Thursday, April 28, 2016

What Is An Attractive Nuisance?

Originally published by Blizzard & Nabers Blog.

Because children are curious by nature, special care needs to be taken to ensure they do not unknowingly expose themselves to harm. While property owners usually do not owe a duty of care to keep trespassers safe, the attractive nuisance doctrine provides a legal exception when the trespassers are children.

Attractive Nuisance Defined

Attractive nuisance is a legal doctrine that holds property owners responsible for injuries to children trespassing on a property if the injury is caused by an object on the property that is likely to attract children. While this definition may seem broad, it effectively gives trespassing children the same legal protections that property owners owe to guests and invitees under premises liability.

Two things that have to be determined under the attractive nuisance doctrine are: (1) who is considered a child and (2) what is considered an attractive nuisance. While there is no legal specification regarding to who is considered a child, a trespasser is considered a child if they are too young to recognize the potential harm of an attractive nuisance. For something to be considered an attractive nuisance, it must be manmade. Naturally occurring hazards such as ponds, lakes, and steep embankments can be dangerous to children, but they are not legally considered attractive nuisances. Additionally, the nuisance must be enticing to children, causing them to trespass on the property.

Common Attractive Nuisances

•    Abandoned cars
•    Unguarded swimming pools
•    Open pits
•    Machinery
•    Construction materials
•    Wells
•    Fountains

In order for a property owner to be held liable for an injury resulting from an attractive nuisance, it must be shown that he or she knew or should have known that the condition existed and posed a serious threat to children who were unable to understand the dangers it presented. Additionally, it must be shown that it was reasonably practicable and feasible to prevent access to the attractive nuisance or to make the attractive nuisance innocuous.

Blizzard & Nabers: Attractive Nuisance Attorneys

Establishing negligence in an attractive nuisance case can be complicated because of the broad language of the legal doctrine. If your child was injured because of an attractive nuisance, you need the help of an experienced legal team that know the intricacies of premises liability law. The attorneys at Blizzard & Nabers have successfully helped victims in personal injury cases across the country. Call us today for a free consultation to discuss your case.

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Helping People Avoid Cyber Intestacy

Originally published by Gerry W. Beyer.

In this modern social media age a large number of people have developed online identities. This article discusses the issue of “cyber intestacy,” which is the failure of a person to plan for their online presence after death. It is…

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How Pregnancy Affects Divorce

Originally published by Larry Hance.

This article was written by Hance Law Group principal Larry Hance.   Recently, there were two celebrity divorce revelations that made their way around the news. I usually only see or hear this type of news in passing and don’t think much of it. However, the stories – concerning Megan Fox and Drew Barrymore’s announcements […]

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Wednesday, April 27, 2016

Sparring Partner

Originally published by David Coale.

Front Runner SparAt issue in Hefren v. McDermott, Inc. was whether the Front Runner Spar (right) – a type of offshore drilling platform with a remarkable resemblance to a Jawan Sandcrawler – was “immovable” within the meaning of Louisiana law. A dispositive issue of limitations turned on that classification. Noting that the Spar could be moved with sufficient planning and preparation, the Fifth Circuit agreed with the district court that: “Like a ‘building’ under Louisiana law, there is ‘some permanence’ to the Front Runner Spar as it has not moved from its present location, is intended to remain there for its twenty year life, and has a permanent mooring system.” No. 15-30980 (April 25, 2016, unpublished).

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Court closed to survivor and wrongful death claims

Originally published by John Guild.

Locked Doors

In Durham v. Children’s Medical Center of Dallas, the Dallas Court of Appeals decided an issue of first impression: If a 12-year-old receives medical treatment and dies more than two years after that treatment because of the negligence of the health care providers, does the Texas Constitution’s Open Courts Clause prevent the running of limitations for survival and wrongful death claims? The Dallas Court of Appeals concluded that the answer is no because the Open Courts Clause does not apply to statutorily created claims.

The facts are plainly tragic. A 12-year-old girl was injured in a car accident in Hawaii. During treatment, the doctors also diagnosed a dilation of the ascending aorta, which apparently was not related to the accident itself. The doctors recommended a follow-up with a cardiologist. The girl was transferred to Children’s Medical Center of Dallas for a short time before then being transferred to Scottish Rite, where she was treated for her injuries resulting from the accident. Unfortunately, there was not a follow-up on the information about her enlarged aorta. A little more than two years later, the girl died because her aorta ruptured. She was only 15 years old. The girl’s mother and the administrator of her estate brought wrongful death and survival claims. Summary judgment was granted based on the 2-year statute of limitations.

The Dallas Court of Appeals affirmed. It held that Civil Practice and Remedies Code § 74.251 applied, which requires claims to be filed within 2 years of the treatment that is the subject of the claim unless the child is younger than 12. Because the girl was 12 at the time of treatment, the exception did not apply and limitations began to run on the date of treatment for statutory causes of action, including wrongful death and survival claims. The Court then distinguished the Texas Supreme Court’s decision in Weiner v. Wasson, which held that limitations are unconstitutional as applied to minors under the Open Courts Clause of the Texas Constitution because they would cut off the minor’s cause of action before he reaches majority. The Dallas Court of Appeals held that the Open Courts Clause and Weiner v. Wasson could not save the survival and wrongful death claims because the Open Courts Clause does not apply to statutory claims, which include survival and wrongful death claims. As a result, the survival and wrongful death claims arising from the girl’s death were already barred by limitations months before her death.

Durham v. Children’s Medical Center of Dallas

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Law Firm Sued for Business Lost from Client to Client – A Cautionary Tale

Originally published by Carrington Coleman.


A long-time insurance company client of Greenberg Traurig has sued the law firm, KPMG, and ten other defendants under conspiracy and other theories in district court in the Southern District of Florida, case number 9:16-cv-80618. The law firm had assisted plaintiff with the development of an offshore insurance product. The Complaint alleges defendants helped form a competitive insurance company that stole clients from plaintiff forcing the plaintiff into a receivership.

Three allegations in the Complaint provide a cautionary tale for both lawyers and their clients. Plaintiff asserts there was an oral agreement at the relationship’s inception that the law firm would not represent a competitor of plaintiff. A complete written client agreement should fully address such issue for the benefit of both sides.

Some of the law firm invoices had numerous redactions. Redactions would usually seem incompatible with the duties of the law firm.

Finally, the Complaint asserts Greenberg Traurig provided plaintiff crucial tax opinions for four years then declined to give needed updates thereafter while doing tax opinions for the competitor. There is a suggestion that the refusal was a result of plaintiff failing to pay its legal invoices. The value of including in a client agreement a clear-cut right to terminate the relationship cannot be overstated.

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Cross Appeals

Originally published by Bob Mabry.

As to Texas civil cases, if any party timely files a notice of appeal, another party may file a notice of appeal within the applicable period stated above or 14 days after the first filed notice of appeal, whichever is later.
The leading Texas criminal case on cross-appeals is Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App. 2012). It taught an appellate court’s jurisdiction is invoked by the timely filing of a notice of appeal. And that the proper notice of appeal vests Texas appellate courts with a broad scope of review and revision over a criminal case. Once jurisdiction of an appellate court is invoked, exercise of its reviewing functions is limited only by its own discretion or a valid restrictive statute. For example, appellate courts may review unassigned error—a claim that was preserved in the trial court but was not raised by either party on appeal. Pfeiffer quoted Carter v. State, 656 S.W.2d 468 (Tex. Crim. App. 1983) that quoted an even older case from the Texas republic that there is a fundamental proposition pertaining to appellate functions of the Judicial Department: A constitutional grant of appellate jurisdiction treats a right of appeal in criminal cases ‘as a remedy to revise the whole case upon the law and facts, as exhibited in the record. Thus, when a defendant appeals a conviction, the courts of appeals have the jurisdiction to address any error in that case, including the State. When a defendant appealed his conviction, the entire case was subject to review, and the State could raise its claim of an illegal sentence without filing any notice of appeal.

