Originally published by Nonprofit Blogger.
California Gov. Gavin Newsom has signed legislation to allow college athletes to be paid for the use of their name, likeness and image. California Senate Bill 206, more commonly referred to as the Fair Pay to Play…
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Originally published by Academic Support.
Authority is not credibility. Deference to one’s subject matter expertise can be extinguished with the speed of a hand raise.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Christopher McKinney.
Genesee County Courthouse
A Michigan jury awarded more than $11 million this month to a husband-and-wife pair who sued the Michigan Department of Corrections, alleging claims of race discrimination, hostile work environment and retaliation.
A six-member all-white jury delivered its unanimous verdict after a six-week trial that included 41 witnesses and hinged on allegations of racial discrimination and retaliation. The plaintiff alleged that she was racially harassed on a daily basis including being called ‘Mammy’, (being) asked if she wanted chitlins on her pizza, called the “black one” in her all-white office, and told she was not wanted in the all-white office. She also claimed she was put into life-threatening situations after complaining about racism.
The plaintiff had worked for the state for 19 years. Because of the work environment, the plaintiff transferred to another office, but she said the race discrimination and retaliation continued. Her husband also was allegedly forced to retire from his job as a deputy warden when phony disciplinary charges were brought against him. The jury awarded the plaintiff $5.1 million and her husband $6.25 million.
Read More: Detroit News
Learn More About Racial Discrimination and Retaliation
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Richard Hunt.
Halloween is a month away, but the candy is on the shelves at our local grocery stores and the courts are already delivering tricks and treats for those of us concerned with accessibility lawsuits.
Ramos v. Raritan Valley Habitat for Humanity, 2019 WL 4316575 (D.N.J. Sept. 12, 2019) contains more law than can be easily summarized, covering:
The most interesting thing to me about the case is the facts that gave rise to it, for the complaints that will ultimately go forward seem to reflect the state agency’s stubborn refusal to be helpful to a disabled couple. If the allegations are true the state would not provide forms and letters with a font big enough for the vision disabled plaintiffs to read them and refused to meet either at their residence or by video conference to accommodate their inability to travel. This, by the way, was after the parties had reached a conciliation agreement that supposedly resolved the matter. Agencies, landlords and others who want to stay out of court should think of the accommodation process as a shared effort to solve a problem, not an adversary proceeding to be won or lost.
Bone v. U. of N. Carolina Health Care System, 2019 WL 4393531 (M.D.N.C. Sept. 13, 2019), like Ramos, has a complicated set of facts and an equally complicated series of rulings on issues that include associational standing and liability for the acts of contractors. It also shares the appearance that nobody associated with the defendants was really paying attention, which is always a problem in a bureaucracy. It’s quite possible the low level employee charged with delivering braille invoices to the plaintiffs thought a few months was reasonable turn around time given the seemingly eternal delays associated with hospital billing and reimbursement, but from the plaintiff’s standpoint getting collection notices for invoices he couldn’t read was disturbing. One question, however, is never raised or answered. There are a large number of handheld text reading devices available for the blind, and it would seem such devices could be a reasonable substitute for braille. At what point does the refusal of a disabled person to take advantage of new technologies make his or her request for accommodation unreasonable?
Strojnik v. Victus Group, Inc., 2019 WL 4254666 (E.D. Cal. Sept. 9, 2019) is a typical strategic default case. The plaintiff recovered $4,000 in statutory damages, $447 in costs and no attorneys’ fees because he was pro se. There is an injunction as well, but it simply orders the defendant to comply with the law, so the defendant could not have done better had it defended the lawsuit.
Hopson v. Singh, 2019 WL 4298040 (E.D. Cal. Sept. 11, 2019) is another default case in which no defense resulted in a reasonable outcome for the defense. The plaintiff got $4,000 in statutory damages, an injunction requiring compliance with the law, and a bit more than $2,000 in attorneys’ fees.
Cohan v. MMP (Detroit Livonia) Propco, LLC, 2019 WL 4439521 (E.D. Mich. Sept. 16, 2019) proves that default may be an even better strategy outside of California. The defendant’s default cost less than $2,000 in fees and costs though at the price of an order requiring that the facility comply with the ADA’s design/build requirements. The alleged failures appear to be easily fixable at modest expense, so this defendant may have made a wise decision by giving up the ability to either fight or negotiate the extent of remediation.
Gustafson v. Bi-State Dev. Agency of Missouri-Illinois Metro. Dist., 2019 WL 4260308 (E.D. Mo. Sept. 9, 2019) is more than a website case, but the interesting part of this opinion is the discussion of a discovery dispute concerning the defendant’s website. The defendant asked for detail about the plaintiff’s problems using the website, including specific URL’s and inaccessible pdf documents. The plaintiff provided a general description and an expert report, which the Court found sufficient given the plaintiff’s inability to see and therefore easily identify the requested information. The Court did not address an important underlying issue; that is, whether the plaintiff has standing to sue for remediation of defects he did not encounter or would not likely encounter in the future. It is convenient to allow a plaintiff to seek relief for every accessibility problem in a website, but it flies in the face of the constitutional requirement that the plaintiff suffer both a past and likely future real rather than hypothetical injury. It would be helpful if early cases like this one carefully considered the difference between what a particular plaintiff is likely to encounter and what a paid expert can discover. If the plaintiff is incapable of explaining where in the website he or she encountered a problem is it reasonable to expect the defendant to be able to defend the case?
In Bryan v. Florencia Park LLC, 2019 WL 4394002 (M.D. Fla. Sept. 13, 2019) the plaintiff’s claims concerning the defendant’s website were dismissed under Rule 12(b)(6) because she was unwilling or unable to say just what was wrong with the website as it related to visiting the owner’s physical hotel. The case is a little different from Gustafson because the plaintiff provided no expert report, but it touches on the same problem. The 11th Circuit is a “nexus” Circuit that requires websites to be accessible only when the website has some relation to use and enjoyment of a physical public accommodation.* Here the plaintiff alleged in general terms that she could not use the website and even added some specific WCAG failures, but did not provide enough detail to get over the requirement that allegations be more than conclusory. Even worse, she joined the defendant in encouraging the court to examine the website, which confirmed to the court that many of her allegations were false. Website accessibility claims are perhaps unique in the ADA world because the truth of the claims can often be determined by the court without leaving chambers. Whether this kind of judicial analysis is proper is an open question.
Speaking of nexus, Poschmann v. Fountain Tn, LLC 2019 WL 4540438 (M.D. Fla. Sept. 19, 2019) is a reminder that while general claims about website accessibility are subject to all kinds of legal issues, including the requirement of nexus, claims about hotel websites can be based on a specific regulation at 28 C.F.R. § 36.302. For claims based on violations of this regulation the interesting theoretical issues related to nexus disappear and the plaintiff need only allege the website’s failure to meet the regulatory requirements and an intent to return to the website, regardless of Circuit or district.
In Mallon v. Frostburg State U., 2019 WL 4243085 (D. Md. Sept. 6, 2019) a student and university worked so hard to figure out how to accommodate the student’s disability that they ended up in court. The facts are complicated and it isn’t surprising the Court ultimately denied a defense motion for summary judgment, finding that the fact issues would have to be resolved at trial. The case illustrates, however, why it is critical for university and other administrators to have and consistently enforce a justifiable policy concerning any disability. In this case the more reasonable the university tried to be in terms of compromises and temporary accommodations the less it seemed like its policy was really necessary in the first place. It is critical here that early in the process the disabled student announced he was acting on advice of counsel. At that point all efforts to deal with the disabled student must be based on the assumption that there will be a lawsuit and that the university is making a record for use in that lawsuit. Yes, you are trying to solve a problem, but that solution has to be in the context of a lawsuit the plaintiff is already planning to file.
