Friday, July 29, 2016

Top 10 from Texas Bar Today: Staredowns, Expectations, and Agreements

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. EPA Raises Statutory Civil Monetary Penalty AmountsDaphne W. Trotter of McDermott Will & Emery @McDermottLaw

9. Pre-Claim Review by CMS and its contractors is intended to change the face of Home HealthMark Kennedy of Kennedy Attorneys & Counselors at Law @Health_Law_Firm in Dallas

8. The Panama Canal Expansion is Open for BusinessMorrow & Sheppard LLP @MorrowSheppard in Houston

7. Five Common Errors in Drafting Texas Non-Compete AgreementsPaul Romano @Paul_A_Romano of Romano & Sumner in Sugar Land

6. Unencrypted PHI on iPhone leads to $650,000 HIPAA penaltyPeter Vogel @PeterSVogel of Gardere Wynne Sewell LLP in Dallas

5. Insurance StaredownDavid Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas

4. Legal Expectations: What Attorneys Want from ParalegalsBob Kraft @BobKraft of Kraft & Associates in Dallas

3. The Bar Exam is Over, Now WhatProfessor Amy Jarmon, Assistant Dean for Academic Success Programs at Texas Tech University School of Law @TTU_Law in Lubbock

2. Massage Envy No MoreJoseph Y. Ahmad @CSuiteLegal of Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. in Houston

1. Baseball, Apple Pie, and High Speed Police EscortsJoAnne Musick of Musick & Musick LLP @MusickLegal in Houston

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Texas: Filing criminal complaint did not substantially invoke the judical process causing a waiver of an arbitration agreement

Originally published by Gene Roberts.

In Cash Biz, LP v. Henry, the San Antonio Court of Appeals held that a party who filed a criminal complaint against another did not substantially invoke the judicial process, otherwise acting as a waiver of an agreement to arbitrate. In this case, a payday lender entered into a credit service agreement that contained a “waiver of jury trial and arbitration provision” with its borrowers. When the borrowers’ checks were declined for insufficient funds, Cash Biz contacted the local district attorney’s office for the issuance of “bad checks and check fraud.” Criminal charges were filed against the borrowers and those charges were eventually dismissed. Several of the borrowers were arrested and detained prior to the dismissal of the criminal charges.
The borrowers filed a class action suit alleging violations of the Texas Finance Code and the DTPA, amongst others. Cash Biz moved to compel arbitration under the loan contracts, which was denied by the trial court. In part, the trial court concluded …

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Five Common Errors in Drafting Texas Non-Compete Agreements

Originally published by Paul Romano.

As is the case in most states, Texas law generally disfavors restrictions on employee mobility. As an “at will” employment state, Texas employment law ordinarily allows an employer or an employee to terminate the employment relationship at any time, for any reason, and without any penalty or restriction. Is it fair, however, for an employee to leave the employment and take with him or her vital information that can be used by a competitor?

Texas tries to balance the interests of the employer and the employee, allowing non-compete agreements under the provisions of Texas Business and Commerce Code § 15.50. All too often, however, the non-compete agreement is improperly drafted, making it difficult or impossible to enforce. Here are five common errors made in drafting Texas non-compete agreements.

Error 1: Inadequate “Consideration”

Under the statute, the consideration given by the employer must (1) give rise to the employer’s interest in restraining the employee from competing, and (2) the covenant must be designed to enforce the employee’s return promise. The clearest type of consideration that satisfies this requirement is an employer’s promise to give the employee confidential information or trade secrets in exchange for the employee’s promise not to disclose such information. Thus, if the employer requires its maintenance folks to sign a non-compete, but never shares any confidential information with them, a court will likely say the employer has no interest to protect and will not enforce the agreement.

Error 2: Non-Compete Limitation is Unreasonable as to Time

A court will not enforce a non-compete agreement if the time limitation contained in the agreement is too long. How long is too long? It generally depends upon a number of factors. What may be reasonable in some industries or trades may be unreasonable in others. This is an area in which the advice of experienced legal counsel can be invaluable.

Error 3: The Agreement is Unreasonable as to Geography

As with time limits, the geographical limits must be reasonable. If the agreement restricts the employee to an area larger than the current area being served by the employer, a court will likely refuse to enforce it. Here again, “reasonable” can vary from industry to industry.

Error 4: Non-Compete Agreement is Too Broad in Scope of Limitation

This error often arises from the use of downloaded “form agreements.” A non-compete, particularly one that is executed in Texas, is never a one-size-fits-all scenario. Forms, by their nature, attempt to cover a topic broadly. In doing so, the agreement can be so expansive that it offends the sensibilities of the court that is being asked to enforce it. Remember: The United States outlawed indentured servitude 150 years ago. Texas courts do not favor paper shackles any more than iron ones.

Error 5: Failure to Include Other Important Matters, Such as Assignability of the Agreement

All too often, the employer is so focused on the issue of tying up the employee that it forgets that there are other important considerations to be handled as well. For example, if there is even a remote possibility that the business might be sold or merged with another, the non-compete agreement needs to contain a provision allowing the agreement to be assigned. Otherwise, the employee may not be obligated to the new owner at all.

Experienced Legal Counsel is Key to Enforceable Non-Compete Agreements

Does your business need one or more non-compete agreements to help protect your interests? Are you concerned that key employees might take proprietary information with them when they leave? Do you have other related concerns? The attorneys at Romano & Sumner have more than 20 years of combined experience providing expert legal assistance to clients. We represent clients in all types of transactions and we have extensive experience in litigation. We pride ourselves not only for our professionalism, but also for 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.

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Pre-Claim Review by CMS and its contractors is intended to change the face of Home Health

Originally published by kennedyhealthlaw.

CMS has announced changes to its claim processing for Illinois, Florida, Texas, Michigan and Massachusetts.  The Demonstration is called Pre-Claim Review.  It will change your world.  Pre-Claim Review (PCR) is scheduled to begin in Texas on or around December 1, 2016.  It is slated to last 3 years.

The Texas Association for Home Health and Hospice has called for its members (and anyone else who will) to call your congress person and insist that he/she stop the pre-claim review process because it will slow or cease home health patient access to care.

For those of you who have been subject to the recent ADR project, this is the ADR project on a long term extended release steroid.

CMS cites the increase in home health billing errors from the 17% percent in 2014 go over 51% in 2015.  Pre-Claim Review is not prior authorization, nor is it ADR or prepayment review.  The review of the paperwork comes before the HHA can submit the final claim and receive payment, and the review can come anytime after the client has been placed on service, even after the end of the episode.  Therefore, like an ADR for a final claim, you will have provided the services prior to getting approval for the submission of the final claim.  It is more a prior authorization for billing.  The permission given by CMS is to allow the HHA to submit its final claim.  Therefore it is not a pre-payment review, but a pre-submission review for permission to submit the final claim.  The claims will be paid as usual, but you can’t submit the final claim without the approval.

While the documentation requirements are not being changed for home health, you should be aware from your experience with the ADR project that claims are being denied for not having the appropriate paperwork anyway.  Home Health has always been highly regulated, and will now  be highly technical regarding the paperwork you must present.

If your agency submits paperwork that is not approved, your agency will have a couple of options, either correct and resubmit the paperwork (up to an unlimited number of times), or appeal the denial and go through the administrative process of Medicare.  Those of you who have been through the Medicare appeals process know how very long that can take.

