Some defense attorneys no doubt shudder at the idea of walking into a Port Gibson, Miss., courtroom representing a client accused of exposing a plaintiff to silica. Afterall, the American Tort Reform Association has twice included the 22nd Circuit as among the nation's "judicial hell holes" based on its perceived plaintiff-friendly record.

Attorneys for the Jackson, Miss.-based civil trial law firm of Forman Perry Watkins Krutz & Tardy LLP made a significant ripple last week with what courthouse insiders described as the first take-nothing defense victory in such a case in memory. The lawsuit involved a 73-year-old man who asked jurors for $4.5 million in damages, charging that his lung disease was caused by products made by three companies between 1964 and 1995.

One key to the case's outcome: attorneys made brilliant use of a database developed by the firm that tracks area residents who have filed similar silica-exposure claims. Writes The AmLaw Litigation Daily:

What was the secret to the victory? It might have had something to do with a database of mass tort plaintiffs maintained by Kurtz's firm. During jury selection, Judge Lamar Pickard allowed Kurtz access to the last four digits of potential jurors' social security numbers to see if they or their family members had filed claims similar to Westrope's. The database identified four members of the jury pool (none of whom had mentioned their claims on a jury questionnaire). Kurtz was able to argue against putting them on the jury. "If we didn't have the database . . . we would have had four in the jury pool who could have been on the jury in this case," Kurtz told the Clarion Ledger.

The Forman Perry defense team representing Clemco and Precision was led by name partner Fred Krutz, along with partner Edwin S. "Win" Gault Jr., and associate Jennifer Jones Skipper. Lone Star was represented by David Barfield and Kimberly Mangum of Madison, Miss.-based Barfield & Associates. The firm represented represented Washington, Mo.-based Clemco Industries Corp. the world's largest manufacturer of air-powered blast cleaning equipment, and Little Rock, Ark.-based Precision Packaging, a packaging services company.

Few presidential duties generate the kind of passionate interest as the task of filling a vacancy on the United States Supreme Court. Such scrutiny is not surprising,

says attorney Jeffrey Levinger, co-founder of Dallas-based appellate firm Hankinson Levinger LLP, considering the kind of influence that justices wield and that they typically serve far beyond the nominating president's term. In the case of President Barack Obama's nomination today of Sonia Sotomayor, the scrutiny has been kicked up a notch for a number of reasons. For one, the opportunity arose so soon in Obama's tenure, at a time when analysts are still actively rating the new president's job performance. Add to that the president's background as a law school professor and his choice of words leading up to the nomination - the president spoke of seeking out a nominee with "empathy," which many viewed as an indication that his search would extend beyond the traditional short list of legal minds.

"These nominations are always very high-profile, mainly because the tenure of a justice lasts so much longer than the term of the president," Levinger says. "Being President Obama's first, it's watched even more carefully."

Levinger notes that Sotomayor's nomination is shrewd in that she has a proven track record, an inspiring personal background and has already been nominated by President George H.W. Bush and President Bill Clinton for lower court positions. "Judge Sotomayor's nomination is a relatively safe thing to do because she has a proven track record," Levinger says. "I believe if this nomination is successful, then the next one may be a little more non-traditional...I'm pretty confident that she's going to be confirmed. She's already run the gauntlet twice."  To speak with Jeffrey Levinger, please contact Robert Tharp at 800-559-4534 or Robert@androvett.com.

It's been a tough stretch lately for Microsoft in patent litigation. Most recently, an east Texas jury ruled yesterday that Microsoft had willfully infringed on a patent used for important features of Microsoft Word 2003 and 2007, in the process awarding $200 million to Canadian software maker i4i. As The Wall Street Journal's tech industry blogger John Paczkowski and others point out, the verdict is the second-largest to date in 2009, and Microsoft also is on the hook for the year's top IP infringement verdict - a $388 million award to Uniloc relating to security technology.

Meanwhile, McKool Smith the Dallas-based firm that represented i4i and secured yesterday's stunning victory continues its head-turning winning streak. Just last month, the firm was part of a legal team that obtained a $19 million patent infringement verdict against Apple Inc. relating to rights to technology owned by Palo Alto, Calif.-based Opti Inc. for technology found in Apple hard drives and iPods. A few weeks before that, attorneys in the firm's New York office obtained an important partial summary judgment and injunction against New York-based Liz Claiborne Inc. and its subsidiary, Los Angeles-based Lucky Brand Dungarees Inc. In the ruling(available here), the court found infringement against the Lucky Brand entities over their sale of garments bearing the unauthorized "Get Lucky" mark. The firm already enjoys the distinction of having more National Law Journal Top 100 verdicts for 2008 than any other firm in the country.

