Wednesday, May 23, 2018

Global Talent Mobility: What Oil and Gas Employers Need to Know

Originally published by Dilnaz Saleem.

 

A major obstacle facing oil and gas companies is locating, recruiting, and retaining global talent in light of the heightened attention and scrutiny
      

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Dallas Litigator Sues FindLaw Over ‘Cookie Cutter’ Firm Website

Originally published by John Council.

 

A Dallas attorney has lodged a fraud suit against the online legal marketing company FindLaw, alleging he was duped into thinking they would create a unique website for his new law firm but instead provided one that was “cookie cutter and “unimaginative.
      

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Recent Google Algorithm Updates

Originally published by Stacey E Burke Blog.

Google has rolled out a number of algorithm updates recently. The beginning of 2018 has been extremely turbulent for search engine rankings as websites still recovering from previous updates have been tossed up again by these newly rolled out updates. One of the most notable updates was confirmed by Google and occurred mid-March. This was a “broad core algorithm update” that impacted the appearance and rankings of some websites in search results. Glenn Cabe and others dubbed this update “The Brackets Update.”

Update One: Google Confirms Broad Core Algorithm Update

Google does not generally announce updates to its core algorithm because they happen several times a day. This update is different. It isn’t one of the usual daily Google updates.

This update is a kind of update that happens several times per year. Google calls them Broad Core Algorithm Updates.

For the past few years, the SEO industry has been operating as if Google’s algorithm was exclusively targeting low quality web pages. Google not only denied it, Google’s spokespersons actively discouraged such speculation. With The Bracket Update, Google stated it was not penalizing websites for low quality content, but it was actually rewarding previously under-rewarded websites with good content.

According to Search Engine Journal, this is what we know:

  1. The update was focused on providing better search results
  2. There is nothing wrong with sites that lost rankings
  3. There is no way to “fix” sites that lost rankings
  4. The improvements are focused on the content but it is not a “quality” issue (Google is not focused on finding bad quality content, just the opposite)

Update Two: Google Expands Mobile-First Indexing

Google announced it rolled out mobile-first indexing to more sites. This rollout is only for sites following best practices for mobile-first indexing.  To be sure, mobile-first indexing began a while back, and a significant number of sites have already been migrated to mobile-first indexing. Some industry stalwarts noted a first significantly sized batch of mobile-first notifications went out to webmasters in late April 2018. According to many experts, it’s one of the most significant changes to Google search results for quite some time.

What Is Mobile-First Indexing?

Since there are now more searches being conducted on mobile devices than desktop browsers, Google adjusted its algorithm to ensure users find content that’s optimized for their screens. In an effort to deliver the best experience for searchers across all devices, mobile-first indexing means Googlebot will only crawl and index the mobile version of a webpage.

The mobile version of your website will be considered the primary version for ranking purposes, but information on the desktop version may be used to help rank your site. If you have no mobile version at all, Google will crawl your desktop site as-is, but eventually Google will stop crawling and indexing desktop versions of websites.

To clarify, there is no ‘mobile-first index’ separate from the main index. All content still lives within the same index, but Google now indexes and uses the mobile versions of websites first when they are available.

Expert Level Tip: When creating and designing websites, most people start by creating a desktop version, but with the prevalence of mobile devices, law firms should design the mobile version first. If your law firm has a separate mobile website that is not identical to your desktop site, you should change it and use responsive design. Having a single URL that adapts to all devices is better for your audience and search engines. This will greatly help your law firm’s search engine rankings.

When it comes to algorithm updates, it helps to keep Google’s goals in mind.

Google wants to:

  1. Understand user intent
  2. Understand content
  3. Provide the best and most relevant search results to its users

Search engine rankings are constantly in flux as Google continues to update its algorithms. If an update causes a website to experience a decrease in rankings, often the site will bounce back after a few weeks or months.

