Dallas Court of Appeals Slaps Down a Texas Anti-Slapp Appeal Based on the Plaintiff’s Communications

Originally published by Joseph Lemoine,,,,,.

In Encore Enterprises, Inc. v. Maresh Shetty, Ca. No. 05-18-00511 (Dallas COA 2019), the Dallas COA upheld the trial court’s denial of a Texas Anti-Slapp.

Encore’s CFO, Shetty, objected to certain acts involving a 1031 exchange and tax benefits that he felt could subject himself and Encore to criminal liability. Shortly thereafter Encore terminated Shetty. In turn, Shetty filed a wrongful termination suit in Dallas County.

Encore filed a different suit in Collin County to enjoin Shetty from disclosing confidential information. Shetty responded that his communications concerning Encore’s actions were a “matter of public concern.”

Encore attempted to bootstrap Shetty’s concession that his communications were a matter of public concern into a Texas Anti-Slapp Motion in Dallas County, seeking dismissal of Shetty’ wrongful termination claim.

The Dallas COA made short work of Encore’s appeal, quickly pointing out that Shetty’s communications to Encore are not protected by the Texas Anti-Slapp (in this procedural situation). Rather, Encore had to show that Shetty’s lawsuit pertained to Encore’s communications.

Because it did not, the appeal failed.

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Court Found Trial Court Had Jurisdiction To Appoint Temporary Administrator Where A Will Contest Was Filed From A Muniment of Title

Originally published by David Fowler Johnson.

In Chabot v. Estate of Sullivan, the decedent’s attorney probated a holographic will as a muniment of title. No. 03-17-00865-CV, 2019 Tex. App. LEXIS 2145 (Tex. App.—Austin March 20, 2019, no pet.). A claimant then asserted a claim that the decedent sexually abused him. The tort claimant and the decedent’s sister filed will contests. The court signed an order appointing a temporary administrator and then signed a subsequent order authorizing the administrator to settle the tort claimant’s claims. The party who would take under the will alleged that the order appointing the temporary administrator and approving the settlement were void. The court of appeals disagreed, holding that the orders were not void because the decedent’s sister and the tort claimant filed the will contests well within the two-year deadline under Texas Estates Code Section 256.204(a), no representative of the estate existed at the time as it was a muniment of title, and the trial court appointed the temporary administrator pursuant to its authority under Texas Estates Code Ann. Section 452.051(a). The court of appeals noted that the Estates Code provides at least two mechanisms for challenging a probate court’s order: a bill of review and a will contest. “Section 256.204, therefore, allows for the filing of a will contest within two years of the date the will was admitted to probate. It is undisputed that both Chabot and the Tort Claimants filed timely will contests.” Id. The court concluded:

Chabot and the Tort Claimants filed will contests well within the two-year deadline. See Tex. Estates Code § 256.204(a). No representative of Sullivan’s estate existed at the time, and the trial court appointed Deadman as temporary administrator pursuant to its authority under Section 452.051. See id. § 452.051(a). Chabot has not cited any authority prohibiting the trial court’s actions, and we are not aware of any. We therefore hold that the trial court’s order appointing Deadman was not void ab initio and that the court’s subsequent order authorizing Deadman to settle the Tort Claimants’ suits was not void on that ground.

Id.

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Was There A Breach In Fiduciary Duty In The Taco Cabana Empire?

Originally published by Cris Feldman.

When Felix Stehling opened the first Taco Cabana restaurants in 1979, he likely didn’t anticipate how quickly the restaurant would grow. While Stehling had a number of successful restaurants and businesses before Taco Cabana, the little taco shack would be the one that cemented him in the culinary history books. Sadly, the current status of the Taco Cabana empire is nowhere near what it used to be, and Stehling’s stepson alleges that’s due to a breach of fiduciary duty.

Stehling passed away in December 2012. At the time of his death, his assets were valued at approximately $20 million. Fast forward seven years, and there is little left. Stehling’s stepson and heir has filed a lawsuit against Stehling’s longtime investment advisor claiming the fortune was squandered by over-leveraging the assets to generate cash.

While the investment advisor has been accused of fraud and self dealing, he has pointed to other causes for empire’s decline. The planner blames the trouble on the 2008 financial crisis and poor investment decisions made by Stehling in the years leading up to his death. However, what makes this fiduciary liability case particularly interesting is an arbitration agreement over twenty years old.

When Stehling hired the investment advisor in the 1990s, he signed an arbitration agreement. The financial advisor has asked a judge overseeing the case to dismiss the claim stating all disputes must be resolved through arbitration as agreed to in the original contract. For his part, Stehling’s stepson has fought against arbitration proceedings because the agreement was only between the investment advisor and his stepfather. He never agreed to such an agreement.

Fiduciary Duty With Financial Advisors

Fiduciary duty has a broad and complicated legal definition. Because of this, disputes between financial advisors and their clients can be come complicated. Matters can be complicated further if the parties agree to arbitration agreements like the one used by Stehling.

If you believe your financial advisor has breached his or her fiduciary duty, do not wait to call Feldman & Feldman today. Our fiduciary duty attorneys are experienced trial lawyers and litigators that can help you hold fiduciaries accountable for financial losses they cause. Contact us today to schedule an appointment.

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US Supreme Court Turns Off The Lights On Coerced Class Arbitration

Originally published by Michael Leggieri and Robin Samuel.

Last Wednesday, the US Supreme Court issued yet another pro-employer arbitration decision.

In a 5-4 split, the Supreme Court held in Lamps Plus Inc. v. Varela that a party cannot be compelled to submit to a class arbitration (as opposed to the arbitration of individual claims) unless the arbitration agreement explicitly authorizes class proceedings in arbitration.

In doing so, the Supreme Court reiterated two key aspects of its Federal Arbitration Act jurisprudence:

1. Arbitration is a matter of consent, not coercion; and
2. Class arbitration is fundamentally different than the traditional individualized arbitration envisioned by the FAA.

Because, according to the majority opinion, class arbitration so fundamentally changes the nature of arbitration, a party can only be forced to litigate class claims in arbitration under the FAA if there is a contractual basis for concluding that the party agreed.

 

The issue before the Supreme Court Lamps Plus was what type of contractual basis was required. We now have the answer – the contract must explicitly permit class arbitration, and either silence or ambiguity on the issue are not enough. 

Background

In 2010, in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., the Supreme Court held that a court may not compel arbitration on a class-wide basis when an agreement is “silent” on the availability of such arbitration. In Lamps Plus, a former employee of the lighting store chain filed a putative class action asserting claims against his employer after a data breach exposed employee personal information. The employer moved to compel arbitration on an individual rather than a class-wide basis. The federal district court granted the motion to compel arbitration, but rejected the employer’s request for individual arbitration, instead authorizing arbitration on a class-wide basis. The Ninth Circuit affirmed.