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Shakespeare Week – Part III: Much Ado About Nothing and Incorporation of Social Media into Your Compliance Program

Originally published by tfoxlaw.

How does Shakespeare portend social media in the 21st century? I would submit that one only need look at Much Ado About Nothing to see how it should all play out. As with all Shakespeare’s plays there is quite a bit going on but the play centers around the action and dialogue of Benedick and […]

The post Shakespeare Week – Part III: Much Ado About Nothing and Incorporation of Social Media into Your Compliance Program appeared first on Compliance Report.

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Tuesday, April 26, 2016

SMU Dedman to create justice reform center with $7 million gifts

Originally published by Jillian Beck.

SMUlaw-quadThe Southern Methodist University Dedman School of Law announced Tuesday the creation of a new criminal justice reform center funded by $7 million in donations.

The Deason Family Criminal Justice Reform Center will support research and educational programs dealing with issues such as wrongful convictions, over-incarceration, and help to ensure fair ethical treatment of individuals involved in the criminal justice process, the SMU Dedman School of Law announced in a press release.

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What Can Affect Breathalyzer Results in Collin County?

Originally published by Rosenthal & Wadas.

Police officers in Collin County and throughout Texas commonly administer Breathalyzer or similar tests to motorists suspected of driving while intoxicated. It is important to understand, however, that a breath test only estimates a person’s blood-alcohol level. The most accurate…
Read more ›

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Security Experts Warn of Threat Hackers Pose to Medical Devices

Originally published by Robert Kraft.

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The Hill reported that “it is embarrassingly easy to hack medical devices, experts warn, creating a new security threat that could have life-or-death consequences.” The Hill explains many devices are “easily hacked” because they “are produced by legacy companies that are new to designing software” or by startups “that have to bootstrap costs.” The Hill cites how the Department of Homeland Security and the Food and Drug Administration last year “advised hospitals to discontinue using” drug infusion pump made by Hospira after it was found to have one of the most serious “vulnerabilities.” Security researcher Billy Rios highlighted several problems with protecting the medical devices against hackers, in particular their “lengthy development time” and “long life cycle” in a hospital. The Hill adds the FDA “is starting to mobilize to combat the threat, although some say the agency is not moving quickly enough.”

From the news release of the American Association for Justice.

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Winstead awards scholarships to diverse law students

Originally published by Jillian Beck.

Winstead scholarship

Winstead recently announced the winners of its annual scholarship program benefitting outstanding diverse first-year law students in Texas.

The Winstead Juris Doctor Scholarship—in its ninth year—is awarded to three exceptional and ethnically diverse students at the University of Houston Law Center, University of Texas School of Law, and Southern Methodist University Dedman School of Law.

Each winner receives a $1,500 cash award, a $1,500 grant for his or her student interest group of choice, as well as $3,500 if they accept a spot in the law firm’s summer associate program. If they end up working at the firm full-time, they receive an additional $13,500.

This year’s winners are:

  • Felix Eyzaguirre, University of Houston Law Center; grant given to the Hispanic Law Students Association at UH.
  • Judy Schweinfurth, University of Texas School of Law; grant given to the Asian Law Students Association at UT.
  • Efren Lemus, Southern Methodist University Dedman School of Law; grant given to the Hispanic Law Students Association at SMU.

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Client Development Coaching: My Advice for Junior Associates

Originally published by Cordell Parvin.

I contend it is never too early for young lawyers to learn about client development.

I have given many presentations to 1-4 year law firm associates.

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Here’s a short video and slides I hope might help. Please share these tools with the junior associates in your law firm.

Here is the link to my slides from my presentation Brand Yourself.

Finally, here is the link to my slides from a presentation I give to law firm junior associates.

 

The post Client Development Coaching: My Advice for Junior Associates appeared first on Cordell Parvin Blog.

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On-Call Scheduling not Well Received

Originally published by Thomas J. Crane.

On-call scheduling has not been well received. It is a new trend in reducing personal costs. But, it causes workers substantial stress, since they do not know until a few hours before or the night before whether they will be working. This late notice makes arranging child care virtually impossible. Attorneys general from eight states and the District of Columbia are investigating the practice. So far, they have simply sent letters seeking payroll records and policies. But, those letters prompted some large companies to drop the practice. See ABA Bar Journal report.

I would expect on-call scheduling would have greater impact on female workers, since they are more often the workers arranging child care. So, this sort of practice would impose a greater burden on women. The practice would then constitute disparate impact on female workers. I could also see how such scheduling could also aversely impact workers with disabilities. This sort of business practice may cost an employer much more over the long-term than it saves near term.

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Atari, Back From the Dead, Argues No Other Game Can Use the Phrase “Haunted House”

Originally published by Ryan Jones.

Throughout the ’70s and early ’80s, Atari was on top of the video game world, but it has not produced any new games in years. […]

The post Atari, Back From the Dead, Argues No Other Game Can Use the Phrase “Haunted House” appeared first on Klemchuk LLP.

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Volkswagen Accused of Deleting Data Showing They Cheated on Emissions Test

Originally published by By Steven Hollingsworth.

Daniel Donovan, a former information manager at Volkswagen in Michigan, has filed a whistleblower claim against his former employer after allegedly finding that his coworkers fudged data in their emissions tests. Donovan believes his employment was terminated because his superiors predicted that Donovan would report the spoliation of evidence to the Department of Justice.

It was reported in Donovan’s pleading that in September 18, 2015, after the Environmental Protection Agency issued a notice of violation against Volkswagen, he wanted to preserve evidence of all data collected for the emissions test. Donovan claimed that he was overruled by his superiors and was told to continue deleting data for storage space issues. A Volkswagen spokesperson has completely dismissed Donovan’s allegations, stating that his employment was terminated for reasons unrelated to the emissions issue.

As of March 26, 2016, not only has the Department of Justice filed a suit, but the Federal Trade Commission filed an action against Volkswagen for deceptive advertising. Regardless of whether Donovan’s allegations are true or not, the nightmare for Volkswagen seems to be never-ending. Already with an allegation that Volkswagen had violated diesel emissions standards by cheating on the data, Volkswagen sales have been dropping, as has Volkswagen’s credibility.

If you or someone you know has owns a Volkswagen that may have been subject to these tests or recalls, contact an attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend by calling 713-222-7211 or toll free at 1-800-870-9584.

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Is Beyonce Being Smart About Copyright Law?

Originally published by Androvett Legal Media Blog.

The credits on Beyonce’s new album Lemonade give a nod to the band the Yeah, Yeah, Yeahs for a lyric she uses in the chorus of her second song. Steve Mitby, a partner in the Houston-based law firm Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing, or AZA, says this was a smart move by the Houston-born pop star.