Keeping Up With The Algorithms

If you already have a fully responsive website – which we highly recommend – your mobile and desktop pages should already be equivalent. This means you don’t really have to do anything to your website for the mobile-first index. But, if you are like a lot of law firms we talk to, and your website has neither a mobile version nor is responsively designed, we need to talk.

 

 

Click on the embedded tweet below to find the original string of tweets from Google about the first update:

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Tuesday, May 22, 2018

Contempt & Inability to Comply: Opinions

Originally published by mkhtx.

Three new memorandum opinions to discuss this morning! The First District Court of Appeals released its opinion in In re White, No. 01-18-00073-CV on contempt and the Fourteenth Court of Appeals released two memorandum opinions which primarily concern the division of the marital estate: Slagle v. Slagle, No. 14-16-00113-CV, and a barnstorming 32-page opinion in In re Mugford, No. 14-16-00436-CV.

In In re White, father filed an enforcement alleging four violations of a previously entered modification order against mother. That modification order incorporated an MSA signed by the parties. The trial court found two violations: 1) the mother canceled a counseling session; and 2) the mother violated the MSA requiring her to transport the child to and from each counseling session because the MSA required her to take the child to counseling at least once a month but she had taken the child to only four sessions in the six months following the agreement. Mother was held in contempt and placed on community supervision.

Mother filed a habeas corpus proceeding arguing the contempt order must be set aside because: 1) the underlying order was not specific enough to support contempt; 2) she did not violate the underlying order; and 3) the evidence showed an inability to comply with the requirements that the trial court imposed.

Regarding the mother’s cancellation of the counseling session, the Court of Appeals sustained the mother’s objection to this contempt finding because the provision in the underlying order required her to “follow the counselor’s recommendations regarding the frequency of the sessions.” Because mother’s actions in canceling a counseling session did not violate the terms of the order, the contempt finding was set aside.

The order did require her to bring the child for reunification counseling “a minimum of once a month.” The Court of Appeals found the evidence supported the trial court’s finding of a violation because the evidence showed that mother admitted that between March 2017 and December 2017 she took the child to a total of four sessions. Mother’s challenge to the violation finding was overruled.

But Mother also argued that she established a defense by proving an involuntary inability to comply with the underlying order. Specifically, she argued her son is a six-foot-tall, 17-year-old football player and she is unable to force him to attend counseling if he refuses. Both the mother and her son testified that the son refused to attend the canceled session, despite mother’s admonitions that he do so. The son further testified that after telling his mother he would not go to the session, he took the car and left the house. The Court of Appeals held that the mother and the son were interested witnesses and that the trial court was free to disbelieve their testimony and thus determine mother had the ability to comply and that the mother had not conclusively established her involuntary inability to comply. (While the holding of the Court of Appeals makes sense, one must wonder if mother could have established this defense and if so, how.)

In summary, the first violation was set aside, but the second was affirmed.

In Slagle v. Slagle, the husband challenged the division of the marital estate. Specifically, he argued: 1) the trial court erred in finding a business was his separate property and that the community estate was entitled to reimbursement for community funds used to benefit the SP business; and 2) the trial court violated his due process rights in several ways. The Court of Appeals affirmed the trial court.

Husband and wife married in 2000. Wife filed for divorce in 2014. At the time the divorce was filed, wife was employed full time, but husband (who had an MBA in accounting and finance) was not. He admitted that he was devoting more than sixty hours a week to “spending money” on a lawsuit involving his separate business. Husband also spent all of his free time day-trading, which he evidently was not successful at, losing $130,000 in 2013 alone.

Husband’s separate property business, Graphic Creations, existed at the time of the marriage, with two locations in amusement parks operated by Six Flags. During the marriage, Graphic Creations grew to six locations. Under its agreement with Six Flags, Graphic Creations paid 30% of its earnings to Six Flags. Wife testified that the business was profitable and husband had used it to pay his way through college. But the business hit hard times when Six Flags did in 2007. Six Flags increased the fee to Graphic Creations to 40% of earnings. Graphic Creations sued Six Flags over the increase. Wife testified that husband did not earn an income after 2007. Husband maintained an office for Graphic Creations until he shut down the business in 2013.

