Monday, October 31, 2016

It’s Not Enough For An Insurance Company To Allege An Insured “May” Have Committed Arson

Originally published by Christina Phillips.

All too often in fire claims insurance companies are quick to deny a fire claim and assert that the insured was involved in setting the fire. But is it enough for the insurance company to merely assert that a plaintiff’s claim “may be barred or limited because of arson,” or does an insurer need to assert more?
This issue was recently addressed in a case we were involved in the United States Northern District of Indiana.1 The insured brought suit seeking to recover damages out of a fire that that destroyed the insured business property. In litigation, the insurer sought leave to add an affirmative defense that “Plaintiff’s claims may be barred or limited because of arson.” To support its position, the insurer asserted that “substantial circumstantial evidence” indicated that the fire was caused by arson. Notably, this purported evidence or facts supporting the defense was not identified. We opposed the insurer’s motion and argued…


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Texas Supreme Court Orders and Opinions

Originally published by Rich Phillips.


Posted by Rich Phillips

In its weekly order list on Friday, October 28, 2016, the Texas Supreme Court issued two per curiam opinions. The Court did not grant any new petitions for review or set any mandamus petitions for argument.

The two per curiam opinions are:

No. 15-0452, In re National Lloyd’s Insurance Company — This mandamus petition challenges a trial court order compelling production of documents and sanctioning the non-responding party. The underlying case involves a dispute about insurance payments for damage suffered during a widespread hailstorm. The underlying dispute has generated a number of mandamus petitions in the Supreme Court on various issues. The issue in this petition is whether an insurer can be compelled to produce documents that relate to insurance claims of parties other than the parties to the instant action. The Supreme Court rejected an argument by the real party in interest that the insurance company waived its objections, then relied on its 2014 opinion in In re National Lloyd’s Insurance Company to hold that the category of requested documents, which included information about nonparties, was overbroad. The Court conditionally granted mandamus as to that category of documents, and directed the trial court to reconsider the amount of sanctions.

No. 14-0552, North Shore Energy v. Harkins — This appeal arises from a suit to quiet title and involves construction of the description of land in an option contract. The parties dispute whether the contract includes or excludes a 400-acre portion of the overall 1,600-acre tract covered by the contract. The contract gave North Shore the option to select multiple parcels of land from the described tract to lease minerals from the Harkins family. The description of the property subject to the option stated that it was 1,210.8224 acres out of a larger 1,600-acre tract and referenced a separate memorandum of lease. The separate memorandum of lease identified the 1,210.8224 acres as all of the larger 1,600 acre tract except for a 400-acre tract covered by a different identified lease. That lease, however, had expired by the time the parties executed the Option Agreement. North Shore argued that the option contract was a selection contract that allowed it to select which approximately 1,200 acres out of the larger 1,600 acre tract were covered by the option to lease. The trial court found that the contract unambiguously included the 400 acres. The court of appeals found that the contract was ambiguous and reversed and remanded. The Supreme Court held that the contract is unambiguous, because there is only one reasonable interpretation, but that the only reasonable interpretation is that the 400-acre tract is not included in the contract. Accordingly, it held that the Court of Appeals was right to reverse the grant of summary judgment in favor of North Shore, but for the wrong reasons.

The Court will hear oral argument next week on Monday, Wednesday, and Thursday. (Unlike the US Supreme Court, the Texas Supreme Court will not hear arguments on Election Day.)

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Houston Legal Links -10/31/2016

Originally published by Mary Flood.

Top legal news includes: Texas Republicans want to narrow scope of same-sex marriage ruling; Trooper’s fatal shooting of mentally ill man raises questions (Chron subsc); Baylor regents: 19 football players accused of assault or rape since 2011; Texplainer: Can I wear my campaign gear to the polls?; Texas civil rights advocates air concerns about voter ID issues; Three Resources For Voters Who Encounter Problems At The Polls; A Recap of All The Evidence Harris County Police Have Lost Track Of; 23 Lawyers Disciplined on October List; Why this major Houston law office is adding an environmental practice; Texas continues to struggle with number of uninsured children; Ted Cruz Knows Better Than to Suggest Shrinking the Supreme Court; Dallas Attorney Secures Quick Settlement After Winning $18M Verdict in Talc Asbestos Case (Texas Lawyer); More than $1M seized after illegal game room arrests; Column: Houston voters face two bad choices on school financing; For university president who’s a veteran, free tuition for military kids presents a conundrum; Man facing drunk driving charge after running over pedestrian; Driver having medical episode kills pedestrian on North Freeway & El Paso hospital suggests other hospitals for rape kit exams.

For the water cooler: Who Is The Most Famous Practicing Lawyer?; 5 Signs You Need To Make A Lateral Move; ATL: New Names For South Texas ‘Houston’ College Of Law LEAKED!; Chicago Law Professors, Like Their Students, Must Also Suffer Through Class During World Series; Indicted judicial candidate says she wouldn’t take bench until ethics case is resolved; Law firm lays off more than 50 workers, trims offices; The 6 Most Popular Election CLE Programs Right Now; ABA group will publish article calling Trump a ‘libel bully’; Anita Hill calls for ‘fair investigation’ of groping claim against Justice Thomas; Facebook’s Arbitrary Offensiveness Police Take Down Informational Video About Breast; Cancer Screening; Ammon Bundy’s lawyer is stunned with Taser and arrested after acquittals in refuge standoff; Obama commutes sentences for 98 more prisoners, 42 of them lifers; Oregon civil rights lawyer files First Amendment suit over surveillance of his Twitter account; Retired Justice Stevens plans return to Chicago to see his beloved Cubs in World Series & What Pharma GCs Can Learn From Those Personal Injury TV Ads (Texas Lawyer).

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Luncheon celebrates Paralegal Day

Originally published by Jillian Beck.


District 3 of the State Bar of Texas Paralegal Division celebrated Paralegal Day with a luncheon October 12.

The event celebrated paralegals and the 35th anniversary of the division’s establishment in 1981, when the State Bar of Texas became the first bar association to create a separate division for paralegals.

Tarrant County Bar Association President-elect Nick Bettinger read aloud a proclamation for the occasion and State Bar President-elect Tom Vick also attended the event.

Barbara Kirby, the director of paralegal studies at Texas Wesleyan University, presented a CLE, “Walking the Legal Tightrope: The future of the legal profession.”

Photography Courtesy of District 3 of the Paralegal Division. From left: State Rep. Phil King of Eggleston & King; District 3 Director Mary Wintermote of Cotten Schmidt & Abbott; State Bar President-elect Tom Vick; Paralegal Division President Megan Goor of the Brender Law Firm; and Tarrant County Bar Association President-elect Nick Bettinger of McDonald Sanders.

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Two Sanchez Oil & Gas Deals in the Eagle Ford

Originally published by John McFarland.

The Wall Street Journal reported that Sanchez Energy Corp is in talks to buy Anadarko’s leases and production in the Eagle Ford, partnering with Blackstone Group LP, for $3 billion to $3.5 billion. Separately, Sanchez Energy is selling $181 million of “non-core” Eagle Ford leases, about 15,000 acres, to Carrizo Oil & Gas Inc.  Carrizo will fund the purchase with sale of 6 million shares of common stock.

The Sanchez-Anadarko deal would be a big bite for Sanchez, which has a market cap of $472 million and $1.7 billion in long-term debt. Sanchez entered the Eagle Ford play by buying Hess’s leases, and in 2014 it bought Shell’s lease position for $639 million. Anadarko’s Eagle Ford leases are principally in Dimmit and Webb Counties, including the Briscoe Ranch, in all more than 1600 producing wells.

