Thursday, July 20, 2017

Noncumulation Clause Results in “All Sums” Allocation for Long-Tail Environmental Liabilities

Originally published by Kevin Merriman.

By David M. Knapp, Ward Greenberg Heller & Reidy LLP

Applying the New York Court of Appeal’s landmark Viking Pump decision for the first time, the Second Circuit recently held that an “all sums” allocation applied to policies issued to Olin Corporation by OneBeacon American Insurance Company in a long-tail environmental coverage dispute. Olin Corp. v. OneBeacon A. Ins. Co., 2017 U.S. App. LEXIS 12939 (2d Cir. July 18, 2017). In accordance with Viking Pump, the Second Circuit held that an “all sums” allocation must be applied, because the policies contained the following noncumulation and continuing coverage provisions (“Condition C”):

It is agreed that if any loss covered hereunder is also covered in whole or in part under any other excess policy issued to the Insured prior to the inception date hereof, the limit of liability hereon . . . shall be reduced by any amounts due to the Insured on account of such loss under such prior  insurance.

Subject to the foregoing paragraph and to all other terms and conditions of this Policy in the event that personal injury or property damage arising out of an occurrence covered hereunder is continuing at the time of termination of this Policy, [OneBeacon] will continue to protect the Insured for liability in respect of such personal injury or property damage without payment of additional premium.

Id. at *9. According to the Court, “Condition C permits an insured to pursue full recovery from any insurer in its program whose policy covers the relevant loss and contains Condition C irrespective of whether the insurer’s policy was issued at the beginning, in the middle, or towards the end of the continuing occurrence.” Id. at *45.

The court also held that the noncumulation provision of Condition C also has the effect of reducing the limits of a triggered policy by the amount of coverage afforded under any policy within the same layer of coverage for a prior year. Id. at *46 (“This provision allows the insurer to offset its indemnification obligations by amounts already paid to cover the loss by another insurer in the same coverage tier.”). However, the Court noted that it would be the insurer’s burden to “prove its entitlement under this contractual provision.” Id. at *47.

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Client Development: Have You Learned How To…?

Originally published by Cordell Parvin.

Wow, this is my last post from San Miguel de Allende. Tomorrow I will meet with Martha from 11:00 to 1:00. Then a car will pick me up and take me to a Leon Airport hotel. On Saturday, I will catch a 6:00 AM flight and I’ll be home before 9:00.

Have I learned Spanish in four weeks? No, I wouldn’t be able to tell you about anything I did in the past or anything I will do in the future, as I only know the present tense of verbs. Also, my son-in-law (yerno en espaƱol) will tell me I still speak Spanish like a gringo. It’s going to take a lot of listening and speaking out loud to hopefully one-day pronounce words and sentences correctly.

But, there is hope. While here, I decided to research why Selena was so popular. I found a website, 20 Reasons Selena Quintanilla Will Never Be Forgotten. There, I discovered that when she died. thousands of her fans remember what they were doing, like those of us who were alive when President Kennedy was assassinated.

More importantly, I learned: Selena didn’t actually speak Spanish at the beginning of her career. Her father, Abraham Quintanilla taught her to sing in Spanish — learning lyrics phonetically — so she could resonate with the Latino community.

I have the video of her last concert from the Houston Astrodome on my iPad. Her Spanish, including, pronunciation es excelente. So,…maybe there’s hope for me.

Ok, enough about me. let’s focus on you. While here learning, I’ve been thinking about your learning.

Have you learned how to:

  1. Create a Business Plan?
  2. Determine goals that will challenge and stretch you?
  3. Determine what activities to undertake to meet your goals?
  4. Find articles and other materials about your clients’ industries and their company?
  5. To write articles, blog posts and guides and give presentations and webinars that will enhance your reputation and increase your chances of getting hired?
  6. Develop a Focused Contacts Plan so you focus on your best contacts?
  7. Determine what your clients want and expect?
  8. Get business without appearing to be needy or greedy?
  9. Build trust and rapport?
  10. Become more client focused?
  11. Hold yourself accountable?
  12. Develop the young lawyers on your team, so they can be trusted by your clients?

Here is a short clip from the video coaching program I created for lawyers.

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Trademark Registration Can Help You Grow Your Brand and Company

Originally published by Klemchuk LLP.

Many brand owners, entrepreneurs, and company executives underestimate the value of trademark registration.  Trademarks can play an important role in growing your brand or company […]

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Indemnification Agreements – The Basics

Originally published by Klemchuk LLP.

Indemnification agreements create a express contractual obligations for one party to protect another party from loss or injury.  41 Am. Jur. 2d Indemnity § 1. […]

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Is Unauthorized Construction/Demolition Performed by a Tenant Covered Damage Under a First-Party Property Policy?

Originally published by Kevin Pollack.

If a homeowner agrees to sell a home, and as part of the sale agreement allows the prospective buyer to: (1) lease the property before escrow is closed, and (2) make certain improvements to the property with the owner’s permission, but then, after taking possession during the lease, the prospective buyer tears the property down…… Continue Reading

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Wonder Woman

Originally published by The Movie Court.

The Movie Snob gets to the party late.

Wonder Woman  (B).  This movie has been riding high at the box office, so everyone who’s going to see it has probably already done so.  Anyhoo, I finally got around to seeing it, and I liked it just fine.  The plot struck me as kind of wacky–the Greek god of war Ares is supposedly a real being (god?) and he is out there on the loose stoking mankind’s warlike passions.  The Amazons are hiding out on some paradisiacal Mediterranean island, but when American WWI pilot Steve Trevor (Chris Pine, Into the Woods) crash lands just off shore and brings tidings of the carnage of total warfare, beautiful Amazon princess Diana (Gal Gadot, Batman v. Superman) decides she must leave the island with him so she can track down and kill Ares.  There is some amusing fish-out-of-water stuff as Diana makes her way through old-fashioned WWI-era London.  Then there are some mean Germans that Steve and Diana have to confront (at the front) in the final reel.  All in all, this is a perfectly competent and enjoyable superhero movie, and it didn’t even feel long at 2 hours and 21 minutes.  And I must say that Gal Gadot is, like, supernaturally beautiful in the role of Wonder Woman.  I certainly noticed her in her small role in Batman v. Superman, but here she just owns the screen.  If I were caught up in her magic lasso, I might even have to say she’s more beautiful than Nicole Kidman.

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Religious reference not reversible.

Originally published by David Coale.

Abdul Khan had a dispute with a contractor about the design of a stone medallion for the foyer for his new home. The dispute went to trial and the following Q-and-A occurred during examination of a witness for the contractor:

Q. Okay. And did you have a conversation with them about whether or not you could duplicate one of those medallions?

A. Yes, and I repeated that — They — They repeated to me that this was only a design that they were interested in because they did not want cherubims and angels because — what I surmised by that was for religious readons and —

[Khan’s counsel] Objection; relevance.

THE COURT: Sustained.

Khan argued that this exchange was an attempt to appeal to religious prejudice by identifying him as a Muslin. The Fifth Court agreed that the comment was improper, as “[c]ourts in this state have long recognized that a person’s religious beliefs have no place in determining the merits of a dispute,” but found that “[t]his single reference to Khan’s religion was not extreme” as to amount to incurable error. Khan v. The Chai Road, Inc., No. 05-16-00346-CV (July 17, 2017) (mem. op.)

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Texas Bankruptcy Exemptions

Originally published by Allmand Law Firm, PLLC.

Considering filing for
Chapter 7 or
Chapter 13 bankruptcy in Texas? You may have several questions about how the process
works and how it will affect your financial future. Many people assume
that filing for bankruptcy will cost them everything they own, but there
are in fact several protections available to help filers keep more of
their property or pay less to unsecured creditors. These protections are
contained within Texas exemption laws.

What is a Bankruptcy Exemption?

When an individual files for bankruptcy, everything they own as well as
anything to which they are entitled becomes part of an estate. A trustee
can sell all estate property to repay creditors in a Chapter 7 case; in
a Chapter 13 case, a filer would be obligated to pay into their plan at
least what their creditors would have received in a Chapter 7 filing.
Thankfully, there are some state
bankruptcy exemptions when it comes to taking property out of an estate (these are separate
from the list of federal exemptions). If a married couple files for bankruptcy
jointly, they can even double their exemption amount for jointly-owned property.

