Thursday, June 30, 2016

Defense of Third Party Not Allowed in Fort Worth Domestic Violence Case

Originally published by Brandon Barnett.

This week, the Texas Court of Criminal Appeals released Henley v. State. In a 4-3 decision the divided court held that the defendant was not allowed to offer “defense of…

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Originally published by The Movie Court.

A new review from The Movie Snob.

Genius  (B).  This movie isn’t doing too well with the critics (current score of 56 over at but I think they are somehow overlooking the fact that Nicole Kidman (Dead Calm) is in the movie.  Just kidding!  Anyhoo, perhaps my low expectations led me to enjoy it more than I otherwise would have.  It’s a biopic about editor Max Perkins (Colin Firth, The King’s Speech) and novelist Thomas Wolfe (Jude Law, Sky Captain and the World of Tomorrow).  Back around the year 1929, Wolfe was a manic would-be writer out of North Carolina with a married mistress (played by Kidman), and Perkins was a buttoned-down family man with five daughters.  The movie basically just tells the story of their sometimes-difficult relationship as Perkins shaped Wolfe’s thousands of pages into manageable novels that met mainstream and critical success.  Other authors that Perkins edited also pop up, like a washed-up F. Scott Fitzgerald (Guy Pearce, Memento) and a macho Ernest Hemingway (Dominic West, 300).  And the always-welcome Laura Linney (Mr. Holmes) has a small part as Mrs. Perkins.  I thought it wasn’t a bad movie.  It may have helped that I had actually read one of Wolfe’s novels, Look Homeward, Angel; you can read my review here and see if it sounds like your cup of tea.

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Wednesday, June 29, 2016

Court Affirms Order Denying An Administrator’s Attorney’s Fees

Originally published by David Fowler Johnson.

In In re Estate of Williams, attorney Don Ford was appointed an administrator of an estate and hired himself as an attorney for the estate. No. 05-15-00392-CV, 2016 Tex. App. LEXIS 5990 (Tex. App.—Dallas June 6, 2016, no pet. history). Later, the trial court denied some of his requested attorney’s fees, and he appealed.

The court of appeals affirmed. The court first held that the order awarding some, but not all, of the fees requested was a final order and that the appellate court had jurisdiction. The court then reviewed the merits of the dispute. The court held that an attorney, as an administrator of an estate, may also perform the legal work and be compensated for his reasonable attorney’s fees.

Estate Code Section 352.051 provides that on proof satisfactory to the court, a personal representative of an estate is entitled to reasonable attorney’s fees necessarily incurred in connection with the proceedings and management of the estate. The court held that this provision entrusts attorney’s fee awards to the trial court’s sound discretion, subject to the requirements that any fees awarded be reasonable and necessary, which are matters of fact, and to the additional requirement that the fees be incurred in connection with the proceedings and management of the estate.

The court concluded that the trial court did not abuse its discretion in setting the amount of fees as it did.

For example, the record before this Court shows that some of the compensation sought by the Law Firm was for activities that were administrative in nature, rather than legal. Among other administrative activities, the Law Firm’s itemized billing statements include entries for traveling to a bank to set up an Estate bank account, obtaining access to online banking records, coordinating checks and receipts for each creditor, a telephone call to previous counsel to pick up checks, telephone calls with the heirs, preparing annual accounts, and communications with real estate agents concerning the general status of properties. Under these circumstances, the probate court was entitled to conclude the Law Firm had charged the Estate for attorney time when the activity reported had no actual legal significance, and to exclude those charges from the fee award.

The court affirmed the trial court’s award.

Interesting Note: Administrators are entitled to reasonable compensation for their work.  Under Texas Estate Code Section 352.002, the standard compensation is “five percent commission on all amounts that he or she actually receives or pays out in cash in the administration of the estate.” Tex. Est. Code § 352.002. A court may alter this standard compensation formula for unusual estates. Id. at § 352.003. Additionally, an administrator may hire an attorney and pay the attorney “reasonable attorney fees necessarily incurred in connection with the proceedings and management of the estate.” Id. at § 352.051. There is an inherent conflict of interest when an administrator hires himself or herself to do the legal work for the estate. If an administrator is different from the attorney, the administrator would independently review the legal bills to make sure that the work was legal in nature, was reasonable in amount, and was for necessary services. Where the administrator and the attorney are the same person, that check may be lacking. Further, there may be pressure to expand the administrator’s standard compensation formula by billing activities that the administrator does in managing the estate (which should fall under the administrator formula) as legal work (which would be paid by the hour). As the Estate of Williams case shows, this may be easily enough found and rectified in a dependent administration. But it may not be as easily discovered in an independent administration. Of course, a beneficiary always has a claim against an administrator where it breaches its fiduciary duties by overcompensating itself.

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Texas criminal defense lawyers to lead Declaration of Independence readings

Originally published by Jillian Beck.


To celebrate the 240th anniversary of the United States, criminal defense attorneys across the state will lead readings of the Declaration of Independence later this week.


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Jimmy John’s Discards Non-Compete Agreements

Originally published by Thomas J. Crane.

The sandwich chain, Jimmy John’s, has agreed to stop including non-compete agreements in its hiring documents. I wrote about the chain’s requirement for non-compete agreements here. As I mentioned then, they were requiring the low wage earners to sign these agreements. As part of a settlement, Jimmy John’s is now dropping that non-compete agreement. The non-compete imposed a two year time limit in which a departing Jimmy John’s worker could not work for a competitor within two miles. The sandwich chain was sued by the New York state Attorney General regarding the practice. See CNBC report.

It is a brutal tactic to use with the most vulnerable workers. Earlier, this year the Illinois Attorney General commenced a similar lawsuit. Jimmy John’s is headquartered in Illinois. The chain says it stopped issuing sample non-compete agreements to its franchisees in 2014.


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Super Lawyers Think Optimistically

Originally published by Cordell Parvin.

Years ago I saw a fascinating quote in Success Magazine

Super Achievers

Are you optimistic?

I hope so because studies show optimists are more likely to succeed. Based on my years of working with lawyers, I think I know one of the reasons why. In your career you will have setbacks, disappointments and dips. Being optimistic will allow you to learn from failures and get through challenging times.

I am reminded of a famous Winston Churchill quote.

Winston Churchill

Are you seeing opportunities?

A couple of years ago, Nancy gave me “Live What You Love: Notes from an Unusual Life” by Bob and Melinda Blanchard. The Blanchard’s describe themselves as serial entrepreneurs, having owned eight businesses. They talk about skeptics and pessimists and suggest that the next time you start to say: “yes, but…” stop yourself and say instead:
”sure, how.”

Several lawyers I am coaching have told me that the change from “yes, but” to “sure how” has made a difference for them. It will for you also.

Give it a try.

P.S. If you are interested in learning more about how Superachievers think, read this Selling Power Magazine article: How Superachievers Think to Reach Consistent Success.

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Five Cases to Know in 2016

Originally published by David Coale.

Celebrate summer with 600 Summer Camp and five good cases to know from the Fifth Circuit in 2016 — and one special bonus!

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Tuesday, June 28, 2016

Texas trial advocates recognize individuals at annual event

Originally published by Jillian Beck.

tottenhamThe Texas Chapters of the American Board of Trial Advocates recognized several individuals at its annual dinner and CLE this month for their efforts in preserving and protecting the right to a civil jury trial.

TEX-ABOTA is compromised of defense and plaintiff attorneys who are committed to the preservation and protection of the U.S. Constitution’s 7th Amendment right, and the Texas Constitution’s right, to a jury trial in civil cases and to an independent and impartial judiciary.

