Vince Young taking one more shot at NFL?

Originally published by Reid Laymance .

Is Vince Young going to take one more shot at the NFL?

He has registered for the league’s new veteran combine set for March 22 in Arizona.

One interesting player taking part in the veteran combine on March 22 in AZ? Vince Young. He’s registered. One more shot.

— Ian Rapoport (@RapSheet) February 27, 2015

The veteran combine is for roughly 100 veteran free agents to work out before representatives from all 32 teams. Previously, veteran free agents could work out at the league’s regional combines or for individual teams.

Young, who started for five seasons with the Titans from 2006-10, was last in an NFL camp with the Browns in 2014. He had another try with the Packers in 2013.

He has been working at the University of Texas and with the Longhorn Network since.

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Gulliver’s Travels, Truth or Fiction?

Originally published by tfoxlaw .

There was once a man named Gulliver who traveled widely and wrote a book about his adventures called Gulliver’s Tales. During his first voyage, Gulliver is washed ashore after a shipwreck and finds himself a prisoner of a race of little people, who live in the country of Lilliput. After giving assurances of his good behavior, Gulliver becomes a resident in Lilliput and becomes a favorite of the court. From there, the book follows Gulliver’s observations on the Court of Lilliput. He is also given the permission to roam around the city on a condition that he must not harm their subjects and otherwise engage in illegal, immoral or unethical conduct.

I am continually amazed at how life imitates art because if I told you the following tale you might accuse me of simply making up things to write about. Imagine there is a corporate banking Chief Executive Officer (CEO), whose company signed one of the largest Deferred Prosecution Agreements (DPA) ever a little over two years ago giving assurances of good behavior going forward. Now imagine I tell you that the same CEO has been hiding money for years in a Swiss bank account through a shell corporation for ‘his privacy’ (IE., Hiding money from the Lilliputians of this world). Unfortunately for the real Stuart Gulliver, the CEO at the banking giant HSBC, these facts are true. While his company is in yet another scandal involving its illegal conduct, while under a DPA for its past sins, it turns out the CEO was hiding approximately $7.7MM in a Swiss bank account. To compound this effort to conceal his monies, he did so through a shell Panamanian company.

Yet, just like the fictional Gulliver, the real Gulliver has a very simply explanation for this practice. According to Jenny Anderson, in an article in the New York Times (NYT) entitled “HSBC Chief Defends Swiss Bank Account Worth $7.7 Million”, Gulliver said “This has an everyday explanation to it” and said the explanation was that he was trying to hide the money so his co-workers would not know he much money he made. Or as Anderson wrote, “In an effort to protect his privacy — he was the bank’s top earner — he put the money in Switzerland to hide it from the prying eyes of his Hong Kong colleagues. But he then had to hide it from his curious Swiss colleagues, so he created an anonymous Panamanian company.”

So it turns out that Gulliver was not only trying to hide his money from his co-workers but also from the Swiss by creating a shell corporation to launder the money into before depositing it in Switzerland. Similar to those pesky Lilliputians, who might want to find out something about him that he did not want them to know, as when the fictional Gulliver agreed to not violate the law or engage in otherwise unethical conduct. Of course the real Gulliver has protested that such arrangements were not illegal at the time he engaged in them, side-stepping the question of whether his conduct was unethical (Ethical bankers, does that topic belong in the fiction section?).

Gulliver also went on a charm offensive essentially claiming that not only him but the entire banking industry in general was being picked on. Channeling his inner Mother Theresa, Gulliver was quoted in an article in the Financial Times (FT), entitled “Standards for bankers higher than for bishops, claims HSBC chief Gulliver” by Martin Arnold and George Parker, as saying “It seems to me that we are holding large corporations to higher standards than the military, the church or civil service.” While I am not quite certain as to the pay scale of UK church leaders, I am relatively certain that those in the civil service and military do not have an extra $7.7MM laying around that they need to launder through a Panamanian corporation to hide in a Swiss bank account.

The real Gulliver should have just channeled his fictional Gulliver and said that when in the land of Lilliput, you do not have to tell the Lilliputians the truth, even if you have sworn in a pesky DPA to do so. From the real Gulliver’s statement about bankers being held to higher standards, he obviously think that the church, military and civil service (and probably the rest of us mere mortals) have Lilliputian ethical obligations compared to him.

What does all this mean for prosecuting HSBC in the newly erupted money laundering through its Swiss subsidiary scandal? Well it is great to know your CEO has first hand knowledge of the mechanics of such activities. The appropriate UK authorities or even the US Department of Justice (DOJ) could interview the real Gulliver as a subject matter expert (SME) on not only how to hide money from your fellow employees, but also from the Swiss and even gain insight into such machinations to hide money from your own national tax authorities. The real Gulliver may be a real find for the DOJ as an expert witness, at the trial of his company for breach its DPA.

Further, just think of the credibility the real Gulliver would have in negotiations with the DOJ on whether HSBC broke its promises to do business in compliance with US anti-money laundering (AML) laws when it signed its DPA back in 2012. He could go right into the meeting and say, “Lads, let me dispel any misconceptions you might have about Swiss bank accounts. They exist to hide money. At least that is how I use them personally.” He could then walk the lowly civil servants who work in the DOJ Fraud Section and who have lower standards than the whiter-than-white bankers through how the real world of money laundering works, or at least the real world of multi-millionaires who, for some reason, want to protect their own privacy.

The real Gulliver could answer yet another rhetorical question that he posed, and was reported in the FT article, when he asked, “Can I know what every one of 257,000 people is doing? Clearly, I can’t. If you want to ask the question could it ever happen again – that is not reasonable.” The real Gulliver could then go on to respond to this rhetorical flourish along the lines of the following, But I can tell you what is reasonable, to ask me if I know what I am doing and how I am doing it. I am hiding money in my Swiss bank account through a shell Panamanian company. He might even add, How brilliant is that?

Since the fictional Gulliver lived and traveled over 300 years ago, he may be distantly related to the real Gulliver of HSBC today. Nevertheless for a bank CEO to have laundered his own money through a shell corporation into a Swiss bank account ‘for privacy’ is one of those convergences where truth surely is stranger than fiction.

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, 2015

Filed under: Anti-Money Laundering, Compliance and Ethics, compliance programs, Culture, Department of Justice, Ethical Leadership, Ethics, Tone at the Top, Top Level Commitment

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Transfer on Death (“TOD”) Deeds

Originally published by Mike .

Most of us are familiar with POD or “Pay on Death” provisions in bank accounts, but many are not familiar with real estate passing at death without a will or trust. Among the crop of new legislation being considered by the 84th Texas Legislature is HB 703 – a bill which would establish in Texas for the first time the Transfer on Death deed. It is important to note that a Transfer On Death deed is not the same thing as a “Ladybird” or Enhanced Life Estate deed that is often used in Medicaid planning although a Ladybird or Enhanced Life Estate deed also transfers property on death. It just retains extra powers (i.e., the power to sell, etc.) by the person who owns the property. Since the government (state) often makes a claim against the property of a Medicaid recipient if the property passes by will or intestacy, a Ladybird deed is used so that probate of a will is not necessary to transfer title – thus avoiding a successful recovery by the state against the property.

