Originally published by John Steele .
I’ve gotten some inquiries about the list for 2014. I’m about halfway through and hope to have it posted tomorrow or the day after.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Bob Kraft .
A long-term disability is defined as one that limits your ability to undertake certain activities associated with daily living, according to the Survey on Disability by the Canadian Government. This may include activities associated with your employment. If you are considering pursuing long-term disability compensation, you need to understand some essential factors associated with this type of claim.
One of the most significant elements associated with a long-term disability claim is time. Generally speaking, in Canada, if a period of disability is six months or less, long-term disability insurance coverage will not be available to you. This does not necessarily mean that you need to wait until the initial six months of disability runs before submitting and pursuing a claim.
You can seek medical support for the proposition that your period of disability will extend beyond the six month mark (or whatever specific period of time is established by a long-term disability insurance policy). Oftentimes, during the period of time prior to the date long-term disability insurance coverage kicks in or becomes available, a person may have access to a short-term disability insurance policy.
In some instances, an employer makes available to employees bundled insurance protection that includes both short-term and long-term disability insurance coverage. In other cases, an employer may provide short-term disability insurance coverage only. In that event, you would need to obtain a private policy of long-term disability insurance if you desire this type of protection.
An important strategy to consider when you face a long-term disability claim is engaging the services of a skilled, qualified and tenacious attorney from Cantini Law Group Accident and Disability Lawyers or similar firms. The reality is that obtaining all of the benefits and compensation to which you are qualified via a long-term disability claim can be challenging. In addition, insurance companies do everything in their power to delay compensation, limit the amount of compensation and even to deny compensation when a person has filed a valid claim for relief.
The first step in engaging the services of a qualified long-term disability attorney is scheduling an initial consultation. Through an initial consultation, a lawyer will evaluate your class and explain what strategies and options are available to you. Canadian attorneys typically do not charge a fee for an initial consultation in a long-term disability case. You can seek out this type of professional assistance directly after the perceived need for long-term insurance compensation arises.
About the author: A recent college graduate from University of San Francisco, Anica Oaks loves dogs, the ocean, and anything outdoor-related. She was raised in a big family, so she’s used to putting things to a vote. Also, cartwheels are her specialty. You can connect with Anica here.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Gerry W. Beyer .
While prepping the New Year’s resolutions for tonight, take time to consider making an annual estate planning resolution to take a look through and update relevant documents. Here are some steps to help with the resolution to review: Take inventory…
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Mary Flood .
Top legal news includes: Handful of new Texas laws take effect Jan. 1; Judge in controversial sex offender program under fire (Chron subsc); Citing morning shooting, Houston police union again seeks two patrolmen in cars; 2014 in Houston: The year of the noise (Chron subsc); Missing tot safe after father kills himself; Houston woman files lawsuit after improper body cavity search; HBJ: Houston litigators merge practices; Man catches burglar sleeping in his guest bedroom; Woman finds years of abortion records in warehouse; TribCast: What To Watch For In 2015; Saving passengers money lands techie in court; Texas courthouses run from the stately to the ‘Atomic Age’ (Chron subsc); Anadarko, Dallas company to reimburse $5 million to Oklahoma; New Texas oil regulator steps down from oil firm; Despite oil prices, BP starts new oil production; Texas Now Hands-Down Leader in Wind Power; HBJ Year in Review: Changing of the guard in energy & Loftis, longtime Chronicle editor, remembered as fair, mischievous- RIP Jack.
For the water cooler: Lawyer shows up late to his own contempt hearing, scolds judge; High school lifts ban on ‘I can’t breathe’ T-shirts at basketball tournament after threatened suit; Lawyer Offers Scholarship to Teens Who Admit to Drunk Driving; Did damage caps discourage suits that could have spotlighted GM ignition defect?; Boston Law Schools (Other Than Harvard) Suffer Large (24%) Enrollment Declines; Dustin Diamond (actor who played Screech) Posts Bail in Stabbing Incident; Court Date Set; 10 most popular ABAJournal.com headlines in 2014; ATL – Beyond Biglaw: Year In Review, On A Page; Was law firm duped? ‘Lawyer’ practiced there a decade and won partnership; was she licensed?; New Year’s Eve possum drop will go on without the marsupial; PETA says animal has no right to wor; Chemerinsky: The 5 most important stories about the Supreme Court in 2014; Harvard Law Faulted for Handling of Assault Complaints (Law.com) & Lawyerist: Stop Scaring Clients Away from Your Website.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by tfoxlaw .
Today I conclude my 2014 blog posts with a final look at the Avon Foreign Corrupt Practices Act (FCPA) enforcement action. Before getting to the key lessons that a compliance practitioner may draw from this enforcement action, allow me to thank you for letting me be a part of your FCPA and greater compliance and ethics experience. This has been a memorable year in social media for me, both in blogging, publishing and podcasting. (If you have not listened to one of my podcasts please head over to the FCPA Compliance and Ethics Report on the web or on iTunes and check it out.) I have learned quite a bit this year, in writing, podcasting and listening. I hope that you will continue to follow me in 2015 through my blogs, podcasts and via some of the other sites and magazines that I write for. I plan to publish more books, in both print and electronic format, and pen more long form articles that will provide a deeper dive into various topics that I think will be of interest to the FCPA compliance and ethics practitioners out there. But I am getting a bit ahead of myself so back to today’s topic and where we are on the Avon FCPA enforcement action, and the big question of what does it all mean for the compliance practitioner and companies worldwide?
And The Money Kept Rolling Out
Unlike Eva Peron and the Foundacion Eva Peron, Avon had the opposite problem; the money never seemed to stop rolling out for Avon. As the FCPA Professor said in his blog post, entitled “Issues to Consider from the Avon Enforcement Action”, “Avon’s FCPA scrutiny was also very expensive. For years, the whisper in the FCPA community was how expensive – and dragged out – FCPA’s internal investigation and pre-enforcement professional fees and expenses were. Not all companies disclose pre-enforcement action professional fees and expenses, but Avon did and those figures were approximately $500 million”. Even the Department of Justice (DOJ) questioned why the company’s investigative costs were so high.
In an article in Bloomberg News, entitled “Avon Bribe-Probe Clean-Up Neared $500 Million as Sales Cratered”, Tom Schoenberg and David Voreacos reported, “In a 2010 meeting, government officials took the unusual step of questioning why Avon’s legal costs were so high at that point, according to two people familiar with the meeting who weren’t authorized to discuss it publicly. Avon said its legal bills had ballooned in part because the company operated in more than 100 countries without consolidated transaction records, according to one of the people.” The article quoted Matthew Axelrod, former senior Justice Department official, who said, “Though unusual, DOJ may call in company counsel to discuss when an outside law firm is going too far afield from what is necessary.” He added the “DOJ doesn’t want a company to have to spend unnecessary millions of dollars on an internal investigation any more than the company itself does”.
If there is one over-riding lesson for all companies to take away from this enforcement action it is that the cost can quickly spiral far out of control and beyond anything you might budget for. While the events at issue took place in 2003-08, the clear import is that it is much cheaper to spend the money to have a compliance program in place now rather than roll the dice and wait. This may mean you need to look at your internal financial accounting systems to determine if they can be monitored adequately and efficiently, yet in a cost-effective manner. While I have not reviewed the internal controls component of this FCPA enforcement action, it is also clear that internal controls need to be in place to detect, in a timely manner, when something goes askance. Of course, if it is in your corporate culture to lie, cheat and steal, it really does not matter what the standard of your internal controls is because the powers that be will find a way around them.
