June 19, 2013 by Susan Wheat at 12:00:00 am Summer vacation means more work for parents with joint custody
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 Mobile health apps lack proper FDA approval
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 13, 2013 by Erin Dooley at 12:00:00 am Appeals court reverses judge’s dismissal of breast pumping discrimination case
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.
Dallas labor and employment attorney Carrie Hoffman of Gardere Wynne Sewell LLP feels the 5th circuit’s decision reflects popular sentiment.
"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 Virtual workplace, wired employees, modern demands spur rise in worker pay disputes
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.
Writes ThinkProgress: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 24, 2013 by Robert Tharp at 10:40:00 am PACE Bill to provide innovative financing to encourage energy efficiency, conservation headed for governor’s desk
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 Political consultant Chris Gober: IRS actions against conservative groups only tip of the iceberg
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 The Case for Citizen Jurors
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 With storm, hail season upon us, now's the time to prepare for storm damage, unscrupulous insurance adjusters
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 Defective Remington 700 Rifles Focus of Lanier Law Firm Investigation
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 Associated Press Twitter breach illustrates Corporate America’s vulnerabilities to hacking
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 Sequester cuts begin impacting air travelers
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 2, 2013 by Dave Moore at 2:30:00 pm In asking for ZIP codes, stores might be swiping more than credit cards
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 Trade secret theft can yield prison time
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 18, 2013 by Robert Tharp at 1:50:00 pm Heard the one about the lawyer and the judge who suggested that politicians should behave like lawyers?
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 victoryThey 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 Mandatory tips cause ill-will on both sides of the table
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 Super Bowl Mismatch: What happens when a legal novice goes up against the NFL’s trademark enforcers
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 In Arab Bank terrorism financing lawsuit, attorney Mark Werbner demonstrates power of perseverance
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 Employers tread lightly as workers grumble about larger paycheck tax bite
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 Underinsured Big Tex Saved State Fair of Texas Substantial Sum: Dallas Insurance Attorney Marc Fanning
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 Texas Lawmaker's Bill to Guard Workers' Online Privacy has Good Intentions, But the Devil's in the Details
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.
December 21, 2012 by Robert Tharp at 3:30:00 pm Sun setting on Hostess empire as Twinkies and other valuable trademarks poised to rise from ashes
The sun may be setting on the Hostess empire, but the company’s iconic Twinkies, Ho Hos and Ding Dongs trademarks appear poised to rise from the ashes of bankruptcy liquidation. Latest reports indicate that buyers are lining up to acquire portions of the Hostess trademark portfolio, which includes more than 200 trademarks valued at more than $100 million."Those trademarks and their goodwill are valuable because they evoke products that have strong sentimental value and inherent goodwill for so many Americans," says trademark attorney Amanda Greenspon of Dallas' Munck Wilson Mandala. "Other terms trademarked by Hostess like ‘Brownie Bites' are potentially valuable because consumers know exactly what they're getting, which is a plus for marketing purposesAccording to the Associated Press, Twinkies, Wonder Bread and Devil Dogs are likely to return to shelves in coming months. But more than one company will probably manufacture different snack cakes once made by Hostess. Hostess Brands said in bankruptcy court Friday that it's narrowing down the bids it received for its brands and expects to sell off its snack cakes and bread brands to separate buyers. The testimony came from an investment banker for Hostess, which is in the process of liquidating.Hostess, based in Irving, Tex., has said potential buyers include major packaged food companies and national retailers, such as big-box retailers and supermarkets. The company has stressed it needs to move quickly in the sale process to capitalize on the outpouring of nostalgia sparked by its bankruptcy.
December 14, 2012 by Robert Tharp at 4:05:00 pm Netflix CEO's Facebook Post Runs Afoul With SEC
A seamingly innocuous Facebook post by Netflix CEO Reed Hastings touting the publicly traded company’s viewership numbers has run afoul with SEC watchdogs. The problem: Hastings' choice to disclose this potentially “material” information through social media rather than traditional information sources may be a violation of the SEC’s “Regulation FD.”
A recent New York Times piece does a good job laying out the issues at play involving Regulation FD:In general, Regulation FD says that when a public company gives material nonpublic information to anyone, the company must also publicly disclose that information to all investors. Regulation FD in that way prevents selective leaks and, according to the S.E.C., promotes “full and fair disclosure.”Regulation FD was the brainchild of Arthur Levitt, a former chairman of the commission. During Mr. Levitt’s time, companies would often disclose earnings estimates and other important information not to the markets but to select analysts. Companies did so to preserve confidentiality and drip out earnings information gently to the markets, and in that way avoid the volatility associated with a single announcement.For Mr. Levitt, this was heresy. He believed not only in disclosure, but in the principle that all investors should have equal access to company information. Regulation FD was the answer.
If the idea behind Regulation FD is to encourage disclosure, then allowing executives to comment freely on Facebook and Twitter, recognizing them as a public space akin to a news release, is almost certain to result in more disclosure, not less, and reach many more people than an S.E.C. filing would. The agency’s position will only force executives to check with lawyers and avoid social media, chilling disclosure.
"Technology frequently evolves much faster than regulation and law," says corporate compliance attorney Randy Ray of Dallas' Munck Wilson Mandala. "Regulation FD already has evolved since it was adopted in 2000. Businesses now may provide material information to investors on their websites as a public disclosure. That was not permitted originally under Regulation FD," he says. "This case raises the question of whether a disclosure to social media followers should be viewed as a selective disclosure to ‘friends' or amounts to a public disclosure in which all interested parties have an equal opportunity to receive."
December 13, 2012 by Amy Hunt at 11:45:00 am Did ‘Piece of Junk’ Big Rig Contribute to Fatal Crash?
A deadly train/truck accident in Nevada that killed six and injured scores of train passengers has prompted at least 15 lawsuits, according to the most recent blog post by The Law Offices of Frank L. Branson.
The truck’s driver, who was killed in the crash, had frequently complained about the rig’s unreliability and called it “a piece of junk,” according to a report by the National Transportation Safety Board.
Another contributing factor may have been driver inattention, the NTSB reported. According to the report, another trucker who witnessed the crash said the driver, Lawrence Valli, "was driving like he didn't see the train and lights that were flashing well before impact." According to an Associated Press report:
The witness said he was traveling about 65 mph one-quarter to one-half mile from the crossing when he noticed the train. When he saw that Valli wasn't slowing, the man said he looked to see if the crossing mechanisms were working.
"He saw the lights flashing and saw the cross arm down," the report said.
Just before impact, the witness said he saw the truck brakes lock up and black smoke coming from the brakes.