Under HB703, a person would also be able to execute a deed that will allow the property to pass to a designated beneficiary (or beneficiaries) without the necessity of probate. This sounds great on the surface. After all, who doesn’t want to avoid probate if at all possible?

There is a catch, though, that may make Transfer on Death deeds a less-than-desirable alternative to probate. If a decedent’s estate is insufficient to pay the estate’s debts without the inclusion of the property which is the subject of a Transfer on Death deed, a court proceeding may be brought to enforce the liability by a creditor, a distributee of the estate, a surviving spouse of the decedent, a guardian or other appropriate person on behalf of a minor child or incapacitated adult child of the decedent or any taxing authority. Further, there is a statute of limitations which means creditors, heirs and others have a full two years to bring claims against the property. This has the effect of making clear title to the property uncertain for that two-year period. For that reason, some title companies in Texas have already stated that they will require some sort of court proceeding to clear title when a Transfer on Death deed is used. In that case, the entire rationale for using a Transfer on Death deed–avoiding probate– vanishes. Furthermore, title companies may be conservative and even require a court hearing even if a Ladybird deed is used under the rationale that the state is a creditor. Although this bill may be innocent of attempting to give those with Ladybird deeds a problem, it should be a warning that those with Ladybird deeds should be on high alter and use whatever efforts they can to make sure this bill does not pass. Finally, since the Transfer on Death deed keeps no retained powers (unlike the Ladybird deed) for the grantor, there could possibly be a transfer penalty if the owner of the property (the grantor) applies for Medicaid within five years.

It is always best to consult an attorney before you engage in any estate planning on your own. Sometimes, laws aren’t what they appear to be on the surface.

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One day after winning $532M award, Smartflash hits Apple with fresh patent suit

Originally published by David Yates .

The following day after wining a $532,900,000 jury award against Apple, Smartflash filed a fresh a lawsuit against the tech giant for patent infringement.

On Tuesday, Feb. 24, a Texas jury found Apple had infringed on three of the Tyler company’s patents in a case filed May 29, 2013, in the U.S. District Court for Eastern Texas, Tyler Division.

On Wednesday Smartflash filed a second complaint for patent infringement, alleging violations of the same patents the jury found Apple had infringed.

In its original complaint, Smartflash accused Apple of infringing on several patents for data storage and managing access to the data via payment information, including:

– U.S. Patent No. 7,334,720 issued Feb. 26, 2008;

– U.S. Patent No. 7,942,317 issued May 17, 2011;

– U.S. Patent No. 8,033,458 issued Oct. 11, 2011;

– U.S. Patent No. 8,061,598 issued Nov. 22, 2011;

– U.S. Patent No. 8,118,221 issued Feb. 21, 2012; and

– U.S. Patent No. 8,336,772 issued Dec. 25, 2012.

At trial, the jury found Apple’s infringement of the ‘720, ‘221 and ‘772 patents was willful and that the defendant failed to prove the patents were invalid.

The new suit also alleges violations of the ‘720, ‘221 and ‘772 patents, which relate to software used in Apple’s iTunes Store.

“Apple has actual knowledge of the patents-in-suit at least from the filing of Smartflash’s filing original complaint,” the suit states.

“Apple was aware of the patents-in-suit and knew that the others’ actions, if taken, would constitute infringement of those patents at least because a jury has already found that Apple infringes.”

Smartflash is seeking to enjoin Apple from infringing on its patents.

In the event a permanent injunction preventing future acts of infringement is not granted, Smartflash asks it be awarded a compulsory ongoing licensing fee.

Smartflash is represented by Bradley W. Caldwell, Jason D. Cassady, John Austin Curry, Daniel R. Pearson and Hamad M. Hamad of Caldwell Cassady Curry P.C. in Dallas; and T. John Ward and T. John Ward Jr. of Ward & Smith Law Firm in Longview.

Case No. 6:15-cv-00145

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Criminal Prosecutions Growing in Trade Secret Cases

Originally published by joe .

Trade secret theft has been a federal crime since 1996, with the passage of the Economic Espionage Act. But it wasn’t until 2010, with the U.S. Justice Department’s creation of the Task Force on Intellectual Property, that it became more common for federal prosecutors to bring trade secret cases.

The prospect of a criminal prosecution significantly raises the stakes for executives who have been accused of stealing an employer’s or a former employer’s trade secrets. If a former employer files a civil lawsuit against you, the potential downside is usually limited to an injunction and/or monetary damages. If you’re prosecuted criminally, you could be spending a few years in an orange jumpsuit.

Although the threat of criminal charges are a powerful deterrent to intentional theft of trade secrets, it’s also a Sword of Damocles hanging over the head of executives who have access to confidential information but no intention to ever steal it. As I’ve learned over years of representing those executives, what constitutes both “theft” and “trade secret” is open to a wide range of interpretation that frequently takes a judge or a jury to decide.

But there’s also a downside for companies that resort to criminal prosecution. First, you have to convince a prosecutor to press charges, and even if they do, the burden of proof in criminal court is higher than in civil court. And if you get a conviction, it doesn’t undo the damage that was done by the theft. If you file a civil lawsuit, at least you have a chance at recovering damages.

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A Measle-ly Lawsuit: Can Parents Who Don’t Vaccinate their Children be Sued?

Originally published by Alex Fuller .

Yearning to leave the frozen wasteland of Dallas, Texas behind her if just for a moment, Penny McCrathy, an outspoken anti-vaccination advocate, took her unvaccinated children to Disneyland in Anaheim, California. Not knowing that her children had been exposed to measles by a foreign tourist, Penny brought them back to Texas and sent them back to public school, which they attended under a vaccination exemption based on their “personal beliefs”. One week later, her children came down with measles as well. Most of the children in their school were immunized, but unfortunately one young lady, Ima Munenot, had a severe immunodeficiency disorder and could never receive vaccinations. One week after the McCrathy kids came down with measles, so did Ima – but while the McCrathy children got over the disease, Ima was hospitalized with meningitis and nearly died. In addition to their emotional trauma, Ima’s family incurred tens of thousands of dollars in medical expenses. Might Ima’s family have a legal case against Penny for refusing to vaccinate her children and exposing Ima to a deadly disease?

Perhaps. Texas law recognizes a cause of action for the negligent transmission of infection diseases – for instance, plaintiffs have litigated and won cases involving the negligent transmission of genital herpes. Although there are no cases to date involving the negligent transmission of measles where the negligent act is a failure to vaccinate a child, it is certainly possible that a plaintiff might prevail on such a case if they can prove the essential elements of a negligence cause of action: (1) the existence of a duty from the defendant to the plaintiff, (2) breach of that duty, (3) harm to the plaintiff, and (4) that the breach of the duty caused the harm. The two greatest hurdles to a successful lawsuit in this case are duty and causation.

Is there Causation? Ima’s parents must prove both that Penny’s actions in failing to vaccinate her children was both the cause-in-fact of Ima’s disease and that the injury was foreseeable. According to a recent article in the Journal of Law, Medicine and Ethics, medical science can trace the spread of measles from person to person with a high degree of probability both through laboratory and epidemiological studies. It is thus very likely that Ima’s parents can prove that Penny’s children were the source of Ima’s measles. A jury could certainly find that Penny should have foreseen that Penny’s failure to vaccinate her children might spread the disease to others.

