Friday, August 29, 2014

Top 10 From Texas Bar Today: Twitter, Violence, and Pomegranates

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From posts about weird transactions at Wal-Mart to Q&A’s with comic book writers, Texas Bar Today curates Texas law blogs and provides readers with practical, engaging, and oftentimes humorous content. 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 the first installment.



10. Ninth Circuit Holds FedEx Drivers are Employees, Not Independent Contractors


9. “BYOD Bill of Rights” May Help Concerns about Privacy


8. Friday Links


7. Law Firm Associates: You are Never Too Young, Too Inexperienced, Too . . .


6. Punitive Damages Award Against Wal-Mart Affirmed in South Carolina Weird Transaction Case


5. Abnormal Interviews: Lawyer and She-Hulk Comic Book Writer Charles Soule


4. Recommended Reading: To Sell is Human


3. The Art of War, Pomegranate Style, in The U.S. Supreme Court


2. On Twitter, Be Your Own Censor.


1. Violence and Attorneys -Time for a Wake-up Call?


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CLE on Domestic Asset Protection Trust Planning

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The ABA Section of Real Property, Trust and Estate Law is presenting an eCLE series entitled, Domestic Asset Protection Trust Planning: Jurisdiction Selection Series. The series includes five webinars, each focusing on asset protection laws in a group of states….


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Trial Skills: A new issue of The Jury Expert is up!

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TJE_logo The August issue of The Jury Expert is up and we think you’re going to want to see this. Here’s a rundown of the articles you’ll find at the website.


Demographic Roulette: What was once a bad idea has gotten worse . Authored by Doug Keene and Rita Handrich with a response from Paul Begala, this article takes a look at how the country has changed over the past 2 decades and our old definitions of Democrat or Republican and conservative or liberal are simply no longer useful. What does that mean for voir dire? What should it mean for voir dire? Two very good questions those.


If it feels bad to me, it’s wrong for you: The role of emotions in evaluating harmful acts. Authored by Ivar Hannikainen, Ryan Miller and Fiery Cushman with responses from Ken Broda-Bahm and Alison Bennett, this article has a lesson for us all. It isn’t what that terrible, awful defendant did that makes me want to punish, it’s how I think I would feel if I did that sort of terrible, horrible awful thing. That’s what makes me want to punish you. It’s an interesting perspective when we consider what makes jurors determine lesser or greater punishment.


Neuroimagery and the Jury. Authored by Jillian M. Ware, Jessica L. Jones, and Nick Schweitzer with responses from Ekaterina Pivovarova and Stanley L. Brodsky, Adam Shniderman, and Ron Bullis. Remember how fearful everyone was about the CSI Effect when the research on the ‘pretty pictures’ of neuroimagery came out? In the past few years, several pieces of research have sought to replicate and extend the early findings. These studies, however, failed to find support for the idea that neuroimages unduly influence jurors. This overview catches us up on the literature with provocative ideas as to where neurolaw is now.


Predicting Jurors’ Verdict Preference from Behavioral Mimicry. Authored by Matthew Groebe, Garold Stasser, and Kevin-Khristi√°n Cosgriff-Hernandez, this paper gives insight into how jurors may be leaning in support of one side or the other at various points during the trial. This is a project completed using data from actual mock trials (and not the ubiquitous undergraduate).


Our Favorite Thing. We often have a Favorite Thing in The Jury Expert. A Favorite Thing is something low-cost or free that is just fabulous. This issue, Brian Patterson shares the idea of mind mapping and several ways (both low-tech and high-tech) to make it happen.


The Ubiquitous Practice of “Prehabilitation” Leads Prospective Jurors to Conceal Their Biases. Authored by Mykol C. Hamilton, Emily Lindon, Madeline Pitt, and Emily K. Robbins, with responses from Charli Morris and Diane Wiley, this article looks at how to not “prehabilitate” your jurors and offers ideas about alternate ways of asking the question rather than the tired, old “can you be fair and unbiased?”.


Novel Defenses in the Courtroom. Authored by Shelby Forsythe and Monica K. Miller, with a response from Richard Gabriel. This article examines the reactions of research participants to a number of novel defenses (Amnesia, Post-Traumatic Stress Disorder (PTSD), Battered Women Syndrome (BWS), Multiple Personality Disorder (MPD), Post-Partum Depression (PPD), and Gay Panic Defense) and makes recommendations on how (as well as whether or not) to use these defenses.


On The Application of Game Theory in Jury Selection . Authored by David M. Caditz with responses from Roy Futterman and Edward Schwartz. Suppose there was a more predictable, accurate and efficient way of exercising your peremptory strikes? Like using a computer model based on game theory? In this article, a physicist presents his thoughts on making those final decisions more logical and rational and based on the moves opposing counsel is likely to make.


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  1. A new issue of The Jury Expert!

  2. The latest issue of The Jury Expert is a total classic!

  3. Trial Skills Journal on the Web: The Jury Expert


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Houston Legal Links 8/29/14

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Top legal stories include: Judge: School finance system still illegal; A timeline of Texas school finance court battles; Houston police chief seeks body camera funding; Ex-Client Sues Beirne Maynard Over Bankruptcy (Texas Lawyer); Falkenberg: In a patent case, a lawyer misleads a judge – and is rebuked (Chron subsc); Mom says 9-year-old offered to sell her 10-year-old cocaine on school bus; Austin bans talking on your cell-phone while driving your car; Police looking for answers after man dies on Heights jogging trail; Sheriff: Texas minister charged in assault; Vandal causes disturbance at Joel Osteen’s Lakewood Church; Woman, 85, faces life for plot to have prosecutors killed;; City Committee To Review Houston’s Historic Preservation Ordinance; Texas Man No Longer Faces Life in Prison for Pot Brownies; Texas Supreme Court to study controversial expedited action rules (Texas Lawyer); Attorneys: Judge in Perry Case is Thoughtful, Fair; Secretive Group Launches Pro-Perry Site; Lawmaker Sues Texas Racing Commissioners; Texas man gets 20 years in synthetic drug deaths; Parkland hospital’s patient care draws federal scrutiny; Tanker reappears on tracking system, and it’s still in the Galveston area; Plaintiffs likely to appeal ruling in BP Atlantis case, lawyer says; Company helps smaller oil companies use bigger data & HBJ: How Houston’s affluence stacks up nationwide.


For the water cooler: Nationwide Pay Raise Watch: Could Philadelphia To $160K Drive NY To $190K?; Illegal ‘hostile work environment’ harassment for co-workers to wear Confederate flag T-shirts; Former US Attorney takes plea in tax-return case, agrees to pay $290K; An AUSA Has His 82 Year-Old Neighbor Arrested Over A Dispute About A Fence; Which midlevel associates are the happiest?; Latham Sued For Malicious Prosecution; Attorney is charged in child-porn possession case after consenting to search of law office; New NFL policy imposes 6-game suspension for domestic or sexual assault, banishment for 2nd offense; 6th Circuit reverses hate-crime convictions of Amish in beard- and hair-cutting attacks; Immigration Law Is Even More Corrupt Than You Think; Again, Goodwill Does Not Accept Skull Donations; Deputy distracted by patrol car’s computer won’t be charged in fatal collision with bicycling lawyer; Do write “declination letters” confirming no representation to certain would-be clients.; Rap music scholars aim to educate SCOTUS in threats case & Class action aims to curb soccer concussions.


