December 18, 2013 by Dave Moore at 9:30:00 am
There certainly was no shortage of angst and drama in the Texas legal scene during 2013. From the state's new restrictive abortion law taking effect to billionaire Mark Cuban escaping insider-trading charges, the Lone Star State once again was home to some of the nation's most intriguing legal news. Following is a list of the year's top Texas legal stories as determined by Androvett Legal Media & Marketing, which specializes in work for law firms and legal clients:
1. Perry signs voter ID law
After a six-year legislative battle, Gov. Rick Perry signed Texas' version of a voter ID law. Effective Oct. 21, voters now must present one of five forms of identification before they can cast a ballot. Supporters argued that the law was needed to curtail voter fraud. Opponents argued that voter fraud is rare, and that the new law's actual intention is to reduce voter turnout, mostly among Democrats.
2. Texas abortion law survives appeals
Texas' new abortion law survived a significant challenge when the U.S. Supreme Court declined to hear an appeal in November. Shortly after an earlier injunction that blocked the law was lifted, Planned Parenthood reported 12 of Texas' 36 licensed abortion providers stopped offering abortions. The case now will be heard by the 5th U.S. Circuit Court of Appeals in January.
3. New Chief at Supreme Court of Texas
After 25 years on the bench, Wallace Jefferson stepped down as chief justice of the Supreme Court of Texas in October. Gov. Rick Perry selected Nathan Hecht – who has served for 24 years on the court – as Jefferson’s successor. Hecht's appointment caused many pundits and other observers to speculate that the court won't change its pro-business stance in the near future.
4. Harris County DA Mike Anderson dies; widow appointed successor
In May 2013, after serving just five months in office, Harris County District Attorney Mike Anderson announced he had cancer. Four months later, he passed away, leaving his seat vacant. Gov. Rick Perry appointed Anderson's widow, Devon Anderson, to complete her late husband's unexpired term. Anderson spent 12 years as a felony criminal court judge after serving 16 years as a prosecutor. The new DA previously worked as a criminal defense attorney and served as a state district judge.
5. American Airlines merger with US Airways approved, DOJ drops case
Air travelers breathed a collective sigh of relief in November when the Department of Justice dropped its antitrust case against American Airlines and US Airways, effectively approving the two airlines' merger. Key to the DOJ's decision were concessions by both airlines to give up gates at Reagan National Airport near Washington, D.C., LaGuardia Airport in New York, and others. That compromise eased the federal government's fears that the merger will result in a monopoly.
6. First phase of the DeepWater Horizon case concludes, first criminal trial starts
Energy giant BP and its partners, Transocean Ltd. and Halliburton, went to civil trial in February on charges that they were responsible for causing one of the biggest environmental catastrophes in U.S. history. The second phase of the trial began in late September, focusing on the extent of the damage and which party/parties were responsible. The final decision could result in more than $13 billion in Clean Water Act penalties, and possibly tens of billions more in punitive damages. Earlier this month, the first criminal trial started for a former BP engineer, who faces obstruction of justice charges.
7. Jury clears Mark Cuban of insider trading
Dallas Mavericks owner and billionaire Mark Cuban stood his ground against the Securities Exchange Commission, which claimed he used insider information to avoid a $750,000 stock loss in one of the year's highest profile insider trading cases. Cuban’s victory lap following the October verdict was more somber than his exuberant celebration of the Mavs' World Championship in 2011. "This is a horrific example of how government does work," Cuban told reporters who gathered around him following the verdict. "I won't be bullied. I don't care if it’s the United States government."
8. Houston-area judges under fire
It would be an understatement to say that 2013 was a bad year for Houston-area judges. County Court-at-Law Judge Christopher Dupuy resigned after pleading guilty to abuse of office and perjury. Houston federal Judge Lynn Hughes and Judge Edith Jones of the 5th U.S. Circuit Court of Appeals both came under fire for racially-charged comments. And Harris County Family Law Judge Denise Pratt was accused of falsifying court records.
9. Enron's Jeff Skilling’s sentence reduced, appeals end
The vestiges of the Enron collapse continued to wash ashore in Texas courts in 2013. In June, a federal judge trimmed 10 years from the 24-year sentence for Enron executive Jeffrey Skilling, saying trial Judge Sim Lake erred in determining Skilling's sentence. The resentencing will free up about $41 million in assets from Skilling's estate to be distributed to victims of the fraud. This includes about $3 million from the sale of a Dallas condominium and a Houston home Skilling owned, funds from bank accounts, and $5 million he posted as bond when he was first indicted.
10. Lance Armstrong admits drug lies, unleashes torrent of litigation
Embracing the newfound American tradition of "televised confession makes everything OK," Lance Armstrong admitted to Oprah Winfrey on national television that he'd lied for 10 years about being drug free when he racked up seven Tour de France victories. Soon after his January confession, former Armstrong sponsors started lining up to claim that the disgraced athlete committed fraud when he accepted their money while claiming to be clean. Among those is the U.S. Postal Service, which seeks $100 million.
11. Kaufman County district attorneys assassinated
First, Kaufman County assistant district attorney Mark Hasse was gunned down in broad daylight near the county courthouse. That case was still unsolved when Kaufman County District Attorney Mike McLelland and his wife, Cynthia, fell in a hail of gunfire in their own home two months later. The horrific murders sparked rumors that white supremacists were waging open war against the Texas legal community before authorities arrested former Kaufman County Justice of the Peace Eric Williams and his wife, Kim, on murder charges. Investigators believe the hits were in retaliation for Williams' dismissal from his JP job for allegedly stealing county property.
12. Brownsville courthouse corruption
A multi-year federal investigation into corruption at the Cameron County courthouse led to the December sentencing of Austin attorney Marc Rosenthal to 20 years in prison for racketeering and bribery. Former state district Judge Abel Limas also began serving his six-year prison sentence in December for racketeering. Limas' cooperation with federal authorities led to guilty pleas and convictions of numerous defendants, including former Cameron County District Attorney Armando R. Villalobos, who was convicted of racketeering, conspiracy to commit racketeering, and five counts of extortion.
13. Michael Morton Law to take effect
It was a nightmare scenario worthy of a Hollywood script: After serving 25 years for murdering his wife, Michael Morton was freed from prison after it was revealed that his trial prosecutor had buried evidence of his innocence. In the intervening years, Morton's prosecutor, Ken Anderson, became judge of the 277th District Court in Williamson County. Anderson eventually was charged with contempt of court over his misdeeds, earning him 10 days in jail, a nominal fine, 500 hours of community service and loss of his law license. On Jan. 1, the Michael Morton Act will require prosecutors in criminal cases to disclose all evidence in their files to defense lawyers.
December 12, 2013 by Robert Tharp at 12:15:00 pm
Benjamin Stewart, who recently joined the Dallas complex commercial litigation boutique Bailey Brauer PLLC, joined KLIF-AM’s Kurt Gilchrist to talk about the ongoing kerfuffle between Snuffer’s Restaurant and Pat Snuffer, the restaurant’s former owner.
Mr. Snuffer, who lost control of the Snuffer’s name after Snuffer’s Restaurants filed for bankruptcy earlier this year, planned to open a new Snuffer’s in the original lower Greenville Ave. location. However, the new owner of Snuffer’s Restaurants, Firebird Restaurant Group, demanded that Mr. Snuffer stop using the Snuffer’s name. Consequently, Mr. Snuffer changed the name of his new restaurant to Pat’s Burgers & Cheddar Fries. Problem solved, right?
Snuffer’s Restaurants then filed suit and obtained a TRO against Mr. Snuffer to prevent Pat’s from opening.