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Motions for Rehearing or Reconsideration En Banc: Why Bother?

Originally published by Maitreya Tomlinson.

6324990_5dc95cc88a_oWhile appearing rhetorical, there is a very good reason to bother. My firm recently turned an appellant’s partially favorable result into full relief on rehearing. In doing so, we utilized the Texas appellate procedure rules, which allow parties to request that intermediate appellate courts reexamine their decisions: either by filing a motion for rehearing or a motion for reconsideration en banc.

Although not unicorn-like in frequency, Texas intermediate courts of appeals infrequently grant these motions. The statistics vary depending on the year and the specific court of appeals. However, research indicates that the success rate can be less than 20% and in many instances under 10%. Less than 10% is a daunting statistic, which would deter anyone who is accustomed to playing the odds.

Understanding the reasons why that number is so low could boost your chances for success. Courts have different reasons for denying rehearing or reconsideration motions. Common sense suggests that courts deny these motions because they have already thoroughly considered and recently decided the issues. The court is likely satisfied with its decision. Judicial feedback suggests that some parties use these motions as a way to vent their frustration with the court. Here’s where the old adage concerning honey and vinegar comes into play. Both common sense and judicial feedback also suggest that parties use these motions to re-urge the same arguments to the court, hoping repetition will eventually force the court to relent.

For these reasons, moving parties are encouraged to take certain steps to improve their chances. The first is that a moving party should avoid rehashing the same arguments. Instead, highlighting problems with the court’s opinion and any recent, favorable authority would help. Doing so in a respectful manner, however, will increase the moving party’s chances. Also, if it appears the court misunderstood the moving party’s meritorious arguments, taking the opportunity to present them in a way that is more understandable to the court will get them even further.

The takeaway here is to advise your clients that the courts of appeals infrequently grant these motions. But, if you have a compelling reason for the court to make favorable changes to its opinion/judgment, utilize this method, in a respectful way, to help the court reach the right result.

Image courtesy of Flickr by Kris.

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FDA Launches Campaign Against Teenage Smokeless Tobacco Use

Originally published by Robert Kraft.


NBC Nightly News reported that the Food and Drug Administration “is launching a targeted campaign aimed at teenagers” against smokeless tobacco.

The AP reports that the FDA “will team up with minor league baseball as part of [the] new $36 million campaign to discourage rural teenagers from using chewing tobacco.” The campaign’s theme, “smokeless doesn’t mean harmless,” will be seen in stadium advertising, as well as ads on local TV, radio, and online. According to Director of the FDA’s Center for Tobacco Products Mitch Zeller, “Often male teenagers in rural communities are accustomed to seeing smokeless tobacco use among role models, such as their fathers and grandfathers, older brothers and community leaders.”

The Louisville (KY) Courier-Journal reports that Zeller explained the campaign was needed because “the target audience [is] using smokeless tobacco at a high rate” and “do not fully understand the negative health consequences of their actions.”

From the American Association for Justice news brief.

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Monday, June 27, 2016

U.S. Trademark Office proposes fee increases

Originally published by Andrea Shannon (US).

Brand owners should be aware that the U.S. Patent and Trademark Office (USPTO) has proposed an increase of its trademark registration and filing fees. The proposed rule was published in the Federal Register, with the period for public comment expiring on July 11, 2016. See Trademark Fee Adjustment.

The USPTO stated that the proposed fee adjustments are intended to cover rising processing costs and administrative expenses, as well as upgrades to the USPTO’s IT systems. The USPTO reported that, in fiscal year 2015, it received more than 500,000 class filings, a number which is projected to continue increasing each year.

The full schedule of the proposed fee increases is available on the USPTO’s website. A few notable changes include:

  • an increase from $375 to $600, per class, for paper applications, in an attempt to encourage online filings;
  • a $50 increase in Section 8 affidavits of use of a trademark filed through the Trademark Electronic Application System (TEAS);
  • a $75 increase for online TEAS applications (from $325 to $400), although the fees for TEAS Reduced Fee (RF) and TEAS Plus applications ($275 and $225, respectively) are not scheduled to change; and
  • a new $100-$200 fee for electronically filing a request for an extension of time to file a notice of opposition, a filing which previously did not carry a fee.

The USPTO stated that the fee increase for the online TEAS application would apply to both U.S. and foreign filers, as well as to applications submitted under the Madrid Protocol as requests for extension of protection and subsequent designation.

The USPTO plans to increase fees for submitting affidavits under sections 8 and 71 in order to support increased legal examination. In 2012, the USPTO began the Post Registration Proof of Use Pilot Program, during which it reviewed 500 registrations (for which section 8 or 71 Declarations of Use were filed) in order to assess the accuracy and integrity of the trademark register as to the actual use of marks with the goods and/or services identified in their registrations. According to the notice, the USPTO’s findings in the Pilot Program revealed a need for additional review of these filings in order to identify and remove registrations with insufficient maintenance filings to increase the trademark register’s accuracy.

The filing fees for section 8 and section 71 affidavits are set to increase from $100 to $250 for paper filings, and $100 to $150 for TEAS filings. There will also be an increased surcharge for filing either affidavit on paper during the grace period, per class, from $100 to $200. Correcting a deficiency in either affidavit will also increase from $100 to $200.

The fees for several other filings are generally set to increase by $100-$200. For paper filings, the fee for certifying an international application based on a single application or registration, or more than one basic application or registration, will see a per-class increase of $100. A few new fees have been added, such as a $40 fee for overnight delivery, and a $160 fee for expedited service. Other fees, like those for establishing a deposit account, self-service copy charges, and labor charges, have been eliminated, sometimes because a third party will be providing the service.

The proposed schedule of fees was developed with feedback from the Trademark Public Advisory Committee (TPAC), a group composed of IP practitioners that oversees the policies, budget, and performance of the USPTO and advises the USPTO Director. Nov. 2015 Transcript and Report.

Among its recommendations, the TPAC suggested that the USPTO provide a mechanism for applicants to request a waiver of the surcharge incurred for paper filings should the online system crash, or if the nature of the submission requires a paper filing. In response, the USPTO noted that the appropriate mechanism for requesting a waiver of a rule is to file a petition to the Director. Notably, the fee for filing a paper petition to the Director is set to increase from $100 to $200. So, if the online system goes down, the waiver application may also crash—potentially resulting in an extra fee for requesting the waiver.

Additionally, the TPAC supported new fees for filing a request for an extension of time to oppose a published mark ($200 for paper filings, $100 for filings through the Electronic System for Trademark Trials and Appeals (ESTTA) under section 2.102(c)(3); $300 for paper filings, $200 for filings through ESTTA under section 2.102(c)(1)(ii) or (c)(2)). The report noted that these fees would encourage potential opponents to act more quickly and to seek resolution earlier in the process.

Comments on the proposed rule can be submitted via email to until July 11, 2016 and will be available for public inspection on the USPTO’s website and the Federal eRulemaking Portal.

The author gratefully acknowledges the assistance of Stephanie Schmidt.

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Crosstex North Texas Pipeline v. Gardiner – a Treatise on the Law of Nuisance

Originally published by John McFarland.

The Gardiners claimed that a compressor station across the road from their property created a nuisance that damaged the value of their property. A trial resulted in a $2 million judgment for the Gardiners. After an eight-year battle, the Texas Supreme Court decided the Gardiners would have to try their case again. The case is another in a recent spate of cases alleging nuisance damages for operations in the oil field.