Will No One Rid Me of This Meddlesome Priest?
Henry II and his famous dictum surely seemed to exist at Avon corporate headquarters. If management wants sales accomplished in any way possible then that is the message that is communicated down the line to the troops in the field. Avon had a Code of Conduct that prohibited bribery and corruption, yet the company’s own internal investigation revealed that most company employees were not even aware such a document existed. There was no such thing as FCPA training at the time of the events in question. But more than simply the message of ‘Make Your Numbers; Make Your Numbers; (and then) Make Your Numbers’, Avon had a culture that actively hid criminal acts. For when credible information came to light that Avon China was violating the FCPA, the company went into full cover-up mode, even ordering the destruction of soft and hard copies of the Draft Audit Report. The cover-up was accomplished at the highest levels of the company, with the settlement documents noting the involvement of Avon Executive 1, Avon Executive 2 (believed to be the head of Avon’s Internal Audit function when he left the company), Avon Executive 3, another senior executive in Avon’s Internal Audit function, and two lawyers, Avon Attorney 1, who was identified as “a senior executive in the Office of the General Counsel at AVON” and Avon Attorney 2 who was identified as “an executive in the Office of the General Counsel at AVON”.
High Reward = High Risk
In their Bloomberg News article, Schoenberg and Voreacos reported that Avon was “among the first companies to obtain a license to sell products directly to consumers – the cornerstone of its business model – after Chinese authorities ended a ban on direct sales in 2006.” Further, “By July 2006, Avon had hired more than 114,000 door-to-door salespeople in China. [Then Avon CEO Andrea] Jung said at the time the company viewed the country as a potential $1 billion market. Sales in China surged 28 percent to $67.2 million in the company’s fourth quarter that year.” This means that in less than one year after receiving its license to do business in China, Avon China had one quarter of sales in excess of $60MM. That is quite a lot of Ding Dong, Avon Calling plus following up that doorbell ringing with some serious sales.
Here the lesson is that if there is a new business opportunity that results in an explosion of sales it is probably because of some high risk involved. That may be financial risk, it may be political instability risk, it may be weather-related risk, it may be currency fluctuations risk or it may be some other type of risk. When a business is regulated down from the national to the provincial to the municipality level, it probably means multiples of government interactions for permits and licenses to do business. The compliance function must be integrated into the business operations of a company well enough to be put on notice when such an opportunity presents itself, perform some type of risk assessment and then plan out and implement a strategy to manage those risks going forward. If the first time the compliance function hears about something askance from a FCPA perspective is when it is brought up by internal audit, it is already too late.
The Compliance Committee and Geronimo’s Cadillac
Just as Michael Murphy’s song Geronimo’s Cadillac was intended to show every irony he could ever think of about American culture in two words, the Avon Compliance Committee was about as ironic; although and admitted it is three words. For a corporate Compliance Committee is not simply a vehicle to bring and show off when someone might be around to take pictures. A corporate Compliance Committee has to function and be involved, actively, in an appropriate level of oversight. If a Compliance Committee is informed of credible allegations of a FCPA violation, it simply cannot accept information that it is ‘unsubstantiated’ at a later date. A Compliance Committee must be actively involved in the investigation, it must review the investigation protocol, review information and findings as they become known, direct outside counsel in the investigation and, finally, take charge to remediate the issues involved. It has to have real authority, real power and be taken seriously, not simply have a meaningless title of “Compliance Committee”.
As 2014 draws to a close, I for one am glad that the long Avon FCPA saga has at least come to this stage. For bribe payments totaling over $8MM, Avon has or will pay upwards of $750MM to get through the FCPA Professor’s “three buckets” of FCPA enforcement action costs. This staggering cost should be a clear lesson that now is the time to implement or enhance a compliance program. The number of persons effected by the fallout from this case start with the former head of the company, Andrea Jung, several high ranking executives, the company’s balance sheet and perhaps even some of the lawyers involved in the investigation of this matter. One of the first things that Jung’s replacement did was bring in new counsel to advise the company. After all, someone had to come up with the low-ball opening bid to the DOJ and Securities and Exchange Commission (SEC) of $11MM and then advise Avon to negotiate in public with them using that figure.
On that note, I wish everyone a safe New Year’s Eve and prosperous New Year.
This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.
© Thomas R. Fox, 2014
Filed under: Avon, Compliance Committee, Department of Justice, FCPA, FCPA Professor, SEC, The FCPA Compliance and Ethics Report Tagged: best practices, compliance, compliance programs, Department of Justice, DOJ, FCPA, FCPA Professor, Foreign Corrupt Practices Act, SEC 
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by State Bar of Texas .
From Pete T. Patterson of Houston (London, Schaeffer & Patterson), this excerpt from the testimony of the president of a management company in a premises liability case – in which Pete represents the plaintiff.
Q. So you’re saying that either Kathy Ghaly or Laura Smith failed in their job duty to check out -
A. I’m not saying that.
Q. – Mr. Wartley’s employment?
A. I’m not saying that.
Q. Well -
A. You’re saying that.
Q. I am saying that.
A. I am not saying that.
Q. Okay. What are you saying?
A. I’m not saying anything.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Bob Kraft .
Distraction
We’ve already been dealing with the problem of distracted driving for years, and many argue that in-car WiFi will only make the problem worse. According to Distraction.gov, 421,000 people were injured in accidents involving a distracted driver in 2012 – an increase from the 387,000 injured in 2011. Clearly, we’ve already seen the dangers that the connectivity of mobile phones can pose to the general public, and better connectivity will likely lead to more Internet-related activities while driving.
From cellphones and smartphones to tablets and laptops, in-car WiFi will undoubtedly delight passengers and make backseat rides even more entertaining for children. Unfortunately, the only way to ensure that it doesn’t endanger a driver’s attention is to disable the WiFi connection while the vehicle is in motion. That feature, though, is not typically included.
The Onboard Network
New cars are incredibly intricate and complex machines, and they’re run by a wide variety of computer systems that all need to connect and talk with one another to keep the car running safely and smoothly. That’s where something called the computer-area-network bus, or CAN bus, comes in.
A vulnerable communications port can give a hacker with malicious intent access to the CAN bus. Once they are on your in-car network, depending upon both its structure and the strength of its built-in security systems, they could potentially access your vehicle’s vital systems. These systems include the car’s steering, brakes, and throttle, and it’s already been proven that once accessed, these systems can be hacked and remotely controlled.
Anti-Theft Devices
There are less serious threats that could be posed by a potential WiFi hack as well. Not only are systems like door locks susceptible to a system intrusion, but other anti-theft systems are at risk as well. For example, a car’s telematics system – the system that’s responsible for remote shutdown or vehicle tracking in the event that it’s stolen – is another likely target in a vulnerable car.
These systems are much more likely to be located in more accessible locations within your car’s local network, putting them at greater risk than the vital systems described above. If a vulnerability in your make and model were to become widespread knowledge, your new car would be a known target until the manufacturer addresses the issue. To see how vulnerable your car may already be, take a look at this Wired article.
