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Androvett Blog

by Androvett Legal Media & Marketing at 1:41:00 pm

In another attempt to change the admissions process at the University of Texas at Austin, a group - led by a man who unsuccessfully sued the university previously over its admissions process - has filed a lawsuit claiming UT violates state law by using race and ethnic considerations as factors in its admissions. Edward Blum’s nonprofit organization, Students for Fair Admissions, says UT gives African-American and Hispanic candidates preference over white and Asian applicants. Lynn Pinker Cox & Hurst partner Shonn Brown says this latest attempt is a step backward. 

“The University of Texas still struggles to obtain a diverse student population. It proceeds under an admissions policy that has been upheld by the U.S. Supreme Court. Blum’s group and its actions seek to return to the ‘days of old’ and if put into place would likely take UT backwards in its attempts to utilize additional across-the-board process that assists in increasing diversity in the UT student population."

For more information or to set up an interview, contact Sophia Reza at 800-559-4534 or

by Androvett Legal Media & Marketing at 11:18:00 am


The health care bill the U.S. Senate is fine-tuning could have profound effects on elderly people who rely on nursing home care, says Houston-area elder law attorney Kelley Bentley of Roberts Markel Weinberg Butler Hailey PC. Ms. Bentley is Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization.

“The bill proposes large cuts to federal Medicaid support over several years with reliance on states to decide funding in the future. In Texas, nearly 70 percent of nursing home residents are enrolled in Medicaid.

“While many people may assume the program pays solely for health care for the poor, it also fills a gap for long-term care, including at-home and nursing home care for the elderly population. The cost of long-term care in the U.S. can be substantial and a serious drain on an individual’s assets. That includes middle-class retirees who sometimes have managed to save substantial assets. Some people simply outlive their savings for long-term care.

“Older people should take a hard look at their savings long before any health problems. Consider a long-term care savings plan or long-term care insurance and also talk to a lawyer about how to organize and protect assets. In Texas, long-term care Medicaid programs can provide a wide range of care, including nursing home, assisted living and at-home programs. The secret is to start to plan early, before the need arises as there are more options available for the preservation of assets. The goal is not necessarily to preserve assets for future generations, but to ensure that an individual (or married couple) has sufficient assets to cover any future long-term care needs.”

For more information or to set up an interview, contact Kit Frieden at 800-559-4534 or

by Androvett Legal Media & Marketing at 10:30:00 am

The U.S. Supreme Court ruled unanimously this week that the U.S. government cannot refuse to register trademark names that are potentially offensive, saying that would violate the First Amendment. The case, Matal v. Tam, involved an Asian-American musical group called The Slants. But it is a clear signal that the Washington Redskins will prevail in efforts to retain the NFL team’s name, the issue in another trademark lawsuit.

Will this ruling now unleash a host of nasty and offensive names for publicity-craving companies and organizations? Not likely, says Houston lawyer Steve Mitby of Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C., or AZA, who has handled a number of intellectual property cases.

This ruling is significant, but I wouldn’t expect it to lead to a wave of new outrageous trademark filings. It’s simply not that easy to register a trademark in the first place. The normal requirements – namely, that the mark be unique, non-confusing, and used in commerce – limit the ability of individuals to trademark insulting or derogatory words. Plus, trademark filers have to register under their own names. There are no anonymous trademarks. That should discourage those who might try to push the offensiveness envelope.”

For more information or to set up an interview, contact Kit Frieden at 800-559-4534 or

by Androvett Legal Media & Marketing at 8:30:00 am

The NBA Draft is tonight and while fans focus on their favorite team’s selections, the newest professional players and their lawyers will have more weighty concerns to address: employment contracts.

Dallas-based attorney Rogge Dunn, partner at Clouse Dunn, works with professional athletes and coaches including Basketball Hall of Fame Coach Larry Brown. Mr. Dunn says:

Athlete employment contracts are singularly unique in many ways. For example, compensation may be tied to a player’s performance metrics, such as shooting averages, games played or post-season awards, and are likely to be quite invasive on issues including the player’s weight, health issues and off-season activities. Also, unlike most employment contracts, they will likely contain morals clauses. 

However, so-called ‘guaranteed contracts’ protect most athletes in a way that most of us with employment contracts do not have, by guaranteeing their compensation even if an injury prevents them from playing. We should all be so lucky to have guarantees such as these. Most executive contracts terminate payments or force a leave of absence if you are disabled or can no longer do the job.

For more information or to set up an interview with Rogge Dunn, contact Holly Scimeca at 800-559-4534 or

by Androvett Legal Media & Marketing at 9:25:00 am

Two weeks before it was set to take effect, the Department of Education has stopped the implementation of a rule designed to hold for-profit colleges accountable for marketing claims about employment rates for graduates. Had the Borrower Defense to Repayment rule taken effect, for-profit colleges would have had to prove their programs led to the “gainful employment” of graduates or risk the loss of federal aid.

“There is no doubt that the student loan bubble may burst in the near future due to the crushing amount of student loan debt resulting from the skyrocketing costs of attendance combined with the limited availability of jobs upon graduation,” says Dallas bankruptcy attorney Aaron Gottlieb of Godwin Bowman & Martinez.

“However, some responsibility must still remain with the student loan borrower to carefully choose which colleges and programs to attend. If a for-profit school provides the student an education and degree for which the student paid tuition, then a ‘gainful employment’ requirement following graduation seems to be too broad a brush to wield in determining whether the for-profit school made a material misrepresentation.

“In fact, several lawsuits have been dismissed over the past five to 10 years on the basis of student borrowers’ reliance on publications such as U.S. News & World Report, which listed inaccurate employment rates of graduates. The courts have consistently considered this information mere ‘puffery,’ rather than any sort of guarantee. I fail to see the difference between touting ‘employment rates,’ and promising ‘gainful employment.’ They appear, from my perspective, to be one and the same.”