CMS maintains that the no beneficiary will have his or her access to home health restricted in any way.  I expect that is correct at first.  If CMS and its contractors stall out of the gates as sometimes occurs when demonstration projects are kicked off, if provider’s submission permission for final claims are delayed very long (remember, this is not a delay in payment, but a permission vehicle for the HHA to submit its final claim) beneficiaries may have to change providers often, even though their access to care is not restricted.

There is still time for getting your agency shaped up prior to the beginning of the demonstration.

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Only One-Third of US Hospitals Follow CDC Guidance to Curb Antibiotic Overuse

Originally published by Robert Kraft.

Paying Your Dues What to Do When You Can't Afford to Pay Your Medical Bills

Modern Healthcare reports an analysis published last week in the journal Clinical Infectious Diseases found only 39 percent of 4,100 US acute care hospitals studied “had an antibiotics stewardship program that met all seven of the core elements recommended by the” CDC. The CDC says “hospitals should dedicate appropriate resources, appoint a single leader to run a program, and appoint a pharmacy leader who can focus on improving antibiotic use,” among other recommendations. On Wednesday, the National Quality Forum released a “Practical Playbook” that used the study’s results to provide guidance to hospitals on creating or improving their antibiotics stewardship program.

From the news release of the American Association for Justice.

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Thursday, July 28, 2016

Massage Envy No More

Originally published by » Blog.

Houston Chronicle business columnist Chris Tomlinson recently interviewed me about how a woman’s search for a better job landed her in serious legal trouble. The unfortunate story involves Maxie Foster, who worked for years as a receptionist to pay her … Continue reading →

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License to Carry a Handgun After Arrest or Criminal Charge in Texas

Originally published by Brandon Barnett.

There are many consequences for persons arrested and charged with a crime in Texas.  One of the often overlooked considerations is whether and to what extent a criminal accusation impacts one’s authorization…

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Rule Amendments in Title 40, Texas Administrative Code (TAC), Chapter 19

Originally published by Jerri Lynn Ward, J.D..

Rule Amendments in Title 40, Texas Administrative Code (TAC), Chapter 19

Nursing Facility Requirements for Licensure and Medicaid Certification; and Chapter 92, Licensing Standards for Assisted Living Facilities


The Texas Department of Aging and Disability Services (DADS) has added new rules and amended existing rules in 40 TAC Chapters 19 and 92 regarding procedures that require a facility to request guardianship orders for a resident, and to disclose whether a facility is certified to provide services and treatment to Alzheimer’s residents. The new rules become effective on July 21, 2016; however, surveyors will begin enforcing rules for Chapters 19 and 92 as of September 1, 2016.

New rules at §19.1936 and §92.42 requires a NF or an ALF to request a copy of a court order appointing a guardian and the letters of guardianship for the resident or a resident’s estate from a resident’s nearest relative or person responsible for the resident’s support upon admission or when the facility becomes aware a guardian is appointed. The new rules indicate the number of follow-up attempts that are to be made when documents are not received and when to request updated guardianship documentation. DADS also amended §19.1911 and §92.41 to require a NF and an ALF to maintain a copy of the court order and letters of guardianship in the clinical records or resident’s records, as appropriate. These new rules and amendments implement Texas Health and Safety Code (HSC) §242.019 and §247.070, as added by House Bill (H.B.) 1337 of the 84th Legislature, Regular Session, 2015.

DADS amended §19.204 and §92.53 to require a NF and an ALF to include in the Alzheimer’s disclosure statement whether the facility is certified under HSC §242.040 or §247.029 to provide specialized services and treatment to residents with Alzheimer’s disease. DADS will revise forms as appropriate. DADS amended §19.1921 to clarify which NF residents must receive an Alzheimer’s disclosure statement and to establish a 30-day time frame for the NF to notify a resident before updating the disclosure statement. These amendments implement changes to HSC §242.202 and §247.026, as added by H.B. 2588 of the 84th Legislature, Regular Session, 2015.

Finally, DADS amended §19.101 and §92.2 to include a definition of “Alzheimer’s disease and related disorders” in the NF and ALF rules. These amendments implement changes to HSC §242.040 and §247.029, as added by H.B. 2588.


Visit us at Garlo Ward, PC.

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Ongoing Litigation Raises Questions About Safety of Talcum Powder

Originally published by Robert Kraft.


The New York Times reports ongoing litigation against makers of talcum powder have renewed interest in the ongoing debate about whether or not talcum powder causes cancer. The article details the conflicting research and opinions on the matter of whether using talcum powder can increase a woman’s risk of developing ovarian or cervical cancer. The article notes that the Cancer Prevention Coalition petitioned the FDA in 1994 and 2008 to add warning labels to talcum powder advising women that the product could increase their risk of developing cancer.

From the news release of the American Association for Justice.

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Opinions, July 28, 2016: Reimbursement & Owelty Liens

Originally published by maknox.

The First District Court of Appeals released its memorandum opinion in Cox v. Cox, No. 01-15-00063-CV, affirming the trial court’s division and decree.

Patricia and Cara married in 2010. During the marriage, they lived in a house purchased by Patrick before the marriage. Cara alleged at trial that during the marriage, about $255,000 of community funds was spent on the house mortgage. In 2013, Cara filed for divorce. During the divorce proceedings, Patrick had a number of lawyers and partially represented himself. Due to discovery issues, Patrick was limited in the evidence he could present at trial. He did not provide an inventory per local rules and as a result, the trial court sanctioned him by precluding him from introducing evidence controverting Cara’s testimony.

The only witnesses during the one-day bench trial were Cara, Patrick, and their attorneys on attorneys’ fees. In the decree, the trial court awarded Cara a judgment of $135,000 as reimbursement to be secured by an owelty lien on the house (which was confirmed as Patrick’s separate property).

On appeal Patrick asserted five issues, all challenging the division and all overruled.

In his first issue, Patrick challenged the trial court’s exclusion of his inventory. The Court of Appeals reviewed Harris County’s local rule which requires the exchange of what we call “ten day docs” to be exchanged ten days before trial: inventory, FIS, etc. Patrick argued that the inventory was attached to a motion for partial summary judgment and should not have been excluded. The Court of Appeals found the inventory was not sworn and did not comply with local rules and therefore the trial court did not err in excluding it.

In his second issue, Patrick alleged the trial court erred in its ruling on other pretrial motions because the trial court was, according to Patrick, biased against him. Unfortunately, he evidently did not preserve the errors and the issues were not adequately briefed.

In his third issue, Patrick also challenged the $135,000 reimbursement judgment, arguing the evidence was not sufficient to support it. The Court of Appeals found there was evidence in the record to support the finding that the community estate spent at least $270,000 on the house.

In his fourth issue, Patrick challenged the owelty lien, arguing it violated his rights under the Texas Constitution. This argument is somewhat undermined by the fact that the Texas Constitution specifically provides that an owelty lien resulting from a divorce division may be placed on a homestead.

Finally, in his fifth issue, Patrick argued the trial court erred by failing to award him a judgment and owelty of partition in Cara’s separate property, but he failed to provide any legal argument or citation to any authority supporting his argument and the issue was waived.


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Unencrypted PHI on iPhone leads to $650,000 HIPAA penalty

Originally published by Peter S. Vogel.

The HIPAA violation in violation of a Business Associate Agreement (BAA)  resulted from extensive PHI on an iPhone which “included social security numbers, information regarding diagnosis and treatment, medical procedures, names of family members and legal guardians, and medication information” according to a recent report from the Office for Civil Rights (OCR) of U.S. Department of Health and Human Services.  The settlement fine of $650,000 included a remediation plan for the Business Associate Catholic Health Care Services of the Archdiocese of Philadelphia (CHCS) who under BAAs “provided management and information technology services as a business associate to six skilled nursing facilities.”  The report including this surprising information:

At the time of the incident, CHCS had no policies addressing the removal of mobile devices containing PHI from its facility or what to do in the event of a security incident; OCR also determined that CHCS had no risk analysis or risk management plan.