Mr. Valli previously had received 11 speeding tickets and other violations, including inattentive driving and improper lane location. The NTSB report also said that Mr. Valli had earlier been diagnosed with amblyopia, an eye condition that can cause poor depth perception of reduced vision in one eye. However, according to the report, he had passed his most recent eye exam.
December 13, 2012 by Dave Moore at 10:31:00 am Androvett Legal Media & Marketing’s Top 10 North Texas Legal Stories of 2012
The Androvett Legal Media & Marketing team, which spends its days immersed in legal news, has developed a list of the top news stories for 2012 in North Texas. As you’ll see, our list spans a broad range of law – from mineral rights legal work in the Oil Patch to a Constitutional question of freedom of religion in Kountze, Texas. Below are what we consider to be North Texas’ top 10 legal news stories, ranked from 10 to 1.
10. SCOTUS Stops Irving Attempt to Buy Oklahoma Water
With Texas mired in a prolonged drought, a water rights ruling from the U.S. Supreme Court in March is being seen as increasingly important. The case centered on an agreement between the cities of Irving and Hugo, Okla., that would have allowed Irving to buy water from its northern neighbor. Irving and Hugo sued the Oklahoma Water Resources Board and the Oklahoma Water Conservation Storage Commission with constitutional challenges to Oklahoma laws requiring state approval for water sales. The U.S. 10th Circuit Court of Appeals eventually ruled that the cities had no standing to sue, with the U.S. Supreme Court upholding the decision without comment.
9. Texas Regains Stature as Energy Patch State
High oil prices and increased natural gas production propelled Texas to the forefront of U.S. energy production in 2012, sending energy lawyers and landmen scurrying to keep up. Experts say the boom might push U.S. production to 11 million barrels a day by 2013, approaching Saudi Arabia-like levels. Much of that production has come via fracking – fracturing rock layers with pressurized fluids to release oil or natural gas – which originated in Texas and is generating its own legal scrutiny in some circles.
8. U.S. Supreme Court Declines to Hear ‘Candy Cane’ Case
A religious-themed case from North Texas once again gained national attention in 2012 when the U.S. Supreme Court decided not to hear a dispute over the Plano Independent School District’s decision to prevent students from handing out religious-themed gifts at school parties. The controversy stemmed from a student who wanted to give classmates a candy cane with a card that included the line: "So, every time you see a candy cane, remember the message of the candy maker: Jesus is the Christ!" The nation’s highest court declined to review a lower court ruling that public school principals have qualified immunity.
7. Cheerleader Signs Spark Another Religion Lawsuit
Public school cheerleaders from Kountze, Texas, (pop. 2,147) became the unlikely national champions for religious free speech in 2012. The dispute centers on whether the Kountze Independent School District cheer squad can display biblically themed banners at school-sponsored sporting events. School officials maintain that the practice violates the separation of church and state. Advocates for the cheerleaders claim the students are simply exercising their free speech rights. Temporary restraining orders allowed the banners to be displayed throughout the football season.
6. SCOTUS Reviewing UT Admissions Policy for Reverse Discrimination
The University of Texas’ affirmative action admissions policy was scrutinized by the U.S. Supreme Court in October after a white student who was denied admission to the school claimed she was passed over for less-qualified minority students. The high court’s pending decision could have far-reaching implications for colleges and universities across the nation. Legal experts say the UT case hinges on whether the Supreme Court is willing to continue to uphold affirmative action precedents established in cases involving other state colleges in Michigan and California.
5. Whistleblower Spurs Largest Medicaid Settlement in Texas History
The Texas Attorney General and attorneys for Pennsylvania whistleblower Allen Jones secured the largest Medicaid fraud settlement in state history in August when pharmaceutical giant Johnson & Johnson agreed to pay $158 million to resolve claims that it used false marketing tactics to convince Texas officials to put the anti-psychotic drug Risperdal on the state’s Medicaid drug plan. The state district court trial in Austin was settled after a week of trial after jurors heard evidence that Johnson & Johnson targeted every level of the Texas Medicaid Program with misrepresentations about the drug.
4. Bankruptcy for Hostess Could Spell Twinkie’s End
Irving-based Hostess Brands Inc. filed for bankruptcy protection in 2012, putting in peril such cherished brands such as Twinkies and Ding Dongs. Bankruptcy lawyers flocked to New York to work on the expansive case, with the company courting potential buyers for its various brands. Hostess officials came under fire for accepting nearly $2 million in bonuses as part of the planned liquidation, while workers complained that their pensions were not funded as Hostess had promised.
3. American Airlines Attempts to Emerge from Bankruptcy
Fort Worth-based American Airlines cleared a major hurdle in its attempt to emerge from bankruptcy protection after reaching a compromise with pilots in December. The cost for the massive reorganization topped $200 million, with American eyeing a potential partnership with US Airways. Unions for American’s pilots, flight attendants and mechanics reportedly have signed off on a US Airway merger, which could create a combined entity worth more than $8 billion.
2. Irving-based Boy Scouts of America Releases “Perversion Files”
In October, an Oregon court ordered Irving-based Boy Scouts of America to release thousands of files detailing decades of sexual abuse by troop leaders. Experts estimate that the organization maintained nearly 5,000 records of sexual deviance dating back to the 1920s, dubbing them the “perversion files.” The Boy Scouts say they have upgraded youth protection policies since the 1980s, including criminal background checks conducted on paid employees and adult volunteers. However, the group is still withholding portions of the files dating from 1985 to the present. A lawsuit in San Antonio seeks their release.
1. Legal Fight Over Texas’ Legislative Redistricting Nullifies Texas’ Political Impact
The legal dispute over Texas’ legislative redistricting made the Lone Star State a non-player in the presidential election. Texas originally was set to be a part of the Super Tuesday primary elections in March, but was delayed to May 29 when Democrats challenged legislative boundaries redrawn by Republicans. By then, Mitt Romney’s remaining Republican challengers – Rick Santorum, Newt Gingrich and Ron Paul – had effectively folded their campaigns. At the root of the Democratic challenge was the assertion that 3.7 million additional minority Texans should warrant at least one additional Democratic district. A U.S. District Court in San Antonio redrew the legislative boundaries to resemble new census data, but was then slapped down when the U.S. Supreme Court ordered a version more closely resembling Texas legislators’ original map.
December 13, 2012 by Robert Tharp at 10:30:00 am Androvett Legal Media & Marketing’s Top 10 Houston/South Texas Legal Stories of 2012
Houston and South Texas provided an interesting variety of legal drama in 2012, from fraud to murder to indicted lawmen. Some legal cases heard in other parts of the country provided significant local impact.
