Friday, March 30, 2018

Top Ten from Texas Bar Today: Google, Facebook, and the Beatles

Originally published by Teri Rodriguez.

To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.

10. The Future of Adult Disabled Child Support: Opinions – Matthew A. Knox of Laura Dale & Associates, P.C. @DaleFamilyLaw in Houston

9. Diversity Supplier Policies –  Drew York of Gray Reed & McGraw @GrayReedLaw in Dallas and Houston

8. SimpleAir v. Google: Consider the Scope of the Claims in a Claim Preclusion Analysis – Haynes and Boone Benefits Group of Haynes and Boone LLP @haynesboone

7. Facebook and the Fair Housing Act – a new threat to every media outlet.Richard Hunt of Hunt Huey PLLC in Dallas

6. Agreement to an order — when does it matter for appeal? – Michelle O’Neil of O’Neil Wysocki, P.C. @ONeilWysocki in Dallas

5. Fraud Claim Rejected for Unreasonable Reliance – Charles Sartain of Gray Reed & McGraw, P.C. @GrayReedLaw in Dallas

4. Raging Bull: Getting Beat Up On Glassdoor? – Seyfarth Shaw LLP @seyfarthshawLLP

3. Cryptocurrency Hack – Conversion under Texas Law? – Darin Klemchuk of Klemchuk LLP @K_LLP in Dallas

2. 4 Things You Can Do To Improve Your Bounce Rate Right Now – Emma Hanes of Stacey E. Burke P.C.  @emmalhanes in Houston

1. Making Rain: Prepare Like the Beatles – Cordell Parvin @cordellparvin of Lateral Link in Dallas

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Texas Center for Legal Ethics offers free online ethics CLEs on Texas Day of Civility in Law

Originally published by Adam Faderewski.

The Texas Supreme Court, Court of Criminal Appeals of Texas, and the State Bar of Texas have declared April 20 as the “Texas Day of Civility in Law.”

As part of the recognition of the day, The Texas Center for Legal Ethics, or TCLE, is offering a pair of free online ethics CLEs to Texas attorneys. The CLEs are “The Noble Lawyer,” and “Developing Your Professional Reputation.”

Texas attorney and former TCLE Executive Director William J. Chriss will present “The Noble Lawyer,” based on his book of the same name.

“Developing Your Professional Reputation” will be moderated by Judge Jennifer Walker Elrod, of the U.S. Court of Appeals for the 5th Circuit, and panelists include Texas Supreme Court Justice Debra Lehrmann, past State Bar President Roland Johnson, and San Antonio attorney Lamont Jefferson.

“The Day of Civility gives all Texas attorneys an opportunity to reflect on their obligation to practice law with the utmost respect for judges, fellow attorneys and the public that we serve,” said Beverley Godbey, chair of the TCLE Board of Trustees, in a press release. “Both of these online programs provide a useful framework for lawyers to incorporate greater civility into their professional lives.”

For more information, contact TCLE Executive Director Jonathan Smaby at (512) 427-1477 or jonathan.smaby@texasbar.com.

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



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Thursday, March 29, 2018

En banc vote – on party lines?

Originally published by David Coale.

The Fifth Circuit recently denied en banc rehearing in the high-profile qualified immunity case of Jauch v. Choctaw County, where the panel denied immunity to a sheriff who had been sued over a lengthy period of pretrial detention. From one perspective, a chart of the 9-6 vote (below) shows a vote along “party lines,” with all of the votes for rehearing coming from judges appointed by Republican presidents (including both of President Trump’s recent appointments), and with all active judges appointed by Democratic presidents voting against rehearing. From another perspective, the vote shows that the group of active judges appointed by Republican presidents is hardly a monolithic bloc, as it divided roughly in half on the vote.

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



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What the #MeToo Movement is Doing to the Rights of the Accused

Originally published by postali.

The #MeToo and Time’s Up movements have become social phenomena. Women and men of all ages, races, backgrounds, and industries are sharing stories of when they were sexually victimized. They are raising awareness of a wide range of conduct. Toxic workplace cultures that enable sexual harassment, or employers that brush sexual harassment under the rug, are also targeted in #MeToo stories. In the wake of so many stories from men and women across the country, it is important to take a critical look at how a social media-based movement is…

The post What the #MeToo Movement is Doing to the Rights of the Accused appeared first on Law Offices of Ned Barnett.

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Raging Bull: Getting Beat Up On Glassdoor?

Originally published by Seyfarth Shaw LLP.

By Kristen Peters

Seyfarth Synopsis: Even if bad Glassdoor reviews have you feeling like you need to fight back, employers should stay out of the ring, and instead implement social media policies that clearly define prohibited behavior and disclosures, while spelling out the consequences for violations. Employers must not retaliate against employees for their lawful out-of-office behavior.

People are used to sharing everything about their lives—from what they ate for breakfast to the funny name on their Starbucks Frappuccino. But this behavior can be scary for employers when current and former employees take to social media to complain about their jobs—or even defame their boss. Of particular interest are online platforms such as Glassdoor, which purport to provide “inside” information about working conditions, salaries, and company culture.

So what can an employer do when an employee posts a negative comment on Glassdoor about the company? The answer is … not much. The law often protects an employee’s off-duty speech. But the law does not protect defamatory speech, and it does not protect the disclosure of confidential, protected information. So proactive employers can take steps to make sure they are not unfairly smeared online and that their trade secrets are protected. We have a few suggestions in that regard.

What Are You Tryin’ To Prove: Don’t Get In The Ring

Websites such as Glassdoor, which has about 30 million monthly users, allow current and former employees to criticize or praise a company, typically through anonymous posts. Though many such sites screen critiques to prevent the posting of offensive comments and those that would disclose private information, they nonetheless present a conundrum for employers: Do you ignore criticism—even if it’s false—or do you respond to it? The former tactic can permit damage to an employer brand to go unchecked; the latter can make an employer look defensive.

In this new age of information, job applicants search employer review sites for information about companies. Responding to a negative review can help your brand if you do so in a way that shows the organization is genuinely committed to improving. But a response could also provide more fodder for further negativity, so it’s best to try to get ahead of the problem by making changes in-house, if necessary.

If your employees are posting on social media outside of working hours, California’s constitutional right to privacy can protect them from retaliation. Labor Code section 96(k) protects employees where they have engaged in lawful conduct asserting “recognized constitutional rights,” such as free speech postings on social media, occurring during nonworking hours away from the employer’s premises. A better avenue is to get ahead of the problem and educate employees about what they can and can’t post online about the company.

