December 23, 2010 by Barry Pound at 11:38:24 am Thompson & Knight article tackles e-discovery sticker shock
We all know by now that just about every piece of litigation today has some kind of costly electronic discovery component. The National Law Journal’s latest e-Discovery special section includes an interesting and very common-sense overview with a special focus on what budget-conscious lawyers involved in smaller litigation need to know about the e-discovery landscape.
Writes Jane Politz and Danny Thankachan of Thompson & Knight, lawyers involved in smaller litigation are “justifiably worried” about the costs of preserving and collecting data, and this anxiety forces many to choose between two equally troubling extremes: being too cautious and over preserving on one hand and the abdication of preservation responsibilities to vendors or clients on the other.
Without the benefit of large electronic discovery budgets, attorneys handling smaller matters may find themselves trapped. Engaging an outside expert to assess the client’s technology infrastructure and implement an appropriate e-discovery protocol is often prohibitively expensive. Even when such a project is proposed, clients question the need to hire outside experts when their own information technology(IT) personnel are intimately familiar with the technology in use within the company. These are, of course, reasonable arguments.
With that as a starting point, Politz and Thankachan provide a comprehensive overview of options for lawyers facing such a dilemma. The complete article(subscription required) can be found here.
December 21, 2010 by Robert Tharp at 9:47:04 am Fort Worth Jury to Oncor Electric: Two Years Too Long to Wait for Electrical Service
Things were looking up back in 2007 for the Giovanni Homes’ townhouse and office development along Creek Run Road in east Fort Worth. Buyers were already lined up for the development’s first three townhouses, and the developer had purchased additional property to build office space and additional townhomes.
But as Giovanni Homes waited for Oncor Electric to bring electrical lines to the property as promised, days turned to weeks and still no electricity. Months passed and the seasons changed, but the structures remained in the dark and interested buyers looked elsewhere.
Turns out, Oncor had mistakenly placed its underground electrical line far outside the 10-foot-wide easement that the utility owned. In fact, the line, including a three-phase transformer box, was running right through the middle of the Giovanni Homes property. As the real estate losses mounted, Oncor came up with one explanation after another why the line could not be moved in order to bring electrical service to the properties as promised.
More than three years later, a Tarrant County jury last week awarded $1.2 million in actual damages plus $575,000 in attorneys’ fees to Giovanni after determining that Oncor breached its contract and effectively trespassed on the private property. Giovanni’s lawyer, Charla Aldous of the Aldous Law Firm, called it a classic David-and-Goliath legal moment. “We’re glad David won,” Aldous says. “Giovanni Homes is a quality developer that just wanted to improve a neighborhood in Fort Worth, but Oncor kept delaying those efforts for seemingly no good reason.”
December 17, 2010 by Robert Tharp at 2:51:02 pm With 6 multimillion verdicts in 2010, small Corpus Christi law firm has year to remember
Even before they walked out of an El Paso courtroom with a $124 million verdict last month, the young lawyers at Sico, White, Hoelscher & Braugh L.L.P. already had racked up an impressive string of jury verdicts in 2010.
The seven-lawyer, Corpus Christi-based firm secured six multimillion-dollar jury verdicts in the last 12 months alone. The string culminated with the stunning $124 million verdict against El Paso-based bus company, Los Paisanos Autobuses Inc., and others responsible for a bus crash near Denver that killed two.
Firm co-founder Craig M. Sico says that though tort reformers portray jurors as sometimes making thoughtless responses to meritless lawsuits, people take jury service very seriously and need to see solid evidence to grant awards. “Jurors aren’t lemmings, no matter what you might hear from the tort reform movement,” says Sico. “When there is true injury presented in a clear way, juries react with common sense and compassion, which can mean millions of dollars depending on the facts of the case.”
The firm’s additional multimillion-dollar jury verdicts in 2010, all in actual damages, range from commercial oil-and-gas disputes to workplace injury and product liability cases, and include:
December 17, 2010 by Dave Moore at 2:21:13 pm Top 10 legal news items in Houston for 2010
Speaking of year-end news roundups, Androvett Legal Media’s Mary Flood has compiled a list of the top 10 legal news stories impacting Houston in 2010 on her Houston Legal blog.
Besides the obvious mention of the Deepwater Horizon catastrophe, Flood delves into the conviction of former Republican House majority leader Tom DeLay; the ongoing state and federal battle against Mexican drug cartels; and the travails of former financier R. Allen Stanford, who has been beaten, drugged and locked away for more than a year while awaiting a jury trial.
Let’s hope for a happier 2011 for all of us.
December 17, 2010 by Robert Tharp at 1:59:51 pm Shackelford Melton & McKinley joins forces with veteran Nashville entertainment lawyers
“Shackelford going country in Nashville” reads the headline in today’s Dallas Business Journal describing the Dallas-based law firm’s move to join forces with a group of Nashville’s most venerated entertainment lawyers.
Beginning Jan. 1, the growing firm’s new partnership will include the Nashville office of Shackelford, Zumwalt & Hayes, reflecting a merger with a firm that counts some of the biggest names in entertainment as longtime clients. Firm founder John C. Shackelford, whose firm is known throughout the Southwest based on work for clients in aviation, financial institutions, hospitality, real estate, and the retail automobile industry, says this move makes good business sense.
“We’re very excited to be working with the top entertainment lawyers in the city,” Shackelford says. “From contracts to global licensing deals to helping navigate the intersection of music and technology, we provide a level of service you just don’t find at many law firms.”
Jim Zumwalt and Craig Hayes and the lawyers at their firm represent some of the country’s leading entertainers, including Faith Hill, Creed, Aaron Neville, Lifehouse, Tanya Tucker and The Bar-Kays. The firm is most known for launching recording careers by advancing deals for such artists as Toby Keith. “John Shackelford and his team bring significant capabilities to our firm,” Mr. Zumwalt says. “By combining our global entertainment expertise from Nashville with the business and technology capabilities in Dallas and Austin, I believe we’ve put together a group of legal talent that’s second to none.”
December 16, 2010 by Robert Tharp at 4:20:57 pm Psst, Can I Sell You a Watch, Cheap? Supreme Court Says, No
The Omega watch company was not pleased when retailer giant Costco purchased its watches at a discount overseas before selling them domestically at bargain prices. In a split 4-4 vote on Monday, the U.S. Supreme Court upheld Omega’s claims that it can control the pricing, resale and redistribution of such “gray market” goods. Munck Carter copyright attorney Dyan House of Dallas says the Supreme Court’s split vote resolves the Costco case, but failed to settle the broader question over the ongoing sale of such copyrighted gray market goods. “Because the court split on the issue, it effectively upheld the lower court’s decision without setting a precedent,” House says. “Manufacturers and retailers are still in need of clarity about this business practice.”
Writes Bloomberg: Today’s high court action means that “if someone is selling goods 30 percent cheaper in some other country, any retailer who wants to pass that cost benefit on to the consumer would likely be denied,” said John Mitchell, a Washington lawyer who filed a brief backing Costco on behalf of trade groups that represent video-game, home-video and music retailers.
The case turned on the scope of the first-sale doctrine, which says a copyright holder can profit only from the original sale of a product. In 1998, the Supreme Court unanimously ruled against copyright holders by saying the doctrine applies to U.S.-made products sold overseas. The court said copyright holders can’t block those goods from being brought back into the U.S. through unauthorized channels.
The latest question was whether that same reasoning applies to goods manufactured abroad, including Omega’s Seamaster watches, which carry a copyrighted logo on the back. The 9th Circuit sided with Omega on the issue, ruling that the first- sale doctrine doesn’t apply to foreign-made goods. The case now returns to a federal trial court, where Costco will have a chance to mount additional arguments, including its contention that Omega engaged in so-called copyright misuse.
December 16, 2010 by Dave Moore at 12:57:05 pm 2010: The year that rocked the legal world
While many old-school holiday traditions have gone by the wayside, there are some traditions that never seem to die; among them, lists that sum up the year’s events. Some of us at Androvett Legal Media & Marketing have put together what we believe to be the 10 biggest legal stories of the past year in North Texas. You may not agree with every matter on our list, but that's part of the fun. Let us know what you think were the top stories.
Dallas/Fort Worth Top 10
Legal News Stories of 2010
1) Tax-credit corruption cases rock Dallas City Hall
The 2010 Dallas City Hall extortion/bribery case over valuable federal tax credits resulted in the incarceration of former State Rep. Terri Hodge, former Dallas Mayor Pro-Tem Don Hill, and many others. The scheduled Dec. 17 sentencing for former prominent developer Brian Potashnik and his wife will close one of the biggest legal stories and one of the darkest chapters in Dallas City Hall history.
2) FAA fines American Airlines record $24.2 million
The FAA hit American Airlines Inc. with a record $24.2 million fine in August for allegedly failing to follow a 2006 airworthiness directive. The penalty stemmed from a series of groundings in 2008 after wiring harnesses on some 300 jets were not properly fastened. The penalty was more than double the largest fine ever assessed by the FAA, and drew negative national attention to the area’s largest employer.
3) Cowboys groups, others settle cases after practice facility collapse
Cowboys scouting assistant Richard Behm and special teams coach Joe DeCamillis settled lawsuits against a group of companies owned by Dallas Cowboys owner Jerry Jones and others after both men were severely injured in the May 2009 collapse of a team practice facility in Irving. The settlement preempted a full-blown trial with America’s Team facing the court of public opinion.
4) Dallas County Constables face indictments
What began as an investigation of aggressive and unregulated towing operations evolved into a year-long probe into alleged coercive campaign tactics by Dallas constables Derick Evans and Jaime Cortes, both who are accused of illegally requiring their deputies to raise campaign funds. DA Craig Watkins’ refusal to investigate the case added another layer to one of Dallas’ biggest legal dramas of 2010.
5) $51 million construction defect verdict against political contributor and Perry Homes owner Bob Perry
In one of the longest-running lawsuits in state history, a Fort Worth jury ordered Houston homebuilder and major political donor Bob Perry to pay $51 million to a Mansfield couple over an alleged defective home sold by Perry. The verdict ended a decade-long dispute between Bob and Jane Cull and the Perry Homes owner, including appeals that reached the Supreme Court of Texas. The jury awarded $40 million in punitive damages alone – a far cry from the $800,000 judgment that resulted after the two sides went into arbitration in 2002.