Below is Androvett Legal Media & Marketing’s list of the Top 10 Houston/South Texas Legal Stories of 2012:
10. Jury Convicts Lawyer in Ongoing South Texas Judicial Bribery ScandalAttorney Ray R. Marchan was convicted of bribing a South Texas judge, earning him a 42-month federal prison sentence in the ongoing Rio Grande Valley scandal. Marchan, a well-known Stanford Law grad, was the first lawyer to go to trial in the federal investigation involving wiretaps and years of investigation. Ex-judge Abel Limas was convicted of taking bribes, but has not been sentenced. More trials are set. Among the eight people already convicted in the scheme is former state lawmaker Jim Solis. Limas, Solis and others pleaded guilty to charges relating to the bribery.
9. Policeman Who Beat Teen Chad Holley Gets Off, Holley Arrested AgainHouston Police Officer Andrew Bloomberg was acquitted in 2012 on official oppression charges stemming from the 2010 videotaped beating of then-15-year-old burglary suspect Chad Holley. There was great community outrage over both the videotape and Bloomberg’s acquittal. Holley was convicted in the 2010 burglary and was arrested on another burglary in 2012. Other involved officers, some who were fired or suspended, are still awaiting trial.
8. Harris County Probation Department in ChaosWidespread problems with drug testing in the Harris County Probation Department were revealed in an August hearing, and the district attorney’s office stopped using the department’s recommendations. Judges called for the ouster of the director of the 800-employee organization, who instead resigned. An interim leader was appointed to begin the agency’s rebuilding effort. One big change was the move to urine testing for alcohol offenses instead of less-effective breath tests. The department also implemented sophisticated drug testing that measures additional gradations beyond positive or negative.
7. Voter Registration and Voter Roll ProblemsThe seemingly never-ending redistricting battle continued to plague the Houston area when confusion emerged over changes to polling locations. But worse, the League of United Latin American Citizens sued after claiming that Harris County rejected more voter applications than any other Texas county and systematically targeted Hispanics and African-Americans in roll purges. On top of these woes, people who registered to vote when they got their drivers licenses were not properly added to the local rolls. A Texas voter ID law was placed in legal limbo as well, creating even more confusion. Still, the November elections went through without recalls.
6. Ex-Houston Astro Roger Clemens Acquitted On Charges of Lying To CongressPitcher Roger Clemens and Houston lawyer Rusty Hardin tried the long-running case in Washington, D.C., and came away victorious. Clemens was charged with lying under oath to a Congressional committee about using performance enhancing drugs. He claimed his innocence for years before the trial, and still found himself vilified by some in the sports press even after the jury said the evidence wasn’t there. Clemens came back home to Houston and took a couple of victory laps pitching for the minor league Sugar Land Skeeters.
5. Two Harris County Constables Face State, Federal IndictmentsHarris County Precinct 6 Constable Victor Trevino was indicted by a state grand jury for failing to report cash campaign contributions, diverting money from his youth charity for personal use, and using deputies to serve eviction notices while keeping the delivery fees. Meanwhile, over in federal court, Harris County Precinct 1 Constable Jack Abercia and others face charges of conspiracy to violate various federal laws for unlawfully accessing the National Crime Information Center database on multiple occasions for private financial gain. Their lawyers say they are innocent and will fight what they claim are technical violations.
4. BP Engineer, Officials Hit with Criminal Charges in Gulf Oil SpillEnergy giant BP faced criminal allegations in Houston related to several deaths in the 2005 Texas City refinery explosion, so the criminal complaint against the company in the Gulf Oil spill were not as big a surprise as charges against employees. Though the filings are in New Orleans, the reverberations for employees reach Houston, into the Gulf, and elsewhere. In November, federal officials charged two well-site leaders with manslaughter, and a third BP official was charged with obstruction of justice. An engineer also was charged with obstruction earlier in the year. Local lawyers say additional charges could be in the works.
3. Harris County District Attorney’s Office Awkwardly Changes HandsAfter the 2011 scandal over the Houston Police Department’s Breath Alcohol Testing (BAT) van and prosecutors’ handling of grand jury investigations, Texas Rangers and the FBI also took a look at Harris County DA Pat Lykos’ office. She fell in the Republican primary to Mike Anderson, a former prosecutor and judge. He faced Lloyd Oliver, a previously-indicted perennial candidate who said he puts his name on ballots to get clients. Unhappy Democrats failed to get Oliver off the ballot. Anderson beat Oliver in November, and the ex-cop and ex-GOP judge Lykos now will hand the reigns to the ex-ADA and ex-GOP judge Anderson. But the Republican Party did not keep all its county offices, voters split on judicial races, and the local judiciary appears more permanently mixed than in years.
2. Absent Day-Care Worker Jessica Tata Gets 80 Years in Child’s Fire DeathFour children age three and under died in a Houston home day care fire while caretaker Jessica Tata was shopping instead of tending to the children or monitoring the hot oil she left on the stove. A jury sentenced the 24-year-old to 80 years in prison for the death of one child following a sad and dramatic November trial. But her lawyer Mike DeGeurin says he thinks the verdict will not stand on appeal because the fire was an accident, and should not be prosecuted as felony murder. Prosecutors say they are ready to go forward with more trials on behalf of the other children who died, in addition to three others who were injured in the blaze.
1. The Stanford Financial Empire’s Day in Criminal CourtR. Allen Stanford, the former Texan turned billionaire and Caribbean knight, received a 110-year-sentence from a federal judge in Houston in June after jurors found him guilty of 13 crimes tied to the $7 billion fraud he maintained through an international financial empire. Four other Stanford Financial executives went down with him as politicians were made to return political contributions from the disgraced investment guru. Investor victims and the court-appointed receiver for the company also sued Stanford’s former law firms to try to reclaim some of the stolen funds.
November 29, 2012 by Amy Hunt at 1:45:00 pm Nebraska Truck Accident Kills Four
A truck driver who failed to heed warning signs about a traffic jam on the road ahead of him is being blamed for setting off a fatal chain reaction of vehicle collisions on Interstate 80 in western Nebraska. The resulting truck accident killed an entire family, according to the most recent blog post by The Law Offices of Frank L. Branson.
The truck was driven by Josef Slezak of River Grove, Ill., who has been charged with four counts of manslaughter and four counts of vehicular homicide.
Mr. Slezak was travelling on I-80 when he approached an earlier truck accident that had killed another semi driver, Keith Johnson. According to news reports, area truckers had been warning one another about the accident for some time on their CB radios, but Mr. Slezak never reduced his speed.
His truck collided with a car being driven by Christopher Schmidt, who then collided with the car being driven by his wife, Diana, who was travelling with the couple’s two children, Connor, 2, and Samuel, 3. All four of the Schmidts died at the scene. An autopsy later revealed that Ms. Schmidt was 30 weeks pregnant, which resulted in Mr. Slezak being charged with an additional count of vehicular homicide of an unborn child.