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Thursday, August 28, 2014

UK Infographic Signifies Importance of a Valid Will

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While many people forego creating a will during their lifetime, this is especially true in the UK where almost 56 percent of the adult population does not possess a valid will. This shocking statistic caught the attention of Whitehead Monckton,…


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Billing Process for Long-Term Services and Supports Providers …

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DADS has issued Information Letter 14-49 titled Billing Process for Long-Term Services and Supports Providers Transitioning to STAR+PLUS.


The Health and Human Services Commission (HHSC) is expanding the STAR+PLUS Medicaid

managed care program to the existing Medicaid Rural Service Areas (MRSAs) including West,

Central, and Northeast Texas. With this expansion, most individuals who are age 65 or older or

who have a disability will get their basic health services (acute care), and Long-Term Services and

Supports (LTSS) through a STAR+PLUS Managed Care Organization (MCO). In the Fall of 2013,

HHSC began conducting statewide Medicaid Managed Care Initiative Information Sessions to

inform the targeted providers and individuals of this expansion. The HHSC conducted provider

trainings in the targeted areas and the presentation can be found on the Managed Care Initiatives

website: Medicaid Managed Care Initiatives.


Contracts and Provider Payments

With the September 1, 2014 implementation of the STAR+PLUS expansion in the MRSA

counties, the Community Based Alternatives (CBA) program will be terminated. As a result,

DADS will cancel all CBA contracts. CBA providers who have not received a contract

cancellation notice must contact the Community Services Contract line at (512) 438-3550. Current

contracted providers will still be able to deliver and receive payment for Title XX Day Activity

Health Services (DAHS), Community Attendant Services, Family Care, Adult Foster Care,

Emergency Response Services, Home Delivered Meals, and Residential Care for SSI individuals

who are enrolled in the STAR+PLUS program, excluding those receiving the STAR+PLUS Home

and Community Based Services waiver and are not duplicated services. Client Managed Personal

Attendant Services (CMPAS) providers will be able to deliver and receive payment for services for

non-SSI and non-SSI-related individuals or SSI and SSI-related CMPAS individuals with a spouse

as the paid attendant.


Provider Referral Process

Providers should be aware that neither HHSC nor the MCOs are allowed to make referrals that

would favor and give advantage to any particular provider. Each MCO provides contracted

providers with a provider manual that describes this process.


Provider Communications Regarding STAR+PLUS Program Expansion

DADS publishes information regarding the transition of LTSS from DADS to the STAR+PLUS

program on DADS website at: http://ift.tt/1n0l42H. Please refer to information letters

and alerts regarding Managed Care and STAR+PLUS topics.


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Violence and Attorneys -Time for a Wake-up Call?

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By John G. Browning


We usually don’t consider the practice of law to be a dangerous profession, nestled as we normally are behind desks. But as the articles in the upcoming September issue of the Texas Bar Journal illustrate, violence has a very real impact on the legal profession—from the legal implications of and reactions to mass shootings to the risks faced by attorneys working in areas like family law and criminal law.



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State Sues Xerox over Failure to Return, Protect Client Data

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State Sues Xerox over Failure to Return, Protect Client Data


A contractor being sued by the state for fraud has failed to turn over client Medicaid and health records, putting the state out of compliance with federal regulations and at risk of federal fines. The state has filed a lawsuit against Xerox seeking the immediate return of the data, and HHSC is notifying current and former Medicaid clients whose information may be at risk.


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IP Plaintiffs Lose Leg Up for Injunctions in Third Circuit

Originally published by .


Presuming harm


For a long time, federal courts presumed that misuse of someone’s intellectual property — things like patents, copyrights, and trademarks — would cause the owner “irreparable harm”. The bad acts, the courts believed, would ipso facto injure the IP owner in ways that mere money could not fix.


Change in the air


But that presumption took a hit when the Supreme Court ruled in eBay Inc. v. MerExchange, L.L.C., 547 U.S. 388 (2006), that the court of appeals had “erred in applying a categorical rule that injunctions should issue upon a showing of valid patent infringement.”


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Wednesday, August 27, 2014

Five Texans to watch vs. 49ers

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Five Texans to keep an eye on during the preseason finale against the 49ers on Thursday night.


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What is the Tax Consequence of Selling Property I Inherit or Receive As A Gift?

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Money House Several weeks ago, I received a phone call from a client whose elderly mother owned several pieces of real estate in an exclusive part of town. She had purchased the property decades ago for very little, but since then, the property had appreciated more than a hundredfold. What would be the tax consequences if my client sold this highly appreciated property after her mother died?


Today, I’m delighted to welcome my friend and accountant, Ranjana Batra, as a guest blogger and appreciate her willingness to share this informative post about the tax consequences of selling property that one inherits or receives as a gift.


Receiving a gift is not a taxable event to the one who receives the gift. The gift-giver, or donor, is responsible for paying gift taxes if the gift exceeds the annual gift tax exclusion, which is $14,000 this year.


As the recipient of the gift, you are not required to report any gifts you receive on your income tax return. This is true whether the gift you received is in cash or other property.


However, when you sell the gifted property, taxes become an issue. You are considered to have owned the property for as long as the donor owned it, and you also take the donor’s cost basis. This is true for gifts made while the donor is alive. Property received from an estate is treated differently. The beneficiary of inherited property receives a step-up in basis.


So how does this work on your tax return? Let’s assume that your mother gave you a piece of real estate three months ago, and the real estate has a current value of $100,000. Let’s further assume that your mother owned the property for twenty years and paid $30,000 for it.


If you sell the property this year for $100,000, you will have a long-term capital gain of $70,000 ($100,000 minus your mother’s cost of $30,000). Because you are deemed to have owned the property for twenty years, you get the favorable long-term capital gain treatment, which caps out at 20% this year, and varies depending on your tax bracket.


Now suppose rather than having received the same property during your mother’s lifetime, you inherit it instead after she dies. You will receive a step-up from the original cost basis from $30,000 to $100,000. If you sell the property right away, you will not owe any capital gains taxes. If you hold on to the property and sell it for $125,000 in a few years, you will owe capital gains on $25,000 (the difference between the sale value and the stepped-up basis).


In the case of highly appreciated property, the step-up in basis can significantly reduce the amount of capital gains tax that is owed when the property is sold.


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Tuesday, August 26, 2014

What Are Homeowners’ Post-Loss Duties In Texas?

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In a case recently decided in Texas, the insurance carrier prevailed against the policyholder when the appellate court found that the policyholder failed to adhere to its post-loss duties under a homeowner’s insurance policy.1 This blog entry examines the facts and holdings in the hope policyholders and professionals assisting them can avoid facing a similar situation.