In determining the resolution amount, OCR considered that CHCS provides unique and much-needed services in the Philadelphia region to the elderly, developmentally disabled individuals, young adults aging out of foster care, and individuals living with HIV/AIDS.

This report should be a wake call to all Covered Entities and Business Associates covered by HIPAA.

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Baseball, Apple Pie, and High Speed Police Escorts

Originally published by JoAnne M. Musick.

Late for Work? Call a Trooper and Get to Work on Time

You’ve seen police escorts many times. Sometimes it’s a wide load. Other times maybe a caravan of equipment. Maybe even a funeral procession. We’ve come to expect them from time to time on Texas roadways. But did you know you could hire one when you’re late for work?

police-lightsThe Texas Rangers called upon a Texas state trooper to meet Joey Gallo and escort him into Arlington.

Gallo was sleeping and missed a couple calls from his manager. Apparently another employee was sick or something and Gallo was needed to cover a shift. Once awaken, he didn’t have much time to get there and, well, Texas is a big state. Gallo would have to drive from Round Rock, Texas, where he had just returned from some other business trip, to Arlington. Oh, and he was traveling by car. Round Rock to Arlington, according to MapQuest, is an approximate 181 miles and takes about 2 hours, 55 minutes on a good day with no additional traffic.

But you see, a normal drive wasn’t going to work. You know, traffic and all. So the Rangers, the baseball team not to be confused with the investigative unit of the Department of Public Safety, hired a trooper to escort him into Arlington. Flashing lights and all, the trooper cleared the way and made the last hour of the drive a bit faster.

“I probably shouldn’t say how fast I was going,” Gallo said. “It might have been a little dangerous. But they told me I was in the starting lineup. I had to get there. Having the police escort was pretty cool.”

So maybe next time you need to get to work in a hurry, you too should call a trooper. On the other hand, maybe Texas just loves baseball. In either event, Gallo did get there in time to warm up and even homer against Oakland in the fifth.

It was more than just a home run. It left the bat at 110 mph and traveled 448 feet into the seats just above the visitors bullpen in left field. It was the longest opposite field homer in Arlington by a Rangers lefty this season.

100 mph sounds pretty fast, but it may not have even been his top speed for the day. Imagine the speeds at which you might travel with a police escort clearing the way! After all, posted speed limits are just presumptions. Texas follows a reasonable and prudent test for maximum speeds.* Needing that home run was apparently both reasonable and prudent under the circumstances.

And there you have it folks: baseball, apple pie, and police escorts. Good for America and great for you when you’re running late to work.


*Texas Transportation Code Sec. 545.351. MAXIMUM SPEED REQUIREMENT. (a) An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing.

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Are estate planning legal fees tax deductible?

Originally published by Michael Cohen.

tax deductibleAlthough this author is not an accountant (and one should discuss his or her own individual tax situation with his or her personal accountant), I am often asked if estate planning fees are tax deductible. The answer is sometimes it is, and sometimes it is not.

Section 262 of the Internal Revenue Code (IRC) disallows deductions for personal, living, or family expenses, but IRC Sections 162 and 212 allow deductions for expenses that are business and investment related. Estate planning legal expenses might be able to be deducted under IRC Section 162 if they are connected with a trade or business, or such expenses can be deducted under IRC Section 212 if connected with determination of any tax.

However, trade or business expenses incurred under IRC Section 162 by employees and expenses deductible under IRC Section 212 are subject to limitations based on the adjusted gross income (AGI) of the taxpayer and are only deductible as miscellaneous itemized deductions to the extent it exceeds 2% of AGI.

Fees associated with tax planning advice (i.e., minimizing estate or income taxes), tax return preparations, and resolution of tax return audits could be a deduction under IRC Section 212. Thus, estate planning legal expenses or fees could be a tax deduction, but it would be only deductible to the extent it is allocable to tax planning. Furthermore, since many taxpayers do not itemize and since miscellaneous itemized deductions often do not exceed 2% of AGI, many taxpayers will receive no benefit from these deductions. Furthermore, IRC Section 68 phases out itemized deductions for taxpayers with higher incomes (joint returns with AGI above $309,900 and single filers with AGI over $258,250). Total itemized deductions are reduced by 3% by which the AGI exceeds these thresholds.

In conclusion, the determination if estate planning legal fees is tax deductible or not and to what extent should be determined on a case-by-case basis.

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Four Automakers Found to Be Selling Cars with Potentially Defective Inflators

Originally published by By Benny Agosto.

Some Fiat Chrysler, Mitsubishi, Toyota, and Volkswagen vehicles from the 2016 and 2017 model years being sold are equipped with Takata airbag inflators, despite the devices being potentially defective and likely to be recalled within a few years, according to a Senate report. Takata has already agreed to recall about 69 million airbag inflators in the U.S. by the end of 2019, but these automakers can legally sell their newer model vehicles as they are not yet covered by the recall.

The vehicles are equipped with a type of inflator that is prone to rupture due to containing ammonium nitrate, which can deteriorate over time when exposed to moisture and high temperatures.

Mitsubishi and Volkswagen identified their new models that have Takata inflators without a chemical drying agent, but Toyota and Fiat Chrysler did not specify any. To date, at least 11 people have been killed worldwide by Takata’s inflators, with two other deaths in Malaysia currently under investigation.

Benny Agosto, Jr. is a partner at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend in Houston, Texas. For over 60 years, Abraham Watkins has successfully represented injured people and families who fall victim to catastrophes. Our attorneys have the knowledge, experience and resources necessary to obtain just compensation their clients. For more information, please contact the office of Benny Agosto, Jr. at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, by letter at 800 Commerce Street, Houston, Texas 77002, or by phone at (713) 222-7211.

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FDA Re-Labels Transvaginal Mesh a High-Risk Medical Device

Originally published by robertslawfirm.

The U.S. Food and Drug Administration has reclassified transvaginal mesh as a high-risk medical device and ordered manufacturers to address safety concerns by submitting new applications that demonstrate their products are safe and effective. These new requirements apply only to mesh products used to repair pelvic organ prolapse (POP) in women, according to the FDA announcement. Surgery for POP, which occurs when pelvic muscles become weakened, stretched or torn and can no longer support pelvic organs, is often performed using a minimally invasive transvaginal technique where mesh inserts are implanted to reinforce the pelvic muscles. Over the past decade, the FDA has received thousands of complaints about complications from the mesh inserts, including pelvic pain, bleeding, organ damage, infection and urinary problems. The FDA Orders To address these concerns, the FDA has reclassified transvaginal mesh for POP repair from class II (moderate-risk) to class III (high-risk) medical devices. In addition, the FDA has ordered manufacturers to submit a premarket approval (PMA) application to support claims of safety and effectiveness of mesh for POP repair. Manufacturers with products already on the market for POP repair have 30 months to submit a PMA. Manufacturers of new devices must submit a PMA before the FDA will approve a POP repair mesh product for marketing. Prior FDA Warnings The FDA provided fast-track approval for transvaginal mesh products because they were believed to be similar to mesh products long used in hernia surgeries. The agency later issued warnings in 2008 and 2011 to doctors and […]

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Letter Briefing – sources for more information on the practice

Originally published by Michael C. Smith.

Patent01.pdfSince the abolition of letter briefing in patent cases last week I have had a number of people ask for more information on the subject – where did it come from, how does it work, etc.?