6) Smadi pleads guilty to bomb plot charges
Hosam “Sam” Smadi was sentenced to 24 years in prison for trying to blow up the 60-story Fountain Place building in downtown Dallas. Despite alleged encouragement from government agents and renouncing Osama bin Laden at his sentencing, Smadi was told by U.S. District Judge Barbara Lynn that “your actions were yours.” The Smadi case showed how law enforcement officials are increasingly willing to allow terror suspects to take “overt actions” before making arrests in order to bolster the government’s cases in court.
7) Beer and wine sales legalized in Dallas
Dallas voters collectively booted the patchwork of Prohibition-era dry laws to legalize the sales of beer and wine citywide. Several community leaders opposed the vote, and legal counsel for the opposition argued that the city didn’t properly validate the signatures that initiated the referendum. Despite the flurry of legal attempts to suppress the vote results, employees at Dallas City Hall are now processing applications for beer and wine sales across the city.
8) (Tie) Blockbuster Inc. and Texas Rangers file for bankruptcy
Bludgeoned by the success of Netflix, Redbox, and other online and mail order movie services, venerable Dallas video entertainment provider Blockbuster Inc. filed for bankruptcy protection in September. The chain, with 5,600 stores worldwide, has until Dec. 15 to files its plan to emerge from bankruptcy. The company has announced plans to reinvent itself as a leaner competitor with more digital video offerings.
In a scene reminiscent of the movies, a group of lawyers, reporters and sports moguls gathered in a Fort Worth courthouse on a steamy summer night to decide the fate of the beleaguered Texas Rangers baseball team. After hours of wrangling and a cameo appearance by billionaire Mark Cuban, the team landed in the hands of team president Nolan Ryan and an investment group led by attorney Chuck Greenberg.
9) M&A’s and IPO’s show signs of life
Mergers, acquisitions and initial public offerings in D/FW during 2010 showed that the Great Recession is starting to give way to the Great Thaw. Most recently, McKinney-based Newtoy, maker of the popular Words with Friends game, was purchased for an undisclosed amount by Farmville creator Zynga. In September, Southwest Airlines put some of its cash and stock to work by purchasing AirTran for $1.4 billion. ExxonMobil completed its $41 billion merger with Fort Worth-based XTO in June.
10) Northern District federal prosecutor nowhere in sight
Political gridlock continues to stall the appointment of four top federal prosecutor spots in Texas, including the Northern District of Texas, which has been without a permanent U.S. attorney since before President Obama was elected. The Obama administration and Texas’ Democratic delegation unsuccessfully have squared off against Texas’ two Republican senators in search of mutually agreeable appointees. The lack of a permanent U.S. attorney to direct law-enforcement priorities and approve work on big projects is causing a statewide slowdown in work for criminal defense lawyers and a sigh of relief from the clients they typically represent.
December 14, 2010 by Robert Tharp at 10:06:18 am File Under: Search Engine Optimization Strategies We Don’t Recommend
We’ve seen plenty of kooky schemes for tweaking a website’s search-engine performance, but online merchant Vitaly Borker took it to such a level that it appears he’s a shoe-in for a special prize all his own: prison time.
As described by the New York Times last week, Borker was convinced that Google’s inscrutable algorithm that determines a website’s search engine rankings could not distinguish between praise and complaints. According to his website optimization strategy, Borker embraced the old chestnut that there's no such thing as bad pr and took it a step futher. He figured that even negative postings translated into buzz that helped push his business, DecorMyEyes, higher in search results and increased his sales.
According to police reports, Borker set about menacing his customers with disturbing threats of violence. He is now being held without bail, charged with one count each of mail fraud, wire fraud, making interstate threats and cyberstalking.
Writes the NY Times: It is unclear if Mr. Borker was right about the cause of DecorMyEyes’ surprisingly strong showing in online searches. But last week, Google published a post on its official blog stating that it had changed its search formula so that companies were penalized if they provided customers with what it called “an extremely poor user experience.”
December 10, 2010 by Dave Moore at 9:25:15 am An End to Global Warming Mass Tort Litigation?
Imagine a world where utility rates are set in a patchwork quilt across the nation, in each instance decided by local magistrates. That is a possibility, based on a court decision that climate change issues – and, as such, the regulation of energy providers – may be decided by local courts.
Opponents to that notion scored a major victory recently when the U.S. Supreme Court agreed to hear an appeal in American Electric Power v. Connecticut, in which state attorneys general and other authorities claim that public utilities' greenhouse gas emissions contributed to climate change. Utility firms say that the universal issues of climate change cannot be addressed by individual lawsuits, but rather should be resolved by the executive and legislative branches of government.
Richard O. Faulk, chair of the Litigation Department of Gardere Wynne Sewell LLP in Texas and a frequent commentator on mass tort litigation trends, and John S. Gray, who co-chairs the firm’s Climate Change Task Force with Faulk, have weighed in on behalf of several industry associations by filing an amicus brief before the court.
They said the Court’s decision to hear the case may portend the demise of mass tort litigation based on global warming. Here’s the reaction of Faulk, who at the time of the ruling, was in Washington, D.C., to address a conference of the nation’s trial and appellate judges regarding climate change litigation:
The use of isolated and ad hoc lawsuits against an arbitrarily selected group of emitters cannot possibly solve the global warming phenomenon. The issue is best left to the international community, the Congress and the EPA, which have the resources and power to deal with this alleged problem. Hopefully, the Supreme Court will now recognize the primacy of those institutions.
To view a YouTube video where Faulk discusses the Supreme Court case, click here. A copy of Faulk and Gray’s AEP v. Connecticut amicus brief can be found at: http://www.gardere.com/Binaries/Press%20and%20Publications/AmElectricvStConnecticutBrief.pdf.
If the arguments made by the likes of Faulk and Gray succeed, corporations and consumers alike will continue to benefit from utilities that are regulated at the state and national levels, and will be spared the vicissitudes of local courts.
December 9, 2010 by Robert Tharp at 4:31:09 pm It’s the most wonderful time of the year… for office holiday party faux pas
Free booze, food someone else cooks—what’s not to love about an office party?
While being the life of the party was a goal worth pursuing in college, it’s not such a brass ring once we’re in the professional world. Dallas lawyer Kathleen Wu, who writes and speaks about issues affecting professional women, says Rule Number One is not to make others uncomfortable. “That means not discussing compensation, particularly with year-end bonuses around the corner,” she says. “And if they’re bringing a date or a spouse to the party, keep public displays of affection to a bare minimum.”
The best bet is to get acquainted with others outside your department. “Think of it as cross-pollination,” Wu says. “You’re making yourself known outside your regular circle and you’re learning more about what goes on in the rest of the company. There’s no downside to that.”
Other office party tips:
December 8, 2010 by Robert Tharp at 1:51:36 pm New gift card regs help consumers stop throwing away money
Representing a nearly $100 billion annual market, the humble prepaid gift card has become the gift of choice for uninspired shoppers during the holiday season. While gift cards have long resided in mostly unregulated territory, new FTC rules provide a degree of protection to cardholders by restricting fees and providing transparency for expiration dates, says Zahara Alarakhia of Munck Carter in Dallas.
The reforms’ goal is to reduce so-called “breakage” – unspent gift card credits that cardholders unwittingly leave on the table. Breakage amounted to $5 billion last year. Best Buy alone netted $38 million of breakage in a recent fiscal year, while Home Depot banked $37 million during the same year, reports The New York Times. In her recent personal finance column, the Dallas Morning News' Pamela Yip provides a rundown on the new provisions spelled out in the Card Accountability Responsibility and Disclosure Act. The takeaway: it’s wise to know the terms and conditions, particularly the expiration date, of any given gift card before you put it in you put it in your sock drawer and forget about it for 11 months.
“These regulations will help diminish the significant amount of money lost every year by gift card holders,” Alarakhia says. “Still, cardholders are wise to understand the limits of these cards, and ideally they should try to redeem gift cards relatively quickly.”
December 3, 2010 by Rhonda Reddick at 2:08:47 pm Gardere MLK Competition Continues Growth
The inaugural Annual Gardere MLK Jr. Oratory Competition in 1993 was by all accounts a modest affair. Held in a conference room in the downtown offices of Gardere Wynne Sewell LLP, just a handful of Dallas ISD elementary schools were invited to send representatives to compete in the new speech contest. However, the day proved to be an unqualified success, leaving no question that it would become an annual event. The continued growth of the event over the next 19 years required a move first to Dallas’ First Baptist Church and then to its current location, The Majestic Theatre. “As we have seen first-hand since we started this contest 19 years ago in Dallas, these students excel in carrying forward Dr. King’s legacy, and I am confident they will continue to do so throughout their lives,” says Gardere Managing Partner Steve Good.Gardere attorneys were not alone in noticing the benefits the students get from this experience, and over the years more and more DISD schools have sought to be among the participating schools. This year, 15 schools held preliminary competitions between Nov. 9 and Dec. 1 to select their speakers for the Dec. 7 semifinals at the Dallas ISD Administration Building. Speaking on the theme "How Will You Carry Forward the Legacy of Dr. King in Your Personal and Professional Life?" the eight top-scoring fourth- and fifth-grade students from the semifinals qualify to participate in the finals, set for Jan. 14 at The Majestic Theatre.Meanwhile, students from 23 Houston ISD elementary schools will compete Jan. 7 in the semifinals of the 15th annual Houston Gardere MLK Jr. Oratory Competition. The top 12 students qualify for the Jan. 14 finals at Antioch Missionary Baptist Church of Christ.
December 2, 2010 by Amy Hunt at 3:42:14 pm USA Today weighs in on red hot computer forensics sector
Garden variety sleuthing will never go out of style, but there’s a new brand of detectives who extract clues from bits and bytes of data buried deep within companies’ computer networks. Computer security breaches have become so widespread and so costly that firms specializing in cyberforensics, data security, business intelligence and forensic accounting, such as Stroz Friedberg, have found themselves in demand across the globe. While the sector barely existed just a decade ago, it’s seeing red hot growth.
