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Androvett Blog

by Androvett Legal Media & Marketing at 2:15:00 pm

Image via Timothy J. McIntosh

The dramatic photo of residents of an assisted living facility in Dickinson, Texas, sitting in waist-deep water while waiting to be evacuated is one of the most widely shared photos of Hurricane Harvey’s aftermath. While many were quick to pass judgment on the facility owner, health care attorney Bill Hopkins of the Austin office of Shackelford, Bowen, McKinley & Norton, LLP, says she should be commended for her actions.

“Similar to what we saw with Hurricane Katrina, there is not a lot that an assisted living facility can do in these circumstances. With elderly residents who are fragile and frequently equipment-dependent, you cannot simply load them in cars or vans and move them somewhere easily,” says Mr. Hopkins. “In fact, studies have shown that sometimes attempting to relocate these residents in an emergency situation can result in stress-related incidents such as heart attacks and strokes.

“Reports indicate that the owner tried her best to get help and support, but was told that help was not readily available. Luckily for these residents, she did not take no for an answer and thought outside the box to get her people to safety. Rather than second-guessing her decision, she should be applauded for doing what was necessary to get her people safe.”

For more information, contact Rhonda Reddick at 800-559-4534 or rhonda@androvett.com.

by Androvett Legal Media & Marketing at 11:17:00 am

Potentially significant policy changes are on the horizon regarding federal rules that determine how and whether workers are entitled to overtime pay. Businesses hoping to avoid overtime obligations for hourly workers must jump through three hoops in most cases. One of those hoops is to pay at least the minimum salary set by the U.S. Department of Labor.  

Last year, the Labor Department under the Obama administration more than doubled the minimum salary threshold that is exempt from overtime, raising it from $23,600 to $47,476. But the salary increase proposal was stiff-armed by a Texas federal judge’s injunction before the change could take effect. While not endorsing the Obama-era regulations, newly appointed Labor Secretary Alexander Acosta mused in recent congressional testimony that the current salary threshold is too low and should be raised to “somewhere around $33,000.”

“The DOL is now seeking comment on how the overtime exemptions should be determined, as well as issues including whether salary levels should be allowed flexibility based on various factors, such as size of employer or region of employment,” says employment attorney Audrey Mross of Dallas-based Munck Wilson Mandala.

“There’s a lot on the line for employers who could be affected by these changes,” she said. “More than anything, employers are seeking consistency in order to plan for the future. This information-gathering phase provides parties a chance to be heard. If the salary threshold for exemption does increase, employers will be making hard decisions about whether to raise affected worker pay to maintain overtime exemptions or closely monitor worker hours, or otherwise be prepared to start paying overtime.”

To speak with Audrey Mross about the Fair Labor Standards Act regulations, contact Robert Tharp at 214-559-4630 or Robert@androvett.com.

 

by Androvett Legal Media & Marketing at 11:17:00 am

The second collision at sea in three months involving a commercial tanker and a U.S. naval destroyer raises serious questions about the training and communication protocols used by the Pacific fleet. Charles Herd, a litigator with significant experience in maritime cases at Houston’s Lanier Law Firm, says that prudent seamanship calls for merchant and military ships to talk to each other and to stay clear of each other.

“Navy ships have a much higher number of officers and crew than are on modern commercial ships. Given the impact in the port quarter of the USS John S. McCain and the previous damage to the superstructure of the USS Fitzgerald, it appears that both vessels were struck from the bow of the commercial ships. This makes it likely that either the Navy ships crossed in front of the commercial ships or the commercial ships did not slow down or steer away,” says Mr. Herd.

The Navy’s preliminary analysis already places some fault on the officers of the Fitzgerald, and Mr. Herd notes that if further evidence shows that both collisions occurred in busy waters, with numerous vessels in the vicinity, all the vessels involved likely bear some responsibility for failing to keep a sharp lookout and maneuver to avoid a collision.

“I expect there will be shared fault once all the investigations are completed, he says.

For more information or to set up an interview with Mr. Herd, contact J.D. Cargill at 713-659-5200 or jdc@lanierlawfirm.com.

by Androvett Legal Media & Marketing at 3:03:00 pm

The iconic jewelry store Tiffany & Co. is a model for trademark enforcement, aggressively and successfully policing its brand in the courts. Last year, Tiffany filed a lawsuit against Costco Wholesale Corp., claiming that the warehouse giant sold more than $6 million of ersatz Tiffany engagement rings and improperly used the jeweler’s name on at least 200,000 in-store signs. This week Tiffany prevailed by winning a $19.4 million judgment in federal court.