Readers looking for information on the procedure should look first at the Patent Case Management Judicial Guide put out by the Federal Judicial Center in 2009.  It identifies as the “Recommended Approach” for streamlining the summary judgment process in patent cases “letter briefs followed by summary judgment motions,” with another option being limiting the number of motions or number of pages of summary judgment briefing.  Pages 6-9 and 6-10 of the Guide set forth the pros and cons of the different approaches.

Another data point is provided by the language in Judge Gilstrap’s orders in pending cases this week in which he provides a brief explanation for the deletion, writing that “[a]fter carefully considering any gains in efficiency over the added steps needed to carry out [letter briefing], the Court has now determined that the Federal Rules of Civil Procedure and the Local Rules of this Court adequately streamline this process, and the Court elects to discontinue its prior letter briefing policy for summary judgment motions.”

Note that the EDTX local rules have included page limits for I think 12-14 years or so, and I would also note that some courts in the Eastern District have also used limits on numbers of motions as well. My experience with that “one motion absent leave” rule in patent cases is limited – but in my experience under that rule every SJ motion we filed ended up being granted.  For whatever that is worth.

Obviously different courts find different practices to work better for them, and as I posted last week, it’s not uncommon for those practices to change over time.  Since my practice has apparently seen the last of letter briefing for now I’ll leave the opining on the relative pros and cons of the practice to others.

I hope readers find this useful.

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The Bar Exam is Over, Now What

Originally published by lawschool academicsupport.

For the past few years, your focus has been on finishing law school, walking across the stage at commencement, and taking then passing the bar exam. Well, you have finished law school, you may have walked across the stage at…

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The Panama Canal Expansion is Open for Business

Originally published by Morrow Sheppard.

After nearly 10 years of construction and delays, the Panama Canal expansion finally opened for business on June 26, 2016. While the expansion is expected to bring the Panama Canal Authority (known by its Spanish acronym, “ACP”) an additional estimated $2.1 billion in annual revenue by 2021, the ACP is far from the only entity expecting to rake in the profits as a result of the long-awaited opening. Ports throughout the southeastern United States and along the East Coast have also been spending billions to upgrade their facilities so that they can receive the larger ships – nearly three times the size that could previously fit through the canal – that will soon be calling thanks to the expansion. As we recently discussed, companies across numerous industries are expected to benefit from the opening of the expanded Panama Canal, and major retailers like Walmart and Ikea are already unrolling plans to transport significantly more cargo through the Port of Houston. This means new job opportunities; but, unfortunately, it could very well mean new safety risks as well. Private Investigation Firm Warns of Safety Risks with the Panama Canal Expansion For example, as reported in Port Technology, the private investigation firm PGI Intelligence has already warned of numerous potential dangers associated with the design and construction of the Panama Canal expansion. Some of these risks include: The new locks may already be too small. The larger (so-called “neo-Panamax”) ships that will be using the new locks are just six meters thinner […]

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Court Rejects FERC’s Attempt to Limit Defendant’s Rights

Originally published by Energy Legal Blog ®.

On July 21, 2016, the U.S. District Court for the District of Massachusetts issued an order finding that Maxim Power Corp.

Michael Brooks, Bob Pease, Stephen Hug, Josh Freda

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New Hurst Ordinance Bans Texting While Driving

Originally published by Anderson Law Firm's Injury Blog.

A new law recently approved by the City of Hurst’s City Council now makes it illegal for people to text while driving. The law is not just limited to smartphone usage: gaming devices and tablets are also prohibited.

An increase in public awareness has led city officials to enact measures to ensure public safety following numerous accidents caused by phone-related crashes. The Center for Disease Control (CDC), for example, found that the year 2013 held 3,154 deaths and 424,000 injured people from accidents involving distracted drivers in the United States.  In Texas alone, the Texas Department of Transportation (TxDOT) reported 200 accidents per year since 2013 that were caused by distracted drivers.

(Hit by a distracted driver? Read our overview on your rights in Texas here).

The law, which stems from concerns over road safety in Texas and failed attempts of statewide legislation banning phone usage while driving, will come into full effect in three months. During this three-month period, drivers will be not be fined if they are found on their mobile devices. After this three-month grace period, drivers can be fined up to $500.

So what if you’re the victim of a texting and driving accident? You’ll want to start by making a claim against the driver who hit you. They caused the accident, so they should pay for your damages and injuries. If you’ve never made an accident claim or aren’t sure where to get started, read my free, helpful guide, How to Make a Successful Car Accident Injury Claim in Texas.

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Wednesday, July 27, 2016

Timely Notices of Appeal and ECF Filing Requirements

Originally published by David Coale.

cloekThe ECF records for the Western District of Texas showed that the appellant in Sudduth v. Texas Health & Human Services Commission filed her notice of appeal on August 31 — one day late. Following Franklin v. McHugh, 804 F.3d 627 (2d Cir. 2015), the Fifth Circuit found the ECF notices dispositive and dismissed for lack of jurisdiction. The Court observed that the Western District local rules and Fed. R. App. P. 4(a)(5) allow a party to seek relief from the district court in the event of technical problems with the ECF filing, which the appellant did not do here. Finally, “Sudduth argues that she was not made aware of any jurisdictional defect until this court requested briefing on this issue and that, at the very least, Franklin should not be retroactively applied to her case because it is new law. But, as previously discussed, the local rules and procedures here were sufficiently clear as to the requirements for timely filing, and the onus is on Sudduth, not the court, to be aware of and cure any deficiencies in the notice of appeal.” No. 15-50764 (July 18, 2016).

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Federal Judge Tosses Stingray, Cell Phone Tracking, Evidence Out of Court

Originally published by John Floyd.

Police love them. They are called Stingrays—surveillance devices that can deceive a criminal suspect’s cell phone into revealing its location.


The ACLU has combined a list of 66 law enforcement agencies in 24 states and the District of Columbia that possess stingray devices.


Stingrays Trick Cells Phones into Revealing Location


According to a recent Reuters report, Stingrays, also known as “cell site simulators,” can mimic cell phone towers “in order to force cell phones in the area to transmit ‘pings’ back to the devices, enabling law enforcement to track a suspect’s phone and pinpoint its location.”


Use of Stingray Without Warrant Violates 4th Amendment


Thus far, two courts—one state, one federal—have suppressed evidence obtained by law enforcement’s use of the device. This past March a Maryland appellate court was the first court to rule that Stingray evidence had to be suppressed. More recently, a U.S. District Court judge in Manhattan ruled that the DEA’s use of a Stingray without a warrant to locate a drug suspect’s apartment violated the defendant’s Fourth Amendment rights.


Privacy advocacy groups, like the ACLU, have been highly critical of law enforcement’s use of these devices.


Constitutional Rights to Privacy Challenged in Digital Age


Speaking about U.S. District Judge William Pauley’s recent decision, ACLU attorney Nathan Freed Wessler said in a statement that “this opinion strongly reinforces the strength of our constitutional privacy rights in the digital age.”


The decision, we’re sure, did not sit well with FBI Director James Comey who routinely boasts about his agency’s integrity, when, in reality, it is an agency that has very little respect for constitutional privacy rights of American citizens. Comey inherited, and has embraced, the longstanding practice of his agency secretly snooping around into the private lives of law-abiding citizens in this country.


In October 2014, Comey defended the use of Stingray technology, but only after the Charlotte Observer published a video as part of the newspaper’s investigation into the use of Stingrays by local police.


