Friday, September 30, 2016

Top 10 from Texas Bar Today: Stopping Time, Nirvana, and the Old School Way

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. Stopping time: invoking lack of notice to preserve post-judgment reliefJohn Guild @600commerce of Lynn Pinker Cox & Hurst, LLP in Dallas

9. Successfully Selling Your Business: Personal Issues & Exit PlanCleve Clinton of Gray Reed & McGraw @GrayReedLaw in Dallas

8. Wells Fargo Avoids Liability with Arbitration ClausesThomas J. Crane @tomjcrane of Law Office of Thomas J. Crane of San Antonio

7. Jaguar Land Rover Seeking to Defend its Trademark on Canceled SUV Series – Samuel Gee of Klemchuk LLP @K_LLP in Dallas

6. Fox Goes to War with Netflix Over Two Programming Executives Who Jumped ShipLeiza Dolghih @TexasNonCompete of Godwin Lewis PC in Dallas

5. Chief Judge Lynn Awards Attorney’s Fees to Microsoft and AT&T in Case Where Plaintiff Did Not Own Asserted PatentsSteven Callahan of Charhon Callahan Robson & Garza in Dallas

4. Texas Lawsuit Exposes Apple’s Best Safety Invention YetBill Berenson @LawyerFortWorth of Berenson Law in Fort Worth

3. Ice Cream Wars: Blue Bell Supplier Blamed for Listeria Recall Fights Back – Kristin Pearson of Ron Simon & Associates @BadFoodNews in Houston

2. Nirvana’s Nevermind: 25 Years of InfluenceNick Farr of Gallivan, White & Boyd, P.A. @GWBLawFirm

1. The Old School WaySam Adamo Jr. of Adamo & Adamo Law Firm @AdamoandAdamo in Houston

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Settlement Proposed in Nissan Brake Defect Class Action Suit

Originally published by robertslawfirm.

If you owned or leased a 2004-2008 Nissan Titan (with VDC), Nissan Armada or Infiniti QX56, you may be entitled to benefits from a proposed class action settlement from a lawsuit that alleges Nissan failed to warn consumers about a potential reduction in braking power on these vehicles due to the failure of a brake booster component. The suit alleges that Nissan North America Inc. failed to issue a warning that the failure of the Delta Stroke Sensor (DSS) found in 2004-2008 Titans, Armadas and Infiniti QX56s could result in a reduction of braking power. The component named in the suit is manufactured by Continental Automotive Systems Inc., which is also a party to the suit. While the companies deny that the brakes of certain vehicles could be affected by a DSS failure, they have agreed to settle the class action suit. Eligible class members include U.S. consumers who previously owned or leased, or currently own and lease, a 2004-2008 Nissan Titan (with VDC), Nissan Armada or Infiniti QX56. Qualified class members are eligible for an award of up to $800, depending on the mileage of the vehicle at the time of the DSS repair. The settlement includes partial reimbursement for costs associated with repairing or replacing the active brake booster and/or the VDC control unit. To claim a settlement award, class members must provide documentation that (1) he or she owned or leased the vehicle at the time of repair of the DSS issue, (2) he or she paid […]

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Reasonable Suspicion to Stop and Frisk Upheld | Furr v. State (2016)

Originally published by Danielle Bonanno.

Texas Court of Criminal Appeals Upholds a Stop and Frisk Case Furr v. State (Tex. Crim. App. 2016) On September 21st the Criminal Court of Appeals decided Furr v. State….

The post Reasonable Suspicion to Stop and Frisk Upheld | Furr v. State (2016) appeared first on Fort Worth Criminal Defense Attorney, DWI Lawyer, Sexual Assault Defense.

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Ice Cream Wars: Blue Bell Supplier Blamed for Listeria Recall Fights Back

Originally published by Kristin Pearson.

blue bell listeria cookie dough ice cream recall

Last week, Blue Bell Creameries announced a recall of select flavors of ice cream made at the company’s Sylacauga, Alabama plant due to potential listeria contamination. The chocolate chip cookie dough used in the ice cream came from a third-party supplier, Aspen Hills, Inc. The Brenham-based ice cream company “blamed the listeria on . . . an Iowa supplier” which said that “no other customer has complained about listeria and said its tests found the product listeria free when it shipped out.”

Blue Bell Blames Cookie Dough Supplier for Listeria-Related Ice Cream Recall

Blue Bell identified a potential problem through intensified internal testing and notified Aspen Hills,” Blue Bell said in its statement. “Aspen Hills then issued a voluntary recall of the products supplied to Blue Bell. Although our products in the marketplace have passed our test and hold program, which requires that finished product samples test negative for Listeria monocytogenes, Blue Bell is initiating this recall out of an abundance of caution.”

The recall was confined to two flavors – “Cookie Two Step” and “Chocolate Chip Cookie Dough” – and distributed in the following ten states: Alabama, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia. Counterintuitively, the potential problem was not identified in the ice cream that was actually recalled. Rather, the “potential problem” was identified in ice cream produced at Blue Bell’s Brenham facility before that ice cream ever made it into the stream of commerce. The recalled ice cream had already passed the company’s test-and-hold program, which requires that finished product samples test negative for listeria before the product is distributed.

The ice cream manufacturer actually admitted that it had “earlier tested ice cream made with the same ingredient in its plant in Sylacauga, Alabama, and found no evidence of the bacteria.” As one prominent Texas newspaper stated,

“Blue Bell ice cream that’s now the focus of a 10-state recall actually passed a test for the presence of listeria but was recalled because of problems that surfaced at the company’s Texas plant . . . Blue Bell said Thursday that the product made in Alabama had been cleared for sale. It was pulled back because ice cream made in Brenham – which was not sold – showed signs of potential listeria contamination.”

According to the company, it tested unopened boxes of chocolate chip cookie dough ingredient and confirmed the presence of listeria in the ingredient. Blue Bell went on to defend its testing program generally, as well as its implementation in this case. The manufacturer stated that all suppliers must meet requirements to test ingredients for various bacteria including listeria, and that the company has an “internal ingredient testing program” as well. Regarding the current recall, the company released the following statement:

“We think it is important that you know that the boxes of cookie dough ingredient we tested from the supplier were unopened, and we confirmed listeria monocytogenes in the chocolate chip ingredient, as did our regulators . . .  After our internal sampling raised concerns, our outside lab confirmed the presence of listeria monocytogenes in the cookie dough sample. We stand behind our testing results.

Aspen Hills Fires Back: Product Negative for Listeria at Alabama Plant, Remained Untested at Brenham Facility for Two Months

Blue Bell’s statement to the Associated Press that it found listeria contamination in packages of cookie dough received from Aspen Hills did not go unanswered. In response, Aspen Hills released a statement that said its cookie dough product “tested negative for listeria before it was shipped to Blue Bell and that ‘positive listeria results were obtained by Blue Bell only after our product had been in their control for almost two months.’”

Although Iowa-based cookie dough supplier Aspen Hills voluntarily recalled the product – the first recall in company history – the company stated that the cookie dough had tested negative for listeria when shipped to Blue Bell.

“Even though our own product testing, conducted and certified by an independent lab, showed negative results for listeria and verified that the product was unadulterated when it left our production facility, we took this step – as well as the recall of an additional batch of product – out of an abundance of caution,”

Aspen Hills said in a statement, adding that the shipment of cookie dough to Blue Bell’s Brenham plant occurred two months before the ice cream manufacturer conducted tests on the product. The supplier reiterated its confidence that all of its product tested clean before leaving the Aspen Hills plant:

“We’re confident in our testing procedures – which were specified by Blue Bell for the product sold to it – were done correctly and that the product we provided to Blue Bell was negative for listeria when it left our control . . . We can’t speculate on what happened subsequent to that point or what testing procedures Blue Bell performed, but we’re confident those questions are among the topics of interest to the FDA.”

