Thursday, January 31, 2019

Past State Bar President Darrell E. Jordan dies at 80

Originally published by Adam Faderewski.

Darrell E. Jordan, 80, of Dallas, died January 30, 2019. He served as president of the State Bar of Texas from 1989 to 1990. Jordan was a partner in Diamond McCarthy in Dallas at the time of his death.

“We are saddened by the loss of Darrell Jordan, whose lifetime of service to the legal profession leaves a tremendous legacy,” State Bar Executive Director Trey Apffel said. “We extend our condolences to his family and friends.”

Jordan also served on the State Bar Board of Directors from 1983 to 1986 and 1988 to 1991, as a member of the Executive Committee from 1985 to 1986 and 1988 to 1991; as chairman of the State Bar Fact Finding Committee from 1985 to 1986; as a member of the Grant Review, Development, and Implementation Committee from 1984 to 1986; as the State Bar Board of Directors’ liaison to the Texas Bar Foundation Board of Trustees from 1985 to 1986; and was a life fellow of the Texas Bar Foundation. Jordan also served on the District 6 Grievance Committee and the District 6 Prosecuting Committee. He was a member of the State Bar of Texas Litigation Section and the Antitrust and Business Litigation Section. Jordan was certified in civil trial law by the Texas Board of Legal Specialization. He was a member of the Texas Trial Lawyers Association and a master of the Patrick E. Higginbotham American Inn of Court from 1992 to 2019.

Jordan was on the Center for American and International Law, formerly the Southwestern Legal Foundation, Board of Trustees from 1992 to 2019 and was Research Fellows chair from 1996 to 1997. He served on the Texas Bar Historical Foundation Board of Trustees from 1990 to 2007; on the Texas Supreme Court Historical Society Board of Trustees from 1990 to 2011, including as president from 2000 to 2003; and was chair of the U.S. District Court, Northern District of Texas, Civil Justice Reform Act of 1990 Advisory Committee.

Jordan was a member of the Dallas Bar Association Board of Directors from 1975 to 1983, serving as vice chair, chair, vice president, and president (1982). He was a member of the Dallas Bar Foundation Fellows from 1990 until the time of his death and served as the foundation’s chair from 1994 to 1996. He was named a life fellow of the Dallas Bar Foundation.

Jordan served on the American Bar Association Board of Governors from 1995 to 1998, including on the Executive Committee from 1997 to 1998 and as chair of Committee Operations from 1997 to 1998. He served in the ABA House of Delegates from 1986 to 1998; as chair of the Commission on IOLTA from 2002 to 2005; and as president of the ABA Museum of Law Committee from 2003 to 2004.

He received numerous awards, including the Outstanding 50-Year Lawyer Award from the Texas Bar Foundation in 2015; the Charles O. Galvin Award for Extraordinary Service from SMU Dedman School of Law in 2005; the Special Services Award from the Dallas Volunteer Attorney Program and the DBA in 2003; the Harold F. Kleinman Award from the Texas Equal Access to Justice Foundation in 2003; an ABA Award for defending the constitutionality of IOLTA in 2003; the Stars of Justice Award from the Texas Access to Justice Commission in 2003; and the Justinian Award from the Dallas Lawyers Auxiliary in 2000. He received Presidential Citations from the State Bar of Texas in 1991 and 1999.

Jordan received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1964.

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What Does the Right to a Fair and Speedy Trial Mean in Texas?

Originally published by DALLAS CRIMINAL DEFENSE ATTORNEYS - BRODEN & MICKELSEN LLP.

The Sixth Amendment of the United States Constitution protects your right to a fair and speedy trial. Here is what that really means.

Our criminal justice system is designed to protect the public as a whole and to also ensure that those who are facing charges receive fair, equal treatment and that their rights are upheld during criminal procedures. In the case of every criminal prosecution, the defendant is entitled to the right to a fair and speedy trial of their accused crimes by an impartial jury.

When arrested on charges, waiting for a trial can feel like an eternity, even when there are laws in place that ensure it happens quickly. Here is what the best criminal defense lawyers in Dallas say you need to know about your right to a fair and speedy trial in Texas if you’re facing criminal charges.

The Speedy Trial Amendment

The protections that ensure every person facing charges is tried in a timely manner come from what we refer to as the speedy trial amendment. Both the Sixth Amendment of the United States Constitution and the Texas State Constitution outline an individual’s right to a fair and speedy trial. (1)

To paraphrase the Sixth Amendment, the accused in all prosecution is entitled to enjoy the right to a public, speedy trial in front of a group of impartial jurors in the state and district that the accused crime was committed. The amendment also states that the accused shall be informed of the nature and cause of the accusation, to have a compulsory process for acquiring witnesses in his or her favor and to be confronted by the witnesses against him. The accused is also granted the right to have counsel present to assist with his or her defense. (2)

While these protections are important, they are missing one crucial detail – how “speedy” is defined in relation to a criminal trial. There are no clear cut guidelines on how quickly a defendant must face trial, and therefore it’s a topic that often becomes clouded with legalities.

Understanding Your Right to a Speedy Trial in Texas

Defendants in criminal cases often have questions about their right to a speedy trial in Texas. When each week or month of the waiting process becomes more difficult to endure, it’s natural to wonder what is and isn’t considered speedy. As mentioned, there are no hard and fast rules regarding the timeline in which a case must be tried. Each case is different, and so are the circumstances that determine when the trial will take place.

Still, the average time that is quoted by many defense attorneys hovers around 8 months, although this can be longer for complex cases or shorter for lesser crimes. When questioning whether or not a defendant’s right to a speedy trial has been violated, the court will take several factors into consideration before issuing their judgement. (3)

For instance, they will begin by looking at the amount of time that has passed since the defendant was arrested and how the length of their delay compares to the average time from arrest to trial for similar cases. They will also look at why the trial has been delayed and which party has been the primary cause. There is also the chance that the amount of time that has passed may have compromised the case – for instance, witnesses may no longer be available or may have forgotten key details due to the passing of time. Finally, the court will also consider if the defense has at any point asserted their right and asked for a speedy trial.

Should You Waive Your Right to a Speedy Trial

Considering that the majority of defendants want the trial portion of the criminal justice process to occur as quickly as possible, it might seem counterproductive to waive your right to a speedy trial, however, there are situations in which doing so might help you and your defense team achieve the best outcome.

For more complex cases, it can work to your advantage to have extra time to prepare your case, line up witnesses and possibly gain insight into the direction that the prosecution is taking with the case. As mentioned earlier, witness testimony can weaken over time, meaning it can also work in your favor if the prosecution’s witnesses are not as reliable or “sharp,” as they may have been had the trial happened sooner.

Waiving the right to a speedy trial is frequently a preferred strategy for defendants who are out on bail and under no immediate hurry to get the trial process underway.

Working with a Dallas Criminal Defense Attorney

If you are awaiting trial, it is your constitutional right to have the advantage of experienced legal counsel to help you defend your case. The most important first step is to contact a Dallas criminal defense attorney who can help you understand your right to a fair and speedy trial and what it means to your case. If your right to a speedy trial has been violated, the court is required to set aside the conviction, vacate the sentence and dismiss charges. An experienced attorney can recognize when this right has been violated and set in motion the process for protecting your rights. 