Texas offers the following exemptions:

  • Homestead exemption: Residences on 100 acres or less in the country or 10 acres or less in
    a city are exempt. If the house is sold, the proceeds are exempt for six
    months after the sale.
  • Personal property exemptions: Up to $100,000 worth of property ($50,000 if a single adult without a
    family) can be exempt. Items that can be exempt include sporting equipment,
    up to two firearms, family heirlooms, home furnishings, animals, clothing
    and food, burial plots, health aids, health savings accounts, and jewelry
    (limited to one-quarter of the exemption).
  • Motor vehicle exemption: A filer can exempt the entire value of one vehicle per licensed member
    of their household.
  • Retirement account/Pension exemption: The majority of tax-exempt retirement accounts and pensions will be exempt
    in bankruptcy.

Experience, Reputation, Dedication: Top Quality Legal Counsel in Dallas/Fort
Worth & Northern Texas

Have further questions about which bankruptcy exemptions you may be able
to claim? Consult with a Dallas bankruptcy attorney at Allmand Law Firm,
PLLC today! Attorney Reed Allmand, who is certified in Consumer Bankruptcy
by the Texas Board of Legal Specialization, takes pride in helping good
people obtain the fresh financial start they need to enjoy a better future.
As one of the largest bankruptcy filing firms in the state of Texas and
with thousands of happy clients, you can feel confident entrusting your
case to our care.

Learn more about how we can assist with your Chapter 7 or Chapter 13 bankruptcy
by calling (214) 238-9608.
Consultations are available free of charge!

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Will Former Spouse Inherit Bank Account if Named as P.O.D. Beneficiary?

Originally published by Rania Combs.

I received a note recently from someone whose brother had recently passed away. Her brother was divorced and had no children. He was survived by four siblings. Both his parents were deceased. His savings account designated his ex-wife as the P.O.D. beneficiary.

The author wondered whether the ex-wife would inherit the money in the account.

The Texas Estates Code provides that if after a decedent designates a spouse as a P.O.D. beneficiary on a P.O.D. account or other multiple-party account, the decedent’s marriage is dissolved by divorce, annulment, or a declaration that the marriage is void, the designation provision on the account is not effective as to the former spouse unless:

  1. the court decree dissolving the marriage designates the former spouse or the former spouse’s relative as the P.O.D. payee or beneficiary;
  2. the decedent redesignated the former spouse or the former spouse’s relative as the P.O.D payee or beneficiary after the marriage was dissolved; or
  3. the former spouse or the former spouse’s relative is designated to receive the proceeds or benefits in trust for, on behalf of, or for the benefit of a child or dependent of either the decedent or the former spouse.

If none of those exceptions exist, then the alternate beneficiary will inherit, or if no alternate beneficiary is named, then the funds would be distributed as part of the deceased person’s estate.

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Survivor Advice: Words from Successful Bar Takers

Originally published by lawschool academicsupport.

Yearly, I ask former students who successfully passed the bar exam to share last minute advice with bar exam studiers gearing-up to sit for the bar exam. I look to individuals who have recently successfully passed the bar exam because…

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Second Circuit Decision Applying Fifth Amendment to Foreign Compelled Testimony

Originally published by Jack Townsend.

The Second Circuit issued an important decision today dealing with the use — directly or indirectly — of testimony compelled by a foreign government in a U.S. criminal case.  United States v. Allen, ___ F.3d ___ (2017), here. This is not a tax prosecution, but the holding could apply in all U.S. prosecutions, tax or otherwise, where foreign compelled testimony is used.

The opinion is very long and very good.  The Court’s summary of the opinion is:

 This case—the first criminal appeal related to the London Interbank Offered Rate (“LIBOR”) to reach this (or any) Court of Appeals—presents the question, among others, whether testimony given by an individual involuntarily under the legal compulsion of a foreign power may be used against that individual in a criminal case in an American court. As employees in the London office of Coƶperatieve Centrale Raiffeisen‐Boerenleenbank B.A. in the 2000s, defendants‐appellants Anthony Allen and Anthony Conti (“Defendants”) played roles in that bank’s LIBOR submission process  during the now‐well‐documented heyday of the rate’s manipulation. Defendants, each a resident and citizen of the United Kingdom, and both of whom had earlier given compelled testimony in that country, were tried and convicted in the United States before the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge) for wire fraud and conspiracy to commit wire fraud and bank fraud.
While this appeal raises a number of substantial issues, we address only the Fifth Amendment issue, and conclude as follows.

First, the Fifth Amendment’s prohibition on the use of compelled testimony in American criminal proceedings applies even when a foreign sovereign has compelled the testimony.

Second, when the government makes use of a witness who had substantial exposure to a defendant’s compelled testimony, it is required under Kastigar v. United States, 406 U.S. 441 (1972), to prove, at a minimum, that the witness’s review of the compelled testimony did not shape, alter, or affect the evidence used by the government.

Third, a bare, generalized denial of taint from a witness who has materially altered his or her testimony after being substantially exposed to a defendant’s compelled testimony is insufficient as a matter of law to sustain the prosecution’s burden of proof.

Fourth, in this prosecution, Defendants’ compelled testimony was “used” against them, and this impermissible use before the petit and grand juries was not harmless beyond a resonable doubt.

Accordingly, we REVERSE the judgments of conviction and hereby DISMISS the indictment

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Wednesday, July 19, 2017

Denbury-Texas Rice Fight Continues

Originally published by John McFarland.

Denbury Green Pipeline and Texas Rice Land Partners have now fought for ten years over Denbury’s right to condemn an easement across Texas Rice’s land for a CO2 pipeline. The fight is once again, for the third time, back before the Texas Supreme Court.

The fight began in 2007, when Texas Rice challenged Denbury’s right to condemn an easement for its pipeline. That case went to the Supreme Court, which issued a controversial decision holding that Denbury had not proven its right to condemn the easement.  Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, 363 S.W.3d 192 (Tex. 2012). The case went back to the trial court and through the Beaumont Court of Appeals, and in January of this year, the Supreme Court issued its second opinion, Denbury Green Pipeline-Texas, LLC v. Texas Rice Land Partners, Ltd., 510 S.W.3d 909 (Tex. 2017), this time ruling that Denbury had proven its right to condemn as a matter of law.  See my discussion of these cases here. The case was remanded for trial on the amount of compensation to be awarded for the easement.

The most recent dispute began when Denbury sought access to its pipeline for inspection and Texas Rice refused. Texas Rice argued that Denbury had no right of access because it had been enjoined from taking the compensation funds deposited by Denbury into the court registry eight years earlier. Denbury then asked the trial court to allow it access to the pipeline, but the trial court sided with Texas Rice, agreeing that it had not complied with the requirements of condemnation statutes because Texas Rice was enjoined from withdrawing the condemnation award. Denbury then sought mandamus relief in the Beaumont Court of Appeals, which ruled that it did not have jurisdiction. Now Denbury has sought mandamus relief in the Texas Supreme Court, Case No. 17-0556.

 

 

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Fair Use in Social Media

Originally published by Peggy Keene.

Social Media IconsIn today’s age of social media, the simple click of a button allows one to share and repost content in seconds.  As more and more social networking platforms evolve, the original poster or creator of the content often becomes further and further removed from the original post.

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First Impressions: You Only Get One Chance to Make Them

Originally published by Cordell Parvin.

You’ve heard the expression:

You only get one chance to make a first impression.

In your career, you are constantly judged by the first impression you make. If you are not interested in learning more about San Miguel de Allende. skip down to where I discuss first impressions.

I’m in my last week of Spanish immersion at Habla Hispana in San Miguel de Allende. Starting last Friday, I am working one-on-one with Martha. This has been the highlight of my experience in school. Among other things, Martha is teaching me to pronounce the words correctly. (quite a task).

Over the four weeks, I have added many words and phrases to my vocabulary. When I see the English words on a flash card. I remember the Spanish. However, if I only hear the words, my brain takes a moment to process. So when Martha asks me a question, she also writes the question, and my answer, and at the end of our class gives me her written pages

Big things are happening here in San Miguel. Last week I learned that San Miguel received Travel and Leisure’s award as the number 1 city in the world. If you get a chance, click on the link and read about San Miguel and spend three minutes watching the video.