For more information or to set up an interview, contact Rhonda Reddick at 800-559-4534 or

by Androvett Legal Media & Marketing at 9:45:00 am


Texas lawyer Kent Sullivan, who helped build a potent state health care fraud unit as the No. 2 lawyer in the Texas Attorney General’s office, is convinced that more states will follow Mississippi and Ohio in suing to recover damages related to the opioid epidemic. Mr. Sullivan, now a partner in the Austin office of Jackson Walker LLP, says states wield “a huge hammer” over defendants through their tough anti-fraud laws.

“I expect a national trend, a significant wave of lawsuits against the companies and organizations connected with the spread of these powerful prescription drugs. States will be very tempted by the significant potential damages that may be awarded in court to try to recoup some of the costs of treatment.

“There is, of course, a way to successfully defend these cases, but at the beginning, state governments have a huge advantage under Medicaid fraud and consumer protection statutes. There is an easier burden of proof and enhanced damages available under these laws. Intent or negligence often is not required to prove liability. You have a huge hammer over these companies’ heads, and they can be at risk of losing more than actual damages. The damages are often multiplied if you’re found liable, and the states can often recover attorneys’ fees.

“As government health care has expanded, so have anti-fraud actions by states. These lawsuits are not part of the traditional private party litigation framework, where the burden of proof is higher. In many cases, the defendants consider settlement to avoid the significant risk and high cost of litigation. It is fairly unusual for these cases to go to trial but, as I often tell clients, the way to obtain the best settlement is to be totally ready for trial.”

Mr. Sullivan, a former appeals court judge, was chief deputy AG to then-Attorney General Greg Abbott and ramped up the state’s Civil Medicaid Fraud Division from four lawyers to over 40. In 2012, Texas won a $158 million settlement from Johnson & Johnson over its improper marketing of the anti-psychotic drug Risperdal to patients on Medicaid from 1994-2008. It was the largest Medicaid settlement in Texas history and is believed to be the first settlement paid at that time to any state in the nationwide litigation over Risperdal.

For more information or to set up an interview, contact Kit Frieden at 800-559-4534 or

by Androvett Legal Media & Marketing at 1:41:00 pm

In a new effort to compete with Amazon’s delivery system, Walmart says it plans to have store employees on their way home from work deliver online orders to customers. While it may make business sense, it also raises a host of legal questions, says Justin Markel, a Houston labor and employment lawyer with Roberts Markel Weinberg Butler Hailey PC.

First is determining how much to pay the employees for this extra work. The deliveries will be considered non-exempt under the Fair Labor Standards Act, so the employees will be entitled to overtime if this extra drive time puts them over 40 hours in a workweek. But how can Walmart be sure as to how long the deliveries actually take? If employees are required to electronically check in when deliveries are made, that may create an incentive to take the scenic route to the customer’s home. If, on the other hand, Walmart requires them to have GPS trackers, state law privacy concerns might arise. What about the extra gas and maintenance costs? Walmart should consider paying employees extra to ensure that these out-of-pocket expenses don’t cause them to fall below minimum wage.

“Then there are public safety issues. Walmart should look into the employees’ driving histories before asking them to make deliveries. According to news reports, Walmart will conduct background checks. That should be a comprehensive review. Criminal histories that might have been less relevant for certain non-interpersonal store jobs might be more relevant if an employee is sent to customers’ homes.

“Even with safe drivers on the road, accidents will be all but inevitable. If an employee is in an accident on the way to a customer’s house, the employee will likely be considered acting in the scope of employment. That will likely lead to vicarious liability on Walmart’s part. To protect against risk of claims from injured victims, it would be advisable for Walmart to discuss its non-owned auto insurance coverages with its insurance brokers.

“As Walmart tests this program, it will have to carefully navigate many legal issues. Time will tell whether the cost savings and efficiencies will outweigh the legal risks.”

For more information or to set up an interview, contact Kit Frieden at 800-559-4534 or

by Androvett Legal Media & Marketing at 9:30:00 am

A federal appellate court ruling last week resurrected a class-action lawsuit filed by a group of oilfield workers who say their employer failed to pay them the overtime they are entitled to under the law.

The Fifth Circuit opinion in Dewan v. MI LLC found that the overtime lawsuit filed by the employees of Schlumberger subsidiary M-I SWACO had been wrongly dismissed by a lower court. According to the opinion, jurors should ultimately determine whether the workers are allowed overtime pay under a series of tests spelled out in the Federal Labor Standards Act (FLSA).

Overtime lawsuits have spiked in recent years, particularly in the energy sector, and the Fifth Circuit ruling in this case should cause businesses to take a close look at their payroll practices and ensure that they are in compliance with the FLSA wage-and-hour guidelines, says employment law attorney Audrey Mross of Dallas’ Munck Wilson Mandala.

“The FLSA’s administrative exemption is routinely misapplied by employers, and this case is a wake-up call to businesses that use a loose interpretation of the ‘duties test’ in order to obtain the desired outcome of exempt status,” said Ms. Mross.

“Employers may have breathed a sigh of relief when the planned December 2016 doubling of the minimum salary for most FLSA white-collar exemptions was put on hold via an injunction. And they may be assuming that agency enforcement of FLSA classification will wane as the DOL faces a 20 percent cut in its annual budget under the new Trump administration. But this case is a good reminder that individuals and groups of employees can still file lawsuits and the judiciary will hear their plea. The biggest take-away here is that these FLSA classification disputes may not be resolved via summary judgment, meaning employers leave their fate in the hands of a jury, who are often pre-disposed to favor employees in these types of cases.”

For more information, please contact Robert Tharp at 800-559-4534 or