If you are looking for the best criminal defense lawyer in Dallas County, call the Law Office of Clint Broden & Mick Mickelsen today.

 

Media Contact:

Dallas Best Federal Criminal Defense Lawyers

Broden & Mickelsen

(T): 214-720-9552

https://www.brodenmickelsen.com/

 

***ATTORNEY ADVERTISING***

Prior results cannot and do not guarantee or predict a similar outcome with respect to any future case.

Sources

  1. https://tlc.texas.gov/docs/legref/TxConst.pdf  
  2. https://www.law.cornell.edu/constitution/sixth_amendment
  3. https://www.criminaldefenselawyer.com/resources/criminal-defense-case/get-speedy-case-texas.htm

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FaceTime Bug Creates “HearTime” Allowing Eavesdropping

Originally published by Claudia Alvarado.

As technology evolves allowing for easier methods to communicate, so does the concern for privacy with continued findings of loopholes, bugs, and coding errors. On […]

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Latest & Greatest – Technology Tips for Seniors

Originally published by Lori-Ann Craig.

Technology is ubiquitous, pervading every aspect of our lives. From computers to smartphones to activity trackers, technology is an integral and vital part of how we live, work, and play. This technological explosion can leave some members of our communities befuddled, anxious, and even slightly technophobic. To help out in this regard, attorneys Jeffrey Allen and Ashley Hallene have authored Technology Tips for Seniors, a book offering tips and suggestions for adapting to the changes that technology brings to their professional and personal lives and recommendations for embracing, rather than fearing, those changes. Written in simple terms without the use of technical jargon and in an easier-to-read large print, the authors set out providing tips for:

Technology Tips for Seniors By Jeffrey Allen and Ashley Hallene Published by American Bar Association. Senior Lawyers Division QA 76.9 .O43 A45 2016 Technology Tips for Seniors: Volume 2.0 By Jeffrey Allen and Ashley Hallene Published by American Bar Association. Senior Lawyers Division QA 76.9 .O43 A45 2018

Technology Tips for Seniors

By Jeffrey Allen and Ashley Hallene

Published by American Bar Association. Senior Lawyers Division

QA 76.9 .O43 A45 2016

Technology Tips for Seniors: Volume 2.0

By Jeffrey Allen and Ashley Hallene

Published by American Bar Association. Senior Lawyers Division

QA 76.9 .O43 A45 2018

  • using mobile devices, including phones and tablets;

  • using PCs and management tools;

  • using the Internet as a means of communication;

  • sharing media, such as photos, videos, and files;

  • using technology for travel;

  • protecting your privacy and identity; and

  • monitoring health.

The second volume, Technology Tips for Seniors: Volume 2.0, offers some more advanced tips, helping seniors navigate the use of technology in certain settings, such as the office, the home, and on the road. Seniors can learn how to set up a Wi-Fi network in their office and/or office, use Smart Home Technology, use the Internet to become more digitally connected, and support their hobbies using technology. As an added bonus, the authors reveal some of their favorite apps. 

You don’t have to be a senior or a person of a “certain age” to benefit from the tips provided in these books. Remember: it’s never too late (or early) to learn something new.

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Getting Ready for Tax Season

Originally published by Lawyer Referral Service.

Here’s a deeper look into various aspects surrounding taxes, issues you might encounter, and what the Lawyer Referral Service of Central Texas (LRS) in Austin, TX can do for you.

Read more

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Parameters of an LGBT custody case

Originally published by Michelle O'Neil.

LGBT relationships are still a relatively new construct in a legal system that has traditionally been focused almost exclusively on two-parent, opposite gendered relationships. Some courts lag behind in addressing custody issues with same-sex partners, mostly due to inexperience and inconsistency in the laws.

Because same-sex parents cannot biologically birth children together, the legal definition of who qualifies as a parent is more complex in LGBT custody cases. One partner may be the legal parent, either from biological birth or adoption. The other parent may be an emotional parent but lack the legal formalities of technical parenthood. Unfortunately, these situations are relatively simple in the context of legal custody orders – the legal parent will retain custody of the child. The secondary, emotional-but-not-legal parent probably will not be granted any legal rights to the child and will find it extremely difficult to receive any court-ordered access to the child beyond the discretion of the legal parent. The non-legal parent cannot be ordered to pay child support either.

Same-sex partners can be considered both legal parents in one of 3 scenarios:

  • Both parents adopt the child.
  • One parent is biologically the child of one parent and the other parent adopts the child.
  • Child born to a legally recognized marriage where the law recognizes the non-biological parent as a presumptive legal parent.

While some states may recognize the third option as a route to legal parenthood, Texas is not one of them at this time.  There has simply been little legal precedent to come before the Texas courts on this issue, so to press the rights of a non-biological spouse to legal parentage, a case will eventually have to push the issue to the expense of a trial and appeal.

Where two legal parents in a same sex relationship seek custody of a child, the case resembles that of a more traditional custody case, with the same issues and factors being applied.  The best interest of the child will be the overarching consideration with issues like personal relationships, employment, emotional health and stability, ability to support both parents’ relationship with the child, and the child’s preference being considered.

For LGBT parents seeking to establish court orders regarding a child, the best option in almost every situation is to reach an agreement. Compromise may not be ideal but if the agreement falls within the range of possible outcomes in the court then it is almost certainly better than protracted and expensive litigation.

If you are faced with contested litigation, do your research and understand the nuances of Texas laws. Ultimately, acknowledge whether you are willing to be the “test case” for pushing the envelope of LGBT custody rights if the situation requires it. Last, Find a legal team that has experience in the LGBT custody arena but also is expert in traditional custody cases.

 

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Texas Court Addresses Bad Acts in a Lease Play

Originally published by Charles Sartain.

An opinion that observes “Obviously the jury was not overly enamored with Appellants.” is worth discussing. The decision is Stephens et al v. Three Finger Black Shale Partnership et al.

What to know about partnerships 

Parties to a transaction need to be mindful that if a business deal is a partnership, there will be rights and duties not present in arms-length commercial transactions. The main question in Stephens: Was a partnership formed by a letter agreement, a participation agreement and the actions of the parties?

A partnership is “ … an association of two or more persons to carry on a business for profit as owners regardless of whether the persons intend to create a partnership or the Association is called a partnership joint venture or other name.

Under the Business Organization Code, five factors determine whether a business venture is a partnership:

  • Receipt or right to receive a share the profits
  • Expression of an intent to be partners
  • Participation in or right to participate in control
  • Agreement to share losses or liabilities
  • Agreement to contribute money.

The court looks at the totality of the circumstances to arrive at the answer. No one particular factor governs the question.

