Originally published by Gerry W. Beyer .
A retained death benefit life settlement allows the seller to retain the contractual right to death benefits, such as a life insurance policy, to have the purchaser maintain the policy and pay some death benefits to the seller. However, these…
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Fort Worth Injury Attorney Blog .
Lowering Legal Limit to .05 BAC Would Save 538 Lives Each Year
The holiday season is also drunk driving season in Texas. Thanksgiving dinner, Christmas parties and football tailgating commonly inspire overindulgence. However, even if you drink responsibly, you may still be at increased risk of impaired driving. The law sets .08 percent blood alcohol content (BAC) as the per se limit of impairment, but you are in fact affected by alcohol at a much lower level.
Mark R. Rosekind is the nominee for the top National Highway Traffic Safety Administration (N.H.T.S.A.) position. He is a specialist in the effects that fatigue, circadian rhythms, drugs and alcohol have on human performance. In his current role at the National Transportation Safety Board (N.T.S.B.), Mr. Rosekind advocated for the reduction in the per se impairment limit to .05 percent BAC. He bases his recommendation on studies that demonstrate a sharply increased auto accident risk when a driver has a BAC below the current .08 legal limit. His proposal was met with strong opposition and has not been passed, but let’s consider the facts that support a .05 BAC limit.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Mary Flood .
Top legal news includes: Investigator indicted in comic book case; Judge’s ruling could delay a Houston energy merger; Embarrassing Emails Filed in Legal Battle Between Galveston County Commissioners and Judges; After rally blocks traffic, another Houston protest over Ferguson is set; Houston Pastors Warn Mistrust is Growing After Ferguson; Protest demonstrators close Dallas freeway; Worker Sues BP Over Handling of Algerian Terrorist Attack; Court Declines to Stay Execution of Schizophrenic Inmate; FSU Shooter Myron May Had Bright Legal Career (Texas Lawyer); Former prosecutor talks of living in fear after slayings of Texas DA and senior colleague; Bill Would Limit Lawyers’ Liability Over Fee Agreements (Texas Lawyer); Texas Man Accused of Trying to “Destroy” Christian Beliefs for Objecting to Courthouse Nativity Scene; Take A Tour: Why Human Trafficking Thrives In Houston; Mobile home fire kills 5 kids; How Does Houston Score On LGBT Equality?; Evangelist Sued by Disabled Woman Who Claims He Tricked Her Out of Settlement Money; Abortion Court Fight Continues Behind The Scenes In Texas; Court: State wrongly withholding millions from dentists (Chron subsc); Dallas man pleads guilty in mailed steroids case; Nurse who had Ebola asks bridal shop for refunds; Losing Side Blames College Students for Denton Fracking Ban; High court to review EPA mercury limits; 3 on Texas DPS 10 Most Wanted list captured & Oil falls after 4 nations fail to pledge output cuts.
For the water cooler: More firms, including Cravath, jump on BigLaw bonus bandwagon; Skadden says some will get $110K; The $160K BigLaw BigLie?; After the Doldrums, a Boost of Confidence Among Law Firm Leaders; Microsoft suit seeks details of $2.1M Quinn Emanuel contract to provide services for IRS; Paying workers with health issues to get exchange-market insurance violates the law, feds say; Philadelphia attorney is charged with sexually assaulting a trafficked 14-year-old at his law office; SCOTUS will consider cops’ ADA obligations when arresting mentally ill suspects; Pepper Hamilton’s nonlawyer CEO is leaving the firm; Law firm secretary is accused of forging judge’s signature to delay eviction & Reinventing The Law Business: In Defense Of The Billable Hour.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by State Bar of Texas .
From Ron Goranson of Dallas (Milner, Goranson, etc.), this trial excerpt from the cross-examination of an IRS undercover agent by Dallas lawyer G. Thomas Rhodus.
Q. Now, will you agree with me that there are certainly areas where the tax laws are complex?
A. Certainly.
Q. Okay. And technical?
A. Certainly.
Q. Okay. Would you agree with me that there are areas where the tax laws don’t necessarily comport with what a person’s common sense might tell him?
A. Congress wrote the tax laws.
The Court: Ours is not to reason why.
Mr. Rhodus: Very good. Thank you. But – let’s not send this transcript to Washington. Okay?
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Hannah Kiddoo .
Last month, Shamoil T. Shipchandler, a partner in the Dallas office of Bracewell & Giuliani, received the Secretary of Homeland Security’s Meritorious Service Award (Silver Medal) for his role in exposing an illegal visa fraud operation.
Shipchandler, at the time a federal prosecutor, led a team of agents and support staff from the Department of Homeland Security and the Department of State in the investigation and settlement of claims against Infosys Corporation, a global consulting and IT services company based in India.
According to a statement released by the United States attorney’s office for the Eastern District of Texas, the government alleged instances of Infosys circumventing the requirements, limitations, and governmental oversight of the H-1B visa program by knowingly and unlawfully using B-1 visa holders to perform skilled labor in order to fill positions in the United States for employment that would otherwise be performed by U.S. citizens or require legitimate H-1B visa holders. Ultimately, the case settlement involved Infosys paying $34 million, the largest payment ever levied in an immigration case.
The Texas Bar Journal recently spoke with Shipchandler about his role in the settlement.
How did you get involved in the case?
I received a referral from a colleague in Atlanta who told me that there was a lawyer who had information about a possible visa fraud scheme in the Eastern District of Texas. I put that lawyer in touch with federal agents from the Department of State and the Department of Homeland Security so that they could determine whether there was any merit to the allegations.
How did you approach the case? What was your strategy?
The most critical part of any case, whether approaching it from the prosecution side or from the defense side, is a solid understanding of the facts. So our job was to understand the facts as best we could using all of the tools at our disposal, from subpoenas to interviews and everything in between. Once we felt grounded in the facts, we kept an open line of communication with counsel for Infosys so that we could discuss whether and how the facts constituted a violation of the law.
How was this case unique compared with others you have handled in the past?
The allegations in the investigation—specifically the allegations that Infosys was displacing American workers through false statements to consular officials and a misuse of B-1 visas—were intensely newsworthy and the subject of a passionate congressional debate. As we were investigating the case, Congress was simultaneously considering the allegations that it had heard about Infosys and was contemplating overhauling the immigration system. Infosys is a leading Indian company, one of the largest users of the American visa program, and one of India’s premiere success stories, so the investigation had the potential to adversely affect international relations.
What were some of the challenges of the investigation?
The size of the case and the number of documents that we needed to review were substantial, and we were limited by dwindling resources because of budgetary restrictions. For much of the investigation, the team consisted of just me and two federal agents. Potential witnesses were located all around the globe, and many were reluctant to speak with the government for fear of jeopardizing their future travel into the United States.
I would be remiss if I did not also identify as a challenge Infosys’s lead counsel, Stephen Jonas—and I mean that in a good way. Infosys had outstanding lawyers representing it during the investigation and throughout our negotiations. Jonas’s analysis of the law and the facts was thorough, reasoned, and capable, and we always maintained excellent communication. While we ultimately disagreed on how the law should be interpreted, we were able to forge a settlement agreement that satisfied both the government and Infosys.