The Ninth Circuit acknowledged the agreement included no express mention of class proceedings. But that did not end the inquiry, the Ninth Circuit reasoned, because unlike in Stolt-Nielsen, the parties in Lamps Plus had not stipulated that the agreement did not address (i.e., was “silent” about) class arbitration. The Ninth Circuit then determined the agreement was ambiguous on the issue of class arbitration. On the one hand, certain phrases seemed to contemplate purely binary claims, while other phrases were broad enough to arguably include class claims. Because the employer had drafted the agreement, the Ninth Circuit applied California contract interpretation rules to construe the ambiguity against the drafter, adopting the employee’s interpretation favoring class arbitration.

Supreme Court: “More than ambiguity” required

The Supreme Court reversed the Ninth Circuit, holding that consistent with the FAA, an ambiguous agreement cannot provide the necessary “contractual basis” for compelling class arbitration. The Supreme Court pointed out that, in applying the California rule of construing ambiguity against the drafter, the Ninth Circuit did not find the arbitration clause reflected an agreement to class arbitration, but instead actually held the opposite – that the parties had different understandings of the clause, rendering it ambiguous. As summarized by the Supreme Court:

Class arbitration is not only markedly different from the ‘traditional individualized arbitration’ contemplated by the FAA, it also undermines the most important benefits of that familiar form of arbitration. . . . The statute therefore requires more than ambiguity to ensure that the parties actually agreed to arbitrate on a class-wide basis.”

Key Takeaways

• Following Stolt-Nielsen, Concepcion and Epic Systems, this is yet another Supreme Court decision affirming the enforceability of agreements to arbitrate on an individual basis, while also reiterating the benefits of individualized arbitration.
• Although we continue to recommend that an arbitration agreement include an express class action waiver, this decision mitigates against the risk that an employer may be compelled to class arbitration based on an agreement that is ambiguous (i.e., silent, absent a stipulation that the agreement is “silent”) on the availability of class arbitration.

For more, please reach out to your Baker McKenzie employment lawyer.

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Can Small Firms Survive Rising Competition in Texas?

Originally published by Texas Lawyer.

 

A lease coming up for renewal is a common time for a small firm’s partners to do some soul searching and decided if the firm will stay in business.
      

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State Bar of Texas Board Update

Originally published by Lowell Brown.

Proposed rules changes move forward
The Committee on Disciplinary Rules and Referenda (CDRR) has recommended rule change proposals pursuant to Government Code section 81.0876. The proposals relate to the following:

• Rule 1.02 Scope and Objectives of Representation and Rule 1.16 Clients with Diminished Capacity, and
• Rule 1.05 Confidentiality of Information

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Strickhausen v. Petrohawk – Ratification of Pooled Units

Originally published by John McFarland.

The San Antonio Court of Appeals handed down its opinion last week in Strickhausen v. Petrohawk Operating Company, No. 04-18-00636-CV.  The issue: Did Ms. Strickhausen ratify a pooled unit not authorized by her lease, or is she estopped from contesting the validity of the unit, because she accepted royalty checks calculated on her unit interest in production? The trial court held that she did; the Court of Appeals reversed and remanded, holding that there were issues of fact as to whether she intended to ratify or was estopped.

The issues relate to Petrohawk’s WK Unit 4 1H Well in La Salle County:

Ms. Strickhausen owns a 1/2 mineral interest in Tract 3 shown above. Her lease prohibits pooling without her consent. Without obtaining her consent, Petrohawk filed a pooled unit designation including her lease and drilled the well. It then asked Ms. Strickhausen to ratify the unit. Settlement negotiations were unsuccessful. Petrohawk sent Ms. Strickhusen checks for her share of unit production, which she cashed, but her attorney continued to tell Petrohawk that she objected to the pooled unit.
Continue reading →

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Practicing the Art of Rebuttal

Originally published by Academic Support.

It is the time in the semester when I give many, many pep talks. The time when I urge students to stay positive. The time when I suggest students need to rebut their negative self-talk. We all have experienced a…

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Broad Settlement Discharges Mineral Liens

Originally published by Charles Sartain.

Confess … Confess!

When  you prepare, review and/or sign settlement agreements you sometimes pay less attention than you should to the details of those “standard” releases! Acme Energy Services, d/b/a Big Dog Drilling v. Staley et al. says, Beware the “boilerplate”; before signing consider what you are actually trying to accomplish.

The facts

Lake Hills contracted to provide materials and services on oil and gas leases owned by Heritage. Big Dog and other subcontractors provided work and materials and invoiced Lake Hills. Heritage stopped paying Lake Hills and Lake Hills stopped paying the subs, who then recorded statutory mineral property liens against Heritage, its leases, and the well. Each subcontractor sued Heritage to foreclose and for personal liability.

In another suit Heritage and Staley settled a dispute over a separate agreement involving the leases. Staley received a 19.75% working interest in the Heritage leases. The liens had been filed before the assignment to Staley.

In the Heritage bankruptcy Heritage and the subcontractors settled adversary proceedings regarding the priority and valdity of the subcontractors’ debts and liens. The parties agreed to very broad release language: release from all claims, etc, known or unknown; arising or that could have arisen, etc.; full and final satisfaction; parties can’t enforce any liens or claims, etc.

The subcontractors hustled back to state court to foreclose on the leases, stipulating that Staley was not personally liable on the debts.

The question

Were the liens extinguished because the underlying debt had been extinguished by the settlement agreement?

The court considered several rules in arriving at its answer:

1. Under Chapter 56 of the Texas Property Code, Staley took his interest subject to the liens.
2. The liens ordinarily could be foreclosed against Staley’s interest even after the prior interest holders’ liens had been foreclosed in a separate action, provided a deficiency remained after the prior foreclosure.
3. Satisfaction of a debt automatically extinguishes a lien securing that debt.
4. An accord and satisfaction is a new contract in which parties agree to the discharge of an existing obligation in a manner other than originally agreed upon.
5. Absent intent required for accord and satisfaction, taking of security for payment of an existing obligation does not discharge the debtor from an action to recover under the original contract and does not discharge the lien arising from it.

The answer

The settlement extinguished more than Heritage’s personal liability; it did not leave the underlying lien intact against the property because Big Dog’s debt was extinguished via the settlement.  Big Dog could not foreclose on its lien against Staley’s interest.

The settlement expressly released not only the underlying debt owed by Heritage but the lien as well. Heritage accepted liability for a portion of the debt and the subcontractors received priority treatment in the bankruptcy. Payment of a new amount would fully satisfy the existing claim. This demonstrated mutual intent to discharge the underlying debt by accord and satisfaction.

What about the Bankruptcy Code?