Fallout From the 2016 Blue Bell Ice Cream Recall

Aspen Hill’s statements regarding tests conducted on the product prior to shipment and Blue Bell’s potential responsibility “sets up a conflict with Blue Bell over who is responsible for recall, which will cost Blue Bell not only financially but also is the first big blow to its image redemption efforts.”

While Blue Bell continues to engage in a campaign to rebuild consumer confidence in its products, how the latest outbreak will affect the company remains unclear. Crisis communications expert at the University of Nevada Las Vegas Robert Ulmer said that the effect depends on what ultimately is determined to be the source of the problem: “If it’s a lack of learning from Blue Bell, that’s one thing . . . If it really is the distributor, then we have a different story.” Finding an answer as to who is at fault will undoubtedly be complicated and may never be resolved.

As for the relationship between Aspen Hills and Blue Bell, which began in January, Blue Bell states that it has suspended purchases from Aspen Hills indefinitely.

A Look Back at the 2015 Blue Bell Total Recall and Listeria Outbreak

March 2015 marked the first positive listeria test in Blue Bell’s 108-year history. Blue Bell subsequently announced a recall of ten frozen snack items due to potential listeria contamination; by April 20th, the recall encompassed “all of [Blue Bell’s] products currently on the market made at all of its facilities including ice cream, frozen yogurt, sherbet and frozen snacks because they [had] the potential to be contaminated” with listeria.

In the wake of the massive recalls, Blue Bell signed agreements with public health officials in Oklahoma, Texas and Alabama – the three states in which the company has production facilities – requiring Blue Bell to inform the states at any time a product or ingredient tests positive for listeria. In addition, state officials have authority to, and have, conducted additional visits to Blue Bell plants and conducted their own tests of product samples.

While all three states have conducted additional inspections, such inspections have been less frequent in Alabama – the location that produced the Cookie Two-Step and Chocolate Chip Cookie Dough ice cream recalled this month – than in the Oklahoma and Texas locations.

Alabama tests ice cream products from Blue Bell’s Sylacauga plant on a quarterly basis, while an inspector visits the Broken Arrow, Oklahoma plant on a monthly basis. In Texas, inspectors with the Texas Department of State Health Services have visited the plant more than 50 times, conducted 22 routine inspections, 22 equipment tests and made on-site visits 17 additional times for other reasons including records review, training evaluations and sample collections.

If you or a family member became ill have been diagnosed with Listeria and you would like to explore pursuing a legal claim, contact an attorney at Ron Simon & Associates for a free case evaluation by calling 1-888-335-4901 or filling out our free case evaluation form. Attorneys at Ron Simon & Associates have represented victims in past Listeria outbreaks, including the Blue Bell outbreak in 2015.

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Houston Legal Links 9/30/2016

Originally published by Mary Flood.

Top legal news includes: Texas alternative fuels company KiOR, ex-CEO settle with SEC; Disbarred lawyer pleads guilty to Houston auto sales scam; Paxton Seeks to Save Internet by Suing Feds; Your Houston Home May Now Be in a Higher-Risk FEMA Flood Zone; Houston Bankruptcy Judge Jones to Creditors’ Counsel: ‘You’ve Got a Lot of Growing Up to Do’ (Texas Lawbook); Galveston Judge ends two year feud between oyster businesses with ruling (Chron subsc); ‘Deepwater Horizon’ disaster flick puts workers in spotlight (Chron subsc); ED Texas Case Ending in $22M Verdict Against Apple Was in Many Parts a Private Affair (Texas Lawyer); Ignoring Anti-Refugee Rhetoric, Texans Rush to Help in Resettlement; Ex-United Airlines pilot gets 41 months for stalking Texan; Ex-TV reporter in Texas gets more than 3 years for stalking; Texas prison records show more than 330 transgender inmates; Feds chalk up win in 2015 child porn sting; As gun ownership rises, prosecutions for lying to get a gun fall (Chron subsc); Mother jailed for cutting handcuffs off 3-year-old with a grinder; Threatened by Sprawling Houston, Wetlands Will be protected by Oil Company’s Gift & People tell DPS how they really feel in their Yelp reviews.

For the water cooler: Law banning ballot selfies violates First Amendment, federal appeals court says; Biglaw Firm To Close Two Offices, Lay Off 25 Lawyers; What Corporate Lawyers Think About Millennials; Supreme Court accepts sanctions case involving two lawyers representing Goodyear; Supreme Court to consider law banning disparaging trademarks; Law firms turn to nonlawyer experts to enhance practice and provide value; The Fight Against Homelessness Starts With Lawyers; Judge calls defense lawyer ‘grossly incompetent’ and removes her from murder case; Bad Bar Exam Results Prompts Law School To Write Long Letter About Diversity; 3 Rules Of Office Politics For Lawyers; Chemerinsky: What to look for in the new Supreme Court term; The leadership opportunity for law schools; Alabama chief justice testifies that ethics charges over his gay-marriage advice are ‘ridiculous’ & How often do cops access databases for wrong purpose? It happened hundreds of times in two years.

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Dallas Bar Association teaches public about courts through program

Originally published by Jillian Beck.

DBA Appealing to Public 2

The 5th Court of Appeals in Dallas took a recent oral argument from the courtroom to the classroom as a part of a Dallas Bar Association program to educate students and the public about the courts system.

With the “Appealing to the Public” initiative—in its 10th year—the DBA aims to improve the community’s understanding of the Texas justice system and appeals process.

More than 300 Dallas Independent School District students packed into the Belo Mansion on September 26 to hear a live oral argument in an actual probate case in front of the 5th Court of Appeals.

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Damage to Prosthetic Limbs Considered Property Damage or Personal Injury?

Originally published by Kristopher Rodriguez.

Technological advancements have raised an important question in the field of personal injury. Personal injury has referred to an injury to the body, mind, or emotions, as opposed to an injury to property. However, when it comes to prosthetic limbs, determining whether or not damages suffered are to be considered property damage or personal injury has become blurred.

The University of Oxford recently held a conference entitled “Human Enhancement and the Law: Regulating for the Future” which highlighted the point that most laws do not reflect the technological advances which are bridging the gap between mechanical and biological. The main argument made at this conference was that legal responses to damages that treat it simply as property damage may be inadequate in terms of the personal injury done.

There are certain things to consider when categorizing prostheses as part of the body. For instance the fact that they are not a part of the person at birth, they are constructed of metal and plastic and that they are not made from human tissue. Prostheses do not contain DNA and are replaceable. On the other hand, advocates argue that prostheses become part of the human body, not just physically, technologically, and neurologically, but psychologically.

Prosthetic limbs are directly communicating with the human nervous system and therefore are technically a part of the body. Osseointegration is when the metal or ceramic part of the implant or prostheses is placed into the bone, in which case the bone attaches itself, growing all around it, and supporting it firmly. Body parts respond because of electrical signals originating in the muscle, much like prosthetic limbs are currently responding. It’s difficult to continue considering prosthetic devices as property damage when a prosthetic limb functions the same way a biological limb does. Once it’s categorized as a personal injury, responsible parties can be subject to higher penalties and entitle victims to greater compensation.

If you have suffered an injury to your body or a prosthetic limb, contact Herrman & Herrman and speak to an experienced attorney. You can stop by our office at 1201 Third St. or give us a call at 361-82-4357 to schedule a free consultation.