Mr. Slezak drove for AKI Trucking, which, according to a news report, “has a Fatigued Driving (Hours of Service) BASIC score of 80.9 percent, which exceeds the threshold for intervention by 15.9 percent.”
November 26, 2012 by Amy Hunt at 12:00:00 am More Rx for Divorce-Related Stress
The stress of divorce can cause as much, or more, damage than the divorce itself. But if recent divorcees cope with their stress in positive ways, they can be on a better footing than they were before the divorce, says the Dallas family law firm of McCurley Orsinger McCurley Nelson & Downing in its most recent blog post.
In addition to sleep, exercise and good nutrition (which were covered in an earlier blog post), the firm offers seven tips for turning divorce anxiety into “an opportunity for improvement.”
1. Meditation, whether on its own or combined with a tai chi or yoga practice;2. Journaling, which can help you process complex, often conflicting, emotions;3. Friends, “the real kind, not the Facebook kind,” are key to staving off depression;4. Nature has amazing restorative effects, both in adults and kids;5. Laughter “distracts us, releases positive hormones, reduces anxiety, and just generally makes us happier”;6. Prioritize your life by doing the “important but not urgent” things that would make your life better;7. Organize your home, car and office. Even if you tackle it one drawer at a time, it’s energizing and liberating.
November 20, 2012 by Amy Hunt at 11:21:00 am Considering a Pro Se Divorce? Think Twice.
Even though the Texas Supreme Court has approved a set of pro se divorce forms for divorcing couples who have no minor children and no real property, the Dallas family law firm of McCurley Orsinger McCurley Nelson & Downing says the forms should only be used with caution.
In its most recent blog posting, the firm writes that although there are times when divorcing couples can forego hiring a lawyer, “we remain concerned that some divorcing spouses, particularly those who have no access to information about the couple's assets or who are the victims of physical or emotional abuse, could be harmed if they take the pro se route when they should have sought counsel who might have protected their interests.”
As part of its commitment to providing legal services to those who can’t afford them, McCurley Orsinger attorneys frequently volunteer to represent indigent spouses in their divorce cases. But, according to the Supreme Court, there were 58,000 pro se family law cases filed in Texas in 2011. So even if every one of the 4,400 members of the State Bar of Texas’ Family Law section handles a pro bono divorce every year, it would leave tens of thousands of litigants unrepresented by counsel.
As the firm writes,
The pro se forms approved by the Court are definitely an imperfect solution, but we live in an imperfect world. We nevertheless counsel anybody considering a pro se divorce to do so with great trepidation. Hiring a lawyer who can protect your interests is always preferable to going it alone.
November 14, 2012 by Robert Tharp at 12:00:00 am Shocker: Traditional media consumption continues decline, mobile devices rapidly rising as information source
Two recent surveys put some real numbers to broad trends we’ve been seeing for some time: 1) Americans are continuing to get their information from digital sources at the expense of traditional media, increasingly from mobile devices and social media platforms and 2) law firm websites are playing an increasingly critical role in business development and as an essential vetting mechanism for prospective clients.
Pew Research Center for the People & the Press reports another chapter in the steady demise of traditional(hard copy) news. Back in 2000, Pew found that nearly 50 percent of survey respondents said they’d read a print newspaper the day before. Circa 2012, the readership rate is less than half of that. No huge surprise there, but what’s more interesting is that consumers of information are increasingly(and predictably) using mobile devices to get their news. According to Pew, mobile device users are three times more likely to get news from social media as those who use a desktop device. Among the under-30 crowd, a whopping 30 percent are getting their news from social networks via mobile devices
Meanwhile, Law 360 recently weighed in on the information-consumption habits and vetting processes of prospective law firm clients. Citing a Lexis/Nexis survey, Law360 writes:With nearly 75 percent of people using online resources to help select legal services, it is more important than ever that firms and attorneys invest in their Web presence through easily accessible websites and social media use. Specifically, general counsel of large corporations are more likely to look at websites more for validations, as opposed to choosing a firm based directly from its website.
The Lexis/Nexis survey found that potential clients frequently used social media throughout the attorney search process, with 20 percent using Facebook, Twitter, LinkedIn and YouTube.The basic takeaway here is that not only do today’s websites need to be dynamic and professional, they need to be findable and, perhaps crucially, they need to look good on a mobile phone screen.
November 12, 2012 by Amy Hunt at 3:53:00 pm More Traffic Deaths in First Half of 2012
Traffic fatalities caused by motor vehicle collisions jumped 9 percent the first half of this year, which is why a highway safety group is calling for an increased emphasis on preventing deadly truck accidents, says The Law Offices of Frank L. Branson in its most recent blog post.
The National Highway Traffic Safety Administration reported that the number of fatalities caused by motor vehicle collisions increased 9 percent in the first half of 2012, as compared to the same period in 2011. That’s the largest jump in a single year since the agency began collecting traffic fatality statistics in 1975, the firm writes.
In response to the NHTSA report, The Advocates for Highway and Auto Safety, an alliance of consumer, health and safety groups and insurance companies and agents, issued a statement calling for an increased emphasis on highway safety in Congress and state legislatures. Among the recommended actions, the group says, are steps to address trucking safety[.]
Those recommendations include addressing hours of service limits and driver training.
November 12, 2012 by Amy Hunt at 3:39:00 pm Rx for Divorce-Related Stress
Divorce is stressful, but the way people deal with that stress can either help or hurt them in the long run, says the Dallas family law firm of McCurley Orsinger McCurley Nelson & Downing in its most recent blog post.
“Regardless of the circumstances of a divorce,” the firm writes in the first of a two-parter on stress management for the newly divorced, “it's possible to deal with the anger, sadness and regret in positive ways. Almost all of these techniques will take some time and dedication, but if there's ever a time to make your mental and physical health a priority, it's during a divorce.”
If you find yourself saying ‘I can't do that because...,’ realize that you're the only person who can make your health a priority. Your reasons may be valid and difficult to overcome (job schedule, children's demands, etc.), but if you can make your well-being the priority around which other people's needs are met, you will find yourself far more alert, energetic and focused-all of which makes you a better employee, parent and friend.
Remember what the flight attendant says before every flight: ‘If you're travelling with a child, please put the oxygen mask on yourself before putting it on the child.’ That's because we can't help anybody if we've passed out.
The three most important tools in stress management, the firm writes, are sleep, exercise and nutrition. Sleep is “is the closest thing there is to a magic wellness pill,” closely followed by regular exercise. Those experiencing divorce-related stress also need to seek out fresh vegetables, whole grains, lean sources of protein and healthy fat—and not processed or fast foods that can give quick energy but can cause serious long-term health issues.
