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Androvett Blog

by Robert Tharp at 11:06:16 am

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.

 

by Robert Tharp at 2:39:57 pm

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.

by Robert Tharp at 4:44:48 pm

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.

by Robert Tharp at 4:45:09 pm

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.

by Robert Tharp at 10:17:00 am

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).

 

by Robert Tharp at 11:38:12 am

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."

 

by Robert Tharp at 10:55:31 am

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."

by Robert Tharp at 11:33:10 am

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.

by Robert Tharp at 4:31:02 pm

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.

As Dow Jones reports: The latest lawsuit, filed in the U.S. District Court for the Eastern District of Texas, seeks preliminary and permanent injunctions to keep defendants, which cut across industries to include Citigroup Inc. (C), Blockbuster Inc. (BBI) and J.C. Penny Co. Inc. (JCP), from using technology covered by two Eolas patents. The lawsuit also seeks undisclosed damages. The patent that was the subject of the litigation against Microsoft enables Web browsers to act as platforms for fully interactive embedded applications. Eolas said in a statement that the patent was granted in November 1998 and twice reaffirmed by the patent office, most recently in February. The technology at issue was developed by Eolas Chairman Michael Doyle, while he was at the University of California at San Francisco in the 1990s. The University still owns the patent, but Eolas said it is the exclusive licensee. Eolas said a second patent, issued this month, allows Web sites to add fully interactive embedded applications to their online offerings through the use of plug-in and AJAX (asynchronous JavaScript and XML) Web development techniques.

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.

by Robert Tharp at 11:48:19 am

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.

by Robert Tharp at 11:38:37 am

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.