The lawsuit makes many complaints against Mr. Snuffer, but the toughest one to prove may be the trademark and trade dress violation claims, said Mr. Stewart, whose extensive litigation experience includes claims made in conjunction with bankruptcy proceedings.
“The Snuffer’s brand isn’t as well-known as some of the others,” he explained, referencing McDonald’s Golden Arches and the brown background and distinctive blue font on a Snickers candy bar wrapper. “You know what a McDonald’s looks like. When you drive past those arches, you know . . . Snuffer’s hasn’t reached that level.”
Neither Mr. Stewart nor Bailey Brauer PLLC are involved in the Snuffer’s litigation.
November 25, 2013 by Dave Moore at 3:50:00 pm
The forced relocation of Native American tribes from their ancestral homes in Georgia, Florida, Alabama, Mississippi, North Carolina and Tennessee in the 1830s is considered by many to be among the most shameful chapters in American history. Suffering from exposure, disease and starvation, thousands died along the “Trail of Tears” en route to present-day Oklahoma.
Given the tragic connection, the run-through banner the cheerleaders from Alabama’s McAdory High School displayed at a recent football playoff game was especially troubling. Facing the Pinson Valley Indians, the sign’s message was “Hey Indians, Get Ready to Leave in a Trail of Tears.”
The principal at McAdory issued an immediate apology, claiming that the squad’s sponsor who is tasked with reviewing banner content was out on maternity leave and that role unintentionally had gone unfilled.
Dallas attorney Tom Brandt of Fanning Harper Martinson Brandt & Kutchin, P.C. cites the McAdory controversy as a clear example of why school districts need to have the authority to oversee what signs are displayed at school-sponsored events. Brandt represents Kountze ISD in ongoing litigation involving the right of approval for that district's banners after its cheerleaders began using Christian themes for their spirit signs.
"If a district loses the right to review and approve school-sponsored messaging, it opens the door to situations such as what happened in McAdory," he says. "In Alabama, the district has acknowledged that the absence of adequate district oversight helped create a situation where a glaringly offensive message was brought to the football field."
November 15, 2013 by Dave Moore at 2:00:00 pm
Scientists, social scientists and journalists have used mapping for decades in attempts to make sense of investigative data. Perhaps most famously, physician John Snow used the technique in the 1850s to locate the source of a cholera epidemic in London.
Most recently and locally, NBC5 investigative reporter Scott Friedman used TxDOT data to map drunken driving clusters in North Texas. His data showed a concentration of drunken-driving accidents near the Dallas Cowboys’ and the Texas Rangers stadiums in Arlington.
While Friedman’s investigation proved inconclusive as to locating the businesses that might be involved in creating the drunken-driving cluster, Fort Worth personal injury attorney Steven C. Laird asks the pivotal question of the story: "Is this a question that really doesn't want to be asked because some people may be afraid of the answer?"
Having represented victims of drunken driving accidents in the past, and having a thorough knowledge of Texas' dram shop laws, Mr. Laird has demonstrated in court that the State of Texas makes establishments legally liable for over-serving patrons. In one DUI case, he helped obtain a $1 million judgment for the family of a drunken driving victim (click http://bit.ly/17sIiXk for more details).
While what’s driving the DUI crash “hot spots” near the stadiums in Arlington remains a mystery, it’s good to know that courts still hold businesses accountable for over-serving patrons.
October 15, 2013 by Amy Hunt at 11:04:00 am
If you’re a divorced parent receiving child support payments, you might be getting a little more money now than you did a few months ago. That’s thanks to the Texas Legislature updating the Texas Family Code with changes that took effect Sept. 1.
"This could mean an extra $210 a month for one child, which is a lot to parents struggling to make ends meet,” says Brad LaMorgese, a partner in the Dallas Family Law boutique McCurley Orsinger McCurley Nelson & Downing, L.L.P. "Of course, there are possible exceptions to the child support guidelines, so be sure to talk to your attorney if your needs exceed those envisioned by the Family Code.”
There has long been a cap on the amount of income the parent paying child support must pay. Before Sept. 1, the cap was $7,500 a month. Using the standard percentage formula under child support guidelines, that meant the most a parent would pay in support for one child would be 20 percent of $7,500, or $1,500 a month. The updated cap is now $8,550, meaning a parent paying child support for one child could now pay up to $1,710, 20 percent of $8,550.
Under the guidelines, 5 percent is added for each child with a maximum of up to 40 percent for five or more children. (It’s important to note that adjustments can be made if the non-custodial parent has children from other marriages or relationships.)
October 10, 2013 by Amy Hunt at 10:30:00 am
A May 2013 ruling by the Texas Supreme Court temporarily put a chill up the collective spine of the Texas Family Law bar when the court declared in Tedder v. Aldrich that attorney fees and expenses in a divorce case shouldn’t be considered part of one spouse’s statutory requirement to support the other while the divorce is pending.
Traditionally, Texas courts have considered such expenses to be “necessaries” and often ordered one of the parties to pay them. The Tedder ruling, however, meant that those fees would no longer fall under the heading of “necessaries.” That opened up the possibility that they could end up being the responsibility of the lesser-earning spouse, who may not have the money to pay them.
Fortunately, the Texas Legislature was in session when the high court handed down its ruling and amended the Family Code to say that such expenses may be included as “necessaries,” thus restoring balance to the universe. Kind of.
"We're glad the Legislature and Gov. Perry addressed the availability of legal fees in divorce, but the courts still have a lot of discretion to order – or not order – legal fees to be paid," says Brad LaMorgese, a partner in the Dallas Family Law boutique McCurley Orsinger McCurley Nelson & Downing, L.L.P. "Unless a premarital agreement says otherwise, legal fees should be considered 'necessary.'"
October 1, 2013 by Dave Moore at 12:00:00 am
Big Tex – the symbol of the State Fair of Texas – was publically unveiled Thursday, a day earlier than planned. Intense winds actually caused the premature premiere, according to media accounts.
Big Tex 2.0 was scheduled to be unveiled on opening day of the State Fair. But due to high winds, and the size of the tarp, covering him, as a precaution, State Fair officials unveiled him early. The new size of Big Tex is: 55ft high, and weighs 25,000 pounds. Big Tex has had a facelift and looks 25 years younger and more cartoonish.
Dallas real estate attorney Marc Fanning says the early unveiling calls further attention to the vulnerability of – and need for properly insuring – all possessions, even reborn 55-foot-tall cowboy statues.
“Like all property owners, the State Fair organization should insure their prized possessions in an appropriate amount to cover repair or replacement in the event of a catastrophe,” says Fanning, a director in the Dallas office of Fanning Harper Martinson Brandt & Kutchin, P.C.
A little less than a year ago, Big Tex’s predecessor was engulfed in a fiery inferno caused by a mechanical failure. Fair organizers were reportedly reimbursed approximately $155,000 through insurance coverage toward the estimated replacement cost of $500,000 estimated replacement cost of the new Big Tex. Donations gladly poured in to make up the difference. “The campaign to generate donations to build the new Big Tex – who will make his debut this weekend – was brilliant, but fair leaders can't continue to rely on the kindness of strangers.”
September 5, 2013 by Robert Tharp at 11:00:00 am
In the East Texas town of Kountze, a district court judge ruled that it is not unlawful to post Biblical references on spirit banners inside the taxpayer-funded school’s walls, although the legal basis for ruling was not clear. Meanwhile in Georgia, posters highlighting a particularly provocative line from Arthur Miller’s play, “The Crucible,” are drawing nationwide attention and complaints that the line “God is Dead” is religiously offensive.