“Admittedly, keeping prepared, healthy foods in the house takes planning and organization,” the firm writes, “but it's a better investment than Apple stock.”
November 9, 2012 by Robert Tharp at 12:00:00 am Returning Warriors Transition into Workforce
As the nation honors those who have served and sacrificed on Veterans Day, an estimated 1 million vets are expected to re-enter the workforce in the next five years as wars in Iraq and Afghanistan wind down. It’s a daunting challenge in this economy, underscored by the recent experience of young veterans. Unemployment rates indicate that young vets have unemployment rates far higher than their peers.
Today's returning warriors offer valuable professional and leadership skills, and the 2011 VOW to Hire Heroes Act offers incentives for employers who hire vets. The VOW to Hire Heroes Act allows employers to receive tax credits up to $2,400 for hiring veterans unemployed for more than a month (but less than six months). The incentives climb for hiring a veteran out of work for more than six months, and they reach as high as $9,600 for businesses that hire veterans with service-related disabilities.
Munck Wilson Mandala attorney Michael Rodriguez knows first-hand how the experience can build leadership skills and character that are valuable to employers. An intellectual property lawyer with a degree in engineering, Rodriguez has served two tours in combat zones in both Iraq and Afghanistan as an officer in the Navy SeaBees combat engineering brigade.
"Young vets in many ways have skill sets and practical experience far beyond their peers," he says.
November 7, 2012 by Amy Hunt at 10:26:00 am Family Law Firm: Routine More Important than Fun for Weekend Visits
Following a divorce, it can be a challenge for non-primary parents to maintain a meaningful relationship with their children since they may see them only a couple of times each week, according to a recent blog post from the family law firm of McCurley Orsinger McCurley Nelson & Downing L.L.P. Non-primary parents may be tempted to make elaborate plans and find fun things to do during visits with their children, but that may be a recipe for failure, the firm writes.
Time alone with kids – without the other parents' intervention or the conflict that can be present in unhappy marriages – can provide the non-primary parent with a prime opportunity to occupy a unique and invaluable place in their children's lives.
That can only happen, though, if the non-primary parent takes off his or her "entertainer" hat. Visitation time isn't vacation time for the kids. It's not an excuse for late nights, all-pizza-and-ice-cream diets, unlimited television, and trips to the nearest amusement park. That's what grandparents are for.
The non-primary parent's home needs to be the kids' true second home, with a dedicated space for them to sleep and study, chores, responsibilities, limits, consequences, and routine. Those all provide a solid foundation for children in any situation, but children of divorce need them even more.
Ensuring that visits with non-primary parents are “an extension of, rather than a vacation from, their routine” can help kids build the strong parental relationship that they want and need, the firm writes.
November 5, 2012 by Amy Hunt at 2:04:00 pm Without a Valid Pre-Nup, Sanders’ Assets Would be Community Property
Jeff Anderson, a partner in the Dallas family law firm of McCurley Orsinger McCurley Nelson & Downing, said if the Collin County Judge in the Deion and Pilar Sanders divorce case had invalidated the couple’s premarital agreement, it would have been “a game changer.”
In an interview with Dallas’ Fox 4 News, Anderson (who is not involved in the case) said that, without a premarital agreement (also known as a prenuptial agreement), the couple’s assets would have been considered community property “unless proven otherwise.” That would have probably given Pilar Sanders a much larger share of the former Dallas Cowboys’ assets, according to the law firm’s most recent blog posting.
Despite Pilar Sanders’ contention that her initials were forged in several places in the premarital agreement, the judge ruled that the agreement was valid.
November 1, 2012 by Robert Tharp at 3:05:00 pm Lanier Lawsuit: Pasadena Police Beat, Hogtied Man, Denied Him Medical Attention Before His Death
A Houston Chronicle article published today detailing a federal Civil Rights lawsuit against Pasadena police paints a chilling picture of the last moments of 41-year-old Jose Sauceda Jr.’s life.
Reportedly beaten, shackled in a “hogtie” position face-down on a stretcher and left without medical care in a Pasadena, Texas, hospital room, 41-year-old Jose Sauceda Jr.’s death in custody raises serious questions about his treatment by police. The lawsuit filed by The Lanier Law Firm on behalf of Mr. Sauceda’s family seeks answers about how the married father of four died in police custody after his March 25, 2012, encounter with Pasadena officers.
According to the lawsuit, Mr. Sauceda was detained by Pasadena police on suspicion of driving while intoxicated. He was taken to Bayshore Medical Center for a blood test after being beaten by police and hogtied face-down on a stretcher, according to the suit filed Oct. 26 in the 127th State District Court.
Writes the Houston Chronicle: The defendants, who deterred attempts by hospital staff to assess and treat Sauceda, watched him struggle, turn purple and blue and die, the suit claims.
"That's the thing that is most mind-boggling here," said attorney Lawrence P. Wilson of The Lanier Law Firm in Houston. "Did they not realize he was in distress? Did they not at some point say, 'You know what? We ought to let the medical people check him out.' "
After Mr. Sauceda was transported to the hospital and placed in a private room, the lawsuit says, at least one Pasadena police detective and several officers looked on while he struggled for air and eventually died. According to the family’s claims, the same officers prevented hospital nurses from caring for Mr. Sauceda’s obvious injuries.
“Jose’s family wants answers, and they deserve to know why this happened and who should be held responsible,” says Mr. Wilson, lead counsel for the family. “How can a room full of police officers stand a few feet away while a healthy man is suffocating right in front of them?”
October 30, 2012 by Amy Hunt at 3:38:00 pm Drafting a Prenup? No Crossed Fingers, Please
When a character on a TV show signs a prenuptial agreement, it’s often portrayed as “an unbreakable vow” that leaves the less asset-rich spouse with no possibility of contesting it.
The truth is there are several circumstances in which a prenup, also called a premarital agreement, can be declared invalid. One of the primary ways a prenup can be undone is if one of the spouses was dishonest when the agreement was drafted, R. Scott Downing, a McCurley Orsinger partner, told the Reuters news service.
Mr. Downing told Reuters of a case in which his client was able to get a prenup thrown out “after a court ruled her husband had community property worth millions that he hadn't disclosed to his wife.”
One of the husband's downfalls was that he had given his wife a revised prenup on their wedding day. When she said she wanted to call her attorney, he lied, saying that her attorney had said it was okay to sign it.
"People need to know that if you're going to promise somebody a complete disclosure in a prenup, you'd better give it to them," says Downing.