Pertinent Facts Outlined In Court’s Decision


In 2002, the policyholder returned from a multi-week family vacation and found their house full of water, “as if there was no roof on the home.” The homeowner reported the water source as a single air conditioning pan leak in the attic. The carrier’s investigation revealed numerous sources of water intrusion in addition to the air conditioning leak and instances of mold throughout the property. The evidence at trial indicated many water leaks had occurred long before the reported leak in 2002


The carrier obtained a bid to remediate the mold and rebuild the…


.


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Law Firm Associates: You are Never Too Young, Too Inexperienced, Too . . .

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Are you a law firm associate? If so, do you ever feel that you may be too young, too inexperienced or too something else to be successful at client development?


I frequently hear:



  • I don’t have gray hair like he does.

  • No one my age is making the decision which law firm to hire.

  • My firm would not value the potential clients I could attract.



As the visual points out, you are never too young to dream big. Think about your youth in another way. Focus on the advantages you have being younger than the lawyers with whom you compete. Clients and potential clients consider more than just age and experience when picking a lawyer.


There are plenty of older and more experienced lawyers who may be complacent about their client development. They may be content with where they are in their career. I look at their website bios all the time and find the last time they wrote anything or gave a presentation was more than 5 years ago. Those lawyers are coasting, or at least content with where they are in their career.


If you are hungry to become more valuable to your potential clients, and if you are willing to do what older lawyers are not doing, you have a real opportunity. The name of the game is to become known by as many potential clients in your target market as possible. Frankly, the more people who know you and like you, the more likely you will get hired.


It is never too early to start building relationships. You are never too young to dream big. You are never too young, too inexperienced, too…to become visible, build relationships and begin your journey to success.


How about starting this week. What is the one thing you can do this week?



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Risk Assessments-the Cornerstone of Your Compliance Program, Part I

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7K0A0079 Yesterday, I blogged about the Desktop Risk Assessment. I received so many comments and views about the post, I was inspired to put together a longer post on the topic of risk assessments more generally. Of course I got carried away so today, I will begin a three-part series on risk assessments. In today’s post I will review the legal and conceptual underpinnings of a risk assessment. Over the next couple of days, I will review the techniques you can use to perform a risk assessment and end with a discussion of what to do with the information that you have gleaned in a risk assessment for your compliance program going forward.


One cannot really say enough about risk assessments in the context of anti-corruption programs. Since at least 1999, in the Metcalf & Eddy enforcement action, the US Department of Justice (DOJ) has said that risk assessments that measure the likelihood and severity of possible Foreign Corrupt Practices Act (FCPA) violations identifies how you should direct your resources to manage these risks. The FCPA Guidance stated it succinctly when it said, “Assessment of risk is fundamental to developing a strong compliance program, and is another factor DOJ and SEC evaluate when assessing a company’s compliance program.” The UK Bribery Act has a similar view. In Principal I of the Six Principals of an Adequate Compliance program, it states, “The commercial organisation regularly and comprehensively assesses the nature and extent of the risks relating to bribery to which it is exposed.” In other words, risk assessments have been around and even mandated for a long time and their use has not lessened in importance. The British have a way with words, even when discussing compliance, and Principal I of the Six Principals of an Adequate Compliance program says that your risk assessment should inform your compliance program.


Jonathan Marks, a partner in the firm of Crowe Horwath LLP, said the following about risk assessments in his 13-step FCPA Compliance Action Plan, “A comprehensive assessment of the potential bribery and corruption risks – both existing and emerging risks – associated with a company’s products and services, customers, third-party business partners, and geographic locations can serve as the basis for the compliance program. The risk assessment determines the areas at greatest risk for FCPA violations among all types of international business transactions and operations, the business culture of each country in which these activities occur, and the integrity and reputation of third parties engaged on behalf of the company.”


The simple reason is straightforward; one cannot define, plan for, or design an effective compliance program to prevent bribery and corruption unless you can measure the risks you face. Both the both the US Sentencing Guidelines, the UK Bribery Act’s Consultative Guidance list Risk Assessment as the initial step in creating an effective anti-corruption and anti-bribery program.


What Should You Assess?


In 2011, the DOJ concluded three FCPA enforcement actions which specified factors which a company should review when making a Risk Assessment. The three enforcement actions, involving the companies Alcatel-Lucent SA, Maxwell Technologies Inc. and Tyson Foods Inc. all had common areas that the DOJ indicated were FCPA compliance risk areas which should be evaluated for a minimum best practices FCPA compliance program. Both the Alcatel-Lucent and Maxwell Technologies Deferred Prosecution Agreements (DPAs) listed the seven following areas of risk to be assessed.



  1. Geography-where does your Company do business.

  2. Interaction with types and levels of Governments.

  3. Industrial Sector of Operations.

  4. Involvement with Joint Ventures.

  5. Licenses and Permits in Operations.

  6. Degree of Government Oversight.

  7. Volume and Importance of Goods and Personnel Going Through Customs and Immigration.


All of these factors were reiterated in the FCPA Guidance which stated, “Factors to consider, for instance, include risks presented by: the country and industry sector, the business opportunity, potential business partners, level of involvement with governments, amount of government regulation and oversight, and exposure to customs and immigration in conducting business affairs.”


These factors provide guidance into some of the key areas that the DOJ apparently believes can put a company at higher FCPA risk. These factors supplement those listed in the UK Bribery Consultative Guidance states, “Risk Assessment – The commercial organization regularly and comprehensively assesses the nature and extent of the risks relating to bribery to which it is exposed.” The Guidance points towards several key risks which should be evaluated in this process. These risk areas include:



  1. Internal Risk – this could include deficiencies in



  • employee knowledge of a company’s business profile and understanding of associated bribery and corruption risks;

  • employee training or skills sets; and

  • the company’s compensation structure or lack of clarity in the policy on gifts, entertaining and travel expenses.



  1. Country risk – this type of risk could include:


(a) perceived high levels of corruption as highlighted by corruption league tables published by reputable Non-Governmental Organizations such as Transparency International;


(b) factors such as absence of anti-bribery legislation and implementation and a perceived lack of capacity of the government, media, local business community and civil society to effectively promote transparent procurement and investment policies; and


(c) a culture which does not punish those who seeks bribes or make other extortion attempts.



  1. Transaction Risk – this could entail items such as transactions involving charitable or political contributions, the obtaining of licenses and permits, public procurement, high value or projects with many contractors or involvement of intermediaries or agents.

  2. Partnership risks – this risk could include those involving foreign business partners located in higher-risk jurisdictions, associations with prominent public office holders, insufficient knowledge or transparency of third party processes and controls.


Another approach was detailed by David Lawler, in his book “Frequently Asked Questions in Anti-Bribery and Corruption”. He broke the risk areas to evaluate down into the following categories: (1) Company Risk, (2) Country Risk, (3) Sector Risk, (4) Transaction Risk and (5) Business Partnership Risk. He further detailed these categories as follows:



  1. Company Risk-Lawyer believes this is “only to be likely to be relevant when assessing a number of different companies – either when managing a portfolio of companies from the perspective of a head office of a conglomerate or private equity house.” High risk companies involve, some of the following characteristics:



  • Private companies with a close shareholder group;

  • Large, diverse and complex groups with a decentralized management structure;

  • An autocratic top management;

  • A previous history of compliance issues; and/or

  • Poor marketplace perception.



