Tuesday, June 30, 2015

Texans’ future not too bright, according to ESPN

Originally published by Ultimate Texans.

Texans fans may be entering next season with some optimism thanks to the seven-win improvement the team posted in 2014.

However, ESPN doesn’t necessarily share that outlook.

ESPN’s Insider on Tuesday unveiled its NFL Future Power Rankings, which projects which NFL franchises are in the best shape for the next three seasons.

The Texans checked in at No. 24 of 32.

The rankings were determined by the panel of John Clayton, Louis Riddick and Mike Sando, with each analyst rating each franchise on a scale of 0-100 in five categories: roster (excluding quarterback), quarterback, draft, front office and coaching.

Here’s how the Texans scored in those categories:

  • Roster: 64.3
  • QB: 43.3
  • Draft: 66.7
  • Front office: 70
  • Coaching: 78.3

The only teams with lower QB rankings are the Redskins (41.3), Bills (30) and Browns (30).

Here’s Sando’s overview on the franchise:

The Texans seem to have gotten the coaching hire right. A 13-spot gain to 10th in that category helped them move up three spots overall. They were flat in every other category, and they cannot know whether their long-term quarterback is on the roster, which is obviously a big concern for the future. Possibly whiffing on Jadeveon Clowney with the No. 1 overall pick in 2014 while failing to secure a quarterback has made it tougher for the Texans to gain traction overall.

ESPN’s top three teams were the Packers, Seahawks and Patriots. The latter two played in last year’s Super Bowl while the Packers blew a 12-point lead with less than three minutes left in the NFC title game.

The bottom three franchises were some of the usual suspects: Browns, Titans and Jaguars.

The full rankings can be viewed here (note:subscription required)

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

from Texas Bar Today http://ift.tt/1Nsui5Z
via Abogado Aly Website

Healthcare Fraud: Medicaid and Medicare Fraud in Texas

Originally published by Benson Varghese.

Healthcare Fraud in Texas

Because healthcare fraud costs the government and taxpayers hundreds of millions of dollars every year, both the federal government as well as the Texas State Attorney General’s Office devote massive resources to prosecute it. Thus, individuals and organizations that are accused of committing health care fraud are liable for civil and criminal penalties under both systems.

In Texas there are over 57,000 Healthcare providers and over 3.7 million Medicaid recipients. As a result, hundreds of millions of dollars are spent to provide such care. Further, state authorities report that in 2010 the state discovered over 71 million dollars that had been over-reported.

These numbers support massive federal and state investigation efforts specifically designed to accuse and imprison healthcare providers believed to be connected to fraud. Thus doctors, hospitals, Nursing Homes, Pharmacies, Medical Equipment Suppliers, Laboratories, Medical Transportation Services, Home Healthcare Agencies, Rehab facilities, Chemical Dependency Treatment Centers, Adult Day Care facilities, Dentists, and other professionals in the medical industry are highly regulated and scrutinized.

Difference between Medicaid and Medicare 

Most people have heard of the Medicaid and Medicare programs but few people actually know the distinction between the two programs. Below is a summary of the differences between the two programs.

Medicaid is a financial assistance program that serves low-income patients of any age.  Patients usually do not pay any costs for covered medical expenses. A small co-payment may sometimes be required. Medicaid is a federal-state cost sharing program that is administered by state governments in compliance with federal guidelines.

Medicare is an insurance program for elderly patients. The patient’s medical bills are paid from trust funds, which have been paid into by those it covers. It serves people age 65 and older and has no income restrictions. The program also provides care for younger disabled people and dialysis patients. Patients usually pay part of costs through deductibles for hospital stays and other costs. Medicare is a federal program and administered by the US government. It is the same everywhere in the United States and is run by the Centers for Medicare & Medicaid Services, which is a federal agency.

Typical Types of Medicare and Medicaid Fraud Cases Investigated by the Government

The following are typical accusations the Government makes against Medicaid/Medicare providers:

Double billing for services– A provider bills both Medicaid and a private insurance company or the recipient for treatment. In the alternative, two providers will request payment for the same recipient for the same procedure on the same date.

Billing for services not provided – A provider bills for services that were never performed. This can include billing tests or x-rays that were never given, or a home health care agency or hospital that continues to bill for services rendered to a patient who is no longer a patient of the facility either because of a death or transfer to a different facility.

Billing for visits that never take place – A provider falsely bills the Medicaid/Medicare program for patient visits that never took place.

Billing for more than 24 hours in a Day – A provider falsely increases the amount of time spent with patients, for example a physician who bills for more than 24 hours of treatment on a single day.

Kickbacks – A home healthcare agency owner requires another provider, such as a laboratory, another agency, or pharmacy, to pay the owner a certain portion of the money received for providing services to patients. The owner may also give a kickback to patients for agreeing to be billed for services never received. This practice usually results in more unnecessary services being performed to generate additional income to pay the kickbacks.

Falsifying medical credentials – Misrepresenting the qualifications of a licensed provider in order to defraud Medicaid/Medicare. For example, a non-physician who impersonates a licensed doctor or who treats patients and prescribes drugs and then bills the Medicaid program as if a doctor had seen the patient.

Substituting of brand-name drugs for generic drugs – A pharmacy bills Medicaid/Medicare for the cost of a brand-name prescription although a generic substitute was given to the recipient at a much lower cost to the pharmacy.

Billing for unnecessary services – A medical provider falsifies the diagnosis and symptoms on patient records and billings to obtain payments for laboratory tests or equipment that are not needed.

Billing for procedures more expensive than those actually preformed – A provider bills for an extensive procedure when a less extensive one was administered or billing for expensive equipment and giving the patient cheaper substitutes.

Texas Medicaid Fraud Control Unit

The Texas Medicaid Fraud Control Unit was established in 1979, as a division of the Office of the Texas Attorney General. The Unit conducts criminal investigations into allegations of fraud by Medicaid providers.

The Medicaid Fraud Control Unit has four primary responsibilities:

investigating fraud both criminal and civil by Medicaid providers;

investigating abuse and neglect of patients in health care facilities licensed by the Medicaid program, including home healthcare agencies and nursing homes;

prosecuting criminal fraud by Medicaid providers or assisting local and federal authorities with such prosecution;

investigating fraud within the administration of the Medicaid program.

Violations of state law are prosecuted under the most applicable statute including theft, falsifying a government record, or Medicaid fraud. The Medicaid Control Fraud Unit does not investigate fraud committed by Medicaid recipients, only providers. The Texas Health and Human Services Commission Office of Inspector General is responsible for investigating Medicaid recipient fraud.

Texas Medicaid Fraud Prevention Act

The Texas Medicaid Fraud Prevention Act contained in Chapter 36 of the Texas Human Resources Code, is an instrumental piece of legislation that was enacted in 1995 and often used to fight healthcare fraud in Texas. Under Texas’s Medicaid Fraud Prevention Act, persons may be liable for knowingly submitting false or fraudulent claims to the state’s Medicaid program. The act also has a provision that allows for a reward that goes to the individual who reports fraudulent activity or abuse of funds in the state Medicaid program. The reward may not exceed five percent of the amount of the penalty that results. Also the act provides protection for those who act as whistleblowers against retaliation from their employers.

Federal Laws Governing Medicare/Medicaid Fraud

These federal laws are some of the more commonly used criminal and civil statutes the government can impose upon individuals or organizations that commit fraud in the Medicare Program, including Medicare Parts C and D, and the Medicaid Program. Violations of these laws may result in denial of claims, Civil Monetary Penalties, denial from participation in federal health care programs, and criminal and civil liability. 

False Claims Act 31 U.S.C. § 3729

The False Claims Act protects the government from being overcharged or sold substandard goods or services. The False Claims Act imposes civil liability on any person who knowingly submits, or causes the submission of a fraudulent claim to the Federal government. The “knowing” standard includes acting in deliberate ignorance or reckless disregard of the truth related to the claim.

Criminal Health Care Fraud Statute  18 U.S. Code § 1347

The Criminal Health Care Fraud Statute prohibits knowingly and willfully executing, or attempting to execute, a scheme or artifice in connection with the delivery of or payment for health care benefits, items, or services to defraud any health care benefit program, or to obtain any of the money or property owned by any health care benefit program.

Anti-Kickback Statute 42 U.S.C. § 1320a-7(b)

The Anti-Kickback Statute makes it a criminal offense to knowingly and willfully offer, pay, solicit, or receive any remuneration indirectly or directly to induce or reward referrals of items or services reimbursable by a Federal health care program.