Wife testified that husband spent all of his time on the Six Flags lawsuit, leaving the house at 6 am and sometimes not returning until 2 am and that during this time he began taking Adderall. Husband returned the salary he paid himself from Graphic Creations which totaled $164,502. Wife testified that loans to Graphic Creations from her salary totaled $681,042.

The trial court found the community estate was entitled to a reimbursement from husband’s separate estate for $681,042 and that wife was entitled to a judgment of $340,521.00. To “pay” this judgment, wife was awarded the house, the entire 401(k), and the entire IRA, which still left a debt of $65,391. To offset this debt, husband was awarded the AMEX and Chase Visa credit card debts (which totaled only $42,000).

Husband challenged the division because, according to him, it awarded 100% of the community’s assets to wife and 100% of the community’s debts to him. The Court of Appeals overruled the issue because the evidence admitted supported the judgment.

In his second issue, the trial court violated his due process rights by 1) allowing wife to file amended pleadings days before the final trial; 2) wife failed to serve her trial exhibits and her inventory on him prior to trial; and 3) the trial court failed to adhere to various local procedural rules and the Texas Rules of Civil Procedure. But he failed to preserve error during trial and the issue was overruled. The trial court was affirmed.

Finally, in Mugford v. Mugford, wife challenged various portions of the divorce judgment including property and custody issues. Mother and father are Canadian citizens who moved to Friendswood for husband’s work. The parties separated in 2015 and a jury trial was held in December 2015. The jury named the parties as JMCs with mother as primary. The jury also found that grounds for divorce existed on the basis of cruel treatment by both parties and adultery by father. The jury also determined the characterization of eight items of property, six of which are challenged on appeal. Remaining issues, such as terms of possession and access and division of the marital estate, were decided by the trial court. A final decree was entered on March 16, 2016 and mother timely appealed.

In her first issue, mother claimed the trial court erred by employing a smaller geographic restriction in its judgment than the jury provided. That is, the judgment allowed her to designate the child’s primary residence within 30 miles of the city limits of Calgary, Alberta, Canada, but the jury’s answer allowed a radius of 50 miles. The Court of Appeals found that mother was misinterpreting the jury’s answer which gave a geographic area as “Calgary, Canada & 50 mi outward radius–or–Galveston County & contiguous counties.” Thus, the jury did not give her a 50 mile radius from the city limits of Calgary,  but 50 miles from the center of Calgary. Because the record did not reflect how far the city limits of Calgary are from its center, it also did not show that the geographic restriction in the judgment was smaller than that awarded by the jury. Nonetheless, the Court of Appeals found that the trial court did not enter the jury’s verdict in its decree and that the trial court was not permitted to “clarify” the jury’s answer. The issue was sustained and, in its conclusion, the COA modified the decree to reflect a fifty-mile outward radius of Calgary as the geographic restriction.

In her second issue, mother argued the trial court erred by granting father a SPO incorporating the “alternate beginning and ending possession time” found in section 153.317 of the TFC.  The decree stated that the minor variations in the possession order from the SPO were in the best interest of the child under TFC §153.253. (Only in her reply brief did mother assert the evidence in support of the variation was legally and factually insufficient, which the COA said was too late.) Because section 153.253 allows variation from the SPO and the evidence in the record of father’s work schedule, the child’s school schedule, and father’s frequent travel to Canada supported a variation, the issue was overruled.

