Thursday, December 29, 2016

Opinions, Dec. 29, 2016: You Say Tomato, I Say Contractual Alimony

Originally published by mkhtx.

Happy new year from the Houston Family Law Appeals Blog!

The First District Court of Appeals released its memorandum opinion in Barger v. Barger, No. 01-15-00659-CV this morning which concerns the interpretation of multiple contractual alimony agreements.

Cari and Keith Barger divorced in 2007. At the time they had two minor children. Their agreed decree included provisions for Keith to pay contractual alimony. The contractual alimony provisions also provided for the termination of alimony if Cari remarried or cohabitated with somone “in a conjugal relationship.” In 2009, the parties renegotiated the contractual alimony and signed a Binding Informal Settlement Agreement which included a schedule by which Keith would pay Cari $815,000 over time. This amount would represent the total amount of child support, college payments for their children, and contractual alimony. On March 3, 2010, the trial court entered a reformed order which was based on the settlement agreement. The reformed order did not include a remarriage or cohabitation clause.

In April 2010, Cari remarried, though Keith claimed he learned of the remarriage a year later.

Keith made payments of $3,000 per month from May 2010 until May 2014. In July 2014, Cari filed an enforcement action against him. In March 2015, the trial court heard Cari’s enforcement, and, after comparing the original decree to the reformed order, found the contractual alimony provisions of the reformed order were ambiguous. The trial court then held an evidentiary hearing to determine what the parties’ intention was in omitting the marriage or cohabitation provision from the reformed order.

At issue is the marriage or cohabitation clause (which provided for the termination of the contractual alimony) which was in the original decree but was not in the reformed order. Keith argued that the provision was still valid because the reformed order stated “All other terms of the prior orders not specifically modified in this order shall remain in full force and effect” and the reformed order did not mention the marriage/cohabitation clause. Cari argued that the marriage or cohabitation clause was a terminating event in the original decree specifically modified by the reformed order.

The trial court found that the parties did not intend for the marriage or cohabitation clause to be of continued validity in the reformed order and clarified the reformed order. The reformed order had stated that its intent was to “restructure the contractual alimony provisions set forth in the Agreed Final Decree of Divorce dated October 19, 2007; which shall be reformed as set forth herein.” The trial court revised the reformed order to clarify that “these modifications shall reform and restructure all the provisions contained in the Agreed Final Decree of Divorce dated October 19, 2007, as relates to contractual alimony.” In other words, the marriage/cohabitation clause was no longer in effect because it was not in the reformed order.

Keith appealed, alleging three issues.

First, he argued the trial court erred by not issuing findings of fact and conclusions of law. The Court of Appeals held that the trial court did err by not issuing FF/CL, but the error was harmless because the lack of FF/CL did not prevent Keith from presenting his legal challenge alleging a lack of ambiguity in the reformed order or the propriety of the trial court’s clarification of that order.

In his second issue, Keith argued the trial court erred by concluding the reformed order was ambiguous. The test for ambiguity, the Court of Appeals noted, is whether there is more than one reasonable interpretation of the contract. The Court of Appeals observed that Cari’s interpretation of the reformed order was reasonable but pointedly did not reach whether or not Keith’s interpretation was reasonable because the result was the same either way: 1) If Keith’s interpretation was unreasonable, then the trial court did not err by applying the unambiguous reformed order in Cari’s favor. 2) If Keith’s interpretation was reasonable, then the trial court did not err in finding after an evidentiary hearing that the parties intended to remove the marriage or cohabitation clause.

In his third issue, Keith argued the trial court erred by substantively changing the parties’ agreement because, according to Keith, the parties agreed the reformed order would not supersede the marriage/cohabitation clause. The Court of Appeals held that because the trial court found that the parties intended to remove the marriage or cohabitation clause, it did not err in clarifying the order.

The trial court was affirmed.

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Blogging discussion to be held at AALS annual meeting

Originally published by Gerry W. Beyer.

The 2017 Annual Meeting of the Association of American Law Schools is being held next week in San Francisco. Among the hundreds of presentations will be a program on Building and Sustaining Academic Communities Through Blogging and Other Tools on…

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Do All Physician Non-Competes in Texas Require a Buyout Provision?

Originally published by Robert Wood.

Under Texas law, non-compete agreements involving a physician in some situations must include a handful of provisions (“requirements”) in order for the non-compete to be enforceable.  One such requirement is that a physician non-compete agreement must contain a buyout provision.  When must a buyout provision be included? Are requirements like buyout provisions required in all…
Read more

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Will the NCAA Consider Cheerleading a Sport?

Originally published by Christian Dennie.

A common question when addressing Title IX is whether cheerleading is a sport. Colleges and universities have argued that cheerleading is a sport for the purposes of Title IX and, specifically, have argued  competitive cheer teams are engaged in intercollegiate athletic competition.  In Biediger v. Quinnipiac University, the United States District Court, District of Connecticut (“District Court”) ruled and the Second Circuit affirmed that the thirty (30) roster positions for competitive cheerleading members could not be counted for Title IX purposes because the activity did not “yet” afford women genuine participation opportunities in a varsity sport.  The District Court stated “acro lacks what every other varsity men’s team sponsored by Quinnipiac enjoys: the chance to participate in an NCAA-sponsored championship.”  The District Court further stated acrobatics and tumbling are not recognized by the NCAA as a sport or an emerging sport. 

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Learn from These Celebrities’ Estate-Planning Mistakes

Originally published by Gerry W. Beyer.

Average Americans make estate-planning mistakes all the time, but when a celebrity makes them, we are sure to hear about it, and each story can leave us with some estate-planning wisdom. The biggest lesson of 2016 is one that we…

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FCPA Compliance Report-Episode 296, Mike Volkov on the Odebrecht and Teva enforcement actions

Originally published by tfoxlaw.

In this episode Mike Volkov and myself take a deep dive into the Odebrecht/Braskem and Teva FCPA enforcement actions. We review the underlying facts, the conduct of the parties, the results obtained and what it all means for the compliance practitioner going forward.

The post FCPA Compliance Report-Episode 296, Mike Volkov on the Odebrecht and Teva enforcement actions appeared first on Compliance Report.

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Macaroni & Cheese Recalled for Salmonella Contamination

Originally published by Kristin Pearson.

macaroni cheese salmonella

TreeHouse foods Inc. has recalled certain macaroni and cheese cup products. According to the recall notice, the product contains cheddar cheese seasoning that may be contaminated with Salmonella.

According to the company, it was notified by a supplier that the milk powder used in the product seasoning may potentially be contaminated with Salmonella, a bacteria that can cause diarrhea, fever and abdominal cramps.

In some cases, however, diarrhea may become so severe that the patient needs to be hospitalized. Those at high risk of hospitalization include infants, the elderly, and individuals with impaired immune systems.

The product being recalled with distributed nationwide, and was sold in retail stores.