Identity Theft
This may not seem like a car-related issue, but with the addition of WiFi capability, it becomes one. In fact, it’s the most likely type of cyber-attack that your car will face. Some automakers already use in-car networks that all but isolate the vital systems described above, making it incredibly difficult for a potential attacker to gain control over them. That does not, however, make the WiFi itself more secure.
If a vulnerability is discovered in a specific car’s WiFi network, it’s far more likely that an attacker will be after the personal information that flows through the network than attempting to control your vehicle. At that point, you’re driving around in a WiFi network that a knowledgeable criminal could exploit for information. As you can see here, the potential for this type of threat is already in the media.
Ultimately, the likelihood of any one individual’s automobile becoming a target for malicious activity pales in comparison to the dangers of distracted driving. There’s simply no way around it – the risk that distracted driving poses to everyone increases with every new car that rolls out with onboard WiFi. In the end, please remember to keep your mind on the road – everything else can wait.
This article was written by Dixie Somers, a freelance writer who loves to write for business, finance, women’s interests, and technology. She lives in Arizona with her husband and three beautiful daughters. Dixie got advice for this article from the car accident lawyers in Ottawa at Howard Yegendorf and Associates.
Photo credit: Flickr Creative Commons via Lord Jim.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Tony Coveny .
Merb’s Candies, with locations in Saint Louis, Sappington and Ballwin, Missouri, has just issued a recall of two of its most popular caramel apple products, including Bionic Apples and Double Dipped Apples. According to the release, these apples may possibly carry Listeria monocytogenes. Merb’s issues the recall after being notified by one of its apple suppliers, Bidart Brothers, that there may be a connection between those apples and a nation-wide outbreak of Listeriosis among consumers of caramel apples. So far there are 30 confirmed cases of Listeriosis in at least 10 states, including Missouri. As many as five of the victims have since died. The Centers for Disease Control and Prevention (CDC), along with the Food and Drug Administration(FDA) , is heading this investigation, and has issued a consumer warning against the consumption of any commercially produced and packaged caramel apples pending resolution of its investigation in to this deadly outbreak.
Bionic Apples and Double Dipped Apples have been distributed for retail sale throughout St. Louis, usually in the produce section of local supermarkets, and by mail across the nation. The Bionic Apples and Double Dipped Apples were sold between September 8th and November 25th of this year.
Merb’s Candies has expressed its commitment to working with FDA while it and other agencies continue to trace the origins of the Listeria monocytogenes. As part of that cooperation, Merb’s has suspended all production of caramel apples (doing so on November 23rd). At this time, no Merb’s Bionic Apples and Double Dipped Apples are available for purchase.
“This was the proper action,” says Listeria lawyer Ron Simon who has represented thousands of food poisoning victims. “It is important to prevent the further spread of Listeria, and to allow the investigators to determine how this deadly pathogen was introduced into the production and processing of these products. And while it may have started with the apples, cross contamination and improper testing have obviously allowed the Listeria to infect ready-to-eat consumer goods. This is unacceptable.” The attorneys at Ron Simon & Associates are currently representing victims of this outbreak, and are available to answer any questions or concerns. They can be reached at 1-888-335-4901.
The post Missouri-Based Merb’s Candies Recalls all Bionic Apples and Double Dipped Apples as CDC Reports New Listeria Illnesses appeared first on Food Poisoning News.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by By Brian Humphrey .
Sunday’s disappearance of AirAsia flight QZ8501-which has not yet been located as of the time of this writing-has left the families of its 162 passengers and crew in anguished suspense. These families are surely devastated by the certain knowledge of the loss of their loved ones, yet the ongoing search for the airliner’s wreckage cruelly allows at least some to cling to the likely vain hope for a miracle. This is to say nothing of the families of those lost in Malaysia Airlines flight MH370, who have now been waiting more than nine months for their loved ones to be fund.
In addition to denying closure to those suffering from this tragedy, the delay in finding the remains of the aircraft postpones the investigation as to how the disaster came about. It also raises the question: How can it be possible to lose track of a modern airliner in this age of GPS and instant global communication?
After all, nearly every person in the developed world who owns a smartphone also owns the means to find that phone almost anywhere in the world if it is lost, through the phone’s internal GPS and apps like Find My iPhone. If a smartphone costing a few hundred dollars has this capability, then why not a $200 million aircraft like the Airbus A320-200 lost on Sunday?
Currently, most airliners have only the traditional flight data recorder, or “black box,” to help investigators determine when, where, and how a plane crash occurred after the fact. These “black boxes,” which are actually painted orange for visibility, carry radar and sonar beacons to aid in their location after a crash. However, these features amount to little for those attempting to find QZ8501′s recorder in what is now a 60,000 square mile search area.
Ever since the Air France flight 447 disaster in 2009-and the subsequent two-year, $40 million search for its remains in the South Atlantic-there have been increasing calls for airliners to mount real time flight data uplinks. Where the current system only records flight data onto an onboard “black box,” a real time system would continually transmit this data to air traffic controllers or the airline via satellite. That way, those on the ground could know the position and status of aircraft at all times anywhere in the world, and could immediately know when and where an aircraft is lost, allowing rapid search and perhaps even rescue operations. In addition, the constant “backing up” of flight data recordings to satellite would allow investigators access to this data even if the “black box” is destroyed or unrecoverable.
Yet, despite four years of calls for what one might consider basic equipment given the widespread availability of this technology, regulators such as the FAA and the International Civil Aviation Organization have yet to mandate their use on airliners. One concern is cost of the satellite bandwidth, which is estimated at $1 per kilobyte. However, even a system which provided only basic information like location, course, speed, and altitude and updated only every few seconds rather than in real time would be a vast improvement over current airliners’ equipment, which can only be tracked when within range of ground-based radar and communications.
As the Air France, Malaysia Airlines, and now AirAsia disasters have shown, this simple capability would pay immediate dividends in allowing faster investigation of crashes, providing swifter closure to families, lowing the cost of searches, and perhaps even allowing the rescue of passengers. Compared to the cost-both in treasure and in grief–of the long searches for these lost aircraft, the price of a few pieces of electronic equipment and a few bytes of satellite bandwidth seems rather affordable.
If you or someone you know has been injured or killed in an aviation accident, contact an attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend by calling 713-222-7211 or toll free at 1-800-870-9584.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by By Daniel J. Werlinger .
Chances are you have attended a gift exchange event where a Keurig coffeemaker was a gift. Keurig coffeemakers have been a hot item for various Christmas gift exchanges for several years now. The Keurig coffeemaker derives its popularity from its simple no-mess setup that delivers a single-serving cup of coffee in a matter of moments. Ideal for home and office use, it’s no surprise there are millions in circulation throughout the country.
Right before Christmas, the Consumer Products Safety Commission (CPSC) announced a recall of the Keurig Mini Plus Brew System. The recall was announced after it became known that there was a hazard caused by the product due to water overheating in the coffeemaker. The recall announcement warned of the possibility that if the product were to overheat, scalding hot water could spew from the system burning anyone who happened to be near the product. Keurig reported to the Consumer Product Safety Commission that it received reports of at least 200 incidents where hot liquid escaped the coffeemaker, causing burn-related injuries to users of their product in at least 90 of those incidents. The Keurig Mini Plus was sold at many retails nationwide to include big name retail stores such as Wal-Mart, Target, Kohl’s, and K-Mart from December 2009 to July 2014.
