clothing provider of the NBA.
"Companies like Adidas go to great lengths to protect their own ingenuity and intellectual property, yet they've chosen to trample on Mr. Bobosky's protected property rights," Drinnon says. "Adidas is a powerful second-comer that has taken everything he tried to build. Mr. Bobosky's words are now wrongly perceived as something that Adidas owns."
As Bobosky explained to the Chicago Daily Herald: "Basically it's Christ's message reduced in the simplest terms, do unto others," he said. "I think it's just a good reminder to people about how to conduct their lives and it works."
"They've basically destroyed any chance I have of marketing it and licensing it to a company or to a church or someone that believes in that message and would like to promote it and take it to another level," he said.
The lawsuit, filed in the U.S. District Court for the Eastern District of Texas, also names as defendants Adidas America, NBA Properties Inc., NBA Services Inc., the Boston Celtics, and Kevin Garnett.
October 1, 2009 by Robert Tharp at 11:38:37 am McKool Smith expands in New York and Houston, adds nationally respected bankruptcy attorneys
Seems like ancient history now but way back in March 2008, the Wall Street Journal described bankruptcy as the "hottest growth sector" for law firms. That remains true today. Said the WSJ at the time: A survey of more than 300 attorneys from the country's largest law firms found that a plurality -- one out of every four -- expects bankruptcy law to be the fastest area of growth in the next 12 months. That number exceeds the tally of attorneys who think litigation or corporate governance will be hot growth areas.
When the dust settles on the worldwide economic crisis, national litigation firm McKool Smith will have almost certainly emerged as one of the firms that seized opportunities during difficult times and managed to strengthen its position and grow in stature along the way. In addition to a regular stream of head-turning jury verdicts and the opening of now-bustling offices in Washington, D.C., and New York City, the firm has now added a national bankruptcy practice and hired some of the country's most respected bankruptcy veterans.
Noted bankruptcy attorney Hugh M. Ray leads McKool Smith's bankruptcy practice and will devide his time between the firm's New York and Houston offices. Joining him are bankruptcy veterans Peter S. Goodman and Paul D. Moak, who will work out of the New York and Houston offices, respectively. All three attorneys previously practiced with Andrews Kurth, where Mr. Ray led the firm's national bankruptcy practice. Also joining the group as a principal is Hugh M. Ray, III, a bankruptcy attorney previously with Weycer, Kaplan, Pulaski & Zuber in Houston. The firm expects to add several more bankruptcy attorneys by the end of 2009.
In a career spanning four decades, Mr. Ray has played key roles in some of the coutnry's most recognizable bankruptcy proceedings, including matters involving Lyondell Petrochemical, First Republic Bank Corp., Continental Airlines, Semcrude, L.P., First City Bancorporation, Power Company of America L.L.C., L. Tersigni Consulting, and many others. In addition to making several appearances before Congress to testify on proposed amendments to the Federal Bankruptcy Code, Mr. Ray also has served in leadership positions with many notable bankruptcy and business groups, including serving as Chairman of the Business Bankruptcy Committee for the American Bar Association’s (ABA) Business Law Section, Chairman of the ABA Energy Business Committee, and member of the ABA Standing Committee on Judicial Selection, Tenure and Compensation. Prior to his work in private practice, Mr. Ray worked as an Assistant United States Attorney in Houston.
"Hugh Ray is one of the top bankruptcy lawyers in the nation, and we are proud to have him lead our firm into this growing area of the law," says Mike McKool, co-founder of McKool Smith. "Hugh and the rest of his team are known nationwide for their work in some of the country's most significant bankruptcy matters. When we realized we had the opportunity to bring in Hugh and his group, this was an easy decision."
Mr. Ray says the move to McKool Smith is based on several factors. "It's no secret that McKool Smith has some of the finest courtroom lawyers anywhere, which is one of the main reasons we decided to join the firm," says Mr. Ray. "I'm also very excited about helping the firm build a world-class bankruptcy practice."