Scaring People into Submission


“It’s how we find killers, it’s how we find kidnappers, it’s how we find drug dealers, it’s how we find missing children, it’s how we find pedophiles,” Comey told media outlets in Charlotte in 2014. “It’s work you want us to be able to do.”


Comey conveniently failed to mention that law enforcement agencies also use the devices in secret and without court approval in violation of the rights of criminal suspects, as well as law-abiding citizens, guaranteed to all people under the U.S. Constitution.


Stingrays Used in Texas


The ACLU has compiled a list of states that use Stingray devices. Although law enforcement agencies shroud the use of cell site simulators in secrecy, the ACLU reports that local and state police in Texas use the surveillance tracking devices. At the federal level, besides the FBI, the following law enforcement agencies use Stingray devices: DEA, Secret Service, ICE, ATF, Marshals Service, and the IRS. Scarier still is the fact that the following military branches use the devices:  U.S. Army, Marine Corps, Navy, and Coast Guard. Two intelligence-gathering agencies, NSA and U.S. Special Operations Command.


Fortunately, Judge Pauley ruled that law enforcement agencies, like the FBI and DEA, cannot use Stingrays without court approval; in other words, they must have a properly issued search warrant signed by a federal judge or magistrate.


Legislators Concerned Over Use of Cell Site Simulators


There is now increasing congressional concern about the use of cell site simulators. Democrats and Republicans alike have recently introduced legislation, such as F.A.I.R. (Fourth Amendment Integrity Restoration) Surveillance Act and the Stingray Privacy Act designed to reign in the secret, unbridled use of these surveillance devices by law enforcement agencies.


At least twelve states have similarly passed legislation designed to control the use of cell site simulators.


Attorney Wessler said that while it’s “hard to predict when Congress may able to get legislation moving, it certainly helps to have a respected federal judge explaining that the Fourth Amendment requires more oversight and more protections for people, and I think that could be a motivator for legislators.”


We find it unfortunate that our nation’s law enforcement agencies seem to intentionally stay one step ahead of the law, as well as, the constitutional demands set out in the Forth Amendment.


Law Enforcement Secretive About Technologies


Wessler explains the root of the technology/law enforcement problem:


“The challenge for a long time was the lack of information. There has been such an extraordinary and extreme level of secrecy around these technologies that legislators just had no idea that this was even in existence, much less that police in their state were using it frequently. As information has become more public, we’ve actually seen that legislation imposing reasonable controls, like a warrant requirement, has deep bipartisan support.”


FBI “Extremely Careless” in Disregard or Privacy Rights of Americans


FBI Director Comey recently told a congressional committee that State Department employees had been “extremely careless” in their handling of classified information. We think that Director Comey, and a host of other law enforcement agencies, have been “extremely careless” in their total disregard for the privacy rights of American citizens with the unconstitutional use of cell site simulators.



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Houston Municipal Courts warns of text message scam

Originally published by Jillian Beck.

MCD_logo_wTagLineThe city of Houston Municipal Courts is warning residents of a scam using text messages to solicit court fees.

Companies are reportedly sending text messages to individuals prompting them to click a link to reset their court cases for a $10 fee, according to a press release and an announcement on the Houston Municipal Courts website.

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Déjà Vu: Instagram and Pinterest Artists from Around the World are Launching Copyright Infringement Claims

Originally published by » Blog.

Customers are threatening to boycott Spain-based, fast-fashion giant, Zara, after independent artists from around the world launched copyright infringement claims against the company. Artists from […]

The post Déjà Vu: Instagram and Pinterest Artists from Around the World are Launching Copyright Infringement Claims Against the Fast-Fashion Giant, Zara appeared first on Klemchuk LLP.

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Make Sure to Follow The Local Rules Or Risk Having Your Motion Denied

Originally published by Steven Callahan.

I recently came across an interesting Order from Senior Judge Sam Cummings in Medshare Technologies, Inc. v. Commonwealth Capital Corp. (available here). Defendants filed a Motion to Strike, for More Definite Statement, and Motion to Dismiss for Failure to State a Claim. Seven days later, the Court denied the motion because it lacked a certificate of conference and an appendix. This is a good example showing the importance of being familiar with the Court’s Local Rules.

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Judge Denies Janssen’s Plea to Overturn $70M Verdict

Originally published by Arnold & Itkin.

Our attorneys recently won a $70 million verdict against Johnson &
Johnson subsidiary Janssen Pharmaceuticals over damages caused by the
drug Risperdal, an infamous antipsychotic. The
$70 million verdict was the largest verdict to date. After Arnold & Itkin won the historic victory against Janssen, the
drug maker immediately filed post-trial motions in order to overturn the decision.

When we heard about the post-trial motions, Attorney Jason Itkin was not
worried about their success. He commented that: “We believe that
the issues Johnson & Johnson complains about amount to sour grapes.
We had a very smart, attentive jury. The jury considered the evidence
and reached their verdict. I doubt such a motion would be filed by the
drug company if they had achieved a better result.”

As it turns out, we were right to dismiss Janssen’s efforts.

Judge Paula Patrick, the judge who oversaw our case, issued an order denying
Janssen’s motions asking for a new trial or a new judgement. We
at Arnold & Itkin are pleased that the Judge upheld the jury’s
decision and that the decision brings our client one step closer to achieving
justice in this case.

At Arnold & Itkin, we understand the significance of our case in light
of the thousands of cases currently awaiting trial. We hope our case result
will help encourage other plaintiffs to continue to fight for justice.

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Tuesday, July 26, 2016

Insurance Staredown

Originally published by David Coale.

staredownExtensive tornado damage to a building at the University of Southern Mississippi led to a hard-fought dispute among insurers. The Fifth Circuit’s detailed affirmance of the district court’s opinion turned on this observation about the losing insurer’s postition: “Were this construction adopted, insurers who covered the same risk would be incentivized to enter into a stare-down, each waiting for the other to blink first in order to seize the opportunity to deny coverage. Such an outcome is neither reasonable nor commercially practicable.” Southern Ins. Co. v. Affiliated FM Ins. Co., No. 15060742 (July 21, 2016). (The opinion also features a rare appellate shout-out to T.S. Eliot’s The Hollow Men.)

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Kidnapping Definition | Lindbergh Law | Felony Charges

Originally published by Cody L. Cofer.

What is Kidnapping?

Kidnapping is a serious criminal offense usually defined as the unlawful abduction of another person to achieve an objective or reward. The laws on kidnapping differ depending on the jurisdiction, but most include that the confinement or abduction must be unlawful and it must be done with an underlying purpose. The purpose of the kidnapping does not necessarily have to be a crime; it can include earning a ransom, interfering with a governmental function, or even just trying to scare someone.

The word “kidnapping” dates back to the late 1600s when thieves would “nab” (the -nap part of kidnap) children from their families and send them to the newly founded American Colonies to be servants and laborers. The common law that developed around this crime originally only applied to the transportation of a person to a different country against their will, but the law evolved and expanded over time, focusing less on transport and more on the unlawful abduction to accomplish an objective.

Kidnapping is now codified by statute in each state. The state legislatures looked to different theories of law in creating the statutes, leading to significant legal variations from state to state. Kidnapping is also criminalized under federal law. The federal kidnapping statute allows federal law enforcement to pursue cases in enumerated situations that affect government interests. The reach of the federal law has grown in recent years following court decisions on the use of technology and the internet.