Put Your Robe On—And Implement a Social Media Policy

You can restrict free speech online for current employees with a social media policy (but only up to a point!). Employers should have a social media policy that prohibits posting confidential information about the company (and perhaps about posting anything about the company at all) without permission from the company’s public relations group. Every employee is required to follow the company’s legally compliant policies even if they are stricter than what the law would otherwise allow. If an employee violates your policies, that employee could be subject to employment discipline up to and including termination.

That said, there are limits to the restrictions employers can place on what employees can say about them online. The National Labor Relations Act protects the rights of workers to discuss wages and working conditions with other workers. These protections apply to posts on social media, so your social media policy cannot prevent employees from communicating with other employees online about the company’s pay or working conditions, such as might be the case with a Glassdoor review.

For example, in analyzing one company’s social media policy that forbade employees from making anonymous posts about the company online, the NLRB’s general counsel found that “requiring employees to publicly self-identify in order to participate in protected activity imposes an unwarranted burden on Section 7 rights [of the National Labor Relations Act]. Thus, we found this rule banning anonymous comments unlawfully overbroad.”

You Never Got Me Down—Employers’ One-Two Punch Combo for Dealing with Social Media

  • It is prudent for employers to prepare and implement a social media in the workplace policy in order to avoid risks of disclosure of confidential and proprietary information and claims of cyberbullying, harassment, and discrimination.
  • Social media policies should clearly articulate the legitimate business interests the employer seeks to protect, as well as provide clear definitions of prohibited behavior and private and confidential information, and spell out the consequences for violations of the policy.
  • Employers should use caution when disciplining employees based on social networking activities, as certain union and nonunion employee rights need to be considered.
  • An employer may discipline an employee for posting negative comments on a social networking site if the employee’s comments are offensive or inappropriate, and not related to employment issues, and should do so on a consistent basis.

Workplace Solutions: Employers should open up a dialogue with employees about social media and encourage them to bring grievances to Human Resources, instead of airing their grievances online. Employers should also avoid retaliating against employees for posting on social media outside of work hours, and implement social media policies that clearly articulate the penalties for posting confidential information, and any defamatory statements.

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Fifth Circuit Affirms Sanctions Against Austin Attorney

Originally published by Mary Alice Salmon.

 

The U.S. Court of Appeals for the Fifth Circuit has affirmed sanctions of an Austin attorney for a three-year suspension and more than $175,000, describing his contentions on appeal as “frivolous.
      

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Three Firms Working on $9.5B Permian Basin Acquisition

Originally published by Brenda Sapino Jeffreys.

 

Concho Resources’ pending acquisition of RSP Permian will create the largest crude oil producer from unconventional shale in the Permian Basin.
      

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Register now for the 29th Annual Texas Lawyers Concerned for Lawyers Convention

Originally published by Justine Vasquez.

The 29th Annual Texas Lawyers Concerned for Lawyers Convention will take place on June 1-3 at the Austin Marriott South.

The convention will feature national speakers sharing their thoughts about current research on mental health, substance abuse recovery, and maintaining a more balanced professional life. Attendees will also have a chance to earn at least 6 hours of CLE (including ethics).

Fill out the registration form here and mail it to TLCL Convention, c/o Sara Dysart, 206 Primera Drive, San Antonio, TX 78212. The registration fee is $225 before May 4, which includes the CLE, the Saturday banquet, and the Sunday brunch. Scholarships are available.

Book your room by May 14 for the reduced rate of $109 per night.

TLCL is a volunteer group for lawyers in recovery and works in partnership with the Texas Lawyers’ Assistance Program (TLAP) of the State Bar of Texas.

For more information, please contact TLAP at (800) 343-8527.

 

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SimpleAir v. Google: Consider the Scope of the Claims in a Claim Preclusion Analysis

Originally published by Haynes and Boone Benefits Group.

Elizabeth Crompton

Elizabeth Crompton
Associate
Haynes and Boone, LLP

On May 12, 2018, the Federal Circuit held in SimpleAir, Inc. v. Google LLC, No. 2016-2738, that a terminal disclaimer does not raise a presumption that a continuation patent is patentably indistinct from its parent patent.  In SimpleAir, the issue was whether an action asserting infringement of two patents was barred by claim preclusion or the Kessler doctrine when the same activity had been judged not infringing in earlier litigations involving other patents in the same family, all of which were related as continuations, and all of which included terminal disclaimers to the ultimate parent patent.  The Federal Circuit held that notwithstanding the terminal disclaimers, the district court could not simply rely on a presumption that the claims were patentably indistinct, and instead must compare the scope of the claims to determine whether claim preclusion or the Kessler doctrine applies.  Id. at *2.

SimpleAir filed a series of patent infringement actions against Google, asserting various patents in one family, all related as continuations from U.S. Patent No. 6,021,433, and all terminally disclaimed to the ’433 patent.  Id.  The first action asserted the parent ’433 patent and continuation U.S. Patent No. 7,035,914.  Id. at *2-*3.  The claims involving the ’433 patent were dismissed with prejudice, and trial ensued only on the ’914 patent.  Id. at *3.  The jury found the ’914 patent infringed, but on appeal the Federal Circuit reversed the district court’s claim construction ruling, vacated the verdict, and remanded with instructions to enter a judgment of non-infringement.  Id.  During the pendency of that case, SimpleAir filed two more infringement actions asserting two more patents in the family, which were consolidated.  Id.  One of those actions was dismissed with prejudice, and the other produced a jury verdict of non-infringement.  Id.

This case arose when SimpleAir subsequently sued Google for infringement based on two more continuation patents, U.S. Patent Nos. 8,639,838 and 8,656,048, both of which are also terminally disclaimed to the ’433 patent.  Id. at *4.  The district court dismissed the complaint under Rule 12(b)(6) as barred by claim preclusion and the Kessler doctrine.  Id.  The only disputed issue with regard to claim preclusion was whether the current case and the previous cases involved the same claim or cause of action.  Id.  Without comparing the claims in the current case to those in the previous cases, the district court held that the underlying invention in the related applications was the same because the patents shared the same title and specification, and that the terminal disclaimers filed in each patent to overcome obviousness-type double patenting rejections indicated that the PTO believed them to be patentably indistinct.  Id.  The district court also held that although claim preclusion did not bar SimpleAir’s assertion of the ’838 and ’048 patents against the alleged infringing uses occurring after the judgment in the earlier case, the Kessler doctrine did.  Id. at *5.

