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Androvett Blog

by Robert Tharp at 2:41:35 pm

The Chicago Tribune reports that even by colorful Chicago criminal court standards, former Illinois governor Rod Blagojovich and his defense team schooled in what the Trib describes as a “razzle-dazzle legal style of Chicago's Criminal Courts Building” are taking things to a new level outside the courtroom. Writes the Tribune: Blagojevich has been on a barnstorming publicity blitz ever since his 2008 arrest and subsequent ouster from office, and prosecutors have raised hardly a peep as they likely kept a close look out for potentially incriminating statements he might utter on talk shows and "The Celebrity Apprentice." Now the former Illinois governor is a criminal defendant, but in many ways he continues to act more like a candidate for public office rather than a candidate for a long prison term.

Blogo's tongue wagging outside the courtroom finally led prosecutors to seek a gag order, a move that was ultimately denied by U.S. District Judge James Zagel. Facing hours of incriminating wiretap recordings and a list of co-defendants turned witnesses in his high-profile public corruption trial under way in Chicago, attorney Renee Skinner says one of Blagojevich’s central weapons will be his legal team’s ability to connect with the carefully chosen jurors who will ultimately decide his case. “Jury selection is an enormously important part of any trial,” says Skinner, of Fish & Richardson in Dallas, who frequently conducts mock trials, jury research and witness preparation in advance of trials. “Before trial testimony even begins, cases can be won and lost in the selection of jurors. And once a trial is under way, successful lawyers know that that connecting with jurors is the number one goal.”

by Robert Tharp at 11:07:44 am

Ah, summertime…roadtrips, blistering heat and tire blowouts. Despite all of their techological advances summer heat still does a doozie on tires, something that’s already become devastatingly clear this summer, when car crashes caused by blowouts claimed the lives of people in two separate California incidents. The Minneapolis Star-Tribune notes: Tires can fail during periods of excessive heat. Due to increased friction, high-speed driving, excessive cornering and frequent braking during periods of very high temperatures can cause the tire to heat up beyond their design ratings. Once this happens, a blowout can occur.

The consumer website Angie’s List recently asked its auto experts for advice on tire safety. Among the experts’ tips are maintaining proper pressure and routinely rotating tires. Houston attorney Wesley Todd Ball of Houston’s Farrar & Ball LLP offers some additional advice aimed at keeping drivers and passengers safe. “Before any long trip, perform a detailed inspection of each of your tires, including the spare,” says Ball, who recently won a $32.8 million verdict in a tire failure lawsuit.

“Look the tire over and run your hands along the tread, checking for foreign objects, separations or bulges, which are evidence of a failure sure to come,” says Ball. “And use the top of a penny to inspect for proper tread depth. If part of Lincoln’s head is covered, your tread depth is good.”

by Robert Tharp at 10:06:51 am

For a Supreme Court nominee who failed to win Senate confirmation more than two decades ago, Robert Bork has managed to have a profound and lasting impact on the Court and its makeup. Who knew back in 1987 that Bork’s contentious hearing and failed confirmation would mark such a turning point for the way justices are nominated and the kind of candidate who rises to the top? 

Ryan Clinton, a former Assistant Solicitor General for the State of Texas and an appellate attorney with Dallas’ Hankinson Levinger, says Bork left a long list of teaching moments for presidents and nominees alike. Nominees learned that candid and controversial comments would not be rewarded during the confirmation process. Presidents learned to select nominees with little or no paper trails that might otherwise shed some light on their viewpoints.

Post Bork, nominees have sought to avoid showing their cards on specific issues by falling back on the mantra that they cannot comment on particular issues or past Supreme Court cases because those matters might one day come back before the court. Clinton says he expects to see the same strategy from Kagan.

“As with all nominees since Robert Bork, the Senators questioning her will attempt to pin her down on some of the more controversial matters that come before the High Court, but Kagan will do her best to dodge those attempts,” Clinton says. “Barring some unforeseen revelation or meltdown, however, she will most likely be confirmed — as have all Supreme Court nominees who have reached this point, with the notable exception of Judge Bork.”