 

The latest sign of increasing instability in Venezuela occurred earlier this month when President Hugo Chavez ordered soldiers to seize dozens of assets from foreign oil contractors. These expropriations come as Chavez grapples with mounting debt and declining oil revenue(which accounts for more than 90 percent of the country's export revenue).
Andrew Derman, leader of the international energy practice group at Dallas' Thompson & Knight, says that while Chavez has the right expropriate such property, there is also an obligation on his government's part to pay fair market value for the seized equipment and assets.  "These most recent seizures will result in arbitrations that Venezuela will lose," Derman says. "This move underscores Chavez's desperation in trying to sustain oil production and revenue as the nation slides into a recession." Chances are slim that Venezuala will prevail in international courts, Derman says, adding: "As a consequence, Venezuela and those countries following Venezuela will begin thinking twice before expropriating property." To interview Mr. Derman on international energy issues, contact Barry Pound at 800-559-4534 or barry@androvett.com.

 

Burned by the Madoff and Stanford Financial scandals, all signs point to the Securities and Exchange Commission taking a greater interest in investigating and prosecuting financial matters that until now barely made a blip on the SEC's radar. Get ready for increased scrutiny of credit default swaps and hedge funds, says Dallas criminal defense attorney and former SEC prosecutor John Teakell. "Clearly, the SEC has been stung by the criticism that it was asleep at the wheel while all of this was going on," Teakell says. "And now you're bound to see a slew of new investigations as it tries to demonstrate to Congress and the White House that it can do its job. That means that people setting up and running hedge funds and marketing these derivatives had better be very, very careful." As Bloomberg reports, new SEC investigations have surged 32 percent since the end of January after Chairman Mary Schapiro took the agency’s helm, and the agency also has gone to court almost four times as often to seek emergency orders to halt misconduct compared with a year earlier. To interview Mr. Teakell about SEC investigations, contact Mark Annick at 800-559-4534 or mark@androvett.com.

Antitrust attorney Gregory Huffman says administration's position borne out of Great Depression post mortem
Last week's message from the Justice Department's antitrust chief Christine A. Varney regarding antitrust enforcement was

crystal clear: expect to see more Justice Department vigilance of big business, particularly in the areas of technology, energy, health care and telecommunications companies.
As reported by the New York Times and others: Ms. Varney blamed the Bush administration for antitrust policies that "lost sight of an ultimate goal of antitrust laws - the protection of consumer welfare" and "allowing all but the most bold and predatory conduct to go unpunished and undeterred."
Ms. Varney indicated that the administration is rejecting the impulse to go easy on antitrust enforcement during weak economic times. "We must change course and take a new tack," she said, adding, "Vigorous antitrust enforcement must play a significant role in the government's response to economic crises to ensure that markets remain competitive."
Antitrust attorney Gregory Huffman of Dallas' Thompson & Knight says the administration's position is likely borne out of history, particularly the government's soft-handed approach during that Great Depression that is widely believed to have prolonged that economic downturn.  "Some might argue right now that preserving jobs at large companies is more important than challenging the companies in court," Huffman says. "However, research shows that attempts in the 1930s to preserve employment by cutting back on antitrust enforcement actually extended the Great Depression by up to seven years." Huffman notes that Council of Economic Advisors chair Christina Romer and Federal Reserve chairman Ben Bernanke are both students of New Deal policies. "Given their backgrounds and positions, the shift toward restored antitrust scrutiny was almost inevitable." To interview Mr. Huffman on antitrust matters, contact Barry Pound at 800-559-4534 or barry@androvett.com.

A small, Texas-based software company that does business as FirePond has filed an ambitious class-action suit, taking on Internet behemoth Google for its practice of

selling trademarked words and phrases through it pay-per-click AdWords service. The suit charges that Google infringed on its trademark by allowing competitors to purchase the word "FirePond," which effectively drives potential customers to competitors' services. While individual companies like American Airlines and Geico have filed similar complaints, Trademark attorney Dyan House of Dallas' Munck Carter says this litigation stands out because it attempts to gain class-action status. "Potentially, that makes it a much bigger case, but I doubt the court is going to certify this as a class," Ms. House says. "Still, the underlying issue of whether an enterprise's trademarks can be sold by another as an Internet search keyword that links to competitors is commercially very important."

A second, similar class-action was filed Monday, Online Media Daily reports. To interview Ms. House about trademark infringement issues, contact Mark Annick at 800-559-4534 or mark@androvett.com.