The facts and the decision

The parties are numerous, so we will name only a few. In connection with a lease play in Fisher County there was the “Alpine Letter Agreement” and a Participation Agreement and amendments (in which some parties were called “partners”). There was an original group, joined by new investors, all of whom were going to share in the proceeds of a lease sale. Devon agreed to acquire the leases, plus more acreage; Taylor applied the Devon down payment to his investment and lied about it; Paradigm and Lazy T failed to complete their funding and lied about it; some players proceeded to buy more leases to the exclusion of others and lied about it.

After a 69 page jury charge, there was a multimillion dollar judgment for actual and exemplary damages in favor of two separate groups of plaintiffs and intervenors against several groups of defendants.

In the end, the court of appeal determined that there was no evidence of a partnership, which meant that no fiduciary duty was owed by the defendants. This had a bearing on the damage awards. A judgment in favor of “Three Finger Black Shale Partnership” was reversed. The equitable remedy of disgorgement and restitution rendered by the trial court was also reversed because there was no proof of a fiduciary relationship and a breach of the duties arising from it.

The claim by the individual partners was rejected because they had elected to take the recoveries in favor of Three Finger and not themselves. A similar recovery by  different players against other players was also rejected. Those parts of the case were remanded to give them another bite at the rotten apple.

See pages 11 through 17 of the opinion for the acts of the myriad parties in light of each of the factors.

See pages 7 through 10 for the differences between standing and capacity and the effect of a divorce on ownership of litigation claims.

The dishonest lawyer

See pages 20 through 26 of this never-ending opinion for lawyer Kerwin Stephens’ futile effort to wiggle out of an attorney-client relationship, how he breached his fiduciary duty to clients with whom he did business deals, and how his behavior was reprehensible enough to inspire the jury to award exemplary damages.

Takeaway

After remand the nefarious players might not get away with their nefarious acts … least of all the dishonest lawyer.

Meet Geraint Watkins, well-respected by music people …. such as Nick Lowe.

 

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Removal Survivor

Originally published by David Coale.

The removal statute does not allow an in-state defendant to remove a case, even if diversity exists. That rule imposes a substantial limitation on removable cases. But if such a removal survives to final judgment, the judgment will stand: ” The removal bar of 28 U.S.C. § 1441(b), however, is procedural and not jurisdictional. Therefore, ‘where there is improper removal, the pertinent question is whether the removed action could have been filed originally in federal court; and, if it could have been and the action has proceeded to judgment on the merits in federal court, that judgment will not be disturbed.’”   There is complete diversity, so the case could have been brought originally in federal district court. Furthermore, Lamb did not object to removal in the district court, and the case has proceeded to a judgment on the merits. Lamb v. Ashford Place Apartments LLC, No. 18-30469 (Jan. 30, 2019) (citations omitted, emphasis in original).

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Defamation in the Workplace

Originally published by Thomas J. Crane.

Defamation refers to uttering an untruthful statement about someone. “Libel” refers to written defamation. “Slander” refers to oral defamation. In the employment context, defamation has an extra hurdle. In Texas, to constitute defamation at work, the defamation must be made in the course and scope of employment. That is, the defamatory statement must be related to the speaker’s job. So long as the speaker makes the statement to persons with a duty or need to know, then the speaker will be protected by a qualified privilege. To qualify as workplace related defamation, the statement must be made as part of one’s job. If the statement is part of someone’s job, then it will be protected by a “qualified privilege.”

For example, if a manager makes a statement to someone in Human Resources about an employee, even if that statement is not truthful, then the qualified privilege would probably apply. The manager’s statement would be protected by this qualified privilege. If the manager makes a statement to a potential employer, then again that statement will be deemed to have been made in the course and scope of employment. So, the manager’s statement will be protected by the qualified privilege.

An employee can overcome the qualified privilege only be showing that the speaker acted with actual malice. Showing malice is a high burden. Malice refers to a person knowingly and deliberately causing harm. Malice is more than a mistake or a misunderstanding. To show malice, an employee would have to show the speaker knew or should have known the statement was not true and that the speaker sought to cause harm of some sort. Many employees have come to me seeking redress for defamation. Rarely have I seen sufficient evidence to make a case of malice.  It is quite difficult to get inside a person’s head and show what the manager was thinking. That sort of evidence is rare.

For example, an employer fires a person for alleged stealing. The employee did not steal.  But, how do we show malice? That is, how do we show the employer knew or should have known the theft allegations were not true? Most times, we cannot. How do we show the manager made the statement hoping to cause harm to the employee? Again, it is rare that an employee would have that sort of evidence.

Many of the normal principles of defamation law apply to the workplace: the statement must be clear and unambiguous. It cannot be capable of two different meanings, one of which might be non-defamatory. Truth is always an absolute defense to defamation. But, for most people charged wrongly with theft, there is little anyone can do about that sort of termination. Defamation lawsuits in the workplace are just too difficult.

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Your Law Firm in 2019: Just Suppose

Originally published by Cordell Parvin.

My old law firm held a retreat one year. The theme was “one-firm.” We even had tee shirts with the slogan on the back and firm name on the front. There was only one slight problem-The tee shirts told a lie. Our firm was a bunch of very talented lawyers operating independently from one another.

I was always fond of saying just suppose as a way of prompting thought of what we could become as attorneys, individuals and in terms of firm development. Here is the just suppose I thought we could become in my old law firm that would make it more like the slogan on the tee shirts.

Just suppose, your law firm’s purpose was: To enable our clients to achieve their business objectives and to provide maximum opportunities for our lawyers and staff to achieve their career dreams and goals.

Just suppose your standards (core values) included:

 

  • Our firm put clients and the firm ahead of our own personal interests.
  • Each lawyer is expected to invest a minimum of 2500 hours in billable and non-billable (investment) activities unless he or she is a part of the firm’s flex-time policy.
  • We will recruit lawyers and staff who have a burning desire to be the best they can be and we will invest in, energize and inspire them and provide them with the tools to be successful.
  • We will seek clients who have interesting work, significant needs for outside legal services and who can afford to pay for the services of our firm.
  • We will provide extraordinary service to our clients, working together as a team and supporting each other whenever possible.
  • We will seek to be the most innovative law firm to more effectively serve our clients.
  • Finally, if we are able to accomplish the above, in doing so we will build economic stability and profitability.

Just suppose your firm made decisions and judged conduct and performance on the basis of the purpose and standards/core values. In other words, just suppose these were not just hollow words and your lawyers and staff walked the walk each and every day and when it came time to make decisions on compensation, bonuses, and promotion.

I believe the key to success in any organization is to have a clearly stated purpose and set of core values and expectations that then become the basis for decisions and actions.

I read some time ago:

When clarity exists, everyone knows the guiding principles and the core competencies that most directly contribute to organizational and individual vitality and success.

You could build a strong firm around the concepts, have a heck of a lot of fun working together and build a sense of community that I feel is lacking in many firms now.

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Constructing Connected Compliance and the Role of Technology

Originally published by tfoxlaw.