The following products are affected:

  • Big Win Original Macaroni & Cheese Dinner, UPC 001182258403
    • Best By Date:
      • 10/24/2017
      • 10/25/2017
  • Cheese Club Express Mac Macaroni & Cheese Dinner. UPC 004149817167
    • Best By Date:
      • 10/20/2017
      • 10/21/2017
      • 10/22/2017
      • 10/23/2017
      • 10/28/2017
      • 10/29/2017
      • 10/31/2017
      • 11/1/2017
      • 11/2/2017
      • 11/3/2017
      • 11/4/2017
      • 11/10/2017
      • 11/11/2017
      • 11/16/2017
      • 11/17/2017
      • 11/18/2017
      • 11/21/2017
      • 11/22/2017
      • 11/23/2017
      • 11/28/2017
  • Great Value Macaroni & Cheese Original Cups
    • Best By Dates
      • 10/18/2017
      • 10/19/2017
      • 10/21/2017
      • 10/22/2017
      • 10/26/2017
      • 10/27/2017
      • 10/28/2017
      • 11/3/2017
      • 11/6/2017
      • 11/7/2017
      • 11/17/2017
      • 11/18/2017
      • 11/19/2017
      • 11/20/2017
      • 11/21/2017
      • 11/22/2017

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Former Rutger’s University Football Player Files Concussion Lawsuit

Originally published by Jeff Raizner.

Raizner Slania filed a lawsuit on behalf of a former Rutgers University football player against the National Collegiate Athletic Association (NCAA) and the American Athletic Conference (AAC) for failing to educate student-athletes on the long-term effects of repeated concussions sustained during play and for failing to provide appropriate medical treatment for concussions.

The plaintiff played for The State University of New Jersey, also known as Rutgers University, as a nose guard and defensive tackle from 2003 to 2005. During his time playing for the university, the plaintiff recalls suffering from many concussive and sub-concussive hits during both practices and games. The plaintiff specifically remembers being hit so hard during games that he saw “stars” or just went “black.”

During his time playing football, the NCAA and the AAC failed to adopt or implement adequate concussion management safety protocols or return to play guidelines. After each concussive hit, the plaintiff was quickly returned to the game without receiving the necessary medical treatment required to help mitigate the damage from repeated head impacts.

As a result of his time playing for Rutgers, the plaintiff suffers from severe headaches, sleeping problems, memory loss, light sensitivity, and other debilitating issues.

The NCAA was established to improve “the experiences of student-athletes – on the field, in the classroom, and in life.” The organization currently governs over 400,000 student athletes from universities across the country. However, despite the NCAA’s commitment to the health and well-being of its student-athletes, the NCAA and the AAC put profits before players in the management of concussions.

The NCAA and AAC make millions of dollars each year off of football programs. Despite the financial success of the college football program, very little care was taken to protect the long-term health of the athletes responsible.

Raizner Slania: NCAA Concussion Lawsuits

If you or someone you love sustained a concussion while playing football for an NCAA regulated team or conference, the experienced trial attorneys at Raizner Slania can explain your legal options and protect your rights. Our consultations are free and we work on a contingency fee basis, so you won’t owe us anything unless we help you recover compensation. Call us today.

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December 29, 1845: Texas Achieves Statehood

Originally published by Heather Holmes.

1483030624053On this day in 1845, Texas became the 28th state of the United States of America. Texan voters supported annexation as early as 1836, but opposition in the U.S. was strong. After years of heavy debate, Texas finally achieved statehood.

The Harris County Law Library has been recognizing this important date all month long with an exhibit in the Law Library lobby. A new exhibit will take its place at the start of the new year, but many of the featured items can be viewed online, including sections from Unites States Statutes at Large that document the annexation, as well as an 1844 broadside of the annexation debatea political cartoon depicting the marriage of Texas and the United States, and an early Texas map. For more information about the events leading up to annexation and eventual statehood, please visit the Texas Almanac online.

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Categories 3 and 4 Banks in U.S. DOJ Swiss Bank Program Have Been Resolved (12/29/16)

Originally published by Jack Townsend.

DOJ issued a press release regarding the status of the Swiss Bank Program:  Justice Department Reaches Final Resolutions Under Swiss Bank Program: Information Received Continues to Drive Civil and Criminal Enforcement Efforts (12/29/16), here.

The resolution of Category 2 have been previously announced.  This press release indicates the resolution of Categories 3 and 4.  That leaves only the Category 1 banks some of which have been resolved.  The Category 1 banks were those banks already under criminal investigation when the Swiss Bank Program was first announced.

I am traveling through January 2, so any postings will necessarily be cryptic.

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IVC Filter Lawsuit: 4 Things Patients Need to Know

Originally published by Robert Kraft.


It is amazing to consider that the very medical devices designed to improve the quality of life can be so threatening and possibly deadly. Unfortunately, that is the case far more often than we would like to think. A serious example of this is the IVC Filter. This device designed to stop blood clots at their source, potentially saving millions of lives, has also resulted in numerous injuries as a result of one defect or another. Let us quickly examine four things that patient needs to know about a possible IVC Filter lawsuit.

Risk of Injury

When IVC filters were designed, they were meant to be removed as soon as the risk of a patient developing blood clots had been eliminated. Removable filters should be removed, on average, about one to two months after they have been implanted. To wait longer increases the risk of serious injury, yet this does not occur in many cases. Professionals, like those at Snyder & Wenner, P.C., know how extensive these injuries can be. If you have been injured by an IVC filter that was not removed when it should have been, contact a lawyer for advice on how to move forward to protect your legal rights.

A Faulty Device

Lawsuits due to wrongful death at the hands of an IVC filter are, unfortunately, growing. A faulty device has now been linked to more than 24 deaths, leading many to wonder if the benefits to the device are even worth exploring any further.

Serious Injuries

It is important to note that the FDA has been contacted by many patients claiming serious injury at the hands of an IVC filter. It has been discovered that these devices can tear apart in the body, meaning that small pieces can make their way to the heart or lungs. Not only can this result in a serious perforation, they can be extremely difficult to remove at this point as well. It is believed that these injuries become more likely the long that the IVC filter has been in place.

Are There Benefits of IVC Filters?

Given all of the information that is now available regarding IVC filters, the efficacy of the device has been called into question. Many are making the claim that the filters have little to no medical benefit. If your doctor has not gone over all of the risks associated with the device, you will want to contact a lawyer for further advice.

Medical breakthroughs are being made all the time, but not all of them work as planned. If you are the victim of a faulty medical device such as an IVC filter, you need to consult with an attorney as soon as possible.

Author’s Information: Bio: Rachelle Wilber is a freelance writer living in the San Diego, California area. She graduated from San Diego State University with her Bachelor’s Degree in Journalism and Media Studies. She tries to find an interest in all topics and themes, which prompts her writing. When she isn’t on her porch writing in the sun, you can find her shopping, at the beach, or at the gym. Follow her on Twitter and Facebook.


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Cybersecurity Report Card for 2016: Overall “C-“ but bad news since the Cloud gets a “D-“ and Mobile gets an “F”!

Originally published by Peter S. Vogel.

Tenable Network Security surveyed “700 security practitioners across seven key industry verticals and nine countries” that produced “a single report card score that represents overall confidence levels of security practitioners that the world’s cyber defenses are meeting expectations.”  The “2017 Global Cybersecurity Assurance Report Card” from Tenable with research partner CyberEdge Group included these comments about the Cloud Darkening:

Cloud software as a service (SaaS) and infrastructure as a service (IaaS) were two of the lowest scoring Risk Assessment areas in the 2016 report. SaaS and IaaS were combined with platform as a service (PaaS) for the 2017 survey and the new “cloud environments” component scored 60% (D-), a seven point drop compared to last year’s average for IaaS and SaaS.

The Report Card included these comments about Mobile Morass:

Identified alongside IaaS and SaaS in last year’s report as one of the biggest enterprise security weaknesses, Risk Assessment for mobile devices once again dropped eight points from 65% (D) to 57% (F).