The two cases underscore how the mixing of religious messages inside public schools remains far from resolved legally. And until judicial clarity arrives, school administrators should be prepared for unpopular decisions that may upset all sides.
"Although the law regarding student speech continues to be unclear, the safest course of action for the school district is to let the artwork remain," says Dallas attorney Tom Brandt of Fanning Harper Martinson Brandt & Kutchin, P.C., who represents Kountze ISD. "It may not be popular, but given the current status of the law regarding student speech, it is the safest thing to do."
August 6, 2013 by Dave Moore at 12:00:00 am
The successful public offering of Fort Worth-based Athlon Energy Inc. (NYSE: ATHL) demonstrates the importance of attracting savvy investors early on, Dallas attorney Phil Whitcomb recently told the Dallas Business Journal. Upon review of the company’s filings, Whitcomb noted to the publication that Athlon has drawn the backing of noted Apollo Global Management, which has a strong track record of success.
DBJ reporter Nicholas Sakelaris notes:
Whitcomb studied the company’s revenues, assets and business plan and said Athlon is poised to do well through 2013. The so-called conventional wells are cheaper to drill than the unconventional horizontal wells that have become the rage in recent years. Athlon has identified 3,857 potential vertical drilling locations and another 931 locations that could be targeted with horizontal drilling and hydraulic fracturing.
Whitcomb, who specializes in corporate securities and private equity in the Dallas office of Shackelford, Melton & McKinley, told Sakelaris: “They’re going to generate a good amount of cash. They’ve got a great underwriting certificate.”
While predicting how an IPO will do can be difficult (ask anyone at Facebook), Athlon’s successful launch wasn’t just a roll of the dice.
July 22, 2013 by Robert Tharp at 3:00:00 pm
A large swath of the Midwest and East Coast remains in the throes of an epic heat wave, sending residents in search of relief and creating special challenges for employers. The tri-state area in particular is hard hit, with LaGuardia Airport this week reporting all-time high temps of 100 degrees.
Writes MSNBC: In many cases the temperature has become too hot to handle. Employees at a New York City McDonald’s walked out after having worked without air conditioning. In Jersey City, N.J., over 25 firefighters had to be treated for heat exhaustion after battling a blaze in the sweltering weather.
With such dangerously hot temperatures come new considerations for employers, says Audrey Mross, who leads the labor and employment practice at Munck Wilson Mandala in Dallas.
OSHA requirements call on employers to provide a workplace free of recognized hazards, and that includes extreme heat. To make things easier, OSHA now has a "Heat Safety Tool" app with a heat-risk index calculator. Then, there's the other kind of workplace heat. "Plain and simple – some clothing is fine for a night out, but inappropriate at work," says Mross. "It's always a good idea to remind people about any dress code requirements you've established in order to maintain the proper professional appearance in the workplace."
July 19, 2013 by Robert Tharp at 2:30:00 pm
The tragic 2010 death of a University of Mississippi football player is leading to fundamental changes in the way the NCAA and member universities regulate the workouts of student athletes. The changes are part of a settlement related to the death of Bennie "Buster" Abram, a junior defensive backwho collapsed and died on the first day of spring practice in 2010.
According to the lawsuit, the university failed to follow workout guidelines for Abram, who had sickle cell trait, which can deform red blood cells after strenuous exercise. As a result of the settlement, the sports medicine staff at NCAA schools now have “unchallengeable authority” to cancel or modify athletics workouts based on safety concerns.
Writes the Associated Press:
The NCAA made sickle cell trait testing mandatory for all Division I athletes in 2010, though carrying the trait does not prevent an athlete from playing sports. The NCAA has a set of guidelines for institutions to follow regarding the training of athletes with sickle cell trait, including a "slow and gradual" preseason conditioning regimen and for athletes to "stop immediately upon struggling."
The lawsuit alleged that the first day of workouts was "carelessly and recklessly excessive," especially for athletes with sickle cell trait. It also claims there was no evidence Abram was informed of his condition, and that he didn't receive proper medical attention when he began struggling during the workouts, and was instead pushed to continue.
Sickle cell trait is found in approximately 8 percent of African-Americans in the United States, according to the NCAA.
Believed to be the leading killer of Division I football players, the condition has been linked to at least nine deaths among college athletes since 2000.
"This settlement is another step in raising awareness of the dangers of sickle cell trait among athletes, and helping prevent tragic deaths such as Buster's," says The Lanier Law Firm's Gene Egdorf, who represents the Abram family along with Merrida "Buddy" Coxwell and Charles R. "Chuck" Mullins of Coxwell & Associates, PLLC, in Jackson, Miss. "We are pleased that Ole Miss and the NCAA stepped up and settled this matter in a way that honors Buster's memory and will help save lives in the future."
July 17, 2013 by Susan Wheat at 12:00:00 am
When thinking of animal rights groups, the obvious example that comes to mind is People for the Ethical Treatment of Animals (PETA). However, PETA has recently come under fire after investigations into their shelter, based in Norfolk, Va., revealed astoundingly high euthanasia rates. According to an article published in The New York Times , PETA euthanized 2,000 dogs and cats last year, while facilitating only 19 adoptions.
The current trend in animal welfare programs across the country has shifted to a “no kill” standard, in which shelters avoid euthanizing animals barring extenuating circumstances. In order to achieve “no kill” status, cities must save 90 percent of shelter animals. One of the leading cities in the “no kill” movement is Austin, which is the largest city in the country to reach this standing.
"If a handful of people in Austin can change everything for their community's homeless pets, anyone dedicated to change can do the same," says Ryan Clinton, an Austin-based appellate attorney at Hankinson LLP, who is largely responsible for Austin's No Kill initiative. To help other communities achieve no kill success, Clinton led four presentations during the national No Kill Conference last weekend in Washington, D.C.
While most shelters have embraced this system, PETA has remained one of the stragglers, maintaining that its shelter is one of “last resort” and that some of the animals there are better off dead due to overcrowding and depletion of lifestyle.
"You don't have to reinvent the wheel," Clinton says. "But you do have to reject the excuses of public officials, established shelter leadership, and groups such as PETA, who cling to the status quo of killing despite readily available alternatives."
July 9, 2013 by Erin Dooley at 12:00:00 am
Eminent trial attorneys Clayton Bailey and Alexander Brauer recently launched Bailey Brauer PLLC, a new Dallas law firm that focuses on complex commercial litigation, agribusiness, appeals, and class and collective actions.
Prior to opening their own firm, Bailey and Brauer worked together at Baker & McKenzie, where they won a precedent-setting en banc opinion from the 5th U.S. Circuit Court of Appeals that cemented the law protecting the agribusiness industry from frivolous claims filed under the Packers and Stockyards Act.
They also convinced the Mississippi Supreme Court to reverse and remand a jury verdict of nearly $1.65 million to a contractor who was injured on the job, obtained a summary judgment against RICO claims seeking millions of dollars in damages, and defeated multiple, significant claims leveled against one of the country’s largest poultry companies.
The duo believes their work at Baker & McKenzie left them well prepared to lead their own firm.
“Together, we proved our mettle at one of the world’s largest law firms,” Bailey said. “And we will continue to deliver that kind of sophisticated, aggressive, and creative work at Bailey Brauer.”
Brauer says they’re also committed to providing cost-effective, quality legal counsel.
“Our clients are getting big-firm expertise without big-firm overhead,” said Brauer. “We also have more flexibility to enter into alternative billing arrangements,” he adds.
Clients aren’t the only ones that appreciate the pair’s skills. Bailey has twice been selected for inclusion in Texas Super Lawyers and was highlighted as the “Appellate Lawyer of the Week” by Texas Lawyer. A cum laude graduate of Georgetown University Law Center, Brauer is a four-time honoree on Texas Super Lawyers’ list of “Rising Stars.”
