Originally published by Academic Support.
One of my colleagues, a lawyer with impressive credentials and accomplishments, claims that one simple practice helped him move from mediocrity to excellence in law school. “I started reviewing my notes every day after class.” What??? It can’t be that…
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by D.Longworth.
Article No. 2 in the Tx Child Support Series, Longworth Law Firm, P.C. Child Support and College in Texas When does child support end in Texas? In Texas, just like everywhere else in the United States, parents are obligated to support their children whether the parents are married or not. Most divorced parents are often …
Read MoreChild Support for College Students in Texas
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Kyle Bailey.
The scope of arbitration clauses and exclusion-from-arbitration clauses are a common source of dispute. In the patent context, it is particularly important to understand the scope of exclusion-from-arbitration clauses concerning intellectual property rights. Recent case law provides guidance regarding whether exclusion-from-arbitration clauses for intellectual property rights cover defenses to patent infringement.
In Verinata Health, Inc. v. Ariosa Diagnostics, Inc., (Fed. Cir. 2016), Illumina, the parent company of Verinata Health, sued Ariosa Diagnostics for patent infringement. Prior to the dispute, Illumina and Ariosa entered into a supply agreement that gave Ariosa a license to a subset of Illumina’s intellectual property rights. Ariosa licensed Illumina’s systems for DNA analysis in order to create a test for chromosomal abnormalities that can cause genetic disorders. The supply agreement contained both an arbitration clause and an exclusion-from-arbitration clause. The relevant language of the exclusion-from-arbitration clause stated:
[N]o arbitration shall resolve[] disputes relating to issues of scope, infringement, validity and/or enforceability of any Intellectual Property Rights.
Illumina never informed Ariosa that it might need to license the patent-at-issue in order to perform its test. After Ariosa manufactured the new DNA-sequencing test, Illumina sued Ariosa in the Northern District of California alleging that the test infringed the patent-at-issue. Ariosa brought counterclaims alleging that Illumina breached the supply agreement by bringing the patent infringement suit and breached the covenant of good faith and fair dealing. Illumina then filed a motion to dismiss, arguing that Ariosa’s counterclaims fell under the supply agreement’s arbitration clause. The district court denied the motion.
The Federal Circuit affirmed the decision of the district court, reasoning:
We agree that Ariosa’s counterclaims are not subject to arbitration. The pertinent language of the arbitration provision is unambiguous and makes clear that “disputes relating to issues of” patent scope and infringement are not subject to mandatory arbitration. J.A. 219. Illumina put the scope of licensed patent rights in issue by suing Ariosa for patent infringement. The counterclaims at issue—declaratory judgment of non-infringement, breach of contract, and breach of certain covenants—are predicated on the notion that the infringement allegations cannot stand because of the licensing provisions within the supply agreement. Endo Pharm., Inc. v. Actavis, Inc., 746 F.3d 1371, 1374 (Fed. Cir. 2014) (noting that the burden of proving license as a defense rests with the alleged licensee). The scope of the licensed intellectual property rights is germane to whether Ariosa ultimately obtained a license to the ‘794 patent for goods that it has been exclusively purchasing from Illumina under the supply agreement. Ariosa’s counterclaims are not about licensing or a license defense in the abstract—they are centered on whether Ariosa is licensed to use, and thus is immunized from infringement of, the asserted claims of the ‘794 patent. Given the scope of the supply agreement term “any Intellectual Property Rights,” it would be an odd circumstance to countenance parallel district court litigation with license as an affirmative defense, while forcing arbitration over counterclaims arising from that very license.
A subsequent Delaware District Court decision sheds light on the reach of Verinata. In Gillette Company v. Dollar Shave Club, Inc., No. CV 15-1158-LPS-CJB (D. Del. Aug. 7, 2017), the scope of an arbitration clause and an exclusion-from-arbitration clause was at issue. Gillette argued that Verinata stood for the broad proposition that:
[W]hen an arbitration clause has an exclusion for patent infringement, any license, exhaustion or contract defenses to patent infringement are also excluded from arbitration.
The court disagreed:
Gillette overstates the holding of Verinata. The arbitration agreement involved there explicitly carved out “disputes relating to issues of scope, infringement, validity and/or enforceability of any Intellectual Property Rights.” 830 F.3d at 1337 (emphasis added). The Federal Circuit then found that the claims at issue were not arbitrable because they “centered on whether Ariosa is licensed to use, and thus is immunized from infringement of, the asserted claims of the ‘794 patent.” Id. at 1340. By contrast, the 2008 arbitration agreement here expressly makes arbitrable some intellectual property rights – namely the determination of whether the accused products are “Existing Product[s] or Reasonable Modification[s] encompassed by the Covenants not to sue.” (D.I. 37 Ex. 2 at§ 10.C.1.(e)) That the 2008 Agreement otherwise limits the arbitrability of patent-related claims does not negate the provision that explicitly makes some of those questions arbitrable.
In both cases, the court focused on the use of the word “any” in the exclusion-from-arbitration clause. By excluding “any Intellectual Property Rights,” the clause in Verinata had an extremely broad scope and covered defenses to a patent infringement claim. In contrast, the arbitration agreement in Gillette made some intellectual property rights arbitrable and therefore “any” intellectual property right was not automatically excluded from arbitration. Understanding the importance of broad, all-inclusive language is vital when drafting and litigating exception-from-arbitration agreements of intellectual property rights.
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Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Charles Sartain.
Marsha Ellison v. Three Rivers Acquisition, LLC, et al. reminds us what is required for an instrument to be a conveyance and what is required for a stipulation to be effective.