Our class members were very active on Saturday. After my session learning with Martha, we all went to the Botanical Garden to hike. We saw the waterfalls, the dam, and the natural surroundings.

Saturday night we went to the first annual  Ultimate Food & Art Fest Featuring Renowned Chefs & Artists. The event was held in Parque Benito Juarez. It is a huge and wonderful park. The last time Nancy and I visited here, we went to the park several times and watched organized girls basketball teams play.

On the way to the food and art festival. we saw a young 15-year-old and her court of young boys posing for her Quinceanera. They must have felt like movie stars with all the people, including me taking photos.

 

When I get back home, I’ll go back to working on my novel. My main character, Gabriela, is one of those outgoing lawyers who makes a positive first impression.

If you know anything about writing novels, you likely know as a writer you should try to show, don’t tell. But, just in case you are interested, some experts say show, don’t tell is a myth, or a lie. See:  Why “Show, Don’t Tell” Is the Great Lie of Writing Workshops.

So, for the sake of argument, let’s just say I want to show that Gabriela makes good first impressions. I might say when she walks into a crowded room, heads turn like they are watching a top model walk down the run-way. As she walks, she smiles and makes eye contact with people seated near her. When she gets to the table, she pauses in front of Christopher,  looks him directly in the eye, grasps his hand and arm and asks about his children by name. ( Ok, I admit this could be over the top, but I’m practicing here, so you’ll get the idea.)

Woman waving SS 88006990

Suppose you are going to a function where you will have the opportunity to connect with potential clients. You should apply the same principles. Stand tall, look and feel energetic.  How can you be energetic?

  • You might listen to music before the event. I always chose Tina Turner live concerts before I met anyone. When you meet someone later, you’re more likely to smile because you will still energized by the music.
  • Look into their eyes and determine their eye color, because that will force you to pay close attention.
  • Be open (arms not folded).
  • Make sure your attitude is warm, confident, relaxed and engaged.
  • Be genuinely interested in the other person. You can’t fake it.

What I have described may sound mechanical but it isn’t. If you watch people who connect with others, it is very natural.

I want to share with you a study done by professors and discussed in the book “Blink” by Malcolm Gladwell. In Nalini Ambady’s study, a group watching video, without sound, matched the evaluation of the students who had actually taken the course. The researchers kept reducing the time of the video until it was 2 seconds. The results stayed the same.

If you want to read about the study, check out: 10 Seconds: The Time It Takes a Student to Size You Up. There, you will find:

Ambady compared those snap judgments (10, 5, and 2 seconds) of teacher effectiveness with evaluations of those same professors made by their students after a full semester of classes, and she found they were also essentially the same.

For the study report, check out: Half a Minute: Teacher Evaluations from Thin Slices of Nonverbal behavior and Physical Attractiveness on Stanford Professor Nalini Ambady’s webpage.

What does Professor Ambady’s study tell us?

People, including your potential clients, including jurors during your next trial, make up their minds quickly and your body language is way more important than your words or tone of voice. Body language is your eyes, your smile and whether you are open.

Practice, practice, practice making a great first impression.

 

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$110 Million Verdict Awarded in J&J Talc Lawsuit

Originally published by robertslawfirm.

The fifth jury trial in a series of multi-district litigation cases consolidated in Missouri state courts has resulted in a $110 million verdict…

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Objection is late to class.

Originally published by David Coale.

Duggan, an non-named member of a class certified under Fed. R. Civ. P. 23(b)(1), made an untimely objection to the fairness of the class settlement. While he was not a named party, he sought to appeal under the doctrine recognized by Devlin v. Scardelletti, 536 U.S. 1 (2002), which allowed non-named class members “who have objected in a timely manner to approval of the settlement at the fairness hearing have the power to bring an appeal without first intervening.”  Unfortunately for Duggan, the Fifth Circuit found no reason to excuse his late objection, in particular rejecting the argument that his opponent was required to move to strike the objection in district court as a prerequisite to arguing waiver on appeal. Farber v. Crestwood Midstream Partners LP , No. 16-20742 (July 17, 2017).

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Babies Like Their Food Like My Car Likes Gasoline, Unleaded Please!

Originally published by Candess Zona-Mendola, Unsafe Foods Editor.

By: Heather Williams

As parents, we do a lot of things to keep our children safe. We child-proof the house, install locks and latches on things, block wall outlets and stairs, make sure they get naps and have a safe environment to play in.  We even scrutinize what we are feeding them.  Most of us examine every label and use reputable companies to obtain food for our babies.  But there are some things missing on the label.  According to the Environmental Defense Fund analysis of FDA data, a startling amount of lead is found in baby food.  In fact, 20% of the baby food samples tested contained lead.  Surprisingly, it is more likely you will find lead in food meant for babies and toddlers’ food than foods without that label.

Why is there lead in baby food?  The FDA, along with parents everywhere, are asking that question.  In even small quantities lead is dangerous, particularly in small children.  There should be no lead at all in the trusted food we buy to feed our children.

Environmental Defense Fund Analysis Findings

In June 2017, the Environmental Defense Fund (EDF) analyzed FDA data going back 10 years and found lead in surprising sources.  “We found that food is a concerning source of young children’s exposure to lead,” said Tom Neltner, EDF Health’s Chemicals Policy Director.  “While paint and drinking water are the greatest sources of lead in most children living in older homes, all children get some lead from their diet.  Even low levels in blood can cause harm.  FDA and food manufacturers can and must take action to reduce lead levels in food.”

According to the study, it was most commonly found in fruit juices with 89% of grape juice samples and 55% of apple juice samples, 45% of pear fruit juice samples, and 67% of mixed fruit juice samples containing lead.  Orange juice samples had much lower rates of lead contamination.  Lead was found in 86% of sampled sweet potatoes, and 43% of carrots.  Lead was also found in 47% of sampled teething biscuits, and 64% arrowroot cookies.  57 food types were evaluated.  In 52 of those food types, lead was found in at least 1 sample in each category.  In baby food, eight types of baby food were examined and 40% of them contained lead.

“Every child’s food should come unleaded,” said Sarah Vogel, Vice President of EDF’s Health Program.  “Unfortunately, food is a poorly understood and often overlooked source of lead exposure, a potent neurotoxin.  Our report should serve as a call to action for government and business alike to better protect children.”

The EDF is compelling the FDA to raise standards, make manufacturers lower the level of lead in food produces, and take action when those levels are exceeded.  The EDF suggests that companies should set a goal of 1 parts per billion (ppb) of lead and test their own product regularly.

The EDF study found that lead is not the only harmful substance hiding in baby foods.  In that same 10-year study, they also analyzed other metals, pesticides, and nutrients in food.  Many pesticides are considered toxic.  Strawberries, peaches, pears, celery, tomatoes, and potatoes are most at risk for holding onto pesticides used to protect against insects.

Health Hazards of Lead

There is no safe level of lead.  Yet, according to the Center for Disease Control and Prevention (CDC), 500,000 children have elevated blood lead levels.  Children face higher consequences from blood lead levels such as behavioral problems and lower IQs as they grow and develop.  Often symptoms can be hard to detect and don’t appear until dangerous levels of lead have accumulated.  Symptoms and health problems differ from one part of the human life cycle to the next.

Newborns

Babies exposed to lead before birth are more likely to be born prematurely, have a lower birth weight and slowed growth.

Children

Children may experience developmental delay and learning difficulties.  They may become irritable, sluggish, or exhibit fatigue.  They may experience loss of appetite and weight loss.  There may be abdominal pain, constipation, vomiting, and even seizures and hearing loss.  Some may develop pica, a condition where they desire to eat things that are not food such as paint chips or hair.

Adults

Adults may have high blood pressure, headache, difficulties with memory or concentration.  They may experience joint and muscle pain, abdominal pain, or mood disorders.  Lead exposure can cause fertility issues such as reduced sperm count or abnormal sperm in men and miscarriage, still birth, or premature birth in pregnant women.

 Other Sources of Lead

While lead is a major problem in baby food, other sources of lead should be considered to protect our children from lead exposure.  Lead can be found in some surprising sources.  It wasn’t until 1978 that lead-based paints were banned in the United States.  Exposure to homes built before then pose a risk.