Bryan v. Florencia Park LLC, 2019 WL 4394002 (M.D. Fla. Sept. 13, 2019) contains an interesting and as far I know unique argument for ADA standing by a serial litigant. In Florida and other 11th Circuit courts a Motion to Dismiss based on a failure to credibly allege an intent to return can be based in part on geographic distance. A plaintiff who lives far away may find it hard to credibly allege an intent to return. Here the plaintiff lived more than 400 miles away, but alleged she intended to return to meet her lawyers and work on other cases in the same area. The court found this was enough to overcome the distance problem:
If Plaintiff is a serial litigant as Defendant argues then it seems certain she will be returning frequently to visit her Pinellas County based attorneys, and attend to her many lawsuits in the area.
Just as jackels may travel great distances if they find a particularly good hunting ground, so a plaintiff with no good reason to visit a distant city or county can bootstrap standing by filing a bunch of lawsuits and therefore having a reason to return. In this case the plaintiff’s victory lasted only a few paragraphs – as discussed above she lost on the 12(b)(6) component of the defendants’ motion to dismiss because her allegations were insufficiently specific.
Pratt v. Ann Klein Forensic Ctr., 2019 WL 4509288 (D.N.J. Sept. 18, 2019) contains a number of lessons for ADA litigants. The easiest message is procedural – if you don’t make an argument the first time around the Court may not give you another chance. In this case the defendant apparently had a good defense to one of the counts against it, but failed to raise it until after the Court had ruled on a motion for summary judgment. The Court declined to reconsider the issue, leaving it for trial. Of more substantive interest is the Court’s discussion of causation and intent, both of which are worth reading.
Trevino v. Steinreal 1 Fam. LP, 2019 WL 4409975 (W.D. Tex. Sept. 16, 2019) includes a good deal of procedural confusion, but it appears the plaintiff in a personal injury case decided at some point to add a claim under the ADA, possibly in order to obtain attorneys’ fees that are not usually available under Texas law. The defendants promptly removed the case to federal court, which is a much more defendant friendly forum for personal injury cases in the Western District. The plaintiff somewhat less promptly amended to drop all the ADA and other federal law claims. The end result was a remand to state court, with the federal court declining to force the plaintiff to remain in the federal system without any federal claims. It only took six amendments to make the round trip to federal court, suggesting someone didn’t think through their strategy in advance.
E.F. by Fry v. Napoleon Community Schools, 2019 WL 4670738 (E.D. Mich. Sept. 25, 2019) provides a tidy follow up to my last blog “Is economic discrimination disability discrimination” The case I discussed, Shaw v. Habitat for Humanity, rejected the idea that the defendant granting an accommodation had the right to determine what the accommodation would be. Napoleon Community Schools applies the same rule in a Title II context, with the court finding:
A public school is bound by the provisions of the ADA and does not have carte blanche to accommodate in any way it chooses when a covered individual has requested another accommodation.
The Court also discusses the difference between Title II intentional discrimination claims and failure to accommodate claims, a difference that did not seem to be obvious to the defendants. It is a good outline of the law in this area.
It’s simple:
Courts addressing this issue routinely find that the lack of clear space or the placement of merchandise on transaction counters violates neither the 2010 Standards nor the ADA.
Brian Whitaker, Pl., v. ELC Beauty LLC, Def., 2019 WL 4690202, at *2 (C.D. Cal. Sept. 25, 2019). Case dismissed.
++++++++++++++++++++++++++++++++++++++++++++++++++++
* There isn’t time enough to refer to all my past blogs on this issue, but some of the most recent discussions are at “ADA Website litigation may get Supreme Court review” and “Websites and Coke Machines“. Those really interested in the details concerning nexus should check out “ADA ‘Accessible’ Websites: What Attorneys Need to Know” available at Mylaw CLE or “Website Accessibility Lawsuits” from the University of Texas CLE website. The former was a two hour presentation by Bill Goren and myself, the latter a one hour look at litigation only by myself.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Tiffany Dowell.
A recent case from the Corpus Christi Court of Appeals, Chapa v. Arrellano, caught my attention and offers the chance to talk through some important reminders for anyone purchasing land.
Image by Zach Schorr from Pixabay
Background
In August 2017, Chapa purchased a piece of land from the Arrellanos in Hidalgo County, Texas. She intended to build a home on the property. Prior to purchase, she conducted a visual inspection of the land and saw no visible impediment for the construction of a home on the property. She did not hire a title company or an attorney to assist with the purchase of the property.
The parties signed a document labeled a “General Warranty Deed,” which was prepared by a lawyer Chapa selected. Three relevant portions of the deed were as follows:
Under the section titled “Exceptions to Conveyance and Warranty,” the deed stated there was a “Right of Way easement in favor of Rio Grande Valley Gas Co, as shown by an instrument dated September 12, 1961, in Volume 1028, Page 12, Deed Records of Hidalgo County.”
The deed also stated this was an “‘as is, where is’ transaction and reflects the agreement of the parties that there are no representations of express or implied warranties. [Chapa] has not relied on any information other than [her] inspection.”
The deed also contained a clause as follows: “No title examination was required in connection with the above preparation of the document concerning the above described property, nor was any made. The preparer expresses no opinion as to title of this property, nor as to any taxes due on the property.”
After purchasing the property for $32,000, Ms. Chapa began construction plans. Sometime after that, there was a sign on the property from Rio Grande Valley Gas Company indicating that an easement existed and informing her that a gas line ran across the property. Later, she was notified by the gas company she could not build a home on the property due to the easement.
Litigation
Chapa filed suit against the Arrellanos for breach of contract, recession, and actionable fraud.
Both parties moved for summary judgment. Chapa argued that the sale was fraudulent because the property was not subject for any surface development and was, therefore, worthless to Chapa. The Arrellanos argued that Chapa had disclaimed any reliance or oral representations by signing the deed, the easement of the gas company was properly disclosed in the deed, and the deed was drafted by a lawyer chosen by Chapa. Further, Mrs. Arrellano stated that although she knew there was an easement for the gas company on the property, which was disclosed in the deed, she had no knowledge that the property was not suitable for residential use due to such easement.
The trial court granted the Arrellanos’ motion for summary judgment and dismissed the case. Ms. Chapa appealed the dismissal of her fraud and rescission claims.
Court of Appeals Opinion
The Corpus Christi Court of Appeals ruled in favor of the Arrellanos, affirming the trial court decision. [Read full opinion here.]
Fraud Claim
In order to prevail on a statutory claim of fraud in a real estate transaction, Chapa has to prove: (1) there was a transaction involving real estate; (2) during the transaction, the defendant made a false representation of fact, false promise, or benefitted by not disclosing that a third party’s promise or representation was false; (3) the false representation or promise was made with the intent of inducing the plaintiff to enter into the contract; (4) the plaintiff relied on the false promise or representation by entering into the contract; and (5) the reliance caused the plaintiff’s injury.