“This was well played by Beyonce. It is a huge risk for someone in a creative business to borrow anything without giving proper credit. We’ve seen this harm reputations again and again in academia, book and speech writing and in the music industry,” Mitby said.

“I tell clients to acknowledge any work they use substantially, or just in passing. What Beyonce did here is good business. The line between accepted sampling and copyright theft may be fuzzy, but giving credit where credit is due is an easy rule to follow,” Mitby said.

Artists from 2 Live Crew to Pharrell, and writers from Doris Kearns Goodwin to Mike Barnicle, have come under fire for uncredited references to others. Even Vice President Joe Biden was accused of plagiarism. It appears Beyonce will avoid those perils.

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Monday, April 25, 2016

You have the right to hear Miranda argued – this Friday 4/29

Originally published by Mary Flood.

In celebration of Law Day, the Houston Bar Association presents a reenactment of the Supreme Court arguments in Miranda v. Arizona this Friday April 29 at 2pm at 301 Fannin.

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Second Circuit Reinstates Brady’s Four-Game “Deflategate” Suspension

Originally published by Beth Graham.

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The Second Circuit Court of Appeals has reversed a New York district judge’s order vacating an arbitrator’s decision.  In National Football League Management Council et al. v. National Football League Players Association et al., No. 15-2801 (L), No. 15-2805 (CON), New England Patriots quarterback Tom Brady was suspended for four games after he was accused of participating in a scheme to cheat in a 2015 playoff game by deflating footballs to a level of pressure below that mandated by the National Football League (“NFL”).  After receiving notice of the suspension, Brady requested arbitration before the NFL Commissioner pursuant to the terms of the players’ collective bargaining agreement.  The Commissioner ultimately upheld Brady’s suspension.

Next, both parties requested judicial review before the Southern District of New York.  The district court held that the suspension proceedings were fundamentally unfair and Brady was not provided with proper notice that his conduct was prohibited.  As a result, the New York federal court vacated the NFL Commissioner’s arbitration decision.

On appeal to the United States Court of Appeals for the Second Circuit, a three-judge panel reversed the district court’s order.  According to the appellate court:

The basic principle driving both our analysis and our conclusion is well established: a federal court’s review of labor arbitration awards is narrowly circumscribed and highly deferential—indeed, among the most deferential in the law. Our role is not to determine for ourselves whether Brady participated in a scheme to deflate footballs or whether the suspension imposed by the Commissioner should have been for three games or five games or none at all. Nor is it our role to second guess the arbitrator’s procedural rulings. Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act, 29 U.S.C. § 141 et seq. (the “LMRA”). These standards do not require perfection in arbitration awards. Rather, they dictate that even if an arbitrator makes mistakes of fact or law, we may not disturb an award so long as he acted within the bounds of his bargained for authority.

After stating the arbitrator’s authority in the case was “especially broad,” the court examined the background in the case.  In a 2-1 decision, the second circuit held:

We hold that the Commissioner properly exercised his broad discretion under the collective bargaining agreement and that his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness.  Accordingly, we REVERSE the judgment of the district court and REMAND with instructions to confirm the award.

Chief Judge Katzmann dissented from the panel’s judgment in a separate written opinion.  According to the dissent:

The Article 46 appeals process is designed to provide a check against the Commissioner’s otherwise unfettered authority to impose discipline for “conduct detrimental.”  But the Commissioner’s murky explanation of Brady’s discipline undercuts the protections for which the NFLPA bargained on Brady’s, and others’, behalf. It is ironic that a process designed to ensure fairness to all players has been use unfairly against one player.

It is currently unknown whether Brady will pursue additional appellate review of the case.  We would love to hear your thoughts on the Second Circuit’s decision.

Photo credit: Anderson Mancini via Foter.com / CC BY

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Dallas Hispanic Bar event brings the law to the youth

Originally published by Jillian Beck.

Dallas High School Students

Dallas area public high school students learned about the law and how they can pursue it as a career at the Dallas Hispanic Bar Association’s Youth Law Symposium earlier this month.

About 250 students listened to Hispanic attorneys and judges at the April 8 event, which is in its third year and aims to give Hispanic and other public high school students the opportunity to learn about the law and legal professions.

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Win some, lose some.

Originally published by David Coale.

whiskeybottleThe Texas Package Sales Association, a trade association of alcohol sellers, moved for relief under Fed. R. Civ. P. 60(b) from a longstanding injunction against the enforcement of a residency requirement for sales permits. The Fifth Circuit concluded:

  1. While not a plaintiff in the original litigation, TPSA had intervened in it, and could challenge the permanent injunction; and
  2. TPSA had standing as an organization to sue about the requirement; but
  3. Subsequent Supreme Court opinions about the Commerce Clause did not create an intervening change in the law that would justify Rule 60(b) relief original litigation; and
  4. TPSA had not adequately placed at issue the alternative ground for the injunction, based on the Privileges and Immunities Clause.

A dissent would not have found that TPSA had standing to sue, characterizing its suit as an effort “to substitute itself . . for the state authorities” with jurisdiction over the applicable law. Cooper v. TABC, No. 14-51343 (April 21, 2016).

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Sixth Circuit Will Not Rehear Venue Question in Clean Water Act Rule Dispute

Originally published by Carlos J. Moreno.

On April 21, 2016 the United States Court of Appeals for the Sixth Circuit denied several petitions for rehearing en banc a Sixth Circuit panel decision that looked at which courts (federal district court or federal courts of appeal) have original jurisdiction to hear challenges to the EPA’s Clean Water Rule.  This recent ruling leaves in place the Sixth Circuit panel ruling holding that jurisdiction lies at the appeals court level.

EPA’s Clean Water Rule has already sparked a long and complicated history of litigation.  As a refresher, here are some of the highlights:

  • June 29, 2015: EPA publishes final “Clean Water Rule” setting out a new definition of “Waters of the United States.” 80 Fed. Reg. 37054 (Jun. 29, 2015).  Soon after, multiple petitions are filed challenging the rule in federal district courts and in federal circuit courts.
  • July 28, 2015: The Judicial Panel on Multidistrict Litigation consolidates the pending circuit court actions in the Sixth Circuit Court of Appeals.
  • August 27, 2015: The federal District Court for the District of North Dakota concludes that jurisdiction is proper in the district courts and enjoins enforcement of the Clean Water Rule in the 13 States that are parties to the lawsuit in front of the court.
  • October 9, 2015: The Sixth Circuit Court of Appeals issues a nationwide stay of the Clean Water Rule. In Re: Environmental Protection Agency and Dep’t of Defense Final Rule “Clean Water Rule”, Nos. 15-3799/3822/3853/3877, 803 F.3d 804 (6th Cir. 2015).
  • February 22, 2016: A three-judge panel of the Sixth Circuit Court of Appeals holds that the circuit courts have jurisdiction to hear the challenges to the Clean Water Rule.
  • March 3rd, 2016: The Federal defendants file a Motion to Dismiss the North Dakota District Court case in light of the Sixth Circuit’s decision from February 22nd.
  • March -April 2016: Several Parties file petitions to the Sixth Circuit for rehearing en banc the panel decision on jurisdiction from February 22nd.
  • April 21, 2016: The Sixth Circuit denies the en banc petitions, leaving the February 22nd decision in place.