Issues three through fifteen concerned the division of the marital estate. First, issues three through six concerned the admission of expert testimony. Mother’s third issue is that the trial court erred by allowing father’s expert to testify about the terms of the lines of credit used to purchase the Friendswood house because the expert had never read those notes and/or contracts and they were not produced prior to trial pursuant to requests for discovery. The fourth issue was overruled because it was inadequately briefed. In issue five, mother argued the trial court erred in admitting the same expert’s testimony and report (except for the reimbursement claims) because he erroneously characterized the bank debt as father’s separate liability and the resulting loan proceeds as father’s separate property. In issue six, mother argued the trial court abused its discretion by admitting the expert’s testimony because his misstatements of law rendered his opinions concerning the character of the marital property incorrect and unreliable. Mother had filed a Daubert motion before trial, a hearing was held, and the motion was overruled. Mother does not challenge the expert’s qualifications or the relevance of his testimony, but whether his testimony was based on a reliable foundation.  The trial court’s job is not to determine whether the expert’s conclusions are correct, but whether the analysis used by the expert is reliable. The bulk of mother’s complaint is that the expert mischaracterized the debt from three lines of credit as father’s separate property and the distributions from a funding entity as father’s separate property. As it was not the trial court’s job to determine the accuracy of the expert’s conclusion, issues three, five, and six were overruled.

In issues seven through nine, mother argued the trial court erred by admitting a loan document, Petitioner’s Exhibit 130. Mother objected to the admission of PE 130 on the grounds it had not been produced in response to her third supplemental request for production. She also claimed unfair surprise, denial of due process, failure to authenticate, and hearsay. Father acknowledged the document was not produced in discovery, but stated the requests for production were limited in time to the start of the marriage and the document was dated well before then. While mother’s brief included a footnote reciting the RFP (and father did not dispute that the recitation was correct) mother did not refer the Court of Appeals to the location of the requests in the record and the requests themselves fail to indicate whether or not they are limited to a specific time period. The COA held that mother’s “failure to cite to the relevant portion of the trial court record prevents this court from resolving this claim on its merits and therefore waives appellate review.” Issue seven was overruled (ouch).

Mother also argued the exhibit was not properly authenticated but father’s uncontroverted testimony was that the document was scanned and emailed to him from the Royal Bank of Canada and thus the record contained evidence that the document was what father claimed it was and thus the trial court did not abuse its discretion by overruling mother’s authentication objection. Issue eight was overruled.

Mother also objected to the document on hearsay grounds and the COA agreed that the the trial court erred in admitting the document over mother’s hearsay objection. But then the inquiry turned to whether the error probably caused the rendition of an improper judgment. Mother did not explain how the admission of PE 130 probably caused the rendition of an improper judgment. Issue nine was overruled.

In her tenth issue, mother complained she was not allowed to bring in her own expert after PE 130 was admitted. The COA found this point was inadequately briefed and thus overruled.

Issues eleven through thirteen related to the characterization of marital property and fourteen concerned mother’s reimbursement claims. The Court of Appeals went into great detail on the amounts and percentages of various accounts found to be father’s separate property, overruling issue eleven as to four out of five accounts. For one  account (“Account 1418”), the COA found that no witness testified about the account and that the exhibits did not corroborate father’s claim that the account was entirely his separate account and mother’s issue was sustained as to that account.

Regarding the real property in Friendswood, the jury found 78% of the house was father’s separate property and 22% was community property. The COA held that a reasonable fact finder could find there was clear and convincing evidence sufficient to overcome the community property presumption. Issue twelve was overruled.

In her thirteenth issue, mother argued the trial court erred in sustaining father’s objection to mother’s attempted explanation of Texas law on partition or exchange of community property during opening argument. The COA found the trial court did not err in sustaining the objection because P&E agreements were not relevant in this case.

Mother’s fourteenth issue argued the evidence was legally and factually insufficient to support the jury’s answer to the question concerning the community estate’s claim for reimbursement from father’s separate estate. The jury awarded $12,020 as reimbursement owed by father to the community estate. Mother asserted she was entitled to additional reimbursement, but the COA found she failed to establish as much and the issue was overruled.

