Wednesday, November 30, 2016

Whoa! A hiring strategy we really do NOT want to  see happen!

Originally published by Rita Handrich.

leadership-geneA recent symposium for IT executives included a presentation that pitched the idea of genetic screening of job applicants for traits like “honesty, leadership, being a team player, and having a high level of emotional intelligence”. While we think you may want to hang onto your checkbook if offered this sort of service, it is a disturbing outgrowth of the burgeoning research into genetic testing for almost everything. Here is a quote from the Seeker website which brought this possibility to our attention:

Although federal and states laws prohibit employers from requesting or using an employee’s genetic information, genetic testing is mainstream. Millions of people voluntarily pay to have their genomes analyzed thanks to inexpensive DNA kits available from companies like Ancestry DNA , Genome , 23andMe, Family Tree, to name a few. And research is moving forward in fields such as psychiatric genetics, trying to find correlations between genes and behavior.

“We fully appreciated the lack of legality and some of the issues with the science,” Furlonger told Seeker by email. “Nonetheless, it seems clear that work is being undertaken and therefore the current state should not be ignored.”

We are glad they appreciate the “lack of legality”. (Some researchers do not acknowledge the legal concerns—like this group on how to hire the “good psychopath” by testing them pre-hire.) The actual best answer to this question is that there is no gene for leadership (or honesty, or being a team player, or having high emotional intelligence) and there is no way testing of this sort would be useful to a company trying to figure out who to hire.

Neurolaw researchers (like Hank Greeley) are speaking up against this strategy:

“Why would an employer rely on imperfect, and generally weak, associations between genes and test scores instead of relying directly on the test scores?” said Henry Greely, director of the Center for Law and the Biosciences at Stanford University and the chair of steering committee of the Center for Biomedical Ethics. It’s like running, he said. Rather than look for genetic variations that indicate whether someone is a good sprinter or not, just watch a person sprint. That ought to tell you all you need to know.

We agree and are glad to have voices of reason speaking out against the desire to “push the hiring envelope” into areas that make no sense and violate medical privacy (as well as statistical integrity). Because while the genetic testing can’t tell you anything about the purported target traits, they can tell you things about the person that should not be a factor in hiring (including gender, possibly ethnicity, and medical issues). Will genetic testing results be a tool to worsen the problems of women and non-Asian minorities in breaking into STEM fields? Here’s what we wrote in August 2016 when we came across the “good psychopath” workplace fit test. We think it works for this idea too.

From a law office management perspective, we really would urge rejecting this sort of strategy. What they seem to intimate is that you want to find the 10% of the psychopathic population who have moderate psychopathic tendencies and then, divide them into primary and secondary psychopaths and then, figure out which of the primary psychopaths have really good social skills so their behaviors will not wreak havoc in your workplace.

Putting on our duly licensed Psychologist hats for a moment, the distinction seems to be a very slippery slope. Secondary psychopaths are trouble from the beginning. Primary psychopaths have better social skills so they can manage the day-to-day more successfully, but under stress they are going to create havoc, too. And we have never seen a trial team that isn’t under terrific stress. It is the nature of litigation, and stress tolerances need to be higher than average, not a potential area of weakness.

The authors put a troubling amount of faith in a psychological trait scale, when you can assess the same things by looking at work history, length of relationships, and having your own warning signs on high alert during the interview process. Use your intuition about whether someone will be a good fit. It is also risky to assume you can “get around” the Americans with Disabilities Act by using the PPI-R scale with job applicants when what you are measuring is psychopathy and resulting goodness of fit in your workplace.

And a high-functioning psychopathic attorney is just the kind of person to drag you through a lawsuit by claiming that you rejected him or her based on an ADA protected factor.



Related posts:

  1. Listen up, HR folks! There are ‘good’ psychopaths for you to hire!
  2. Stereotypes happen all the time if you are neither pale nor male
  3. Psychopaths brains work differently—at least when  they are criminal psychopaths

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Tuesday, November 29, 2016

Are You Procrastinating?

Originally published by lawschool academicsupport.

As exams and paper deadlines approach, it is easy to procrastinate. Here are some clues that you are not using your time wisely and missing out on oomph in your studies: You have alphabetized your casebooks and study aids on…

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USERRA Claims Are Subject to Arbitration

Originally published by Thomas J. Crane.

Arbitration of legal disputes has become so common that now it has even invaded the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Navy Lt. Kevin Ziober filed suit against his former employer after it fired him. BLB Resources, Inc. fired him on his last day of work before just before he deployed to Afghanistan in 2012. Lt. Ziober was a Naval Reservist. Lt. Ziober filed suit. But, the employer, a real estate management company in California, invoked the arbitration agreement he had signed. See Military Times report here. The lieutenant argued before the Ninth Circuit that the history of the USERRA indicated that Congress had intended that the USERRA be exempt from arbitration. The Ninth Circuit Court of Appeals did not agree.

The plaintiff pointed to the clause in the USERRA that prohibits the waiver any right the consumer might have under the statute. But, replied the Ninth Circuit, the Supreme Court addressed essentially the same clause in the Credit Repair Organizations Act in CompuCredit Corp. v. Greenwood, 132 S.Ct. 665 (2012). In the CompuCredit case, the Supreme Court held that the Federal Arbitration Act merely provided a different forum. It did not waive any right to pursue a claim. The employee also argued that the courts afforded liberal interpretation for veterans. The court did not disagree, but in agreeing to arbitration, the veteran did not give up any rights. See decision here.

In dissent, Judge Watford, pointed out that the USERRA does not follow the provisions of the Credit Repair Organizations Act closely enough. The USERRA, he pointed out, prohibits any contract that would limit any right under the USERRA. The right to sue in federal court is one such right. Unlike the Age Discrimination in Employment Act and other statutes, the USERRA includes the right to sue and also includes a non-waiver provision. This is the only employment statute to be considered for arbitration that contains both a provision conferring the right to file a suit and a non-waiver provision.

As I have mentioned previously on this forum, the premise that arbitration is just another forum is false. At least one study has found institutional bias in favor of repeat players in the arbitral system. Employers will be repeat players, not employees. The right we give up in signing those agreements is the right to a system over which we have some degree of control. In theory, if a judge performs badly, we can vote him out or vote out of office. Or, we could vote out of the office the president who appointed that particular judge. But, in arbitration, we have no control over who becomes an arbitrator. We do not have a vote.

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State Bar of Texas passes 100,000 active members

Originally published by Amy Starnes.

The lucky soul who pushed the Bar past that mark is Patrick McGinnis, an associate attorney at Eggleston & Briscoe, LLP in Houston. Mr. McGinnis was kind enough to take a few moments over the busy Thanksgiving holiday to answer a few questions for this blog. Here is a small Q&A with him:

Is being an attorney your first career? If not, what did you do before deciding to become an attorney? Yes, it is my first career. Although, I think I will give it a few more years before I give up on trying out for the NFL.

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15 Thoughtful Things You Can Do For Clients When You Are Busy

Originally published by Cordell Parvin.

I coach busy lawyers. I was busy when I practiced law so I know the challenge.