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Antigua and Libya; FSIA and TUFTA

Originally published by David Coale.

Muammar GaddafiThe receiver for Allen Stanford’s businesses sought to recover the proceeds of large certificates of deposit from two investment entities associated with the Libyan government. The district court dismissed one of the entities pursuant to the Foreign Sovereign Immunities Act, and allowed the claim against the other to proceed.  The Fifth Circuit reversed as to that entity, finding that the instruments at issue “did not require any act in the United States, much less the act of funneling money through the Stanford scheme or any Stanford entities in the United States,” and that the entity’s “commercial activity was limited to its obligations under teh . . . CDs, which . . . did not require any activity in the United States.” Janvey v. Libyan Inv. Auth., Nos. 15-10545 & 10548 (Oct. 26, 2016).

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The Fifth Circuit Reminds that the Interactive Process Under ADA Is a Two-Way Street

Originally published by Leiza Dolghih.

mjaxmi0ym2mxzweyzdfkzju4n2y4The Fifth Circuit recently found in favor of the City of Austin for firing a disabled employee because he did not attempt to perform his new lighter-duty job in good faith.  After the employee was injured on the job, the city offered him an administrative position as an accommodation because he could not perform manual labor required by his prior job.

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Public Speaking Tips for Lawyers and Other Humans: Part 5 – Improvisation

The Clockwork Universe

Originally published by The Movie Court.

Book review from The Movie Snob.

The Clockwork Universe: Isaac Newton, the Royal Society & the Birth of the Modern World, by Edward Dolnick (2011).  Aw.  I just pulled this book off the shelf and discovered it still bore a price tag from my beloved Borders Bookstore, may it rest in peace.  Anyway, this is an enjoyable read about the scientific revolution in and around the time of Sir Isaac Newton.  Dolnick keeps it pretty simple and even interesting, which is saying something considering that I generally find science pretty boring.  But Dolnick knows how to tell a story, leavening the science stuff with juicy tidbits about the plague, methods of execution, and the wicked personal rivalries between some of the scientific figures of the day.  I plan to send this volume on to my scientist sister and see what she thinks of it.

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Friday, October 28, 2016

Top 10 from Texas Bar Today: Texas, Trademark Infringement, and Talking to Mama

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. Mandatory Wage Exemption ChangesCleve Clinton of Gray Reed & McGraw @GrayReedLaw in Dallas

9. Texas and 20 Other States Sue Feds Over DOL’s New Overtime RuleAxel Lindholm of Romano & Sumner, LLC ‏@RomanoSumner in Sugar Land

8. “My Lawyer Changed His Tune”Jeremy F. Rosenthal of Rosenthal & Wadas, PLLC @RosenthalWadas in McKinneyJeremy F. Rosenthal of Rosenthal & Wadas, PLLC @RosenthalWadas in McKinney

7. White House Calls on States to Ban or Limit Non-Compete AgreementsLeiza Dolghih @TexasNonCompete of Godwin Lewis PC in Dallas

6. ADA Recognizes Associational DiscriminationThomas J. Crane @tomjcrane of Law Office of Thomas J. Crane of San Antonio

5. EI as much as AI – Zena Applebaum @ZAppleCI of Bennett Jones LLP

4. Texas Courts Continue Their Romance with ArbitrationCharles Sartain of Gray Reed & McGraw @GrayReedLaw in Dallas

3. These aren’t the trademarks you’re looking forSaul Perloff of Norton Rose Fulbright @NLegal_Global in San Antonio

2. Always Talk To MamaVik Vij @Vikvijlaw of The Law Office of Vikram Vij, PLLC in Pearland

1. The Intersection of the Anonymous Right to Free Speech, the Texas Citizens Participation Act, and Rule 202 Pre-Suit DiscoveryClaire James of Cowles & Thompson @CowlesThompson in Dallas


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Pro Bono Week Spotlight Day 5: Jenny Smiley

Originally published by Amy Starnes.

The State Bar of Texas, the Texas Access to Justice Commission, the American Bar Association, and others proudly support National Pro Bono Celebration Week (Oct. 23-29). Pro Bono week is an opportunity to educate the public about the good work the legal community does to improve the lives of vulnerable Texans and to encourage more individuals to get involved in pro bono support of the legal system.

During the week we will feature stories of pro bono volunteers that first appeared in LegalFront, an electronic publication put out by the Legal Access Division of the State Bar of Texas.
Jenny Smiley

Jenny Smiley

Jenny Smiley — law clerk, U.S. District Court for the Western District of Texas

Serving as the Pro Bono Chair of the Midland Young Lawyers Association, Smiley sends out e-mail blasts to all association members announcing dates and times of upcoming evening clinics as well as cases that are available for pro bono placement. A regular attendee of Legal Aid of NorthWest Texas’ Midland evening clinics, Smiley is dedicated to pro bono service and in getting others in her community involved in pro bono activities.

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Tarrant County Bar celebrates pro bono with annual luncheon

Originally published by Jillian Beck.


The Tarrant County Bar Foundation celebrated pro bono efforts and raised money to improve access to justice at its annual luncheon this month.

The Advocates for Justice Luncheon October 13 in Fort Worth benefited the foundation’s pro bono and community service programs and recognized the work of LegalLine, Texas Lawyers for Texas Veterans—Tarrant County Chapter, and Tarrant County Volunteer Attorney Services.

Texas A&M University School of Law was the Champion of Justice sponsor for the event, where Texas Supreme Court Chief Justice Nathan L. Hecht spoke about advancing access to justice in the state.

In the past year, the pro bono programs of the foundation and the Tarrant County Bar Association put on 18 free legal clinics for veterans and low-income residents and the free legal help hotline responded to more than 1,200 calls.

Photograph courtesy of the Tarrant County Bar Foundation. Texas Supreme Court Chief Justice Nathan L. Hecht (left) and Advocates for Justice Luncheon Committee Member Ronald Johnson.

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Halloween Pranks Can Lead to Trouble

Originally published by Rosenthal & Wadas.

Halloween is a busy night for law enforcement. Teenagers and college students can easily find themselves on the wrong side of the law when a seemingly harmless prank goes too far. Toilet papering or egging: “TPing” or egging someone’s house may…
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Texas and 20 Other States Sue Feds Over DOL’s New Overtime Rule

Originally published by Axel Lindholm.

A bevy of 21 states, including Texas, Oklahoma, Arizona, and New Mexico, filed suit in federal court against the U.S. Department of Labor seeking to block the DOL’s new overtime rule. The extensive complaint, filed in the U.S. District Court for the Eastern District of Texas, argues in relevant part that the DOL’s rule “defies the statutory text of 29 U.S.C. 213(a)(1), Congressional intent, and common sense” [Complaint, p. 2]. Among the states’ other allegations is a contention that the new overtime rule is a “palpable” threat to the States’ budgets and, consequently, the system of federalism.

The New DOL Overtime Rule

In May 2016, the U.S. Department of Labor (DOL) issued the new rule, which significantly expands the number of U.S. workers who are entitled to the Fair Labor Standards Act’s minimum wage and overtime pay protections. Among other things, the new rule more than doubles the salary threshold below which most white-collar, salaried workers are entitled to overtime. The “old” threshold was $455 per week (or $23,660 annually for a full-year worker). The “new,” challenged threshold is $913 per week (or $47,476 annually for a full-year worker).