Finally, in her fifteenth issue, mother claimed the trial court abused its discretion in dividing the community estate because the division was “grossly” disproportionate and awarded “the majority” of the community estate to father. First, mother’s argument that the community was entitled to $24,821 of Account 1418 was not evidence of an unfair and unjust division. But beyond that, to determine whether the assets of the community were divided in a just and right manner, the COA requires the court’s findings on the value of those assets and without those findings, the COA cannot know the basis for division, the values assigned to the community, or the percentage of the marital estate each party received. Neither the judgment nor the findings of fact or conclusions of law reflected the value the court assigned to each asset or liability or the value of the community property. The parties’ respective inventories do not substitute for the court’s findings and the issue was overruled.

In conclusion, the decree was modified to reflect the jury’s response concerning the geographic restriction, but the record did not reflect the trial court abused its discretion in the overall division, nor did the trial court abuse its discretion in ordering minor variations from the SPO. As modified, the decree was affirmed.

 

 

 

 

 

 

 

 

 

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A Class Waiver Can Be A Condition of Employment

Originally published by Seyfarth Shaw LLP.

By: Noah A. Finkel, David S. Baffa, Daniel C. Whang, and Andrew L. Scroggins

Seyfarth Synopsis:  In one of the most significant employment cases in memory, a sharply divided United States Supreme Court held today that employers may require employees, as a condition of employment, to enter into arbitration agreements that contain waivers of the ability to participate in a class or collective action under various employment statutes.

There is no longer any reason under the law why an employer cannot require its employees to waive the ability to bring a class or collective action under federal, state, and local employment laws.

While there are certain exceptions (explained below), the United States Supreme Court today removed the last potential legal barrier to the enforcement of class waivers in the employment sphere.  In a 5-4 decision authored by Justice Neil Gorsuch, it held in three cases consolidated for review that requiring employees to agree to arbitration agreements with class waivers does not violate the National Labor Relations Act (“NLRA”) and that such agreements are fully enforceable.

The only foreseeable barrier to enforcement of a class waiver would be federal legislation amending the Federal Arbitration Act (“FAA”) or state legislation permitting private attorney general actions such as California’s Private Attorneys General Act (“PAGA”).  Employers who maintain mandatory arbitration programs with class waivers can be assured for the time being that those waivers provide a valid defense to a collective or class action.  Employers who do not have such arbitration programs need to be aware of this significant development in the employment law landscape and at least consider whether an arbitration program with a class waiver is appropriate for them.

Be aware, however, that a class waiver in an arbitration program does not mean the end of all multi-claimant litigation.  As those with operations in California know, employees who have entered into class waivers with their employers nevertheless may bring PAGA actions in that state.  Likewise, agency-initiated actions are not impacted, leaving the Department of Labor and the Equal Employment Opportunity Commission free to pursue relief under the statutes they enforce on behalf of employees regardless of whether those employees have entered into class waivers.  Meanwhile, some plaintiff-side attorneys have become skilled at bringing dozens of single-claimant arbitration matters against an employer at the same time, which might cost an employer more than defending a collective or class action in court.

An arbitration program with a class waiver isn’t necessarily for every employer.  But this ruling certainly will cause more employers to adopt arbitration programs with class waivers, and likely will reduce the number of class and collective actions employers face.

The Path Leading to the Decision

Beginning with its 2011 decision in AT&T Mobility v. Concepcion, the Supreme Court has blessed the validity and enforceability of class waivers in arbitration agreements.  This was followed by decisions in CompuCredit Corp. v. Greenwood and American Express Co. v. Italian Colors Restaurant, where the Supreme Court forged jurisprudence that made class waivers seem unassailable in the commercial context.  But because none of the cases involving class waivers before the Supreme Court were in the employment context, uncertainty existed as to whether class waivers in mandatory employment arbitration agreements were enforceable.

