Wednesday, April 26, 2017

What Constitutes “Reworking Operations” under an Oil and Gas Lease?

Originally published by John McFarland.

Last December, the Eastland Court of Appeals issued its opinion in Crystal River Oil & Gas, LLC v. Patton, No. 11-15-00217-CV. Crystal River owned and operated wells on an oil and gas lease in Stonewall County. The oil wells on the lease produced twenty barrels of salt water for every barrel of oil, and Crystal River operated a disposal well on the lease to handle the salt water. The disposal well broke down, and while Crystal River was repairing the well it shut in its oil wells for more than sixty days. Robert Patton noticed the gap in production and obtained an oil and gas lease covering the same lands, based on his claim that Crystal River’s lease had terminated. Patton sued Crystal River to establish his title.

The oil and gas lease provided that, if after the primary term production should cease, “this lease shall not terminate if Lessee commences additional drilling or reworking operations within sixty days thereafter …” and thereafter re-establishes production. The case was submitted to the jury, which was asked:

Did the Defendants fail to commence drilling or reworking activities on the producing wells in question within 60 days after the wells ceased to produce oil and gas?

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Fifth Circuit Vacates Attorney Fee Award

Originally published by Thomas J. Crane.

In a recent decision, the Fifth Circuit reversed the award of attorney fees to a prevailing plaintiff. In Cervantes v. Cotter, the lower court severely reduced the plaintiff’s fee request by some 75% because the plaintiff’s success was, in the view of the trial court, small. The plaintiffs, noted the trial court, were only warded $409 in lost overtime payments. The district court rejected the plaintiffs’ claim for liquidated damages and their claim for retaliation. So, their recovery was just the $409. Yet, the plaintiffs’ attorneys sought $14,000 in attorney fees. The trial court considered that to be an “extraordinary” amount in light of the relief obtained.

But, the purpose of the attorney fee provision in the Fair Labor Standard Act is to to encourage attorneys to accept these small cases. No attorney would accept a case in which the hard, economic damages was a mere $409. And, as the Fifth Circuit noted on appeal, there are twelve factors in assessing attorney’s fees, not just the one factor involving success at trial. See the Fifth Circuit decision here.

The lower court’s decision is not well thought out. The Magistrate discussed the settlement offers and lack of counter-offers by the parties. The Magistrate then concluded that the plaintiff lawyers were “greedy” and the defense attorney was “penny-pinching.” It is an extraordinary decision. The district court ignored eleven of the twelve factors in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). Johnson requires lower courts to look at twelve factors, including the success of the plaintiff, when it assesses a request for attorney’s fees.

The lower court in Cervantes looked just at one factor, the success of the plaintiffs. Then, it went beyond that and looked at the relative settlement success of the two parties. It mentioned one offer of $17,000 in attorney fees and a second offer of $22,000 in attorney fees. It noted the response by the employer of $210 in overtime pay and $1,000 in attorney fees. It almost seemed like the judge was annoyed at having to hear a small case when the parties could have easily settled the matter. I find that unfortunate. These “small” cases are quite large to those involved. The Fair Labor Standards Act is a federal law. If federal courts will not enforce federal laws, who will? In truth, these apparently small cases are not small, at all. These relatively small cases reflect a wider problem with many employers underpaying their employees and generally getting away with it. The Department of Labor can enforce the FLSA, but it rarely does. It is left to these “small” lawsuits to stand up for the little guy whose pay is being stolen by employers. If there is one plaintiff filing a case for a lost overtime of $210, then there are ten others who also suffered similar losses, but chose not to file suit. There was a time when I was working my way through college and law school. In those days, $210 was a very large amount to me indeed.

In effect, the trial court imposed some new requirement that appears to involve second-guessing settlement strategy. I think it was this that caught the eye of the Fifth Circuit. It vacated the trial court’s ruling in a per curiam, unpublished decision. “Per curiam” decisions are those which the court views as simple, routine, not needing extensive explanation. The higher court is saying this should be a simple issue. Courts cannot truly second-guess settlement strategy. There are just too many unknowns.

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Dawson v. NCAA and Pac-12 Conference: Motion to Dismiss Granted

Originally published by Christian Dennie.

Lamar Dawson (“Dawson”), a former University of Southern California football student-athlete, filed suit against the NCAA and Pac-12 Conference (collectively “Defendants”). In the suit, Dawson sought unpaid wages, including unpaid overtime compensation and interest thereon, required minimum wage payments, waiting time penalties, liquidated damages and other penalties, injunctive and other equitable relief and reasonable attorneys’ fees pursuant to claims for violations of the Fair Labor Standards Act, California Labor Code, California Code of Regulations, and California Business and Professions Code. The Defendants moved to dismiss Dawson’s complaint and Judge Richard Seeborg of the United States District Court, Northern District of California granted Defendants’ motion to dismiss and determined that the legal theories sought by Dawson were untenable, thus amendment would be futile. 

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FDCPA Ban on Deceptive Collections Practices Extends to Conduct by Lawyers in Court

Originally published by Texas Lawyer.

The Federal Debt Collection Practices Act (“FDCPA”), which bans deceptive and abusive debt collection practices, is often viewed as a regulation targeting only debt collection agencies. However, a recent ruling in the Eleventh Circuit clarifies that an attorney’s conduct in court may also violate the Act.
      

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Eating Disorders: A Secret In The Legal Profession

Originally published by myadmin.

I remember the day in April 2007 I finally confided to my psychiatrist that I was struggling with drugs and alcohol. I did not mention at that time that I had also struggled with both exercise and traditional bulimia for over two decades

I felt completely stigmatized and alone in my eating disorder and did not feel that anyone, including him could understand or help. Adding to the stigma was my profession. Not only was I a male with an eating disorder, I was a male lawyer with an eating disorder. How stigmatizing was that? I have spoken openly about my eating disorder recovery for years and to this day, I am unaware of any other male in the legal profession who has publicly professed to dealing with an eating disorder. The hard statistics of how many males are afflicted with eating disorders tell us that they are of course out there.  Along those same lines, I have received numerous emails from females in the legal profession who are struggling or are in recovery from both anorexia and bulimia.

Why do males struggling with eating disorders in in the legal profession seem to be so few and far between?  We can look to a recent study of mental health issues in law school published by the Journal of Legal Education, which found 27% of law students (18% of male respondents and 34% of female respondents) screened positive for eating disorders.  Yet only 3% of respondents had actually been diagnosed.  While I do not have the breakdown, I suspect that the majority of that three percent diagnosed is female.

I believe one reason for this reluctance to seek treatment compounded on top of the strong societal stigma is the culture of the legal profession. The fear of showing weakness and vulnerability.  The fear of showing “weakness” is so ingrained into our thought process as lawyers and even starting as law students that as a profession, we are often unable to distinguish between how feelings need to be channeled to do our best to excel in the profession versus what we need to do to help ourselves when we are struggling with mental health issues. We have difficulty stepping back and embracing the vulnerability of telling people when we are struggling as being a virtue.