More information can be found at www.baileybrauer.com.
June 19, 2013 by Susan Wheat at 12:00:00 am
Summer is here, and for kids that means one thing: school is out! However, for parents this means a whole new schedule. While the change in children’s activities (or more likely, lack there-of) is a difficult adjustment for any parent to make, it can be especially difficult for newly divorced parents dealing with joint custody arrangements.
Joint custody agreements follow a specific set of rules when school is in session, but once that final bell rings in June, some of those rules become a little more difficult to follow. Who gets the kids on the 4th of July? What about when you want to take them on vacation for a week or two? These questions become much more common when free time becomes more available and schedules are more loosely defined.
“It's always a good idea to notify the other parent of your vacation plans or if those plans change,” says Huffington Post blogger Liz Mandarano. “If for some reason or another you have decided not to tell the other parent of your plans, be prepared for the other parent to possibly bring legal action against you.”
Newly divorced parents need to be especially careful when making assumptions about leeway during the summer. "Generally, the non-primary parent should get 30 days of uninterrupted visitation, but that parent should still get the first, third and fifth weekend of the other months," " says San Antonio divorce lawyer Amber Liddell Alwais, a partner in the Family Law firm McCurley Orsinger McCurley Nelson & Downing L.L.P. "The typical Thursday night visitation, however, probably doesn't apply.”
She says divorced parents need to look over their possession orders carefully and make any specific decisions in advance. "You're not stuck with the standard possession order," Alwais says. "If there are days that are important to you, tell your lawyer and get them negotiated into your possession order."
So if July 4th is your favorite holiday, or if you want to ensure that annual summer visit to Grandma’s, it is possible, as long as you walk the fine line of summer custody with care.
June 18, 2013 by Erin Dooley at 2:19:00 pm
Consumers download over four million mobile health apps daily, Mobi Health News reports. Most people view these apps as convenient and effective healthcare alternatives. However, they may not be as foolproof as they seem. In fact, many haven’t received proper FDA approval.
While some apps simply track health habits, others purportedly perform diagnostic assessments. For as little as 99 cents (plus the price of attachments), patients can purchase apps that monitor blood pressure, test blood sugar, and even perform EKGs.
Some sources estimate that by 2017, these mobile health aids will significantly reduce hospital visits, saving consumers more than $400 billion.
Trouble is, the U.S. Food and Drug Administration can’t seem to keep pace with the medical app onslaught. Despite the potential for misuse, it’s only after the problematic apps are released via Apple’s App Store that they’re identified as system violations.
“It raises an interesting problem when Apple can approve an app before the FDA is certain it meets its guidelines,” Wired blogger Michael Copland writes. “The future has arrived…. The FDA needs to catch up.”
The FDA has just begun to identify and examine offending apps. Its first target was uChek, a free app that supposedly analyses urinalysis test strips to estimate patients’ glucose, protein, leukocyte and nitrite levels.
The FDA doesn’t claim the app is defective or misleading. Rather, it says that the creators should have submitted the device to a more rigorous approval and post-market surveillance program. The app, the FDA says, should have been registered as a Class II medical device, which poses minimal – but actual –risk to patients if misused. The creators claim it’s a Class I device, which implies that improper use presents virtually no patient risk.
In a letter to uChek, FDA administrators explained, “though the types of urinalysis dipsticks you reference for use with your application are cleared, they are only cleared when interpreted by direct visual reading. Since your app allows a mobile phone to analyze the dipsticks, the phone… requires new clearance as part of the test system.”
Though the FDA strives to promote mobile health innovation, it recognizes the need to “narrowly” and “judiciously” regulate an industry that some believe may soon spin out of control.
"The FDA is smart to step into this relationship now, while casual in the U.S., to provide necessary guidance to help keep the public safe," says Houston attorney Maura Kolb from The Lanier Law Firm. “But as these types of smart apps are developed, they will likely attract the attention of Big Pharma and medical device manufacturers, who have shown time and time again that hiding information from the FDA is something they are capable of and willing to do."
June 18, 2013 by Erin Dooley at 12:00:00 am
After nearly 30 years as an attorney, Dennis R. Burrows' vision – and his passion for the legal profession – were both waning. But when his son, Dustin Burrows, joined his father at the McCleskey, Harriger, Brazill & Graf law firm in 2002, it rekindled Dennis’ commitment to the law.
“I was pretty much burned out,” Dennis told the Lubbock Avalanche-Journal. “It’s been fun and exciting since…he came along.”
An article on the front page of the Avalanche-Journal’s Father’s Day edition describes how Dennis helped Dustin navigate the courtroom and advised him on the complexities of commercial and personal injury litigation. Former amateur fishermen, the father-son duo began to bond over their cases instead of their catches.
“My best memories over the past 10 years are sitting in a hotel room with my father, plotting and planning about what we are going to do during the next day of trial,” Dustin recalls.
As Dennis’ sight deteriorated further, Dustin took over some of his father’s responsibilities. According to the June 16th Avalanche-Journal article, Dustin now handles jury selection, reviews long documents and drives his father to and from work each day. He even downloaded a screen reader so that his dad could listen to memos via computer.
Dennis believes his declining vision – and his son’s singular ability to anticipate his needs in court – may have hastened Dustin’s legal success. Indeed, Dustin was recently named to Thompson Reuter’s list of “Rising Stars” in the legal profession.
But more rewarding than that, Dustin says, is partnering with his dad.
And with his son by his side, Dennis swears, he won’t stop lawyering anytime soon.
June 13, 2013 by Erin Dooley at 12:00:00 am
The 5th Circuit has spoken: lactation is related to pregnancy and childbirth.
But one judge wasn’t so sure.
In a 2012 ruling, District Judge Lynn Hughes dismissed a workplace discrimination lawsuit filed by the Equal Employment Opportunity Commission on behalf of a working mother who was fired after requesting to pump breast milk during business hours. Because lactation is “not a condition related to pregnancy and childbirth,” Hughes reasoned, a Houston collections company’s dismissal of the mother, Donnicia Venters, did not constitute sex discrimination.
“My 4-year-old understands basic biology better than some judges,” remarked ACLU blogger Galen Sherwin, who claimed the company blatantly tried to force Venters to choose between her career and her baby’s wellbeing.
The 5th Circuit Court of Appeals agreed that lactation bias shouldn’t be tolerated. In an opinion filed in May 2013, the appellate court reversed Judge Hughes’ dismissal, citing several medical dictionaries and asserting that because “lactation is initiated by pregnancy,” firing a woman based on her pumping habits violates the Civil Rights Act’s Title VII, which protects employees who are pregnant or have recently given birth, and the Pregnancy Discrimination Act. Venters’ case may now proceed to trial.
"The District Court's decision seemed to strain credibility, as this certainly fits the standard needed to bring a sexual discrimination case,” she said. “However, given the conservative nature of the 5th Circuit, it still came as somewhat of a surprise to some that the appeals court sided with the employee. This decision is a strong indication of the general opinion on this issue, and certainly bolsters the Equal Employment Opportunity Commission's view that addressing pregnancy-related discrimination should be a national priority."
June 5, 2013 by Robert Tharp at 4:30:00 pm
For the fifth year straight, federal FLSA lawsuits involving wage-and-hour disputes are on the rise. In fact, filings are up 10 percent, according to published reports. Brought under the Fair Labor Standards Act (FLSA), the claims typically involve salaried employees who believe they’re owed overtime pay or hourly workers who content hey weren’t paid for all of the hours worked. Communication trends and mobile technology are also playing a role in the trend, says employment attorney Mark Shank of Dallas' Gruber Hurst Johansen Hail Shank LLP.