When J.D. Suggs died in 1925, his heirs agreed to swap land with the Noelkes, and executed the Suggs Deed conveying several tracts to the Noelkes. One tract was described as “all of … the lands located North and West of the public road which now runs across the corner of [the survey], containing 147 acres more or less.” There was a problem: There were actually 301 acres in the section northwest of the public road.
The parties and their successors always treated the Suggs Deed as conveying 301 acres, not 147. Nevertheless, in 2008 Samson Oil and Gas asked Jamie Ellison (who had acquired a mineral lease on the Northwest Tract), to sign a letter confirming acceptance of a Boundary Stipulation purporting to resolve the discrepancy in the Suggs Deed. The Boundary Stipulation would have moved the property line to a new location consistent with an original conveyance of just 147 acres, but neither it nor the letter contained words of conveyance. The letter promised a more formal and recordable document after his acceptance. No such document was prepared, but the letter accompanying the Boundary Stipulation was signed by Ellison.
Was the Boundary Stipulation a legal conveyance? If not, was it an agreement to correct an ambiguity that was subsequently ratified by Ellison? The answers are no and no.
Necessary Elements of a Conveyance
A conveyance need not have all the “formal parts” of a deed or contain the right “technical words.” An instrument signed by the “grantor” will act as a conveyance of real property if a grantor and grantee can be identified and there are words of grant showing an intention of the grantor to convey an interest to the grantee. The Boundary Stipulation had none of these elements, and therefore was not a legal conveyance.
To Have a Stipulation You Need an “Ambiguous” Deed
Turning to whether the Boundary Stipulation was binding to settle “uncertainty, doubt or dispute” as to the location of a boundary line, the court noted that such uncertainty must exist on an objective basis and is an essential element to permit “stipulation agreements” to change the boundary line. In Texas, where a discrepancy exists between a metes-and-bounds description and a recited acreage number, the metes and bounds description controls. Thus, there was no objective uncertainty as to the location of the boundary line. Because the Boundary Stipulation was effectively “void,” and because void deeds cannot be ratified, Ellison’s signing of the letter accompanying the Boundary Stipulation was not a ratification of the “new” boundary line.
Correction Deeds
The opinion contains dicta (non-lawyers: expression of opinion on a point other than the precise issue involved in determining a case) that may give pause to oil and gas and real estate practitioners. The court noted that the Boundary Stipulation was “close in nature to a correction deed,” and in the case of correction deeds, “the underlying deed must … possess some ‘ambiguity or error’ to correct.” According to the court, there was no ambiguity as to what the Suggs Deed conveyed.
Free Practice Tip
Would a “Correction Deed” instead of a “Boundary Stipulation” have been effective to change the legal description in the Suggs Deed? Given the difficulties in determining whether an instrument is actually “ambiguous,” practitioners should consider including words of cross-conveyance in correction deeds that make material corrections.
The scriveners needed The Man in Black.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Legal Writing Prof.
Will we now need to teach about translating emojis? It’s not just an accommodation that we would reluctantly be making for our students, but rather emojis (emoticons) are creeping into the our world as evidence that needs to be assessed….
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by The Law Office of Bryan Fagan, PLLC Blog.
Families are structured differently now than in previous generations. The “nuclear” family that has been exhaustively discussed and written about since the end of World War II. We now see families where parents are not always married, single family homes becoming more and more prevalent and extended family living and having an important role to play in the life of children. As our office can attest to, children are being raised not only by extended family but also by step-family.
With this all being said, it is reasonable to ask what rights grandparents have to visitation with the children that have been a part of their lives. Parents have certain rights and duties that are inherent in their relationship to their children and are protected under the laws of the State of Texas. Are the same rights and duties made available to grandparents?
Suppose that you are a grandparent who has been out of your grandchild’s life for years because either your child or your child’s spouse has not wanted you involved. This has got to be extremely painful to have to deal with. The laws in Texas give great deference to parents and assumes that whatever decisions that they make in regard to your grandchild that they are doing so with the best interest of the child in mind. This means that absent evidence to the contrary, that you can be denied visitation with your grandchild by a court.
The rationale for this is that the State of Texas does not have a good enough reason in most circumstances to intercede into the private life of a family in order to create orders regarding grandparent visitation. If your child’s parents are making a decision for your grandchild it is expected that there is a legitimate and warranted reason for doing so. This is not to say that it is impossible to be given visitation rights if you are a grandparent. This is particularly true if you are a grandparent who previously played a large role in your grandchild’s life such as if you helped to raise the child or perhaps the child lived with you in your home.
This past year our office represented a set of grandparents who, through multiple cases, were able to win conservatorship rights to both of their grandchildren. Let’s discuss their story.
Early in 2017 two grandparents came into our office to speak to us about representing them in a family law case. They had two grandchildren that were living with their mother and their mother’s sister here in Houston. Their son, the children’s father, was in prison serving an extended sentence for a serious crime. The children’s mother was likely to meet the same fate when her trial was held later in 2017 regarding the same crime that put their son behind bars.
Caught in the middle of all of this were our clients’ grandchildren. These folks played a large role in their grandkids’ lives before their mother decided, abruptly, to not allow the grandparents access to the children anymore. The kids were distraught as were our clients. They shared photos of family events beginning from the time the children were born and it was clear that our clients had played a huge role in helping these kids grow up with some normalcy despite their difficult circumstances.
A plan that our attorneys created with these grandparents was to first establish that they had a relationship with the children sufficient to warrant their bringing a family law case for visitation or conservatorship rights. This is a concept known as “standing.” Not just anyone can file a Suit Affecting Parent Child Relationship in Texas. To do so you must show that you have significant contacts with the child, i.e. a good reason to do so. Once we saw that we would be able to show these past significant contacts, we moved forward and filed a petition to seek visitation rights for the grandparents.