When I was busy, I always went to my list of small things I could do that might make an impact. Here are some thoughts. As you will note, some of them assume your client can accept gifts:

Mya Angelou Feel

  1. Send a coffee loving client a $10 Starbucks card
  2. Send at least one handwritten note each week to a client or referral source
  3. Make a contribution in your client or referral source’s name
  4. If you know a client has a particular interest, send a book from Amazon with a note you can do at the Amazon website (if you give me a topic, I can tell you a book to send)
  5. If you have Google Alerts, or something similar, set up for your clients, send the client an email if you read something favorable about the company
  6. Post thoughtful comments to your friends’ Facebook postings, especially if they have posted something about their children
  7. Take two hours away from your busy schedule and go visit a client’s business facility
  8. Take a few hours to volunteer to help your client’s favorite charity.
  9. Give a gift certificate to your client’s favorite restaurant
  10. Find a client alert, or blog post, your firm has done that will be of particular interest to a client and send it with a personal email explaining why you believe it will interest your client
  11. If you know your client’s children and what they are passionate about, do something nice for the children (One lawyer I coached sent an autographed jersey of his client’s son’s favorite goalie)
  12. Send a travel guide from a place where you traveled and where your client will be traveling
  13. Invite your client to write a guest post on your blog
  14. Invite your client and his/her children to use your firm’s tickets to an event
  15. Do something nice for your client’s assistant or staff


The post 15 Thoughtful Things You Can Do For Clients When You Are Busy appeared first on Cordell Parvin Blog.

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Email Sweeps- A New Approach to Ongoing Monitoring

Originally published by tfoxlaw.

The FCPA Guidance specifies that “a good compliance program should constantly evolve. A company’s business changes over time, as do the environments in which it operates, the nature of its custom­ers, the laws that govern its actions, and the standards of its industry. In addition, compliance programs that do not just exist on paper but are followed […]

The post Email Sweeps- A New Approach to Ongoing Monitoring appeared first on Compliance Report.

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CDFI Fund Announces $7 Billion Allocation of New Markets Tax Credits

Originally published by Martha Groves Pugh and K. Christy Vouri-Misso.

On November 17, 2016, the US Department of the Treasury’s Community Development Financial Institutions Fund (CDFI Fund) announced the largest single round award of New Market Tax Credit (NMTC) allocations since the program’s creation in 2001. One hundred and twenty organizations, headquartered in 36 states, the District of Columbia and Puerto Rico, were awarded a total of $7 billion of NMTC allocations.

Read the full article here.

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Essure Plaintiffs Cite Study Finding Product Use Leads to Unintended Pregnancies

Originally published by robertslawfirm.

Several dozen plaintiffs in an Essure lawsuit claim that using the permanent birth control product leads to unintentional pregnancies and other complications, including abdominal pain, headaches, back pain, hair loss, gastrointestinal issues and more. Essure was first introduced by Bayer Healthcare Pharmaceuticals in 2002 as a form of permanent, non-hormonal birth control. The device’s coils are implanted into each fallopian tube through the uterus. As inflammation and scaring occur, the fallopian tubes are sealed off and conception is prevented. Essure has been marketed as an alternative to tubal ligation. According to the Food and Drug Administration (FDA), more than 4,500 consumer complaints have been filed with the agency. Earlier this year, the FDA ordered Bayer to conduct a post-market safety study on Essure. The study will monitor 2,000 women implanted with the device for at least three years. In addition, the FDA ordered Bayer to include a warning on its packaging stating that physicians should warn patients about the potential risks of implanting the device. Essure has been marketed as the “only FDA approved female sterilization procedure to have zero pregnancies in clinical trials.”  The plaintiffs dispute this statement, saying that there were four pregnancies reported during clinical trials of Essure and five more during its first year on the market. In addition, the complaint asserts that Bayer received more than 64 reports of unintended pregnancies between 1997 and 2005. The suit also cites a study that found Essure is 10 times more likely to lead to unintentional pregnancies than laparoscopic […]

The post Essure Plaintiffs Cite Study Finding Product Use Leads to Unintended Pregnancies appeared first on Roberts & Roberts.

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When is enrichment unjust?

Originally published by David Coale.

enrichment_logoWhile affirming a relatively straightforward judgment in a home loan dispute, the Fifth Court observed: “The unjust enrichment doctrine applies principles of restitution to disputes where there is no actual contract and is based on the equitable principle that one who receives benefits which would be unjust for him to retain ought to make restitution.” Ihde v. First Horizon Home Loans, No. 05-15-01084-CV (Nov. 28, 2016) (mem. op.) (emphasis added) A counterpoint in this practical but rarely-visited area of remedies law appears in City of Harker Heights v. Sun Meadows Land Ltd., 830 S.W.2d 313, 317 (Tex. App.–Austin 1992, no writ), which observes: “An action for money had and received may be founded upon an express agreement or one implied in fact, but it is not dependent upon either.” (emphasis added).

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El Paso Bar hosts free clinic for veterans

Originally published by Jillian Beck.

elpaso2The El Paso Bar Association hosted a free legal clinic for veterans on November 19.

Seventeen attorney volunteers helped about 50 veterans during the event, which also featured speakers including El Paso city Rep. Emma Acosta and City Attorney Sylvia Firth, a minority director on the State Bar board.

Photograph courtesy of the El Paso Bar Association. El Paso City Attorney and State Bar Board Minority Director Sylvia Firth speaks at the November clinic.

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Spotify v Pandora: Streaming Your Favorite Songs On-Demand

Originally published by Peggy Keene.

While brand names like Spotify and Pandora have become synonymous with music streaming on the Internet, most customers do not understand that a subtle but […]

The post Spotify v Pandora: Streaming Your Favorite Songs On-Demand appeared first on Klemchuk LLP.

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December brings six free legal clinics for Dallas County residents

Originally published by Amy Starnes.

The Dallas Volunteer Attorney Program (DVAP) will hold six free legal clinics in December, providing consultation in civil matters to Dallas County residents who meet certain financial guidelines. Applicants are asked to bring proof of income, identification, and legal papers with them to the clinic.

Schedules and locations are as follows:

Veterans Resource Center (for veterans and their families only), 4900 S. Lancaster Rd, Dallas

  • 1:30 p.m., Friday, December 2

East Dallas — Grace United Methodist Church, 4105 Junius St.

  • 5 p.m., Thursdays, December 1 and 15

South Dallas — Martin Luther King, Jr. Center, 2922 MLK Blvd., Room 122

  • 5 p.m. Tuesdays, December 6 and 13

West Dallas — 2828 Fish Trap Road

  • 5 p.m., Thursday, December 8

DVAP is a joint initiative of the Dallas Bar Association and Legal Aid of NorthWest Texas.  For more information on DVAP, click here.

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Not So Fast — A Texas Court Stops the DOL’s Final Overtime Rule

Originally published by Emily Harbison.

As we’ve blogged about before (see here), the Department of Labor published a Final Rule with an effective date of December 1, 2016, which nearly doubled the minimum salary an employee must earn to qualify for a “white collar exemption.”  However, on November 22, 2016, a Texas federal court blocked the enactment of the amendments to the federal “white collar” exemptions for executive, administrative, and professional employees that were set to go into effect this week.  Notably, the court did not halt the proposed amendments for the highly compensated employee exemption.

You can read the entire Client Alert, which includes details about the court order and actions for employers, here.

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Fifth Circuit Limits Effect of Collateral Source Rule Under General Maritime Law

Originally published by Devin C. Reid and Alexander J. Baynham.

In DePerrodil v. Bozovic Marine, Inc., No. 16-30009, 2016 WL 6810728, at *1 (5th Cir. Nov. 17, 2016), a panel of the United States Court of Appeals for the Fifth Circuit recently limited the effect of the collateral source rule in a maritime employee’s personal injury action against a non-employer.  DePerrodil held that the collateral source rule allows a plaintiff, in a maritime personal injury action against a third party, to recover only the amount of medical expenses paid by the plaintiff’s employer’s Longshore and Harbor Workers’ Compensation Act (“LHWCA”) insurer.  In other words, the plaintiff could not recover the portion of the medical expenses billed that were “written off” by the insurer’s negotiated discount with medical providers.