Here is the catch. This type of vulnerability is something that is absolutely necessary in mental health recovery. Particularly eating disorder recovery.  It may involve opening up the well of emotions that may date back over a lifetime that are holding you back from getting better. Not a pleasant thought, is it? Very counter-intuitive to the projection of knowledge, competency, and strength in the profession

I can tell you that while I struggled with my eating disorder, and then moved into recovery, that recovery did not begin in earnest until I allowed myself to be vulnerable in a setting that I felt safe to do so. And it took time to feel safe. I finally got honest with my psychiatrist and those close to me. I then began to move forward in a positive way. I had been lying by omission for years, simply getting my anti-depressant meds and not opening up about all the unresolved pain, layer upon layer going back to childhood. The mentally abusive relationship with my mother. The severe bullying as a teenager. (I do not blame either as causes of my eating disorder. As we know, there is a difference between cause and correlation.) The feelings of inadequacy and lack of self-worth also played a role. While there is no other history of eating disorders in my family, the role of genetics cannot be dismissed as well.

I see this issue regularly when I speak to lawyers and law students who are struggling. People who would rather pull their toenails out with their teeth than talk about such things. Talk about the pain of a little boy or girl, failed relationships, trouble at home. Possible environmental triggers that have been long buried in the subconscious.

It’s easier to simply say, “I’m over that,” and move on. To emotionally isolate from the world. To compartmentalize the pain. But they often have not moved on and those feelings are always just under the surface, waiting to trigger destructive behaviors or playing a role in not dealing with the ones already present. The stress of billing. Stress of trial. Stress of grades. Problems at home. Childhood trauma. The list of possible triggers is endless.  I totally get that. Binging and purging was a huge stress release for me during both law school and as practicing lawyer. The same was true of my obsessive-compulsive exercise. Probably my biggest trigger issue present day.

I am here to tell you that allowing myself to be vulnerable and let those feelings out was a key in my long-term eating disorder recovery which now stands at just over ten years.  Those feelings that dated back to childhood no longer control me.  I even write letters to my teenage self.  I talk to my “inner child.” Doesn’t sound very “manly” or “lawyer-like,” does it?  It does not mean telling everyone your childhood secrets. It means realizing that being vulnerable and facing such feelings is both beneficial and necessary in moving forward in recovery. Find a safe setting. Give it a try.

 

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Claims Handling Requirements by State – Texas

Originally published by Robert Trautmann.

I recently received a request to write about the claims handling guidelines in Texas. In the great state of Texas, the handling of insurance claims are governed by both the Administrative Code and Insurance Code. Generally, and insurance carrier may not engage in any unfair settlement practices.1 An insurance carrier in Texas must acknowledge a … Continue Reading

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For Oil & Gas M&A, It’s a Buyers’ Market

Originally published by Energy Legal Blog ®.

For the majority of global oil and gas companies, 2016 was a tough year.  Buffeted by depressed crude oil and natural gas prices, corporate profits were squeezed, sparking widespread restructurings, layoffs and in certain cases bankruptcies.

Energy
Paul Jones
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EPA Postpones Compliance Dates for More Stringent Requirements for Discharges from Coal Fired Power Plants

Originally published by Energy Legal Blog ®.

The U.S. Environmental Protection Agency (EPA) has taken two recent actions that have resulted in postponement of the compliance dates for more stringent requirements in the effluent limitations guidelines and standards for the steam electric power generating point source category originally published on November 3, 2015 (2015 Rule). This will allow EPA at least until August 12, 2017, to determine whether it will seek remand of any portions of the 2015 Rule.

Environmental Strategies
Sara Burgin
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Tuesday, April 25, 2017

State Bar of Texas announces 2017 winners of Law Day contests

Originally published by Jillian Beck.

law_day_2017_webThe State Bar announced the winners of the annual Law Day essay, photography, and poster contests this month.

Each year, Law Day is celebrated nationally on May 1 to honor the rule of law and underscore how law and the legal process contribute to the freedoms that all Americans share. It provides an opportunity to recognize the role of courts in this democracy and the importance of jury service to maintaining the integrity of the courts.

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Adidas Loses Iconic Three-Stripe Trademark Registration in the EU

Originally published by Peggy Keene.

Despite enjoying a long tenure of registration on both the U.S. Federal Register and the European Union Register, Adidas recently suffered a devastating blow when […]

The post Adidas Loses Iconic Three-Stripe Trademark Registration in the EU appeared first on Klemchuk LLP.

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Opinions: Post-Judgment Temporary Orders Pending Appeal

Originally published by mkhtx.

The First District Court of Appeals released its memorandum opinion in In re Christensen, No. 01-16-00893-CV, this morning concerning post-judgment temporary orders pending appeal under TFC 6.709.

Christina and Troy divorced. After a two-day bench trial, the trial court signed a final decree which awarded Christina stocks and funds in various accounts and ordered Troy to pay a portion of Christina’s attorney’s fees (in the amount of $20,000).

After Troy timely filed his notice of appeal, Christina moved for post-judgment temporary orders pending appeal under TFC 6.709. She requested the trial court, inter alia:  order Troy to 1) pay reasonable appellate attorney’s fees into the registry of the court to be payable to Christina upon Troy’s pursuit of an unsuccessful appeal or, in the alternative, grant a judgment against Troy for reasonable appellate attorney’s fees conditioned upon his pursuit of an unsuccessful appeal; 2) post a bond to secure his compliance with the terms of the decree; and 3) pay her temporary spousal support pending appeal.

Troy argued the motion was merely an attempt to penalize him for appealing, section 6.709 did not authorize prepayment of appellate attorney’s fees into the registry of the court or posting a bond, and payment of temporary spousal support was not justified.

The trial court granted Christina’s motion, awarding her $50,000 total ($30,000 for the district court of appeals and $20,000 for the Texas Supreme Court) if Troy unsuccessfully appealed and required him to pay these amounts into the court registry. The trial court also ordered Troy to post a bond of $275,000 (or its cash equivalent) to protect Christina against potential loss of property or property rights during the course of the appeal.

Troy filed a petition for writ of mandamus, alleging five issues. which the Court of Appeals addressed out of sequence.

The Court of Appeals sustained Troy’s second and third issue concerning prepayment of appellate fees into the registry of the court. Citing Halleman v. Halleman, No. 02-11-00238-CV, 2011 WL 5247882 (Tex.App.–Fort Worth, Nov. 3, 2011, orig. proceeding), the Court of Appeals found that section 6.709 does not authorize and the trial court abused its discretion in ordering Troy to prepay the attorney’s fees into the registry of the court because the appellate attorney’s fees will not be payable to Christina “if at all” until the appellate proceedings are final.

In his fourth issue, Troy argued the trial court abused its discretion by ordering him to post a bond in the amount of $275,000 (which included the $50,000 of appellate attorney’s fees). Christina had asserted in her motion for temporary orders that the bond should be sufficient to cover the value of the property as determined by the trial court at rendition plus interest. She also asked the trial court to require Troy to provide statements for the accounts and enjoin him from taking certain actions regarding the accounts until the appeal was final.

At the hearing on Christina’s motion, the parties testified regarding the accounts awarded in the divorce. Troy testified he had control over the accounts, Christina did not; Christina testified that Troy had not accounted for over $200,000 of assets awarded to her and that Troy had traded or sold about $300,000 in stocks, half of which were awarded to her. The opinion does not indicate Troy disputed Christina’s testimony on this point, but he did testify that “issues existed regarding the documents needed to transfer these accounts to Christina.” The Court of Appeals found that Troy presented no authority that the trial court lacked authority to order the bond and the trial court did not abuse its discretion in ordering it.