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UPDATE: SCOTUS will review ban on offensive marks

Originally published by Mayura Noordyke (US).

Earlier today, the US Supreme Court agreed to review whether the Lanham Act’s ban on offensive trademarks violates the First Amendment.  The high court granted certiorari in the case of The Slants, the Asian American rock band that was denied a trademark registration under Section 2(a) of the Lanham Act.

The relevant provision of the Lanham Act prohibits registration of marks that comprise immoral, deceptive or scandalous matter or that may be disparaging to people. In December, the Federal Circuit struck down this provision in reviewing The Slants’ case, ruling that the provision violates the First Amendment. The Federal Circuit recognized that many of the marks that were rejected under the offensive marks ban conveyed “hurtful speech” but stated that even such speech is protected by the First Amendment. The USPTO then appealed that ruling to the Supreme Court.

Section 2(a) of the Lanham Act also served as the basis for the Trademark Trial and Appeal Board’s cancellation of the NFL team the Washington Redskins’ six federal trademark registrations in 2014. The decision was then affirmed by a federal district court in Virginia. Pro-Football, Inc. v. Amanda Blackhorse, et al., 112 F. Supp. 3d 439, 467 (E.D. Va. 2015). The team’s appeal is currently still pending before the Fourth Circuit, however, the team filed a request this summer to join The Slants’ case as a complementary companion before the Supreme Court. The high court has not announced whether the team’s request was granted. For more information regarding the Redskins’ case, see our previous post here.

The Supreme Court’s decision in this case may invalidate the ban on disparaging marks, which has been a part of the Lanham Act since it was enacted in 1946. At the very least, the decision will bring clarity to the scope of free speech protection as it relates to trademark rights.

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Thursday, September 29, 2016

Stopping time: invoking lack of notice to preserve post-judgment relief

Originally published by John Guild.


In In re: Douglas D. Halofitis, No. 05-16-01047-CV (Sept. 27, 2016) (mem. op.), the Fifth Court gives a helpful roadmap for parties who seek to challenge a judgment of which they were given late notice.  We know that trial courts usually lose plenary jurisdiction over a judgment within 30 days after the court signs the judgment, which is also the deadline for filing an appeal. But what if you don’t receive notice of the judgment?

Under Rule 306a, when a party does not receive notice or acquire actual knowledge of judgment within twenty days, the deadlines begin to run not from the signing of the judgment, but instead from the sooner of the date the party received notice or acquired actual knowledge of the judgment or 90 days after the judgment was signed. A few pointers to keep in mind:

  1. the 306a motion must be sworn and must establish the date of first notice or knowledge of the judgment and that this date was more than 20 days after the judgment was signed;
  2. the 306a motion, including any evidentiary supplements necessary to satisfy the procedural requirements of 306a(5), must be filed within the court’s plenary period as calculated from the date of first notice or knowledge of the judgment;
  3. the movant should seek an immediate evidentiary hearing on the 306a motion and obtain a finding of fact of the date of first notice or actual knowledge of the judgment;
  4. in no event will the periods begin to run more than 90 days after the judgment is signed, meaning that if you receive notice more than 90 days after the judgment is signed, your only avenue may be a restricted appeal or bill of review; and
  5. the 306a motion should be coupled with a post-judgment motion, e.g. motion for new trial, motion to reinstate, or motion to modify judgment. If you wait for a decision on your 306a motion, your post-judgment motion may end up being untimely even if your Rule 306a motion is successful because post-judgment motions must still be filed within 30 days of the date found to be the date of first notice or actual knowledge of the judgment.

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Defining Pain and Suffering in Court

Originally published by mcminnlaw.

What is “pain and suffering” in a personal injury case?

Pain and suffering can play an important part in a personal injury case, however it can be difficult to define. Sometimes it is known as “general damage.”

Some examples of pain and suffering may include an amateur soccer player’s loss of ability to play the game they love, or a fiancé who’s relationship has been damaged by serious pain and discomfort. These examples fall under two types of personal pain:

Physical pain and suffering

Injuries can be extremely painful. And they may continue to be painful for a long time. Physical pain and suffering refers to the plaintiff’s pain and discomfort at the time of the lawsuit as well as an expert evaluation of the predicted future suffering of the plaintiff.

Mental pain and suffering

Mental pain may also be called “mental anguish” in a personal injury case. A person who is experiencing mental anguish may be unable to return to work even after the injuries have healed. A person’s depression because of an accident can become part of their personal injury cases. That accident victim may seek compensation for therapy and loss of income.

Legal Aspects of Pain and Suffering

In Texas, victims of pain and suffering may see some damage caps on their pain and suffering. It is typically calculated according to the value of the economic damages.

How can you prove pain in personal injury court?

A competant personal injury lawyer may have a variety of ways to demonstrate the pain and anguish of their plaintiff. They may create an emotional impact using information to communicate to the jury.

How can your personal injury lawyer calculate pain and suffering in a personal injury case?

There are often two parts to calculating a personal injury case. There are more concrete types of compensation victims of injury can count on known as “specials”. Special damages cover the costs of medical care following the injury, lost wages, and future lost wages or medical care. These items can be calculated with a realistic dollar amount based on markets or pay stubs.

However “pain and suffering” damages are non-economic. There is no market value for pain or loss of enjoyment. Therefore, a definition would be harder to construct and wouldn’t apply in every case. Therefor calculating a pain and suffering, and receiving compensation really depends on the talent of your lawyer. A jury verdict, with evidence such as a “day in the life” video explaining the pain and suffering of the victim may compel the jury to award a large sum of money.

This number may be arrived at by taking the sum of the “specials” and putting it against an arbitrary multiple. The number of times it is multiplied may depend upon the severity of the injury. There are several factors that may affect the multiplier used in calculating pain and suffering damages:

  • If there were aggravating circumstances in the accident, such as the influence of drugs, or driving while drunk.
  • How long the recovery took
  • If the victim will ever be able to recover.

A lawyer will better be able to calculate the damages in your case. A competent lawyer will be able to negotiate those damages.

Will Texas damage caps affect your “pain and suffering” claim?

Calculating pain and suffering from medical malpractice lawsuit:

In Texas, there are caps on pain and suffering awards from health care lawsuits. (But Medical costs and lost wages remain uncapped in Texas.) In 2003, a Texas lawsuit determined a cap on noneconomic damages in health care liability cases. Now these damages are limited to between $250,000 and $750,000 depending upon the defendants in the suit.

Calculating pain and suffering in a dog bite injury case

Dog bite cases typically involve working with an insurance adjuster from a homeowner insurance policy or possibly a renter’s insurance policy. These cases can have limits, based on an insurance policy’s maximum. However, that doesn’t mean that that’s the only compensation the victim could receive. Punitive damages may allow a victim in a severe dog bite case to secure damages for mental anguish or loss of enjoyment of life.

mcminn_lawyer_391x220Jury awards maximum settlement, plus $10,000 in punitive damages to  client of McMinn Law Firm.

Jason McMinn says the settlement shows how much the community of Georgetown values safety in their back yards.

See footage of the interview on KVUE here.

Texas is a “one bite rule” state. Find out more about the “one bite rule.”

Calculating pain and suffering in a car accident case

Economic damages play a large role in determining pain and suffering claims in car accident cases. The costs incurred while receiving medical care, chiropractic visits, any surgery or rehab will be the baseline for determining how much to receive in non-economic damages.

The insurance adjuster will take the sum of your medical expenses and multiply that number by 2, or more (possibly as high as 10) depending upon the anguish caused by the injuries. This number, added to your economic damages will be the point at which negotiations for your car accident injury case can begin.

Get a personalized quote pain and suffering estimate today. Call personal injury lawyers at McMinn Law Firm.