  1. Country Risk-this area involves countries which have a high reported level or perception of corruption, have failed to enact effective anti-corruption legislation and have a failure to be transparent in procurement and investment policies. Obviously the most recent, annual Transparency International Corruption Perceptions Index can be a good starting point. Other indices you might consider are the Worldwide Governance Indicators and the Global Integrity index.

  2. Sector Risk-these involve areas which require a significant amount of government licensing or permitting to do business in a country. It includes the usual suspects of:



  • Extractive industries;

  • Oil and gas services;

  • Large scale infrastructure areas;

  • Telecoms;

  • Pharmaceutical, medical device and health care;

  • Financial services.



  1. Transaction Risk-Lawyer says that this risk “first and foremost identifies and analyses the financial aspects of a payment or deal. This means that it is necessary to think about where your money is ending up”. Indicia of transaction risk include:



  • High reward projects;

  • Involve many contractor or other third party intermediaries; and/or

  • Do not appear to have a clear legitimate object.



  1. Business Partnership Risk-this prong recognizes that certain manners of doing business present more corruption risk than others. It may include:



  • Use of third party representatives in transactions with foreign government officials;

  • A number of consortium partners or joint ventures partners; and/or

  • Relationships with politically exposed persons (PEPs).


There are a number of ways you can slice and dice your basic inquiry. As with almost all FCPA compliance, it is important that your protocol be well thought out. If you use one, some or all of the above as your basic inquiries into your risk analysis, it should be acceptable for your starting point.


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, Bribery Act, Compliance, Compliance and Ethics, compliance programs, David Lawler, Department of Justice, Document Document Document, FCPA, FCPA Guidance, Jonathan Marks, Risk Assessment Tagged: best practices, Bribery Act, compliance, compliance programs, Department of Justice, DOJ, ethics and compliance, FCPA, Foreign Corrupt Practices Act, Risk Assessment, SEC


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Say What?! – East Texas Slang

Originally published by .


From Raymond W. Cozby, III of Tyler (Cowles & Thompson), this closing argument made by his brother, Andrew J. Cozby, the prosecutor in a criminal trial in Houston:


Mr. Cozby: Members of the jury, I appreciate your patience during this trial. I’m going to be talking quick because my time is limited. If you can follow this East Texas slang I appreciate it because I’m going to be going over some important points.


Number One: What we call in East Texas — if you’ve ever seen a dog chasing a rabbit, sometimes they will get off on some rabbit’s trail. That’s a false trail that leads off in a circle. And a dog will get off on a false trail from where the rabbit really is.


Defense Attorney: Your Honor, I object to being called a dog.


Mr. Cozby: Your Honor, I except to that, I was calling him a rabbit.


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Monday, August 25, 2014

O’Bannon v. NCAA: Summarizing the Court’s Opinion

Originally published by .


On August 8, 2014, the Honorable Claudia Wilken issued an opinion finding “the challenged NCAA rules unreasonably restrain trade in the market for certain educational and athletic opportunities offered by NCAA Division I schools.” The following will address the Court’s analysis of the pertinent points of the case.


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The Psychology of Expensive Paper

Originally published by .


I use 28-pound printer paper for my pleadings. Have done for years. Judges and prosecutors often notice the paper: it’s heavy, stiff, and smooth. It also costs almost four times times as much as cheap paper (2.3 cents, vs. 0.64 cents per page), which can add up; my justification for using it has been that the things I’m filing with the court are important, so they should look and feel important (I put some effort and money into typography as well).


Yesterday Sarah “Bennett’s Former Brain” Wood sent me a link to a Psychology Today post that supports that justification:



New research…shows that the weight, texture, and hardness of the things we touch are, in fact, unconsciously factored into our decisions about things that have nothing to do with what we are touching. Potentially, every decision we make.


* * * * *


[W]hen we hold something heavy, we actually see seriousness and importance in people and issues that we might not otherwise.


* * * * *


As with weight and texture, hardness exerts an influence on our perceptions and behavior. People who had earlier examined a hard piece of wood later judged an employee interacting with his boss as more rigid and strict than did people who had first examined a soft blanket.



The for Bennett’s pleadings, though:



In another study, feeling roughness led participants to negotiate poorly, offering their counterparts better deals than people who’d held smooth things did—because they saw the bargaining task as more difficult.



I may have to start printing prosecutors’ copies of my motions on sandpaper. Judges will still be getting the good stuff.




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Manage your sentence length

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What’s a good average sentence length for legal writing? I once asked a group of lawyers at a CLE seminar that question. “Thirteen words,” one lawyer volunteered. “Seven,” said another. Wow.


Writing about legal matters with an average of seven words per sentence isn’t realistic, is it? That means for every sentence of ten words, you’ve got to write one of four words to bring the average to seven. That would be tough, but the instinct is right. Steven Stark, author of Writing to Win, says the more complex the material, the shorter the sentences should be.


So what’s a more realistic goal? The experts say between 20 and 25 words:



  • below 25—Richard Wydick in Plain English for Lawyers

  • about 22—Enquist & Oates in Just Writing: Grammar, Punctuation, and Style for the Legal Writer

  • about 20—Bryan Garner in Legal Writing in Plain English


How do you know your average sentence length? You can program Microsoft Word to tell you. In Word 2010 and 2013, go to File > Options > Proofing and look for “When correcting spelling and grammar in Word.” Now check the box for “Show readability statistics.”


You’ll also be required to check the box for “Check grammar with spelling.” If you dislike running a grammar-check every time you run a spell-check, go into the grammar settings and uncheck as many boxes as you like. Tell Word to stop checking for all those grammar items—it gets many of them wrong anyway.


Now when you finish a spell-check, you’ll see a display that includes the average sentence length. Of course, the tool isn’t perfect. If you have citations or headings in your text, Word will think those are sentences—short sentences—and your average sentence length will be artificially low. To work around this problem, select a paragraph or group of paragraphs without headings or citations and then run the spell-check; do it three times in different places. This will give you a sense of your average sentence length.


If your average sentence length is in the 30s, or even the high 20s, you’re taxing your readers. Do a thorough edit for concision and efficiency. If your average sentence length is in the teens, well done. You’re pleasing your readers. And remember, average sentence length doesn’t mean uniform sentence length. You should vary your sentence length. Write some short sentences and some longer ones.


But how long is too long? We lawyers have a reputation for long sentences. It’s probably not all our fault. After all, the subject matter of most legal writing lends itself to qualifications, modifiers, asides, and lists—so we might be forgiven. Yet I’m sure we can do better. Here’s a suggestion: Decide on a maximum sentence length and promise yourself you’ll cut any sentence that goes above your maximum. For example, mine is 45. I’ve decided that when a single sentence I’ve written exceeds 45 words, it’s an automatic edit.


Of course, some gifted writers can create long sentences that are pleasant to read; they usually use long but perfectly parallel phrases in a series. Or they use lots of semicolons. It can work in literature. But for most of us doing legal writing, long sentences are hard to read and hard to follow. So avoid over-long sentences.