In his fifth issue, Troy contested the temporary monthly spousal support award of $3,500 until the appeal is final because, according to him, he does not have the financial ability to pay it, the calculation of the amount was flawed, and the support obligation “was part of the property division improperly disguised as spousal support.” He testified he had to borrow $25,000 from family to keep afloat, he could not afford either the $20,000 for Christina’s attorney’s fees ordered in the decree, nor the $250,000 bond or monthly spousal support. He also testified that he earned $214,000/year and had received a $24,000 bonus this year. His FIS indicated his net monthly income of $10,630 and monthly expenses of $13,638. Christina also testified that her means were significantly less than Troy’s. The Court of Appeals found no abuse of discretion in the award of temporary monthly support and overruled Troy’s fifth issue.

Finally, taking the first last, the Court of Appeals overruled Troy’s first issue in which he argued the temporary orders were not intended to protect Christina and her property, but to “unjustly penalize [him] for asserting his rights” to appeal. The Court of Appeals found the temporary orders do not prevent him from pursuing his appeal.

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Intervention, appeal, and other such matters

Originally published by David Coale.

webSmith intervened in a case after a judgment had been entered; the trial court granted a motion to strike his intervention. Resolving a tangled web of procedural issues, the Fifth Court held that (1) the striking of his intervention was not appealable before final judgment; (2) Smith’s appeal was limited to the merits of his intervention, not the claims of others; and (3) Smith’s filing of a motion for new trial extended the appellate deadlines. Smith v. City of Garland, No. 05-16-00454-CV (Apr. 20, 2017).

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Bill to Raise the Age of Criminal Responsibility to 18 is Passed by Texas House

Originally published by [email protected].

Texas is one of just seven states nationally that treats 17-year-old offenders as adults in the criminal justice system. That may be about to change if a bill to raise the age of criminal responsibility becomes law.

A bill to raise the age from 17 to 18 was passed in the House last week, reported the Texas Tribune.

Attempts to move 17-year-olds to the juvenile justice system have been staged over the last few years in the legislature.  House Bill 122, known as the “Raise the Age” bill, would switch 17-year-old offenders from the adult justice system to the juvenile justice system from 2021.

Texas has treated 17-year-olds as adults since 1918. However, there are some drawbacks inherent in punishing teens as adults because they miss out on the rehabilitative programs in the juvenile justice system.

Advocates for change say the rehabilitation needs of 17-year-olds are similar to those of younger teens in the Texas juvenile justice system. They say recidivism rates would fall and teens would be protected from exploitation by older prisoners if the bill becomes law.

The transfer of thousands of 17-year-old offenders to the juvenile system would also put Texas in appliance with the federal Prison Rape Elimination Act. The legislation prohibits 17-year-old inmates from being within sight and sound of adult prisoners. Compliance would require the investment of millions of dollars into jails in Texas if 17-year-olds remain incarcerated with adults.

In some cases, teens younger than 17 are dealt with in adult courts. Although these offenders have usually committed serious crimes, evidence recently emerged that courts might be rubber stamping juvenile certifications to adult courts.

 

Defendants Jailed as Teens Raise Legal Challenges to Sentencing in Adult Courts

We recently noted how the recent case of Cameron Moon v. State of Texas has opened the door to legal challenges from defendants who were treated as adults when they committed crimes as teens.

The Court of Criminal Appeals ruled an individualized assessment of a teen defendant was not made before Cameron Moon was tried in the adult courts. He was indicted for a murder at the age of 16. He was transferred to the adult courts as matter of procedure.

His defense lawyers successfully argued Moon could have benefited from the rehabilitation programs inherent in the juvenile justice system. The Court of Criminal Appeals found the trial court failed to consider these factors.

Teen defendants are particularly vulnerable in Texas’ tough criminal justice system. If you are facing a serious criminal charge as a teen, you should hire experienced Dallas criminal defense counsel as soon as possible.

The post Bill to Raise the Age of Criminal Responsibility to 18 is Passed by Texas House appeared first on Dallas Criminal Defense Attorneys |State & Federal Lawyers.

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California Supreme Court Invalidates Citibank Arbitration Provision Requiring Waiver of Right to Seek Public Injunctive Relief

Originally published by Beth Graham.


The Supreme Court of California has ruled a predispute arbitration provision that requires a consumer to waive the right to seek public injunctive relief is unenforceable.  In McGill v. Citibank, N.A., No. S224086 (Cal., April 6, 2017), a California woman, McGill, opened a credit card issued by Citibank in 2001.  At the time she opened the credit card account, McGill also agreed to purchase the bank’s credit protector plan designed to waive her credit card balance in the event of her unemployment, serious illness, or injury.

Although McGill’s initial credit card account agreement did not contain an arbitration provision, Citibank made a change in terms in October 2001.  The new terms provided for mandatory arbitration of all claims or disputes associated with the account and prohibited consumers from engaging in collective action.  Because McGill did not elect to utilize an opt-out provision that was included in Citibank’s new terms, the arbitration agreement became effective in November 2001.  In 2005, Citibank once again changed its terms and McGill did not opt out of the new agreement.

In 2008, McGill unfortunately became unemployed.  As a result, she filed a claim for benefits under the credit protector plan.  Unsatisfied with the results of her claim, McGill filed a putative class-action lawsuit against Citibank in California.  In her complaint, McGill accused the credit card issuer of violating numerous state laws and engaging in deceptive advertising practices.

In response to McGill’s lawsuit, Citibank filed a motion to compel the dispute to arbitration based on the terms and conditions included in the updated credit card agreement.  A trial court granted the bank’s motion and ordered McGill to individually arbitrate most of her claims against Citibank.  According to the trial court, however, McGill’s request for public injunctive relief was not subject to arbitration pursuant to the Broughton-Cruz rule.  Under this rule:  “Agreements to arbitrate claims for public injunctive relief under the CLRA, the UCL, or the false advertising law are not enforceable in California.” Later, the Court of Appeal reversed and remanded the case for arbitration of all of McGill’s claims based on the United States Supreme Court’s 2011 decision in AT&T Mobility LLC v. Concepcion.

On appeal before the California Supreme Court, McGill asserted “(1) the Court of Appeal erred in finding FAA preemption of the Broughton-Cruz rule, and (2) the arbitration provision is invalid and unenforceable because it waives her right to seek public injunctive relief in any forum.”  Because California’s highest court agreed with McGill’s second argument, the court did not address whether the FAA preempted California’s Broughton-Cruz rule.

After reviewing the facts of the case, the Supreme Court of California held:

Having determined that public injunctive relief remains a remedy available to private plaintiffs under the UCL and the false advertising law, as well as under the CLRA, we next conclude that the arbitration provision here at issue is invalid and unenforceable under state law insofar as it purports to waive McGill’s statutory right to seek such relief. Civil Code section 3513 provides: “Anyone may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement.” Consistent with this provision, we have explained that “a party may waive a statutory provision if a statute does not prohibit doing so [citation], the statute’s ‘public benefit …is merely incidental to [its] primary purpose’ [citation], and ‘waiver does not seriously compromise any public purpose that [the statute was] intended to serve’ [citation].” (DeBerard Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668-669.) By definition, the public injunctive relief available under the UCL, the CLRA, and the false advertising law, as discussed in Broughton and Cruz, is primarily “for the benefit of the general public.” (Broughton, supra, 21 Cal.4th at p. 1082; see Cruz, supra, 30 Cal.4th at p. 315.) Its “evident purpose,” the court said in Broughton, is “to remedy a public wrong,” “not to resolve a private dispute” (Broughton, at p. 1080), and any benefit to the plaintiff requesting such relief “likely… would be incidental to the general public benefit of enjoining such a practice.” (Id. at p.1080, fn. 5.) Accordingly, the waiver in a predispute arbitration agreement of the right to seek public injunctive relief under these statutes would seriously compromise the public purposes the statutes were intended to serve. Thus, insofar as the arbitration provision here purports to waive McGill’s right to request in any forum such public injunctive relief, it is invalid and unenforceable under California law.