October 30, 2012 by Robert Tharp at 3:30:00 pm Amusement Ride Safety in Spotlight Following 2012 State Fair of Texas Mishaps
Teasing danger is certainly a big part of the allure of midway carnival rides at the State Fair of Texas and carnivals and fairs big and small across the country. As the rides have gotten bigger, faster and more sophisticated, the carnival ride industry has matured with better oversight and more safety protections for passengers.
But this year’s record-breaking State Fair of Texas points the need for more work to be done. On the same day that the iconic Big Tex was incinerated in a dramatic flash fire, riders on the already troubled Statosphere ride were left dangling nearly 200 feet in the air for more than two hours.
Meanwhile, another ride at the State Fair of Texas, the Techno Power(also known as Re-Mix II), was involved in a mishap at the 2011 San Diego County Fair. In that incident, the ride malfunctioned and started up as passengers were disembarking, throwing one passenger and seriously injuring a ride operator. Investigators were unable to pinpoint the precise cause of the accident, but the ride was rewired and allowed to go back in commission in advance of the State Fair of Texas. And earlier this year, a Houston man died when he fell from the Hi-Miler roller coaster at the Houston Livestock Show and Rodeo.
The increased focus on amusement ride safety at the State Fair of Texas is in part a result of work by Dallas personal injury lawyer Frank L. Branson who represented victims of a 1983 accident involving the “Enterprise” ride at the State Fair of Texas in 1983, which killed one rider and seriously injured another. As part of a settlement in that case negotiated by The Law Offices of Frank L. Branson, fair officials agree to implement extra monitoring and safety measures.
"They've certainly changed for the better," Mr. Branson says. "There's still a lot of hazard out there."
October 29, 2012 by Robert Tharp at 12:00:00 am Election Day is no Holiday, But Employers in Most States are Required to Give Workers Time Off to Vote
Voters in some states have reported waiting as long as five hours to cast early voting ballots for the 2012 presidential election. With election day(November 6) fast approaching, some workers are no doubt wondering how they will find time to vote if they’re expected to put in a regular full day of work at their jobs. There’s even a movement afoot to make voting a national holiday or to move election day to a already designated holiday, such as the second Tuesday in November, Veterans Day.
Writes The Atlantic: The idea that voters shouldn't have to work on Election Day isn't a new one -- every four years, there are new calls, though none of them has been successful. We cast ballots on a Tuesday for outdated historical reasons. When the date of elections was fixed on the first Tuesday after the first Monday in November in 1872, Sunday was out of the question, as poll-related revelry would have fatally conflicted with the sabbath, and most people worked the other six days anyway. But since the establishment of the five-day work week, the placement no longer makes as much sense.
What many workers and some employers don’t realize is that state laws typically require employers to provide job-protected time off to vote, says Audrey Mross, who heads the labor and employment practice at Munck Wilson Mandala in Dallas.
"The Texas version of the law says employees get time off unless their schedule provides two consecutive non-working hours during the time the polls are open," Mross says. Some states, such as California, require workplace posters that inform employees of their rights as voters. Others prohibit discrimination against those who engage in certain political activities, such as running for office or working at a polling place.
October 11, 2012 by Robert Tharp at 12:00:00 am Uncertainty Remains Over Arbitrator Disclosure
For veterans of the legal profession, the world has a way of feeling incredibly small at times. Law school roommates become judges. Former colleagues end up on the opposing side in lawsuits. In any given case, it can take a Venn diagram to detail the shared histories between opposing lawyers, judges, arbitrators and experts.
The age-old challenge is determining where to draw the line and when to disclose a potential conflict. The United Nations Commission on International Trade Law (UNCITRAL) tried to tackle the topic with new disclosure rules for arbitrators, but Gardere Wynne Sewell LLP partner Juan M. Alcalá of Austin says there’s more work to be done.
"With respect to an arbitrator's disclosure standards, there remains uncertainty as to what constitutes a circumstance worthy of disclosure,” says Alcalá, who co-wrote the chapter "Arbitrator Disclosure Standards in a State of Flux" in the International Centre for Dispute Resolution book, "ICDR Awards and Commentaries." “The uncertainty will continue until there is a uniform standard and rules for determining an arbitrator's disclosure responsibilities."
October 11, 2012 by Dave Moore at 12:00:00 am Trial Lawyer Bill Chamblee: Organizations Can Learn From Boy Scouts Allegations
The Boy Scouts of America is reeling in response to a court order to release a trove of closely guarded internal files documenting the group’s poor record of protecting young boys and adolescents from sexual abuse. Dallas trial lawyer Bill Chamblee says the experience of the BSA offers valuable lessons for organizations of any kind.
An Oregon court recently ordered the non-profit Boy Scouts organization to open its so-called “perversion files,” which detail sexual abuse at the hands of troop leaders and other adults affiliated with the organization dating back to 1965.
Based on preliminary analysis of these so-called “perversion files,” the Scouts in failed in many cases to report the allegations to police in an apparent effort to protect the Boy Scouts’ public reputation.
Writes the Los Angeles Times’ Carla Hall:That pattern sounds horribly familiar. As with the sexual-abuse cases that rocked the Roman Catholic Church and the Jerry Sandusky case at Penn State, here is another situation in which authorities, entrusted to care for young people, failed to deal properly with molesters in their institution, which led to more children and youths being victimized.
Adds Chamblee of Dallas-based Chamblee, Ryan, Kershaw & Anderson: "Any organization, especially those that deal with the mentoring or supervising of children, needs to conduct thorough background checks on individuals before putting them in positions of trust. If there are reports of abuse, organizations must act swiftly, not just to protect themselves, but also to prevent further abuse. As we've learned from the Catholic Church, any attempt to hide wrongdoing can make an organization a party to abuse."
October 9, 2012 by Robert Tharp at 1:32:00 pm Energy Boom Brings Deadly Truck Crashes to South Texas
The billions of barrels of oil sitting in the Eagle Ford Shale of South Texas have generated a boom in oil and natural gas production and provided much-needed jobs and economic growth in those areas with underground energy reserves. But the most recent blog posting by the Law Offices of Frank Branson shows that this new and welcome prosperity comes with a tragic downside: a dramatic increase in deadly truck crashes.
According to an analysis by the San Antonio Express-News:
Since the beginning of the boom, accidents involving commercial vehicles [in McMullen county] have increased more than tenfold, from four crashes in 2008 to 46 crashes in 2011, according to crash data compiled by the Texas Department of Transportation.
Neighboring La Salle County has had a 418 percent increase in that type of crash since 2008. . . .
The most frequently cited causes for McMullen County accidents were truck drivers ignoring signs in construction zones and defective headlights, according to the TxDOT data.
