Tuesday, March 31, 2015

ACU pre-law adviser recognized as best in the country

Originally published by Lindsay Stafford Mader.

With more than 20 years spent providing guidance to undergraduate students considering a career in the law, Mel Hailey of Abilene Christian University has been recognized as the top pre-law adviser in the nation. On March 23, 2015, the Pre-Law Advisors National Council announced that Hailey would be the recipient of its 2015 Dean Gerald Wilson Award for Excellence in Pre-Law Advising, which he will accept at the council’s southwestern regional association meeting in October. He was selected for the recognition among pre-law advisers at all U.S. colleges and universities.

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Grady v. North Carolina (March 30, 2015) (per curiam)

Originally published by SupremeCourtHaiku.

Supreme_Court_US_20101 Ankle monitor

On sex-crime recidivist

Constitutes a search


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Aetna says accusations of ‘judge shopping’ untrue in $120M kickback suit

Originally published by David Yates.

North Cypress

A back and forth battle is unfolding on whether Aetna Life Insurance was “judge shopping” when it filed a fraudulent billing case against North Cypress Medical Center.

As previously reported, Aetna filed suit against North Cypress and CEO, Dr. Robert Behar, on Feb. 23 in the U.S. District Court for Southern Texas, Houston Division.

Aetna charges the defendants of engaging in a fraudulent kickback scheme, which includes: paying illegal kickbacks to physicians in exchange for patient referrals disguised as ownership interests in North Cypress; charging grossly excessive fees; implementing improper billing techniques; and forgiving members’ financial responsibility in order to make the scheme work.

Aetna alleges that Dr. Behar’s “out-of-network” business scheme has caused the company to overpay North Cypress as much as $120 million since Jan. 1, 2009.

Court records show that on March 9 North Cypress filed a motion to dismiss under the “First-to-File Rule” – a rule that applies when two similar suits brought by the same parties are filed in two different courts of proper jurisdiction.

North Cypress maintains it brought suit against Aetna first on Feb. 12, 2013, in Koening, et al v. Aetna et al, in order to collect unpaid payments from the insurance provider.

“North Cypress has filed this Motion to Dismiss only pursuant to the ‘First to File Rule’ … because it is obvious that Aetna is ‘judge shopping’ in an effort to maintain an identical, parallel lawsuit to the Koenig Case,” states North Cypress’ motion to dismiss.

On Thursday, March 26 Aetna responded to the motion, insisting allegations of both forum and judge shopping are “untrue,” and maintaining there is no substantial overlap between the current lawsuit and the Koeing case.

“Defendants’ accusations are flat wrong—as they well know,” Aetna’s response states. “Defendants’ Motion should be denied in its entirety.”

North Cypress submitted a reply to Aetna’s response on Monday, March 30, asserting most of the underlying facts of the Koeing case are repeated in Aetna’s Feb. 23 and the insurer does not present any evidence that it was not “judge shopping.”

“Overall, Aetna’s Response is lack luster in nature and completely omits arguments and/or facts to controvert or contradict many of the positions proffered by North Cypress which are supported by Aetna’s own pleadings,” the reply states. “This demonstrates that Aetna and its counsel know that the filing of the Original Complaint in the Aetna Case with the identical facts and allegations involving the same claims and the same time periods as in the Koenig Case was a misstep on their part and something they should not have done.”

As of Tuesday, March 31, no ruling on the matter is on file.

On top of actual damages in the amount of $120 million, Aetna seeks recovery of treble, consequential and incidental damages, plus attorney’s fees.

Aetna is represented in part by Andrews Kurth LLP.

North Cypress is represented by Douglas Sutter, attorney for the Houston firm Kelly, Sutter & Kendrick.

Case No. 4:15-cv-00491

The post Aetna says accusations of ‘judge shopping’ untrue in $120M kickback suit, North Cypress replies appeared first on Southeast Texas Record.

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Zoloft Trial Update: Plaintiff Names New Expert Witness

Originally published by Sean Tracey.

Zoloft trials claiming a connection between the use of Zoloft and severe negative side effects are moving forward. Recently, U.S. District Judge Cynthia Rufe, who is currently presiding over all consolidated Zoloft litigation, has accepted the Plaintiff’s request to name a new witness. The new expert witness will be Nicholas Jewell, Ph.D., who will be…

Read More

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Monday, March 30, 2015

Verizon alleges trespassing by power company

Originally published by Carol Ostrow.

A utility company has sued a power company, alleging property rights violation and breach of duty.

telephone pole electric lines GTE Southwest Inc., doing business as Verizon Southwest, filed a lawsuit March 17 in Galveston County District Court against Texas-New Mexico Power Company and USIC Locating Services, alleging trespassing, negligence and related charges.

The complaint alleges infringement of the 1997 Texas Underground Facility Damage Prevention and Safety Act, passed specifically to protect utility sites from accidental excavation damage. According to the suit, mechanized equipment operated by Texas-New Mexico struck and compromised Verizon Southwest’s underground fiber telecommunications cable facilities while excavating at a site at 200 Splintered Drive in Hitchcock on March 21, 2013.

Citing negligence, GTE Southwest charges the defendants with failure to: keep a proper lookout for buried cables; verify the buried facilities’ location; exercise reasonable care; observe the industry standard tolerance zone at the site; and operate their own equipment safely.

The plaintiff seeks $21,837.06 in compensation for actual, incidental and consequential damages, attorney fees, expenses and costs. Verizon Southwest is represented by attorney David Redford of Houston.

Galveston County District Court case number: 15-CV-0268

The post Verizon alleges trespassing by power company appeared first on Southeast Texas Record.

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Hard Work Out West

Originally published by Lindsay Stafford Mader.

photo by Carolyn Miller/Fort Davis, TX

Roy B. Ferguson and his attorney wife, Pene, started their careers in Houston, but in 1999, they moved almost 600 miles to one of the state’s least-populated regions, a place with high-desert vistas of the Davis Mountains and Big Bend where both of them have family roots. Their law office in Marfa, which they opened years before the tiny town became a tourist destination, has been the only full-time practice in Presidio County for more than 13 years.

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Houston Legal Links 3/30/2015

Originally published by Mary Flood.

Top legal news includes: Texas spent $30M on tuition under program with lax rules; Lawyer’s One-Year Banishment Leads to Showdown; Report Outlines Costs of ‘Morton’ Reforms (Texas Lawyer); Judge: Anti-HERO Signatures Shy of Referendum, But There Are Still More to Count; Review: Texas rarely prosecutes adults when kids access gun (Chron subsc); Local school police used force on students hundreds of times in 4 years (Chron subsc); Divisive repeal of in-state tuition law takes center stage; New Harris County Property Appraisals Are In And Many Homeowners Won’t Like It; Lise Olsen named Texas’s top reporter as she and Houston Chronicle journalists win 34 APME awards; Ben Hall announces bid for mayor; Face-to-face jail visits becoming rare as video trend sets in (Chron subsc); FBI: Father beat son aboard Carnival ship, arrested in Galveston; Marijuana bust leads to millions in cash and plants, a whole lot of smiley mugshot photos; Houston law firm poaches 5 lawyers from rival & Oil rigs fall by lowest number since December.