Mr. Goodman has represented clients in complex bankruptcies for more than 20 years, including Adelphia Communications Corp., KCS Energy Inc., Bank of New England Corp., Semcrude, L.P., First City Bancorporation, Power Company of America L.L.C., L. Tersigni Consulting and PSINet Consulting Solutions Holdings, Inc., and many others. He has been recognized as one of the state's top bankruptcy lawyers in New York Super Lawyers magazine.
Mr. Moak has been involved in a wide range of complex Chapter 11 cases. In his practice, he has represented debtors, secured lenders, creditor committees and equity committees in bankruptcy reorganization proceedings, as well as bankruptcy-related litigation matters. He possesses particular expertise in the energy, health care, chemicals, and aviation industries.
Mr. Ray III represents publicly traded companies who successfully reorganize in bankruptcy and major creditors in their collection from complex bankruptcies. He often acts as a trial attorney in adversary proceedings before the bankruptcy court.
September 29, 2009 by Robert Tharp at 3:29:58 pm National Law Journal Report: Bad faith insurance creates ill wind for coastal property owners
There's no doubt that Hurricane Ike made a terrible mess of things along the Texas Gulf Coast more than a year ago, but the National Law Journal revisits the scene and notes that bad-faith insurors and a new rule issued by the Texas Department of Insurance have created a world of problems for property owners trying to rebuild. Since Ike, the Texas Department of Insurance requires property owners along the coast to prove they have flood insurance before they can buy or renew state-backed windstorm policies.
That's proving to be salt in the wounds for thousands of storm victims still wrestling over claims with insurers operating in bad faith. The rule change means that storm victims will have to pay more for insurance going forward, and they won't be able to obtain wind policies without first securing flood coverage. Attorneys like Phillip Sanov, who heads the bad-faith insurance practice group at Houston's Lanier Law Firm, report that many insurance companies continue to lowball property owners on claims. "We're hopeful that just like in most places, once a lawyer gets involved, the carrier will start doing closer to the right thing by their policy holder," Sanov says.Meanwhile, bad faith insurance attorney Kurt Arnold, a partner in Houston's Arnold & Itkin, tells the NLJ that hundreds of lawsuits remain pending against insurance carriers that have denied or underpaid claims for Hurricane Ike victims. Arnold has more than 150 such lawsuits himself - another colleague has more than 1,000. "They're sending adjusters out who just don't know what they're doing. I have some claims that had $150,000 in damages, and [the adjuster] wrote up $2,000," he says, adding that the adjusters are often way off. "Some of the houses that are nearly totaled might get written up for $2,000."
September 24, 2009 by Robert Tharp at 4:37:57 pm Wherein bustling climate change attorney Scott Deatherage tells the NYT, `Climate change work is getting hot around here'
Since it's not news until The New York Times weighs in, we bring you this story about the growth of climate change practices.Law Firms Prep Clients for Climate Policy Implications
Stalled congressional action on greenhouse gas legislation has not stopped prominent law firms from taking the lead in helping companies navigate the legal, public policy and business implications related to climate change."Climate change and renewable energy developments are the next big thing in environmental and energy law," said Michael Gerrard, director of Columbia Law School's new Center for Climate Change Law and senior counsel to Arnold & Porter. "Every law firm that has a practice in either of those areas is trying to position itself so that when the major work arrives, they will be able to grab a good chunk of it."Businesses face state and regional and -- in some cases -- international emissions restrictions. They seek legal advice on everything from verifying energy credits to addressing Securities and Exchange Commission disclosure requirements, according to Robert McKinstry, the partner in charge of the Climate Change and Sustainability Initiative at Ballard Spahr Andrews & Ingersoll.READ THE ENTIRE ARTICLE HERE"We have a cross-sectional group that works on climate change and carbon changing -- it's a clean-tech group," said Scott Deatherage, a partner and leader of the Climate Change and Renewable Energy Practice Group at Thompson & Knight."There are security issues with respect to disclosure," Deatherage said. "When it comes to incentives, there are a lot of tax issues also. I do work for renewable energy companies and companies developing carbon credit projects both domestically and internationally."The fast-growing practice area has drawn upon attorneys from existing corporate, energy, tax and, of course, environmental groups.For example, the Climate Change and Sustainability Initiative at Ballard integrates the environmental, energy and project finance, real estate and litigation practices.Deatherage said his firm has also tried to steer clients toward the incentives to be gained from a corporate climate change strategy."I do work for renewable energy companies and companies developing carbon credit projects both domestically and internationally," he said. "I was contacted to have a client participate in the Carbon Disclosure Project. The company was facing shareholder petitions, and that was the resolution they reached with shareholders -- voluntary greenhouse gas reporting."Deatherage runs a blog called "The New Carbon Cycle," which offers news and analysis about "the rapidly evolving law and policy surrounding climate change, carbon trading and markets."