As most SAPCR cases go, we attended mediation prior to ever seeing a judge. We were fortunate to able to work with an experienced, smart mediator who helped our clients understand that just because they were not necessarily in a position to be named conservators of their grandchildren at this stage, it was not impossible to do so later on. Our clients settled on getting a weekend’s worth of visitation with their grandchildren in addition to holiday time around Thanksgiving and Christmas.
Months later after it was apparent that the children’s mother was heading to prison, our clients came back and re-filed a petition to seek conservatorship rights over their grandchildren. This meant that they were seeking to share in the rights and duties in raising their grandchildren, rather than having mere visitation rights. Prior to ever having to go before a judge the children’s mother agreed to allowing a court to extend these rights to our clients. Our clients’ son never answered the lawsuit and was thus prevented from weighing in on the situation.
Ultimately, our clients not only were named as joint managing conservators of their grandchildren but they were able to win the right to determine the primary residence of their grandchildren. This means that they could choose where their grandchildren would be living primarily. This was an ideal situation and while not every case can be like this one, many can and have been. It took equal parts good luck, good lawyering and patience from the clients.
Suppose for a moment that our clients and their grandchildren’s mother did not settle out of court and the case had to be taken to trial. How would a judge approach the question of whether or not to award custody rights to a grandparent?
It is difficult to win custody rights to your grandchildren unless one of the parents voluntarily terminates their own parental rights or the court determines either parent (or both) to be unfit. Past contact with the children, age, physical well being and future ability to care for the grandchildren are all relevant factors that I believe a court would consider.
What we in the family law world see happen with some frequency is a grandparent who is raising their grandchild on an informal basis. This means that there has been an agreement in place (usually verbal) that allows the grandparent to care for a child while their parents are unavailable or unwilling to do so. These agreements can go on for years and years before a parent or grandparent seeks to formalize or change the arrangement. If you are a grandparent who has cared for your grandchild for years only to have a parent try to take him or her from you that may be a situation where you want to file for court ordered visitation, possession and conservatorship rights.
The vast majority of family law cases in Texas never see the inside of a courtroom or proceed to a trial. This is due in large part to the role that mediation plays in the negotiation process. If you have concerns about how long or how expensive a divorce or child custody case can get then mediation is an alterative to that may be able to encourage settlement and shorten the length of your case. We will discuss this topic in greater detail tomorrow.
In the meantime, if you have any questions regarding your particular family law related circumstances please consider contacting the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations with one of our licensed family law attorneys six days a week. A consultation in our office is a great opportunity to learn more about the legal process and how it would impact your situation. We take great pride in providing information that can allow you to make good decisions on the next steps you can take to reach your goals no matter what they might be.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Peggy Keene.
Beginning in 2020, CA consumers will have more control and say over how Internet companies share, sell, and use their data. Under Governor Jerry Brown, […]
The post Will Congress Follow California’s Data Privacy Legislation Lead? appeared first on Klemchuk LLP.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Beth Graham.
The United States Court of Appeals for the Fifth Circuit has ruled a federal district court committed error when it ordered JPMorgan Chase Bank to notify thousands of current and former employees who signed an arbitration agreement waiving their right to engage in collective action against the company about a pending class action case. In a case titled In re: JPMorgan Chase & Co., No. 18-20825 (5th Cir., February 21, 2019), a group of Chase employees filed a Fair Labor Standards Act (“FLSA”) class action lawsuit against the company in the Southern District of Texas. The federal court conditionally certified the class and issued an order requiring Chase to notify approximately 42,000 workers about the pending lawsuit. Because about 35,000 of those individuals signed an arbitration agreement waiving their right to engage in collective action, Chase filed a motion to stay the case and a petition for a writ of mandamus with the nation’s Fifth Circuit Court of Appeals. In December, the appellate court issued a stay in the case.
In an opinion published on February 21st, the Fifth Circuit enumerated the three conditions that must be met before a writ of mandamus may issue.
A writ of mandamus is “a drastic and extraordinary remedy reserved for really extraordinary cases,” In re Depuy Orthopaedics, Inc., 870 F.3d 345, 350 (5th Cir. 2017), and we may issue the writ only if three conditions are met. First, the petitioner must have “no other adequate means to attain the relief he desires.” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004). Second, this court “must be satisfied that the writ is appropriate under the circumstances.” Id. at 381. Third, the petitioner must demonstrate a “clear and indisputable right to the writ.” Id.
The appellate court found Chase successfully demonstrated “that the issue presented is irremediable on ordinary appeal and that the writ of mandamus is appropriate under the circumstances.” After that, the Fifth Circuit examined whether the district court’s order directing Chase to notify all 42,000 current and former workers about the pending class litigation was erroneous.
Although Hoffmann-La Roche gave district courts discretion to send notice of pending FLSA actions to potential opt-in plaintiffs, it did not explain whether Arbitration Employees waiving their right to proceed collectively count as “potential plaintiffs.” That lack of clarity has produced conflicting results from district courts, especially where they use the popular two-stage Lusardi method to certify a collective action.
…
Though some district courts have read the Lusardi framework as encouraging courts to wait until stage two to consider the existence of arbitration agreements, we hold that district courts may not send notice to an employee with a valid arbitration agreement unless the record shows that nothing in the agreement would prohibit that employee from participating in the collective action. Hoffmann-La Roche confines district courts’ notice-sending authority to notifying potential plaintiffs; it directs judges “to avoid even the appearance of judicial endorsement of the merits of the action”; and it nowhere suggests that employees have a right to receive notice of potential FLSA claims. The December 10 order is incompatible with Hoffmann-La Roche and with what we hold in this opinion regarding notice.