The court went on to distinguish AT&T Mobility LLC v. Concepcion from McGill’s case before ultimately remanding the dispute back to the trial court for a determination regarding whether the remainder of the arbitration provision at issue was also unenforceable under the terms of the credit card agreement.

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Second Circuit Declines to Reconsider Estate’s Title VII Claim

Originally published by Gerry W. Beyer.

The Second Circuit declined to reconsider a Title VII claim from the estate of a deceased skydiver, Donald Zarda, against his former employer. Zarda originally filed the suit claiming that his employment was terminated because of his sexual orientation. The…

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Taxable Costs Are Capped by Insurance Policy’s Limit

Originally published by Christina Phillips.

Minn. Stat. § 604.18 authorizes the award of “taxable costs” when an insurer denies benefits without a reasonable basis. Earlier this month, the Minnesota Supreme Court was presented with the question of whether the award of “taxable costs” was capped by the insurance policy limit. In Wilbur v. State Farm Mutual Automobile Insurance Company,1 a … Continue Reading

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Monday, April 24, 2017

Avoiding the Litigation Super Highway

Originally published by Rob Radcliff.

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We know that most cases are resolved before they ever see a jury or judge at trial.  Some go the way of summary judgment. Other go the way of settlement.  After attorneys’ fees and case related fatigue parties eventually get to a position where continued litigation no longer makes sense. Most companies and others know this, but sometimes the pain of litigation is necessary to get one or both of the parties to a dispute to a point where the case can be resolved.

So how do we avoid the litigation super highway?  A few thoughts:

  1. It can happen, but a plaintiff/defendant usually doesn’t get everything they want as part of a case. Never “fall in love” with the strength of your case. It’s difficult, but you must maintain some objectivity, which hopefully your counsel will provide.
  1. A settlement usually means you’re giving up something and so is the other side. Parties don’t walk away from a settlement getting everything they wanted.
  1. In cases where you are paying a lawyer on an hourly basis, there is an economic disincentive for the lawyer to settle the case. Ethically, this shouldn’t be an issue as the lawyer owes a fiduciary duty to put the interest of the client above their own, but it is something to keep in perspective.
  1. No matter what your lawyer tells you, the litigation cost will be more than anticipated.
  1. There is a cost to litigation beyond attorneys’ fees. Those involved in the dispute are pulled away from their day to day tasks and distracted.  Litigation, which may involve depositions, can be extremely stressful and unless you’re a masochist is an unpleasant experience.

These are just a few things to consider as you venture into a lawsuit or arbitration.  Many times there is no choice, but if the opportunity presents itself to exit the litigation process on acceptable terms, it has to be considered.  Force your lawyer to give you an up front candid evaluation of the case and an estimate of costs.  The party on the other side is usually considering the same issues and an early mediation or settlement discussions might be appropriate.  At a certain point the litigation takes on a life of itself, avoid that situation.

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Being A Feeler In A Profession Of Thinkers

Originally published by myadmin.

depressed lawyerLawyers and law students, at least anecdotally, often seem to be driven, Type-A personalities who might in some ways be at higher risk for addictive behaviors. Perhaps the ways we fit the lawyer “type” has something to do with propensity for mental health issues and addiction. Or maybe sometimes it’s the way we don’t fit in that matters. I certainly felt more stress through the years from the ways I wasn’t a typical lawyer than the ways that I was.  While I never felt particularly stressed from the desire to excel either in law school or as a lawyer, I was stressed because I was miserable for other reasons. I’d chosen an occupation for all the wrong reasons that had no relation to who I was as a person.

Read the rest on my weekly column at Above The Law

Being A Feeler In A Profession Of Thinkers

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Errant Email Steers Uber into Trade Secret Trouble

Originally published by Joseph Y. Ahmad.

It’s too early to know the degree of vetting that occurred before Uber handed Anthony Levandowski nearly $700 million for his fledgling autonomous truck company named Otto and brought him aboard to lead Uber’s self-driving vehicle division. A high-profile trade … Continue reading →

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Know the Basis for Product Liability Claims

Originally published by robertslawfirm.

Product liability issues have made major headlines in the past year: vehicle recalls due to faulty air bags, exploding smartphones, metal hip implant recalls, and personal injury lawsuits nationwide for talcum powder links to ovarian cancer as well as serious side effects of prescription drugs like Invokana, Essure, Eliquis, Xarelto, Pradaxa and many more. Product liability laws exist to protect consumers, and require manufacturers to pay for injuries caused by a defective or hazardous product. A product liability lawsuit can be based on: Negligence – if a manufacturer does not exercise reasonable care in the design, manufacture or distribution of a product, they could be held liable. Breach of Warranty – when product warranties are breached, an injured party may be able to recover damages that occurred as a result of the breach. Strict Products Liability – with a strict liability claim, you must prove that the product was defective, that the defect existed before the product was released, and that this defect caused you harm or injury. Cases that fall in this category are usually due to design defects, manufacturing defects or “failure to warn” defects (which is why there are now websites dedicated to “silly” warning labels, like “Do not hold wrong end of a chainsaw” and, for a hairdryer: “Do not use while sleeping”). When a product causes injury or harm, there is usually potential for a defective product liability claim. Roberts & Roberts focuses on helping people who have been the victim of faulty products. Contact us to […]

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How to Fire Employees Without Being Sued

Originally published by Leiza Dolghih.

notice_of_lawsuitLitigation can be expensive, disruptive to business and bad for employee morale.  The good news is that there are certain things that an employer can do before, during, and after the termination of an employee that can minimize the chances of a lawsuit arising out of the termination. In the spirit of an old proverb that advises that “an ounce of prevention is worth a pound of cure,” this article provides a list of best practices that can help avoid wrongful-termination types of lawsuits and the business interruption that comes with such litigation.

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How Hollywood Got Auto Accidents All Wrong

Originally published by Kristopher Rodriguez.

Action movies are indeed a treat to watch with their captivating scenes and insane effects. Enthusiasts and movie freaks tend to enjoy these graphic scenes as they get the adrenaline rushing and get the viewers on the edge of their seats. However, if you have ever been in a car accident personally, you must have witnessed the harsh reality. All the mesmerizing scenes on screen aren’t close to the experience of an actual car accident. Police cars hardly chase down in the huge streets and end up crashing over the cliff at the end. We have listed down some aspects that differentiate between a real accident and a simulated one in a movie.

Accident Shock

In a typical movie scene, two cars have a head-on collision with each other. But quite surprisingly, apart from a few scratches both the drivers are completely fine. In fact, they get out of their cars to face-off each other in a yelling marathon which may lead to a fist fight. In reality, the situation is drastically opposite as a person that has been in a recent car accident would confess.
Once you are in a serious crash, you’re more likely to stay still and stunned for a brief period. In such scenarios, your brain malfunctions and you forget about important details including noting down the number plate, insurance information or contact information of the other person. It’s a small trauma that requires a few minutes for you to recover from completely.