These are cases alleging violations of the Fair Labor Standards Act and typically fall under three categories: salaried employees claiming they are owed overtime pay, hourly workers who claim they weren’t paid for all of their hours, and restaurant workers who claim they weren’t given additional pay to make up for when tips didn’t bring their overall pay to the minimum wage.
Violations of wage and hour laws have become widespread in today’s economy. Sixty-eight percent of low-wage workers interviewed for a report in 2009 said they had experienced a pay violation in the previous work week, including 26 percent who were paid under the minimum wage and 76 percent who didn’t receive overtime pay. Suits have similarly risen, jumping 400 percent in the last decade. And they’ve seen a surge during the recession in particular as employers cut corners looking to cut costs.
"A fundamental problem for employers is that the FLSA, which was adopted in the 1930s, doesn't fit today's world of cellphones, PDAs, email and telecommuting," says Mr. Shank. "This virtual workplace makes it much more difficult for employers and employees to comply with the strict letter of the law, so it's not surprising that the number of claims continues to rise."
May 29, 2013 by Erin Dooley at 9:40:00 am
Bombarded with voicemails, emails, faxes, texts and tweets, many businesspeople are hoping to cut down on digital clutter.
A recent New York Times blog post suggests that professionals simply eliminate social niceties. Gestures like saying “hello” in an email, sending a thank-you note, or leaving a voicemail have become passé – disrespectful, even – according to the blog.
“Of course, some people might think me the rude one for not appreciating life’s little courtesies,” author Nick Bilton admits. “But many social norms just don’t make sense to people drowning in digital communication.”
Though commenters have lamented Bilton’s lack of civility and even called him a “digital jerk,” he makes a valid point: though (or perhaps because) we’re constantly plugged into technology, we can’t keep up with it. And in a sea of digital messages, we need to find a way to stay afloat.
We’ve all been the author of important emails that remained unopened in a recipient’s inbox or voicemails that went unanswered.
Bilton suggests that rather than leave repeated voicemail messages urging colleagues to respond to an old email, people should respect colleagues’ time by communicating via text or tweet – or not at all.
Cut the fluff, he opines. Eliminate the niceties and stick to essential information only.
But while some may appreciate Bilton’s efforts at brevity, others may be offended by impersonal texts or 140-character tweets. Worse still, they may be put off by what some call techno-elitism, the assumption that everyone wants to use (or can pay for) advanced technology.
The solution may be simple. Ask your coworkers which method of communication they’d prefer. Then, mimic their communication style. If they include email salutations and send snail mail, it’s likely they value traditional decorum. If their emails are succinct, chances are, they’d prefer yours be brief too.
May 24, 2013 by Robert Tharp at 10:40:00 am
A bill that would give property owners a streamlined way to finance conservation and clean energy improvements is headed for Texas Governor Rick Perry’s desk.
Known as PACE(Property Assessed Clean Energy), the legislation is designed to provide an innovative and market-based solution to overcome one of the most vexing hurdles for achieving widespread investment in energy efficiency projects for existing structures – obtaining low-cost and long-term financing for conservation projects. Under the bills sponsored by Rep. Jim Keffer in the House and Sen. John Carona in the Senate, owners of commercial and industrial buildings could finance the cost of conservation upgrades for up to 20 years in cities or counties that create the special financing program.
The loan is then attached to the property, rather than the owner, and can be transferred if the property is sold. PACE loans can be issued by city or county financing districts or financial institutions, such as banks.The bill cleared both the Texas House and Senate earlier this month with unanimous votes.
Writes the Austin American-Statesman: The loans are repaid through special property tax assessments. If the property is sold before the loan is repaid, the repayment obligation automatically transfers to the next owner because the lien securing the tax assessment follows title to the property.
The program is expected to allow for the upgrade and enhancement of existing structures, provide substantial water and energy cost savings, and create thousands of jobs statewide. A non-profit association organized by attorneys at Thompson & Knight assisted in the legislative effort. "A PACE assessment will have the same legal status as a lien for ad valorem taxes," says Stephen Block, a partner in the Houston office of Thompson & Knight. "Because the lien will attach to the land, property owners will be obligated to pay only the portion of the cost that accrues during its period of ownership."
May 17, 2013 by Dave Moore at 2:45:00 pm
The Internal Revenue Service’s apparent targeting of tax-exempt conservative groups has set both Republicans and Democrats on a mission to get to the bottom of what’s happening at the agency.
If political biases were in play at the IRS, or even in the Oval Office, it certainly wouldn’t be the first time.
Political consultant Chris Gober says the reports of the IRS’ apparent selective treatment of conservative political groups are symptoms of a larger problem within the federal government’s tax-collection office.
"The IRS is aware that it also has a problem with its employees illegally disclosing pending applications and donors, having reached out to those who were victims of the improper disclosure,” says Gober of Gober Hilgers PLLC. “But they have not taken steps to quell the fears of further disclosures. Nor have they been completely upfront when saying no targeted applications were denied, as they have not released the number actually approved."
While Steven Miller, the agency’s acting commissioner was forced to resign in the wake of the scandal, it’s possible more heads will roll before all the dust settles.
May 15, 2013 by Robert Tharp at 10:30:00 am
Like voting, the call of jury duty is one of those widely underappreciated privileges of citizenship. In courthouses across the country, judges often have a difficult time getting enough qualified jurors to show up for any given trial.
If anything, a bill making its way through the California legislature is prompting a reexamination of our cavalier attitude about jury service. The proposed bill would expand the jury service privilege to allow permanent legal residents – those living in the U.S. legally but who are not citizens. While this may appear to be a practical solution to the problem of dwindling jury pool numbers, it represents a dilution of the responsibilities of citizenship, says Brian Hail of Dallas' Gruber Hurst Johansen Hail Shank.
"As someone who regularly tries cases before juries, it concerns me to see what could be an erosion of the rights and importance of citizenship," he says. "To serve on a jury is to serve as a representative of your country. To be judged by those without true ownership – citizenship – seems fundamentally contrary to our nation's founding principles."
The proposal is prompting a necessary debate about jury service. Writes the LA Times: Jury service is not burdensome drudge work imposed by an overbearing government on an unwilling citizenry. Nor is it a favor that citizens do for their courts. To the contrary, it is a citizen's chief means of oversight on the judicial branch, allowing him or her not merely to help rule on the facts of a particular case but to keep tabs on the judge, the prosecutors, the public defenders and the court system itself. It's the place where citizens observe firsthand the effect of court budget cuts.
Just as citizens, and only citizens, have the power to elect their executive branch leaders and their delegates to the legislative branch, citizen jurors have the final check on at least some judicial branch decisions.
May 3, 2013 by Robert Tharp at 2:30:00 pm
Severe thunderstorms in the Houston area last month brought large hail, strong wind gusts and lightening that caused extensive property damage, broken tree limbs and downed power lines. Home and business owners reported roof damage, broken windows and pock-mocked cars.
The hailstorm and flash floods provide a stark reminder that the severe storm season is upon us, and home and business owners should be prepared. After all, a recent study ranks Texas tops for wind and hail damage claims, noting that such storm damage is among the most common and severe causes of property damage.
Houston attorney Phillip Sanov, head of The Lanier Law Firm's Bad Faith Insurance Practice Group, says now’s the time for property owners to make sure polices are up to date and to document the pre-storm condition of homes, offices and belongings. "Too often, we see insurance companies that deny, delay or vastly underpay legitimate claims, often citing 'pre-existing' conditions," he says.
