Friday, September 29, 2017

Top 10 from Texas Bar Today: Discovery, Dilemma, and Diabetes

Originally published by Joanna Herzik.

To 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. Can Police Arrest a Person for Shoplifting Before They Leave the Store? – Shelby Sterling of Barnett Howard & Williams PLLC @BHWLAWFIRM in Fort Worth

9. AIA Contracts and Architectural Firm DisputesThe Vethan Law Firm, P.C. @VethanLawFirm in Houston

8. What Is Written Discovery, And Why Am I Answering It?Herrman & Herrman @herrmanlawfirm in Corpus Christi

7. Criminal Defense Attorney on The Horns of Dilemma –  John T. Floyd of John T. Floyd Law Firm @HoustonDefender in Houston

6. Will Tech Make It Possible for Police to Predict Crime? – Broden & Mickelsen, LLP @BrodenLaw in Dallas

5. The FBI Is Knocking: What’s Next for College Basketball Coaches?Christian Dennie @ChristianDennie of Barlow Garsek & Simon, LLP in Fort Worth

4. Seventh Circuit Holds that the ADA Does Not Require Additional Unpaid Leave After FMLA Leave Is Exhausted – Laura Zabele of Baker McKenzie @bakermckenzie in Houston

3. Allergan Transfers Patents to Native American Tribe – Peggy Keene of Klemchuk LLP @K_LLP in Dallas

2. How Appellate Work Saved Me from Diabetes and Diabetes Made Me a Better Appellate Lawyer – Jeff Nobles of Smith Law Group LLP @SmithLawGroup in Austin and Harlingen

1. Put Down Your Phone But Keep Your Sword in Your Hand –  Drew York of Gray Reed & McGraw @GrayReedLaw in Dallas and Houston

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How Appellate Work Saved Me from Diabetes and Diabetes Made Me a Better Appellate Lawyer

Originally published by Jeff Nobles.

I was diagnosed with type 1 diabetes 44 years ago, on September 24, 1973, and have practiced appellate law full-time since 1989. Appellate law has played a major part in helping me live a longer and healthy life. In 1973, the life expectancy for a teenager diagnosed with diabetes was 50. I turned 59 last month. Here are some of the ways my career has extended my life and diabetes has made me a better appellate lawyer.

Health Insurance

I joined a small Houston firm in 1987 and worked as a trial lawyer for a couple of years. In Texas in 1987, health insurance coverage was not a given for a person with diabetes, and the group insurer for my small firm would not cover me or my wife, Angie. This was a problem that led me to a new job in 1989 with a larger employer, the State of Texas, where I began work as a staff attorney at the First Court of Appeals, just before our first daughter, Audrey, was born.

Health insurance has always been a key factor in my job choices. I’ve mainly worked in law firms that had decent health insurance coverage. Without good health insurance, the annual costs of my diabetes—quarterly endocrinologist visits; insulin; insulin pumps and supplies; test strips and meters; continuous glucose monitors and supplies—would be more than $30,000 annually. Decent health insurance coverage has maintained my health and the ability to work long hours on complicated appeals.

I know of many people with diabetes who have not been as lucky as me. I’m endlessly grateful to the people that make appellate work possible—judges, lawyers, and clients—that I have almost always had good health insurance.

Technology

There’ve been vast leaps in the technology supporting appellate practice and diabetes management during my life and career. When I started, lawyers didn’t have computers; we wrote briefs in longhand, and legal secretaries processed the words on Windows 3.0 and sent our work product to loud daisy-wheel printers. There was no email, texting, or video-conferencing.

The same is true of diabetes management. When I started, people with diabetes took one shot of insulin every day and hoped for the best; there were no insulin pumps and the only way to test our blood glucose levels was to go to a doctor’s office.

Working in offices with quickly evolving technology oriented me to finding and using new diabetes technology. Appellate lawyers have to keep up with ever-new tools for researching, writing, and collaborating. That’s true of diabetes, too. I now have technology that permits me to continuously monitor my blood glucose level on an iPhone app. If it’s trending up, I can push a button on my insulin pump and lower it. The newest technology, the artificial pancreas, allows an insulin pump and continuous glucose monitor (CGM) to talk to each other and make fine adjustments to insulin dosing in real time.

As appellate lawyers, we consume new information and new technology every day at work, and this appetite for finding easier and better technology crosses over into diabetes management. It’s no coincidence that I’ve become an avid and early adopter of new diabetes technology. Practicing appellate law made me this way.

Attitude

As I mature as an appellate lawyer and person with diabetes, it becomes clearer to me that the better habits of appellate practice and diabetes management are related.

Managing life with diabetes has been compared to the swimming of a duck. There’s a great deal of effort, below the surface, underlying the appearance of a duck effortlessly gliding across the water. Good diabetes management is like that. There’s a great deal of blood testing, carb counting, and insulin-dosing behind the scenes of the daily life of a person with diabetes. This is why the writer Scott Coulter calls his diabetes “the invisible disease.”

For appellate lawyers, our work is also like a duck swimming. Ideally, an appellate brief is an elegant document containing arguments whose persuasiveness flows from their beauty, simplicity, and truth. But the many long days and weeks required to produce a beautiful brief may in fact be filled with sweat, exhaustion, conflict, and anxiety.

Diabetes has helped me keep perspective regarding the travails of appellate practice. As my law partner Blake Tartt used to say: “Why should I be upset about problems in my cases? It’s not my problem, it’s my client’s problem.” Appellate practice has helped me understand that diabetes may be managed with the same techniques we use to produce beautiful briefs: consistency, patience, research, analysis, and no more angst than necessary.

How about you? What in your life has made you a better appellate lawyer?

The post How Appellate Work Saved Me from Diabetes and Diabetes Made Me a Better Appellate Lawyer appeared first on Texas Appellate Law.

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The Fifth Circuit Rejects the DOJ’s Attempt to Charge Black Elk Contractors with OCSLA Felonies

Originally published by Sean Toomey, Devin C. Reid and Carson Haddow.

In the aftermath of a 2012 platform explosion in the Gulf of Mexico in which three workers were killed, the Department of Justice ultimately indicted the contractors who supervised the work (along with the lease holder, Black Elk Energy Offshore Operations, LLC) with violating the Outer Continental Shelf Land Act (“OCSLA”), a felony carrying a maximum penalty of up to ten years imprisonment.  The contractors were also charged with certain misdemeanor Clean Water Act violations.  The contractors moved to dismiss the OCSLA charges on the basis that their conduct – as contractors – was not covered by OCSLA because they were not the lease holder or operator.  The district court agreed and dismissed those charges, after which the government appealed.  Earlier this week, the Fifth Circuit ruled against the government finding that contractors cannot criminally violate these OCSLA regulations.  United States v. Moss, et al, No. 16-30561 (5th Cir. Sept. 27, 2017).

In 2010, Black Elk Energy Offshore Operations, LLC (“Black Elk”) owned and operated a production facility on the West Delta 32 Lease Block located in the Gulf of Mexico.  As is customary for a typical oil and gas operation, Black Elk hired several contractors to perform various tasks on its platforms.  Grand Isle Shipyards, Inc. (“GIS”), for example, provided platform workers, the supervisor of which was Curtis Dantin.  Wood Group PSN, Inc. (“Wood Group”) also provided platform workers and supplied a “Person-in-Charge” of the platform, Christopher Srubar.  Srubar, along with other Wood Group personnel conducted safety inspections on the platforms and were in charge of issuing “hot work” permits for tasks that could emit sparks, such as welding.

In September 2012, Black Elk hired Compass Engineering and Consulting, LLC (“Compass”) to draft construction plans for maintenance on the platforms.  Compass hired Don Moss as an onsite inspector to ensure the plans were being followed properly.  During the installation of a divert valve on the Lease Automatic Custody Transfer unit, a Black Elk manager ordered that certain missing piping be rebuilt, which necessarily involved welding by GIS personnel.  Wood Group issued the hot work permit for this task on November 16, 2010.  That morning, an explosion occurred—the cause of which is still in dispute—killing three men and injuring several others.