After finding the district court erred, the Court of Appeals addressed whether Chase met the third requirement for a writ of mandamus.
In spite of our holding that the district court erred in ordering notice to Arbitration Employees, the court did not “clearly and indisputably” err, as is required for a writ of mandamus. Occidental Petroleum, 217 F.3d at 295. Every decision from district courts in this circuit had either adopted the notice of-rights theory pressed by plaintiffs—and endorsed by the district court in the case a quo—or certified collective actions that include Arbitration Employees. That this district court followed numerous others in errantly applying Hoffmann-La Roche suggests that its order did not meet the test for a “clear abuse[] of discretion that produce[s] patently erroneous results.”
Additionally, although ordering that 35,000 employees, who cannot participate in the litigation, receive notice of its pendency comes close to the “solicitation of claims” forbidden by Hoffmann-La Roche, 493 U.S. at 174, other district courts have done the same. Under these circumstances, there is no “usurpation of judicial power” justifying deployment of “one of the most potent weapons in the judicial arsenal.” Cheney, 542 U.S. at 380 (internal quotation marks omitted).
Because Chase failed to show the company had “a clear and indisputable right to the writ,” the U.S. Court of Appeals for the Fifth Circuit denied Chase’s petition for a writ of mandamus but extended its earlier stay by 30 days in order to provide the district court with sufficient time to reconsider the notice order.
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Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by D.Longworth.
The Longworth Law Firm, P.C. – MyHoustonDivorce.Lawyer, Texas Child Support SeriesChild Support Series – Retroactive Child Support in Texas. Suing for Back Child Support in Texas Sometimes after a child support order has been issued by the court, one of the parents may seek to establish a retroactive child support case. Retroactive child support means …
Read MoreRetroactive Child Support in Texas
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Originally published by Cordell Parvin.
When was the last time you ate lunch with a client or referral source? I am posting this blog to urge you to not eat lunch at your desk, not eat every lunch with your colleagues. Eat lunch with clients and referral sources.
Years ago a former New York City Police Detective named Bo Dietl wrote a book with a lengthy title: Business Lunchatations: How an Everyday Guy Became One of America’s Most Powerful CEOs…and How You Can Too!
Dietl’s ideas are designed for CEOs but they also apply to lawyers. Consider the following:
The post Business Lunches appeared first on Cordell Parvin Blog.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Susan Brennan.
The State Bar of Texas Local Bar Services Committee is now accepting local bar association submissions for the annual Stars of Texas Bars Awards and Judge Sam Williams Award.
The deadline to submit entries is 5 p.m. CST April 30. For questions, please email localbars@texasbar.com or call (800) 204-2222, ext. 1514.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Texas Lawyer.
In Texas divorce, a dog is lumped in with other marital property and gets divided with the other marital assets, without regard to the parties’ relationship with the pup, or where the pup is likely to be happier.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Cris Feldman.
Due to the close proximity of businesses, entertainment venues, residential areas, and hotels in a metropolitan area, noise complaints are a common occurrence in a big city. Without clear and defined regulations in place for noise levels – including specific hours of operation for music and entertainment venues – these complaints can be a constant source of friction between business owners and those living in or visiting a city.
Austin has spent the last three years attempting to codify regulations and create a system of clear expectations for any business that opens or operates in an area where noise complaints might arise, including near a residential area or a hotel. The city’s Music Commission is pushing the City Council to produce an ordinance to clarify expectations and hopefully alleviate tension between the city’s numerous entertainment venues and nightclubs and nearby hotels and residences.
Austin was dubbed the “Live Music Capital of the World ®” in 1991, when it was determined the city had more live music venues per capita than anywhere else in the country. In addition to being the home of over 200 live music venues, Austin annually hosts some of the country’s largest music festivals, including renowned South by Southwest (SXSW) and Austin City Limits (ACL).
The sheer volume of music venues in a relatively small geographic area was eventually going to lead to issues. In 2015, a newly opened downtown Austin hotel began submitting noise complaints against a nearby nightclub, which had been operating peacefully for years. In mid-2017, it appeared the City Council was on track to create a licensing and penalty system for music venues and nightclubs operating within Austin city limits to address these types of complaints. Objections from leaders in the local hospitality industry and music/entertainment industry, however, derailed these efforts.
The current Austin Code of Ordinance specifies a person may not:
1. Use or permit the use of sound equipment at a business in excess of the decibel limits prescribed by this chapter;
a. in excess of 85 decibels between 10:00 a.m. and 2:00 a.m., as measured at the property line of the business; or
b. is audible at the property line of the business between 2:00 a.m. and 10:00 a.m.
2. Make noise or play a musical instrument audible to an adjacent business or residence between 10:30 p.m. and 7:00 a.m.;
Since downtown Austin is packed with music venues, clubs, restaurants, and hotels, these restrictions are very broadly defined for the epicenter of a city built on live music. Creating a more clearly defined set of regulations, including steps for permitting and set guidelines for violations or infractions, could go a long way towards bridging the divide between entertainment venue owners looking to run a successful business and visitors and tourists looking to get a good night’s sleep.
The lawyers at Feldman & Feldman have significant experience dealing with noise complaint issues, most recently reaching a successful resolution for Houston residents in relation to White Oak Music Hall. The Greater Heights homeowners’ settlement with White Oak Music Hall included limitations on when and how long shows can be held at the venue. The settlement also prohibited shows on school nights from lasting past 9:30 p.m., along with any outdoor concerts during state STAAR testing. A sound monitoring system was also required, with potential fines reaching up to $15,000 per violation. These regulations have measurably improved the relationship between the residents of this area and the music venue.