Federal Kidnapping: The Lindbergh Act

Kidnappings are frequently high-profile news events because of the nature of the crime. In a country that prides ourselves on freedom, the theft and confinement of another human being is a particularly heinous offense. The most notable example is the abduction and murder of the famous aviator Charles Lindbergh’s son in 1932. It captured the attention of the entire country for years and even prompted Congress to create the Federal Kidnapping Act, also known as the Lindbergh act. 18 U.S.C. §1201.

Under federal law, a kidnapping occurs when a person “unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person . . . .” 18 U.S.C. §1201(a). This intentionally broad definition includes virtually any unlawful restriction of liberty, through fraud or force, for the purpose of gaining some reward or objective. However, the kidnapping must also meet other limiting criteria stated by the Act to fall within federal jurisdiction.

What Makes Kidnapping a Federal Crime?

At its core, the federal statute requires that a kidnapping implicate a type of government interest. The law gives federal law enforcement agencies jurisdiction to pursue kidnapping investigations if the victim is taken across state lines, or if the person avails themselves of any service relating to interstate or foreign commerce to help with the crime.

If a kidnapped person is held more than 24-hours federal law creates a presumption that the victim was transported across state lines. 18 U.S.C. 1201(b). The presumption puts the burden of proof on an offender to provide convincing evidence showing victim was not transported across state lines. Otherwise, the court will automatically consider the kidnapping an interstate violation.

It is important to note that a person can be part of “interstate commerce” without ever crossing a single state line with the abducted party. U.S. v. Morgan, 748 F.3d 1024, 1033-34 (10th Cir. 2014). Specifically, the internet has been identified as an “instrumentality of interstate commerce.” Id. The court in Morgan also hypothesized that a GPS or cell phone might trigger the statute which means that potentially any kidnapping could be prosecuted federally if the perpetrator uses the internet to facilitate the crime in some way.

The statute also extends to kidnappings in the United States’ territorial waters or airspace, and when the person kidnapped is an employee of the United States government or an official from a foreign country.

Parental Abduction: Can You Kidnap Your Own Kid?

Although kidnapping now refers to anyone that is taken against their will, children in the United States are still frequently the victims of kidnapping, but for a different reason than the kids of the early Colonial days. Beyond the obvious reasons that children are more susceptible to kidnapping, they often get caught in the crossfire of divorces and custody disputes. However, the Federal Kidnapping Act specifically exempts parents from being penalized under federal law.

The reason for exempting parents comes from the idea that state governments are better positioned to manage their interests and the interests of their citizens. To that end, Congress enacted a parental kidnapping act that puts the burden of enforcing custody issues on state officials in most child custody cases. Therefore, you must look to the laws of the state where you reside to determine the penalties for state parental kidnapping laws.

On the other hand, a biological parent may not be exempted by the statute if they have had their rights terminated. In 1993 the kidnapping law was amended to define “parent” following a case where a woman kidnapped her two natural children from their home. U.S. v. Sheek, 990 F.2d 150 (10th Cir. 1993). The court found that “parent” as written in the statute included a biological parent even though she given up her rights to the children years before. Congress disagreed and immediately amended the statute to specifically exclude anyone that had their parental rights terminated by a final court order.

Penalties and Punishment for Federal Kidnapping Charges

Prior to the reform of capital punishment laws in the 1970s, kidnapping was a crime that could get you the death penalty in the United States. It is still a severely penalized offense, but it is no longer a capital offense unless a person dies or is killed. Most states classify it as a first or second degree felony depending on the existence of different aggravating circumstances. Examples of aggravating circumstances include use of a firearm, intent to commit a felony, or if the victim is under the age of 18.

The punishment for kidnapping committed under section 1201(a) in the United States Code is imprisonment for any term of years (determined by aggravating factors found in the Federal Sentencing Guidelines) or life in prison. There is a 20-year mandatory minimum sentence if the victim of a kidnapping is under 18 years old, and the offender is not a related adult or legal guardian. If the death of any person occurs during the kidnapping the punishment increases to life in prison or death.

The statute also penalizes conspiracy (agreement between two or more people to commit a crime) to kidnap harshly. Where a conspirator makes an overt step towards completion of the kidnapping, the penalty is imprisonment for a term of years or a life sentence. Attempted kidnapping has a maximum penalty of 20 years in prison.

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Will the Supreme Court Agree to Address Pre-Dispute Employment Arbitration Provisions Containing Class and Collective Action Waivers?

Originally published by Beth Graham.

Christine Neylon O’Brien, Professor of Business Law at Boston College – Carroll School of Management has written “Will the Supreme Court Agree with the NLRB that Pre-Dispute Employment Arbitration Provisions Containing Class and Collective Action Waivers in Both Judicial and Arbitral Forums Violate the National Labor Relations Act – Whether There is an Opt-Out or Not?,” University of Pennsylvania Journal of Business Law, Vol. 19, accepted (Forthcoming).  In here article, Professor O’Brien discusses the current split among United States Circuit Courts over the National Labor Relations Board’s numerous recent decisions stating a judicial and arbitral class waiver included in an employment agreement violates the National Labor Relations Act.

Here is the abstract:

Should employers be able to require individual employees to sign away their rights to collective action as a condition of employment? The National Labor Relations Board has held in D.R. Horton and Murphy Oil USA that when employers require employees to waive their right to “joint, class, or collective claims addressing wages, hours, or other working conditions against the employer in any forum, arbitral or judicial” as a condition of employment, this violates the NLRA. Even allowing prospective employees to opt out of such class waivers does not cure the violation in the NLRB’s view according to its decision in On Assignment Staffing Services. A circuit split has developed on enforcement of the Board’s orders on the class waiver issue with the Fifth Circuit denying the NLRB enforcement, the Seventh affirming the Board, and the Eighth Circuit joining the Fifth. There are several appellate cases pending before the Ninth Circuit which has yet to fully develop its stance and approximately sixty class waiver cases pending on appeal. The Supreme Court will likely be faced with deciding one of these appeals soon. This article discusses the NLRB’s and courts’ positions from several recent cases involving class waivers in individual employment dispute agreements. It suggests how the courts and the Supreme Court should rule as well as the possibility of legislative action.

This and other scholarly papers authored by Professor O’Brien may be downloaded without charge from the Social Science Research Network.

Photo credit: Flickr via Remodel / CC BY

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10 free legal clinics available for Dallas-area residents in August

Originally published by Amy Starnes.

The Dallas Volunteer Attorney Program (DVAP) will hold 10 free legal clinics in August, 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, August 5

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

  • 5 p.m., Thursdays, August 4 and 18

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

  • 5 p.m. Tuesdays, August 2, 9 and 23

West Dallas — 2828 Fish Trap Road

  • 5 p.m., Thursdays, August 11 and 25

Garland — Salvation Army, 457 W. Avenue D

  • 5 p.m., Thursday, August 18

Friendship West Baptist Church, 2020 West Wheatland Road, Dallas

  • 5 p.m., Wednesday, August 17

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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Legal Expectations: What Attorneys Want from Paralegals

Originally published by Bob Kraft.

Legal Expectations What Attorneys Want from Paralegals

Lawyers hire paralegals to make their lives easier. Much of the work an attorney does can be done by a paralegal. It is against legal ethics for paralegals to give legal advice to clients or to appear on behalf of a client in court. Otherwise, paralegals can do pretty much anything a lawyer can do and for a much cheaper rate.

Paralegal Studies Degree or Certificate

Most lawyers expect their paralegals to have some type of paralegal degree. Some law firms will only hire paralegals who went to ABA-approved paralegal programs. The American Bar Association recommends two and four year colleges, many of which offer an option for obtaining an online paralegal degree.