Is There a Duty? The larger hurdle for Ima is proving the existence of a duty. Courts, in determining whether a duty exists, traditionally apply a “risk-utility” test comparing the risk of harm by the actor against the social utility of the actor’s conduct. In this case, Penny’s conduct in not vaccinating her children has zero social utility and the risk is high: measles is one of the leading causes of death among young children and the measles vaccine is safe, readily available and inexpensive. Additionally, Texas statutes require that all children be vaccinated. However, those same statutes also state that a failure to comply with the statute requiring vaccination does not create a cause of action, and further that there is a statutory exemption for persons who sign an affidavit stating that they do not wish to vaccinate their children for “reasons of conscience”. In addition, persons who refuse to vaccinate their children for religious reasons may be protected by the Texas and United States Constitutions. Thus, Penny likely has a strong legal argument that she is not liable for Ima’s illness.

Tilting the Scales in Your Favor. The best protection against measles is vaccination, not litigation. However, infants and persons with suppressed immune systems cannot get vaccinated. Parents of children who cannot be vaccinated should demand that schools protect vulnerable students by banning unvaccinated children from attending school during outbreaks of measles and other diseases. In the worst case scenario, however, the threat of litigation may convince parents who are on the fence to have their children vaccinated.

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Attack of the Quarter Horse Clones

Originally published by Laws For Paws .

Scientists cloned Dolly the sheep in 1996. In 2003, the first horse was cloned and the field is advancing quickly. Want to clone your Texas Longhorn or favorite Collie? Today, you can hire a Texas company called ViaGen to clone not only your cow or dog, but also your horse, goat, pig, or cat.

Many breed associations prohibit clones, including the Jockey Club (thoroughbred registry) and the American Quarter Horse Association (AQHA). Because the AQHA refuses to register clones, these animals cannot compete in Quarter Horse racing or AQHA sanctioned horse shows.

In 2012, some Texas breeders brought a lawsuit against the AQHA, alleging that this refusal to register clones violated the Sherman Act.

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Aetna seeks $120M from Cypress Medical Center for illegal ‘kickbacks’

Originally published by David Yates .

The Aetna Life Insurance Company has brought a fraudulent billing case against the North Cypress Medical Center and its CEO, Dr. Robert Behar.

The suit was filed Monday, Feb. 23 in the U.S. District Court for Southern Texas, Houston Division.

According to the complaint, North Cypress is a 139-bed community hospital with publicly reported annual gross revenues in excess of $1.5 billion dollars a year – an amount that is more than twice that of other nearby hospitals that have substantially more patient volume and provide a wider array of medical services.

“North Cypress’ extraordinary revenues, which make it an extreme outlier in the healthcare industry, were not achieved by creating a higher quality and more efficient hospital facility, but rather, through a fraudulent billing scheme that was masterminded by Dr. Robert Behar,” the suit states.

“The scheme includes paying illegal kickbacks to physicians in exchange for patient referrals disguised as ownership interests in North Cypress, charging grossly excessive fees, implementing improper billing techniques, and forgiving members’ financial responsibility … in order to make the scheme work.

“Absent this, patients would not knowingly be treated at North Cypress and agree to pay much higher out of pocket amounts required under the terms of their plan, when they could get the same services at a fraction of the cost at hospitals in Aetna’s network within close proximity of North Cypress.”

The suit goes on to accuse Dr. Behar of using his “Physician Vital Statistics,” which he calls his “sacred reports,” to track the volume and value of each physician’s referrals to North Cypress. Lots of referrals result in him allowing physicians to not only become owners in North Cypress, but also increase their ownership interests. Physician owners who do not refer enough patients are squeezed out.

Aetna maintains that Dr. Behar’s “out-of-network” business scheme has caused the company to overpay North Cypress as much as $120 million since Jan. 1, 2009.

“The financial harm inflicted on Aetna and the healthcare system was not by happenstance, but by pure design. Dr. Behar intended to harm Aetna as part of his greed and personal vendetta against the managed care industry and, in fact, routinely expressed his desire to bilk Aetna and other payors,” the suit states.

“For example, on one occasion following an increase of North Cypress’ already outrageous fees, Dr. Behar sardonically told an employee in North Cypress’ billing department that ‘I am sure happy you jacked up those rates. I have nothing but sympathy for Aetna.’”

Aetna is alleging violations of the Racketeer Influenced and Corrupt Organizations Act and Texas Insurance Code, in addition to allegations of tortious interference and breach of contract.

On top of actual damages in the amount of $120 million, Aetna seeks recovery of treble, consequential and incidental damages, plus attorney’s fees.

Aetna is represented in part by Andrews Kurth LLP.

Case No. 4:15-cv-00491

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Apple hit with half billion patent infringement verdict

Originally published by David Yates .

A Texas jury levied a $532,900,000 verdict against Apple on Tuesday, finding the tech giant infringed on three patents owned by a Tyler company. As previously reported, Smartflash filed suit against Apple on May 29, 2013, in the U.S. District Court for Eastern Texas, Marshall Division. In its original complaint, Smartflash accused Apple of infringing on several patents for data storage and managing access to the data via payment information, including:

– U.S. Patent No. 7,334,720 issued Feb. 26, 2008;

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BP Oil Spill Fines

Originally published by By Muhammad Aziz .

Last Thursday, a federal judge in New Orleans denied BP’s request to limit its environmental penalties for the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. Setting this fine is the final step in a civil case regarding the April 20, 2010 blowout of BP’s Macondo subsea well, which caused the spill. Following the blowout, a sea-floor oil gusher flowed for eighty-seven days. The Deepwater Horizon oil spill is considered the largest accidental marine oil spill in the history of the petroleum industry.

Judge Carl Barbier had previously ruled that BP had acted with gross negligence. BP argued that the Clean Water act capped the fine for such cases at $3,000 per barrel of oil spilled. Furthermore, BP maintained that the fine should reflect the company’s extensive cleanup efforts in the Gulf. However, the United States Justice Department lawyers contested that Congress validly instructed the Environmental Protection Agency (EPA) to raise the statutory maximum fines to account for inflation. Judge Barbier agreed, finding that the EPA had the authority to adjust fines to comply with the Inflation Adjustment Act. The EPA set maximum environmental fines for $4,300 for each barrel of crude oil spilled. The Coast Guard set penalties at $4,000.

The court has not yet determined when it will set the fine, but if the EPA’s figures are used the fine could run as high as $13.7 billion based on the earlier finding that 3.19 million barrels spilled into the Gulf. BP has already incurred costs in excess of $42 billion for the spill, including cleanup, compensation to victims, and fines.

In addition to causing the oil spill, the blowout triggered an explosion that killed eleven workers on the Deepwater Horizon drilling rig.

Certain types of work present unique risks for employees, but when someone is injured or dies due to an employer’s negligence, financial recovery may be available. If you or someone you know has been injured on an oil rig, contact an attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend by calling 713-222-7211 or toll free at 1-800-870-9584.

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Kansas v. Nebraska (Feb. 24, 2015)

Originally published by SupremeCourtHaiku .

Water rights dispute

The Republican River

Nebraska must pay

Opinion

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Petition seeks mesothelioma patient’s asbestos exposure history at Mobil Oil

Originally published by David Yates .

Beaumont resident Mary Albright has filed a petition to perpetuate the testimony of Carl Albright, who allegedly suffers from mesothelioma.