Kagan has been thoroughly vetted, and thanks to the Internet, just about everything she has written or said about anything has been unearthed, Mr. Clinton says. “The biggest chink in her armor is the fact that she doesn’t have judicial experience,” he says. “But you could do much worse than a U.S. Solicitor General, a former Harvard Law School dean, a former clerk to Thurgood Marshall, and a high-ranking official in the White House.”

by Robert Tharp at 9:22:00 am

It’s hard not to covet the iPhone, a device that has almost single handedly changed the way we think about smartphones, not to mention the fundamental ways we now communicate. Now, improvements like true multitasking unveiled in the iPhone 4 released this week raise the bar even higher in terms of form and function.

But PC Magazine raises this interesting question: Did Apple designers trade safety for functionality by placing the antennae on the outside of the device in order to enlarge the phone’s battery? The magazine explains:

Over time, cell phone antennas have migrated to the bottom of the phone, to minimize the SAR (specific absorption rate) of radiation that a phone produces, and is absorbed by the head. No study has ever conclusively found – or ruled out – that SAR and cancers are not connected, and the Federal Communications Commission requires phones to be tested and the results published. San Francisco recently became the first city in the nation to propose that SAR data be published alongside the phone.

The Apple iPhone 4 produces  a maximum of 1.17 mW/g of SAR radiation at the ear, more than the iPhone 3GS and original iPhone, but less than the 3G, at 1.38 mW/g. Moving the antenna closer to the ear was "unfortunate," said Spencer Webb, president of AntennaSys, an independent antenna consultant and designer for mobile and other products. "And that's the best I can say."

Papool Chaudhari of Reyes Bartolomei Browne, a lawyer representing an inventor of a technology designed to minimize cell-phone radiation, went further. "I think Apple chose to sacrifice safety for better call reception," Chaudhari said in a statement. "By placing the antenna outside the housing, Apple hopes to solve the dropped-calls problem, but at what cost?"

NY Times columnist Maureen Dowd weighed in over the weekend, wondering whether some day we'll view cell phone health risks the same way we think of cigarettes today. We don’t yet really know the physical and psychological impact of being slaves to technology. We just know that technology is a narcotic. We’re living in the cloud, in a force field, so afraid of being disconnected and plunged into a world of silence and stillness that even if scientists told us our computers would make our arms fall off, we’d probably keep typing.

Chaudhari, who is involved in two patent infringement actions against 10 manufacturers, including Sony, Samsung and Nokia, notes that many have complained about dropped calls on earlier versions of the iPhone and says that Apple's decision to move the new phone's antenna outside the casing means the iPhone 4 emits more radiation near users' heads than does the previous 3GS.

by Robert Tharp at 3:34:13 pm

When it comes to the oil-and-water relationship between two of Dallas' most prominent billionaires, the newspaper headlines say a lot. Consider:

In the latest salvo this week, Dallas Mavericks' majority owner Mark Cuban's legal team lobbed a strong response to Ross Perot Jr.'s May 2010 lawsuit, which attacked Cuban's business leadership of the team and alleged that the Mavericks are insolvent.The counterclaim in a nutshell: Cuban, consistently ranked among the best owners in the NBA, says Perot is trying to offset his more than $100 million in high-profile real estate failures. Last year, Perot suffered the embarrassment of having to forfeit his stake in the 75-acre flagship Victory Park mixed-use real estate project.'s SportsMoney blog took a look at the countersuit and opined this week that it "strongly suggests not only that Perot's suit will be dismissed but that he knows as little about the NBA today as he did when he ran the Mavericks."

Cuban's countersuit is the kind aggressive all-in response we've come to expect not only from Cuban but also from Fish & Richardson's managing principal Tom Melsheimer, who is leading the charge along with M. Brett Johnson and John Sanders. The counterclaim bore another distinctive Tom Melsheimer stamp: sure it's a bulletproof piece of commercial litigation, but it also features some real zingers in plain English that turn the screws and underscore the nature of Perot's business relationship with Cuban.

Here are some of our favorites:

  • "His couch cushions having been turned over, Perot now wrongly looks to Cuban and the Mavericks as a remedy for his financial distress."
  •  "Perot's management of the Victory Park development turned out to be worse than his management of the Mavericks in the 1990s."
  •  "Perot's entities have proven that they rarely overlook the opportunity to make a buck, even at the expense of their partners."