Here, the terms of the deed itself state that Chapa did not rely upon any representations or express or implied warranties from the Arrellanos. That clause, alone, defeats a fraud claim. She purchased the property “as is”, which indicates it was her failure to properly inspect or investigate the property that caused her injury. Simply put, an “as is” buyer takes the entire risk as to the quality of the property purchased. Further, the deed made Chapa aware of the existence of the gas company’s easement on the land. Based on these reasons, the Court of Appeals affirmed the dismissal of the fraud claim.
Rescission
The court noted that Chapa’s one sentence argument that was entitled to equitable relief was inadequate briefing and, therefore, the claim on appeal was waived. Regardless, the court noted that the equitable remedy of rescission is available only when there has been some injury by violations such as breach of contract or fraud. As noted above, Chapa was aware of the easement, she purchased the property “as is.” Thus, she simply had no claim to form the basis of recovery.
Key Takeaway Points
This case offers the opportunity to talk through some important considerations when purchasing property. For more information on this topic, be sure to check out a podcast episode I recorded with real estate attorney & title company owner, David Waggoner, for the Ag Law in the Field Podcast.
First, when purchasing property, it is critical to read any contract, deed document, title commitment, and any other document thoroughly and ensure you understand the contents. Here, there are several examples of the importance of this. First, the deed expressly listed the existence of the gas company easement. Parties should always look for any sort of encumbrances on property in a contract, deed, or title commitment. Second, the use of two words in this deed–“as is”–significantly impacted the arguments that Chapa was able to make against the sellers. She likely did not understand the legal implications of the term “as is.” Further, although the deed was labeled as a “General Warranty Deed,” it expressly disclaimed any warranties, including warranty of title. This actually makes this deed look like a quitclaim deed, due to the lack of any warranty of title. Lastly, with regard to deeds, keep in mind that even a General Warranty Deed does not guarantee the use of land for a particular purpose like building a house, it merely guarantees that title is good to the property.
Second, anytime a person is purchasing property, he or she should do an investigation of any easements or encumbrances on the land. Here, when Ms. Chapa saw the easement listed in the deed, she should have investigated further by looking at the actual terms of the easement, which she could have obtained from the deed records. If there are any encumbrances listed in documents, found in deed records, or mentioned by a party to the transaction, it is extremely important to investigate the details of such encumbrances.
Third, on that note, oftentimes when property is transferred, there will be a sales contract signed initially and then a deed that will be executed. It is critical to ensure the terms in each of these two documents match, because if the contract and deed terms are different, the deed terms will govern. For example, there could be a situation where parties agreed in the sales contract that all minerals would transfer to the purchaser, but the deed included a mineral reservation by the seller. Keep in mind that only the seller signs a deed, so this may be easy for a purchaser to overlook.
Fourth, when entering into any type of contract (such as buying/selling land, buying/selling products, a pipeline easement), never rely on oral representations made by the other party. In all transactions dealing with the transfer of real property, Texas law requires that any promises involved in the transaction must be included in writing in the document. Here, it does not appear that false statements were made by the sellers, but oftentimes that can be an issue if promises are not included in the document itself.
Fifth, consider title insurance when purchasing property. Here, title insurance would likely not have helped Ms. Chapa because there was no problem with her holding legal title to the property, but in many instances title insurance can be an important way to manage risk when purchasing land. Further, in obtaining a title commitment for title insurance, this would give someone another opportunity to view a list of any exceptions or encumbrances, such as easements, that were investigated and listed out by the title company.
Sixth, I also think it is wise to hire an attorney to assist with drafting a sales contract and deed, and to look over the title commitment for anything unusual. In this case, Ms. Chapa did select an attorney to draft the deed, but it is unclear if she hired the attorney to assist and advise her with regard to the purchase, or if she just selected an attorney who the sellers then hired, on their behalf, to draft a deed. Keep in mind that an attorney cannot represent two parties to the same contract, so it is important to have someone representing your own interest. Also remember that paying for an attorney to review real estate documents up front will be far cheaper than hiring an attorney to represent you in a lawsuit like the Chapa case down the road.
The post Case Offers Important Considerations When Purchasing Property appeared first on Texas Agriculture Law.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Alyson Brown.
Barnes & Noble recently learned that it must advance attorneys’ fees to its ousted CEO, Demos Parneros, for defense of the company’s counterclaims against the CEO for allegedly sabotaging a potential company acquisition. The court granted the former CEO’s motion for advancement of attorneys’ fees and expenses, relying on provisions of a New York state law and the executive’s employment contract.
Key to the court’s ruling were provisions in the employment agreement that entitled the CEO to advanced fees — including fees connected with making the application for advanced fees — not just a reimbursement of fees.
The court noted that state law (New York, in this case) permits a court to direct advance payment of fees where indemnification was provided for by a corporate bylaw or contract. A broadly drafted indemnity provision can support the advancement of fees even for claims between an executive and his employer, if such claims arise from the executive’s employment and have a relationship to duties performed in the scope of employment. Executives and companies alike must be aware of their rights and responsibilities under indemnity agreements, corporate documents, and applicable state law.
Company bylaws or governing documents (such as LLC Agreements or Limited Partnership Agreements) often contain indemnification and advancement provisions. While these provisions provide some degree of protection for senior executives if they are named in claims relating to actions undertaken in their corporate capacities, these general provisions alone may not provide sufficient protection.
The corporate documents may not address all of the issues that can arise and may not provide sufficient protection for the individuals when there are indemnification or advancement disputes. Moreover, these provisions can protect executives from changes to corporate bylaws after the individuals have left the company.
Executives should consider negotiating a separate, written indemnification and advancement agreement with their employer.
Indemnification is the reimbursement of fees after those fees have been incurred. This right, as the Delaware Supreme Court has written, “allows corporate officials to defend themselves in legal proceedings secure in the knowledge that, if vindicated, the corporation will bear the expense of litigation.” The words “if vindicated” cannot be emphasized enough: they show that in order to establish a right to indemnification, the officer may have to prevail in the proceeding.
Advancement, meanwhile, is exactly what it sounds like: payment of fees by the company in advance of the final resolution of the proceeding. Advancement is an important companion to the right of indemnification, because it provides officials with immediate relief from the financial burden of investigations and legal proceedings. No vindication required — although the official may have to pay back what she receives if the final decision doesn’t go her way.
To determine an individual’s right to indemnification or advancement, courts will first look to the statutes governing the business, which may either require or permit those rights. Because many companies are incorporated in Delaware, Delaware law provides the most robust guidance on this subject.
An individually negotiated employment or indemnity agreement typically provides more comprehensive protection than corporate bylaws or statutory provisions. Company bylaws may provide for permissive indemnification, whereas most written agreements are written on a mandatory basis. Moreover, the rights enumerated in the agreement are enforceable obligations that cannot be amended or terminated without the individual executive’s agreement.
Contractual indemnity provisions can also protect executives from changes in management — and corresponding amendments to bylaws and other corporate documents. An indemnity agreement provides an extra measure of protection and some level of assurance that their rights will be protected if claims arise after they have left the company.
There are a number of important issues that a written indemnification agreement can address that the corporate bylaws typically do not address.
For example, the written agreement can provide an expansive definition of the types of “expenses” for which indemnification and advancement are available, and of the types of “proceedings” in connection with which the executive is entitled to advancement. A written indemnification agreement might also clarify that the executive is entitled to indemnification or advancement even if just a witness in a proceeding, and not only as a named party.