The doctrine of claim preclusion forbids a second suit based on the same cause of action that already received a judgment on the merits in a prior suit involving the same parties or their privies.  Id. at *6 (citing Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322, 326 (1955)).  Because claim preclusion is not unique to patent law, Fifth Circuit law applies.  Claim preclusion requires the following elements:

(1) the parties in the later action are identical to, or in privity with, the parties in the earlier action;

(2) the judgment in the earlier case was rendered by a court with proper jurisdiction;

(3) there has been a final judgment on the merits; and

(4) the earlier case and later case involve the same cause of action.

Id. (citing Duffie v. United States, 600 F.3d 362, 372 (5th Cir. 2010)).

The only element at issue in this case was the fourth, i.e., whether the earlier and later cases involve the same cause of action, which the Federal Circuit held was a legal question to be reviewed de novoId. at *7.  In the circumstances of this case, the court stated that the issue was unique to patent law, and therefore Federal Circuit law applied and the later action would be precluded if the overlap between the transactional facts of the suit was substantial, but the court noted that transactional facts are “not capable of a mathematically precise definition.”  Id. (citing Restatement (Second) of Judgments (1982) § 24 cmt. b).

Although claim preclusion does not bar an infringement action based on actions after judgment in an earlier suit, the Kessler doctrine does, “if the earlier judgment held that ‘essentially the same’ accused activity did not infringe that patent.”  Id. at *15; see Kessler v. Eldred, 206 U.S. 285 (1907).  The Kessler doctrine protects “an adjudged noninfringer” from “repeated harassment for continuing its business as usual post-final judgment.”  SimpleAir, No. 2016-2738 (March 12, 2018), slip op. at *15-*16 (quoting Kessler, 206 U.S. at 1056).

Considering the facts of the patents at issue, the Federal Circuit found that despite the substantial overlap between the current and earlier cases, the shared specifications and terminal disclaimers alone did not require claim preclusion.  Id. at *8.  The problem was that the district court did not analyze the claims—and the claims define the invention.  Id.

Google attempted to argue that claim analysis was not necessary based on Senju Pharmaceutical Co., Ltd. v. Apotex Inc., 746 F.3d 1344 (Fed. Cir. 2014).  In Senju, the district court found patent claims to be obvious in one infringement suit, and then the patentee added new claims in a reexamination and filed a second infringement suit against the same alleged infringer.  746 F.3d at 1347.  In that case, the second action was precluded because none of the reexamined claims were broader than in the first action, so the causes of action were the same.  Id. at 1348.  The Federal Circuit distinguished Senju, which it said held that “claims that emerge from reexamination do not in and of themselves create a new cause of action that did not exist before,” largely because broadening claims were not permitted in the reexamination.  SimpleAir, No. 2016-2738 (March 12, 2018), slip op. at *9 (citing Senju, 746 F.3d at 1352).  In that circumstance, the Federal Circuit explained that it was not necessary to make a detailed comparison of the claims.  Id.  In SimpleAir, the district court did not compare the scope of the claims in the current case with those previously litigated and, unlike Senju, there is no prohibition on broader claims in terminally disclaimed patents (as opposed to reexaminations), so the claims here could have broader scope than the parent.  Id.

The Federal Circuit defined the standard for comparing claims between asserted patents, holding that the claims must be “essentially the same” for claim preclusion to apply, adopting the same standard as for the accused activity between the two cases.  Id. at *10.  Applying that standard, the court concluded that “claims which are patentably indistinct are essentially the same.”  Id.

Google argued that the claims in the present case met the “patentably indistinct” standard because the claims of the ’838 and ’048 patents were rejected for obviousness-type double patenting, and SimpleAir chose to file terminal disclaimers to overcome the rejections.  Id.  The Federal Circuit rejected that argument, explaining that filing a terminal disclaimer does not settle the issue of claim preclusion because it is not an admission regarding the patentability of the resulting claims.  Id. at *10-*11.  However, filing a terminal disclaimer is relevant to the question of whether a child patent involves the same cause of action as the parent, and is a “strong clue” suggesting that the claims may not be patentably distinct.  Id. at *11-*12.  The Federal Circuit explained that a terminal disclaimer waives potentially valuable rights, so patent applicants do not do so lightly.  The court stated, “In construing the scope of claims, we give considerable weight to statements made by patent applicants during prosecution in order to overcome examiner rejections.  We see no reason to treat terminal disclaimers any differently.”  Id. at *11 (internal citation omitted).  However, although the suggestion is strong, it does not create a presumption that the claims are patentably indistinct.  Id. at *12.  The court must compare the patents’s claims and other relevant transactional facts in deciding claim preclusion.  Id.

Looking at the similarities between the claims in the current case and the earlier actions, the Federal Circuit noted, “we do not see how this is a fundamentally different invention from those patents asserted in the previous suits.”  Id. at *13.  However, the court did not decide whether the claims were patentably indistinct, instead directing the district court to decide on remand.  Id.  The court also suggested that formal claim construction proceedings may not be necessary to determine the claim scope, leaving that to the district court’s discretion.  Id.

The Federal Circuit rejected the district court’s policy considerations of judicial economy and fairness to parties in deciding the claim preclusion issue, stating,

While these policy considerations may be persuasive, it is our duty to faithfully apply our precedent, and that precedent is inconsistent with the critical premise of the district court that filing a terminal disclaimer during prosecution of a continuation patent implies that the continuation patent is patentably indistinct from its parent. Our holding in this case is limited to that error: a district court cannot presume that a terminally-disclaimed continuation patent presents the same cause of action as a parent patent based on the filing of the terminal disclaimer alone.

Id. at *14.

The court also rejected the district court’s application of the Kessler doctrine to bar SimpleAir’s claims arising from Google’s actions after the judgment in the earlier suit.  Id. at *15.  The court explained that the Kessler doctrine did not apply to bar assertion of a broader set of rights than would be barred by claim preclusion.  Id. at *16.  Nor does Kessler apply to activity that occurred before the earlier judgment.  Id.  According to the court, “the Kessler doctrine just fills a particular temporal gap between preclusion doctrines; it does not displace them.”  Id. (internal citation omitted).

Like claim preclusion, the Kessler doctrine can be applied if the claims are “essentially the same” as those previously adjudicated.  Id.  If the claim is precluded with regard to pre-judgment activities, then Kessler applies to assertions of those patents against the same post-judgment activity.  Id.