For the water cooler: Fashion Statement at Justice: ‘Free Eric Holder’ Wristbands; AG: Former bar president charged with UPL after 10 years in practice never attended law school; Citigroup Report Chides Law Firms for Silence on Hackings; Stats Of The Week: Accountants At The Gates Of Biglaw?; Donald Sterling Can’t Lose – Wife v. Mistress; The Apology Letter Howard Schultz And Starbucks Should Write For The ‘Race Together’ Initiative; Attorney General Threatens To Prosecute Reporters For Doing Their Job; New York lawyer charged for allegedly deceiving family over misplaced will; TSA agrees to stop singling out black women for hair pat-downs at airports; Prosecutor seeks judge’s recusal in all pending cases, cites ‘legal advice’ email to public defender; Public defender’s text to prostitute on phone in police possession leads to suspension & DOJ and FBI to begin tracking hate crimes against Sikhs, Hindus and Arabs.

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10 Years After the BP Explosion, Refineries Continue to Pose Major Safety Concerns for Employees

Originally published by By Benny Agosto.

Monday, March 23, 2015 will mark 10 years since the horrific BP explosion in Texas City, which took the lives of 15 people and injured approximately 180 others. The BP explosion is to date one of the worst refinery explosions. The lives of those involved and their families may never be the same after this disaster.

After the BP explosion, several safety experts recommended that refineries make changes in order to provide safer work sites for employees, unfortunately refineries continue to pose serious safety threats for those who work in them and live near them. Since the BP explosion, there have been at least 58 deaths in American refineries. There is approximately one fire every week at a U.S. refinery. A top official with the U.S. Chemical Safety Board (CSB) has found that the same issues which caused the BP Explosion continue to exist in other refinery explosions.

Following the BP explosion, the CSB advised the petrochemical industry to move trailers and tents near refineries away from process units. Some companies have followed this advice but the CSB has continued to find several cases of such structures being damaged in refinery explosions. At the BP plant in Texas City, this problem continues to exist as temporary buildings can be found near refinery units. Refineries must make change to protect their employees from disasters such as the BP explosion from 2005.

Benny Agosto, Jr. is a partner at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend in Houston, Texas. For over 60 years, Abraham Watkins has successfully represented injured people and families who fall victim to catastrophes. In 2005, Mr. Agosto represented several employees who were hurt as a result of the BP disaster. Our attorneys have the knowledge, experience and resources necessary to obtain just compensation their clients. If you or someone you know has been injured during a plant explosion, please contact the office of Benny Agosto, Jr. at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, by letter at 800 Commerce Street, Houston, Texas 77002, or by phone at (713) 222-7211.

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Simple Jury Persuasion: “Hey, look over here for a second!” 

Originally published by Douglas Keene.

eye_gaze This is sort of scary research. We all like to think our views on moral issues are pretty consistent and not easily shaken. That would be incorrect. They are not consistent and they are easily shaken. At least these are the conclusions reached by this research.

We’ve written before about on which side of the courtroom you want to place your exhibits (it’s on the left), but this is far above and beyond that. According to these researchers, you can actually change someone’s mind about an ethical issue by where you have them looking. And, this is the worst part: it takes less than a second! Here is what they did.

The researchers (from Sweden, the UK, and the University of California) had participants sit at computer screens and listen to 63 different statements taken from Moral Foundations Theory while the researchers measured the participant’s eye gaze. For example, statements like “Murder is sometimes justifiable” would play through their headphones and then two responses would be presented simultaneously on their computer screens: “sometimes justifiable” and “never justifiable”. The participants were told to “choose the alternative they considered morally right”. The researchers measured how long the participant looked at each alternative response and found the participant’s chose the response at which they gazed for a longer period of time.

So the researchers wanted to see if they could “make” the participants choose a specific answer by simply waiting until the participant had looked at the response identified by the researchers as the “target” response longer than the alternate response on their screen. They recruited new participants for two additional experiments and sure enough.

By monitoring eye gaze and requiring a decision from the participant as soon as they had looked at the target response longer than the non-target response—the researchers were able to bias the participants’ moral decisions toward the randomly set ‘target’ response.

Even on moral questions the participants described as “important”, researchers were able to steer them toward the target response 80% of the time! It’s all about where you fixate your gaze. Or, as I thought about it, you endorse whatever you are thinking about when the music stops. Indeed, say the researchers, “the process of arriving at a moral decision is not only reflected in a participant’s eye gaze, but can also be determined by it”.

From a litigation advocacy perspective, this is a good reason to be thankful eye gaze science is not perfected and used by opposing counsel. But it is also a good reason to be wary of manipulation in the courtroom. We’ve written about priming and how it can influence jurors, about embodied cognition, and even about the persuasive effect of tilting your head.

This research strategy is interesting, because it requires a disruption of the natural thought process used by the person. In a way, it resembles the distortion of findings we see when someone only considers one side of a dispute. The story that imprints on them is the one they go with— and that imprinting can evidently occur quickly. On the other hand, while it is effective, it isn’t possible to really implement it during trial. Some jurors will be looking at one part of an exhibit, while others will be gazing at an alternative. Thankfully, like fMRI imaging, this is technology that is not nearly ready for courtroom use. And as long as both sides are effective in making sure the jurors get the complete story—not a story artificially truncated by researchers or wily opponents, this effect won’t sway your jury. It will only keep you up at night.

Pärnamets P, Johansson P, Hall L, Balkenius C, Spivey MJ, & Richardson DC (2015). Biasing moral decisions by exploiting the dynamics of eye gaze. Proceedings of the National Academy of Sciences of the United States of America PMID: 25775604



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Friday, March 27, 2015

Top 10 from Texas Bar Today: The Supreme Court, Uber, and the Alamo

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. What Will Happen to Robert Durst’s Inheritance?Gerry Beyer @Gerry_Beyer, Law Professor at Texas Tech University School of Law in Lubbock

9. Never Ending and Always Dangerous: The Independent Contractor/Employee DebateRob Radcliff @robradcliff of Weinstein Radcliff LLP in Dallas

8. Supreme Court holds TTAB decisions can have preclusive effect in subsequent infringement actions Brandon Ress of Norton Rose Fulbright US LLP @NLegal_Global in Austin

7. Partner Liability: Out of the Woods?Drew York of Gray Reed & McGraw @GrayReedLaw in Dallas

6. Protecting Data and Preventing Security Breaches Requires an All-Hands ApproachJeff Harvey of Klemchuk LLP @KK_LLP in Dallas

5. Hottest Oil & Gas Claims, Part 2: New Drilling Technology

Barry Barnett of Susman Godfrey LLP in Dallas

4. Who Owns the Library? The New Battle of the Alamo – Katy Stein, Law Reference/Research Librarian at University of Houston Law Center @UHLAW O’Quinn Law Library in Houston

3. A potpourri of tips about legal writingNancy Soonpaa, Professor of Law at Texas Tech University @TexasTech School of Law in Lubbock

2. A Major Victory for Pregnant Working Women in the US Supreme Court – Young v. UPSLeiza Dolghih @leizad33 of Godwin Lewis PC in Dallas

1. Jury Finds in Favor of Veteran and “Goldie”Thomas J. Crane @tomjcrane of Law Office of Thomas J. Crane of San Antonio

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Houston Legal Links 3/27/2015

Originally published by Mary Flood.