The pain from a personal injury case can be life changing and immobilizing. Regaining a sense of enjoyment is something that cannot be seen and only felt. A victim of a serious car or truck accident may have feelings that non-economic damages are controversial.

If you are experiencing pain and suffering, you need an experienced personal injury lawyer on your side. Pain and suffering are serious and important parts of many personal injury cases. Because the damages cannot be seen, and they are not easy to define, an experienced personal injury lawyer is needed to demonstrate during litigation how serious the pain and suffering is to their client.

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White House Considers FDA’s Final Rule Clarifying Regulations of Tobacco Products Like E-Cigarettes

Originally published by Robert Kraft.


The Hill reports the White House is reviewing the FDA’s final rule in which it clarifies the differences between how it regulates products like nicotine gum and electronic cigarettes, a distinction which the FDA asserts “comes down to the product’s intended use.” According to The Hill, “The proposed rule states that tobacco products intended for human consumption are regulated as a drug, device or combination product if intended for diagnosing or treating a disease,” or “if they contain nicotine that affects the body differently than traditional cigarettes, as well as smokeless tobacco products on the market prior to March 21, 2000.” The agency expressed particular interest in monitoring products containing tobacco and those that “claim to help consumers quit smoking.”

From the news release of the American Association for Justice.

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“Report to the President Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods”

Originally published by Victoria Erfesoglou.

Forensic science has been used in courtrooms across the country. Our criminal justice system uses forensic science to punish, convict, deprive freedom and destroy lives. Many times proponents of various areas of forensic science are not scientists; they are lawyers and judges with a limited understanding of methods of validity and reliability. But what if […]

The post “Report to the President Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods” appeared first on HCCLA’s Reasonable Doubt.

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Chief Judge Lynn Awards Attorney’s Fees to Microsoft and AT&T in Case Where Plaintiff Did Not Own Asserted Patents

Originally published by Steven Callahan.

On September 2, 2016, Chief Judge Lynn issued a decision in Raniere v. Microsoft (available here) finding that AT&T and Microsoft were entitled to recover their attorney’s fees from the plaintiff under 35 U.S.C. § 285. Section 285 provides that, in patent cases, “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” The fee award was based on plaintiff not owning the asserted patents and, according to the Court, engaging in deliberately misleading conduct:

Defendants challenged Plaintiff’s ownership of the asserted patents and pleaded lack of standing as an affirmative defense in their respective answers. The Court also questioned Plaintiff’s standing early in the litigation and gave Plaintiff multiple opportunities to establish his ownership interest in the asserted patents. Despite these opportunities, Plaintiff failed to establish that he owns the patents in suit. Further, the Court found that Plaintiff engaged in deliberately misleading conduct to obscure and complicate the standing issue.

Defendants estimated that they incurred over $1 million in fees and non-taxable costs. Chief Judge Lynn ordered Defendants to submit to the Court evidence of their reasonable attorney’s fees and non-taxable costs, and provided that the plaintiff could object to the specific amount of the requested fees.

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Wednesday, September 28, 2016

Another Mandamus Reminder

Originally published by David Coale.

th8A basic point, but one that bears frequent repetition, and the Court of Criminal Appeals concurrence ultimately cited by the Fifth Court is a quick and worthwhile read.: “As the party seeking relief, the relator has the burden of providing the Court with a sufficient record to establish his right to mandamus relief.” In re: Johnson, No. 05-16-01094-CV (Sept. 27, 2016) (mem. op.) (citing In re: Jones, No. 05-16- 00230-CV, 2016 WL 836835 (Tex. App.—Dallas March 4, 2016, orig. proceeding) (mem. op.) (citing Lizcano v. Chatham,  416 S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig. proceeding) (Alcala, J. concurring))).

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Mom Versus Dad Who Gets the rights? – Custodial Rights Vs. Non-Custodial Rights in Texas

Originally published by Evan Hochschild.

In a typical Texas Divorce, the parents of a child will either agree to dividing up the rights and duties each party has or a Court will order a division for them. The details of each particular divorce notwithstanding, the starkest contrast between each parent is in regard to which parent is able to determine the primary residence of the child. This parent, known as the custodial parent, has the child under their roof more often than not. The other parent, known as the non custodial parent, will follow a schedule of possession and access either set by the parties or the Court.

The best interests standard is how a Court will determine visitation with both parents. Stability of the home, finances, school related activities and the age of the child are all factors that are considered by the Court. If the child is over the age of twelve, their preference is considered by the Court as well. Texas Courts have what’s called a “Standard Possession Order” (often abbreviated as an SPO) or an expanded Standard Possession Order that will often times go into effect in a final order from the Court.

Without delving into too much detail, an SPO entails visitation for the child with the non custodial parent on the first, third and fifth weekends of each month typically from 6:00 p.m. on Friday until 6:00 p.m. on Sunday, thirty days of time in the summer and holidays that alternate each year.

An expanded SPO allows the non custodial parent to have extended visitation with the child as compared to the normal possession order. Practically speaking this means being able to pick the child up from school to begin their weekend of possession and to take the child to school the followingMonday.

While a non custodial parent under a SPO has the right to visit the child from 6:00 p.m. to 8:00 p.m. on Thursday each week, the expanded order holds that the child may be picked up from school on Thursday and returned to school on Friday. While these expansions may seem minimal, taken over the course of the year it can amount to a substantial gain in time with the child for the non custodial parent.

An important item to point out is that just because the custodial parent has physical custody of the child more often than the non custodial parent, that doesn’t mean he or she has the ability to deny the non custodial parent visitation, possession or access to the child. Parents who are being denied visitation by a custodial parent have the ability to file for an enforcement of the Court orders to ensure they are able to spend time with their child.

The attorneys with the Law Office of Bryan Fagan represent persons with children involved in custody disputes and divorces. Please contact our office today to learn more about how we can help you and your family.


If you are contemplating filing for divorce, or have you been served with divorce papers, mediation will probably be required at some time during the suit. Choosing an appropriate mediator, properly framing the important issues, and negotiating with the opposing party are all important skills for the family lawyer you choose to handle your case.

Our Spring, TX Divorce Lawyers are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form.Law Office of Bryan Fagan handles Divorce cases in Spring, TX or surrounding areas, Conroe, Texas, The Woodlands, Texas, including Harris County, Montgomery County, Washington County, Grimes County, Fort Bend County and Waller County.

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Texas Lawsuit Exposes Apple’s Best Safety Invention Yet

Originally published by William K. Berenson.

dreamstime_xs_41654287But Anti-Texting Lockout is Not on the New iPhone

We’ve just learned that Apple has the technology to save lives — more than 3,000 lives every year.

How? Apple has the technology to shut down its cell phones while people are driving.

The iPhone Lockout invention came to light as part of a products liability case in which the family of distracted driving victims accused Apple of knowingly selling a dangerous device. The products liability claim is unlikely to succeed. But the case has brought this important new technology to the forefront and posed the question of whether tech companies can and should do more.

Apple Sued for Creating Driving Danger

A 21 year-old driver was staring at her phone screen on a summer afternoon in east Texas in 2013 when her Dodge truck rear ended a truck making a turn in front of her causing it to veer into oncoming traffic and get hit by an oncoming truck. The crash killed two women and paralyzed a 7-year-old boy who was rendered a paraplegic.

In its products liability lawsuit, the family claimed Apple knew its iPhone would be used to text, but did nothing to prevent consumers from doing so in a dangerous way. The lawsuit addressed the question as to whether Apple and other tech companies are responsible for the negligent use of their products.