In managing sentence length and avoiding over-long sentences, it’s not practical to count words while you type. Instead, manage sentence length on the edit. As you read your writing, keep an eye out for any sentence that fills three or more lines of text or any sentence that just makes you tired. Use your cursor to select that sentence, and Word will tell you the word count at the bottom left of your screen. For me, if it’s more than 45, it’s an automatic edit.


So that’s the advice. For readable writing that doesn’t tax your readers, vary your sentence length, seek an average in the low twenties, and cut any sentence of 45 words or more.


_____


To comment on this or any other post, email me.


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Say What?! – Did I Really Hear That?

Originally published by .



From Robinson C. Ramsey of Wharton, this excerpt from a deposition in a divorce case; Rob is questioning the husband about a family estate trust that wenty awry.”


Q. When did you find out it was not the right thing to do?


A. When I wound up in jail.


Q. When was that?


A. I don’t really remember when that was, I don’t remember.


Q. Do you remember approximately how long it was from the time you initially set up the trusts?


A. I don’t know if that was a couple of years after that, or I really don’t remember when that was.


Q. What were the circumstances that led to your winding up in jail?


A. It was – we were trying to, for lack of better words, hide income. In other words – and in doing that, we got audited … It started when we got audited, and then the IRS agent that came to the house.


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Friday, August 22, 2014

Friday Links

Originally published by .


coh


Above, you’ll find the cover of City of Heroes #5, published not so long ago in 2004. Apex, the superhero depicted on the cover, has received a jury summons (although we’re uncertain why he wears his costume to check his mail.). You may recall that the cover of the very recent She-Hulk #6 – published in 2014 – depicted that super heroine with a civil summons. In fact, at that time, our editor Jim Dedman speculated in a tweet that She-Hulk #6 might be the first comic book to depict a legal summons:



Well, obviously, in light of the City of Heroes cover above, the answer to that question is no. Alas.


You know, we never did write about Madonna potentially serving on a New York jury this summer. Did you hear about that? Apparently, she received some special treatment at the courthouse. What a voir dire that might have been! For more, see here.


By the way, speaking of legally themed tweets, here’s one of our recent favorites (authored by Colorado journalist Matt Sebastian):




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TSB determines crude oil in train derailment to be unaffected by fracturing fluid additives

Originally published by .


On July 6, 2013, shortly before 1:00 am, a Montreal, Maine & Atlantic Railway freight train which was parked for the night on a hill seven miles above Lac Megantic, Quebec started to roll. The unit train carrying approximately 48,000 barrels of crude oil produced from the Bakken oil fields in North Dakota in 78 DOT Class III tank cars reached a speed of 65 mph and 63 of the tank cars derailed in the centre of the Town, spilling approximately 37,000 barrels of crude oil and causing fires and explosions which destroyed 40 buildings, 53 vehicles and killed 47 people, many of whom were relaxing in bars and restaurants in Lac Megantic’s scenic downtown on a warm summer evening.


On August 19, 2014, the Transportation Safety Board of Canada (TSB) released its 181 page report of its investigation of the tragedy. The TSB, like the National Transportation Safety Board in the united States, investigates transportation safety. It is not a function of the TSB to assign fault or determine civil or criminal liability.


The TSB found that the accident in Lac Megantic was due to 18 human and mechanical causes, including improper application of the brakes on the parked train, ineffective training and oversight by the rail company and poor regulatory oversight by Transport Canada. In its investigation, the TSB considered the volatility and flammability of the crude oil cargo, including how it was characterized, documented and handled for the purpose of transportation of dangerous goods laws.


Some public commentary after the disaster suggested that as some Bakken crude oil was produced through the hydraulic fracturing of wells, that hydraulic fracturing fluids in the crude oil in the tank cars contributed to the scope of the disaster.


The TSB considered this possibility but dismissed it. The TSB said after examining the properties of the crude oil that: “There was no indication that the crude oil’s properties had been affected by contamination from fracturing process fluid additives.”


Review a copy of the TSB’s report.




This post was written by Alan Harvie (alan.harvie@nortonrosefulbright.com or +1 403.267.9411) from Norton Rose Fulbright’s Canadian Energy Practice Group.




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In North Carolina, the Insurer Can Waive Its Right to Claim Forfeiture

Originally published by .


Insurance applications are important in the insurance marketplace. Applications are part of the risk analysis insurers make in determining whether they will issue a policy. There is exhaustive case law on issues of misrepresentations, ambiguities, and incomplete applications. The issue I want to discuss is whether an insurer can waive its right to deny a claim based on an application misrepresentation.

The answer in most jurisdictions is yes. An insurer, through its conduct, can waive its right to deny or claim forfeiture based on an application misrepresentation defense.


For example, two policyholders, a husband and wife visit their local insurance agency. They sit down and the agent asks the policyholders a series of questions. One questions is whether the policyholders ever filed bankruptcy. This is a joint application and the application does not ask this question specific to either policyholder. Husband answers the question no. Husband actually filed a business bankruptcy over…


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Thursday, August 21, 2014

Texans GM Rick Smith on lessons learned from 2013 draft class

Originally published by .


ENGLEWOOD, Colo. — DeAndre Hopkins, D.J. Swearinger and Ryan Griffin have initially worked out.


Brennan Williams, Sam Montgomery, Trevardo Williams and Chris Jones did not.


David Quessenberry and Alan Bonner are not in uniform.


While showing promise at the top, the Texans’ 2013 draft class has been the most disappointing of Rick Smith’s eight-year run as general manager.


Smith addressed the organization’s 2013 draft during an interview Wednesday.


“Obviously when you have the situations where you make decisions and those things don’t work out the way that you want them to, you better look and try to figure out why,” Smith said. “I think in each particular case, there are reasons why we made those selections. And then there are reasons why those situations didn’t work out. And you’ve got to look at each individual case and circumstance and figure out what the issue was. And as long as you’re learning from it, I think that’s what you’re charged to do.”


Rick Smith reflects on difficult period in Texans’ history at HoustonChronicle.com


Twitter: ChronBrianSmith


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Woman Wins $4.3 Million in Texting-and-Driving Case

Originally published by .


A Florida woman who was severely injured in a 2010 accident caused by a man who was texting and driving has won a $4.3 million verdict. The final judgment hasn’t been signed by the judge yet, but a verdict was handed down Aug. 5 in Flagler County Circuit Court awarding damages to 26-year-old Cacilia Carter. Additionally, the verdict was not reached by a jury but by Circuit Judge Dennis Craig.


Carter was a passenger in a vehicle driven by then-boyfriend, Joseph E. O’Guin, according to the Florida Highway Patrol. The accident occurred the afternoon of December 20, 2010 when the distracted driver ran a stop sign, entered a highway, and struck a tractor-trailer rig.


Troopers said the vehicle O’Guin was driving ran a stop sign and skidded into the truck’s path. The driver of the tractor-trailer suffered minor injuries while Carter suffered incapacitating injuries as a result of the crash. Carter remained comatose for three weeks following the incident, and continues to undergo physical therapy. However, the injuries to her right foot and ankle were so severe she still requires a wheelchair.