The Stark Law 42 U.S.C. § 1395nn

The Stark Law also known as the “Physician Self-Referral Statute” generally prohibits referrals of Medicare and Medicaid beneficiaries by a doctor to an organization for the provision of “designated health services” if the doctor, or the doctor’s immediate family member, has a fiduciary relationship with the organization.

Investigation Tactics and Potential for Prosecutorial Overreach

The Department of Justice has earmarked funds to provide specialized prosecutors in most federal jurisdictions (such as the Northern District of Texas). For example, in Dallas, Texas, the U.S. Attorney’s Office employs several healthcare fraud prosecutors known as the “Healthcare Strike Force.” These individuals are put in charge of separate teams consisting of Texas Attorney General and FBI analysts and investigators who investigate potential fraud. This is obviously meant to be a public good. However, a close look at the way these cases inseminate and how they are investigated raises concerns. The Department of Justice has a Medicare Fraud Strike Force that has two locations in Texas.

Typically a healthcare fraud case starts in one of two ways. Either an unhappy insider files a report to authorities known as a qui tam or an analyst uncovers a claim pattern that he or she regards as suspicious.

A qui tam is, in effect, a whistleblower action. If an employee feels that his or her employer is falsely billing a government program, then that person may report the employer. Unfortunately, not all whistle blowers are acting out of a sense of duty. Sometimes disgruntled employees can use this process to bring painful pressure upon employers via an investigation. For example, healthcare providers could be approached by investigators demanding to interview employees and take office records. These actions can cause anxiety, fear, and massive reputational harm. Thus qui tam investigations present significant peril, sometimes wrongly, to providers.

In addition to whistle-blower initiated investigations, government entities sometimes run audits of Medicare/Medicaid claims. For example, if a dentist in Plano files twice the number of Medicaid claims for bridgework than the second highest biller in that region, the Government may decide to raid the business and engage in high-pressured interviews with employees.

Compounding the danger for healthcare providers is that they often assume that law enforcement interviews are objective, fact-finding inquiries. This is a dangerous assumption. Actually, investigators typically conduct interviews after their mind is made up that a crime has taken place. This means that the interview is biased against the provider and designed to develop incriminating evidence. Providers should seriously consider whether to participate in such an interview and whether to do it alone.

If you or a loved one is facing a healthcare fraud investigation or have been charged with healthcare fraud, call the Federal Criminal Defense Attorneys at Varghese, Summersett & Smith, PLLC today at (817) 203-2220.

The post Healthcare Fraud: Medicaid and Medicare Fraud in Texas appeared first on Fort Worth Criminal Defense Attorney DWI Attorney Civil and Family Lawyers.

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

from Texas Bar Today http://ift.tt/1HsItHe
via Abogado Aly Website

Practicing Law: It Was Easier Then

Originally published by Cordell Parvin.

Are you focused on what you want to achieve or the person you want to become? I ask because you will approach your career and life differently.

When I started in private practice it was easier to be focused on the person I wanted to become.

This week, 39 years ago, I finished my four years as a lawyer on active duty in the US Air Force, and Nancy and I drove our AMC Gremlin (ugliest car we ever owned)  from Wright Patterson Air Force Base in Dayton, Ohio to Roanoke, Virginia where I started in private practice with Martin, Hopkins and Lemon.

Screen Shot 2015-05-10 at 3.22.03 PM

Practicing law and staying focused on what was important in my career and in my life was easier then. I did not have a computer on my desk, or a tablet, or smart phone loaded with apps. Secretaries used typewriters, carbon paper and whiteout to correct mistakes.

Mr. Martin was in his 60s, (probably younger than my current age.). His secretary of at least 30 years was Ms. Johnson.

I was startled when she called me “Mr. Parvin.”  I was in awe of her. I was sure she knew more about practicing law than me. Thankfully, she took me under her wing and kept me from making really stupid mistakes.

A few years ago, Nancy, Jill and I caught up with Ms. Johnson while eating breakfast in Roanoke. She was in her 80s and was eating by herself. I had to give her a big hug and thank her for taking an interest in me.

We never used the term mentoring or shadowing, I received it every day. I regularly visited the older lawyers and asked advice on matters. If an older lawyer was visiting a client or going to court he took me along to watch. 

Screen Shot 2015-05-10 at 3.43.05 PM

One time, Mr. Martin, who wore a hearing aid, accompanied me to an argument on a motion. I remember arguing the motion and getting to the point where I could feel Mr. Martin pulling on my suit coat trying to get me to sit down.

Then in a voice he thought was a whisper, but was heard by everyone in the courtroom, he said:

Damn it Cordell, you’re winning, but if you keep talking you’re going to blow it. Sit down.

I was really embarrassed. When I looked up I saw the judge, one of Mr. Martin’s long time friends, smiling.

It was easier to learn from experience back then. Most Roanoke firms did insurance defense work and young lawyers, like me, gained first hand litigation experience, by litigating subrogation cases in General District Court.

I can’t remember how many hours I billed in a year, but I would be surprised if it was even close to how many I billed many years later. 

It was easier to distinguish work life from personal life because we weren’t available 24/7. I did not receive many calls at home from clients, so my personal time was my own.

I knew what I wanted and I created a plan to achieve it.  I established goals and listed activities I wanted to do to achieve them. I also planned my personal life each week around my roles.

I got some ideas when read Stephen Covey’s best seller: The 7 Habits of Highly Effective People and I planned my personal life each week in even more detail.

stephen-covey-7-habits of highly effective people

Stephen Covey’s Habit 3 is Put First Things First. He suggests answering the following two questions: 

  1. What one thing could you do (you aren’t doing now) that if you did on a regular basis would make a tremendous positive difference in your personal life?
  2. What one thing in your professional life would bring similar results?

If you want more to read on Habit 3, take a look at this article, or this short Stephen Covey video.

In a Forbes article: Stephen Covey: 10 Quotes That Can Change Your Life, there are at least 3 of Stephen Covey quotes that focus on Habit 3.

The key is not to prioritize what’s on your schedule, but to schedule your priorities.

The main thing is to keep the main thing the main thing.

Most of us spend too much time on what is urgent and not enough time on what is important.

Life is more complicated today. For many of you, there is no clear line between your work and your personal life.

So, what can you do? Today more than ever answering the two questions above can make a difference in your life.

The post Practicing Law: It Was Easier Then appeared first on Cordell Parvin Blog.

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

from Texas Bar Today http://ift.tt/1GX0KuX
via Abogado Aly Website

New Overtime Rules to be Proposed as Early as This Week

Originally published by Russell Cawyer.

President Obama has announced that a soon to be released proposed rule from the U.S. Department of Labor will include an increase in the minimum salary necessary for an employee to qualify as an exempt employee. Under the proposal announced by @POTUS today, by 2016, employers will have to pay exempt employees a minimum or $984 per week ($50,440 annually) and the salary will be linked the 40th percentile of income thereby increasing automatically over time. The change is expected to increase the number of employees eligible for overtime by 5 million workers.

The DOL’s proposed rule, to be released as early as this week, will likely include additional proposed revisions making fewer employees qualify as exempt and requiring overtime for more employees. Stay tuned for more updates.

Follow me on Twitter @RussellCawyer.

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

from Texas Bar Today http://ift.tt/1Hsm4tF
via Abogado Aly Website

You Can’t Trust Crowdfunding Promises After Confession to the FTC

Originally published by Peter S. Vogel.

Immediately after filing a lawsuit  the defendant confessed that he spent monies on personal expenses even though he “raised more than $122,000 from 1,246 backers, most of whom pledged $75 or more in the hopes of getting the highly prized figurines” after he “launched a crowdfunding campaign to raise money from consumers purportedly to produce a board game.”  In the case of the Federal Trade Commission v. Erik Chevalier also d/b/a The Forking Path, Co. which filed a lawsuit on June 10, 2015 in the US District Court in Portland, Oregon and which settled the following day as report by the FTC reported that the defendant:

…agreed to a settlement that prohibits him from deceptive representations related to any crowdfunding campaigns in the future and requires him to honor any stated refund policy.

This was the first such case brought for Crowfunding misuse by the FTC, but surely will not be the last.

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

from Texas Bar Today http://ift.tt/1LSM5SN
via Abogado Aly Website

Non-Compete Agreements are Increasingly Common

Originally published by Thomas J. Crane.

Non-compete agreements have been used in the market place for decades within certain sectors, such as physicians and some sales representatives. In the past year or so, I have heard from several workers who signed non-compete agreements. One poor young woman, in her 20’s, was sued after she changed jobs. She simply moved to a job in the same field but at a higher rate of pay. There was no agreement with her new employer to bring a “secret” customer list or to solicit customers from the old employer. She simply changed jobs because the new employer offered higher pay.