Among other things, Sanov recommends taking photos and videos of structures and personal property as proof of ownership and existing conditions. "But those pictures do no good if they too are lost in a storm, so be sure to store them online or at a friend's or relative's house," warns Sanov, who represents home and business owners following storms and other disasters.
May 1, 2013 by Robert Tharp at 4:20:00 pm
There’s a well-documented problem with one of the world’s most popular hunting rifles – a defect in the trigger mechanism makes it susceptible to firing when the trigger is not pulled. Accidental discharges are blamed for two dozen deaths and more than 100 injuries.
Houston attorney Mark Lanier says Remington has known for decades that the design flaw in the trigger mechanism has made the rifle unreasonably dangerous. "Gun owners and their loved ones are literally taking a bullet because Remington Arms decided to put profits over safety," says Lanier. In 2012, The Lanier Law Firm successfully represented a Texas man who was severely injured when his Remington Model 700 rifle fired unexpectedly, striking the man in the foot.
Writes USA Today: The 700 series of rifles dates back to the 1940s, when Remington—which had been purchased a decade earlier by the giant chemical company DuPont—was transitioning from a major supplier of the war effort to a more consumer-oriented company. DuPont, which sold Remington in 1993, declined to be interviewed, referring inquiries to Remington.
The rifle series—which debuted with the Remington 721—featured a unique trigger system patented by a young Remington engineer named Merle "Mike" Walker. Walker has called his design "a perfect trigger," with a smooth pull favored by expert shooters. According to Walker's patent, the secret was a tiny piece of metal called a "trigger connector," which is mounted loosely inside the firing mechanism. But critics, including ballistics experts who have been hired to testify against the company, say small amounts of rust, debris, or even a small jolt can cause the trigger connector to become misaligned, forcing the trigger itself to lose contact with the rest of the firing mechanism. Then, the gun can be fired when other parts are operated, such as the safety or the bolt.
But internal documents obtained by CNBC show that in 1948—before the gun went on the market—Mike Walker himself proposed a design change to prevent the trigger's internal parts from falling out of alignment. Other documents show the added cost for Walker's "trigger block" came to pennies per gun, but with the rifle already over budget, officials decided against making a change.
April 26, 2013 by Dave Moore at 12:00:00 am
As traditional media outlets have migrated toward Twitter, Facebook and other social media, it would seem inevitable that they would be susceptible to hacking, just as other users have.
The Associated Press learned this lesson in dramatic fashion on April 23, when a hacker erroneously tweeted on the AP’s Twitter account that explosions were reported in the White House, and that the president was injured. Almost immediately, the U.S. stock market tumbled. The S&P 500 index momentarily dropped in value by more than $100 billion before the report was proven false.
In a recent interview on KLIF-AM, Dallas cyber security attorney Matthew Yarbrough said that the hacking of the Associated Press’ Twitter account typifies the vulnerability of Corporate America’s data.
“As you can see, tweets are becoming incredibly popular,” Mr. Yarbrough said. “Look at what happened up in Boston, when the police announced the capture of one of the Boston Marathon bombers via tweet. We must believe it's true, because it came from a tweet, right? I think these sorts of hoaxes are something hackers like to do, to point out vulnerabilities in systems and networks. And it does show we're putting more confidence into a very short electronic message. I can't believe people are trading upon that, but it does happen. And there will be people at some point in time, who will be prosecuted for things like this.”
Mr. Yarbrough added that many corporations are extremely vulnerable to password hacking. “I often find that typically, when I audit major companies for their cyber security, people in the CEO position have the worst passwords. There's a lot that people can do to really make sure that they're using more complex passwords that aren't so susceptible to something called a “password cracker” that's easily downloaded and someone could point at your account and gain access.”
While the Associated Press reports that it has resolved its vulnerabilities to Twitter hacking, it’s likely only a matter of time before the next major news outlet falls victim to hackers.
April 25, 2013 by Robert Tharp at 4:20:00 pm
Travelers at major airports in Los Angeles, Chicago, New York and Dallas have started experiencing delays and interruptions as mandatory furloughs for air traffic controllers kick in as part of the 2013 budget sequester.
Writes the LA Times: After the first week of furloughs because of light traffic and good weather, the nation's air travel system operated without serious problems. The FAA warned Monday that more delays are on the horizon when air traffic is heavier and severe weather puts pressure on understaffed air traffic control facilities.
Furloughs of air traffic controllers have prompted an outcry from Washington lawmakers and litigation by pilots and airlines who say they could have been avoided. Airline workers have even started to urge frustrated passengers to pressure the FAA to reconsider the budget cuts. To help cut more than $600 million called for by budget sequestration, the FAA ordered air traffic controllers starting Sunday to take one furlough day in every two-week pay period. That would cut the total of the nation's nearly 15,000 air traffic controllers about 10% on any given day.
Also on the list of cuts is a plan to close smaller air traffic control towers nationwide, including 14 in mostly smaller communities in Texas. The proposal is indicative of the significant struggle the federal agency is encountering in trying to balance mandates to cut costs as part of the 2013 budget sequestration against its primary purpose of preserving safety in the national airspace system, says Dallas aviation attorney and pilot David Norton.
"There are procedures in place that certainly make it possible to safely operate an airport without a control tower," says Norton, a partner at Shackelford, Melton & McKinley. "However, the larger and more active the airport is, the more important it is to have an active control tower in order to ensure the safety of pilots, passengers and everyone on the ground."
April 17, 2013 by Dave Moore at 11:23:00 am
It’s been nearly 45 years since seat belts became mandatory in all U.S. passenger cars. The anniversary would seem almost quaint, save the fact that bus manufacturers and operators still don’t have to install seat belts in buses and motor coaches.
That inconsistency became painfully apparent for passengers traveling aboard a Cardinal Coach charter bus, which crashed April 11 en route to the Choctaw Casino Resort in Durant, Okla., killing two passengers and injuring more than 40 others. According to police reports, the vehicle lost control on northbound State Highway 161 near the Beltline Road exit and crashed into a concrete median barrier, tumbling over onto its side.
In a recent interview on NBC Ch. 5 (KXAS-TV), Branson says that a federal law passed in 2012 requires bus operators and manufactures to install seat belts and other safety measures, but implementation of the measure has been delayed. The law also requires regulations to improve structural standards for buses. “The bus manufacturers need to be held accountable – they’ve known of this danger for a long time,” says Mr. Branson, who was part of a legal team that obtained an $80 million settlement on behalf of families whose relatives died aboard a chartered bus that burst into flames while fleeing Hurricane Rita in September 2005.
The legal team's independent investigation into the September 2005 incident revealed a defect in the bus' hub-and-axle system that was prone to failure. Defendants in the lawsuit included the manufacturer of the bus and the designer and manufacturer of the hub-and-axle component, among others.
In the case of mandatory seat belts for passenger cars, and later, airbags, manufacturers resisted the requirement as too expensive, but history has proved otherwise. In fact, safety features like additional side-impact airbags have become some automakers’ best selling points.
Unfortunately for the passengers traveling aboard the Cardinal Coach charter on April 11, further delays in seat belt installation and other safety measures likely played a role in contributing to injuries during the crash.
April 2, 2013 by Dave Moore at 2:30:00 pm
Dallas corporate marketing and advertising attorney Jane Fergason of the Dallas office of Gardere Wynne Sewell LLP has a few words of warning to consumers who innocently give their ZIP code information to merchants during everyday transactions.