The National Highway Traffic Safety Administration (NHTSA) reported that driving a vehicle while texting is six times more dangerous than driving while intoxicated. Nevertheless, distracted driving is becoming more and more prevalent as smart phone technology continues to evolve. Given the statistics regarding the dangers of distracted driving, one has to wonder when the law is going to catch up with technology. Driving while intoxicated is a serious criminal offense. When is texting while driving going to be a serious criminal offense?


If you or someone you know has been injured or killed due to the negligence or wrongdoing of another, contact board-certified attorney, Brant J. Stogner, at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend by calling 713-222-7211 or 1-800-870-9584.


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Article on Letters Non-Testamentary

Originally published by .


Deborah S. Gordon (Drexel University School of Law) recently published an article entitled, Letters Non-Testamentary, Kansas Law Review, Vol. 62, No. 3 (2014); Drexel University School of Law Research Paper No. 2014-A-03. Provided below is the abstract from SSRN: Letters…


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Say What?! – Did I Really Hear That?

Originally published by .


From Robinson C. Ramsey of Wharton, this excerpt from a deposition in a divorce case; Rob is questioning the husband about a family estate trust that wenty awry.”


Q. When did you find out it was not the right thing to do?


A. When I wound up in jail.


Q. When was that?


A. I don’t really remember when that was, I don’t remember.


Q. Do you remember approximately how long it was from the time you initially set up the trusts?


A. I don’t know if that was a couple of years after that, or I really don’t remember when that was.


Q. What were the circumstances that led to your winding up in jail?


A. It was – we were trying to, for lack of better words, hide income. In other words – and in doing that, we got audited … It started when we got audited, and then the IRS agent that came to the house.


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Agent Held Responsible for Underinsurance

Originally published by .


I have made it a point to blog about an insured’s responsibility when it comes to obtaining insurance policies and the right kind of coverage. In California, having the sole allegation that a broker or agent didn’t provide the right policy when an insured didn’t read the policy is usually a losing argument for liability upon the broker or agent.

A California ruling from August 2013, finding broker liability shows that hope still springs for the underinsured who truly should have been informed of underinsurance and coverage issues by their agent. In Early v Smith-Kandal Insurance Agency, a historic hotel was destroyed by fire in March of 2007. The existing Chubb insurance policy of $3.1M didn’t cover the damages and the cost of rebuild. In the insured’s pursuit of a lawsuit for the underinsurance, the insured was able to show that before the last renewal of insurance that Chubb sent out a representative to inspect the property. That inspection resulted in…


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Bench Slap of the Day: Don’t Plead the Kitchen Sink

Originally published by .


From a federal district court decision authored by Judge Harry D. Leinenweber: The Court would like to make an observation. The parties should consider long and hard before requesting leave to amend any of the dismissed counts other than Counterclaim…


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Wednesday, August 20, 2014

Share your blog on Texas Bar Today

Originally published by .


Texas Bar Today is an online media network featuring curated news and commentary from Texas legal professionals. It is provided as a service of the State Bar of Texas. If you are a Texas legal professional/blogger and are not yet listed on the Texas Law Blogs section of Texas Bar Today, please email webmaster@texasbar.com to request inclusion on the site.


Please also contact us if you do not have a blog but would like to contribute a guest post.



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Say What?! – The Hoover Maneuver

Originally published by .


From Dan Cutrer of Dallas, this excerpt from the trial testimony of a “Most sincere witness [who] had been hired as a 24-hour ‘nurse’ to a gentleman with various medical problems.”


Q. But you have no training?


A. I have no certificate to prove it.


Q. I’m sorry?


A. I have not – I guess they give certificates. I don’t know how to do that, but I’ve saved lives.


Q. How did you save lives?


A. I’ve saved my children’s life before.


Q. How was that?


A. One time, when one of my boys was choked on ice, I was behind him and give him – I guess it’s called the Hoover, up under the rib cage to cough it up.


Dan adds: “The record doesn’t reflect the lengthy pause during which the lawyers bit their tongues, covered their faces, and tried their best not to laugh out loud.”


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Tuesday, August 19, 2014

Bar Leaders Conference on Texas Bar TV

Originally published by .


The Bar Leaders Conference video playlist, which can be found on the State Bar’s YouTube channel, Texas Bar TV, includes interviews with speakers and attendees of the conference which was held in Houston earlier this month.


The conference offers tools and resources that attendees can utilize to help them become effective bar leaders. The two-day training program also addresses common concerns for volunteer leaders.



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Update on ProPublica’s Request for Information on Post-Sandy Expenditures

Originally published by .


We previously blogged about the efforts of ProPublica to obtain from the American Red Cross (ARC) information about how the ARC has spent its $300 million-plus in donations that it received for humanitarian aid following Hurricane Sandy. The blog entry…


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Can an Insured Impose Limitations on the Insurer’s Use of Personal Information During a Claim Investigation?

Originally published by .


In practically every homeowner insurance policy, the insurance company requires the insured to perform certain duties after a loss. Among the duties is to provide the insurance company, when requested, documents including banking or financial records. Often this type of documentation is requested in conjunction with an examination under oath, but can also be requested during the initial claim investigation. Many policyholders are uncomfortable furnishing personal financial records in fear that such information will not be safeguarded and will be used improperly. Well, can an insured require an insurer to execute a confidentiality agreement that imposes limitations on the insurer’s use of the insured’s personal information? This issue was addressed by a court of appeals in Oregon last month and the answer was no.

In Safeco Insurance Company of Oregon vs. Masood,1 the underlying claim involved a theft after a house fire. The insured reported a theft of approximately $3.5…


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Monday, August 18, 2014

GM Disasters and the Aftermath: An Update on the Company’s Standings and Recovery Efforts

Originally published by .


gmc-logo


General Motors is still scrambling to deal with the legal, financial and public relations ramifications of the ignition switch defect that lead to the deaths of 13 people and caused the automaker to recall a record-setting number of vehicles. This has been a long, painful process for people on both sides of the problem, however, GM continues to deal with the issues that have persisted since the initial recalls. Read on for an update on where the company stands and how the future looks for them.


More Recalls


On July 23rd, GM announced another six recalls, which involve 717,950 U.S. vehicles, over various safety concerns. This is on top of the single-year record 54 recalls the automaker has already issued for 25 million other vehicles. The recalls were the first wave of quality assurance call-backs the company said it would make as part of more stringent company policies. “These recalls signify how we’ve enhanced our approach to safety,” said Jeff Boyer, Vice President of Global Vehicle Safety. “We are bringing greater rigor and discipline to our analysis and decision making.”


Compensation Fund Established For Victims


GM estimates that it will pay out at least $400 million in settlements to victims of the ignition switch defect. That number may balloon to $600 million depending on the number of people who file claims against the company. The assessment does not include costs for those who choose to forego settlement offers and sue GM. The car manufacturer has said it will fight those suits because its Chapter 11 bankruptcy restructuring, from which it emerged in 2009, protects it from prior claims.