According to the Branson firm’s blog, not only do truck crashes cause fatalities, “but they also wreak havoc on nearby residents and make routine errands almost unbearable,” in addition to causing extensive damage to area roads.
September 18, 2012 by Robert Tharp at 12:00:00 am Texas Landowners Benefit From Frontier-Era Homestead Law
Texas home and property owners enjoy particularly robust protections from creditors that shield against the forced sale of a home to meet the demands of creditors. What many don’t know is that these safeguards can be traced directly to early Texas history when founders were motivated to make the state attractive to settlers.Many Americans who settled in Texas in the early nineteenth century were pursued by their creditors, and for their protection Stephen F. Austin recommended a moratorium on the collection of the colonists' foreign debts, notes the Handbook of Texas Online."Early leaders wanted to settle the state as quickly as possible," explains bankruptcy lawyer Frances Smith of Dallas-based Shackelford Melton & McKinney. "To encourage settlers to move to Texas, founders advertised generous homesteads, which were protected from creditors." As a result, Texans' homesteads – the land and house they occupy – always have been exempt from general creditor claims. This generally covers up to 10 acres of urban land, and up to 200 acres of rural property. "Texas doesn't cap the value of your homestead," adds Smith. "Some states will say you get your homestead up to $25,000 or $30,000, but Texas does it by the land area, so it doesn't matter what the dollar value might be. Whether your 200 acres is worth $2 million or $200,000, it doesn't matter. Each of your 200 acres is protected."
August 24, 2012 by Robert Tharp at 12:00:00 am Penn State's Freeh Report Offers Lessons for All Employers
Former FBI director Louis Freeh’s exhaustive report on the Penn State sex abuse scandal offers a sobering picture of the workplace culture inside Penn State that allowed Jerry Sandusky’s pattern of child sexual abuse to go unreported for so long. While businesses and employers would prefer to think that their workplace environment is far different from that of Penn State and its mighty football program, employment attorney Audrey Mross at Dallas-based Munck Wilson Mandala LLP says the Freeh Report findings and recommendations offer valuable tips that any business can use.
The report pulls no punches in outlining “catastrophic” leadership failures within the school. Writes the Washington Post:
The report wrote that four of the top officials at the university “failed to protect against a child sexual predator harming children for over a decade.” It says that the former president “discouraged discussion and dissent.” And it notes that the “most senior leaders” at Penn State demonstrated “total and consistent disregard…for the safety and welfare of Sandusky’s child victims.”
Top leaders were “unchecked by the Board of Trustees that did not perform its oversight duties.” The board “failed in its duties to oversee the President [Graham Spanier] and senior University officials in 1998 and 2001 by not inquiring about important University matters and by not creating an environment where senior University officials felt accountable.” And they were blamed for “overconfidence in Spanier’s abilities to deal with the crisis,” a “complacent attitude” and a failure to have “regular reporting procedures or committee structures in place to ensure disclosure to the Board of major risks to the University.”
One might argue that if the president chose not to alert the board about incidents in 1998 and 2001, then the trustees were simply left in the dark and couldn’t have done more. The Freeh report sees it differently. Because it did not have “regular reporting procedures or committee structures in place to ensure disclosure” of major risks, the board “failed to exercise its oversight and reasonable inquiry responsibilities,” the report states.
Beginning at page 127 of the report, numerous recommendations offer ways to make any organization accountable and more transparent, establish higher ethics and oversight standards and develop ways to ensure that workers feel comfortable voicing concerns.
"Offering protection to whistleblowers who point out wrongdoing, holding leaders accountable for their actions, and having zero tolerance for abuse are touchstones that all organizations should adopt," says Mross, whose labor and employment practice includes helping clients develop workplace employment policies and guidebooks.
August 23, 2012 by Robert Tharp at 12:00:00 am After hanging up the skates, Mike Modano's marriage hits the skids
Many were surprised by the news this month that retired Dallas Stars hockey legend Mike Modano and singer/actress wife Willa Ford have filed are divorcing after five years of marriage and four previous years of courtship.
Details may one day shed light on the causes of this sports star/entertainment celebrity breakup, but observers point out that it’s notable that the breakup comes less than a year after Modano experienced a major life change by retiring from his pro hockey career. Relationships involving highly successful dual-career couples often come under strain when one partner retires, says Brad LaMorgese, a partner in the Family Law firm of McCurley Orsinger McCurley Nelson & Downing L.L.P.
"The toll paid on a marriage when a spouse has a major change in their professional life can be irreparably compounded when the other is still moving ahead full speed in their chosen field," LaMorgese says. "The initial compromises a high-power couple forge to make their relationship work may not be able to withstand the seismic shift in goals and expectations."
August 21, 2012 by Robert Tharp at 12:00:00 am Ruling Imminent in Challenge to Keystone XL Pipeline Eminent Domain Case
With construction now underway on the Texas leg of TransCanada’s Keystone XL pipeline, players on both sides of the politically polarizing project are anxiously awaiting an east Texas judge’s ruling on a closely watched challenge to TransCanada's use of eminent domain to obtain right-of-way use of private property.
In a recent Law360 update on the court battle between an individual property owner and TransCanada, real estate and eminent domain lawyer Charles Fiscus of Shackelford Melton & McKinley in Dallas described how the two sides are locked in a battle over the oil company’s designation as a “common carrier,” which allows it to seize private property. As such, TransCanada must prove the project will benefit the public, and not just the company.Writes Law360:
Fiscus said the Crawford case was “the exception as opposed to the rule” when it comes to condemnation suits brought by oil and gas companies because the vast majority of such cases are settled. But Fiscus noted that the case raises issues that should cause litigators to take pause when seeking a judicial condemnation judgment based on common carrier status. Because property ownership is a politically and emotionally charged issue, Fiscus said the perception that private land is being taken for a commercial purpose raises the evidentiary bar.
“The further your client gets away from being a public entity ... the more you’re going to have to make sure you can prove you are taking the land for public use,” he said.But the high-profile nature of the case makes it likely that public officials will be paying close attention to the ability of common carriers to condemn land, particularly with a seat on the Railroad Commission set to be filled in November, Fiscus said.
“The pipeline is coming through a lot of farmland and land that has been in family hands for three or four generations,” he said. “People are attached to their land.”