I recently had the chance to visit with two representatives from GAN Integrity, Inc. (GAN) Peter Chang, Head of Customer Success, and Martin Albertsen, Chief Technology Officer (CTO), for a five-part sponsored podcast series that will run next week on the Compliance Podcast Network. I visited with Chang on how to construct a connected compliance […]

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Wednesday, January 30, 2019

Did Discover Cards just posts notice of someone else’s breach? Yes, as they should.

Originally published by Jeff.

Discover noted something funny that indicated that some of its cardholders’ information was out on the web, indicating that there had been a breach somewhere.  Discover’s notice doesn’t contain much information (more on that in a bit), but does indicate that it wasn’t their fault.  However, they did replace cards for affected individuals and agreed that they wouldn’t be responsible for

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Title III of the ADA Applies to Internship and Externship Sites

Originally published by William Goren.

Before proceeding with today’s blog entry, I do want to express my wishes that everyone be safe with the terribly cold weather around the country today. My native city of Chicago is brutally cold today. Be safe and stay warm! Previously, I have talked about internship and externship sites being subject to the ADA here, […]

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Springboard to the goals of trademark law

Originally published by David Coale.

In Springboards to Education v. Houston ISD, an education-services company sued the Houston school district about a summer reading program. The company’s program, called the “Read a Million Words Campaign,” offered incentives to join the “Millionaire’s Reading Club” and gave prizes when students reached their reading goals. HISD’s program, focused just on summer reading, involved the “Houston ISD Millionaire Club” and similar sorts of goal-related gifts. In affirming a summary judgment for HISD, the Fifth Circuit made two important, general observations about the purposes of trademark law:

  1. Trademark law protects marks – not process. “HISD could have copied the methodologies used in the Read a Million Words campaign step by step, and, whatever other problems that might have engendered, as long as it used clearly distinguishable nomenclature, Springboards would have no argument that HISD violated the Lanham Act in doing so.” The noted that a patent could, at least in theory, protect such processes, although this case did not involve a patent.
  2. Purchaser confusion is the key – not “confusion” generally. The Court noted that confusion about the two programs involving HISD students and their parents was relevant – but only to the extent it bore on the test for evaluating confusion by potential purchasers of Springboards’ products. “Looking the digits of confusion for guidance, we conclude that no reasonable jury could find a likelihood of confusion. Springboards’ marks are not widely known and are similar or identical to multiple third-party marks. HISD did not market the Houston ISD Millionaire Club to Springboards’ potential customers—i.e., third-party school districts. There is no evidence of an intent to confuse. And Springboards’ potential customers are sophisticated institutional purchasers that are not easily confused. The only digit pointing unwaveringly in Springboards’ favor is the similarity of the products. But even this does not strongly suggest a likelihood of confusion given the popularity of millionaire-themed literacy programs.” (emphasis added).

No. 18-20119 (revised Jan. 29, 2019).

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Woodbridge and Its Ex-Owner Must Pay $1B Over Alleged Ponzi Scam

Originally published by P. Clarkson Collins Jr..

A federal court has ordered the Woodbridge Group of Companies and its former CEO and owner Robert H. Shapiro to pay $1B in disgorgement and penalties for allegedly running a $1.2B Ponzi scam that victimized 8,400 retail investors, including many senior investors who ended up losing their retirement money. Of this $1B, Woodbridge and its 281 related companies must pay $892M in disgorgement. Shapiro must disgorge $18.5M in ill-gotten gains, as well as pay $2.1 in prejudgment interest and a $100M civil penalty.

In 2017, the US Securities and Exchange Commission (SEC) filed charges against Woodbridge, which it called a “group of unregistered investment companies,” and other defendants. The regulator contends that Woodbridge claimed that its main business was to issue loans to third-party commercial property owners. The defendant allegedly promised investors 5-10% in interest yearly. The company’s marketing materials touted an “over 90% renewal rate” from investors because of “proven results.”

The SEC said that the reality was that most of these supposed third-party borrowers were, in fact, companies that Shapiro owned. They purportedly made no income and did not pay interest on any of these supposed loans.

The regulator accused Woodbridge of using investors’ funds to pay other investors, as well as $64.5M in sales commissions to agents that had touted the Woodbridge investments as “conservative” and “low risk.” Shapiro is accused of using at least $21M of investor funds to support his lavish lifestyle. The Ponzi fraud fell apart after payments to investors stopped and Woodbridge filed for bankruptcy.

All the defendants and relief defendants named in the SEC’s case have settled but without denying or admitting to the regulator’s allegations. A Liquidation Trust that is being set up in the Woodbridge Chapter 11 bankruptcy case will be responsible for satisfying the disgorgement order.

Here are some of the companies, aside from Woodbridge Group of Companies, that are defendants in the SEC’s Ponzi fraud case:

  • Woodbridge Structured Funding WMF Management
  • Woodbridge Mortgage Investment Funds 1, 2, 3, 3A, and 4
  • Woodbridge Commercial Bridge Loan Funds 1 and 2
  • 142 Woodbridge-Affiliated Property LLCs
  • 130 Woodbridge-Affiliated Holding LLCs

Shapiro is now permanently barred from associating with brokers, investment advisers, municipal advisers, and others in the securities industry. He also is banned from taking part in any penny stock offerings. His wife, Jeri Shapiro, is a relief defendant in the case. The SEC has ordered her to disgorge almost $1.4M and pay nearly $165K of prejudgment interest.

Other relief defendants in the case also settled without denying or admitting to the SEC’s allegations. They were ordered to pay $5.2M in ill-gotten gains with interest.

Ponzi Fraud Lawyers
Shepherd Smith Edwards and Kantas, LLP (SSEK Law Firm) works with investors that have lost money because they fell victim to a Ponzi scam. Unfortunately, senior investors are a favorite target of Ponzi scammers because many of them have retirement funds and savings. Over the years, SSEK Law Firm helped thousands of clients in getting back their financial losses caused by broker fraud, investment adviser fraud, and other kinds of securities fraud. Call or email SSSEK Law Firm today if you were an investor that lost money in the Woodbridge Ponzi scam. Our Woodbridge fraud attorneys can help you explore your legal options.

Read the SEC’s Final Judgment in the Woodbridge Case

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Business Income Loss – Recurring Measurement Loss Issues

Originally published by Iris Kuhn.

A very insightful reader posted this comment to my blog post, Period of Restoration-Valuing Business Interruption Claims, Part I: When adjusting business interruption claims, I find that the biggest disagreements I have with carriers are not with the length of the restoration period. They’re with my projected revenues had no loss occurred. A business interruption…… Continue Reading

.

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Slip & Fall Premises Liability

Originally published by Staff Writer.

Person in shopping center slipping and falling next to a caution wet floor sign

When a property owner fails to maintain their property or neglects to caution guests of potential dangers, it can prompt mishaps which are typically classified as “slip and falls.” Victims can sustain serious injuries in these falls and compensation may be recovered through premises liability lawsuits.

More than one million people need emergency medical care each year in the United States for Slip and fall accidents, and the average hospital cost of a slip and fall is more than $30,000. Five percent of the cases have a broken bone and about 20-30 percent gets seriously injured. Nearly one-third of adults over 65 falls each year. Slip and fall accidents cost Americans more than $34 billion each year.