Top legal news includes: Lawyers In Houston Equal Rights Ordinance Case Argue Over Newest Signature Count; FBI at Health Commission Asking About 21CT Deal; Government acknowledges talks over missing Houston reporter, but denies seeing him; TSU prevails in equal pay case; Deputy Constable accused of stealing from homeless charity; Texas Bill Would Make It Illegal for You to Film a Cop Beating You; Feds direct pipeline company to investigate alternatives; Which Texas Law School Is Rated Among the Best for Practical Training? Baylor. (Texas Lawyer); Texas vs. the Feds: A New Look at the Taxpayer-funded Lawsuits; Opening of Metro’s New Light Rail Lines Delayed Until May; Houston woman busted for prostitution after handing out sex business cards; City of Joplin sues Houston area man, former master developer for fraud; Judge in Texas blocks federal rules change for gay couples; Wal-Mart Asks Court to Order Injured Toddler to Appear at Voir Dire (Texas Lawyer); Employee charged in Memorial Hermann fraud case was known felon (Chron subsc); Texas bills seek outside investigations of police shootings; Booking Agent Files Amazingly Insipid Letter About Matthew McConaughey’s UH Speech; Census: Houston, Dallas only two metro areas to add more than 100,000 people; Central Texas taxidermist pleads guilty in rhino case; See How Local Drilling Rules Vary Across Texas; 2 U.S. funds to invest $900 million in Mexican gas pipeline; Energy Department study: Shale won’t last, Arctic drilling needed now; These are the most powerful women in Texas energy & Citing Baldness, Gohmert Scraps Presidential Campaign.

For the water cooler: Report: DOJ is investigating mental-health screening of bar applicants by Florida’s top court; Associate Bonus Watch: Furious Associates At A Major Law Firm; Nationwide Layoff Watch: Almost 50 Partners And Staff — But Not Associates — Let Go At A Leading Law Firm; Negative reviews of dog obedience school on Yelp, Angie’s List lead to defamation lawsuit; Inmates respond to philosophy prof’s moral exploration of ancient play; Man pleads guilty to setting fire at lawyer’s home; Receiver appointed for law firm $10M in debt; loans taken out by partner before suicide contested; Standard Of Review: The Legal Ethics (Or Lack Thereof) Of Better Call Saul; Are bloggers way overreacting? Kagan’s use of ‘way’ as an adverb gets noticed; Lawyer’s proposed gay death penalty is ‘reprehensible,’ says state AG in bid to stop ballot process; NCAA voices concern after Indiana enacts bill allowing businesses to reject gay customers & Report Excerpts: How Law-Enforcement Agencies Mishandled Sex-Misconduct Probes.

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Law Firms and Cybersecurity

Originally published by Andrew Perlman.

Today’s New York Times describes a Citibank report that is critical of law firms for failing to reveal cybersecurity breaches. According to the Times, the report also warns “bank employees [to] be mindful that digital security at many law firms,…

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AYLA resource fair to be held this weekend

Originally published by Hannah Kiddoo.

On Saturday, March 28, the Austin Young Lawyers Association will host its annual Women’s Resource Fair, a free one-day clinic that brings together professionals from the legal, medical, and social services communities to serve individuals in one location. Since its launch in 2008, the annual resource fair has supported nearly 2,500 women in the Austin area.

This year, attendees can receive legal assistance, medical care and mental health services, job skills and educational counseling, social services, financial advising, haircuts, and access to a clothing closet at no cost. Breakfast, lunch, and child care will also be available during event, which runs from 9 a.m. to 3 p.m. at the Schmidt-Jones Family Life Center, 1300 Lavaca St., Austin.

For more information, contact AYLA Director Debbie Kelly at (512) 472-0279.

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Supreme Court Addresses Pregnant Workers

Originally published by Thomas J. Crane.

The U.S. Supreme Court has issued its decision in Young v. UPS. Young concerned a female driver who became pregnant and was then refused an accommodation involving lifting restrictions. She could not lift over a certain weight limit. The plaintiff argued that she was treated differently than non-pregnant drivers with disabilities who could receive an accommodation involving weight limits. The Supreme Court surprised both parties by adopting a middle-of-the-road approach. The court overruled the Fourth Court of Appeals’ affirmance of summary judgment. That alone is rare enough.

The Supreme Court pointed out that a worker can always show her case through circumstantial evidence. It went further and ruled that pregnant worker can show that she was treated differently than other workers who were similarly unable to work. That is, the court allows comparison to workers injured off the job, but who suffer limitations similar to that of pregnant workers. The decision, therefore, overturns cases which find a distinction between off the job injuries and those incurred on the job. In that sense, the decision has bene criticized as conflating disparate treatment type cases (i.e., treated differently on a personal level) and disparate impact type cases (treated badly due to some rule that impacts a broad group of workers). Since, the court specifically adds that to show pretext, an employee can show disparate impact by some employment policy. For example, said the court, a worker could show that a large percentage of non-pregnant workers were accommodated while a large percentage of pregnant workers were not accommodated.

The decision does clears up one area of confusion in finding that yes, pregnant workers are entitled to some sort of accommodation under the right circumstances. See Supreme Court decision here.

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Fire-setters: Psychotic and non-psychotic 

Originally published by Rita Handrich.

firesetter There is a lot of literature on fire-setters but not, apparently, on how psychotic fire-setters differ from those who are not psychotic. As it turns out, there are some significant differences.

Researchers in The Netherlands examined the records of 124 fire-setters (30 psychotic and 94 non-psychotic) sent for pretrial forensic mental health assessments between 2000 and 2010. They were largely male (107 males and 17 females) and on average 32 years old. The researchers compared characteristics in the records and found these differences:

Psychotic fire-setters were older, more often single, more likely to set their fires alone, and more likely to be unemployed. They had a more “extensive and intensive” history of mental health care with higher levels of psychiatric admissions and were more likely to carry diagnoses of psychotic disorders. They had more problems with soft drugs (like cannabis) but showed fewer issues with alcohol. This group set fires for reasons related to their psychosis (e.g., delusions) and were more likely to set fire to their own property. They were often described as “pure fire-setters” (as in, that was all they did of a criminal nature).

Both psychotic and non-psychotic fire-setters were similar in having impulsivity and poor social skills. There were high levels of repeat fire-setting in both groups.

Non-psychotic fire-setters were more likely to have been physically abused as children and tended to set fires out of “anger and revenge or acting out and vandalism”. Non-psychotic fire-setters set fire to the property of others and were more likely to abuse hard drugs and alcohol. They most often set fires along with others and were often intoxicated when fire-setting.

The researchers are quick to point out the limits of their sample and to discuss differences between their findings and the findings in the prior literature. The differences between the two groups seem to be largely related to the mental illness in the psychotic group.

The mentally ill often do not have close relationships, and are often single and unemployed.

Those who start fires based on delusional beliefs are likely to act alone rather than with a group.

If fire-setting is triggered by delusional beliefs, it makes sense that fire-setting would be their only or primary criminal activity.

From a litigation advocacy perspective, the psychotic fire-setter needs mental health treatment and medication. If the psychosis is controlled, the fire-setting should stop when the delusions cease or are minimized. The non-psychotic fire-setter, on the other hand, tends to set fires when intoxicated and with a group of intoxicated others. This fire-setter also needs treatment for substance abuse but a jury is more likely to see this defendant as having greater responsible than the psychotic fire-setter. Treatment options for the non-psychotic fire-setter are more likely to be secondary to their criminal sentence.

Dalhuisen, L., Koenraadt, F., & Liem, M. (2015). Psychotic versus non-psychotic firesetters: similarities and differences in characteristics The Journal of Forensic Psychiatry & Psychology, 1-22 DOI: 10.1080/14789949.2015.1018927



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Thursday, March 26, 2015

Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund

Originally published by SupremeCourtHaiku.

220px-Elena_Kagan_official_SCOTUS_portrait Section 11

May apply to opinions

If they’re misleading


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A potpourri of tips about legal writing

Originally published by Legal Writing Prof.

For a potpourri of tips about legal writing, see Dear Scrivener by Scott Moise in the March 2015 South Carolina Lawyer. There, Moise responds to questions the column has received. Two of them concern pet peeves of mine: –Is the…

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New Federal Fracking Regulations Aim to Protect Water Supply

Originally published by By Sammy Ford.