For patent applicants who are considering filing a terminal disclaimer, the good news from this decision is that the terminal disclaimer does not create a presumption that the claims are patentably indistinct from the parent patent.  However, litigation strategies may change based on the Federal Circuit’s guidance that the terminal disclaimer can be considered strong evidence that the claims may not be patentably distinct.  For example, when litigating a patent with a terminal disclaimer, consider asserting it in the first case you file; otherwise, depending on the comparative scope of the claims, you may be precluded from using it in a later action.

 

The post SimpleAir v. Google: Consider the Scope of the Claims in a Claim Preclusion Analysis appeared first on Haynes and Boone Blogs.

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Stories of Recovery: My personal story is one of success—and mental illness

Originally published by Guest Blogger.


By C. Kelly Rentzel

According to a recent study, those who score top grades in school are four times more likely to develop bipolar disorder than those with average grades. The correlation is even stronger among those who study literature. Like many lawyers, as a high-achieving English major, I already had two strikes against me.

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Facebook and the Fair Housing Act – a new threat to every media outlet.

Originally published by Richard Hunt.

facebookYesterday (March 27, 2018) the National Fair Housing Alliance and other fair housing groups sued Facebook for alleged violations of the Fair Housing Act.* The lawsuit seeks a sweeping expansion of the FHA by creating liability for those who “facilitate” discrimination even though they do not engage in it directly. The issue is not new, but the effort to hold Facebook responsible for its advertisers is.**

First though, a little background. Section 804(c) of the Fair Housing Act (42 U.S.C. §3604(c)) prohibits making, printing or publishing discriminatory advertisements. This prohibition can apply not only to the person who places the ad, but also to the person who prints or publishes it. When Facebook puts an ad on someones Facebook page it is publishing the ad, and so it could have some responsibility if the ad is discriminatory.

Some kinds of discriminatory advertising are obvious. Even today from time to time real estate brokers, leasing agencies and others just put in an advertisement that they won’t rent to some group because of ethnicity or religion. This “we don’t want your kind around here” advertising is easy to spot and obviously illegal. More recently some courts have recognized more subtle forms of discrimination in advertising. For example, showing pictures only of white models in an ad may create the impression that other groups are not welcome. Including religious symbols might suggest a preference for members of a certain religion. Even in these more subtle cases it is the itself conveys the discriminatory message.

But that’s not the kind of discrimination the plaintiffs are complaining about. Instead the plaintiffs claim Facebook facilitates discriminatory advertising because it allows its advertisers to show their ads only to certain racial, ethnic or religious groups. The discrimination is not in the advertisement itself, but choosing  the audience to whom it is presented. Facebook makes this kind of discrimination fairly easy because it allows advertisers to use its vast collection of data about its users to filter out members that the advertiser wants to exclude or target members that the advertiser wants to appeal to. Among the groups that can be filtered out or targeted are members of groups identified by race, religion, family status, disability and similar protected categories. That makes it easy to use Facebook to discriminate. The plaintiffs claim this facilitation of discrimination is illegal.

The first problem with this claim comes from the language of the advertising prohibition in the Fair Housing Act.  42 U.S.C. §3604(c) prohibits placing “any notice, statement, or advertisement,” that “indicates any preference, limitation, or discrimination” or “an intention to make any such preference, limitation, or discrimination.” The ads placed by the plaintiffs in this case apparently did not violate this prohibition. The ads were fine, it was the targeting of the ads that was discriminatory. Section 3604(c) does not prohibit discriminatory practices or methods; it prohibits discriminatory ads. Facebook will likely argue that unless the advertisements were themselves discriminatory it did nothing that violated Section 3604(c).

The plaintiffs also claim that by permitting advertisers to target different groups Facebook helps make housing “unavailable” to those excluded from seeing the ads. Making housing unavailable based on racial, ethnic and similar protected categories violates 42 U.S.C. §3604(a) and (f). This claim is also problematic. If discriminatory advertising made housing “unavailable” to those who were excluded §3604(c) would be unnecessary because everything it forbids would already be forbidden by subsections (a) and (f). One of the most basic rules of statutory interpretation is that every part of a statute is assumed to have a meaning, and an interpretation that makes subsection (c) meaningless violates that rule.

There is also more fundamental problem with the idea that facilitating discrimination by permitting targeted advertising violates the FHA. Targeted marketing is older than the Fair Housing Act, but those who facilitate targeted marketing have never been treated as violators of §3604(c). An apartment leasing company that only advertises in a newspaper like the Dallas Post Tribune has effectively excluded white readers because that paper specifically serves the black community.  A real estate broker that advertises in a neighborhood paper like Park Cities People distributed in affluent and mostly white neighborhoods knows that the ad will not be seen by very many black prospective buyers. The same kind of targeting is possible with radio and television advertising because the segregation of content means that certain stations or channels will have a predictably limited audiences. An advertisement on the local Christian radio station won’t be heard by very many Jews or Muslims. In all these cases the targeting is facilitated by the newspaper or media outlet’s own targeting of its audience.  Despite this I don’t know of any case claiming that newspapers, radio stations and other media facilitate discrimination by providing an audience with a particular racial or religious profile. The advertiser itself may be violating the general prohibition on discrimination in subsection 3604(b), but as long as the advertisements standing alone do not discriminate the media outlet that distributes it is ordinarily safe.

The real problem with Facebook is not that it is doing something new, but that it is so much better at it.  Facebook provides a lot more precision than is provided by choosing a particular radio or television station.; indeed, micro-targeting is the principal advantage for advertisers who chose social media or the internet instead of traditional media. It isn’t clear though that this practical difference makes a legal difference. If the FHA reaches those who “facilitate” discrimination it will be difficult to know where to draw the line between bad facilitation and o.k. facilitation. Some kinds of discriminatory advertising are not illegal† and so there is nothing inherently wrong with selling lists sorted by race, religion and other prohibited categories. It is the subject of the ad, not the targeting itself that creates a violation of the law. Although Facebook can, in theory, identify which ads are for housing and therefore might violate the Fair Housing Act, the same is true of an ad agency working for Joe Smith Real Estate or the sales rep for a media conglomerate that helps the advertiser decide which radio or television stations should broadcast the ad. The FHA forbids publishing ads that discriminate but nothing in the FHA suggests private media companies are responsible for policing discrimination by businesses that have discriminatory marketing strategies or methods.