Was there a moment when you realized that you had figured out an important component in bringing the case to a close?
In every case, there is a Eureka! moment where everything comes together, and Infosys was no exception. Our moment arrived when we determined that we could resolve the case through the civil complaint and settlement agreement in a way that would achieve the government’s goal while providing Infosys with a way to accept the result, thereby avoiding protracted and costly litigation.
You worked with agents and support staff from DHS and the Department of State. Tell me about that collaboration process.
I cannot say enough about the skills, talents, dedication, and diligence of the [government] team. Whenever I had questions, my federal agents, their support, and their agencies had answers. They traveled for weeks at a time to interview crucial individuals, they assembled piles of documents, and they were grounded in the principles of all of the applicable laws. We were wholly integrated in our efforts. I have said this before and I will say it again: the credit for the outstanding result is theirs. I was merely a conduit to channel their work.
While working on the case, did you learn anything that will help you as you move forward in your career?
There were many, many things that I learned during the course of the investigation and settlement negotiations. I learned from my team members; I learned from watching Jonas managing his team. If I had to choose just one key takeaway, though, it would be this: open lines of communication—and some mutual trust—can often lead to a just result. So a little bit of candor can go a long way.
Is there anything else you would like to add?
Sometimes, an important case needs the right time and place to survive and thrive. The Eastern District of Texas is, in my opinion, the best-run district in the country, and is willing to devote the time and energy to complicated and difficult cases. The U.S. Attorney’s commitment to the investigation was a key component in achieving the just result.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Mary Flood .
Top legal news includes: Manslaughter charges filed in area deputy’s crash death; EPA rejects Texas plan for cleaning air at Big Bend; Ferguson decision follows similar pattern of Harris County grand juries (Chron subsc); Houston police girded for Ferguson verdict; Why Ferguson Officer Wasn’t Charged: A Look at ‘Use of Force’ Doctrine (WSJ); Convicted constable Trevino, who misused charity fund, fighting judge’s order he now give $30k to charity; Enforcing the law routine for newly-appointed constable replaced Trevino; Dead offshore worker described as family man and supervisor; Catholic Charities Accused of Covering Up Years of Sexual Abuse by Employees; Extreme price matching gets man banned from Kohl’s online site; Lawsuit filed against west Houston slaughterhouse; Bill: Police in Texas could collect payment for court fines? (Texas Lawyer); Texas Senator-Elect Proposes Appeals Deadlines, Judge Term Limits (Texas Lawyer); Chris Bell Wins $12K Judgment, Sanctions Against Former Client (Texas Lawyer); No federal charges in Texas stun gun case; Abbott: Immigration Lawsuit Could Come in Two Weeks; What Will Happen to Fracking Secrecy if Halliburton Takes Over Baker Hughes?; Tanker dispute lingers as oil policy negotiations begin in Iraq; Timeline slips for some oil and gas regulations & Plans made for stranded manatee rescue near Houston.
For the water cooler: More BigLaw firms match Simpson bonuses of $15K to $100K; Lawyer sues fitness club, alleges he was banned for prior lawsuit; Posner opinion tosses judge from case partly for his ‘tone of derision’; New law school president throws in towel after 8 days on the job; Will There Be More Lawyer Jobs Than Grads In 2016?; Court Unconvinced by Lawyer Dressed as Thomas Jefferson; Judge tweets a schmaltzy motivational quote from the bench during a murder trial; See pic of Bronx prosecutors under fire for posing with gang signs in holiday photo; Prominent lawyer accused of assaulting employee after a night of drinking takes misdemeanor plea; 9th Circuit OKs suit claiming police made man pretend to be taller, then arrested him; Judge to end case over nude photos, posted online by her husband, by retiring from bench; 10 years after fatal accident, conviction is reversed – GM knew its car was to blame but kept quiet; Civil rights lawyers head to Ferguson as grand jury decision in police slaying of unarmed teen looms; Supreme Court to Consider When a Facebook Post Breaks the Law & Lawyers of reality TV.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by State Bar of Texas .
Q. Were you in the Army?
A. No sir, I didn’t go.
Q. Why?
A. Well, when I was ready to leave they said, ‘Well, everything is over,’ and I say, ‘Okay,’ So I didn’t go.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Fort Worth Injury Attorney Blog .
Profit Before Safety is a Disturbing Trend in the Auto Industry
Airbags represent one of the most important advancements in vehicle safety. When a car crashes, the airbags deploy to create a cushion that absorbs the impact. Frighteningly, one change in the Takata airbag design has turned this innovative device into a deadly weapon. The reason for the change? To save money, of course.
In a shocking trend, Takata joins G.M. and Trinity in the list of auto industry corporations that put drivers at risk to save a buck.Takata has recalled approximately 7.8 million airbags installed in 10 different types of vehicles that contain exploding propellant canisters.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Gerry W. Beyer .
By combining life insurance and social security benefits in retirement and estate planning, some risks of a social security only retirement plan can be solved. If a couple is planning retirement income on social security only, they run the risk…
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Shaun Marker .
Now get ready because everything you thought you knew about water damage claims and whether they are occurrences that are covered, or ongoing events that are not covered, may be tested with this one. Would you think that a water damage claim occurring over a sixteen year period could be covered under a property insurance policy? It may sound doubtful at first glance, until you read about the situation that led to a covered claim in a Federal Court in Wisconsin involving Chubb Indemnity Insurance Company.1
In October 2010, the policyholders discovered that water infiltration had been causing damage within the building envelope of the home. The infiltration was ongoing and progressive in nature, beginning around the time of original construction and continuously occurring with each subsequent rainfall. On December 22, 2010, they submitted a claim to Chubb for the discovered damage; Chubb denied coverage.
The U.S. Court of Appeals for the 7th Circuit ruled that Chubb had to pay a…
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Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Mary Flood .
Top legal news includes: Deadly DuPont leak exposes safety, response failures (Chron subsc); Parker to lead local response to Obama’s immigration reform; Momentum gathers in Houston for Obama’s immigration order (Chron subsc); Supreme Court Declines to Review “Pole Tax”; Q&A: Immigration Lawyer Discusses Impact of Order on Texas (Texas Lawyer); Mourners remember victims of Dupont leak at funeral services; Offshore fatal explosion came during maintenance work; Houston’s Catholic charities facing lawsuit; 5th Circuit ruling could mean freedom for ‘Angola 3′ inmate held in solitary for 40-plus years; GC Forum Honors Nine In-House Counsel Who Made a Difference in 2014 (Texas Lawbook); Houston HVAC heir sentenced in DUI manslaughter retrial; FOX 26 News confirms Harris County Sheriff’s Office investigator fired; A fake job reference can be just a few clicks away (Chron subsc); Abbott promises lawsuit over immigration action; Fort Sam Houston lockdown lifted; man in custody; Rep. Kleinschmidt Takes General Counsel Job at Ag Department; Obama’s punt on renewable fuel sets up fights in court, congress Jury orders Irish man to pay $2M over ethanol deal.