The Gardiners own 95 acres in Denton County that they use for recreational purposes. Crosstex built a 130-mile pipeline from Tarrant County to Lamar County that passes close to the Gardiner tract, and Crosstex bought 20 acres just across the road from the Gardiners and installed compressors there to compress gas in its pipeline. Crosstex installed four diesel engines to run the compressors, each “bigger than mobile homes.” Neighbors, including the Gardiners, complained of the noise caused by the compressor station’s operations, describing it as being as loud as a jet airplane or a locomotive engine. Although Crosstex installed mufflers and sound blankets to dampen the noise and surrounded the compressor engines with sound walls on three sides (but not on the side facing the Gardiners’ property), the Gardiners were not satisfied and filed suit in 2008, alleging that Crosstex had both intentionally and negligently created a nuisance.

In 2011, Crosstex installed “air intake silencers” at the compressor station and a fifteen-foot sound wall on the side of the station facing the Gardiners. The Gardiners claim these efforts did not sufficiently abate the noise, and their case went to trial in January 2012. The jury found that Crosstex had negligently created a nuisance by installing the station and found that the nuisance had decreased the Gardiners’ property value by more than $2 million. Judgment was entered for the Gardiners, and Crosstex appealed.

The Court of Appeals in Fort Worth reversed and remanded the case for a new trial. It held, among other things, that the evidence was not “factually sufficient” to support the jury’s finding of a negligently created nuisance.

The Texas Supreme Court affirmed the Court of Appeals’ judgment remanding the case for a new trial. The unanimous opinion, written by Justice Boyd, is in large part a 40-page treatise on the law of nuisance in Texas. The court decided that there was a lot of confusion on when someone could recover damages for conduct causing a nuisance, and what a “nuisance” is in the eyes of the law, and it took the opportunity to clarify the law and lay out what a plaintiff has to prove to recover for nuisance.

The Court said:

A ‘nuisance’ is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to us and enjoy it.

Notice that there are a lot of subjective words here: “substantial” interference, “unreasonable” discomfort, “ordinary” sensibilities. These subjective judgments are for the jury to make.

In order for a defendant to have legal responsibility for damages caused by a nuisance, the plaintiff must prove either that the defendant intentionally caused the nuisance or negligently caused the nuisance.

… a defendant may be held liable for intentionally causing a nuisance based on proof that he intentionally created or maintained a condition that substantially interferes with the claimant’s use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it. “Intent” … means that ‘the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to result from it.’

But the plaintiff need not establish that the defendant’s conduct was “unreasonable,’ only that the effects of the defendant’s conduct are unreasonable.

To establish liability for negligent nuisance, the plaintiff must prove “the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach.” To establish negligence, the plaintiff must convince the jury that the defendant’s conduct was “simply doing or failing to do what a person of ordinary prudence in the same or similar circumstances would have not done or done.”

Finally, the court discussed the remedies available if a defendant is found liable for a nuisance: money damages, injunctive relief, and “self-help abatement.” Whether to enjoin the activity causing the nuisance is “a discretionary decision for the judge after the case has been tried.” What kind of damages may be recovered depends on whether the injury is “temporary” or “permanent.” If temporary, the owner may recover only for lost use and enjoyment that has occurred up to the time of trial. If permanent, the owner may recover the lost market value of the land affected by the nuisance.

Crosstex made several arguments rejected by the Court, one of particular interest: Crosstex argued that the Gardiners should have been required to submit expert testimony on the duty of a pipeline company to abate noise under the same or similar circumstances in order to prove negligence. The Court disagreed. The Court said that it was in the province of the jury to decide whether Crosstex breached its duty, and “the breach of that duty was building and continuing to operate the compressor station in such a way that its noise was beyond reasonable levels.”

Noise from compressor stations can travel for miles in rural areas. Juries may be more and more willing to award damages for the “unreasonable” annoyance caused by that noise to “persons of ordinary sensibilities.” But holding on to the verdict may be difficult, as the Gardiners have experienced.

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Value Billing

Originally published by Larry Hance.

This article was written by Hance Law Group principal Larry Hance.   People going into a divorce typically would like to know how much it will cost. For a great number of people, divorce is the most involved legal process they’ll undergo, and there can be some sticker shock on just how expensive it is. […]

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Liability of Health Clubs for Injuries

Originally published by robertslawfirm.

Who is responsible if you are injured at a health club? If you are a member or an invited guest, it is the health club owner’s responsibility to ensure that all health club property is adequately maintained and that you are instructed and supervised in the use of equipment on the premises. If an injury results from improper maintenance or defective or incorrectly installed equipment, the club’s owner may be found negligent. For example, if a guest uses a weight machine and a weight detaches and hits him in the head, the health club owner may be accountable if the machine was improperly maintained. However, if a guest sustains an injury due to his own lack of care or misuse of equipment, the health club owner may not be liable. In most cases, a health club owner may inform visitors of possible injuries from misuse by providing a written disclaimer in a mandatory contract that the member or guest must read and sign prior to using any equipment. However, a health club owner may not avoid liability for an injury if a written disclaimer was not obvious because it appeared in fine print or on the other side of a contract. A health club owner should make an effort to provide a safe environment for invited visitors, but each guest’s safety may not be completely insured. If a guest is injured, all evidence regarding the incident must be taken into account before liability can be assigned. If you or someone […]

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Word limits: better than page limits?

Originally published by Wayne.

Last week, federal district judge Steven Merryday admonished defense counsel for manipulating the standard letter spacing in their document so they could squeeze in more words but stay within the page limit. Highland Holdings, Inc. v. Mid-Continent Cas. Co., No. 8:14-cv-1334-t-23TBM (M.D. Fla. June 23, 2016). An excerpt is pasted below, along with a link to the full document.

I think the court should switch to a word limit. It might not solve all problems, but it removes the incentive for authors to use these tricks:

  • manipulate line-spacing (use 1.9 line-spacing instead of true double-spacing, for example)
  • manipulate font size (use 11.5-point font instead of 12, for example)
  • manipulate margins (use 0.9-inch margins instead of 1-inch margins, for example)
  • pick smaller fonts (use Garamond instead of Times New Roman, for example)

and a trick I’d never seen until now

  • manipulate the letter spacing

I switched to a word count on student papers many years ago and am glad I did.


Mid-Continent’s response (Doc. 50) to Highland Holdings’ motion for summary judgment is disguised as a paper that conforms both to Local Rule 1.05(a), which requires each “paper[] tendered by counsel for filing [to] be typewritten, double-spaced, [and] in at least twelve-point type,” and to Local Rule 3.01(b), which limits the length of a response to “not more than twenty (20) pages.” Although neither rule explicitly proscribes manipulative letterspacing,[1] the Local Rules assume that counsel engages in no manipulation to evade the effect of the rules and assume counsel’s use of the standard space between consecutive letters. Quite transparently, Mid-Continent’s response manipulates the space between consecutive characters in the response and adds approximately two words to each line. Tactics such as Mid-Continent’s letterspacing contribute to a burgeoning set of Local Rules, a phenomenon caused not by persnickety judges but by parties’ relentless efforts to gain an advantage by subverting a set of rules designed to ensure parity. Counsel is admonished; an attempt to subvert the Local Rules exposes the offending counsel to sanction.

[1] “Letterspacing (also known as character spacing or tracking) is the adjustment of the horizontal white space between the letters in a block of text.” Matthew Butterick, Typography for Lawyers 92 (2d ed. 2015).

Full text of the order is here.

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The Politics of Arbitration Law and Centrist Proposals for Reform

Originally published by Beth Graham.