Yet, the old employer filed suit against the young lady. The suit accused the young woman of stealing customers and damaging its referral program. The poor young woman kept telling me how the lawsuit was inaccurate, that only one customer switched, and that there was no referral- rewards program at the old employer. She seemed intent on convincing me that her cause was just. I could only smile and tell her well, those are good defenses, but you still have been sued. I suggested she ask the new employer about hiring a lawyer for her. But, she explained, all they did was hire her. There was no agreement or plan that she bring customers with her. The new employer will surely not be interested in helping her with the lawsuit. The young lady is paid perhaps $10 per hour. She cannot afford to hire a lawyer.

The old employer will seek a temporary restraining order that could limit her ability to work. So, this is a huge issue for this young woman.

I wrote previously about non-compete agreements at a fast food sandwich place, Jimmy John’s, here. Sheesh. You know non-compete agreements are ubiquitous when they are signed by the youngest workers, with the least experience.


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

from Texas Bar Today http://ift.tt/1LSM5SD
via Abogado Aly Website

Old Songs, New Money – SiriusXM Settles Copyright Lawsuit

Originally published by Rob Green.

Sirius XM has resolved a piece of major litigation in its fight over its right to play pre-1972 recordings. In so doing, Sirius XM has settled with independent and major record companies for the satellite radio company’s alleged broadcasting of songs made before 1972 without permission and without paying royalties. The satellite radio broadcaster will pay $210 million to plaintiffs ABKCO Music & Records, Capitol Records, Sony Music Entertainment, UMG Recordings, and Warner Music Group.

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

from Texas Bar Today http://ift.tt/1LSM5Cm
via Abogado Aly Website

Monday, June 29, 2015

TBLS celebrates 40 years, recognizes criminal law attorneys

Originally published by Hannah Kiddoo.

2015 marks the 40th year of the Texas Board of Legal Specialization, which certifies attorneys in 21 areas of law and paralegals in six areas.

On June 19, in conjunction with its anniversary, the State Bar’s Annual Meeting, and the Rusty Duncan Advanced Criminal Law Course in San Antonio, TBLS held a reception to recognize attorneys who have been board certified since its 1974 inception, including 35 lawyers certified in criminal law.

Gary McNeil, executive director of TBLS, and Stanley G. Schneider, attorney with Schneider & McKinney in San Antonio, commended the lawyers and presented plaques to each of the 13 criminal law attorneys who attended the event.

For more information on the Texas Board of Legal Specialization, go to tbls.org.

On June 19, TBLS recognized several attorneys who have been board certified since 1974.
On June 19, TBLS recognized several attorneys who have been board certified since 1974.

Above, back row, from left to right: Stephen P. Takas of San Antonio; Michael M. Phillips of Angleton; William M. Rugeley of San Marcos; Vernard Solomon of Marshall; Ronald Leroy Goranson of Dallas; Gerry Goldstein of San Antonio; William R. Neil of Dallas; John Andrew Yeager of Austin; and Roy R. Barrera of San Antonio

Above, front row, from left to right: Jerry W. Melton of Dallas; Marvin Zimmerman of San Antonio; Vincent W. Perini of Dallas; Kenneth E. Blassingame of Dallas

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

from Texas Bar Today http://ift.tt/1CFtvbA
via Abogado Aly Website

What Comes Next for Mercury Emissions from Power Plants?

Originally published by Jacob Hollinger.

The U.S. Supreme Court held this morning that the U.S. Environmental Protection Agency (EPA) acted unreasonably when it determined in 2000, and again in 2012, that it was “appropriate and necessary” to regulate mercury emissions from coal-fired power plants.  The central flaw in EPA’s reasoning, the Court held, is that the agency failed to consider the cost of regulation when making the threshold determination that regulation was “appropriate.”  Under Section 112 of the federal Clean Air Act, EPA must conclude that it is “appropriate” to regulate power plant mercury emissions before it can actually regulate those emissions.

The immediate effect of today’s decision is that the ongoing challenge to EPA’s mercury regulations will be remanded to the U.S. Court of Appeals for the D.C. Circuit, which previously upheld those regulations.  The D.C. Circuit will then face a choice:  Should it vacate the regulations, or should it leave them in place while giving EPA additional time to attempt to justify the agency’s threshold conclusion that the regulations are “appropriate.”

In the past, the D.C. Circuit has sometimes vacated environmental regulations that it found to suffer from threshold flaws, but it has also occasionally left those regulations in place pending agency revisions.  For example, several years ago the D.C. Circuit found that EPA’s Clean Air Interstate Rule (CAIR) was fatally flawed but it nevertheless declined to vacate CAIR.  Instead, it left CAIR in place pending promulgation of a replacement rule.  It remains to be seen whether the D.C. Circuit will take such an approach here.

If the mercury regulations are vacated, today’s decision may have the ironic effect of helping EPA defend its forthcoming greenhouse gas (GHG) regulations for existing power plants.  One of the principal legal objections to the forthcoming GHG regulations is that EPA allegedly lacks authority to issue them because power plants are regulated for mercury emissions.  Thus, if the mercury regulations go away, one of the principal objections to the GHG regulations will be eliminated.

Nevertheless, today’s decision has to be considered a loss for EPA.  The power plant mercury regulations took over two decades to promulgate and were anticipated to have significant environmental benefits, primarily in the form of reductions of particulate matter and sulfur dioxide emissions.  Today’s decision creates some uncertainty about the future of those regulations.  Equally important, today’s decision is another reminder that a majority of the Supreme Court remains deeply skeptical of EPA’s claims about the agency’s statutory authority.

If there is a silver lining for EPA in today’s decision, it is that the Supreme Court did not go so far as to dictate exactly how EPA is to consider costs.  Instead, the Court concluded:  “It will be up to the Agency to decide (as always, within the limits of reasonable interpretation) how to account for cost.”

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

from Texas Bar Today http://ift.tt/1Hr4ztW
via Abogado Aly Website

Record Year For Auto Recalls Prompts Sterner NHTSA Response

Originally published by Bob Kraft.

The New York Times reports on the year’s record number of automobile recalls, with a focus on the GM ignition switch defect and the learning opportunity it offered other manufacturers. The piece highlights that the NHTSA is receiving twice its annual average in consumer complaints, is putting increasing pressure on automakers, and has created an app to directly inform consumers about recall information pertaining to their vehicle. The piece also includes comments from temporary NHTSA chief David Friedman on efforts to increase industry safety.

Majority of recalled vehicles go without repairs. The Los Angeles Times reports as many as 35 million of the 60 million vehicles recalled this year have not been repaired. The piece details the repair rates of various auto manufacturers and many of the fatalities associated with defects prompting the recalls. The piece features extensive commentary from NHTSA deputy administrator David Friedman, and includes the fact that the NHTSA compiles repair rate data for only 18 months following a recall announcement. NHTSA efforts to increase recalls are discussed as well as calls for state departments of motor vehicles to have “a digital tie-in to NHTSA’s Federal database” to track repairs.

From the news release of the American Association for Justice.

The post Record Year For Auto Recalls Prompts Sterner NHTSA Response appeared first on P.I.S.S.D. — Personal Injury, Social Security Disability. Dallas Texas Lawyers.

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

from Texas Bar Today http://ift.tt/1Hr4Bll
via Abogado Aly Website

Immigration Appeal – familiar faces

Originally published by David Coale.

In Texas v. United States, the high-profile challenge to the Obama Administration’s immigration policies, the oral argument panel has been announced for the “merits” argument on July 10 — Judges King, Smith, and Elrod.  Of course, Judges Smith and Elrod were the two majority votes on the “preliminary stay” panel that ruled for the plaintiffs and denied a stay, strongly signalling how they will the view the issues presented in this phase of the case.

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

from Texas Bar Today http://ift.tt/1GIBmWv
via Abogado Aly Website

The BEA Revises its Policy for Granting Extensions of Time for Filing BE-10 Survey Reports

Originally published by Thompson & Knight LLP.

Posted by Todd Lowther, John Cohn, and Nancy Allred

ToddLowthertn        NancyAllredtn        JohnCohntn

The U.S. Department of Commerce Bureau of Economic Analysis (the “BEA”) is currently conducting the 2014 BE-10, Benchmark Survey of U.S. Direct Investment Abroad, under the authority of the International Investment and Trade in Services Survey Act.  The BE-10 survey is conducted every five years, covering the universe of U.S. direct investment abroad.  The purpose of the benchmark survey is to obtain statistical data on the financial and operating characteristics of, and on positions and transactions between, U.S. parent companies and their foreign affiliates in order to measure the size and economic significance of U.S. direct investment abroad, measure changes in such investment, and assess its impact on the U.S. and foreign economies.