This uncertainty was amplified by the National Labor Relations Board’s 2012 decision in D.R. Horton, which rejected workplace class waivers.  In the Board’s view, class waivers prevent employees from engaging in protected concerted activity in violation of Section 7 of the NLRA.  The Board continued to press its view even after the Second, Fifth, and Eighth Circuits refused to enforce the rule.  Then in 2016, the Seventh Circuit created a circuit split with its decision in Lewis v. Epic Systems Corp., which held that the right to bring a class or collective action is protected concerted activity under the NLRA, and that class waivers violate that right.  The Sixth and Ninth Circuit followed the Seventh Circuit’s reasoning, deepening the split.

The Supreme Court granted cert in three cases to resolve the issue of whether employers who require employees to arbitrate claims on an individual basis are preventing employees from engaging in protected concerted activity in violation of the NLRA.  On October 2, 2017, the Supreme Court heard oral argument, and today it issued its decision in a split that is just as close as the circuit split below.

The Court’s Reasoning

The Supreme Court began with the premise that the Federal Arbitration Act (FAA) is unequivocal in its mandate that courts enforce arbitration agreements.  The Court’s majority decision rejected the argument that the NLRA overrides that command by rendering a class waiver unlawful.  In the majority’s view, Section 7 of the NLRA does not create a right to pursue a collective or class action.  Rather, Section 7 focuses on the right to organize unions and bargain collectively and does not mention  class or collective action procedures, the majority reasoned.

Section 7’s catch-all provision that employees  must be permitted to engage in “other concerted activities for the purpose of . . . other mutual aid or protection” does not protect the right to participate in a class action because it only protects activities similar to those explicitly listed in Section 7 and thus reaches only to “things employees do for themselves in the course of exercising their right to free association in the workplace.”

The majority supported its holding with other observations, including that: class and collective action procedures were “hardly known” in 1935 when the NLRA was passed; the NLRA states no rules on class or collective action, in contrast to the regulatory regime it imposes surrounding other concerted activities; and the collective action procedures under the Fair Labor Standards Act (“FLSA”) — the statute under which the employees’ underlying causes of action arise — is just like the collective action procedures under the Age Discrimination in Employment Act, which the Supreme Court previously has held does not prohibit mandatory individual arbitration.

At bottom, the Court’s majority was unwilling to infer a Section 7 right to a class or collective action based on “vague terms or ancillary provisions” that would “dictate the particulars of dispute resolution procedures in Article III courts or arbitration proceedings–matters that are usually left to, e.g., the Federal Rules of Civil Procedure, the Arbitration Act, and the FLSA.”

The reasoning of the majority, as articulated by Justice Gorsuch, is broader than some expected.  His majority opinion does not merely hold that between conflicting rights and interests of the FAA and NLRA, the FAA wins.  Rather, the majority suggests that there may not be any Section 7 right to pursue a collective or class action in the first place.  This raises the question of whether a collective or class action waiver that is not contained within an arbitration program may be enforceable.

The Dissent

As expected, Justices Ginsburg, Kagan, Sotomayor, and Breyer dissented in an opinion authored by Justice Ginsburg.  The dissent focused on the circumstances that are unique to the employment context, including what Justice Ginsburg refers to as the “extreme imbalance once prevalent in our Nation’s workplaces,” and the reasons Congress enacted the NLRA in the first place, to “place employers and employees on more equal footing.”  Of paramount importance was the NLRA’s recognition that an individual employee has unequal bargaining power against the employer, and that the right to engage in concerted activities levels the playing field.

In the dissent’s view, class and collective actions qualify as concerted activities because in these actions, employees band together to improve their working conditions by holding employers accountable for violations of employment law.

What Should Employers Do

Employers will undoubtedly be asking:  what does this decision mean for me?  The answer depends on many factors, and like arbitration agreements themselves, there is no one answer that fits all.

For employers that already maintain a mandatory arbitration agreement with a class waiver, the Supreme Court’s decision has minimal impact.  A well-drafted agreement that does not overreach will be enforced.  While there are no longer any barriers to enforcing mandatory class waivers, the Supreme Court’s decision will not save a poorly drafted arbitration agreement.  In many states, an arbitration agreement still can be found unenforceable if it is both procedurally and substantively unconscionable under state law principles.  Some courts in some states may find that an arbitration agreement that is mandatory in nature is procedurally unconscionable, which makes it imperative that there is nothing in the arbitration agreement that can be substantively unconscionable.