Stephen J. Ware, Professor of Law at the University of Kansas School of Law, has published “The Politics of Arbitration Law and Centrist Proposals for Reform,” Harvard Journal on Legislation, Vol. 53, No. 2, 2016.  In his journal Article, Professor Ware discusses the politics associated with potential reforms in the consumer arbitration arena.

Here is the abstract:

Arbitration law in the United States is far more controversial when applied to individuals than to businesses. While enforcement of arbitration agreements between businesses sometimes raises legal issues that divide courts, those issues tend to interest only scholars, lawyers, and other specialists in the field of arbitration. In contrast, enforcement of arbitration agreements between a business and an individual (such as a consumer or employee) raises legal issues that interest many members of Congress and various interest groups, all of whom have taken positions on significant proposals for law reform. The Consumer Financial Protection Bureau has extensively researched and reported on consumer arbitration agreements and is expected to issue a rule regulating, or even prohibiting, such agreements.

This Article both explains how issues surrounding consumer and other adhesive arbitration agreements became divisive along predictable political lines and introduces a framework to understand and compare various positions on them. This new framework arrays on a continuum five positions on the level of consent the law should require before enforcing an arbitration agreement against an individual. Progressives generally would require higher levels of consent than arbitration law currently requires, while conservatives generally defend current arbitration law’s low standards of consent.

This Article proposes a centrist position. It joins progressives in rejecting overbroad enforcement of adhesive arbitration agreements due to conservative supported anomalies in arbitration law’s treatment of contract-law defenses, legally- erroneous decisions, and class actions. Once these anomalies are fixed, though, this Article joins conservatives in defending general enforcement of adhesive arbitration agreements under contract law’s standards of consent because adhesive arbitration agreements should — contrary to progressive opinions — be as generally enforceable as other adhesion contracts. This Article briefly concludes by proposing language for a rule the Consumer Financial Protection Bureau could adopt to enact the reforms advocated in this Article.

This and other scholarly papers written by Professor Ware may be downloaded free of charge from the Social Science Research Network.

Photo credit: Valerie Everett via / CC BY-SA

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Residence restriction reviewed.

Originally published by David Coale.

little houseIn Harris v. Hahn, the Fifth Circuit addressed a challenge to a “residence requirement” – a common feature of public benefit and employment programs, not often challenged in court. This challenge addressed “the constitutionality of the residency requirements in the Hazlewood Act, which provides tuition waivers at public universities for certain Texas veterans who enlisted in Texas or were residents of Texas at the time they enlisted.” The Fifth Circuit found that Texas had rational reasons for the requirement, in that “the prospective benefit advances two interests—education and security—by offering a benefit to residents considering enlistment.” It noted in particular that this benefit was prospective, rather than retroactive; distinguishing it from some other situations that had been more problematic. The Court also found no impermissible restriction on the right to travel, noting that the program affected a relatively small percentage of the population and did not impose a penalty. No. 15-20105 (June 23, 2016).

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Insurance Coverage and the Risk of Purchasing a Vacant Building

Originally published by Christina Phillips.

Buildings that are vacant or unoccupied for extended periods of time present an increased risk of damage from theft and vandalism, especially in an urban setting such as Chicago. Recognizing this increased risk, most property insurance policies contain a vacancy provision which excludes coverage for losses resulting from vandalism, theft and other specified hazards if the building was vacant for more than 60 consecutive days before the loss. But what happens if the building was vacant when you purchased it? Does the prior owners’ vacancy count against the 60-day period?
This is the situation faced by an insured several years ago in a case entitled West Bend Mutual Insurance Company v. New Packing Company.1 New Packing owned and operated a meat packing business in Chicago, Illinois insured by West Bend. Thereafter, New Packing purchased a warehouse which, at the time of its purchase, had been vacant for more than 60 consecutive days. West Bend issued an endorsement to the policy…


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Southwestern Energy: Texas Supreme Court “Clarifies” Lost Profits Damages in Oil and Gas Trade Secrets Case

Originally published by Zach Wolfe.

Proving damages in a trade secrets lawsuit—or any kind of business litigation—often involves having an expert witness calculate an amount of lost profits. The expert does not have to calculate the lost profits with exact certainty. Only “reasonable certainty” is required, and the expert often has to make reasonable estimates or approximations.

Let’s say the expert estimates that profits would have averaged 3% of revenues, but there was information available from which the expert could have calculated a more precise percentage—maybe 2.79%. If the jury awards damages that equal 3% of revenue, will the verdict stand? This, in simplified terms, was the situation the Texas Supreme Court recently addressed in Southwestern Energy v. Berry-Helfand.[1]

The trade secret in Southwestern Energy was a confidential map of potentially profitable oil and gas “sweet spots” that an engineer painstakingly constructed from years of research. The jury found that the past profits from use of the trade secret were $11,455,000. This number happened to equal exactly 3% of the defendant’s revenue from drilling the successful wells. The Texas Supreme Court ruled that there was sufficient evidence to support some amount of lost profits damages, but insufficient evidence to support the 3% figure. The court therefore sent the case back for a new trial.

So what does Southwestern Energy mean for lawyers, clients, and expert witnesses in trade secrets litigation, oil and gas litigation, or any kind of litigation involving claims of lost profits?

The opinion is so detailed that it is tempting to dismiss it as too fact-intensive to provide any general guidance. But that would be a mistake. Putting aside the complexity of the case, the Texas Supreme Court’s message is this: an expert’s calculation of lost profits damages doesn’t have to be exact, but more precision is required if the available information makes more precision possible.

The key piece of data in the Southwestern Energy case was the “Petrohawk agreement.” Plaintiff first provided the confidential “sweet spot” information to Defendant pursuant to a non-compete and confidentiality agreement. After Defendant passed on the opportunity (or so Plaintiff thought), Plaintiff signed an agreement to provide the map to another company, Petrohawk, in exchange for a share of revenue.  The Petrohawk agreement had a complicated formula for calculating Plaintiff’s compensation; a 3% overriding royalty interest was just one component of the formula.

Using this third-party agreement as a benchmark for lost profits damages was fine, but if Plaintiff was going to rely on this methodology, she had to use actual—not oversimplified—numbers.  The court said:

In trade-secret cases, a measure of uncertainty is tolerated, and to an extent, unavoidable. However, when there is objective evidence from which more certainty can be gleaned, it is incumbent on the plaintiff to produce that evidence. An estimate or an average based on a small sample may be sufficient in some cases, but not in this case. Because the actual overriding royalty interest on the disputed wells could have been determined under the methodology of the exemplary transaction, applying 3% across the board paints an incomplete and misleading picture about the royalty terms a willing buyer and seller would negotiate.

Thus, the fact that the expert could have used the formula in the Petrohawk agreement to perform a more precise calculation made it improper for the expert—or the jury—to calculate damages based on an oversimplified 3% formula.

To explain why the evidence did not support the jury’s 3% calculation, the court used this example:

To illustrate, if Helfand [the engineer] owned a trade secret vital to the making of widgets and XYZ widget company misappropriated the information to make 3,000 widgets, a prior licensing agreement with a third party involving a licensing fee of $2 per widget would be strongly probative of a $2 reasonable royalty. But if Helfand previously negotiated a licensing fee of $1 on the sale of small widgets, $2 for medium widgets, and $3 for large widgets, an average of $2 under that deal would be inadequate to establish the value of a reasonable royalty for 3,000 widgets of varying sizes. What if XYZ only made small widgets? Depending on consideration of the other factors bearing on a reasonably royalty, the $2 average could vastly overstate the royalty a willing buyer and seller would negotiate.