Case in point: Stroz Friedberg recently received a $115 million investment from private equity firm New Mountain Capital to open new offices across the U.S., Europe and Asia. According to a Nov. 23, 2010 article in USA Today highlighting Stroz Friedberg’s plans, Demand for cyberforensics is being driven by "the proliferation and complexity of security issues companies are facing," says Alok Singh, New Mountain's managing director. "Issues of data security and integrity are critical for all companies around the world."
Cyber detectives, like their traditional counterparts, must preserve crime scenes and hunt for evidence. “But instead of looking for fingerprints, DNA and ballistics, they hunt for ‘subtle data attributes inside company networks that have been changed or altered,’ says Ed Stroz, ex-FBI agent and co-founder of Stroz Friedberg,” USA Today reports. A number of factors are causing the explosive growth. Writes USA Today: U.S. Internet crime losses reached $560 million in 2009, up from $265 million in 2008, says the Federal Deposit Insurance Corp. Research firm Market Research Media estimates that the federal government will spend $55 billion from now through 2015 on cybersecurity.
Globally, a recent study by the Computing Technology Industry Association, a non-profit trade group, found that 63% of large organizations surveyed in 10 nations experienced at least one security incident in the past 12 months, with 45% of those incidents classified as serious.
December 1, 2010 by Dave Moore at 4:05:12 pm With Hire Act’s Tax Breaks for Hiring the Unemployed, Seasonal Jobs May Lead to Long-Term Employment
Under the Hire Act of 2010, businesses are eligible for tax breaks for hiring workers who have been unemployed at least 60 days. NBC 5’s Ken Kalthoff interviewed Munck Carter’s Audrey Mross about the law and its likely impact.
“The purpose was to incentivize employers to hire people who had been unemployed for a while,” says Mross, a former HR executive who leads Munck Carter’s labor and employment section. “So, the rule was, the tax credit only applied to someone who had not worked at all for the last 60 days, or at most worked at most for 40 hours in the last 60 days.”
Further, if those new hires remain employed for a full year, employers get another $1,000 tax break, she says.
Click here for the full story.
According to the New York Times, an estimated 4.5 million workers hired already this year qualify for the tax credit, representing a payroll tax savings of $5.1 billion. But, the Times adds:
… no one knows whether any of those tax benefits were actually the cause of the new hires, or were just happily discovered after a hiring decision had already been made and therefore had no immediate effect on job market conditions.
Andy Warlick, president and chief executive of Parkdale Mills, a yarn manufacturer in North Carolina, had been brought onto the conference call this morning by Treasury officials as an example of an appreciative employer who had recently hired 30 workers eligible for the Hire Act tax exemptions. But when asked by a reporter about whether the tax benefit was actually responsible for his decision to expand his staff, he said it had not.
Whether or not the Hire Act tax breaks are happy surprises for employers, adding jobs is a sure-fire way to help strengthen the nation’s economic pulse.
“This is the government’s way of encouraging employers to attack that double-digit unemployment,” Mross tells NBC 5.
December 1, 2010 by Dave Moore at 2:57:41 pm ABA Journal highlights The Jury Room among the nation’s top law blogs
The experts at Austin, Texas’ Keene Trial Consulting have long been considered among the nation’s top trial and jury consultants. Now their blog, The Jury Room, has received similar praise.
The Jury Room is one of only two blogs authored by non-attorneys to be selected for the 4th Annual ABA Journal Blawg 100.
The ABA Journal, the flagship magazine for the American Bar Association, reviewed more than 3,000 legal blogs from across the nation before deciding on the ABA Journal Blawg 100.
According to an attorney interviewed by the magazine, The Jury Room “wraps legal analysis, psychology and persuasion into edible, bite-size chunks.” The magazine also notes that “litigation consultants Douglas Keene and Rita Handrich look inside the heads of potential jurors—who are all of us, really—and share what they find.”
In the blog, Drs. Douglas Keene and Rita Handrich focus on the interface between human behavior and the law, covering topics as diverse as preparing witnesses for more effective testimony, the role of racial and gender bias in jury decision-making, how best to apologize, the art and science of jury selection, jury persuasion, and voir dire.
The Jury Room can be read at http://www.keenetrial.com/blog and Keene Trial Consulting can be found at http://www.keenetrial.com/.
November 22, 2010 by Dave Moore at 4:13:37 pm Recipe for a copyright dispute: Editor steals article about medieval apple pie
Who knew the humble apple pie has been around since the Medieval times, with recipes appearing in period cookbooks in Italy, France, Germany and even England, no less? When Gode Cooke blogger Monica Gaudio analyzed some of those recipes in a bylined article, editors at Cooks Source magazine found “A Tale of Two Tarts” so interesting that they took the article and published it as if it were their own.
After Gaudio confronted Cooks Source about the pilferage, she received an unapologetic response via e-mail:
“Yes Monica, I do know about copyright laws. … But honestly Monica the web is considered ‘public domain’ and you should be happy we just didn't ‘lift’ your whole article and put someone else's name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I am sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than was originally. ... We put some time into rewrites, you should compensate me!”
Stories about this foodie tussle made more than a few news outlets. Munck Carter trademark and copyright lawyer Dyan House says the folks at Cooks Source were out of line when they failed to obtain Gaudio’s permission to reprint the article. She says it’s a common misperception that Internet content is public domain.
“The copyright owner -- in this case the author of the article -- has the right to distribute her work,” says House. “However, she did not transfer or lose any of her rights when she published it online.”
The run-in is just one case that demonstrates the lengths culinary experts will go to get different takes on an old recipe. According to the New York Times the pie has replaced the fancy cupcake as the latest in-demand dessert, and landing original recipes the delicacy is a serious business.
Suddenly, New York and San Francisco are national centers of pie innovation. In Brooklyn, a pair of sisters from South Dakota are integrating sea salt and caramel into their apple pie and inventing aromatic fillings like cranberry-sage and pear-rosewater. In the East Village, at Momofuku Milk Bar, the pastry chef, Christina Tosi, has transferred the buttery, caramelized flavors of apple pie into a layer cake, with apple filling between the layers and crumbs of pie crust in the frosting.
Some of the experimentation has led to oddities including pie milkshakes, pies baked in canning jars and a monstrosity called the cherpumple: three pies (cherry, pumpkin, apple) baked inside three cake layers, all terrifyingly stacked together with cream cheese frosting. (Yes, it is a turducken for the dessert course.)
November 22, 2010 by Robert Tharp at 1:20:17 pm You're going bankrupt? Congratulations!
A Chapter 11 reorganization seems to be just what the doctor ordered for GM, says Shackelford's Frances Smith
For all the stigma that the term "bankruptcy" carries, the legal remedy seems to be a powerful tonic to General Motors, which issued its first post-bankruptcy initial public offering on Nov. 19.
As Shackelford Melton & McKinley bankruptcy attorney Frances Smith tells Fox 4 reporter Shaun Rabb: “I think it’s been an amazing transformation for them. Back in June 2009, their stock was trading for less than a dollar a share. They had $46 billion in debt.”
Smith wasn’t exaggerating about General Motor’s plight. As CNN wrote in June 2009:
In the end, even $19.4 billion in federal help wasn't enough to keep the nation's largest automaker out of bankruptcy. The government will pour another $30 billion into GM to fund operations during its reorganization.
U.S. Judge Robert Gerber, the bankruptcy judge will oversee GM's bankruptcy, ruled Monday that GM will have access to $15 billion in government funds immediately. He will make a final ruling on bankruptcy financing approval on June 25.
Taxpayers will end up with a 60% stake in GM, with the union, its creditors and federal and provincial governments in Canada owning the remainder of the company.
The debt reduction that Chapter 11 bankruptcy offers companies seems to have injected new life in the auto maker, which employs more than 200,000 workers across the globe. Now, the American auto manufacturer only carries about $8 billion in debt. Smith, president of the DFW Association of Young Bankruptcy Lawyers, says that the debt relief that Chapter 11 reorganization offers can help change a company’s course.
“If a company is really in distress – and, you know, in 2009, GM was begging the government for money -- bankruptcy is a viable option for them,” Smith says.
November 17, 2010 by Robert Tharp at 4:54:07 pm Scales of justice can be a great equalizer
After defaming doctor who blew the whistle, physicians' group must pay $10.8 millionIt’s good to have the law behind you when you’re taking a stand.
Such is the case with Dr. Neal Fisher, a Dallas pediatric anesthesiologist who was fired after questioning the billing practices of his employer, Pinnacle Anesthesia Consultants P.A., which provides obstetric anesthesiology services to Texas Health Presbyterian Hospital Dallas. While Pinnacle advertised itself as being “in-network” for all major health care plans, Dr. Fisher found that the group routinely generated higher fees by matching patients with out-of-network anesthesiologists.
After he raised questions about an increasing volume of patient and OB/GYN complaints, Pinnacle accused Dr. Fisher of abusing alcohol and drugs, charges he proved false.
Dr. Fisher hired the Rose•Walker law firm to argue on his behalf in a defamation and breach of contract suit. In 2007, a Dallas County jury ruled in favor of Dr. Fisher by a vote of 12-0. Now, the Supreme Court of Texas has refused to consider Pinnacle’s appeal, which ends the case. Pinnacle will have to pay Dr. Fisher $10.8 million.
“This is the ultimate and final vindication for a doctor who had the courage to speak out for patients and then suffer the consequences of a vindictive and greedy employer,” says attorney Martin Rose of Dallas’ Rose•Walker, who represented Dr. Fisher at trial. “Pinnacle fought this case relentlessly. This final victory is very special for us.”
To read the news release about the court decision, click here.
November 15, 2010 by Dave Moore at 9:47:05 am Don’t ‘Like’ your boss? Fine, but do it on your own time
With the advent of the Internet, who would have thought it would have made all of us Gutenbergs? We now own the keys to our own personal E-presses and can post whatever we want, anytime we want.
Make that almost anything, anytime.