The lawsuit was filed in federal court in the Tyler Division of the Eastern District of Texas, number is 6:15-CV-715.

The texting driver was found guilty on two counts of criminally negligent homicide due to her cell phone use.

Texting while driving is a serious hazard, resulting in 3,179 fatalities and 431,000 injuries in 2014. Of course, the texters are responsible for their actions. But, if Apple can fix this problem, why doesn’t it?

Apple’s Patent for a Lockout Device

In it’s lockout patent, Apple described why the device is necessary:

“Texting while driving has become so widespread that it is doubtful that law enforcement will have any significant effect on stopping the practice…. Teens understand that texting while driving is dangerous, but this is often not enough motivation to end the practice.”

It sure sounded like Apple was aware of the dangers.

The company now claims the technology has bugs. However safety experts believe the real reason that Apple is unwilling to install the lockout device has to do with profits. If a person can text while driving with another brand, he or she is likely to buy that phone instead.

The first company to employ this new technology takes a big risk. So all companies should make texting while driving impossible.

As a Texas auto accident attorney for 36 years, I have repeatedly seen the devastating consequences of texting while driving.

Driver distraction is one of the leading causes of traffic fatalities. Drivers are distracted over one-half of the time and are not looking at other cars around them.

I urge Apple, Samsung, and all other phone companies to install the lockout device on its next iPhone software update.

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Fifth Circuit Hears Oral Argument in Employers’ Stand-Alone Class-Action Waiver Case

Originally published by Beth Graham.

For years, the United States Court of Appeals for the Fifth Circuit has maintained that a class-action waiver included in an employer’s arbitration agreement is enforceable.  Today, the appellate court will hear oral argument regarding whether such a waiver is valid and enforceable when it is not part of an agreement to arbitrate.  In Convergys Corp. vs. National Labor Relations Board, No. 15-60860, two companies, Convergys Corp. and LogistiCare Solutions, appeal from separate National Labor Relations Board (“NLRB”) decisions that invalidated each company’s mandatory stand-alone collective action waiver.  According to the companies, the waivers should be enforced based on the appeals court’s 2013 decision in D.R. Horton. In contrast, the NLRB counters that prior Fifth Circuit case law upholding such waivers relied on the federal policy favoring arbitration and claims the stand-alone class waiver violates the National Labor Relations Act.

It will be interesting to see how the Fifth Circuit ultimately decides this case!

Photo credit: David Blackwell. via / CC BY-ND

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New Mexico Pit Rule Survives Challenge by Enviro Group

Originally published by Charles Sartain.

Posted by Charles Sartain

buckwheatIn a case displaying the tactics of anti-fossil fuel advocates, Earthworks’ Oil & Gas Accountability Project v. New Mexico Oil Conservation Commission, a court rejected a challenge to the Commission’s amendment of the “Pit Rule”.  This post is not so much about the Pit Rule itself as it is the absence of legal and factual support for the appellant’s arguments. In case you’re interested, the rule governs pits, closed-loop systems, and below-grade tanks and sumps used in connection with oil and gas operations for the protection of fresh water, public health and the environment.

Lack of Authority? No

Claim:  The Commission had no authority to amend the rule because of a pending appeal of the original rule – the one being amended. No authority was cited.

Result: Earthworks conflated the Commission’s rule-making authority and its adjudicative authority, which was improper.

Arbitrary and Capricious? No

Claim:  The rulemaking was arbitrary and capricious.  To succeed on this claim, the opponent must prove that a rule was beyond the authority of Commission, was not in accordance with law, or was unreasonable and without a rational basis.

Result: The Commission had denied Earthworks’ request to take notice of certain of its prior records; Earthworks asked the court to take notice of records anyway, but again cited no authority to support the position.  The Commission elected not to respond to every concern raised by Earthworks. The Commission’s detailed summaries of its findings were satisfactory.

Economic development is a legitimate basis for a rule 

Claim: The Commission acted improperly by promulgating the rule in order to further economic development.

Result: The Commission acted within its statutory authority when it included economic considerations in its stated reasons for the rule. The Oil and Gas Act and the Commission’s regulations give due consideration to economic factors, and authorize the Commission to do whatever is reasonably necessary to carry out the purposes of the Act.  Economic considerations cannot be the sole purpose for creating or amending a rule, but found no indication that economic considerations were the primary purpose behind the rule.  The Commission cited many reasons why the rule was necessary, including encouraging reuse and recycling of oilfield fluids and reducing surface impacts.

Cost-saving is a legitimate purpose for a rule

Claim: The order adopting the 2008 Rule stated that the Commission had made all changes it could to lessen potential effects on small businesses while still protecting fresh water, human health and the environment. Thus, it was argued, because all possible measures were taken in 2008 there could not be any more cost-saving measures to be made in 2013.

  • Result:  Denied; no factual basis was cited.

Inadequate notice? No

Claim: Public notice of the rule was inadequate.

Result: Again, no authority was cited.


  • Was this suit more to obstruct than obtain legal recourse?
  • Who funds these efforts?
  • What lawyer has the temerity to assert serial arguments citing no authority?

Stanley Dural a/k/a Buckwheat Zydeco RIP.

He did the zydeco

and the N.O R&B.

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Successfully Selling Your Business: Personal Issues & Exit Plan

Originally published by Cleve Clinton.

Business For SaleAmong the growing number of business owners looking to sell their business, JR and Sue Ellen Pawlenty are in the market to sell their company Pawlenty Energy. Recently Tilting the Scales highlighted Successfully Selling Your Business: Top 6 Potential Pitfalls and So You Might Sell Your Business Someday: Do You Need a Broker?  For multiple reasons, such as family, health, age or interest, you have decided to sell your business. Now what do you do?

4 Tips – No Matter the Buyer

  1. Get your House in Order – all of your records, especially financial records should be reviewed by a competent accountant and be consistent with GAAP accounting methods.
  2. Assemble your Asset Financial Information for Buyer Due Diligence – contracts with buyers, employee policies and contracts, and overall business structure for legal and tax implications.
  3. Business Valuation – get an early idea from a competent valuation adviser and ask your expert for ideas to improve valuation, including identifying and perhaps courting your current competition. Careful: it may not be worth what you think, know what you need to retire.
  4. Plan – identify specific shareholder objectives and a transition plan. If your primary plan is a family transition plan, WAIT, there’s much more!

9 Specific Tips for Succession Planning of a Family Business

Family businesses account for a staggering 50 percent of the gross domestic product of the U.S., and it is not just in small storefronts or website businesses: 35 percent of Fortune 500 companies are private or public companies that are controlled by families. Key issues for succession planning include:

  1. Generational Transition – only a third of all family businesses successfully make the transition to the second generation.
  2. Alignment of Family Interests – alignment becomes more problematic as members retire and turn over the reins to the new generation and expect retirement income from the company.
  3. Balancing Financial Returns – buyout agreements are challenging when retiring family members look to the balance sheet value rather than an earnings capitalization model.
  4. Interfamily disputes. Family member interests may not be aligned, becoming even more difficult upon a family owner’s divorce or death and the surviving spouse holds stock (and voting rights) but is not actively contributing to the business.
  5. Estate and Inheritance Issues. Taxes and probate upon a family owner’s death can complicate business continuation.
  6. Identify and Groom the Successor. Identify a competent successor then develop them to assume the headship of the business by on-the-job training, working under mentors and advisors, and delegating before the actual passing on of the baton.
  7. Document the Succession Plan. A concrete, straight forward and not open to interpretation at a succession plan should be written: identifying the successors both in ownership and management; roles of both active and non-active family members in the business; and the support system for the successor from family members as well as the company.
  8. Create a Plan for the Transition. Establish how the business will be handed over – will the successor purchase the company, or will it be gifted? And when? If sold, what purchasing options will the older generation offer the successor? Minimizing taxes to all is critical.
  9. Communicate. The Plan must be timely communicated to the family and those active within the business, as well as non-active members, preferably by the current ownership. Every family member and employee must fully understand how the succession will work, and what their part is within it all. 