Here are all 10 takeaways:

  1. Risk Assessment
  2. Cloud Darkening
  3. A Mobile Morass
  4. New Challenges Emerge – Two new IT components were introduced for 2017 — containerization platforms and DevOps environments.
  5. Web App Security: Room for Improvement?
  6. Security Assurance Steady
  7. India Claims the Top Spot -New to the 2017 Global Cybersecurity Assurance Report Card, India debuted with the highest overall score at 84% (B), while last year’s leader, the United States, fell two points to second place with 78% (C+).
  8. Japan Lacking Confidence
  9. Education and Government Behind the Pack – Of the seven industries analyzed in the 2016 study, Education and Government earned the lowest overall scores. These two industries placed near the bottom again in the 2017 study, with Education remaining steady at 64% (D) and Government dropping three points to 63% (D).
  10. Retail Takes the Lead Over Financial Services and Telecom

Hopefully 2017 will be better, but given the daily headlines of cyber intrusions that’s probably unlikely!

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Career Development: Three Exercises to Help You Set Goals for 2017

Originally published by Cordell Parvin.

Suppose for the moment that we will be working together in 2017. Suppose  we will have a one hour coaching session every other month. The first thing we would work on would be your 2017 Business Plan. To help you get started, here’s an exercise.

Exercise 1:

Title: Establish Your Goals

Duration: 30 Minutes

Instructions: Begin by brainstorming potential goals. Think about what you want to achieve, clients you want to serve, the type of work you want to do more of, what you want to experience, what you want to learn. After you have completed your list, think about and write down why each draft goal is important to you and when you answer, think about and write down why your answer is important to you.

In other words seek to determine what is motivating you to achieve the draft goal. From your list, determine which goal is your major definite purpose/most important goal. Based on understanding why achieving other draft goals is important, decide on which of the others should be part of your plan.

Exercise 2:

Title: Develop Your Action Steps

Duration: 15 minutes

Instructions: For each goal determine the actions you will need and want to take to achieve the goal. Additionally for each goal, determine what action step you will take in the next week.

Exercise 3:

Title: Begin Work on Your Plan

Duration: 15 minutes

Instructions: Determine how much time you plan to commit to non-billable activities over the next year. Then determine how much of that time you will spend on your professional development, firm activities, pro bono services and client development. For each category, prepare a draft list of action items you could do in the allocated time.

Here is a 2017 Business Plan Template you can use for your plan.



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Wednesday, December 28, 2016

Competitor Analysis: Is Your Law Firm Marketing Keeping You Ahead of the Curve?

Originally published by Stacey E Burke Blog.

When it comes to marketing a business, it’s important to know what you’re up against. While it would be nice to solely rely on your firm’s strong lawyers to bring in the business, that’s simply not enough. How do you know your firm is taking the right steps toward an effective marketing strategy? Understanding what other law firms are doing and how yours is stacking up against their efforts is one way to find out. A competitor analysis will help your firm establish what’s already being done in law firm marketing, what makes your law firm unique when compared to others, and how to market your unique attributes to target clients.

Where to begin with a competitor analysis

Identify your competitors

The first step in performing a competitor analysis is easy- find out who your competition is. Start with the basics and search local law firms in similar practice areas. Then broaden the search to national firms that work in the same practice area. Also check legal directories and search sites like Google and to see how the firms are ranked. Take note of anyone that shows up ahead of you in the search results. Find about five law firms that seem to be doing well, that will be your benchmark for the analysis.

One of the most important factors to keep in mind during your examination is of course the target audience. There might be a firm in your city practicing in the same area of law, but you might find they are reaching out to a completely different type of client than what you want. Once you determine whether the law firm is aiming for the same audience as you are, you have found your competition.

Take note of their efforts

The second step in this process is evaluating the content and marketing efforts of the law firms that are most like yours. What are they doing that is attracting the clients you want? To answer this question, there are several things you can do. Explore their website, check out their social media networks, sign up for the firm’s newsletter, or Google alerts for the firm. Get an idea of how the firm is presenting themselves to the online world. Are their digital marketing tactics enticing? Do they seem to be attracting online attention and engagement? Observe not only what your competitors are doing well, but what they are doing that can be improved.

Auditing your competitor’s online presence also includes taking note of things like speaking engagements, who the key attorneys are, any recent firm successes or news. Understanding what work these law firms are getting noticed for will help you realize what exactly it will take to get your firm ahead of the curve.

Now what?

Become the leader, not the follower

You have assessed your competitor’s marketing strengths, now it’s time to determine your competitive advantage. Consider how your firm differs from the competitors you just researched. What holes are in their content or marketing efforts? What events are they not speaking at? What Google searches are they not ranking on? This is where you can fill in the information, and get a leg up on the competition.

Take the data collected and think about the biggest area in which your firm can improve and that is where you will start. Focus on the success you’ve seen from other law firm marketing while also considering what works best for your niche and the specific client pool you are targeting. It won’t help you to simply copy what other firms are doing, understand what they are doing and how your firm can do it better. 

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Latest & Greatest – In a Nutshell® Series

Originally published by Lori-Ann Craig.

Throughout the month of December, Harris County Law Library has been celebrating Self-Help Resources Month and featuring publications that are designed to assist those who are representing themselves in legal matters. Following this theme, we are pleased to announce that the law library has recently acquired several new titles from the In a Nutshell® series. Published by West Academic Publishing, the In a Nutshell® books provide concise summaries and explanations of a particular area of law. Designed as study guides, these small books are loaded with cases and statutes to guide the reader to a better understanding of the topic at hand. Some of our recent acquisitions cover such topics as legal drafting, electronic discovery and digital evidence, mental health law, children and the law, legal malpractice law, Section 1983 litigation, and consumer protection law. Look for these and other titles of interest in our Self-Help Collection or browse our collection using our catalog.

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Have You Reviewed Your Lease Maintenance Processes Lately?

Originally published by Charles Sartain.

Posted by Charles Sartain

nightmareYou might conclude that the but-for-the-grace-of-God-that-could-be-me nightmare presented in In re: RPH Capital Partners is instructive only for lawyers. If so, you would be mistaken. The lesson: If you want to win the lawsuit, pay attention to pesky legalities such as notices of trial settings. Likewise, if you want to protect your hydrocarbons, reinforce your people and processes for maintaining leases and other significant obligations.

RPH sued Peridot and others for failing to make payments under a participation agreement and for selling interests in properties they didn’t own. The defendants didn’t appear for the trial.  A default judgment for $13 million was taken.

After RPH began garnishing bank accounts Peridot filed a petition for bill of review, contending it never received a copy of the judgment. Peridot had only 38 days’ notice of the trial (the law requires 45), so Peridot argued it was deprived of its due process rights.  The trial court ordered a new trial.

Everyone agreed that Peridot did not receive enough notice of the trial, but was the notice so insufficient that it was a violation of fundamental due process rights? No. Peridot waived that complaint when it took no action after it received less than 45 days’ notice.

The case then turned to whether Peridot’s failure to appear was not intentional or the result of conscious indifference, but was due to mistake or accident.  The court never got to whether there was a meritorious defense.

To prove that the failure to appear was not intentional or the result of conscious indifference there must be “some excuse, although not necessarily a good one.”  Forgetfulness alone is insufficient, but excuses that are acceptable are, for example, bad weather and misplacing the citation due to staff turnover.