True, an average can overstate (or understate) the actual amount. But financial experts often use averages or approximations in their calculations, especially when calculating hypothetical lost profits. As a practical matter it can be difficult for lawyers and experts to know just how detailed a lost profits calculation has to be. A lost profits calculation can always be attacked on the ground that it could have been a little more detailed.

In the wake of Southwestern Energy, expect more arguments in lost profits cases about whether a damages expert properly took into account all the available information. If you represent the defendant in a lost profits case, look for information available to the plaintiff’s expert that may have been ignored or oversimplified, and get the expert to admit she could have used the information to refine the calculation but did not do so.

If you represent the plaintiff, you have to strike a difficult balance. You want to simplify without over-simplifying. The lost profits calculation needs to be simple enough that you can make it compelling and understandable to the jury, but not so simple that it ignores available information that could have been used to perform a more precise calculation. This—in simplified form—is the lesson of Southwestern Energy.

Zach Wolfe practices business litigation with Fleckman & McGlynn, PLLC, a Texas law firm with offices in Austin, Houston, and The Woodlands.

[1] Sw. Energy Prod. Co. v. Berry-Helfand, No. 13-0986, 2016 WL 3212999 (Tex. June 10, 2016).

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Circuit Splits

Originally published by Jason P. Steed.

All circuits agree that civil detention of criminal aliens is constitutional for a reasonable period of time, to complete removal proceedings. But at some point these detained aliens are entitled to a bond hearing under Due Process, and the circuits are split over when. The 11th Circuit addresses this issue for the first time here, at p.3.

There’s a split over whether a court may award fees to an attorney from outside the district who is not admitted pro hac vice. See here at p.6.

The circuits don’t agree on whether an individual must report violations to the SEC before she can bring a retaliation claim under Dodd-Frank. See here at p.33 n.14.

The 6th Circuit says there is an “unacknowledged” (until now) split over whether a criminal defendant’s willingness to reject a plea bargain and risk going to trial can be considered “rational” in satisfaction of the objective test for determining whether the defendant was prejudiced by ineffective assistance of counsel. See here at 2-3 et seq.

Courts are split over whether there’s a distinction between “claims for work” and “claims for payment for work” in determining whether a § 10(k) order can bar a contractual claim. (Just read the case to see what this is about.) See here at 14-15.

The 9th Circuit has created a new circuit split over exceptions for copyrights to sound recordings (in a case involving Madonna). See here at 29.

And lastly, Judge Gorsuch tells us there’s a “long lingering circuit split” over how much access parties to PTO proceedings have to the Federal Rules of Civil Procedure, for discovery purposes. Judge Gorsuch says the split “lingers there still”—but it might be “just another debate that doesn’t matter.” See here at 6-9, 10 n.1, 12, 14.

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Friday, June 24, 2016

Top 10 from Texas Bar Today: Executors, Extraditions, and Emails

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. Beware the Overbroad ReleaseKen Carroll of Carrington Coleman Sloman & Blumenthal LLP in Dallas

9. Energynet – a Dotcom Success in the Oil and Gas SectorJohn McFarland of Graves Dougherty Hearon & Moody @GravesDougherty in Austin

8. Court Reverses A Probate Order Requiring An Executor To Distribute Real Property Free Of Any LiensDavid Fowler Johnson @TXFiduciaryLit of Winstead PC in Fort Worth

7. Personal jurisdiction found over corporate parent without veil-piercingMike Northrup of Cowles & Thompson PC @CowlesThompson in Dallas

6. El Chapo, Extradition, and DeportationJohn T. Floyd of John T. Floyd Law Firm @HoustonDefender in Houston

5. The Fundamental Marketing Emails Your Law Firm Should be Sending – Amanda Taylor of Stacey E. Burke, P.C. @StaceyEBurke in Houston

4. America’s Beer is Being Sued for Trademark Infringement – William Davis of Klemchuk LLP @KK_LLP in Dallas

3. Patent Cases Just Got ScarierBarry Barnett @contingencyblog of Susman Godfrey L.L.P.

2. Best Practices for Collecting and Maintaining Records for EvidenceBob Kraft @BobKraft of Kraft & Associates in Dallas

1. Mediation/Settlement Lessons From An NBA TradeBrooks Schuelke @bschuelke of Perlmutter & Schuelke, LLP in Austin

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Corporate Liability: When Employees Cause Traffic Accidents

Originally published by robertslawfirm.

Can you hold a corporation liable for negligent acts of an employee? What if the employee was driving a corporate vehicle and caused a collision? A corporation may be liable for the negligent acts of its employees under certain circumstances. For example, the employee must be acting within the scope of employment, such as delivering goods on behalf of the corporation. However, if the employee was driving the company vehicle home from a bar after work and was involved in a collision, the corporation may not be liable (especially if the employee was not permitted to drive the company vehicle after work hours). Let’s say you are injured in an employee-caused accident and the corporation is insolvent with no assets or insurance. Can you seek compensation from the corporation’s shareholders? Usually not. However, liability may be imposed upon the shareholders if you can prove that the corporation is merely a shell. In this instance, shareholders usually use the corporation’s assets for personal reasons, or the corporation has inadequate capital. When you are involved in a traffic collision, it is important to find out if the other driver is working at the time of the accident, and whether the vehicle is employer-owned. If the employer is a corporation, the corporation may be liable for your injuries if the employee was acting within the scope of employment when the accident occurred. The attorneys of Roberts & Roberts have the skill, experience and resources to fully investigate any serious accidents or death.  If […]

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Mediation/Settlement Lessons From An NBA Trade

Originally published by brooks.

basketballI’m not a huge NBA fan, but over the last few days, I have been listening to a variety of talk show hosts discuss the trade of former NBA MVP Derrick Rose from the Chicago Bulls to the New York Knicks in exchange for a few of the Knicks’ players.

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Circuits Split Over NLRB Decisions

Originally published by Beth Graham.

The National Labor Relations Board’s (“NLRB”) stance with regard to class-action prohibitions included in employment contracts appears increasingly likely to be reviewed by the United States Supreme Court in the near future.  The NLRB has consistently found that class-action waivers in an employer’s arbitration agreement infringe upon a worker’s right to engage in collective action under the National Labor Relations Act (“NLRA”).  In contrast, the nation’s courts have typically enforced arbitral agreements banning class-actions so long as they are not unconscionable or otherwise unfair to employees.


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Court Reverses A Probate Order Requiring An Executor To Distribute Real Property Free Of Any Liens

Originally published by David Fowler Johnson.

In In re Estate of Heider, a probate court ordered that an executor should distribute real property to a beneficiary free of liens. No. 05-14-00436-CV, 2016 Tex. App. LEXIS 5978 (Tex. App.—Dallas June 6, 2016, no pet. history). The will devised the tract of land to the testator’s son, stating “I give, devise and bequeath . . . the section of land in Farmersville east of existing North-South fence line (if not sold); to my son Daniel Gary O’Brien.” This tract was collateral for a $81,000 loan.

The court of appeals noted that Section 255.301 of the Estates Code states the following: “Except as provided by Section 255.302, a specific devise passes to the devisee subject to each debt secured by the property that exists on the date of the testator’s death, and the devisee is not entitled to exoneration from the testator’s estate for payment of the debt.” Section 255.302 provides: “A specific devise does not pass to the devisee subject to a debt described by Section 255.301 if the will in which the devise is made specifically states that the devise passes without being subject to the debt. A general provision in the will stating that debts are to be paid is not a specific statement for purposes of this section.” The court of appeals held that the will did not “specifically state” that the bequest to the son was to be free of the lien. Therefore, the court reversed the probate court’s order and required the distribution of the real property to be with the lien and the debt.