Almost three years later, the United States brought criminal indictments against multiple parties.  Among other charges, the contractor parties (GIS, Wood Group, Srubar, Moss, and Dantin) were charged with eight counts of knowing and willful violations of the OCSLA enabling regulations.  See 43 U.S.C. § 1350(c).  The contractors moved to dismiss all counts.  The district court denied all of the motions to dismiss except the contractors’ motions regarding the OCSLA charges, which it granted for failure to state an offense on the grounds that OCSLA did not create criminal liability for contractors.  The government appealed.

On appeal, the Fifth Circuit faced a question of statutory interpretation: did OCSLA criminal liability apply to contractors or instead only to lease holders?

The government raised several highly nuanced arguments supporting its interpretation of the statute.  The government asserted that because part of the statute states that “any person” who violates a regulation promulgated under OCSLA is subject to criminal penalties, a contractor – indeed anyone – who violates the regulations may be criminally charged. The Fifth Circuit rejected that interpretation finding that such a reading flies in the face of an explicit limitation found earlier in the statute that limits criminal liability to the lessees and permittees.  Ultimately, however, the Court found it did not need to reach the question of whether that statutory provision triggers criminal liability for contractors because the underlying regulations did not.  Those regulations, which were issued pursuant to OCSLA and formed the basis of the alleged improper conduct, did not apply to contractors.

Turning to the regulations promulgated under OCSLA, the government seized upon a section stating that a lessee and “the person actually performing the activity to which the requirement applies are jointly and severally responsible for complying with the regulation.”  30 C.F.R. § 250.146(C).  This, the government argued, created joint and several criminal liability for contractors.  The Fifth Circuit rejected that interpretation pointing to an earlier section of the regulation that again limits the regulations to a lessee or permit holder.  The Court also voiced skepticism that criminal liability could be based upon a theory of joint and several liability, which is traditionally a civil tort theory.

Fundamentally, the Court ruled that under OCSLA, while the lease holder is criminally liable for the conduct of its contractors (because the lease holder is tasked with ensuring the contractors comply with OCSLA regulations), the statute does not operate in reverse allowing the contractors to be criminally liable by way of the lessee’s liability.  This was purposeful, the Court found, and ensured that “lessees cannot escape responsibility for regulatory compliance by hiring out work to contractors.”  Id. at 13.  Moreover, the Court emphasized that the “virtually non-existent past enforcement of OCSLA regulations against contractors confirms that the regulations were never intended to apply to” contractors.  Id. at 15.

While the Court acknowledged that the Bureau of Safety and Environmental Enforcement (“BSEE”) changed its policy following the Deepwater Horizon spill in 2010 to include contractors within its regulatory sphere, it found that those changes contradicted the agency’s sixty year history of enforcement.  And even if those policy changes were valid in the civil enforcement context (of which the Court was skeptical), the Court ruled that changing criminal law – which carries with it the potential of imprisonment – by such policy adjustments runs afoul of basic due process and fairness.

Also importantly, the Court noted that were the government’s position to prevail, the DOJ itself, without the input of other branches of government, would have significantly changed the commercial landscape in the oil and gas industry for contractors, “who heretofore have had no need to price their services according to regulatory risk; no ability to engage insurance protection for regulatory violations; no need to personally review and apply the exact regulations (because they followed the directives of the designated operator or lessee); and no incentive to impose themselves in the offshore workplace as self-protection against others’ potential regulatory violations.”  Id. at 20.

While this week’s decision may ease offshore contractors’ fears of criminal prosecution under OCSLA, the Fifth Circuit has yet to address BSEE’s civil enforcement of contractor conduct under the agency’s increasingly aggressive civil penalty programId. at 2-3.  In fact, the question of BSEE’s authority to issue civil penalties to offshore contractors is currently before the Fifth Circuit in Island Operating Co., Inc. v. Jewell, a related case which is presently stayed pending resolution of United States v. Moss.  While it is uncertain how the Fifth Circuit will rule in Island Operating, this week’s decision suggests that the court may find that BSEE lacks authority to issue civil penalties to offshore contractors, at least under the agency’s current regulations.

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

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Foundation’s ‘Remembering Our Heroes’ campaign honors veterans, active duty military

Originally published by Eric Quitugua.

The Texas Access to Justice Foundation launched a new campaign to benefit the Joe Jamail Endowment for Veteran Legal Services, a fund created to ensure Texas veterans have fair and equitable access to the justice system. “Remembering Our Heroes” will allow the endowment’s contributors to make donations in name of military veterans—living or deceased—and active duty personnel. The foundation will honor them during Veterans Day events.

“This campaign expands the endowment’s mission to continue the legacy of legal legend Joe Jamail by honoring the legacies of other veterans and providing funding for free legal assistance to those who have fought for our freedom,” Terry Tottenham, chair of the endowment committee of the foundation’s board of directors, said in a press release.

Access to free legal services is critical in Texas, which has the second-highest population of veterans in the United States. Legal issues make up five of the top 10 unmet needs of homeless veterans, according to the Department of Veterans Affairs.

The Texas Access to Justice Foundation funds 14 nonprofit organizations across the state that provide free legal services to low-income veterans with civil legal matters that include the denial of critical medical care, legal issues related to disabilities, family law matters, denial of benefits, and additional issues that may arise because of a veteran’s absence from home during military service. These organizations offer legal services that reach more than 8,000 veterans each year.

Houston attorney Richard Mithoff, a protégé of Jamail, created the endowment to honor his mentor’s vision of access to justice for all.

“The endowment honors Joe’s commitment to access to justice and to our veterans,” Mithoff said in a press release. “But he wasn’t alone in that cause. Remembering Our Heroes will honor the continued legacy of all veterans.”

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When is a Defendant Entitled to a Jury Instruction on Self-Defense?

Originally published by Madeline Pricer.

The Court of Criminal Appeals recently released an opinion regarding when a defendant is entitled to a self-defense charge. The issue facing the Court was whether there was some evidence, from…

The post When is a Defendant Entitled to a Jury Instruction on Self-Defense? appeared first on Fort Worth Criminal Defense Attorney, DWI Lawyer, Sexual Assault Defense.

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Product Liability Claims Against Drug Manufacturers

Originally published by Sawicki Law Firm Blog.

Q: What can I do if I’m injured from a prescription drug?

They say what doesn’t kill you makes you stronger, but that’s not always true. Sometimes it leaves you sicker and weaker. In fact, if you’ve been injured by taking a prescription drug, what doesn’t kill you might motivate you to seek counsel from a skilled Dallas product liability attorney.

Product liability claims are a subset of personal injury law and can arise from defective drugs and devices. Products can be defective in one of three different ways–in manufacturing, design, or marketing.

Manufacturing defects occur during the creation of the product. Design defects mean something is inherently dangerous about the product. Design defects can happen when developers fail to properly investigate or ignore the dangers of their product or when they intentionally omit information in order to get the product on the market.  Marketing defects occur when the developer fails to provider consumers and the public with proper instructions on the appropriate use of the product and warnings of the product’s side effects and other dangers.

A subsection of product liability law involves pharmaceutical drug and medical device injuries. Pharmaceutical attorneys represent people who have been injured by dangerous or defective pharmaceutical drugs.

In a personal injury lawsuit, victims can recover compensation if they can prove they were injured as a result of the negligent, reckless, or intentional actions or inactions of another person or company. Compensatory damages may include medical expenses, future medical treatment, past and future lost income, pain and suffering, and more, depending on the particular circumstances.

Left untreated, diarrhea can kill. It can also be the basis of a product liability action.

Hospitalization for chronic diarrhea and/or significant weight loss or severe intestinal problems are allegedly symptoms connected to use of a blood pressure drug, Olmesartan, which is marketed as Benicar®. Without admitting liability, the drug manufacturer reportedly recently settled a personal injury lawsuit which includes over 2,300 plaintiffs who claim they suffered these conditions after taking the medicine.

Pharmaceutical and medical device claims are complicated and difficult to prove, so it is imperative to retain a skilled attorney with a proven track record of success in these complex actions. You should not suffer in silence when you may be entitled to compensation for your injuries.