Liens pass through bankruptcy unaffected by discharge and remain in place when they are not paid in full under a confirmed plan or are not extinguished by Bankruptcy Code Section 506(d). Big Dog’s problem was that under the settlement, acceptance of liability by Heritage and granting the subcontractors priority status as to the stipulated amount would be full and final satisfaction of the claims and liens.

This was one of four related cased decided on the same day, with the same result.

Confess!

Bob Dylan’s voice has always irritated you but you love his songs! If you are one of “those people”, here are two of his Nobel-worthy tunes that will be pleasing to your ears.

One by Wendy Bucklew and another by Susan Tedeschi.

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TX Attorney General Opinion: Groundwater Conservation District Cannot Limit Definition of Agriculture

Originally published by tiffany.dowell.

 

Texas Attorney General, Ken Paxton, recently issued an opinion regarding the ability of a Texas Groundwater Conservation District to limit the definition of “agricultural crop” under its rules. [Read full opinion here.]  Although not binding on a court, this opinion could potentially impact GCDs and producers around the state.

Background

Senator Bob Hall, Chair of the Texas Senate Committee on Agriculture requested an opinion from Texas Attorney General Ken Paxton on an interesting legal question.  Specifically, Senator Hall wanted to know how the Attorney General thought a court would rule regarding a definition used by the Mid-East Texas Groundwater Conservation District, which governs groundwater in Madison, Leon, and Freestone Counties.

Texas Special Districts Code Section 8866.151 allows GCDs to impose reasonable fees on wells for which permits have been issued.  These fees are capped at 25 cents per acre-foot for wells used to irrigate “agricultural crops” and 17 cents per thousand gallons for water used for any other purpose.  (Just for reference, 17 center per thousand gallons is equivalent to about $55/acre foot).  Neither Chapter 36 of the Texas Water Code, nor Section 8866 of the Special Districts Code, both of which apply to GCDs, define the term “agricultural crop.”

In its regulations, the Mid-East Texas GCD defines an “agricultural crop” to be “food or fiber commodities grown for resale of commercial purposes that provide food, clothing, or animal feed.”  This limited definition would exclude other irrigated crops, subjecting those excluded crops to the higher fee.  A turf farm owner within the Mid-East GCD jurisdiction objected to this definition and argued that turf should be considered an “agricultural crop” and should be charged the lower fee.

Thus, the question posed by Senator Hall was as follows, “whether a groundwater conservation district has the authority to define, by rule, an ‘agricultural crop’ as ‘food or fiber commodities grown for resale of commercial purposes that provide food, clothing, or animal feed’ and utilize that definition to determine the applicable fee rate for ‘irrigating agricultural crops.’”

AG Opinion

Recognizing there was no definition of this term in Chapter 36 of the Water Code or Section 8866 of the Special Districts Code, the Attorney General applied the general rule announced by the Texas Supreme Court, “terms that are not otherwise defined are typically given their ordinary meaning.” With this guiding principle, the AG looked to dictionary definition of both “agriculture” and “crops” and noted the broad nature of each term.  “Thus, from the ordinary meaning of the words, an ‘agricultural crop’ may include a wide variety of products,” said the AG.

Additionally, the AG looked to the statutory definitions of the term “agriculture” in Chapter 36 of the Texas Water Code.  Section 36.001(19) defines “agriculture” broadly, including the clauses relevant here, “the practice of floriculture, viticulture, silviculture, and horticulture, including the cultivation of plants in containers or nonsoil media, by a nursery grower” and “planting cover crops, including cover crops cultivated fro transplantation.”  Further, “nursery grower” engages in “the actual cultivation or propagation of a product” which “typically includes activities associated with the production or multiplying of stock such as the development of new plants fro cuttings, grafts, plugs, or seedlings.”  Additionally, the term “agricultural use” is defined as “any use or activity involving agriculture, including irrigation” under the Water Code.

Based on the information above, the AG determined that the Mid-East Texas GCD’s limited definition conflicts with the Water Code and that Section 8866.151 does not allow a district to chose which agricultural uses will receive the lower statutory rate by drafting a more narrow definition than included in the Water Code.  “Therefore, a court would likely conclude that a groundwater conservation district does not have the authority to define ‘agricultural crop” in the manner done by Mid-East Texas GCD.

Conclusion

Again, an AG’s Opinion is not binding on a court, but it does provide the an opinion of how Attorney General Paxton believes a court would rule on this issue.  If other GCDs in Texas have also passed rules including narrow definitions of “agricultural crop,” this opinion may encourage GCDs to review and revise their definitions.  For agricultural producers of products that may not fall within a narrowly drafted GCD definition, this opinion may give them support in an argument to seek imposition of the far lower fee for agricultural crops.

To determine if you are located within a Groundwater Conservation District, click here.  To learn more about GCDs and Texas Groundwater Law, click here.

 

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Top 10 from Texas Bar Today: Yogi Berra, Catfishing, and Rhetorical Questions

Originally published by Joanna Herzik.

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

10. Supreme Court To Hear Three LGBTQ Discrimination Cases –  Robert G. Chadwick, Jr. @chadwicklawusa of Seltzer Chadwick Soefje & Ladik, PLLC in Frisco

9. Fifth Circuit Orders Halliburton to Arbitrate Insurance Dispute Following Oil Rig Explosion – Beth Graham of Karl Bayer @karlbayer in Austin

8. TX Supreme Court Addresses Duty of Executive Rights Holder – Tiffany Dowell Lashmet @TiffDowell, Assistant Professor and Extension Specialist in Agricultural Law with Texas A&M Agrilife Extension in College Station

7. To sign, or not to sign – – David Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas

6. Client Development: What Kind of Client Development Efforts Suit You Best? – Cordell Parvin @cordellparvin of Cordell Parvin LLC in Dallas

5. What if Jeff Bezos Got Divorced in Texas? – Larry Hance of Hance Law Group, P.C. in Dallas

4. Dallas Computer Crimes Lawyer Explains Consequences of Catfishing – Broden & Mickelsen, LLP @BrodenLaw in Dallas

3. The Case of Mistaken Indemnity – Drew York of Gray Reed & McGraw @GrayReedLaw in Dallas and Houston

2. Are Rhetorical Questions Effective? – Kacy Miller @CourtroomLogic of CourtroomLogic Consulting, LLC in Dallas and Fort Worth

1. Yogi Berra Makes His First Appearance in the Texas Anti-Slapp Wars … – Sean Lemoine @TXantislapplaw of Wick Phillips in Dallas

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Jerry C. Alexander of Dallas selected State Bar of Texas board chair-elect

Originally published by Amy Starnes.