September 23, 2009 by Robert Tharp at 2:14:20 pm With immigration crackdown focusing on employers, Yarbrough Strategic Advisors beefs up its expertise
As U.S. Immigration and Customs Enforcement shifts to cracking down on employers rather than individual illegal immigrants, U.S. businesses are increasingly in need of expert guidance for navigating the complicated legal and policy landscape. Dallas-based Yarbrough Strategic Advisors has broadened its growing investigations group with the addition of longtime federal immigration investigator A.J. Irwin.
In his capacity as the firm's Director of Investigations, Irwin advises client companies on best practices for complying with federal immigration laws and policies, as well strategies for avoiding audits and fines related to employment matters.
Before stepping down as a federal investigator, Irwin managed the Joint Terrorism Task Force and anti-smuggling operations for an 18-state region from Canada to Mexico. He also led an investigation that resulted in the largest human-smuggling case ever prosecuted by the U.S. Attorney General. Another investigation led to the largest criminal fine imposed for immigration law violations against an employer.
Following the Sept. 11 terrorist attacks, Irwin played a key role in implementing policy changes and department reorganizations. At Yarbrough Strategic Advisors, the consulting arm of the Yarbrough Law Group, Irwin supervises investigations involving intellectual property, financial fraud and corporate compliance, among other things.
These can be troubling times indeed for employers trying to keep up with rapidly changing laws and policies. Earlier this month, the Department of Homeland Security began enforcing an E-verify program that requires federal contractors to electronically verify the immigration status of workers. The program is designed to identify workers who are in the U.S. illegally and using fake identities in order to work. "A.J.'s unmatched base of knowledge of investigations and practices within the Department of Justice provides a huge benefit to our clients," says attorney Matt Yarbrough, founder of Yarbrough Strategic Advisors. "With A.J. and others on our team, we are able to offer invaluable expertise to employers who want to stay on top of the important changes in immigration law."
September 23, 2009 by Robert Tharp at 11:57:18 am Proposed law would level playing field for consumers, outlaw forced predispute arbitration
Consider this factoid about the legal relationship that Americans increasingly have with product manufacturers, service providers, credit card companies and employers: if you use credit cards or cell phones, have purchased a house from a builder or placed a loved one in a nursing home, chances are you've signed away your constitutional right to a jury trial if there's a problem.
From routine credit card contracts to multi-million-dollar home purchases, the increasingly popular and controversial use of mandatory predispute arbitration clauses puts consumers at a distinct legal disadvantage when problems arise, says Dallas attorney Mark McQuality of Shackelford Melton & McKinley. It's a lopsided system in which consumers lose 94 percent of the time, according to a recent California study. Decisions by arbitrators -- lawyers or professionals who oversee and rule on cases -- are final and cannot be appealed.
