December 21, 2012 by Robert Tharp at 3:30:00 pm
The sun may be setting on the Hostess empire, but the company’s iconic Twinkies, Ho Hos and Ding Dongs trademarks appear poised to rise from the ashes of bankruptcy liquidation. Latest reports indicate that buyers are lining up to acquire portions of the Hostess trademark portfolio, which includes more than 200 trademarks valued at more than $100 million.
"Those trademarks and their goodwill are valuable because they evoke products that have strong sentimental value and inherent goodwill for so many Americans," says trademark attorney Amanda Greenspon of Dallas' Munck Wilson Mandala. "Other terms trademarked by Hostess like ‘Brownie Bites' are potentially valuable because consumers know exactly what they're getting, which is a plus for marketing purposes
According to the Associated Press, Twinkies, Wonder Bread and Devil Dogs are likely to return to shelves in coming months. But more than one company will probably manufacture different snack cakes once made by Hostess. Hostess Brands said in bankruptcy court Friday that it's narrowing down the bids it received for its brands and expects to sell off its snack cakes and bread brands to separate buyers. The testimony came from an investment banker for Hostess, which is in the process of liquidating.
Hostess, based in Irving, Tex., has said potential buyers include major packaged food companies and national retailers, such as big-box retailers and supermarkets. The company has stressed it needs to move quickly in the sale process to capitalize on the outpouring of nostalgia sparked by its bankruptcy.
December 18, 2012 by Amy Hunt at 11:40:00 am
Defense wins never seem to get the media love that is regularly devoted to big plaintiff victories, but that doesn’t mean they aren’t every bit as notable or important to those who win them. The latest Androvett White Paper, “Marketing Your Law Firm’s Defense Practice: Just Because Nobody Won Any Money Doesn’t Mean ‘Nothing Happened,’” offers advice on how lawyers who bring home defense wins can market their practices and generate that client-developing buzz every lawyer craves.
Marketing a defense practice isn’t impossible, but it does require a willingness to seek publicity, occasionally speak to the media, and generally take on a higher public profile than many defense lawyers are comfortable doing. It may also mean spending some time with clients to help educate them on the benefits of dealing with the media in times of crisis.
But these are not insurmountable challenges — at least they shouldn’t be.
To download “Marketing Your Law Firm’s Defense Practice,” click here.
December 14, 2012 by Robert Tharp at 4:05:00 pm
A seamingly innocuous Facebook post by Netflix CEO Reed Hastings touting the publicly traded company’s viewership numbers has run afoul with SEC watchdogs. The problem: Hastings' choice to disclose this potentially “material” information through social media rather than traditional information sources may be a violation of the SEC’s “Regulation FD.”
A recent New York Times piece does a good job laying out the issues at play involving Regulation FD:
In general, Regulation FD says that when a public company gives material nonpublic information to anyone, the company must also publicly disclose that information to all investors. Regulation FD in that way prevents selective leaks and, according to the S.E.C., promotes “full and fair disclosure.”
Regulation FD was the brainchild of Arthur Levitt, a former chairman of the commission. During Mr. Levitt’s time, companies would often disclose earnings estimates and other important information not to the markets but to select analysts. Companies did so to preserve confidentiality and drip out earnings information gently to the markets, and in that way avoid the volatility associated with a single announcement.
For Mr. Levitt, this was heresy. He believed not only in disclosure, but in the principle that all investors should have equal access to company information. Regulation FD was the answer.
If the idea behind Regulation FD is to encourage disclosure, then allowing executives to comment freely on Facebook and Twitter, recognizing them as a public space akin to a news release, is almost certain to result in more disclosure, not less, and reach many more people than an S.E.C. filing would. The agency’s position will only force executives to check with lawyers and avoid social media, chilling disclosure.
"Technology frequently evolves much faster than regulation and law," says corporate compliance attorney Randy Ray of Dallas' Munck Wilson Mandala. "Regulation FD already has evolved since it was adopted in 2000. Businesses now may provide material information to investors on their websites as a public disclosure. That was not permitted originally under Regulation FD," he says. "This case raises the question of whether a disclosure to social media followers should be viewed as a selective disclosure to ‘friends' or amounts to a public disclosure in which all interested parties have an equal opportunity to receive."
December 13, 2012 by Amy Hunt at 11:45:00 am
A deadly train/truck accident in Nevada that killed six and injured scores of train passengers has prompted at least 15 lawsuits, according to the most recent blog post by The Law Offices of Frank L. Branson.