Tilting the Scales in Your Favor

You can’t sell your business like you sell your car. It’s more like selling your house, but even more challenging than just timing the market, de-cluttering the inside and slapping a coat of paint on the outside. Beyond just the physical assets and the economic climate, you are dealing with people – employees, customers and vendors. Even more complicated is the addition of continuing family ownership, management and control to the mix. It takes time, planning, decision making and then decisive communications to all concerned for success. Success won’t happen overnight; failure almost certainly will happen if you don’t.

The post Successfully Selling Your Business: Personal Issues & Exit Plan appeared first on Tilting the Scales.

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Tuesday, September 27, 2016

Jaguar Land Rover Seeking to Defend its Trademark on Canceled SUV Series

Originally published by Samuel Gee.

Jaguar Land Rover Ltd. filed a trademark infringement suit on Monday, September 19, in a Michigan federal court against Bombardier Recreational Products Inc., a Canadian […]

The post Jaguar Land Rover Seeking to Defend its Trademark on Canceled SUV Series appeared first on Klemchuk LLP.

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Cook IVC Filter Litigation Proceeds to Trial

Originally published by robertslawfirm.

The judge presiding over the multidistrict litigation for the Cook IVC (“inferior vena cava”) filter has issued an order scheduling the first three bellwether trials in 2017 and has also scheduled settlement conferences prior to the trials in hopes of reaching a settlement between the manufacturer and plaintiffs. Several hundred Cook IVC filter lawsuits have been consolidated in the U.S. District Court for the Southern District of Indiana. Plaintiffs contend that the Cook Medical filters are prone to breaking in the vein after implantation and are responsible for a number of internal injuries. IVC filters are implanted in the inferior vena cava — the vein that carries blood to the heart and lungs — to prevent blood clots from traveling from the legs to the heart or lungs. The devices are then removed 1-2 months after they are implanted. However, studies have shown that the devices can be difficult to remove without breaking inside the vein. The fragments can puncture the vena cava as well as other organs and can also travel to the heart. Plaintiffs also claim that research has shown the IVC filters to be ineffective at preventing blood clots from traveling to other organs. They also claim that the Cook IVC filter has an increased risk of deep vein thrombosis. Several other IVC filter manufacturers are also named defendants in the multidistrict litigation, including C.R. Bard and Gunther Tulip. An NBC News investigation in 2015 claimed that the company knew about the risks prior to introducing its […]

The post Cook IVC Filter Litigation Proceeds to Trial appeared first on Roberts & Roberts.

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Bicycle Insurance

Originally published by By Paul Wyatt.

Everyone knows insurance is available for purchase to cover a car on car collision; it is a state law requirement. So what coverage is available for a bicyclist? Comprehensive bicycle insurance is not sold in the United States unlike some European countries. What happens when a person on a bicycle is injured, or hit by a car? For a car on bicyclist collision the driver’s liability insurance can cover the bicyclist’s injuries. However, what if the driver’s insurance is not enough or the driver doesn’t have any insurance? A bicyclist can use their Underinsured/Uninsured motorist coverage.

Hopefully you have Underinsured/Uninsured motorist coverage, if not you should probably get it. Because it can save you when there is not enough coverage or the driver doesn’t have any insurance, and in this case when you are on a bicycle and hit by a car. The state minimum for insurance is $30,000.The Underinsured/Uninsured follows the person, even if they are on a bicycle. So if your UIM/UM coverage is $100,000 and some reckless driver who doesn’t have insurance runs you over and you have $50,000 in medical bills, you can claim against your own insurance to get those medical bills paid. This is an important fact to know for any bicyclist as this can cover them for any times they are injured by cars. The catch to this is that the bicyclist will need to have an automobile, to have the UIM/UM coverage available. Also, the accident needs to involve a vehicle, as it is Underinsured motorist and there is usually no coverage for a non-auto accident such as a bicyclist on bicyclist. As always, be sure to check what the insurance policy specifically covers or does not cover.

If you or someone you know has been injured in a cycling accident, 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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Client Development Coaching: Some Current Thoughts

Originally published by Cordell Parvin.

I love coaching senior associates and junior partners, especially when they are energized and want to learn more.

Most lawyers my age never had coaching on client development when they were senior associates or junior partners. So, naturally many ask why it is important for lawyers now.

There are several reasons why coaching is important.

First, developing business now is more challenging than it was 35-40 years ago. When I was a junior partner we could develop business by just “doing good work,” getting an AV Martindale rating and being active in the community. There were far fewer lawyers, almost all clients were local and loyal.

Now, each year the competition is greater, clients have been acquired and merged, client expectations have increased and the time available for business development has decreased.

Second, many junior partners are in the transition stage of their career where they are moving from being solely service providers to being responsible for building client relationships and developing new business. For many young partners, client development is a mystery.

Third, in 2016, there are far more ways to do client development than ever before. As a result of the mystery, lawyers client development efforts may be unstructured, unfocused, and ultimately unsuccessful.

They procrastinate, are undisciplined, have no plan, little focus, and ultimately little or no execution. Mentors within the firm can balance the current situation with both institutional firm knowledge and their own experience, but they do not have the time to focus on the business development of more junior partners.

John Wooden Activity


Coaching is designed to assist junior partners in their client development and ultimately make client development a habit.

Like working with a fitness coach, participants learn what activities will provide the greatest benefit to them and then will have regularly scheduled sessions with the coach to report on activities and learn more.

Any coaching program should include:

  • Developing a Business Plan that includes the non-billable activities designed to lead to the greatest return on investment
  • Determining both group and individual goals that will challenge and stretch them
  • Determining what activities to undertake to meet their goals
  • Learning how to write articles and blog posts and give presentations that will enhance their reputation and increase their chances of getting hired
  • Developing a Focused Contacts Plan
  • People skills including asking questions and actively listening
  • Being held accountable

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No mandamus of order compelling arbitration

Originally published by David Coale.

th8In its order denying a mandamus petition in the case of In re: Adelphi Group, the Fifth Court reminds: “Although parties may expend time and money if they are ordered to arbitration improperly, delay and expense—standing alone—will not render the final appeal inadequate. Further, mandamus as a remedy for review of orders compelling arbitration should be limited to the comparatively rare cases where the legislature has through statute expressed a public policy that overrides the public policy favoring arbitration.” No. 05-16-01060-CV (Sept. 22, 2016) (mem. op.)

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When Are Older Claims Dead? A Recap of Texas Limitations Law in First-Party Claims

Originally published by Patrick McGinnis.

There are times when public insurance adjusters or lawyers representing policyholders get claims where the policyholder did not discover damage until some time after the actual date of loss. For example, property owners sometimes don’t discover their hail damage until they experience leaks and ask a public insurance adjuster or roofing contractor to inspect their roof. This may be a year after the actual hailstorm that caused the damage. Setting aside issues of prompt notice, which I have discussed in several previous blogs, what are the rules in Texas as to when the claim is dead and it is too late to file suit?
A recent fire case out of the Galveston Division of the Southern District of Texas is a good primer on the state of the law on these issues.1 The relevant dates in Grayson are as follows:

09/22/2009 – Date of loss
06/04/2010 – Letter from Lexington saying it made “final determinations” and paying ACV funds and holding back RCV funds
11/08/2010 -…


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Effects of Embezzlement Justification for Serious Penalties

Originally published by John Floyd.

effects of embezzlement justification for serious penalties

The U.S. Sentencing Commission is an independent agency in federal judicial branch of government Established by Congress in 1984, the Commission’s primary purpose is “to establish sentencing policies and practices for the federal courts, including guidelines prescribing the appropriate form and severity of punishment for offenders convicted of federal crimes.”