The Consumer Products Safety Commission has a webpage available to assist Keurig owners in determining whether their Keurig coffeemaker is part of the newly announced recall. Keurig is offering a free repair kit for the effected coffeemakers. Keurig also stated it will assist owners with how to avoid burn injuries while they await arrival of the repair kit.
While caution should always be used with any coffeemaker, if you have an older model Keurig you should make sure it is not subject to this recall. For those that have recently upgraded and are looking to sell their older model, it is important to note that it’s against federal law to sell a product that is subject to a safety recall.
If you or someone you know has been injured from a defective product, contact an attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend by calling 713-222-7211 or toll free at 1-800-870-9584.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Nonprofit Blogger .
An interesting recent article in the Washington Post discusses the differences between for-profit and non-profit hospice care. The article says that although “[i]n some cases, for-profit hospices provide service at levels comparable to nonprofits, . . the data analysis, based…
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Gerry W. Beyer .
As I have previously discussed, the recently passed ABLE Act allows for disabled individuals to set up a tax-free savings account that will not act to disqualify the individual from receiving disability benefits. However, an individual who is qualified to…
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Mary Flood .
Top legal news includes: Demonstrators rally in downtown Houston over Jordan Baker decision; HBJ Year in Review: Out-of-state law firms push into Houston; Officer: Video shows gun aimed at Galveston police who killed man; Texas law firm target of BP lawsuit; Oil prices fall to five-year low; 250,000 jobs at stake in 8 states; Judge picks bad for abortion law foes, mixed for gay marriage supporters (Chron subsc); Dallas Beats A.G. in Open Records Appeal Over Attorney-Client Privilege Issue (Texas Lawyer); Rep. Steve Stockman Tried to Abolish Civil Asset Forfeiture on His Way Out; Threats prompt Fort Bend constable to change policy to two-person patrols; Texas teen arrested over replica gun pointed at cop car; Austin detective sues city over sexual harassment; Criminal charges against Texas mayor dismissed & Survey: Texas manufacturers worried about oil price slide.
For the water cooler: Cleary Gottlieb sued by former project lawyer for alleged racial bias in firing; Former judge loses suit claiming bias after disclosure of his affair with bailiff; What Could Disrupt Diversity in Law? The Economy, Stupid.; 10 Things People Don’t Understand About ‘Serial’ Unless You’re a Criminal Attorney; Have Law Students Become Worse Students in Recent Years?; ABA urges SCOTUS to uphold ethics rule banning judicial candidates from soliciting contributions; Ethics complaint accuses lawyer of sexting with client later accused in extortion plot; SCOTUS litigators with more manly voices were more likely to lose, study finds; Looking for a promotion or a new job? Secret statistical programs could doom or aid your chances & Hotels Seek FCC Guidance on Wi-Fi Blocking.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by tfoxlaw .
I am back from my holiday break and am looking forward to many good ideas for blogs in the coming year.
However before we get to 2015, I have to finish out some matters from 2014.
Today I continue my look at the Avon Foreign Corrupt Practices Act (FCPA) enforcement action, which was announced earlier this month. In today’s post I will look at the bribery scheme and cover-up that Avon employed. Tomorrow I will conclude with some final lessons to be gleaned from the Avon enforcement action for both the compliance practitioner and greater corporate world. Avon Products (China) Co. Ltd. is referred to as ‘Avon China’ and Avon Products, Inc. (the US parent) is referred to as ‘Avon’.
With a sustained plan that one can only say was well thought out, Avon set out to conquer the Chinese market for door-to-door sales. To do so, Avon had to navigate a bureaucratic maze. This maze began with a Test License obtained in 2005 and later a national direct selling license together with approvals from each province and municipality where the company wanted to sell its products. To obtain the required licenses, the company set a bribery scheme which worked at all levels of the company’s China subsidiary, Avon China, and reached back to the home office in the US, Avon Products. Both of these entities were the subject of the FCPA enforcement action concluded earlier this month. The bribery scheme itself paid out over $8MM in bribes before it was concluded.
To facilitate this process Avon China set up a business unit entitled the Corporate Affairs Group and later a more focused sub-group as part of the scheme called the Direct Selling Special Task Force. These two groups led the company’s efforts to bribe its way into the China market. They did so through a variety of means, as set out in the settlement documents. Unless cited otherwise, the quotes below are from the Avon China Criminal Information.
Gifts
Avon was fond of giving very high priced gifts to various Chinese government officials. Inevitably, Avon China employees would falsely describe the gift itself in the company’s books and record. To add to this deception, Avon China would omit from the books and records not only who the gift was provided to but also the purpose of the gift. This part of the bribery scheme allowed the gifts of Louis Vuitton products to be described as a “public relations expense” and “Public Relations Business Entertainment”; while the gift of a Gucci bag was described as “business entertainment”.
Meals and Entertainment
This part of the bribery scheme was a clear favorite of Avon China. The aforementioned Direct Selling Special Task Force was ubiquitous in the meals and entertainment arena where its members simply used the term “relations” to refer to “things of value provided to government officials or goodwill that had been obtained by giving such things, including non-business meals and entertainment.” Specifically noted in this part of the bribery scheme were payments of approximately $8,100 described as “sales-business entertainment” provided to a government official so he would approve a product that did not meet Chinese government standards. Other false excuses provided were describing such payments as “business entertainment” and “employee ‘accommodation’ expenses”.
Non-Business Travel
Avon China doled out a huge amount of bribes through the mechanism of phony travel for alleged business purposes. Avon China would claim they were bringing various Chinese government officials (also Wives, Girlfriends and other family members) to locations for business-related travel but in reality the trips were mostly sight-seeing excursions, gambling junkets, a beach vacation and other entertainment which had nothing to do with business purposes. So a trip alleged to be a “site visit/study visit” to the corporate headquarters in New York City and the company’s research and development (R&D) facility in upstate New York became a $90,000, 18-day travel extravaganza to “Vancouver, Montreal, Ottawa, Toronto, Philadelphia, Seattle, Las Vegas, Los Angeles and Washington DC.” (Oh, and one half-day at the company’s upstate New York R&D facility.) Other favorite venues for Chinese government officials and their families were the gambling mecca of Macau, Hong Kong, Hainan Island, Guangzhou, Shenzhen and Sanya. Needless to say, none of these locations had any Avon corporate offices, manufacturing or R&D facilities.
Cash
Always a favorite of bribers everywhere, Avon did not neglect to lay out large amounts of cash. Avon China used a variety of orchestrations to hide these payments including simply stealing it from a (apparently) huge petty cash fund, directing Avon China employees to charge for non-existent expenses and keep the reimbursements from corporate, lying in the books and records by calling such bribe payments as “management expenses-government relations expenses” and even submitting “a handwritten certificate, purportedly from a Chinese government agency, falsely stating that the official would give the funds to the government bureau.”
Payment Through Third Parties
Using an entity identified as “Consulting Company A”, Avon China paid a large number of bribes throughout the period in question. Initially it should be noted that this entity raised numerous red flags that were never investigated or cleared. These began with the fact that it was a Chinese government official who recommended the retention of Consulting Company A to perform ‘lobbying’ services for Avon China. Thereafter the company performed no background investigation into the ownership structure of the company, did not include any compliance terms and conditions in the contract, did not even communicate to this third party of Avon’s Code of Conduct prohibition against bribery of government officials. Beyond these issues, in large part Consulting Company A never performed any legitimate services for Avon China. What Consulting Company A did provide to Avon China was a way to funnel bribe payments to Chinese government officials.