Peridot’s counsel “did not see” the trial setting and no one in the office docketed the trial date. The deficiency in counsel’s affidavit was that it didn’t explain the failure to appear at trial and offered no description of circumstances that could explain why he took no notice of the trial date.  Finally, the affidavit failed to address other instances showing Peridot had notice of the trial date. Peridot did not establish that its failure to appear was not intentional or a result of conscious indifference.

What does this have to do with me?

The lesson for the lawyer is obvious. What if you run a land department?  You should be good to go if you have people and processes in place to assure that obligations such as delay rentals and royalty payments are made. And while you’re at it, who is paying attention to debilitating lease provisions (the ones the lessor would never even consider enforcing, until he does), such as lease termination for failure to timely pay royalties?

Musical interlude: For the trial judge who has been reversed.

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Tuesday, December 27, 2016

Former Manager Sues Wells Fargo

Originally published by Thomas J. Crane.

It was big news just a few months ago that Wells Fargo bank pressured its employees to engage in fraudulent sales tactics. Some employees were even issuing credit cards and setting up new bank accounts for its customers – without the customers’ permission. It was fraud. But, was it illegal? That distinction matters in a state like Texas. In Texas, there is no law protecting employees from employers engaging in fraud. But, there is a law against requiring an employee to engage in illegal activity. Alex Leal has filed suit against Wells Fargo. His lawsuit appears to lie right at the intersection of what is illegal and what is fraudulent but perhaps lawful. He was a branch manager at a branch on the West side of San Antonio. In his lawsuit, he says he was fired because he refused to go along with the sales tactics.

He also alleges defamation. I just wrote a post about defamation here and how hard it is to show defamation in the work place. To win, Mr. Leal must not just show management lied about him, he must show they knew it was a lie and they sought to cause him harm.

Mr. Leal is also suing for age discrimination, saying management preferred younger employees because they were more likely to go along with these fraudulent sales tactics. He says he was replaced by a 29 year old manager. See San Antonio Express News report.

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CYBER & TECHNOLOGY Ups and Downs in 2016 – Encryption a Big Success, but Fake News a Big Failure

Originally published by Peter S. Vogel.

The New York Times reported the best and worse technology from “exploding smartphones and hoverboards to the proliferation of fake news on social media, many of our tech hardware, software and web products suffered embarrassing failures.”  The December 14, 2016 article entitled  “Biggest Tech Failures and Successes of 2016” included these observations of the successes with Encryption:

Tensions between tech companies and the government reached a fever pitch during Apple’s face-off with the F.B.I. early this year over privacy and security. The F.B.I. had demanded that Apple weaken its iPhone encryption so that it could gain access to the contents of a phone belonging to a gunman in the San Bernardino, Calif., mass shooting. Apple refused, arguing that weakening its software system for a single investigation would create vulnerabilities that might put all customers at risk. The F.B.I. eventually withdrew its demand after figuring out how to break into the iPhone without Apple’s help.

Amid Apple’s feud with the F.B.I., many big tech companies expanded encryption in their products. Facebook, WhatsApp and Google put the encryption protocol from Signal, a widely lauded secure messaging service, in their messaging services. Though none of the encrypted messaging services are perfect, this year marked significant progress toward offering tools that strengthened consumer privacy.

The other successes included: WiFi, Virtual Reality, and Streaming Live Video.

While the failures in 2016 included: Batteries (think Samsung and hoverboards), and Virtual Assistants (“including Google’s Assistant, Apple’s Siri and Amazon’s Alexa, continued to be subpar this year”).

The history of 2016 should provide insight to 2017, because history always teaches us something.

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Smart Home Devices Make the Internet of Things Hacker-Friendly

Originally published by Peggy Keene.

As 2016 comes to an end, experts noted that the introduction of the Internet of Things and the proliferation of more and more “smart” devices […]

The post Smart Home Devices Make the Internet of Things Hacker-Friendly appeared first on Klemchuk LLP.

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Can a Division Order Modify Lease Provisions?

Originally published by John McFarland.

Section 91.402(h) of the Texas Natural Resources Code, the “division order statute,” provides that

the execution of a division order … shall not change or relieve the lessee’s specific, expressed or implied obligations under an oil and gas lease ….

Section 91.402(g) of the division order statute provides that

Division orders are binding for the time and to the extent that they have been acted on and made the basis of settlements and payments, and from the time that notice is given that settlements will not be made on the basis provided in them, they cease to be binding. Division orders are terminable by either party on 30 days written notice.

But in Ohrt v. Union Gas Corporation, 398 S.W.3d 315 (Tex.App.–Corpus Christi 2012, pet. denied), the court held that, by signing a division order, plaintiffs had ratified a pooled unit that their oil and gas lease did not authorize, and that plaintiffs’ revocation of their division orders did not allow them to challenge the validity or effective date of the pooled unit.

The plaintiffs in Ohrt signed division orders for the Ohrt-Heinold Gas Unit, containing 690 acres. The well on that unit was located on plaintiffs’ tract. Their lease said that the maximum size of a pooled unit for the well would be 352 acres. The well was completed and started producing in September 2000. The unit designation was not filed until January 15, 2001. The division order provided that the division of interest stated thereon would be effective as of the date of first production from the unit. Under the terms of plaintiffs’ leases, a pooled unit does not become effective until the unit designation is filed.

Plaintiffs asserted two claims. First, they said they were entitled to royalties on production from the well from date of first production to January 15, 2001, based on their un-pooled 3/16 lease royalty – an additional $838,000 in royalties. Second, they said the unit was not effective as to them because it violated the terms of their leases by including 690 acres instead of the maximum 352 acres required by the leases. Union Gas argued that, by signing the division orders and accepting royalties, plaintiffs had ratified the pooled unit and were estopped from claiming any additional royalties. The jury agreed with Union Gas, finding that plaintiffs, by signing the division orders and accepting royalties, had ratified the pooled unit and were estopped from claiming that the unit was invalid. The court of appeals affirmed.

This case illustrates the inherent conflict between the two provisions of the division order statute quoted above – 91.402(g) and (h). On the one hand, the statute says that a division order cannot modify the terms of a lease. On the other hand, it says that a division order is binding until revoked–inferring, at least, that a division order can modify lease terms for the time that is in effect, but not after it has been revoked.

The court in Ohrt held that, under the doctrines of ratification and estoppel, by executing the division orders and accepting royalties the plaintiffs were bound by a unit designation they had not agreed to, and could not claim additional royalties prior to the date the unit designation was filed and became effective. The court’s decision appears to ignore the express language of the statute.

The court’s ruling on the first issue – whether plaintiffs were bound by the division orders for the time they were in effect — seems to me more defensible than its second ruling. The statute’s statement that a division order is binding until revoked is a restatement of the case law established before the statute was passed.  Exxon v. Middleton, 613 S.W.2d 240 (Tex. 1981). The court in Middleton reasoned that division orders are executed without consideration and therefore may be revoked at any time, but that the payee is entitled to rely on the division order as long as it is in effect. Because the plaintiffs in Ohrt signed a division order that made their unit interests effective as of date of first production, Union Gas could rely on the division order to pay unit royalties on that basis back to date of first production, and revocation of the division orders would not allow the plaintiffs to claim additional royalties for the time period prior to filing the unit designation. Likewise, even if the unit designation was not authorized by the lease, under Exxon v. Middleton Union Gas could rely on the division orders signed by plaintiffs in paying royalties on a unit basis as long as the division orders remained in effect. But the court in Ohrt went further; it held that, under principles of ratification and estoppel, the plaintiffs could not by revoking the division orders enforce the original terms of their lease limiting unit size to 352 acres. In effect, the court said that common-law principles of ratification and estoppel trumped the express language in the division order statute prohibiting a division order from modifying lease terms.