We will have to wait and see if the States and industry groups challenging jurisdiction in the Sixth Circuit will appeal to the U.S. Supreme Court.  Meanwhile, there are still parallel proceedings questioning jurisdiction at the North Dakota district court and the Eleventh Circuit (on appeal from the District Court for the Southern District of Georgia).  The Sixth Circuit’s denial of rehearing makes it more likely that the Clean Water Rule will ultimately be reviewed in the circuit courts, specifically, the Sixth Circuit.  However, the order has no immediate substantive effect on the regulated community because it leaves in place the nationwide stay of the Clean Water Rule.

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Court Affirms Holding That A Trust Owns Stock That Was Issued To The Trustee In His Individual Capacity

Originally published by David Fowler Johnson.

In Dutcher v. Dutcher-Phipps Crane & Rigging, Inc., a trust owned twenty percent of a family limited partnership that in turn owned a family business. No. 08-15-00202-CV, 2016 Tex. App. LEXIS 3809 (Tex. App.—El Paso 2016, no pet. history). The family business was converted from a C Corp to an S Corp. Because a partnership cannot own stock in a S Corp, this required the family limited partnership to transfer shares of the S Corp stock to its partners. The family limited partnership issued shares to the trustee in his individual name, not in his capacity as trustee.  After the trustee died, the trustee’s wife alleged that the shares went to her under the residuary clause in his will, and that the trust did not own the shares. The trial court found that the trust did own the shares, and the widow appealed.

The court of appeals affirmed, holding that a stock certificate “is not synonymous with actual ownership of the shares represented by the certificate; it is merely some evidence of ownership.” Id. Rather, the court cited a previous opinion on the test for proving the ownership of stock:

As between transferor and transferee, it seems to be the rule that transfer of title may take place though there is no delivery of the certificates themselves, nor endorsement of them, nor transfer of them on the books of the corporation, and even though the sale be by parol. In each case the inquiry is whether the minds of transferor and transferee met, whether there was an intention that the stock should then and there be vested in the transferee, and whether there were acts in the nature of a symbolical delivery of the property. In this latter connection it is to be remembered that the certificates of stock are not in themselves property, but are only evidence of the interest of the stockholder in the corporation. It is possible under some circumstances for one to own stock in a corporation though no certificate has been issued to him or endorsed or delivered to him, and likewise it is possible under some circumstances for title to the stock to pass without delivery of the certificate of stock or without written assignment of it.

Thus, the court held that establishing ownership depends on the evidence presented, including the nature of the parties, the nature of their relationship, and their representations to each other. The court then reviewed the facts and determined that the trustee intended to transfer the stock to himself as trustee, not in his individual capacity. The court concluded that “The only capacity in which Paul was a partner in Dutcher FLP was in his capacity as Trustee of The Paul K. Dutcher Living Trust Three and Trustee of The Paul K. Dutcher Living Trust One. Therefore, we can only conclude that, despite the issuance of the stock certificate to Paul, individually, Dutcher FLP and Dutcher-Phipps intended the 400 shares in dispute to vest in Paul, as trustee.” The court also affirmed the trial court’s judgment on a claim of mutual mistake.

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Friday, April 22, 2016

Top Ten from Texas Bar Today: Impeachments, Company Jokes, and Getting SLAPPed

Originally published by Teri Rodriguez.

To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.

Top Ten10. High School Sports Injuries – Paul Cannon of Simmons and Fletcher, P.C. @SimmonsFletcher in Houston

9. When the Company’s Joke Backfires – Drew York of Gray Reed & McGraw @GrayReedLaw in Dallas

8. Home Warranty Dispute Referred to Arbitration Despite Alleged UnconscionabilityKelli Hinson of Carrington Coleman Sloman & Blumenthal LLP @ccsblaw in Dallas

7. Can My Client be Impeached with Prior Juvenile Adjudications? – JoAnne Musick of Musick & Musick LLP @MusickLegal in Houston

6. They Did What? Microsoft Stands Up For the PeopleAnne K. Ritchie of Harris County Criminal Lawyers Association @HCCLA_org in Houston

5. Best Practices to Avoid Plagiarism and Copyright Infringement – Darin Klemchuk of Klemchuk LLP @KK_LLP in Dallas

4. How you do not want jurors to look at you: The  universal “not face”  – Rita Handrich @TheJuryExpert of Keene Trial Consulting in Austin

3. Employer Action Required Following Issuance of Final Rule –  Lori Oliphant of Winstead PC @WinsteadPC in Dallas

2. Supreme Court Hears Oral Arguments in U.S. v. Texas  –  Susan I. Nelson of the the Nelson Law Firm, P.C. @TexImmLaw in Waco

1. When You Get SLAPPed, You Can Get SLAPPed Hard – Joseph Y. Ahmad @CSuiteLegal of Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. in Houston

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Home Warranty Dispute Referred to Arbitration Despite Alleged Unconscionability

Originally published by Carrington Coleman.

Bonded Builders Home Warranty Association v. Smith
Dallas Court of Appeals, No. 05-15-00964-CV (April 21, 2016)
Justices Lang (Opinion), Evans, and Whitehill
Kelli Hinson

James Smith and Michelle Eyrich had problems with their new home, and they didn’t want their home warranty dispute to go to arbitration. The homeowners argued, among other things, that the warranty company’s ability to choose the arbitrator ensured the process would be biased and too expensive and that the arbitration agreement deprived them of important rights under the DTPA and attorneys’ fee statute. The trial court agreed and denied the warranty company’s motion to compel arbitration. The homeowners were not as successful on appeal, but didn’t leave empty-handed.

The Dallas Court of Appeals rejected the homeowners’ argument that the arbitration agreement was too vague, even though the agreement did not specify where the dispute was to be arbitrated, the identity of the arbitration organization to be used, or the rules and costs of arbitration. Although the homeowners argued those terms were “ones that any reasonable person would consider vitally important,” the Court held they were not “essential terms” to an arbitration agreement. The homeowners also argued the arbitration agreement was invalid because the warranty company allegedly had “sole authority to select the arbitrator(s),” and thus ensured the appointment of biased and partial arbitrators. The Court of Appeals disagreed with the homeowners’ factual premise, noting that the warranty company was to provide a list of “approved arbitration companies” from which the homeowners could choose and so the warranty company did not in fact have “unrestricted and exclusive control of the arbitrator to be chosen.” The homeowners’ fear that the proscribed process would result in a biased arbitrator was “a matter of pure speculation.” The Court likewise rejected the homeowners’ argument that arbitration would be prohibitively expensive because there was no evidence in the record of the actual cost of arbitration under the rules to be selected. “While claimants are not required to actually incur the cost of arbitration before they can show excessiveness, parties must at least provide evidence of the likely cost of their particular arbitration, through invoices, expert testimony, reliable cost estimates, or other comparable evidence.”

The Court of Appeals did give the homeowners some relief, however. The arbitration agreement stated that each party was to pay its own attorneys’ fees and that the arbitrator had no authority to award attorneys’ fees. The Court held the homeowners had a potential statutory right to attorneys’ fees under the DTPA and/or Chapter 38 of the Texas Civil Practice & Remedies Code and any alleged waiver of that right was insufficient. The defects in the agreement did not render the entire agreement unenforceable, as the homeowners hoped, but those portions of the agreement stripping the arbitrators of authority to award fees were invalid.

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High School Sports Injuries

Originally published by Paul Cannon.