If you or a loved one believe you have been injured by a defective drug or device, the Sawicki Law Firm can help.  Contact us to schedule a free evaluation of your case.  From our office in Dallas, we’ve been serving injured clients throughout Texas as well as those who have been injured while visiting Texas. We also represent clients all over the country in our national defective pharmaceutical and medical device practice.

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What Is Written Discovery, And Why Am I Answering It?

Originally published by Herrman & Herrman, P.L.L.C..

When parties cannot come to a settlement agreement, oftentimes a lawsuit must be filed.  After a lawsuit has been filed by the plaintiff, and the defendant or defendants have answered, “discovery” is conducted.  Oftentimes, clients are confused as to the questions they are asked and the documents they are asked to produce.  This is a process known as “written discovery”.

Though discovery typically includes other things such as depositions, the main focus here is on the written discovery that you, as a client, are sent.  This usually includes three main components:

Requests for Admissions

Requests for Admission are pretty self-explanatory; in them, the opposing side will ask you to admit or deny certain facts.  For example, in an accident regarding a car wreck that happened on August 10, 2016, they may ask you to admit or deny that you were involved in an accident on August 10, 2016.  It may seem silly, but this helps to save time and money by allowing the attorneys to not have to argue over certain facts.  If both sides concede they were at the same time and place when the accident occurred, they both know they don’t have to prove it in a trial.

Requests for Production

Requests for Production are when the opposing side asks you to produce certain documents.  In a car accident case, as the plaintiff, you would typically be expected to provide things to back up your damages claims.  If you are claiming you are injured, you will need to produce medical records and billing.  If you are claiming you missed work because of the accident, you will need to produce documents supporting the missed time and your pay rate.  It is important to timely produce these documents to the defendant(s) or they may not be admissible at trial.  If you do not have the evidence to support your damages at trial, the court may not let you recover from them.  It is up to your attorney to determine what documents the defendant is entitled to.  You are allowed to object to producing documents, and it is up to the opposing side whether they want to take it up with the court.

Interrogatories

The last portion of written discovery is Interrogatories.  These are questions that the opposing side asks you in written form.  There is usually a limit to how many they may ask.  Here, they will ask questions such as “Where were you heading on the day of the accident?” or “Where had you been prior to the accident on August 10, 2016?”  It is important to answer these questions truthfully, as you are swearing to them being true.  If your answer changes later on in a deposition or at trial, the opposing side will most likely use this against you to make you sound untruthful.

Written discovery can be tedious but it is the backbone of your claim.  It is important to have an experienced attorney to help guide you through this process.  If you feel as though you’ve been wrongfully injured, contact the lawyers at Herrman & Herrman to evaluate your claim today.

The post What Is Written Discovery, And Why Am I Answering It? appeared first on Herrman & Herrman, P.L.L.C.

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Illustrating the Law Thru "Picture Books": An Ancient Practice that Might Help in Learning Today!

Originally published by lawschool academicsupport.

Perhaps surprisingly, there might be some ancient history right under your nose illustrating the value of creating “picture-books” to teach, guide, synthesis, and communicate legal principles at work. At least, that’s the case at one law school’s library (and it…

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The FBI Is Knocking: What’s Next for College Basketball Coaches?

Originally published by Christian Dennie.

Earlier this week, the college basketball community was rocked by allegations of payments exchanging hands relating to the recruitment of prospective student-athletes and the federal government’s  investigation thereof.  I have a firm rule in life and in practice to steer clear of the scrutiny of the federal government.  However, it is not always that simple. Coaches around the country are likely shaking at the idea of facing federal prosecution.  Federal prosecution, however, is not the only regulation coaches should fear.

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Thursday, September 28, 2017

Put Down Your Phone But Keep Your Sword in Your Hand

Originally published by Drew York.

Co-author: Skyler Stuckey

After finishing his weekly rehearsal for an upcoming Robin Hood performance at his local theatre, Wiley Enferee walked into his local Mega-Mart at his wife’s behest to buy a gallon of milk.  Not thinking, Wiley walked into the store still carrying his sword on his hip.  Wiley quickly found the milk and paid in the self-checkout line, but not before concerned shoppers notified store employees, who quickly called the police.  One store employee, Sam Aritan followed Wiley into the parking lot.  Wiley left before the police arrived, but Sam jotted down his license plate and told officers which way Wiley went.  Officers quickly found Wiley in his car, and noticed he was swerving and looking down.  The officers pulled Wiley over and placed him under arrest.  Wiley explained that the sword was just a prop and he’d forgotten to take it off.  The officers let him go but wrote him a ticket for texting while driving.  Wiley is upset that he ended up with a ticket when he was just minding his business.  Should Wiley put up a legal fight?

 

New Texas Laws Starting September 1 

Texas lawmakers passed a large slate of new legislation this spring, with several laws going into effect this September. The laws touch on a variety of issues, but the two laws that may have the most visible effects are HB 1935, the new “location-restricted” blade law, and HB 62, the texting-while-driving ban. Here’s a quick look at the ins and outs of these new laws and how they might affect your day-to-day.

HB 1935

Previously, it was illegal to carry a knife with a blade over 5.5 inches in length[1] in public in Texas. HB 1935 is designed to remove restrictions on the open carry of long knives and other blades by those over 18 years in age. It, ultimately, does several things:

  • Removes the total restriction on carrying blades over 5.5 inches in length in public, as well as the total restriction on carrying swords, bowie knives, and spears.[2] Instead, it creates a new category of weapon in Texas Penal Code Chapter 46.01(6), the “Location-restricted knife” that is defined as a “knife with a blade over five and one-half inches”.[3]
  • Makes it a crime for an adult to intentionally, knowingly, or recklessly carry a location-restricted knife in any of the following locations:
    • On the premises of a school or educational institution, including grounds or buildings on which a school-sponsored event is occurring, or a vehicle of a school or institution, unless it is pursuant to written regulations or authorization from the school;
    • a polling place on the day of an election or during early voting;
    • the premises of a government court or office used by the court, unless pursuant to written regulation or authorization of the court;
    • to a racetrack;
    • in or into the secured area of an airport;
    • within 1,000 feet of a location used for executions on the day that a death sentence is set to be carried out, if the person received notice that such carrying was prohibited;
    • to a business that derives 51 percent or more of its business from the sale or service of alcoholic beverages (blades and Budweiser don’t mix);
    • to a high school, collegiate, or professional sporting event or interscholastic event, unless the person is a participant in the event and the location-restricted knife is used in the event (so the fencing team is safe);
    • to a correctional facility (wouldn’t want to give the inmates a weapon);
    • to a hospital, mental hospital, or nursing home, unless the person has written authorization from the facility administration;
    • to an amusement park (you try riding the Texas Giant with a broadsword);
    • to a church, synagogue, or other established place of religious worship.
  • Makes carrying a location-restricted knife to a school or university a third-degree felony, while carrying it to any of the other above-listed locations is a Class C misdemeanor.
  • Makes it a Class A misdemeanor to sell, rent, lease, or give a location-restricted knife to anyone under 18 years of age.
  • Clarifies that HB 1935 does not apply to an individual carrying a location-restricted knife if the knife is to be used in a historical demonstration or in a ceremony in which the knife is “significant to the performance of the ceremony.” Thus, you can take the sword to a battle reenactment without fear of going to jail.

HB 1935 does not contain any “open” or “concealed” language in regards to how a blade may be carried; it is as legal to carry your sword on your hip as it is in a bag or under a jacket. Notably, Texas is not alone in having a law to allow long blades in public, both Montana and Oklahoma have similar legislation on the books.

HB 62 – No Texting in Traffic

If you are used to driving with your iPhone in hand, you may need to get used to storing it in the glove box. HB 62 bans the use of cellular devices to send messages while a vehicle is moving. Texas joins 46 other states and the District of Columbia by enacting such a ban. Violations of the new law will be considered misdemeanor offenses, and will typically carry a fine between $25 and $99, with fines between $100 and $200 for repeat offenders. No points against a driver’s license will be assigned for violations of the law.

The law, as written, only bans the “reading, writing, or sending [of] electronic messages”[4] by a vehicle’s driver on a “wireless communications devices” while the vehicle is in motion. It does not, on its face, ban the use of a smart phone to search its internet browser for restaurants, stores, or other destinations, browsing streaming music applications, or dialing phone numbers.