Through Provost Umphrey attorney Keith Hyde, the petition was filed Feb. 17 in Jefferson County District Court. The anticipated defendant in the pending suit is ExxonMobil.

According to the petition, Carl Albright was diagnosed with mesothelioma, which “is expected to progress” and prove fatal.

The petition seeks his testimony concerning his employment and asbestos exposure at Mobil.

“Petitioner has or is notifying the above listed defendants that a gross negligence, wrongful death lawsuit against the defendants will be instituted by petitioner for certain damages alleged Mr. Albright’s serious condition was a result of exposure to asbestos and asbestos-containing substances during his employment with Mobil,” the petition states.

The petition asks the court to authorize his deposition.

Judge Donald Floyd, 172nd District Court, is assigned to the case.

Case No. E196-695

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Wal-Mart settles EEOC age discrimination claim for $150K to avoid further litigation costs

Originally published by David Yates .

Seeking to avoid further litigation costs, Wal-Mart recently settled an age discrimination claim brought by one of its fired managers, agreeing to pay the former employee $150,000.

On behalf of David Moorman, the Equal Employment Opportunity Commission filed suit against Wal-Mart Stores of Texas on March 12, 2014, in the U.S. District Court for Northern Texas, Dallas Division.

The EEOC alleged that since February 2011, Wal-Mart engaged in unlawful employment practices, violating the Age Discrimination Employment Act by subjecting Moorman, 54 at the time of his termination, to a hostile work environment before firing him on July 11, 2011.

“Moorman was discriminated against, having been harassed by his direct supervisor, Market Manager Teddy Martyniuk. Among other age-based discriminatory comments and conduct, Martyniuk repeatedly referred to Moorman as “‘old man,’” the suit states.

“Moorman reported the age-based comments and harassment to Defendant’s Regional Human Resources Manager. The Defendant failed or refused to take prompt effective remedial measures to prevent and correct the harassment.”

Court records show Wal-Mart answered the suit on July 16, asserting, among other defenses, that Moorman failed to exhaust his administrative remedies before bringing the claim.

However, court records further show the EEOC “endeavored to eliminate the unlawful employment practices through informal conciliation methods, but was unable to secure from Defendant a conciliation agreement acceptable to the commission.”

On Feb. 17 a consent decree was entered in the record, stating the parties agree to compromise and settle the differences embodied in the EEOC’s complaint.

“This consent decree is not an admission of liability by Walmart, which joins this consent decree to avoid the disruption, costs, delay and expense of continuing this litigation.”

On top of agreeing to pay Moorman $150,000, Wal-Mart also consented to providing EEO training for its employees.

The EEOC is represented in part by attorney David Lopez.

Attorney David Livingston represents Wal-Mart.

Case No. 3:14-cv-00908

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Not wearing a seat belt may cost you more than a ticket

Originally published by Southeast Texas Record .

If an injured football player did not have his helmet secured properly, can he still sue the sports equipment manufacturer – and diverse others – for damages? What about the skydiver and the bungee jumper and every other daredevil with a harness who ever gets hurt? Are they not responsible for securing themselves properly (assuming they’re not novices)? Are claims they make against other parties for injuries sustained not offset by their own negligence?

What about a person who drives without a seat belt? Does the driver not share responsibility for injuries received in an accident that might not have occurred while belted?

Whether you believe in seat belt laws or not, the fact remains that Texas has one.

The upshot of this is that wearing a seat belt can be construed as part of the proper operation of a motor vehicle, and not wearing one a kind of negligence.

For the past 40 years, however, evidence of a driver’s or passenger’s failure to fasten the seat belt has been considered inadmissible in Texas court. According to a 1974 state supreme court ruling, an unbuckled plaintiff suing for injuries sustained in an accident enjoyed “safe harbor from the harshness of an all-or-nothing scheme that barred recovery for even the slightest contributory negligence.”

But surely a defendant ought not to be held responsible for injuries that might have been less severe, or not sustained at all, if the plaintiff had worn a seat belt.

From this point forward, the defendant won’t be. Just this month, the Texas Supreme Court overturned the 1974 ruling, and from now a plaintiff not wearing a seat belt at the time of an accident may find any award reduced by an assessment of the plaintiff’s contributory negligence.

Maybe, if we let people suffer the economic consequences of their actions, they can learn to make intelligent decisions for themselves, and our state and federal nannies can suspend their patronizing “Click It or Ticket” campaigns.

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January 1996 – East Texas Slang

Originally published by State Bar of Texas .

From Raymond W. Cozby, III of Tyler (Cowles & Thompson), this closing argument made by his brother, Andrew J. Cozby, the prosecutor in a criminal trial in Houston:

Mr. Cozby: Members of the jury, I appreciate your patience during this trial. I’m going to be talking quick because my time is limited. If you can follow this East Texas slang I appreciate it because I’m going to be going over some important points.

Number One: What we call in East Texas — if you’ve ever seen a dog chasing a rabbit, sometimes they will get off on some rabbit’s trail. That’s a false trail that leads off in a circle. And a dog will get off on a false trail from where the rabbit really is.

Defense Attorney: Your Honor, I object to being called a dog.

Mr. Cozby: Your Honor, I except to that, I was calling him a rabbit.

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Nix the Acronyms

Originally published by lawschool academicsupport .

The Legal Skills Prof Blog recently posted this reference to a short piece on acronyms. I agree that acronyms and other abbreviations can cause confusion, ruin the flow of an essay, and cause the reader frustration. The article suggests a…

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Mindfulness matters in law school

Originally published by Guest Blogger .

Just as I finished answering a student’s question, another hand went up. When I gave that person the floor, he asked the exact same question I just answered. Some of his classmates giggled while others rolled their eyes. The student, however, gave me a surprised look, observed the class’s reaction, and then whispered, “What?” I tried to suppress my frustration, but part of me really resented his presence “in body only” and his lack of desire to pay attention.

Or was it a lack of ability to stay focused?

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The NCAA Committee on Infractions Has Spoken: West Virginia University 2015

Originally published by Christian Dennie .

The NCAA Committee on Infractions (“Committee”) recently issued its findings and found that West Virginia University (“WVU”) committed violations of NCAA legislation. After the investigation concluded the case was submitted to the Committee through the summary disposition process, which is an alternative to a formal hearing before the Committee that may be utilized when the NCAA enforcement staff, the member institution, and involved individuals agree to the facts of an infractions case and that those facts constitute violations of NCAA legislation.

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Personal Representative’s Lawyer Doesn’t Have Duty to Successor

Originally published by Gerry W. Beyer .

The beneficiary of an estate succeeded in removing the personal representative and having himself appointed as the successor. He then sued the law firm who had represented his predecessor for professional negligence and breach of fiduciary duty relating to duties…

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“Vandalism And Malicious Mischief” Can Include An Intentionally Set Fire (Arson)

Originally published by Shaun Marker .