The lesson for royalty owners:  don’t sign a division order until you know all of the facts – including when the unit designation was filed and the unit became effective and whether it complies with your lease — and are sure that the division order correctly sets forth the interest in production to which you are entitled. Otherwise, you may be giving up significant rights you negotiated in your lease.


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End of Year Employment Checklist

Originally published by Rob Radcliff.


As we creep up on the end of the year employers should be considering/doing a number of things.

  1. Is the company employee manual up to date – any changes necessary? – The end of the year is always a good time to review those policies and procedures and see how they worked in 2016.  Often the year will show some deficiencies or problems with policies as they are applied.
  2. Are employee files up to date?  Make sure all employees have acknowledged receiving the most recent HR manual or any changes to the manual.
  3. Are company employment agreements up to date?  Make sure any employment agreements are updated or amended to reflect changes in ownership or term expiration.  Quite often those agreements are forgotten about and there is no agreement in place.
  4. Make sure employees have signed off on all non-compete, non-solicit, or confidentiality agreements.
  5. Frequently the end of the year involves reviews.  Make sure those reviews are acknowledged by the employee and make it to their employment files.
  6. Get your lawyer to take you out for lunch so they can update you on any new employees issues coming in 2017 and so you can pick their brain about any other issues.

All the best in 2017!


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Why a Texting-While-Driving Ban Remains an Uphill Climb in Texas

Originally published by Bob Kraft.

For those of you baffled by the fact that it is still legal for drivers age 18 and over to text and drive in Texas, the Austin American-Statesman ran a lengthy story explaining this problem. Here are the opening paragraphs:

There is no doubt that texting while driving is dangerous, but Texas remains one of only four states without a law banning the practice — and changing that scenario will be an uphill battle when the Legislature returns in January.

The Texas Senate, where anti-texting bills were defeated in 2013 and 2015, is poised to remain hostile territory in the 2017 session. Much of the opposition has solidified around the Legislature’s most conservative Republicans, who are leery of broadening police powers and see anti-texting laws as furthering an intrusive, “nanny state” government.

State Sen. Konni Burton, R-Colleyville, vowed to renew last session’s successful effort to block a texting ban from getting a vote on the Senate floor.

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Thursday, December 22, 2016

Criminal Acts Exclusion and Joint Obligations Clauses Bar Coverage for Claims Arising from Insured’s Criminal Act

Originally published by Diane Polscer.

Criminal Acts Exclusion and Joint Obligations Clauses Bar Coverage for Claims Arising from Insured’s Criminal Act

In Allstate Insurance Company v. Morgan, 123 F. Supp. 3d 1266 (D. Or. 2015), the District of Oregon held an insurer was not obligated to defend their insured’s son against tort claims arising out of the son’s assault on a party guest.

The underlying case arose out of an incident that occurred during a party hosted by the insured’s son at the insured’s home. The insured’s son and three other attendees assaulted another guest, causing serious injury. The insured’s son pled guilty to assault.

The injured guest then filed a complaint against the Morgans for negligence as well as additional claims against others. Allstate denied any duty to defend or indemnify the Morgans. Allstate argued (1) the Criminal Acts Exclusion Clause barred coverage, (2) the Joint Obligations Clause barred coverage, and (3) there was no “occurrence” under the Policy. Allstate also requested the court stay the coverage case pending the resolution of the underlying case.

The magistrate judge declined to stay the case, reasoning that Allstate’s coverage obligation could be determined by considering only the terms of the Policy and the fact that the insured’s son committed a criminal act, as evidenced by his guilty plea.

The Court then concluded the Criminal Acts Exclusion Clause barred coverage of both the insured and her son. The Morgans argued that Allstate’s duty to defend was established by looking only at the complaint, which alleged negligence. Further, the guilty plea did not establish that the insured’s son’s criminal acts actually caused the bodily injuries alleged in the complaint. The Court rejected these arguments, explaining that “[a] guilty plea resulting in a criminal conviction can have a preclusive effect in a subsequent civil proceeding,” and, accordingly, Allstate had no duty to defend the insured’s son. Then, reaching an issue of first impression in Oregon, the court held Allstate had no duty to defend the insured herself, even though she played no role in the assault. Based on the Policy language and out-of-state cases, the Court concluded that the Criminal Acts Exclusion Clause barred coverage for bodily injury that was caused by any insured’s criminal acts.

The district judge adopted the magistrate judge’s recommendation over objection, adding that the Joint Obligations Clause also supported the magistrate’s recommendation. The Court noted that “numerous other courts have interpreted identical joint obligation clauses and have held that the language renders the criminal acts exclusion applicable to claims for negligence against other insureds.” Having decided the case based on the Criminal Acts Exclusion Clause and the Joint Obligations Clause, the Court did not reach the occurrence question.

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Christmas Patents of 2016 – Market Exclusivity Through Patents in the Business of Christmas Decor

Originally published by Kirby B. Drake.

As Christmas approaches, it’s a good time to take a look back at 2016 and look at a top 5 list of utility patents that […]

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Top 10 from Texas Bar Today: SSAPP, USPTO, and Ho Ho Ho

Originally published by Joanna Herzik.

TexasBarTodayTopTenBadgeJune2016To 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. Using Texas’ Anti-SLAPP Statute to Combat SSAPP (Strategic Sanctions Against Public Participation)Daniel Correa of Cowles & Thompson, P.C. @CowlesThompson in Dallas

9. Texas: Did arbitration agreement expand judicial review of award?Gene Roberts @GeneRoberts, Director of Student Legal & Mediation Services at Sam Houston State University in Huntsville

8. Motion for Early Construction of 3 Claim Terms GrantedMichael C. Smith of Siebman, Burg, Phillips & Smith, LLP in Marshall

7. The Continuing Struggle Over Class Action Waivers in Arbitration – Robert L. Arrington of Karl Bayer @karlbayer in Austin

6. Take a Real Break – Goldie Pritchard of the Law School Academic Support Blog

5. USPTO refuses trademark applications for new NHL teamChandler Stephens of Norton Rose Fulbright US LLP @NLawGlobal

4. Parallel Proceedings?Walter James of James PLLC in Colleyville

3. Don’t Be a Grinch: Punishments for Christmas Package Theft in TexasLuke Williams of Barnett Howard & Williams PLLC @BHWLAWFIRM in Fort Worth

2. Holiday Injuries: Don’t Let Your “Ho Ho Ho!” Turn Into An “Oh No Oh No!”McMinn Law Firm @theaustinlawyer in Austin

1. Legal Tech Startups and Access to Justice – Librarians at the Harris County Law Libary in Houston

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Holiday Injuries: Don’t Let Your “Ho Ho Ho!” Turn Into An “Oh No Oh No!”

Originally published by mcminnlaw.

Keep Holidays Accident and Injury Free

By now, most of us have put up all our holiday decorations and are enjoying the majestic quality of lit up houses and trees in windows. Decorations add to our overall Christmas spirit and spiked eggnog compensates when we start losing our holiday cheer. And we all know traveling with our families for hours on end in holiday traffic while listening to the same Christmas songs again, and again, can sometimes lead to our insanity.

Holiday vacation is no break from possible injuries. The joy that comes with the holidays can quickly turn to tragedy and we need to be aware of the most common forms of injury during the holidays in order to avoid a tragic situation. As part of our gift to you this year, we wanted to ensure that you have a safe holiday season.