In an effort to protect the country’s water supply, the Obama administration released new federal regulations on Friday that will affect all hydraulic fracturing (“fracking”) operations on federal lands. These are the first federal regulations related to hydraulic fracturing. Fracking is a process in which liquid is pumped into rock seams at a high pressure in order to gain access to oil and gas that are not reachable by more conventional methods. This method has increased the United States’ production of oil and gas and led to a boom in the economy. However, there is a fear that this type of fracturing could cause contamination in the water supplies.

In response to these environmental concerns, President Obama and the Department of the Interior promulgated these new regulations, which will give government workers access to inspect and validate the safety and integrity of the cement barriers that line fracking wells. These regulations will also require companies to publicly disclose the chemicals used in the fracking process. In addition, companies will have to adhere to new safety standards in storing chemicals around well sites and will also have to submit detailed information on well geology to the Bureau of Land Management. (New York Times, “Obama Administration Unveils Federal Fracking Regulations”).

These new regulations will have a limited reach as they only pertain to fracking on federal lands. Most of the fracking takes place on private and state owned lands that are outside of the federal government’s reach. However, these guidelines should set the standard by which private and state fracking operations should have to adhere.

These regulations have faced pushback from both oil and gas companies and environmental groups. Producers engaged in fracking activities are against any level of regulation and feel that it will stymie the unprecedented production that has seen the United States surpass Russia as the largest oil and gas producer in the world. Environmental groups on the other hand feel that the regulations have not gone far enough and fracking still poses a huge threat to the nation’s water.

The Obama administration, in conjunction with the Department of the Interior, is expected to release further regulations that will limit the release of methane gas from drill sites.

If you or someone you know has contaminated water as a result of fracking, contact an attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend by calling 713-222-7211 or toll free at 1-800-870-9584.




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SGT Bergdahl Charged with Desertion

Originally published by Thomas J. Crane.

SGT Bowe Bergdahl has been charged with desertion with intent to shirk important or hazardous duty. The charges will go before an Art. 32 hearing, which is equivalent to a grand jury. He may not spend any time in prison, since he served five years as prisoner of the Taliban. Many members of any court-martial board will find that to be punishment enough. See CBS news report. I previously wrote about Bowe Bergdahl here.

Sgt. Begddahl simply walked away from his FOB. He had done that before when he was training here in the US. Sitting from afar, I have to wonder if his mental faculties are all there. When I was in Iraq, I heard about one solider who simply walked out the front gate, with no weapon or helmet. He simply walked out like he was back home. Serving in a combat zone imposes considerable stress. Those of us who are not completely stable anyway will do crazy things. I do not know, sitting miles way from any real knowledge about the case, whether Sgt. Bergdahl knew what he was doing when he walked away from his FOB. But, leaving the FOB with no weapon, no helmet and no body armor was not a rational act.

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Wednesday, March 25, 2015

Protecting Data and Preventing Security Breaches Requires an All-Hands Approach

Originally published by Klemchuk Kubasta LLP RSS Feed.

The best way businesses can protect themselves from big data breaches is to have and implement a comprehensive data security plan that aligns IT, HR, legal and compliance, among other functional areas.

The plan should begin with clear and detailed policies and practices for internal personnel and external contractors and vendors, which are communicated regularly and supported by appropriate training, audit and enforcement procedures.

Policies should include password protected access, limited to only relevant personnel for the specific function or activity. On and off site storage facilities, whether first or third-party, should include tier-one security, redundancy, back-up and fail-over systems with regular audits for compliance with domestic and international standards. Data should be …

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Say What?! – Did They Really Say That?

Originally published by State Bar of Texas.

From Joe and Ann Hathaway of Midland (who proofread depositions for Patricia Reid, court reporter, CSR), this deposition excerpt:

Q. How long were you the manager of this place in Longview?

A. One week.

Q. What happened after that? Where did you go?

A. I quit my job and went nowhere and stayed there ever since.

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Hepatitis Lawyer: Costco, Townsend Farms, Wrongful Death Lawsuit

Originally published by Tony Coveny.

hepatitis lawyer files Costco Townsend Farms wrongful death lawsuit

Ron Simon filed the very first wrongful death lawsuit in the national hepatitis A outbreak that hit the western U.S. The CDC confirmed 165 victims were sickened, but many ,. Many more are believed to have become ill but either were not properly diagnosed or not tested in a manner that confirmed recent, acute hepatitis infection. The lawsuit was filed on behalf of Virginia Jolson’s estate and her six children. It named Townsend Farms, the product maker, Costco who sold the berries, and a number of distributors and importers who provided the tainted pomegranate seeds form Turkey to be used in the Townsend Farms Organic Anti-Oxidant frozen berry mix. The lawsuit was filed in Los Angeles, California, where one of the defendants is headquartered.

Ms. Jolson was a vivacious and active Arizona resident of 88 years. In perhaps a bit of irony, one of the Goggle images of her property in Arizona showed her in the garden tending to her flower bed. Virginia had been consuming the Townsend Farms Organic Antioxidant Blend frozen berries daily in her smoothies, believing that these berries were going to assist her with their anti-oxidant properties and natural nutrients.

Unfortunately, on March 31, 2013, she became ill. When her condition not only failed to improve but, in fact, worsened, she was taken by ambulance to St. Mary’s Hospital in Tucson on April 8th. She was admitted with ongoing symptoms including nausea, vomiting and extreme weakness. Within days the attending physicians diagnosed Virginia with hepatitis A. Her family rallied to her side, coming in form many parts o the nation as Virginia fought on. But as the days passed, physicians were forced to place her on dialysis and, eventually, insert a chest catheter.

It was a on May 5th that physicians, her family, and Virginia, decided that the ongoing and aggressive hospital care had become too much – it had become unbearably painful and the side effects were as dangerous as the treatments. The next day, knowing that dialysis was no longer an option, Virginia’s physicians sent her home for hospice care and to be in the company of her family. Virginia passed away the next morning, leaving behind her 6 children and 17 grandchildren.

Her death certificate lists the only cause of death as “acute, fulminant hepatitis A.”

“The decision to file a lawsuit in this matter,” says hepatitis lawyer Ron Simon, “was made after the defendants, following nearly two years, still refused to take responsibility for the death of Virginia Jolson. It is our sincere hope that the defendants will do the right thing and allow this wonderful family to finally put her death behind them and move on with the wonderful memories of a gracious and loving mother and grandmother.”

For a copy of the lawsuit, call 1-888-335-4901.

The post Hepatitis Lawyer: Costco, Townsend Farms, Wrongful Death Lawsuit appeared first on Food Poisoning News.

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Partner Liability: Out of the Woods?

Originally published by Drew York.

Business concept Debbett Runnup Partnership, a Texas general partnership, was sued by Widgets R Us in 2010 for failing to pay Widgets R Us invoices. Judgment was granted to Widgets in 2012 against Debbett Runnup for $300,000. After chasing Debbett for over three years, Widgets’ lawyer Plinn T. Agreshun realizes that Debbett is penniless. Knowing that partners are also responsible for partnership debts, Agreshun sues Cash Kau, a multimillionaire Debbett partner. Cash’s army of lawyers argue that the Widgets R Us lawsuit is too late and barred by the statute of limitations. Can Widgets R Us collect from Cash Kau almost five years after the invoices were sent?

Partners Are Liable for the Partnership’s Obligations

Yes. Texas law generally makes a partner jointly and severally liable for all of the obligations of the general partnership. However, Widgets R Us must sue and get a judgment against Cash Kau because a judgment against a partnership is not, by itself, a judgment against its partner. To do so, Widgets R Us could have named Cash Kau as a defendant in the lawsuit against the partnership, or in a separate lawsuit. Widgets R Us must get a judgment against the partnership, and the judgment must go unsatisfied for 90 days before Widgets R Us may seek to satisfy from Cash Kau.