Corporate Connivance in Scheme (AKA The Cover-Up)
While all of the above was bad, one thing which catapulted the Avon FCPA bribery scandal into the realm of seriously bad was the company’s discovery of the bribery scheme and resulting cover-up. According to the Criminal Information for Avon Products, in 2005 a senior auditor in Avon’s internal audit group, “reported to Avon’s Compliance Committee, which was comprised of several senior Avon executives, that Avon China executives and employees were not maintaining proper records of entertainment for government officials” and that an Avon China executive had explained the practice “was intentional because information regarding that entertainment was ‘quite sensitive.’” This led to a Draft Audit Report, reviewed at the highest levels of Avon China and Avon in the US, which concluded that Avon China’s Corporate Affairs Group’s expenses included: “(1) high value gifts and meals that were offered to Chinese government officials; (2) the majority of expenses relating to gifts, meals, sponsorship and travel of substantial monetary value was to maintain relationships with government officials; (3) a third party was paid large amounts of money to interact with Chinese government officials but was not contractually required to follow the FCPA, was not monitored by Avon China, and was paid for vague and unknown services; and (4) the payments, and the lack of accurate, detailed records may violate the FCPA or other anti-corruption laws.”
So what was the company’s response to this information? The internal auditors who prepared the report were required to remove the above language and whitewash the report. Evidence of reviewed misconduct was reduced to two hand-written pages, which were then taken out of China and hand-carried to Avon’s corporate headquarters. All copies of the Draft Audit Report were ordered to be retrieved and destroyed. Finally, as noted in the Criminal Information of Avon China, in January 2007, an Avon executive reported to the Avon Compliance Committee “that the matter reported in 2005 regarding the potential FCPA violations by AVON CHINA executives and employees had been closed as “unsubstantiated” which terminated Avon’s investigation into AVON CHINA’s corrupt conduct.”
Tomorrow we take a look at some of the key lessons to be learned from Avon FCPA enforcement action.
This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.
© Thomas R. Fox, 2014The v
Filed under: Avon, Compliance, Department of Justice, Enforcement Actions, FCPA, Gifts and Business Entertainment, Third parties, Travel and Entertainment Tagged: best practices, compliance, Department of Justice, DOJ, FCPA, SEC 
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Originally published by State Bar of Texas .
From Sean P. Healy of Tyler (Healy & Hester), this exchange that occurred while he “was waiting in the 114th District Court for [his] civil case to be called” after Judge Cynthia Kent finished a habeas corpus hearing. After the evidence concluded, Judge Kent was proceeding with lengthy oral findings, when “the defense attorney sensed that things might not be going his way.” So …
Defense Attorney: May we beg …
The Court: You can beg in a minute …
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Originally published by Kelly Kubiak .
What makes a denied commercial claim improper?
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Originally published by Tony Coveny .
California Snack Foods, of S. El Monte, CA, has issued a recall of its caramel apples, or “Karm’l Dapples,” following the possible link between its product and a nation-wide outbreak of Listeria that has turned deadly – killing as many as five individuals. The Karm’l Dapples being recalled are dated with a “best use by” between the 15th of August and the end of November, 2014. The Karm’l Dapples were sold in single and three-pack containers, which includes nut, Rainbow Sprinkle, and crunch covered caramel, as well as both seasonal (Halloween) and regular packaging. And while the product is no longer on store shelves, the company is concerned that some individuals may still have Karm’l Dapples in their homes. The recalled Karm’l Dapples, which have been on the market since 1961, were sold and/or distributed in Arizona, California, Nevada, Texas and Utah.
According to California Snack Foods, the impetus for this recall came when one of its apple suppliers, Bidart Brothers, indicated that this Listeria outbreak may be linked to one of its facilities that provides apples to California Snack Foods for making the Karm’l Dapples. These tainted apples could possibly be the source of the listeria that is now sickening consumers of caramel apples, or Karm’l Dapples.
As of present, at least 29 victims have been identified in 10 states, this according to the Centers for Disease Control and Prevention (CDC). The CDC has been aggressive in this outbreak, even given the limited information it has, and warned consumers against consuming commercially produced and pre-packaged caramel apples. As a result, some companies who do not believe their product is implicated in this outbreak have attempted to assure customers that the wide-ranging warning should not dissuade consumers from purchasing their brand of caramel apples. Unfortunately, it remains uncertain how wide-spread the distribution of these tainted caramel apples has been, and just how many name brands will ultimately be implicated.
“Listeria is one of the most dangerous of the common bacterial food borne pathogens,” says Listeria lawyer Ron Simon who has represented thousands of food poisoning victims, including victims in this outbreak. Simon explains that “Listeria hospitalizes upwards of 80% of its identified victims, and in recent years has been linked to a number of deadly outbreaks and to both still births and miscarriages in pregnant women.” Ron Simon and the other Listeria lawyers at Ron Simon & Associates encourage victims of this outbreak to seek medical attention and to speak to a food safety lawyer about their legal rights. Attorneys at Ron Simon & Associates, who are representing victims in this outbreak, are available at 1-888-335-4901.
The post Karm’l Dapples Maker Recalls Caramel Apples after Bidart Brothers’ Apples are Implicated in Deadly LIsteria Outbreak appeared first on Food Poisoning News.
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Originally published by Bob Kraft .
The National Safety Council promotes data-driven safety management systems backed by scientific research and statistics. The Council has published injury facts for more than 90 years based on data from various sources such as surveys and statistics, and also publishes The Journal of Safety Research. The Council works to raise awareness of safety issues and give consumers solid information to work and live more safely. Information like this helps counter unsafe practices and common safety myths.
The National Weather Service reports on common myths about lightning safety. An old saying, “Lightning never strikes twice” or “Lightning never strikes the same place twice” is a very common misperception. The NWS cites the fact that the Empire State Building is struck almost 100 times a year, and says lightning often strikes tall pointy objects repeatedly.
Other myths about lightning safety include:
The National Sanitation Foundation works to safeguard the world’s food, water, consumer products and environment. The Foundation reports on several food myths that put people at risk in their own kitchens. People think food in the fridge can’t spoil or be cross-contaminated because of the cold temperatures, but the NSF reports that bacteria, including Listeria monocytogenes, grows in cold temperatures, and refrigerators often harbor Listeria and salmonella.
Steel-toed safety boots are made with steel, aluminum or composite materials. Some people think that wearing steel-toed boots risks getting your toes amputated. The myth is that the steel in the toe of the boots can curl in during an impact and cut off toes. This myth was tested on the TV show Mythbusters in several different ways and was found to be unwarranted.
People are more aware of the perils of sun exposure today, but an American Academy of Dermatology study that shows many people still take no precaution in the sun. The general perception that tanning is healthy is a dangerous myth, and tanning beds and outdoor exposure to ultraviolet radiation can lead to skin cancer, more wrinkles earlier in life, and other skin damage. People generally think they can only get a sunburn if it’s a sunny day, but you can get a sunburn on a cloudy day if exposed without sun protection for more than a few minutes.
The National Safety Council reported 174 worker fatalities from electrical exposure in 2011, and reports myths about electricity and safety are common. People think that electrical tools will short-out in water and reach into the water to get them back, but water conducts electricity and will injure and even kill someone in this situation.