“Once you give the merchant your ZIP code, that information can be sold to a data broker, or the merchant can use that to find out your address or phone number, and other types of publicly available, but hard-to-get information,” Ms. Fergason recently told KLIF-AM radio show host Kurt Gilchrist. The result can be unwanted junk mail or, much worse, identity theft. The abuse of ZIP code and other information has become so pervasive that some states have banned stores from collecting it, Fergason says.
“In California and Massachusetts, they’ve passed laws that say you can’t ask for ZIP code information because that is personal identification information, prohibited by the statute.”
Other states, including Texas, are considering similar measures, she says.
What’s a consumer in other states to do?
For starters, consumers shouldn’t give merchants personal information such as ZIP codes, email addresses or phone numbers, Fergason says. Consumers aren’t required to give that information to venders to complete transactions, she says.
Fergason’s one exception: “There are certain times, such as when you’re at a gas station, when you have to type in your ZIP code, and that’s to help protect you from fraudulent purchases. That’s the credit card company asking for that information; that is not the store where you’re getting your gas … using that information.”
March 26, 2013 by Dave Moore at 1:24:00 pm
Corporate espionage and trade secret theft goes back hundreds of years, by some accounts.
The fact that it was documented in North Texas a few years ago should surprise no one. What might alarm perpetrators, however, is the fact that executives who are caught red handed in the act of stealing company trade secrets can serve hard time for their misdeeds.
Such is the case of Michael Musacchio, who faces a June 14 sentencing date for criminal computer hacking charges relating to trade secret theft that occurred against Exel Transportation Services. Mr. Musacchio was found guilty of one felony count of conspiracy to make unauthorized access to a protected computer (hacking) and two substantive felony counts of computer hacking. Each conviction carries a maximum statutory penalty of five years in federal prison and a $250,000 fine. Court documents say Mr. Musacchio and others hacked Exel’s computers so they could direct Exel’s clients to Frisco, Texas-based Total Transportation Services LLC, where they had become employed.
"Much of the evidence used to convict Mr. Musacchio was collected more than six years ago, for a civil trade secret theft case I filed against Total Transportation Services. That lawsuit resulted in a $10 million settlement," says Dallas trade secret theft attorney Matthew Yarbrough, founder of the Yarbrough Law Group.
The upcoming criminal sentencing for Mr. Musacchio ratchets up the stakes for those considering hacking into their employers’ or former employers’ trade secrets.
March 20, 2013 by Robert Tharp at 10:30:00 am
Love this series of videos from Google Analytics video that illustrates the challenges and nuances that we all face in the quest for relevant visibility in today’s search engine landscape.
Effective efforts require sophisticated thinking, a true understanding of your audience and their search habits as well as a focused approach to relevant, quality content.
March 18, 2013 by Robert Tharp at 1:50:00 pm
You’d think Ted Cruz would know better. That’s not the punch line to a lawyer joke but a sad observation of how our newest senator from Texas has chosen to approach the duties that Texas voters placed on him last November. A lawyer by training and profession and no stranger to a courtroom, Sen. Cruz ought to be familiar with a civil justice system that puts a premium on zealous advocacy of one’s positions but also abjures personal attacks or demonization of the opponent.
That’s the observation in an op-ed by State District Court Judge Craig Smith and Fish & Richardson Managing Principal Tom Melsheimer published last week in the Austin American-Statesman. In the piece, the two hold up the much-maligned civil justice system as an example of one of the few surviving institutions where mutual respect and civil discourse still survive.
Melsheimer and Smith note, for example, that lawyers and the legal system may be easy targets for clichés and jokes, but consider:
• The courts are one of the last places where facts still rule over opinion.
• Where just about everyone knows that character attacks and unfounded insults will cause you to lose the trust of juries and judges and lose your case.
• Where everyone expects zealous advocacy but also courtesy and respect of your opponent and ultimately, compromise.
• Where compromise is often viewed as a victory
They write: This flame-throwing tack is clearly winning him points with his loyal base inside and outside of Texas, but it’s not a winning strategy. It’s a prescription for ending up on the wrong side of votes and, ultimately, becoming marginalized. Certainly, it’s a strategy that would find a trial lawyer on the wrong side of a jury verdict where the jury is a group of citizens called to decide the facts of a case, not cheer for one side or another.
There are plenty of examples of lawyers behaving badly out there, and we don’t suggest that our civil justice system is perfect. Yet when it’s time to step in the courtroom, we have been blessed with a system that rewards and adherence to facts and rejects speculation, surmise, and insults. The civil justice system has lasted so long in part because it embraces “civility.” That’s something that our newest senator and the rest of Congress would do well to remember.
February 28, 2013 by Robert Tharp at 3:45:00 pm
I give God 10 percent. Why do you get 18?
That was a St. Louis minister’s response when faced with a restaurant tab that included a mandatory 18 percent tip for a group meal. The pastor’s note – written on the restaurant receipt in lieu of the tip – went viral after an Applebee’s waitress snapped a picture of it and posted it on the Internet, stoking public discussion about the widely reviled mandatory gratuity.
Although many restaurants say a mandatory gratuity is imposed as a way to protect wait staff from the possibility of being under-compensated for the hard work that goes into serving a large group, the practice often draws the ire of customers. And patrons aren’t alone in their disdain for mandatory tip policies. They are equally unpopular with many servers for income tax reasons.
Often compensated at a sub-minimum wage rate, many servers rely on tips to supplement their wages. But because mandatory “tips” are viewed by the IRS as a “service charge,” the money typically goes to the business, not the person serving the table, explains Dallas attorney Celeste Yeager, vice chair of the Hospitality Industry Team at Gardere Wynne Sewell LLP. “For these employees, it can negatively affect pay classification, causing tremendous income tax headaches,” says Yeager. “For these and other reasons, as an industry, it is time for restaurants and bars to consider stopping the practice of imposing automatic tips.”
February 1, 2013 by Robert Tharp at 3:15:00 pm
From pizza delivery businesses and neighborhood bars to car dealerships and major retailers, the NFL’s Super Bowl has become a perennial marketing opportunity and cash cow. But businesses that try to crib on the NFL’s closely guarded and trademarked words, “Super Bowl,” without permission can expect to get stiff-armed by the league’s legal team. Ever notice how so many advertisements and marketing materials have migrated to using “The Big Game” as a legal euphemism for Super Bowl Sunday?
The experience of Roy Fox is the latest example of the NFL’s Dick Butkus approach to guarding its trademarks. More than a year ago, the Indiana man had the premonition that one day the Super Bowl would feature a unique rivalry between two brothers who also happen to be head coaches: Jim and John Harbaugh. His idea: trademark the word “HarBowl” for t-shirts and other merchandise, and watch the money roll in. So Fox plunked down a $1,000 trademark application fee and set the application in motion.
Fox soon started getting calls from the NFL’s legal team, threatening the non-lawyer with stiff financial penalties if he didn’t voluntarily give up his trademark application for “HarBowl.” Clearly a true NFL fan and not a lawyer, Fox proceeded to negotiate his position all the way down to zero. He unsuccessfully offered to give up the trademark in exchange for some Indianapolis Colts tickets and an autographed photo of NFL commissioner Roger Goodell. As the legal blitz showed no sign of letting up, Fox finally took a knee and abandoned the effort.
Trademark and copyright attorney Amanda Greenspon of Dallas-based Munck Wilson Mandala says trademark owners of all kinds are obligated by law to protect and enforce their trademarks or risk losing them, but the NFL is widely known for its aggressive protection of its intellectual property.
“The NFL would have had to argue that it’s confusingly similar to the `Super Bowl’ trademark or some other mark they already own,” she says. “I don’t think it’s as clear-cut as the NFL makes it sound, but it takes would have taken some resources to go up against the NFL.”