It's one thing to file a complete and thorough legal argument within the four corners of a document - every lawyer knows that that's a prerequisite. But it's another thing entirely to communicate it in a way that's easy to understand. As legal writing guru Bryan Garner notes: Admirably clear, concise, down-to-earth, and powerful - unfortunately, these adjectives rarely describe legal writing. That's where experience comes in, whether writing or in standing up in front of a jury and getting a very complicated point across. It makes a difference.

Melsheimer's been doing that for some time now and the dividends pay off. He was part of the legal team that won a $178 million verdict against NL Industries, which came in at Number 11 in the National Law Journal's top verdicts of 2009. This year alone, Texas Super Lawyers has again placed him on its roll of top lawyers in Texas, while Lawdragon honors him among its top 500 lawyers in the U.S.

by Robert Tharp at 3:49:15 pm

This Friday, June 25, workplaces are being encouraged to "go furry" as four-legged friends have the opportunity to accompany their owners to the 12th annual Take Your Dog to Work Day. First celebrated in 1999, Take Your Dog to Work Day was created by Pet Sitters International to celebrate the great companions dogs make and to encourage their adoption from humane societies, animal shelters and breed rescue clubs.

And although having Sparky or Fifi tag along may make the work day more enjoyable, labor and employment attorney Audrey Mross of Dallas' Munck Carter says there are other important considerations, including building management, which by law is required to allow service animals, but may prohibit others. Owners must take into account the logistics, including sanitation, noise and feeding. Additionally, owners must consider their co-workers and any allergies or fears of certain breeds. "On top of that, you need to be prepared for people to go beyond just dogs," Mross says. "If one person brings in a basset hound, someone else might want to match that with his pet boa."

The opportunities for discord, conflict and comedy are limitless: dog bites boss, dog bites boss's dog, dog urinates in cubicle, dog raids break room snack closet. To prepare your best friend for this potentially difficult professional situation, the Stafford County Sun has this practical advice:

To prepare your dog for a successful day at the office, he should be comfortable in new environments and greeting strangers. That means providing lots of practice before the big day by taking him along with you everywhere dogs are welcome such as to parks, dog-friendly restaurants with outdoor seating and pet stores. When you're out and about, teach your dog to sit while being petted rather than jumping up on the greeters. This will be especially important when you take him or her to the office. Good manners will go a long way and your boss and co-workers might even invite him back again.

If your co-workers bring their dogs to work too, make sure your dog and the others are dog-friendly before allowing any interactions. The last thing you'd want to do is have a public dog fight! That would be a sure-fire way to put the kibosh on next year's event! If all the dogs are friendly and have been well-socialized, interactions should be done on leash, fully supervised, kept short and sweet (5-10 minutes at a time) and ended on a positive note. Calling your dog back to you and giving him a reward for coming when called is a great way to end a short play session.

by Robert Tharp at 2:51:10 pm

Despite last week's announcement that BP is setting aside $20 billion for the victims of the Gulf oil spill, many of the company's investors face concerns that they may be last in line for any earmarked funds or left out altogether. BP's share price hovered around $60 at the time of the spill, but since has been cut in half.
One group is attempting to protect its interests with a class-action lawsuit that says BP mislead investors about the company's ability to safely conduct it's day-to-day drilling operations and properly respond to such an oil spill. Attorneys from the New York law firm of Zwerling, Schachter & Zwerling are representing the investor group in the federal lawsuit filed in Louisiana, which covers anyone who bought BP shares from late February 2008 through mid-May 2010.
Attorney Robert Schachter, lead counsel for the investor group, tells BBC radio his clients don't aim to put BP out of business. Instead, they want the company to be responsible for statements they made before the disaster, indicating BP had learned from its mistakes - including the 2005 explosion at a BP plant in Texas City, Texas - and had the ability to handle just such an oil spill. Robert Schachter on the BBC 5 Live Program
Zwerling Schachter has handled similar cases against BP, including representing another group of investors following a 2006 oil leak that shut down BP's operations in Prudhoe Bay, Alaska. That case ended with a multimillion-dollar settlementand helped earn recognition for Schachter as one of the country's top authorities on investor lawsuits.
In the current case, Schachter represents shareholders not just in the U.S., but around the world, as The Guardian reported: But Robert Schachter, partner at Zwerling, Schachter & Zwerling, said that several British institutional investors had contacted him about joining the class action his New York-based firm recently filed. He said he was confident that at least one British investor would be named as a plaintiff next month in order to make it more likely that British institutions would share in any payout.



by Robert Tharp at 3:28:52 pm

Last week's natural gas pipeline explosion in North Texas that killed one worker and injured several others is now the subject of a lawsuit filed by attorneys from Houston's The Lanier Law Firm. The blast at Georges Creek Ranch between the towns of Cleburne and Granbury sent a pillar of flames into the air and thick black smoke that could be seen from 30 miles away. It left a deep crater extending more than 100 yards.