Jerry C. Alexander

Jerry C. Alexander was selected chair-elect of the State Bar of Texas Board of Directors during the board’s meeting in Georgetown on Friday. Alexander will take office during the State Bar of Texas Annual Meeting to be held June 13-14 in Austin. He will serve as chair until June 2020.

Alexander is president of Passman & Jones, P.C. in Dallas having joined the firm in 1972, the same year he earned his J.D. from Southern Methodist University. Alexander has handled complex business litigation for more than 30 years in the areas of antitrust, business torts, patents, trade secrets, unfair competition, and labor-related business issues.

He has served on the State Bar Board of Directors since 2017 and on the Law Focused Education Committee from 2007 to 2009. He served in several leadership positions for the Dallas Bar Association, including as its president in 2016. He was chair of the Dallas Bar Association Board of Directors in 2012, led a project to revise Dallas County’s Local Rules of Practice, and chaired the Dallas Bar’s Vision 2020 Project, among other service work.

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Client Development: What Kind of Client Development Efforts Suit You Best?

Originally published by Cordell Parvin.

I am posting this blog again specifically for the lawyers who have signed up for the Lateral Link Rainmaker Series. If you have signed up, I encourage you to discover their Top 5 Strengths before you participate in the program. Click on the link at the bottom of this post and check out the report on my Top 5 Strengths. I only wish I had known them when I first became a lawyer.

I once met with a wonderful lawyer I was coaching who was upset. It seems her mentor/senior lawyer in her firm was giving her a hard time about not taking enough potential clients and referral sources to lunch.

She told me she was uncomfortable doing that. I would have been also.

One size clearly does not fit all. The lawyers I coached appreciated that they can approach client development in ways that will work best for them. You can also. The first step to becoming a rainmaker is to figure out what client development efforts you will enjoy and what efforts will work best for you.

Years ago I read Malcolm Gladwell’s book:  The Tipping Point: How Little Things Can Make a Big Difference. I recommend the book.

Like most business/marketing books I suggest you skim the parts of the book that do not apply to marketing your law practice and focus on the parts that do.

The first of the three main points in The Tipping Point is the “law of the few.”

The marketing activities that will work best for you will depend in part on whether you are a

1. Connector,
2. Maven or
3. Salesmen.

Connectors

Connectors know lots of people. You know the type. No one is a stranger to them.

They know people in different worlds. Connectors are masters of “weak ties,” meaning many relationships that are not deep ones.

If you are a connector, more than anything else you need to spend your marketing time out from behind your computer.

Want to determine if you are a connector? Take Gladwell’s Are you a connector test.

Mavens

Mavens accumulate knowledge. They do the research most of us don’t want to do and they find joy in passing along what they learn.

If you are a maven, you figure out things that impact your clients before other lawyers. You should spend your marketing time staying on top of what is impacting your clients and writing or speaking about those topics.

Salesmen

Salesmen are charismatic people who can persuade others even when the others are not convinced of what they are hearing. They can sell anything.

Based on two studies, Gladwell notes that little things can be as important as big things. Second, non-verbal clues are as important; or, more important than verbal clues. Finally, persuasion works in ways we do not fully appreciate.

It is not always the obvious eloquence; it can be way more subtle. Great salesmen connect with their clients in a variety of non-verbal ways including non-verbal enthusiasm, confidence and emotional expressiveness. If you are a salesman, you should spend your marketing time speaking to groups and in one-on-one meetings with potential clients and referral sources.

Here is another summary of the three types Know Your Strength for More Success: Are you a Connector, a Maven, or a Salesman?

StrengthsFinder-Figure out your strengths

If you want to get a better idea of what kind of marketing efforts will work best for you, buy the book StrengthsFinder 2.0 and take the StrengthsFinder test. My friend Cindy Pladziewicz helps lawyers I coach figure out how to use their StrengthsFinder results.

Cindy has been working with me on my strengths.

Take a look at a report that was done analyzing my strengths. If you look at the report about me you will likely understand what client development efforts suited me best when I practiced law and why I am well suited to teach and coach lawyers.

Which type of person are you? What are your strengths? Are you spending your marketing time to your best advantage?

 

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McAllen Tackles Unemployment and Internet Access

Originally published by Herrman & Herrman, P.L.L.C..

Many of those who have difficulty getting to and from work may be in luck as the City of McAllen is working with their Economic Development Council to help reach those who have that issue and bring them into the workforce. One of the other issues is trying to bring internet connections throughout the City in order to help make this possible. 

The City has conducted research showing it’s not just a low-income thing, where people work from home.  In actuality, it’s the reverse being true, so there is not really a downside to exploring whether or not the internet should be brought to all parts of the City.   

Hidalgo County, in general, does not have a lot of internet access. The City of McAllen is leading the way, but not every part of the City has the capability.  This capability is essential in the new age and being able to bridge the gap with those who don’t have a vehicle to get to and from work. However, at the same time, there is a large movement towards people working on flex schedules, working from home, increasing productivity, improving morale, and positivity. 

This movement could really benefit those who really can’t get around for one reason or another.  An individual can still be very productive when at home and call center companies who allow their people to work from home appears to be just the ticket. McAllen is on the right track with this. The City is currently in lawsuits with internet companies over internet capabilities throughout the City and bringing it to the people. 

Colonias not just in McAllen, but throughout the County lack many of the basics.  The Mayor for the City of McAllen is making it a mission that the internet should become a part of those basics that are brought to all areas. I, for one, agree that this should be the case. The future is the internet and working mobile and doing more away from the traditional office setting and the more ways to connect people and reduce unemployment and help the economy and the people do better. 

The City is really making an effort to reach the less fortunate ones and there are many, many people that could do the jobs out there but just don’t have a way to get to work. This is a great way to help. 

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Oklahoma Bar Argues Mandatory Dues Are Constitutional in Lawyer’s First Amendment Suit

Originally published by Texas Lawyer.

 

Oklahoma attorney Mark Schell sued Oklahoma Bar Executive Director John Morris Williams, who filed a motion to dismiss the case Wednesday, arguing that the bar’s compulsory membership and mandatory dues are constitutional.
      

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Equivalent Project Relief in the Gulf

Originally published by Energy Legal Blog ®.

It’s been 3 weeks since I relocated from Bracewell’s London office to Dubai and I’ve been wearing down my shoe leather in the DIFC and beyond meeting old acquaintances and new contacts.  Most of the time, discussions invariably focus on project pipeline, market trends and regional challenges.  However, I’ve been constantly gratified by people’s willingness to talk about my own specialism: construction.  As my colleagues often tell me, construction isn’t seen as the most glamorous area of law (although it should be).  But a construction contract is where a project’s capex is spent, so it’s c

Energy, Finance
Tom Swarbrick
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$20 Million Medicare Fraud Scheme Exposed in Houston

Originally published by Neal Davis.