Plaintiff, Robert dePerrodil, was a 70-year-old oilfield consultant who worked for Petroleum Engineers, Inc. (“PEI”).  Id.  PEI chartered a crew boat owned and operated by Bozovic Marine, Inc., to take dePerrodil from Venice, Louisiana to his work site on an offshore platform.  Id.  Upon arriving at the platform, dePerrodil was unable to board the platform because no liftboat was present, so he asked Captain Bozovic to return to port.  Id.  While returning to port, the vessel encountered eight-to-ten foot waves, and dePerrodil fell to the floor and suffered injuries to his back.  Id.

DePerrodil subsequently received LHWCA benefits from his employer and brought suit against Bozovic Marine, Inc.  DePerrodil’s medical providers billed the insurer $186,080.30 but $128,694.80 was written-off as part of the insurer’s negotiated rates with the medical providers.  Id. at *5.  In the end, the insurer paid $57,385.50 for dePerrodil’s medical expenses.  Id. at *1.  After a bench trial on the merits, the court awarded the full amount of the medical expenses billed, rather than the amount paid by the insurer.  Id. at *1.  In so ruling, the court held that the collateral source rule barred any discount of the medical expenses PEI and its insurer were billed, but not required to pay.  Id.  Bozovic appealed the district court’s ruling.

On appeal, the United States Court of Appeals for the Fifth Circuit asked “whether the collateral-source rule allows [a] plaintiff to recover the unpaid, written-off portion of his billed medical expenses, when the remaining, paid portion of the billed expenses was through workers’ compensation insurance provided by his non-tortfeasor employer, pursuant to the Longshore and Harbor Workers’ Compensation Act (LHWCA).”  Id. The Court noted that “[t]here is no direct authority regarding the treatment of written-off LHWCA medical expenses in the maritime-tort context.”  Id. at *5.  As a result, the Court looked to rules established for a seaman’s cure obligation – a seaman may only recover the amounts actual paid.  Id. at *6.  The diPerrodil panel noted that “maritime cure and LHWCA insurance create similar obligations for employers.” Id. at *6.  Both cure and the LHWCA require “an employer to pay work-related medical expenses, regardless of ‘fault or negligence . . . .’” Id.  In fact, the LHWCA’s intent was to cover those maritime workers who “do not necessarily qualify for maritime maintenance and cure because a significant portion of their work is done on shore.”  Id.  The panel, therefore, held that the rule of cure applied here: “LHWCA medical-expense payments are collateral to a third-party tortfeasor only to the extent paid; in other words, under those circumstances, plaintiff may not recover for expenses billed, but not paid.”  Id.  The holding of dePerrodil is a substantial clarification of the law in favor of maritime defendants.

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

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Monday, November 28, 2016

Copyright Office to Decrease DMCA Agent Registration Fees by 94%

Originally published by Susan Ross (US).

As of December 1, 2016, the U.S. Copyright Office will decrease the fee to register an agent to receive “takedown” notices under the DMCA from $105 to $6, pursuant to a new regulation. There will be additional changes, and everyone who has previously registered with the Copyright Office will need to update their registration electronically to keep it current. See 37 CFR 201.


The Digital Millennium Copyright Act (DMCA) added Section 512 to the U.S. Copyright Act. Section 512 establishes a safe harbor for certain copyright infringement claims if website owners follow certain procedures. Commonly known as a “notice and takedown,” the safe harbor is especially popular with websites that accept third party content. (You can read more about the notice and takedown procedures under Section 512 of the Copyright Act in our post here) If a website owner elects to use the Section 512 safe harbor, claims of copyright infringement must follow certain notification procedures listed in the law.

One of the requirements for the safe harbor is that the website owner must register an agent to receive notices of claimed copyright infringement. Originally, a website owner would complete the agent registration form by hand, and then mail it to the Copyright Office with a $105 fee. In 2011, the Copyright Office issued a notice of proposed rulemaking relating to the creation of a new electronic filing system for these notices. Five years later, the Copyright Office performed a spot check of 500 paper-based agent registration forms, and found that 70% either had inaccurate information or were for service providers that were no longer in existence.

The New Regulation

In order to meet its statutory obligation to maintain a current directory of the DMCA agents, the Copyright Office’s new regulations go into effect as of December 1, 2016. Among the new requirements:

  • Every website owner (called a “service provider” in the DMCA) that is currently registered for DMCA takedown notices with the Copyright Office will need to re-register under the new electronic system by no later than December 31, 2017. (All paper designations will become invalid as of January 1, 2018.)
  • Once registered under the new system, the electronic registration will automatically expire after 3 years. The new system will automatically generate notices of upcoming expirations and reminders to renew designations.
  • Amending a registration will re-start the 3-year expiration clock.
  • Fees to renew/amend a registration will also (currently) be $6.
  • Website owners/service providers will be required to set up a free online account with the Copyright Office and will be required provide the following information, which will not be made public: (1) login ID and password; (2) primary representative’s full name or position or title, organization, physical mail address, phone number and e-mail address; and (3) secondary representative’s full name or position or title, organization, physical mail address, phone number and e-mail address.
  • Website owners/service providers may hire a third party to manage the copyright agent designations, but each affiliate of the website owner/service provider will need a separate designation.
  • For its own DMCA registration, the website owner/service provider must provide the following information: (1) legal name; (2) physical address (no P.O. Boxes unless a special exemption is given); (3) telephone number; (4) e-mail address; (5) alternate names used by the service provider (including names that “the public would be likely to use to search for the service provider’s designated agent”); (6) designated agent’s name, organization, physical mailing address (no P.O. Boxes), telephone number, and e-mail address (the designated agent need not be an individually named person, but can be a title or an organization).
  • The Copyright Office will no longer require a FAX # because “faxing has become a relatively obsolete technology.”
  • Prior versions of the registrations will be available to the public free of charge for up to 10 years.
  • Anyone managing multiple agent designations will need to review and renew each one separately, as the Copyright Office will not permit simultaneous renewals of multiple designations.

Of course, the Copyright Office does not view the new system as an excuse to permit erroneous agent information to remain in place until December of 2017, so information should be updated and kept current. The Copyright Office will be making that process easier and far less expensive for anyone who chooses to take advantage of the Section 512 safe harbor as of December 1, 2016.

The post Copyright Office to Decrease DMCA Agent Registration Fees by 94% appeared first on The Brand Protection Blog.

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Can You Extend a Noncompete Agreement If It Is Violated?

Originally published by Robert Wood.

“Continuous and Persistent” Violations May Allow for Noncompete Extensions Many noncompete lawsuits are filed after an employer learns that a former employee has been violating his agreement not to compete.  Sometimes, the former employee competes for several months before the employer discovers the contractual violations and takes action to stop the employee from competing.  This…
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Fourth Circuit Upholds $900K FINRA Arbitration Award After Bank Fails to Weigh in on Arbitral Panel

Originally published by Beth Graham.

A unanimous panel of the United States Court of Appeals for the Fourth Circuit has reportedly upheld a contested $900,000 Financial Industry Regulatory Authority (“FINRA”) arbitration award.  In UBS Financial Services Inc. v. Padussis, No. 15-2148 (4th Cir., Nov. 22, 2016), a man, Padussis, began working as a financial advisor for a bank, UBS, in 2009.  Upon beginning his employment, Padussis signed a promissory note for a $2.7 million loan that became immediately due upon his resignation.  Padussis also signed a number of other agreements related to the terms of his employment.  Each contract stated any future disputes between Padussis and UBS would be subject to binding arbitration before a FINRA panel.

In 2013, Padussis left UBS.  According to the financial advisor, UBS cost him several valuable clients and required Padussis to share commissions with other financial advisors in violation of the terms of his employment contract.  At the time, Padussis still owed about $1.6 million to UBS.  After Padussis refused to pay the remaining sum to UBS, the bank initiated arbitral proceedings.  Padussis then filed a counterclaim against UBS for breach of contract and tortious interference with his team of financial advisors.