The truck’s driver, who was killed in the crash, had frequently complained about the rig’s unreliability and called it “a piece of junk,” according to a report by the National Transportation Safety Board.
Another contributing factor may have been driver inattention, the NTSB reported. According to the report, another trucker who witnessed the crash said the driver, Lawrence Valli, "was driving like he didn't see the train and lights that were flashing well before impact." According to an Associated Press report:
The witness said he was traveling about 65 mph one-quarter to one-half mile from the crossing when he noticed the train. When he saw that Valli wasn't slowing, the man said he looked to see if the crossing mechanisms were working.
"He saw the lights flashing and saw the cross arm down," the report said.
Just before impact, the witness said he saw the truck brakes lock up and black smoke coming from the brakes.
Mr. Valli previously had received 11 speeding tickets and other violations, including inattentive driving and improper lane location. The NTSB report also said that Mr. Valli had earlier been diagnosed with amblyopia, an eye condition that can cause poor depth perception of reduced vision in one eye. However, according to the report, he had passed his most recent eye exam.
December 13, 2012 by Dave Moore at 10:31:00 am
The Androvett Legal Media & Marketing team, which spends its days immersed in legal news, has developed a list of the top news stories for 2012 in North Texas. As you’ll see, our list spans a broad range of law – from mineral rights legal work in the Oil Patch to a Constitutional question of freedom of religion in Kountze, Texas. Below are what we consider to be North Texas’ top 10 legal news stories, ranked from 10 to 1.
10. SCOTUS Stops Irving Attempt to Buy Oklahoma Water
With Texas mired in a prolonged drought, a water rights ruling from the U.S. Supreme Court in March is being seen as increasingly important. The case centered on an agreement between the cities of Irving and Hugo, Okla., that would have allowed Irving to buy water from its northern neighbor. Irving and Hugo sued the Oklahoma Water Resources Board and the Oklahoma Water Conservation Storage Commission with constitutional challenges to Oklahoma laws requiring state approval for water sales. The U.S. 10th Circuit Court of Appeals eventually ruled that the cities had no standing to sue, with the U.S. Supreme Court upholding the decision without comment.
9. Texas Regains Stature as Energy Patch State
High oil prices and increased natural gas production propelled Texas to the forefront of U.S. energy production in 2012, sending energy lawyers and landmen scurrying to keep up. Experts say the boom might push U.S. production to 11 million barrels a day by 2013, approaching Saudi Arabia-like levels. Much of that production has come via fracking – fracturing rock layers with pressurized fluids to release oil or natural gas – which originated in Texas and is generating its own legal scrutiny in some circles.
8. U.S. Supreme Court Declines to Hear ‘Candy Cane’ Case
A religious-themed case from North Texas once again gained national attention in 2012 when the U.S. Supreme Court decided not to hear a dispute over the Plano Independent School District’s decision to prevent students from handing out religious-themed gifts at school parties. The controversy stemmed from a student who wanted to give classmates a candy cane with a card that included the line: "So, every time you see a candy cane, remember the message of the candy maker: Jesus is the Christ!" The nation’s highest court declined to review a lower court ruling that public school principals have qualified immunity.
7. Cheerleader Signs Spark Another Religion Lawsuit
Public school cheerleaders from Kountze, Texas, (pop. 2,147) became the unlikely national champions for religious free speech in 2012. The dispute centers on whether the Kountze Independent School District cheer squad can display biblically themed banners at school-sponsored sporting events. School officials maintain that the practice violates the separation of church and state. Advocates for the cheerleaders claim the students are simply exercising their free speech rights. Temporary restraining orders allowed the banners to be displayed throughout the football season.
6. SCOTUS Reviewing UT Admissions Policy for Reverse Discrimination
The University of Texas’ affirmative action admissions policy was scrutinized by the U.S. Supreme Court in October after a white student who was denied admission to the school claimed she was passed over for less-qualified minority students. The high court’s pending decision could have far-reaching implications for colleges and universities across the nation. Legal experts say the UT case hinges on whether the Supreme Court is willing to continue to uphold affirmative action precedents established in cases involving other state colleges in Michigan and California.