High School Sports Injuries High school sports are complicated, highly orchestrated sporting events with some school districts sinking millions into their sports budget and benefactors providing private Learjets to and from sporting events all across the state. Some stadiums cost several tens of millions of dollars with professional sports level equipment and trainers. At the […]

The post High School Sports Injuries appeared first on Simmons and Fletcher.

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When the Companys Joke Backfires

Originally published by Drew York.

april-fools-at-workHarvey Slapstick, CEO of Jokes-R-Us, decided an April Fool’s prank on his employees was just what the company needed to boost morale. So he hired two former soldiers to conduct a fake hostage situation at the company’s office. In an effort to ensure things wouldn’t get out of hand, Slapstick advised the police and 911 emergency system. When the hostage situation went down, Jimmy Wannabe, a weekend warrior, decided to play hero. Wannabe shot the “hostage takers”, but also injured Elizabeth Little, a Jokes-R-Us employee. When Little heard that Slapstick orchestrated the prank, she sued him and the company.

Liability for Office Pranks.

Previously, we’ve written about when a prank among friends goes too far. Many companies have gotten into the act in recent years and pulled their own April Fool’s prank on customers or employees. Some pranks go well, but some pranks come off poorly. If Slapstick knew, or had reason to know, that Wannabe might take the law into his own hands, Slapstick and Jokes-R-Us are likely liable. For example, if Slapstick knew that Wannabe carried a gun with him at the office, Slapstick and Jokes-R-Us are liable for creating a dangerous situation.

Tilting the Scales in Your Favor.

April Fool’s pranks can be lots of fun, but you have to think ahead. Is there any chance that people who aren’t in on the joke could be injured, or could injure someone else? If so, the prank’s probably not one you should move forward with. You should also run your proposed prank past some friends to see if they think it’s a good idea. Slapstick clearly didn’t think things through or seek advice.  In the end, the company will pay for the prank going wrong.

The post When the Company’s Joke Backfires appeared first on Tilting the Scales.

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Houston Legal Links

Originally published by Mary Flood.

Top legal news includes: Chevron trader, energy consultant charged in bribery scheme; Court Tosses Lawsuit Over Medicaid Cuts to Therapy Services; Capital Murder Charges Filed Against Man Suspected in Midtown Double Slaying; Federal Court Orders Sanctions Against Fort Worth Defense Counsel (Texas Lawyer); Texas Law Grads Struggle to Land Lawyer Jobs (Texas Lawbook); Being Sid Miller is Getting Increasingly Complicated; Trooper in Sandra Bland case gets reprieve; Despite Indictments, Ken Paxton Plans to Run Again; Texas Cities See Crime Rates Dropping; Federal Judge Rejects Exxxotica’s Plea (Texas Lawbook); Is Meyerland Now a Detention Pond for the Texas Medical Center?; Public Works Didn’t Install Barriers for Flooded Underpasses Because It Assumed Drivers Would Ignore Them; I-Team: Mykawa Houston railroad crossing makes list of most dangerous; Tiger found wandering in Conroe neighborhood; Is the New Head of Texas’s Broken Foster Care System Really Interested in Reform?; Case of former drug cartel lawyer slain in rich North Texas town heads to trial; Texas hamstrung when it comes to properly funding employee pensions; Bernie Tiede’s Fate Will Soon Rest With Jury; Schlumberger cuts 2,000 more jobs & Why Little Gas Leaks Are Adding Up To Big Losses For Texas.

For the water cooler: Pacer fees are too high, class action alleges; Women lawyers at Wall Street firms rarely promoted to partner, study finds; Now That There Aren’t As Many Law Students, Hiring Has Stabilized (NALP 2016); Homeland Security lawyer admits forging documents that could have led to Mexican man’s deportation; The Legal Battle Over Prince’s Name; Prosecutors Say Fitbit Device Exposed Fibbing in Rape Case; Lawyer with state attorneys general practice didn’t violate lobbying law, ethics commission finds; CIA doesn’t have to release legal memos on targeted killings by drones, DC Circuit rules; SCOTUS considers laws that make it a crime to refuse blood-alcohol tests; What To Do When You’re The Only Female Lawyer In The Room; Ex-DA is labeled a ‘sexual predator’ at news conference; defense lawyer complains of ‘smear tactic’; Suit claims ‘Love It or List It’ overcharged homeowners and did shoddy rehab work; Ask The Professor: What Happens If You Fail The Bar Exam?; Lawyer accused of surreptitiously buying client’s property is hired as city attorney & When can two lawyers from different firms divide a fee in a referral arrangement?

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Jury duty scam spreading across Texas

Originally published by Lindsay Stafford Mader.

Cities and counties across Texas are reporting recent attempts where scammers call individuals and accuse them of missing jury duty. They then demand that the victims pay a hefty fine over the phone. The callers, however, are not affiliated with a court and are simply trying to trick the victims into giving them money.

Fort Bend County’s website is alerting people that “identity thieves have … asked for confidential information and claimed to be with County District Clerk’s Offices.” But the county warns, “these scammers are threatening jurors in an attempt to fraudulently receive money. Do not give them money or credit card information. The staff of the Fort Bend County District Clerk’s Office will never call you and ask for your Social Security number, credit card numbers, or other sensitive information.”

Meanwhile, the same scam is targeting residents of Dallas County. NBC DFW reported on March 18 that officials were investigating an incident where a man was conned out of $16,000 over the phone because the caller said he was a Sheriff’s deputy collecting fines for missed jury duty. The Sheriff’s Department estimates about a dozen similar victims this year, many of whom are reporting that the scammers are very smooth, often say that driving licenses are going to be suspended if they don’t pay, know actual judges’ names, and that the phone numbers show up on caller ID as a Sheriff’s Department number. Losses have ranged from $500 to several thousand to the $16,000.

The Richmond Police Department is looking into complaints where scammers say the person has an active warrant, a missed court date, or missed jury duty and will be sent to jail if the fine isn’t paid. A few months earlier, McLennan County warned citizens of similar scams. KXXV reported that the victims are often elderly and worry that they might have somehow missed jury duty even though they don’t remember having been summoned. News reports indicate that such missed jury duty scams have been going on in Texas for several years.

If you receive a suspicious call, do not give your information out over the phone. Call your local law enforcement.

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Employer Action Required Following Issuance of Final Rule

Originally published by Lori T. Oliphant.

News Alert - Employer Action Required Following Issuance of Final Rule

On April 8, 2016, the Department of Labor (DOL) released the much anticipated final regulation to broaden the scope of fiduciary status under the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code of 1986, as amended (Code).  While the final rule will become officially effective on June 7, 2016, its requirements are not applicable until April 10, 2017.  The DOL explained that the purpose in making the rule officially effective right away and yet not applicable until next year was to provide certainty that the rule is indeed final and not subject to modification without additional public notice and comment.  Thus, parties affected by the final rule may therefore begin planning for compliance with assurance of the provisions.