Currently, the automaker is still being investigated by the U.S. Justice Department, the National Highway Traffic Safety Administration and the Securities and Exchange Commission. The NHTSA has already fined GM $35 million for failing to report the ignition switch issue, which the company admits it knew about as far back as 2001.


Steady Sales Despite Tarnished Image


Despite the unprecedented amount of recalls, GM posted its 18th consecutive quarterly profit based on strong sales of SUVs and pickup trucks, particularly the newly introduced 2015 Chevrolet Suburban, Chevy Tahoe and GMC Yukon. On July 24, GM reported a North American operating profit margin of 9.2 percent for the second quarter, but, after factoring in recall costs, its $1.4 billion profit was 41 percent below last year’s figure for the same period. Investors were disappointed with the automaker’s earnings, and GM stock fell by 6.33 percent to close at $35.07 for the business week ending July 25.


Overall, GM’s management feels it has weathered the storm well. “I think we’ve demonstrated resiliency as we’ve gone through this,” Mary Barra, GM CEO, said in a conference call. Recalls of this nature are never easy for companies to overcome, especially when there are deaths involved. However, GM has taken a few notes from those who have experienced devastating blows to the company like this, and plans to rise above the literal and figurative wreckage and push forward.


This article was written by Dixie Somers, a writer who loves to write for business, finance, women’s interests, and the home niches. She lives in Arizona with her husband and three beautiful daughters. Dixie got her advice and information for this article from the Orillia lawyers at Littlejohn Barristers.



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In Texas, a trade association has standing to challenge a tax statute on behalf of its members (at least for now)

Originally published by .


Constitution backgroundLast Friday, the Texas Third Court of Appeals at Austin issued its opinion affirming the state District Court’s judgment in Combs, et al. v. Texas Small Tobacco Coalition and Global Tobacco, Inc. , No. 03-13-00753-CV (August 15, 2014). This was the court’s latest holding to the effect that a trade association can seek declaratory and injunctive relief against a state fee (treated by court and the parties as a “tax”) on behalf of the association’s members that would otherwise be required to pay it. The earlier case that had allowed such a challenge was Texas Entertainment Association, Inc., and Karpod, Inc. v. Combs, et al. , No. 03-12-00527 (May 9, 2014), involving the so-called sexually-oriented-business tax (and where the taxpayer recently filed a petition for review at the Texas Supreme Court).


In Texas Entertainment Association, the Texas Comptroller of Public Accounts, represented by the Texas Attorney General’s office, had argued that an association was barred from filing this type of suit against state officials under the doctrine of sovereign immunity “…because chapter 112 of the Tax Code requires a party challenging a tax to file a protest payment.” In Texas Small Tobacco Coalition, the Comptroller and the Attorney General, this time around referred to as the “State,” had contended that only an individual taxpayer has standing to sue under Texas Tax Code §112.108 (“Other Actions Prohibited”), and that “lawsuits by associations of taxpayers . . . are forbidden.” Just as it had earlier rejected the Comptroller’s sovereign immunity argument, the Third Court of Appeals had little difficulty in disposing of the State’s standing argument.


Photo Credit: ©intheskies – Fotolia.com


According to the court, “…we have held that section 112.108 is unconstitutional, and that holding has not been overruled by the Texas Supreme Court.” The court cited as authority for that statement its opinion in Richmont Aviation, Inc. v. Combs , No. 03-11-00486-CV (Sept. 12, 2013), now on review at the Texas Supreme Court regarding another part of §112.108, specifically the requirement that a taxpayer can only file suit if it first pays the assessment against it or posts a bond for twice the amount of the assessment. (For more about the Richmont Aviation litigation, readers should refer to a previous post on this site captioned “A possible game changer for bringing Texas tax disputes in the state’s courts.”)


Because Tax Code §112.108 presented no barrier in Texas Small Tobacco Coalition, the court held that a trade association has standing to sue on behalf of its members if the following conditions are met:[T]he members themselves have standing to sue in their own right [footnote omitted]; the interests the association is seeking to protect are germane to its purpose; and participation of the individual members in the lawsuit is not necessary, meaning the pleadings and record show that neither the claim asserted nor the relief sought require the individual members to participate in the suit. [Internal citations omitted.] When, as here, an association seeks injunctive or declaratory relief, as opposed to damages requiring a showing of individualized lost profits, the relief will inure to the benefit of the association’s members and does not require the participation of each individual member. [Internal citations omitted.]


***


Further, none of the statutes cited by the State forbids an association from bringing a lawsuit on behalf of its members to argue that a tax statute is unconstitutional, and we recently reaffirmed that a suit for declaratory relief challenging a tat statute’s constitutionality can be brought by a trade association. Texas Entm’t Ass’n, Inc. v. Combs , 431 S.W.3d 790, 795 & n.3 (Tex. App.–Austin 2014, pet. filed).


For now, the Third Court’s opinion in Texas Small Tobacco Coalition is good news for taxpayers that want to band together to challenge a state tax by having their trade association or other organization seek injunctive and declaratory relief from the the tax without first paying an assessment. Of course, the Texas Supreme Court could always weigh in and reverse the Court of Appeals’ position on the constitutionality of Tax Code §112.108, either in this case (if the State files a petition for review) or in Richmont Aviation . For that reason, businesses, and their Texas tax counsel, should watch for future Supreme Court action in those cases as well as in Texas Entertainment Association .


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Say What?! – Classic Typos

Originally published by .


(1) From M.C. (Rick) Walton of Houston (Union Pacific Railroad), this typo he found in a classified advertisement that appeared in the Texas Bar Journal just two pages before the “et cetera” column.


There are vacancies for patent attorneys with the Navel Research Laboratory (NRL) at its Washington, D.C., and Bay St. Louis, Miss. locations.


(2) From Randy Schaffer of Houston, this typo from a petition for habeas corpus relief. …Applicant was denied a fair and impartial judge and sentencing hearing because the visiting judge, by deferring to jury verdicts in other cases, abdicated his responsibility to assess punishment based on applicant’s individualized circumstances. Applicant is entitled to be resented by a different judge.


(3) From Clifford F. McMaster of Fort Worth, this typo made by a pro se plaintiff in an answer filed in a federal civil case in an “Answer to Ordr (sic) to Show Cause”: To the horrible Judge Terry R. Means ….


(4) From District Court Judge Teresa K. Luther of Grand Island, Neb., this typo from a Petition to Modify child support that is currently pending in her court: The Petitioner has a new position whereby his wages have deceased.


(5) From District Judge Joe M. Leonard of Greenville (169th Judicial District), this typo from a brief in a consumer case. The Ard court further went on to disavow the Lee decision and accept instead the descent from the Lee decision.


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"Replacement" is a Condition Precedent to Recovering …

Originally published by .