A Creditor’s Claim Against a Partner Accrues After Judgment Against the Partnership

But what about the Texas statute of limitations of four years? Widgets R Us slides under the wire. The Texas Supreme Court recently considered whether a creditor’s claim against the partner accrues (i.e., starts the limitations clock) at the time the partnership breached, or on the date the creditor obtained the judgment against the partnership. The court held that the limitations clock does not start running against the partner until the creditor can actually proceed against the partner’s assets, which is 90 days after the judgment, or 2012. The court concluded that Texas partnership law does not require a creditor to sue a partner in the same suit as the partnership, and the creditor could not proceed against the partner until after the 90 day period.

Tilting the Scales in Your Favor

Luckily for Widgets R Us the Texas Supreme Court sided with its interpretation of the statute of limitations. Claimants against general partnerships are better served by naming all of the partnership’s partners as defendants in the collection lawsuit. Doing so also leverages settlement negotiations because the partners probably want to avoid having a judgment rendered against them personally. Additionally, the partners must be careful not to transfer or dissipate assets because those could be considered fraudulent conveyances.

Finally, if you are a partner in a general partnership, strongly consider converting to a limited liability partnership, a limited liability company or a corporation. A valuable aspect of any entity is the shield it offers owners of these entities from personal liability for the entity’s obligations and liabilities.

The post Partner Liability: Out of the Woods? appeared first on Tilting the Scales.

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What Will Happen to Robert Durst’s Inheritance?

Originally published by Gerry W. Beyer.

Robert Durst is now in a Louisiana prison waiting to be sent back to California to face charges alleging that he killed a friend who may have uncovered why his first wife vanished thirty years ago. Durst, 72 and a…

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Supreme Court holds TTAB decisions can have preclusive effect in subsequent infringement actions

Originally published by Tim Kenny (US).

Earlier today, the U.S. Supreme Court issued a landmark trademark decision holding that TTAB rulings on likelihood of confusion can have preclusive effect in subsequent federal court infringement actions. B&B Hardware, Inc. v. Hargis Industries, Inc., No. 13-352, slip op. (U.S. Mar. 24, 2015)

We previously reported on the 18-year fight between B&B Hardware and Hargis Industries that led the high court to address the circuit split on the issue.

Summary of Decision

In a 7-2 decision, Justice Alito delivered the opinion of the Court, beginning with the following statement:

Sometimes two different tribunals are asked to decide the same issue. When that happens, the decision of the first tribunal usually must be followed by the second, at least if the issue is really the same. Allowing the same issue to be decided more than once wastes litigants’ resources and adjudicators’ time, and it encourages parties who lose before one tribunal to shop around for another. The doctrine of collateral estoppel or issue preclusion is designed to prevent this from occurring.

Slip op. at 1.

In this decision, the Court addressed several threshold issues noting that:

(a) agency decisions can “ground preclusion” in a subsequent federal court proceeding;

(b) there is nothing in the Lanham Act that “rebuts the presumption in favor of giving preclusive effect to TTAB decisions where the ordinary elements of issue preclusion are met”; and

(c) “[t]here is no categorical reason why registration decisions can never meet the ordinary elements of issue preclusion.”

Id. at 8-14.

The Court then specifically addressed the Eighth Circuit’s and Petitioner’s primary reasons for objecting to issue preclusion for TTAB decisions and dismissed those objections concluding:

  • “[T]he same likelihood-of-confusion standard applies to both registration and infringement.” Id. at 15.

  • The fact that the TTAB and district courts use different procedures “only suggests that sometimes issue preclusion might be inappropriate, not that it always is.” at 19.

  • That the stakes for registration are not always too low for issue preclusion in later infringement litigation. The Court emphasized that: “When registration is opposed, there is good reason to think that both sides will take this matter seriously.” at 21.

The Supreme Court then held: “So long as the ordinary elements of issue preclusion are met, when the usages adjudicated by the TTAB are materially the same as those before a district court, issue preclusion should apply.” Id. at 22.

The Court did not go into detail on the issue of explaining “materiality,” but noted that “trivial variations between the usage set out in the application and the usage in the marketplace do not create different ‘issues,’ just as trivial variations do not create different marks.” Id. at 18 (citations omitted). However, based on the Court’s decision, it is reasonable to expect that with a strongly contested TTAB proceeding, unless the losing party makes significant changes to its use of the mark(s) at issue – or the context of use considered by the TTAB was otherwise materially different, such as in an opposition to an intent-to-use application – issue preclusion will apply.

Issues for Companies to Consider

This decision will likely have a significant effect on how brand owners make strategic decisions about how and where to police their marks in the future. If you are a brand owner/plaintiff with a strong case, you may be able to get more benefit and certainty out of a TTAB decision now (at a lower cost and less disruption). In making these strategic decisions, brand owners will want to consider at least the following issues:

  • Will this decision result in an increased focus and use of TTAB litigation as a less expensive, less disruptive mechanism to address both registration and use issues (through the preclusive effect of a TTAB decision in a subsequent infringement action)?

  • In light of the potential increased importance of a TTAB decision, should a company continue to handle part or all of opposition work in-house?

  • If opposition work is sent to outside counsel, is it being handled by outside counsel with sufficient trademark litigation experience to develop the issues and evidence in a way that the record will support a preclusive effect in subsequent litigation?

  • For marks that are enforced through regular TTAB actions, should companies develop comprehensive evidence files for those important marks to drive down the cost of each TTAB proceeding and be prepared (and show the other side you are prepared) to fully litigate the TTAB proceeding?

  • Should your company consider seeking broader discovery (within TTAB limitations) from the opposing party in TTAB proceedings than it would have before this decision?

  • In the appropriate circumstance, should your company consider additional strategies within the TTAB proceeding, such as the use of survey evidence or requesting an oral hearing?

  • Is your company prepared to fully litigate TTAB proceedings to avoid the potentially negative impact of an adverse decision in subsequent litigation?

  • Instead of instituting a TTAB action, should your company consider initiating legal action in federal court, possibly in a more convenient venue (provided that a “justiciable controversy” exists)?

Companies in the position of defendant in a TTAB proceeding will want to consider at least the following issues:

  • Is the company prepared to fully litigate the TTAB proceeding to avoid the potentially negative impact of an adverse decision on not only registrability, but on use?

  • If you are unsure whether you will win in the TTAB, should the company consider strategies within the TTAB proceeding to avoid litigating all issues or taking all discovery that would insure that the decision would have preclusive effect?

  • Or, if you think you have a good chance of prevailing in the TTAB, should your company consider seeking broader discovery (within TTAB limitations) from the opposing party in TTAB proceedings than it would have before this decision? In the appropriate circumstance, should your company consider additional strategies within the TTAB proceeding, such as the use of survey evidence or requesting an oral hearing?

  • If a party litigates and does not prevail in a TTAB proceeding involving likelihood of confusion, and does not want to be stuck with the result (even if the perceived basis for the decision is that the TTAB employs different procedures, or that the TTAB may give greater weight to some factors than others), then the company should consider appealing the TTAB’s decision. If the decision is not appealed, and the TTAB considered the marketplace context in its decision, preclusion will apply to the likelihood of confusion issue in a subsequent infringement case.

  • Instead of fully litigating the dispute in a TTAB proceeding, should your company consider initiating legal action in federal court, possibly in a more convenient venue (provided that a “justiciable controversy” exists)?