For the water cooler: Early announcement of big year-end bonuses stuns Simpson Thacher associates; Associate Bonus Watch: Yet Another Firm Matches Simpson; 50 Ways To Leave Your Biglaw Firm (And Keep Your Bonus); Prosecutors under fire for flashing gang signs in holiday photo; Judge Rejects Lawsuit Accusing ‘American Idol’ of Racism; Law firm chief convicted in $13M loan-modification scheme, faces up to 70 years; After 100 years as tenant under a verbal lease, law firm is moving to another building; Spat between judge and courthouse security officer is resolved by requiring all judges to show ID; Manson Camp Denies Wedding-Registry Claims & Is Rapper Brandon “Tiny Doo” Duncan Being Prosecuted For Rapping About Gangs?
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by State Bar of Texas .
From Richard A. Tindall of Houston, this contribution – “both an excerpt from a deposition and the ensuing trial” – from a divorce case in which Richard represented the wife. The husband, who is the witness in this Q & A, was appearing pro se.
Q. How much education do you have?
A. About three semesters at Lon Morris Junior College.
Q. Do you remember giving your deposition in my office several weeks ago?
A. Yes I do, you threatened me that we might have to take it in front of the judge.
Q. Do you remember me asking you about your education at that time?
A. I think so.
Q. Do you remember your answer?
A. I’m not sure.
Q. Well, let’s take a look at it.
A. Okay.
Q. You stated you had a master’s degree in geophysics from The University of Texas, didn’t you?
A. Yes, sir.
Q. Mr. Chappell, when you gave that answer, were you mistaken or was it just a barefaced lie?
A. It was a barefaced lie.
Richard adds: Later in the trial, the pro se husband puts the teenage daughter on the stand and asked:
Q. Who do you think is the craziest, me or your mother?
A. (perceptively) I don’t think either one of you is crazier than the other one.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Hannah Kiddoo .
The Houston Bar Association, Houston Bar Foundation, and Houston Bar Association Auxiliary hosted the 65th Harvest Celebration on Monday, Nov. 17, raising over $668,000 for pro bono efforts. More than 1,000 Houston Bar Association members and guests attended the event, which honored area law firms, corporate legal departments, and individuals who are providing pro bono services to Houstonians.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Joanna Herzik .
To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.
10. Should a Defendant Testify in His Own Defense?
9. $185 Million Dollar Verdict Against AutoZone in Pregnancy Discrimination Case
8. Stone Cold Trademark Infringement
7. How not to manage a whistleblower
6. Top 10 Most Dangerous Toys of 2014
5. This ATM Charges $2. Got it? $2.
4. It Has Come To This: McDonald’s Customer Allegedly Fabricates Hot Coffee Injury
3. Real Life Atticus Finch’s Daughter Dies at Age 103
2. Little Things Matter: Sending a Card Counts
1. Glebe v. Frost (Nov. 17, 2014) (per curiam)
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Carrington Coleman .
Weilbacher v. Craft
Dallas Court of Appeals, No. 05-13-01252-CV (November 19, 2014)
Justices O’Neill (Opinion), Lang-Miers, and Brown
Weilbacher sued DDC and its principal, Jones, both represented by Craft. Craft negotiated a settlement with Weilbacher’s lawyer, and the mediator informed the court a settlement had been reached. Jones and DDC failed to make payments under the agreement. When Weilbacher sought to enforce the agreement, Jones asserted the payment obligations rested on DDC alone, and testified that Craft had no authority to agree to his personal guaranty of those obligations. Weilbacher then amended to add a fraud claim against Craft for representing she had authority to enter into a settlement that included Jones’s personal guaranty, noting that the original term sheet Craft prepared and sent to Weilbacher provided for Jones’s personal guaranty, as did several iterations of the draft settlement papers either generated or acknowledged by Craft, including the purported final draft, which Craft prepared and asked Weilbacher to sign. Craft sought and was granted summary judgment on the ground there was no reasonable reliance. The Dallas Court of Appeals affirmed.
Although it noted the settlement agreement was not signed by Jones or DDC, and that “Craft made no express representation that her clients had approved or would sign it,” the Court relied on a different rationale to affirm. Even assuming Craft misrepresented she had authority to enter into the settlement agreement and that a settlement had been reached, the Court of Appeals held reliance on such statements “was not reasonable as a matter of law.” “[C]ourts have generally acknowledged,” the Court said, “that a third party’s reliance on an [opposing] attorney’s representation is not justified when the representation takes place in an adversarial context,” including settlement negotiations.
The Texas Supreme Court articulated this “adversarial context” exception to reasonable reliance on opposing counsel’s statements in its 1999 McCamish decision. There, it went on to explain, “This adversary concept reflects the notion that an attorney, hired by a client for the benefit and protection of the client’s interests, must pursue those interests with undivided loyalty (within the confines of the Disciplinary Rules of Professional Conduct), without the imposition of a conflicting duty to a nonclient whose interests are adverse to the client.” DR 4.01(a) directs that “a lawyer shall not knowingly … make a false statement of material fact or law to a third person,” but commentary to that rule explains this directive doesn’t apply to mere “negotiating positions.” The difficulty, as this case demonstrates, is differentiating an actionable knowing misrepresentation of “material fact” from a non-actionable “negotiating position.”
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Joanna Herzik .
Marketing and managing your practice can be a full-time job. Save on products and services to make that job easier with your State Bar of Texas Member Discount Program.
LawPay offers hassle-free credit card processing and simpler accounting. Designed to meet the needs of firms of all sizes, LawPay gives you the flexibility to accept credit card payments for retainers and also for collections. Your firm can save up to 25% off standard credit card processing fees using LawPay. It’s recommended by more than 60 bar associations, too.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by State Bar of Texas .
From U.S. Magistrate Judge Marcie A. Crone of Houston, this “excerpt from a recent employment discrimination” trial in her court in which the Plaintiff alleged mental anguish as well as other claims
Q. I’m not asking if you attempted suicide.
A. Oh.
Q. I’m asking if you ever said you were going to commit suicide.
A. Oh, yes.
Q. And why did you do that?
A. To get people to talk to me, feel sorry for me, want to be around me, watch me, attention.
Q. Did you ever actually commit suicide — or — I’m sorry.
(Laughter)
The Court: Obviously not.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Nonprofit Blogger .
In Private Letter Ruling 201446025 (Aug. 20, 2014), the Internal Revenue Service (“IRS”) ruled that a charitable nonprofit would maintain its tax-exempt status after changing it state of domicile by filing Articles of Domestication in the new state. The organization,…
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by State Bar of Texas .
From Joe Riddles of Dallas (Riddles, McGrath & Greenberg), this selection from a deposition taken by Carroll Trout of his firm; Carroll is attempting to get some information about the plaintiff’s recent trip to Mexico:
Q. When you went to Mexico last week, how did you get there?
A. On the bus.
Q. Did anyone go with you?
A. No.
Q. Did someone pass away?
A. A family member.
Q. Who was that family member?
A. A non-related family member.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Nonprofit Blogger .
The Boston Globe reports that seven Harvard students (including some at the Harvard Law School) have filed a lawsuit in Suffolk County Superior Court against the president and fellows of Harvard College for its investment in stocks of companies that…
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Lowell Brown .
The Texas Supreme Court approved an order Wednesday adopting revised evidence rules, triggering a comment period that ends Feb. 28.