At least, that’s what a Connecticut woman found out recently. She was fired for criticizing her supervisor via Facebook posts. The National Labor Relations Board has stepped in, arguing that workers’ criticism should be protected as free speech.
Houston employment attorney Rachel Steely of Gardere Wynne Sewell LLP says blogging and email communication is not protected all the time.
“Of course you should be free to say what you think, but on your own time,” Steely says. “If an employee is spending work time complaining on Facebook, then termination is legitimate for using company time for personal reasons.”
Workers who enjoy social networking also need to be careful about any work-related details they might share, says Steely.
“For some, it is easy to say more than you realize and disclose confidential information, which would not only be grounds for termination but in some states could also result in criminal charges.”
November 11, 2010 by Robert Tharp at 4:57:40 pm When working requires more motivation than a crack of the whip
Perhaps your boss resembles Simon Legree more than Mary Poppins. If that’s the case, you’re probably not working at McKool Smith or 99 other Dallas-Fort Worth workplaces identified in this year’s Top 100 Places to Work 2010, which was published in the Nov. 7 issue of the Dallas Morning News.
McKool Smith, which has more than 70 attorneys and 100 staff members in Dallas, earned high marks in the midsize category for providing a hospitable and nurturing professional environment. The law firm placed 7th in a list of 37 mid-size Dallas-Fort Worth firms, the highest ranking for any law firm.
Writes Morning News business columnist and reporter Cheryl Hall:
Our panel of 48,517 experts – maids, doctors, car salespeople, customer service reps, you name it – shared unvarnished views by participating in our survey. We offered anonymity in asking how well their organizations lived up to 18 statements ranging from ‘This organization operates by strong value and ethics’ to ‘I feel well-informed about important decisions at this organization.’
November 8, 2010 by Dave Moore at 4:46:01 pm Even if – or especially if – your name’s Favre, your texts are not off limits
Practically everybody has hit “send” – or something harder -- when they didn’t mean to.
It’s a safe bet that if Tiger Woods could hit the “undo” button, he would have done so already.
Now come the allegations surrounding Minnesota Vikings quarterback Brett Favre, who reports have it sent texted improper messages and pictures to a former New York Jets sideline reporter Jenn Sterger.
While Favre admits to leaving voicemail messages on Sterger’s phone, he’s refusing to acknowledge any other allegations.
Huffingtonpost.com describes the media circus and NFL flap that are swirling around Favre this way:
On Friday, NFL spokesman Greg Aiello said the league was investigating the situation. NFL Commissioner Roger Goodell said that after its investigation, the league will determine whether Favre violated the personal conduct policy.
Deadspin posted a story on Thursday saying that when Favre played for the Jets, he sent voicemails and photos of his penis to Jenn Sterger, a Jets game hostess at the time. The website also reported that Favre pursued two female massage therapists who worked for the team
Dallas family law attorney Brad LaMorgese offers a quick solution to those who want to avoid a replay of what’s facing Favre right now: Just don’t send.
LaMorgese, who practices at McCurley, Orsinger, McCurley Nelson & Downing, says that high-profile athletes and everyday citizens should treat their texting and e-mailing as if it were public record. Because, through the power of court subpoena, it readily could be.
“Any e-mail can came back and haunt a person by being used as evidence of cruel treatment, or to justify a lopsided property division” in a divorce case, LaMorgese advises. LaMorgese speaks to the danger of social media in a recent YouTube broadcast.
LaMorgese says an offhand text message one day can become irrefutable evidence the next.
November 5, 2010 by Robert Tharp at 1:27:01 pm Police officers shelve Remington 700 rifles
The police department in Portland, Maine, has discontinued its use of Remington 700 rifles following a CNBC special report documenting a long history of safety and design concerns associated with the popular rifle.
The CNBC investigation revealed thousands of customer complaints and featured dramatic video footage by Portland officers showing a rifle firing repeatedly when an officer touched the bolt. The report, “Remington Under Fire: A CNBC Investigation,” also documents how Remington officials have long known of safety problems associated with the rifle’s trigger mechanism, yet resisted recalling the model or implementing design changes that would have corrected the problem.
Writes USA Today, Police Chief James Craig told the Portland Press Herald he was unaware how many other complaints there were until he viewed the CNBC report.
"I don't want to run the risk of having an accidental discharge like this where it puts an officer's or community member's life in danger," Chief Craig told the newspaper. He later confirmed to CNBC that the department's five Remington 700s have been taken out of service.
Product liability attorney Jeff Hightower from Dallas’ Hightower Angelley is featured in the CNBC report, which aired repeatedly in October on CNBC stations. Hightower is a national leader in ongoing legal battles on behalf of those injured and killed by misfires resulting from defective trigger mechanisms in Remington 700 Series Bolt Action Rifles. “I applaud CNBC for bringing this issue to the national stage,” Hightower says. “I’ve seen too many cases where people were injured when the Remington 700 went off without anyone pulling the trigger.”
November 4, 2010 by Dave Moore at 2:52:57 pm When stealing some Z's can cause trouble
As the leading authority in the treatment of sleep apnea and snoring, Texas-based The Snoring Center would love nothing more than to see more of us stealing more Z’s on a regular basis. But the firm believes a rival clinic has taking the stealing Z’s concept too far, wrongly using proprietary information and other trade secrets to open a competing operation.
In a federal lawsuit filed this week in Dallas, The Snoring Center claims that a group of San Francisco businessmen fraudulently obtained its trade secrets, business strategies and financial records, then opened a competing business in California. Texas lawyer calls it "A snoozer of a suit."
At the heart of the suit are efforts to defend the methods, strategies and marketplace developed by The Snoring Center, which was founded by board-certified otolaryngologist Craig Schwimmer to treat snoring and sleep apnea using a minimally invasive, office-based procedure.
“Dr. Craig Schwimmer established The Snoring Center as the first medical practice of its kind in 2004, and now is the recognized leader in the clinical treatment of these potentially serious health conditions,” says attorney Michael Hurst of Gruber Hurst Johansen & Hail, lead counsel for The Snoring Center. “Based on Dr. Schwimmer’s business model and experience, The Snoring Center draws patients from across the United States. Apparently it also draws the interest of those wanting to unlawfully and maliciously capitalize on this success. ”
It’s estimated that 75 million Americans suffer from sleep-disordered breathing. Sleep apnea has been linked to increased blood pressure, heart disease, stroke and other serious health issues.
The suit states that the defendants – including four corporate entities -- inveigled their way into Dr. Schwimmer’s confidence by posing as investors or potential joint venture participants.
The Snoring Center litigation shows that while imitation is said to be the sincerest form of flattery, it can also lead to a hefty law suit.
October 29, 2010 by Robert Tharp at 4:16:10 pm Law enforcement tool, or privacy risk?
Much has been made of LeadsOnline, the Dallas-based company that bills itself as the “nation’s largest online investigation system used to solve crimes.” An article in the current issue of the ABA Journal praises the service, calling it “a tool that about 1,500 municipal police departments in the U.S. are using to help solve property and violent crimes.”
The LeadsOnline database tracks sales from pawn shops and eBay, helping police discover stolen merchandise. The company also monitors scrap metal sales, as well as people buying cold medicines that contain pseudoephedrine, a key component in meth production. Coast to coast, the media is taking notice of the service. Recent articles in the Houston Chronicle, Daytona Beach News-Journal and the Minneapolis Star-Tribune all discuss how LeadsOnline is helping local law enforcement.
While tracking stolen merchandise and other evidence of potential crime is helpful, it does bring rise to a potential slippery slope, says Houston attorney Kinan Romman of Ahmad, Zavitsanos & Anaipakos. Romman, a former software engineer and technology consultant, is quick to point out that new technologies often raise significant privacy concerns.
“This can clearly be an effective crime solving tool, but one has to be concerned about privacy as well,” Romman says. “This private business is selling law enforcement information about cold medicine and eBay purchases in addition to who pawns what. Some great techno ideas can lead to troubles down the road. Just ask Facebook.”
October 29, 2010 by Robert Tharp at 3:37:49 pm While CA considers legalizing pot, Dallas voters fired up over wet-dry vote
Dallas voters may be ho-hum about the local races on Tuesday’s mid-term ballot, particularly the down-ballot races that have received little news coverage. But there’s no shortage of opinions on two ballot proposals related to wide swaths of the city that for generations have outlawed the sale of beer, wine and alcohol in retail stores and restaurants and bars.
The Advocate describes it as “not only the biggest wet-dry election in U.S. history since the end of Prohibition, but it's also a landmark moment in Dallas. Since before Prohibition—for almost 100 years—most of Dallas has been dry in one form or another. It has been as much a part of Dallas as 100-degree days and the Cowboys....
Jerome Prager, a Dallas real estate lawyer who also counsels businesses on the alcohol licensing process, expects large grocery stores in traditionally dry areas will move quickly to begin selling beer and wine, and that could put pressure on wholesalers. “Wholesalers will have increased delivery expenses, and as a result I see prices inching up as those costs are passed along,” he says. Meanwhile, businesses in areas that have traditionally served alcoholic beverages through the cumbersome private club process will be poised to end the complicated paperwork process.
Should either alcohol-related election be successful on Nov. 2, the clock will start ticking almost immediately for businesses interested in taking advantage of new regulations, according to Dewey Brackin of Gardere Wynne Sewell LLP in Austin, who has worked extensively with enforcement, licensing and compliance-related matters within the alcoholic beverage industry. “Businesses will need to apply for and obtain TABC licenses, and that process can take months,” he says. “If an area as large as the city of Dallas becomes ‘wet’ overnight, that delay might be even more significant. Applications will be processed on a first-come basis, so anyone interested in taking advantage in the change in alcohol laws needs to be prepared to file as quickly as possible.”
October 22, 2010 by Robert Tharp at 4:45:49 pm Commentator Juan Williams fired for what he said, can NPR do that?
Slate’s “Explainer” today tackles NPR’s controversial firing of Juan Williams with the provocative headline, “Can NPR Fire Its Commentators Whenever it Wants?” The Slate piece answers the question on everyone’s mind with a resounding “of course.” With the exception of those working union jobs, employers in at-will states can fire workers for any reason other than for protected areas of race, age, gender and religion.