Huge Flames

A dramatic scene isn’t complete without the automobile catching fire in a car accident in the movies. Directors tend to do this to showcase the intensity of the scene. However, in reality, cars rarely sprung up huge flames on any impacts. The fuel pod is designed to be safe in emergency situations to avoid any huge mishap. Imagine if it wasn’t designed in this way, how much damage could be caused just by lighting up a cigarette in the car.

Brakes

In movies, every car has superior maneuvering capabilities with an exceptional braking system. However, in reality, the situation is quite opposite as brakes quality vary from car to car and can play a major factor in auto accidents.

Bumps on the Road

Hollywood movies have cars that are unimaginably aerodynamic and with a single bump on the road, they’ll fly straight into the air and would land onto the earth with showers of spark. Astonishingly the car maintains its speed without causing much harm to the passengers. In reality, the situation is quite opposite as a single bump is easily absorbed by the car shocks and wouldn’t cause much harm.

Air Bags

In Hollywood, airbags tend to open in slow motion during the car accident but they tend to open a bit late after the accident. It gives a few laughs to the audience however if this delayed response was observed in real life, many big auto companies would have been sued by now for negligence.
Hollywood is indeed a great place to witness drama and action. However, relating it to reality can be quite difficult at moments.

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Will Second-To-Toe Policies Become First-To-Die With Estate Tax Repeal?

Originally published by Michael Cohen.

Although it is unknown what suggested changes will be made to tax laws in light of the recent failure to overhaul the Affordable Care Act (Obamacare), President WILL SECOND-TO-DIE POLICIES BECOME FIRST-TO-DIE WITH ESTATE TAX REPEAL?Trump has often asserted that federal estate tax should be eliminated. At the present time, only estates greater than $5,490,000 (if you are single) and double that amount ($10,980,000) if you are married are subject to federal estate tax. As a result, Americans with estates that are subject to federal estate taxes often purchase second-to-die life insurance policies (since it is less expensive) to pay for the estate tax after the second of the couple dies (normally there is unlimited marital deduction after the first spouse dies).

However, if the estate tax is abolished, the use of second-to-die life insurance policies will be significantly reduced.

It is possible estate taxes could get replaced with a new capital gains tax law. If that happens the second-to-die policy could be used to pay for that capital gains tax or for income taxes. However, even if the federal estate tax is repealed, it could eventually be reinstated. So, although second-to-die life insurance policies could be on life support if federal estate tax laws are repealed, one should consider all options before letting a policy lapse.

For more information and tips on taxes click here to listen to Michael Cohens latest podcast.

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Friday, April 21, 2017

Top 10 from Texas Bar Today: Data, Catchphrases, and Nursery Rhymes

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. Why This Big Texas City Just Approved Red Light Cameras . . .Bill Berenson @LawyerFortWorth of Berenson Law in Fort Worth

9. Treasure Maps: Seismic Data in the Oil Patch and How to Protect ItGary Sorden of Klemchuk LLP @K_LLP in Dallas

8. Silicon Valley Wage Gap Lawsuits to Visit the Petro Metro?Bush Law Firm in The Woodlands

7. Fifth Circuit Reverses Summary JudgmentThomas J. Crane of Law Office of Thomas J. Crane @tomjcrane in San Antonio

6. Texas Court Finds No Expectation of Privacy in Cell Phone Records, Location DataJohn T. Floyd of John T. Floyd Law Firm @HoustonDefender in Houston

5. Houston, we’ve had a problem – Compliance Leadership from the Bottom –  Thomas Fox of TomFoxLaw @tfoxlaw in Houston

4. I Know You Were Hurt at Work, But That Was Not Your Job! – Kristopher Rodriguez of Herrman & Herrman @herrmanlawfirm in Corpus Christi

3. Texas Taco Company Sues Over Alleged Infringement of its CatchphraseThe Kumar Law Firm PLLC in Austin

2. This Jury Did Their City, and the Justice System, ProudKacy Miller @CourtroomLogic of CourtroomLogic Consulting, LLC in Dallas

1. One, Two, Buckle My Shoe – Professor Amy Jarmon, Assistant Dean for Academic Success Programs at Texas Tech University School of Law @TTU_Law in Lubbock

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Proving Lost Profits in a Trade Secrets Case – An Expensive Lesson from a Texas Court of Appeals

Originally published by Leiza Dolghih.

think memeWhat the jury giveth, the judge may taketh away. Memes aside, any company that is thinking of filing a trade secrets misappropriation case, must be ready to prove both: that its trade secrets were taken and the amount of damages that the taking caused.

A recent ruling from the Dallas Court of Appeals demonstrates how a company’s verdict can be taken away by the court due to the party not having sufficient evidence of damages. 

In Radiant Financial v. Bagby, the company, which structures and sells fractional interests in life insurance policies referred to as life settlements, sued its former sales agent for breaching her non-disclosure agreement and trade secrets misappropriation.  Radiant alleged that Bagby persuaded 19 investors who had previously placed money into escrow with Radiant, to take their money out and invest it with a Radiant’s competitor.  In the process, she allegedly provided some of Radiant’s proprietary forms and the information filled out by the investors to Radian’t competitor.

The jury awarded Radiant $152,916 in damages, $150,000 in punitive damages, and $600,000 in attorneys fees in response to the question to “[c]onsider the profit that Radiant Financial lost” as a result of Bagby’s failure to comply with her non-disclosure agreement and misappropriation of Radiant’s trade secrets.  

The trial court, however, refused to award these damages after concluding that Radiant did not prove that the 19 investors that left would have invested with it but for Bagby’s actions. 

During  the trial, Bagby introduced evidence that: (1) the 19 investors had specific investment requirements; and (2) at the time when they left Radiant, it offered no policies that met these investors’ requirements. Radiant argued that its track record showed that it “had always been able” to find appropriate policies for its investors.  Thus, it would have been able to find appropriate policies had Bagby not taken the investors to a competitor.  The trial court rejected Radiant’s lost profits damages model finding that it would require the court to “stack assumption upon assumption,” and took away the jury damages award.  The Dallas Court of Appeals upheld the court’s decision.

Bottom Line:  Before filing a trade secrets case, the company bringing the lawsuit should always consider the following questions: (1) what damages did it suffer? (2) how does it calculate such damages? (3) how can it prove such damages in court?  While the answer might not be obvious in the beginning of the lawsuit, waiting to ask such questions until the lawsuit is well underway can result in the company spending thousands of dollars in attorney’s fees on a lawsuit where the monetary damages are speculative or non-existent.

Leiza litigates non-compete and trade secrets lawsuits in a variety of industries, and knows how such disputes typically play out for both parties. If you need assistance with a non-compete or a trade secret misappropriation situation, contact Leiza for a confidential consultation at LDolghih@GodwinLaw.com or (214) 939-4458. 

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Discounts, deals, and seasonal savings

Originally published by Staff Report.

Visit your Beneplace discount website for fresh deals and spring savings! Bookmark the site and check back regularly for new offers, limited-time promotions and seasonal savings.

Beneplace has new offers to help you get fit and lose weight. Whether you’re a recreational rider or a competitive cyclist, you’ll enjoy the style, performance and comfort of a Raleigh bike—save 40%. Enjoy exclusive discounts of 15% or more on Striiv Fitness Trackers, including the Fusion Lite, the Fusion, and the Fusion Bio. Anytime Fitness is ready to help you crush your 2016 fitness goals! Enjoy $0 enrollment and discounted monthly membership dues.