Employers that have a voluntary arbitration agreement with a class waiver should consider whether making the arbitration program mandatory could yield additional benefits.  If almost all employees participate in a voluntary arbitration program with a class waiver, the additional risk of a mandatory program – whether due to procedural unconscionability concerns or employee relations issues – may not outweigh the marginal benefit.  But if the number of employees who opt out of or refuse to sign a voluntary arbitration agreement with a class waiver is higher than an employer is comfortable with, a mandatory program should be considered.  This is particularly true for employers in the Ninth Circuit, which gave a hat-tip to the NLRA by permitting class waivers so long as employees could opt out of the arbitration agreement.  An opt-out procedure, however, is no longer required in light of the Supreme Court’s decision.

Employers that maintain arbitration programs without a class waiver should strongly consider revising their agreement to include a class waiver.  An arbitration agreement without a class waiver leaves open the worst possible outcome, which is class arbitration.  The potential exposure in any class action is too high to inject any uncertainty as to whether the parties intended to permit class arbitration or not.  And an employer may want a court, rather than an arbitrator with potential financial incentive, to decide whether the parties intended to permit class arbitration.  An express class waiver likely would avoid these issues.  If an employer has an arbitration agreement already in place, there is now no reason to omit a class waiver.

For everyone else who has been waiting for the Supreme Court’s decision before deciding what to do, there are various factors to consider.  The threshold question is whether to even have an arbitration program.  There are certainly many benefits to arbitration.  These include quicker resolution of claims, more predictable outcomes compared to a jury, arguably lower attorneys’ fees to take a case through completion in arbitration than in court, and greater chance of keeping the proceedings and outcome confidential.

But there also are numerous downsides to arbitration that employers have to consider.  Arbitrator fees can be very significant, and in states like California, the employer must pay all of the arbitrator fees.   Some plaintiffs’ attorneys have resorted to filing a large number of individual arbitrations to make the arbitration process exorbitantly expensive for employers.  Arbitrators also can be less likely to grant dispositive motions because they may feel a claimant has a right to take his or her claim through the evidentiary hearing (the equivalent of a trial in arbitration).

Another question is what the scope of the arbitration program should be.  Given the costs associated with arbitration, some employers may want to limit an arbitration program to just wage and hour claims, which have the greatest likelihood of being brought as class claims.  In addition, current federal and state legislative headwinds are pushing against mandatory arbitration of sexual harassment and other Title VII claims.  Certain Department of Defense contractors have long been banned from imposing such agreements, and the State of New York recently passed legislation that seeks to prohibit private employers from requiring arbitration of sexual harassment claims.  While state laws of this type are susceptible to preemption by the Federal Arbitration Act, federal bans have been proposed, and employers may wish to sidestep the controversy altogether by considering wage-hour only arbitration agreements.  In this way, discrimination claims, which usually are brought on a single-plaintiff basis, could then be excluded from the arbitration program if the additional costs associated with arbitration exceed the confidentiality benefit of arbitration.

Employers considering implementing an arbitration program also need to be aware of the various exceptions.  The FAA does not apply to certain employees, most notably transportation workers.  In California, PAGA representative actions are not subject to class waivers and cannot be arbitrated.  Complaints and charges filed with governmental agencies are not subject to arbitration agreements.

While there are many factors to consider, the Supreme Court’s decision today assures employers that arbitration agreements with class waivers remain a valuable option for employers interested in reducing potential class and collective action exposure.

*Seyfarth Shaw LLP is counsel for Epic Systems Corp. in the Lewis case at the district and appellate courts and is co-counsel for Epic at the Supreme Court.