5. Whistleblower Spurs Largest Medicaid Settlement in Texas History
The Texas Attorney General and attorneys for Pennsylvania whistleblower Allen Jones secured the largest Medicaid fraud settlement in state history in August when pharmaceutical giant Johnson & Johnson agreed to pay $158 million to resolve claims that it used false marketing tactics to convince Texas officials to put the anti-psychotic drug Risperdal on the state’s Medicaid drug plan. The state district court trial in Austin was settled after a week of trial after jurors heard evidence that Johnson & Johnson targeted every level of the Texas Medicaid Program with misrepresentations about the drug.
4. Bankruptcy for Hostess Could Spell Twinkie’s End
Irving-based Hostess Brands Inc. filed for bankruptcy protection in 2012, putting in peril such cherished brands such as Twinkies and Ding Dongs. Bankruptcy lawyers flocked to New York to work on the expansive case, with the company courting potential buyers for its various brands. Hostess officials came under fire for accepting nearly $2 million in bonuses as part of the planned liquidation, while workers complained that their pensions were not funded as Hostess had promised.
3. American Airlines Attempts to Emerge from Bankruptcy
Fort Worth-based American Airlines cleared a major hurdle in its attempt to emerge from bankruptcy protection after reaching a compromise with pilots in December. The cost for the massive reorganization topped $200 million, with American eyeing a potential partnership with US Airways. Unions for American’s pilots, flight attendants and mechanics reportedly have signed off on a US Airway merger, which could create a combined entity worth more than $8 billion.
2. Irving-based Boy Scouts of America Releases “Perversion Files”
In October, an Oregon court ordered Irving-based Boy Scouts of America to release thousands of files detailing decades of sexual abuse by troop leaders. Experts estimate that the organization maintained nearly 5,000 records of sexual deviance dating back to the 1920s, dubbing them the “perversion files.” The Boy Scouts say they have upgraded youth protection policies since the 1980s, including criminal background checks conducted on paid employees and adult volunteers. However, the group is still withholding portions of the files dating from 1985 to the present. A lawsuit in San Antonio seeks their release.
1. Legal Fight Over Texas’ Legislative Redistricting Nullifies Texas’ Political Impact
The legal dispute over Texas’ legislative redistricting made the Lone Star State a non-player in the presidential election. Texas originally was set to be a part of the Super Tuesday primary elections in March, but was delayed to May 29 when Democrats challenged legislative boundaries redrawn by Republicans. By then, Mitt Romney’s remaining Republican challengers – Rick Santorum, Newt Gingrich and Ron Paul – had effectively folded their campaigns. At the root of the Democratic challenge was the assertion that 3.7 million additional minority Texans should warrant at least one additional Democratic district. A U.S. District Court in San Antonio redrew the legislative boundaries to resemble new census data, but was then slapped down when the U.S. Supreme Court ordered a version more closely resembling Texas legislators’ original map.
December 13, 2012 by Robert Tharp at 10:30:00 am
Houston and South Texas provided an interesting variety of legal drama in 2012, from fraud to murder to indicted lawmen. Some legal cases heard in other parts of the country provided significant local impact.
Below is Androvett Legal Media & Marketing’s list of the Top 10 Houston/South Texas Legal Stories of 2012:
10. Jury Convicts Lawyer in Ongoing South Texas Judicial Bribery Scandal
Attorney Ray R. Marchan was convicted of bribing a South Texas judge, earning him a 42-month federal prison sentence in the ongoing Rio Grande Valley scandal. Marchan, a well-known Stanford Law grad, was the first lawyer to go to trial in the federal investigation involving wiretaps and years of investigation. Ex-judge Abel Limas was convicted of taking bribes, but has not been sentenced. More trials are set. Among the eight people already convicted in the scheme is former state lawmaker Jim Solis. Limas, Solis and others pleaded guilty to charges relating to the bribery.
9. Policeman Who Beat Teen Chad Holley Gets Off, Holley Arrested Again
Houston Police Officer Andrew Bloomberg was acquitted in 2012 on official oppression charges stemming from the 2010 videotaped beating of then-15-year-old burglary suspect Chad Holley. There was great community outrage over both the videotape and Bloomberg’s acquittal. Holley was convicted in the 2010 burglary and was arrested on another burglary in 2012. Other involved officers, some who were fired or suspended, are still awaiting trial.
8. Harris County Probation Department in Chaos
Widespread problems with drug testing in the Harris County Probation Department were revealed in an August hearing, and the district attorney’s office stopped using the department’s recommendations. Judges called for the ouster of the director of the 800-employee organization, who instead resigned. An interim leader was appointed to begin the agency’s rebuilding effort. One big change was the move to urine testing for alcohol offenses instead of less-effective breath tests. The department also implemented sophisticated drug testing that measures additional gradations beyond positive or negative.