The DOL estimates that the rule will impact as many as 4.2 million workers, including many who work for state and local governments, who will either (a) get raises to increase their salaries above the new threshold level or (b) get new overtime protections (i.e., spend less time at work). Texas and her sister states counter that the 10th Amendment, which reserves for the states or the people all powers not expressly granted to the federal government, prevents the President and/or the DOL from making wholesale changes in how much states must pay their workers. The states also say the Labor Dept. focused on salary levels to the exclusion of all other tests required to interpret the law, which merely exempts from overtime employees in managerial, professional, or administrative roles.

States Seek to Build on Earlier Success in Fighting Provisions of Obamacare

Legal experts note that the complaint adopts wording keyed to the U.S. Supreme Court’s decision in National Federation of Independent Business v. Sibelius, in which 26 states successfully challenged the Medicaid expansion plan contained in the Affordable Care Act (Obamacare) as being unconstitutionally coercive.

This isn’t the first time that most of the plaintiff states have joined together in combating administrative rules from Washington D.C. Most of them joined in several other efforts to block rules put in place by President Obama, who has increasingly turned to executive orders and administrative rulings to maneuver around what he has described as an uncooperative Congress. For example, the President’s plan to extend semi-permanent residency status to millions of illegal immigrants was blocked by another federal judge in Texas. That decision remains in force, due to a deadlock in the U.S. Supreme Court back in June.

Employment-Related Regulations Are Becoming More Complex

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The DOL’s new overtime rule is effective December 1, 2016. It affects large and small employers alike. Many business owners acknowledge that they are confused not only by the new rule, but also by the maze of regulations that seem to come from every direction. Indeed, maneuvering within the complex world of government regulations can be difficult. Many businesses have found it prudent to retain experience legal counsel to assist them.

The attorneys at Romano & Sumner, PLLC have more than 20 years of combined experience providing expert legal assistance to business clients. We represent clients in all types of business and legal concerns, including those related to employment practices. We have extensive experience in litigation, if that becomes necessary. We pride ourselves not only upon our professionalism, but also upon our client service. We return phone calls within one business day. We keep clients informed. We complete the work within the allotted time frame. Call us at 281-242-0995 or complete our online contact form.

The post Texas and 20 Other States Sue Feds Over DOL’s New Overtime Rule appeared first on Romano & Sumner – Sugar Land, TX Attorneys.

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Why Ignoring Child Support Obligations is a Bad Idea in Texas

Originally published by Law Office of Bryan Fagan.

Many of my consults revolve around child support. Sometimes people are coming to see me because they are unable to pay child support.

Other times it is because things had been going well both parents had come to an agreement after child support had established that child support was no longer needed. However, the Court order was never changed and now the parents were arguing and the parent who was supposed to be receiving child support was going after the parent who was ordered to pay child support for the missed payments.

In either of these situations it is a mistake to ignore a child support order.

The Order is the Order Until it is Changed

When I consult with people regarding their child support obligations probably one of the things you will hear me say is that the Child Support Order is the Order until it is changed. What I mean by this just because your financial situation has changed and you are no longer earning as much as you used to does not automatically change how much you owe each month.

If you are earning less than that is one reason to ask the Court to lower your child support. To change how much you owe involves going back to Court and asking the Judge to reevaluate how much you owe and sign a new Court Order.

The Only Signature Matters is the Judge’s Signature

Sometimes people either come to me worried or excited because they have signed an agreement with their EX in regards to child support. This agreement is even notarized. I then either relieve or disappoint them by telling them it does not matter. It takes more than a signed notarized agreement to change or obligate someone in regards to child support.

There would need:

  1. An open an ongoing case
  2. The agreement would need to meet statutory grounds such as through mediation
  3. That agreement would then need to be reduced to a Court Order
  4. That Court Order would need to be signed by a Judge

Can I ask that for Child Reimbursement from the Time I Lost My Job?

Probably not. Under Section 156.401(b) of the Texas Family Code, “A support order may be modified with regard to the amount of support ordered only as to obligations accruing after the earlier of:

  1. the date of service of citation; or
  2. an appearance in the suit to modify

What this means is that the soonest you can ask for a change is from time you get your EX served with paperwork letting them know you want your child support obligation changed. If you let time go by unless your EX agrees your obligation amount is only changeable as described above.

Child Support Enforcement

In Texas, parents are required to support their children financially until the child reaches the age of 18 or stops attending high school. Texas law provides a variety of solutions for when a parent refuses to comply with the court’s child support order. These options include:

  1. Withholding of Earnings: The court may order that up to 50% of the parent’s take-home pay be withheld
  2. Contempt: If found to be in contempt, the noncompliant parent could face a $500 fine, up to 6 months in prison, or both. This option is usually not available if your support order is from a state other than Texas.
  3. Suspension of State Licenses: The court could order that the parent’s driver, professional, and hunting and fishing licenses be suspended
  4. Withholding State Contracts, Grants and Loans
  5. Monetary Damages
  6. Liens on Property
  7. Levies on Financial Institutions
  8. Passport Sanctions
  9. Credit Bureau Reporting
  10. Child Support being reduced to a Judgment
  11. Qualified Domestic Relations Orders for Child Support

If a parent does not pay child support as Ordered by a Court they are at risk of having a court case brought against them and one or more of the above being Ordered against them.

A child support judgments can follow you around by showing up in your credit history, preventing you from renewing governmentally issued licenses, and or getting a tax refund.

If you have questions regarding your child support obligation you should seek a Free legal consult with one of our child support lawyers at the Law Office of Bryan Fagan who can tell you your options so that you can decide how to handle it.

Wage Withholding Order

An administrative writ of withholding for delinquent child support does not seek to impose a legal liability on the obligor to support his/her children. Instead, it is one of the several methods the Family Code provides as a remedy to secure performance of a previously adjudicated liability. The Family Code allows an administrative remedy to collect child support when an obligor’s child support is at least one month delinquent.

Child Support Judgment

A child support lien freezes a financial account, but a levy is still required to be able to seize the money in the account. A judgment or administrative determination of child support arrears is required to file a child support levy. Tex. Fam. Code §157.327(a). An administrative determination of child support arrears occurs when the arrearages are determined by an administrative or judicial writ of withholding under Chapter 158 of the Texas Family Code.

Child Support Liens

Under Texas Family Code §157.313, failure to pay child support as ordered may result in a child support lien. A child support lien arises by operation of law when any child support payment is delinquent. Tex. Fam. Code §157.312(d). Every child support payment that is not timely made is a judgment. Tex. Fam. Code §157.261. There is no requirement that you receive a child support cumulative money judgment before filing a child support lien. A child support lien may issue “regardless of whether the amounts have been adjudicated or otherwise determined.” Tex. Fam. Code §157.312(d). A lien can attach to all the property owned by the obligor except a homestead. Tex. Fam. Code §157.317.

Child Support Levy on Financial Institutions

A child support lien freezes a financial account, but a levy is still required to be able to seize the money in the account. A judgment or administrative determination of child support arrears is required to file a child support levy. Tex. Fam. Code §157.327(a). An administrative determination of child support arrears occurs when the arrearages are determined by an administrative or judicial writ of withholding under Chapter 158 of the Texas Family Code.

Suspension of License for Failure to Pay Child Support

Chapter 232 of the Texas Family Code sets out the methods of suspension of a professional, or recreational, license to secure compliance of a court order. License suspension for failure to pay child support may only be obtained if the obligor had previously been given the opportunity to pay the child support arrears and failed to do so. This provision does not apply only to a driver license. It can apply to any type of license issued by any licensing authority specifically defined in Texas Family Code Section 232.002.