Additionally, it is a defense to any prosecution under the new law if the driver was using the cell phone in conjunction with a hands-free device to navigate using GPS or a phone’s map applications, to report illegal activity, summon emergency help, or enter information to an application that provides updates on traffic conditions (such as Waze), to read a text or email that the person “reasonably believed concerned an emergency”, if the phone is affixed to the vehicle to relay information in the course of occupational duties (such as an Uber or Lyft driver), or to activate a function that plays music.

Tilting the Scales in Your Favor

Wiley’s tale teaches an important lesson: be prudent.  Whether what you’re doing is right or wrong, you should think ahead about the potential risks involved because you might be able to avoid an unexpected hassle and headache out of the situation.

Many thanks to Skyler Stuckey at Gray Reed for researching and summarizing the two new laws. 

 

[1] It was also illegal to publicly carry a throwing knife, a dagger, dirk, stiletto, poniard, bowie knife, sword, or spear under Texas Penal Code Chapter 46.01(6). All of those restrictions have been removed under HB 1935.

[2] Tomahawks and trench knives (or any knife that incorporates “knuckles”), however, remain illegal to carry under Penal Code Sections 46.01(1)(D) and 46.05(2), respectively.

[3] Based on judicial precedent in Texas, the 5.5 inches is measured from the hilt of the knife (or where the hilt would normally be if one does not exist) to the point of the blade.

[4] The statute defines an “electronic message” as data that is “read from or entered into a wireless communication device for the purpose of communicating with another person.” This would seem to cover texts and emails, but exclude from the statute any information being entered into the phone, even if typed, that was not meant to communicate, such as typing in a website, using navigation services, or making notes.  

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Dallas Volunteer Attorney Program provides free legal clinics for area residents

Originally published by Justine Vasquez.

The Dallas Bar Association and Legal Aid of NorthWest Texas will hosts 11 free legal clinics in October for eligible Dallas County residents.

The clinics offer free legal advice and consultation in civil matters for those residents who meet certain income requirements under Legal Aid of NorthWest Texas guidelines. Applicants are asked to bring proof of income, identification, and legal papers with them to the clinic.

Schedules and locations are as follows:

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

  • 5 p.m. Tuesdays, Oct. 3, 10, and 24

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

  • 5 p.m. Thursdays, Oct. 5 and 19

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

  • 1:30 p.m. Friday, October 6

West Dallas—2828 Fish Trap Road Dallas, Texas 75212

  • 5 p.m. Thursdays, Oct. 12 and 26

St. Phillip’s Community Center—1600 Pennsylvania Ave., Dallas, Texas 75215

  • 5 p.m. Tuesday, Oct. 17

Friendship West Baptist Church—2020 W. Wheatland Road, Dallas, Texas 75232

  • 5 p.m. Wednesday, Oct. 18

Garland—Salvation Army, 451 W. Avenue D, Garland, Texas 75040

  • 5 p.m. Thursday, Oct. 19

The Dallas Volunteer Attorney Program (DVAP) is a joint initiative of the Dallas Bar Association and Legal Aid of NorthWest Texas. For more information on DVAP, please visit here.

The Dallas Bar Association is a professional organization of more than 11,000 Dallas-area attorneys. For more information, click here.

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Leaving No Stone Unturned: Closing the Funding Gap for Real Estate Developments

Originally published by Robin Tooms.

The upfront costs to real estate development can be burdensome for real estate developers. Necessary infrastructure, roads, water, sanitary sewer and drainage facilities need to be constructed and/or existing facilities expanded to accommodate development. Recent real estate development trends in residential, office and retail projects often require an increase in availability and quality of amenities that have significant initial expense and reduce overall income producing square footage and, thereby, long term gains. Conventional financing requires equity and the trend of conservative appraisals may not allow access to dollars from institutional investors sufficient to meet market demands of end use occupants and tenants. The constraints of available funds from institutional lenders may require that real estate developers seek additional funding sources to fill the gaps in order to meet the aspirations of their project plans.

Funding real estate developments through bonds and tax breaks and incentives may be worth exploring to help provide additional sources of financing for developments. Specifically, Special Utility Districts, Chapter 380/381 Agreements, Public Utility Districts and Tax Increment Reinvestment Zones are a few alternative sources of funding that a developer can and should explore to offset some of the upfront development costs.

Special Utility Districts

Many developers establish municipal utility districts, fresh water supply districts and other special utility districts to access funding to complete necessary infrastructure to extend or expand roads and water and sanitary sewer services to a development. The special utility districts may also provide funding for storm water drainage improvements and recreational facilities. The districts are a separate governing authority established with approval by the State, and have authority to issue bonds and collect assessments. They may be established within the jurisdictional limits of an existing municipality or in unincorporated areas of a county outside of any city limits. Construction of improvements is subject to public bid requirements and improvements constructed must be dedicated and/or conveyed to the special utility district or other governmental entity (i.e., city or county). While up front costs for qualified facilities must be born initially by the developer, once the assessed values of the development are sufficient to support the sale of bonds, the bonds may be sold to the public and proceeds from those bonds applied to repay the developer for the initial upfront costs incurred for the qualified facilities. The reimbursements may be applied to hard construction costs as well as soft costs for design and administrative expenses. Often institutional lenders will expand availability of financing by accepting the future reimbursements payable to a developer by these districts as additional collateral.

Chapter 380/381 Agreements

Chapters 380 and 381 of the Texas Local Government Code allow certain municipalities and counties, respectively, to provide grants or loans to developers to fund projects for the purpose of promoting local economic development and stimulating commercial and business activity within its jurisdiction. The city or county is authorized to provide a developer with reimbursements of development costs from various sources of revenue available to the jurisdiction so long as the expenditure complies with the jurisdiction’s current adopted budget or circumstances allow an emergency amendment to such city or county’s budget, and the source of funds for such expenditure is permissible under the applicable governing jurisdiction’s charter or other applicable law.

For example, a city may provide reimbursements of a developer’s funds to renovate the façade of an existing retail center or to add a parking garage to accommodate the requirements of an anchor retail tenant, and fund such reimbursements from the additional sales tax revenues collected by the city as a result of the retail tenant’s operations in the renovated shopping center. In some cases, development dollars may be available from revenues of the jurisdiction and available in advance to fund such project improvements. While the possibilities under Chapter 380/381 of the Texas Local Government Code are expansive, the applicable jurisdiction may place certain restrictions or limitations on the availability of funds. For example, the City of Houston has adopted an ordinance setting forth requirements for any application requesting a Chapter 380 agreement with the city (See http://ift.tt/2fBsa6a).

Public Improvement Districts

A Public Improvement District (PID), unlike a Special Utility District, is not a separate political subdivision, but is rather a geographical area designated by a municipality or county and made subject to special assessments. A PID has the authority to issue bonds to fund up-front development costs. A PID may also be structured to collect assessments and reimburse developers for up front development costs as the amount of assessments collected may allow. A lien on the real estate secures the obligation of property owners within the boundaries of a PID to pay PID assessments. PIDs may be used to finance costs of streets, water, wastewater and drainage facilities, public art, recreation and cultural facilities, community facilities (i.e., libraries), mass transit improvements, landscaping, and/or acquisition, renovation and/or construction of affordable housing.

Unlike Special Utility Districts, the amount of PID bonds that may be issued is limited to one-third of the appraised land value plus all cost of improvements, or one-third of the land value established by contracts in place. Additionally, the authority to issue PID bonds is retained by the municipality or county establishing the PID, rather than through a separate governing body. Further, PID assessments are fixed over a term of years and will not increase or decrease with assessed values of the property within a PID and may be pre-paid by a property owner at any time, which provides cost certainty to property owners.