The lawsuit is also premised on the notion that Facebook can tell an advertiser intends to discriminate by looking at who the advertiser targets. That assumes that Facebook is the only media in which the advertiser places ads. A real estate broker might look at its advertising in print media and conclude that the only way to effectively reach some group is through Facebook, thus using Facebook to expand, rather than limit the audience for its advertising. Facebook isn’t in a position to know what the advertiser is thinking or why he targeted the ad in the way he did. The plaintiffs in the new lawsuit appear to want Facebook to read the minds of its advertisers so it can prohibit advertising by those with bad intentions.

The last problem with the lawsuit is that it relies entirely on testing by the plaintiffs. They don’t seem to have any examples of an authentic real estate advertiser using Facebook to engage in discriminatory advertising. All their examples involve fake entities they created placing fake ads that were specifically designed to prove their point. Without any real world examples of Facebook’s policies allowing discriminatory advertising it is hard to avoid the idea that this case is about a theory rather than a real problem that injures real people. Article III of the Constitution prohibits test cases and cases that are set up merely to check a legal theory, so Facebook may well argue that the lawsuit has to be dismissed unless the plaintiffs can find some real world example of a problem.

It wouldn’t be wise to predict how this lawsuit will end, but there is no doubt that success by the plaintiffs will threaten every publisher or broadcaster of advertising because it will always be possible for plaintiffs like to claim the defendant “facilitates” discrimination if it provides an audience with a particular racial, ethnic or religious affiliation. Housing discrimination is not the only kind of illegal discrimination. The theory behind this case might allow Yelp to be sued if a restaurant ad includes discriminatory content. It could permit ZipRecruiter to be sued if it arguably facilitates employment discrimination. Websites that merely accept advertising will have to worry about whether they were chosen because their audience is mostly black or white or hispanic, or because they appeal only to singles (family status discrimination is illegal for housing) or only to men or women. The same will be true of radio and television stations that have a specialized audience, of neighborhood newspapers (because many neighborhoods are still in fact segregated), and of magazines (if you only want men to rent from you, advertise in Men’s Fitness). The outcome of the lawsuit is uncertain, but every business that sells advertising should be concerned that it is about to become liable for the bad intentions of those who buy advertising space.

Special thanks to Andy Nguyen, a multimedia journalist with The Morning Dose on the CW network. Mr. Nguyen called this case to my attention when he emailed to ask for an interview about it. If a link becomes available for that interview we will post it with our usual self-congratulatory announcement. In the meantime, you can find CW on the internet at cwtv.com

National Fair Housing Alliance et al v. Facebook, Inc., Case No. 1:18-cv-02689 in the United States District Court for the Southern District of New York.

** See our earlier blog, Fair Housing traps – when targeted advertising becomes discrimination.

† Some products, including hair and cosmetic products, are specifically designed for particular racial or ethnic groups and are usually advertised to them. Billboard advertisements for beer that are written in Spanish to target a hispanic market are common here in Texas. Both discriminate, but neither is illegal.

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Texas Leads the Nation in Clean Water Act Violations

Originally published by Environmental and Energy Law Blog.

 

According to a new report by Environment Texas, an environmental advocacy group, Texas leads the nation in violations of the Clean Water Act. The report found that over a 21-month period from January 2016 to September 2017, major industrial facilities in the state released pollution that exceeded levels allowed under Clean Water Act (CWA) permits 938 times. By comparison, Pennsylvania was second on the list with more than 600 exceedances. If your business has been cited for CWA violation, it is essential to enlist the services of an experienced health, safety and environmental attorney.

The Environment Texas Report

The report claims that industries in Texas routinely release excess chemicals and human waste into rivers and bays. Nearly half of the state’s major industrial facilities may have violated their wastewater permits by pumping oil, grease, chemicals and excrement into the waterways.

The report also contends that these industries not only exceeded their permit limits frequently, but that some of the exceedances were severe, with multiple times the amount of pollution permitted under CWA permits being released. The report also partially blames state and federal agencies, in this case the Environmental Protection Agency (EPA) and the Texas Commission on Environmental Quality (TCEQ), for not taking strong enforcement action to stop the excessive discharges.

“TCEQ has a lax enforcement regime,” said Luke Metzger, executive director of Environment Texas. “That contributes to the high exceedance levels. Many facilities don’t have any pressure to comply with the permits.”

In response to the report, a spokesperson for TCEQ said it routinely monitors data submitted by the companies for violations and takes appropriate action when violations are serious enough to enforce correction and to seek penalties to deter future noncompliance.

The report highlighted that regions with heavy industrial activity had the most violations, with two-thirds of the 938 cases involving facilities located in Jefferson, Nueces and Harris counties, well as Corpus Christi, home to the states largest industrial facilities. Finally, the report also notes that there has been a decrease in enforcement action at the federal level under the Trump administration.

Whether the Environment Texas Report will result in fines being levied by the TCEQ remains to be seen. In the meantime, if you have been cited for violations by TCEQ or the EPA, it is crucial to have proper legal representation.

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Wednesday, March 28, 2018

Updates from the State Bar President-elect Candidates

Originally published by Lowell Brown.

In an effort to encourage voter participation and educate members on the 2018 State Bar president-elect candidates, the State Bar is sending periodic emails with messages submitted by the candidates addressing topics of their choosing. The fourth messages are available at the links below.

Lisa Blue
Dallas

Randy Sorrels
Houston

Click here to read Lisa Blue’s message.  Click here to read Randy Sorrels’ message. 

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The Future of Adult Disabled Child Support: Opinions, March 28, 2018

Originally published by mkhtx.

Good morning, HFLA readers! This morning we have two memorandum opinions, one from the First District Court of Appeals and the second from the Fourteenth on nunc pro tuncs and amicus fees, respectively. Also,  from last week (better late than never), an interesting concurrence in the denial of a petition for review from the Texas Supreme Court on adult disabled child support.

Taking the First first, in Leblanc v. Leblanc, No. 01-16-00777-CV, appellant appealed from the trial court’s granting of appellee’s motion for judgment nunc pro tunc. According to appellee, at a final hearing in January 2005, the court had rendered judgment ordering appellant to pay $435/mo in child support and $108.92 in medical support, but the final order mistakenly omitted the amount of child support, i.e. the blank was left empty. The docket sheet from January 31, 2005 stated “Reimb her for med ins $108.92 C/S 435.” The Withholding Order required appellant to pay $543.92 month. 435 + 108.92 = 543.92. The docket sheet was the only item admitted into evidence. The JNPT was granted and appellant appealed, arguing in nine issues that appellee failed to prove a clerical error existed. The COA found the evidence was sufficient. Additionally, appellant asserted a laches argument but the COA found this lacked merit because, while appellant showed how he would be harmed by the enforcement of an amended judgment, he did not show how he would be harmed by entry of the amended judgment. The trial court was affirmed.