Lead may be found in soil.  Lead in the environment can last for years and blow around from place to place.  Leaded gasoline or leaded paint contaminates soil around highways and in some urban areas as well as soil close to walls of older houses that were painted with lead paint.  Lead may be found in household dust from contaminated soil brought in from outside or even from dust particles from chips of lead-based paint.

Use caution with products from other countries that do not have the same lead guidelines as the United States.  Many cosmetics, foods, and pottery from other countries contain lead.  Even some tamarind candies coming from Mexico contain lead.

What Should I Do?

According to the Massachusetts Health and Human Services department, there are foods that can help prevent lead poisoning.  The foods strengthen bones and teeth, the two areas of the body that lead is stored.  This blocks lead absorption.  Foods high in calcium and iron are particularly beneficial such as yogurt, cheese, and whole grain crackers.

The best way to handle lead-based paint in the home is to encapsulate it.  Simply painting over the old painted wall will contain the leaded paint.  Do not scrape or sand old paint from walls, as any lead particles in the paint can aerosolize and be inhaled and spread throughout the home.

If you are concerned that you or your child has been poisoned with lead or may have been exposed to lead, contact your doctor for a lead blood test to be sure.  Do not wait for symptoms, as the damage could be more severe by that point.

And finally, help hold baby food manufactures accountable.  Research the foods that you are feeding to your children, write letters and tell them that you expect less than 1 ppb of lead and regular testing to be part of their standards.  Every voice will help.

 

Sources:

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http://ift.tt/2hE7w4f

http://ift.tt/2uDEFDp

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Simple Jury Persuasion: Combatting mistrust  in science [Part 2]

Originally published by Rita Handrich.

On July 10, 2017, we published the first part of this post on combatting mistrust in science. As we continued to read, we decided there was more for you to know about this topic so here’s a bit more information.

We wanted to share a couple of ways scientists shoot themselves in the foot when it comes to maintaining credibility. First, they think themselves more rational than the rest of us and second, their over-the-top advocacy for science backfires by making them seem like “just another partisan group”. In research speak, this is an example of scientists being only human, and like the rest of us, falling prey to the better than average effect. At least one writer believes, that scientists, in their rush to be “right”, seem to have forgotten that science itself, is  based on questioning facts.

In our first post, we mentioned Dan Kahan’s vigorous disagreement that science even has a credibility issue. As it turns out, the Pew Research Center (or rather, the US citizens they surveyed for this article) agrees with Dan! In a recent report released by Pew on public confidence in scientists, they point out that public confidence in scientists has remained stable since the 1970s. The graphic here is taken directly from the Pew report and shows how public confidence in both medicine and science have remained roughly stable for decades.

While Pew says (in a widely cited finding) that public trust in institutions is lower today than it was in the mid-1970s—they also say that public confidence in both medicine and the scientific community is higher than it is in many institutions these days.

Who has less of the public confidence than scientists and the medical community? Almost everyone—(in descending order) from K-12 administrators to religious leaders to the news media to business leaders and finally to elected officials.

So what does this mean? It likely means what it’s meant for years now.

When your case relies on science—you need an expert who is able to teach jurors at a high school level without being condescending or incomprehensible.

We’ve seen hundreds of mock jurors tune out very well-credentialed experts who were more interested in showing off their knowledge than in actually communicating.

You want someone who “looks credible” to the jurors but is also able to communicate very complex information at multiple levels so that the audience to whom the expert is speaking understands and feels good about their ability to understand after the testimony.

We agree that there is a sort of anti-intellectual movement in the US today. However, that seems (at least in our experience) to be reserved for those intellectuals who speak at a level incomprehensible to the layperson.

When your witness is able to make the science applicable and relevant to the jurors daily lives—they are not an intellectual elitist.

They are instead, a credible witness who helped jurors understand important issues that will help them render a just decision in a confusing situation.

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Tuesday, July 18, 2017

When Controlled Buys Spin Out of Control

Originally published by niftyadmin.

Andrew Sadek, a 20-year-old college student with zero criminal history, sold a small amount of marijuana (about $80 worth) to a narcotics officer. Shortly after his arrest he was in an interrogation room being threatened by police with 40 years of prison time (an outright lie). In that room, terrified and exhausted, he was told that if he made some “controlled buys” for the police, “a lot of this could go away.” Six months later he was found dead with a bullet in his head.

Rachel Hoffman, a 23-year-old Florida State graduate, was threatened by police with 10-years of prison after being caught with five ounces of marijuana and a handful of pills. Frightened, she agreed to work as a confidential informant in exchange for “leniency.” Two days after assisting police, Rachel’s bullet-filled body was found in a ditch.

What is a “controlled buy?”

The term “controlled buy” has been created by law-enforcement to replace the more realistic (and dangerous-sounding) term, “confidential informant.” Which sounds more dangerous to you: “We would like you to make a few controlled buys for us?” or, “We would like you to wear a wire, meet with a known drug-dealer, and be a confidential informant for us?” And, while the informant is “promised” anonymity, what happens when the drug-dealer’s case goes to trial and they have the right to learn your identity as part of the discovery process? This is exactly what will happen and is another reason that law-enforcement prefers the sanitized term, “controlled buy.”

This practice is so dangerous that it has been examined and featured in an episode of 60 Minutes.

Empty (and unnecessary) promises

Increasingly, in suburbs across North Texas, young people (many still in high school) are being pressured into making these “controlled buys” in exchange for a release from punishment that may never have even existed in the first place. In fact, I have gone into a local police station, stopped an interrogation, and escorted my client from the premises after he signed a so-called “contract” to make three controlled buys. Importantly, he never made one controlled buy, nor was he ever convicted of any crime whatsoever. So, if he had put himself in danger by wearing a wire and meeting with drug-dealers, he would have been doing so in exchange for absolutely nothing.

While obviously every case is different, there a number of different paths that someone can take after being arrested for a drug offense in Texas that do not result in any jail time, or even a conviction. Oftentimes there is a clear route to some form of a dismissal of the case. And not one of these paths involves wearing a wire and buying drugs for the police. However, these outcomes are not shared in an interrogation room in the middle of the night.

As is often the case, with tragedy comes change. In Florida, Rachel’s Law now exists so that young people are not put into the same situation that cost Rachel her life. In Texas, we do not yet have these regulations. Certainly, as soon as someone dies as a result of a “controlled buy” here in Texas, our laws will change too, with the new law undoubtedly named after the headline-making deceased. Do not be the person whom Texas’ eventual confidential informant law is named after.

If you have been arrested for Possession of Marijuana, or any other controlled substance, you should immediately hire an experienced criminal defense lawyer. Contact my office for a free consultation by calling 972-369-0577.

The post When Controlled Buys Spin Out of Control appeared first on Cawlfield Law Blog.

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General Accommodation Requests Do not Work Well

Originally published by Thomas J. Crane.

When a person asks for an accommodation, s/he must be specific. A general request to “reduce stress” at the work place will not suffice. In Murray v. Warren Pumps, 821 F.3d 77 (1st Cir. 2016), the plaintiff had a bad back. His work restrictions included not lifting anything over 10 pounds and not sitting, walking or standing too long. The employer and the employee agreed that the employer would not ask him to violate these restrictions and Mr. Murray would monitor the restrictions. The plaintiff believed the employer asked him to violate the work restrictions. Sometimes, he would complain. Sometimes, he would not.

The plaintiff’s job was monitoring work place safety. He had some issues with the employer’s observance work safety. He also expressed dissatisfaction with the things they had asked him to do. He complained that sometimes, he was asked to perform physical activities that violated his work restrictions. The company met with Mr. Murray and suggested he was not happy there. The employer offered him a severance package. He refused to resign and was fired.

The employee filed suit. He argued among other things that the employer failed to accommodate him. The court dismissed Mr. Murray’s claim that he sought breaks “from time to time” as an accommodation. The court found the request to be vague. And, the employee did not explain in what way the employer refused those requests for accommodation.The employee also pointed to an incident when his supervisor asked him to help paint. When the plaintiff said he could not, the supervisor walked away, apparently not happy. But, acknowledged the employee, he was not forced to do the painting and he did in fact do the painting. The employee also discussed a time when the supervisor told him to perform some wiring. Murray said he could not physically do that. The supervisor told him to “get it done somehow.” The employee found someone to perform the wiring. Mr. Murray did not do the wiring himself. Mr. Murray carried the toolbox, which did weigh more than ten pounds.