Insurance policies may provide several methods to calculate the amount it will pay an insured for a loss. The term replacement cost will be defined or explained in the policy. In a recent federal district court case in Kentucky, Hampton v. Safeco Insurance Company of America,1 the court addressed the meaning of the term “replacement cost”, which, under the particular policy in that case, shall not exceed:


the smallest of the following amounts:


(a) the limit of liability under the policy applying to Coverage A or B;


(b) the replacement cost of that part of the damaged building for equivalent construction and use on the same premises as determined shortly following the loss;


(c) the full amount actually and necessarily incurred to repair or replace the damaged building as determined shortly following the loss;


(d) the direct financial loss you incur; or


(e) our pro rata share of any loss when divided with any other valid and collectible insurance applying to the…


.


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Simple Jury Persuasion: When videos are too persuasive…

Originally published by .


persuasive video It’s hard to know why research that is a almost a decade old is seen as fodder for a recent Op-Ed in the New York Times , but so it goes. Jennifer Mnookin , a law professor at UCLA, certainly has an impressive resum√©, and it is likely most readers of the NYT are not familiar with camera perspective bias . We blogged about this research back in 2010 and mentioned it in our 2012 article on false confessions .


In short, the camera perspective bias research says that when confessions are videotaped, they “should be videotaped in their entirety and with a camera angle that focuses equally on the suspect and interrogator”. Apparently, if the videotape is focused only on the defendant, the observer is less likely to see the police interview as coercive–even when the interrogator makes an explicit threat. When the video is focused on both the interrogator and the defendant, the observer’s bias disappears.


Mnookin’s essay in the NYT describes the camera perspective bias and states that while videotaping interrogations is generally a positive thing, it doesn’t prevent the videotapes from being misleading, to jurors or even legal experts. This shouldn’t surprise us, says Mnookin, since the research has found that even “professionals like judges and police interrogators are not immune” to the camera perspective bias. Mnookin discusses the complexity of disentangling the false confession from the true confession and says videos may make that already difficult task nearly impossible.


“And yet by making confessions so vivid to juries, recording could paper over such complications, and sometimes even make the problem worse. The emotional impact of a suspect declaring his guilt out loud, on video, is powerful and hard to dislodge, even if the defense attorney points out reasons to doubt its accuracy.”


Mnookin’s op-ed piece echoes what many of the experts in the false confessions area have said for years: videotaping interrogations will not fix the problem of false confessions, it is simply a step on the way to making them less likely to occur. Multiple reader comments on Mnookin’s op-ed are remarkably cogent and coherent, in contrast to most comments on major news sites these days. Many of the commenters identify themselves as attorneys and offer thoughts on the advantages of videotaped interrogations, eye-witness fallibility, and the ethics of courtroom personnel. If a reader actually wants to be educated on the issues surrounding videotaped interrogations, it could happen here.


Daniel Lassiter (the researcher responsible for much of the research on camera perspective bias) came to the same conclusions back in 2010 that Mnookin shares in her current-day NYT op-ed.


“The video recording of police interviews and interrogations will bring an unprecedented degree of openness to the process that all interested parties can agree is essential to a fair and humane criminal justice system. That being said, it is far from certain whether this reform will actually reduce the number of wrongful convictions attributable to police-induced false confessions.”


Lassiter’s hope, back in 2010, was that as knowledge continued to grow in the area of false confessions, then jurors could be educated to see the videotaped interrogation as [just] one piece of data upon which to base decisions. We may not yet be at Lassiter’s 2010 wish for the courtroom, but hopefully we are moving in that direction.


On a related note, we are fans of the Sundance Channel’s fictional series Rectify which follows the post-release (based on new DNA evidence) life of a man who spent 19 years on death row for the rape and murder of his teenage girlfriend. This is not a feel good television show. It is dark, disturbing, confusing and poignant all at once. There are no easy answers. Just very hard questions. Did he or didn’t he? We are almost through Season 2 and do not yet know.


Lassiter GD (2010). Videotaped interrogations and confessions: what’s obvious in hindsight may not be in foresight. Law and Human Behavior, 34 (1), 41-2 PMID: 20087637


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Friday, August 15, 2014

Five Texans to watch vs. Falcons

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Quarterback Ryan Fitzpatrick


One good thing about being a 10-year veteran is being able to put an awful performance behind you. Fitzpatrick was 6-of-14 for 55 yards and two interceptions with a 14.6 rating against Arizona. That’s not indicative of the kind of quarterback he’s been. He needs to bounce back against the Falcons. It’ll be interesting to see what coach Bill O’Brien, who calls the plays, has prepared for Fitzpatrick and how long he’ll play again. It’s imperative to build consistency when the Texans have the ball and then to finish drives to build confidence in Fitzpatrick’s new teammates and coaches.


Outside linebacker Jadeveon Clowney


He flashed in his debut, playing the run well, getting after the passer and impacting his side of the field except when he was forced to drop into coverage. It’s hard to imagine defensive coordinator Romeo Crennel asking a player with his pass rush skills to go backward very often in regular season. Crennel won’t call anything exotic for preseason. He’ll keep it simple. The coaches want to see Clowney improve each week and develop consistency. The idea is to not make him think too much, just react instinctively and get the quarterback.


Running back Alfred Blue


In his first appearance with the Texans, the sixth-round pick averaged 6 yards a carry – the same average he compiled at LSU. As the first back off the bench at Arizona, he ran for 30 yards on five carries. He caught two passes for 14 yards and dropped one. At 6-2, 223, he’s got good size and speed. He’s improved since he arrived for the offseason program. He’s very smooth, very fluid. He looks like a natural runner, showing some instincts. He wants to get better. He has to improve pass protection. He can be productive as a receiver out of the backfield if they need to use him in that capacity.


Inside linebacker Justin Tuggle


He might be the most excited player on the Texans’ roster about playing against the Falcons. Why? Because he grew up in Atlanta, where his father, linebacker Jessie Tuggle, was one of the best and most popular players in Falcons’ history. Tuggle made the Texans as an undrafted free agent last year and learned inside and outside linebacker. He was a productive special teams player. Now he starts on the inside and has a chance to keep the job when Brian Cushing returns to the lineup. Tuggle is smart, has a good work ethic, is extremely coachable and will get a lot of attention from Atlanta media tonight.


Nose tackle Louis Nix III


He returned to practice this week for the first time since OTAs and could make his debut tonight. Nix had undergone arthroscopic knee surgery before training camp. Because it wasn’t a serious operation, the Texans weren’t in the market for a veteran. They expect him to compete for a starting job. They traded into the third round to get Nix (6-2, 331), who has the ideal build for a 3-4 nose tackle who’s supposed to tie up two blockers. That position requires quickness, leverage, strength and willpower. If Nix stays healthy and keeps his weight under control, he can be an ideal fit for Romeo Crennel’s scheme.


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July 1991 – Doing Voir Dire

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Robert Myers of San Antonio (Willis, Hickey, etc) not only believes “that the risks of trial far outweighed the risks of depositions,” he is convinced “that certain aspects of trial (most notably voir dire examination) are more dangerous still.”


Juror No. 19 (Frank Kalani Laa) wished to approach the bench to ask a question; Judge Spears, being understandably unfamiliar with the pronunciation of Mr. Kalani Laa’s last name, sought assistance:


The Court: Number 19, would you step forward please.


The Court: How do you pronounce your name?


Juror 19: Frank.


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