The Director of FINRA Dispute Resolution mailed both Padussis and UBS a list of potential arbitrators as required by the FINRA Code of Arbitration Procedure for Industry Disputes.  Under the FINRA rules, each party has 20 days during which to strike up to four names from the Director’s list and rank those remaining. Although Padussis returned his ranked list, UBS failed to reply before the 20-day deadline expired.  After the proscribed time period passed, the bank unsuccessfully sought to extend the deadline.

A FINRA panel was ultimately selected using Padussis’ preference list.  Following arbitration proceedings, the FINRA panel awarded UBS approximately $1.6 million and awarded Padussis more than $900,000.  In response, UBS filed a motion to vacate or amend the arbitral award to include an offset.  Instead, the district court confirmed the entire award and UBS filed an appeal with the nation’s Fourth Circuit.

On appeal, the court first stated the scope of judicial review for an arbitral award is extremely narrow.  The appellate court then examined the grounds on which UBS sought to vacate the FINRA panel’s arbitration award.  The court dismissed the bank’s claim that “the arbitrators were not selected according to the parties’ agreement,” when the Director of FINRA Dispute Resolution refused to extend the 20-day deadline for ranking the proposed arbitrators.  The court stated:

We will not second-guess FINRA’s decision that there was not good cause to extend the deadline. The parties agreed to arbitrate their disputes according to rules that clearly gave the Director the authority to make that decision. To usurp the Director’s authority would be to open courts to legions of questions about whether arbitral bodies properly applied one rule or another. This would deprive parties of the very benefits they sought by agreeing to arbitration – relatively prompt and inexpensive dispute resolution.

Next, the appellate court denied the bank’s request to impose an offset on the award because it would constitute a modification of the arbitration award.  The court said:

Under the Federal Arbitration Act, a court can modify an award only under specific, narrow circumstances. Relevant here, a court may modify an award “[w]here the award is imperfect in matter of form not affecting the merits of the controversy.” 9 U.S.C. § 11. Any order to modify an award must “effect the intent thereof and promote justice between the parties.” Id.

Assuming arguendo that imposing an offset would be a “matter of form not affecting the merits of the controversy,” an offset here would not effectuate the intent of the arbitrators, and we thus decline to impose one. The award itself is silent on the question of an offset, and there is no evidence in the record that would enable us to say that the arbitrators intended for the award to include one.

Because there was no basis for overturning the FINRA panel’s arbitration award, the United States Court of Appeals for the Fourth Circuit affirmed the district court’s order confirming the award in its entirety.

Photo credit: twicepix via / CC BY-SA

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What Most Small Businesses Miss When It Comes to Legalities

Originally published by Robert Kraft.


Starting a small business is often the goal of a lifetime for many entrepreneurs. Opening their doors to customers in life or online is a tremendous source of satisfaction. However, as customer transactions begin, so does legal liability. Here are several types of legal responsibility small businesses often miss, but need to address.

Product Quality

Whether selling tangible products like clothing or abstract services like accounting, business owners need to ensure their products represent quality and hold up to reasonable customer expectations. If a product or service is misrepresented, a lawsuit may ensue. Come up with standards for quality that will keep your customers happy and coming back.

Truth in Advertising

Marketing and advertising should follow industry standards to ensure truthful advertising claims. Customers get very frustrated when they buy something, only to find it is very different in use than how it was advertised. A dissatisfied customer often spreads the bad news to twenty or more friends and relatives, so it pays in more ways than one to accurately market the business.

Physical Safety

A customer’s or employee’s safety and well-being should be top considerations for any business. If there’s a chance a product will break and harm someone, it should be repaired or re-designed to prevent injuries. If the business is housed in a physical shop or office, the premises should be routinely inspected to keep the area clean, well-lit, and free of physical hazards like water leaks or frayed wires. Someone who gets hurt at the company location may file a personal injury lawsuit.

Equal Opportunities for Employees

Employees should be treated fairly and without discrimination according to current federal and state laws. Showing bias toward an employee can lead to litigation if they decide to file suit. Respect all workers and consideration regardless of race, ethnicity, religion, or gender should be given to everyone associated with the business. In this area especially, as well as the related areas of legal concern, a business owner could benefit by earning a business administration degree, which covers important topics like these.

Security Safeguards 

Adequate security should be provided to protect your company assets as well as employees and customers. This may include a monitored parking area, well-lit entrances, security alarms on windows and doors, and computer anti-hacking apps. Failing to safeguard anyone or anything related to the business may result in serious claims and losses, and in some cases, fines.

A small business owner doesn’t have to be a lawyer to understand legal issues of entrepreneurship. But earning certification from MBA online accredited programs can help to provide valuable information. Show that your small business is ready for the business world and that you can face whatever is thrown your way by being educated and up to date on the latest in business legality.

Author Information: Eileen O’Shanassy is a freelance writer and blogger based out of Flagstaff, AZ. She writes on a variety of topics and loves to research and write. She enjoys baking, biking, and kayaking. Check her out on Twitter at @eileenoshanassy.


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DOL Overtime Rules Blocked Nationwide by a Federal Court in Texas

Originally published by Leiza Dolghih.

usdepartmentoflaborThe new overtime rules were set to go into effect on December 1, 2016, causing many companies to scramble to adjust their compensation systems in compliance with the new minimum salary threshold for administrative, executive, and professional exemptions, which was going to jump from $23,660 per year to $47,476 per year on December 1st. 

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New IRS Regs Add Fangs to Disguised Sale Rules for Leveraged Partnership Transactions

Originally published by Axel Lindholm.

There’s a saying about our federal tax law: “if a favorable tax mechanism really works, the IRS will soon propose a regulation to stop its use.” We have yet another example of that phenomenon. In early October 2016, the Treasury Department released a package of partnership tax regulations regarding IRC § 707 “disguised sales” that essentially close out a practice that had often been utilized by wealthy taxpayers to get cash from an appreciated asset without immediate tax consequences.

Description of the Former Favorably Treated Practice

In the past, if a taxpayer had property that had significantly appreciated and the taxpayer wanted or needed cash, he or she could, of course, sell the property and pay capital gain tax due on the sale. In some instances, however, it was possible for the taxpayer to contribute the property to a partnership – such a capital contribution would not be considered a sale – and then have the partnership borrow, often using the appreciated property as collateral, and distribute the loan proceeds to the partner. The partner essentially received the same proceeds that would have been generated from an actual sale, but he or she did so without having to pay the tax.

Some years ago, the Treasury Department came up with regulations in an effort to limit the use of the partnership transaction, but it still was easy to do. The most recent final regulations effectively put an end to tax-deferred leveraged partnership transactions.

New Treasury Rules Regarding “Disguised Sales”

Under the new regs, all partnership debt is to be treated as nonrecourse for purposes of the disguised sale rules and generally requires that any such partnership debt be allocated to partners in accordance with their share of partnership profits. Even if the partner guarantees the partnership loan used to generate the cash, he or she will likely owe tax on the transaction as if there had been an actual sale.

Two-Year Presumption

Under the regulations, there is a rebuttable presumption that a sale has occurred when a partner makes a contribution to the partnership and receives a distribution of cash within two years of the contribution.

Regulations Will Have Adverse Effects Beyond “Disguised Sale” Transactions

Tax experts note that the new regulations not only curtail the use of “disguised sale” transactions; they will have an adverse impact on many other taxpayers who use partnerships to carry out their business objectives. The regs have important implications for many real estate investment trusts, private equity funds, and even for public companies. Some experts signal that the regulations may require a re-evaluation of all existing partnership structures, as well as a careful examination of existing guarantees and debt maintenance obligations. Moreover, taxpayers only have until January 3, 2017 to make the necessary adjustments to partnership capital accounts. After that date – in some small number of cases, even before – the new regulations may effectively preclude some taxpayers from engaging in debt-financed, leveraged partnership transactions.