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Blog: Is the facilitative approach useful in mediating commercial disputes?

Originally published by Gene Roberts.

In this article by Thomas I. Elkind, a partner at Foley & Lardner LLP, the question of a facilitative versus evaluative mediation is discussed, with the author concluding that a facilitative approach can help break impasses. The article also provides value by providing a glimpse into what the commercial clients of mediation are looking for in a mediator.

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FAA Announces New Policy to Streamline UAS Integration for Low-Level Flights

Originally published by Michael Weller.

The Federal Aviation Administration (FAA) has announced a new policy aimed at reducing the amount of time it takes for companies to deploy unmanned aircraft systems (UAS). Specifically, companies that have obtained a Section 333 exemption for a UAS will now receive a “blanket” Certificate of Waiver or Authorization (COA) for flights at or below […]

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SXSW panelists discuss intellectual property in media

Originally published by Hannah Kiddoo.

If you’re a filmmaker wondering if you will be sued, ask yourself: “Have I created a very popular film?”

That message came off loud and clear during the “Intellectual Property in Film and Interactive Media” CLE at SXSW. During the panel, Akin Gump attorneys Kellie Marie Johnson and Charles Everingham discussed trademark and copyright issues, including the increasingly sophisticated use of marketing and product placement in media. Some brands, including Chipotle and Lexus, are even creating their own content to distribute, they noted.

But with every integrated ad comes a host of legal issues. Brands want exposure, producers want to protect content quality, and talent wants to protect its image. To that end, Johnson and Everingham broke down some of the things parties should keep in mind when making marketing deals:

-Be aware of a brand’s permissions and rights

-Ask for a script to see if the details make sense for your brand

-Be as involved in the process as possible

-Negotiate for minimum guaranteed integration

-Negotiate for category exclusivity

-Establish provisions for talent back out

Still, even perfectly crafted contracts can have holes or lead to unforeseen issues. Consider the following cases highlighted during the CLE session:

Luxury brand Louis Vuitton was not laughing during The Hangover: Part II. In an airport scene, the character Alan (played by Zach Galifianakis) warns fellow traveler Teddy to watch out for his luggage, letting out a cold, “Careful, that is a … that is a Lew-is Vuitton.” Following the film’s debut, Vuitton sent a cease-and-desist letter to producers Warner Brothers, claiming that the appearance of the shoulder bag (which was a knock-off) and his dialogue infringed on its trademark and caused dilution. When Warner Bros. declined to remove the scene, Vuitton filed suit, claiming false designation of origin and unfair competition in violation of the federal Lanham Act, among other things. Ultimately, a New York judge granted a motion to dismiss the trademark complaint.

Then there was the time a New Jersey woman sued Disney, alleging that the film Frozen includes elements from her autobiography. The case was dismissed.

And Natrol Inc. was not too pleased with product placement firm Brand-in Entertainment last year when Reese Witherspoon backed out of a film. The vitamin company had placed $180,000 in the movie with the expectation that Witherspoon’s character would discuss their product. Natrol claims they are still owed a refund as part of their contract. The case is still ongoing.

At the end of the panel, the bottom line was that brands and the entertainment industry can work well together, so long as all parties understand their legal rights.

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Monday, March 23, 2015

Appellate Practice and Procedure Lesson 6: Oral Argument and the Decision

Originally published by D. Todd Smith.

This post features the video and slidedeck for the sixth lecture in my Appellate Practice and Procedure course, which I introduced here. The presentation appears after the jump.

This topic is timely for me as I prepare to stand at this podium and argue before the Texas Supreme Court later in the week. The courtroom—which I first encountered when working as a law clerk to Justice Raul Gonzalez in the mid-1990s—reflects the Court’s rich history.

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Breaking Down Boiler and Machinery Coverage, Part 2

Originally published by Shaun Marker.

Last week I began a series of posts related to the complex area within insurance for boiler and machinery coverage. This post will continue the discussion about interesting areas of coverage within boiler and machinery policies. What does the term “hostile fire” mean in the context of boiler and machinery policies? A fire loss exclusion in a boiler and machinery policy could be construed to be referring only to a “hostile fire” since the boiler could not be operated or used without the “friendly fire” under it.1

If the boiler and machinery items insured have “friendly fire” within the system as part of its operation, then the “hostile fire” discussion within this case refers to something occurring, in my understanding, outside of the normal operation of the system. In the Nitrin case, the boiler and machinery insurance carrier was pointing the finger at the property fire insurance carrier for responsibility to cover the claimed…


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IRS Issues Additional Guidance on Beginning of Construction Rules for Renewable Projects

Originally published by Gale E. Chan, Madeline Chiampou Tully, Heather Cooper, Martha Groves Pugh and Philip Tingle.

The Internal Revenue Service issued Notice 2015-25 on March 11, 2015, to provide further guidance on meeting the beginning of construction requirements for wind and other qualified facilities. The Notice extends the date by which a facility can meet the beginning of construction deadline to correspond with the extension of Code Section 45 passed by Congress at the end of 2014.

Read the full article.

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Jury Continues to Deliberate in Veteran’s Case

Originally published by Thomas J. Crane.

The jury in Iraq veteran Juan Alonzo-Miranda’s case deliberated all day Friday and still could not reach a verdict. At one point, they sent the judge a note saying they could not reach a unanimous agreement. Judge Lamberth, however, told them to continue deliberating. The two opposing lawyers agreed they would accept a 7-1 verdict. There are eight members on the jury. See San Antonio Express-News report (account required).

It is unusual for a jury to deliberate this long in a civil case. There must be some strong views among the members of this jury.

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The Ethics of Saul Goodman: Episode 6 (Five-O)

Originally published by Nicole Hyland.

Warning: Spoiler Alert! In my previous posts, I discussed the ethical issues in Episodes 1 through 5 of Better Call Saul. For this discussion, familiarity with the plot of Episode 6 is assumed, but here is the official recap just…

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Trial Set in Lawsuit Against MCM Elegante Hotel in Beaumont

Originally published by By Muhammad Aziz.

Over four years ago, Gregory Fleniken was found dead in his room at the MCM Elegante Hotel in Beaumont, Texas. For a while, police were baffled as to the cause of death and the curious circumstances garnered national attention. The coroner initially thought the cause of death was a heart attack. After considering additional evidence, the coroner concluded that he was somehow beaten to death. Only after extensive investigation by police and private investigators was it revealed that Mr. Fleniken was killed by a gunshot.

On the night of Fleniken’s death, a gun accidentally went off in the room next door, alarming many guests. The bullet pierced the wall and struck Mr. Fleniken. The occupants of the room, who had been drinking at the time the gun fired, exhibited a pattern of disruptive behavior over the course of their stay at the hotel. After patching a bullet hole with toothpaste, they returned to the hotel bar without checking to see if anyone in the adjoining room was hurt.

Now, a lawsuit based on the curious circumstances surrounding Mr. Fleniken’s death is set for trial in April. His widow, Susan, filed the suit against the MCM Elegante, the occupants of the adjoining room, and Delta Security, who was providing security for the hotel on the night in question.

Mrs. Fleniken alleges that the hotel failed to address the disruptive behavior of the occupants of the adjoining room. She also asserts that Delta Security failed to provide adequate security and properly investigate the incident. Furthermore, she claims that the defendants had knowledge of the facts surrounding the incident, but failed to convey their knowledge to the Beaumont Police Department.

Mrs. Fleniken states that the actions of defendants caused her nine months of additional emotional distress following the death of her husband. She believed that her husband had been beaten to death and thought she might be next. In addition to punitive damages, she is suing for wrongful death and survival damages.