Holiday Accidents in the U.S.


Since 2009, there has been a steady increase in holiday injuries. Going from 12,000 holiday related injuries in 2009 to 15,000 reported to ERs last year. That’s 250 injuries a days between November 1st and the end of December! But what types of injuries are these and how do they come about?


Car Accidents More Common During Holidays, Data Says

Ever thought twice about how your co-workers got home after the end-of-year work party? Visiting with family and friends and time off from work can mean relaxation and adult beverages. Data shows that about 40% of all fatalities during the Christmas and New Year’s holiday are caused at least in part by intoxicated driving. On average throughout the year, 31% of crashes are caused by impaired driving. These numbers are based on a four year average between 2001 – 2005.

The most dangerous day for drinking and driving? In the U.S. an average of 54 fatalities occur due to alcohol related fatal accidents each year. On Christmas, an average of 45 alcohol related fatal accidents occur each year. Compared to the rest of December, in which an average of 33 similar accidents occur, it’s clear that the holidays bring about some of the riskiest driving across the country.


DUI: Decorating While Intoxicated

A term that is actually used by doctors around this time of year due to the large number of injuries they see from people getting drunk and decorating their house. The two almost seem like they would go together; however, standing on a ladder while you are intoxicated is obviously dangerous. If you decide to drink at home and decorate or take down decorations, be sure and save the lights on the roof or the start at the top of the Christmas tree until you’re sober again.

Most causes of injury are preventable by simply using common sense. Don’t get on the ladder when you’ve been drinking.

Another large part of traffic accidents or injuries while intoxicated result from all the end-of-the-year work parties, family drinking, and students going to back home to party with their friends. The holidays are time away from our orderly lives to relax and enjoy. However, they are not a vacation from possible injuries. Most causes of injury are preventable by simply using common sense. Don’t get on the ladder when you’ve been drinking.

Back Strains: Stretch!

Another common injury around the holidays is a back strain. Picking up packages, cleaning up wrapping paper, stretching to put the star on top of the Christmas tree; the possibilities are endless. A simple tip is to stretch right after you wake up. Doing a few stretches will get you limber in the morning.


Electric Shocks and Christmas Tree Fires

A woman in the Boston area, told ABC News about a time she was setting up Christmas lights around a stair railing and one of the lights were broken causing the wires to be exposed and touching the rail. When she put her hand on the railing it shocked her and caused her to fall down the stairs. Luckily, her injuries were minor, but this is still another common cause of holiday injury to look out for. Check those lights before you take them down or put them up.

Between 2009 and 2011, Two-hundred fires have resulted from Christmas tree’s igniting. Time Magazine reports that 70% of Americans buy the real deal Christmas trees. These are usually more susceptible to fire then the synthetic materials used on fake plants (but who wants to sacrifice that lovely smell of evergreen?). Check your lights on your Christmas trees as well. Make sure that none are broken and check throughout the weekend.

A Summation of Christmas Injuries

The variety of mechanisms of injuries break down into pretty defined categories:

  • 33%—caused by falls
  • 11%—cuts
  • 10%—back strains
  • 46%—various, unidentified causes

Some injuries might just be a crazy holiday fluke and some result from behavior that can obviously lead to injury (like climbing a ladder while drunk). So be careful and be smart!

From The McMinn Law Firm To You, Happy Holidays

We are all looking forward to a week of relaxation and time spent with the truly important people in our lives: our family, children, our parents, and friends. We hope you take the time to relax and enjoy your holidays safely.

Happy Holidays written in script

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The Continuing Struggle Over Class Action Waivers in Arbitration

Originally published by Robert L. Arrington.

In the case of D.R. Horton, Inc., 357 N.L.R.B. 184 (2012), the NLRB held that the adoption of a mandatory arbitration plan for employees containing  a class and collective action waiver was unlawful because such provisions are an unfair labor practice under Section 7 of the National Labor Relations Act (“NLRA”), which protects the right of employees to act in concert.

D.R. Horton petitioned for review of this ruling by the United States Court of Appeals for the Fifth Circuit, which overturned the Board in 2013.  D.R. Horton, Inc. v. National Labor Relations Board, 737 F.3d 344 (5th Cir. 2013).  The Court held the FAA and the Supreme Court’s decisions interpreting it prevailed because the NLRA was not intended to repeal the application of the FAA by implication.

The NLRB did not accept the Fifth Circuit’s decision. It struck down a similar dispute resolution plan in Murphy Oil USA, Inc. and Sheila M. Hobson. Case 10–CA–038804 (October 28, 2014). Murphy Oil asked the Fifth Circuit to review the ruling, and the Board petitioned for hearing en banc, hoping to change the Court’s mind. But the Fifth Circuit did not budge. It granted the petition for review, denied the en banc hearing, and overturned the Board’s decision. Murphy Oil USA, Inc. v. National Labor Relations Board, No. 14-60800 2015 WL 6457613 (2015).

But the NLRB did not going away quietly. While the Second and Eighth Circuits have joined the Fifth in declining to follow the Board’s ruling in D.R. Horton (Sutherland v. Ernst & Young, LLP, 726 F.3d 290, 297 n. 8 (2d Cir. 2013) and Owen Bristol Care, Inc., 702 F.3d 1050, 1055 (8th Cir. 2013.) ), the Seventh and Ninth Circuits have sided with the Board. See, Lewis v. Eric Systems Corp., 823 F.3rd 1147 (7th Cir. 2016), Morris v. Ernst & Young US, 2016 WL 443308 (9th Cir. 2016).

The issue will likely ultimately reach the Supreme Court. Indeed, the Board is planning on it, recently conceding in yet another 5th Circuit case that the court’s rulings in D.R. Horton and Murphy Oil required reversal of its ruling, and stating it simply wanted to preserve the issue for possible Supreme Court or en banc review. Citigroup Technology, Inc., et al. v. National Labor Relations Board, No. 15-60856 (5th Cir. December 8, 2016).

Sometime in 2017, a new Justice will join the Supreme Court. Whoever Donald Trump appoints to replace the late Antonin Scalia, that person is likely to be far different from whoever would have been appointed by Hillary Clinton. Predicting the Court is risky business, but part of the fallout from the presidential election may be a Court less inclined to adopt the Board’s view of this issue.

Moreover, there will be a new NLRB in 2017, as a result of the change in administrations, which will likely be more kindly disposed toward waivers than the current board.

But those decisions are in the future. In the meantime, employers who use arbitration clauses with class and collective action waivers shouldn’t panic and eliminate them. Those employers who don’t use such clauses but are considering it might want to put their plans on hold until the speculation becomes reality.

Photo credit: Phil Roeder via / CC BY

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Client Development: How to Use What You Enjoy Doing Outside Work

Originally published by Cordell Parvin.

A lawyer I coached this past year sent me a link to some recognition she received from LexBlog: Energy Law Today Writes with Interest and Gets Positive Feedback.

Melissa Lyon writes the Energy Law Today Blog. In it she finds a way to make reference to her hobby which is baking.

Melissa isn’t the only lawyer I coach who finds a way to work their passion outside of law into their practice.

As you will see below, there’s a lot of potential reading and watching if you click on the links. Think about it when you have the bowl game that no one including you cares about on your television screen.

Basketball Istock

How to Use Hobbies for Client Development

Two lawyers I coached, one in DC the other in Los Angeles, used Trapeze to entertain their women clients.

A lawyer I coached from Houston, created a pick up basketball league and a tennis league. He also entertains clients at Houston Rockets basketball games.