Passport Denial

If you owe $2,500 or more in child support, you are not eligible to receive a U.S. passport. Passport Denial Program was created by the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 that is operated under the auspices of the Federal Tax Refund Offset Program.

Credit Bureau Reporting

The state Title IV-D program is authorized to report the names of delinquent support obligors and the amounts of the delinquencies to consumer credit bureaus, subject to appropriate due process protections under which the obligor may contest the amount of the arrearage being reported

Qualified Domestic Relations Orders for Child Support

A “domestic relations order” (DRO) is a court order issued by a state that divides a pension plan and orders that a portion of it be paid to an alternate payee, the child, as child support. The DRO magically becomes “qualified” and is a QDRO when the pension plan administrator accepts that DRO as meeting its requirements and agrees to honor the DRO.

On any retirement plan – whether it is a defined benefit plan (monthly payout type) or defined contribution (401k). It is not necessary for an IRA. If the obligor has no other income, the pension plan provides a regular source, just like an employer’s withholding order.

Law Office of Bryan Fagan | Spring, Texas Child Support Lawyers

The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding child support, it’s important to speak with one of our Spring child support Lawyers right away to protect your rights.

Our child support lawyers in Spring TX 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. The Law Office of Bryan Fagan handles Family cases in Spring, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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“My Lawyer Changed His Tune”

Originally published by Jeremy Rosenthal, Esq..

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

My favorite thing to be able to do in my practice is give great news and if I can’t do that — then at least folks can leave my office with hope and optimism.  Giving great news, giving people hope and a reason to feel optimistic has to be honest, realistic or based in fact or it’s destructive.

I hear “my last lawyer changed his tune” a lot when I talk with people who either are getting a second opinion about their case or from someone (or their family) who had a bad experience in the legal system.

They tell me their lawyer was really excited at the onset of their case about the prospects for getting a case dismissed, acquitted or charges reduced.  At some point later, the lawyer’s attitude and demeanor seemed to change and all the news turns bad.  Instead of gallantly fighting — the lawyer is insisting the client plead guilty.

I’m always disappointed to hear this and it does make me reflect a bit about what really went on.  I do my best to understand not only from the client’s side but also the lawyer’s side.

Here are some of the reasons this is a recurring problem in my view:

The Lawyer is Afraid of the Courtroom or is Risk Averse

Some lawyers are simply intimidated by the prosecution, by juries, or even by certain Judges.  They give you a very rosy outlook in the comfortable confines of their conference room, but when the lights get bright or when the prosecutor begins to gnash their teeth —  they wilt.

Other lawyers are afraid of risks.  Trial is to lawyers what surgery is to doctors.  Some always err on the side of playing it safe.

Risk is a part of the practice of law, in my view.  Often my clients are less risk averse than I am and other times they want to take risks I try to talk them out of!  There are times when they lawyer has to firmly let the client know the risk must be taken.  Some lawyers can’t do that.

The Lawyer is Inexperienced

Inexperienced lawyers make a handful of mistakes.  First, they fail to see the downside to a case when it walks in the door.  When they hear the facts of what happen — they often see great issues but their lack of experience may fail to see how certain issues tend to collapse or be more difficult to handle than they originally thought.  They also lack the experience to foresee other developments which might change their outlook on the case.

Some lawyers really do get excited about your case but their mis-evaluation of it causes them to change course which is difficult to understand and can be confounding to the client.

The Lawyer Fails to Set Proper Expectations

Some lawyers do see the pitfalls in your case but over-promise in hopes of getting business.  This invariably backfires because when the case does become difficult, the lawyer is forced to retreat from their earlier optimism without any real reason.

The experienced lawyer knows hard truths up front equal a satisfied client at the end of the case.  My hope is my client understands that I’ll fight as hard as I can for them regardless of whether my outlook is rosy or bleak at the onset.


Sometimes the Case Really Does Change for the Worse

Every case is it’s own snowflake… unique and distinguishable from anything and everything else.  The more and more cases I handle, the less unpredictable developments happen.  But unpredictable developments do happen even in the most common types of cases.  New and unforeseen facts can arise about an existing case or things unknown to me about my client’s past can crop up and present a bigger hurdle than originally considered, or sometimes just a change in prosecutor can throw things for a loop.

What Your Lawyer Should Have Done…

Lawyers can avoid “changing tune” in the middle of the case by setting a realistic tone from the outset.  This is a function of experience of knowing the variables to come in the case and how they typically break, having the discipline to “tell it like it is” to the client up front and temper optimism with appropriate caution, and to show the proper follow-through with risk associated with the case.

I hope this helps anyone in this predicament understand.

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



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Variations Among States Regarding Defective Workmanship as Occurrence

Originally published by Ana Reis.

Whether construction defects are occurrences under Commercial General Liability (“CGL”) insurance policies is an issue that has been highly litigated in recent years. A review of cases from various states discloses that courts have been divided both in the way they decide and analyze this issue.
Historically, it was well settled throughout the country that defective workmanship was not a covered occurrence under a CGL policy of insurance. However, many courts throughout the U.S. have re-examined this precedent and have begun a new trend by finding that defective workmanship can, in fact, be an occurrence. The problem is that not all states have reached the same conclusion and have therefore created a patchwork of inconsistent results and analyses which differ from state to state. For those of us in the insurance industry, this results in a tedious task of determining which states follow which trend.

And as described by Christopher C. French’s article, Construction…


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ADA Recognizes Associational Discrimination

Originally published by Thomas J. Crane.

One often overlooked aspect of Americans with Disabilities Act is that this statute also protects persons who have an association or relationship with a person who has a disability. See 42 U.S.C. §12112(b)(4). 20 C.F.R. §1630.8 defines the association as relationships based on family, business, social or other sorts of relationships.  The statute and regulation appear to recognize that persons with disabilities often have informal support groups. As one client with blindness once explained to me, he left his home for a job in a distant state. In that distant state, his colleagues at work became in effect his support network. He could not really survive without an informal  support group.

If a person suffers discrimination because he or she assists someone with a disability, how does that person show discrimination? There is no specific test for associational discrimination under the ADA. So, rightly or wrongly, the courts have adopted a test based on certain situations. The seminal case is Larimer v. IBM Corp., 370 F.3d 698 (7th Cir. 2004), cert. den. 543 U.S. 984 (2004). Judge Posner is the author. The court found three types of situations that fall within the protections of Sec. 12112(b)(4):

  • Expense – such as when the spouse of an employee will cause additional expense to the employer. This might happen when a spouse will cause health insurance premiums to rise, so the employee is fired.
  • Disability by association – the court focused on possible genetic pre-dispostion to certain impairments, or an employee with contagious impairment like HIV
  • Distraction – such as when an employee is distracted at work due to the impairment of a family member

The problem with this list is that courts inevitably see the list as exclusive. The Larimer court in no way suggested this list is a final list. In fact, the court set forth this list simply to help explain why Mr. Larimer would not be protected by the ADA. Mr. Larimer, said the court, lacked evidence showing the employer was concerned about the health care costs of his daughter, or that her condition was somehow communicable to others. Therefore, he was not entitled to coverage.

Judge Posner pointed out a “quirk” in the statute. By the literal wording of the statute, a person who alleges s/he was fired because s/he was associated with a person with a disability must show that s/he was a “qualified individual.” That is, the wording requires the family member to have a disability, just as the person s/he is assisting must also have a disability. That would make no sense. The purpose of the provision is to protect persons providing assistance, not those who have impairments themselves. So, Judge Posner interpreted this provision to mean the assisting person must be qualified for the position from which s/he has been fired. See the Larimer decision here.