In prior years, the BE-10 survey was required only if the BEA sent a notice to report.  However, the BE-10 survey is now mandatory, and a response will be required from persons subject to the reporting requirements of the BE-10, whether or not such persons have been contacted by the BEA.

Reporting Thresholds and Logistics

Any U.S. person who had a “foreign affiliate” at any time during the U.S. person’s 2014 fiscal year is required to report. A “foreign affiliate” is a non-U.S. entity in which the U.S. person had a direct or indirect ownership or control of at least 10% of the voting stock of an incorporated foreign business enterprise or equivalent interest with respect to an unincorporated foreign business enterprise.  The BEA defines a “person” in the broad legal sense to include any individual, branch, partnership, associated group, association, estate, trust, corporation or other organization (whether or not organized under the laws of any state) and any government (including an instrumentality thereof).  A U.S. person with one or more foreign affiliates is referred to as a “U.S. Reporter.”

Unlike other BEA surveys, the BE-10 survey does not have a dollar-threshold requirement for filing reports. All foreign affiliates that meet the ownership or control threshold must be reported, whether owned or controlled directly or indirectly as subsidiaries or affiliates of another foreign affiliate.

The BE-10 survey is composed of several component forms.  The U.S. Reporter completes a portion of the BE-10 survey, known as a BE-10A to report U.S. financial and operating data. For each foreign affiliate, the U.S. Reporter completes a BE-10B, -10C, or –10D, to report financial data and information regarding its foreign business activities, depending on the characteristics of the foreign affiliate. The U.S. Reporter then certifies and files the complete BE-10 survey with the BEA.

Reporting Deadlines, Extensions and Penalties

The BE-10 survey can apply in situations that are not readily apparent, and the recent revisions to the deadlines for filing and for requesting an extension for additional time to file reflect the difficulties that potential filers have encountered with these new reporting requirements. For a U.S. entity with 50 or more foreign affiliates and for “new filers” (i.e., U.S. persons that have not previously filed reports or surveys with the BEA), the deadline was recently extended until June 30, 2015.  For a U.S. entity with fewer than 50 foreign affiliates and which is not a new filer, the applicable BE-10 survey was due by May 29, 2015; however, the BEA has expressed a willingness to grant reasonable requests for extensions of time to file for such entities, even though the deadline has passed.

The BEA recently posted a revised application for requesting an extension of time to file the BE-10 on its official website.  According the revised form, the BEA will now automatically grant requests for a 30 to 60 day extension (until July 31 or August 31) for U.S. Reporters that need additional time to gather the necessary information, so long as the request is submitted to the BEA prior to the June 30, 2015.

Failure to comply with the BE-10 survey reporting requirements may result in the imposition of penalties. A person who fails to file a required Form BE-10 may be subject to civil penalties of up to $25,000 and, if found to have wilfully failed to file a required Form BE-10, may be subject to criminal penalties. An officer, director, employee, or agent of an entity who knowingly participates in a wilful failure to file may also be subject to criminal penalties.

If you would like to discuss the BE-10 survey reporting requirements, survey please contact Todd Lowther, John Cohn, or Nancy Allred at Thompson & Knight LLP.

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

from Texas Bar Today http://ift.tt/1U19wyJ
via Abogado Aly Website

Declaration of Independence to be recited at 100-plus Texas courthouses

Originally published by Lindsay Stafford Mader.

For the fifth consecutive year, members of the Texas Criminal Defense Lawyers Association will celebrate the Fourth of July by gathering at dozens of courthouses across the state to recite the Declaration of Independence. An annual TCDLA tradition that started in 2010 at the Harris County Courthouse, this year’s event on Thursday, July 2, is expected to take place at more than 100 courthouses.

“Inside courthouses across Texas, criminal defense lawyers fight to protect the liberty of our fellow Americans,” event founder Robert Fickman said in a TCDLA press release. “So it is only right that the criminal defense bar stand shoulder to shoulder across Texas and hold readings of the Declaration of Independence. It is a good reminder to each of us of our oath and duty. It is a reminder to all others that the criminal defense bar has never been more united in our fight against any who would rob our countrymen of their liberty.”

A list of all scheduled readings organized by TCDLA defense lawyers will be posted tomorrow, June 30. For more information on the TCDLA, go to tcdla.com.

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

from Texas Bar Today http://ift.tt/1Hqupy9
via Abogado Aly Website

Texas lesbians denied marriage license because no checkbox for gay couples

Originally published by David Yates.

samesexThe U.S. Supreme Court may have ruled marriage is a fundamental right for all citizens Friday, but at least one Texas clerk is denying to issue martial licenses on the grounds their application has no checkbox for same sex couples.

Karen Wilkerson and Jolie Smith filed a complaint against Karen Phillips, in her official capacity as clerk for Smith County, on June 26 in the U.S. District Court for Eastern Texas, Tyler Division.

The plaintiffs are asking the court to order Phillips to issue a marriage license in light of the high court’s decision in the case of Obergefell v. Hodges.

Wilkerson and Smith contend they sought a marriage license from Phillips following the ruling.

However, the Smith County clerk refused to oblige the request solely on the grounds that the form the office used had separate sections for a “male” or “man” and “female” or “woman,” meaning the form only accommodates opposite sex couples.

“The true reasons for Defendant Phillips’ refusal to issue the license are prejudice against same-sex couples, to try to humiliate and shame the Plaintiffs, to deprive them and their relationship of the dignity to which they are by law entitled, and to inconvenience the Plaintiffs,” the suit states.

“The Defendant is just mean-spirited and petty.”

The plaintiffs contend they will suffer immediate and irreparable harm unless the court rules in their favor.

Tyler attorney Blake Bailey represents them.

Case No. 6:15-cv-00606

The post Texas lesbians denied marriage license because no checkbox for gay couples appeared first on Southeast Texas Record.

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

from Texas Bar Today http://ift.tt/1GI3auh
via Abogado Aly Website

Subject matter jurisdiction “grab bag”

Originally published by David Coale.

1.  Improper joinder when the acts of the nondiverse employee that allegedly tortiously interfered with the plaintiff’s contract were ratified by the employer.  Denson v. Beavex, Inc., No. 14-20534 (May 22, 2015, unpublished).

2.  No appellate jurisdiction when the district court administratively closed the case in favor of arbitration.  “[A]n order by the district court administratively closing a case is tantamount to a stay, and bars appellate review.”  Walker v. TA Operating, LLC, No. 14-41046 (May 22, 2015, unpublished).

3. “[A] district court cannot permissively abstain from exercising jurisdiction in proceedings related to Chapter 15 [cross-border bankruptcy] cases.”  Firefighters’ Retirement System v. Citco Group Ltd., No. 14-30857 (June 5, 2015).

4.  A lawyer who intervenes in a client’s case to protect a fee interest must independently establish diversity of citizenship and the requisite amount in controversy.  Samuels v. Twin City, No. 14-31203 (May 18, 2015, unpublished).


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

from Texas Bar Today http://ift.tt/1GI0m01
via Abogado Aly Website

New EPA Stormwater Permit Adds More Restrictions to Allowable Wash Water Discharges

Originally published by Carlos Moreno.

On June 16, 2015, the EPA published a notice of final permit issuance for the NPDES General Permit for Stormwater Discharges from Industrial Activities (commonly referred to as the Multi-Sector General Permit or “2015 MSGP”). Click here to see the Multi-Sector General Permit. Many permittees will understandably focus on any changes made to the specific requirements for their sector. However, permittees should also pay attention to a change in permit coverage that affect all sectors; specifically, the list of allowable non-stormwater discharges found in section of the 2015 MSGP.

The MSGP is designed to only cover certain stormwater discharges; however, the permit includes a limited number of non-stormwater discharges that are also authorized. The previous version of the MSGP included the following on the list of allowable non-stormwater discharges.