U.S. lawmakers are now debating the Arbitration Fairness Act, which would ban such predispute arbitration clauses in consumer, franchise and employment matters. McQuality, who represents homeowners in construction-related complaints and other business torts, says it's about time. "These hidden clauses cause consumers to sign away their constitutional right to a jury trial," he says. "There's a place for arbitration, but it should be a voluntary option once a dispute has surfaced, as opposed to something that's buried in paperwork."
September 22, 2009 by Robert Tharp at 3:38:26 pm For companies considering Ch. 11 bankruptcy, `prepacks' can streamline the process
As insolvent businesses struggle to restructure their finances, an alternative to traditional Chapter 11 reorganization plans is growing in popularity. Prepackaged bankruptcies, or "prepacks," offer companies a way to negotiate and gain approval of key constituencies before formally filing for reorganization. Such prepacs typically offer a new capital structure involving an exchange of debt for equity that is hammered out between the company and its main creditors before it is signed off by the court."It's likely there will be a significant increase in the number of prepacks in 2009 compared to last year," says Ira Herman of Thompson & Knight's New York office. "The financial crisis coupled with changes in the Bankruptcy Code make prepacks a cost-effective way to resolve balance sheet issues. However, if there is an unwillingness among a secured class of bondholders to negotiate a resolution, or if a large class of unsecured creditors cannot be dealt with consensually, then a prepack is unlikely to work."
September 22, 2009 by Robert Tharp at 3:21:21 pm Garage Salers Not Exempt From CPSC
I can't help imagining the jailhouse conversation:....I robbed a bank, what are you in for? ... I sold defective shoes at a garage sale.
That great American staple of the free enterprise system - the garage sale - has gotten a lot more complicated. Used to be, holding a garage sale was as simple as posting a few well-placed signs, dragging your junk out on the driveway and watching the cash come in. But a federal law now makes it a crime to sell items that the Consumer Product Safety Commission has recalled. While CPSC officials have educated the larger thrift stores about the new law, individuals are also on the hook if they sell a defective car seat, children's shoes or even a garlic press/slicer. "If you're selling a crib or a car seat, the responsibility is yours to make sure the CPSC has not recalled it and that it doesn't present a danger," says Dallas attorney Angel Reyes, managing partner of Managing Partner of Reyes Bartolomei Browne. "And remember, it's not just baby items. The government recalls products adults use too."
This is all particularly relevant because individual reselling has increased during the economic downturn. Reports the Wall Street Journal: Amid the recession, more sellers are trying to wring some cash out of their old possessions. Listings on Craigslist for garage sales have increased 60% in the past year, and another resale site, Tagsellit.com, has seen a rising trend, with 3,000 listings for tag sales in the month of June. Large-scale yard sales have actually declined as fewer people have moved in the weak housing market. But those who monitor the resale industry say that more sellers are trying to get cash for smaller-ticket items.
The sheer variety of products being recalled in a given year can make it hard to guess what products might be unsafe. The ten biggest recalls of 2008 included toys, cribs, electric blowers, cosmetic accessory bags and window blinds. But buyers and sellers who want to check for recalls can search on cpsc.gov, which offers searches by product type, company name, or hazard, among other categories, or on recalls.gov, a site that lists recalls by the Consumer Product Safety Commission and five other federal agencies. They can also sign up with the safety commission to receive recall alerts by email.
The sheer variety of products being recalled in a given year can make it hard to guess what products might be unsafe. The ten biggest recalls of 2008 included toys, cribs, electric blowers, cosmetic accessory bags and window blinds. But buyers and sellers who want to check for recalls can search on cpsc.gov, which offers searches by product type, company name, or hazard, among other categories, or on recalls.gov, a site that lists recalls by the Consumer Product Safety Commission and five other federal agencies. They can also sign up with the safety commission to receive recall alerts by email.
September 18, 2009 by Robert Tharp at 11:16:41 am Texas-style tort reform a model for health care overhaul?