The prima face elements for an associational discrimination claim would include that the person: 1) was qualified for the job, 2) was subjected to adverse personnel action, 3) was known by the employer at the time to have a relative or associate with a disability, and 4) suffered an adverse action in circumstances that suggest a reasonable inference that the disability of the relative or associate was the determining factor in the employer’s decision. See, Graziadio v. Culinary Institute of America, 817 F.3d 415, 32 A.D. Cases 1117 (2d Cir. 2016); Hilburn v. Murata Electronics N. America, Inc., 181 F.3d 1220, 1230-31 (11th Cir. 1999).

The caselaw is not perfect. But, the statute recognizes a fact of life in the world of persons with disabilities: many persons involved in their lives are not relatives. They often have an informal network of supporters who make their working lives possible.

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Real World Tips for Learning to APPLY the Law!

Originally published by lawschool academicsupport.

Wow. I just negotiated a contract…with a vending machine! And, perhaps you made a contract today too. But sometimes the 1L subjects just seem so far removed from my life experiences that I often found – as a law student…

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Chicago Cubs, MLB sue alleged counterfeit vendors for trademark infringement

Originally published by Roxanne Edwards.

As the Chicago Cubs begin the battle for the World Series title for the first time in over a century, attorneys for the Cubs and […]

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Texas Restrictions for Senior Drivers

Originally published by robertslawfirm.

Texas is one of several states that require senior drivers to do more than just show up at a Department of Public Safety (DPS) office to renew their driver’s license. In certain situations, senior drivers in Texas may be asked to take a vision test and a medical evaluation when renewing their licenses. Texas imposes the following requirements on senior drivers for license renewal: Drivers aged 79 to 84 must renew their licenses in person every six years. Drivers aged 85 or over must renew their licenses in person every two years. Drivers aged 79 or over must undergo a vision test and medical evaluation. Applicants with eyesight that is less than 20/70 with correction or 20/40 without correction must be examined by an outside vision specialist. A written knowledge test and a road test may be required if deemed necessary by DPS personnel. In some cases, older Texas drivers may have restrictions placed on their driver’s license. These vary, and are based on the results of your vision test and a driver’s test. The most common restrictions include: Requirement to wear eyeglasses or corrective lenses; Restriction on when you can drive – i.e., between sunrise and sunset; Limits on where you can drive — i.e., no freeway driving; Requirement to wear hearing aids while driving; Requirement to limit speed to 45 mph or lower; Requirement for vehicle equipped with outside mirrors, power steering, automatic transmission, etc.; Requirement for notification of medical conditions. Senior drivers under the age of 79 […]

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Voting Laws – Do’s and Don’ts for Texas Employers

Originally published by Celina Joachim.

November 8 is shaping up to have one of the largest voter turnouts in history.  As such, Texas employers should ensure they comply with election voting laws as they relate to employees.  Chapter 276 of the Texas Election Code sets certain requirements for employers.  Below are some do’s and don’ts for employers with voting employees:

  • DON’T PROHIBIT EMPLOYEES FROM VOTING.  Perhaps this one is obvious, but it is unlawful for employers to prohibit employees from voting or to threaten them for voting.  This includes denial of time off to vote as addressed below.
  • DO ALLOW EMPLOYEES TWO HOURS TO VOTE.  If an employee does not have two consecutive hours outside working hours during which the polls are open, a Texas employer must allow the employee extra time off to vote.  Such time off is paid unless it is outside working hours.  That said, it does not apply if an employee has already voted during early voting procedures.
  • DON’T RETALIATE AGAINST VOTERS.  Employers cannot retaliate against a voter who votes for or against a particular candidate or measure, or who refuses to tell you how they voted.  For instance, it is unlawful for an employer or manager to threaten loss or reduction of wages or other employment benefits in retaliation against a voter who votes a particular way or won’t reveal how they voted.
  • DO EDUCATE MANAGERS ABOUT VOTING LAWS.  Employers should train managers, supervisors, HR, payroll and other personnel about their obligations under the Texas Election Code.
  • DO RESEARCH OTHER STATE VOTING LAWS.  Remember, voting laws vary from state to state.  So, if you have employees in other states, make sure you look into the local requirements or consult with legal counsel.
  • DO REVIEW LEAVE POLICIES.  Employers should also ensure that handbook, non-retaliation, leave and other policies and procedures comply with Texas and other local voting laws.

Offenses under the Chapter 276 of the Texas Election Code are Class C Misdemeanors and could subject employers and individuals to fines (as well as bad press).  With early voting in full swing and the election fast-approaching on November 8, it is important for employers to take a moment to ensure they are up to speed with voting laws.

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EI as much as AI

Originally published by Zena Applebaum.

Technology is cool. There is no disputing that fact. Last month, while travelling for work, I had a video conversation with my kid, while I was 3500 kms away in a relatively remote mountain resort, and he was in a moving vehicle. Last week, while doing some research I came across a data visualization of all of the spells used in all seven books of Harry Potter on a scatter chart, and when you hovered over the data points you learned when the spell was used, by whom and why. That’s cool, that’s technology. Whether we are looking at the vast amounts of data in the world and how we can use that data, make it visible, pretty and useful, or whether we are talking about “smart” technology, machine learning or artificial intelligence as it applies to daily work tasks that can be automated, made better and or make our work lives and products more efficient.

And yet, as I sit here at ARK KM 2016, in NYC, the themes I keep hearing coming out of every session, are around audience engagement, adoption, clarity of purpose, how do we encourage people to share, and clear or shared communication. Fundamentally “soft skills” that technology can’t really impact have been a part of every presentation. Like it or not, while some of us may prefer to engage with robots, as people working in law firms for legal clients, we are dealing with people, clients are people. Implementation of strategically sound KM programs, social for enterprise, efficiency in data visualization, noise reduction, cross firm collaboration, data integrity, whatever it is – people are at the centre and people are necessarily complex. When we talk about getting people to collaborate, share data, engage on client matters together and so forth, we are discussing changing cultures with in individual firms and within the legal industry as a whole. Changing legal and law firm culture, (and related initiatives such as KM – however you define it) start, in my opinion with putting clients first.

I have written here and else where about how clients are or should be at the centre of any significant initiative by firms. Putting clients first to my mind means using a design thinking approach to new initiatives. Design thinking as explained in a recent Lexpert article is “also known as “human-centred design” — an approach that, at its core, is about structured problem-solving with a design flair.” The first step in design thinking that runs through every stage of the process is empathy. Empathy is knowing how someone else feels, whether as a lawyer knowing how a client feels or as an allied professional in a firm knowing how your lawyers feel. Feelings are not always used in the same discussion as law firms or lawyers, but therein, lies the change that needs to happen. In order to successfully innovate and move culturally sensitive initiatives forward we need to think like our clients, we need to feel like our clients. We need to understand our clients pain – their difficulty in solving problems and then very quickly try various solutions in solving those problems or assuage any ill feelings.

Technology can be a tool in helping to achieve resolution, but the tech itself could never replace empathy. The ability to think like others, to feel what they feel and to really understand their challenges and how to address those challenges is really about people connecting with people regardless of roles or capabilities. This is the heart of design thinking – the human element. The EI or emotional intelligence that is required to make AI, KM, BD/Marketing and other projects a success. On the surface it seems simple, and maybe it is, but all too often we are distracted by the technology and the crazy capabilities they afford us. Blinded by the possibilities of the technology, we present solutions to problems people don’t have or we aggregate data sets and taxonomies that make sense to only a few and confuse everyone else. We then push these technology solutions on a varied group of people and expect them to be as excited and ready for the impact of the technology as we are. Who wouldn’t want to know every spell Harry and his friends ever used to defeat He-Who-Should-Not-Be-Named. But if those capabilities add nothing productive to my day, or solve no real world issues, then any real value the technology tools provide gets lost. Tie solutions back people. Start prototying solutions only after actually talking to people, all the people, with all the same problems. Use technology to aid in solving real world issues or frustrations and eliminate the pain that real people are feeling. To do that, we need to be sensitive to the human element every step of the way. Once you can do that, the prototyping and ideation gets far easier, but empathy especially in law firm processes can be a fickle friend.