The revisions to the Texas Rules of Evidence are intended to mirror 2011 amendments to the Federal Rules of Evidence, with the goal of making the rules easier to understand, according to the court order.
Final approval of the restyled rules will be effective April 1.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Christian Dennie .
The NCAA Committee on Infractions (“Committee”) recently issued its findings and found that Weber State University (“WSU”) committed violations of NCAA legislation. The case involved academic fraud at WSU. It also involves a former developmental math instructor. WSU, the math instructor and the NCAA enforcement staff substantially agreed academic fraud violations occurred during spring 2013. Specifically, the parties agreed the math instructor completed online quizzes, tests and exams for five student-athletes, resulting in fraudulent academic credit. While the parties agreed the violations occurred, they disagreed over the appropriate violations level. The Committee considered the record including the parties’ submissions, presentations and information developed at the September 12, 2014 hearing. The Committee concluded academic fraud occurred; however, the Committee did not conclude WSU failed to monitor.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by David Yates .
A pair of out-of-county defendants are seeking to transfer a fraud and slander suit filed locally through one of Beaumont’s most well-known law firms, Reaud, Morgan & Quinn.
As previously reported, Signature Associates, Signature Special Services and Signature Industrial Services of Beaumont filed a complaint against Tennessee-based International Paper Co., Greg Bennett and Alliance Engineers & Project Consultants of Beaumont on Aug. 8 in Jefferson County District Court.
Court records show that on Sept. 9 International Paper and Bennett filed a motion to transfer venue, arguing none of the alleged events giving rise to the plaintiffs’ claim occurred in Jefferson County.
No ruling either granting or denying the motion is on file as of Nov. 19.
The lawsuit alleges Signature was approached by International Paper and Alliance Engineers representatives in January or February and asked to bid on work to a machine known as “the Slaker.” International Paper allegedly asked that the work be started even before the bid process was complete. Signature says it was assured it would be fully compensated for all work on the project.
According to the suit, Signature says International Paper promised a speedy bid and contracting process but, instead, took a week longer than expected and failed to include more than $78,000 worth of initial costs in the agreement.
Two weeks into the job, Signature claims it warned International Paper that the project was going to quickly surpass the bid amount. The company says International Paper acknowledged the increased costs and agreed for the work to continue.
In its suit, Signature says International Paper failed to provide drawings and materials necessary to complete the project, causing additional delays. International Paper and its representatives were “admittedly overwhelmed with the enormity of the project and the obstacles.”
By April, Signature says Bennett had been assigned by International Paper to work directly with the Slaker project. Bennett allegedly told Signature to continue any necessary work and submit all change orders after the project was completed rather than alert the company to budget overages while the work was under way.
In addition to problems with project costs, Signature says it raised concerns with International Paper about allegedly lax safety standards and negligence that the company says allowed caustic chemicals to spill into the work site. Signature says the chemicals caused significant damage to its property.
Furthermore, Signature also alleges Bennett publicly made a number of “slanderous and disparaging statements” accusing the company of stealing from the mill and inflating invoices. At the completion of the project, Signature says International Paper alleged the scope of work “was not substantially complete” and allegedly refused to compensate Signature as initially agreed upon.
In their motion to transfer venue, International Paper and Bennett contend that venue is proper in Orange County – the location of the plant where goods and services where rendered and delivered.
Signature accuses the defendants of fraud, negligent misrepresentation, slander and business disparagement and breach of contract and seeks an award more than $1 million in damages along with court costs and attorney fees.
RMQ attorneys Glen W. Morgan and John Werner represent Signature.
International Paper and Bennett are represented by attorney Blair Bisbey of the Jasper law firm Seale, Stover & Bisbey.
Case No. E-195-964
The post Defendants seek to transfer slander suit being handled RMQ law firm appeared first on Southeast Texas Record.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Francisco Garcia .
If you have ever had an insurance claim or negotiated a loss on behalf of a property owner, you would probably agree that one of the most frustrating aspects of the claims investigation process is the virtually endless set of documents requested from the insurance company. Finding and sending all the documents can take days, weeks, or sometimes even months. Even after you provide an insurance carrier a packet of anything and everything in your possession relating to the loss, there’s a good chance you will receive a response from the insurer asking for more documents or a copy of the one receipt from 2008 you just don’t have.
Many people do not realize that every insurer authorized to conduct business in the State of Florida is required by law to provide a clear explanation as to why it is requesting these documents. This is one of the nine duties imposed by Section 626.9541(i) of the Florida Statutes, which states that an insurer commits “unfair claim settlement…
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Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Mary Flood .
Top legal news includes: DA to appeal case dismissed against deputy accused of attack; Perry Judge Rules Prosecutor is Not Disqualified; Houston criminal defense lawyer’s association calls for investigation of former prosecutor Rizzo (Chon subsc); Bexar County to examine minimum wage increase; No on Keystone pipeline — but GOP vows replay; TDCJ: More than 1,400 makeshift weapons seized from Texas inmates in 2014; Texas Prisons To Alter Rules On Inmates Who Marry; Woman Seeks Dismissal of $123 Million ‘Revenge Porn’ Suit (Texas Lawyer); Hate messages prompt investigation, calls for tighter security at Houston Islamic group; Publisher makes change to climate science passage in Texas textbook; Houston-area man pleads guilty in $1.4 million fraud case; Grits: More criminal justice bills pre-filed at the Texas Lege; Water outreach should be a priority for drillers, report says & Halliburton Is Buying Baker Hughes: Another Sign the Oil Industry Is Nervous?
For the water cooler: Which Biglaw Firm Just Got Rid Of Billable Hours? Jackson Lewis; Jury awards $638K to mom who sued over claimed sex abuse of adult daughter; defense argued consent; The Mansons (Charles & bride) Are Registered at Bed Bath & Beyond!; Oklahoma lawyer gives chase after confronting man who had stolen law-office shotguns; Lawyer gets stayed suspension for secretly paying sanctions from law firm account, billing client; Passengers get $2,500 for 10-hour ordeal on cold subway during 2010 snowstorm; Google wins SLAPP motion, has constitutional right to list search results as it wishes; How Litigation Financiers Value A Claim; Atheist gets driver’s license photo with pasta colander on head, citing ‘Spaghetti Monster’ faith; ‘Some random guy in Queens’ is three-time Fantasy SCOTUS winner & Buy your favorite lawyer print of their favorite courthouse for holidays.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by David Yates .
Moran Shipping and SeaRiver Maritime recently had their motion for summary judgment granted in a lawsuit alleging the companies are liable for damages the plaintiff suffered while at sea.
As previously reported, Adam Hofman filed a lawsuit Feb. 11, 2013 in Jefferson County District Court against Sabine Ship Service, Alston E. Bourne III and ExxonMobil.
Moran Shipping and SeaRiver Maritime were later added as defendants.
According to his complaint, Hofman rode on a Sabine transport boat on May 28, 2011, which Bourne was quickly and recklessly navigating to a waiting vessel in the middle of the ocean. Because of the way Bourne was operating the vehicle, Hofman was tossed inside the boat. At one point, he was thrown from his seat and hit his head on the roof of the cabin, knocking him unconscious.