Plenty has been said about the role that nationwide tort reform could or should play in health care reform debate. The discussion has prompted many to take a look at the Texas experience, where wide-ranging tort reform was implemented in 2003. Among other things, state law in Texas limits noneconomic damages like pain and suffering to $250,000.
Proponents of the reforms point to the influx of medical doctors who have relocated to Texas since 2003 and a decline in medical liability insurance rates and liability lawsuit filings. Critics note that health care costs continue to escalate and that tort reform has made it difficult if not impossible for many legitimate lawsuits to proceed, while the noneconomic caps are onerous to the poor, the young and the elderly because they have little to show for lost earning ability necessary to calculate economic damages. With health care reform front-and-center, we asked some of the state's top attorneys about the Texas tort reform model and how it might affect health care reform if emulated nationwide. Not surprisingly, we got three distinct and different perspectives.
Big Verdicts Still Possible Under Tort Reform, MedMal CapsEven in a state such as Texas with caps on punitive damages in medical malpractice cases, large verdicts can still occur. "Once tort reform passed, we saw an immediate drop in lawsuits, but the number of filings began to rise as both plaintiff and defense attorneys learned the new rules and courts began interpreting the practical limits of the new rules," says Linda Stimmel of Stewart Stimmel LLP, a Dallas-based firm focused on health care law. "It is not a perfect system, but it has been very beneficial in reducing the number of frivolous lawsuits, allowing reasonable settlements because of the defined limits and allowing physicians to practice medicine without going broke trying to pay their insurance premiums."
Lawsuit Caps No Prescription for Healthcare TroublesOne look at the six years of tort reform in Texas should convince President Obama that the idea of national medical malpractice reform is a bad one, says nationally recognized trial attorney Mark Lanier of The Lanier Law Firm. "Doctors and insurance companies claimed tort reform was the cure for our state's healthcare problems, but six years of rising healthcare costs are all we have to show for it," says Lanier, who also disagrees with the President's hypothetical of keeping medical malpractice cases out of courtrooms by assigning them to special review panels. "Our founding fathers got it right by trusting juries to settle disputes rather than politicians or hired committees," he says.
Healthcare Tort Law Best Left to StatesTort reform in Texas provides some valuable lessons for any federal healthcare reform package. "If there were to be federal legislation in an area, I think some aspects of the Texas medical malpractice laws are good," says defense attorney John Martin of Dallas' Thompson & Knight and incoming president of the Lawyers for Civil Justice. "I think the informed consent and expert reports parts are good, although the expert reports concept could be written much better than the one we have in Texas so that less litigation is required. However, my personal belief is that tort law should be handled at the state level, not the federal level."
September 17, 2009 by Robert Tharp at 2:47:45 pm Forman Perry and the Art of the Defense
The attorneys at Jackson, Miss.-based Forman Perry Watkins Krutz & Tardy LLP know all about defending toxic exposre cases in venues traditionally viewed as friendly to plaintiffs. Earlier this year, their defense victory in a jurisdiction described as a "judicial hell holl" drew national media attention. Last week, the firm walked away with another take-nothing defense verdict in a Mississippi asbestos exposure case.
Plaintiff Bob K. Martin, a former oilfield worker, claimed that his health problems were caused by exposure to asbestos between 1965 and 1986 while working in oilfields in the southeastern United States. Following a two week trial, jurors returned a defense victory for Union Carbide Corporation, ConocoPhillips Company and Montello, Inc. Forman Perry is a real pioneer in multidistrict litigation covering silica and asbestos products, and their work has led to the dismissals of tens of thousands of claims.
"We are very pleased about the juror's careful consideration of the facts in this case," says Marcy B. Croft, lead counsel from the Forman Perry defense team representing Union Carbide, who worked in conjunction with National Trial Counsel Kevin M. Jordan of Baker Botts, LLP, and Michael G. Terry of Hartline, Dacus, Barger, Dryer & Kern, LLP. "We maintained from day one that our client acted responsibly, and this verdict is proof."
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