Dallas lawyer Chris Schwegmann, a partner at Lynn Pinker Cox & Hurst who tries intellectual property cases, has been following the Tiffany v. Costco dispute.

“This type of litigation not only discourages counterfeiters, but also ensures that Tiffany’s luxury brand doesn’t get diluted over time. I find it interesting that Costco argued that ‘Tiffany’ represents a generic term used to describe a ring setting, and not just a brand name. That’s a tough case to make against a company that aggressively defends its brand.

“Based on the sizable judgment, it is unlikely that other companies in the industry will try to make the same arguments against Tiffany & Co. That’s the benefit of aggressive trademark enforcement.”

For more information on the case or to set up an interview with Mr. Schwegmann, contact Holly Scimeca at 800-559-4534 or holly@androvett.com.

by Androvett Legal Media & Marketing at 2:30:00 pm

Houston commercial real estate is still suffering from the collapse of oil prices and loss of tens of thousands of jobs. The latest estimates are that more than a fifth of Houston office space sits empty as landlords struggle to find new tenants and existing tenants struggle to sublease unused space. Commercial real estate firm NAI Partners calculates that more than 2 million square feet in office space is expected to be returned to property owners in the next two years.

Houston commercial real estate lawyers Douglas Yeager and Jeffrey M. Smith of Winston & Strawn LLP have witnessed several real estate cycles in their careers. Their experience includes handling the purchase and sale of non-performing loans, as well as advising tenants, owners and developers.

“Without sufficient tenants in these buildings paying rent, the owners may not be able to service their debt. In a couple of years, once this sublease space comes back onto the market, there could be a number of workout agreements and foreclosures of office buildings,” said Mr. Yeager. “This is something we have not seen for a few years.”

Mr. Smith notes that “lenders will be keeping a close eye on properties as deadlines to extend leases approach. Will the owners be able to service debt if occupancy rates fall as tenants decide not to extend leases, or if they continue operations in less space? Owners that are unable to backfill space will be anxious to see whether lenders will work with them or whether they will try to unload non-performing loans. We would expect to see an uptick in not only workouts and foreclosures, but also opportunistic investors seeking to purchase non-performing loans.

“Tenants may be in a better position to negotiate moving forward, particularly in certain submarkets where vacancy rates are higher,” Mr. Smith said. ”On the flip side, tenants will need to get assurances from lenders that they have approved lease terms and, in a worst case scenario, that the lender will allow the tenant to continue occupying the space if the lender forecloses on property.”

For more information or to arrange an interview, please contact Kit Frieden at 800-559-4534 or kit@androvett.com.

by Androvett Legal Media & Marketing at 1:50:00 pm

Wedding Cake

 

Do words matter? A Dallas County jury recently ruled — to the tune of $1 million — that they do.

In March 2015, Dallas wedding photographer Andrea Polito filed a defamation lawsuit against former clients Neely and Andrew Moldovan.

Ms. Polito, who photographed the couple’s wedding in 2014, alleged they launched a large-scale social media campaign against her over what they claimed were unreasonable fees associated with the delivery of their wedding photos.

In a TV interview, the couple charged that Ms. Polito was “holding their pictures hostage.”

According to the suit, the newlyweds posted to social media and blogs that Ms. Polito “cheated” and “scammed” people, and that they were “pretty sure [Ms. Polito’s] business was done.” 

As their online onslaught went viral, Ms. Polito said the allegations ruined the business she spent 13 years building.

“People knew me and my reputation,” she told the Dallas Morning News. “All the name-calling, all the bullying ... I was humiliated.”

In court, Ms. Polito’s attorney, Dave Wishnew of Gruber Elrod Johansen Hail Shank LLP, argued the Moldovans should be held liable for defamation, disparagement and civil conspiracy.

The jury agreed, awarding Ms. Polito $1.08 million in actual and punitive damages.

“We hope that this sends a message that freedom of speech does not mean freedom from consequences,” Mr. Wishnew said. “The right to air legitimate grievances and opinions doesn’t extend to a concerted campaign designed to defame and destroy someone’s hard-earned business.”

For an interview or more information, contact Barry Pound at 800 559-4534 or barry@androvett.com.

 

by Androvett Legal Media & Marketing at 10:25:00 am

The West Texas oil boom has sprouted new businesses that want to pump something other than oil – water.  At least four new companies are hoping to pump water from aquifers that can be sold for use in hydraulic fracturing, or fracking.

That worries some residents in the region, where water is a precious resource. Some are talking about lawsuits. Austin environmental lawyer Leonard Dougal of Jackson Walker LLP is a former petroleum engineer who represents landowners and developers of water projects in West Texas. He says Texas property law is well established that the landowner owns the water below, just like the oil.