Tax Increment Reinvestment Zones

Tax Increment Reinvestment Zones (TIRZs) are a way for a developer to recoup development costs for a project through reimbursements from the city without subjecting the property owner or occupants to additional tax assessments. TIRZs are formed by the city in accordance with Chapter 311 of the Texas Tax Code. The city may establish and set the boundaries of a TIRZ for redevelopment in a blighted area or an area that would benefit from redevelopment by increased density or product type, where redevelopment would add benefit to the economic or social welfare of the TIRZ area. By agreement with the developer, the city establishes a base tax year (which may apply to sales tax revenue or property tax revenues for such base tax year) and as the property values and/or economic activity is increased by the redevelopment, the additional revenues collected by the city over the base tax year for property or economic activity within the TIRZ are used to fund the reimbursements to developers within the TIRZ. In this regard, there is no additional assessment or tax imposed on property owners or occupants, but rather revenues in excess of those collected in the base tax year are diverted to offset costs of redevelopment.

Conclusion

As construction costs continue to increase, infrastructure needs expand, and tenants and end-users require ever expanding amenity packages, new development costs continue to grow. Because of these cost increases along with non-revenue generating items, returns that a developer could historically expect may be decreasing. It is more critical than ever to know all of the options when it comes to securing additional financing for your next development.

The post Leaving No Stone Unturned: Closing the Funding Gap for Real Estate Developments appeared first on Houston Law Firm | BoyarMiller.

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Post-Graduation Interaction with Academic Support

Originally published by lawschool academicsupport.

Does academic support extend beyond the law school environment and the time students are at an institution? Does it take on a different form? Is it even academic support anymore? We have a general idea of what academic support offices…

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7 Steps to Creating a Law Firm Newsletter Clients Look Forward to Reading

Originally published by Amy Boardman Hunt.

Law firm newsletters are an inexpensive and effective way to stay in touch with your firm’s clients and professional network. When done well, a newsletter can also boost a firm’s credibility among other important audiences, including general counsel and others who make outside counsel hiring decisions. According to a 2017 survey by Greentarget, 87 percent […]

The post 7 Steps to Creating a Law Firm Newsletter Clients Look Forward to Reading appeared first on Muse Communications.

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5 Tips For Perfecting Your Law Firm’s Social Media Designs

Originally published by Stacey E Burke Blog.

It’s no secret that imagery is a major component of social media marketing today. As marketing professionals, we cannot stress enough the importance of featuring visual content on your social platforms. This goes beyond sharing the occasional photo or graphic on your feed. Today we are specifically highlighting the value of clean, professional social media designs.

Believe it or not, the cover photos and avatar images from your law firm’s social accounts are sometimes the first visuals people will see relating to your law firm. So how do you make a good first impression? After all, 65% of people are visual learners and will form an opinion about your law firm based on what they see online. Fortunately for you, we have a few tips and tricks up our sleeve for you to master the art of a perfect law firm social media profile.

1. Consistency Is Key

We’ve said it before and we will say it again, all branding for your law firm needs to be consistent, and social media designs are no exception. Cover photos, profile images, and usernames need to be consistent across all of your firm’s social media channels. While they do not need to be identical, they need to look related. Need a starting point? The law firm website is a great place to start. You’ll want to use the same fonts, color scheme, and logo used on your website in your social designs so clients will immediately recognize your business.

2. Keep It Simple

Yes, it’s true that consumers appreciate visuals – but if your images get too busy you run the risk of overwhelming and losing potential new clients. Keep the “less is more” proverb in mind and avoid cluttered, irrelevant visuals to represent your firm. Clean and professional is always the way to go.

3. Play By The Rules

Each social media platform has its own guidelines and requirements when it comes to profile images. Whether it’s the size of the profile and cover photos, actual content, or logos, etc., you want to make sure you’re in the know and following social media channel design best practices.

Standard sizing for social imagery is as follows:

 

4. Include Key Information

While we do want to keep the design clean and simple when it comes to your cover photo and profile image, contact information can be a great use of space. Rather than forcing potential clients to click through several tabs to find your website URL or phone number, simply list the information in your cover photo.  You can also include things like “Se habla español,” your firm’s tagline or mission, or your practice areas.

Below are a few examples of clean cover photos with a smart use of space in the image. Notice in each cover photo you immediately get a clear idea of what the firm does, and how to reach them:

5. Make Sure Your Social Media Channel Designs Are Mobile Friendly

Most people will access your social media channels while on their phones, as almost 80% of the time spent on social media platforms happens on a mobile device. This is another area in which the sizing of images and the content contained in your designs are essential. Make sure the most important information is displayed correctly on every type of mobile device.

It’s important to view your social profiles on various devices to ensure a flawless display. To do this, Google your social profiles on your mobile phone’s browser, test out how your profile displays on the actual social media apps, and look at third party apps such as Hootsuite or TweetBot to cover all of your bases.

Need Help?

If you’d like a few social media experts to take a look at your law firm social media profiles, or build out completely new profiles, contact us today.

 

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Hearing an anti-SLAPP motion

Originally published by David Coale.

“The text of [Civil Practice Code] sections 27.008(a) and 51.014(a)(12) is clear. A movant for dismissal under section 27.003 may bring an interlocutory appeal from the express denial of the motion to dismiss or from the denial by operation of law resulting from the trial court’s failure to rule on the motion within thirty days after the hearing. Id. §§ 27.008(a), 51.014(a)(12). If the trial court does not expressly deny the motion to dismiss and the motion to dismiss is not denied by operation of law because there was no hearing, then there is no order subject to an interlocutory appeal.”

Does such a rule produce an “absurd result” because it lets a trial court “deny a defendant the right to an early dismissal of a meritless and retaliatory suit by refusing to set the motion for a hearing or refer the case to a judge or associate judge to hear the motion”? Held, no: “The statute requires a defendant seeking its protections to move for dismissal and obtain a hearing on the motion within certain clearly defined periods. The failure to meet these requirements results in the defendant forfeiting the statute’s protections.” Braun v. Haley and Braun v. Gordon, (Sept. 26, 2017) (mem. ops.)

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An “Appendage” Determines a Louisiana Royalty Dispute

Originally published by Charles Sartain.

In Glassell Producing Company v. Naquin, the question was:

Did a conveyance among siblings create a real right in property, or was it an appendage of a lease that ceased to burden the property once that lease was terminated?

  • Carol, Junius and Dolores each inherited an undivided 1/3rd interest in their father’s 1/16th interest in 31 acres in Lafourche Parish.
  • A 1947 mineral lease provided for a 1/8th royalty. In decimal form, each sibling acquired a .00781255 royalty interest under the lease.
  • In 1993 Junius and Dolores signed an act of cash sale to Carol in which each conveyed “All of Seller’s right, title and interest consisting of an undivided one third in a .00781255 mineral royalty interest…”
  • The 1947 lease terminated and Carol signed a new lease with Glassell. Carol received a 1/6th royalty. Delores and Junius did not sign.
  • Junius, Carol and the heirs of Dolores began arguing.
  • Glassell initiated a concursus and deposited $397,000 into the court registry.
  • Junius failed to answer timely, so he’s out.

Carol’s position: Junius and Dolores sold all their royalty interest in the property, and the reference to the .00781255 interest was a typographical error by the notary.

Glassell: Delores placed no limitation on the royalty interest conveyed. There was no reference to the lease in the deed.The deed is a general conveyance of her entire royalty interest under La. R.S. 31:80.

Heirs of Delores: She only assigned her royalty interest in the 1947 lease. The language is limited to the royalty percentage in that lease and did not purport to convey future royalty interests. Carol could not grant a lease because all she obtained was a royalty interest; which makes Delores an unleased owner in the well.

Is there no justice?

Carol’s undisputed affidavit asserted that Junius and Dolores intended to transfer all of their rights in an effort to divest themselves of income so as to qualify for government assistance. Delores still gets the income. Go figure.

The court

The owner of a royalty has no executive rights. A royalty that is an appendage of a lease depends on the continued existence of the right to which it is an appendage.  It ceases to burden the property when the lease terminates.

Civil Code Art. 2052: When parties intend a contract of general scope but, to eliminate doubt, include a provision that describes a specific situation, interpretation must not restrict the scope of the contract to that situation alone.

The deed is devoid of language evidencing a general transfer of all of Dolores’ royalty interest. “All of Seller’s right title and interest” modifies the phrase “consisting of one undivided one third … royalty …”. The deed was a discrete conveyance of the .00781255 royalty interest in the 1947 lease. The interest conveyed by Dolores was an appendage to the 1947 lease. When the lease terminated the royalty interest ceased to burden her interest.