In In re M.K.M.L., No. 14-17-00010-CV, father appealed the award of amicus attorney’s fees in the amount of $22,910.00 incorporated into a modification order. Specifically he challenged the evidence in support of the award and the award’s allocation. The record on appeal did not include the reporter’s record for the hearing in which the amicus’ request for fees was heard, so the evidence was presumed sufficient by the COA. As for the allocation, no evidence was presented on that issue in the trial court, and thus the COA overruled the issue.

Finally, last week the Texas Supreme Court denied a petition for review in In re D.C., 13-15-00486-CV from the 13th Court of Appeals. Justice Guzman, formerly of the Fourteenth COA and the 309th Judicial District Court, wrote a concurrence concerning the lack of guidance provided by the statute and to “highlight some of the legal inquiries that require direction from the Legislature and guidance from the Court.” Specifically, she explicitly states the Supreme Court will take up the issue of TFC § 154.302’s vagueness and ambiguity (and perhaps provide a test for the courts to employ) if the right case comes up and Legislature has not supplemented the statute.

In this case, when the parents divorced, the child was 14 years old. The trial court considered only lay testimony and found the requirements of TFC § 154.302 satisfied and ordered father to pay child support indefinitely. More than ten years later, father filed a motion to terminate the monthly support. By that time, the child had aged out, graduated from college with a double major, lived in a dormitory by himself, and had begun pursuing a master’s degree. Again, only lay testimony was offered concerning the child’s disability, self-supportability, and need for care and supervision. The trial court declined the motion to terminate the support but ordered the mother to apply for all government services the child may qualify for, including Social Security, and stated the parties could revisit the issue if the child began receiving such benefits. The Court of Appeals affirmed, finding father did not establish there had been a material and substantial change in the child’s circumstances since the decree was entered.

Justice Guzman noticed that the statute does not define mental or physical disability or specify what type of proof is required to meet the statutory standard. “But parents need to know what they need to prove and how they need to prove it.” After considering many of the questions that the statute raises, and noting that many of the decisions from Texas courts vary greatly in the “nature and quantum of proof,” Justice Guzman all but issued a plea to the Legislature to develop a standard or the Supreme Court will have to provide it.

Hat tip to Janice Berg for drawing my attention to the concurrence!

 

 

 

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A Look at the Data Issues Energy Industry Counsel Face this Year

Originally published by Deana Uhl.

 

As one of the longest standing segments in the global economy, the energy industry is deeply rooted in its processes and conventions. Aside from environmental
      

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Mitigating Risk in a Shared Office Space

Originally published by Shari Klevens and Alanna Clair.

 

Attorneys are increasingly joining their fellow professionals in the shared office space realm. Often referred to as a co-working space, this relatively
      

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The New Wave Of Title VII Suits Alleging Sexual Orientation Discrimination

Originally published by Robert G. Chadwick, Jr..

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje, PLLC.

On July 26, 2017, the U.S. Department of Justice (“DOJ”) filed an amicus brief in an employment discrimination case pending before the U.S. Court of Appeals for the Second Circuit. In Zarda v. Altitude Express, Inc., the plaintiff alleged he had been discriminated against based upon sexual orientation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).

The DOJ amicus brief argued that, although Title VII prohibits sex discrimination in employment, it does not proscribe sexual orientation discrimination. The brief emphasized that, until recently, federal Courts of Appeal uniformly held that sexual orientation bias is not unlawful under Title VII.  The brief added: “Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”

Nevertheless, on February 26, 2018, the Second Circuit ruled en banc that Title VII bars discrimination based on sexual orientation. Prior to the ruling, other Circuits had been evenly split on the issue. On April 4, 2017 an en banc decision by the Seventh Circuit in Hively v. Ivy Tech Community College of Indiana concluded “discrimination on the basis of sexual orientation is a form of sex discrimination” outlawed by Title VII. On March 10, 2017, the Eleventh Circuit in in Evans v. Georgia Regional Hosp. found (by a 2-1 vote) it could not recognize sexual orientation claims under Title VII.

For its part, the U.S. Supreme Court declined on December 11, 2017 to take up the issue of whether Title VII addresses sexual orientation discrimination.

So, why have two federal appellate courts embraced the opposite view of that asserted by the DOJ? Simply stated, the courts found sexual orientation discrimination to be a form of sex discrimination. Four arguments were cited in support of this conclusion.

First, the Seventh Circuit in Hively noted a lesbian or gay man “represents the ultimate case of failure to conform to a gender stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional); she [or he] is not heterosexual.” The court continued: “Any discomfort, disapproval, or job decision based on the fact that the complainant—woman or man— dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.”

Second, the Seventh Circuit in Hively observed “a person who is discriminated against because of the protected characteristic of one with whom she [or he] associates is actually being disadvantaged because of her [or his] own traits.” The Court found this to be just as true for sex discrimination as race discrimination.

Third, the Second Circuit in Zarda opined: “… the most natural reading of the statutes prohibition of on discrimination ‘because of sex’ is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation.”

Finally, as to the previously uniform rejection of sexual orientation claims under Title VII, the Seventh Circuit in Hively cited the need “to take a fresh look” at the issue “in light of developments at the Supreme Court extending over two decades.” The Second Circuit in Zarda cited a change of position by the Equal Employment Opportunity Commission and the Hively opinion.

At the district court level, the impact of the en banc decisions at the Seventh and Second Circuits has already been felt. Steadily since Spring 2017, new Title VII suits have been filed alleging sexual orientation discrimination. With Hively and Zarda providing non-frivolous arguments for the reversal of existing law in other circuits, sanctions are not a deterrent to such suits. Indeed, such suits carry the hope that other circuits or the U.S. Supreme Court will eventually follow the lead of the Seventh and Second Circuits.

To be sure, the Supreme Court may eventually decide that Congressional, not judicial, action is needed to expand the scope of Title VII to sexual orientation discrimination. In the meantime, however, employers must manage the risk of sexual orientation discrimination suits  even in states which do not have state laws barring such discrimination.

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Agreement to an order — when does it matter for appeal?

Originally published by Michelle O'Neil.