Some courts across the country have determined whether arson is included within an exclusion for “vandalism and malicious mischief.” This issue arises under the vacancy type of exclusion within property insurance policies. Florida appellate courts had not spoken directly on this issue, until just recently.1

The case involved an intentionally set fire (arson) at a property vacant for over thirty consecutive days before the loss. The policyholder filed a claim with Southern Fidelity, which denied coverage claiming the intentionally set fire was an act of “vandalism and malicious mischief” and excluded by the vacancy exclusion from the policy since it was vacant for thirty consecutive days before the loss. The policyholder maintained that the vacancy exclusion provision “vandalism and malicious mischief” did not refer or reference “fire” or “arson” and so the policy should be interpreted in favor of coverage for the policyholder. The…

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Eight grants of review for oral argument in March [Feb. 20, 2015]

Originally published by Don Cruse .

With today’s orders list, the Texas Supreme Court granted review in eight cases to be heard in March. It did not issue any opinions.

The first two petitions on this grant list have the added distinction of being grants of rehearing. The Court originally denied both on October 3, 2014. Today’s orders reinstate them and set them for argument.

Details about each case will appear in this blog post as they are added to my system.

Grants of Review and Rehearing

KACHINA PIPELINE COMPANY, INC. v. MICHAEL D. LILLIS , No. 13-0596

Chosen for future argument by order issued February 20, 2015

GREATER HOUSTON PARTNERSHIP v. KEN PAXTON, TEXAS ATTORNEY GENERAL AND JIM JENKINS , No. 13-0745

Chosen for future argument by order issued February 20, 2015

Grants

BCCA APPEAL GROUP, INC. v. CITY OF HOUSTON, TEXAS , No. 13-0768

Chosen for future argument by order issued February 20, 2015

LAURA BEEMAN AND JANET LOCK v. BRAD LIVINGSTON, IN HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE , No. 13-0867

Chosen for future argument by order issued February 20, 2015

ROYSTON, RAYZOR, VICKERY, & WILLIAMS, LLP v. FRANCISCO (FRANK) LOPEZ , No. 13-1026

Chosen for future argument by order issued February 20, 2015

MIRTA ZORRILLA v. AYPCO CONSTRUCTION II, LLC AND JORGE LUIS MUNOZ , No. 14-0067

Chosen for future argument by order issued February 20, 2015

IN RE ROYSTON, RAYZOR, VICKERY, & WILLIAMS, LLP , No. 14-0109

Chosen for future argument by order issued February 20, 2015

SEABRIGHT INSURANCE COMPANY v. MAXIMA LOPEZ, BENEFICIARY OF CANDELARIO LOPEZ, DECEASED , No. 14-0272

Chosen for future argument by order issued February 20, 2015

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Hackathon will focus on legal access

Originally published by Hannah Kiddoo .

Can an app help the vulnerable and powerless gain access to justice? During this weekend’s Tech for Justice Hackathon+, attorneys, law students, programmers, and concerned stakeholders will gather in Austin to develop technology that could serve those in need of legal services.

On Feb. 21-22, Hackathon+ participants will focus on two problem sets—one addressing co-parenting conflicts and one focusing on the needs of courts as they monitor the estates of people under guardianships—and work together to produce proof of concepts and prototypes that tackle the issues at hand. At the end of the event, a winning team will take home $1,000. All will be encouraged to continue to develop their ideas through mentoring, data sharing, and partnerships.

According to event coordinator Hannah Hubbard, the idea of Hackathon+ started from a Texas Legal Services Center conversation about developing apps that would assist parents who are going through divorce and child custody. Shared parenting and guardianship issues were selected as a focus because the two areas create some of the most case backlogs. The hackathon has partners from several legal and judicial institutions, including the Texas Judicial Council, Legal Services Corporation, and the Supreme Court of Texas. Chief Justice Nathan L. Hecht will deliver the event’s opening remarks.

“If we can develop ways to help these processes run more smoothly, it will be of benefit to both the court system and those dealing with these issues,” Hubbard said.

There is no cost to participate in Tech for Justice Hackathon+, which will be held at Captial Factory, 701 Brazos St., Austin 78701. To sign up and learn more, go to techforjustice.org.

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State Bar of Texas Member Discount Program

Originally published by Joanna Herzik .

Save money, get your home office in order – two things you can do with offers from your State Bar of Texas Member Discount Program!

Is it time to upgrade your computers? You’re eligible for discounts from major manufacturers.

Lenovo offers discounts on its entire product line. Save from 5% to 20% off on ThinkPad and IdeaPad laptops and IdeaCentre desktops. Plus, save even more with ecoupons and limited-time offers.

State Bar of Texas members can get up to 10%, 20%, 30% or more off select configurations of Dell systems. Every PC comes with a 30-day price guarantee. Check the website for monthly specials.

Save up to 30% when you shop with HP , plus get access to exclusive discounts. Shipping is free, and you have access to a dedicated sales team. Plus, save on hundreds of other supplies (ink, toner and paper).

The Toshiba Direct Members Purchase Program gives you up to a 30% discount and exclusive, weekly special offers. Build a laptop to your own specifications with customizable options, or check out the clearance store that offers a great value on Toshiba laptops.

Maybe it’s time for a new printer or other office supplies. Save on products from Canon – both new and refurbished. Get 10% off at Office Depot , both online and in your local store. If you go through a lot of ink or toner, EcoInk can save you 30%-70% off big box prices.

Make sure your important data and projects are protected with CMS Products BounceBack . It’s a recovery solution for your notebook or desktop, and you’re eligible to save 25% on it and all other CMS products. BounceBack Ultimate includes an external USB 3.0 hard drive and instant recovery software.

If you have children and are concerned about their Internet usage, monitoring solutions from imView can bring you peace of mind. If security is your focus, check out McAfee LifeSafe and be safe from virus and malware on ALL the devices in your home. Get it today at 50% savings.

For more information on these and other discounts you’re eligible for as a member of the State Bar of Texas, visit texasbar.com, click “For Lawyers” then select “Review Member Benefits and Discounts” from the Benefits section.

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Houston Legal Links 2/20/15

Originally published by Mary Flood .

Top legal news includes: FTC Moves To Block Sysco-US Foods Merger; Judge, Lawyers Discuss Jury Verdict In Houston Equal Rights Ordinance Case; Judge rejects BP appeal on cap for Gulf oil spill liabilities; Austin Gay Couple Becomes First to Wed in Texas, Despite Ban; Death row inmate found dead in Harris County jail; Firefighter collapses at the scene of home blaze; Racially charged recording leads to internal investigation; Houston attorney to the stars talks about high profile cases; Why your company needs a sublease clause; Litigator of the Week: $15.7 Million Patent Verdict Win (Texas Lawyer); 85-year-old Houston woman fighting to legalize marijuana; Texas Has Quite Literally Run Out of Places to House Violent Sexual Predators; Trial begins for parents suing Boy Scouts for $50M; Hugo v. Hugo lawsuit reportedly settled; Texas pet detectives work to track down dog thieves; Bill: Judge Education for Unaccompanied Minor Cases (Texas Lawyer); State of Texas Salary Data Updated; Union rejects latest offer in national oil workers strike; Oil’s pain is Wal-mart’s gain & BP expects OPEC to outpace U.S. shale.