August 3, 2012 by Dave Moore at 12:00:00 am Billing Suit Against Texas Vascular Associates a Volley in War Against Medicare Fraud
Medicare fraud costs U.S. taxpayers $60 billion a year, according to Justice Department estimates. Cortez Mills, a former employee of a Baylor-affiliated physicians group, recently blew the whistle against such fraud, alleging that she was fired from her job at Dallas-based Texas Vascular Associates (TVA) when she refused to double bill and overcharge Medicare, insurance companies and patients. “Ms. Mills identified what we believe was an illegal scheme at TVA, and she lost her job for refusing to play along,” says Dallas employment attorney Matt Scott of the Kendall Law Group, who represents Ms. Mills. “She had the courage to speak up and recognize this was wrong.” The complaint, filed on July 26, alleges that when Mills declined her employer’s instructions to participate in TVA’s fraudulent billing scheme, a TVA supervisor responded: “He pays your salary, do what he says.” Probes into overbilling – referred to as “upcoding” – and other forms of medical billing fraud have uncovered billions of dollars stolen from the federal government and is “one of, if not the most profitable crimes in America,” reports news magazine “60 Minutes”: …The FBI arrested 53 people in Detroit, including a number of doctors, and charged them with billing Medicare more than $50 million for unnecessary medical procedures.And in Los Angeles, the City of Angels Medical Center recruited homeless people off the street to fill their empty beds, offering them cash and drugs plus clean sheets and three square meals a day, while billing Medicare tens of millions of dollars for their stay.“We have to understand this is a major fraud area,” United States Attorney General Eric Holder told (“60 Minutes” correspondent Steve) Kroft. Mills has taken and passed a polygraph exam indicating that what she says about the billing practices at Texas Vascular Associates is true. In addition, another former TVA employee has signed an affidavit saying she witnessed the same kinds of billing problems during her tenure at the practice.
July 13, 2012 by Robert Tharp at 12:00:00 am Estate tax lawyers develop new strategies as gift/death tax loopholes set to expire
The clock is winding down on what BusinessWeek calls an “unprecedented opportunity” to transfer wealth among family members. The ability to transfer as much as $5.12 million in assets tax-free is set to close on December 31, and with that an opportunity for wealthy individuals to share assets and save millions in taxes.
Writes BusinessWeek: Legislation enacted in 2010, which raised the lifetime gift-tax exclusion to $5 million from $1 million for each person starting last year, is set to expire. For 2012, the inflation-adjusted figure is $5.12 million for each person. It will drop to $1 million on Jan. 1 unless Congress acts.
Money or property given while alive may be subject to the gift tax, and wealth transferred at death may incur levies applied to estates, according to the Internal Revenue Service. Under current law, an estimated 3,300 households may have to pay estate taxes this year, according to the Washington-based Tax Policy Center. The figure would increase to about 52,500 estates next year if the exemption drops to $1 million, data from the nonpartisan research group show.
With the tax break set to expire, Dallas attorney Dan Baucum of Dallas-based Shackelford Melton & McKinley says the well-to-do are turning to exotic techniques in a last-ditch effort to protect their investments from the looming tax uncertainty. "Some families have tried to delay the inevitable death tax through provisions in their Last Will and Testament documents, and a few have created 'Family Limited Partnerships,'" says Baucum, a former special assistant to the IRS associate chief counsel. But for those with working assets, such as a family farm or business, these options won't work. Instead, they are opting for a "Defective Grantor Trust" where parents make a seed gift or sale to a trust with special terms that treat themselves as the owners. This gives them control, but gifts future appreciation to their heirs. "Generally speaking, property values are at or near their all-time lows. If you're going to 'sell or gift' to your heirs, now may be the time to do it," he adds.
June 22, 2012 by Robert Tharp at 12:00:00 am Employment Discrimination Lawsuits Spike Since 2008 ADA Revisions
Employment discrimination lawsuits under the Americans with Disabilities Act (ADA) have nearly doubled in the last five years, and this trend shows no signs of slowing down, according to the Transcational Records Access Clearinghouse. The 90 percent increase in discrimination lawsuit filings follows changes to the ADA in 2008 that significantly broadened the range of workers protected under the statute and simultaneously made it harder for employers to obtain summary judgments for frivolous complaints, says employment litigator Michael Baum of Dallas-based Munck Wilson Mandala.
"The broader definitions of who qualifies as 'disabled' under the ADA, coupled with an economic downturn in which out-of-work employees are more likely to sue their former employers, has resulted in a significant uptick in these types of lawsuits across the country," he says. Writes the Washington Times:In the last fiscal year, disability-related complaints lodged with the Equal Employment Opportunity Commission (EEOC) also rose to their highest level, at 26,000, and payouts to complainants through that process nearly doubled to $103 million compared with the figure from 2007. That does not include money paid out to those who took their complaints to court.The flood includes more frivolous claims than ever: Despite the broadened law, the EEOC saw the highest percentage yet deemed “no reasonable cause” last year.The ADA Amendments Act of 2008 undid a court precedent requiring judges to take into account “mitigating measures” that treat disabilities, effectively saying that hearing-impaired people are not disabled if they wear hearing aids that restore hearing. Attorneys for employees say those measures don’t entirely undo a person’s disability.
June 8, 2012 by Robert Tharp at 12:00:00 am SCOTUS Set to Weigh In on Rise in Debt Collection Lawsuits
The number of lawsuits filed against debt collectors under the Fair Debt Collection Practices Act has skyrocketed from 3,200 in 2006 to more than 12,000 last year, in part because of a litigation business model in which law firms that specialize in Fair Debt Collection Practice Act (FDCPA) claims file large volumes of cases in which successful plaintiffs collect a relatively modest award while the law firms reap significant legal fees paid by the defendant.
That model could change now that the U.S. Supreme Court is set to weigh in on whether plaintiffs who unsuccessfully sue debt collectors can be required to pay the defendant’s legal fees. Dallas collections attorney Brandon Starling of Shackelford Melton & McKinley says a ruling that upholds the lower court’s opinion has the potential to shift the legal landscape and reverse the trend.
“This might make law firms that file massive numbers of these fair debt collection suits think twice,” Starling says. “If the Supreme Court were to say these debt collection firms can be awarded fees and costs in their legal defense, it might make these plaintiff firms more reasonable and easier to deal with.”
Writes the ABA Journal: The case turns on the interplay between the federal rule and this provision of the Fair Debt Collection Practices Act: “On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.”
June 6, 2012 by Robert Tharp at 2:00:00 pm Dallas Personal Injury Lawyer Crunches Boat Safety Stats
An avid boater, Dallas personal injury lawyer Robert S. Gregg has seen firsthand how cavalier attitudes about boat safety can have serious consequences. Gregg collected boat accident stats going back five years and came up with some very interesting results. His analysis found that operator inattention and alcohol consumption are the top contributing factors for boat accidents on Texas lakes. Additionally, Gregg found that the boat accidents traditionally spike during the busy Memorial Day weekend. See a news report on Gregg's analysis by CW 33's Dawn Tongish below.
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