The weather is great for camping—get going with new offers from Beneplace. Cabela’s is the world’s largest direct marketer and leading retailer of hunting, fishing, camping and outdoor gear. Purchase Cabela’s gift cards and eGift cards for 6% below retail value. Originally designed to provide relief and safety at night in areas of the world hit by natural disasters, LuminAID has gone on to become a reliable source of light for any nighttime occasion. When charged outside in direct sun for seven hours, these lanterns can provide up to 16 hours of LED light. Save 10% sitewide.

The new deals keep on coming! Save 20% on luxurious linens from BedVoyage—their Rayon from Bamboo bedding is soft, hypo-allergenic and thermo-regulating. Available at no cost to you, SAS Curriculum Pathways provides interactive tools, resources and apps in the core disciplines for grades K-12.

Current offers provided by Beneplace.

For more information on other discounts you’re eligible for as a member of the State Bar of Texas, visit http://ift.tt/1cS7Rdr.

Texas Bar Private Insurance Exchange
The Texas Bar Private Insurance Exchange is a multi-carrier private exchange designed for State Bar of Texas members and their staff and dependents. Available to both individuals and employer groups, the exchange offers a wide range of health insurance choices and more.

State Bar of Texas – Benefits & Services

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Fifth Circuit Reverses Summary Judgment

Originally published by Thomas J. Crane.

The Fifth Circuit reversed summary judgment in another case recently. In Caldwell v. KHOU-TV Company, Inc., No. 16-20408 (5th Cir. 3/6/2017), the court addressed ADA and FMLA issues. Gerald Caldwell worked at KHOU TV as a video editor. Due to a childhood disease, he needed the aid of crutches for walking. Mr. Caldwell notified his supervisor he would need time off for upcoming surgeries.

About that time the parent company, Gannett Company notified KHOU that the station needed to reduce their work force. One worker was chosen for lay-off based on documented poor work performance. That editor was given prior warning about his performance. Mr. Caldwell received no such warning. Mr. Caldwell was also chosen. The supervisors initially said he was chosen because he had expressed an unwillingness to work in EDR. Later, in its motion for summary judgment, the employer argued that Mr. Caldwell had not taken the initiative to spend as much time in EDR as the other editors.

Mr. Caldwell filed suit based on the ADA and the FMLA. The employer moved for summary judgment, which was granted. On appeal, the Fifth Circuit reversed the summary judgment. The court found there was substantial evidence of pretext. The employer provided different reasons for selecting Mr. Caldwell for the RIF. The employer first claimed Mr. Caldwell shirked his responsibilities by refusing to do the EDR work he had been assigned. The employer provided this expansion in answer to interrogatories and in a letter to Plaintiff’s attorney. But, in a letter to the EEOC, the employer said he was terminated not because he avoided work, but because of his inability and unwillingness to adjust to new technologies. And, before the district court, KHOU argued that Caldwell did not take the initiative to spend as much time in EDR as other editors. And, contrary to all this evidence, the direct supervisor, Philip Bruce, said “absolutely” there were no job performance issues with Mr. Caldwell. These statements, said the higher court, indicated inconsistent explanations, so as to show genuine issue of material fact.

The lower court had looked at the same evidence and discounted it. The district judge found that many of these statements were not made by Mr. Bruce, the direct supervisor. But, the court of appeals noted that no precedent required that all explanations emanate from the direct supervisor. On the contrary, many cases cite articulated reasons from the employer as a whole. The court cited Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408 412-13 and n. 11 (5th Cir. 2007) for the proposition that simply stated, an employer’s inconsistent explanations for its employment decisions at different times are probative of whether those statements are pretextual and that cases do consider statements by the employer’s representatives before the EEOC, before the district court and the Fifth Circuit. And, that makes sense. The employer sues the “employer,” after all, not individual supervisors.

The higher court noted that the employer’s explanation had evolved from insubordination to a lack of initiative. Mr. Caldwell himself denied ever expressing a preference for or against EDR. The plaintiff’s supervisors also confirmed they did not recall the plaintiff ever expressing a preference against working in EDR. The employee also testified, and the supervisors confirmed, that it was ultimately the employer’s decision to limit his time in EDR, suggesting the employer was not truthful.

[Note: It is always unwise to try to mislead the court. Judges remember that. It will affect the rest of their decisions. That the supervisors apparently disagreed with the company’s  representative seriously undermines any case.]

The higher court also discussed the lack of opportunities for the disabled worker. The court compared not affording employment opportunities to black workers to not providing opportunities to Mr. Caldwell. The plaintiff had argued that the employer chose not to schedule him time in EDR. The lower court had found that he was not scheduled more time in EDR due to his disability. The Fifth Circuit found that lack of opportunity comparable to a case, Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990), in which an African-American woman was not given the chance to improve her work performance, because the employer did not counsel her about performance problems. In Caldwell, the court said this situation was similar because KHOU did not give Mr. Caldwell time to work in EDR and improve his technical abilities. This lack of time also indicated that the employer did not counsel Mr. Caldwell and warn him that he should spend more time in EDR.

The higher court also reversed summary judgment regarding Plaintiff’s FMLA claim. See the decision here.

This is the last in a series of cases dating back some three years in which the Fifth Circuit has reversed summary judgment. The most common problem in that line of cases is the failure of the district court to construe facts in favor of the plaintiff. We hope district judges will make more of an effort to construe facts in favor of the non-movant, as they should.

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Will Signed Before Marriage Doesn’t Make Provision for Spouse

Originally published by Rania Combs.

A widow contacted me this week. Her husband of 19 years had recently passed away. She found a Will he had signed before they met leaving everything to his mother. He didn’t sign a new Will after they were married. She wondered what her inheritance rights were.

Some states have pretermitted spouse statutes. The statutes provide that if a person marries after making a Will that omits his or her spouse, the surviving spouse will inherit a share of the estate equal to that which the surviving spouse would have received if the testator had died intestate.

Texas does not have a pretermitted spouse statute. In Texas, marriage does not invalidate a valid preexisting Will. If you make a Will before you get married, and would like your new spouse to be your beneficiary, it is important that you update your Will.

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Why This Big Texas City Just Approved Red Light Cameras . . .

Originally published by William K. Berenson.

Document. . . But Texas Is Trying To Ban Them

The Dallas City Council voted to renew the city’s contract for red light cameras last week just after the Texas Senate voted to eliminate them. At least 40 cameras, quite a bit fewer than the 66 first authorized when the program began 10 years ago, will be in place at dangerous intersections.

Although some Dallas residents objected for various reasons, council members pointed to a 47 percent decrease in car accidents at the camera-enforced intersections to back their decision.

Texas Lawmakers Want to Put the Brakes on Red Light Cameras

These cameras have been controversial since they made their appearance in Texas a decade ago. Some towns have gone so far as to pass referendums, including in Arlington where residents voted to remove them.

Two years ago the Texas House passed a bill to end red light cameras but it died in the Senate. So the practice of ticketing people through the mail continues across the state.

A new bill has been filed in the Texas Senate to ban red light cameras across the state, excepting on toll roads. Another bill filed would prevent counties from refusing registration of a vehicle based upon too many red light tickets, which is the policy in Dallas. The Senate bill now moves to the House for approval.