For the water cooler: Which State Is Limiting How Many Times You Can Pee During The Bar Exam?; Lawmaker is federally indicted over $3.7M in claimed payments by law firms; Federal judge nixes TRO on new Chicago Cubs signs sought by rooftop seating companies; Cooley Law Can’t Even Buy An Ad Without Screwing Up; Unlikely allies back new group promoting criminal justice reform; Standard Of Review: Judging The Movie ‘The Judge'; An Unemployed Lawyer’s Words Of Wisdom: Not All Of Us Are ‘Financially Stable’; Should state concealed-carry permits have the same nationwide reach as drivers’ licenses?; Ex-clients sue Winstead contending ‘countless mistakes’ on loan workout cost them $20M & For a second time, one-day sentence in child-porn case is overturned.

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Authorities Raid New York Engineering Over Superstorm Sandy Fraud

Originally published by Charles Mathis .

On Wednesday, February 18, 2015, the New York Attorney General’s office executed a search warrant at the offices of GEB HiRise Engineering in Uniondale, New York in a criminal probe over allegations of fraudulently changed engineering reports for Superstorm Sandy flood claims.

If you have been watching the news lately, you’ve probably seen a story or two about fraudulently changed engineering reports in the wake of Superstorm Sandy. Alternatively if you’ve been following this blog, you’ve undoubtedly seen several posts concerning this issue—Chip Merlin’s post: Altered Engineering Reports Must Be Disclosed – Sandy Flood Judge Requires Transparency, or Robert Trautmann’s post: New Jersey Senator Menendez Calls for Investigation into Manipulated Expert Reports, or my previous post: New Jersey Federal Courts Expect Flood Carriers to Turn Over All Draft Engineering Reports on Superstorm Sandy Claims.

While a different engineering firm has been at…

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Authorities Raid New York Engineering Over Superstorm Sandy Fraud

Originally published by Charles Mathis .

On Wednesday, February 18, 2015, the New York Attorney General’s office executed a search warrant at the offices of GEB HiRise Engineering in Uniondale, New York in a criminal probe over allegations of fraudulently changed engineering reports for Superstorm Sandy flood claims.

If you have been watching the news lately, you’ve probably seen a story or two about fraudulently changed engineering reports in the wake of Superstorm Sandy. Alternatively if you’ve been following this blog, you’ve undoubtedly seen several posts concerning this issue—Chip Merlin’s post: Altered Engineering Reports Must Be Disclosed – Sandy Flood Judge Requires Transparency, or Robert Trautmann’s post: New Jersey Senator Menendez Calls for Investigation into Manipulated Expert Reports, or my previous post: New Jersey Federal Courts Expect Flood Carriers to Turn Over All Draft Engineering Reports on Superstorm Sandy Claims.

While a different engineering firm has been at…

.

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Ohio supreme court strikes down local regulation of oil and gas operations

Originally published by Norton Rose Fulbright .

On February 17, 2015, the Ohio Supreme Court issued a long-awaited opinion in State ex rel. Morrison v. Beck Energy Corp. The Court, in a divided opinion (3-1-3), held that Ohio’s Home Rule Amendment does not allow a local municipality to enforce its own permitting scheme in addition to the statewide scheme adopted under Ohio Revised Code Chapter 1509.

The case arose after Beck Energy Corporation (Beck) obtained a permit from the Ohio Department of Natural Resources (ODNR) in 2011 to drill an oil and gas well within the city limits of Munroe Falls, Ohio. Munroe Falls then obtained a permanent injunction from a trial court blocking the drilling until Beck complied with five local ordinances. These local ordinances required Beck to:

1. obtain a “zoning certificate” from the local zoning inspector


2. retain the zoning certificate for one year prior to commencing drilling


3. pay a fee of $800


4. pay a deposit of $2,000 for a performance bond


5. hold a public hearing for all property owners and residents within 1,000 feet of the proposed well head three weeks prior to commencing drilling operations

Munroe Falls claimed it was entitled to enforce its ordinances pursuant to the Ohio Home Rule Amendment. However, the Court, in a plurality opinion, reasoned that a municipal ordinance must yield to a state statute if:

1. the ordinance is an exercise of police power, rather than of local self-government


2. the statute is a general law


3. the ordinance is in conflict with the statute

The Court determined that all three elements were satisfied and, therefore, the Monroe Falls ordinances had to yield to Chapter 1509. First, the Court held that the local ordinances in question constituted an exercise of police power because they prohibited the act of drilling without a municipal permit. The Court then determined that Chapter 1509, and specifically Section 1509.02, qualified as a general law because it operates uniformly throughout the state, notwithstanding the fact that not all parts of Ohio are capable of producing oil and gas. Finally, in the plurality opinion, the Court held that the ordinances conflict with the statewide scheme because they restrict activities which the state framework allows.

Notwithstanding the potentially broad scope of this holding, the plurality limited its judgment to the type of double-licensing ordinances at issue in Munroe Falls and declined to rule on whether other local ordinances could coexist with Chapter 1509.

In his concurrence, Justice O’Donnell concurred with the plurality’s determination that Section 1509.02 preempts local permitting ordinances regulating construction and operation of oil and gas wells within the municipality. Because the Munroe Falls ordinances would have required a city permit and compliance with the city’s regulations on technical aspects of drilling, Judge O’Donnell joined in the plurality’s judgment. He emphasized, however, that the appeal before the Court did not present the issue of local land use ordinances that address only traditional concerns of zoning laws, and whether a municipality has the authority to enact such ordinances remained to be decided.

In an opinion joined by two other justices (who also wrote separately), Justice Lanzinger dissented on the grounds that it was not clear to her that the zoning ordinances at issue actually conflict with the statute. The dissent points to other Ohio laws in which the legislature expressly prohibited the enforcement of local zoning ordinances as part of a statewide statute, and notes that Section 1509.02 does not specifically prohibit local zoning regulation.

The dissent argues that municipalities may supplement general law with non-conflicting zoning ordinances. The dissent would, therefore, have remanded to the court of appeals to examine whether the Munroe Falls ordinances could be enforced as zoning regulations that supplement, rather than supplant, the statewide regulation of oil and gas drilling.

Notably, and in contrast to the Pennsylvania Supreme Court’s 2013 position in Robinson Township v. Commonwealth , both the concurrence and one of the dissenting opinions suggested that the Ohio legislature could entirely override all local zoning ordinances that affect oil and gas development by simply making such language explicit in Chapter 1509. Read Norton Rose Fulbright’s white paper on the Robinson Township decision.

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This article was prepared by Janet McQuaid (janet.mcquaid@nortonrosefulbright.com or +1 724 416 0427) , Jeremy Mercer (jeremy.mercer@nortonrosefulbright.com or +1 724 416 0440), Shannon DeHont (shannon.dehont@nortonrosefulbright.com or +1 724 416 0431) and Michael Gaetani (michael.gaetani@nortonrosefulbright.com or +1 724 416 0429) from Norton Rose Fulbright’s Energy Practice.

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This and that: Knee replacements, privacy fails, and jurors advising judges

Originally published by Douglas Keene .

From time to time, we bring you tidbits that we don’t want to devote a whole blog post to but still find interesting. Today we’ll cover medical implants that are not FDA approved, the belief that social media has killed privacy, and a novel experiment in which jurors help judges make sentencing decisions.