Romano & Sumner: Skilled, Experienced Attorneys

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Have you contemplated how these new Treasury Department regulations might affect your existing partnership interests and your future planning? In the face of these complex rules and regulations, it generally pays to discuss your unique situation with talented, experienced attorneys. 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. 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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Wednesday, November 23, 2016

Houston Trial Lawyers Association taps new officers

Originally published by Jillian Beck.

The Houston Trial Lawyers Association elected its 2017 officers at its annual membership meeting November 15.

Kevin M. Camp of Jones Granger will be president, Daniel D. Horowitz III of the Law Offices of Daniel D. Horowitz III will be president-elect, and Tobias A. Cole of Midani, Hinkle & Cole will be secretary-treasurer.

The association is a comprised of attorneys whose primary area of practice is representing plaintiffs in the civil justice system.

camp Horowitz Tobias-T&C-783





Photographs courtesy of the HTLA. From left: Kevin M. Camp, Daniel D. Horowitz III, and Tobias A. Cole. 

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Federal Court Enjoins CMS Rule Banning Nursing Homes from Requiring Pre-Dispute Binding Arbitration Agreements

Originally published by Beth Graham.


A Mississippi federal judge has blocked a Department of Health and Human Services’ Centers for Medicare and Medicaid Services (“CMS”) regulation that bars federally funded nursing homes from utilizing pre-dispute binding arbitration agreements. Under the rule that was published in October and scheduled to go into effect next week, federal monies may be withheld from long-term care facilities that require residents to sign a mandatory agreement to arbitrate as a condition for admission.  The measure was designed to improve nursing home disclosure and instituted at the urging of 16 states and the District of Columbia. It would affect about 1.5 million individuals who reside in more than 15,000 skilled nursing facilities across the United States. You may read more about the CMS rule in a prior blog post.

In American Health Care Association v. Burwell, No. 3:16-CV-00233 (Nov. 7, 2016), a group of nursing homes and long term care facilities (collectively, the “Plaintiffs”) filed a motion seeking a preliminary injunction against the Secretary of Health and Human Services and the Acting Administrator for CMS (the “Defendants”).  After examining the pleadings, the federal concluded:

This case places this court in the undesirable position of preliminarily enjoining a Rule which it believes to be based upon sound public policy. As discussed in section I of this order, this court believes that nursing home arbitration litigation suffers from fundamental defects originating in the mental competency issue, rendering it an inefficient and wasteful form of litigation. This court believes that Congress might reasonably consider this inefficiency, as well as the extreme stress many nursing home residents and their families are under during the admissions process, as sufficient reason to decide that arbitration and the nursing home admissions process do not belong together. Nevertheless, Congress did not enact the Rule in this case; a federal agency did, and therein lies the rub. As sympathetic as this court may be to the public policy considerations which motivated the Rule, it is unwilling to play a role in countenancing the incremental “creep” of federal agency authority beyond that envisioned by the U.S. Constitution. While this court does not exclude the possibility that CMS could, in the future, make a sufficiently strong showing that it had the authority to enact the Rule it did, it seems unlikely, based on the administrative record in this case, that it will be held to have done so here. Moreover, given that the enactment of the Rule raises serious legal questions extending well beyond the arbitration issue, this court concludes that the balance of harms and the public interest support holding it in abeyance until the doubts regarding its legality can be definitively resolved by the courts.

The Northern District of Mississippi ultimately granted the Plaintiffs’ motion for a preliminary injunction and enjoined the Defendants from enforcing the CMS rule.

Meanwhile, the Supreme Court of the United States recently granted a petition for certiorari in Kindred Nursing Centers Limited Partnership v. Clark, No. 16-32.  In the appeal from the Supreme Court of Kentucky, the question presented is:

Whether the Federal Arbitration Act pre-empts a state-law contract rule that singles out arbitration by requiring a power of attorney to expressly refer to arbitration agreements before the attorney-in-fact can bind her principal to an arbitration agreement.

Stay tuned for more on both of these interesting lawsuits!

Hat tip to Liz Kramer at ArbitrationNation.

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Houston Legal Links 11/23/2016 Happy Thanksgiving

Originally published by Mary Flood.

Top legal news includes: Texas judge blocks overtime rule challenged by Paxton, others; New evidence problems surface over crime lab testing; Obama commutes sentences for 9 Texas drug offenders; Texas argues it can fix foster care without judge’s oversight; Dallas Lawyers Mourn Loss of George Bramblett, Haynes and Boone Founding Partner (Texas Lawyer); Texas lawmaker files bill making attacks on police a hate crime; Texas Federal Judge Denies DOJ Request to Lift Ban on Transgender Bathroom Rule (Texas Lawyer); Texas governor’s returns show no owed federal taxes in 2015; Woman in wheelchair tased by Harris County deputies, video shows; In Galveston County, Even Personal Bonds Keep Defendants in Jail; Expecting No Help From Next President, Immigration Advocates Discuss How To Address Labor Exploitation; Men arrested, accused of robbing homes while posing as tree trimmers; Man dies in shootout with police when chase ends in Baytown; Officer kills robber at Raising Cane’s restaurant in Montgomery County; Contractor Accidentally Rips up Historic Freedmen’s Town Bricks; 5th Circ. Trims Antigua’s Stanford Ponzi Scheme Suits (Law360); Administrative ruling could bring back crowlers for beer lovers; Judge who told new citizens to move if they don’t like Trump as president will retire in 2017 (Chron subsc) & Dallas preacher defending self for showing Cowboys game in church.

For the water cooler: Lawyer who lost case because of bathroom break wins an appeal; Law firm can run ads targeting specific nursing home, Georgia Supreme Court rules; Tens of thousands join ‘Lawyers of the Left’ Facebook group, sign Bannon protest letter; Is Donald Trump about to violate the emoluments clause?; The Biglaw Attorneys On Trump’s DOJ Transition Team; World’s Largest Law Firm Conducts Layoffs; True Progress: Female Lawyers As Multi-Dimensional Characters In The Media; Criminal’s Modus Operandi Probably Just Means He Can’t Spell “Modus Operandi”; Reality TV Star Sues Law Firm; Obama commutations pass 1,000 mark; Does machine-learning-powered software make good research decisions? Lawyers can’t know for sure; Told to go back to his own country, BigLaw partner says lawyers need to stand up and be heard & Top 6 Courses For Animal Lovers.

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What Tops Your Techie Wish List This Holiday Season?

Originally published by Attorney at Work.

Each November, we ask legal tech experts to share their personal holiday technology wish list with our readers. Can’t decide what to gift the techie in your life? Here are things the practice management tech experts would most like to unwrap this year. Enjoy the season of giving!

Erik Mazzone: Apple Watch, from “Meh” to Must-Have

Honestly, it’s a bit of a surprise (to myself, if not to my long-suffering wife) that a new Apple Watch is at the top of my list. I’ve had an OG Apple Watch (or Series 1, I suppose, if you’re not into the whole brevity thing) for about a year, and for nearly all of that year it’s been a gadget in search of a use. I mean, it’s a great fitness tracker (though without a Fitbit’s social component), and it’s useful for getting text message notifications, quickly replying (that’s not dangerous when driving, right?) and a few other things.

But it just hasn’t had a something I love about it. The killer app, as it were.

Apple WatchUntil this week, that is, when I discovered something about it I just really love. It’s Apple’s new TARDIS app, which I now use daily to go back to a time where I don’t have to practice saying “President Trump.” JK, as the kids text. Sort of.