Types of Slip and Fall Accidents

The majority of slip and falls can be broken into the following two categories: how they occur and where they occur.  Common locations where Slip and Fall Accidents typically occur are grocery stores, small businesses, private homes, hotels and resorts, and public places and parks. Typically, store owners and homeowners have insurance to cover these kinds of incidents.

How many slip and falls occur include:

  • Icy walkways.
  • Cluttered floors.
  • Inadequate lighting.
  • Wet or slippery floors
  • Ditches, trenches or potholes.
  • Damaged sidewalks.

Common Injuries

The most common injuries in slip and fall accidents are cracks or broken bones. Every year, a considerable number of youngsters and older adults break bones in falls along with cracks to the legs, arms, ribs, and hands. Spinal cord damage. Is also possible.

Premises Liability Law in Texas

Premises liability law makes the owner of the premises responsible for injuries suffered by the injured persons on their property. To prove liability, the injured party needs to show that the danger was well known to the property owner but neglected to remove the threat.

There are three categories of premises liability law cases in the State of Texas: Standard Premises Negligence Case, Negligent Activity and Negligent Undertaking.

In Texas, it’s important to understand the difference between a standard premises liability case and a negligent activities case, because more elements need to be proven in a standard liability case than in a negligent activities case. In Texas, a negligent act occurs when there is an ongoing activity that caused injury to a plaintiff, but at the time of injury, if the act is not constant, it is considered a standard premises liability case.

Suppose, for example, an employee spills water on the floor and then forgets to clean it up before he leaves. After that, a customer slipped and fell because of the spill and was injured Such a situation would be considered a standard liability case because the negligent act was not ongoing at the time of injury.

What to Do After a Slip and Fall Accident

If you are injured in a slip and fall, there are certain steps you should take immediately:

  • First and foremost, seek medical treatment for any injuries you suffer. Visit a doctor immediately so that your injuries are properly recorded.
  • Report the accident to the premises owner, manager or someone in charge of the business.
  • Write the names and contact numbers of the people with whom you talked. Ask them to make a written report and ensure you receive a copy.
  • If possible, take pictures or video of the place where you fell and also the surroundings.
  • Identify any witnesses, if possible.
  • You should try to limit your communication with the property owner or manager. Remain calm and decline to give any statement to the insurance company before you contact an attorney.
  • Contact an experienced personal injury attorney.

Injured in a Slip and Fall? Call Thomas J. Henry Today

If you’ve been injured in an accident, don’t fall for flashy gimmicks. At Thomas J. Henry, we let our results do the talking. We’re the largest personal injury law firm in Texas, and have the experience, expertise, and determination to get their clients the large settlements and verdicts they deserve. Call us today at 361-221-5053 and see for yourself why we’re the largest and most successful personal injury firm in the Great State of Texas.

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Tuesday, January 29, 2019

Texas Supreme Court Finds Coverage for Deepwater Horizon Defense Costs: Three Takeaways from Anadarko Petroleum v. Houston Casualty

Originally published by Haynes and Boone Benefits Group.

Nearly nine years on, the Deepwater Horizon disaster continues to make law for policyholders and insurers—this time in a ruling from the Texas Supreme Court granting Anadarko Petroleum Corporation up to $150 million in coverage for defense expenses relating to underlying bodily injury and property damage claims arising out of the April 2010 blowout and oil spill.

Anadarko’s London market underwriters relied on a “Joint Venture Provision” in their “energy package” insurance policy to argue that coverage for defense costs was limited to 25% of the policy’s $150 million limit, based on Anadarko’s 25% ownership interest in the joint venture operating the Deepwater Horizon rig. While the Joint Venture Provision includes three distinct clauses, which were all disputed in the ensuing coverage litigation, the provision that ultimately proved key to coverage contained the following language:

[A]s regards any liability of [Anadarko] which is insured under this Section III and which arises in any manner whatsoever out of the operation or existence of any joint venture . . . the liability of Underwriters under this Section III shall be limited to the product of (a) the percentage interest of [Anadarko] in said Joint Venture and (b) the total limit afforded [Anadarko] under this Section III.

Underwriters asserted that the “liability” to which the limitation applied included not only the damages paid by Anadarko to resolve underlying claims against them, but also Anadarko’s defense costs in connection with such claims. Anadarko argued, among other things, that the provision, including its reference to “liability,” limits only the Underwriters’ obligation to pay damages to third-parties, not to its defense expenses.

On cross-motions for summary judgment, the trial court ruled that while the clause quoted above did apply to Anadarko’s defense costs, a further exception to the clause preserved coverage for Anadarko. The Court of Appeals reversed and rendered judgment for Underwriters.

The Texas Supreme Court agreed with Anadarko. Relying on black letter rules of contract construction, the Court reasoned that while dictionary definitions of “liability” may broadly refer to any kind of debt or obligation, the use of the term “liability” elsewhere in the policy evidenced a distinction from defense costs. The initial grant of coverage in the subject policy and the definition of “Defence Expenses,” among other policy terms, differentiated between and did not equate expenses incurred by Anadarko to defend itself with liabilities or damages owed to a third party. The Court also rejected Underwriters’ contention that the Joint Venture Clause otherwise limited Anadarko’s recovery, irrespective of how the term “liability” was construed.

The Court’s decision clearly represents a significant victory for Anadarko with direct implications for other insureds with similar energy package policies containing equivalent Joint Venture Clauses. But even for other policyholders generally, the Anadarko decision offers the following three important takeaways.

“Context Matters.” To say that words matter and context matters may seem to be stating the obvious. But the fact is, in disputed cases such as this one, claims for tens of millions of dollars in policy benefits turn on words and basic rules of construction. So often dictionaries are used to interpret the common, ordinary meaning of undefined policy terms. Anadarko provides a worthwhile reminder that “we cannot simply stop at the dictionary definitions.” Slip Op. at 10. For risk managers, brokers and coverage counsel, finding contextual support for claims is an essential, though sometimes overlooked, part of pursuing maximum recovery of policy benefits. Before a claim is made, Anadarko also confirms that no part of any contract should be considered boilerplate. The choice of wording, the consistent use of that wording, and the decision to define certain words and not others in a policy can have significant implications for future claims.

“Surrounding Circumstances” and “Ambiguity”—The Dogs That Didn’t Bark. Much of the briefing filed in the lower courts and with the Texas Supreme Court focused on arguments that (1) the Court should consider as a “surrounding circumstance” the deletion of a provision that would have reduced coverage for Anadarko’s defense costs under the policy; and (2) any ambiguity in the terms of the Joint Venture Provision should be construed in favor of coverage and against the limitations urged by Underwriters. In a final footnote to the Court’s opinion, Justice Boyd confirmed that having found the policy’s “plain language” to favor Anadarko’s position, no consideration was given to these alternative arguments. The Court’s reference to the policy’s “plain language” employs the euphemism that is perhaps most consistently used by Texas courts in construing disputed policy terms. Though not expressly stated as such, interpreting policies according to their “plain language” appears to be the rule of construction most favored by the Texas Supreme Court in particular. While the value of compelling “surrounding circumstances” evidence and the well-used rule of contra proferetum should not be minimized, the Anadarko opinion provides another reminder that in the hierarchy of arguments, little can substitute for “plain language” affording coverage for the policyholder’s claim.