One of those offenses is embezzlement which essentially targets theft from the government, such as the theft of funds or building materials from a construction site where a federal building is being constructed. Besides the theft of money and property, embezzlement can entail the theft of records or other things that have a specific value to the federal government.


Embezzlement is consider a white collar offense that comes with especially harsh penalties at ether the federal or state level. While embezzlement is a form of theft, it is considered more serious than theft per se because it generally involves the violation of a trust bestowed upon the individual who steals the money, property or records from the government or a government-subsidized entity.


U.S. Sentencing Guideline 2B1.1 establishes an offense level of 7 for an offender convicted of an embezzlement-related offense that has a statutory maximum term of imprisonment of 20 years or more. Otherwise, the offense level is 6.


Specific amounts of loss can enhance the offense level by 2 levels (loss of $5,000 or more) ip to 30 levels (loss of more than $400,000,000). And the recommended Guidelines sentence can be further enhanced for a host of other factors, such as the offense causing a substantial disruption of a critical infrastructure.


In Texas, the punishment for embezzlement is spelled out in Section 31.03 of the state’s Penal Code. The theft of money or property valued at less than $50 is punishable by a fine up to $500 while the theft of $200,000 or more is punishable by a fine up to $10,000 and/or a term of imprisonment from 5 to 99 years.


These types of cases happen throughout the country every day, and federal prosecutors and lawmakers encourage and enforce serious penalties for convicted offenders. If you are found guilty on misdemeanor embezzlement charges, you could statutorily face fines of up to $100,000 and one year in jail. If you are found guilty on felony embezzlement charges, you could face fines of up to $250,000 and up to five years in jail.


Those are serious penalties.


You could be forced to pay upwards of hundreds of thousands of dollars, even if the money that was embezzled adds up to less than $1,000.  And it should be kept in mind that embezzlement charges are often charged with other types of white collar crimes, including fraud, forgery, or theft.


Houston Embezzlement Lawyer

Why is embezzlement punished so harshly?


Because these type of crimes tend to impact large groups of people in a negative way – especially when funds are embezzled by public or government officials.


Let’s take a look at some recent cases to better understand the impact of embezzlement.


Middlebury Fire Chief Earlier this year, Paul Perrotti was sentenced to three months in jail, three years probation, and over 200 hours of community service for federal embezzlement. Perrotti served as a volunteer fire chief in Middlebury, Connecticut from 1997 to 2014. From 2012 to 2013, Perrotti embezzled money from the town of Middlebury by writing checks to employees, as well as third parties and vendors associated with the business he owned as a licensed electrical contractor. Over $25,000 was taken from the town during that time. In mid-2014, the FBI launched an investigation against Perrotti, which led to his arrest.


Capitol Harley-Davidson Employee A man from Howell, North Carolina was charged with embezzling over $280,000 from Capitol Harley-Davidson from 2009 to 2014. Stephen Elliott was trusted by the previous owner, David Bell, and started to run the business while Bell slowly relinquished his involvement.


Unfortunately, Elliott allegedly used his position to sell motorcycle parts on the side for personal gain. Prosecutors believe that Elliott changed records to cover up missing inventory.


During this time, other employees saw that the business was suffering. Some even allegedly wrote personal checks in an effort to get the Capitol Harley-Davidson back on its feet. Elliott faces up to 20 years in prison and has a motion trial in October 2016.


Quincy Police Department Lt. Thomas Corliss worked in the Quincy Police Department in Massachusetts for 23 years until he was charged with mail fraud and embezzling money from the city of Quincy and the police department itself. Federal investigations revealed that the lieutenant allegedly lied, improperly recording his duties and hours to obtain higher pay from the Police Department. He also failed to record his time off for vacation.


Altogether, over $11,000 was taken from the city between March and September 2015. At the time of his indictment, Corliss was the highest-paid member of the department. In 2014, he was the highest-paid city employee. Corliss’s paycheck is taxpayer-funded, and many of the charges embezzled were also funded by federal traffic-enforcement grants. Corliss has pleaded innocent to the crimes he has been charged with.


Serious Effects Mean Serious Penalties


Federal White Collar Crime Attorney

Embezzlement and similar white collar crimes can have a profound negative effect on businesses, consumers, and the overall economy. This is why you need a serious federal white collar crimes lawyer to fight for you if you find yourself up against these types of charges. If you want to protect your future and your good name, reach out to us today.


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The Old School Way

Originally published by Houston Criminal Defense Attorney.

A former basketball player has come and gone from the nearby office. Once a tough kid living in unforgiving circumstances, he was shown an alternative way, one that doesn’t end in prison or death. The visitor is just one of many that drop by weekly to say hello, seek advice, or give thanks to the person responsible for saving their life. Inside the office, the décor mirrors the resident, the result of removing an Italian from New York into the heart of the South fifty years ago. If the main course is spaghetti, the dessert is apple pie. Nearly forty-five years of devotion to criminal law spill over the edge of the Texas-sized desk in the form of statutes, files, and ineligible yellow legal pads.

With each blog deadline approaching, I walk next door and ask,Old School Criminal Lawyering in Houston, Texas

“Want to write a blog this month?”

I know the answer. He has much to tell, but the old school in him won’t allow it.

“I don’t blog.”

Since joining his practice nine years ago, I have been fortunate to soak up seven years experience as an Assistant District Attorney during the Johnny Holmes era. I can smell the cigar smoke on Judge Jimmy Duncan’s breath as he denies another objection. I can hear the former client’s voice seeking advice on entering witness protection. The lawyer had acquitted him of one murder; the government was willing to pardon him of fifteen. I can feel the emotional argument in front of the Texas Court of Criminal Appeals. Yes, I am fortuitous to share offices with someone who constantly reminds me “he has forgotten more than I know.”

True to his word Sam Adamo (Sr.) has not blogged, nor do I expect a blog anytime soon. However, if you were a young (or older) attorney seeking advice, here are some things he would tell you.

I. “You can’t lose a client you never had.”

I remember one of the first cases I brought in. A consultation was scheduled, and the potential client was on his way. The contract was as good as signed. Toward the end of the meeting, the potential client said, “I plan on retaining your firm, but am meeting with two other attorneys. I’ll call you later tonight.” That call never came. The next day, I slammed open his office door, “Can you believe I lost that client.” Staring down at the Texas Penal Code he said, “You can’t lose a client, you never had.”

II. “That’s the Old School Way.”

We had just finished a two-week trial on an accusation carrying a punishment range of twenty-five to life. The jury acquitted our client, found him guilty of a lesser-included offense and assessed the minimum. For any criminal defense attorney, this was a victory, but our client’s family was still reeling from the one-word verdict. Standing in the elevator, another old-school attorney entered. He watched a portion of the trial and was no stranger to defending citizens accused of serious crimes. Unprovoked, he looked to the family and said, “Now that is why you hire those guys.” Sr. looked at me and said, “that’s the old-school way.”

Before social media and the Law Hawk. Before Google and Lexis Nexus, there were lawyers on the ground, front and center, paving the road for the next generation. Influential groups like the Harris County Criminal Lawyers Association didn’t exist, and when they eventually formed carried little weight with government officials.