Who wants to take on that session at ARK KM next year???

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Thursday, October 27, 2016

Pro Bono Week Spotlight Day 4: René J. Mouledoux

Originally published by Amy Starnes.

Rene Mouledoux

René J. Mouledoux – retired senior counsel for Exxon-Mobil

René J. Mouledoux retired this year from Exxon-Mobil after a stellar career as a litigation lawyer. Mouledoux spent the last six years of his career based in Houston, where in his spare time he helped hopeful immigrants fill out the paperwork they needed to apply for U.S. citizenship at Catholic Charities’ citizenship workshops.

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Wednesday, October 26, 2016

Selling Your Business: Why Accurate Financials are Important

Originally published by Drew York.

This is the fourth installment of a series discussing potential pitfalls that JR and Sue Ellen Pawlenty, who own Pawlenty Energy, should be wary of when they are trying to sell their business. Recently, Tilting the Scales highlighted Successfully Selling Your Business: Top 6 Potential Pitfalls; So You Might Sell Your Business Someday: Do You Need a Broker?; and Successfully Selling Your Business: 4 Tips – No Matter the Buyer. Today, we’re going to discuss why it’s important for your business’s financial records to be in order.   

Avoid Losing the Sale

Many business sales begin with a letter of intent that gives the buyer a due diligence period to investigate and evaluate the business.  Inaccurate financial statements will send up a red flag for potential buyers and probably cause them to walk away from the sale.

Potentially Avoiding Litigation

When there’s a falling out between the buyer and seller after the sale, particularly where the business isn’t doing as well as it was before the sale, the buyer usually complains that the seller’s financials were inaccurate. Although you can’t control whether the buyer sues you, you can create a paper trail during the course of the sale that will make it easy to present your defense.  One way to do that is to pay your accountant to perform an audit of your financial statements before you put the business up for sale.

Boosting Your Business’s Market Value

Inaccurate financial statements might also lead to a below-value sale. For example, if your financial statements inadvertently omit the extra $100,000 in revenue you made last month, the business doesn’t look as valuable to a prospective buyer, meaning you will probably sell the business for less than it is actually worth.  You should also consider having the business appraised.

Other Important Records

If your business is regulated by the local, state or federal governments you want to make sure all of your required licenses are in good standing.  Potential buyers who discover that a business’s licensing is not in compliance will question whether the business’s financial records are also sloppy.

If you incorporated your business, you need to make sure that you have filed all necessary documents with the secretary of state.

You may also want to consider obtaining an environmental audit of the property where your business operates if you handle hazardous chemicals.

Tilting the Scales in Your Favor

Although getting your financial and other documents in order may take some time and cost some money, doing so before you put your business up for sale will save you from surprises later on. If a buyer finds flaws, it will delay the sale, may cost you the sale and may have cost you other potential buyers while you were trying to fix these problems.


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Sidestepping Courts and Congress, IRS Proposes New Rules on Transfers of Closely Held Business Interests

Originally published by Axel Lindholm.

On August 2, 2016, sidestepping what it contends are a number of unfavorable court decisions and an unresponsive Congress, the Internal Revenue Service (IRS) released new proposed regulations that would essentially prevent taxpayers from applying most minority interest discounts for intra-family transfers of family-controlled businesses. With the proposed regulations, the IRS is trying to strengthen the existing intra-family transaction rules contained in Internal Revenue Code § 2704. IRS officials have indicated § 2704 has not been effective in preventing abuses in many cases. They believe that the IRS has the power to implement the new rules without Congressional action.

The IRS has scheduled a public hearing for December 1, 2016 to consider public responses to its proposed new regulations. Many tax experts say public criticism isn’t likely to change the Service’s mind; there likely will be no meaningful changes to the regulations as currently written.

Valuation Discounts: What Are They?

In true arm’s length negotiations, when it comes to valuing closely held businesses, the “whole is worth substantially more than the sum of the parts.” Phrased a different way, a prudent investor would never pay $1 million for a 20 percent interest in a closely held business valued at $5 million. He or she would not do so for at least three reasons:

  •  The investor would have little, if any, actual control over the firm’s business operations
  •  In a pinch, it would be difficult, perhaps impossible to liquidate the investment
  •  There exists no ready market for the minority interest in the business, should the prudent investor desire to sell

Valuation Discounts Have Been Powerful Estate Planning Tools

For quite some time now, estate planners have applied this same sort of valuation discount concept for wealthy small business owners by structuring gifts of minority interests either directly to family members or to trusts created for their benefit. In essence, use of the discount rules allows one generation to transfer important family-owned assets to the next generation at a lower tax cost. The Service has pushed back, but has usually been defeated in court, based on current readings of § 2704.

Of particular concern for the IRS are so-called “deathbed” transfers of minority interests. The proposed regulations deal with these transfers with a clenched fist: Valuation discounts will not be applicable to any transfer of equity to family members that occurred within three years of a taxpayer’s death. Moreover, the value of the valuation discounts taken when the gift was made will be added back to the value of the estate.

Proposed Regulations Are Drawing Criticism

The proposed regs are drawing criticism, but most of that criticism is falling on deaf ears within the Treasury Department. IRS officials contend that it makes sense to treat intra-family transfers differently from those involving unrelated third parties. They say that even after the gift or transfer involving the minority interest, the family’s ownership and control essentially remains the same, since most families act cooperatively when it comes to running “the family business.”

What Should Closely Held Business Owners Do?

While the regulations will not become effective until at least January 1, 2017, the three-year-look-back provision mentioned above should cause many small business owners concern, particularly if they have made gifts of minority interests to family members in recent years. In many cases, a thorough review of one’s entire estate plan is in order.

Romano & Sumner: Skilled, Experienced Attorneys

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The attorneys at Romano & Sumner, PLLC have more than 20 years of combined experience providing expert legal assistance to clients in all types of taxation, wealth management, and estate planning. We have expertise in the creation of all sorts of Texas trust documents and stand ready to assist you in managing your important assets, including interests in closely held businesses. Cookie cutters are for bakers – not wealth management and estate planning attorneys. At Romano & Sumner, we listen to you and offer multiple alternatives that will help you maneuver through the complicated tax and legal arena. We pride ourselves upon our professionalism and client service. We keep our clients informed, returning your calls within 24 hours. We’re ready to assist you as you make the important decisions that affect your family. Call us at 281-242-0995 or complete our online contact form.

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Will My Case Go to Trial?

Originally published by Brandee Bower.

This question is asked of me in every meeting with a potential client. Unfortunately, I do not have a crystal ball that permits me to definitively respond to that question. However, I have faith in statistics, and in Colorado the answer to the question is that a case will probably not proceed to trial. Approximately one percent (1%) of filed cases go to trial. However, someone must be that one percent, right?
I recently attended a scheduling conference in a federal court matter and the Judge asked the attorneys—namely me—what the likelihood was this particular case would be tried. I responded that based on statistics it was very unlikely that it would go to trial. He then told us about the statistics that the federal court keeps on this topic:

The Judge narrowed the statistics to the insurance cases tried in 2015. Of those, nine cases went to trial on breach of contract and bad faith causes of action. The average length of trial was 4-7 days. Of the nine cases in…


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Texas Courts Continue Their Romance With Arbitration

Originally published by Charles Sartain.