Actually, the feature I discovered is that my Apple Watch can be set up so it automatically unlocks my MacBook Pro from the lock screen. Instead of having to enter a password (the horror, having to type in a password — what is this, 2014?), my MacBook pops up a message that notifies me it is being unlocked by my Apple Watch and a corresponding message appears on my Watch. It is a small thing, but it is freaking awesome.

It also presages a near-term future where the Watch can act as a second factor in two-factor authentication, which is pretty cool.

So, just like that, my Apple Watch went overnight from “meh” to “Have I shown you what this thing can do?!?” I’m all in on it again, and naturally, now I want the upgraded model that is waterproof and has GPS in it. Now, will someone please forward this article to my wife?

Erik Mazzone (@ErikMazzone) is a practice management advisor and Director of the Center for Practice Management for the North Carolina Bar Association. He writes and speaks widely on legal technology and practice management, in North Carolina and throughout the country. 

Nora Regis: Get a Little Creative

This year I’m asking Santa for the 3Doodler, a 3-D printing pen. The tip of the pen excretes heated colored plastic that you can build on to create sculptures, models and ornaments.  There are three different types of 3Doodler pens: the “Start,” for kids ($49); the “Pro,” for artists, engineers, architects and designers ($249); and the “Create,” for hobbyists like me ($99).  There are lots of project tutorials and videos on the developer’s website to help you get started.

Nora Regis (@NoraRegisCBA) is Trainer & Coordinator, Law Practice Management and Technology, for the Chicago Bar Association. Nora is a former paralegal, specializing in litigation and bankruptcy. Prior to working in legal, she was a technology help desk agent at University of Wisconsin-Madison.

Heidi Alexander: A Better Set of Ears

A good set of headphones is essential in a mobile world. My headphones serve as an important utility, allowing me to take calls, catch up on podcasts, and jam to music on the go. I’m always searching for the perfect set of headphones. Currently, I use the Samsung Level-U Pro wireless headphones, which I’m quite satisfied with (especially given the reasonable price). But, from time to time when the Bluetooth connection fails or the battery level is too low, I default to my highly reliable Bose in-ear headphones

My holiday wish list this year includes, you guessed it, headphones. I’m torn between the Samsung Gear IconX and Bose Quiet Control 30, both wireless in-ear models. Samsung markets its Gear IconX as a minimalistic fitness solution, which I would use only for listening because it doesn’t have a microphone. On the other hand, the Bose Quiet Control 30 seems to be a souped-up version of the robust Samsung Level-U Pro and includes an app for the iPhone (which Samsung does not). The primary question for me is whether I replace my Samsung Level-U Pro with Bose or add the Samsung Gear IconX to my repertoire. Either way, I’m excited for the holidays!

Heidi S. Alexander (@heidialexander) is a law practice management advisor at the Massachusetts Law Office Management Assistance Program (MassLOMAP), where she advises lawyers on practice management matters and in implementing new technologies.

Catherine Sanders Reach: Some New Toys, Please 

Since there isn’t a time machine available for retail sale, there are a few things that fall secondarily in the “I’d be interested in at least playing with them” category:

  • Samsung Galaxy Gear VR by Oculus. Why? ‘Cause you can watch a 2-D video from the surface of the moon. And, it is a modest $60.
  • Moto Z with Mods. So, if I can’t get the virtual reality headgear I would take a new Moto Z with the Insta-Share Projector mod to turn the phone into a (duh) projector. And, because I’ve been extremely nice this year, maybe the JBL SoundBoost Speaker mod as well?
  • Google Home. Because Google already knows everything about me anyway, what could go wrong? Also, a new Chromecast to go with that please. 

And because giving is more fun than getting, just in time for the holidays check out all the different IFTTT applets (formerly known as recipes) to help you manage the hectic holiday season. This list of 32 possibilities from PC World covers everything from setting up push notification for shipping updates, to telling Alexa to add an item to your shopping list, to uploading all those special holiday photos you get tagged on in Facebook to a Dropbox folder … and much more.

Catherine Sanders Reach (@CatherineReach) is Director, Law Practice Management and Technology, for the Chicago Bar Association. She was previously Director of the American Bar Association’s Legal Technology Resource Center for over 10 years.

Lee Rosen: For the World Traveler … Hush!

bose-headphonesMy office is often a coffee shop in Asia, Europe or South America. I travel full time and make calls from noisy places. I need to be able to hear the other party and they need to be able to hear me. It’s helpful if they don’t realize that I’m sitting close to a barista making grinding and steaming noises. This holiday season, I want to unwrap the Bose QuietComfort 25 headphones so that I can hear the other caller well. They’re over the ear and noise-canceling so they block the sound of most anything.

But that’s only half of my holiday gift list.

I also need a Harmony Headset System microphone from UFlyMike so that my voice can be heard on the other end. The technology packed in this microphone blocks nearly everything other than my voice. It’s designed for pilots flying very noisy planes and it’s more than sufficient to block a noisy barista.

The Harmony microphone plugs right into the Bose headphones and replaces the mic on the Bose cord. They’re a matched set and built from the ground up for loud environments. My holiday season will be perfect — and quiet — if these gifts show up at my door.

Lee Rosen (@LeeRosen) practices family law in North Carolina. His blog, Divorce Discourse, is a three-time ABA Blawg 100 popular vote winner. He is a recipient of the ABA James Keane Award for Excellence in eLawyering.

Jane Oxley: It’s Time!

38-alu-rose-sport-pink-select-copyI’m finally crumbling and for personal and business reasons would really like to unwrap an Apple Watch this year. I like the notifications, which should release me from constantly looking at my phone to see Slack (IM) and email updates from my team. I also love the health and exercise tracking features on the Apple Watch. I tried, and failed, to wear a Fitbit, but I know that the Apple Watch will be on my wrist every day because it’s multipurpose! 

Jane Oxley (@JaneOxley8) is President of Smokeball case management software in Chicago, and former general manager at LEAP in Sydney, Australia.

Reid Trautz: Wish List Redux

It’s “Back to the Future” for me this year. My wish list is filled with upgrades of products I know, use and love. It’s time I replaced my beloved 10-year-old Bose QuietComfort 2 headphones, and despite the dozens of great options out there, I like the new QuietComfort 35 wireless headphones that are on every “best of” list this year. I’d also love a replacement for my original Fitbit. I like the sleek new Alta model or the new Charge2. Both have great fitness and health features that will help me achieve my fitness goals. Finally, it’s time to retire my trusty iPad 2 that has become frustratingly slow and just can’t run the new iOS. There are some great deals on the iPad Air 2 this season that have attracted my attention. 

Reid Trautz is a lawyer, author, speaker and blogger on the issues of business process improvement, technology, legal ethics and effective practice management. He is a past Chair of ABA TECHSHOW, a Fellow of the College of Law Practice Management and co-author of “The Busy Lawyer’s Guide to Success: Essential Tips to Power Your Practice.” Follow him on Twitter @rtrautz.

Tom Lambotte: Something for Me, and Something for the Mac Office

We just ordered 10 new MacBook Pros with the Touchpad for our team here. I’ll be moving away from having two computers — right now an 11-inch MacBook Air as my travel machine and my 27-inch iMac in the office — and moving to a single computer, so I’ll be needing a monitor. On my wish list is the LG Electronics 4K UHD 27UD88-W 27-inch LED-Lit Monitor with USB Type-C. This 4K monitor will give me the Retina quality that I’ll soon be used to on the new MacBook Pro. It also has the Type-C connector, which will let me use the monitor as a dock, letting me connect a few USB devices in the back of it and charge my laptop at the same time, keeping my desk clear from connectors and cables.

On my personal list is the new Nintendo NES Classic. It is a diminutive plug-and-play re-creation of the original Nintendo Entertainment System, a lot of nostalgia on the gaming console I grew up on. It fits in the palm of your hand, hooked up via HDMI, and comes preloaded with 30 games and includes a single controller. From early signs, this will be one of the hottest items this season, with all of them selling out within hours when they were first released. They have been selling for triple the $59.99 price tag on eBay! I don’t need one that badly, but I’ll be keeping an eye out to see when they come in stock.