When President Obama unveiled proposed changes to the U.S. tax code last week, the underlying message was that a crackdown on so-called offshore corporate tax havens would be a win-win for tax coffers and U.S. jobs. But many international tax experts say it's just not that simple, and the Obama proposal threatens to compound the problem because businesses typically hire off-shore not to take advantage of a tax loopholes but because of wages are so much lower. The Obama plan, which still requires approval from Congress, would reduce the incentive for U.S. companies to invest abroad by limiting available deductions on things like payroll expenses and restricting eligibility for foreign-tax credits.

Cym Lowell, an international tax attorney at Gardere Wynne Sewell, says the tax proposal will hurt the U.S. companies' competitiveness abroad and will not likely have the intended effect. "U.S.-based companies already face a higher tax rate when they enter the global marketplace and this would further penalize them," Lowell says. "To wrap these proposals in the swaddling cloth of ‘protection of U.S. jobs' is dangerously simplistic." Gardere partner Mark Martin agrees, "Obama needs to be sensitive to the ability to be competitive. It is attractive political rhetoric to call for higher taxes for big business, but the reality is not nearly so obvious." To interview Mr. Lowell or Mr. Martin, contact Rhonda Reddick at 800-559-4534 or rhonda@androvett.com.

Pity RealNetworks. The plucky technology firm is facing an uphill battle - and mounting legal costs - as it goes up against the Motion Picture Association of America 

over its RealDVD software that allows consumers to copy DVD movies to computer hard drives. The company and its supporters maintain that the MPAA is overreaching in its charges that the software violates the Digital Millennium Copyright Act.

Cnet reports: Legal fees also took a major toll. Since late last year, RealNetworks has been embroiled in a legal battle over its RealDVD software, which can rip a digital copy of commercial DVDs onto a personal computer. Hollywood, courtesy of the Motion Picture Association of America (MPAA), has sued RealNetworks to prevent the company from selling the program. Since 2008 RealNetworks has shelled out $6 million in legal fees and associated costs to defend RealDVD.

Technology litigation veteran Ted Stevenson of Dallas' McKool Smith says if history is any indication, RealNetworks is facing difficult odds. "In 2004, a court in the Northern District of California ruled that DVD-copying software from 321 Studios violated the Digital Millennium Copyright Act," he says. "That software was sold to ostensibly permit consumers to back up their DVD purchases, but 321 Studios lost because its product had no safeguards to prevent copying of borrowed or rented DVDs. Like that case, a key fact in this case is whether RealNetworks' accused product contains adequate safeguards." To interview Mr. Stevenson, contact Bruce Vincent at 800-559-4534 or bruce@androvett.com.

Labor and Employment attorney Mark Shank says overuse of covenants could diminish their utility.
The Texas Supreme Court has further expanded employers' ability to enforce non-compete agreements with workers, and the result will likely be even greater use and popularity of these agreements in Texas, says Mark Shank of Dallas' Gruber Hurst Johansen & Hail. In Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, Texas Supreme Court justices overturned rulings by two lower courts and in the process granted more leeway for businesses to enforce these covenants. The case centered on accountant Brendan Fielding's challenge to the enforceability of a non-compete agreement he had with his former employer, Mann Frankfort Stein & Lipp Advisors. Fielding argued that Mann Frankfort had not "expressly promised" to reveal confidential information to him in the course of his job(such express promises were the previous threshold for enforceability identified by the Texas Supreme Court in Sheshunoff Management Services, L.P. v. Johnson). The Supreme Court ruling expands the reach of these covenants by ruling that there can be an "implied promise" from employers that working with confidential information is part of an employee's job duties.

Shanks says the ruling opens the door for even more reliance on these agreements in Texas. "A natural result may be that businesses become more aggressive in trying to tie up lower-level employees with these types of covenants." But businesses should be concerned that overuse of non-competes could dilute their power. "You can diminish the value of these agreements by applying them too broadly or by taking a one-size-fits-all approach with your workforce."

Until now, the drama behind "The Secret" has been relegated to the wildly successful movie and book franchise. While the works intriguingly explore the "Law of Attraction," the story's director and co-writer is heading to a Chicago courtroom to prove that the law entitles him to fair compensation for his contributions to the work. The stage is now set for a May 11 trial in a Chicago courtroom involving The Secret's director and co-writer, Drew Heriot.

Originally released in March of 2006 for DVD and online sales, "The Secret" uses a documentary format of interviews and dramatized sequences to present what is called the "Law of Attraction." Embraced by many self-help experts and the subject of extensive media coverage, the film teaches that thoughts and feelings attract real events into individuals' lives, creating a basis for a higher sense of personal and spiritual fulfillment.