The lawsuit is filed on behalf of Corey Gautreaux, a Louisiana native who suffered severe burns and other bodily injuries in the June 7 tragedy. He was working with a crew from Dewey, Okla.-based C&H Power Line Construction to install electrical utility poles when a natural gas line owned by Houston's Enterprise Products Partners exploded. One of Mr. Gautreaux' co-workers, James Robert Neese, was killed, leaving behind a wife and seven children.

According to the Dallas Business Journal, the lawsuit accuses Enterprise Products of causing Gatreaux' injuries and the death of a co-worker by failing to properly mark the gas lines and by not warning the plaintiff about other similarly situated gas lines in the area. Gautreaux is accusing the gas line owner of gross negligence and is seeking damages for, among other claims, past and future physical pain, mental anguish, medical expenses, lost wages, benefits and physical disfigurement.

In an interview with WFAA TV Ch. 8, attorney Judd Waltman with the Lanier Law Firm in Houston spoke on behalf of Mr. Gautreaux and described the events that led up to the explosion. "Corey says he saw the event and heard what he describes as a loud 'thump' and saw debris and dirt flying out of the hole," Waltman said. "Immediately after that, the line ignited into a giant fireball coming toward him. He turned at that point to run as fast as he could for his life."

Now, Enterprise Products will face a trial in Harris County's 295th District Court in Houston. Earlier this month, a Harris County jury awarded $82.5 million to the family of a worker who was killed in a 2007 explosion at a natural gas processing plant near the same location.

by Robert Tharp at 12:20:32 pm

For those who make a living in the oil industry along the Gulf Coast, the financial impact of the federal government's recently announced moratorium on deepwater drilling operations promises to have a rapid and profound impact. A recent Houston Business Journal article looks at companies that will be affected by the ban and paints a picture of how the dollar figures quickly add up. Consider: 33 rigs affected by the 180-day ban charge day rates between $250,000 and $500,000 a day, adding up to somewhere in the conservative neighborhood of $10 million a day in losses.

The article also highlights how the drilling moratorium will have an impact beyond lost revenue: "Thousands of workers are off the job, dozens of rigs will sit idle and companies now are invoking force majeure clauses to get out of drilling contracts," said Jason Itkin, co-founder of the Houston-based Arnold & Itkin LLP."

The government, fortunately, has realized the pending crisis of workers off the job, and is considering making BP pay their lost wages. Interior Secretary Ken Salazar is quoted in a recent Houston Chronicle article: "BP is responsible for all the damages that flow from the BP oil spill," Salazar told a Senate panel Wednesday. "And these are some of the consequences from that oil spill."

Itkin agrees. His firm represents numerous workers and companies affected by the Deepwater Horizon explosion and ongoing oil spill. "All of these workers and companies affected by the moratorium may have a case against BP," he says. "Simply because the company decided that safety on the Deepwater Horizon wasn't as important as its bottom line."

by Robert Tharp at 11:40:59 am

It's no secret by now that our expanding use of social media networks has created a perilous and evolving landscape for businesses, institutions and regular folks. What's surprising is the myriad ways that online networks create concerns and conflicts that never existed just a few years ago. While Facebook CEO Mark Zuckerberg believes "the age of privacy is over" and there should be no distinction between a person's professional and private lives, the working world clearly has not and may never reach that degree of comfort.

Just last week the Dallas Morning News detailed how the Lewisville school district is considering a new policy that would forbid teachers and other school district workers from criticizing the district or even identifying themselves as employees of the district in their profiles and postings on social media sites. The paper also notes that the Texas Association of School Boards is drafting new policy language that addresses how employees should use social networking sites, even on their own time and on their own computers.