The final rule replaces a long-standing regulatory interpretation of the term “fiduciary” as it relates to the provision of investment advice for employee benefit plans and other tax-advantaged accounts, such as individual retirement accounts and health savings accounts (collectively referred to herein as IRAs).  Since the issuance of the prior interpretation, there has been significant utilization of participant-directed plans, more rollovers of retirement plan assets, and increased sophistication of financial products.  Due to these changes in the marketplace, the DOL concluded that the final rule was necessary, particularly, to protect the interests of participants, beneficiaries, IRA owners, and small plan sponsors (collectively referred to herein as retail investors).  The results of the final rule are far reaching.  Traditional investment advisors, as well as broker-dealers, insurance brokers, banks, and employers, will be interested in how this rule affects them, and the guidance will undoubtedly continue to develop over the coming months. (Read More)

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Bank Markazi v. Peterson

Originally published by SupremeCourtHaiku.

ruth ginsburgVictims of terror

Can access assets held by

Iranian bank

Opinion

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Can My Client be Impeached with Prior Juvenile Adjudications?

Originally published by joannemusick.

Well, generally, no, but it depends. (Don’t you just love that answer!)

Texas Rules of Evidence, Rule 609(a) speaks generally to impeachment with criminal convictions. Juvenile adjudications are not criminal convictions, and are therefore, generally not admissible for impeachment purposes. Rule 609(d) specifically addresses juvenile adjudications:

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1) the witness is a party in a proceeding conducted under title 3 of the Texas Family Code; or

(2) the United States or Texas Constitution requires that it be admitted.

A close reading of Rule 609(d) allows a juvenile to be impeached with his prior juvenile adjudications if that child is testifying in his own juvenile trial, but it does not extend to non-juvenile proceedings. In other words, the prior juvenile adjudication cannot be used to impeach an adult in a criminal proceeding.

Notice the distinction: a prior juvenile record cannot be used for general character impeachment of a witness. However, pursuant to 609(d)(2) the Constitution may require a prior juvenile adjudication to be admitted for impeachment purposes. For example, if a witness is currently on juvenile probation that record might be used to impeach that witness under a theory of possible bias or prejudice (a juvenile on probation might have been offered a favor for his testimony or may believe he will receive a favor for his testimony). Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105 (1974); see also Foster v. State, 25 S.W.3d 792 (Tex. App. – Waco 2000).

So, for a juvenile on trial in a juvenile proceeding, his own priors can be used to impeach him. Outside of this situation, it will require a Constitutional issue such as bias or prejudice before a prior juvenile adjudication will be admissible for impeachment purposes.

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Thursday, April 21, 2016

Best Practices to Avoid Plagiarism and Copyright Infringement

Originally published by Darin Klemchuk.

DOWNLOAD THIS PRESENTATION This presentation focuses on the difference between plagiarism and copyright infringement, the penalties, and ways to avoid both. Keys to Avoiding Plagiarism […]

The post Best Practices to Avoid Plagiarism and Copyright Infringement appeared first on Klemchuk LLP.

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Fifth Circuit Holds Diversity Jurisdiction Exists After FINRA Issues $10K Arbitration Award

Originally published by Beth Graham.

ny-stock-exchange
The United States Court of Appeals for the Fifth Circuit has ruled that federal diversity jurisdiction existed after the Financial Industry Regulatory Authority (“FINRA”) issued a $10,000 arbitration award.  In Pershing, LLC v. Kiebach, No. 15-30396 (5th Cir. April 6, 2016), several investors filed an $80 million arbitration complaint with FINRA against a clearing broker, Pershing, after the investors suffered a financial loss due to a Ponzi scheme.   In their complaint, the investors accused Pershing of failing to disclose certain adverse financial information to them.  Following a hearing, a FINRA panel rejected the investors’ claims.  Despite this, the panel ordered Pershing to pay $10,000 in arbitration-related expenses.

Next, Pershing sought to confirm the arbitral award in federal court.  In response, the investors asked the court to dismiss the case because the arbitration award fell well below the amount in controversy requirement enumerated in 28 U.S.C. §1332(a).   The district court ruled the $75,000 amount in controversy requirement was met based on the investors’ initial $80 million claim.  The investors then filed an interlocutory appeal with the U.S. Court of Appeals for the Fifth Circuit.

On appeal, the Fifth Circuit stated:

In its order denying Appellants’ motion to dismiss, the district court concluded that the demand approach was the correct one: “[e]ach approach has strengths and weaknesses, and the issue is one that will be resolved by the Fifth Circuit. However, having considered . . . [the cited authority] the Court finds that the demand approach is more appropriate.” Pershing, 101 F. Supp. 3d at 573.

We agree. Based on Appellants’ arbitration demand of $80 million, the district court correctly concluded that the $75,000 amount in controversy requirement was met. First, the demand approach recognizes the true scope of the controversy between the parties. The only logical assumption about Appellants’ efforts to prevent confirmation of this arbitration award is that they want a second chance to pursue their claims. The $10,000 award “is but the last stage of litigation” that began with an $80 million controversy. Pershing, 101 F. Supp. 3d at 573. Therefore, the amount at stake is the $80 million that Appellants initially sought in arbitration, not the minimal award for arbitration-related costs.

The Court of Appeals added, “the demand approach avoids the application of two conflicting jurisdictional tests for the same controversy.”  The Fifth Circuit also stated using the demand approach ensured that “the amount in controversy is measured the same way in federal court for litigation and for matters submitted on petitions to compel arbitration: the plaintiff’s pleading, not the ultimate result in the case, governs jurisdiction.”

Finally, the U.S. Court of Appeals for the Fifth Circuit affirmed the lower court’s decision stating diversity jurisdiction existed in the case.

Disputing would like the thank Liz Kramer at Arbitration Nation for alerting us to this case.

Photo credit:  Joseph Paulino  / publicdomainpictures.net / Public Domain

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Magistrates remand rulings and appellate review

Originally published by David Coale.

articleiiiA magistrate judge ordered remand to state court in Davidson v. Georgia-Pacific. The Fifth Circuit concluded that because “a remand order is dispositive insofar as proceedings in the federal court are concerned,” it is “the functional equivalent of an order of dismissal.” Therefore, a magistrate judge could not make a final ruling on a motion to remand. In so holding, the Court “join[s] the uniform view of the courts of appeals that have considered this question[.]” No. 14-30925 (April 19, 2016).

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Texas Board of Legal Specialization seeks input on proposed child welfare specialty

Originally published by Jillian Beck.

The Texas Board of Legal Specialization is seeking input from State Bar of Texas members on the creation of a new child welfare law specialty area.

The Supreme Court of Texas Permanent Judicial Commission for Children, Youth and Families—backed by the Texas Supreme Court—has submitted an application for board certification in the field.

The board currently certifies attorneys in 22 areas, including criminal, family, and tax law. To hold board certification, a lawyer has substantial, relevant experience in a specific field of law and has demonstrated and tested special competence in the area.

The State Bar of Texas Committee on Child Abuse and Neglect supports the proposal, and more than 100 Texas attorneys have expressed strong interest in seeking the new certification to help ensure that the state’s most vulnerable citizens receive high quality, competent legal representation when dealing with the child protection system.

The proposed child welfare law certification focuses on attorneys who serve as ad litems for children and parents or who represent the state in child protection cases brought by the Texas Department of Family and Protective Services.

The certification does not include specialization in legal representation in private child custody or adoption matters where the state is not a party.

TBLS seeks any comments from bar members regarding the proposed standards for certification and the potential adoption of the new specialty area, as called for in the Texas Plan for Recognition and Regulation in the Law.

Send comments by May 31 to tbls@texasbar.com or 505 E. Huntland Dr., Ste. 400, LB 28, Austin, 78752.

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Stories of Recovery: Support Groups are Life-Changing

Originally published by Guest Blogger.