This could be particularly critical if the issues arise after the individual has left the company and new management is in place. There may be a host of potential conflicts between the individual and the new management, which could militate in favor of the individual having his or her own counsel.
Among other things, the written agreement can provide a presumption in favor of indemnification or advancement of fees. The agreement will also provide a mechanism for resolving issues about disputed amounts or items. The agreement can also provide for an expedited dispute resolution procedure. Perhaps most importantly the agreement can provide for so-called “fees on fees” — that is, for reimbursement of expenses that an individual must incur to enforce indemnification or advancement rights.
In addition to legal benefits, indemnification agreements provide psychological benefits that cannot be provided by generally applicable statutory, charter, or bylaw provisions. Indemnification agreements provide the peace of mind that comes with having the maximum protection that is legally possible for directors and officers. Employers benefit as well, by allowing a company to build trust among its officers and directors by demonstrating a strong level of commitment and support.
A variety of legal and practical considerations go into drafting an effective indemnity agreement. Clouse Brown attorneys are available to counsel executives who need assistance negotiating indemnity and advancement provisions. We also advise employers and business owners on minimizing risks associated with indemnity provisions and drafting executive employment agreements.
The post Why Advancement is a Key Component of an Executive Indemnity Agreement appeared first on Clouse Brown.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Joanna Herzik.
To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.
10. Voting about voting – David Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas
9. Amazon Asks Federal Court to Compel Arbitration in Alexa Children’s Privacy Lawsuit – Beth Graham of Karl Bayer @karlbayer in Austin
8. Two Beer Giants Go to War Over Corn Syrup – Peggy Keene of Klemchuk LLP @K_LLP in Dallas
7. Another Age Discrimination Lawsuit Filed Against Google – Christopher McKinney @CJMcKinney of The Mckinney Law Firm, P.C.
6. Court Rules Homeowner Not a “Covered Person” Under Auto Insurance – MehaffyWeber, P.C. @MehaffyWeber in Houston
5. Contracts in Construction: How Breaches Impact the Construction Industry – Christopher Stevenson of Adair Myers Graves Stevenson @AdairMyers in Houston
4. Is Eight Enough? The Texas Supreme Court may answer that question when it tackles the eight-corners rule. – Jeffrey C. Glass of Hanna & Plaut, L.L.P. in Austin
3. Same Sex Marriage: Can a judge stop you from getting a divorce in Texas? – Bryan Fagan @bryanjfagan of Law Office of Bryan Fagan in Houston
2. Incorporating a Business in Texas – Law Office of Kunal Patel, PLLC in Houston
1. Is economic discrimination disability discrimination? The 11th Circuit explains why it can be. – Richard Hunt of Hunt Huey PLLC in Dallas
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Texas Lawyer.
The Seattle-based tech company is the third U.S. corporation to be targeted under the law that allows Americans to sue companies doing business in Cuba that are allegedly profiting off of land expropriated after the 1959 Cuban revolution.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Christopher Stevenson.
The construction industry is fertile ground for many different types of breach of contract lawsuits. This post will discuss different ways a construction company or contractor can be held liable in a breach of contract case.
The post Contracts in Construction: How Breaches Impact the Construction Industry appeared first on Adair.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Christopher McKinney.
United Parcel Service, Inc. (“UPS”), the world’s largest package delivery company, will pay $2.25 million and clarify its pregnancy accommodation policies to resolve a pregnancy discrimination charge that was investigated by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced last week. The settlement stems from a claim brought by a UPS driver who alleged that the company’s refusal to provide light duty as an accommodation to pregnant workers violated the Pregnancy Discrimination Act (PDA). The EEOC’s investigation uncovered other incidents beyond the initial Charging Party where pregnant women were not given light duty or provided other accommodations, according to a statement from the EEOC.
The Commission said that, until 2015, UPS provided accommodations to workers injured on the job, those with driving restrictions and those with disabilities. However, the package delivery service did not provide accommodations to pregnant women.
Discrimination based on pregnancy, childbirth or related medical conditions, is a prohibited form of sex discrimination. While the Pregnancy Discrimination Act doesn’t require accommodations per se, it does require that employers treat women affected by pregnancy or related medical conditions the same as non-pregnant applicants or employees who are similar in their ability or inability to work. Thus, if a company provides accommodations for health conditions other than pregnancy, it must provide equal treatment of pregnancy and health conditions related to pregnancy.
This means that pregnant workers must be provided with the same access to light duty that other employees receive. It also means that pregnant women cannot be excluded from light duty or denied it at a higher rate than other employees.
Read the EEOC’s Press Release Here.
Learn More: Pregnancy Discrimination Info
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by The Law Office of Bryan Fagan, PLLC Blog.
Despite the decision out of our federal Supreme Court a few years ago that legalized same sex marriage across our country there are still some misunderstandings and questions regarding that subject. This is understandable to a degree. The change in laws dramatically altered the landscape of family law in terms of who is and is not able to participate in the family law courts. In addition, some folks I have spoken with in my capacity as a consultative attorney with the Law Office of Bryan Fagan still have questions if marriage and divorce work the same for opposite sex and same sex persons. Today’s blog post will discuss marriage and divorce for same sex couples.
There are two roads that your divorce could go down. The first is the path of least resistance- an uncontested divorce. To be considered truly uncontested you and your spouse would need to be in agreement on getting a divorce, have a plan in place for diving up any marital property and if you have children would need to have every aspect of a parenting plan agreed upon as well. This means conservatorship, visitation, support, etc. all need to be decided prior to hiring an attorney. If even one piece of this pie is missing, then your divorce is not uncontested and will therefore require some degree of negotiation.
The second path is unfortunately the more common road that most divorces go down- a contested divorce. All of the above issues that I laid out are in play in a contested divorce. The more substantial your martial property or the more detailed your parenting objectives and plans are the more complicated and longer your divorce will likely take. There is not anything wrong with this as a general rule, but it can get tedious and tiresome for most people who are eager to complete their divorce and move on with the rest of their lives.
Generally speaking, a divorce in Texas must take at least sixty days from the date on which the Original Petition for Divorce is filed with the court. Ostensibly the sixty first date is the earliest date on which you and your spouse can have a judge sign a final decree of divorce. A final decree could be signed and ready the day after your petition is filed but absent extreme circumstances (like family violence being an issue) it is unlikely that a judge would waive the sixty-day waiting period. For those of you wondering, the waiting period exists in order for you and your spouse to make absolutely sure that you want to get a divorce rather than remain married and try to work it out together.
The key to a fast-moving divorce is to understand early on that you are not going to get 100% of what you want. I wish there were some way to ensure that all of our clients always got just what they wanted out of a divorce but to this point I have not been able to do the math on how to get there. If any attorney ever does get to that point, then the rest of us may as well give it up and start looking for work elsewhere.
The reason that divorces end up being situations where you and your spouse both give up (and therefore gain) things in order to settle the case is that most family courts in Texas require that you attend mediation at least once throughout your case’s life. Typically, you will attend mediation once before any temporary orders hearings and then again before your trial.