Why Red Light Cameras Are a Good Idea

Red light cameras have plenty of supporters. I’m one of them. As an injury lawyer who has seen hundreds of automobile crashes over my career, the evidence points to their effectiveness in reducing them.

Not convinced? Officials installed 58 cameras at 44 of the most dangerous intersections in Fort Worth. Crashes at these locations have fallen by an incredible 58 percent since 2008 when the program began.

Other local cities have found similar results: Frisco’s crashes fell by 51 percent, Plano reported a 50 percent drop, and Dallas claimed a 47 percent decrease. It’s obvious these cameras prevent car wrecks.

Why Legislators Oppose Use of Red Light Cameras

The Texas Transportation Code section that authorizes the cameras has procedural safeguards. But some people argue that innocent drivers are wrongfully accused. Of course we don’t want an innocent driver to be ticketed for something he didn’t do. Perhaps tightening up the statute and adding better equipment, maintenance, and internal checks will solve the occasional problems.

Other opponents claim the cameras invade privacy. What’s the difference whether a patrol officer or a camera catches a red light runner?  Human error happens frequently in the identification process in court. Further the positioning of the cameras on top is an angle an officer at ground level would have trouble replicating. And that doesn’t factor in the costs of police officers sitting there on the side of the road and later testifying in court.

Still others use studies that show an increase in accidents at photo-enforced intersections. A driver is warned in advance that a camera awaits. It’s true that some drivers are more likely to slam on their brakes at intersections with cameras. But that’s usually because the drivers behind are tail-gating, trying to blow through the intersection, and should slow down too.

The number of accidents prevented outweighs the number blamed on the cameras. If it takes the threat of a $75 ticket — not the reality of thousands of dollars of medical bills and lost wages, that’s fine with me. Public safety should be our number one priority.

Some supporters in Fort Worth also pointed to the $8.9 million dollars in revenue the cameras generated last year. Wow, that’s a lot of people running red lights and willing to get into wrecks, right?

But I’m more impressed with the potential for lives saved and injuries avoided. As the Visa commercial says, that’s priceless.

You Might Also Be Interested In This:

Controversial Red-Light Cameras To Be Outlawed

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Fee award affirmed in Texas’s Obergefell case

Originally published by David Coale.

In DeLeon v. Abbott, the Fifth Circuit affirmed an award of $585,470.30 in attorneys’ fees and $20,202.90 in costs arising from the Texas counterpart to Obergefell v. Hodges, 135 S. Ct. 2584 (2015). The panel majority observed that “the essential goal in shifting fees (to either party) is to do rough justice,” and that as a result, “[w]e can hardly think of a sphere of judicial decisionmaking in which appellate micromanagement has less to recommend it.” A dissent, observing that “deference is a blank check,” approved of the bulk of the award but took issue with it as to time spent on (a) an unsuccessful third-party motion to intervene; (b) interacting with the media; and (c) coordinating with supportin amici. No. 15-51241 (April 18, 2017, unpublished).

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Creating a Valid Postnuptial Agreement in Texas

Originally published by Family and Criminal Law Blog.

How might a postnuptial agreement help to protect my assets?

In the midst of romance, many couples do not draft a prenuptial agreement before their wedding.  Without a prenup in place in Texas, all property that you and your spouse acquire will be considered community property that is generally divided equally between the two of you in the event of a divorce.  Even if you decided to forego a prenuptial agreement, you may be able to separate some or all of your property from that of your spouse with a valid postnuptial agreement.

What Is A Postnuptial Agreement?

A postnuptial agreement is much like a prenuptial agreement, but it is executed after a couple is already married.  A postnup is a written agreement in which the parties declare that they have voluntarily decided to divide their assets and property in the event of divorce or death.  Postnuptial agreements are authorized under the Texas Family Code, Section 4.101 et seq.  By creating such an agreement, the spouses can partition or exchange community property between themselves.  A postnuptial agreement will often also define what property a party brought into the marriage and what property they intend to keep as separate property.

Benefits of a Postnuptial Agreement

There are numerous potential benefits to a postnuptial agreement.  Just like a prenup, drafting this agreement is an excellent way to broach the often difficult topic of finances.  A postnup may be critical if you significantly out-earn your spouse, your spouse has many debts, or you brought extensive assets into the marriage.  It can also help to protect any children from prior marriages and provide security for you if the marriage is troubled.  With the assistance of an experienced Texas family law attorney, you and your spouse can craft a postnup that protects both of you in case of divorce and does not lead to marital strife.

Requirements of a Postnup

To be valid under Texas law, a postnuptial agreement must be in writing and signed by both parties with express acknowledgment of its terms.  A party can attack the enforceability of the postnup if it was not signed or was signed involuntarily.  It could also be rendered unenforceable if the parties did not provide a full and accurate disclosure of their assets and financial obligations.  Entering into a postnuptial agreement is an important step and spouses considering creating or signing a postnup should consult with a family law attorney as soon as possible.

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Googling Your Jury (Part 1)

Originally published by Kacy Miller.

The Internet provides a treasure trove of information about pretty much anything we can imagine… including potential jurors. Time and resources permitting, it’s becoming standard practice to “Google” the panel (i.e., scour their online presence). Unless, of course, the judge or local rules prohibit (or strongly discourage) doing so.

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Final Exam Prep: Lessons from the Hudson River Crash – Pilot or Passenger?

Originally published by lawschool academicsupport.

Over the years, I’ve seen many students struggle in preparing for final exams, particularly with uncertainty about how best to prepare. Without exception, that leads to a question. In the past, how have you learned to solve problems? And, without…

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New Uber Policy Limits Car Wreck and Injury Claims

Originally published by Anderson Law Firm's Injury Blog.

Uber, the transportation company based in San Francisco, California, has designed a new policy that limits the right to sue the company in the event of personal injury claims resulting from car accidents. The new policy is aimed to protect Uber and its interests from being liable from any accident involving the Uber driver, a passenger in an Uber ride, or another party injured from the negligence of an Uber driver.

While this policy is designed to protect Uber from any personal injury lawsuits, it can make it very difficult for victims that have received personal injuries from an Uber car wreck in filing suit and receiving compensation for their injuries.

New Liability Limitations

According to their recent policy update, specifically the subsection “Limitation of Liability” under the section “Disclaimers; Limitation of Liability; Indemnity”, notes that Uber will not be held liable for any damages, including personal injury or property damage, resulting from the negligence of Uber.

Also, in the subsection “Indemnity”, an individual using Uber to hold “Uber and its affiliates…harmless from any and all claims, demands, losses, and liabilities”, in addition to any attorneys’ fees. Also, the individual who chooses to use Uber acknowledges that they waive the right to a trial.

Can I Still File a Lawsuit Against Uber?

While the new policy can appear as eerie and can alienate people who would otherwise want to use Uber and its services, there is always the possibility of a personal injury lawsuit being filed against the transportation company. Even though the user contract states multiple limits in liabilities, these can be challenged and overturned in a court of law.

This means that while the policy is in place, if it in anyway causes significant indemnification to a victim of a car accident, such as wrongful death or severe personal injuries, then the party of the injured individual (or multiples parties) can file suit to demonstrate that Uber and/or their driver was driving in a way that purposely or recklessly placed the lives of the passengers in grave danger.

Essentially, there has to be significant evidence from the plaintiff’s legal team to place the court in an understanding position.

Should I Still Use Uber?