Another time, the supervisor asked him to oversee a project that involved a lot of walking. Murray acknowledged that he did not complain about this request, and he did not inform the supervisor that this request would require him to violate his work restrictions. Mr. Murray also did seek help from anyone. The supervisor had left for the day. But, Mr. Murray did not seek out any other supervisor for help. In responding to a motion for summary judgment, the plaintiff said he did not have to show he was actually required to violate his work restrictions. It was enough, he argued, that he was “deliberately requested” to violate his work restrictions.

The court found these incidents did not amount to failure to accommodate. The worker, said the court, must alert the employer that its request would require him to violate his medical restrictions. The employer has no duty to “divine” the requested accommodation when the employee makes a “mundane” request for change at the work place. The court felt that the employee understood he was to monitor the requests and let the employer know when something might exceed his capabilities. The employer did provide many accommodations, added the court.

The court makes a good point. In some circumstances, it will not be clear to the employer that a requested action might stress the employee’s work restrictions. Some supervisors will simply forget. They have many things to consider, other than one employee’s physical limitations. It seems to me that often when a situation is confusing, the courts will defer to the employer, especially where, as here, the employer did clearly provide some accommodations. See the decision here.

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An Oil Patch Morality Play – Part 1

Originally published by Charles Sartain.

Co-author Chance Decker

You are selling properties. The buyer thinks you own the deep rights but you know your long-time partner owns them. You attend the closing. You don’t tell the buyer that he’s got the ownership wrong. You are protected by a contract. Do you fess up? What if it means $6.8 million?

In Freeman, et al v. Harleton Oil & Gas Chesapeake agreed to buy three-year term assignments of Buffco’s and Twin Eagle Resources’ interest in 14,000 acres in East Texas for $232 million.

Under the letter agreement for the transaction, Chesapeake would make the same per acre offer to other non-op owners.

Chesapeake assumed the risk of title defects. Chesapeake hired a landman for title diligence, who concluded (correctly) that Buffco and Twin Eagle owned a 50 percent operating interest in the Geisler Unit and (incorrectly) that Freeman Resources owned a 50 percent non-op interest in the deep rights.

Chesapeake paid $6.8 million to Buffco and Twin and $6.8 million to Freeman Resources for their interests in the unit, believing it acquired all of the deep rights.

In the agreement the sellers expressly disclaimed representations about ownership. Chesapeake never talked directly to Buffco’s owner Bufkin. Freeman Resources’ owner Wayne Freeman attended the closing.

Title bust!

Turns out Harleton owned a 50 percent non-op interest in the deep rights in the Geisler Unit. So, Chesapeake’s $13.6 million only bought 47 percent of the deep rights.

Harleton sued Buffco, its president, and Freeman Resources for, among other claims, unjust enrichment for the $6.8 million CHK paid Buffco/Freeman Resources.

Harleton also sued Chesapeake for the $6.8 million as a third party beneficiary of the Chesapeake/Buffco/Twin letter agreement, and for breach of the non-ops clause for not offering to buy Harleton’s deep rights.

Chesapeake sued Buffco, Freeman Resources, and their presidents for breach of contract, fraud, etc. to recover the overpayments. Chesapeake settled with the Buffco defendants, and went to trial with the Freeman defendants.

The trial 

After trial, the court:

  • dismissed Harleton’s claims against Chesapeake; it was not a third party beneficiary,
  • dismissed all of Harleton’s claims against Buffco and Freeman except unjust enrichment,
  • denied Chesapeake’s request for a refund of the money paid to Buffco/Freeman for Harleton’s interest; the agreement allocated the risk of title defects to Chesapeake,
  • imposed a constructive trust on the $6.8 million Chesapeake paid to Buffco/Freeman Resources for the benefit of Harleton,
  • ordered Harleton to assign its 50 percent interest in the Unit to Chesapeake, and
  • ordered Buffco and Freeman Resources to pay Harleton $6.8 million. 

On appeal

Harleton’s unjust enrichment claim was barred by limitations.  Because that was the only cause of action that supported the constructive trust and specific performance remedies, those remedies were improper. Affirmed the trial court in all other respects

What does this mean?

  • Freeman comes out like a bandit (so to speak).  It keeps the money it was paid for Harleton’s interest.
  • Harleton gets nothing from the transaction but keeps its deep rights (which within six months were worth $2,500 per acre, not the $20,000 Chesapeake paid.)
  • Chesapeake pays the wrong seller for all deep rights and gets 47 percent.

Coming soon: Part 2 for more “interesting” facts.

A musical interlude.

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Farewell to George Romero, Zombies and District Court Supervision of DPAs

Originally published by tfoxlaw.

I take a break from my series on the new standard for revenue recognition to honor George Romero who passed away this weekend. If you have watched any monster/zombie picture over the past 50 years, you have witnessed the influence of Romero. According to his obituary in the New York Times (NYT), Romero basically “created […]

The post Farewell to George Romero, Zombies and District Court Supervision of DPAs appeared first on Compliance Report.

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Directory Listings Are A Law Firm’s Best Friend

Originally published by Stacey E Burke Blog.

Nobody likes filling out forms. The information is repetitive and the work is tedious, but lawyers must make time to complete their law firm directory listings. People rely on popular law firm directories to help them locate attorneys and law firms, which means appearing on them can be extremely beneficial for generating new clients.

The benefit of having up-to-date directories is that you can drive traffic to your law firm website and/or provide contact information for users ready to reach out to a lawyer for help. While it’s true that your listings may only receive a small amount of traffic, users visiting lawyer directory listings are much more likely to convert into leads and eventual clients.

However, when it comes to directories, there are a lot of them out there and determining which ones are worth your time can be difficult. To help lawyers and law firms ready to jump on the directory bandwagon, here is a list of free law firm directories on which you can claims and build out your individual and/or law firm profile to jump start your efforts:

  • Avvo – One of the fastest growing attorney directories, Avvo profiles provide a clean and sleek looking snapshot of lawyers. Users can search for individual lawyers or search via practice area.
  • Martindale-Hubbell – Lawyers know Martindale-Hubbell well for its rating system. While Martindale-Hubbell does offer premium listings, a basic profile can help drive users to your website. Having a completed Martindale-Hubbell profile also allows you to send out review requests to achieve an AV rating.
  • Super Lawyers – Although Super Lawyers only lists lawyers who receive one or more of their awards, any lawyer can register for access and fill out a profile on the site. This profile won’t appear live online until the lawyer receives an award, but setting up and completing a profile helps put you on Super Lawyers’ radar.
  • HG – While Hg.org may be less well known than other directories on our list, the website allows users to include a plethora of information, such as biography and “about the firm” sections.
  • Lawyer Central and Lawyer Legion – Lawyer Central and Lawyer Legion are much smaller directories, but with an easy sign up process, a lawyer can complete each profile fairly quickly.
  • Justia – While most directories only require an email address to sign up, Justia requires a copy of your state bar card or a letter of good standing from your state bar. Even though this may be a bother for attorneys, this means Justia listings are of a better quality as a whole, and this is attractive both to search engines and to users looking for a lawyer.
  • State Bar Websites – The State Bar of Texas has a user-friendly website for people looking for lawyers. While lawyer profiles are short and only contain basic information, it does include disciplinary history, which is important to users. Lawyers licensed in other states should make sure all of their state bar profiles are filled out with up-to-date contact information.

Some directories are dependent upon membership, invitation, or receiving an award. While it is more work to be included in these directories, they are excellent at converting searchers into potential clients. Just some of the thousands of additional legal and business directories to consider include:

How To Get Started

To get the most out of your law firm directory listings, you will need to claim your listings, implement best practices for completing them, and optimize them. If you want to make sure your legal directories get completed correctly, contact the legal marketing experts at Stacey E. Burke, P.C. today.

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STB Jurisdiction Over Intrastate Passenger Rail

Originally published by Justin Marks.