Moran had contracted with Sabine Ship Service to provide Hofman transportation to a SeaRiver vessel.
Court records show that on Oct. 9 Moran Shipping and SeaRiver Maritime filed a motion for summary judgment, arguing there is no evidence to support Hofman’s claims of negligence.
“The plaintiff cannot prevail in this matter under any theory presented,” the motion states.
“First, the plaintiff is not entitled to bring an unseaworthiness claim. Second, defendants retained no control over the operation of the Sabine vessel. Alternatively, there is simply no evidence that plaintiff can present to hold defendants liable.”
Judge Donald Floyd, 172nd District Court, granted the motion on Nov. 12, ruling that Moran Shipping and SeaRiver Maritime have a final judgment rendered in their favor and that Hofman take nothing.
Hofman sought damages for a compression fracture of his spine; experienced physical pain, suffering, mental anguish, physical impairment and disfigurement, lost earnings and incurred medical costs.
James C. Ferrell and Bradlyn J. Cole of Houston represent him.
Moran Shipping and SeaRiver Maritime are represented by the Houston firm J. Diamond and Associates.
Case No. E193-919
The post Moran Shipping, SeaRiver Maritime granted summary judgment in Jones Act suit appeared first on Southeast Texas Record.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Brandee Bower .
This is a question I was asked recently so I thought I would answer it here. In this case, the insured made a claim for hail damage done to the roof. The insurance company investigated the claim and hired an Engineer to inspect the property. The Engineer drafted a report and provided it to the insurance company. Based on that report, the insurance company denied the claim. When the insured and his public adjuster asked for a copy of the report, the insurance company would not produce it, saying it is privileged “work product.” So what is “work product?”
‘The work product doctrine protects materials prepared in anticipation of litigation. It does not protect materials prepared in the ‘ordinary course of business.’ Western Nat’l Bank v. Employers Ins. of Wausau, 109 F.R.D. 55, 57 (D.Colo.1985). The Colorado Supreme Court has declared that the general standard to be applied when deciding whether something was prepared in anticipation of litigation is ‘whether, in…
.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by SupremeCourtHaiku .
Summation limits
Not a structural error
Habeas denied
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by David Yates .
Following the conclusion of a Hurricane Ike trial, an exemplary damage award scored by the Mostyn Law Firm was sealed in order to facilitate mediation, says the Beaumont judge who presided over the trial
Last month, a jury found in favor of plaintiffs Rene Lampson and Justina Henriquez, levying a $400,000 verdict against National Security Fire & Casualty, plus a separate award of exemplary damages, which was sealed by Judge Milton Shuffield, 136th District Court.
“The award was sealed to facilitate mediation,” said Judge Shuffield in a Tuesday interview. “It was not done to hide from the public or to shield the verdict. The verdict will come out.”
Judge Shuffield had ordered the parties into mediation on Nov. 6, court records show.
Since the case is still pending, Judge Shuffield said he could not go into detail, but did say the parties agreed to seal the award and the amount would come out following mediation, which is set for Dec. 3.
Through Mostyn attorney Gregory Cox, Lampson and Henriquez filed suit against National Security and Renee Snellgrove on Sept. 3, 2010, in Jefferson County District Court, alleging the defendants wrongfully denied the couple’s property damage claim after Hurricane Ike ravaged their Port Arthur home in 2008.
On Oct. 14 jurors found National Security knowingly failed to honor the terms of its insurance policy with Lampson and Henriquez, awarding the couple more than $166,000 in damages and finding the Mostyn Law Firm was entitled to $237,000 in attorney’s fees.
The award of exemplary damages was for fraud.
Judge Shuffield had bifurcated the question of exemplary damages to the jury at the conclusion of the trial and then sealed the amount of the award.
A week later, on Oct. 21, National Security and Snellgrove filed a motion to set aside the question of exemplary damages, arguing that it “is crystal clear the trial” ended when the jury awarded the plaintiffs $403,700.
Court records show that on Oct. 24 the plaintiffs filed a response to the motion to set aside, asserting the motion is untimely and without merit.
The parties will meet with mediator Bob Black, a Mehaffy Weber attorney, on Dec. 3. If mediation fails, the issue of the exemplary damage award would likely be taken before the Ninth Court of Appeals in Beaumont.
Killeen is an attorney for the Houston law firm Killen & Stern.
Cox’s firm, the Mostyn Law Firm, has reaped hundreds of millions from suits filed against insurers after Ike pummeled Southeast Texas.
Case No. D187-954
The post Judge sealed exemplary damage award in Hurricane Ike trial to facilitate mediation appeared first on Southeast Texas Record.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by John Floyd .
Defense Lawyers often advise against their clients testifying in their own defense. It is typically unnecessary and tends to expose the client to great danger. Even […]
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Originally published by Gerry W. Beyer .
JP Morgan Case & Co. settled a lawsuit by Texas mineral rights owners who accused the company of cutting deals with oil company clients to cheat them out of $691 million in compensation. The dispute centered around payments for rights…
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by John Steele .
Download Thurbon v Gateway The case involves the fact pattern where the lawyer concludes that some person (usually the client) had legal authority to access certain emails — but ultimately the courts disagree with that conclusion. I believe the ABA…
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Originally published by State Bar of Texas .
From Stephen White of Austin, this excerpt from a disciplinary hearing before the Texas Board of Medical Examiners heard by Administrative Judge Ann Landeros.
Q. And do you have your office space within this 1.4-mile area?
A. I do not.
Q. And some physicians do and some physicians don’t?
A. Correct.
Q. But having — based upon your experience at the various hospitals, do all of the ophthalmologists who have — who are — have a special training or such specialty in guacamole —
THE COURT: You want a motion to strike?
MR. PICKENS: Move to strike guacamole and insert enchilada.
Q. (By Mr. Pickens) Let’s get back to the situation, and we’re talking about the whole enchilada here or tortilla here, it looks like on the map here. Do all of the physicians who have subspecialty training in glaucoma have privileges in all the hospitals?
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Southeast Texas Record .
A Houston software company is suing over claims another company has infringed upon its registered trademark.
Shipcom Wireless Inc. filed a lawsuit Oct. 8 in the Houston Division of the Southern District of Texas against Catamaran Corp. and Catamaran LLC of Schaumburg, Ill., citing trademark infringement.
According to the complaint, Shipcom Wireless provides server-based software solutions in many fields, including its Catamaran software platform, which is popular in the health-care industry. Shipcom Wireless says it is the owner of the registration for Catamaran for software that enables “interface between enterprise applications and wireless access by mobile devices.”
The complaint states Catamaran Corp. began doing business under that name in July 2012, after a merger, and deals with pharmacy benefit management services, likely using the same customer base as the plaintiff. The plaintiff says Catamaran Corp. filed to register the name for “computer software for database integration in the area of drug information and pharmaceutical formulary management,” but Shipcom filed a notice of opposition on Dec. 4, 2012.
Shipcom Wireless says the defendant is likely to market to institutions that already recognize the Catamaran name as the plaintiff’s software and cause confusion.