Many lawyers want paralegals with a particular set of experience. Paralegals only receive an overview of a limited number of practice areas in college, and they will not receive training in every area of law. Most of a paralegal’s experience comes from hands-on learning through internships or previous jobs.

Most lawyers and law firms specialize in only a few types of law, and they want to hire a paralegal who has some experience in that area. For example, a personal injury law firm would be less likely to hire someone whose only experience is in bankruptcy law. Likewise, criminal and civil lawyers handle very different types of cases. Most law firms do not want to train someone from scratch and prefer to hire someone who already knows at least most of the job.


Paralegals should be skilled at legal researching and writing, as these skills are sought after by almost every lawyer who hires a legal assistant. Lawyers also like to hire paralegals who are good at technology and are skilled at learning new things. Skills that were once valuable, like taking shorthand and using a typewriter, have been replaced with online transcription software and apps. With current advancements in e-discovery and online court filing, it is important to hire a paralegal who can adapt and change with the times.


Paralegals need to function well under stress, because most lawyers have a lot of things going on at once. For the same reason, most lawyers want to hire a paralegal who is very organized and efficient. In some jobs, paralegals have a lot of contact with clients over the phone and at the office. Therefore, most lawyers want to hire paralegals who are good at communicating orally as well as in writing.

A paralegal who hopes to find a job in today’s legal environment should know more than the latest word processing software. Especially in a small law firm, paralegals might be in charge of office management and billing in addition to doing legal work. It is important to find the right paralegal degree program and to secure an internship to learn the ropes. It is also important to stay on top of the latest trends in legal technology and develop strong communication skills. By doing these things, a paralegal will be able to find and maintain success in the legal profession.

This article is from Marlena Stoddard, who writes on health, parenting and everything in between. Originally from Senoia, GA, Marlena lives in Santa Rosa, CA with her husband and two children. When she isn’t spending time with her children or writing, Marlena enjoys hiking and photography, animals and painting. For more on Marlena, you can follow her on Google+.

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Securities Fraud – a Lesson for Promoters

Originally published by Charles Sartain.

Posted by Charles Sartain

We discussed SEC v. Arcturus et al last week and promised more. Here it is.

Did defendants commit securities fraud?

It doesn’t matter. Violations of Sections 5 of the Securities Act and 15.A of the Exchange Act are strict liability offenses; the defendant’s state of mind is not a consideration.  Thus, because they sold unregistered securities through the United States mail or interstate commerce these defendants were liable unless they could prove an exemption.  They offered no proof of an exemption (such as registration) so they were liable.

But we still wanna know, did they commit fraud?

Yes. It is unlawful under the Exchange Act to use or employ any manipulative or deceptive or contrivance in contravention of SEC rules to sell a security.  If a person makes a material misrepresentation or omission or uses some other fraudulent device in connection with the offer, sale or purchase of a security and acts in interstate commerce he is liable.

The test under Section 17 of the Securities Act is similar. The Fifth Circuit’s standard for misrepresentation is whether the information disclosed, understood as a whole, would mislead a reasonable potential investor.  A statement or omission is “material” if there a substantial likelihood that a reasonable investor would consider the information important in making a decision to invest.

Who, me? 

What information did the the Parvizian defendants omit?  They sold working interests in a prospect that had been forfeited. In other words, they sold interests they didn’t own. Defendants argued that the interests were “in dispute” and they expected to get them back. As you might expect, the court said they should have told that fact to the investors.

“Scienter” galore 

Scienter is a mental state involving an intent to deceive, manipulate or defraud.  It also includes severe recklessness, the definition of which is lengthy, but includes words like “highly unreasonable”, “extreme” and “inexcusable”. Selling interests that you know were terminated without disclosing that to investors evidences “a high degree of scienter”, said the court.

What about the brokers?

The interests were sold through the Balunas companies, who were not registered as brokers with the SEC. There were “consulting agreements”. Balunas would “introduce” prospective venturors and would receive 12% commission and a $4,000 monthly “retainer”. Balunas would cold-call prospects from a lead list.

The “introducing” part is important.  A broker is “any person engaged in the business of effecting transactions and securities for the account of others.”  A mere introduction is deemed not to be effecting a transaction.

Investors, think about this

Have you ever considered the relationship between “invest” and “investigate”. They both derive from Latin but, to my surprise, are not from the same root. Nevertheless, in real life – especially when taking a random phone call from a fast-talking stranger – one should do the first only after doing the other.

Musical Interlude; you can’t do it alone

Promoters like Parvizian need backup. Sometimes backup takes center stage. Here’s betting you can’t name the lead singer for the  Reflections,  or the Tokens.

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Monday, July 25, 2016

Houston Legal Links 7/25/2016

Originally published by Mary Flood.

Top legal news includes: Independent probe of rape victim’s incarceration sought; Judge under fire for no plea vow Facebook post he says is in support of officers; Open Carry, Funding Likely Police Issues Next Legislative Session; Family of slain teen urge city to buy site where body was found; Man shot by Houston police had replica pellet gun; Rally Questions Death Penalty for Texas Man Who Didn’t Pull Trigger; Acclaimed investigator takes fall in Goforth case (Chron subsc); Kushed out: City takes aim at stubborn new drug problem (Chron subsc); Heavy debt loads could slow energy’s recovery (Chron subsc); Police looking for driver who hit two children; Initiative allows families to help locate missing loved ones via DNA; Falkenberg: D.A. answers questions, but victim’s ordeal is unforgiveable (Chron subsc); In the Face of Police Violence, African-Americans Move Their Money to Houston’s Black-Owned Bank; Feds seize 5 tons of pot in load of mangoes at South Texas border & Greater Houston Borrows $2.9-Billion To Keep Up With Water Demands.

For the water cooler: Wherein An Associate Curses Out A Partner Over Pokémon; Ex-BigLaw partner avoids long sentence for insider trading; judge notes otherwise ‘exemplary life’; Supreme Court Clerk Hiring Watch: The Official List For OT 2016; Law Firm HR: How To Give Constructive Feedback; FBI Blocking FOIA Requests With Aging IT, Lawsuit Alleges; Florida judge is accused of making derogatory comments, overrelying on staffers; What Happens To Incoming Biglaw Associates Who Fail The Bar Exam?; ‘Zero Dark Thirty’ Writer in First Amendment Fight Over Bergdahl Tapes; The Law Schools With The Least-Indebted Graduates (2016); US sues to block two major health-insurer mergers, would like cases tried together; Law Firms a “Weak Spot” in Money Laundering Detection; Federal judge considers suit seeking gender-neutral passport; Law firms are ‘implicated’ in rise of inequality, says ‘Saving Capitalism’ author Robert Reich & Additional ‘Making a Murderer’ episodes to air; lawyer says new evidence will be revealed.

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"When the Horse Dies, Get Off"

Originally published by Michael C. Smith.

ResizeFew issues are of more interest to patent practitioners in the Eastern District these days than rulings on motions for attorneys fees under section 285.  Of course both prevailing plaintiffs and defendants can seek an award of fees under Section 285 if the statute’s standards are met, as recently clarified by the Supreme Court in Octane Fitness.  

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EPA Raises Statutory Civil Monetary Penalty Amounts

Originally published by Blizzard & Nabers Blog.

On July 1, 2016, the US Environmental Protection Agency (EPA) issued an interim final rule that modifies statutory civil monetary penalty amounts for statutes administered by the agency. EPA’s interim final rule, which becomes effective on August 1, 2016, implements requirements of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act) and, according to EPA, is designed to increase EPA’s statutory civil monetary penalties to reflect inflation – significantly, in some cases – and to ensure civil penalties maintain their deterrent effects. EPA has stated that its adjusted civil penalty amounts will not necessarily affect the process it uses to assess penalties or the amounts it will ultimately assess, but EPA’s adjusted statutory penalty amounts could result in significant penalties in some enforcement cases. In some cases, EPA now has authority to impose penalties of hundreds of thousands of dollars per day per violation.