This article is from Lori Cline, an accomplished award-winning writer who specializes in tech and gadgets, as well as beauty and women’s wellness. She lives with her daughter in the western United States.
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Originally published by Gerry W. Beyer .
The IRS recently released a press release entitled Tax-Free Transfers to Charity Renewed For IRA Owners 70½ or Older; Rollovers This Month Can Still Count For 2014, IR-2014-117, Dec. 23, 2014. Provided below is an excerpt from the press release….
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Originally published by Mary Flood .
Top legal news includes: At least 353 unsolved Houston homicides since 2009; Victim’s mother feels forgotten by HPD (Chron subsc); Pro Police group interrupts 2nd protest; Indigent defense lawyer choice idea in Texas County to get first test in US; Ex-Galveston County Employee Says Judge Bugged Attorney-Client Meeting Rooms (Chron subsc); Critics say Texas’ sex crime rehab program aims to reimprison offenders; Texas Firms Have Optimistic Outlook for 2015 (Texas Lawyer); Family wants to see video in Texas City shooting; What Was Really Going on During the Halliburton-Baker Hughes Merger; Turning city government green is paying off (Chron subsc); Overtime lawsuits are on the rise in Texas (Chron subsc); Texas Tribune Reporters: Our Top Stories of 2014; GPS device helps nab mail theft suspect; Woman to plead guilty in Texas DA murder case; Urban laws stunt growth of community gardens; Residents on path of Kinder Morgan pipeline from Ohio to Gulf concerned about use; Many oilfield injuries go unreported (Chron subsc) & 15 in 15: Houston business leaders look ahead to next year.
For the water cooler: Two BigLaw firms paid $5.75M to partner’s fake companies, prosecutors allege; Personal Injury Lawyer Says Google’s Driverless Car Bad for Business; ATL Holiday Card Contest: The Finalists!; Sony lawyer asks Twitter to suspend user who posted hacked documents; Court Says Muslim Witness Cannot Take Oath On Quran; Siberian Tax Collectors Reportedly Holding Cats Hostage; Sensitivity is the real issue in teaching of rape law, law prof says; New laws are needed to protect people from webcam spying, report says; How many JDs are in Congress?; Now-retired justice’s pornographic emails were only impropriety found in special counsel’s report & Foreclosure defense lawyer says he will give away free home for best ‘tear-jerker’ essay.
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Originally published by State Bar of Texas .
This contribution from District Judge Ron Ennis of Dumas (69th Judicial District). It involves a wrongful termination case that Ron heard by assignment in Randall County, Charlotte Bingham of Crenshaw, Dupree & Milam of Lubbock was questioning the jury panel about their experience with losing employment.
Ms. Bingham: Did your – the employer have any kind of grievance procedure that you could follow in connection with your termination?
Juror: No.
Ms. Bingham: I think I got everybody on that side. Anybody else on this side who was terminated? Sir, how long ago was it?
Juror: Fifteen, give or take.
Ms. Bingham: Okay. Do you believe you were wrongfully terminated?
Juror: I was a hot dog and didn’t have enough mustard to go around.
Ms. Bingham: Okay.
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Originally published by Shaun Marker .
It is official—in a case of first impression in New York,1 the appellate court will decide if a policy flood aggregate limit will apply to “downstream” financial losses such as delay in completion. The policyholder has filed the appellate brief on December 3rd requesting the appellate court to review the trial court’s ruling of first impression we discussed in: Delay in Completion Losses Under a Builders Risk Policy – Part 2.
Back in June, 2014, the New York trial court issued an order in a case involving delay in completion coverage under a builders risk policy where damage was sustained during Hurricane Sandy. The determination at the trial court level was that the policyholder was entitled to recover the total of $5 million for flood damages, physical damages and the economic delay in completion losses sustained in Sandy, since they stemmed from the flood. The court ruled that the flood deductible was also applicable to the loss. We knew the case would…
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Originally published by John McClain .
Note: There is a poll embedded within this post, please visit the site to participate in this post’s poll.
Defensive end Jared Crick is one of the most underrated Texans. He’s replaced Antonio Smith as a starter. He’s been terrific against the run. He’s a decent pass rusher.
With Tim Jamison suffering a season-ending injury, Crick is playing more in passing situations.
Against the Ravens, he had five tackles, two for loss, and one sack. He hit quarterback Joe Flacco twice and deflected a pass at the line of scrimmage.
“Now that he’s (Jamison) hurt, it’s my role to come in on third down and rush,” he said. “Just getting a little more reps on third down and just trying to do whatever I can to help the team.”
The Texans allow 15.5 points over their last six games.
“We’re getting used to playing with each other,” Crick said. “Guys know where everybody is, and we’re on the same page now. We were always a good defense, but we’ve had lulls throughout the season.”
Odds & ends
Brandon Brooks’ ankle injury could sideline him for the Jacksonville game.
“He’s doing better,” coach Bill O’Brien said. “He’s a tough guy. He was kind of bent in an awkward direction. He’ll get treatment. He’ll work hard to get back out on the field.”
john.mcclain@chron.com
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Originally published by Nonprofit Blogger .
In Register v. The Nature Conservancy, 2014 WL 6909042, Civil Action No. 5:13–77–DCR (Dec. 9, 2014), the U.S. District Court for the Eastern District of Kentucky held that Mr. Layton Register’s $1 million donation to The Nature Conservancy (TNC) constituted…
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Originally published by Stacey E Burke Blog .
Many may think that hiring quality law firm employees during the holiday season is impossible. Job seekers often give up looking toward the end of the year, assuming that no new postings or quality positions will become available. I used to believe the same; but, now I am finding that since the end of the year is a time business owners reflect upon the year’s progresses and failures, that many employers do decide to list new positions in November and December. The most commonly listed end-of-year law firm job openings include paralegals, secretaries, office managers, and marketing coordinators. While firms may not be hiring or firing lawyers around bonus time, they are evaluating and changing support staff at year-end reviews.
Your law firm cannot afford to take chances with its hiring. Since 46% of newly hired employees fail within 18 months, it is crucial to do the work on the front end to avoid landmines. Each time you onboard someone new into your business, it costs you significant time and money. Those who hire within law firms must be mindful to be thorough at the inception of the hiring process, to avoid having to repeat the entire process soon thereafter.
The costs of hiring a new employee can include benefits, software training, new digital account creation for email, calendar, and file servers, time spent by staff training the new employee in procedures, not to mention the actual salary and taxes your firm will pay.
Recent advancements in technology used by law firms have changed the meaning of law firm support staff titles and the job descriptions they fill. The historical terminology of legal assistant, paralegal, and legal secretary now includes a plethora of new and different tasks that require the mastery of new and different tools.
Not that long ago, lawyers had secretaries and paralegals, two separate and distinct positions. As technology has developed, non-lawyer law firm employees have had to grow and adapt to remain relevant and irreplaceable to the law firms they call home. For current legal secretaries and legal assistants to remain gainfully employed in the legal field today, they must master technology and take emerging software by storm, helping the law firm stay ahead of the curve.