The defendants are accused of trademark infringement, false designation of origin, partial cancellation of U.S. trademark registration, and common law trademark infringement.
Shipcom Wireless is seeking an order enjoining the defendants from using the Catamaran trademark, an order directing the defendant to destroy or modify all goods bearing the mark Catamaran, an order directing the United States Patent and Trademark Office not to register the Catamaran-related marks in Catamaran LLC’s applications, and damages, including defendant’s profits, plaintiff’s actual damages and court costs.
Shipcom Wireless is being represented in the case by attorneys Nitin Sud of Sud Law P.C. in Houston and Jennifer Lee Taylor and Joyce Liou of Morrison and Foerster LLP in San Francisco.
Houston Division of the Southern District of Texas case number: 4:14-cv-02863
The post Wireless company accuses Catamaran of trademark infringement appeared first on Southeast Texas Record.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Norton Rose Fulbright .
An exploration & production company urged the Pennsylvania Supreme Court to uphold a lower court ruling which held that the doctrine of estoppel-by-deed applied to an oil and gas lease. “Parties should not be able to convey, under a covenant of warranty, more than they actually own, only to quiet title when the value or price goes up, and then demand more to resell the same property that was not previously conveyed,” the E&P company argued in its brief filed October 27, 2014.
The dispute stems from a 2006 lease covering a 62-acre property. After signing the lease, a title search revealed a previously unknown 1894 deed reserving half of the property’s subsurface rights in favor of a third party. As a result, the E&P company reduced its bonus payment to the landowners by half. In 2008, the landowners filed a motion to quiet title to the half interest reserved by the 1894 deed, ultimately acquiring full title to all 62 acres of subsurface rights.
In 2011, the E&P company exercised its right to extend the lease in exchange for another bonus payment, paying the landowners for the full 62 acres and claiming that the original lease was operative to hold the entire 62 acres. The landowners argued that because they did not own the rights to all 62 acres when they signed the lease in 2006, the E&P company could not extend the lease with respect to all 62 acres, but only with respect to the half interest they owned in 2006.
The E&P company argued that the doctrine of estoppel-by-deed, which mandates that lessee be given the benefit of property that lessors erroneously claim to control at the time of executing a lease agreement, operated to prevent the landowners from excluding the half interest. In March 2014, the Pennsylvania Superior Court agreed with the E&P company, and the landowners appealed.
Read the Pennsylvania Superior Court’s opinion.
This post was written by Michael Gaetani (michael.gaetani@nortonrosefulbright.com or 724 416 0400) from Norton Rose Fulbright’s Energy Practice Group.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by tfoxlaw .
As most readers of this blog know, I am a recovering trial lawyer. To this day, some of my best friends are still out there, still teeing it up as trial lawyers. They have an important place in our country’s legal system, including defending corporations, which was my primary client base in those long ago days of yore. To be a trial lawyer requires a certain cache; as you really are a hired gun, king’s champion, free lance fighter, single combat warrior for your client. If not exactly a knight in shining armor, certainly one ready to take on all comers with something as blunt as a mace, as the company’s single combat champion. Frankly there is nothing much better than standing up in front of an antagonistic jury and announcing that I am proud to represent XXXX (name the corporation). It may not be the same as standing up and saying you represent the People of the United States, the People of the Great State of Texas or the People of Houston, but it is still very cool.
But just as it takes a certain skill set and mentality to be able to pull that off that trial lawyer hutzpah, such skills and mentality do not necessarily translate into the skills necessary to be good counselors. As Donna Boehme continually reminds us that is even truer when it comes to the compliance function in a Foreign Corrupt Practices Act (FCPA) compliance program. That point was driven home to me yet again in a recent article in the Texas Lawyer, entitled “FCPA Practices: Right-to-Audit Clauses”. In this article the authors, have a section denominated as ‘Defending An Audit’. I would suggest that if you are in a commercial contract relationship and your attitude starts with ‘defending an audit’ you are getting seriously low-value compliance counseling for your lawyer-dollars.
Contract negotiations which begin with such an adversarial attitude are apt to go nowhere on a slow boat to China. The right to audit was enshrined in every commercial contract that I ever negotiated, whether my client was paying money out or receiving money back for services or products delivered. If you are going to start fighting about the audit clause out of the box, frankly you probably have engaged outside counsel who is charging by the word. Worse, everyone from the Department of Justice (DOJ) down the chain of compliance understands the absolute need for audit rights. If your company comes out of the box fighting about audit terms so that you can defend an audit it certainly marks you as outside of the mainstream of entities around the best practices of compliance. Moreover, it would immediately set off huge Red Flags, if not cannonades of ringing church bells saying that my company has something to hide. Your corporate counter-party could very easily say that your client is not someone they could or even should do business with, if they want to fight over such a basic component in a best practices compliance program as audit rights.
It is that type of trial lawyer mentality which also seems to seep into the debate about a compliance defense under the FCPA. Leaving aside the Arthur Andersen effect of 63,000 people losing there livelihoods because one corporation made an idiotic decision to go to trial; the trial lawyer mentality that wants to tee it up with the DOJ does not serve the counseling function which corporations require. What does a trial lawyer tell a client about its chances at trial? You have a 10% chance; 20% chance; 50% chance; 75% chance of winning? What is that based on? Knowing what 12 (or perhaps 6) citizens will say? If there is a potential $500MM fine for a guilty verdict and there is a 10% chance of losing, is settling for $50MM reasonable? What if your illegal conduct was over five years ago, are you really going to trial on statute of limitations defense, where your own conduct hid the FCPA violations? Want to try and use that fact issue to persuade a jury that the government waited too long to indict?
Further, what are the true costs of litigating a criminal charge against your company? Attorney fees, defense costs for all those individuals the company has to defend, zero to no productivity for some period of time? What about all the negative stuff that will come out at trial about the company’s conduct, think there might be any negative effect on your corporate reputation, if not what about tanking of the stock price? How about all those plaintiff’s lawyers circling in the water with their shareholder derivative actions lawsuits firmly planted in their teeth, think they might be interested in what the Board knew, when it knew it or conversely that it did not know anything? Do you really want to put your Chief Executive Officer (CEO) up on the stand and have him or her cross-examined by the DOJ on what he/she allowed the compliance function to do at the company? Remember the great performance by Ken Lay at his company’s trial? (It’s my company – I do what I want.)
Yesterday, Mike Volkov wrote a blog post, entitled “Working in the Compliance Field – The Need for Practical Solutions”, where he said “compliance professionals need support with practical solutions to real problems. In some cases, compliance support professionals can help to define a strategy to solve a problem.” That seems to me to be the clearest articulation of why a compliance defense appended to the FCPA would not mean anything in the practice of compliance inside a corporation. If no corporation is going to trial, standing up and saying we have a compliance defense is not going to help the compliance practitioner do compliance inside a company. So as much as trial lawyers want to create something so that they can take on the DOJ over some FCPA issues at trial, such a defense will not move forward the doing of compliance.
Near the end of his piece Volkov said, “In the end, compliance professionals need less theoretical mumbo jumbo and more practical, real-world solutions.” Here, here Mike. Fighting your customer over audit rights is not a real world solution that a compliance practitioner needs.
This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.