In Florida, All Aboard Florida, a private entity, is about to launch passenger rail service from Miami to West Palm Beach, with future service extending to Orlando. In California, the California High-Speed Rail Authority is currently constructing a high-speed passenger rail line with the long-term goal of connecting the metro areas of San Francisco and the Los Angeles.  These projects have a common denominator: each envisions intercity passenger rail service entirely within one state.  But when it comes to economic regulation by the federal government, these projects are treated differently by the Surface Transportation Board (the “STB”).

STB jurisdiction carries with it preemption of state and local remedies, so STB regulation of an intrastate project can have a significant impact.  Not all proponents of intrastate projects want STB jurisdiction.  But, for those that do, preemption carries with it a powerful tool against would be project opponents.

STB Jurisdiction under ICCTA

STB jurisdiction over transportation by rail carrier is governed by 49 USC § 10501(a), enacted under the Interstate Commerce Commission Termination Act (“ICCTA”).  The STB’s jurisdiction “applies only to transportation in the United States between a place in …a State and a place in the same or another State as part of the interstate rail network.[1]  Under ICCTA, Congress specifically granted the STB authority over intrastate rail transportation if the transportation is part of the interstate rail network.

The question then becomes, how does the STB decide that an intrastate passenger rail project is part of the interstate rail network?  To answer this question, the STB applies a factoring test.[2]  Factors the STB will consider include whether the rail carrier will operate within a single state, whether the rail carrier will interchange with Amtrak (an interstate rail carrier), whether the rail carrier will arrange through ticketing with Amtrak, or whether the system is interconnected with Amtrak through use of the same stations.

All Aboard Florida

Applying those factors to the Florida project mentioned above, the STB concluded that it did not have jurisdiction because the project was not part of the interstate rail network.[3]  The Board considered the following factors that weighed against asserting its jurisdiction:

  • The project would conduct operations entirely within the state of Florida;
  • All passengers will board and deboard at local stations;
  • The fact that the project would serve local airports did not weigh toward a determination that it was part of the interstate rail network. Additionally, the fact that the line is to be constructed within the freight corridor of an STB regulated freight railroad, the Florida East Coast Railway (“FECR”), on track owned by the FECR did not sufficiently connect it to the interstate rail network. Nor did the fact that FECR will dispatch the passenger trains cause the STB to consider extending its jurisdiction over the project.

California High-Speed Rail Authority

In the STB’s California High-Speed Rail Authority (“CHSRA”) decision[4], the STB concluded that a proposed intrastate high speed rail system was sufficiently connected to the interstate rail system to warrant STB jurisdiction over the project.  The STB’s conclusion relied on a factoring analysis that gave significant weight to the CHSRA’s relationship with Amtrak.

Several factors in the CHSRA proposal weighed against a determination that the project was sufficiently connected to the interstate rail network to justify STB jurisdiction.  First, the CHSRA proposal lies entirely within the state of California.  Second, the CHSRA had no agreement with Amtrak to permit through ticketing for the CHSRA project.

Despite the intrastate nature of the transportation and the lack of a thru-ticketing agreement with Amtrak, the STB determined that other aspects of the CHSRA’s proposal provided sufficient interconnectivity with Amtrak as to conclude that the proposed project was connected to the interstate rail network and justified STB jurisdiction.  The STB cited the CHSRA business plan and environmental documents to demonstrate the CHSRA planned to integrate with Amtrak through a “blended” approach to the construction and operation of the project.  This blended approach proposed:

  • Operating Amtrak’s San Joaquin service operating over the CHSRA tracks;
  • Locating CHSRA’s stations in Los Angeles, Sacramento, and San Jose so that the CHSRA project interconnected with Amtrak stations.

The STB distinguished the facts from the CHSRA project with those from its All Aboard Florida decision.  The STB said that it did not have jurisdiction over the Florida project “because the proposed rail line would serve only four local stations with no plans for through-ticketing and no connection to Amtrak or any other rail carriers.”

Conclusion

In determining whether it has jurisdiction, the STB views some type of arrangement with Amtrak as a factor because Amtrak is an interstate rail carrier.  But, the STB has not had the opportunity to consider a case where the intrastate passenger rail project holds an arrangement with some other type of interstate carrier.  Must the intrastate passenger rail project connect to another interstate railroad?  What if the intrastate project stopped at an airport and offered through ticketing with an interstate airline?  It might be a tough argument to sell to an agency primarily focused on transportation by rail, but with the right facts, the STB may be willing to extend its jurisdiction to an intrastate passenger rail carrier that connects to interstate commerce beyond Amtrak.

[1] 49 USC § 10501(a).
[2] All Aboard Florida – Operations LLC and All Aboard Florida – Stations Construction and Operation Exemption – In Miami, Fla. And Orlando, Fla., STB Finance Docket 35680, slip op at 3 (STB served Dec. 21, 2012).
[3] Id.
[4] California High-Speed Rail Authority – Construction Exemption – in Merced, Madera & Fresno Counties, California,  STB Finance Docket No. 35724 (STB served June 13, 2013)(“CAHRSA Decision”).

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Stipulation = Jurisdiction

Originally published by David Coale.

In Deaton v. Johnson, the Fifth Court found that a Rhode Island lawyer’s retention pursuant to representation agreement governed by Texas law and “performable in Tarrant County, Texas” allowed the exercise of personal jurisdiction in Texas over that lawyer. No. 05-16-01221-CV (July 14, 2017) (mem. op.)

 

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Monday, July 17, 2017

Who is Paid First in a Bankruptcy Case?

Originally published by Allmand Law Firm, PLLC.

Bankruptcy and discharges of debt are a great benefit for people facing
tough financial times, but bankruptcy also allows many creditors to get
paid as well. Both Chapter 7 bankruptcy (liquidation bankruptcy) and Chapter
13 bankruptcy (repayment plans) allow for creditors to collect at least
some portion of the debts they are owed.

The bankruptcy court and appointed trustee serve the purpose of ensuring
payment disbursement is done fairly. How the payment process works will
vary depending on the unique facts of a case, including nature of the
debt and the Chapter you file under.

Order of Priority

Generally, there is an order of priority when it comes to which creditors
will be paid first. This order trickles down from secured creditors to
non-secured creditors, such as credit card companies. Secured creditors
are paid first because they have collateral tied to debts, such as a financed
car or mortgaged home. Other priority debts include support payments,
tax debts, and employee benefits, among others. Unsecured debts are paid
after secured debts.

Chapter 7

Although
Chapter 7 bankruptcy is characterized by the liquidation of assets and the use of
those proceeds toward the payment of debts, many Chapter 7 cases involve
little to no assets. This means there may not be sufficient funds to pay
all or any creditors. Should there be some assets, payments would be distributed
in order of priority, from secured creditors to non-secured creditors.

Chapter 13

As in Chapter 7 bankruptcy,
Chapter 13 bankruptcy also prioritizes secured creditors over non-secured creditors.
Over the course of a three to five year repayment plan made in a consolidated
payment to the court-appointed trustee, payments will be dispersed to
creditors in order of priority. Remaining debt at the conclusion of the
plan is eligible for discharge.

It is important to remember that while remaining debts following liquidation
payments or the conclusion of a three to five year repayment plan can
be discharged, there are certain debts that you may still be liable to
pay in full. This includes student loan debt, which is not generally dischargeable
in bankruptcy.

Understanding how the bankruptcy process works and who receives payments
when is important as you navigate the journey ahead, but counsel and representation
from an experienced attorney can be invaluable. Our Dallas bankruptcy
lawyers at Allmand Law Firm, PLLC help clients throughout the Dallas –
Fort Worth area understand their rights and options when it comes to addressing
insurmountable debt. We’re available to discuss your situation,
options, and what we can do to help during a FREE financial empowerment session.
Contact us today to request yours.

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Interior Secretary Signs Order to Expedite Oil and Gas Drilling on Federal Lands

Originally published by Environmental and Energy Law Blog.

As part of the Trump Administration’s effort to increase U.S. energy production, Interior Secretary Ryan Zinke recently signed an order calling for faster and more efficient oil and gas permitting on federal lands. It goes without saying that environmental groups, such as the Sierra Club, are opposed to the order, calling it a giveaway to oil and gas interests.