You might want to make sure that medical device is FDA approved…

This one is hard to believe but a non-FDA approved medical device was sold (and ostensibly used) about 18,000 times before the government shut it down. The device was the OtisKnee which was used in surgeries for knee replacement. It is essentially like a specialized carpentry device which allowed the surgeon to line up a bone saw precisely and (allegedly) speed both surgery and recovery. The corporation making OtisKnee had not sought FDA approval and when they did, they were rejected due to failing to prove the product safe and effective. Read more about this situation at Pacific Standard magazine and remain aware of how easy it is, in the $110 billion a year medical device industry, for tools to be used quite widely without FDA approval.

Privacy is dead in the age of social-networking

Most of us likely won’t find this hard to believe but it is still eye-opening. In September and October of 2014, 6,063 adults were surveyed about privacy in the age of social media. What is unusual, is that the sample included people from all around the world— and in every country— the majority believe privacy is dead.

There was no real difference between the scores in developed versus developing countries. We all seem to know (at least intellectually) there is no longer any real privacy. The article itself lists a couple of apps to use to enhance your privacy. One allows you to create “self-destructing social media posts” and another lets you “securely share” an image with specific Facebook friends only—all other friends “see a picture of a kitten” instead. These probably won’t work to keep your social media presence entirely invisible but they appear to help keep what you don’t want public hidden (for now).

Judges asking for sentencing recommendations from jurors who heard the case

One of the questions sometimes posed to jurors is whether the conduct of the litigants reflects how they want business to be conducted in their community. It takes the question from a purely legal one to one that has a relationship to their day-to-day lives, their values, and their belief about business and society. In other words, it taps into their community sense of justice. And here’s a story of a judge asking jurors for their sense of community justice. This was a case involving an unrepentant man convicted of “possessing, receiving, and distributing child pornography” with more than 1500 sexually explicit images of children on his computer (some less than 12 years old). The prosecutor wanted 20 years (the statutory maximum). The judge polled the jurors and the average of their sentence recommendation was only 14 months. The judge then sentenced the defendant to “the statutory minimum of five years in prison”. The article itself has multiple perspectives on whether the judge should have done this polling and then apparently made a decision for sentencing informed by juror sensibilities. It is well worth reading.

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Related posts:

1. Judges are biased in favor of psychopaths whose “brains made them do it”


2. Was Sonia Sotomayor right about female judges?


3. What do those jurors really know about science and technology?

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National Lloyds losses appeal of $817K verdict, gets modified judgment

Originally published by David Yates .

In May 2013, a Jefferson County jury found National Lloyds Insurance committed deceptive trade practices in the handling of a policy claim following Hurricane Ike, awarding the plaintiff in the civil suit nearly $1 million in damages.

On Thursday, justices seated on Texas’ Ninth Court of appeals affirmed the lower court judgment that followed and modified the amount of damages awarded.

The trial focused on whether National Lloyds Insurance and Compass Adjusting Services failed to fully compensate Latosha Lewis following Hurricane Ike.

Lewis had filed suit against the two companies on Sept. 9, 2010, in Jefferson County District Court. The case went to trial on April 29, 2013 and ended May 20, 2013.

Court records show jurors found National Lloyds failed to honor its policy with Lewis, engaged in deceptive trade practices when handling her claim, and are guilty of breach of good faith dealing.

Jurors awarded Lewis $265,757 in actual and additional damages, $300,000 in exemplary damages and $350,000 in fees to her attorney Clint Brasher.

The presiding judge, Judge Gary Sanderson of the 6oth District Court, rendered judgment on the jury’s verdict on June 27, 2013, awarding Lewis the sum of $871,738.06, plus taxable court costs, post-judgment interest, and conditional appellate attorneys’ fees.

In September 2013, National Lloyds appealed, challenging:

– The legal sufficiency of the evidence supporting the jury’s findings for causation and damages;

– Judge Sanderson’s inclusion in the charge of an instruction regarding waiver and its refusal to include an instruction on spoliation; and

– His rendition of a judgment that allegedly failed to force Lewis to make an election of remedies.

According to the opinion, the Ninth Court modified Judge Sanderson’s judgment to award Lewis Deceptive Trade Practices Act damages of $200,468.07, trial attorney’s fees in the amount of $300,000, appellate attorney’s fees in the amount of $20,000, contingent appellate attorney’s fees for proceedings in the Supreme Court if National Lloyds petitions for review, prejudgment interest in the amount of $15,822.24, prompt payment damages of $45,791.13, costs of $20,563.05, and post-judgment interest at the rate of five percent.

Case background

According to the lawsuit, on Sept. 13, 2008, Ike struck, causing serious damage to Lewis’ property. Following the hurricane, she filed a claim with Lloyds, needing compensation to repair her Beaumont home.

“The claim was not properly investigated or paid,” the suit states. “Lloyds hired Compass to adjust the claim. The adjuster assigned to the claim failed to conduct a thorough and complete inspection of the property.”

According to testimony during the trial, Lewis’ roof was previously damaged during Hurricane Rita. Her insurer compensated her and recommended she replace the roof. However, she used the money to repair the roof instead.

On May 8, 2013, the jury heard testimony from one of the defendants’ adjusters, who testified Lewis would have had to replace her roof after Hurricane Rita to compensate for roof damages following Hurricane Ike, since the insurer does not pay for damages twice.

On appeal, Lewis’ counsel argued that at the root level, “this is a simple case: before Hurricane Ike, Latosha Lewis’s roof did not leak; after Ike, her roof leaked every time it rained, despite all of her efforts at repairs.

“National Lloyds refused to pay anything for her Ike claim and, at the same time, gave invalid reasons for denying coverage,” the brief states.

Thereafter, Lewis’s home deteriorated and ultimately to be completely demolished and rebuilt. This case is also a poster child for why many people do not trust insurance companies.”

Lewis is represented in part by Beaumont attorney Clint Brasher.

Trial case No. B188-072

Appeals case No. 09-13-00413-CV

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Insurance Executive Pleads Fifth Over Altered Reports During Superstorm Sandy Hearing

Originally published by Chip Merlin .

Catastrophes breed controversies. Superstorm Sandy has a raging one involving altered engineering reports. Yesterday, Jeff Moore, a flood insurance executive with one of the largest National Flood Insurance participating insurers, pleaded the Fifth Amendment when asked questions regarding those altered reports. As reported by Christie Smyth of Bloomberg:

In November, U.S. Magistrate Judge Gary Brown said he feared there may be conflicting reports in many other flood insurance cases, and hundreds of homeowners are now searching for evidence that similar tactics were used to deny their Sandy-related claims.

In court, Brown is weighing whether to penalize Wright Flood and a law firm that represented it and other insurers. Representatives from the Metairie, Louisiana-based firm, Nielsen Carter & Treas LLC, didn’t attend the hearing, and a phone call wasn’t immediately returned.

During the proceeding, Jeff Moore, who was Wright Flood’s vice president of claims…

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Texas SC overturns 1974 ruling that evidence of a plaintiff’s failure to buckle up is inadmissible

Originally published by David Yates .

Plaintiffs who file automobile collision lawsuits in Texas can now be painted with contributory negligence assertions if the evidence shows they were not wearing their seat belts at the time of the wreck.

On Friday, the Texas Supreme Court issued an opinion overturning its 1974 ruling, which for more than 40 years offered “plaintiffs safe harbor from the harshness of an all-or-nothing scheme that barred recovery for even the slightest contributory negligence.”

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Samsung hit with $15.7M jury verdict for patent infringement

Originally published by David Yates .