Houston executive employment attorney Joe Ahmad agrees and takes it a step further, explaining that many people have the mistaken idea that the First Amendment applies to the workplace and even off-site situations like the office holiday party. “Even smart people think they have First Amendment rights in the workplace,” Ahmad says. “That’s not true, and what you say can get you in trouble.”
Today’s armchair quarterbacking of NPR’s firing extends to the method apparenty used by NPR to inform Williams that his services were no longer required. According to news reports, Williams was fired during a cell phone conversation and was denied a request for a face-to-face meeting. Ahmad, a shareholder in the law firm of Ahmad Zavitsanos & Anaipakos, says there’s plenty of reasons why this is a bad idea from an employer standpoint, but there’s no legal problem with it. That such a technique was used is also an indication that emotions were likely running high.
“Obviously somebody was incensed,” he says. “But there’s no law saying that you can’t be fired by cell phone or fax.”
October 22, 2010 by Dave Moore at 1:26:18 pm New Web Code Will Shrink Web Surfers’ Privacy
Just as consumers use their desktop computers and PDAs as windows, to expand their knowledge of tthe world, hackers, corporations and investigators are increasingly peering back at them, monitoring where they’re traveling on the Internet. The latest version of the language that helps create Web pages (called HTML 5) will allow for even better tracking, allowing the curious to follow consumers’ every click, says Kinan Romman of Houston’s Ahmad Zavitsanos & Anaipakos.
“From a legal perspective, the new HTML5 will create more evidence,” says Romman, whose practice includes technology-centered cases. “There will be more to look at in civil lawsuits over something like workplace harassment. In criminal cases, prosecutors will have more to comb through on corporate computers looking for proof of fraud.”
The new coding will allow for very advanced tracking, he says. “It won’t be just e-mails they can track, but there could be a lot more stored about what you do on your computer.”
A recent New York Times story described some of the data security intricacies that come with HTML5: Most Web users are familiar with so-called cookies, which make it possible, for example, to log on to Web sites without having to retype user names and passwords, or to keep track of items placed in virtual shopping carts before they are bought.
The new Web language and its additional features present more tracking opportunities because the technology uses a process in which large amounts of data can be collected and stored on the user’s hard drive while online. Because of that process, advertisers and others could, experts say, see weeks or even months of personal data. That could include a user’s location, time zone, photographs, text from blogs, shopping cart contents, e-mails and a history of the Web pages visited.
The new Web language “gives trackers one more bucket to put tracking information into,” said Hakon Wium Lie, the chief technology officer at Opera, a browser company.
While Web page developers are heralding the advent of HTML5 for standardizing Web page construction, the advance comes with a reminder that with nearly all new breakthroughs come intended and unintended consequences.
October 20, 2010 by Robert Tharp at 2:25:26 pm Pharmaceutical litigation attorney Richard Meadow: Meridia's problems shine light on broader issue of FDA oversight
When it comes to quick fixes to complicated problems, sometimes the cure can be worse than the condition. Such is the case with Meridia (known generically as Sibutramine), a weight-loss drug that Abbott Laboratories pulled off the shelves earlier this month after acknowledging the drug’s potential complications.
In September, the Los Angeles Times quoted the editor for the New England Journal of Medicine demanding that the drug be taken off the market because it increases the risk of heart attacks and strokes in some individuals. “Sibutramine doesn’t help people,” journal editor Gregory D. Curfman told the Times. “It doesn’t result in very much weight loss, and it doesn’t improve their clinical condition. On the other side, it carries these risks.”
While the risk Meridia poses to consumers is serious, the product recall underscores a much larger problem, according to Richard D. Meadow, managing attorney of The Lanier law Firm’s New York office, and the leader of the firm’s Pharmaceutical Litigation practice area. Meadow maintains the U.S. system of vetting drugs before they’re released to consumers is flawed. That assessment was reflected by a report that the Institute of Medicine gave to Congress four years ago, the Washington Post reported:
The Institute of Medicine shined an unsparing spotlight on the erosion of public confidence in the Food and Drug Administration, an agency that holds sway over a quarter of the U.S. economy. It represents a watershed moment after two years of controversy related to the safety of some pain relievers and antidepressants. The Institute of Medicine is part of the National Academies, chartered by Congress to advise the government on science and health policy. Its recommendations traditionally carry great weight.
"The FDA is supposed to protect the public from faulty drugs and medical devices, so any influx of money and manpower is welcome,” says Meadow. “It will be a great day when the FDA can keep all dangerous drugs off store shelves."
October 20, 2010 by Robert Tharp at 1:37:32 pm Post Dodd-Frank, corporate whistleblowers gain new respect
Long stymied by anemic protections and disinterested investigators, the corporate whistleblower is poised for a major return to the regulatory stage thanks to the Dodd-Frank Wall Street Reform Act.
As described by Houston white-collar defense attorney Philip Hilder in a Houston Chronicle op-ed, Dodd-Frank creates some very real financial incentives and a streamlined process for whistleblowers to come forward. Hilder has represented several whistleblowers. A former federal prosecutor and founder of Hilder & Associates, he was the lawyer for Sherron Watkins, who nearly got fired from Enron when she reported accounting irregularities to folks above her on the corporate ladder.
Writes Hilder: The Dodd-Frank Act should create a friendlier landscape for corporate whistleblowers since it beefs up the payment to those who reveal real crimes, allows more people to blow the whistle, strengthens the protections against retaliation and doubles the amount someone can recover in a successful retaliation lawsuit.
Among other things, Dodd-Frank broadens the range of financial crimes covered and makes whistleblowers eligible for a 10 to 30 percent bounty for recoveries of more than $1 million. The result, writes Hilder: emboldened employees, lawyers looking to represent them, and employers being more careful.
The promise of a big payout will likely cause a spike in false claims, and Hilder warns that would-be whistleblowers may choose to rush to the SEC with complaints rather than try to address problems internally.
October 13, 2010 by Rhonda Reddick at 11:40:22 am Dallas to Host National Symposium on Alcohol Policy
Few public policy debates can be as potentially contentious as alcohol regulation. At both local and national levels, it’s proven to be a debate as old as our country. Dallas will be ground zero for discussion later this month when nationally known voices on both sides of the issue gather for the Center for Alcohol Policy’s National Law Symposium Oct. 24-26 at The Fairmont Dallas.North Carolina Attorney General Roy Cooper, will provide the keynote speech on the role of states in setting regulation state-by-state, as well as the importance of fighting alcohol abuse. Cooper also serves as President-elect of the National Association of Attorneys General.Other presenters include legal counsel from Mother Against Drunk Driving and the Alcohol Tax and Trade Bureau. Dallas attorney Andy Siegel, head of the Hospitality Section of Shackelford Melton & McKinley, will moderate a session on the role organized religion continues to play in the alcohol regulation debate. Mr. Siegel notes that from the temperance movement to Prohibition and since, no single concern has had the same degree of influence on the alcohol debate as religion. “Any debate on alcohol in this country has always included the religious voice. It does not matter the underlying issue, no decision involving the sale of alcohol is made without hearing the voice of the religious community,” says Mr. Siegel, whose practice includes hotel and restaurant permitting, and structuring and selling alcoholic beverage brands, distributorships and related corporate and commercial deals.
October 7, 2010 by Robert Tharp at 11:42:26 am After “Toyota defense” opens prison doors for Minnesota man, Texas attorney Bob Hilliard to receive Innocence Project honor
For Texas lawyer Bob Hilliard the goal of the typical trial is big-dollar verdict for clients wronged by defective products, negligent manufacturers and trucking companies and a wide assortment of people unwilling to accept responsibility for their negligent actions.
But tonight the Corpus Christi trial attorney will be honored for work of a different sort -- his pro bono defense of the Minnesota man wrongly convicted for his part in a fatal 2006 crash involving his runaway Toyota Camry.
Hilliard and his co-counsel in the case, Brent Schafer, will receive the “Never Forgotten Award” at the Innocence Project’s “Benefit for Innocence” gala tonight in Minneapolis. The award recognizes the countless volunteer time and money the attorneys spent to defend Koua Fong Lee, who was freed from prison by a Minnesota judge this past August.
In June 2006, Lee was driving his Toyota Camry when it accelerated unexpectedly and crashed into another car, killing three people. Lee was convicted of criminal vehicular homicide in October 2007 and sentenced to eight years in prison. As publicity grew around Toyota’s acceleration problems, Lee’s accident was reevaluated. Hilliard and Schafer argued that an inspection of the car found a mechanical defect that would have caused the car to accelerate uncontrollably. Eleven owners of similar Toyota models testified at trial that they experienced the same unintentional acceleration. On August 5, 2010, the judge ordered he be let out of prison.
Erika Applebaum, executive director of the Innocence Project, said in a recent Minneapolis Star-Tribune article that Hilliard and Schafer "came forward to provide…the best face of our justice system, and for that they deserve this award." And in a recent St. Paul Pioneer-Press article, Applebaum said “What Brent and Bob did in this case was nothing short of sensational, and the Innocence Project of Minnesota was gratified to be a part of the defense team."
The editorial board at the Corpus Christi Caller-Times perhaps put it best: “Hilliard served charity and justice by intervening. His actions reflect positively on his profession and its capacity for defending and protecting the innocent.”
October 6, 2010 by Robert Tharp at 1:38:59 pm Climate-change lawyer Roger Aksamit: While SB 1733 aims at climate change, U.S. economy is in crosshairs
Senate Bill 1733 – the so-called Clean Energy Jobs and American Power Act – proposes a series of carrots and sticks to accomplish the goal of reducing this country’s carbon footprint. One of the sticks -- a proposed $80 billion annual tax hike on the U.S. energy industry – threatens to deliver a real wallop to U.S. oil, gas and energy companies, says Thompson & Knight’s Roger Aksamit.
As Harry C. Alford, president and CEO of the National Black Chamber of Commerce, writes in a recent Houston Chronicle oped: The Senate's new energy reform bill will include provisions to hold BP accountable for its carelessness, improve offshore safety standards and strengthen energy efficiency. These are all good things. However, as Sen. Robert Menendez, D-N.J., has stated — and for which the president's budget next year calls — a massive tax hike of up to $80 billion on the entire oil and gas industry is in the works. Several of these new energy taxes are of serious concern to the health of our economy and the future of America's energy security.