Almost every day in my practice area, lawyers are faced with the dilemmas:

  • When should you agree to an order, especially after a contested hearing?
  • What is the difference between “agreed as to form” versus “agreed as to form and substance”?
  • Is there ever a time to not sign off on an order even as to form?
  • Is there ever a time that a lawyer should agree to the substance of an order instead of the client?

I recently read an interesting blog post by the TexAppBlog.com guys on this topic Agreed as to Form and Substance: An Appellate Kiss of Death?

Consider that you have a contested hearing over an issue. You disagree with the judge’s ruling. You may even think this issue could be something appealable. The judge requests that the attorneys agree on the order. Opposing counsel presents an order that has the language “agreed as to form and substance” at the end by your signature blank. What do you do?

There is a split in the courts of appeals as to the effect of the language “agreed as to form and substance”. One view, according to Dallas, Texarkana, El Paso, and San Antonio, is that signing off on such language equates to a consent judgment that cannot be appealed. These courts distinguish between the phrases “agreed as to form” versus “agreed as to form and substance”. Claxton v. (Upper) Lake Fork Water Control and Imp. Dist. No. 1, 220 S.W.3d 537, 544 (Tex. App.—Texarkana 2006, pet. denied); Office of Attorney General of Texas v. Wilson, 24 S.W.3d 902, 906 (Tex. App.—Dallas 2000, no pet.); Cisneros v. Cisneros, 787 S.W.2d 550, 552 (Tex. App.—El Paso 1990, no writ); Bexar County Criminal Dist. Attorney’s Office v. Mayo, 773 S.W.2d 642, 644 (Tex. App.—San Antonio 1989, no writ).

On the other hand the two Houston courts, Corpus Christi, Austin and Fort Worth find that the language “agreed as to form and substance” is not enough to rise to a consent judgment. Standing alone, without other indications, the language is not enough to suggest that the matter was settled by agreement. Andrew Shebay & Co., PLLC v. Bishop, 429 S.W.3d 644, 646–47 (Tex. App.—Houston [1st Dist.] 2012, pet. denied); Chang v. Nguyen, 81 S.W.3d 314, 316, 319 n.1 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Bonner v. Texas Children’s Hosp., No. 13-03-228-CV, 2006 WL 349510, at *2 & n.5 (Tex. App.—Corpus Christi Feb. 16, 2006, no pet.); Cash v. Cash, No. 03-04-00563-CV, 2005 WL 1787552, at *3 & n.7 (Tex. App.—Austin July 27, 2005, no pet.); Leeper v. Woodrick, No. 2-04-371-CV, 2005 WL 1475614, at *2 (Tex. App.—Fort Worth June 23, 2005, no pet.).

Seems to me that there is an important distinction between the langauge “agreed as to form” versus “agreed as to form and substance”. The word form denotes the form of the order — does it meet the requirements of formatting, language, and content per the Judge’s ruling? The word substance indicates that the heart of the matter, the substance, what the hearing was about, is agreed. Using Jimmy Buffett as an example… If he were the judge, he would rule that a cheeseburger should come with lettuce, tomato, Heinz 57, french fried potatoes, kosher pickle and a beer. I disagree and prefer my cheeseburger with mayo, lettuce,

The best practice is to never agree to “form and substance” unless you actually agree to the content and subject matter underlying the order. At most, only agree to form. However, many times when the order results from a contested hearing, the result of which I disagree, I will not even agree to form to avoid any ambiguity in my position. As to substance, it is the client’s agreement to substance that matters, so many times even if agreeing to the matters underlying the order — the substance — the client should be the one signing off on that, not the lawyer.

 

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VII Before IX: Continuing Saga in Harassment Claim Preemption

Originally published by Seyfarth Shaw LLP.

By Kristin G. McGurn and Bridget M. Maricich

Seyfarth Synopsis: A recent decision by the U.S. District Court for the Eastern District of Texas, part of the Fifth Circuit Court of Appeals, reaffirmed a growing circuit split regarding whether Title VII of the Civil Rights Act of 1964 preempts concurrent claims raised under Title IX of the Education Amendments Act of 1972. In Sara Slabisak v. Univ. of Tex. Health Sci. Ctr. at Tyler & Good Shepherd Med. Ctr., No. 4:17-cv-597, 2018 U.S. Dist. LEXIS 30884 (E.D. Tex., Feb. 27, 2018), Judge Amos Mazzant dismissed a former medical resident’s Title IX claims of sexual harassment and retaliation against the University of Texas Health Science Center at Tyler on the grounds that Title VII is the exclusive remedy for claims of employment discrimination on the basis of sex in a federally funded educational institutions. While consistent with precedent in the Fifth and Seventh Circuits, the decision stands at odds with prior decisions in the First, Third and Fourth Circuits holding that employees of institutions subject to both Title VII and Title IX may raise such claims under whichever statutory scheme they choose.   

Last March, we wrote about a watershed decision in the U.S. Court of Appeals for the Third CircuitDoe v. Mercy Catholic Medical Center, No. 16-1247 (3d Cir. 2017) – that held the nondiscrimination and anti-harassment protections of Title IX of the Education Amendment Act of 1972 apply to a private medical hospital’s residency programs, even those that lack a formal affiliation to an educational institution where Title IX has historically applied. The decision was also notable for holding that the concurrent applicability of Title VII of the Civil Rights Act of 1964 to such institutions did not preclude the plaintiff in that matter, a former resident, from filing her Title IX claim.   The Third Circuit’s decision contributed to a growing split among the federal Circuits regarding whether Title VII and its extensive administrative pre-requisites preempt concurrent remedies under Title IX for those individuals employed by institutions subject to both statutes.   In Doe, the Third Circuit joined the First and Fourth Circuits in holding that in a covered individual employed by such an institution may seek remedy under whichever statutory scheme he or she chooses. These decisions contradict case law in the Fifth and Seventh Circuits, which have affirmatively held that Title VII and its carefully crafted statutory administrative pre-requisites are the exclusive remedy for sex discrimination claims brought by employees of institutions covered by both Title VII and Title IX.