Over the past 15 years, a toxic combination of the general slowing-down of litigation (especially the near disappearance of my life’s work, jury trials) and a major health setback involving chemotherapy sent me into what the psychiatrists call a major depressive disorder. In everyday parlance, I was suffering from Depression, with a capital “D.”

Editor’s note: This story is part of the Texas Lawyers’ Assistance Program’s “Stories of Recovery” series. TLAP offers confidential assistance for lawyers, law students, and judges with substance abuse or mental health issues. Call TLAP at (800) 343-8527 and find more information at texasbar.com/TLAP.

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They Did What? Microsoft Stands Up For the People

Originally published by » Blog.

When did corporations become the bell ringers for individual freedoms in the United States? Last week, Microsoft sued the Department of Justice to declare part of the Electronic Communications Privacy Act (18 U.S.C. § 2705(b)) unconstitutional for violating the First and Fourth Amendments. Apple recently refused to comply with a demand to hack into one […]

The post They Did What? Microsoft Stands Up For the People appeared first on HCCLA’s Reasonable Doubt.

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Court Rules on Rights of Respondents in FERC Enforcement Actions

Originally published by » Blog.

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Austin Bar Animal Law Section hosting Animal Well-Fair

Originally published by Jillian Beck.

Looking for ways to help animals in Austin or maybe a furry friend to call your own?

Well, you’re in luck.

The Austin Bar Association’s Animal Law Section is hosting its fourth annual “Animal Well-Fair” on Saturday, an event that aims to educate the public about local animal shelters and animal welfare groups.

A dog from a local animal shelter at last year's event. Photo courtesy of the Austin Bar Association.

Attendees will hear short presentations from animal welfare organizations and then have a chance to speak to representatives one-on-one to learn more about how they can volunteer, foster, adopt, or donate to help the area’s animals.

The groups set to attend so far are:

  • Austin Animal Center
  • Bastrop County Animal Shelter
  • Friends of Austin Animal Center
  • Bastrop County Animal Advocates
  • Pflugerville Pets Alive!
  • Texas Federation of Animal Care Societies

The organizations will be accepting monetary donations as well as new or gently used pet supplies.

Animals will be available for adoption during the event outside the Northwest Recreation Center at 2913 Northland Dr., weather permitting.

The event, which runs from 3 to 5 p.m. is free and open to the public.

 

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When You Get SLAPPed You Can Get SLAPPed Hard

Originally published by Joseph Y. Ahmad.

Lawyers who are keeping an eye on SLAPP litigation will want to review the Texas Supreme Court’s April 15 ruling in Sullivan v. Abraham. In its brief decision, the court provided a little more clarity in this emerging area of litigation that can affect many areas of law, including trade secrets. Continue reading →

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Wednesday, April 20, 2016

University of Kentucky and Kentucky Mist Moonshine Dispute Trademark on Kentucky

Originally published by Ryan Jones.

Colin Fultz, the grandson of a bootlegger, runs a small distillery in Kentucky that produces his signature Kentucky Mist Moonshine, and he sells T-shirts, hats, […]

The post University of Kentucky and Kentucky Mist Moonshine Dispute Trademark on “Kentucky” appeared first on Klemchuk LLP.

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Tuesday, April 19, 2016

No surprise that the FBI is warning law firms that they are cybertargets for insider trading

Originally published by Peter S. Vogel.

A FBI Privacy Industry Notification identified in “a recent cyber criminal forum post an advertisement to hire a technically proficient hacker for the purposes of gaining sustained access to the networks of multiple international law firms.” Bloomberg BNA reported about the March 4, 2016 FBI Notification entitled “FBI Alert Warns of Criminals Seeking Access to Law Firm Networks” but the FBI did not share the name of the forum or when it was posted, however BNA identified the ‘Panama Papers’ Spill Insider Secrets’ were leaked by the “11.5 million records from the Panama-based law firm Mossack Fonseca.”

Data Breach Today reported that the 2.6-terabyte of “leaked data originated from Mossack Fonseca & Co., a Panama-based law firm that has more than 40 offices worldwide, including in the Bahamas, China, Columbia, Israel, the Netherlands, Singapore, Thailand and the United Kingdom” and revealed:

…how the shell companies have been used to launder extensive amounts of money, including $2 billion that’s been tied to banks and shadow companies linked to associates of Russian President Vladimir Putin,…

All law firms need to be vigilant since they have always been targets since they have client secrets, even apparently not all law firms admit such intrusions.

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Supreme Court Hears Oral Arguments in U.S. v. Texas

Originally published by Susan I. Nelson.

From the American Immigration Council:

Supreme Court Hears Oral Arguments in U.S. v. Texas
Government Makes Strong Case for Moving DAPA Forward

April 18, 2016

Washington D.C. – Today, the Supreme Court heard oral arguments in United States v. Texas. The highest court will now decide whether the President’s deferred action initiatives announced in November 2014, known as expanded DACA and DAPA, move forward.

“The lawyers arguing for the deferred action initiatives made a convincing case that the law and the Constitution are on our side. As expected, the Justices asked probing questions to both sides, demonstrating they understand the high stakes involved this case,” said Beth Werlin, Executive Director of the American Immigration Council.

According to the Council’s Legal Director Melissa Crow, “Much of the argument focused on whether Texas really has standing – a sufficient stake in the outcome of the case to file a lawsuit. The arguments highlighted the fact that this is a political dispute about enforcement policies, not the type of legal dispute that should be before the Supreme Court. Texas’ arguments on standing are unconvincing. As Justice Breyer noted, a finding by the Court that Texas has standing could flood the courts with lawsuits based on all kinds of political disagreements between States and the federal government.”

President Obama’s deferred action initiatives advance common-sense enforcement priorities. To qualify for deferred action, individuals must have continuously resided in the United States since January 1, 2010, register with the government and pass a criminal background check. Instead of tearing apart families through broad enforcement actions, the President is letting law enforcement officials focus their attention on those who pose the greatest threats to public safety.

The American Immigration Council and 325 other immigrants’ rights, civil rights, labor and service-provider organizations filed an amicus brief in the case outlining how families and communities would benefit from the initiatives.

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Monday, April 18, 2016

DVAP hosts free divorce clinic for Dallas-area residents

Originally published by Amy Starnes.

The Dallas Volunteer Attorney Program will hold a free “Pro Se Divorce Legal Clinic” for Dallas County residents who meet certain financial criteria at noon Wednesday, April 27, at the Jubilee Park and Community Center, 907 Bank St., Dallas.

This clinic occurs on the fourth Wednesday of every month, with the exception of November and December.

Volunteer attorneys will provide free divorce assistance for low-income residents. To qualify for aid, you must be a legal citizen of the United States, have a minimal amount of property with no property disputes, and have had no family violence within the last 90 days, unless there is a protective order or you have been denied one.

If you need assistance before or after the clinic, DVAP hosts several legal clinics each month. Go here for a full list. Residents may also call the Dallas Bar Association’s Lawyer Referral Service at 214-220-7444.

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Road Rage And Conflict Resolution

Originally published by Stuart Mauney.

When was the last time someone cut you off with a quick lane change on the Interstate? Did you curse them or give them the “finger”? Maybe someone dashed into that prime parking spot just ahead of you. Or, that sports car was tailing you just a little too closely, so you tap on your brakes? Chances are none of these incidents resulted in death or even physical violence. However, recent events remind us that road rage remains a serious problem on our highways.