When a guest is injured because of the carelessness or neglect of a hotel, legal recourse may be available. If you or someone you know has been injured due to the carelessness or neglect of a hotel, contact an attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend by calling 713-222-7211 or toll free at 1-800-870-9584.



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Texas: Published advertisement isn’t sanctionable for violating ADR statute

Originally published by Gene Roberts.

In The Orchards on the Brazos, LLC v. Stinson, the Fort Worth Court of Appeals was asked to decide whether an advertisement placed in a local newspaper that outlined a settlement offer violated the Texas ADR statute.

According to the court’s opinion, after mediation and a trial, one of the parties took out an ad in a local newspaper that included statements about the settlement negotiations, including language that “At one point we turned down an offer of 100k from the developer.” The other party filed a motion for sanctions, arguing that the settlement offer was a confidential communication defined by the Texas ADR statute. The trial court agreed to sanctions and awarded $5,000.00.

The advertisement was not made during mediation nor in the presence of a third-party facilitator. According to the Court of Appeals, the advertisement was not subject to the confidentiality requirements of the Texas ADR statute, and, accordingly, wasn’t sanctionable.

H/T to Ronnie Hornberger for informing us of this opinion. …

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Friday, March 20, 2015

Top 10 from Texas Bar Today: The Lottery, Pizza, and Short Stories

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. Evidence Is No Impediment the Second Time AroundRichard Smith @600Commerce of Lynn Tillotson Pinker & Cox LLP in Dallas

9. 47 State Cybersecurity Breach Laws May be Replaced by Federal LawPeter Vogel @PeterSVogel of Gardere Wynne Sewell LLP in Dallas

8. Breaking Down Boiler and Machinery Coverage Shaun Marker of Merlin Law Group @MerlinLawGroup

7. Miss Marple Short Stories and SEC Enforcement of the FCPA, Part I – Thomas Fox @tfoxlaw of TomFoxLaw in Houston

6. Texas justices wipe big 2013 jury verdict, reverse $32M judgment against Domino’s – David Yates, Senior Courts Reporter for Southeast Texas Record @SETexasRecord

5. Article on Estate Planning for Texas Lottery WinnersGerry Beyer @Gerry_Beyer, Law Professor at Texas Tech University School of Law in Lubbock

4. Lawsuit Filed Against Amazon for Selling Dangerous Dietary SupplementRandy Sorrels of Abraham, Watkins, Nichols, Sorrels, Agosto & Friend in Houston

3. Mobile Security Apps – Emily Lawson, Law Reference/Research Librarian at University of Houston Law Center @UHLAW O’Quinn Law Library in Houston

2. Veteran Sues to Bring His Service Dog to WorkThomas J. Crane @tomjcrane of Law Office of Thomas J. Crane of San Antonio

1. U.S. Senate Committee Approves Auto Safety Whistleblower BillBill Berenson @LawyerFortWorth of Berenson Law in Fort Worth

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Houston Legal Links 3/20/2015

Originally published by Mary Flood.

Top legal news includes: FBI director plans to add resources to Houston crime unit; Judge rules shale gas pipeline can cross holdout properties; FBI director plans to add resources to Houston crime unit; Lawsuit alleges teachers forced students to fight one another; Texas lawmakers expected to pass open carry bill soon; High Court Grants Review to Anti-SLAPP Case (Texas Lawyer); Houston’s Annise Parker Ponders Political Future; Houston Suburb Looks to Lawmakers for Water Fix; Family handcuffed, falsely accused of stealing at rodeo; Jockey accused of shocking horse faces more charges; What The IRS Wants You To Know About Scams; 5 questioned after stray bullet kills 6-year-old boy in SW Harris; Petition asks Texas Supreme Court to aid death penalty lawyer (Chron subsc); Under Bill, Messing With Texas Laws Might Bring Lawsuits (Texas Lawyer); Fort Bend Sheriff’s Office Decides to Help Out Identity Thieves With Worst Press Release Ever; ‘Exclusively for white people’ stickers found at Austin restaurants; New Partner Survey: Largest Firms in Texas Make 102 New Partners (Texas Lawyer); After fraud plea, custody issue linked to alleged ‘honor killings'; Texas ready to dump high school steroids testing program; Judge: Sanctions possible in Obama immigration court case & China indicts former oil boss on corruption charges.

For the water cooler: Goodwin Procter lays off lawyers and staffers, notes drop in demand for litigation services; Man arrested for cursing during 911 call files civil-rights suit; As Fewer Pass the Bar, the Exam Itself Is Questioned; The Legal Ethics of Better Call Saul; Lawyer pays bonus to employees who carry guns; Law School Proximity Matters for Partner Prospects, Study Finds; Stranger returns backpack containing nearly $18K, but feds try to forfeit the cash; Yikes! Another Law School Offers Buyouts To Tenured Professors; Study of Class of 2010 Raises ‘Troubling Questions’ About Legal Profession; Ex-client sues law firm, says it withheld ‘fugly’ assessment of $12M case while billing $1.3M; Driver denies role in fatal accident but is arrested when victim’s torso is found in his car; ACLU asks judge to block Alabama law authorizing appointment of lawyers for fetuses; Ex-president sues Penn State and Louis Freeh over published report of Sandusky investigation; Mayer Brown Lands NSA Legal Chief in Push for More Recognition (Legal Times); ‘Negative Nancy’ secretary spurs lawyer’s letter to Ask Amy & 25% of Ohio’s 2010 bar admittees aren’t practicing law; some work in pest control, lingerie sales.

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Say What?! – Did I Really Hear That?

Originally published by State Bar of Texas.

From Mary Strand, a staff attorney for the Tyler Court of Appeals, this testimony from a hearing on temporary child conservatorship – by witness who had “obviously not been testifying as expected”:

Q. Let me ask you this: Have you been frank in your answers?

A. No, I’ve been telling the truth.

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Stateline: Should Nonprofits Have to Pay Taxes?

Originally published by Nonprofit Blogger.

As often reported here, an increasing number of states and localities are challenging the property and other tax exemptions of nonprofits within their jurisdictions. Some of the most notable recent developments have been in Maine, where the governor’s budget proposal…

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YMCA Receives $40 Million from Ruth Bedford’s Estate

Originally published by Gerry W. Beyer.

The estate of Ruth Thomas Bedford has bequeathed $40 million to the Westport Weston Family YMCA in Virginia. The new YMCA, which opened last year, had previously received support from the philanthropist and her family. Ruth was a YMCA trustee…

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Thursday, March 19, 2015

Final Rule Issued on FMLA Definition of “Spouse”

Originally published by Eric Welter.

On February 25, 2015, the U.S. Department of Labor (“DOL”) issued a final rule changing the regulatory definition of “spouse” under the Family and Medical Leave Act (“FMLA”) to permit individuals in valid, same-sex marriages to receive FMLA spousal care protection.

The change comes in the wake of the United States Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013), which struck down Section 3 of the Defense of Marriage Act (“DOMA”) “as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.” Windsor, 133. S. Ct. at 2680.

The change also comes in reaction to President Obama’s Statement directing the Attorney General, in concert with the cabinet, to review all pertinent federal statutes and ensure that the dictates of Windsor are implemented “swiftly and smoothly.”

The FMLA defines spouse as simply a husband and wife, and this broad definition has been interpreted under the laws of the state where the employee resides. Following the Supreme Court’s ruling finding the Defense of Marriage Act (“DOMA”) unconstitutional, the Department permitted employees in same-sex marriages residing in a state that recognized the marriage to take FMLA leave for spousal care.