How severe are healthcare fraud penalties and punishments?

Just ask a Houston woman whose exposed Medicare fraud scheme resulted in a 10-year prison sentence and an order to pay back more than $20 million, according to the U.S. Department of Justice.

Evelyn Mokwuah of Pearland, Texas was sentenced in federal court in Houston by U.S. District Judge Gray H. Miller of the Southern District of Texas. She’s the former director of nursing and administration of Criseven Health Management Corporation (Criseven) and Beechwood Home Health (Beechwood) — both based in Houston.

Along with a prison sentence of 10 years, Judge Miller also ordered Evelyn to pay $20,462,607.21 in restitution to Medicare for the illegally obtained funds in the healthcare fraud scheme.

At her trial, Evelyn was found guilty of one count of conspiracy to commit healthcare fraud as well as four counts of healthcare fraud.

The Medicare fraud scheme involved Evelyn and others making false and fraudulent claims for home health services at Criseven and Beechwood — services which weren’t medically necessary, weren’t provided, or both.

Trial evidence showed that Evelyn had falsely certified and billed Medicare for patients who weren’t homebound or didn’t qualify for home health services.

Trial evidence also showed that she, along with other individuals, paid patient recruiters to enlist Medicare beneficiaries for Beechwood and Criseven, falsified patient records to show that patients were homebound when they weren’t, and paid physicians to certify false plans of care for Medicare beneficiaries so that Criseven and Beechwood could bill Medicare for such services.

The case was investigated in part by the Federal Bureau of Investigation (FBI) for this area’s Medicare Fraud Strike Force, which is supervised by the Criminal Division’s Fraud Section and the U.S. Attorney’s Office for the Southern District of Texas.

In the past dozen years, similar strike forces nationwide have charged almost 4,000 persons for collectively billing Medicare for over $14 billion in fraudulent claims.

The federal government’s aggressive actions to expose and punish Medicare fraud have a worthy goal, yet sometimes such actions can cast a wide net and involve innocent people who shouldn’t be defendants in these cases.

Have you or someone in your family been snared in a healthcare fraud sting?

If so, and if you or a loved one faces a charge of Medicare fraud or healthcare fraud, notify the Neal Davis Law Firm today. Our experienced Houston healthcare fraud defense lawyers will provide you with a free legal review of your case.

We fight for the rights of clients in Fort Bend County, Montgomery County, Houston and the remainder of Harris County. We are knowledgeable and skilled in handling white collar crime cases involving fraud and embezzlement, including different types of Medicare and Medicaid fraud.

Let’s get started protecting your legal rights.

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State Bar board to meet Friday in Georgetown

Originally published by Lowell Brown.

The State Bar of Texas Board of Directors will hold its quarterly meeting Friday, April 26 in Georgetown.

The meeting will begin at 9 a.m. at the Georgetown Sheraton Hotel, 1101 Woodlawn Ave., San Gabriel Ballroom E.

Members of the public are welcome to attend.

Click here to view the meeting agenda and materials.

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Dallas Computer Crimes Lawyer Explains Consequences of Catfishing

Originally published by Broden & Mickelsen LLP.

In an internet age, it’s startlingly easy for someone to use another person’s picture, name, or other identifying information to commit an internet crime. The term “catfishing,” which is sometimes spelled “catphishing” typically involves using someone else’s photo, name, or personal information for the purpose of luring another individual into a romantic or personal relationship.

As a phrase, catfishing was first coined in 2010, when a documentary about the practice was released. The documentary was quickly followed by a popular television show, which helped make people aware of catfishing scams.

In the years that have followed, numerous people have been tricked into communicating with people online, and some have even sent money to people who use a fake photo or fake identity to misrepresent themselves over the internet.

Internet scammers have also used catfishing schemes to trick people into sending money through the internet by making their intended victims believe the scammers are celebrities.

While social media sites like Facebook and Twitter have attempted to crack down on fake profiles by verifying the accounts of famous or noteworthy people, catfishing scams still persist — and people continue to fall for them.

The popularity of social media has made it even easier for people to impersonate others online. As the practice becomes more widespread, it’s important for people to understand that online impersonation is a serious crime.

Online Impersonation Under Texas Law

Catfishing has become such a serious problem that one state has passed a law making it a specific crime. In Oklahoma, lawmakers enacted a statute in 2016 called the Catfishing Liability Act.

Under the law, people who are victims of catfishing scams may obtain an injunction that prohibits others from using their names, photos or voices to create a fake online profile.

While Texas doesn’t have a specific catfishing law, state law makes online impersonation a crime in Texas.

Under the Texas law, someone who impersonates another individual online for the purpose of causing the victim harm, threatening the person, intimidating the person, or defrauding the person, can be found guilty of online impersonation.

Depending on the circumstances of the case, online impersonation in Texas can be charged as a felony, or in some cases, a misdemeanor.

For example, when the person behind the impersonation makes a website, social media profile, or posts messages online with the intent to defraud, intimidate, threaten, or cause harm, the crime could be prosecuted as a third-degree felony.

How to Spot a Catfish Scam

Internet fraud has become such a mainstream part of American culture that most people are already on guard or cautious when it comes to scams. On the other hand, scammers have also evolved and become increasingly creative when it comes to duping people.

This reality means it’s important to know how to identify a potential catfishing scheme, especially if you’re involved in social media or online dating, where catfishing tends to be more popular.

To protect yourself, make sure you know how to spot the catfishing red flags:

• The person is too good to be true – If the person seems perfect for you in every way, they might not be real. Of course, this doesn’t mean that everyone is faking their identity, but be careful about people online who claim to live a glamorous or high-profile lifestyle.
• The person’s profile is vague or brand new – Is the individual’s profile new? Does it seem vague on details? Many people who participate in catfish schemes are forced to create new fake identities when their victims start getting suspicious. Be wary of users who have only been online for a short time.

• The person wants to move fast – If the person wants to jump from acquaintances to a more serious relationship within a relatively short period of time, this can also be a red flag.
• The person refuses to meet face to face – People behind catfish schemes will often come up with endless excuses why they can’t meet in person. They might claim they have an illness, or that a family member is ill. If they keep making excuses for why it’s impractical or impossible for them to meet you, this could be a sign that they’re concealing their true identity.

It’s also important to be wary of anyone who asks you to send them money, regardless of how long you’ve known them online. It’s particularly important to be hesitant about sending money if you have never met the person face to face, or if they’re vague about their identity.

If you only know the person from your internet interactions, be careful about agreeing to send them any kind of monetary funds, as this often is a sign of a catfishing scheme.

Defending Against an Online Impersonation Charge in Texas

If you’ve been charged with online impersonation, it’s important to speak to an experienced Dallas computer crimes defense lawyer about your case. An online impersonation conviction can damage your reputation and hurt your career prospects. A criminal defense lawyer in Dallas at the Law Office of Broden & Mickelsen can help you determine the best course of action in your case.