The post Austin, The Live Music Capital of the World, Struggles With Noise Complaints appeared first on Feldman & Feldman.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Tim O'Hare.
by Texas Slip and Fall Injury Lawyer, Tim O’Hare
Follow The Law Offices of Tim O’Hare on Facebook, Twitter, LinkedIn, Google+ & YouTube
Slip and fall accidents happen. But is there someone who can be held responsible? If you are injured in a fall on another’s property, who should cover the medical bills from treating your injury?
Slip and fall incidents generally fall under the “premises liability” category of personal injury law. When a property owner is negligent in maintaining a safe environment, including repair and upkeep of the property, they may be held liable if someone is injured while visiting their property. This can apply to both business owners and homeowners.
In many states, premises laws require property owners to exercise reasonable care to ensure the property — including interior aisles, passageways and floors — remain in a safe condition and that the property is free of hazardous conditions that may present a danger to someone visiting the property. Property owners have the responsibility to manage their property in such a way that others are not at risk of injury while on the property.
If someone is injured while on another’s property, the injured party may file a premises liability claim against the owner of the property if it can be proven that the owner was negligent in keeping his or her property safe. This is the key. Property owners are NOT responsible for your medical expenses or other damages just because an injury occurred on their property. Their negligence must be the cause of the injury. Though both commercial property owners and homeowners may be held responsible for injuries occurring on their property, most premises liability cases are brought against the owners of commercial properties.
Common examples of premises liability or slip and fall cases include:
Premises liability may also include cases pertaining to:
Premises liability cases can be tricky, as it must be proven that the property owner was negligent. In Texas, successful premises liability lawsuits must prove these five elements:
A condition existed on the property in question that posed an unreasonable risk of harm to other individuals on the property.
If you have suffered injury or harm due to a hazard on a private or commercial property, it is important to document the accident with photos. Take pictures of the hazard. Get the names and phone numbers of as many witnesses as possible. These witnesses will play a significant role in the success of your case. And, most importantly, work with a personal injury lawyer who is experienced and has a record of success in premises liability cases. Contact The Law Offices of Tim O’Hare to speak with a Texas slip and fall lawyer today.
Call The Law Offices of Tim O’Hare for your FREE Case Evaluation
972-960-0000 or Toll-Free 888-960-0020
The post Slip and Fall Accidents: Who’s Responsible for Your Injury? appeared first on .
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by David Coale.
The Texas Supreme Court’s opinion in Mercedez-Benz v. Carduco has sparked discussion about the interplay between contract terms and oral representations. An important component of that discussion is that Court’s reminder that: “Another issue for Carduco in this case is the testimony of Renato Cardenas, Carduco’s sole owner and decision maker, who testified that none of the defendants actually made any oral representation to him about Carduco’s ability to move the dealership to the McAllen area as the exclusive Mercedes-Benz dealership there.” The lack of such evidence mooted a dispute over the situations where partial disclosure can create an obligation to make corrective representations. No. 16-0644 (Feb. 22, 2019).
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by D.Longworth.
Divorcing parents in Texas are more likely to be named joint managing conservators than one of them being designated as the sole managing conservator. Joint Managing Conservators vs Sole Managing Conservator There is a presumption that declaring both parents as joint managing conservators is in the best interest of the child. However, there are times …
Read MoreWhat Is A Sole Managing Conservator?
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by tiffany.dowell.
Last summer, a case from the El Paso Court of Appeals, Harrison v. Rosetta Resources Operating, raised interesting arguments regarding water use and the accommodation doctrine.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Texas Lawyer.
“Further percolation on this issue is plainly warranted,” Noel Francisco, the U.S. solicitor general, told the U.S. Supreme Court in urging the justices to turn down In-N-Out Burger’s petition.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Academic Support.
The bar exam starts for nearly everyone on Tuesday, so I want to start with Good Luck to February takers!! By this time, you should be finished or nearly finished studying. Only in rare cases will studying do anything after…
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Joanna Herzik.
10. Not-so-subtle hint about Casteel – David Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas
9. Workers Paid with Gift Cards – Thomas J. Crane @tomjcrane of Law Office of Thomas J. Crane in San Antonio
8. Can an Independent Executor Alter How my Property is Distributed? – Rania Combs of Rania Combs Law @raniacombs in Houston
7. Lawyers: Do you have the fire in your heart? – Cordell Parvin @cordellparvin of Cordell Parvin LLC in Dallas
6. Big Picture Perspectives for the Final Weekend of Bar Prep: “See It–Do It–Teach It” – Scott Johns of the Law School Academic Support Blog
5. Copyright Infringement of Dance Moves in Video Games – Peggy Keene of Klemchuk LLP @K_LLP in Dallas
4. Ongoing Struggle with Cell Phone GPS and Right to Privacy – John T. Floyd of John T. Floyd Law Firm @HoustonDefender in Houston
3. Stunning Dallas Jury Verdict for $37 Million Awarded – Bill Berenson @LawyerFortWorth of Berenson Law in Fort Worth
2. A Tale of Two Arbitration Waivers: HTC Corporation v. Telefonaktiebolaget LM Ericsson – Kyle Bailey of Karl Bayer @karlbayer in Austin
1. The KonMari Method to Effective Law Firm Marketing – Bruce Vincent of Muse Communications, LLC @MuseCommLLC in Dallas
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Rania Combs.
A man who was named independent executor in a Will called me. Someone told him that because he was named as the independent executor, he had the right to distribute Testator estate any way he wished. He was calling to ask if that was true.
It is not!
The role of an executor is to carry out to carry out the Testator’s wishes. After an application to probate the Will has been filed and the Court has authorized an executor to act on behalf of the estate, the executor will be authorized to:
An executor is legally obligated to follow the testator’s directions and may not change the beneficiaries of the will or how and to whom the testator’s property is distributed. In fact, executors have a fiduciary duty to protect the interests of the estate’s beneficiaries.
