November 30, 2009 by Robert Tharp at 4:19:03 pm
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
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 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
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
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
Thompson & Knight attorney Russell Gully says GINA law will have broad impact for insurers and employers
What 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
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
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
Arnold & Itkin attorneys representing 28 who used controversial pain pumps following shoulder surgery
Interesting 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
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
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
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
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
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
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 prize
07:27 AM CST on Tuesday, November 3, 2009
By AVI SELK / The Dallas Morning News
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.
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