Adaptability, flexibility, and technological sophistication are now more important than actual law firm experience in many cases. Especially in small law firms with a limited number of support staff members, each individual matters so much. Each person has to be receptive to taking on new responsibilities and continually upgrading their professional development. So how can we hire the best employees for our businesses? Know what skills you want, but understand that intangibles make the most impact on fitting into a law firm’s corporate culture. Poor technical skills aren’t really the root cause of workplace failures. Most new hires fail because of emotional and behavioral elements like attitude, motivation, and the ability to accept and integrate feedback.
As a leader, you must establish and maintain the characteristics of a successful firm, thus giving your employees every opportunity to excel, both as a group and as individuals. A group of lawyers and their staff become one cohesive law firm when they are well led, well paid, and kept accountable by someone with authority.
Many law firms that contact us for our auditing services seek to implement processes by which they can measure and optimize their staff. Optimization includes identifying talents, areas of inefficiency, and weaknesses within your existing workforce, as well as in each potential new hire. Make sure you end 2014 and begin 2015 with thoughtful hiring practices and a cohesive law firm employee roster.
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Originally published by State Bar of Texas .
(1) From a letter confirming the mediation date of a Dallas mediator:
The fee for a dull day of mediation is seven hundred fifty dollars ($750) per day.
(2) From objections to interrogatories in a Houston case:
Objection; Defendants objection to this interrogatory is that it is over board and seeks information irrelevant and immaterial to subject litigation and is not likely to lead to discovery of inumerable evidence.
These classic typos were contributed by (1) Scott A. Barber of Garland (Brown, Brown, etc.); (2) James A. Dunn of Houston (Bennet, Dunn, etc.)
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Originally published by Joanna Herzik .
10. Employers Do Not Have to Pay Employees for the Time Spent in a Security Screening After Work …
9. FDA proposes move to electronic PIs
8. Whoomp! Extrinisic evidence.
6. James Dean Twitter Lawsuit Dismissed
5. Manufacturer’s “Handmade” Bourbon Made by Robots, Suit Alleges
4. Laser Beam Weapons A Real Thing Now?
3. Abnormal Interviews of 2014
2. Scrooge and Corporate Settlement Agreements
1. Happy Holidays: Funny Christmas Trademarks
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Originally published by Charles Mathis .
On December 18, 2014, Dennis Kuhns, the Division Director of the Risk Insurance Division of Federal Emergency Management Agency (“FEMA”) issued Write Your Own (“WYO”) Bulletin W-14062, entitled, “FEMA Announces Launch of the Interim Office of the Flood Insurance Advocate.”
The Bulletin indicates that W. Craig Fugate made the announcement of the launch of the Interim Office of the Flood Insurance Advocate, which is being led by Acting Flood Insurance Advocate, David Stearrett and noted, “[t]he Interim Office will begin work on specialized assistance to citizens and policyholders on National Flood Insurance Program (NFIP) issues as well as regional mapping outreach and education support. The Interim Office will operate until a permanent Office of the Flood Insurance Advocate is established.”
The Flood Insurance Advocate will have a wide range of duties:
At launch, the Acting Advocate and staff will focus on assisting the public as they…
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Originally published by Jim Dedman .
Since this is our last edition of Friday Links before Christmas, we thought we’d share the cover of Archie’s Giant Series Magazine #216. We’re not entirely certain when this particular issue was published, but it seems appropriate (especially with Archie’s looming 75th birthday). Enjoy.
Today is the last day you can vote for Abnormal Use in the ABA Journal‘s Blawg 100 poll! To do so, click here (and you can find us in the “Tort/Consumer” category). We would very much appreciate your support. The polls close at the end of the business day today.
Today, by the way, is our editor Jim Dedman’s birthday.
The Lawyerist site – a blog we’ve linked many times over the years – is starting a new podcast. For more information, click here.
Our favorite tweet of late simply has to be this one:
Dance like no one is watching; email like it may one day be read aloud in a deposition.
— Olivia Nuzzi (@Olivianuzzi) December 13, 2014
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Originally published by Gerry W. Beyer .
As I have previously discussed, the estate of iconic actor James Dean filed a lawsuit against Twitter in February to gain ownership of the Twitter handle @JamesDean, which was being used by an unknown user as a fan page. The…
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Originally published by Peter S. Vogel .
The Attorney General of Mississippi complained in a letter to Google that “In my ten years as Attorney General, I have dealt with a lot of large corporate wrongdoers. I must say that yours is the first I have encountered to have no corporate conscience for the safety of its customers, the viability of its fellow corporations or the negative economic impact on the nation which has allowed your company to flourish.” The New York Times reported that Jim Hood (Mississippi Attorney General) issued a “79-page subpoena to Google, asking for records related to its advertisements and search results for controlled substances, fake IDs and stolen credit card numbers.”
Also the New York Times reported that after Google paid a $17 million fine in 2013 to settle a Privacy case that Jon Bruning (Attorney General of Nebraska) complained about Google:
These guys have profited from illegal activity that they promoted in their search engines for years.
There is a culture at Google of sell anything to anyone. By no means do they wear the white hat in this debate.
These complaints are not limited to the US as there are other governments who are complaining about Google, and in particular in the EU.
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Originally published by State Bar of Texas .
This contribution is from Christopher R. Johnston of El Paso (Firth, Johnston, Martinez), who writes that he was finishing up a deposition and took a break to make sure there were no further questions to be asked of the witness. He then came back on the record to ask the usual closing questions and got this exchange:
Q. We’re back on the record. Mr. [Smith], have I been courteous to you?
A. No, absolutely not. Very Polite.
Q. Okay. [long pause] Have you understood all my questions?
A. Yes.
Q. Are there any answers that you have given me today that you might like to change?
A. No.
Christopher also pointed out that “opposing counsel very wisely did not conduct any redirect.”
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Originally published by David Yates .
Last March, a Jefferson County jury found Quinton Henderson – a seaman who filed two slip-and-fall suits within a year’s time – 30 percent negligent in causing his own injuries, but still awarded him more than $1.7 million in damages.
On Thursday the Ninth Court of Appeals wiped away the verdict, remanding the case for a new trial.
Court records show that Henderson filed suit against
and Lake Shore Shipping on Nov. 6, 2009, in Jefferson County District Court.
Henderson alleges that on April 7, 2007, he was employed by Kinder-Morgan working aboard the Tina III, a vessel owned by the defendants, when he slipped and fell on the deck, injuring his back.
The case went to trial on March 4, 2013, in Judge Milton Shuffield’s 136th District Court.
Two weeks later, jurors found that Prosperity Management was 30 percent negligent in causing the incident; Irika Shipping was found to be 40 percent negligent and Henderson 30 percent negligent.
Jurors awarded Henderson $1,052,000 for his past and future lost earnings, $392,943 for his past and future medical expenses and $290,000 for his past and future mental anguish.
On appeal, Prosperity and Irika argued Judge Shuffield erred in denying their motion for directed verdict; the evidence is legally and factually insufficient to support the verdict, and the judge erred in omitting requested language in the charge and in the issues submitted to the jury.
Ninth Court justices found Judge Shuffield did err in omitting language from the charge, but declined to rule on verdict since they remanded the case for a new trial, court records show.
The omitted language pertained to the liability of Henderson’s employer.
This is not the first slip-and-fall suit filed by Quinton Henderson.
Quinton Henderson filed a Jones Act suit against Prosperity Management Services in Jefferson County District Court on Dec. 27, 2008, claiming he slipped and fell because the ship he served on lacked “adequate walking and working surfaces.”