Tom Lambotte (@LegalMacIT) is CEO of GlobalMacIT, a company specializing in providing IT support to Mac-based law firms. Tom is the author of “Hassle Free Mac IT Support for Law Firms” and “Legal Boost: Big Profits Through an IT Transformation.” 

Sharon Nelson: Hands-free Tablets Anywhere

My tech wish list is long, but answering this question prompted me to just go buy something I’ve wanted for a while. It’s a Prepara iPrep foldable/adjustable e-reader, phone and tablet stand, for iPads and Surface Pros among many other devices. At $20.47 from Amazon, you can’t beat the price and it has a five-year warranty.


It fits all popular tablets, e-readers and cellphones, including Apple iPad, iPad Air, iPad mini, iPhone, Microsoft Surface, Android, Amazon Fire, Kindle, Nook, Samsung and Nexus devices. The iPrep is an easy way to support securely your tablet throughout the home or when traveling.  There is an integrated stylus pen stored in the base for convenient access. The iPrep is portable, compact and folds to fit any bag, backpack or purse

There are four adjustable angles to position the tablet for ideal viewing with a non-slip rubber grip on the base. This is important to me since I am prone to knocking my iPad over because its own stand isn’t all that stable. 

Curiously, this device is advertised primarily for cooks (and I prepare from-scratch meals every night!), but as much as I may use the device to display recipes and then store them on my iPad or Surface Pro, I also see this device as a very stable way to set my iPad on the kitchen table and Facetime with my grandchildren.

At home or on the road, it offers a great way to videoconference with clients on the iPad, leaving hands free to write or type on my Surface Pro as needed. I can also see watching movies or TV on my iPad while working at hotel desks on my Surface Pro. It can also simply serve as another monitor — and everyone misses multiple monitors when traveling.

Thanks for asking me, Attorney at Work, and giving me the excuse to press that Amazon one-click button! You can buy the iPrep here.  

Sharon D. Nelson (@SharonNelsonEsq) is President of Sensei Enterprises, Inc., a digital forensics, legal technology and information security firm. She has written or co-authored a number of books, including “The Solo and Small Firm Legal Technology Guides.” She blogs at Ride the Lightning and co-produces the podcast The Digital Edge: Lawyers and Technology.

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Tuesday, November 22, 2016

Texas Law Regulates Barriers for Home Swimming Pools

Originally published by robertslawfirm.

Texas law requires homeowners who have swimming pools to construct barriers around their pools to help prevent accidental drowning deaths. Under the law, swimming pool barriers: Must be at least four feet high. Cannot have any gaps, openings, indentations or protrusions that would allow a spherical object of four inches to pass under or between the barriers. Cannot be made of chain link fence. Must have self-close or self-lock gates that are lockable by padlock, combination lock or built-in key or card-operated lock. Latches must be installed in the upper one-quarter of the pool side of the gate to prevent children from opening them easily. Aboveground pools must also meet these same standards with the added proviso that ladders or steps must be capable of being secured, locked or removed to prevent access to the pool. If the wall of the house serves as part of the pool’s barrier, all doors that permit access to the pool area from the home are required to have an alarm that sounds when the door is opened. Any alarm bypass must be set high enough on the wall that it cannot be reached by children. In addition to state regulations, most cities have pool fence codes that homeowners must meet or face fines. Some homeowners associations also impose regulations for pool fencing, so if your housing development has an HOA, be sure to check their rules for pools. Homeowners with pools should also institute safety rules for pool use, including: Always lock the […]

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TLAP director to help lead national lawyer wellness task force

Originally published by Jillian Beck.

Texas Lawyers’ Assistance Program Director Bree Buchanan has been named co-chair of a national task force focused on improving lawyer wellness.

The American Bar Association Commission on Lawyer Assistance Programs Task Force on Lawyer Wellness is a joint effort between the commission, the National Organization of Bar Counsel, the Association of Professional Responsibility Lawyers, and others, to address the findings of the ABA and Hazelden Betty Ford Foundation study, which showed attorneys experience substance abuse and mental health issues more than any other profession and the general population.

“I am both humbled and excited about the opportunity to work with such esteemed colleagues across the country,” Buchanan told the Texas Bar Blog. “Our hope is to bring forth recommendations from the study that set off a cultural shift in how the legal profession addresses the health and well-being of its members.”

Learn more about the Texas Lawyers’ Assistance Program at and the ABA Commission on Lawyer Assistance Programs at

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Denying Justice by Limiting Definition of “Conviction”

Originally published by John Floyd.

The laws that apply to guilt do not always apply to punishment—at least that is the position of the Texas Court of Criminal Appeals (TexCrimApp). This can create a slippery slope in cases where new evidence tends to undermine both the guilt/innocence and sentencing phases of a criminal proceeding.


Favorable DNA Evidence


In 2001, the Texas Legislature created Chapter 64 of the Texas Code of Criminal Procedure that permits an inmate to file a post-conviction application for DNA testing if he or she can “establish by a preponderance of the evidence that he/she would not have been convicted if exculpatory DNA results been available to the jury at the time of his trial.”


Two years later the Legislature effectively noticed the TexCrimApp that its intent was to have the lesser “preponderance of evidence” standard utilized in these cases than the stricter “reasonable probability” standard the court had tried to apply to the statute.


Only Applies to Conviction Not Sentencing Error


In 2011, the TexCrimApp in Ex parte Gutierrez held that the DNA testing statute applies only to those inmates who “would not have been convicted” and “does not authorize testing when exculpatory results might affect only the punishment or sentence.”


Put simply, exculpatory DNA can only reverse of wrongful conviction, not the sentence resulting from that conviction.


Favorable Scientific Evidence Statute


In 2013, the Texas Legislature enacted a new forensic science statute and codified it in Article 11.073 of the Code of Criminal Procedure. The statute permits the filing of an application for writ of habeas corpus challenging a conviction based on new scientific evidence.


Again, the Legislature made it clear that these habeas applications would be guided by the “preponderance of evidence” standard.


It was inevitable that the TexCrimApp would be called upon to decide whether Article 11.073 applies solely to conviction and not punishment. The court decided this issue on November 2, 2016 in the case of Ex parte Garcia Glen White.


Amicus File Briefs, Argue Required in Death Penalty Cases


Through amicus briefs, the Texas Criminal Defense Lawyers Association, the Harris County Criminal Lawyers Association, Harris Country Public Defender’s Office, and the Office of Capital and Forensic Writs argued that the court should address this specific question: “whether new scientific evidence presented pursuant to Article 11.073 can affect only punishment phase evidence.”


Amici curiae conceded that the plain language of Article 11.073 “does not appear to apply to newly discovered evidence that would affect the punishment phase of a capital trial.” Their briefs, however, suggested that the court was “constitutionally required” to allow challenges to a death penalty in a capital case.


TCDLA amicus argued that the word “convicted” as used in Article 11.073 should be interpreted by the definition the TexCrimApp had given to the word “conviction” in the 1998 decision Ex parte Evans. The OCFW amicus argued that the word “convicted” should mean the same thing as the word “conviction” in Articles 11.07 and 11.071 which encompasses both guilt and punishment.


Texas Court of Criminal Appeals Refuses, Limits to Conviction


The TexCrimApp replied to these arguments, saying: “… It is true that legal dictionaries have sometimes referred to ‘convicted’ by saying ‘See Conviction,’ and definitions of ‘conviction,’  though generally referring to guilt, sometimes include the assessment of punishment. It is also true, though, that the word ‘convicted’ is more likely to refer solely to guilt than the word ‘conviction’ is.”