Aksamit, who counsels energy industry and other business clients in various financial matters, says the proposed law hefty tax increase could shrink the U.S. share in the global energy market share.
“We continue to rely on a system with a complicated set of rules that places domestic companies and production at a competitive disadvantage compared to the multinationals and state-owned energy producers,” Aksamit says. “Limiting or eliminating the foreign tax credit essentially results in dual taxation of U.S.-based companies. With the elimination of other oil and gas tax incentives, this may meet some short-term revenue goals but the long-term consequences would likely be less investment, production and tax revenues, as well as job losses and higher prices for the U.S. economy.”
September 23, 2010 by Robert Tharp at 1:43:27 pm Houston Judge Consolidates BP Oilspill Derivative Lawsuits Under Dallas Law Firm Goldfarb Branham
Just weeks after the explosion on BP’s Deepwater Horizon rig back in April, insurance industry analysts were already chattering about BP’s potential exposure to shareholder derivative lawsuits. One insurance analyst at that time speculated that BP’s exposure could be significant due to the recent cash payouts in other high-profile derivative lawsuits including the $115 million settlement by AIG executives in 2008 and a $118 million settlement by chip maker Broadcom in 2009.
The Houston Chronicle’s “Fuel Fix” blog reports today that shareholder derivative lawsuits filed in Harris County are moving along and were consolidated last week by Harris County District Judge William Burke Jr., who also appointed Dallas-based law firm Goldfarb Branham as sole lead counsel in these cases.
Reports “Fuel Fix”: In the lawsuit, shareholders allege that BP’s board and officers, including outgoing CEO Tony Hayward, “repeatedly violated the law, breached fiduciary duty, abused control, and mismanaged and wasted corporate assets, culminating with the April 20 explosion on the Deepwater Horizon oil rig.” This includes other incidents like the deadly 2005 BP Texas City refinery accident and a pipeline spill from equipment managed by BP on Alaska’s North Slope.
Hamilton Lindley of Goldfarb Branham argues the cases should be heard in Harris County since it’s “where this wrongdoing occurred. BP holds most of its assets in Harris County, the [incoming] CEO resides here, and it is where most of the company’s workers are employed. Harris County is where the decisions were made and Harris County is where these shareholders, standing in the shoes of the corporation, want to hold the board accountable for their actions.”
September 15, 2010 by Robert Tharp at 1:52:23 pm Following Colgan Air Crash, FAA Considers More Down Time for Pilots
Dallas aviation attorney and licensed pilot Wil Angelley says proposed regulations that give a nine-hour rest period to pilots – a one-hour increase from before – are a good start. The Federal Aviation Administration has suggested the changes following the February 2009 crash of Colgan Air 3407 near Buffalo, N.Y., which killed all 49 people aboard. In that instance, federal investigators concluded the two pilots might have been impaired by fatigue.
The new regulations also would:
“What that (previous eight-hour rest period) gives you is eight hours of off time,” Angelley, a former Navy helicopter pilot, told KXAS-TV NBC 5 reporter Julie Tam. “During those eight hours, a pilot has to drive home, go to a hotel, get dinner, and take care of personal administrative stuff.”
Watch the story here.
The additional hour will give pilots more time to rest, he said. “Under existing rules, a pilot may or may not get eight hours of sleep a night.”
Angelley, who practices at the Dallas law firm Hightower Angelley LLP, told the Fort Worth Star-Telegram that the FAA should have amended its rules a few years ago. The proposed regulations will be open for a 60-day comment period before they’re adopted.
September 9, 2010 by Robert Tharp at 3:45:45 pm Gardere lawyers’ amicus brief advises Supreme Court that climate-change policy should be left to politicians, not courts
Just days after the Obama Administration shocked many climate-change litigation observers by siding with a group of corporate defendants in a closely watched public nuisance/global warming lawsuit, respected Gardere environmental lawyers Richard O. Faulk and John S. Gray have joined in, filing an amicus brief that supplies additional ammunition for the U.S. Supreme Court to vacate a controversial lower court’s ruling that threatens to have enormous impact on businesses that produce carbon dioxide.As widely reported, the U.S. Solicitor General filed an amicus brief asking the Supreme Court to vacate the Second Circuit’s ruling in AEP v. Connecticut, which sided with a group of state attorneys general and affirmed the right for states to sue carbon dioxide emitters under a common law theory of nuisance. At issue is whether climate change matters are issues for the political process or the courts. In their amicus brief, which can be found here, Faulk and Gray argue that the courts are ill-equipped to handle such planetary controversies.This is not uncharted territory for Faulk and Gray, who have two other amicus briefs pending in cases under consideration by the 5th and 9th U.S. Circuit Courts of Appeal. In 2008, a Michigan State Law Review article they wrote relating to public nuisance case before the Rhode Island Supreme Court was cited four different times in the Supreme Court’s ruling rejecting the plaintiffs’ claims.
September 9, 2010 by Robert Tharp at 11:22:03 am Dateline NBC revisits $1 million Texas Lottery fraud case
It’s hard to imagine a $1 million Texas Lottery jackpot win going to a nicer man than Willis Willis. Just look at his actions since he discovered that a Texas Lottery agent stole his winning jackpot and fled to Nepal – he’s been the definition of class and grace throughout the ordeal. More than a year after Mr. Willis’ winning ticket was stolen by a Grand Prairie convenience store clerk, and while efforts to reclaim his full winnings from the Texas Lottery Commission are still pending, Dateline NBC highlighted his story as part of a nationwide investigation into fraud and theft within state lotteries.
Check out the full story here.
The segment details how Lottery Texas officials have ignored their own investigators’ conclusions that Mr. Willis purchased the winning ticket, and so far have refused to give him his money.
Attorneys Randy Howry and Sean Breen of the Austin-based law firm, HowryBreen, are working closely with Mr. Willis to ensure that he receives his rightful winnings. The firm already has helped Mr. Willis recover a portion of his stolen money, and efforts to recoup the full amount and improve the Texas Lottery’s accountability for all players are ongoing.
September 7, 2010 by Alan Bentrup at 2:07:48 pm Hip Replacement Recall Causes More Pain for Implant Recipients
Johnson & Johnson recently recalled two hip replacement implant devices, following closely on a study showing one in eight implant recipients required surgery to repair complications caused by the implants. According to a recent Associated Press article:
“Within five years, one in eight patients needed a revision surgery. That's required when an artificial joint doesn't fit perfectly, causing pain and difficulty walking.”
The recalled implants are the ASR Hip Resurfacing System and the ASR XL Acetabular System, both of which have long been criticized by surgeons. According to a March 2010 article from The New York Times: The director of an implant database in Australia, Dr. Stephen Graves, said the data had shown for some time that the ASR had been failing early at a significantly higher rate than some competitors’ devices… “It is way too late,” Dr. Graves said.
The culprit is metal-on-metal contact in the implants, which can cause problems when metal shavings get in to surrounding tissue, says Los Angeles attorney Dana Taschner of The Lanier Law Firm, who has handled hip implant cases for more than a decade. “The real tragedy is that patients now face a second surgery that will be more painful, more expensive and more debilitating than the original procedure,” says Taschner.
In 2001, attorneys from The Lanier Law Firm helped hundreds of implant recipients who faced a second, “explant” surgery to remove defective Inter-Op brand hip replacement units sold by Sulzer Orthopedics. The Sulzer recall resulted in a nationwide settlement of $1.2 billion for patients. The firm provides up-to-date information for patients at www.recalledhip.com.
More than 93,000 patients purchased the two implants before the company stopped production last year. Johnson & Johnson recorded worldwide sales of nearly $62 billion in 2009, with its DePuy unit accounting for more than $5 billion. In a recent interview with the Associated Press, J&J CEO Bill Weldon said “"We've learned a lot of lessons. They've been very painful."
I’m guessing those lessons aren’t as painful as the explant surgeries that thousands of patients are now facing.
September 3, 2010 by Robert Tharp at 1:57:29 pm Struggling Economy Bringing Increase in Commercial Lease Disputes
Commercial landlords are turning up the heat in financial disputes with tenants as the tight economy places an even greater premium on available capital. As a result, many of the disagreements and misunderstandings between landlords and tenants are now ending up in courtrooms.
In Dallas, Goodyear Tire & Rubber Co. is facing a federal lawsuit filed by the owners of a shopping center who claim the automotive repair giant released toxic chemicals at a leased space used as a service center. The owners of the Montfort Square Shopping Center say Goodyear should be responsible for the costs to clean up the site. The Goodyear service center was in operation for 25 years before closing in 2008, and the property owners say they were left with a piece of land tainted by petroleum hydrocarbons, metals, chlorinated solvents and other toxic substances.
Commercial litigation specialist Michael Hurst from Dallas’ Gruber Hurst Johansen & Hail tells the Dallas Business Journal in a recent article that landlords increasingly are battling both the bad economy and their own tenants at the same time.
“You’re seeing a lot more aggressiveness from landlords as it relates to recovering monies from tenants, and you’re also seeing landlords having a tougher time mitigating or covering their damages by filling their lease space up with a replacement tenant,” Hurst tells the publication.
While most landlord/tenant disputes center on unpaid rent, many property owners are focusing on collateral claims like the environmental damage allegations in the Goodyear case. Environmental attorney Cindy Bishop from Gardere Wynne Sewell in Dallas tells the newspaper that disputes over environmental contamination at auto repair facilities are relatively common, but typically are worked out between the parties before a lawsuit is filed.
With the economic turnaround still on its way, we may see even more lawsuits than settlements when it comes to commercial landlords and their tenants.
September 2, 2010 by Robert Tharp at 2:33:06 pm Dodd-Frank Postpartum: Conflict/Transparency Concerns For Energy Companies Working With Foreign Governments
The recently passed financial reform bill contains a “transparency” provision with disclosure requirements that could place energy companies in a considerable bind. In an effort to reduce the possibility of corruption, the late addition to the Dodd-Frank Act requires all SEC-registered corporations to disclose how much they pay foreign governments for oil, gas and mineral rights.