Whatever your niche is criminal, family, civil, there is another lawyer available at the click of a mouse. You will have consultations where the potential client has met or will meet with other attorneys. You will also field phone calls from potential clients looking for new representation. In short, there will be opportunities to voice your opinion about other attorneys. Keep it positive and keep it brief. Focus on what you can do, as opposed to what you feel the other lawyer cannot. The “other lawyer” has likely done more for you than you will ever know. “That’s the old-school way.”

III. “You can’t buy trust.”

Trust takes seconds to break and forever to repair. Be honest with judges and honest with district attorneys. It isn’t necessary to reveal all your cards but don’t tell the district attorney the sky is green when the dash-cam shows it is blue. Doing so will damage your credibility, hurt your case, and harm future cases.

Earn your client’s trust by communicating (and getting results). Tell them email is the best way to reach you (it typically is). Not only does email provide an effective means of communication, but also serves as useful evidence should the need arise. Gain your client’s trust by understanding their overall goal. You can’t provide a solution if you don’t know the problem.

Bonus: “Find one thing.”

People are different. Some we get along with better than others. In your practice, you have come across (or will come across) a client you have difficulty tolerating. When that happens, you need to find one thing you like about them and hold on to it. At trial, that “thing” will act as your guide while delivering a genuine message to the jury.

IV. “Win as if you’re used to it.”

If you have ever watched a sporting event, it is clear when the winner doesn’t win much. As a criminal defense lawyer, it is easy to get lost in fighting for the underdog. You’ve taken on the system, won, and now want to let the world know. No problem there, but do so with class. The district attorney you just humiliated on social media will be handling another one of your client’s cases shortly.

V. “Trust yourself.”

Watch other attorneys in trial. Go to CLEs. Pour over court transcripts. Ask questions. Learn. Get involved. Investigate. Over prepare, be confident, trust your instincts and above all trust yourself.

With many outstanding lawyers in Houston, this list will grow. Add on.

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Aubrey McClendon Estate Faces New Legal Claims

Originally published by Androvett Legal Media Blog.

New legal challenges are impacting the ongoing probate process stemming from the death of former Chesapeake Energy founder Aubrey McClendon. Attorneys representing Ryan Turner, an executive for American Energy Management Services, have filed claims against the McClendon estate seeking to uphold profit-sharing agreements made by Mr. McClendon to key executives at the firm, including Mr. Turner. American Energy was formed by Mr. McClendon in 2013, after he left Chesapeake.

Daniel Charest, co-managing partner of Burns Charest in Dallas and attorney for Mr. Turner, says:

“As chief investment officer, Ryan Turner played an essential role in building the value within the American Energy structure and seeks the benefits he earned from his hard work.”

The probate action is pending in the State District Court of Oklahoma County, Oklahoma. To date, the Court has approved some asset sales and scheduled evidentiary hearings related to distributions from the McClendon estate.

For more information or to set up an interview, contact Barry Pound at 800-559-4534 or


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Are Wellness Dogs in Law Schools’ Futures?

Originally published by lawschool academicsupport.

Our student organization on animal law has brought dogs into the law school during several exam periods to de-stress law students. Other law schools have also done this type of pet therapy. Now USC is touting its new hire: USC…

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Wells Fargo Avoids Liability with Arbitration Clauses

Originally published by Thomas J. Crane.

You have to love capitalism. I still believe the capitalistic system is the best around. But, the crazy things it can lead to. Everyone has heard about the Wells Fargo scandal. Bank tellers at Wells Fargo were required to open a certain amount of new accounts every month. The pressure was on to meet a certain goal every month. So, many Wells Fargo employees opened false accounts in the name of customers. They were so desperate to meet their goals, that they basically took money from customers to open accounts that the customers did not want.

Every bank customer at Wells Fargo signs an arbitration agreement when they open their account. Does that arbitration agreement apply to a fraudulent account? Yes, it does, according to early court opinions. Customers have tried to sue the bank for its fraudulent sales practices and have been stymied by the arbitration provision for the one true account. As one Los Angeles lawyer said, its “laughable to any logical person.” See Los Angeles Times report. In one instance, Wells Fargo opened eight accounts fraudulently in the name of one customer. But, a San Fransisco district court would not let him sue the bank.

Arbitration is often, paid-for justice. At least one study has shown that there is a “repeat player” effect. That is, an arbitrator will favor a repeat customer. In this context, Wells fargo would be the repeat player. They would have hundreds or more such arbitrations, while each customer likely has just the one. If there arbitrator wants more arbitrations, he knows he should find in favor of the repeat customer.

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Monday, September 26, 2016

A well-tried case

Originally published by David Coale.

perry-masonThe plaintiff in Cowart v. Erwin achieved the difficult result of winning a jury trial on an Eighth Amendment claim against a detention officer. The opinion details the proof that satisfied a sufficiency review — multiple favorable eyewitnesses (and multiple unfavorable ones as well) throughout the entire incident in question, along with helpful and contemporaneous photographs and medical records (among others). “Objective” video evidence was not dispositive when it “is not necessarily inconsistent with eye witness accounts of what transpired at the jail on the day in question.”  No. 15-10404 (Sept. 20, 2016).

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Houston Professional Football Stays the Same; Compliance Evolves

Originally published by tfoxlaw.

The history of professional football in Houston is certainly star-crossed. After winning the first two American Football League (AFL) championships in 1960 and 1961, the Oilers never made it back to the big game. After the merger of the National Football League (NFL) with the AFL, they never made it past the American Football Conference […]

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Fox Goes to War with Netflix Over Two Programming Executives Who Jumped Ship

Originally published by Leiza Dolghih.

160916165507-netflix-fox-logos-780x439In a move that suggests that Fox might be feeling the burn of Netflix competition, the network Goliath has recently sued the king of online streaming over hiring of its two programming executives.  In the lawsuit, Fox claims that Netflix induced these employees to breach their employment agreements with Fox and thus tortiously interfered with their contracts causing it irreparable harm. It alleges that the conduct was illegal since Neftlix knew about the employment agreements – in fact was warned by Fox about them –  but decided to poach the executives anyways.

Coming out swinging, Fox described Netflix’s actions in the complaint as follows:

Netflix is engaged in a brazen campaign to unlawfully target, recruit, and poach valuable Fox executives by illegally inducing them to break their employment contracts with Fox to work at Netflix.  This action is necessary to enforce Fox’s rights, to hold Netflix liable for its wrongful conduct, and to prevent Netflix from continuing such illegal conduct.

Fox did not sue the two executives, who are now working on drama programming development for Neftlix. However, it seeks injunctive relief against Netflix to restrain it from interfering with the executives’ employment agreements claiming that Netflix’s conduct caused it “great and irreparable harm, including loss of Fox’s ability to contract for a stable workforce, the disruption to Fox’s corporate planning, and the injury to Fox’s business reputation and goodwill.”  Thus, while the executives are not named as defendants in the lawsuit, should the court grant Fox’s injunction, the order will necessarily affect the executives’ employment with Netflix. 

Takeaway:  2016 has been the year of high-profile non-compete battles in several industries. Nike, Fitbit, Lyft, and now Fox, have all been involved in lawsuits arising out of departure of key employees who ended up working for a competitor. Given the uptick in such litigation, companies should approach the process of hiring from competitors with caution and conduct their factual and legal homework before extending offers to such hires.  

Leiza litigates non-compete and trade secrets lawsuits on behalf of COMPANIES and EMPLOYEES in a variety of industries, and has advised hundreds of clients regarding non-compete and trade secret issues. If you need assistance with a non-compete or a trade secret misappropriation situation, contact Leiza for a confidential consultation at or (214) 939-4458.

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