Potential Implications For The “Contractual Liability” Exclusion. One can hardly read the Court’s analysis of the term “liability” in Anadarko without recalling a different rationale employed in the Court in Gilbert Texas Construction v. Underwriters at Lloyd’s, London, 327 S.W.3d 118 (Tex. 2010). In Gilbert, the Court construed the terms of the CGL policy’s “Contractual Liability” exclusion, which denies coverage for “bodily injury” or “property damage” for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. In construing this language, the Court ultimately concluded that Gilbert’s contractual duties represented a “liability” for purposes of the exclusion, without limiting the term to the obligation to pay damages for breach of that duty. Id. at 127. Compare this result with the Court’s rationale in Anadarko: “consistent with the term’s common meaning within insurance and other legal contexts, ‘liability’ refers in this policy to an obligation imposed on Anadarko by law to pay for damages sustained by a third party who submits a written claim.” Slip Op. at 12; see also id. at n.18. Will the Court’s rationale in Anadarko or the context of a general liability policy’s other references to “liability” provide a future opportunity for policyholders to seek a narrower interpretation of the “Contractual Liability” exclusion than was employed in Gilbert or its progeny? Only time will tell. In the meantime, Anadarko will remain an important victory for policyholders.

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Valuation of company for divorce

Originally published by Michelle O'Neil.

Often in divorces, a spouse or both spouses may own a closely-held business. While the business itself may not be divisible in the divorce, the value of the business entity as an asset of the marital estate can be an important component to the division. There are several considerations at play when valuing a business entity for divorce purposes.

The first question is the gross entity value. This considers the total capital structure or the overall value of the operations without considering the impact of the cash and debt being carried. Investment bankers consider this value in determining EBITDA (Earnings Before Interest, Taxes, Depreciation and Amortization) and revenue-based multiples. Basically, for the gross value purposes, the debt and cash are operational decisions and not relevant to gross value. Included in this consideration are the gross revenue figures, as well as asset values and intangible values such as entity goodwill and workforce in place.

The next consideration is the equity value. This involves the netting of the debt against the gross entity value.

Valuation of an entity for investment or purchase purposes differs from valuation in the divorce context. Investment considerations primarily use the gross entity value. On the other hand, for purposes of the divorce context, the net equity value is the appropriate measure. Most often, this is not a value that can be simply and easily calculated without the assistance of an expert in divorce valuation issues. The method of applying discounts to the gross entity value for lack of marketability or reputation of the individual owner are areas for much disagreement and will require expert testimony in most scenarios.

Hat tip to Sean Saari and his article All Company Values Are Not Created Equal in Family Lawyer Magazine.

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Houston Lawyer Sues Former Partners, Alleging They ‘Cheated Him Out of Millions’

Originally published by Texas Lawyer.

 

Adam Peavy has alleged that Ken Bailey and Camp Bailey failed to pay him, despite repeated promises, millions in fees on Paxil suits and other tort litigation.
      

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No partnership, no problem.

Originally published by David Coale.

Moss and Keating sued Princip, Martin, and the partnership to which the four of them belonged. The defendants removed the case, but after an adverse verdict, raised a problem with subject matter jurisdiction: Moss and Keating were diverse from Princip and Martin – but the partnership, as a citizen of every place the partners lived, was not. The district court dismissed the partnership from the case, finding it necessary but dispensable, and the Fifth Circuit affirmed:

“Although the plaintiffs raised claims for damages derivative of the partnership’s rights, the partnership’s presence in the suit was not necessary to protect the partnership or any of the parties from prejudice. The partnership was a party throughout the litigation, but its role was purely passive, reflecting the reality that its interests did not diverge from the interests represented by the four individual partners and that its  presence played no distinct role in the outcome of the suit against the individuals.”

Moss v. Princip, No. 16-10605 (Jan. 16, 2019).

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Lateral Partners Seeking a New Firm: This One is for You

Originally published by Cordell Parvin.

I’ve been in recruiting now for a year. As of one year, I have made no cold calls (so if you want my help, you will have to contact me). I have placed lawyers only in firms I admire. As a result, I have passed several opportunities to make placements.

I was recently asked: What is my “sweet spot” for lawyer placements?

It is not the lawyer already generating millions in business unless I coached that lawyer when he or she was a young partner or associate.

I like working with the highly motivated young lawyers who in the right setting are capable of generating more business and feeling more fulfilled in their careers.

When I was coaching lawyers I worked with dozens of senior associates and junior partners in large law firms who now have some clients but could take control of their future and develop much more business in a more entrepreneurial law firm.

 

Over the last year, several of the young law firm partners who sought my help told me they did not feel they were being fairly compensated.

Some time ago while working out I was listening to Daniel Pink’s book Drive. One of the parts I listened to was a discussion of fair compensation both internally and externally.

It’s funny, I never thought about whether I was fairly compensated until I learned what my partners were being paid and when other firms offered me substantially more money to join their firm. They say that ignorance is bliss and that was surely true for me.

Even if your law firm strives to keep it secret, you will learn what your colleagues are making. One way or another you will also figure out what lawyers are making in other firms.

With that knowledge, you will then evaluate whether you are being fairly compensated.

In 2003, the year before I left my law firm, two huge international law firms made offers to me that were more than $200,000 than I was making at the time. You might ask why didn’t I join either of those firms. While the money was great, I believed I would be giving up control of my destiny.

In my year of recruiting, I have never placed a lawyer in a firm where I believed the lawyer would be giving up control of his or her destiny. If all you are looking for is the firm that will pay you the most money, don’t call on me. I don’t want to place any lawyer in a firm they will likely leave just a few years later.

Here are some things you might want to know about a firm you are considering:

  • Does the law firm adjust compensation every year?  If your potential firm adjusts compensation every year, you and several of your new partners will find a reason to feel they are not fairly compensated.
  • Does the law firm you are considering have significant intervals between the levels of partner compensation? If your potential firm’s intervals are as low as $5000-$10,000, you and your new partners might easily get upset about a colleague making $5000 more than you. It is harder to be upset when the difference is $50,000
  • Do you understand the criteria your potential firm is to establish compensation?
  • Is your compensation competitive with other firms that would like to have you?
  • Does your potential firm adequately compensate its junior partners? If not, you will have a problem finding lawyers to help you.).

Do you feel you are fairly compensated in your present law firm? Do you feel like you have the maximum opportunity to choose your destiny, take control of your future, and achieve what motivates you in your career?

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The TRACE Bribery Risk Matrix with Robert Clark

Originally published by tfoxlaw.