Attorneys Mark Werbner and Darren Nicholson from Dallas' Sayles Werbner represent Mr. Heriot. "We know 'The Secret' would never have existed if not for Mr. Heriot's contributions," says Mr. Werbner. "His ownership rights in the creation of these materials should be upheld."   To interview Mr. Werbner about the case, contact Bruce Vincent at 800-559-4534 or bruce@androvett.com.

Country Music Hall of Fame inductee and 20-time Grammy Award winner Vince Gill headlines tonight's Vogel Alcove Annual Arts Performance at the Morton H. Meyerson Symphony Center in the Dallas Arts District. Dallas-based law firm McKool Smith donated $75,000 as one of two Paramount Sponsors of the 18th annual event. The charity performance generates funding for more than half of the nonprofit's annual budget.

Vogel Alcove provides a range of free services for homeless infants, preschool children and under privileged families in North Texas. McKool Smith has been a proud sponsor of the organization for 15 years. The Vogel Alcove is the only comprehensive early childhood education program in the city of Dallas whose primary focus is to provide free services for homeless children who face multiple developmental risks.  Because of the Alcove’s 21-year legacy providing quality, licensed childcare and social services for children victimized by homelessness, 18 area affiliated homeless shelters, domestic violence shelters, and housing programs depend on the Alcove to provide services to the homeless families at their shelters.

"We are privileged to support an organization that serves such a vital role in helping those in our community who are perhaps least likely to have means to support themselves - the children of homeless families," says Mike McKool, co-founder of McKool Smith. Tickets for tonight's concert are still available through the TITAS box office at 214-528-5576 or through the Vogel Alcove Web site, http://www.vogelalcove.org/.

To get an idea of how serious this swine flu threat is for the business world, consider this factoid about the great 1918 Spanish Flu epidemic in an interesting piece in today's Wall Street Journal. Besides killing 50 million people around the world, that pandemic is considered the fourth-ranking global financial catastrophe since 1870.

Even though the swine flu so far is not as virulent as feared, it is having an enormous effect on businesses, workers and their families. In light of Texas Gov. Rick Perry's disaster declaration linked to swine flu, employment attorney  Audrey Mross of Munck Carter in Dallas says employers should have a plan for responding to personnel complications from the spread of the virus. "The list of questions for employers to answer is fairly long," Mross says. "If you've got a slightly sick employee, do you have the ability for him or her to work from home? If you have a healthy employee who isn't comfortable coming to work, what do you do? Do you continue wages and salary during these absences or ask employees to use paid time off? There are all sorts of dilemmas that come up." To interview Ms. Mross about swine flu and the implications for employers, contact Mark Annick at 800-559-4534 or mark@androvett.com.

Jobs provided by oil and gas production are welcome bright spots in the North Texas economy, but the often risky work no doubt provides plenty to worry about for workers and their families. After a North Texas man died in an oilfield mishap involving a rig relocation conducted by I.E. Miller Services(now known as Compleat), his struggling family was able to secure a multimillion-dollar settlement designed to provide at least some economic security for the man's six-year-old daughter. But four months after the monetary agreement was reached, the girl still hasn't received a penny.
The child's attorney, Steve Briley of Banner Briley & White LLP in Wichita Fallas, says insurance companies are to blame for inexplicably putting up a roadblock to the release of the funds by contesting the type of annuity the family wishes to use to safeguard the money for the child. To interview with Mr. Briley, please contact Rhonda Reddick at 1-800-559-4534 or rhonda@androvett.com.

Web 2.0 has created a loosey-goosey world out there for corporate communications. Twitter, blogs, instant messaging and other up-and-coming mediums create plenty to worry about from a corporate communications standpoint, says Chris Schaeper of Houston's Thompson & Knight. As corporate America and employees embrace these new mediums for marketing and networking, Schaeper says that executives can't afford to forget that all corporate communications are ultimately subject to SEC regulations. "Communicating too freely can cause headaches for public companies, and securities laws exist to assure that corporate information is distributed evenly and fairly," he says. The SEC has barely caught up to e-mail communications, much less chat rooms and message boards. As a result, Schaeper recommends a periodic review of communications policies. "The Tweeting rage has added a fresh reason to do so - and sooner rather than later." To interview Mr. Schaeper, contact Barry Pound at 800-559-4534 or barry@androvett.com.

Attorney Jared Woodfill: BNSF intentionally mislead government inspectors about scope of contamination
A third-party industrial waste cleanup worker who was asked to clean up toxic contamination on the grounds of a railroad tie treatment plant operated by Burlington

Northern Santa Fe Railway testified Friday that he was `shocked' by the level of contamination, as well as plant supervisors' disregard for the health concerns posed by the solvents and other chemicals used at the 100-year-old treatment plant.