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New Decision From Supreme Court Upholds Breath Tests During DWI Stops

Originally published by William K. Berenson.

Dallas firefighters at scene of deadly car crash. (@FOX4Terry, Terry Van Sickle)

Another reminder why this is such an important issue

Early Thursday the driver of a Mercedes died after running into a tree at the intersection of Royal Lane and Inwood Road. The Dallas auto crash, which occurred at 3:30 a.m., was presumably caused by the over consumption of alcohol and/or drugs. Fortunately, no one else died or was injured.

Getting drunk drivers off the roads before they hurt themselves — or us — is an upward battle for police. With Texas leading the nation in drunk driving deaths, this is a battle we cannot afford to lose.

But the number of drunk driving fatalities increased by 8.2 percent in 2015, putting the year’s total DUI deaths at 1,446. This accounted for over 40 percent of all traffic deaths.

You’d think that we’d be trying to figure out a way to stop this deadly epidemic, right?


Is warrantless testing of blood alcohol concentration a violation of the Fourth Amendment?

The breathalyzer measures blood alcohol concentration (BAC) in the breath. At .08 percent a driver is presumed drunk and must defeat that presumption to be acquitted of DWI. By refusing to submit to the breathalyzer, a driver forces the prosecution to build its case on other evidence, such as field sobriety test performance, dashcam video of driving behavior and police officer testimony as to the driver’s appearance and demeanor during the traffic stop.

In some states, refusing to take submit to the breathalyzer is a crime and in every state the driver at least faces loss of driving privileges. A driver may even be compelled to submit to a blood test.

Mixed decision from U. S. Supreme Court

Several drivers challenged both as a violation of Fourth Amendment rights against unreasonable searches.

On Thursday the court issued two decisions regarding the legality of compelling submission to the breath test and to the blood test — one helpful for police, the other not.

In Birchfield v. North Dakota, the Court decided in a 7 to 1 vote that the law that requires a driver to submit to a blood test violated the Fourth Amendment’s ban.

However in a 6 to 2 vote, the court upheld the law that requires a driver to submit to a breathalyzer.

What does the Supreme Court decision mean to you?

DUI investigation in Texas remains the basically the same after Thursday’s release of the U.S. Supreme Court decision, but in other states, enforcement will be easier.

We can help

Berenson Injury Law is an experienced personal injury law firm that has fought for Dallas-Fort Worth car and truck accident victims for the past 36 years. As a MADD-approved attorney, I represent many people harmed by these easily preventable collisions.

We have to get these intoxicated and stoned drivers off of our roads here in DFW.

Stories like the one above should not be commonplace. Deaths and injuries from DWI crashes should not be taken for granted.

Related post:

Repeat Drunk Driver Gets Life Sentence For Death of Child in FW

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Beware the Overbroad Release

Originally published by Carrington Coleman.

Peterson v. Farmers Texas County Mutual Insurance Co.
Dallas Court of Appeals, No. 05-14-01235-CV (June 22, 2016)
Justices Lang (Opinion), Brown, and Whitehill
Ken Carroll

Peterson was killed when the 2007 GMC Sierra in which he was riding crashed into a tree. Peterson’s airbag did not deploy, and his seatbelt failed to restrain him. Counsel for Peterson’s estate wrote to Farmers, the driver’s insurer, demanding that it preserve the Sierra as evidence. Farmers responded, acknowledging it had possession of the truck and offering the opportunity for inspection. Peterson’s estate sued the driver and Farmers. That case settled. In the settlement agreement, Peterson’s estate released Farmers from “all past, present, or future claims … Releasor now has, or which hereafter may accrue [and] which … may in any way grow out of” the accident. Later, when Peterson’s estate attempted to sue the manufacturer and seller of the truck, Farmers disclosed that the truck had been “parted out” and was no longer available. Peterson then sued Farmers for having allowed the truck to be destroyed, alleging, among other things, breach of contract and “breach of bailment.” Farmers defended on the basis of the broad language of the release, arguing the claims for the truck’s destruction “grew out of” the accident that caused it to be in Farmers’ custody, and the trial court granted its motion for summary judgment.

The Dallas Court of Appeals affirmed. Peterson’s estate argued that the recitals in the settlement—which arguably restricted the settlement and release to personal injury claims that could have been brought in the original lawsuit against the driver—at least created an ambiguity. The Court rejected that argument, finding the broad language of the release unambiguous and observing, “Recitals do not control over operative phrases unless there is an ambiguity” in those operative phrases.

Moral: Think twice, and critically, before including or agreeing to broad “stock” language in a settlement agreement or release.

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Inmate Will Not Share in Prince’s $300 Million Estate

Originally published by Gerry W. Beyer.

The judge overseeing Prince’s estate is not allowing cameras in an upcoming hearing to determine possible heir claims. According to the law, the media and public may also be banned from the hearing if the court pursues specific paternity matters….

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Brexit: How Might Employment Law Be Affected by the UK’s Decision to Exit the EU?

Originally published by Jordan Faykus.

This morning’s announcement that the British public have voted in favor of a so-called “Brexit,” has the potential to be one of the most significant events in recent British history. The precise implications of Brexit will depend upon exactly how the UK’s future relationship with the EU will be structured. We have put together an updated briefing to help businesses with operations in the UK understand how employment law might be affected by the Brexit, identifying the various types of relationships with the EU which the UK may adopt in place of full membership. A copy of the briefing can be found here.

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America’s Beer is Being Sued for Trademark Infringement

Originally published by » Blog.

Anheuser-Busch, the brewer of the famous American beers, Budweiser and Bud Light, is facing a trademark infringement lawsuit over its use of a Native American […]

The post America’s Beer is Being Sued for Trademark Infringement by One of America’s Biggest Tribes appeared first on Klemchuk LLP.

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El Chapo, Extradition, and Deportation

Originally published by Staff Writer.

El Chapo, Extradition, and Deportation

The DEA said the capture of Joaquin “ El Chapo” Guzman-Loera was a victory for the rule of law as well as a victory for the Mexican people and government.


Transnational organized crime, violence, and drug trafficking have become the leading objective of American and international law enforcement agencies.


The question in the Guzman case is whether he will be tried in Mexico or America for a laundry list of crimes of violence and drug trafficking.


If American authorities prevail in its efforts to have El Chapo extradited to the United States, the next question to be answered is in which jurisdiction will he stand trial. Currently there are seven federal jurisdictions waiting for an opportunity to prosecute Guzman for criminal indictments pending against him.”


The prevailing consensus of American law enforcement officials is that he will square off against the U.S. criminal justice system in the Eastern District of New York in a Brooklyn courtroom. This seems a logical venue since current U.S. Attorney General Loretta Lynch was the former Assistant U.S. Attorney in New York’s Eastern District.


But there other six federal districts that want introduce Guzman to American justice are: Chicago, San Diego, Miami, Manhattan, and New Hampshire.


Chicago is probably the jurisdiction that Guzman’s legal defense team would dread the most. He has been declared the city’s first Public Enemy No. 1 since Al Capone. The federal case against El Chapo in this jurisdiction began in 2008 when Tomas  Arevalo-Renteria arranged to have a 12 kilogram drug shipment delivered to twin brothers, Pedro and Margarito Flores—both of whom were two of the largest drug dealers Chicago had ever seen.


What Renteria didn’t know was that the brothers had become DEA informants. This would prove to be a downfall mistake not only for Renteria but for El Chapo as well. Renteria was part of Guzman’s Sinaloa cartel which was moving tons of heroin and cocaine into the U.S. from South America and Mexico to the Flores’s for distribution on Chicago mean streets. The Renteria mistake led the indictment of not only Guzman but his chief lieutenant Alfredo Vasquez-Hernandez.