When doing business in a new country, do you know what the bribery risks are? Robert Clark is the Manager of Legal Research at TRACE International, and he’s here to discuss the TRACE Bribery Risk Matrix, an excellent tool for the compliance practitioner, and deep-dive into it and how you can use it — so […]

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Bankruptcy and Divorce

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

Filing for
Bankruptcy is a decision that you should make only after balancing it against all
of the other circumstances and issues related to your divorce. Bankruptcy
is a federal matter and is not covered by state law or the Texas Family Code.

The reason why you would want to file for bankruptcy is to discharge some
or all of your debts or to reorganize the payments on debt that you will
still retain after the completion of the bankruptcy. If successful in
your bankruptcy proceeding a judge would issue you a discharge that absolves
you from having to make future debt payments on that loan. I should note
that federally insured student loans are not dischargeable in bankruptcy
proceedings. If a debt is discharged then that debt collector may not
contact you in order to collect the debt.

The types of Bankruptcy proceedings

As an individual you can file for bankruptcy under Chapters 7, 11 and 13
of the bankruptcy code. Let’s break down each according to its specific
attributes.

Chapter 7 Bankruptcies

Chapter 7 bankruptcy means that you as the debtor have to turn over any
property that is not exempt (your home) for the purposes of paying back
to your debt(s). A trustee will be assigned to your case to collect and
hold this property. Household goods, vehicles and retirement accounts
are among those assets that are exempt from the collection requirements
under a Chapter 7 bankruptcy.

Once the non-exempt property is collected, the trustee will then take your
property and convert it to cash. That cash will be used to pay as much
of your debt as possible. Debtors favor Chapter 7 bankruptcy on the whole
because a remedy is arrived at quickly (relatively speaking) in roughly
six months. Due to the fast turn around time you would be able to move
on with the rest of your life and begin to take steps towards rebuilding
your financial affairs post-bankruptcy.

Chapter 13 Bankruptcies

A Chapter 7 Bankruptcy involves you submitting a plan to the judge in your
case that relays a reorganization of your debts either partially or in
full. There is a trustee involved in Chapter 13 cases as well and you
will be obliged to make regular payments to this trustee who will in turn
send those payments on to those creditors who are due money from you.

If you earn an income that is above the national average you may have to
file a Chapter 13 bankruptcy instead of a Chapter 7 Bankruptcy. The reason
is that you have the ability financially to pay creditors back to an extent
that those folks who file Chapter 7s are not. There is more to the analysis
of which bankruptcy type you qualify and you should speak to a bankruptcy
attorney in order to learn more.

Credit cards and medical bills usually do not figure into Chapter 13 bankruptcies
because these are unsecured lenders who do not have the ability to reclaim
property or put liens on your home or assets. Secured lenders like your
mortgage lender or your vehicle financier are among those debts commonly
handled in Chapter 13 bankruptcy.

The impacts of bankruptcy on individual persons

An immediate concern of most people when faced with the decision of whether
to file for bankruptcy is what effect the proceedings will have on their
credit. If you are in this position I would point out that your credit
is probably not in the best shape already considering the fact that you
are considering bankruptcy as a viable option. Your having missed payments
previously tells me this.

On the plus side, bankruptcy offers a fresh start for you and your future
life. It is available to us as citizens to allow us to get some relief
from debt collectors and a past that you would probably like to move away
from as much as possible.

Be aware that many debts can simply be negotiated upon by you directly
with either the lender or the third party debt collector working on behalf
of the lender. In fact, many companies exist who buy debt accounts from
lenders for pennies on the dollar. These businesses will typically accept,
you guessed it, pennies on the dollar to settle your debt. To do so it
is a good idea to get the settlement offer in writing and then to never
proceed to give the debt collector access to your checking account.

Get a prepaid debit card or send a check to the company to pay off the
debt once you have it confirmed in writing. Once a letter confirming your
having paid off the debt is sent to you it should be kept for a good long
while. You can verify that the debt has been paid in full by checking
your credit report a few months after the debt was paid.

What good can a debt consolidation company do you?

If you are a stay at home parent or are feeling ill and are at home during
any given weekday I’m sure you have seen commercials on television
for multiple debt consolidation companies. These businesses make it seem
like they are the cure to all that ails you. Your credit card debt, car
note and other loans can all be rolled into one neat little package with
a single interest rate to pay on. If you’re not careful you will
sign up for a program like this with the false knowledge that you actually
did something to better your situation when you really haven’t let.
Allow me to explain why.

First of all debt consolidation companies will often involve you allowing
these folks to put a lien on your vehicle or your home that are not exempt
in a bankruptcy. This puts you in a tough position in this regard. Secondly-
unless the debt consolidation lowers your overall interest rates on the
loans you haven’t actually done anything productive other than rearranging
the deck chairs on the Titanic. Finally, the companies operate by not
paying on your debts at all until the lenders contact them directly. They
will negotiate on your behalf but it won’t be for months and months.
All the while you are paying them for the privilege to do so. These are
services you could perform yourself.

Can you solve your debt problem(s) without bankruptcy? Talk to an attorney

If you are going through a
divorce and are considering bankruptcy you are best left to speak to both a family
law attorney and a bankruptcy attorney about how the processes of one
legal case affects the other. These attorneys may actually be able to
guide you into a situation where you can resolve your debt problems while
not going through what is sometimes a long and difficult bankruptcy.

After you have had an opportunity to discuss your situation with these
folks about the viability of a bankruptcy given your situation the next
thing you need to decide upon is which form of bankruptcy to file under.
These decisions can have a lasting impact on your life moving forward
and can cause delay in your divorce being decided as well.

Wondering about when to file a bankruptcy or how a short sale of your home
would work? Come back to our blog tomorrow to learn more

If you owe more on your house than its market value you are known as being
“under water” on your home. People in your position have spoken
to me on previous occasions on whether or not it would be a good idea
to attempt to do a short sale on their home as opposed to letting it become
foreclosed upon. If you have questions on this subject then you should
come back to our blog tomorrow to read up on the subject in greater detail.

Questions on divorce or family law in general? Contact the Law Office of
Bryan Fagan

The attorneys with the
Law Office of Bryan Fagan, PLLC appreciate your having taken the time to read through today’s blog
post. If you have any questions about it or seek clarification on any
number of family law issues we invite you to
contact our office today. We would be happy to schedule a free of charge consultation for
you where you can meet with one of our licensed family law attorneys to
ask your questions.

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US Justice Dept. Argues Against Extending Reach of ‘Janus’ Ruling

Originally published by Texas Lawyer.

 

U.S. solicitor general’s office says justices should decline invitation from In-N-Out Burger to expand reach of union ruling to other workplace disputes.
      

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SCOTUS Advances Arbitrability Question in Recent Rulings

Originally published by Texas Lawyer.

 

The U.S. Supreme Court has recently handed down two important decisions—Schein v. Archer & White and New Prime Inc. v. Oliveira—regarding the
      

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Monday, January 28, 2019

Network and save $150 on registration at ABA TECHSHOW 2019 in Chicago

Originally published by Justine Vasquez.

Experience over 31 years of legal technology and innovation at the ABA TECHSHOW 2019 at the Hyatt Regency Chicago from February 27 to March 2, 2019.