© Thomas R. Fox, 2014
Filed under: Best Practices, compliance programs, Department of Justice, FCPA
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Lindsay Stafford Mader .
On the morning of Nov. 17, the State Bar of Texas will congratulate and administer the oath of office to more than 1,000 new attorneys at the New Lawyer Induction Ceremony, held at the Frank Erwin Center in Austin.
If you are a newly licensed attorney or a proud family member or friend attending the event, you’ll notice that the grounds surrounding the Erwin Center are looking very different. With construction of the Dell Medical School Project and the realignment of Red River Street fully underway, some streets and parking lots are currently closed. Please read on for important information regarding these changes.
Street Changes
Parking Options (a map of parking locations is available on the Erwin Center’s website)
If you have any additional questions, please contact the State Bar Membership Department at (800) 204-2222, ext. 1383, or (512) 427-1383.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by State Bar of Texas .
From Jane M. Corley of Dallas (Corley & Corley), this excerpt from the testimony of a nine-year-old boy in a criminal case in the 203rd District Court:
Q. Henry, do you remember what I told you about testifying today? Do you remember I talked to you about being on the witness stand?
A. Yes.
Q. What did I tell you is the most important thing to do? You remember what I said about telling the truth?
A. Yes.
Q. What did I tell you about that? What did I tell you, Henry?
A. To sit up straight.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Mary Flood .
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Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Norton Rose Fulbright .
On November 4th, Denton became the first city in Texas to enact a ban against hydraulic fracturing. The next day, several members of the oil and gas industry and the state of Texas sued Denton, alleging that the ban was invalid. It is possible that other parties are also planning on suing Denton over the fracking ban. Mendocino and San Benito counties may be following in Denton’s footsteps.
Mendocino and San Benito counties passed legislation on November 4th prohibiting hydraulic fracturing. A fracking ban was on the ballot in Santa Barbara county, but the ban was defeated. Observers have noted that unlike Santa Barbara, oil and gas operations in Mendocino and San Benito were not extensive. Thus, the impact of the bans is expected to be minimal. Mendocino and San Benito counties are not the only localities to adopt anti-fracking legislation. Several localities throughout California have enacted similar measures.
The anti-fracking measures will likely be challenged by oil and gas operators and landowners. It is possible that the state of California may also sue the localities just as Texas responded to the Denton fracking ban. The Western States Petroleum Association (WSPA) has already filed suit against the city of Compton’s fracking moratorium. In fact, although the lawsuit is still ongoing, Compton has withdrawn the moratorium.
The fracking bans can be challenged on several grounds. First, opponents of the fracking bans can argue that the local measures are preempted by state law. In 2013, California enacted Senate Bill 4—a bill that permits oil and gas operations to continue while the state studies the potential impact of hydraulic fracturing on the environment. State lawmakers attempted to pass a moratorium on drilling until the studies were completed, but the bill was defeated. Second, parties challenging the bans can argue that the anti-fracking measures constitute unconstitutional takings. The WSPA raised both arguments in its suit against Compton. Observers have noted that a takings claim brings the added dimension of a potentially significant verdict against the counties. Many argue that localities may rescind their fracking bans rather than risk incurring a large financial obligation.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright’s Energy Practice Group.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Bob Kraft .
How do you know whether that used car you want to buy has hidden damage? An article at Huffington Post will definitely make you think twice. Please read the entire article. Here are the opening paragraphs:
Just because a used car is cheap and seems OK during a test drive doesn’t mean it’s safe to buy.
Criminals have devised ways to artfully conceal structural damage on used cars, allowing vehicles to be sold for a profit even though they may have been shoddily rebuilt after an accident or submerged in ocean water during a hurricane.
When insurance companies write off a vehicle as a “total loss” after an accident or other event like a flood or hail storm, the law in most states requires the vehicle’s title of ownership to be given a “brand.” That brand permanently marks the car as damaged goods to all potential future owners, but there are ways for it to be washed away. In the old days, it was done with chemicals. Now, photo editing software and digital scanners are used to print new titles. Or, cars can simply be re-registered in different states until the brand falls away.
Because there is no national titling law, incongruous state laws create opportunities for scammers to “title wash” wrecked cars, making them appear undamaged. Not only are consumers being ripped off, but they’re also putting themselves and others in danger when they unknowingly drive a salvaged car on U.S. highways.
The scam appears to happen on a large scale: According to the vehicle history provider CarFax, 800,000 cars in the U.S. — including at least 500 taxis — have been “title washed” to conceal their troubled histories.
Image courtesy of stockimages at FreeDigitalPhotos.net.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by State Bar of Texas .
These excerpts are from criminal cases that I tried during the past six months.
Q. As an expert, what steps do you take in making an appraisal of real property?
A. Well, first you make sure you’re on the right piece of property.
********
Q. Did you build a house for her daughter?
A. Yes, it was a marginal home.
Q. What kind?
A. Marginal. You know, it came unassembled. And I put the walls together and then the roof. You know, marginal.
Q. Do you mean “modular”?
A. Yes, that’s it. I’ve been having a little trouble with my wife here.
********
Q. The motels I took over from the Savings & Loan were not in good shape. They had bug drusts almost every night.
A. You had …
Q. Drug Busts! I mean we had drug busts.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Lori T. Oliphant .
On November 10, 2014, the U.S. Department of Health and Human Services (HHS) issued a bulletin reminding covered entities and business associates of how they may disclose patient information for public health activities or in emergency situations. This bulletin was published in response to the Ebola outbreak and other recent events.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Greg Baumgartner .
As cities across the country consider stepping up to add red light cameras to help prevent accidents, Houston has gone the opposite direction. Houston had red light cameras beginning in 2006, until voters chose not to allow them in November 2010. Whether the concept of having a ticket arriving in the mail with a photograph
The post The Truth – Red Light Cameras Prevent Accidents appeared first on Baumgartner Law Firm.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by AskPat .
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by State Bar of Texas .
Lynn Brooks of DeSoto, who is a certified shorthand reporter, sent me a number of transcript excerpts — which she calls “transquips.” Here are a few of them:
Q. Do you have any relatives in a nursing home anywhere, or have you ever?
A. Yes.
Q. Who was that?
A. My wife’s stepmother.
Q. Is she still living?
A. She died a week ago Monday.
Q. I’m sorry to hear that. How was her health when she was in that nursing home?
Mr. Smith: Objection: Form. She died, Steve. Come on.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Mary Flood .
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Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by State Bar of Texas .
Hal Monk of Bedford, who confesses that he has enjoyed the et cetera column for so many years that he “feels plum guilty for not having sent … any contributions in the past,” sent in this excerpt from the January 1993 deposition of Hollywood celebrity Zsa Zsa Gabor, Monk’s client. Larry Macon, with Akin Gump’s San Antonio office, took the deposition.
Mr. Macon: What is your date of birth?
The Witness: I don’t know.