Last year Hernandez received a 22-year sentence while Renteria received a 19-year sentence. Both men refused to enter into agreements with the government to cooperate against Guzman or anyone else indicted in the drug smuggling conspiracy. The Flores brothers received 14-year sentences because of their cooperation with the government.


Guzman will thus face a severe prison sentence if convicted in federal court in Chicago.


In its efforts to have Guzman extradited to the U.S., American authorities have taken the death penalty off the table. This is a prerequisite in any case involving a Mexican citizen because Mexico does not have the death penalty and will not send any of its citizens, no matter how violent, to a country that does.


Extradition in Drug Cases


In 2009, Professor Edward Morgan wrote that “extradition, as opposed to domestic prosecution, has become the law enforcement vehicle of choice for governments willing to engage with the United States in the anti-drug campaign.”


While individuals arrested in this country and who face drug charges in another country are not always extradited, this does not mean these individuals will not be deported.


Get Charged with a Drug Crime as a Non-Citizen and You Better Pack Your Bags


Get Charged with a Drug Crime as a Noncitizen and You Better Pack Your Bags

Drug trafficking is a serious crime regardless of who you are, and the penalties you will face are incredibly harsh. But if you are a non-citizen charged with drug trafficking, deportation is almost guaranteed to be on the table.


That’s just the beginning. There are many crimes that qualify a non-citizen for deportation.


Even if you have legally obtained a visa or a green card, there is a long list of crimes that are considered grounds for deportation. For example, convictions for domestic violence, sexual assaults, child abuse, human trafficking or terrorism are absolute deportable offenses.


Drug crimes are also prominent in the deportation scheme.  Even if the drug offense in question is not connected to violence, it can be considered just as serious as a violent offense by immigration officials. It does not matter if the drug offense was committed at the state, federal or international level, you will be subject to deportation upon conviction and completion of any sentence imposed for the conviction. Personal possession of marijuana of less than 30 grams is the only exception to this rule.


You can even be deported if you have either abused drugs or become addicted to them—and a conviction is not a requisite for deportation. Medical records or your own statements are sufficient to constitute drug abuse subjecting you to possible deportation.


So there you have it. If you are caught with drugs and you are not a U.S. citizen, you face serious legal trouble. This does not mean that it is impossible to avoid deportation, however. The key is to craft a strong defense so that you are not convicted.


How do you accomplish this?


You must contact an experienced drug crimes lawyer with a track record of success in both federal and state courts. Contact us today for a free consultation.



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What is K2 and is it Legal in Texas?

Originally published by Bo Kalabus.

By Bo Kalabus;
24-hour Jail Release: 214-402-4364

The generic definition of K2 is that it is a psychoactive designer drug made up of natural herbs that are sprayed with synthetic chemicals. When the mix is done correctly, the drug mimics the effects of cannabis (marijuana). The mixture is best known on the street as K2 or Spice. The goal of both of these products is to mimic, not copy the effects of cannabis. However, K2/Spice may include synthetic cannabinoids, which has a similar effect on the body as cannabinoids naturally found in cannabis, such as THC. These products first became available in the early 2000s so they have been out about 12 years.

Research is now showing that these products might be trouble for the consumer. In short, the studies that are coming available are focusing on the role of synthetic cannabis and psychosis. In some of the case studies, the psychosis and be quite long term. The synthetic cannabis may also trigger a chronic psychotic disorder among certain individuals such as those with a family history of mental illness.

As I have mentioned in the past K2 is not legal in Dallas or Collin County or anywhere else in Texas. In 2011, the Texas Legislature made K2/Spice illegal in Texas. The same punishments apply to K2/Spice that apply to possession of marijuana charges.

If you find yourself facing possession of K2/Spice charges, you should contact a Collin County criminal lawyer to help you defend your case.

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Thursday, June 23, 2016

Texas Advocacy Project announces annual award recipients

Originally published by Jillian Beck.

The Texas Advocacy Project has announced the recipients of its annual awards recognizing community members who embody the nonprofit’s mission.

advocacyprojectThe organization—which aims to provide free legal services to victims of domestic and dating violence, sexual assault, and stalking across the state—will present the awards at its 10th Annual Black & White Ball on October 28.

Texas Supreme Court Justice Eva Guzman will receive the Vision Award, which recognizes a community leader committed to ending power-based personal violence in the state.

The Texas Advocacy Project will present the Courage Award, which recognizes a survivor who has demonstrated courage to escape her abuser and create a healthy life, to high school student Hailey Solis.

Mother and daughter Stephanie and Caroline McKenzie will receive the Generosity of Spirit Award for having a significant impact on the nonprofit through volunteering, programming, or fundraising.

To learn about event sponsorship opportunities or to purchase tickets, go to

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SAFE PIPES Act: 2016 Legislation Affecting PHMSA

Originally published by Matthew Simone and Cheryl Mollere Kornick.

President Obama signed the Protecting our Infrastructure of Pipelines and Enhancing Safety Act or the SAFE PIPES Act into law on June 22, 2016.  The Safe Pipes Act reauthorizes the Pipeline and Hazardous Materials Safety Administration (“PHMSA”) through 2019 as well as its associated programs, including the one-call notification program, the pipeline integrity program, and state damage prevention programs.  (PHMSA’s authorization previously expired in 2015.)  Also, the SAFE PIPES Act authorizes several initiatives and studies to strengthen existing safety procedures and programs; invites States with a pipeline safety program certification, at their request, to participate in the inspection of interstate pipeline facilities; and requires the U.S. Department of Transportation to analyze the potential for leaks to occur at underground natural gas storage facilities in the United States, similar to the Aliso Canyon gas leak in southern California in 2016.  Importantly, the SAFE PIPES Act mandates the PHMSA provide a report to Congress within eighteen months studying the risks and safety recommendations for existing hazardous liquid pipelines.  PHMSA’s findings have the potential to increase inspection, monitoring, and repair requirements for liquid pipelines, especially for the United States’ aging pipeline infrastructure.

The full text of the SAFE PIPES Act can be found here.

Disclaimer: This Blog/Web Site is made available by the law firm of Liskow & Lewis, APLC (“Liskow & Lewis”) and the individual Liskow & Lewis lawyers posting to this site for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice as to an identified problem or issue.  By using this blog site you understand and acknowledge that there is no attorney client relationship formed between you and Liskow & Lewis and/or the individual Liskow & Lewis lawyers posting to this site by virtue of your using this site.  The Blog/Web Site should not be used as a substitute for legal advice from a licensed professional attorney in your state regarding a particular matter.

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The Fundamental Marketing Emails Your Law Firm Should be Sending

Originally published by Stacey E Burke Blog.

There is no denying that social media is an instrumental tool when it comes to marketing a business. Because of this fact, we often forget about social media’s seemingly long lost cousin, email marketing.  While email marketing certainly isn’t as sexy as social media, it can be extremely useful in that it’s one of the most effective ways to directly reach your audience with a particular message, and on average has a much higher potential of actually being seen by your audience compared to social media.

So when should you opt for sending these emails? Once you have established a list of client emails and connections, the last thing you want to do is fill their inbox with nonsense. After all, people don’t just give their email address out to anyone these days.

Here are the best types of marketing emails your law firm should be sending:


You can think of newsletters as an inexpensive, default online campaign. Here you can stay in your subscriber’s head and keep them abreast of new cases the firm is working on, share recent blog posts, announce new hires, or showcase community activities the law firm participated in.  Consider the newsletter as a hub for pieces of information that might not warrant a separate email, but is something you want to share anyway. Be sure to keep it concise, newsletters should always be scannable and easily digested.