The fact that a Will names an “independent executor” does not mean that the executor has the authority to disregard the testator’s wishes. It simply means that in carrying out the executor’s duties, the executor may act almost entirely without the supervision or control of the probate court.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Kyle Bailey and Beth Graham.
Multinational technology company Google has reportedly announced it will no longer require mandatory arbitration of employee disputes with the company effective March 21, 2019. The company’s new arbitration policy will apply to Google employees as well as individuals who work for entities that exist under the Google legal umbrella such as the Access broadband unit and the DeepMind artificial intelligence program. The mandatory arbitration change will not, however, apply to other related companies that are owned by Alphabet but outside of the Google legal entity. Although the arbitration change will technically apply to the company’s temporary and contract workers, Google will not require staffing companies to alter their own employment contracts.
The elimination of Google’s mandatory arbitration requirement came after a group of Google employees placed public pressure the company to back away from mandatory arbitration. Last November, a number of Google employees participated in a global walkout to protest the way Google handled sexual harassment claims filed against the company’s top executives. Following the walkout, Google and other leading technology companies such as Microsoft Corporation waived their policies for mandatory arbitration of sexual harassment claims. At the time, however, Google maintained its mandatory arbitration requirement for other employee claims.
Google’s announcement means employees will now have the option of choosing to resolve any future claims against the company through either court or arbitral proceedings. Despite the policy change, Google will not reopen employee claims that have already concluded arbitration or have previously settled.
Photo by: Benjamin Dada on Unsplash
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Originally published by tiffany.dowell.
Happy Friday and happy FFA week! I, like many of you, credit FFA for so much of my success in my life and career. I hope you take a moment to think back on what FFA has given you and think about ways you might be able to give back to the organization.
This was me, being named New Mexico State Star Farmer in 2001.
I also want to say a special welcome to those of you who are joining us after attending the Central Texas Farm Credit diner in Haskell this week. It was an honor to speak with you all and I want to welcome you to the Texas Ag Law Blog.
Here are some ag law stories in the news over the past couple of weeks.
*SCOTUS will hear Hawaii Wildlife Fund v. County of Maui case involving indirect discharges into groundwater. In what some are calling the biggest environmental case before the US Supreme Court this year, the Justices have granted cert in in the Maui case to address the issue of whether an indirect discharge, such as one made into groundwater the eventually reaches a jurisdictional water, is regulated under the Clean Water Act. [Read article here.] To read more about this issue and the cases that led to a split among the federal circuit courts, click here.
*Comment period now open for new proposed WOTUS definition. On Valentine’s Day, the EPA and US Army Corps of Engineers published the new proposed WOTUS definition in the Federal Register. [Read published rule here.] That opened up a 60-day comment period during which anyone can comment on the published definition. After that period has closed in April, the EPA and COE will take the comments under consideration, make any revisions they deem necessary, and publish a final rule. For more information on the WOTUS rule, including a discussion of the differences between the 2015 rule and this new rule, click here to listen to my podcast episode with Jim Bradbury. Also, if you are interested in making a comment, the Maryland Risk Management Education Blog has compiled a list of the various ways to do that, which you may access here.
* Leon County judge rules that proposed Bullet Train is not “railroad” and, therefore, lacks eminent domain power. Last week, a Leon County judge ruled that Texas Central, the company planning to build the high speed rail between Dallas and Houston did not qualify under Texas law as a “railroad” or an “interurban electric railway” and, as such, does not have the power of eminent domain for the high speed rail project. Texas Central has announced it intends to appeal this judge’s ruling, citing to a prior determination by the court in Harris County finding Texas Central to be a bona fide railroad company with condemnation power under Texas Transportation Code Sections 81.002 and 131.011. [Read article here.]
*Digital asset considerations when drafting estate plans. I read an interesting article by attorney Sam Moak from Huntsville recently talking about the various problems that can come up when someone passes away and did not provide consideration to how digital assets should be dealt with. From keeping a password list (in a secure location, of course) to backing up emails to social media accounts, there are a number of items to think about when drafting an estate plan these days. [Read article here.] Also, to see how this can be a major issue in the real world, check out this recent news article.
*Iowa will appeal “ag gag” ruling. You may recall from this prior blog post that an Iowa court recently struck down the state’s “ag gag” law as unconstitutional. [Read article here.]
*Class action lawsuit filed against Chipotle. My friend Paul Goeringer recently wrote a blog post discussing a class action lawsuit alleging that Chipotle’s advertising campaign that products were “non-GMO” and “GMO free” violated consumer protection laws in CA, MD, and NY. Plaintiffs argue the restaurant violated the law when they made such statements, but then served protein, cheese, and sour cream produced from animals t hat were raised on GMO feed and beverages made with GMO corn syrup. In September, the federal court granted class action status, certifying a class of all persons in CA, MD, or NY who purchased Chipotle’s food products containing meat or dairy ingredients between April 27, 2015 and June 30, 2016. The court has yet to consider the merits of the case, ruling only that the case would be allowed to proceed as a class action. [Read blog post here.]
*Death on the family farm. After a rough day back home last weekend, I wrote a little blog post about death on the family farm and the lessons that allows us to teach our children. [Read post here.]
The post February 22, 2019 Weekly Round Up appeared first on Texas Agriculture Law.
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Originally published by Academic Support.
Next week, thousands will be headed to convention centers, etc., to show case the handy-work of their bar preparation efforts for the past two months. In preparation, bar takers have watched weeks of bar review lectures, worked hundreds and even…
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Originally published by Michelle O'Neil.