Although the new policy may seem distancing, it is important to remember that Uber, like any company or business, has the need to protect itself from lawsuits. Many popular companies (i.e. Apple, Samsung, Dell, etc.) have user contracts and laws that protect them from being liable in a car accident law suit. Without user contracts, people could be suing companies left and right without any reasonable cause!

On the other hand, using a service that has multiple legal contracts and clauses may be a reluctant thing to do. It is important to review these statutes in order to be fully informed as to what the consequences may be in the event of a personal injury event, and to know what steps you can (or cannot) take.

Consulting with a personal injury attorney, contract attorney, and/or civil procedures attorney may be a good step to take if you have any questions with regards to a company’s user contract. At the end of the day, it is always best to be informed!

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Thursday, April 20, 2017

Texas Court Finds No Expectation of Privacy in Cell Phone Records, Location Data

Originally published by John Floyd.

On April 12, 2017, the Texas Court of Criminal Appeals ruled that Article I, Section 9 of the Texas Constitution does not provide broader privacy rights than the Fourth Amendment to the U.S. Constitution.

 

The case involves G. Jerard Hankston who was convicted of the murder of a man that had been stalking his girlfriend for several months. The conviction led to a 20-year prison sentence.

 

Cell Phone Records and Location Data Help Secure Conviction

 

During the investigation of the stalker’s murder, law enforcement authorities secured Hankston’s cell phone records—call logs and cell site location information—from his carrier, Sprint. The officers did not have a warrant. They proceeded under Article 18.21 of the Texas Court of Criminal Procedure which allows law enforcement to request, and upon proper showing, secure a court order requiring a cell phone provider to disclose electronic customer data.

 

Through a sealed application for the § 18.21 court order, law enforcement said it believed that Hankston’s cell phone records would “assist [the] investigation by providing information as to who [Hankston] was in contact with on the date of the Complainant’s murder … [and] will also aid in proving/disproving the defendant’s whereabouts before and after the murder.”

 

Sprint surrendered the records which eventually led to Hankston’s arrest and subsequent conviction for murder.

 

Motion to Suppress Cell Phone Records

 

Prior to trial, Hankston’s attorney filed a motion to suppress the cell phone records. The State stipulated that the records had indeed been obtained without a warrant. The State, however, argued that§ 18.21 permitted law enforcement authorities to obtain those records with only a court order—and in this case the court had ordered Sprint to disclose Hankston’s cell phone records for the previous twelve months.

 

Hankston’s attorney, on the other hand, argued that the records were obtained in violation of the Fourth Amendment and Article I, Section 9 of the Texas Constitution. He also argued in the context of cell phone records as those sought and secured by law enforcement involving Hankston, the Texas Constitution provides “greater protection than the Fourth Amendment under these facts.”

 

The trial court denied the motion, finding no constitutional or statutory violation under either federal or state law or constitutions had occurred.

 

No Reasonable Expectation of Privacy for Location Data

 

Hankston’s attorney appealed to the Fourteenth Court of Appeals following his client’s conviction. That court on June 16, 2015 held:

 

“Appellant cannot successfully claim that the State’s acquisition of his cell tower records from Sprint violated his reasonable expectation of privacy. The cell site records acquired by the State are simply business records memorializing appellant’s voluntary subscriber transaction with Sprint for the service he wanted from his cellular provider, i.e. the ability to transmit and receive data on Sprint’s network of cell towers. The fact that this data happens to reveal the general location of appellant’s cell phone, and presumably appellant himself, at given points in time is of no consequence to the legal analysis. The State’s action did not violate appellant’s Fourth Amendment right because he could not have a reasonable expectation of privacy in information he voluntarily conveyed to a third party.”

 

No Reasonable Expectation of Privacy in Cell Phone Records

 

The Texas Court of Criminal Appeals agreed; specifically, that the Fourth Amendment does not provide a reasonable expectation of privacy in an individual’s cell phone records maintained by a service provider. The only question remaining was whether such a reasonable expectation of privacy could be found under Article I, Section 9 of the Texas Constitution. In rejecting Hankston’s claim, the appeals court cited two of its recent decisions involving cell phone-related searches: Love v. State and Ford v. State.

 

In Love, the court held that an individual does not have a “privacy right” to numbers dialed on their cell phones and that cell phone records, such as call logs and cell site locations, are not “constitutionally protected” under the Fourth Amendment. In Ford, the court held that an individual has “no legitimate expectation of privacy in records held by a third-party cell-phone company identifying which cell-phone towers communicated with his cell phone at particular points in the past.”

 

Essentially, the court held that cell phone records maintained by a service provider are “business records” that do not enjoy constitutional protection; that their disclosure is governed by statutory provisions and procedures. The court then concluded:

 

“Since we have long held that the Fourth Amendment and Art. I, § 9 both protect the same right to the same degree, and since we have recently held that the Fourth Amendment does not restrict law enforcement from obtaining cell phone records revealed to a third party, we come to the logical conclusion that Art. I, § 9 does not restrict law enforcement from obtaining cell phone records revealed to a third party.”

 

So much for privacy in the great state of Texas.

 

 

 

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Treasure Maps: Seismic Data in the Oil Patch and How to Protect It

Originally published by Gary Sorden.

Seismic data has long been considered highly-valuable in the oil and gas industry. So much so that people in the industry often call seismic data […]

The post Treasure Maps: Seismic Data in the Oil Patch and How to Protect It appeared first on Klemchuk LLP.

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Client Development: 3 Essential Points on Writing for Client Development

Originally published by Cordell Parvin.

If I have coached you, or you are a regular reader, you know I owe a great deal of my client development success to my writing. It worked well for me and I am confident if you follow my thoughts below it will work well for you also.

Writing articles and blogs is a great way to raise your visibility and credibility with your potential clients. If you are planning to use this tool, keep these three essential points in mind:

  1. Select a topic that your clients and potential clients care about. (I spent more time selecting a topic than I spent writing the article.)
  2. Write it so they will actually read what you have written. (I spent more time deciding on the title and writing the first paragraph than I spent writing the rest of the article)
  3. Use social media as one tool to get as wide a distribution as possible. (I didn’t have this tool for distribution, but you do have it. Use it)


It is that simple, yet many, if not most, lawyers do not do all three well.

They spend little time thinking of the topic. Then they decide on a lame title that does not capture the reader’s attention. If you would like to learn more about writing and speaking to get hired, check out my  video program and workbook.

P.S. I want you to try these three points. Help me write a blog post for lawyer readers. Pick a topic for a future blog post, then create a title you think would attract lawyer reader. If you have the time, write the first paragraph for me. If I select your topic, title and first paragraph, you can have access to my Video Coaching Program and Workbook.

 

The post Client Development: 3 Essential Points on Writing for Client Development appeared first on Cordell Parvin Blog.

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EPA Announces Methane Rule Reconsideration, Adding to List of Obama-Era Rules Under Review

Originally published by Energy Legal Blog ®.

On April 18, 2017, U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt announced that the EPA will convene a proceeding for reconsideration of certain elements of the 2016 rule establishing methane emissions standards for the oil and gas industry (“Methane Rule”). The Methane Rule applies to oil and gas facilities for which construction, modification, or reconstruction started after September 18, 2015. See 40 C.F.R. Part 60, Subpart OOOOa (40 C.F.R. § 60.5360a et seq., adopted at 81 Fed. Reg. 35824 (June 3, 2016).

Environmental Strategies
Whit Swift, Brittany Pemberton
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