Meanwhile, according to the New York Times, 27 states now have some form of regulations to limit so-called SLAPP (strategic lawsuit against public participation) retaliations against consumers who post negative comments online. Federal legislation, currently in the House Subcommittee on Courts and Competition Policy, would all an individual who thinks he is being bullied by litigation for speaking out or petitioning on a public matter to seek to have the lawsuit dismissed. Finally, a report by Arezow Doost of KTVT/CBS 11 highlighted the growing trend in which businesses are using the legal system to fight negative reviews and comments on social networking sites. The broadcast notes the efforts of a Plano eye surgeon to uncover the source of a website posting critical of his services. Interviewed in the news report about this growing area of litigation, Dallas attorney Michael McCabe of Munck Carter says there are limits to freedom of speech, even on the Web. "If you make defamatory statements, that won't be protected by freedom of speech," says McCabe. "Can you be sued for it? Yes, if you are out there making defamatory statements online you very well might be sued for it."

by Robert Tharp at 11:44:16 am

FCPA Attorney Vivienne Schiffer says companies can no longer turn blind eye to overseas business practices.

The Justice Department is aggressively going after violations of the Foreign Corrupt Practices Act by hiring more prosecutors and employing unconventional techniques like undercover stings and wiretaps. The Washington Post recently reported that in the last 10 years, the number of FCPA probes going on at any one time jumped from eight to more than 130. Much of the increase in federal law enforcement scrutiny has occurred in the last year, when federal agents brought more FCPA indictments than the last seven years combined.

Writes the Washington Post: the days of doing business with a wink and a nod are over and even decisions made years ago may result in serious punishment. The effort is motivated in part by the principle that business shouldn't be conducted one way in modern countries and another way in developing nations.

No longer does the Justice Department rely solely on tips from whistle-blowers or business competitors to build cases. Today, officials are turning the tools of organized-crime investigations to anti-bribery. They are setting up sting operations, as took place in a recent investigation in which defendants from the United States, Britain and Israel allegedly tried to bribe a country's defense minister to provide access to outfit the country's presidential guard. While the FCPA is subject to a five-year statute of limitations, the government is effectively stretching that period in some cases by tacking on conspiracy charges where appropriate. So companies are looking beyond the past five years to determine their vulnerability.

Ms. Shiffer, an attorney in Thompson & Knight's Houston office, says this shift in Justice Department priorities is likely to force executives to become more focused than ever on what distant salespeople and consultants are doing to acquire new business.  "Given that 2009 was a record year for FCPA enforcement, the administration is signaling that American companies transacting any cross-border business should review and reinforce their anti-corruption policies," she says. Since 2004, the Justice Department has levied $1.5 billion in fines in more than two dozen FCPA cases, and more than 80 individuals have been charged. "It appears that charging individuals is a deliberate enforcement strategy and corporate punishments are also severe, whether or not the company and its officers even knew of the violations. ‘Paper programs' that sit on the shelf without effective implementation are not sufficient."


by Robert Tharp at 3:44:15 pm

Summer arrived early in Dallas this year with temperatures breaking the 100 degree mark by the first week of June. The relatively early heat wave counldn't have come at a worse time for residents of The Chevelle apartments in the Oak Lawn neighborhood just north of downtown.

As noted by WFAA TV Ch. 8 reporter Cynthia Vega, air conditioning at the complex stopped working as temperatures hovered around the dangerously high century mark. With tenants spending sleepless nights outside on porch stoops and grumbling over the property owner's slow response, Vega turned to noted Texas landlord lawyer Darrell Cook, founder of Darrell W. Cook & Associates, to explain the rights tenants have in such situations.

Cook, who frequently works with property owners but is not involved in this case, knows from experience what does and does not work in these contentious landlord-tenant conflicts. His advice for tenants: don't wait for the courts to step in, but instead go directly city code enforcement officers. City code requires apartment landlords to keep property under 85 degrees, and code enforcement officers can work with city attorneys to obtain a restraining order to force landlords to quickly make emergency repairs.

Finally, Cook, the founder of, advises that tenants who withhold rent during such disputes lose their bargaining power.

by Robert Tharp at 4:19:38 pm

File this one under: Be careful who you sue for trademark infringement.