There was no merit in Carol’s argument that the reference to the royalty interest in the 1947 lease was a typographical (scrivener’s) error.

The heirs of Delores are unleased owners in the well.The trial court will divvy up the money.

Our musical interlude is for Junius and Delores before they went on the dole.

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Hays County Bar Association hosts conference

Originally published by Adam Faderewski.

Registration is open for the seventh annual Hays County Bench Bar Conference on October 13 at Camp Lucy in Dripping Springs.

The Hays County Bar Association hosts the conference in partnership with the Caldwell County and Comal County bar associations. The event will feature county court judges, state appellate judges, and other speakers and will include networking opportunities. Conference attendees will receive 5.4 CLE hours, including one ethics credit.

A silent auction at the conference will benefit the Central Texas Dispute Resolution Center. Attendees may also support the sheriff office’s Brown Santa program or donate to the Greater San Marcos Area Youth Council.

For more information, to register, or sign up for a sponsorship, go to http://ift.tt/2xNZHkx or contact Jennifer Caldwell at (512) 477-4704 or Jennifer@sarahbrandon.com.

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Can Police Arrest a Person for Shoplifting Before They Leave the Store?

Originally published by Shelby Sterling.

The Court of Criminal Appeals recently handed down a case regarding a police officer’s findings of reasonable suspicion and probable cause. The issue was whether an officer had probable cause…

The post Can Police Arrest a Person for Shoplifting Before They Leave the Store? appeared first on Fort Worth Criminal Defense Attorney, DWI Lawyer, Sexual Assault Defense.

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Recent Changes to Durable Power of Attorney Statute

Originally published by Rania Combs.

The legislature made several beneficial changes to the Durable Powers of Attorney statute that went into effect on September 1, 2017. Below are a few of the most significant changes:

  1. Prior to September 1, 2017, financial institutions routinely rejected financial durable powers of attorney for a myriad a reasons. The statute now identifies eleven specific grounds on which a financial institution may reject a power of attorney, such as if the financial institution has actual knowledge that the power has been revoked. Barring those reasons, the financial institution must accept the power or (1) request an agent’s certification; (2) request an attorney opinion; or (3) request an English translation of a power of attorney in another language within a specific amount of time.
  2. Under the prior statute, only the principal or an appointed guardian had the standing to initiate a proceeding to determine whether the agent is acting improperly.  The statute now permits actions to construe a power of attorney or review the agent’s conduct by: (1) the principal or agent, (2) a guardian or fiduciary of the principal, (3) a person named as a beneficiary to receive the property on the principal’s death, (4) a government agent, or (5) any other person who demonstrates to the court sufficient interest in the principal’s welfare or estate.
  3. The new notice at the beginning of the statutory form makes it clear that if a principal wants the agent to have the ability to execute home equity loan documents, the principal must sign the power of attorney in the office of a lender, an attorney, or a title company.
  4. The statute provides that an agent may take the following actions on the principal’s behalf or with respect to the principal’s property only if the power expressly grants them:
    1. Create, amend, revoke, or terminate an intervivos trust;
    2. Make a gift;
    3. Create or change rights of survivorship;
    4. Create or change beneficiary designations; or
    5. Delegate authority granted under the power of attorney.

    Unless the power of attorney provides otherwise, an agent who is not an ancestor, spouse, or descendant of the principal may not create in the agent (or a person to whom the agent owes an obligation of support) an interest in the principal’s property. Additionally, unless the power expressly provides otherwise, the power to make gifts is limited to amounts within the annual gift take exclusion (or twice that amount if the principal’s spouse agrees to split gifts).

  5. The statute explicitly provides that an agent may only make gifts if they are consistent with the principal’s objectives if those are known, or consistent with the principal’s best interests.

Next up is the Medical Power of Attorney statute. A new statutory medical power of attorney form goes into effect on January 1, 2018. The primary difference between the current and new form is that the disclosure statement that precedes the medical power of attorney is now included as part of the power of attorney. Additionally, the disclosure statement makes it clear that an appointment of a spouse is revoked if the marriage is dissolved, annulled, or declared void unless the power of attorney states otherwise.

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Does an insurer’s delay for an appraisal create a Prompt Payment problem?

Originally published by David Coale.

In Mainali v. Covington Specialty Ins. Co., the Fifth Circuit addressed “whether a payment made to comply with an appraisal award, which in most if not all cases is going to be paid after the 60-day window [set by the Texas Prompt Payment statute], is subject to [a statutory] penalty.” In an Erie analysis, the Court followed intermediate Texas authority that held such a payment was not subject to those statutory penalties, observing: “Covington was not trying to avoid payment of the claim; it was invoking a contractually agreed to mechanism for assessing the amount it owed.” No. 17-10350 (revised Sept. 27, 2017).

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AIA Contracts and Architectural Firm Disputes

Originally published by Vethan Law.

AIA Contracts and Architectural Firm Disputes
Can an architectural firm terminate a license to use its drawings and specifications? Yes, yes it can.

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Will Tech Make It Possible for Police to Predict Crime?

Originally published by Criminal Defense Lawyers BRODEN & MICKELSEN LLP DALLAS.

The company behind police tasers is introducing a body camera that will enable police to “anticipate criminal activity.”

Several years ago, Steven Spielberg made a movie called “Minority Report,” in which police officers in the future used technology to predict crimes. They were able to “see” crimes before they happened, and they arrested the future perpetrator before the crime could take place.

As you might expect, this cut down on crime, but it wasn’t foolproof. Is a “predicted” crime a crime? If the actual crime doesn’t take place, what is the person being prosecuted for? And what if the technology makes a mistake? In the movie, that’s precisely what happens to Tom Cruise’s character when he’s accused of a future murder in error.

If this sounds like nothing more than an interesting movie plot, think again. According to one report, the company behind police tasers is introducing a body camera that will enable police to “anticipate criminal activity.”

Police Body Cams That Predict Crime

The Intercept reports that Taser International—the company that manufacturers taser guns and other police technology—has acquired a “computer vision” startup. Taser plans to market the computer vision technology to police departments and says officers will be able to “automatically…detect emotions and objects” without human intervention.

In essence, artificial intelligence will analyze a person’s face and characteristics and compare it to millions of faces and other information in police databases.

Although Taser says the more advanced features of its product are between five to seven years away, it believes that computer analysis can be used to predict future criminal activity. “Analytics will also allow departments to observe historical patterns in behavior for officer training,” a company spokesperson stated.

An Arizona State University scientist who contributed to the Law Enforcement Technology Report stated: “…patterns of individual behavior will become increasingly informative in revealing the probability that an individual will act in a particular fashion.”

A portion of the report states, “Imagine you can find out if someone has a criminal record instantly — or be notified if someone’s demeanor has changed and may now be a threat.”

While this technology may still be years away, retailers are already using computer analysis and artificial intelligence to predict what people will buy. As the article points out, Wal-Mart, Amazon, and Google comb user data to optimize search results and tailor what types of content people see online.

Sources:

  1. http://ift.tt/j3QslA
  2. http://ift.tt/2pjrKDD
  3. http://ift.tt/2oLQyFO

Dallas White Collar Criminal Defense Lawyer

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Broden & Mickelsen, LLP

2600 State St Dallas, Texas 75204

Main Phone: (214) 720-9552

The post Will Tech Make It Possible for Police to Predict Crime? appeared first on Dallas Criminal Defense Attorneys |State & Federal Lawyers.

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US 10th Circuit dismisses Obama-era fracking litigation

Originally published by Barclay Nicholson (US) and Robby Marcum (US).

The US 10th Circuit on Thursday dismissed the challenge to an Obama-era fracking rule that imposed strict requirements on oil and gas operators on federal and tribal lands. The rule was blocked in 2015 and never took effect.

The three-judge panel dismissed the case in its entirety—including the lower court’s decision to block the rule—in light of the fact that the US Bureau of Land Management earlier this year asked the court to pause its review of the rule and recently proposed a measure to rescind the Obama-era regulations. These actions followed the change in US administrations.