Dallas Best Computer Crimes Defense Lawyers

Broden & Mickelsen

(T): 214-720-9552

www.brodenmickelsen.com

***ATTORNEY ADVERTISING***

Prior results cannot and do not guarantee or predict a similar outcome with respect to any future case.

Sources:

1. https://www.washingtonpost.com/news/arts-and-entertainment/wp/2016/01/09/what-is-catfishing-a-brief-and-sordid-history/?noredirect=on&utm_term=.d5f3d11d1b2a

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DVAP hosts free legal clinics for Dallas County residents in May

Originally published by Eric Quitugua.

The Dallas Volunteer Attorney Program, an initiative of the Dallas Bar Association and Legal Aid of NorthWest Texas, is hosting 11 free legal clinics for county residents who meet financial guidelines. The clinics, which will be held throughout May, will offer legal advice and consultation in civil matters.

Applicants are asked to bring proof of income, identification, and legal papers. For more information, go to dallasvolunteerattorneyprogram.org. For media inquiries, contact DVAP Director Michelle Alden at (214) 243-2234.

Clinics begin at 5 p.m., with the exception of the veteran’s clinic, which begins at 1:30 p.m.

Schedules and locations:

East Dallas (Grace United Methodist Church—4105 Junius St., Dallas 75246)

• Thursdays—May 2 and May 16

South Dallas (Martin Luther King, Jr. Center—2922 MLK Blvd., Dallas 75215)

• Tuesdays—May 7, May 14, and May 28

West Dallas (2828 Fish Trap Rd., Dallas 75212)

• Thursdays—May 9 and May 23

Garland (Salvation Army—451 W. Avenue D, Garland 75040)

• Thursday—May 16

Friendship West Baptist Church (2020 West Wheatland Rd., Dallas 75232)

• Wednesday—May 15

St. Phillip’s Community Center (1600 Pennsylvania Ave., Dallas 75215)

• Tuesday—May 21

Veterans Resource Center (for veterans and their families only—4900 S. Lancaster Rd., Dallas 75216)—1:30 p.m.

• Friday—May 3

 

To view a list of other free veteran legal clinics around the state, please go to the State Bar’s Texas Lawyers for Texas Veterans website at texasbar.com/veterans.

 

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The Case of Mistaken Indemnity

Originally published by Drew York.

Nifty Counsel, Dunce’s Caps in-house lawyer, came up with what he thought was a brilliant way to minimize the company’s liability to its customers.  Nifty added arbitration provisions to Dunce’s customer purchase order agreements, and included language that the customer agreed the arbitrator could not award the customer damages exceeding the price of the order.  Flat Backs, a major retail hat company, filed an arbitration action against Dunce’s after Dunce’s failed to deliver 100,000 Auburn Tigers 2019 NCAA Men’s Basketball Champions hats.[1]  The demand for arbitration alleged $4 million in damages, even though the purchase order price was only $500,000.  Terry B.L. Judge, the arbitrator, ignored Dunce’s arguments that the purchase order’s arbitration clause prohibited Judge from awarding Flat Backs more than $500,000, and awarded Flat Backs the requested $4 million.  Dunce’s then asked a court to overturn the arbitration award for the same reason – Judge exceeded his jurisdictional limits.    

Are clauses limiting an arbitrator’s authority legal?

Yes, provided that the limitations do not infringe on any statutorily-authorized rights that might lead a court to find the limitation is against public policy.  Otherwise, clauses limiting the damages an arbitrator can award are routinely used. For example, in the American Arbitration Association’s (AAA) “Drafting Dispute Resolution Clauses, A Practical Guide,” the AAA provides examples of clauses that limit the remedies available in arbitration that parties may want to include in their contract.  One example is “In no event shall an award in an arbitration initiated under this clause exceed $__________.”  Thus, one would think that Dunce’s could convince a court that Judge lacked authority to award Flat Backs more than $500,000.

Recently, however, the United States 5^th Court of Appeals, in a one-word “Affirmed” opinion, upheld an arbitrator’s $18.3 million damage award on a fraud claim where one of the parties claimed the arbitration agreement prohibited the arbitrator from awarding more than $250,000.  The case made headlines in the legal community after one of the 5^th Circuit justices exclaimed during oral argument to the appellant, “I’d be embarrassed to take the position you’re taking in this case.”

Why Didn’t the Courts Enforce the Limitation Provision?

The trial court held the arbitrator’s determination was “rational” because the arbitrator found the limitation clause applied “only to the indemnification of a third party.”  But the parties to the arbitration proceeding were not “third parties” – they were the parties to the contract.  Thus, the limitation provision did not apply.

Tilting the Scales in Your Favor

Many parties misunderstand the purpose of indemnification clauses.  They are contract provisions where one party (the indemnitor) agrees to indemnify, or insure, the other party (the indemnitee) from losses or costs incurred in defending claims brought by third parties.  Indemnification clauses do not cover losses or damages that arise from a mere breach of contract.  For example, Flat Backs’ lawsuit against Dunce’s is simply for breach of contract, and would not fall under an indemnity provision.  But, if Dunce’s hats were made from a chemical that caused people who wore the hats to lose their hair, Dunce’s would be required to indemnify Flat Backs from any losses resulting in lawsuits by those customers if the contract between Dunce’s and Flat Backs contained an indemnification provision.  It is important to keep this distinction in mind when drafting contracts, especially if there are limitation-on-liability clauses involved.  If you are not aware of the distinction, then you may inadvertently fail to limit liability as you intended.

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[1] The fact that Auburn did not win the 2019 men’s basketball championship is irrelevant.  Everyone knows the refs blew the end of the game – even Virginia fans, some of whom will admit it.  Don’t worry, I’m not still bitter. 

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No direct duty, no arbitration.

Originally published by David Coale.

In a macabre echo of the old English case about the two ships Peerless, in SIG-TX Assets, LLC v. Serrato, Serrato family members accused a funeral home of confusing the bodies of two women named Maria. The funeral home sought to compel arbitration under a theory of direct-benefits estoppel, and the panel majority disagreed: “[A]though SIG-TX’s duty to prepare and inter Maria’s body arose from the contracts, there is an independent duty under Texas tort law to immediate family members not to negligently mishandle a corpse.” A dissent saw the family-members’ claims as directly analogous to those of the nonsignatory to the construction contract in In re: Weekley Homes, 180 S.W.3d 127 (Tex. 2005). No. 05-18-00462-CV (April 23, 2019) (mem. op.) (Partida-Kipness, J., for the majority, joined by Carlyle, J.; Bridges, J., dissenting).