 

BLM Permit Decisions

Although current federal law requires the U.S. Bureau of Land Management to make permit decisions within 30 days, wait times for oil and gas companies have ballooned to an average of 257 days. In addition, the number of backlogged approvals in BLM offices in Wyoming and Utah has surpassed 500. ZInke’s order is designed in part to reduce this backlog.

 

“There has to be a process that doesn’t over-delay things so we can’t get anything done in this country,” Zinke said.

 

Despite these backlogs, oil produced from onshore federal lands climbed grew from 98 million barrels in 2007 to 175 million barrels in 2015, according to the federal Office of Natural Resource Revenue. In 2016, however, production dipped to 157 barrels due to weak oil prices.

 

According to the Interior Secretary, the expedited process will adhere to the National Environmental Policy Act, the primary law that regulates development on federal lands. The order also calls for federal oil and gas lease sales at the BLM offices to be held at least quarterly.

By the end of the Obama Administration, sales occurred less often.

 

Zinke also pointed out that national parks and other major federal land holdings will not be open to drilling. At the same time, he believes that certain regulations are an impediment to innovation that would make energy production more environmentally friendly. Ultimately, the objective is to create wealth and opportunity on federal lands while retaining the Interior Department’s role as environmental stewards.

 

The Takeaway

While the Interior Department’s order should boost oil and gas production on federal lands, it remains to be seen whether lawsuits will be filed to block the order. In the meantime, balancing the need for energy production with preserving the environment requires the advice and counsel of an experienced health, safety and environmental attorney.

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Innocent Spouse Relief

Originally published by Houston Tax Attorney.

When a husband and wife sign a joint tax return, each spouse is jointly and severally liable for all taxes relating to that year. Where one spouse does not believe he or she should be liable for the  full amount of the tax liability, that spouse may seek innocent spouse relief under IRC 6015.

Statutory Authority for Innocent Spouse Relief

Internal Revenue Code (IRC) Sec. 6015(b), 6015(c), and 6015(f) provide three potential sources of innocent spouse relief from joint and several liability.

  1. 6015(b) provides general relief. Unlike 6015(c), there is no requirement for the taxpayers to be divorced or separated before making the claim.
  2. 6015(c) provides relief for taxpayers that are divorced, legally separated, or have lived apart for the preceding 12 months.
  3. 6015(f) provides equitable relief where neither 6015(b) or 6015(c) apply.

All three sections provide relief from a tax deficiency or understatement of tax. A deficiency or understatement of tax is the result of an IRS audit or adjustment to a tax return. Where there is tax due from an underpayment on a properly filed tax return, only equitable relief is available under 6015(f).

Examples:

Jane operated her own sole proprietor business and prepared the joint tax returns for herself and her husband John. Unbeknownst to to John, Jane was under-reporting her income and overstating her business expenses on the joint tax returns. After the IRS audited her 2014-2016 tax returns, they ended up owing $250,000 in taxes, penalties, and interest. If they are still married, John can claim relief under IRC 6015(b) or 6015(f). If they are no longer married, John can claim relief under any of the three provisions.

Same facts as above, except Jane properly reported her income and expenses on the tax returns. However, she failed to make estimated tax payments, leading to large tax liabilities each year. Eventually the back taxes accumulated to $250,000 in taxes, penalties, and interest. John can claim relief only under 6015(f).

6015(b) Relief

A spouse can claim relief from an understatement of income if several conditions are met:

  1. The innocent spouse filed a joint tax return.
  2. There is an understatement of tax on the joint return that is attributable to an erroneous item by the non-requesting spouse.
  3. The innocent spouse did not know and had no reason to know of the understatement of tax at the time he or she signed the return.
  4. It would be inequitable to hold the innocent spouse liable for the tax.
  5. The spouse claims relief no later than 2 years after the IRS begins collection activities.

Knowledge Requirement

Whether the spouse claiming relief knew or should have known of the understatement is a question of fact. It is important to have a good understanding of all the facts and for the attorney to present the facts in the light most favorable to the client. The IRS examiner reviewing the claim will want to know a.) the nature of the erroneous item, b.) the financial situation of both spouses, c.) the requesting spouses’s educational background and business experience, d.) whether the requesting spouse failed to ask questions about the tax return that a reasonable person would ask, e.) the extent of involvement in the activity that gave rise to the erroneous item, and f.) whether the erroneous item represented a departure from a recurring pattern reflected in prior year returns.

Because innocent spouse claims are so fact intensive, there is room for judgment (and error) on the part of the IRS examiner. For that reason, denials of claims are often litigated in tax court. Never accept the examiner’s decision as final in such cases (or with any tax issues for that matter).

6015(c) Relief

Relief under this section is also known as “separation of liability relief.” To qualify for separation of liability relief, the following conditions must be met:

  1. The spouses filed a joint tax return in the year for which relief is being sought.
  2. There is an understatement of tax on the joint return that is attributable to an erroneous item by the non-requesting spouse.
  3. At the time the election is filed, taxpayers are divorced, legally separated, or have lived apart for the preceding 12 months.
  4. The spouse claims relief no later than 2 years after the IRS begins collection activities.

In Texas where there is no legal separation, the taxpayers must be either divorced or living apart for at least 12 months at the time of election.

6015(f) Relief

This section was added to the IRS to provide equitable relief to taxpayers who did not meet the requirements for relief under 6015(b) or 6015(c). 6015(f) can be used for understatements as well as tax return underpayments. The revenue procedure governing this code section is Rev. Proc 2013-34.

To qualify for equitable relief under IRC 6015(f), the following must be met:

  1. The spouses filed a joint tax return in the year for which relief is being sought.
  2. Relief is not available under IRC 6015(b) or 6015(c).
  3. The claim is timely filed. Relief from unpaid tax liability must be made within the 10 years collections statute. It’s unclear why this requirement is in place – there is no need for relief if the collections statute has expired. A claim for credit or refund must be made before the refund statute of limitation which is three years from the time the return was filed or two years from the time the tax was paid, whichever is later.
  4. No assets were transferred between spouses as part of a fraudulent scheme.
  5. The non-requesting spouse did not transfer disqualified assets to the requesting spouse.
  6. The requesting spouse did not knowingly participate in the filing of a fraudulent tax return.
  7. The income tax liability is attributable to an item of the non-requesting spouse.

Streamlined Determinations

Under Rev. Proc. 2013-34, a requesting spouse may be entitled to a streamlined determination under IRC 6015(f) if the spouse is divorced, separated, or living apart for 12 months and the requesting spouse would suffer economic hardship if relief is not granted.

Post- Filing Considerations

Once an innocent spouse claim has been made, the non-requesting spouse will receive a notice and provided an opportunity to participate in any proceeding involving relief from joint and several liability.

IRS must cease all collections activities against the requesting spouse upon filing of an innocent spouse claim. However, since the IRS is prohibited from collecting, the statute of limitations is suspended while the innocent spouse claim is under consideration and for 60 days thereafter.

If the IRS denies the claim, a final determination letter will be mailed to the requesting spouse. A requesting spouse may challenge the determination in Tax Court by filing a petition within 90 days of the notice.  If the requesting spouse files suit in Tax Court, the non-requesting spouse has a right to intervene and oppose the claim.

The post Innocent Spouse Relief appeared first on Law Office of Kunal Patel, LLC | Houston Tax Attorney.

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Scottrade Class Action Claims Security Breach Compromised Private Customer Data

Originally published by robertslawfirm.

A class action lawsuit has been filed against Honda claiming that a design flaw in its 2015-2017 Model CR-V SUVs causes noxious gas fumes to be able to infiltrate…

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Absence of proof.

Originally published by David Coale.

Duncan, a Wal-Mart employee, slipped on a mat near an ice freezer in the store. She sued for her injuries and the Fifth Circuit affirmed summary judgment for the defense, noting several ways in which her proof of a dangerous condition was lacking: “In Duncan’s deposition—the only evidence she and Johnson submitted in support of their claim—she repeatedly explained that she did not know how water developed under the mat on which she slipped. Duncan couldn’t say whether water had ‘somehow leaked or spilled underneath the mat’ or whether ‘something on top of the mat . . . leaked through it.’ No one at Wal-Mart told her that they knew there was water in that area before she fell, and she didn’t know whether water had ever accumulated in that area before. Duncan also said that in the four years she worked at Wal-Mart, she had never heard of the Reddy Ice machine leaking, even though she knew other appliances, like the ‘Coke machine,’ leaked. ” Duncan v. Wal-Mart Louisiana LLC, No. 16-31223 (July 14, 2017).