Said the court, “Our proceeding to address whether the district court erred in invalidating the BLM’s fracking regulation when the BLM has now commenced rescinding the same regulation appears to be a very wasteful use of limited judicial resources.”

The Obama-era requirements, which concern well casing, wastewater storage, and disclosure of chemicals used in fracking, have been the subject of dispute between industry and environmental and citizen groups since they were enacted in March 2015.

That dispute continues now as parties must determine whether the 10th Circuit’s dismissal of the district court’s decision to block the rule means the regulations proceed toward effect while BLM continues the rulemaking process aimed at rescinding the regulations, or whether the rule has effectively met its end.

For continuing coverage of this and other stories, subscribe to the Hydraulic Fracking Blog.

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Wednesday, September 27, 2017

SolarCity Settles Grant Fraud Allegations

Originally published by Energy Legal Blog ®.

In another reminder that doing business with the federal government presents unique risks, on September 22, 2017, the U.S. Justice Department announced that SolarCity Corporation had agreed to pay $29.5 million to resolve the government’s allegations that SolarCity and related entities had violated the Civil False Claims Act. (31 U.S.C. § 3729.)  The allegations and settlement stem from federal grants for renewable energy projects under Section 1603 of the American Recovery and Reinvestment Act of 2009. (Public Law 111-5.)

Robert Wagman
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Washington Supreme Court decision raises questions for law firms that both represent insurers and defend the insurer’s policyholders

Originally published by Diane Polscer.

The Washington Supreme Court recently decided Arden v. Forsberg & Umlauf, P.S., 2017 Wash. LEXIS 911 (September 14, 2017), a case involving the ethical obligations of law firms retained by an insurer to defend the insurer’s policyholder.  While the Court of Appeals had held that a law firm with an insurer for a client may defend that insurer’s policyholder in an unrelated matter without creating a conflict of interest, or even disclosing that it also regularly represents the insurer in coverage matters, the Supreme Court affirmed only on the basis that the plaintiffs had not established damages as a result of any potential failure to disclose.  In dicta, the Supreme Court suggested the seminal case recognizing the duty of good faith owed by insurance defense counsel, Tank v. State Farm Fire and Casualty Co., may not apply because the “inherent conflict of interest concern in Tank did not fully materialize.”  The Court also suggested that because the law firm provided coverage advice on unrelated cases, it may have needed to disclose that relationship before representing the insurer’s policyholder.  The majority opinion carried a narrow 5-4 margin, with the minority concurring in the result but disagreeing with the dicta regarding application of Tank and defense counsel’s duty to disclose its relationship with the insurer.

 

In this case, a couple insured under a Hartford homeowners’ policy, the Ardens, shot and killed their neighbors’ puppy.  The neighbors sued the Ardens for willful conversion, malicious injury, intentional or reckless infliction of emotional distress, gross negligence and willful or reckless property damage.  The Ardens sought coverage under the liability portion of their homeowners’ policy.  After initially denying a defense due to the policy’s intentional act exclusion, Hartford agreed to defend  the Ardens after the Ardens retained personal counsel, Jon Cushman, to assist them on coverage matters and monitor their defense.

 

Hartford retained the Seattle law firm Forsberg Umlauf, which regularly represents Hartford in coverage matters and Hartford’s insureds in unrelated defense matters, to defend the Ardens in a lawsuit by the neighbors.  Forsberg sent the Ardens a letter explaining it was defending them in the suit against them and that it would not provide coverage advice to them or to Hartford.  Hartford did not initially indicate that the defense was subject to a reservation of rights to deny coverage.  Hartford eventually sent a reservation of rights letter after the neighbors issued a settlement demand.

 

The claimants made a timed settlement demand of $55,000 on the Ardens.  Cushman demanded Forsberg accept the demand and Hartford pay it.  Hartford declined because it needed documentation from pending discovery responses regarding claimed damages and information about case value.  Forsberg explained to Cushman it wanted to wait until it had received claimants’ discovery responses, and requested and received an extension from the claimants.  Cushman did not object to the extension at the time.

 

After receiving the claimants’ discovery responses, Forsberg prepared a detailed litigation report and case evaluation and shared it with Cushman before sending it to Hartford.  It included a number, $35,000, Forsberg believed the case could be settled for.  It told Cushman it would allow the timed $55,000 demand to expire, then offer $18,000 with the goal of ultimately getting to $35,000.  Neither Cushman nor the Ardens objected.  The claimants then made another timed settlement demand, this time for $40,000.  Hartford told Cushman it would allow this demand to expire then counter at $25,000.  Cushman did not object to this offer at the time but later argued Hartford acted in bad faith by not accepting the $40,000 demand.  The claimants rejected the $25,000 offer.

 

The Ardens then filed suit against Hartford asserting bad faith and other claims, and the Ardens later added Forsberg as a defendant.  Hartford, the Ardens, and the neighbors ultimately globally settled their claims at mediation a few months later.  The only claims reserved were the Ardens’ claims for breach of fiduciary duty and legal negligence against Forsberg.  The trial court granted Forsberg’s summary judgment motion, dismissing the Ardens’ claims against it.  The Ardens appealed.

 

The Supreme Court first determined that the requirements of Tank—which outline the duties of insurance defense counsel when the insurer defends under a reservation of rights—may not apply because the “inherent conflict of interest concern in Tank did not fully materialize.”  The Court explained that Tank may not apply because (1) the insurer did not initially defend under a reservation of rights and (2) the insurer still made settlement offers notwithstanding its reservation to deny coverage and the insured was never asked to contribute toward settlement.  Even if Tank were to apply, the Court reasoned, there was no evidence that Forsberg failed to comply with Tank’s requirements of good faith.  Forsberg fully investigated the incident, informed the Ardens that it represented only the Ardens, and fully informed the Ardens of all settlement activity.

 

The Court then assessed Forsberg’s alleged duty to disclose its relationship with Hartford.  The Court recognized that Forsberg could be liable if its work for Hartford constituted a “significant risk” of a material limitation on its representation of the Ardens under RPC 1.7, because it did not disclose the relationship and obtain the Ardens’ informed consent.  The Court noted the competing expert opinions about whether Forsberg should have disclosed the relationship and obtained informed consent, and explained that the competing opinions would generally give rise to a genuine issue of fact precluding summary judgment.

 

The Court held that, even assuming that a breach of duty existed, the Ardens had not established any damages as a result of the alleged breach of duty.  The Court therefore affirmed summary judgment in favor of Forsberg because there was no evidence of recoverable damages.  The concurring justices agreed that lack of evidence of damages supported affirming dismissal of the Ardens’ claims, but they did not join in the dicta suggesting a limited application of Tank or the discussion of Forsberg’s potential breach of duties.

 

The Court left several questions remaining to be resolved by future decisions, including when the “inherent conflict of interest” in Tank may “fully materialize,” and the type and nature of relationships between law firms and insurers that may require disclosure when defending that insurer’s policyholder.

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Tuesday, September 26, 2017

Allergan Transfers Patents to Native American Tribe

Originally published by Peggy Keene.

When it comes to intellectual property holdings, many portfolio owners have utilized a number of tactics, legal maneuvers, and strategies to protect their intellectual property […]

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Court Hammers Roofer Who Was Acting as an Adjuster

Originally published by Sarah Scott.

Insurers have frequently battled with sometimes-unscrupulous parties who encourage homeowners to file claims for unneeded repairs. (These battles, in fact, spurred recent legislation that you can read about on our blog here and here.) A recent decision out of the Fort Worth Court of Appeals makes it clear that contractors who try to get around regulations for public adjusters – in other words, who offer to do work and seek payment from insurance companies – do so at their own risk. Lon Smith & Associates v. Key, No. 02-15-00328-CV, 2017 WL 3298391 (Tex. App.—Fort Worth Aug. 3, 2017, no pet h.).

In 2011, a hailstorm damaged the Keys’ roof. After notifying their homeowners’ insurance company of the damage, Joe Key signed a contract with Lon Smith Roofing and Construction to perform repairs for a total of $33,769.50. The contract included a section that stated the homeowner “authorize[d] Lon Smith Roofing and Construction (“LSRC”) to pursue homeowners best interest for all repairs, at a price agreeable to the insurance company and LSRC. The final price agreed to between the insurance company and LSRC shall be the final contract price.”