Temporary Orders hearings have everything to do with how you and your spouse will be situated during your divorce from the perspective of making sure bills are paid, the kids are cared for and one another are treated with respect. Mediation involves attending a formal negotiation session with your attorneys in the office of a third-party mediator. The mediator is also very likely a practicing family law attorney him or herself so you will be able to gauge the relative strength or weakness of your arguments with the mediator as well.
In mediating for final orders you will likely be extending much of the temporary orders out into your post-divorce life as well as deciding what will happen with any marital property accumulated by you and your spouse. Texas is a community property state. This means that any property that you acquired during the course of your marriage is considered to be jointly owned by both of you and is therefore subject to being divided up in your divorce case. If it is your contention that something acquired during your marriage is your property separate from your spouse- like a gift of some sort- then the burden is on your to prove by clear and convincing evidence that this is the case.
Attending mediation will be the same for you as it would be for persons going through any other divorce. You and your attorney should come prepared with settlement offers, a list of property that may be in play as far as negotiation is concerned as well as plans and ideas on how to divide up parenting time with your children. The more prepared you are and the more variations you have available to you of the different parenting plans the more likely you will be to reach a relatively pain free settlement.
For instance, it is commonly thought in opposite sex divorces that mothers have the advantage when it comes to being named the primary conservator of your child. Primary conservator means the parent who has the right to determine the primary residence of your child- among other rights. This allows your child to live with you throughout the school year and provides visitation time (mostly on weekends) to your spouse once the divorce has been completed.
In same sex divorces there would not be an apples to apples comparison due to there not being a male and female parent from which to choose from. You and your spouse should have had discussions heading into mediation regarding which of you is better suited to be named as the primary conservator of your children. Having an honest conversation with your attorney about which parent has been more active, more involved, and better acquainted with your children’s day to day needs is a good place to start. My admitting to yourself that your spouse has taken the lead in these areas throughout your marriage or has a work schedule that is more conducive to providing the level of care that is needed to raise a child on a daily basis is not admitting that you are not a good parent. It can, however, help you to eliminate contentious delays in your case and lead to a more developed settlement agreement.
Another aspect of divorce mediation that you need to be prepared for is determining how to divide up your bigger financial assets. Retirement plans, bank accounts, home equity and the like are probably the type of assets that you will have in play for your case. If you have not considered these subjects prior to entering into mediation you will find out that you will need to work through them in mediation. Seeing as how most mediation sessions are only four hours long you will not be optimizing your time by spending an undue amount of time on these sort of brain storming sessions while in mediation. Rather, spend a few weeks prior to mediation using your attorney as a go-between to communicate settlement offers to your spouse.
Finally, it is important to note that what you settle upon in mediation cannot (in most circumstances) be changed. That means that you cannot wake up the morning after mediation and call your attorney in a panic because you think you made a huge mistake in deciding to agree to a geographic restriction for your child when you really want to move back home to Colorado to be closer to family once the divorce is over with.
You can avoid problems like this by asking questions of your attorney about anything that you are agreeing or not agreeing to. If any settlements are reached (either in part or in full) then the mediator will present rough draft copies of what is known as a mediated settlement agreement to you and your spouse. You can and should go over them with your attorney to make sure that you understand everything that is being agreed to. If something doesn’t make sense, or if the wording of what the mediator included does not comport to the agreement as you understood it please raise that issue before mediation is over with.
Thankfully you will likely only have one court date that you will have to attend during your divorce. That court appearance will be an uncontested appearance in what is known as a Prove Up hearing. The petitioner (party who filed the Petition for Divorce) will attend a quick hearing with their attorney in court. At the prove up hearing your attorney will be presenting you and your Final Decree of Divorce to the judge for his or her approval. The attorney will ask you questions regarding the divorce decree as a means to show the judge that you and your spouse have come to an agreement and are ready to move forward to close out your case.
In all likelihood your judge will not ask any questions and will send you off on your way. The divorce decree will be signed by the judge later that day and will likely be posted online in the day following. You can pay for certified copies at the clerk’s office shortly thereafter.
One question that I am sometimes asked by clients is how much of your prove up hearing will be heard by the public. It is true that anyone can walk into your courtroom during your prove up hearing and hear some details about your case. If you are at all trying to keep the divorce from becoming an “event” or something like that I understand why you may not be too excited to set foot in court and put your life on display in front of a handful of people.
I cannot emphasize, however, that it is unlikely that anyone in court other than the court report, judge, your attorney and you will be paying attention to a word of what is said. In Harris County, for example, you and your attorney will approach the bench and speak to the judge in a conversational tone. Therefore, a person in the first row of courtroom seats will have problems hearing what is happening in your case. The bottom line is that if you are worried about airing your business for all the world to hear then you should be at ease because a Prove Up hearing is not that kind of court appearance.
It could be that you never imagined that you would ever get married in your life. Now you are having to contend with the thought of getting a divorce. This cannot be an easy time for you and your family. However, the attorneys and staff with the Law Office of Bryan Fagan are here to tell you that our office will stand with you throughout your case until your process is complete.
If you have any questions about the material that we have covered please consider contacting the Law Office of Bryan Fagan. We offer free of charge consultations six days a week with our licensed family law attorneys. It would be our pleasure to talk with you and to answer your questions and concerns in a comfortable, pressure-free environment.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Academic Support.
Like all ASPers, helping students achieve academic success involves working on at least three levels. The first, and most obvious, level is specific to learning the practice of law: helping students master effective outlining, case briefing, and issue spotting are…
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Law Office of Kunal Patel, PLLC.
Texas is relatively business-friendly for new businesses seeking to incorporate. The formation process itself can be deceptively simple.
There’s more than simply filing the certificate of formation – such as determining what type of entity you need, drafting a company or partnership operating agreement, tax planning, and post-formation tax compliance. Haphazard business formations and lack of guidance cause issues for small business owners down the road.
The actual process for creating an LLC or other business entity in Texas involves filing a certificate of formation through the Texas Secretary of State with the following information:
Once the above has been submitted with a filing fee ($300 for an LLC), the Texas Secretary of State will respond with either a Certificate of Filing or rejection within 2 business days.
And that’s really it!
Clients can find many online companies and non-attorneys to create an LLC formation for a low fee. An attorney taking such a bare-minimum approach would be arguably committing legal malpractice.
Maybe you want a business entity but aren’t not serious yet about starting a company, or just want to impress your friends by creating an LLC. Any one of the low-cost online companies will suffice for that.
However, if you’ve put some thought into it and have a business plan, you probably don’t want to start your new company with the bare-minimum, especially for something as important as incorporation.
There are a number of benefits of incorporating. Most business choose to incorporate for two main reasons.
Shareholders of corporations, members of LLCs, and partners of LLPs, and limited partners of LPs enjoy limited liability protection from their entity’s liabilities, obligations, and debts.
Flow-through entities, such as LLPs and LLCs, can offer significant tax savings for a sole proprietor or a small business.
All Texas incorporated entities are essentially corporations, partnerships, or a hybrid structure.
An unincorporated business is a sole proprietorship if it has one member, and a general partnership if there is more than one member. Sole proprietors and general partners are personally liable for the company’s debts, obligations, and liabilities.
A corporation is a separate legal entity, but not to be confused with an LLC that is taxed as a corporation.
Shareholders have limited personal liability for corporate debts and obligations.