Following nearly two years of litigation, Rembrandt Wireless Technologies has won a $15.7 million jury verdict in its patent infringement suit against Samsung Electronics.

As previously reported, Rembrandt Wireless filed the suit on March 15, 2013, in the U.S. District Court for Eastern Texas, Marshall Division.

Rembrandt, a Virginia limited partnership, accused Samsung of infringing on U.S. Patent No. 8,023,580 issued Sept. 20, 2011, for “System and Method of Communication Using at Least Two Modulation Methods,” according to the complaint.

Rembrandt later amended its complaint to include infringement of U.S. Patent No. 8,457,228.

Rembrandt Wireless accused Samsung of infringing on both patents, which covers Bluetooth technology, by using the tech in their popular products, such as the Galaxy S4 for example.

According to the jury verdict, filed Feb. 13, jurors were asked if Rembrandt proved by a preponderance of the evidence that Samsung infringed on the ‘580 and ‘228 patent.

Jurors found that Samsung infringed upon both patents and that the company failed to prove the patents are invalid, awarding Rembrandt $15,700,000 in damages for fair compensation.

Rembrandt is represented by Michael F. Heim, Eric Enger and Miranda Y. Jones of Heim Payne & Chorush in Houston; and Demetrios Anaipakos, Amir Alavi, Steven J. Mitby and Brian E. Simmons of Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. in Houston; and T. John Ward Jr. of The Law Office of T. John Ward Jr. P.C. in Longview.

Case No. 2:13-cv-00213

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Andrew Perlman, "Towards the Law of Legal Services"

Originally published by John Steele .

Article. Abstract: Imagine that someone asks you how legal services are regulated in the United States. You might answer that lawyers need a license in the jurisdictions where they intend to practice, typically after graduating from an ABA-accredited law school…

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Lance Armstrong Ordered to Pay Back $10 Million

Originally published by Thomas J. Crane .

Arbitration is more and more with us, all of us. Every consumer signs some arbitration agreement sometime, somewhere. Arbitration is increasingly found in the work place. Many employers require their employers to sign agreements to submit any dispute to arbitration. SCA Promotions paid a $10 million dollar bonus to Lance Armstrong years ago for winning multiple Tours de France. Part of the agreement was a provision requiring any dispute to go to arbitration. In 2005, SCA refused to pay the bonus due to the early allegations of substance abuse. Mr. Armstrong had to file suit to get his payment.

Now, SCA has gone to arbitration to get a refund. In a recent ruling, three arbitrators, in a 2-1 vote, ordered that Lance re-pay the bonus. The one arbitrator voting against the decision was the one arbitrator chosen by Lance. See Huffington Post report.

Observers are saying this is the single largest arbitration award against a individual. Mr. Armstrong plans to fight the award. But, this is arbitration. There are no appeals. There is very little “fight” available to any participant. That is the whole point of arbitration.

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Substituted Service Through Facebook

Originally published by Michelle O'Neil .

When a new lawsuit is filed, whether it is a divorce in Dallas County, Texas or any other type of suit, the responding or defending party has a right under the Constitution to be personally service with citation. Also called “service of process”, this means that the party who filed for divorce must request the clerk of the court to issue citation upon the responding party and it must be served by an authorized neutral third party (such as a constable or process server). If a temporary hearing is scheduled, notice of hearing must also be served on the responding party.

But, what happens if the responding party dodges service or for some reason cannot be served easily? Under that scenario, the filing party must file a motion and obtain an order authorizing substituted service. This substituted service must be authorized in a manner that is likely to actually give the responding party notice of the lawsuit. Most often this involves posting the citation on the front door of his or her house. In the day and age of electronic communication, folks are starting to request service by electronic means. Maybe the responding party is travelling but always checks email. The Court might authorize service via email.

One issue that has arisen lately is whether it is permissible to serve someone through social media channels. Zachary Ludens with Carlton Fields Jorden and Burt in Miami Florida wrote a blog post called “Where is the ‘Serve’ Button?” about this topic. Ludens points to some recent federal and state court decisions that have opened the door to service of process via Facebook and LinkedIn messaging. This began as a method of serving foreign individuals under the federal rules of civil procedure, Ludens expects it could expand to cover folks living in the United States.

“Between March 2013 and February 2014, two federal courts allowed foreign defendants to be served via social media. In both cases, the courts initially determined whether the defendant’s resident nation had affirmatively disallowed service via social media in an agreement with the United States. When that question was answered negatively, the courts—the Southern District of New York in FTC v. PCCare247 Inc. and the Eastern District of Virginia in Whoshere, Inc. v. Orun—examined whether service via social media was “reasonably calculated under the circumstances” to provide notice, in accordance with due process standards. In both cases, the courts allowed service via social media—but required that it be supplemented with service via email.

“Then, in September 2014, a family court in Staten Island, New York, allowed a defendant to be served via Facebook when the traditional methods of service proved inadequate. Determining that the defendant had been actively using her Facebook account, the court concluded that Facebook provided “the best chance of the [defendant] getting actual notice of these proceedings.” Nevertheless, the court also required mailing of service to the defendant’s last known address.”

These cases indicate a willingness among some judges to permit social media service, when coupled with other means of notifying the responding party. This means we are one step away from social media service being the only method of substituted service when personal service isn’t available.

But, what happens if the message via Facebook goes to the person’s “other” inbox. Some don’t know that the “other” inbox exists much less how to access it. What if the person gets a notification from LinkedIn that he or she has a message but doesn’t check it? (I know I don’t check my LinkedIn messages all that often.) Or, what if the person thinks the Twitter pm was a scam or junk and ignores it? This is likely the reason for the secondary method of coupling the social media notice with email. When personal service is not available, other methods of service are imperfect, but should be designed to reasonable give the responding party actual notice of the suit.

And, who does the service via social media come from? A process server unknown to the party but still a “neutral”? Or someone known to the party?

How do you know that you served the right person when there are multiple parties registered to the same name and maybe even in the same location when the name is common?

Process servers use all sorts of means to locate a party, including social media resources. But, even process servers are injecting discontent with the idea of service by social media. See “Getting Serious About Service of Process by Social Media” by Stephanie Irvine. That article points to a survey of over 300 process servers that says less than 2% have served documents through social media. One of the main problems as reported by the process servers seems to be getting a verification of receipt.

What do you think about social media service? Is it a good idea? Have you had experience with using it? Let us know!

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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Say What?! – Make the Proper Objections.

Originally published by State Bar of Texas .

This deposition from More Humor in the Court (National Shorthand Reporters Association, Oct. 1984)

Q. When he went, had you gone and had she, if she wanted to and were able, for the time being excluding all the restraints on her not to, gone also, would he have brought you, meaning you and she, with him to the station?

Attorney: Objection. That question should be taken out and shot.

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Texas Supreme Court refrains from deciding subsurface trespass issue

Originally published by Norton Rose Fulbright .

Earlier this month, the Texas Supreme Court issued its decision in Envt’l Processing Sys., L.C. v. FPL Farming Ltd. The case garnered a significant amount of attention from the oil and gas industry because it involved the issue of whether a party can sue for trespass over the subsurface migration of wastewater. Indeed, a number of amicus briefs were filed on this issue. The Supreme Court refrained from ruling on that issue, however.

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