Since 1990, the EPA, like other federal agencies, has been required to review and, as appropriate, to revise its statutory monetary penalty amounts every four years to account for inflation. In practice, however, certain agencies did not follow this quadrennial requirement. The 2015 Act provides that, beginning on January 15, 2017, federal agencies, including the EPA, will be required to provide for annual cost-of-living adjustments to their statutory penalty amounts to reflect inflation.

In the interim, however, the 2015 Act requires agencies to provide for initial “catch-up” cost-of-living adjustments for civil penalty amounts through their interim final rulemakings. The “catch-up” amounts may not, by statute, exceed 150 percent of the penalty amounts in effect on November 2, 2015.

Consistent with the 2015 Act and the Office of Management and Budget’s (OMB) February 24, 2016 guidance, EPA calculated “catch-up” amounts for over 66 statutory penalties and announced the adjusted penalties in Table 2 of the interim final rule. EPA’s new, adjusted statutory civil penalty amounts vary by penalty. For example, the interim final rule increases the previous maximum $37,500 per-day penalty for violating requirements of implementation plans or permits for affected sources, major emitting facilities, or major stationary sources under the Clean Air Act (CAA) to a maximum of $93,750 per day per violation. Similarly, the interim final rule increases EPA’s civil monetary penalty under the Clean Water Act (CWA) for oil or hazardous substance discharges – previously set at a maximum of $37,500 per day per violation – to $44,539 per day per violation.

The ranges of statutory civil penalties under Table 2 of the interim final rule are, by statute:

EPA-Administered Statute Range of Statutory Civil Penalties for Violations that Occurred After November 2, 2015 and Assessed on or After August 1, 2016
Clean Air Act $8,908 – $356,312
Clean Water Act $1,782 – $257,848
Comprehensive Environmental Response, Compensation, and Liability Act $53,907 – $161,721
Resource Conservation and Recovery Act $14,023 – $93,750
Safe Drinking Water Act $9,375 – $1,311,850
Toxic Substances Control Act $8,908 – $37,500

EPA can assess its adjusted penalty amounts on or after August 1, 2016 for statutory violations that occurred after November 2, 2015; parties should consult Table 2 of the interim final rule for guidance on penalty amounts for such violations. However, for statutory violations that occurred on or before November 2, 2015, or for violations that occurred after November 2, 2015 but for which EPA assesses penalties before August 1, 2016, parties should continue to consult EPA’s existing civil penalty amounts, located in Table 1 of 40 C.F.R. § 19.4.

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Transvaginal Mesh Lawsuits Now Largest Mass Tort Action In History

Originally published by robertslawfirm.

To date, more than 87,000 transvaginal mesh lawsuits have been filed in the U.S., making pelvic mesh litigation the largest and most complicated mass tort action in history. In fact, one of four civil cases in the U.S. today deals with pelvic mesh. The cases involve seven different manufacturers, and have been consolidated for pretrial proceedings in the U.S. District Court for the Southern District of West Virginia under Judge Joseph Goodwin. History Lawsuits against mesh manufacturers began cropping up more than 10 years ago. Almost 4,000 injuries were reported to the U.S. Food and Drug Administration between 2005 and 2010. These complaints involved complications from mesh inserts used in pelvic organ prolapse (POP) surgery, including pelvic pain, bleeding, organ damage, infection and urinary problems. In January 2012, the FDA ordered mesh manufacturers to perform safety studies on their products. In January 2016, the FDA reclassified transvaginal mesh as a high-risk medical device and ordered manufacturers to address safety concerns by submitting new applications that demonstrate their products are safe and effective. These new requirements apply only to mesh products used to repair POP in women. Settlements Following a number of verdicts in favor of plaintiffs in pelvic mesh suits, Judge Goodwin urged manufacturers to cut their losses and settle claims. To date, the following settlements have been announced: American Medical Systems — announced a settlement of $54.4 million for an unspecific number of claims in June 2013 and another settlement of $830 million to settle approximately 20,000 claims in […]

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IVC Filter Litigation Update

Originally published by Blizzard & Nabers Blog.

Lawsuits surrounding Inferior Vena Cava Filters (IVC Filters) has been surging lately as the first lawsuits are prepared to go to trial this September. Manufacturers like Boston Scientific, C.R. Bard, Cook Medical, and Cordis Corporation are all facing lawsuits both in the United States and in Canada.

What Is An IVC Filter?

IVC filters are medical devices implanted into the largest vein in the body, the inferior vena cava, to carry blood from the body to the right atrium of the heart. The purpose of an IVC filter is to prevent blood clots in the lower extremities from traveling into the heart or lungs. They are commonly used in patients at risk for Pulmonary Embolism (PE), patients who have experienced trauma, or patients who have recently undergone surgery.

In 2010, the Food and Drug Administration (FDA) released a safety communication warning doctors and patients that IVC filters could cause severe and life threatening side effects. Between 2005 and 2010, the FDA received 921 reports of device failure of IVC filters. Of these reports, 328 involved device migration, 146 involved embolizations (detachment of device components), 70 involved perforation of the inferior vena cava wall, and 56 involved filter fracture. The FDA also warned that the risk of experiencing one or more of these complications greatly increases with time in the body.

IVC Filter Lawsuits

With thousands IVC filters implanted in patients each year, the litigation against IVC filter manufacturers has quickly grown. The first manufacturer to go to trial this year will be Cook Medical. Cook has tried to settle its cases since February, but the two sides were unable to come to an agreement and the first bellwether trials are scheduled for this September.

The outcome of Cook’s lawsuits could set a precedent for other IVC filter manufacturers like Bard, facing its own trials scheduled to begin in mid-2017. The bellwether selection process is underway and it is anticipated to conclude in January or February of next year.

Blizzard & Nabers, IVC Filter Lawyers

At Blizzard & Nabers we have years of experience handling medical device litigation and have the specialized knowledge required to fight for your rights. If you or someone you know may have developed complications due to an IVC filter, please contact us for a free consultation.

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Jefferson County volunteer attorneys hold free veterans legal clinic

Originally published by Amy Starnes.

Veterans and spouses of deceased veterans are invited to a free legal clinic from 9 a.m. to noon July 30 at the West Side Development Center, 601 W. Rev. Dr. Ransom Howard St., Port Arthur.

Volunteer attorneys from the Jefferson County Bar Association will provide individual counseling on any legal matter during the clinic, including matters involving family law, wills and probate, consumer, property, disability and veteran benefits.

Appointments are encouraged. Walk-ins will be addressed as time and resources allow. To schedule an appointment, contact the JCBA at (409) 835-8647 or email

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How is Fault Determined in an Accident?

Originally published by Audrey Lee.


First of all, the person has to be driving. If you’re parked on the side of the road, that doesn’t count. If you’re not driving, if you’re a passenger then that doesn’t count. You have to be behind the wheel and the vehicle has to be moving to be considered a driver.

Then you have to be considered impaired or intoxicated, and in Texas, that means your blood alcohol level is 0.08. That can be determined through a breathalyzer, or blood. If you’re below that, legally you are not considered intoxicated or impaired. Every state is different; in Texas, it’s 0.08. So if your blood alcohol level is above that and behind the wheel in a moving vehicle, you would be a drunk driver.

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