The changes moved DOL from a “place of residence” rule to a “place of celebration” rule when determining the validity of a marriage pursuant to the FMLA. Under the place of celebration rule, employees in same-sex marriages who were lawfully married in states recognizing same-sex marriage are permitted to receive FMLA leave benefits, even if they currently reside in a state that does not recognize same-sex marriage.

This means that legal, same-sex couples are now free to reside in the state of their choice without having to worry about their access to certain FMLA benefits. The new rule also includes same-sex marriages entered into abroad that could have been entered into in at least one state. The rule is effective on March 27, 2015.

Laconic Lookout: The Department’s new rule marks a significant expansion of same-sex couples’ statutory rights. The new policy allows legally married, same-sex couples to enjoy the same FMLA benefits as opposite-sex couples. This includes the ability to take unpaid, job-protected time off in order to care for one’s spouse or family member, access to exigency leave when a lawfully married spouse is on qualified military duty, the ability to take military caregiver leave, and so forth. While previous federal government actions granted LGBT federal employees and contractors with anti-discrimination protection, the new rule impacts private sector employers as well.

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Texas justices wipe big 2013 jury verdict, reverse $32M judgment against Domino’s

Originally published by David Yates.

dominos-pizza-deliveryOn Thursday, the Texas Ninth Court of Appeals axed one of top 100 national jury verdicts of 2013, dismissing Domino’s Pizza from a Beaumont lawsuit brought by Raghurami Reddy.

In August 2013, a Jefferson County jury deemed Domino’s as the negligent party behind a pizza delivery driver’s fatal collision, serving up a $32 million dollar verdict against the popular pizza chain.

Representing the estates of Devavaram and Ruth Christopher, Reddy filed suit against Domino’s IP Holder, MAC Pizza Management (a franchisee of Domino’s) and Joshua Balka (a pizza delivery driver at the time) on Sept. 7, 2012, in Jefferson County District Court.

Court records show that on Aug. 11, 2012, the Christophers were traveling on S. Major Drive in Beaumont when a Balka, who was in the employment of MAC Pizza, crossed the center lane and struck their vehicle head-on.

Wet pavement and a bald tire caused Balka to hydroplane into traffic. The police officer called to the scene cited Balka for failing to control his speed and for having an unsafe or defective tire, court papers say.

Ruth, 65, sustained injuries and died the next day while Devavram, 70, sustained a permanent traumatic brain injury and was left with no positive cognitive function, the suit states.

MAC Pizza settled with Reddy, leaving Domino’s as the feature defendant on trial.

Jurors found all three defendant parties, Balka, Domino’s and MAC Pizza, to be negligent in causing the collision, assigning the majority of the blame, 60 percent, to Domino’s, according to the court’s charge to the jury.

On appeal, Domino’s argued that the evidence is legally insufficient to establish that it owed a duty to the Christophers because the company had no right to control MAC Pizza’s day-to-day operations.

Justices on the Ninth Court agreed.

“Based on the record before us, we conclude that the evidence is legally insufficient to support the jury’s finding that Domino’s controlled or had the right to control the details of the injury-producing acts or omissions of MAC and its employees,” states the court’s opinion, authored by Chief Justice Steve McKeithen.

“The record indicates that MAC was free to use its own means and methods as to the details of its work. We reverse the trial court’s judgment and render judgment dismissing Reddy’s claims against Domino’s.”

A total of $32,154,506 in damages was awarded by the jury, which includes damages for mental anguish, loss of companionship, funeral expenses, medical expenses, impairment and disfigurement.

The National Law Journal ranked the verdict No. 60 nationally for 2013. For Texas verdicts that year, the case breached the Top 5.


Provost Umphrey attorney Paul “Chip” Ferguson represented Reddy during the trial.

Woodlands attorney Kenna Seiler represents him on appeal.

Domino’s is represented in part by Houston attorney Phil Griffis.

Trial case No. A192-970

Appeals Case No. 09-14-00058-CV

The post Texas justices wipe big 2013 jury verdict, reverse $32M judgment against Domino’s appeared first on Southeast Texas Record.

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The Ethics of Saul Goodman: Episode 5 (Part Two)

Originally published by Nicole Hyland.

Warning: Spoiler Alert! In my previous posts, I discussed ethical issues that arose in Episodes 1 through 4 of Better Call Saul. There were so many ethical issues in Episode 5, I decided to split it into two parts. In…

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Wednesday, March 18, 2015

Despite impressive pro day, questions persist regarding Bryce Petty’s NFL outlook

Originally published by Brian T. Smith.

Bryce Petty throws as he works out for NFL scouts at Baylor's pro day. (Associated / Tony Gutierrez)

WACO — Bryce Petty spun perfect spirals that softly sailed into receivers’ hands deep in the end zone. He faked left, spun right and drilled wideouts along the sidelines. He unleashed an NFL-ready arm after beginning every snap under center. And the record-setting Baylor quarterback still has so much to prove.

Petty completed 69-of-77 passes Wednesday during the Bears’ pro day Wednesday inside the team’s workout facility, at times wowing watchers with the speed and precision of his throws. But while personal QB coach George Whitfield declared that his student pulled off the best Pro Day he’s ever been a part of, questions remained about Petty’s ability to successfully transition from Baylor’s wide-open spread offense to the structure and second-by-second minutiae of the NFL.

“People are going to like him or not like him and the big issue is going to be the transition,” NFL Network analyst Mike Mayock said. “And from my perspective, he’s a year or two away from being able to compete as a starting quarterback. But the good news is, he has starter traits. So if you have starter traits, that puts you somewhere else in the draft than if they think you’re going to be a career backup. He has the right traits but he needs a lot of reps under center in real combat.”

Mayock acknowledged that Petty has the best pure arm in a draft already dominated by expected No. 1 overall pick Jameis Winston. Petty’s pro day only backed up the statement, with the 6-3, 228-pound QB smoothly blending quick slants and crossing patterns with long-range outs, all while mixing up his steps and foot placement after taking snaps.

“He demonstrated he could make all the throws, which is necessary to play in the league,” said Dallas quarterbacks coach Wade Wilson, who after the workout spoke with Petty about a follow-up meeting. “He had good touch. Every time you see him, he’s a little more fluid dropping back under center. So, to the Senior Bowl to the combine to now, he looks a little bit improved.”

Oregon’s Marcus Mariota and Winston are the only QBs expected to be off the board when the first round is complete. With six weeks remaining before the annual draft, Petty is attempting to move past UCLA’s Brett Hundley and Colorado State’s Garrett Grayson to become the third quarterback taken. Despite possessing the sharpest arm available, Petty is viewed by many as a project who must adjust to everything from on-field playcalling to dropbacks and defensive reads in the pros.

“It was exactly what we wanted to do,” said Petty, who’s slotted between the second and third rounds in most mock drafts. “All my (game) tape’s in the gun, so we wanted to have every throw under center and say, ‘If you guys want me under center, I can play under center.’ I have history in the shotgun, so I don’t know if I necessarily have to show that.”

Baylor coach Art Briles watched Petty rack up 520 completions, 8,055 yards and 61 touchdowns the last two seasons, after the QB barely played his initial two years in Waco. Back-to-back Big 12 championships later, Briles isn’t backing down from his belief that Petty can last in the pros and is worthy of a first-round pick.

“Football is football. If a guy can play, a guy can play,” Briles said. “It’s all about being with the right people in the right system with the right mentality. If you’ve got a horse, it depends on how you’re going to let him run. Are you going to let him run fast or (are) you going to make him trot a certain way and make him look like every other horse?

“I’ve always believed in letting guys be their own selves that have ability — let them play. Then, if they don’t play, that’s your fault.”



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