  • pavement wash waters where no detergents are used and no spills or leaks of toxic or hazardous materials have occurred (unless all spilled material has been removed)
  • routine external building washdowns that do not use detergents

The 2015 MSGP narrows the scope of these authorized non-stormwater discharges (emphasis added):

  • pavement wash waters where no detergents or hazardous cleaning products are used (e.g., bleach, hydrofluoric acid, muriatic acid, sodium hydroxide, nonylphenols), and the wash waters do not come into contact with oil and grease deposits, sources of pollutants associated with industrial activities (see part 5.2.3), or any other toxic or hazardous materials, unless residues are first cleaned up using dry clean-up methods (e.g. applying absorbent materials and sweeping, using hydrophobic mops/rags) and you have implemented appropriate control measures to minimize discharges of mobilized solids and other pollutants (e.g., filtration, detention, settlement)
  • routine external building washdowns/power wash water that do not use detergents or hazardous cleaning products (e.g., those containing bleach, hydrofluoric acid, muriatic acid, sodium hydroxide, nonylphenols)

In explaining the rationale for adding these additional restrictions, the permit fact sheet simply notes that “cleaning agents other than detergents…could clearly have the potential to cause water quality issues if discharged.” The agency is also concerned with the mobilization of particulates and other pollutants during washing activities, and included examples of appropriate control measures to minimize this.

One commenter asked EPA to define “hazardous cleaning products.” EPA declined to do so, but pointed to the examples in the permit itself as well as the definitions of “hazardous materials/substances” and “uncontaminated discharge” in Appendix A of the 2015 MSGP. The term “Hazardous Materials or Hazardous Substances or Toxic Materials” is defined in part as “any liquid, solid, or contained gas that contain properties that are dangerous or potentially harmful to human health or the environment,”while the term “Uncontaminated Discharge” is defined as “a discharge that does not cause or contribute to an exceedance of applicable water quality standards.” Unfortunately, these definitions do not shed much light on what cleaning agents are now prohibited under the MSGP. EPA also warns that “packaging claims regarding environmental safety (of cleaning products) are not a sufficient determinant of product suitability.” Faced with this uncertainty, permittees will need to be very careful about what cleaning products to use, or risk a regulator determining that one of its discharges is not authorized under the MSGP.

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

from Texas Bar Today http://ift.tt/1RLMXds
via Abogado Aly Website

Thursday, June 25, 2015

Jurassic World

Originally published by The Movie Court.

A new review from The Movie Snob.

Jurassic World  (B).  A one-sentence review would suffice: If you liked the other Jurassic Park movies (and don’t mind a certain lack of originality), you’ll like this one.  The corporate types have finally made a go of dino-cloning, so that mysterious Costa Rican island is now a successful dinosaur theme park.  But the public bores easily, so the park must constantly develop new and scarier species to keep the rubes coming back for more.  Naturally, corporate hubris gets a little come-uppance from Mother Nature.  Chris Pratt (Guardians of the Galaxy) is an able hero and velociraptor wrangler, but the script doesn’t really showcase his genial charm like Guardians did.  I liked Bryce Dallas Howard (The Village) in the role of the tightly wound corporate honcho who has to deal with the rampaging reptiles (and rescue her nephews, who happen to be visiting the park the same day things go wrong), but the movie has taken some feminist flak for not making her character more heroic.  Take the PG-13 rating seriously; there is some pretty bloody dino-carnage in this one.

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

from Texas Bar Today http://ift.tt/1GKPn9s
via Abogado Aly Website

If You’re On Salary You May Be Eligible for Overtime

Originally published by Vethan Law.

Overtime is a wonderful thing. That is, if you are eligible for it. If you are not eligible for overtime, you probably don’t think twice about it or wish you were eligible if you salaried job keeps you late everyday.

The vast majority of the population assumes that hourly paid jobs are entitled to overtime pay and salaried jobs are immediately exempt from overtime pay. However, this is actually not the case. There are certain instances in which a salaried employee can still qualify for overtime pay.

In fact, this entire subject has been quite the talk in recent history as in early 2014, President Obama signed a memorandum to update the Fair Labor Standards Act’s overtime rules regarding overtime. In short, the memorandum called for an increase in the amount that a person earns in which they could still be eligible for overtime.

Now there are plenty of professions and situations in which a salaried worker would be excluded. For example the nature of your job, or your job duties, can dictate whether you are eligible or exempt from overtime pay. For example, executives and administrative jobs are typically exempt under the FLSA’s overtime rules. Another example is an outside salesperson. Generally outside sales is considered an exempt job, whereas an inside salesperson is nonexempt. How you are paid also can play a factor in determining if you are an exempt or nonexempt employee.

However, the first way to determine if you are eligible or exempt from overtime is the dollar amount of your salary. Workers who earn $23,600 per year or less, are nonexempt from overtime pay, meaning that even though they earn a salary, they still may be eligible. This salary comes out to $455 per week. So salaried employees earning a weekly pay of $455 or less are still eligible for overtime pay.

Overtime pay is an important part of the job force. It provides extra income for those who put in the effort to work over 40 hours in a workweek. If you are in need of a Texas overtime lawyer, contact Vethan Law Firm by calling our Houston office at 713-526-2222 or our San Antonio office at 210-824-2220.

The post If You’re On Salary You May Be Eligible for Overtime appeared first on Vethan Law Firm.

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

from Texas Bar Today http://ift.tt/1JlZ8OY
via Abogado Aly Website

Google Attempts to Protect Victims from Revenge Porn Images

Originally published by Klemchuk LLP IP Blog.

Google has begun to take proactive steps to cut down on the posting of revenge porn, i.e., revealing images posted by an ex or hacker in an attempt to humiliate or extract money. According to Amit Singhal, Senior Vice President, Google Search, Google will “honor requests from people to remove nude or sexually explicit images shared without their consent from Google Search results.” To achieve that goal, sometime this summer Google will post an online form so victims of revenge porn can request removal from Google search results of links to specific websites.
Google’s new policy will not completely remove revenge porn images from the internet. Although the images would no longer be available in the search results, the website would still be accessible through the direc…

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

from Texas Bar Today http://ift.tt/1eJme5g
via Abogado Aly Website

Wednesday, June 24, 2015

Waiver, more waiver, and damages.

Originally published by David Coale.

A business dispute about a telephone service provider’s billing system leads to 2 holdings of broad interest, one procedural and the other substantive:

1A.  Waiver.  “Although [defendant] moved for a directed verdict at the close of evidence, it did not argue in its motion that the Supply Contract was unenforceable.”  Accordingly, under Fed. R. Civ. 50(b), that argument could not be raised post-trial.  (Here, in fact, because defendant took the opposite position about the contract in the directed verdict motion, judicial estoppel also barred the later argument.)

1B.  Waiver of Waiver.  When defendant relied on a certain letter agreement in its Rule 50(b) motion, and plaintiff “did not argue waiver in its response . . . [plaintiff] has forfeited its right to raise the waiver issue on appeal.”

2.  Speculative damages.  A “strained business relationship” between the parties supported a holding that plaintiff’s $10 million lost profits award, assuming six years of business dealings, was not proven with “reasonable certainty.”

Transverse LLC v. Iowa Wireless Services, LLC, No. 13-51098 (June 11, 2015, unpublished).

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

from Texas Bar Today http://ift.tt/1LvfbKM
via Abogado Aly Website

Void tax sale?

Originally published by David Coale.

During the 1980s, the Jefferson Group failed to pay both a large loan and its property taxes.  The lender failed and the RTC/FDIC acquired the deed of trust for the loan, which it later assigned to another entity.  The local school district foreclosed on the property in 1990.  Many years later, a dispute arose between the entity who acquired the deed of trust, who asserted a lien on the (now-developed) land, and the owners who traced title to the foreclosure sale.  The district court dismissed on limitations grounds.  The Fifth Circuit concluded that if the RTC had not effectively consented to the foreclosure sale, then it violated 12 U.S.C. § 1825(b)(2), which meant that the sale “is, without qualification, ‘null and void.’”  This would mean that the current owners could not assert a limitations defense.  The Court remanded to consider whether a violation had occurred, in light of this conclusion about the effect of a violation.  CAP Holdings, Inc. v. Lorden, No. 14-50397 (June 22, 2015).

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

from Texas Bar Today http://ift.tt/1JiZx4I
via Abogado Aly Website

How an Expert Can Affect Your Oil and Gas Claim

Originally published by Charles Sartain.

Posted by Charles Sartain

expertCo-author Matthew Wheatley

Your well consultant just cemented 10,000 feet of tubing inside the casing of your eight million dollar well, … a neighboring operator frac’ed his Eagle Ford well into your Austin Chalk completion, thereby trespassing and contaminating your well. Righteousness and vengeance are yours. The jury will draw and quarter the offender.