Keep in mind that while many firms worry about pestering their clients with yet another email, it’s important to stay consistent. Readers want to feel more familiar with the people they are receiving emails from. Schedule monthly or quarterly newsletters rather than once or twice a year to avoid unsubscribes.

Urgent Legal News and Updates

Chances are, most clients on your email list stay on your email list for the juicy details of urgent news and/or current lawsuit updates. This is a key opportunity to build trust and understanding among your readers. They want your advice and they expect to know what is going on with the latest rulings and how it will affect them.

When you send these urgent updates, give as much information as possible with two objectives in mind: establish your expertise and knowledge of the issue and encourage your readers to get in touch with you should they feel the need.  The more consistent you are in blasting emails each time there is an update in your practice area, the more inclined your readers will are to reach out to you if any of the news you shared directly affects them.

Events and Holidays

These occasions provide some of the easiest ways to ensure a top-of-mind presence with your clients. Think of holiday email blasts as virtual greeting cards. It not only proves to your clients that you are thinking of them, but also that you’d like to continue to keep in touch.

With an event, you have the excuse to email your clients and connections on multiple occasions, bringing you to the forefront of their minds (which we can all agree is never a bad thing for a business). Whether you are hosting an educational opportunity, networking affair, charity event or a simple celebration, email marketing is one of the best ways to increase awareness, encourage people to attend, and get a direct response back.

The Final Ruling:

To sum it up, if you haven’t jumped on the email marketing bandwagon yet, you are missing out on major benefits for your law firm. Incorporate emails into your marketing plan, track the analytics and tweak each campaign to cater to your audience. With limited effort and time, you can easily make a huge impact for your firm.

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Objections 101

Originally published by David Coale.

objectionBankruptcy debtors complained that the district court erred erred in overruling their objections to the bankruptcy court’s proposed findings of fact, noting that no responses were filed to those objections. The Fifth Circuit disagreed: “No statute or rule prohibits the district court from considering or ruling on the merits of an unopposed motion just because it is unopposed.”  (Of course, “[b]y failing to file objections or respond . . . [the adverse parties] have waived their right to appeal the proposed findings and to present any legal issues in opposition to them,” but “[t]hat waiver . . . has no impact on the district court’s authority to consider the merits of the objection.” Monge v. Rojas, No. 15-50180 (June 14, 2016, unpublished).

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Personal jurisdiction found over corporate parent without veil-piercing

Originally published by Mike Northrup.

Ordinarily, when evaluating the contacts of distinct legal entities, the contacts of parent corporations and subsidiaries are evaluated separately for jurisdictional purposes, unless the corporate veil is pierced.  On first glance, that doesn’t appear to be what happened in Cornerstone Healthcare Group Holding, Inc. v. Nautic Management VI, L.P.  The key to understanding this opinion lies in the nature of the causes of action, and the fact that those causes of action arose before–or concurrent with–the creation of the subsidiary entities that were part of the overall transaction in question.

According to the allegations, several executives of Cornerstone identified Reliant Hospital Partners, LLC as a possible takeover target, and instead of presenting the opportunity to Cornerstone, took the opportunity to Nautic Management VI, a Delaware limited partner, and Nautic Partners, a management advisor that conducts due diligence on potential investments.  Nautic Management ultimately purchased Reliant (Old Reliant) and to facilitate the deal, it set up a chain of wholly-owned subsidiaries beginning with Reliant Holding Company, a Delaware company, which owned Reliant Pledgor, also a Delaware Company, which owned Reliant Opco Holding Corporation, also a Delaware Company. Reliant Pledgor and Reliant Opco owned Reliant Acquisitions, a Delaware company with its principle place of business in Texas.  Reliant Acquisitions purchased Old Reliant.   Following this acquisition, the Cornerstone executives who were involved in the Nautic transaction resigned from Cornerstone and joined Reliant Acquisitions.  Cornerstone brought suit accusing the executives of usurping corporate opportunities, misappropriating confidential information, and breaching fiduciary duties.  Cornerstone alleged that the Nautic entities and employees conspired and tortiously interfered.  Nautic Management and three funds it managed entered special appearances to contest personal jurisdiction.

The trial court granted the funds’ special appearances, but denied Nautic Management’s special appearance.  The court of appeals affirmed as to the funds’ special appearances but reversed as to Nautic Management, holding that Texas lacks jurisdiction.  The Texas Supreme Court granted Cornerstone’s petitions for review and reversed, holding that Texas has jurisdiction over the funds and over Nautic Management.

The supreme court’s opinion acknowledges that Cornerstone was not relying upon any veil-piercing theory to assert jurisdiction.  The opinion also acknowledges that the contacts of a parent and subsidiary  that are distinct entities cannot be attributed to one another.  Even so, the court found jurisdiction because the acquisition of Reliant and the creation of the various entities were all part of a single transaction to which the funds and Nautic Management were parties.  The court held that Cornerstone’s claims arose from the transaction itself which included purposeful contacts with Texas.  The court’s opinion may be found here.



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Texas Court Finds No Informal Fiduciary Relationship

Originally published by Gerry W. Beyer.

In Garrett v. First State Bank of Central Texas, a Texas court of appeals decided on a dispute over the ownership of a decedent’s account. The decedent’s estate and caregiver both claimed the account proceeds. The caregiver was a signatory…

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Recent Hydraulic Fracturing Rule Invalidated

Originally published by Barclay Nicholson (US) and Johnjerica Hodge (US).

Last year, the United States Bureau of Land Management (BLM) issued a rule heightening the requirements placed on hydraulic fracturing operations on federal and tribal land. Specifically, the BLM heightened the rules for well casing and wastewater storage and required the disclosure of chemicals used in the fracking process. The BLM’s hydraulic fracturing rule was challenged by Wyoming, Colorado, North Dakota, Utah, the Ute Indian Tribe of the Uintah and Ouray Reservation, the Independent Petroleum Association of America, and the Western Energy Alliance. In September 2015, U.S. District Judge Scott Skavdahl stayed the implementation of the rule pending the result of the legal challenges to the BLM’s rule. Earlier this week, Judge Skavdahl struck down the rule.

Judge Skavdahl concluded that the BLM did not possess the requisite authority to implement the rule. The BLM argued that it had authority under a number of statutes, such as the Mineral Leasing Act of 1920, the Federal Land Policy and Management Act of 1976, the Indian Mineral Leasing Act of 1938, and the Indian Mineral Development Act of 1982. None of those statutes, in Judge Skavdahl’s opinion, bestowed upon the BLM the authority to regulate hydraulic fracturing or to impose reporting responsibilities. In particular, Judge Skavdahl was persuaded by Congress’s clear withdrawal of federal regulation of hydraulic fracturing in the Energy Policy Act of 2005 (2005 EP Act). Judge Skavdahl reasoned that the BLM could not derive authority to regulate hydraulic fracturing from the general statutes it relied on when the 2005 EP Act was targeted at removing federal regulation of hydraulic fracturing.

In addition, Judge Skavdahl rejected the BLM’s argument that it was entitled to Chevron deference—that is, that courts should defer to agency’s reasonable interpretation of a statute. According to Judge Skavdahl, the BLM was not entitled to Chevron deference in this lawsuit because Congress did not authorize the BLM to regulate hydraulic fracturing. Supporters of the BLM’s rule have indicated that they will appeal Judge Skavdahl’s decision.

Click here to read Judge Skavdahl’s opinion.

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