Posted by Charles Sartain

chess2The lessons in Craddick Partners Ltd. v. EnerSciences Holdings, LLC are three: Parties who have not signed an agreement to arbitrate have standing to compel arbitration; artful pleading to avoid arbitration won’t work; and Texas courts remain eager to send cases to arbitration.

EnerSciences’ two subsidiaries sell products in the oil field. Tom Craddick approached EnerSciences to sell products to Craddick’s Permian Basin clients. EnerSciences created PB Ventures as a subsidiary through which Craddick would sell their products.

A sales agreement between Craddick Partners and PB Ventures compelled arbitration of all disputes, excluding claims “brought by either party seeking injunctive, declaratory or preliminary relief”.

Pardon me while I digress

Some parties agree to litigate some claims and arbitrate others. Why? Don’t do it. It only complicates matters, potentially increasing the cost of the dispute by fighting it in two different places. And injunctive relief is addressed by the courts and the rules of the arbitration bodies.

The dispute

Craddick Partners sued PB Ventures, EnerSciences, and its two subs, asserting negligent misrepresentation, negligence, and tortious interference (all of which are torts), and seeking a declaration that the sales agreement had terminated.

The defendants, no doubt seeking to avoid a generous portion of hometown justice, sought arbitration, alleging that Craddick artfully pleaded tort actions to avoid arbitration and that the claims were really for breach of contract. Craddick said the EnerSciences parties were non-signatories to the sales agreement and thus lacked standing.

“Direct-benefits estoppel”?

The doctrine permits a non-signatory to compel arbitration of a signatory’s claim “if liability arises solely from the contract and must be determined by reference to it”.  Said the court, a “meddlesome stranger” cannot compel arbitration by merely pleading a claim that quotes someone else’s contract. A party can’t have it both ways:  on one hand seek to hold the non-signatory liable for duties imposed by an agreement with an arbitration provision, but on the other hand deny arbitration because a defendant did not sign it.

The court denied Craddick’s argument that its claims arose from general obligations imposed by law (the tort claims). All of Craddick’s claims depended on the existence of the sales agreement. The claims not only made reference to or presumed the existence of the agreement but relied upon it for viability. EnerSciences had no obligations to Craddick other than those arising out of the contract.

A factor in the tortious interference claim was that the non-signatories were so close to the contract that they were an integral component of it; they were affiliates, and not strangers to the agreement.  Craddick could not avoid arbitration by recasting its claims as tortious interference. That claim also relied on the sales agreement for viability.  If PB Ventures had not breached the sales agreement there would be no tortious interference.

Fancy pleading doesn’t help

The court concluded that the declaratory judgment request was merely an artfully pleaded breach of contract claim. To render a declaratory judgment the court would have had to determine whether PB Ventures breached the sales agreement.

To appreciate today’s musical interludes, consider what early 1950’s  mainstream radio sounded like. Along came Chess Records with Chester BurnettMcKinley Morganfield and plenty of others.

So, Phil Chess RIP.

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White House Calls on States to Ban or Limit Non-Compete Agreements

Originally published by Leiza Dolghih.

us-whitehouse-logoOn Tuesday, the White House issued a call to action to state policymakers to do the following:

1.  Ban non-compete clauses for categories of workers, such as workers under a certain wage threshold; workers in certain occupations that promote public health and safety; workers who are unlikely to possess trade secrets; or those who may suffer undue adverse impacts from non-competes, such as workers laid off or terminated without cause.

2.  Improve transparency and fairness of non-compete agreements by, for example, disallowing non-competes unless they are proposed before a job offer or significant promotion has been accepted (because an applicant who has accepted an offer and declined other positions may have less bargaining power); providing consideration over and above continued employment for workers who sign non-compete agreements; or 2 encouraging employers to better inform workers about the law in their state and the existence of non-competes in contracts and how they work.

3.  Incentivize employers to write enforceable contracts, and encourage the elimination of unenforceable provisions by, for example, promoting the use of the “red pencil doctrine,” which renders contracts with unenforceable provisions void in their entirety.

This “State Call to Action on Non-Compete Agreements” comes on the heels of the White House and Treasury reports issued earlier this year that highlighted the fact that non-compete agreements impact approximately 30 million – nearly one in five – US workers, including roughly one in six workers without a college degree. 

Some states have already passed legislation limiting the use of non-compete agreements. For example, Hawaii banned non-compete agreements for technology jobs last year; New Mexico passed a law prohibiting non-competes for health care workers; and Oregon and Utah have limited the duration of non-compete arrangements.  Other states, like Massachusetts, have tried to implement similar measures this year but were unable to do it (yet). 

Does this mean that non-compete agreements in Texas will soon go away? There is no indication of that happening in the near future, however, the 85th legislative session in Texas will begin on January 10, 2017, and we will monitor introduction of any bills that may curtail or ban non-compete agreements in light of the trend. 

Of course, since the above call of action comes from the current White House, the outcome of the national elections will probably affect whether this call will carry over to the new administration.  Given Trump’s affinity for non-compete agreements, should he be elected, the current White House policy regarding such agreements may experience a 180-degree turn.  

Stay tuned for further developments in Texas in 2017 . . .

Leiza litigates unfair competition, non-compete and trade secrets lawsuits on behalf of companies and employees, 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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Dallas Volunteer Attorney Program honors pro bono work

Originally published by Jillian Beck.


The Dallas Volunteer Attorney Program recognized the work of legal professionals who dedicated nearly 36,000 hours of free legal service over the past year.

The program—a joint initiative of the Dallas Bar Association and Legal Aid of NorthWest Texas—hosted its 34th Annual Pro Bono Awards Reception Tuesday, where judges, attorneys, law firms, court reporters, and legal staff were honored for their commitment to pro bono.

The honorees were:

  • Pro Bono Law Firm of the Year—Norton Rose Fulbright (2,000 pro bono hours)
  • Pro Bono Lawyer of the Year—Samuel Peca of Weil, Gotshal & Manges (360 pro bono hours)
  • Hartman Judicial Pro Bono Service Award—Hon. Tena Callahan of the 302nd Judicial District Court
  • Pro Bono Appreciation Award—Jerry C. Alexander of Passman & Jones
  • Lois Bacon Special Services Award—Raechel Parolisi, Attorney at Law
  • Pro Bono Coordinator of the Year—Kathleen Tarbox Munoz of Andrews Kurth Kenyon
  • Pro Bono Court Reporter of the Year—Tenesa Shaw of the 192nd Civil District Court
  • Gold Award for Pro Bono Service—Morgan, Lewis & Bockius, Andrews Kurth Kenyon, Baker Botts, and Haynes and Boone
  • Silver Award for Pro Bono Service—Cozen O’Connor, Hunton & Williams, Akin Gump Strauss Hauer & Fled, and Thompson & Knight
  • Bronze Award for Pro Bono Service—Bracewell, Sidley Austin, Jones Day, and Locke Lord
  • Outstanding Clinic Attorney Volunteer, West Dallas—William Milne, Attorney at Law
  • Outstanding Clinic Attorney Volunteer, Garland—Casey Meyers of Manning & Meyers
  • Outstanding Clinic Attorney Volunteer, South Dallas—Jack Manning of Manning & Meyers
  • Outstanding Clinic Attorney Volunteer, East Dallas—David Weiner of Rosenthal Weiner
  • Outstanding Veterans Clinic Volunteer—Jonathan Rosamond of Baker & McKenzie
  • Outstanding Solo Practitioner—Margaret Spellings of the Law Office of Margaret B. Spellings
  • Outstanding Small Firm Lawyer of the Year—Tanner Hartnett of the Hartnett Law Firm
  • Outstanding Court Personnel—Twyla Weatherford of the 302nd Judicial District Court
  • Outstanding Support Volunteer—Gordon Hunter
  • Outstanding Corporate Attorney—Ashlie Alaman Stamper of Luminant Energy
  • Outstanding Clinic Sponsor—Southwest Airlines

Photography courtesy of the Dallas Bar Association. 