Another lawyer makes wreaths. See  Client Development Holiday Gift Idea

Another uses her photography. See:  Can You Use Your Hobby for Client Development?

Another lawyer is a race car enthusiast, especially BMW’s and he takes photos as well as drives the cars. See: Client Development Make it Fun.

Another lawyer takes photos of his child’s elite soccer team and gives them to parents. See: Adding Value in a Personal Way.

I’ve shared with some of you Alison’s story focusing on her passion for horses: See Alison’s Story: Practical Advice on Developing a Niche Practice 

Here’s more on hobbies. See: 5 Hobbies that Make People Better at their Job.

How to Connect 

We’ve also covered how to connect with people. Here are some materials on that subject.

See: How to Instantly Click with Everyone You Meet

Years ago I read several Nicholas Boothman books. Here is a summary of one of them: Book Summary How to Make People Like You in 90 Seconds.

Clinton and Kennedy Charisma. See: Clinton and Kennedy’s 3 Secrets: How to Become More Charismatic

Finally, if you have 24 minutes and are interested, then watch Tony Robbins on Building Rapport.

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Another Cyberattack at Southwest Airlines?

Originally published by Peter S. Vogel.

Southwest’s website was down for about 3 hours so Southwest tweeted that “We are aware and investigating current issues with our website, and we have implemented flexible accommodations for those being affected.” The Dallas News report from December 21, 2016 entitled “Southwest Airlines suffers website outage; airport operations unaffected” stated that the 3 hours service outage was restored around 5pm and also included this quote from Facebook’s post:

We are currently experiencing issues with some of’s functionality.

For those currently traveling, check in is available at airport kiosks and ticket counters, we are working hard to resolve the issue.

We appreciate our customers’ patience as we work behind the scenes to get full functionality back to our website, and we have implemented flexible accommodations for those being affected.

Although Southwest has not admitted to the cyberattack it seems very likely given the July cyberattack that cancelled 700 Southwest flights and cyberattack in August that caused Delta to cancel 858 flights!

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Benicar Lawsuits Grow Against Japanese Manufacturer

Originally published by robertslawfirm.

The Japan-based manufacturer of Benicar, a popular hypertension drug, is facing more than 1,700 lawsuits over serious side effects for some users of the drug that may cause long-lasting complications and hospitalization. Daiichi Saknyo received approval from the U.S. Food and Drug Administration (FDA) in 2002 for Benicar (olmesartan medoxomil) to treat hypertension (high blood pressure). The drug relieves blood pressure by relaxing the blood vessels. Certain Benicar users have reported serious side effects from the drug, the most prevalent of which is sprue-like enteropathy, a condition involving intestinal problems that include severe diarrhea and substantial weight loss. This condition can be long lasting and may require hospitalization. It is often mistaken for Celiac Disease, further complicating a patient’s health because of the misdiagnosis. In July 2013, the FDA issued a warning about the link between Benicar and sprue-like enteropathy as well as other gastrointestinal illnesses. The agency approved a new warning label for the drug that would inform patients and health care providers about these potentially serious side effects in some users. The lawsuits claim that Daiichi Saknyo knew or should have known that Benicar use causes major side effects in some patients. The plaintiffs allege that the company failed to warn consumers and medical professionals about the link between Benicar and these side effects. Roberts & Roberts focuses on helping people who have been injured in accidents or have been the victim of faulty medical products like Xarelto. Please call 800-248-6000 or contact us for a free consultation […]

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Motion for Early Construction of 3 Claim Terms Granted

Originally published by Michael C. Smith.

15403860_10210966587147840_4210399219604974101_oMost of my workshop projects don’t involve repetitive tasks. Whether it’s a ship, a plane, or a spacecraft – kitbashed or scratchbuilt, generally there isn’t a need to repeat a task precisely – each is slightly different.  But sometimes you run into a situation where a special tool allows you to address a recurring issue more efficiently.  

For example, the Launch Umbilical Tower (LUT) I am building from scratch for my 1/200 scale Apollo Saturn V has eighteen (18) levels, all of which are essentially identical, and all of which must be precisely leveled and aligned, or the final result will look like the Leaning Tower of NASA.  To help me avoid this problem, I made a the template or jig shown at left out of sheet plastic which can be placed at each level to precisely set the level above, and includes cutouts for various parts (elevator shaft, supports & bracing, etc.).   15621985_10211035291065395_7492295754268987378_nIt wraps around the elevator shaft like an overprotective parent, and can be pulled away once the glue has dried on the level above.

Sometimes courts find similar opportunities to achieve efficiencies in addressing repeat issues through special procedures or processes.  One such process in the Eastern District of Texas is the “mini-Markman” which was a procedure first used by Judge Leonard Davis several years ago in the Parallel Networks cases to address dispositive claim construction issues early in cases.

In that case, the 120–odd defendants argued that the plaintiff’s settlement model was based not on the merits of the case but on the cost of defense, and that the case could be resolved by the expedited construction of three terms. After hearing those arguments at a scheduling conference Judge Davis agreed, stayed all discovery in the case, and proceeded to an expedited Markman hearing on those three terms. He ended up agreeing with the defendants, and issued constructions that permitted summary judgment as to approximately 100 of the defendants.


The mini-Markman process has since been codified into a procedure that exists as a standing order, by which parties can request expedited consideration of a limited number of terms in cases where they believe that such a focused proceeding would be helpful. Judge Gilstrap has recently referenced the process in an order as well, and while it isn’t always the right tool in a case, when it is, to quote Ferris Bueller, “it is so choice. If you have the means, I highly recommend picking one up.”  (Yes, it’s been 30 years.  Can you believe it?)

Which is exactly what happened in Lexos Media IP, LLC v. Apmex, et al., 2:16cv747, when three defendants asked Judge Roy Payne for an early claim construction on the magic number of three terms appearing in the asserted claims. “Defendants allege a pattern by Lexos of serially filing groups of cases and then settling those cases before the Court has had a chance to construe the asserted claims,” Judge Payne wrote. “The Court finds that the determining the meaning of the three terms identified by defendants as early as possible may aid in the just and speedy resolution of this in future cases in which Lexos asserts the’ 102 and’ 449 patents.”


Accordingly, Judge Payne granted the request for early claim construction and ordered the parties to jointly submit a briefing schedule. The court deferred the issue of whether to stay further discovery and proceedings until it had established a workable early claim construction briefing schedule, but did observe that it did not intend the process to delay the disposition of the case.

(Ed. note: shortly after writing this post I discovered that while the LUT jig was working fine, my calculations on the size of the levels was off, requiring me to rebuild the first two levels, which as you can tell, are not simple structures.  It’s like that sometimes.  The procedure is impeccable, but the substance turns out to be crap.  But then I already knew that from practicing law.)

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Moot dispute gets the boot.

Originally published by David Coale.

Sessa Capital, a hedge fund, supported the election of certain directors to the board of Ashford Prime, a hotel business. Ashford’s management rejected their applications, contending that they were incomplete. Litigation ensued, in which Sessa sought an injunction against the June 10, 2016 board election. The district court denied relief; Sessa appealed, and a motions panel of the Fifth Circuit denied an interim stay.