The TexCrimApp added:


“But even if the term ‘convicted’ includes the assessment of punishment, the amici’s claims fail because of the context in which the word ‘convicted’ is used in the statute. Evans was concerned with statutory language that referred to a challenge to an existing conviction, Likewise, Articles 11.07 and 11.071 are concerned with seeking relief from an existing conviction. A challenge to a sentence would necessarily be a challenge to an existing conviction. But the language is the statute before us—‘would not have been convicted’—plainly refers to any possible conviction on the charge. Even if an applicant proves that he would have received a different sentence for the charged offense, he has failed to establish that he ‘would not have been convicted.’ From the language and context of the statute alone, we conclude that the statute is unambiguous in requiring a claim under Article 11.073 be one that undermines the verdict or finding of guilt.”


11.073 Needs to be Amended


As we pointed out in our post this past February, there has been tension between the TexCrimApp. and the legislature over the intent of Article 11.073. As it did during it last session (2015), the legislature should revisit Article 11.073 and amend it so that it applies to both conviction and sentencing; that is, a defendant should be allowed to have flawed forensic evidence tested if he or she can show, by a preponderance of the evidence, that that evidence had an impact on the sentence imposed, particularly if the sentence is the death penalty.


It appears to us that the TexCrimApp has once again created a need for the legislature to act with regards to Article 11.073. We do not believe that the State should be allowed to execute an inmate or require him or her to spend the rest of their natural life in prison because flawed forensic science evidence resulted in those sentences.




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New Texas lawyers sworn in at November ceremony

Originally published by Jillian Beck.

Hundreds of Texas’ newest lawyers were officially sworn in Monday at the Frank Erwin Center in Austin at the November New Lawyers Induction Ceremony.

Friends and family of the new attorneys and representatives from the State Bar of Texas and the state’s law schools filled the room for the event, as the Texas Supreme Court and Court of Criminal Appeals presided.

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

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Federal Prosecutors Breach Plea Agreement, Appellate Court Vacates Sentence

Originally published by John Floyd.

A federal plea agreement is a binding contract between the U.S. Government and a criminal defendant. It is sometimes proffered but more often than not is the result of negotiations between Assistant U.S. Attorneys and criminal defense attorneys.


97 percent of all federal drug defendants in this country plead guilty, primarily through a negotiated plea agreement.


And why is this so?


Federal Trial Tax


Because, according to Human Rights Watch, federal drug defendants who elect to exercise their Sixth Amendment right to trial receive sentences three times longer than those who plead guilty.


Jacobi Tavares Hunter is a federal drug defendant convicted in the Southern District of Florida. He was indicted on four charges of possession with intent to distribute marijuana, cocaine, crack cocaine, and heroin.


Like many drug offenses, Hunter’s arrest stemmed from a police traffic stop, allegedly for having illegally tinted windows. The officers who stopped the vehicle stated they detected the odor of marijuana when they approached it. They ordered Hunter out of the vehicle and frisked him. An ensuing search found evidence of drug possession, and based on the amount, there was the statutory implied intent to distribute the drugs.


Hunter’s attorney filed a motion to suppress the evidence. The trial court conducted a hearing on the motion on February 4, 2015. Hunter testified at the hearing, conveying his version of events leading up to the traffic stop. The trial court was not impressed, finding that his testimony was not credible. The court denied the suppression motion.


Plea Agreement Offered


During the suppression hearing, the Government offered a plea deal. The deal called for Hunter to plead guilty to all four charges against him. In exchange, the Government stipulated it would agree to a sentence reduction based on “acceptance of responsibility—a routine stipulation consistent with U.S. Sentencing Guideline § 3E1.1(a).


The Government also stipulated that if the ensuing Presentence Investigation Report (PSI) determined that Hunter’s offense level to be 16 or above, it would file a motion “requesting an additional one level reduction” for acceptance of responsibility—a stipulation authorized when a defendant assists either in the Government’s investigation or defendant’s own prosecution by “timely notifying authorities of his intention to enter a plea of guilty,” relieving the Government of the responsibility of bringing the case to trial.


Defendant Accepted Plea Deal


There was nothing unusual about the plea deal. Hunter, therefore, accepted the deal.


On March 4, 2015, the trial court conducted a “change-of-plea” hearing. The court ordered that a PSI be prepared.


And this is where the judicial waters get murky.


The PSI was submitted to the court with the recommendation of a two-level increase for “obstruction of justice” (based on Hunter’s less than credible testimony at the suppression hearing) and did not contain a “reduction for acceptance of responsibility.”


Defendant Objected to PSI


Hunter objected to the PSI on a number of grounds, but mostly for the obstruction increase and the failure to include an acceptance of responsibility reduction.


It was time for the Government to step up to the plate and honor its “plea agreement” responsibility.


What did the Government do?


Government Defaulted on Plea Agreement


It not only failed to request its promised acceptance of responsibility reduction, prosecutors filed a motion seeking an “upward departure or variance” from the sentence actually recommended by the PSI.


The Government reneged on its deal.


Hunter countered with a motion seeking a “downward variance” based on the “physical and mental harm” he suffered during the arrest.


The trial court conducted a sentencing hearing at which Hunter argued the Government had breached the plea agreement.


The Government again failed to honor its agreement. Its reasoning? That prosecutors were not bound by the agreement to seek a reduction for acceptance of responsibility if the court concluded that Hunter had “obstructed justice” by “committing perjury” at the suppression hearing.


To say that Hunter’s counsel was upset would be that proverbial understatement.


Defense Counsel Seeks Specific Performance


Counsel sought “specific performance” of the guilty plea contract and asked that the case be assigned to another judge—both reasonable requests given the circumstances.


While the trial court stopped short of finding an actual breach of the agreement, the judge did express a concern that “the Government seems to give with one hand and take back with the other, because a defendant … would believe if he signed this agreement that he was going to get the acceptance of responsibility.”


And the waters got even murkier.


The trial court decided to give Hunter the acceptance of responsibility reduction to “solve this” problem because, as the court stated, “the decision to plead guilty is an important decision.”


Court Agrees, Prosecutors Continue to Argue for Upward Departure


Given the trial court’s reasoning, the Government conceded that Hunter was “probably” entitled to a three-level reduction but prosecutors continued to argue for their “upward departure or variance.”


The trial court “recalculated” the PSI’s recommended sentence, finding a new “guidelines range” of 18 to 24 months.


Hunter by any measure of reason should have received a sentence within that range.


Instead, the trial court imposed a 60-month term of imprisonment based on the Government’s request for an upward departure or variance because of Hunter’s alleged obstruction of justice.


This was a rotten situation all the way round. Not only did the Government breach its stipulation to the acceptance of responsibility reduction but moved for an offense level increase based on the court’s earlier observation at the suppression hearing that Hunter’s testimony was less than credible.


Fortunately, the Eleventh Circuit Court of Appeals was not persuaded by the Government’s conduct in this case. The appeals court noted that prosecutors offered the deal “after” they heard the trial court’s reservations about Hunter’s less than credible suppression hearing testimony.  In other words, prosecutors knew, or certainly should have known, that Hunter’s less than credible suppression hearing testimony constituted “obstruction of justice” before it offered the plea deal with the specific stipulation of recommending a reduction for acceptance of responsibility.


Court of Appeals Finds Government Breached Plea Agreement, Vacates Sentence


On August 26, 2016, the appeals court found that the Government’s “conduct constitute[ed] a breach of the agreement entered into by the parties.” The court vacated Hunter’s 60-month sentence and remanded for re-sentencing.


Valuable time and judicial resources were wasted because of the Government’s highly questionable ethical conduct in this case. There should be more accountability for this sort of prosecutorial misconduct than a mere re-sentencing order.







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