A recent decision by the U.S. District Court for the Eastern District of Texas – within the Fifth Circuit – put this precedent to the test. In Sara Slabisak v. Univ. of Tex. Health Sci. Ctr. at Tyler & Good Shepherd Med. Ctr., No. 4:17-cv-597, 2018 U.S. Dist. LEXIS 30884 (E.D. Tex., Feb. 27, 2018), a former medical resident at the University of Texas Health Science Center (“UTHSC”) and Good Shepherd Medical Center (“Good Shepherd”), alleged that her supervising resident subjected her to continuous verbal, physical and sexual harassment and that, when she reported his conduct, the hospital discriminated against her by failing to address the conduct and retaliated against her by suspending her indefinitely from the program. Slabisak asserted that, among other things, UTHSC and Good Shepherd violated her rights under both Title VII and Title IX. UTHSC moved to dismiss Slabisak’s Title IX claims on the grounds that Title VII preempted any recovery under Title IX.

Judge Amos Mazzant of the Eastern District of Texas agreed. In a brief decision, Judge Mazzant re-affirmed Fifth Circuit precedent, noting “the basis for Plaintiff’s Title IX claims – deliberate indifference and retaliation – revolve around the allegations that Plaintiff was subjected to a hostile work environment, which UTHSC failed to address and correct; and moreover that UTHSC retaliated against Plaintiff when she informed them of said hostile work environment. Such claims fall within the exclusivity of Title VII – employment discrimination on the basis of sex in a federally funded educational institutions.” Id. at *7-8. Judge Mazzant accordingly dismissed Slabisak’s Title IX counts, but permitted the Title VII claims to move forward. Of note, none of the parties appeared to challenge the notion that Slabisak, as a resident, was an employee for purposes of Title VII.

What does this mean? Medical centers, hospitals, and other healthcare institutions providing accredited teaching and training programs, particularly programs formally affiliated with educational institutions, should be familiar with the precedent in the federal Circuits in which they operate. Though the substantive protections of Title VII and Title IX do not differ substantially, the process for redress, the standards of liability, and the remedies may differ. Most notably, Title VII requires exhaustion of administrative remedies. Employees seeking redress under Title VII must first file a complaint with the Equal Employment Opportunity Commission (“EEOC”) or similar state administrative agency prior to filing suit in state or federal court. Title IX includes no such prerequisite. Individuals subject to the protections of Title IX may file a complaint with the Department of Education Office for Civil Rights (the DOE version of the EEOC), but they may opt to forego this step and file suit directly in court. The statute of limitations for Title VII claims – within 180 or 300 days, depending on the state – is much shorter than the statute of limitations for Title IX claims. Title IX does not include its own statutory time limitation and typically follows state tort law limitations, which are usually two or more years. Finally, the type of individual remedies available under Title IX is subject to some murky case law, but generally Title IX plaintiffs may seek actual and compensatory damages, injunctive relief, and attorneys’ fees.

This decision further highlights the importance, particularly in the current climate, of responding effectively and expeditiously to all complaints of discrimination, harassment, and retaliation. Healthcare institutions can mitigate risks associated with such complaints – whether Title VII or Title IX applies – by:

  • Maintaining wide-open, easily accessible and well-communicated procedures, using multiple avenues, for reporting, investigating, and resolving complaints of discrimination, harassment, and retaliation.
  • Ensuring those physicians, administrators, managers, and faculty who are most likely to witness or hear of reports of risky behavior are well trained in not only what and how to report, but also how to empower bystanders and effectively and sensitively manage those situations and any reports they receive.
  • Documenting the institutions actions with respect to all reports of discrimination, harassment, and retaliation – from report through investigation and resolution – so that the institution’s good actions and consistent approach can be proven in the event of an administrative charge or lawsuit.

If you have any questions regarding these issues, please contact the authors, your Seyfarth attorney or a member of the firm’s Health Law Group.

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Murder Charges Filed in Schlitterbahn Water Slide Death

Originally published by Jarod Cassidy.

A co-owner of Schlitterbahn Waterparks and Resorts and a water slide designer have been arrested and charged with murder for the 2016 death of a 10-year-old boy who was decapitated while riding water slide at Schlitterbahn’s Kansas City park.

Three Indictments So Far in Tragic Schlitterbahn Death

According to the Chicago Tribune, the charges were filed Tuesday. The Kansas attorney general’s office identified the arrested individuals as Jeffrey Henry, 62, co-owner of Texas-based Schlitterbahn Waterparks and Resorts, and John Schooley, designer of the 17-story Verruckt water slide.

Both men are charged with reckless second-degree murder for the death of 10-year-old Caleb Schwab as well as charges related to the injuries of 13 other people on the slide. Second-degree murder carries a sentence of 9 years to 41 years.

Henry is being held in a Texas jail without bound as of Tuesday, pending extradition to Kansas; however, Schooley is not yet in custody.

Last week, a Kansas City jury indicted Tyler Austin Miles, the former operations manager of the Kansas City Schlitterbahn park, on 20 charges, including a single count of involuntary manslaughter.

Essential Design Steps Skipped as Park Rushed to Impress the Travel Channel

The indictments say that neither Henry nor Schooley possessed technical or engineering expertise related to amusement park rides, and that Henry made a “spur of the moment” decision to build the world’s tallest water slide in 2012 to impress the producers of a Travel Chanel show.

As the project was rushed along, the company building the water slide, Henry & Sons Construction Co., skipped essential steps in the design and building process.

The indictment contends that “not a single engineer was directly involved in Verruckt’s dynamic engineering or slide path design.” Further, when claims of airborne rafts emerged in news reports in 2014, a company spokesperson was sent out to discredit the claims as Henry and Schooley began “secretly testing at night to avoid scrutiny.”

In the 182 days the ride was in operation, 13 people suffered injuries, including temporary blindness and concussion, and one person was killed.

Contact an Experienced Amusement Park Accident Attorney

Amusement parks are intended to give families a fun, entertaining venue to have fun and relax. The last thing people should worry about when at an amusement park is their safety and the safety of their children. Regulation and oversight of fixed-site amusement parks can be lacking, which could lead to unsafe rides and experiences. If you or a loved one were injured while at an amusement park, contact Thomas J. Henry for a free case review.

Our experienced amusement park injury lawyers are available 24/7, nights and weekends to take your call. Thomas J. Henry has offices located in Corpus ChristiSan Antonio, and Houston, serving clients across Texas and nationwide.

The post Murder Charges Filed in Schlitterbahn Water Slide Death appeared first on ThomasJHenry.

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Appeals Court Upholds Sanctions Against Dallas Lawyer for Use of ‘Push Poll’ to Sway Jury Pool

Originally published by John Council |.

 

A Texas Court of Appeals has affirmed $177,000 in sanctions against William Brewer III after a trial court ruled the prominent Dallas attorney engaged
      

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