Because corporations are taxed as separate entities, there will be double taxation. The corporation itself will pay taxes on it net earnings. Shareholders will also pay taxes on distributions from the company, whether in the form of dividends or officer compensation. However, since the passage of the 2017 Tax Cuts and Jobs Act, double taxation is less of a concern after corporate tax rates were reduced to 21 percent from 35 percent. In addition, small businesses with less than 100 shareholders can elect for the corporation to taxed as a S corporation, thereby avoiding double taxation.
However, corporations require management formalities and can be both expensive and time-consuming to maintain.
For small business shareholders, a corporate structure is very rarely recommended. Typically, only larger companies that seek to attract outside investment will want to take advantage of a corporation’s flexible stock structure and allocation of shareholder rights.
Limited Liability Partnerships (LLPs)
All partners of an LLP are limited liability partners and are not personally liable for the negligent acts of other partners or partnership employees. They are also not liable for the contractual obligations of the LLP.
LLPs are taxed like a general partnership – i.e., all profits and losses are allocated to each individual partner and reported on the partner’s individual income tax return.
LLPs might be recommended for professional services businesses where partners provide services independently of each other.
LLPs can be more expensive to maintain. The Texas Secretary of State imposes a $200 registration fee annually per partner.
Limited Partnerships (LPs)
A Limited Partnership (LP) consists of one or more general partners and one or more limited partners.
The liability of a limited partner is limited to the capital that he or she contributes to the partnership. However, the general partner has the same liabilities of as a partner would in a general partnership.
A general partner in a limited partnership can limit their liability in most situations by forming a Limited Liability Limited Partnership (LLLP).
Limited partnerships are not commonly used to structure a business, except where a general partner is seeking to raise investments. LPs are sometimes used in estate planning and commercial real estate investment.
An LLC is a hybrid entity that is neither a partnership or a corporation, but contains characteristics of both. The owners of an LLC are known as members.
All members of an LLC have limited liability protection. By default, a single-member LLC is taxed as a disregarded entity and a multi-member is taxed as a partnership.
An election can be made to treat an LLC as a S corporation or a C corporation, making LLCs the most flexible option for the vast majority of small businesses.
A Texas professional business may also form a Professional Limited Liability Company. It’s similar to an LLC, except that all members of a PLLC must be licensed to provide professional services (e.g., lawyers, accountants, dentists, doctors, engineers, etc).
Some business owners may want to change the way their default tax treatment. The IRS allows eligible entities to to change the way they are taxed. For example, a single member LLC is a disregarded entity. But the LLC may make an election to be taxed as an S-Corporation or C-Corporation.
You’ll need an EIN to file business returns as well as to open a business account.
One of the biggest reasons business owners decide to incorporate is limited liability protection.
Limited liability protection can however be disregarded in some situations. This is known as “piercing the corporate veil.”
Courts will look at whether the business owner(s) commingled personal and business funds, such as, for example, paying private debts with business funds. And if so, the business could be considered a mere “alter ego” of the business owner(s).
Therefore, business owners should open a separate business account for their new entity and maintain a good accounting system.
Use company letterhead on all contracts. A customer dealing with you must be aware that they are dealing with a business entity and not you personally. If a business owner fails to hold themselves out to the public as a separate business entity, a court will be more willing to pierce the veil.
Some business owners are required to pay themselves a reasonable salary from their company profits. If you have an LLC taxed as an S-Corporation, for example, all officers of the company must pay themselves a reasonable salary. You must file and pay payroll taxes every quarter, pay Texas unemployment insurance, and file Forms W2.
To avoid having to pay a massive tax bill at the end of the year, business owners should make any necessary estimated tax payments throughout the year.
This cannot be emphasized enough. One of the biggest drawbacks with hiring an online service to form an entity is that the company will file the paperwork and then off to the races you go. We often have small business clients call us later down the road when they’re struggling with tax debt or dealing with an audit. If you’re serious about starting a new business, you should always hire a local attorney.
We maintain relationships with several accountants in the Houston area (trust me, good accountants willing to accept small business clients are very difficult to find). We provide a list of accountants to all clients and will help coordinate with them to ensure that they stay in tax compliance.
The post Incorporating a Business in Texas appeared first on Houston Tax Attorney.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by MehaffyWeber.
Insurance companies often deal with disputes over coverage. This often happens when the insured files a claim related to an incident not explicitly covered by the policy. In Wimberley, Texas, a man was recently denied coverage after being injured while moving construction materials off of another’s vehicle.
In Kiely v. Texas Farm Bureau Casualty Insurance, No. 06-19-00012-CV, a Texas appellate court affirmed a decision to deny personal injury protection benefits to an insured who was injured while attempting to unload metal roofing sheets from a delivery truck for a business he did not own or work for. The insured, Alan Kiely, was attempting to fix damages to his roof after a Wimberley hailstorm, ordering metal roofing sheets to his home.
The sheets arrived, bound in three bundles by length in a bed delivery truck driven by the home Center employee, Brian David Reeves. Kiely had placed wooden pallets in front of his home in preparation for the arrival of the sheets. Kiely asked Reeves to position the truck so the lift “could be used to tilt the bed and unload the metal sheets onto the pallets,” as Reeves did not have a forklift. Reeves then allegedly misaligned the truck with the pallets, disregarding Kiely’s suggestion for unloading the sheets and began to move the first bundle by hand on his own. That first bundle slid off the truck bed and pinned Reeves between the ground and the sheets. Kiely, in an attempt to rescue Reeves, grabbed a corner of the bundle and attempted to lift it; and, as he did he heard a “pop” and felt a sharp pain in his lower back. Kiely fractured two vertebrae in his lower back, necessitating several surgeries.
Kiely sought personal injury protection (PIP) benefits from his insurer for his medical expenses and the insurer denied coverage. In the subsequent suit, Kiely’s insurer motion for summary judgment was granted based on his injuries not being the result of a motor vehicle accident and he was not listed as a “covered person” under the policy.
On appeal, the appellate court affirmed the trial court’s ruling. The appellate court found that, other than the truck being utilized to transport the metal sheets, the truck was not directly involved in the instance leading up to Kiely’s injuries. The court noted Kiely was not exiting or entering the vehicle when he was injured and he was not injured while removing the sheets from the bed of the truck. Instead, the appellate court held the “injury-producing event” occurred as a result of Kiely’s, “intentional act of lifting the metal sheets” off of Reeves. The court came to the conclusion Kiely neither occupied the vehicle when the incident occurred, nor was struck by the vehicle; and, therefore, he was not a “covered person” under the policy, nor entitled to PIP benefits.
In the competitive and rapidly evolving insurance industry, the need for effective defense counsel is paramount. An experienced insurance defense lawyer can help your company resolve disputes effectively and efficiently, protecting your financial interests in insurance disputes. If you have a coverage dispute at hand you believe needs the assistance of an experienced insurance defense attorney, contact MehaffyWeber today.
The post Court Rules Homeowner Not a “Covered Person” Under Auto Insurance appeared first on MehaffyWeber.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Richard Hunt.
One of the more frequently quoted cases dealing with the relationship between the FHA and poverty comes from a 20 year old decision out of the Second Circuit. In Salute v. Stratford Greens Garden Apartments, 136 F.3d 293, 301 (2d Cir. 1998) the Second Circuit wrote that the FHA “addresses the accommodation of handicaps, not the alleviation of economic disadvantages that may be correlated with having handicaps.” The 11th Circuit’s decision in Shaw v. Habitat for Humanity, Case No. 17-13960 (11th Cir. Sept. 18, 2019) takes up the question of just where one draws the line between disability discrimination and economic discrimination. Along the way it also clarifies who gets to decide what accommodation is required and just what “necessary” means.