Not So Fast

Texokan Operating, Inc. v. Hess Corp. is a reminder: To obtain the justice you so richly deserve you need a reliable expert to testify, and your expert must jump through procedural hoops before his testimony will deliver you to the judicial promised land. Texokan’s suit for well contamination required engineering expertise.

The Question

Under what circumstances are an expert’s opinions admissible?

What Doesn’t Work

Plaintiff’s expert determined the “loss of value” of wells based on his “forecast” of future production. He calculated this forecast using historical data from the wells, oil prices at the time, operating expenses, royalties, taxes, and a present value discount factor based on his “experience and education” evaluating “thousands” of oil wells. He admitted that his approach contained a huge amount of subjective judgment.  He had probably used two or three different approaches but could not remember exactly how he reached his conclusions.

Among other deficiencies, there was no evidence that his approach had been subjected to testing or peer review, he could not identify any standards controlling his procedure, he applied SEC standards inconsistently when calculating damages, and he failed to show how his purely subjective method is generally accepted.

What Works

An expert’s testimony must be the product of reliable principles and methods. Factors are:

  • Whether the theory or procedure has been subjected to testing;
  • Whether it has been subjected to peer review and publication;
  • The rate of error and the existence of standards controlling the theory or procedure; and
  • Whether it has attained general acceptance.

The proponent must:

  • Show that the expert has reliably applied the principles and methods to the facts of the case. The court is not required to accept an expert’s opinion if it is connected to data only by his or her “ipse dixit’, which means “I am an engineering god; trust me.” It is also Latin for “because I said it is so”.
  • Provide evidence establishing that the expert’s opinions were the product of reliable principles and methods reliably applied to the case.
  • Show that the expert sufficiently applied his method to the facts of the case. Here, he did not independently evaluate well expenses. He could not remember time frames or the meaning of certain dates in his calculations. Materials Texokan later cited textbooks to bolster his reasoning that were not in the record or referenced anywhere in the expert’s own reports or testimony.

How (Not) to Use An  Expert – Nine Sure-Fire Ways to Scuttle Your Case:

  • Don’t bother to understand the nature of the expertise you need. A reservoir engineer is just like a completions guy is just like a frac guy, right?
  • Hire a hack. He’s the one who pretty much promises a result before he has seen the materials.
  • Don’t waste time reading his writings on the subject. He would never contradict himself for the sake of a fee, would he?
  • Hire your expert late in the proceeding. That saves time and money. You don’t need his help in determining what he might need from the other side to formulate his opinions. Last minute is preferred.
  • Limit the budget. All you need is for him to throw something together just to scare the other side into settling.
  • Give him the materials you think he needs, not what he asks for.  The bad stuff can only hurt you, correct?
  • Assume the other side is too stupid to figure out what you’re up to.
  • For God’s sake don’t spend too much time in depo prep.  You’ve both done this before, so what’s to gain?
  • When all seems lost at trial, devise and present new and heretofore undisclosed theories, claiming you couldn’t have thought of them any sooner.

Good luck!

Some of you know that I recently had an incident with a crawfish pot. Today’s musical interlude is dedicated to myself.


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

from Texas Bar Today http://ift.tt/1HejWri
via Abogado Aly Website

Fraud and the Detection of the Sources for Bribery

Originally published by tfoxlaw.


Detection of FraudIn a recent White Paper authored by Peter Smith for OFS Portal, entitled “Procurement and Fraud in the Supply Chain”, where he examined “fraud linked to procurement and supply chain activities.” Smith focuses on where fraud can occur in the procurement process. From this starting point, he suggests “mitigating actions that organisations can take to protect themselves against fraud.” I found this article to be an excellent review of Supply Chain (SC) activities which the Chief Compliance Officer (CCO) or compliance practitioner could put to good use in reviewing their company’s Foreign Corrupt Practices Act (FCPA) anti-corruption and anti-bribery regime.

A. The Problem – How Does Fraud Happen?

Smith starts by classifying fraud in way which will assist the reader in understanding how it occurs. He believes there are “three critical factors to consider: the perpetrator(s), the plan and the point of failure.” The perpetrator is the one “behind the fraud and either executes it directly or through others.” In the anti-corruption world of the FCPA, this can be through an agent or a supplier who is working to help execute the fraud.

Interestingly, in the area of these third parties (and hence the greatest area of risk for FCPA compliance practitioners to consider) Smith notes that “The plan and point of failure factors are linked in that often the plan relies on the point of failure. In other words, most frauds take advantage in some weakness in the process, technology, policy or systems of combination of those.” Smith writes that there are three key phases “in the procurement life-cycle that can be considered; (1) the supplier selection phase; (2) the contract negotiation and award phase; and (3) the contract delivery management phase.”

Phase I – Supplier Selection and Qualification

This phase should be well known to the compliance practitioner as a part of the third party life-cycle management step denominated as due diligence. But Smith asks that you consider factors other than simply whether someone is on the Denied Parties List (DNP) or is a Politically Exposed Person (PEP). He suggests that you consider misrepresentation by the third party in the nature of “concealing the true nature of its business, history or ownership when it bids for the work.” He also points out that through collusion and cartels, persons or entities can work to control a market. If you did any work with Petrobras over the years, you will certainly recognize that many if its approved suppliers operated in this manner. Given what we now know about how corrupt Petrobras was, this is not too surprising.

But Smith also suggests that employees may be involved in skewing the selection process towards a corrupt agent or other partner. He recommends reviewing the bid process to see if there was bias in the competition, which would push an otherwise arms-length award to a corrupt partner. This could occur through biased competition through specification, where an employee would “construct a specification that makes it likely or inevitable that a particular supplier will win the competitive process.” The next is biased competition through tailoring the evaluation process which gives weight to the specific strengths of a corrupt third party. Finally, Smith points out that there can be biased competition through information leakage when a company employee will leak confidential information to a third party to give them an advantage in the bidding process.

Phase II – Contracting

Smith says the “next critical point at which fraud can take place is during the contract negotiations and in agreeing the detailed terms and conditions.” Moreover, Smith believes this stage is critical if often overlooked because “the seeds are often sown at the contracting stage.” Scenarios can include where there is a certain level of ‘local content’ required “but without any clear contractual mechanism to explain how it will be measured or policed.” As any CCO or other FCPA compliance practitioner would recognize, local content is one of the easiest ways to get into FCPA high risk so managing that risk is critical. I found Smith’s concern with setting out the clear legal terms and conditions around any such requirement as a good way to manage the high risk.

Phase III – Contract Delivery and Management

Here Smith laid several different fraud schemes which could facilitate a bribery plan. The first is fake invoices which can rely on “poor processes within an organisation” to spot. However this scheme can also rely on a company insider to approve such fabrications. Next is “volume over-invoicing”. In this scheme, while a supplier does supply some goods or services, the invoice is raised for more than has been delivered. If there is a scheme to create a pot of money to be used to fund bribes, there will need to be an internal company accomplice to “smooth the way by authorizing receipts or invoices.” Next there is “price-related over-invoicing” the third party will over-price the goods or services, above what is allowed under the contract. Another scheme set out by Smith is “invoice diversion” where “a legitimate payment that should go to a certain supplier is diverted to a third party fraudulently.” Another scheme can simply be to ease the contract terms and conditions which allow the third party to receive a benefit with nothing in return being delivered back to the company. Finally, there is what Smith details as one of the “toughest frauds to detect”, that being the delivery of lower quality products than is contractually specified.

B.The Solution – How to Reduce Fraud

Smith believes that fraud prevention can be built around a troika of concepts. (1) You need to have “effective procurement and spend management policies in place. (2) You must “use appropriate and robust processes”. (3) Finally “applying the right technology to support and manage those processes.” In his paper he followed the same outline on how to reduce the instances of fraud.

Phase I – Supplier Selection and Qualification

While a clear procurement policy is the starting point, it is only the starting point. Having a transparent process is important as well as adequate supplier qualification details. He notes that multiple sign-offs should be in place to ensure that one person does not control the entire process. This should also be incorporated into the communications trail with the competitors to ensure that no one third party receives confidential information. Obviously an appropriate level of due diligence should be applied to confirm that not only are the third party’s who they represent themselves to be but that they are also qualified to do the work or deliver the services. Finally, there should be controls around onboarding “so that firms who are actually going to be suppliers go through more rigorous checks before they are accepted onto” the Vendor Master List.

Phase II – Contracting

Obviously the starting point for any business relationship should be a well-drafted contract. However, for larger organizations Smith believes that “a contracts database or contract lifecycle management system is essential.” To the greatest extent possible there should be standard compliance and legal terms and conditions, coupled with an “appropriate level of sign-off and approvals management for contracts.” Finally, segregation of duties (SOD’s) “to make sure that there are checks and balances and that no one person holds too much power in the process.”