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Does the Emergency Aid Exception Apply to Vehicle Stops?

Originally published by Danielle Bonanno.

Officers Are Justified in Stopping Vehicles to Render Emergency Aid Making Evidence Found in the Process Fair Game The Fifth Circuit Court of Appeals recently handed down an opinion dealing…

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Mandatory Wage Exemption Changes

Originally published by Cleve Clinton.

HiResGunner Gunter employs dealership manager Sayles and computer technician H. Packard (“Pack”) at Falconaire’s Fine Ford and pays these “white collar” employees $40,000 per year. In busy sales months, each averages 50-60 hours a week without paid overtime. Do the new FLSA regulations affect Gunner?

Yes. Effective December 1st, Sayles and Pack must either be paid for their overtime hours or to avoid this mandate, their minimum annual salary must be $47,892 (up from the current $23,600 minimum per year) assuming they are Fair Labor Standards Act “white collar” employees (i.e., executive, administrative or professional) under the exemption, and not otherwise entitled to overtime pay.

The Labor Department estimates the new rules affect some 5 million exempt workers, predominantly in Texas, California, Florida, Illinois, New York and Pennsylvania, which have the largest number of newly eligible workers – 200,000 or more in each state. Of those numbers, hardest hit are lower-wage businesses and service industries like hospitality and retail, which identify the new rules as “Career Killers.” Rather than increasing salaries, many business may elect to reclassify professionals as hourly workers and reduce hours, adjust or remove existing benefits and flexibility (including loss of their more prestigious titles) or cut base salaries. “Comp time” (working overtime for future days off) is not an option for these newly eligible overtime workers. Even with labor reductions, the projected additional administrative costs to businesses to track hours of more employees and updating payroll systems are estimated to cost $745 million.

Employers who fail to comply after December 1st risk Department of Labor (DOL) investigation. More daunting, perhaps, is the threat of private litigation, including class action litigation – a risk with substantial downside potential.

Tilting the Scales in your Favor

Evaluate your current employees and salary levels to assess your company’s possible DOL exposure. If you elect to reclassify employees from “overtime exempt” to “overtime eligible”, develop comprehensive plans to (1) determine new hourly rates for impacted employees; (2) revise or update current timekeeping programs and policies to reflect the changes; and (3) implement training for both managers and employees addressing the changes. Congress may attempt to redirect these changes with legislation, but it’s more likely that the results of the November election  will dictate whether that momentum is sustained. Consider using a Checklist.

For more insight on cutting edge employment issues, including federal changes to overtime exemptions, visit the Texas Employer Handbook blog, written by Gray Reed employment partner Michael Kelsheimer.

The post Mandatory Wage Exemption Changes appeared first on Tilting the Scales.

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Texas Access to Justice Commission honors law firms, attorneys for supporting legal aid

Originally published by Jillian Beck.


Several law firms and attorneys were honored at a Texas Access to Justice Commission reception Monday for their commitment to supporting legal aid.

The event was held in conjunction with Celebrate Pro Bono Week, a national program that highlights the importance of expanding access to justice through free legal help.

State Bar of Texas Board of Directors Chair Jose “Joe” Escobedo presented awards to longtime members of the Pro Bono College, including Christina Melton Crain of Unlocking DOORS in Dallas and attorney Joe Connors of McAllen for their 20-year membership and past State Bar President William O. Whitehurst of Austin and attorney Ned Dennis of Marshall for their 25-year membership.

The law firms that have donated the highest dollar amounts to date to the commission’s ongoing Access to Justice Campaign were honored for their contributions, including Andrews Kurth, Baker Botts, Jackson Walker, Locke Lord, Norton Rose Fulbright, and Vinson & Elkins.

Munsch Hardt Kopf & Harr received honorable mention recognition for its contributions and an innovative fundraising effort, the “Sticky Fly,” which brought attention to the commission’s effort to raise funds for civil legal aid in Texas.

Firms with 100 percent participation in the fundraiser were also honored at the reception, including Bickerstaff Heath Delgado Acosta, Davidson Troilo Ream & Garza, Lynch Chappell & Alsup, Nathan Sommers Jacobs, Rusty Hardin & Associates, Scott Douglass & McConnico, and Zelle.

So far, the campaign has brought in more than $1.3 million from attorneys and firms across the state.


Photographs courtesy of the Texas Access to Justice Commission. Top: State Bar of Texas Board of Directors Chair Jose “Joe” Escobedo presents awards to longtime members of the Pro Bono College. Above: Winners of awards at the reception with Texas Access to Justice Commission Executive Director Trish McAllister (far left) and Texas Supreme Court Justice Eva Guzman (second from right) and Chief Justice Nathan L. Hecht (far right). 


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Pro Bono Week Spotlight Day 3: Deborah Phipps

Originally published by Amy Starnes.

.Deborah PhippsDeborah Phipps – Legal Aid of NorthWest Texas’s Lubbock office

Deborah Phipps, a retired registered nurse, became a lay volunteer with the Lubbock office of Legal Aid of NorthWest Texas’ Equal Justice Volunteer Program in 2014. Her passion for legal aid service began with family: Phipps’ daughter is a legal aid attorney in New York and through her daughter, she experienced first-hand the important work carried out by legal service programs.

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Casino Could Face Liability Claim in Crash That Killed Charter Bus Passengers

Originally published by Androvett Legal Media Blog.

A California casino could be held responsible for the deaths of more than a dozen casino customers following the crash of a charter bus with a questionable safety record, says Dallas bus crash lawyer Frank Branson.

Even though the bus involved in the California casino crash was owned and operated by an independent charter company, casinos have been held liable for passengers’ safety based on incentives and control exercised over the charter company and scheduling of charter trips.

“Casinos depend on these charter buses to bring in business,” says Mr. Branson. “They negotiate with charter bus companies to receive the cheapest price and pay little attention to safety. The end result is poorly maintained buses and overworked drivers to transport patrons.”

Mr. Branson’s input comes after the deadliest bus crash in California in decades early Sunday morning near Palm Springs. A USA Holiday tour bus returning from the Red Earth Casino slammed into a tractor-trailer, killing 13 people – including the bus driver – and injuring 31 others.

“The speed of the bus was so significant that when it hit the back of the big rig…the trailer itself entered about 15 feet into the bus,” according to the California Highway Patrol. There were no signs of the driver applying the brakes.

As the NTSB investigates the cause of the crash, early reports indicate the bus owner and operator had been sued twice for negligence involving previous crashes, including one that killed three people.

In May of this year, Mr. Branson won a $4.9 million judgment against the Choctaw Nation of Oklahoma for the family of an 83-year-old woman killed in a 2013 casino charter bus crash.

“If casinos are going to charter the buses to bring gamblers, they should make sure the buses and drivers are safe,” says Mr. Branson.

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


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