“Many foreign governments mandate that the terms of these agreements be kept confidential, so forcing the disclosure of this information could cause these companies to violate the terms of their contracts,” says Andrew Derman, leader of the International Energy Practice Group at Thompson & Knight. According to environmental organization EarthRights International, which supported the provision, the requirement will cover the majority of the top 15 international oil and gas companies as ranked by Fortune magazine based on total revenues. Together, these listed companies accounted for more than $2.2 trillion dollars in revenues and close to $200 billion in profits. “While some contracts with foreign governments contain exceptions that allow the disclosure of certain confidential information, it’s unclear how the SEC may interpret the limits of that disclosure,” Derman says.
The SEC is now moving forward with a rulemaking and a public comment period before the requirements take effect; a process that could take up to a year. Once disclosure rules are in place, covered companies would begin disclosures in their annual reports on an ongoing basis.
August 31, 2010 by Amy Boardman Hunt at 3:30:36 pm The question facing women lawyers: money or balance?
So, is the biggest problem facing women lawyers the fact that they earn, on average, tens of thousands of dollars less than their male colleagues, or is it that their work hours are so brutal that they leave the profession? Both are serious problems, writes Dallas lawyer Kathleen Wu in this week’s Texas Lawyer, and one of the best ways to address both of them is for firms to get serious about offering flex-time.
I realize the disconnect: How will women ever close the pay gap if firms offer flextime policies, which allow women to downshift their careers temporarily and thereby get paid less but have more time off? The answer is simple: Because one of the main reasons the pay gap exists — lack of diversity on compensation committees — won't ever get resolved if women keep leaving the profession before they're senior enough to get on to those committees.
According to a recent study released by the Project for Attorney Retention, "New Millennium, Same Glass Ceiling? The Impact of Law Firm Compensation Systems on Women," women partners earn dramatically less than their male counterparts, with equity partners averaging $66,000 less and income partners averaging $25,000 less.
While some of the disparity was attributed to origination credit policies (which gives the “originating” attorney a larger share of the fees earned by a particular client), one of the main reasons cited for the pay gap was a lack of women on compensation committees. More than half of the firms surveyed by PAR have one or no women on the compensation committee.
But if firms allow women to downshift and work more manageable hours, those lawyers stay on track. They maintain their contacts, they stay on top of the law and they don't disappear into the void that so many women find themselves in when they step off the treadmill altogether. Yes, lawyers need to address the pay gap. It's enraging and should be remedied. But the legal profession can't do that by putting work-life policies on the back-burner. Only by keeping women in the work force — even if it's not at 100 percent — will there be enough of us in a position to make sure the rest of us are paid what we're worth.
August 30, 2010 by Robert Tharp at 4:11:47 pm Auditor of failed Parkcentral hedge fund now facing fraud lawsuit
After seeing their $16 million investment in a Plano, Texas-based hedge fund vaporize in less than 90 days, stunned investors turned to Houston’s Ahmad, Zavitsanos & Anaipakos for answers.
Last week, Ahmad, Zavitsanos & Anaipakos lawyers Demetrios Anaipakos and Amir H. Alavi sued Ernst & Young for its role in the spectacular implosion of the Parkcentral Global hedge fund. The lawsuit claims that Ernst & Young falsely represented that it had fairly audited Parkcentral Global and failed in its “watchdog” role to warn relying investors of the risk of fraud and noncompliance by management, among other things.
The lawsuit focuses on two funds sold by Plano’s Parkcentral Global and was filed on behalf of Houston financial consultant Gus H. Comiskey and four Tucson, Ariz.-based entities, including the Thomas R. Brown Family Private Foundation. The now-defunct Parkcentral Global was operated by affiliates of billionaire and former presidential candidate H. Ross Perot before closing its doors after the bottom fell out of the securities market and credit froze in November 2008, losing more than $2.6 billion in a matter of days.
Earlier this month, Brown Investment Management, L.P., one of the plaintiffs in this suit against Ernst & Young, won a Delaware Supreme Court ruling that requires Parkcentral Global to disclose its former investors. Those investors could be added to the new Houston lawsuit. “Our clients were told that an investment in Parkcentral was designed to preserve capital,” Mr. Anaipakos says. “Instead, they lost every penny in record time. E&Y was supposed to be auditing Parkcentral, but the audited financial statements never once warned Parkcentral’s investors of their impending doom.”
August 27, 2010 by Robert Tharp at 4:02:11 pm In the TruTV studio: Barry Sorrels talks courtroom x’s and o’s of the Javon Walker trial
Not only has Dallas defense attorney Barry Sorrels slugged it out in more than 300 state and federal trials on both sides of the aisle. The Ivy League gridiron star with the syrupy Texas drawl has over the years become a sought-after legal analyst at the local and national level. Earlier this month, Barry was in the TruTV’s New York studios to discuss the day’s testimony in the Javon Walker robbery and kidnapping trial.
August 26, 2010 by Rhonda Reddick at 1:52:03 pm Century 21 franchisees win round, proceed to class-action status against Cendant
For eight long years, a group of Century 21 franchisees has soldiered on in litigation against Century 21 owner Cendant (now known as Realogy) over the proper use of more than $40 million in annual contributions to a trust for the benefit of franchisees and the withholding of services required in the franchise agreements. These individual Century 21 real estate offices point to franchise agreements that require revenue from a so-called National Advertising Fund to be used for marketing for the benefit of Century 21 franchisees. According to court documents, Cendant has instead diverted the funds for its own benefit and the benefit of Century 21’s competitors, including Coldwell Banker and ERA, both wholly owned by Cendant.Newly released court transcripts indicate that Century 21 real estate franchisees might have clear cause to recoup some of their money via a class-action lawsuit against Cendant, which bought Century 21 back in 1995. In an August 17 ruling from the bench, New Jersey Superior Court Judge Robert Brennan indicated that the Century 21 franchises have an interest in ensuring that Cendant abides by the franchise agreement. Importantly, the Plaintiffs in this case do not seek to change the franchise agreement, they simply want Cendant to abide by the terms of the agreement and to deliver the full panoply of benefits that it undertook to supply. No former franchisee has disavowed this goal.Brennan added that the lawyers at Zwerling, Schachter & Zwerling LLP argued successfully for a class-action suit because they proved that all Century 21 franchisees were impacted by Cendant’s actions. The sheer number of potential plaintiffs – more than 1,000 – also helped qualify the matter for class-action status, he said. Before it’s over, the class-action suit could include more than 4,000 individuals who held Century 21 franchises between 1995 and 2002."Class certification is a difficult hurdle to overcome," plaintiffs’ attorney Robert S. Schachter of Zwerling Schachter & Zwerling LLP told Law360. "You have to show why and how it's necessary, which we did. The judge found that we overcame that burden."In 1995, former Century 21 CEO Richard J. Loughlin told the Orange County Register that Cendant’s purchase would have little impact on Century 21. The newspaper also quoted one franchisee saying that she hoped the purchase might mean more money to promulgate more sales.But the lawsuit, which was filed in 2002, contends the opposite happened: that following the purchase, Cendant started using money from the National Advertising Fund to promote its other holdings, which included Century 21 competitors Coldwell Banker and ERA. Cendant also cut the Century 21 support staff from about 5,000 workers to fewer than 300 and trimmed Century 21’s salesperson training and recruiting programs as well, the suit maintains. At the time of the purchase, Cendant was known as Hospitality Franchise Systems Inc.
August 25, 2010 by Robert Tharp at 11:11:59 am Important ruling in Arab Bank terrorism funding case part of spiritual journey for Dallas attorney Mark Werbner
A recent ruling by U.S. District Court Judge Nina Gershon might be a major break in the case against Arab Bank, which plaintiffs claim is funding global terrorism. But to Dallas lawyer Mark Werbner, it’s one more step in an extended spiritual journey.
Werbner, co-founder of Sayles Werbner, is one of the lawyers representing plaintiffs in claims that Arab Bank has helped fund Hamas and other terrorist organizations in their attacks. About 200 plaintiffs – including 50 U.S. families – have signed on to the suit, which seeks $1 billion in damages from the bank.
D Magazine detailed how the case became a personal quest for Werbner: Werbner shifted from secular lawyer to Zionist activist in 1984, when he and his wife took a trip abroad with a group of Dallas Jews. Visiting Auschwitz, they saw the shower rooms where Jews were gassed; the ovens where their remains were burned; the shoes, eyeglasses, and luggage left behind. For Werbner, it was all suddenly much more than the history books. And from these camps, the group traveled to Israel.
This juxtaposition—"coming from the ashes of the crematorium to the steps of the parliament in Israel," says Cheryl Pollman—was transformative. After returning to Dallas, they joined just about every Jewish service organization in town. "It was like I had what I considered to be a fairly boring, average life,” says Werbner. “Suddenly I saw I had this great treasure of things that offered purpose, challenge, and adventure."
The protracted litigation – which began in 2004 -- has tested both Werbner’s resolve and previous legal boundaries. The case is among the first to apply new provisions of the Anti-Terrorist Act, passed by Congress in 2001, in part to prevent the secret bank financing of international terrorism. Through the course of litigation, Arab Bank has steadily resisted the discovery efforts of the plaintiffs, many of whom have lost loved ones or been wounded themselves by terrorist attacks in Israel. The ruling from the Eastern DIstrict of New York instructed the jury that based on Arab Bank's resistence to producing discovery material requested by the plaintiffs, they may infer from that Arab Bank processed and distributed payments to terrorists on behalf of the Saudi Committee to Support the Intifada Al Quds.
"This ruling is an important turning point in this long-running terror financing case," says Mr. Werbner, lead counsel for many of the victims. "It clears the way for a jury trial in Brooklyn and represents a landmark ruling for Americans injured or killed by international terrorism."
The instructions have given new fire for Werbner’s fight on behalf of terror victims. And likely they have strengthened Werbner’s faith in both his cause and his case.