Highly compensated individuals may have a laundry-list of deferred compensation awards going out over many years. Sometimes these compensation methods require negotiation transactions during a divorce that may or may not be legally permitted without full transparency. In most Texas courts, there are “standing orders” that automatically apply to every divorce that prohibit certain types of transactions. It is important to understand the marital assets in order to prevent the client from inadvertently violating one of these rules.
Some types of non-cash compensation include incentive or employee stock options, employee stock purchase plans, and restricted stock options. Understanding the nuances of each of these types of awards is critical and hiring a financial expert may be warranted.
Stock option exercise patterns vary but typically are exercises at least annually but can be as often as quarterly. Consider whether the client has the authority under the prevailing orders to exercise the options or execute a sale of the newly acquired stock. Having knowledge of the vesting schedule and marking the dates for discussion with the client may be critical to keeping the client out of hot water with the court. It may be necessary to preemptively file and set a motion for hearing to address these matters and get early permission to act.
It may be necessary to have a plan and strategy in place to advise the client in the event of market volatility, especially if the client is heavily invested in one particular stock.
Sometimes it may be easiest to seek spousal consent to the actions necessary to protect the marital estate. Reaching an agreement is usually less costly than litigating when possible.
Hat tip to Vincent J. Fiorentino and Alexandra Mililli for their article 6 Ways to prepare clients with non-cash compensation in the Family Lawyer Magazine.
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Originally published by Lowell Brown.
Governor Greg Abbott announced Thursday he has appointed former 14th Court of Appeals Justice Brett Busby to the Texas Supreme Court for a term set to expire on December 31, 2020. Busby’s appointment, which is subject to Senate confirmation, follows the retirement of Justice Phil Johnson in December.
Read the governor’s announcement.
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Originally published by John McFarland.
Last month the Environmental Defense Fund released an analysis of NOAA satellite data estimating volumes of gas flared in the Permian Basin in 2017. Its findings: operators report half of the amount of gas actually flared.
104 Bcf of gas is enough to serve all needs of Texas’ seven largest cities – $322 million worth of gas. The State also does not collect severance tax on that gas.
Operators must obtain permits to flare gas and report volumes flared. The RRC has not denied any permits. Between 2016 and May 2018, the RRC issued more than 6,300 flaring permits in the Permian. Between 2008 and 2010, the RRC issued fewer than 600 flaring permits for all of the state.
EDF’s analysis also compared the top 15 oil producers in the Permian (click on image to enlarge):
Last October S&P Global Market Intelligence issued an analysis of flaring in the Permian Basin and the Eagle Ford. It also relied on satellite data and a NOAA algorithm that estimates flared volumes. Its analysis concluded that in 2017 Texas operators flared 163 Bcf of gas, about 2.6% of the state’s natural gas production. NOAA data indicates that Operators may have flared nearly 1 Tcf of gas from 2012 to 2017. The analysis also remarked on the difference between reported volumes of flared gas in Texas – 1.6% of production in 2017 – and NOAA estimates of 2.6%. (S&P Global’s report online has a cool graphic showing rates of flaring over time on a map of Texas.)
In contrast, S&P Global found closer agreement between NOAA and state data in North Dakota, where the Bakken production occurs – but still under-reporting of flared volumes. North Dakota regulators have sought to reduce flaring and fine violators, planning to require producers who exceed allowed flaring levels of 15% of production to shut in their wells until pipeline infrastructure can be built to market the gas.
EDF’s report also analyzed flared gas on state-owned University Lands, more than 2 million acres in the Permian. University Lands collects royalties on flared gas. EDF concluded that UL has a lower rate of flaring on its wells – 2.75% – than the overall Permian average of 4.4%. A higher degree of lease management and the requirement to pay royalties on the gas flared likely correlated to better performance.
Both EDF and S&P Global concluded that state regulators should incorporate NOAA satellite data into their regulatory oversight to identify violators. EDF also recommended that operators be required to pay state severance tax on flared gas. EDF’s other recommendations included requiring best flaring technologies, eliminating the duration of flaring permits, and encouraging technologies that capture the gas onsite.
Yesterday the three commissioners of the Texas Railroad Commissioners, Ryan Sitton, Christi Craddick and Wayne Christian, appeared before the Texas Senate Natural Resources and Economic Development Committee and were questioned about these reports that methane emissions were “much higher than the EPA predicted in West Texas.” All said they did not believe those reports. Sitton said he thought the volumes reported to the RRC are “very close to accurate.” Craddick said she was “not sure if [the reports] are accurate or not.” Collin Leyden of EDF commented that the commissioners “seem to dismiss the reports on the grounds they believe that the data they have is correct. I did not hear any sort of technical analysis of the satellite data indicating they had found any sort of flaws or errors.”
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Bruce Vincent.
There are many available tools for effectively marketing a law firm but one resource that’s all the rage but not might not immediately jump to mind is the popular KonMari lifestyle. The brainchild of Japanese organizing consultant Marie Kondo, KonMari essentially boils down to taking stock of everything you own and then eliminating whatever fails […]
The post The KonMari Method to Effective Law Firm Marketing appeared first on Muse Communications.
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Originally published by Thomas J. Crane.
Employers do some crazy things, sometimes. One employer in New Braunfels has been paying “volunteers” with gift cards and fabric. Quilt Haus and Way to Sew have been paying some workers with gift cards payable to the store itself. The workers would receive one gift card valued at $8 for each hour of work. The worker could then use the card to buy fabric. The store referred to the workers as “volunteers.” But, as I understand the Fair Labor Standards act, there is no such thing as a volunteer worker. If the employer accepts your work, then the employer must pay for it.