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Texas Real Estate Developer Faces SEC Charges Over Alleged Multimillion-Dollar Ponzi Scam

Originally published by P. Clarkson Collins Jr..

The US Securities and Exchange Commission has filed fraud charges against Phillip Michael Carter, Bobby Eugene Guess, Richard Tilford, and several entities accusing them of operating a multi-million dollar offering fraud. The regulator contends that the three men raised nearly $45 million from more than 270 investors in the US through the sale of high-yield, short-term promissory notes that were touted to prospective buyers as low-risk.

According to the SEC, investors thought they were getting involved in actual real estate development companies but instead ended up buying securities from entities with no assets. Carter, who is the principal of North Forty Development LLC and Texas Cash Cow Investments, is accused of then misappropriating $1.2M in investor funds for his own expenses, including a personal IRS tax lien and to operate a luxury hunting ranch. He also allegedly made over $3M in Ponzi payments that were issued to investors.

Now, the defendants are accused of offering and selling unregistered securities, violating the Exchange Act and the Securities Act, and acting as unlicensed brokers. The entities that are relief defendants in the case include:

  • Frisco Wade Crossing Development Partners, LLC
  • Crescent Park Development Partners, LLC
  • McKinney Executives Suits at Crescent Parc Development
  • Double Droptine Ranch, LLC

Last year, Carter was indicted on criminal securities fraud charges in Texas. The SEC reports that he owes investors over $45 million.

Meantime, Guess, who founded Texas First Financial Inc., is serving 12 years in state prison. He pleaded guilty to securities fraud last year for selling millions of dollars in what the Texas State Securities Board described as a “worthless Internet company.” Guess and associates sold stock certificates, notes, and investment contracts in Internet advertising company Stamedia. He sold securities in Texas for years even though he was barred from doing so in the state.

Tilford was also indicted at the same time as Carter over the allegedly fraudulent real estate investments sold mainly as promissory notes. The Texas State Securities Board said that he raised $6M from investors.

Texas Investor Fraud Lawyers
Our Texas securities attorneys at Shepherd Smith Edwards and Kantas, LLP (SSEK Law Firm) represents investors throughout the state. We work with investors in arbitration and litigation to recoup losses they sustained due to fraud or negligence. Our promissory note fraud lawyers offer free initial case consultations. Allow us to help you explore your legal options.

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Are We Prepared for Future Students?

Originally published by Academic Support.

Another semester begins, and I proclaim the benefits of physically going to bar review lectures and taking notes with a pen on the handouts. Students’ eyes roll, unless they are already transfixed on their computer screen they didn’t hear my…

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What is a Farmout Agreement?

Originally published by Environmental and Energy Law Blog.

Farmout agreements are common in the oil and gas industry.  A farmout agreement is a contract in which an interest owner (“farmor”) agrees to assign interest to another party (“farmee”) in exchange for certain services. Once these services have been rendered, the farmee has earned what is known as an assignment. The assignment, which is a royalty interest, is also called a convertible override, which means that the farmor can elect to convert this override into a portion of the working interest following payout. The decision of whether to convert or not is dependent upon whether the farmer wants to share production costs in exchange for a possible increased return.  If a farmor wants to avoid the risks associated with cost sharing, then he or she will not convert the override. However, if a farmor is comfortable with the project costs, then he or she will convert the override. This information is all included in the farmout agreement.

 

About farmout agreement negotiations

Negotiations typically take place prior to the execution of a farmout agreement. When negotiating the terms of a farmout agreement, it is necessary to understand the other party’s motivations and interests. This understanding gives each party an idea of what must be included in the agreement in order to make it work. In addition, it is essential that each party know what must be included in the agreement in order to reach the execution stage of the deal. Each party typically has at least one or two terms that they insist be included in the agreement. Identifying these requirements prevents unnecessary delays and ensures that the deal doesn’t fall apart. Additional reasons for identifying each party’s motivations include:

  1. Each party will know how far they can push the other to obtain favorable conditions and terms,
  2. Each party will have a better idea of which terms the other side will insist on, and
  3. Each party can make the other side’s alternatives harder to implement, less attractive, or less valuable.

Texas Oil and Gas Attorney

Oil and gas laws are always changing. Therefore, it’s imperative that those involved in the energy industry have reliable, experienced, and knowledgeable legal representation to help guide them through the ever-changing energy landscape. In the areas of oil and gas, it’s particularly important to ensure that all contracts, including farmout agreements, are properly drafted. Oil and gas contracts are sophisticated documents, and it’s important that they be drafted in a manner that ensures the rights and responsibilities of all parties involved. At the Law Office of C. William Smalling, P.C., we are highly experienced in the drafting and review of such contracts, including joint operating agreements, farmout agreements, master service agreements, drilling contracts, licensing agreements for use of seismic or technical data, and nondisclosure agreements. If you are in need of expert oil and gas legal representation, contact us today for a consultation.

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Websites and Coke Machines – Texas Judge says neither is covered by the ADA

Originally published by Richard Hunt.

Like Coke machines, websites are not places of public accommodation subject to the ADA according to Judge Sim Lake’s January 24, 2019 decision in Zaid v. Smart Fin. Credit Union, 2019 WL 314732 (S.D. Tex. Jan. 24, 2019). It is a holding of first impression in the Fifth Circuit and it can be hoped it will influence the flood of cases sure to follow.*  The Court’s reasoning was straightforward: The list of public accommodations in the ADA itself refers exclusively to physical places and the Fifth Circuit’s holding in Magee v. Coca-Cola Refreshments USA, Incorporated, 833 F.3d 530 (5th Cir. 2016) confirms that only physical places can be places of public accommodation.**

Missing from the decision, and presumably from the briefing, is any mention of the theories under which a website, as a service of a public accommodation rather than a public accommodation itself, must be accessible. A host of cases in the Ninth and Eleventh Circuits hold that while websites themselves are not public accommodations they must be accessible if there is a sufficient nexus to a physical place. This case may be an experiment by Scott Ferrell’s Pacific Trial Attorneys to get a finding that websites are places of public accommodation, for despite McGee v. Coca-Cola, the ADA’s application to websites has not previously been determined in a Fifth Circuit court.†

The Court does reject a defense standing argument, holding the plaintiff had sufficiently pleaded standing because the defendant credit union is open to all residents of Harris County and the plaintiff resides in Harris County. This is consistent with most other case law in this area – standing can be pleaded with such ease that it rarely works as a defense before the summary judgment stage.

The authority of a single district court decision is limited, but this case will be important for defendants as the locust swarm of professional ADA website plaintiffs descends for the first time on Texas.

*  It is always worth remembering that no matter how striking a district court decision may be:

A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.

Camreta v. Greene, 563 U.S. 692, 709 n.7, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011), citing  18 J. Moore et al., Moore’s Federal Practice § 134.02[1] [d], p. 134–26 (3d ed.2011).

**  See “Kiosks, Coca Cola and the ADA” and “Vending Machines and the ADA

† The defendant was represented by my former colleague Steve Schueler of the Winstead firm.

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