August 23, 2010 by Robert Tharp at 4:02:28 pm Anything you say can and will be held against you…
Potential defendants in the BP oil spill prosecutions—and that list could be very long indeed—need to do two things: 1) keep their mouths shut and 2) settle in for a long, hard fight with the feds. This advice comes courtesy of Houston criminal defense attorney Dan Cogdell, of Cogdell & Ardoin, in an Aug. 22 editorial in the Houston Chronicle.
Cogdell’s editorial came out the day before federal prosecutors gather ammunition at the U.S. Coast Guard and the Interior Department's Bureau of Ocean Energy Management, Regulation and Enforcement hearings on the BP disaster. The hearings began today in Houston.
Cogdell, who has represented numerous clients in environmental and white-collar criminal cases, admits that staying silent may seem uncooperative, but it will be “the smartest path.” The federal government is preparing its BP prosecutions across a variety of fronts, including the Clean Water Act, the Refuse Act, and the Migratory Bird Treaty Act—and they won’t just be seeking slaps on the wrist, Cogdell says.
First, the government will rely on the "Responsible Corporate Officer Doctrine," which allows Clean Water Act violations to be directed at even top corporate officers. Prosecutions under this theory have resulted in convictions of people who were not even at work sites and, in one case, a person not even working for a company but who had "honorary power." The Responsible Corporate Officer Doctrine may be the prosecutor's ticket to tag BP's hierarchical elite while soothing the related political nightmare currently facing the U.S. government.
With such threats looming, employees of BP and other companies involved “must balance the idea of seeing justice done with protecting themselves and their employer. Taking the Fifth at this point may be the least popular but most prudent move,” Cogdell writes.
Defendants have two other things working against them, Cogdell writes. First, to secure a misdemeanor Clean Water Act violation, the government doesn’t have to prove intentional harm. It only needs to show that employees were negligent and failed to provide the proper care to avoid an accident—a much lower bar for prosecutors. Second, “this is not BP's first rodeo,” according to Cogdell.
A company culture that prosecutors contend encourages money-saving over safety has landed BP in the government's sights time and time again, and will only bolster the efforts of Howard Stewart, the formidable top prosecutor on the BP spill.
August 18, 2010 by Robert Tharp at 2:14:44 pm Delaware Supreme Court ruling: investors in failed hedge fund gain important transparency
Houston law firm Ahmad, Zavitsanos & Anaipakos have earned a significant court ruling that helps lift a veil of secrecy that has allowed hedge funds to avoid disclosing the identities of their investors. In its August 12 ruling, the Delaware Supreme Court rejected the idea that federal law keeps investors who suffered hedge fund losses from learning who else might be interested in joining an investigation or a lawsuit against fund managers or third parties like auditors.
The ruling from Delaware’s highest civil court stems from a case involving Brown Investment Management, L.P., a limited partner that invested in Plano, Texas-based hedge fund, Parkcentral Global. In less than 90 days, Brown Investment Management lost all of its investment in the hedge fund. Parkcentral Global is now a liquidated hedge fund run by affiliates of billionaire and former presidential candidate H. Ross Perot. Court documents show Parkcentral Global’s loses at approximately $2.6 billion.
“Hedge funds exploded in the last decade because pooled investments provide a largely unregulated way for hedge fund managers to make money for themselves. This ruling helps those who lost money in poorly-managed funds to find other investors and join together to take legal action,” says attorney Amir H. Alavi, with Ahmad, Zavitsanos & Anaipakos who tried the case for Brown Investment Management. “Hedge funds where managers lacked diligence and proper risk analysis can no longer use divide-and-conquer tactics to avoid responsibility for losses.”
August 18, 2010 by Rhonda Reddick at 10:20:17 am In Gardere’s Managing Partner Search, Good’s Best
Much has changed in the legal world since Steve Good began his first term as Gardere’s managing partner back in 2000. Under Good’s leadership the firm doubled its profits, expanded its expertise and added new offices, among other things.Facing a term limit that would have prevented Good from serving a third term as managing partner, Gardere’s Management Committee realized that a shake-up at the top was unnecessary and voted instead to waive the partnership agreement in his case and allow him to serve another term. The popular Mr. Good will now continue as managing partner until 2017.The decision to extend his term was an “overall vote of confidence” in the work Mr. Good has done since becoming Managing Partner, according to committee member Eric Blumrosen. Gardere has seen its profits more than double under Mr. Good's leadership. In that same period, the firm also went from three offices to four as he was instrumental in adding the Austin office which provides legislative and regulatory services. The firm also has offices in Dallas, Houston and Mexico City. "In this job, you want to look around at the end of the day and see success not only for your clients, but also for your fellow lawyers and employees,” says Mr. Good, who also maintains an active tax practice at Gardere.
August 17, 2010 by Robert Tharp at 2:53:38 pm Rights and Wrongs: On-Campus Cell Phone Search Angers Father
An Irving, Texas, high school student wasn’t at all happy when school administrators confiscated her cell phone recently and read through her text messages. Now, Madelyn Beaird’s father is demanding $7.5 million in damages because, he says, the school violated his daughter’s constitutional rights.
"The sender of text messages to the recipient enjoys an expectation of privacy," said John Beaird. "Probable cause is not just a hunch."
Mr. Beaird spoke to The Dallas Morning News, which reported that he also asked that the school fire individual administrators who were involved in the search. But attorney Tom Brandt of Fanning Harper Martinson Brandt & Kutchin in Dallas, who represents school districts, other public entities, and businesses, says it’s not always that clear-cut. In fact, he tells FOX 4 News reporter Peter Daut that schools often struggle to find the balance between students’ rights and other concerns:
“The students’ rights to privacy usually give way to the concerns for public safety,” Brandt said. “The case law decisions that have been made in the past don’t necessarily address directly text messaging or Facebook or whatever it might be.”
You can view the FOX 4 News story in its entirety here.
The school, MacArthur High School, released a statement saying it was working in the interests of all students. Administrators say they were investigating reports of possible criminal activity, including the keying of two cars and the possibility that someone brought a gun onto the campus. The Irving ISD School Board later found the search was proper; Mr. Beaird indicates he will file suit.
August 13, 2010 by Robert Tharp at 3:33:23 pm Exonerated by “Toyota Defense,” Minnesota Man Freed From Prison
Minnesota resident Koua Fong Lee is now a free man.
Lee walked out of prison this week following court hearings that focused on concerns that a cruise control problem in the Toyota Camry he was driving caused a 2006 crash that killed three people. Lee has been serving an eight-year prison sentence after a jury determined that he was to blame for causing the crash. Based on new testimony related to widespread problems with the Camry's cruise control system, Lee was granted a new trial. Prosecutors later indicated that they wouldn’t seek a new trial.
In June 2006, Mr. Lee was driving his Toyota Camry when it unexpectedly accelerated before crashing into another car and killing Javis Adams, 33, his son Javis Adams Jr., 10, and his niece Devyn Bolton, 7. Mr. Lee was convicted of criminal vehicular homicide in October 2007 and sentenced to eight years in prison. A fourth person in the car, Quincy Adams, recently told a Minnesota TV station that he felt joy when he heard Lee had been released.
Attorneys Bob Hilliard from the Corpus Christi, Texas-based law firm of Hilliard Muńoz Gonzales LLP and Brent Schafer of Minneapolis’ Schafer Law Firm, P.A. argued in court that an inspection of Lee’s car found a cable actuator in the cruise control mechanism stuck in the open position, which would have caused the car to accelerate uncontrollably.
Hilliard and Schafer warned that the deadly defect remains in older, non-recalled Toyotas. In fact, 11 owners of similar Toyota models testified at the hearing that they have experienced the same sudden, unintentional acceleration in their cars. Mr. Hilliard says prosecutors in at least three states are reevaluating cases of fatal accidents involving older Toyotas, and that the “Toyota Defense” used in Mr. Lee’s trial could help in those cases.
In a recent interview with Minnesota Public Radio, Hilliard said:
"I know there is at least one fellow in Oregon who's serving time whose lawyers have contacted me to take a look at his Toyota. He claimed that he was with his daughter in the middle of the day and it took off on him and there was a fatality. I know the prosecutor in Florida and perhaps California is considering charges and is reevaluating charges for two different individuals because they were driving Toyotas."
August 12, 2010 by Robert Tharp at 4:24:04 pm Wherein appellate attorney Ryan Clinton takes on City Hall in fight for no-kill animal shelters
As an attorney focusing on appellate law, you could say that Ryan Clinton knows a thing or two about taking in stray cases; over time, he’s learned that, with proper care, no case is hopeless.
Outside his Austin law offices at Hankinson Levinger, Clinton enjoys equally high esteem for his passionate work to improve conditions for stray animals in our nation’s animal shelters, and he has become a national voice in the cause of saving homeless pets. In a speech last month at the 2010 No-Kill Conference in Washington, D.C., Clinton delivered a detailed description of efforts by FixAustin.org to improve conditions and practices at the city of Austin’s animal shelter.
As reported by the San Francisco Chronicle: Clinton and other Austin animal lovers banded together as FixAustin.org and vowed to change things for the city's animals. At first, they had no luck. "No one wanted to even talk about improving things," he said. Not only were the head of animal control and even the large private animal organizations hostile, but "the City Council wasn't interested; it was like talking to a brick wall."
This is the point when a lot of animal lovers give up. After all, if the local government doesn't care, and the animal welfare groups don't care, and the shelter director doesn't care, what can you do?
But Clinton and other members of the FixAustin.org nonprofit went to battle. The result, so far, has been a reduction in shelter animals killed in Austin from about 50 percent to about 29 percent. The goal is to save the lives of at least 90 percent of the city’s shelter animals.
Last December, Clinton received the Henry Bergh Leadership Award, which salutes individuals for their animal-welfare efforts. (Clinton was one of five recipients of that award in 2009.) As a result of Clinton’s work, members of Austin City Council voted unanimously to direct the city manager to formulate a plan for Austin to implement no-kill policies and procedures.
While Clinton’s advice was definitely pertinent to animal lovers, it was extremely applicable to anyone who would like to work within the system (READ: an uncooperative bureaucracy) to improve a community’s quality of life, including:
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