The facts are straightforward. Shaw wanted to buy a Habitat for Humanity house but could not meet the minimum income requirement unless Habitat considered not only his regular social security disability income but also assistance he got from his family. Habitat refused to modify its policy to permit consideration of the additional assistance unless Shaw took various steps to guarantee the additional income. Shaw declined for his own reasons, Habitat rejected his request and Shaw sued.
The Court’s first important holding concerns the burden of proof on the “reasonableness” part of reasonable accommodation. Shaw wanted Habitat to simply waive its requirement that the income requirement be met without reference to third party contributions. Habitat proposed as an alternative that Shaw create a trust or other structure to guarantee the income. The District Court thought that sounded reasonable and found Shaw’s rejection was fatal to his claim.
The 11th Circuit disagreed. It found that the plaintiff has the initial burden of showing his or her requested accommodation “seems reasonable on its face.” It describes this as a “low bar” to meet. If that burden is met the defendant has the burden of explaining why the requested accommodation is unreasonable because of undue financial or administrative burdens. Only after the defendant meets that burden must the court balance the plaintiff’s need against the defendant’s burden to decide whether some alternative accommodation offered by the defendant is reasonable. Based on this burden shifting model the Court found the district court erred by requiring Shaw to prove the defendant’s suggested accommodation was unreasonable before the defendant had established that Shaw’s proposed accommodation created an undue burden.
The Court’s holding on alternative accommodations is consistent with HUD’s position on reasonable accommodation: “an individual is not obligated to accept an alternative accommodation suggested by the provider if she believes it will not meet her needs and her preferred accommodation is reasonable.” Joint Statement on Reasonable Accommodation dated May 17, 2004. There is contrary authority, including some from the 11th Circuit. See e.g., Logan v. Matveevskii, 57 F. Supp. 3d 234, 256 (S.D.N.Y. 2014): “Although a public entity must make ‘reasonable accommodations,’ it does not have to provide a disabled individual with every accommodation he requests or the accommodation of his choice.” Logan rests its holding on a 2nd Circuit case dealing with employment. The 11th Circuit has said the same thing in an ADA employment case, Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997): “Stated plainly, under the ADA a qualified individual with a disability is “not entitled to the accommodation of her choice, but only to a reasonable accommodation.” The Shaw decision does not distinguish Stewart, but does distinguish another holding in an employment case, Walden v. Centers for Disease Control & Prevention, 669 F.3d 1277, 1294 (11th Cir. 2012). In the 11th Circuit, at least, non-FHA reasonable accommodation cases are not considered authoritative in an FHA context. For FHA cases, the reasonableness of a suggested alternative accommodation is irrelevant unless the defendant shows the requested accommodation imposes an undue burden.
The Court then moved to the most interesting part of its discussion, which concerns the “necessity” prong of a reasonable accommodation claim. The district court found that Shaw did not meet the FHA’s need requirement because the cause of his difficulty was financial; he simply did not qualify as a purchaser of the house Habitat for Humanity had for sale. Because his problem was financial the district court found there was no disability related need for the accommodation. It relied in part on the 2nd Circuit’s statement quoted above, finding that the correlation between Shaw’s poverty and his disability did not mean the necessity for an accommodation arose from his disability.
The 11th Circuit found this distinction between economic and disability related needs “too simplistic.” It recognized that necessity must originate in a person’s disability:
an accommodation is “necessary” if it “alleviates the effects” of an impairment that limits a person’s ability to, among other things, walk, see, hear, or work.
However, it rejected what it considered the 2nd Circuit’s view. It found instead that economic necessity could arise from the effects of a disability, including the financial effects of an inability to work. Because working is one of the major life activities that may be substantially limited by a disability, the Court found it only logical that the effects of not working might create the necessity for a reasonable accommodation. The district court had never considered whether Shaw’s financial situation was caused by his disability so the 11th Circuit remanded for fact findings on that issue.
The Court concluded by discussing what it calls the last element of an accommodation claim, that the accommodation be necessary for the “equal” use and enjoyment of the house. The Court observes that a non-disabled person might have the same problem as Shaw; that is, insufficient income to meet Habitat’s requirements without family assistance. It then argues that Shaw’s preferential treatment vis a vis this non-disabled person does not matter because:
The inquiry is whether the requested accommodation would provide a disabled person an opportunity to enjoy a dwelling that would otherwise—due to his disability—elude him.
More precisely, as the Court recognizes, “under the FHA it is sometimes necessary to dispense with formal equality of treatment in order to advance a more substantial equality of opportunity.” quoting Cinnamon Hills Youth Crisis Ctr., Inc. v. St. George City, 685 F.3d 917, 923 (10th Cir. 2012).
The quote from Cinnamon Hills recognizes that preferential treatment is at the heart of all disabilities rights laws. The FHA, ADA and others recognize that in order to have an equal opportunity to find housing or participate in the economic life of the nation those with disabilities must sometimes be given preferential treatment with respect to policies, procedures and physical access. Every accommodation involves a preference, so it is meaningless to ask whether an accommodation puts a disabled person in a better position than a non-disabled person. It always does. However, the “necessity” element limits the preferences available to those necessary for that equality of opportunity.
That limit is at the heart of the necessity requirement. The Shaw court sees a split between the 11th and 2nd Circuits, but I don’t believe the decisions are inconsistent simply because correlation is not causation. As the 11th Circuit observes:
The record here isn’t so clear concerning whether Schaw would have been able to meet Habitat’s income requirement via wages earned prior to becoming paralyzed—it doesn’t tell us his pre-accident salary, or whether he lived independently or paid rent anywhere before the accident.
If Shaw’s poverty was merely correlated with his disability – if he, like the hypothetical non-disabled person, could not have earned enough to meet the income requirements even apart from his disability – then he would not have a disability related need for the accommodation. In Salute the court refers to economic disadvantages “that may be correlated” with disability. Shaw simply reminds us that sometimes disability is not merely correlated with, but is the cause of poverty.
At the end of the day stating that the FHA was not intended to remedy purely economic discrimination, as the 2nd Circuit does in Salute, doesn’t say anything about how a particular case should be decided. Those who are poor because of their disability may have a claim under the FHA because their poverty is an effect of their disability. Those who are poor because of other adverse circumstances do not have a claim. Deciding to what extent poverty is caused by disability in any individual case may be difficult, but the courts remind us again and again that each accommodation claim requires an individualized inquiry. Broad statements of principle make good reading in Circuit Court decisions, but the real work for FHA accommodation claims will always be done in the district courts dealing with cases as individual as the plaintiffs who bring them.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Scott Krist.
Aviation injuries at sea are a tragically common occurrence. Although airliner crashes at sea have become relatively rare, the rise of offshore resource extraction has caused an uptick in maritime aviation crashes involving small craft. Most offshore rigs are serviced by helicopter flights that operate in unpredictable and sometimes dangerous weather conditions, adding an extra layer of risk to an already dangerous profession. According to the Centers for Disease Control and Prevention (CDC), the primary cause of fatal injuries for offshore oil and gas workers is transportation accidents.