Former NFL Football player, Will Smith, who won a Super Bowl with the New Orleans Saints, was recently shot and killed in an apparent road rage incident in New Orleans. In its article on Smith, USA Today reported that this was our country’s third high profile road rage incident in less than a week. National Highway Traffic Safety Administration data tells us that road rage or aggressive driving were reported as a factor in 375 fatal crashes that resulted in 418 deaths in 2014.  A recent survey by the AAA “found 87% of respondents said they believed aggressive drivers were a ‘somewhat’ or ‘very serious’ threat to their personal safety.”

It sounds like we all need to refer back to our basic driver training courses. However, some have suggested that solving the road rage problem has more to do with psychology than driving skills. Jeff Asher, a crime data consultant, was quoted in the USA Today article as saying, “It’s about conflict resolution. It starts in childhood, with education. Teaching people to resolve their conflicts peacefully.”

Asher makes a good point. Perhaps our schools could do a better job of educating our kids about conflict resolution. Perhaps our churches could do a better job of reminding us that “blessed are the peacemakers.” Perhaps each of us could individually do a better job of keeping the peace, both in our personal lives and while driving on our highways. The next time you get cut off in traffic, perhaps the best advice is to count to ten and move along.

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How you do not want jurors to look at you: The  universal “not face” 

Originally published by Rita Handrich.

mckayla_impressed_ap_328Olympic gymnast McKayla Maroney had a bad day at the Olympics in 2012 and the facial expression illustrating this post went viral. She was “not impressed” said the internet—and today’s researchers would say the internet was half right. What McKayla Maroney was really showing us, according to today’s research, was the universal “not face”.

Researchers from Ohio State University wanted to know if there was a universal facial expression that spans multiple cultures. They found one and McKayla’s brief expression captures it perfectly. The researchers wanted to see if they could find clues to the evolution of spoken language. It is apparently a common belief that, before humans developed language, we had a collection of facial expressions to communicate emotions. So the researchers filmed 158 Ohio State University students while speaking in their native languages. The researchers used participants who spoke in English (a Germanic language), Spanish (based in Latin), Mandarin Chinese and American Sign Language (ASL).

Past research had established that facial expressions of anger, disgust and contempt could be found in all cultures. The researchers wondered if the three universal negative facial expressions had been combined over time into a single negative facial expression. And yes it has. Here is what the researchers call the “universal not face”. You will note the similarity to McKayla’s “not impressed” face. The researchers describe the expression like this:

It consists of a furrowed brow, pressed lips and raised chin, and because we make it when we convey negative sentiments, such as “I do not agree,” researchers are calling it the “not face.”

not face

Even in American Sign Language (ASL), the researchers found the “not face”. The researchers explain the word “not” can be signed with hands or it can simply be indicated by a shake of the head. However, sometimes, the researchers found, the “not face” was occasionally used in ASL without either the hand sign for “not” or the head shake. In other words, at times in ASL, the only way you know that the word “not” has been used is from the expression these researchers call the “not face”.

This study required hours and hours of painstaking frame-by-frame video analysis. The researchers now plan to automate the painstaking study of thousands of frames of films they analyzed while completing this study and then analyze one billion frames (for 10,000 hours of data) of YouTube footage of people speaking in an attempt to identify other “facial grammatical markers”. If you’d like to read more about this study, Newswise has a nice writeup.

From a litigation advocacy perspective, we think the lesson here is clear. If jurors listen to you with this expression (which is, as you recall, a combination of anger, disgust and contempt) it is likely not a good thing for your case. We’ve all seen this look. Most of us have probably mimicked this facial expression. Now it has a name and we can fear it in the jury boxes not just in the United States but of the world.

Benitez-Quiroz CF, Wilbur RB, & Martinez AM (2016). The not face: A grammaticalization of facial expressions of emotion. Cognition, 150, 77-84 PMID: 26872248

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No harm, no foul – no standing.

Originally published by David Coale.

no-harm-no-foulThe plaintiffs in Wendt v. 24 Hour Fitness USA, Inc. complained about several violations of the Texas Health Spa Act in the form membership contract of 24 Hour Fitness. Noting the specific remedies provided by that Act, the Fifth Circuit held: “We agree with the district court that Plaintiffs suffered no injury-in-fact. 24 Hour’s alleged violations of the Act did not harm Plaintiffs in any way. To the contrary, 24 Hour gave Plaintiffs exactly what they paid for: access to a gym. Plaintiffs therefore lack Article III standing, and the district court
properly dismissed the case.” No. 15-10309 (April 13, 2016).

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Crossing the Canadian Border with a Texas DWI Conviction

Originally published by Brandon Barnett.

Traveling to Canada, Eh?  Travel Plans for Some Americans May Be Foiled as Canada Cracks Down on DWI Arrests and Convictions Do you have a DWI conviction in the Texas…

The post Crossing the Canadian Border with a Texas DWI Conviction appeared first on Fort Worth Criminal Defense DWI Attorney.

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Common Ways Businesses Leak Trade Secrets Without Their Knowledge

Originally published by Leiza Dolghih.

bookkeeping-online-sofware-computer-tablet-phoneIf you have a business, you have trade secrets. It is really that simple. In Texas, any information can be a trade secret as long as (1) it has economic value because it is not generally known and (2) the owner of the information has used reasonable efforts to keep it secret. Customer lists, pricing and discounts, manufacturing designs, financial data, food recipes – are all common examples of trade secrets. 

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Barbara Jordan American Inn of Court receives charter in Austin

Originally published by Jillian Beck.

Chief Judge Carl E. Stewart of the 5th U.S. Circuit Court of Appeals presented the new Barbara Jordan American Inn of Court with its charter at the federal courthouse in Austin on April 14.

Stewart, president of the American Inns of Court Board of Trustees, spoke of the important role that inns of court play to inspire the legal community to advance the rule of law, while also preserving the unique character of the American legal system.

“I am so proud that in your inauguration you have taken the time to find how Barbara Jordan so aptly fits what the American Inns of Court stand for,” Stewart said.

A lawyer, Jordan was the first woman elected to the Texas Senate in 1966 and the first African-American woman from the Deep South elected to the U.S. House of Representatives, where she served from 1972 to 1978.

Jordan was famous for her participation in the Watergate hearings in the ’70s and went on to teach at the University of Texas’s Lyndon B. Johnson School of Public Affairs after she retired from Congress.

Accepting the charter from Stewart were Frank A. King, president and co-founder of the new inn of court and an assistant attorney general; Austin Municipal Court Presiding Judge Sherry Statman, president-elect of the inn of court; and Texas Supreme Court Justice Jeff Boyd, counselor of the inn of court. JoAnn Dalrymple, treasurer and co-founder, could not attend.

Inns of court are associations of lawyers, judges, and other legal professionals from all levels and backgrounds who are dedicated to achieving the highest standards of professionalism, ethics, civility, and skills in the legal field and to fostering mentoring relationships among members.

(From left) Austin Municipal Court Presiding Judge Sherry Statman, Assistant Attorney General Frank A. King, Chief Judge of the 5th U.S. Circuit Court of Appeals and Texas Supreme Court Justice Jeff Boyd applaud the presentation of the Barbara Jordan American Inn of Court's charter at a ceremony April 14 at the federal courthouse in Austin. PHOTO BY JILLIAN BECK

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