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Time Management: Law Firms Looking For Lawyers Who Make Time

Originally published by Cordell Parvin.

When I coached lawyers, I frequently heard

Cordell, I’ve been too busy to do any client development

When I practiced law unless I was in the middle of a trial out of town, I was never too busy to do client development. In fact, I did more client development work when I was busiest than when I wasn’t busy.

Now that I’m recruiting lawyers if a lawyer candidate told me he or she was too busy to do client development activities, I would likely not recommend that person to a great firm.

Why? It is really pretty simple:  I believe it is because they don’t have a strong enough motivation to cause them to “make” time for client development. And, the law firms I try to help don’t need that kind of lawyer.

Years ago, a lawyer I was coaching told me he had heard a sales seminar where the presenter said:

Time management is a waste of time.

The lawyer asked what I thought.  Here is how I replied:

Interesting. I did a Google search and saw this article: How Managing Your Time Is a Waste of Time.  I noted the writer said:

It’s the compulsive aspect I find problematic. Our national obsession with self-improvement and personal productivity bears remarkable similarities to the self-help genre and our endless pursuit of quick fixes, miracle cures and wonder pills.

I don’t view time management or pursuing excellence to be an “endless pursuit of quick fixes, miracle cures and wonder pills.” If anything it is the opposite of a quick fix.

Then I saw this article by a guy who said he used to think time management was a waste of time: How To Get More Done: Time Management For The Rest Of Us. He wrote:

I now rank everything that is important to me–both professionally and personally–on one piece of paper. They are the most important things I want to accomplish written done in list form.

I personally feel I am better able to focus on my top priorities by doing what he suggests.

To me, saying time management is a waste of time is similar to saying creating a business plan is a waste of time.

Some successful lawyers in my old firm told me they didn’t need a business plan. They kept their plan in their head.

I suspect they did not want anyone able to judge whether they were doing what they put in their plan. I wondered how much better they might have done simply by thinking through a plan and putting it on paper.

Time and energy are your two most important resources and I don’t think you can waste either.

 

 

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Dissipation of Marital Assets in Texas

Originally published by Family and Criminal Law Blog.

 

What are the consequences for wasting marital assets in Texas?

Divorce can get ugly, and sadly some bitter spouses will do anything to avoid giving their spouse a fair cut of the marital assets. One of the most common ways in which a spouse can reduce the number of marital assets is through marital waste. When a spouse intentionally squanders marital assets in order to prevent the other spouse from receiving a fair share, this is considered marital waste.  Texas courts can take action to prevent marital waste or make the spouse who lost their assets whole again through a money judgment award.

What is Marital Waste?

Texas is a community property state, meaning that all assets acquired during the marriage will be deemed marital property subject to equitable division if the spouses divorce. When a divorce is pending, both spouses are allowed to use marital funds solely for necessary and reasonable expenses, such as to pay the mortgage, electricity bills, food, and the like. Texas law prohibits the spouses from dissipating marital property for extravagant expenses like:

  • Taking out a loan that is not authorized by the other spouse
  • Giving large gifts to friends or family members
  • Spending funds on vacations
  • Withdrawing large sums of money

These are just a sample of some spending that may be considered wasteful and subject to court action. Should you suspect that your spouse is wasting marital assets, you should seek the help of the divorce court.

Temporary Restraining Order

Texas divorce judges can issue an automatic temporary restraining order to prevent a spouse from transferring a large portion of the couple’s marital assets during the divorce. At times, a TRO will issue automatically upon filing for divorce, other times you will need to seek such an order.

If your spouse has already wasted marital assets, you will need the help of a divorce attorney to calculate the amount of marital waste. You will then move the court to divide the remaining assets, with the wasteful spouse receiving a lesser share. At times, the court will award the wronged spouse a money judgment against the spouse who wasted the assets. Wasting marital assets is always wrong and can lead to penalties by the court, so spouses in doubt as to whether an expense is authorized should consult with a family law attorney.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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