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Texas Passes Bill for Fiduciary Access to Digital Assets

Originally published by Michael Cohen.

access to electronic digital assetsDid you ever hear of a story where there was no access to electronic pictures or Facebook or have access to an online bank account of a loved one who has died or become mentally disabled? On June 1, 2017, Governor Abbott signed into law that makes it easier for fiduciaries (i.e., the executor of a will, the guardian of the estate of one who is disabled, the agent under a power of attorney, a trustee of a trust, etc.) to have access to such digital assets. The bill even has a provision to revise Statutory Powers of Attorney to include digital assets and the content of an electronic communication. Thus, if you merely have a standard Statutory Power of Attorney (without provisions including access to digital assets) and you have any digital assets, you might consider doing a new power of attorney. Furthermore, if you have digital assets and a will, you might consider giving authority to your Executor to have access to your digital assets. Other states also have passed a Uniform Fiduciary Access to Digital Assets Act as the bill was passed to promote uniformity among the states that have passed this law.

The post TEXAS PASSES BILL FOR FIDUCIARY ACCESS TO DIGITAL ASSETS appeared first on Dallas Elder Lawyer.

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Stories of Recovery: Like a Freight Train

Originally published by Guest Blogger.

I feel like alcoholism just appeared in my life overnight. Logically, however, I know this is not the case. It certainly felt as if it came out of nowhere and definitely hit me like a freight train. But if I think about it, I always drank alcoholically.

Editor’s note: This post is part of the Texas Lawyers’ Assistance Program’s Stories of Recovery series.

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How (Not) to Handle Bad Emails in Litigation

Originally published by Zach Wolfe.

Bad emails. Trial lawyers love them and hate them. When your client sends them, there’s nothing worse. When the person you’re suing sends them, there’s nothing better.

Scratch that. There is one thing better: when the person you’re suing changes his story after you confront him with bad emails he didn’t know you had.

Let’s consider a hypothetical.

Paula Payne Windows v. Dawn Davis

Dawn Davis was a salesperson for Paula Payne Windows, a wholesaler that supplies windows to builders in the construction industry. Paula Payne maintained a Master Customer List containing detailed information about all of its customers.

Dawn had a friend, Bob Coldstone, who did marketing for Real Cheap Windows, one of Paula Payne’s competitors. In June 2016, Bob emailed Dawn to set up a meeting with Natalie Vessel, the owner of Real Cheap. Bob said Natalie wanted to discuss Dawn joining Real Cheap.

The series of ensuing emails between Dawn and Natalie included these statements:

  • Dawn: “I can get you all the pricing information you want. I know my way around the network here like nobody else.”
  • Natalie: “Will you be able to bring all the information you need with you?”
  • Dawn: “The master customer list is password-protected, but guess who has the password?”
  • Natalie: “I hope Paula Payne will drop this idea of going after our customers.”

One month later, in July 2016, Paula Payne had a senior sales staff meeting to discuss moving more aggressively into a sales territory dominated by Real Cheap. Dawn Davis pushed back on the idea, saying that it would be difficult to compete with Real Cheap on prices, and that Paula Payne should focus on its existing customers. Heeding Dawn’s advice, the sales team dropped the idea.

In November 2016, Dawn announced to Paula Payne that she was leaving the company. A day before leaving, Dawn emailed Paula Payne’s master customer list to her personal gmail account and copied all of Paula Payne’s sales records for the past 90 days to a USB drive.

After Dawn left, most of her customers stopped buying windows from Paula Payne. The company then discovered Dawn was working for Real Cheap. Dawn was selling windows to her customers from Paula Payne and starting to solicit additional Paula Payne customers.

Dawn’s Deposition Testimony

Paula Payne sued Dawn Davis and Real Cheap Windows, claiming breach of Dawn’s non-compete, breach of fiduciary duty, and misappropriation of trade secrets. When Paula Payne’s lawyer took Dawn’s deposition, this exchange happened:

Screen Shot 2017-07-15 at 9.33.02 AM

Screen Shot 2017-07-15 at 9.34.45 AM

At trial, Paula Payne’s lawyer played the video of this portion of Dawn’s deposition. After finding that Dawn and Real Cheap misappropriated trade secrets, the jury found lost profits damages of $989,000, the amount calculated by Paula Payne’s expert.

Afterwards, one member of the jury commented to Dawn’s lawyer, “your client seemed pretty nice, but those emails just killed her.”

So where did Dawn Davis and her lawyer go wrong?

How Not to Handle Bad Emails

Paula Payne v. Dawn Davis is a case study in how not to handle bad emails in litigation. If you want to maximize your client’s exposure at trial, here’s what you should do.

1. Don’t find bad emails ahead of time and discuss them with your client

The first time Dawn’s lawyer focused on the emails marked as deposition exhibit 7 was in the deposition. By then, Dawn had already blown her credibility by making statements in conflict with the obvious import of the emails.

You need to know about the bad emails ahead of time. This point is obvious, but neglected more often than you might think.

Plus, even when lawyers are diligent, reviewing every email isn’t always feasible. Sometimes the volume of documents is just too large. Some clients can’t afford to pay for a team of BigLaw associates to review and code every document.

If finding all the bad emails ahead of time isn’t practical, then at least admonish your client to tell the truth and not to trust her memory too much. People have a great capacity to remember things happening in a way that supports their position. (This is true—I’m not just being sarcastic). When Dawn said Natalie never asked about prices, she may have thought that was true, but that’s the kind of statement a witness shouldn’t make unless she’s absolutely sure.

2. Conceal and delay as long as possible

If you do find the bad emails ahead of time, what do you do with them? Let’s assume that Dawn’s lawyer found the bad emails on Dawn’s hard drive but didn’t produce them in discovery. The problem was that Paula Payne’s forensic expert found them by restoring deleted emails on Paula Payne’s server.

This leads to the worst of both worlds: the bad emails eventually come out and they look even more incriminating because Dawn concealed them.

3. Pretend bad emails don’t mean what they obviously mean

It’s a deposition ritual to ask the witness to admit that a bad email means what it obviously implies, even if it doesn’t say it explicitly. Take Natalie’s statement, “I hope Paula Payne will drop this idea of going after our customers.” What should Dawn say when asked if Natalie was asking her to make sure Paula Payne dropped the idea?

It always depends on the circumstances, but if it’s obvious that Natalie was asking Dawn to stop Paula Payne from going after Real Cheap’s customers, then Dawn should freely admit that. Don’t pretend a bad email doesn’t mean something that everyone on the jury will know it means.

4. Dispute everything rather than focusing on your strong points

There is a certain type of litigator that follows an easily recognizable playbook: Contest every issue. Concede nothing. Attack on all fronts.

That approach can have short-term benefits, but it usually doesn’t end well. Plus, it tends to cost the client more money. It is usually better to concede the bad facts you ultimately can’t avoid, and to focus your efforts on the good facts that help you.

For example, Dawn Davis didn’t want to concede that she took Paula Payne’s master customer list to her new employer, Real Cheap. Perhaps a better approach would be for Dawn to admit she took the list, but to focus on the argument that the list is not a trade secret. If it’s true that anyone in the industry can readily construct the same list of builders who buy windows, then Dawn and her lawyer should focus on that fact.

5. Don’t have your client practice answering questions about bad emails

The first four tips are great in theory, but they won’t help your client much if you don’t practice. Answering tough questions about bad emails is not easy. Rehearse how your client will answer hard questions about bad emails ahead of time.

And be careful responding to emails after 10 pm when you’ve had a long day at work. That’s how bad emails are born in the first place.

*Nominations for the ABA Journal’s Web 100 (formerly the Blawg 100) are open through July 30. You can submit your nominations here. Please, no wagering.

____________________________________________________

head-shot-photo-of-zach-wolfeZach Wolfe is a Texas trial lawyer who handles non-compete and trade secret litigation. His firm Fleckman & McGlynn has offices in Austin, Houston, and The Woodlands.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

“Is that a yes? Uh, yes” inspired by Lin-Manuel Miranda, “We Know,” Hamilton.

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