“But Texas has a fragmented system of regulating groundwater, with about 100 groundwater conservation districts that regulate drilling and production of groundwater in their local region. The districts’ goals are generally to protect the aquifers and to attempt to impose some fair rights to usage, such as restrictions on well spacing and pumping. A well-known example is the Edwards Aquifer Authority, which regulates wells that produce high-quality water across Central and South Texas.

“The district boards are generally composed of landowners, so there is often a common interest in approving usage that benefits the local area. Oil and gas development brings jobs, for example. But if a company wants to develop a well field, then pump and transport water outside the district, that type of proposal will get much more scrutiny.

“If an application meets the district’s rules, then it should be approved by the board. Of course, some residents might disagree. They could sue the conservation district on the grounds that board members failed to meet their duty to protect the groundwater aquifer. But the plaintiffs might run into questions of their standing to sue, difficulty in proving the board failed to follow the law, or even governmental immunity.

“Water rights have been the source of many court challenges. In Southern California, part of an aquifer lies beneath federal lands occupied by a Native American tribe seeking a say in how that water is used by the public utilities controlling it. The U.S. Supreme Court may take up that issue this fall.” 

For more information to request an interview, contact Kit Frieden at 800-559-4534 or kit@androvett.com.

by Androvett Legal Media & Marketing at 10:57:00 am

Is it OK to mix guns and alcohol? A Texas Court of Appeals seems to be saying, “It depends.”

 

The court ruled that when people are drinking, but not obviously intoxicated, it can’t be assumed that a serious injury will happen just because there’s a gun around. The ruling came in a case in which a woman sued a Houston area homeowner after she was accidentally shot in the ankle at a barbecue where people were drinking. Hours before she was wounded, the plaintiff and other guests shot soda cans with a pistol. The plaintiff testified that she did not feel unsafe.

 

The 14th Court of Appeals in Houston concluded that the homeowner couldn’t be sued for premises liability and gross negligence just because there was a gun where beer and wine were served. The ruling isn’t surprising, said Ross Asher of Roberts Markel Weinberg Butler Hailey PC, which has offices across Texas. The Houston-based trial lawyer is experienced in insurance and premises liability matters.

Is it OK to mix guns and alcohol? A Texas Court of Appeals seems to be saying, "It depends."

The court ruled that when people are drinking, but not obviously intoxicated, it can't be assumed that a serious injury will happen just because there's a gun around. The ruling came in a case in which a woman sued a Houston area homeowner after she was accidentally shot in the ankle at a barbecue where people were drinking. Hours before she was wounded, the plaintiff and other guests shot soda cans with a pistol. The plaintiff testified that she did not feel safe.

The 14th Court of Appeals in Houston concluded that the homeowner couldn't be sued for premises liability and gross negligence just because there was a gun where beer and wine were served. The ruling isn't surprising, said Ross Asher of Roberts Markel Weinberg Butler Hailey PC, which has offices across Texas. The Houston-based trial lawyer is experienced in insurance and premises liability matters.

The court ruled that when people are drinking, but not obviously intoxicated, it can’t be assumed that a serious injury will happen just because there’s a gun around. The ruling came in a case in which a woman sued a Houston area homeowner after she was accidentally shot in the ankle at a barbecue where people were drinking. Hours before she was wounded, the plaintiff and other guests shot soda cans with a pistol. The plaintiff testified that she did not feel unsafe.

 

The 14th Court of Appeals in Houston concluded that the homeowner couldn’t be sued for premises liability and gross negligence just because there was a gun where beer and wine were served. The ruling isn’t surprising, said Ross Asher of Roberts Markel Weinberg Butler Hailey PC, which has offices across Texas. The Houston-based trial lawyer is experienced in insurance and premises liability matters.

“The most basic aspect of negligence law is foreseeability, and whether a reasonable person in similar circumstances should have foreseen that such an injury would occur. Texas law recognizes the important distinction between merely drinking alcohol and drinking to the point of impaired judgment.

“For example, the law criminalizes driving while intoxicated, but not simply driving after drinking. Thus, the amount of alcohol consumed and the effect of the alcohol on a person are the deciding factors – not the mere fact that some alcohol was imbibed. In this case, there was apparently no evidence that anyone near the firearm showed any signs of excessive drinking and impaired judgment. Therefore, such an incident could not be reasonably foreseen by the homeowner.”

For an interview or more information, contact Kit Frieden at 800 559-4534 or kit@androvett.com.