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"The Dog Ate My Homework" and Other Emergencies

Originally published by Academic Support.

The dog ate my homework. To be more precise, when I left my desk to fix a cup of tea, my four-month old puppy tore into my Constitutional Law outline with joyous, tail-wagging abandon, turning some pages into balls of…

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Free legal clinic for veterans in Lake Jackson

Originally published by Eric Quitugua.

Veterans in need of legal advice can visit a free clinic put on by the Veterans Legal Initiative, a coalition providing pro bono legal services to U.S. veterans that includes the Brazoria County Bar Association, the Houston Volunteer Lawyers, and the Houston Bar Foundation.

The clinic takes place Saturday, April 27, from 9 a.m to noon at the Lake Jackson VA Outpatient Clinic, 208 Oak Drive S., Lake Jackson 77566.

Volunteer attorneys will be available to offer any veteran or spouse of a deceased veteran advice and counsel in any area of law, including family law, wills and probate, consumer law, real estate law, and tax law, as well as disability and veterans benefits. Those who qualify for legal aid and are in need of legal representation may be assigned a pro bono attorney to handle their case.

For more information, contact the Veterans Legal Initiative at (713) 759-1133 or go to hba.org.

To view a list of other free veteran legal clinics around the state, please go to the State Bar’s Texas Lawyers for Texas Veterans website at texasbar.com/veterans.

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Lawyer Settles With Judge Accused of Cutting His Caseload for Criticizing Indigent Defense Appointments

Originally published by Texas Lawyer.

 

“What I’m concerned with is upholding the law and constitutional rights of my clients, who are primarily indigent defendants,” said plaintiff Drew Willey.
      

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The ICELAND Trademark Battle: A Nation and a Company’s 49 Year Old Mark

Originally published by Peggy Keene.

Recently the European Union Intellectual Property Office ruled in favor of the nation of Iceland against a food retailer, effectively cancelling the ICELAND trademark registration granted to Iceland Foods in 2014.  Iceland Foods and the nation of Iceland have been battling over rights to the trademark for ICELAND in connection with a variety of different goods and services since 2016.

The Nation Claims Victory as Iceland Foods Prepares Appeal to Maintain Rights to ICELAND Trademark

This marks an important victory for the Icelandic nation as it has complained that the 2014 decision inhibited it from promoting important national businesses and branding that would contribute to tourism and positive national branding.

Iceland Foods, however, has already said that it will appeal the decision, having held rights to the ICELAND trademark in the United Kingdom since 1970.  Losing rights to the name, Iceland Foods argues, would detrimentally impact its ability to trade and conduct business as well as potentially put its employees’ jobs in peril.  Currently, the food retailer employs almost 25,000 employees across 800 stores. Further, Iceland Foods plans to argue that the European Union Intellectual Property Office’s recent ruling goes against established case law.

Iceland Argues ICELAND Trademark Registration Should Have Never Been Granted in the EU

Similar to a federal trademark registration in the United States, holding a European Union registration gives the rights holder the ability to assert those trademark rights against others across the European Union, even if the majority of the business is only conducted in one nation-state of the European Union. But what happens when the brand owner must go against a nation-state that is not even part of the European Union?  That is what happened here as Iceland is not part of the European Union.

Because Iceland is not part of the European Union, it does not hold trademark rights with the European Union Intellectual Property Office.  Despite this, however, the nation argued that the ICELAND trademark should never have been granted to the food retailer in the first place, because brands should not be allowed to trademark and hold rights to the name of nations, regardless of whether that nation is a member-state of the European Union.

Nation Names as Trademarks

Granting a company rights for use of a nation’s name would be the equivalent of allowing companies to hold trademark rights to “U.S.” or “America.”  Doing so would only allow one American company to advertise across the European Union using that trademark while all other American companies could be liable for trademark infringement if they attempted to market themselves or trade across the European Union.  It follows then, that giving one company so much power would severely inhibit the United States overall in doing trade in Europe.

Iceland has also argued that granting the food retailer rights to the ICELAND trademark has led to Iceland Foods abusing its rights and threatening a variety of Icelandic companies, and even the Iceland tourism board itself.  The nation has complained to the European Union Intellectual Property Office that the trademark granted to Iceland Foods led to the retailer blocking registration of an advertising campaign for tourism in Iceland called “Inspired by Iceland” even though the two clearly fall within different marketing channels.  Lastly, although the retailer has been around since 1970, Iceland, the nation, had strongly asserted that it is common sense that they have the stronger claim to the trademark as the nation was established in 874.

What Should Trademark Lawyers Take Away?

Different nations have different laws about what they accept as valid and acceptable trademarks in their jurisdiction. Most jurisdictions have some type of law/regulation for protection of official names of states/nations.  However, they may differ in requirements for additional distinctive words in a mark, required disclaimers, misleading and deceptiveness concerns, as well as acquired distinctiveness. For these reasons, it is important companies consult counsel experienced in any jurisdictions they intend to enter, to help avoid later costly issues that could potentially prevent a mark’s use in a given country.

In the case at hand, since Iceland isn’t a member state of the European Union, the ultimate decision on the matter of allowing Iceland Foods the ICELAND trademark registration in the EU will be an important decision to be aware of.

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About the Firm:

Klemchuk LLP is a litigation, intellectual property, transactional, and international business law firm dedicated to protecting innovation. The firm provides tailored legal solutions to industries including software, technology, retail, real estate, consumer goods, ecommerce, telecommunications, restaurant, energy, media, and professional services. The firm focuses on serving mid-market companies seeking long-term, value-added relationships with a law firm. Learn more about experiencing law practiced differently and our local counsel practice.

The firm publishes Intellectual Property Trends (latest developments in IP law), Conversations with Innovators (interviews with thought leaders), Leaders in Law (insights from law leaders), Culture Counts (thoughts on law firm culture and business), and Legal Insights (in-depth analysis of IP, litigation, and transactional law).

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Stories of Recovery: Finding a “life worth living”

Originally published by Guest Blogger.

 

 

 

My name is _____________. I am almost 60 years old, eight years clean in NA, and this is my first time in recovery. I thought I was okay despite a lifetime of using drugs, inner desperation, and outer chaos. I did not think I was an addict because I had not lost my job, home, or children. 

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What if Jeff Bezos Got Divorced in Texas?

Originally published by Larry Hance.

Settlement of the Bezos divorce has been big news this month.  According to news reports, Jeff Bezos is to receive 75% of his and MacKenzie Bezos’ stock in Amazon. Her share of the stock is worth about $36 billion dollars, making her one of the wealthiest women in the world, at 48 years old. We don’t know what other assets she might have received.