January 22, 2013 by Robert Tharp at 4:11:00 am
Eight long years after the filing of a groundbreaking lawsuit on behalf of hundreds of terrorism victims, Dallas trial lawyer Mark Werbner says last week's federal appellate court ruling is a key step in finally getting the case in front of a judge and jury. As reported by Law360 and others, the ruling means that terrorism victims can continue the lawsuit against Jordan-based Arab Bank over claims that the bank and its New York branch served as catalysts for financing worldwide terrorism activities.
Writes Law360: Friday's decision upholds an earlier ruling by U.S. District Judge Nina Gershon, which imposed tough sanctions on Arab Bank for failing to turn over documents the plaintiffs said would link them to terrorist financing rings. The sanctions included instructions to jurors that they could infer from the Arab Bank's refusal to comply with discovery requests that the bank willfully and knowingly provided financial services to foreign terrorist organizations.
"It's an exciting, clear, important victory for the families who suffered losses by terrorism," Werbner told Law360 on Friday. "I really believe that with this opinion today, the trial judge is going to set it for trial."
The original lawsuit, Courtney Linde , et al. v. Arab Bank, PLC, No. 04 CV 2799, was filed in 2004 under the 1990 Anti-Terrorism Act. Currently, more than 100 families and 700 individuals in the Linde case and related cases are seeking more than $1 billion in damages based on Arab Bank's alleged role in financially supporting terrorist activities.
The plaintiffs claim that Arab Bank provided "systematic" financial support to the families of all Palestinian terrorists killed, injured or incarcerated since the start of the Al-Aqsa (Second) Intifada in the Fall of 2000. Specially, the plaintiffs say Arab Bank administered a terrorist death-and-dismemberment insurance scheme that allowed families of so-called "martyrs" to collect financial payments by registering with the bank.
"We are extremely pleased that the 2nd Circuit has cleared the way for our clients to go to trial on behalf of their loved ones who suffered severe injuries and lost their lives as a result of terrorist acts," says Werbner, cofounder of Dallas-based Sayles Werbner. "Arab Bank should be held accountable for its role in terrorism, and my clients are looking forward to presenting their evidence before a judge and jury."
January 18, 2013 by Robert Tharp at 11:43:00 am
The New Year’s confetti is long gone and the U.S. workforce has been back on the job for a few solid weeks, and with that workers are finding something sobering in their first paychecks of 2013. As a result of the late-hour fiscal cliff brinkmanship, U.S. employees’ share of the Social Security payroll tax has reverted back to 6.2 percent (it was temporarily reduced in 2010 to 4.2 percent). That means a worker earning $50,000 this year will see $38.46 less in each twice-monthly paycheck. That’s some real pocket change for families out there living on the narrow margins, something Bloomberg Businessweek dubs “the anti-stimulus.”
The tax is no doubt a touchy subject around many workplace watercoolers, and employment lawyer Rachel Ziolkowski warns that employers need to be cautious in how they discuss this tax hit with their work force. "Employers should feel free to communicate the impact of the tax, but they should stick to the facts and avoid expressing political opinions that criticize or rationalize the increase," says Ziolkowski, a lawyer at Dallas' Gruber Hurst Johansen Hail Shank. "Such comments could lead to unwelcome political debates in the workplace and cause an already upset employee to make a discriminatory claim about their employer based on political beliefs."
January 17, 2013 by Dave Moore at 3:00:00 pm
Big Tex rates up there with barbecue and the Alamo for what makes Texas, Texas. It’s no wonder that when the State Fair of Texas icon burst into flames on Oct. 19 due to an electrical short, many Texans acted as though they’d lost a member of their family. Some Texans left flowers and photographs at the site of the disaster, mourning his passing.
Mitchell Glieber, vice president of marketing for the State Fair, tells WFAA-TV that Big Tex was the symbol of the 126-year-old fair.
He is definitely our icon. He is our Mickey Mouse. It's sad to see, but obviously we will be able to rebuild Big Tex and he'll be back here for sure for the 2013 State Fair of Texas.
However, media reports indicate that Big Tex was insured by the fair for only $200,000 – only half of his anticipated replacement cost.
On Dec. 27, reports surfaced that the fair’s board of directors is seeking private contributions to help bridge the gap and rebuild Big Tex, giving Texans another way to show their support for their favorite 52-foot-tall cowboy after he was burned to a crisp.
According to Dallas insurance attorney Marc Fanning, the fact that the appeal for money came during the holidays was probably more than coincidence.
“It’s very clever of the state fair to kind of tug on everyone emotionally at this time of year, in the giving season, to try to help them cover their shortfall,” Fanning, of the Dallas office of Fanning Harper Martinson Brandt & Kutchin, P.C., tells KLIF-AM.
Fanning adds that it is somewhat unusual that an organization would ask for help when it found itself underinsured. “I think it would only happen in the case of an icon like Big Tex, or some other landmark that is destroyed,” Fanning says. The state fair likely saved a substantial sum of money over the decades by not insuring 60-year-old Big Tex for full replacement value, he says.
January 4, 2013 by Robert Tharp at 12:00:00 am
Ah, the Texas Legislature. According to the Texas Tribune, it's five months of fierce legislating — a bit of which has as much to do with politics and elections as with governing the state. Whatever you call it, the flurry of bill filing has already begun in advance of Tuesday’s official start of the 20-week legislative session.
Already attracting serious debate is a bill filed by Rep. Helen Giddings, D-DeSoto, that(mirroring laws already in place in six other states) would forbid employers from requiring prospective and current employees from disclosing their social media login credentials. As detailed by Law360, H.B. 318 would bar employers from requesting employees' passwords to social media sites like LinkedIn and Facebook. Employment lawyers point out that the bill is unclear on several important details, including the kind of damages, if any, that employers would face for violating the rule.
Writes Law360: Loopholes in the bill could let employers bypass its rules. While the legislation would clearly bar employers from requesting employees' passwords, its language leaves open the possibility that a company could make an applicant or employee log on to an account, then view it in what's known as "shoulder surfing," according to Michael McCabe of Munck Wilson Mandala LLP. Clarification on whether employers could use information publicly available on social media sites to evaluate prospective employees will also be crucial, he said.
Additionally, employment attorney Stephen E. Fox of Fish & Richardson notes that the bill lacks a distinction between job applicants and existing employees. For example, there are valid reasons why an employer, in certain instances, might need to access an employee’s social media files.
An employer may want the right to look at social media profiles to determine if an employee out on medical leave is faking injuries, he said. And a company may want to be able to require passwords to LinkedIn accounts to ensure former employees aren’t using the site to communicate with past clients in violation of nonsolicitation agreements, he said.
“The business community will seek to significantly narrow the restraints of this bill, not in the application process, but in the context of potentially conducting an investigation while the person is employed,” Fox said. Businesses also will want the bill to let them seek social media information in the course of litigation discovery, according to Fox.
Still, the privacy implications for employees deserve consideration as well, he said. “Arguably, giving people access to social media sites is allowing the employer to invade privacy in a way that hasn’t been done before,” Fox said. “That’s a legitimate concern, and we have to find the right balance.”
Others question whether Giddings’ bill represents a solution in search of a problem, noting that few reporters are requesting this kind of information during the job interview process.
Stephen Fink of Thompson & Knight LLP said in his experience it’s rare for a company to request the information outside investigations of suspected wrongdoing, such as disclosure of trade secrets or derogatory statements about a manager.
“Maybe Texas isn’t representative of the nation as a whole, but it does look to me more like a warning to employers than actually addressing a widespread practice,” Fink said.
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