When the insurance payment did not cover the $33,769.50 total price, Lon Smith sued the Keys to collect on the rest of the contract. The Keys then sued Lon Smith in a class-action suit over the contract, arguing it was illegal, void, and unenforceable because it violated the Texas Insurance Code. Under the Code, a person cannot hold himself out as a public adjuster unless he has the required license. The code defines a public adjuster as a person who “acts on behalf of an insured in negotiating for or effecting the settlement of a claim.” Tex. Ins. Code. § 4102.001(3)(A)(i), (ii). Not only is advertising as a public adjuster without a license illegal – public adjusters are forbidden from participating directly or indirectly in repairing property that’s the subject of a claim because of the inherent conflict of interest. Id. § 4102.158(a)(1).

The court noted that the language in the Lon Smith contract about pursuing the homeowners’ best interests with insurance companies was in other contractor agreements that had already been litigated – at least one federal court found that the quoted language violated chapter 4012 of the Insurance Code and was void and unenforceable. See Reyelts v. Cross, 968 F. Supp. 2d 835 (N.D. Tex. 2013), aff’d, 566 Fed. App’x. 316 (5th Cir. 2014). Because the contract was void – not merely voidable at the election of the insured – the entire contract was completely unenforceable, and the insured was not liable for any payment for services rendered under it. Not only that, the federal court found that the contract’s language promising to advocate for the homeowner against the insurance company constituted a violation of the Deceptive Trade Practices Act’s prohibition on “unconscionable” actions against consumers, since it was illegal for the contractor to do so without a public adjuster license.

The Fort Worth court agreed with the prior federal court decision, ruling that the Lon Smith contract violated public policy and was void and unenforceable. The court flatly rejected Lon Smith’s argument that it was merely discussing the amount of damage to the consumer’s home and the reasonable cost of replacement with the insurance company, which is permitted – the contract expressly stated that Lon Smith would advocate for the homeowner by “pursu[ing] homeowners best interest.”

The court also rejected Lon Smith’s argument that because it was not an insurance adjuster, it couldn’t have violated the DTPA. The “tie-in” statute from the Insurance Code that allows consumers to sue for violations of the DTPA is Chapter 541, which governs insurance adjusters. Since Lon Smith was not an adjuster, his attorneys argued, there could be no cause of action under the DTPA for any insurance violations. The court concluded that the fact that Lon Smith misrepresented that it could and would advocate for homeowners as an adjuster was an unfair or deceptive act or practice in the business of insurance under chapter 541 of the Insurance Code.

The takeaway: not only did promising to act as an adjuster render the contract unenforceable (and, by extension, allow the homeowners or insurance companies to refuse to pay any amounts due), it also subjected the contractor to liability under the Insurance Code and DTPA, which allows recovery of treble damages. Given the fact that at least two cases have addressed identical language from separate contractors, there may be similar lawsuits on the horizon.

The post Court Hammers Roofer Who Was Acting as an Adjuster appeared first on Hanna Plaut.

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Seventh Circuit Holds that the ADA Does Not Require Additional Unpaid Leave After FMLA Leave Is Exhausted

Originally published by Laura Zabele.

Last Wednesday, the United States Court of Appeals for the Seventh Circuit held that the Americans With Disabilities Act (“ADA”) does not require employers to provide additional unpaid leave as an accommodation to employees who have expended their Family and Medical Leave Act (“FMLA”) leave. Although the Seventh Circuit’s ruling upheld its prior decision in Byrne v. Avon Productions Inc., the decision is significant because it directly contradicts the Equal Employment Opportunity Commission (“EEOC”)’s position that granting additional, long-term unpaid leave to employees is a reasonable accommodation under the ADA.

Background

Raymond Severson worked for Heartland Woodcraft, Inc., a fabricator of retail display fixtures. In early June 2013, Severson took twelve weeks of medical leave under the FMLA to deal with serious back pain. Then, on his last day of leave, Severson underwent back surgery that required him remain off of work for another two or three months. Severson asked Heartland to continue his medical leave even though he had exhausted his FMLA entitlement. Heartland denied Severson’s request and terminated his employment, but invited him to reapply when he was medically cleared to work.

Several months thereafter, Severson’s doctor lifted all restrictions and cleared him to resume work, but Severson did not reapply for employment at Heartland. Instead, he sued Heartland alleging that it had discriminated against him in violation of the ADA by failing to provide a reasonable accommodation — namely, a three-month leave of absence after his FMLA leave expired. The district court awarded summary judgment to Heartland, applying the Byrne reasoning to find that Heartland was not required to provide Severson with additional unpaid leave as a reasonable accommodation under the ADA.

Severson appealed. The EEOC filed an amicus brief in support of Severson, urging the Seventh Circuit to overturn its prior decision in Byrne and find that a long-term medical leave of absence should qualify as a reasonable accommodation when the leave is (1) of a definite, time-limited duration; (2) requested in advance; and (3) likely to enable the employee to perform the essential job functions when he returns.

The Seventh Circuit’s Ruling

A unanimous Seventh Circuit panel affirmed summary judgment for Heartland and stuck by its decision in Byrne. The panel explained that the term “reasonable accommodation,” as defined under the ADA, is expressly limited to those measures that will enable the employee to work. Thus, an employee who needs long-term medical leave and cannot work is not a “qualified [protected] individual” under the ADA because “not working is not a means to perform the job’s essential functions. Simply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.”

The panel expressly rejected the EEOC’s position because it would transform the ADA, which is an antidiscrimination statute, into a medical-leave statute — in effect, an open-ended extension of the FMLA. As the panel explained, the EEOC’s interpretation of the term “reasonable accommodation” to include long-term unpaid leave was untenable because it equates “reasonable accommodation” with “effective accommodation,” an interpretation that the Supreme Court had rejected in its U.S. Airways, Inc. v. Barnett in 2002. In other words, effectiveness is a necessary but not sufficient condition for a reasonable accommodation under the ADA.

The panel did note that providing employees with a brief period of unpaid leave to deal with a medical condition could be a reasonable accommodation in some circumstances, even under Byrne. For example, someone with arthritis or lupus may be able to do a given job even if, for brief periods, the inflammation is so painful that the person must stay home. Thus, intermittent time off or a short leave of absence such as a few days or weeks may, in appropriate circumstances, be analogous to a part-time or modified work schedule (and therefore a reasonable accommodation). Long-term unpaid medical leave, however, is not a reasonable accommodation under the ADA because, as the panel explained, it “does not permit the employee to perform the essential functions of his job. To the contrary, the inability to work for a multi-month period removes a person from the class protected by the ADA.”

What Does This Mean For Employers?

Employers may deny requests for long-term unpaid medical leave beyond FMLA entitlement as an accommodation to employees in Illinois, Indiana, and Wisconsin without facing liability under the ADA. Employers should, however, consider granting intermittent time off or short leaves of absence to employees in certain circumstances. As the Seventh Circuit confirmed, such leave can allow employees to still perform the essential functions of their jobs and thus qualify as a reasonable accommodation under the ADA.

For employees in other jurisdictions, the situation is less clear. In May 2016, the EEOC released a resource document wherein it stated that a request for leave due to a medical condition must be treated as a request for a reasonable accommodation. Further, the EEOC advised that an employer may need to provide unpaid leave as a reasonable accommodation even where the employer does not customarily offer leave as a benefit or where the employee has exhausted or otherwise is not eligible for leave under existing policies. With this in mind, employers should be aware that they may face ADA liability if they deny requests for long-term unpaid medical leave beyond FMLA entitlement to employees outside of the Seventh Circuit.

Of course, employers must provide employees with disabilities with access to leave on the same basis as all other similarly-situated employees. For example, if an employer’s policy provides unpaid medical leave to employees beyond FMLA entitlement, employers must allow a qualified employee access to such leave the same as if he or she was not disabled. Moreover, state and local laws may provide paid or unpaid leave to employees in qualifying circumstances beyond the FMLA. Employers should review their Equal Employment Opportunity and leave policies to ensure full compliance with applicable laws, and apprise Human Resources professionals of these recent legal developments.

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