Phase III – Contract Delivery and Management

As I often say in the lifecycle management of third parties, the real work begins when the contract is signed. Smith believes that many of the routes of fraud, “can be closed off by taking a few precautions” which include some of the following steps. First and foremost is “no purchase order, no pay” but this also means there should be an invoice from the vendor which is matched to the contract for accuracy. Once again checks and balances, SOD’s for sign-offs and approvals must be built into your payment system. There should be controls around changes to the contract and, more importantly, changes to any payment details. Lastly, ongoing oversight and monitoring through controls analytics and auditing should be employed on the back end to verify delivery of goods or services.

I found Smith’s White Paper to be an excellent review for the CCO or compliance practitioner around not only the mechanism of how fraud occurs but a review of the techniques for fraud prevention. While his concepts may seem like a review for the compliance practitioner, it also allows you to think through how corruption might take place in your organization. The briber has to get the money from some source and Smith’s White Paper can give you insights on where you might look.

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, 2015


Filed under: Best Practices, Chief Compliance Officer, Compliance, compliance programs, FCPA, Fraud, Supply Chain, Third parties Tagged: best practices, compliance, compliance programs, FCPA, Foreign Corrupt Practices Act

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

from Texas Bar Today http://ift.tt/1GlPVAb
via Abogado Aly Website

Texas Civil Justice League summarizes 84th Legislature

Originally published by David Yates.

2013-01-08-Capitol-83rdLegislature-4With so many new faces arriving at the Austin Capitol in January, the shape the 84th Legislature would take seemed unclear at the time, but with the session officially in the books, one tort reform group is giving A’s across the board.

On June 22 the Texas Civil Justice League released its summary of the 84th Legislature, stating that the group’s primary legislative program consisted of five major pieces of legislation, four of which passed and were signed, with the fifth set to be addressed in a case pending before the Texas Supreme Court.

TCJL also listed several other bills signed into law that were supported by the group, including Senate Bill 1457, relating to bad faith claims of patent infringement; providing a civil penalty.

“SB 1457 … deals with the high volume of patent litigation in federal district court in Marshall, Texas, and the need to protect consumers from aggressive ‘patent trolling’ by law firms.

“Typically, the firms send mass demand letters threatening businesses with patent infringement lawsuits if they don’t pay a specified ‘settlement’ amount. While everyone agrees that federal law virtually pre-empts most patent law issues, several states have enacted statutes imposing liability on a patent troll for ‘bad faith’ patent infringement claims.

“We can add Texas to the list of these states taking action to shut down these operations. SB 1457 gives the attorney general the authority to sue a bad faith patent troll for up to $50,000 in civil penalties per violation.”

Gov. Greg Abbott signed off on the measure June 17.

The four primary measures supported by TCJL that were passed and signed include:

– HB 1794/SB 1509 (good faith remediation) The new law will limit the civil penalty for polluters to $4.3 million;

– HB 1692/SB 1942 (forum non conveniens) A measure to stop out-of-state plaintiffs from filing in Texas;

– HB 1113/SB 941 (standing in contested cases) A new law enforcing the Texas Commission on Environmental Quality’s right to grant or deny requests for contested case hearings in licensing and permitting matters; and

– HB 1247 (contested case procedures) A signed bill to streamlining contested case hearings on environmental permits.

The post Texas Civil Justice League summarizes 84th Legislature, calls patent ‘troll’ reform measure noteworthy appeared first on Southeast Texas Record.

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

from Texas Bar Today http://ift.tt/1fB5vkK
via Abogado Aly Website

HNBA introduces high school students to law through LEAP

Originally published by Torrie Bethany.

The Hispanic National Bar Association Legal Education Fund is hosting the 2015 Legal Education Action Program (LEAP) this week at Rice University in Houston.

LEAP introduces Hispanic high school students to the legal system by enrolling and providing scholarships to selected students from diverse backgrounds across the United States.

The program also provides students the opportunity to meet with national and international business leaders, lawyers in private practice, government lawyers, government agency officials, state and federal judges, and law professors. Throughout the program, participants learn of the many different careers they can pursue with a law or graduate degree by interacting with leaders who resemble their diverse ethnic and socioeconomic backgrounds.

HNBA Legal Education Fund President Benny Agosto Jr. of Abraham, Watkins, Nichols, Sorrels, Agosto, and Friend will host a panel discussion Wednesday on the practice of law in a small firm. The program’s goal is to equip and inspire students to become leaders, he said. “The LEAP program guides students to understand that there are key players that have the capacity to serve as leaders trained in law in our nation’s governance, judicial, and legal systems,” Agosto said.

The HNBA is a nonprofit association of professionals in the legal profession, representing the interests of more than 100,000 Hispanic-American attorneys, judges, law professors, and law students in the United States and Puerto Rico. For more information, visit hnba.com.

Pictured: HNBA Legal Education Fund President Benny Agosto Jr. speaks Sunday at the Legal Education Action Program in Houston. (Photo courtesy of Benny Agosto Jr.)


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

from Texas Bar Today http://ift.tt/1fB5ugK
via Abogado Aly Website

Inadequate pleading of scienter

Originally published by David Coale.

Guaranty Bank resized-750The plaintiffs in Owens v. Jastrow sued officers of Guaranty Bank for securities fraud, alleging that their SEC filings and public comments misstated the vulnerability of the bank’s mortgage-related holdings.  No. 13-10928 (June 12, 2015).  The Fifth Circuit affirmed dismissal in a detailed opinion, holding, procedurally, that:

  • “A district court may best make sense of scienter allegations by first looking to the contribution of each individual allegation to a strong inference of scienter, especially in a complicated case such as this one.  Of course, the court must follow this initial step with a holistic look at all the scienter allegations”; and
  • “Group pleaded” allegations were properly disregarded, although the Court declined to adopt “a strict rule requiring outright dismissal for any group or puzzle pleading[.]”

And on the merits:

  • Knowledge of undercapitalization showed motive and opportunity, but does not by itself establish scienter;
  • “Defendants’ disclosure of the ‘red flags’ [cited by Plainitiffs] and candidness about the uncertainly underlying its models neutralize any scienter inference from ‘red flags’”; and
  • “An inference of severe recklessness is more likely when a statement violates an objective rule than when GAAP permits a range of acceptable outcomes.”

Therefore: “Considered holistically, plaintiffs’ allegations of knowledge of Guaranty’s undercapitalization, a large misstatement, red flags, and ignorance of internal warnings, do not raise a strong inference of severe recklessness that is equally as likely as the competing inference that [Defendants] negligently relief on the AAA ratings and believed that Guaranty’s internal models were accurate.”

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

from Texas Bar Today http://ift.tt/1fB5u0k
via Abogado Aly Website

Fracking Issues in Oil and Gas Production

Originally published by On behalf of Abraham, Watkins, Nichols, Sorrels, Agosto & Friend.

Fracking, or hydraulic fracturing, is a method of removing oil and gas from shale by pumping high-pressure liquid, chemicals and sand into the rock to open it up so that the oil or gas can be extracted. Several Texas cities tried to prevent this method of obtaining oil and gas from shale deposits, citing pollution concerns.

There have been incidents of equipment failure that allowed water, chemicals and oil to spill onto the ground or into adjacent waterways. This happened in Arlington a few months ago, although overall, such occurrences are rare. However, the problems with fracking go beyond pollution.

Fracking is thought to result in earthquakes caused by the force of the water, chemicals and sand injected as deep as a mile or more triggering disturbances far underground. These earthquakes occur in places where such events seldom if ever occur, and building codes are not set to prevent damage even at lower Richter scale measurements.

Another problem related to fracking is the release of methane gas, a powerful greenhouse gas that generates more atmospheric heat than carbon dioxide. Although the technology exists to capture the gas before it is released, the technology is expensive and oil and gas producers have fought hard against imposing a requirement to capture methane before it is released into the air.

Apart from long-term problems such as methane gas release into the atmosphere and earthquakes, the use of fracking technology results in other environmental problems. Even when everything works as it should, the transport of water, sand and chemicals to the oil shale where they will be used burns significant amounts of fuel. The use of millions of gallons of water, especially in areas where water is scarce, has raised the ire of environmentalists.

Increased amounts of methane have been found in drinking water near fracking sites. Some believe that increased rates of neurological damage and respiratory problems near wells that employ fracking are the result of methane leaching into the drinking water.