A federal district judge's ruling has closed a chapter on a long and hotly contested trademark fight between retail giant Liz Claiborne's Lucky Brand Dungarees and Miami-based Marcel Fashion Group. Judge Laura Taylor Swain's final judgment uphold's an earlier verdict against Claiborne and goes further, tacking on nearly $300,000 in punitive damages.

According to the Associated Press: In the decision, Judge Laura Taylor Swain ruled Lucky Brand's name along, with its use of the phrase "get lucky" and other references to "lucky" violate a trademark for Marcel Fashion Group's "Get Lucky" clothing line. Swain's ruling does not prevent Liz Claiborne from continuing to use the Lucky moniker. But Ann Schofield Baker, head of McKool Smith's national trademark litigation practice who represented Marcel in the case, said if Liz Claiborne continues to use of the name and slogan it would be a continued violation of Marcel's trademark.

The jury's verdict and the court's Final Judgment turned the tables on Lucky Brand and Liz Claiborne, which were the parties that originally brought the suit against Marcel Fashion and its licensee, Ally Apparel, for trademark infringement in 2005 over their GET LUCKY line of apparel. The jury cleared the GET LUCKY line of any trademark infringement after finding that Marcel Fashion had been using the trademark "GET LUCKY" continuously since 1985, years before Lucky Brand was even formed.

"This is a complete victory for the little guy," says Ezra Mizrachi, President of Marcel Fashion. "Lucky Brand and Liz Claiborne tried to put the GET LUCKY apparel line out of business with this lawsuit, but instead, the jury decided that they are the ones who committed trademark infringement."

The punitive damages award follows on the heels of the Court's award of sanctions against Lucky Brand and Liz Claiborne for their repeated and flagrant discovery violations during the litigation. Schofield Baker sums up the case this way: "Lucky Brand brought this suit, but at the end of the day, it breached a prior settlement agreement between the parties, committed trademark infringement and unfair competition by using the Lucky Brand trademark, and was smacked with sanctions and punitive damages. My clients feel completely vindicated and look forward to expanding the GET LUCKY licensing program."

by Robert Tharp at 3:22:05 pm

A Dallas County jury delivered a real eye-opening verdict in a labor & employment/discrimination trial against one of the most prestigious learning institutions in Texas.

Double board certified in internal medicine and infectious disease medicine, Dr. Naiel Nassar has the kind of impeccable credentials that made him a hot commodity in the medical research institutions. Recruited by the University of Texas Southwestern Medical Center's HIV clinic, he became one of its top physicians. Dr. Nassar also happens to be Muslim and an Egyptian native.

Dr. Nassar's racial and religious background, and the treatment he received from UT Southwestern mangers, took center stage earlier this month at a federal trial in Dallas over the hospital's discrimination and retaliation. Attorney Charla G.Aldous of the Aldous Law Firm in Dallas and Brian Lauten of the Dallas law firm Sawicki & Lauten represented Dr. Nassar in his claims against UT Southwestern.

The jury in U.S. District Judge Jane Boyle's court took just 45 minutes to find that the hospital discriminated and retaliated against Dr. Nassar because of his race and religion, and awarded him $3.6 million in damages.

Writes At trial, jurors heard evidence that Dr. Nassar became a target of systemic discrimination under Dr. Beth Levine, Chief of Infectious Disease Medicine, beginning in 2004. Attorneys alleged that Dr. Levine made numerous discriminatory comments about Dr. Nassar and other physicians of various racial and religious backgrounds.

Trial testimony also showed that Dr. Levine delayed promoting Dr. Nassar based on his race and religious beliefs. Subsequently, Dr. Nassar resigned from UT Southwestern to take a new position at Parkland Hospital. In a letter of resignation to Dr. J. Gregory Fitz, Dean of the UT Southwestern School of Medicine and Executive Vice-President for Academic Affairs. Dr. Nassar made it clear that he was resigning because of ongoing racial and religious discrimination.

Drs. Levine and Fitz then worked to block Dr. Nassar from taking the new position at Parkland Hospital by refusing to give him a favorable recommendation and warning Parkland not to hire him. Because of these coordinated efforts to undermine his offer from Parkland, Dr. Nassar was forced to take a position at a hospital and medical school in California.

The verdict in Naiel Nassar, M.D. v. University of Texas Southwestern Medical Center, et al., No. 3:08-cv-1337, was reached May 26, 2010, in the U.S. District Court for the Northern District of Texas.