That suit alleged that sometime in April 2007 Henderson was serving aboard the Tina III, a vessel owned by Prosperity, when he fell and injured his back.
The Law Office of Richard Schechter in Houston represents Henderson.
Attorney Kevin Walters represents Irika.
Trial case No. D185-296
Appeals case No. 09-13-00237-CV
The post Ninth Court wipes $1.7M jury verdict for seaman’s slip-and-fall appeared first on Southeast Texas Record.
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Originally published by Nonprofit Blogger .
In Belk v. Commissioner, No. 13-2161 (Dec. 16, 2014), the 4th Circuit affirmed a Tax Court ruling that a conservation easement that authorized the parties to agree to “substitutions” or “swaps” (i.e., to remove some or all of the original…
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Originally published by Klemchuk Kubasta LLP RSS Feed .
In the spirit of the holidays, here is a list of a few funny Christmas-themed trademark registrations and applications currently before the United States Patent and Trademark Office.
CHRISTMAS BEERACLE— registered for “clothing, namely, t-shirts, sweatshirts, shorts, pants, jackets, pajamas, underwear; alcoholic beverages, namely, beer”
DR. CHRISTMAS –registered for “Christmas decorating services for residential homes”
LUDACRISMAS –registered for “charitable services, namely, organizing and conducting volunteer community outreach programs and community service project initiatives that provide toys, food, and clothing to underprivileged youth, families, and communities during the holidays”
1-800-CALL-SANTA –registered fo…
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Originally published by Gerry W. Beyer .
A combination of increased accessibility to online financial records at the click of mouse and recent litigation by donors demanding refunds from charities has created a rise in the number of charitable donations being requested to be returned if the…
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Originally published by Steven Callahan .
DietGoal originally filed suit against Taco John’s in the Eastern District of Texas. Taco John’s filed a motion to dismiss the action for improper venue. The East Texas Court denied the motion to dismiss and instead transferred the case to the Northern District of Texas. Judge Kinkeade (in an order available here) then transferred the case to the District of Wyoming.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by tfoxlaw .
The book was written at a time when the English were examining and exploring Christmas traditions from the past as well as new customs such as Christmas cards and Christmas trees. Dickens’ source materials for the tale appear to be many and varied, but are principally, the humiliating experiences of his childhood, his sympathy for the poor and various Christmas stories and fairy tales. A Christmas Carol has been credited as one of the greatest influences in rejuvenating the old Christmas traditions of England. Scrooge himself is the embodiment of winter, and, just as winter is followed by spring and the renewal of life, so too Scrooge’s cold, pinched heart is restored to the innocent goodwill he had known in his childhood and youth. It is hardy tale that should be retold and remembered each holiday season as one of the true spirits for celebration.
I considered this work by Dickens when I read a recently released article entitled “Improving Corporate Settlement Agreements” by The Fraud Guy, John Hanson. In this piece Hanson considers some shortcomings in a variety of corporate misconduct settlement agreements, where he believes “the Terms of most Agreements lack a full and practical appreciation for what constitutes an effective Program within a particular organization.” He articulates that “A key reason for this is because the parties to the Agreement miss the forest for the trees in that they too narrowly focus on Program sub-components (that piece of a Program associated with a particular risk, such as Anti-Corruption, Anti-Trust, False Claims, Organizational Conflicts of Interest, etc.…), the failure of which is only symptomatic of a higher level and overall Program failure.” Although Hanson’s critique of Deferred Prosecution Agreements (DPAs), corporate monitors and settlement agreements was broader than simply those issues in Foreign Corrupt Practices Act (FCPA) enforcement, I found his comments provided some useful insights into how both companies and the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) might help to make the process more robust in helping companies create a culture of compliance and ethics as result of a resolved enforcement action.
Ethical Tone
Here Hanson says that DPAs do not tie the relationship of compliance and ethics together going forward. He believes that one cannot exist without the other. He thinks many compliance program overseers focus too much on the sub-parts and institute too much of “A piecemeal approach that overly focuses on Program sub-components and neglects ethical tone almost completely is doomed to failure. It is like placing a Band-Aid on an arterial wound.”
While many external monitors will drill down into the detailed specifics of a certain issue or even sub-issue under compliance, such a mechanism can be a useful exercise. For example if there is a particular compliance problem being faced such a detailed approach may be warranted. For instance, if the company got into FCPA trouble for its use of third parties that came into a business relationship with the company through the Supply Chain, an extreme deep dive into the Supply Chain and management of those relationships from the compliance perspective may be important. However what such an approach may cost is losing a greater focus of the overall picture.
Time
A second critique is that many DPAs are simply too short in time length to “effectively implement remediation.” While this criticism is largely for DPAs outside the FCPA context, it bears some discussion. Hanson believes that “A Program is a process, not a one-time event. Moreover, it is a process that perpetuates and improves continuously. Generally speaking, for organizations without a robust and effective Program, it realistically takes at least three years to stand up this process to the point where it is effective and begins annually repeating.” A compliance program design and implementation can take up to 18-months and it can often take another year to assess the implementation results and fine tune the compliance regime going forward.
While most DPAs in the FCPA context are for three years, there have been examples of where either a company was released early from a DPA or a monitorship ended at the 18-month mark rather than the full three years. An example of this is Pride International (now ENSCO) who were rewarded by being released early for its superior enhanced compliance efforts. In the latter category is Weatherford, among others, whose external monitorship can end at 18-months after the execution of the DPA, if sufficient progress is met.
External Monitors
Hanson had some very interesting thoughts about the use of corporate monitors. He has long championed more professionalism for monitors, specifically regarding their training in implementing compliance programs, not simply as very good white-collar defense lawyers or internal investigators. However, in his paper Hanson notes that other concerns have lessened both the effectiveness of external monitors or even their use; when he writes, “Due to past negative publicity arising from problems resulting from poor/immature government agency Monitor selection policies and/or inexperienced and/or ineffective Monitors, government agencies and organizations alike have developed some misperceptions that have led to Monitors being underutilized, even avoided. While some government agencies are still developing or improving Monitor selection policies, many have already adopted policies that addressed past concerns.”
Hanson champions his concerns for monitors with the experience issue. He believes that “many Monitors come from the ranks of whitecollar defense attorneys, who, as noted above, frequently lack the requisite level of compliance and ethics training and knowledge, as well as practical Program experience, to serve in that role most effectively. Additionally, most persons selected to be a Monitor have never been a Monitor before and are unaware of the nuances associated with such a specialized role.” To rectify this issue, Hanson advocates greater monitor training from organizations such as the Society of Corporate Compliance and Ethics (SCCE) or others. Finally, as Hanson notes, “it is of much greater importance to engage a Monitor who is an expert in compliance and ethics rather than one who is an expert on the substantive underlying criminal and/or regulatory violations.”
As usual when John Hanson writes something relating to the compliance field, you should definitely read it. Hanson’s unique background as a forensic auditor, FBI agent and four-time corporate monitor provide valuable insights to any compliance related issue. His current article is no different. You can use many of his insights directly in your compliance program through engaging an outside expert, called monitor or something else, to help move your compliance and ethics program forward on a number of fronts.
Hanson’s article is available through JDSupra by clicking here.
This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.
© Thomas R. Fox, 2014
Filed under: Compliance, compliance programs, Corporate Monitors, Deferred Prosecution Agreement, Department of Justice, FCPA, Monitors 
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