Since that election proceeded, mootness became an obvious appellate issue. The Fifth Circuit noted that “Sessa did not ask the district court to stay the [June 10] election,” and also “never sought the invalidation of the shareholder election in the district court” — requests that, had they been made, could potentially have kept the dispute alive. To the contrary, the Court observed that “Sessa repeatedly made a tactical decision to seek only prospective relief. When the district court contemplated pressing the reset button by staying the shareholder election and allowing Sessa to resubmit the questionnaires, Sessa vehemently opposed this solution.” Accordingly, the Court dismissed the appeal as moot. Ashford Hospitality Prime, Inc. v. Sessa Capital, No. 16-10671 (Dec. 16, 2016, unpublished).

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Take a Real Break

Originally published by lawschool academicsupport.

As my students wrap up the semester and head home, they are filled with excitement. Students recognize that they survived the semester although at various points and particularly during the exam period they viewed this feat as impossible. Smiles on…

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Don’t Be a Grinch: Punishments for Christmas Package Theft in Texas

Originally published by Luke Williams.

Throughout the year package thefts occur on a fairly regular basis. But, as Christmas draws near and package delivery increases, so too do the thefts. While packages left on doorsteps…

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What happened to Malibu Media, LLC in April 2016?

Originally published by Robert Z. Cashman.

So we all thought the Malibu Media, LLC lawsuits were dead this summer after Malibu Media sued their attorney Keith Lipscomb (a.k.a., the “kingpin” and “mastermind” behind the 6,800+ lawsuits filed against single “John Doe” defendants)). If you want a quick summary, here seems to be the jist of what happened.

  • Malibu Media, LLC hired Lipscomb to run their copyright infringement / settlement extortion scheme utilizing his network of attorneys spanning the federal courts across the US.
  • Lipscomb appeared to have pulled in hundreds [maybe thousands] of settlements, each settlement likely amounting to $10,000-$30,000, or more.
    (NOTE: This dwarfs the settlement monies collected by Steele & Hansmeier, now arrested for mail fraud, wire fraud, and perjury allegedly committed in the furtherance of their copyright troll scheme.)
  • Lipscomb apparently paid Malibu Media, LLC only $100,000 in commissions (the equivalent of ten settlements [10 x $10,000 = $100K]), but then never paid Malibu Media again.

The relationship between Lipscomb and Malibu became sour when Malibu Media, LLC became suspicious as to how they only earned $100K in commissions.  They demanded an accounting to determine whether they were being paid properly (this is still being litigated, but my guess is no; namely, that Malibu was being cheated by the lawyers they hired to extort others). Lipscomb claims that Malibu actually owes him money (to simplify the numbers, think — 6,800 lawsuits filed x est. $400/filing = $2.7 Million in filing fees alone). Malibu sued Lipscomb, they went to court, and in late April 2016, new Malibu Media, LLC filings stopped dead.

On April 18th, 2016, Keith Lipscomb told all of his local counsel that he is no longer representing Malibu Media, LLC (citing a lack of profitability), meaning that each of his local counsel were no longer representing Malibu Media, LLC, or so we thought. Wrong. Various local counsel continued the lawsuits already filed, but very few new suits were filed.

Here are the number of case filings since:
April 2016 Filings: 97
May 2016 Filings: ZERO!
June 2016 Filings: ZERO!
July 1- July 20 Filings: ZERO!
July 21 -> [end of month] filings: 75
August Filings: 59
September Filings: ZERO!
October Filings: 109 — FULL SPEED AHEAD? Nope.
November Filings: ZERO.
December Filings: ZERO…?

So, we are now in December (six months later), and Malibu Media LLC lawsuits are far from dead, or are they?!?

Here’s what I understand:
1) Lipscomb is no longer in charge of the Malibu Media, LLC lawsuits.
2) Individual attorneys (formerly, local counsel) appear to have taken Malibu Media, LLC as their own client, meaning that Malibu is creating relationships with each attorney, and each attorney appears to have a “territory” or a federal district court in which s/he practices.
3) I still think there is someone at Malibu Media, LLC headquarters (maybe Elizabeth Jones) still directing all of the attorneys.

In sum, Malibu Media, LLC and their lawsuits are not dead, at least not yet, but they continue to plague the federal courts and the accused downloaders with their high-ticket settlement prices, and thus they still need to be taken seriously, at least for now.

NEXT: Let’s go into the recent cases themselves to get an idea of what is going on with the last set of cases filed…

Arstechnica: “File-sharing lawsuit numbers drop by more than half; both Malibu Media and Prenda Law have run into different roadblocks.” on 7/19/2016.

Techdirt: “Malibu Media Sues Its Former Lawyer Over Missing Funds, Breach Of Bar Rules,” on 6/29/2016.

Arstechnica: “Porn studio that sued thousands for piracy now fighting its own lawyer,” on 6/28/2016

Fight Copyright Trolls: “Malibu Media sues its former counsel Keith Lipscomb and his firm for professional negligence and breach of fiduciary duty,” on 6/28/2016

CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.


NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

Filed under: Copyright Troll Attorneys, Copyright Trolls, Keith Lipscomb, Malibu Media LLC, P2P, Peer-to-peer, Torrent Tagged: Bittorrent Lawsuit, copyright infringement, john doe defendant, Keith Lipscomb, Malibu Media

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

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Wednesday, December 21, 2016

Can I Be Punished Worse if I Appeal My Case?

Originally published by Jeremy Rosenthal, Esq..

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

That isn’t supposed to happen.  It can only happen where there is evidence of misconduct AFTER the case has been appealed.

Public Policy

Think about it.  We want people to appeal cases.  Appealing trials and other rulings (in theory) promotes uniformity of proceedings, sharpens sometimes fuzzy rules, and corrects injustices.  Punishing people for appealing is contrary to betterment of the legal system so it is rightly shunned.

Won’t the Judge or Prosecutor Get Mad?

Possibly.  Everyone in America gets their paper graded.  Appellate Judges grade the trial Judge’s paper and correct them when they’re wrong.  No one likes being told they are wrong and Judges are certainly no exception.  Prosecutors might not like an appeal either because it means more work and in many instances they are being blamed for a trial not being fair.  But you can’t be afraid to hurt feelings and/or making people do their job when your livelihood is at stake.

Can the Judge or Prosecutor Retaliate Against Me for Appealing?

They can try.  When you appeal a case, however, the case goes to a different set of higher judges.  The case is out of the trial judge’s hands.  There is very little the trial judge can do unless the case is reversed and sent back… in which event you won.

If the case is reversed then there is clear guidance from the U.S. Supreme Court and the Texas Appeals Courts that the Judge cannot vindictively retaliate against someone because they were reversed on appeal.  See North Carolina v. Pearce, 395 U.S. 711 (1969) and Johnson v. State, 900 S.W.2d 475 (Tex.App. — Beaumont, 1995).

I’ve heard a prosecutor or two tauntingly invite an appeal so they can get an even higher punishment than was originally assessed over the years.  This just tells me they have never cracked a book to look at the rule.

Some judges will try to strong-arm a defendant out of an appeal through an aggressive appellate bond which has either a high dollar amount or onerous conditions.  This is a bond which suspends the imposition of a sentence while an appeal is pending… the bond DOES NOT have to be paid to appeal the case, however.  The bond only needs to be paid if the Defendant is seeking a delay in the imposition of the sentence.

Appealing a case is an important decision.  Don’t factor stiffer punishment or angering anyone in making your decision, however.

*Jeremy Rosenthal is Board Certified in Criminal Law in the State of Texas and is licensed to practice in the State of Texas.  Nothing in this article should be considered legal advice.  For advice about any situation you should contact an attorney directly.


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

from Texas Bar Today
via Abogado Aly Website