7. Voter Registration and Voter Roll Problems
The seemingly never-ending redistricting battle continued to plague the Houston area when confusion emerged over changes to polling locations. But worse, the League of United Latin American Citizens sued after claiming that Harris County rejected more voter applications than any other Texas county and systematically targeted Hispanics and African-Americans in roll purges. On top of these woes, people who registered to vote when they got their drivers licenses were not properly added to the local rolls. A Texas voter ID law was placed in legal limbo as well, creating even more confusion. Still, the November elections went through without recalls.
6. Ex-Houston Astro Roger Clemens Acquitted On Charges of Lying To Congress
Pitcher Roger Clemens and Houston lawyer Rusty Hardin tried the long-running case in Washington, D.C., and came away victorious. Clemens was charged with lying under oath to a Congressional committee about using performance enhancing drugs. He claimed his innocence for years before the trial, and still found himself vilified by some in the sports press even after the jury said the evidence wasn’t there. Clemens came back home to Houston and took a couple of victory laps pitching for the minor league Sugar Land Skeeters.
5. Two Harris County Constables Face State, Federal Indictments
Harris County Precinct 6 Constable Victor Trevino was indicted by a state grand jury for failing to report cash campaign contributions, diverting money from his youth charity for personal use, and using deputies to serve eviction notices while keeping the delivery fees. Meanwhile, over in federal court, Harris County Precinct 1 Constable Jack Abercia and others face charges of conspiracy to violate various federal laws for unlawfully accessing the National Crime Information Center database on multiple occasions for private financial gain. Their lawyers say they are innocent and will fight what they claim are technical violations.
4. BP Engineer, Officials Hit with Criminal Charges in Gulf Oil Spill
Energy giant BP faced criminal allegations in Houston related to several deaths in the 2005 Texas City refinery explosion, so the criminal complaint against the company in the Gulf Oil spill were not as big a surprise as charges against employees. Though the filings are in New Orleans, the reverberations for employees reach Houston, into the Gulf, and elsewhere. In November, federal officials charged two well-site leaders with manslaughter, and a third BP official was charged with obstruction of justice. An engineer also was charged with obstruction earlier in the year. Local lawyers say additional charges could be in the works.
3. Harris County District Attorney’s Office Awkwardly Changes Hands
After the 2011 scandal over the Houston Police Department’s Breath Alcohol Testing (BAT) van and prosecutors’ handling of grand jury investigations, Texas Rangers and the FBI also took a look at Harris County DA Pat Lykos’ office. She fell in the Republican primary to Mike Anderson, a former prosecutor and judge. He faced Lloyd Oliver, a previously-indicted perennial candidate who said he puts his name on ballots to get clients. Unhappy Democrats failed to get Oliver off the ballot. Anderson beat Oliver in November, and the ex-cop and ex-GOP judge Lykos now will hand the reigns to the ex-ADA and ex-GOP judge Anderson. But the Republican Party did not keep all its county offices, voters split on judicial races, and the local judiciary appears more permanently mixed than in years.
2. Absent Day-Care Worker Jessica Tata Gets 80 Years in Child’s Fire Death
Four children age three and under died in a Houston home day care fire while caretaker Jessica Tata was shopping instead of tending to the children or monitoring the hot oil she left on the stove. A jury sentenced the 24-year-old to 80 years in prison for the death of one child following a sad and dramatic November trial. But her lawyer Mike DeGeurin says he thinks the verdict will not stand on appeal because the fire was an accident, and should not be prosecuted as felony murder. Prosecutors say they are ready to go forward with more trials on behalf of the other children who died, in addition to three others who were injured in the blaze.
1. The Stanford Financial Empire’s Day in Criminal Court
R. Allen Stanford, the former Texan turned billionaire and Caribbean knight, received a 110-year-sentence from a federal judge in Houston in June after jurors found him guilty of 13 crimes tied to the $7 billion fraud he maintained through an international financial empire. Four other Stanford Financial executives went down with him as politicians were made to return political contributions from the disgraced investment guru. Investor victims and the court-appointed receiver for the company also sued Stanford’s former law firms to try to reclaim some of the stolen funds.
Law Firm News
Tex Parte Blog
WSJ Law Blog