When a plane or helicopter crashes at sea, it’s not always clear which laws should govern the compensation of the injured and the relatives of the deceased. Different laws will apply depending on where the crash occurred, what the purpose of the flight was, and where the occupants were working. If you or a loved one has been injured in an aviation accident at sea, call The Krist Law Firm, P.C. today at (281) 283-8500, or reach out online to schedule an initial consultation of your case with an experienced Houston maritime attorney.
Most crashes that occur over water are caused by bad weather or mechanical issues. In either scenario, being over water can make an emergency landing impossible. When these accidents do occur, the victims’ compensation may be governed by the following laws:
Many pilots ferrying sailors and supplies to and from ships may themselves qualify as seamen under the Jones Act. This is because the definition of a sailor under this law is someone who is employed by a vessel that operates in navigable waters and whose work contributes to the operation of the ship. Just because you are not on a ship at the time of the accident does not mean you can’t sue under the Jones Act. When you sue under the Jones Act, you are able to access a wide range of damages, including pain and suffering, medical expenses, and lost wages.
If you are a sailor who is either flying or being flown to a ship, and your helicopter crashes, you might be able to sue your employer under the Jones Act for negligence or unseaworthiness, or to not have the proper navigational or landing equipment to make a safe landing possible on the high seas. A recent Supreme Court ruling, however, has barred a sailor’s ability to recover punitive damages from their employer in an unseaworthiness case.
This statute generally applies to accidents occurring on a platform or rig exploiting resources on the outer continental shelf, but in some cases, it might allow recovery after an aviation accident. The OCSLA allows an injured person to sue their employer for negligence, and also allows a deceased person’s family to recover compensation against the employer using the nearest state’s wrongful death statute. State wrongful death statutes are broader than the Jones Act, allowing for damages such as compensation for the loss of the victim’s care, comfort, and affection. But the situations where OCSLA applies to aviation accidents are limited. Per the United States Supreme Court, the victim or their family must show that there was a substantial connection between the injury and the employer’s extractive operations on the shelf. In other words, there must be a significant connection between the helicopter accident and the activities of the rig. Courts determine this issue on a case-by-case basis.
Under U.S. law, the DOHSA was enacted in the 19th century to allow “recovery of damages against a shipowner by a spouse, child or dependent family member of a seaman killed in international waters.” As with the Jones Act, the suit may be based on either a claim of negligence or unseaworthiness. In more recent times, DOHSA has been used to give federal jurisdiction over wrongful death claims resulting from air crashes occurring beyond the territorial waters of the United States, or more than three-nautical miles offshore. DOHSA claims are limited to pecuniary damages only. That means that the claimants can only recover the financial contributions that the family member would have provided to the household, and the costs of the funeral.
When you get injured at sea, whether on a ship, on an aircraft, or on a platform, the decisions you make in the immediate aftermath of an accident can have a big impact on your financial future. You can settle with your employer now, agree to arbitrate your claim, or you can take your case to court. At The Krist Law Firm, P.C., we will thoroughly review your case, help you choose the best direction, and then advocate fiercely on your behalf at every stage of the process.
If you want to make sure you are on course for getting the compensation you deserve, contact us today at (281) 283-8500.
The post Aviation Injuries at Sea – Does Maritime Law Apply? appeared first on Krist Law Firm.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by David Coale.
The Fifth Circuit (minus the two Mississippi judges, who are) voted to take en banc the difficult voting rights case of Thomas v. Bryant, No. 19-60133 (as revised, Sept. 3, 2019), which also presents important issues about justiciability and appellate procedure. At the panel level, all three judges wrote opinions.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Houston Tax Attorney.
We have previously considered the “trade or business” requirement for the Section 199a deduction. The government recently issued guidance to clarify when rental real estate activities can qualify for the deduction. While the guidance is needed, it adopts a record… Read More
The post Documenting the Sec. 199a Rental Real Estate Safe Harbor appeared first on Houston Tax Attorneys: Kreig Mitchell.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Gerry W. Beyer.
A case that was watched by many employers and pension plan members alike went out with little drama, as the Second Circuit docket sheet of New York Times Company v. Newspaper and Mail Deliverers’ Publishers’ Pension Fund pinged to life…
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Peggy Keene.
Beer giants and rivals MillerCoors and Anheuser-Busch have been in court over the use of corn syrup in both manufacturing and advertising. While the dispute resulted from Anheuser-Busch’s high-profile advertising campaign, which aired during the Super Bowl and showcased a variety of several humorous commercials created by Anheuser-Busch to highlight MillerCoors’s alleged use of corn syrup in their beer, MillerCoors found it to be no laughing matter and sued Anheuser-Busch over illegal use of their trademarks as well as deceptive advertising.
The commercials, which show “deliveries” of corn syrup to MillerCoors for use in their beer, while pointing out that Bud Light does not use corn syrup in their beer, aired during the Super Bowl and received notable attention and some positive reviews by viewers. As the market that watches the Super Bowl and consumes beer obviously overlap, MillerCoors claims that Anheuser-Busch’s campaign was built upon deceptive advertising, illegal use of their trademarks, and was causing immediate harm to their MillerCoors’s brand. Specifically, MillerCoors claims that Anheuser-Busch’s advertising campaign deceptively preys upon the general public’s fear and disdain for high-fructose corn syrup.
High-fructose corn syrup, which MillerCoors claims to be markedly different from the regular corn syrup that it uses during its brewing process, has built a significantly negative reputation among the general public as experts have associated the use of high-fructose corn syrup with obesity. By contrast, MillerCoors claims that the corn syrup they use is a much more benign corn syrup, and that corn syrup is only used during the brewing process, and as such, is not considered an actual ingredient in the final beer product that needs to be listed on their beer bottles’ labels.
The U.S. District Court for the Western District of Wisconsin agreed, finding deceptive advertising and holding that Anheuser-Busch’s advertising messages were misleading as the implicit message being conveyed by Anheuser-Busch on their Bud Light packaging and through their commercials is that other beers contain corn syrup, such as MillerCoors’s. As such, the court found that it was not unlikely that consumers would infer that Bud Light’s competitors do use corn syrup, especially in light of Anheuser-Busch’s Super Bowl ad campaign. As a result, the court issued a preliminary injunction against Anheuser-Busch, ruling that it may continue to sell its products under the current “no corn syrup” packaging that it has already manufactured as of June 6, 2019 or until March 2, 2020, whichever comes first.
While MillerCoors has stated that the federal court’s holding and granting of a preliminary injunction is a win against Anheuser-Busch’s allegedly “deceptive practices,” Anheuser-Busch continues to defend its message, stating that they look forward to defending the right to inform beer drinkers of the use of corn syrup in other beers. Anheuser-Busch also accused MillerCoors’s legal efforts as resistance to transparency in ingredients.
While transparency to consumers can be a great marketing tool, companies should consider the potential consequences of disclosing competitor information and the manner in doing so. Seeking the advice of intellectual property counsel can help to ensure a purported consumer education campaign doesn’t lead to litigation.
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Klemchuk LLP is a litigation, intellectual property, transactional, and international business law firm dedicated to protecting innovation. The firm provides tailored legal solutions to industries including software, technology, retail, real estate, consumer goods, ecommerce, telecommunications, restaurant, energy, media, and professional services. The firm focuses on serving mid-market companies seeking long-term, value-added relationships with a law firm. Learn more about experiencing law practiced differently and our local counsel practice.
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Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