Apparently, some of the workers complained. Because, the Department of Labor investigated. DOL then found violations. And, now, DOL has now filed suit. See San Antonio Express News report.
It is not that hard to get legal advice about wages. The DOL and Texas Workforce Commission both provide free advice regarding how to pay employees. A person might have to wait on the phone a bit, but it is free. And, an employer can point to that advice later if the business is investigated. I expect these two businesses did not seek legal advice. This method of payment is nowhere close to kosher.
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Originally published by Cordell Parvin.
You likely know I loved coaching lawyers, and when they tell me what they have achieved, it is even more fulfilling. Several lawyers I coached years ago are now top rainmakers or firm leaders in their law firms. Several groups of lawyers I coached still get together at their firm retreats.
Your law firm should consider client development coaching in 2019 for a variety of reasons.
Coaching helps lawyers make the right choices, narrow their focus, and use their time wisely. Coaching also helps lawyers be accountable.
Why will client development coaching help create the next generation of rainmakers in your law firm?
First, your lawyers will own it. Lawyers do not want to be told what to do. They want to feel in control. In coaching your lawyers will get out of it what they choose to put into it. They get to choose.
Second, coaching focuses on your lawyers establishing and achieving their goals. Coaching provides both assistance and accountability.
Third, the coach will help your lawyers figure out what will work best for them. That means they will not waste time pursuing client development ideas that won’t work and your lawyers will less likely get frustrated in the process.
The post Client Development Coaching: It should be a no-brainer appeared first on Cordell Parvin Blog.
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Originally published by John Floyd.
Court Continue to Struggle with Cell Phone and Right to Privacy
Once considered a sacred cow, individual privacy has succumbed to governmental interference, especially in the area of how law enforcement cell phone technology to track and apprehend criminal suspects.
Cell site location information (“CSLI”) or global positioning system (“GPS”) real-time information can locate a cell phone within 5 to 10 feet of its location through identification information collected by multiple cell towers about the device. The National Association of Criminal Defense Lawyers’ (“NACDL”) primer on Cell Phone Location Tracking refers to this technique as “triangulation.”
A cell phone’s CSLI falls into two categories: “historical” or “prospective.” Most often, however, CSLI falls in to the historical category while GPS real-time information falls into the prospective category.
The NACDL primer notes that law enforcement can use historical CSLI to connect a suspect to the location of a past crime allowing them to associate him or her to past incriminating events. Prospective location has a more immediate benefit—it allows law enforcement to trace the current whereabouts of a suspect in order to make an arrest.
The NACDL also instructs that federal law enforcement officials rely primarily on two statutes to secure an order of production against cell phone service providers to gain access to either CSLI or both GPS real-time information in order to track, locate, and/or incriminate an individual suspected of criminal activity. These statutes are:
Texas’s version of these two federal statutes combined is Article 18.21 of the state’s Code of Criminal Procedure.
Expectation of Privacy in Texas
On January 16, 2019, the Texas Court of Criminal Appeals (“CCA”) issued an opinion in Sims v. State dealing with the Stored Communications Act and Article 18.21. The Sims case dealt with law enforcement using real-time location information to track the suspect’s cell phone by “pinging” it without a warrant. That prospective information allowed law enforcement to locate and arrest the suspect. Sims sought to suppress this prospective real-time information because the search violated the Fourth Amendment to the U.S. Constitution, the Stored Communications Act, and Article 18.21.
The CCA granted review in the Sims case to decide two issues:
The CCA ruled that suppression is not a remedy for a violation of the Stored Communications Act and/or Article 18.21 unless that violation infringes upon the U.S. or Texas constitutions. As for the Fourth Amendment privacy issue, the Court concluded that under the facts of the Sims case the defendant did not enjoy an expectation of privacy to the real-time location information stored in his cell phone.
Last year the U.S. Supreme Court in Carpenter v. United States ruled that an individual has certain expectations of privacy in stored cell phone information equivalent to the Fourth Amendment protections against physical intrusions in other areas. Five justices in Carpenter, including the majority opinion written by Chief Justice Roberts, chose to use a “physical-trespass theory” over the historical “expectation-of-privacy theory” to conclude that “longer term GPS monitoring” could nonetheless violate an individual’s legitimate expectation of privacy “regardless [of] whether those movements were disclosed to the public at large.”
Expectation of Privacy Depends of Quantity of Information Searched, Seized
The Texas CCA pointed out that while Carpenter dealt with historical CSLI information, not GPS real-time information, the CCA nonetheless believes Carpenter applies to both historical and prospective (real-time) information. Against that constitutional backdrop, the CCA concluded in Sims:
“Whether a particular government action constitutes a ‘search’ or ‘seizure’ does not turn on the content of the CSLI records; it turns on whether the government searched or seized ‘enough’ information that it violated a legitimate expectation of privacy. There is no bright-line rule for determining how long police must track a person’s cell phone in real time before it violates a person’s legitimate expectation of privacy in those records. Whether a person has a recognized expectation of privacy in real-time CSLI records must be decided on a case-by-case basis.”
The CCA pointed out that this legal conclusion was based on the factual difference between Sims and Carpenter. Law enforcement in the Sims case accessed “three hours of real-time CSLI records” by pinging the defendant’s cell phone less than five times while law enforcement in Carpenter accessed more than seven days of CSLI from the cell phone service provider.
Chief Justice Roberts also confined the Carpenter ruling to the specific facts in that case as the Texas CCA did in Sims.
Thus, it appears to us that the two courts are saying that brief intrusions on historical CSLI and/or GPS real time information do not violate the expectation of privacy guaranteed by the Fourth Amendment but extended surveillance in either or both areas of information violates an individual’s privacy rights.
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