Q. You misunderstood my question. When were you born?
A. I understood your question perfectly well. My answer is I don’t know; don’t remember.
Q. I demand an explanation of that absurd response.
A. Before we come up here, my lawyer told me how to make a good —
Mr. Monk: Just a minute, hold on —
The Witness: witness or how to do good in three —
Mr. Monk: Ms. Gabor, you don’t need to —
The Witness: Monk said I must follow three easy steps. First, to listen to the question and be sure I know what you mean. Then, answer the question just if I know for sure. But OK to say I don’t remember or I don’t know if that is truth. Do you remember being born? Of course not. Is a stupid damn question. Now, ask me something maybe I know for sure.
• • •
Monk’s Epilogue: Although the deposition continued for several hours, Mr. Macon never ascertained the witness’ birth date. But then, neither did her attorney.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by tfoxlaw .
This month there are two dates that are forever tied together in the annuals of maritime tragedies and great songwriters. November 10 is the 39th anniversary of the sinking of the Great Lakes freighter the SS Edmund Fitzgerald, who sank 17 miles from the entrance to Whitefish Bay on Lake Superior taking all 29 crewmembers to the bottom with her. Next Monday, November 17, is the 76th birthday of the Canadian singer-songwriter Gordon Lightfoot, who memorialized the tragedy in the song The Wreck of the Edmund Fitzgerald, which he released on the album Summertime Dream in 1976. The song went all the way to Number 2 on the charts. I can still hear Lightfoot’s haunting tale in my head to this day and for me, it was his greatest single.
Earlier this month, Bio-Rad Laboratories Inc. (Bio-Rad) concluded a multi-year Foreign Corrupt Practices Act (FCPA) investigation and enforcement action. It was notable for many reasons. First and foremost was the stunning bribery and corruption scheme that the company engaged in; multiple bribery schemes in multiple countries. Also notable were the results that the company achieved. While we do not yet know if there will be any individual prosecutions of this matter, the company received a Non-Prosecution Agreement (NPA) from the Department of Justice (DOJ) and a relatively small fine of $14.35MM for what clearly would appear to be criminal violations of the FCPA. Perhaps equally stunning is the amount of profit disgorgement that the company agreed to with the Securities and Exchange Commission (SEC), that amount being $40.7MM.
As with the Layne Christensen FCPA enforcement action from October, both settlement documents provide a wealth of very useful information for the compliance practitioner to use to not only help create a best practices compliance program, but also review your company’s compliance program to see if there might be areas of risk which need to be assessed or have greater compliance scrutiny. Over the next couple of blog posts I want to explore the Bio-Rad FCPA settlement, discuss some of the lessons learned for the compliance practitioner and explore what this settlement may unveil for future FCPA enforcement actions.
With his usual thoroughness, the FCPA Professor went into deep dive mode to lay out the underlying facts involved in this matter, in a post entitled “Bio-Rad Laboratories Agrees To Pay $55 Million To Resolve FCPA Enforcement Action ”. According to the NPA, Bio-Rad had bribery schemes running in the following countries: Russia, Vietnam and Thailand. In Russia, persons identified as ‘Manager-1’ who was a high-level manager of the company’s Emerging Markets sales region and ‘Manager-2’ who worked for Manager-1 and was described as a high-level accounting manager of the company’s Emerging Markets sales region, engaged with ‘Agent-1’ paying him “a commission of 15-30% purportedly in exchange for various services outlined in the agency contracts, including acquiring new business by creating and disseminating promotional materials to prospective customers, installing Bio-Rad products and related equipment, training customers on the installation and the use of Bio-Rad products, and delivering Bio-Rad products.”
The commission rates were approved by Manager 1 and 2 even though they were both aware that Agent 1 did not and indeed could not perform the contracted services. Payments were made to a level of $200,000 or less because that was the spending authority of the managers, which did not require a higher level of company review. Both managers communicated with Agent 1 through multiple fraudulent email addresses to avoid detection by the company. Finally, Agent 1 had a 100% success rate in obtaining sales into Russia.
In Vietnam, the system was much simpler and even more directly corrupt. The Bio-Rad country manager was authorized to approve contracts up the amount of $100,000 and to pay sales commissions up to $20,000 without further review. This un-named country manager simply authorized cash payments to officials at state-owned hospitals to obtain or retain business for the company. When the country manager was finally challenged on this direct bribery scheme, he simply “proposed a solution that entailed employing a middleman to pay the bribes to the Vietnamese government officials as a means of insulating Bio-Rad from liability.” The bribery funds were created by giving these middlemen, named distributors, deep discounts “which the distributor would then resell to government customers at full price, and pass through a portion of it as bribes.” These bribes were recorded on the company’s books and records as “commissions”, “advertising fees” and “training fees”.
In Thailand, the company acquired a 49% interest in a joint venture (JV) through acquisition. Initially I would note that there is no record that Bio-Rad either performed pre-acquisition due diligence or engaged in any post acquisition integration or remediation so that an ongoing bribery scheme which began under a previous company’s ownership continued after Bio-Rad took control of the Thailand JV. The bribery scheme involved paying an agent “an inflated 13% commission, of which it retained 4%, and paid 9% to Thai government officials in exchange for profitable business contracts.” Just to top it all off, the agent involved in the bribery scheme was Bio-Rad’s JV partner.
I would say that all of the above is very bad conduct. Yet, Bio-Rad was able to garner a NPA from the DOJ and a civil Cease and Desist Order from the SEC. How did they accomplish this? In the DOJ Press Release, it stated, “The department entered into a non-prosecution agreement with the company due, in large part, to Bio-Rad’s self-disclosure of the misconduct and full cooperation with the department’s investigation…In addition, Bio-Rad has engaged in significant remedial actions, including enhancing its anti-corruption compliance programs globally, improving internal controls and compliance functions, developing and implementing additional due diligence and contracting procedures for intermediaries, and conducting extensive anti-corruption training throughout the organization.”
For the compliance practitioner, yet once again the DOJ and SEC are sounding a LOUD and CLEAR message that even with very bad conduct, the systemic failure of internal controls and having a culture that turned a very blind eye at best to what was going on; you can make a comeback. Moreover, you can make such a spectacular comeback that does not even sustain a Deferred Prosecution Agreement (DPA) let alone have to accept a guilty plea. It all starts with putting a best practices compliance program in place and the DPA lists the steps that any company should consider in its compliance regime.
At the conclusion of its NPA, Bio-Rad agreed to ongoing compliance reporting, at annual anniversaries of the date of the NPA by reporting to the DOJ the results of its remediation efforts over the past year. This is one of the most significantly overlooked positive aspects of any FCPA resolution. This allows the DOJ to have a continued view into the company’s compliance function. It is not an ongoing monitor but it does give the DOJ a transparent view into the company’s work towards the overall goal of putting a best practices compliance program in place and not simply stopping work when the settlement is signed. It keeps the company on its toes and allows the DOJ to continue to assess the company’s actions around anti-corruption compliance.
In the next blog post on Bio-Rad, I will review some of the specific bribery schemes that the company used and discuss how a compliance practitioner might use them for some lessons learned.
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This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.
© Thomas R. Fox, 2014
Filed under: Best Practices, Bio-Rad, Compliance, Compliance and Ethics, compliance programs, Department of Justice, FCPA, Non-Prosecution Agreements, SEC Tagged: best practices, compliance, compliance programs, Department of Justice, DOJ, FCPA, FCPA Professor, SEC
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