The cost of the transport, in terms of both fuel and the danger of chemical spills, is significant. Many of the chemicals used in fracking are known carcinogens. Even when everything works as it should, workers can be exposed to lethal substances.

It is not surprising that Texas passed a law prohibiting local bans on fracking. After all, Texas is oil country. However, it is possible that in years to come, the cost of fracking will outweigh the benefits. Who will bear the increased expense of illness, injuries and property damage? That remains to be seen.

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

from Texas Bar Today http://ift.tt/1SK7TE8
via Abogado Aly Website

Not Guilty: What Every Law Student Should Know About Preparing A Defense

Originally published by Bob Kraft.

Not Guilty What Every Law Student Shuld Know About Preparing a Defense

There are two sides to every story in a criminal case. Of course, the prosecution has the burden of proof beyond a reasonable doubt, but raising reasonable doubt is the job of the defense attorney. Credible reasonable doubt is raised through preparation of the defense. Every criminal defense attorney must take these steps in their preparation of a client’s defense. These tips can help a first time law student find their footing in defense cases and find ways to connect in the courtroom.

The Stack of Papers
At the beginning of any criminal prosecution, the defense attorney is provided with appropriate police reports, witness statements, evidence reports, and the like. A copy of the charging document is also provided. This stack of papers must be closely scrutinized to make sure it adds up to what the client is charged with.

Create a Timeline
The timeline helps attorneys understand the facts alleged by the prosecution in any case. It can even be used as a very reasonable doubt when the prosecution’s case doesn’t add up on the clock and calendar. According to Suhre & Associates, a timeline can be invaluable in a DUI case. Police are required to administer admissible blood alcohol testing after certain time periods. Timelines can also be instrumental in showing that a person may well not have been over a .08 BAC at the time they were alleged to be operating a motor vehicle while under the influence.

The Charging Document
Look at this document carefully, and break down the controlling statutes into their elements. Determine whether the conduct alleged of your client is consistent with the elements of each of the statutes. The prosecution must prove each and every element of each and every statute, leaving you free if they miss any piece.

Preparation of the Defense
Prepare a viable theory of defense. Address inconsistencies in the prosecution’s case and fill them with reasonable doubts. If you can blow a hole in the prosecution’s case with a single reasonable doubt, go ahead and raise it. That doesn’t happen very often though. Raise several reasonable doubts with the state’s case. Plant those seeds for jury deliberations. Always maintain a professional demeanor. Juries assess your credibility too, and that can impact the outcome of your client’s case. Speak plain English and not legalese, since you want the jury to identify with you in common sense terms.

The courtroom attorney you want to be is at their best when they’re on their feet. Ten percent of that is inspiration, and the other 90 percent is preparation. Preparation in your office is what makes you a sharp courtroom lawyer and can catapult you into a real career.

This article is from Brooke Chaplan, a freelance writer and blogger. She lives and works out of her home in Los Lunas, New Mexico. She loves the outdoors and spends most her time hiking, biking and gardening. For more information contact Brooke via Twitter @BrookeChaplan.

The post Not Guilty: What Every Law Student Should Know About Preparing A Defense appeared first on P.I.S.S.D. — Personal Injury, Social Security Disability. Dallas Texas Lawyers.

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

from Texas Bar Today http://ift.tt/1fB5uNN
via Abogado Aly Website

Transparency Is Good For Estate Planning

Originally published by Gerry W. Beyer.

Planning for death can be stressful and emotionally charged, which is why people often do not like to discuss this subject. It is important to overcome these difficulties and be open and honest with family members about estate planning. If…

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

from Texas Bar Today http://ift.tt/1GpQnND
via Abogado Aly Website

What America can Learn from E-Discovery in Australia

Originally published by craigball.

G’Day, mate. How ya going? That’s the customary greeting in the Land Down Under, and it encapsulates why I love coming …

Continue reading

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

from Texas Bar Today http://ift.tt/1GpQmJQ
via Abogado Aly Website

Monday, June 22, 2015

Blended Families Creating New Complexities For Estate Planners

Originally published by Gerry W. Beyer.

People often think the issues surrounding an aging population, but estate planning for blended families can also create complicated situations. A 2011 Pew Research Study shows that 42% of adult Americans have step-relations. Planning for the distribution of personal sentimental…

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

from Texas Bar Today http://ift.tt/1K78lsY
via Abogado Aly Website

No RICO, but maybe retaliation.

Originally published by David Coale.

clkZastrow, owner of an auto repair shop, testified in an arbitration about problems with a CLK sedan sold by Mercedes Greenway.  He later sued Mercedes Greenway himself, alleging that it “threatened him to prevent him from testifying and then, with the assistance of [a lawyer], retaliated against him by refusing to sell him auto parts after he gave his deposition.”   The Fifth Circuit affirmed the dismissal of his RICO claims, finding (1) no pattern of racketeering activity, (2) no continuity of racketeering activity, and (3) no enterprise separate from the alleged racketeering activity.  It reversed dismissal of Zastrow’s claim for retaliation under 42 U.S.C. § 1981 — while noting that “[w]e are skeptical” about its merits, the Court found that the defendant had not fully engaged the burden-shifting analysis that governs this type of claim.    Zastrow v. Houston Auto Imports Greenway Ltd., No. 14-20359 (June 12, 2015).

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

from Texas Bar Today http://ift.tt/1Lxh4U8
via Abogado Aly Website

Closely-Held Shareholder Derivative Actions are Alive and Well in Texas

Originally published by Drew York.

business people around a tableAfter 30 years of running his family-owned business, Hillbilly Oil Co., Jed Clampett decided to retire in 2013. The board of directors elects Jethro Bodine as Hillbilly’s President and Elly May as Vice President. Both Jethro and Elly May sit on the company’s board of directors. Soon after taking over, Jethro is presented with a proposed lease for the company’s land in Oklahoma. The operator offers Hillbilly Oil above-market bonus payment and royalty. Jethro turns it down though, thinking the company is better off drilling the land itself while oil prices continue to rise. Soon after Hillbilly begins drilling oil prices tank, causing the company to lose $5 million. Jed can’t believe to learn that Jethro rejected the proposed lease, and soon learns that Jethro bought the drilling equipment from a company that he has a 50% interest in and paid double market price, but never disclosed his interest to the other board members. He decides to file a derivative lawsuit against Jethro. Jethro responds to the lawsuit claiming the “business judgment rule” protects him from any liability and that Jed’s lawsuit also fails because he did not make a demand on the corporation. Is Jethro right?

Explaining Closely-Held Corporations and Shareholder Derivative Actions

A closesly-held corporation has fewer than thirty-five shareholders and its shares are not listed on a national securities exchange. Typically the shareholders of closely-held corporations are family members, but that is not a requirement to make the corporation “closely-held.” A shareholder derivative action involves a corporation’s shareholder bringing suit on behalf of the corporation against its officers or directors.

The Business Judgment Rule

The business judgment rule comes up in two contexts. First, it protects officers and directors from a shareholder’s derivative lawsuit for acts that are within the honest exercise of their business judgment and discretion. In other words, officers and directors are protected from liability for past actions that are “negligent, unwise, inexpedient, or imprudent.” Second, the business judgment rule applies to the board of directors’ decision of whether to pursue the corporation’s cause of action against the officers or directors.

The Texas Supreme Court recently held that while the business judgment rule applies to the merits of the shareholder’s lawsuit – that is, the shareholder must prove that the officer or director’s past action was fraudulent, oppressive, or an abuse of power – a shareholder in a closely-held corporation is not required to make a pre-suit demand on the corporation. Thus, unlike a shareholder of a publicly traded corporation, a shareholder of a closely-held corporation does not have to prove that the corporation violated the second instance of the business judgment rule: that the corporation’s board of directors acted fraudulently, oppressive, or abused its power in deciding not to pursue a lawsuit against one of its officers or directors for alleged mismanagement.

Tilting the Scales in Your Favor

Because Hillbilly Oil is a closely-held company, Jethro loses his argument that Jed failed to make a pre-suit demand on the corporation. And because Jethro engaged in a transaction in which he had a conflict of interest without disclosing that conflict to Hillbilly’s board, his “business judgment rule” defense likely fails as well. Minority shareholders in closely-held corporations like Jed should exercise their rights to bring derivative actions when the corporation’s officers and directors engage in abusive or oppressive activities.

The post Closely-Held Shareholder Derivative Actions are Alive and Well in Texas appeared first on Tilting the Scales.

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

from Texas Bar Today http://ift.tt/1K7Yt3K
via Abogado Aly Website