As reported by The Eagle in Bryan/College Station, Mike Zientek told jurors on the second day of trial testimony that the plant failed to adequately clean up a 1,000-gallon chemical spill and that plant supervisors scoffed at the idea that creosote and other solvents used to treat railroad ties posed a danger to workers or Somerville residents. An earlier witness in the trial, Dennis Davis v. Burlington Northern Santa Fe Railway underway in Caldwell, Texas, testified that plant supervisors advised him that creosote, a known carcinogen baned in Europe and Canada, was not dangerous and was good for clearing up sinuses.

Lawsuits filed by hundreds of

Somerville, Texas, residents charge that a 100-year-old, continuously operating railroad tie processing plant has caused widespread toxic contamination in Somerville and high concentrations of cancer among residents. Scientific and medical studies suggest that toxic pollution from the railroad tie treatment plant has caused a serious health problem in Somerville. Lawsuits charge that the company's negligent use of toxic chemicals caused widespread environmental contamination that has sickened employees, their families and town neighbors.

Dallas-based McKool Smith already enjoys the distinction of having more National Law Journal Top 100 verdicts for 2008 than any other firm in the country. This year is already looking up for the firm as it continues to add experienced attorneys and score big verdicts and court rulings.
Most recently, the firm obtained a $19 million patent infringement verdict against Apple Inc. relating to rights to technology owned by Palo Alto, Calif.-based Opti Inc. The patent dispute focused on claims by Opti that Apple was infringing on its patent for software that enables a "pre-snooping" function that eases transfers of data between a computer and other devices like hard drives and iPods. Attorneys from Dallas' McKool Smith and Chicago's Winston & Strawn represented Opti, including McKool Smith's Rosemary Snider, Gary Kitchen, Jason Cassady and Carol Butner. The verdict was awarded as fair and reasonable compensation to Opti for Apple's willful patent violation.
Last week, attorneys in the firm's New York office received a partial summary judgment and injunction against New York-based Liz Claiborne Inc. and its subsidiary, Los Angeles-based Lucky Brand Dungarees Inc. In the ruling(available here), the court found infringement against the Lucky Brand entities over their sale of garments bearing the unauthorized "Get Lucky" mark. The court further ruled that the infringement constituted unfair competition under federal and New York laws, including violations of New York's General Business Law. The court also found that Lucky Brand breached a 2003 settlement agreement between the parties governing the use of the "Get Lucky" mark. The court's ruling permanently enjoins Lucky Brand from ever using Get Lucky on apparel, fragrances and accessories.
Marcel Fashion and Get Lucky are represented by lead trial counsel Ann Schofield Baker, a principal in McKool Smith's New York office, and Lawrence I Fox, a New York partner in McDermott Will & Emery.
For verdict information, contact Bruce Vincent at 800-559-4534 or bruce@androvett.com.

Attorney Jared Woodfill to shine light on Burlington Northern's dark secret about cancer clusters, toxic pollution in Somerville, Texas.
The first full day of testimony is underway today in a major toxic contamination trial against Burlington Northern Santa Fe Railway. Lawsuits filed by hundreds of

Somerville, Texas, residents charge that a 100-year-old, continuously operating railroad tie processing plant has caused widespread toxic contamination in Somerville and high concentrations of cancer among residents.
Scientific and medical studies suggest that toxic pollution from the railroad tie treatment plant has caused a serious health problem in Somerville. Lawsuits charge that the company's negligent use of toxic chemicals caused widespread environmental contamination that has sickened employees, their families and town neighbors.
Among other things:
• A recently completed epidemiological study has found that the rates of cancer in Somerville are 10 times greater than a similar small Texas town used as a control group. Additionally, the overall rates of cancer, and specifically colorectal and stomach cancers, are far greater than the National Cancer Institute's SEER stats project for such populations.
• Independent scientific analysis shows that Somerville residents continue to be exposed to high levels of harmful dioxins, chromated copper arsenic(CCA) and polycyclic aromatic hydrocarbons(PAH's) like pentachlorophenol(PCP) and benzo(a)pyrene.
A jury of nine women and five men has been seated in the case of Dennis Davis v. Burlington Northern Santa Fe Railway. The first witness in the trial, former tie plant employee Robert Urbanosky, testified Thursday that employees expressed concerns about the safety of creosote more than 20 yeras ago and were reassured that the carcinogenic chemical posed no health risks.
"He told us all creosote would do is open up your sinuses," Urbanosky said.