For instance, we don’t know how they may divide their real estate holdings which include mansions in Bellevue, Washington, and Beverly Hills; the largest private home in Washington, D.C.; the Texas ranch; and multiple condos in New York City—all worth tens of millions of dollars in the aggregate. We do know, though, that he gets all of their interest in the Washington Post and Blue Origin, the space travel business.

But considering the huge value of Amazon stock, I think it’s fair to assume this is the largest asset of their marital estate.  Based on that, it would be very difficult to see how she could be receiving half of their assets.  So, I have to ask: Why does Jeff get more than MacKenzie? As Peter Walzer, president of the American Academy of Matrimonial Lawyers asked, “She’s one of the wealthiest people in the world, but…why wouldn’t she get half of everything?”

From my limited research, I’ve learned that Washington state divorce laws (where the divorce is presumably being pursued), treats property accumulated during marriage as shared between the spouses (community property), unless there is a pre-nup. There has been no discussion of a pre-nup, so we really don’t know (but it seems that it would have been mentioned if it existed). The rule for dividing property in Washington state is “just and equitable”, so it does leave some room for argument as to application of those terms to any fact situation.

But really the only arguments I can think of for Jeff Bezos to receive a greater share are: leaving them as equal owners of Amazon would put the company in jeopardy; or he is the one primarily responsible for the unbelievable accumulation of wealth during their marriage, so he should get a greater share.

What if Jeff Bezos had filed for divorce in Texas (based on their ranch here, which I assume has a home), and had a contested divorce?  What would a judge do?  Would either of those arguments work?  Well, Texas is also a community property state, and has a very similar standard for division of assets: “a just and right division”.  Is there a difference between a “just and right” division and a “just and equitable” division?  If you were talking to a dictionary editor, or a legal scholar, just looking at those words, I doubt there would be much difference. But the actual answer would be based on the cases which have worked their way up through the appellate courts of each state and become precedent which the trial courts must follow.

And, in Texas, those cases provide a number of reasons that one party might receive a disproportionate division: fault in the breakup of the marriage, disproportionate earning power, and the ownership of separate property (not part of the marital property being divided), being the primary reasons.  If you applied those to the Bezos’, it seems likely that any disproportionate division would be in MacKenzie’s favor: it’s very public that Jeff was having an affair, and Jeff arguably has much more earning power (even if we only look at his majority ownership of Amazon).  But here he gets a disproportionate division.

Also, it’s very uncommon in Texas for either spouse to receive a disproportionate division when the assets are worth over even a couple of million dollars. We usually tell our clients that this is because most of our judges don’t have a couple of million dollars, so they’re unsympathetic to someone who wants an extra 100K or two.

I was involved in a divorce a few years ago where the assets were around 40 million dollars. The husband took the position that because he was 100 percent responsible for creation of that wealth, he should get the majority of it. This didn’t go to trial, but there was a lot of briefing, arguing, and negotiation resulting from his position (and a couple of million dollars in fees spent), and he didn’t get anywhere with that theory. Texas case law provides no support for it.

So, why is MacKenzie getting a disproportionate division?  I guess we’ll have to wait for the book, or the Dan Rather interview. We may never know. Most likely, it just makes sense and these folks are being reasonable. She has more than she can ever use, plus a whole lot. He gets to continue to grow Amazon–and the more successful it is, the wealthier she will be since she still owns a stake in it. And, of course, they have young children and this could be impacting their desire to have an amicable divorce—and for her to settle for a measly $36 billion plus.

 

About the Author

Larry Hance is managing partner and founder of the Dallas law firm Hance Law Group. With more than 35 years of experience in family law, Mr. Hance uses his experience with the legal system, judges and other lawyers to help clients achieve the best possible results.

To schedule an initial consultation with Larry and the Hance Law Group team, please call us at 469.374.9600 or email Kelly Bailey at kbailey@hancelaw.com.

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Contract Claim Compulsion

Originally published by David Coale.

Counterclaims that “revolve around the parties’ compliance with the same settlement agreement” are compulsory under Fed. R. Civ. P. 13(a) / “[B]oth regard the same instruments and transactions, and a jury would hear substantially the same facts in regard to both.” RPV, Ltd. v. Netsphere, Inc., No. 18-10462 (April 23, 2019) (unpublished) (citation omitted).

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Blame It on the Squirrel: Court Rules Furry Fatality Not Efficient Proximate Cause of Policyholder’s Power Station Damage

Originally published by Verne Pedro.

In the 1950’s farce The Great Rupert (aka A Christmas Wish), starring Jimmy Durante, a mischievous dancing sideshow squirrel accidentally discovers and misdirects a miser’s cache of cash to an impoverished family living next door through a hole in the roof. Silly movie plot? Perhaps … but having seen this film several times, I can…… Continue Reading

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Fiduciary Self-Dealing

Originally published by Gerry W. Beyer.

A fundamental duty of being a fiduciary is the duty of loyalty. In essence, this entails that the fiduciary must act solely in the interest of the beneficiaries. Breaching the duty of loyalty occurs when the fiduciary engages in self-dealing,…

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Causation Under ADA and Rehabilitation Act and a Bonus: LGT Goes to Supreme Court

Originally published by William Goren.

Hope everyone had a happy Easter and, as in my case, a happy start to the Passover holiday. Today’s blog entry come from one of the blogs that is in my blog roll, Wait a Second. The case is Natofsky v. The City of New York decided on April 18, 2019 out of the Second […]

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Are Rhetorical Questions Effective?

Originally published by Kacy Miller.

If you read the title, you likely thought about it for a millisecond and formulated an answer or opinion. Whether you realize it or not, you became an active participant in my attempt to communicate.

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MidSouth Bank joins Texas Access to Justice Foundation’s Prime Partner Bank program

Originally published by Adam Faderewski.

MidSouth Bank has partnered with the Texas Access to Justice Foundation’s Prime Partner Bank program. As part of the program, MidSouth Bank will voluntarily pay higher interest rates for Interest on Lawyers’ Trust Accounts, or IOLTA.

“Many Texans face serious legal issues, such as escaping situations of domestic violence or avoiding foreclosure, and simply do not have the resources to hire an attorney,” said Richard L. Tate, chair of the Texas Access to Justice Foundation Board of Directors, in a press release. “By paying higher interest rates on IOLTA accounts, MidSouth Bank is helping ensure that low-income Texans have access to lifesaving civil legal services.”

All attorneys are required to keep client funds in IOLTA accounts until they can be made available to the clients. TAJF receives funding from the interest generated by these accounts and uses it to distribute grants to Texas legal aid providers. This funding provides legal assistance to more than 150,000 Texas families each year.

Low interest rates have led to a 53% decline in IOLTA revenue since 2007 resulting in a loss of nearly $152 million for legal services for disadvantaged Texans. Prime Partner Bank program members pay 75% of the federal funds target rate on IOLTA accounts.

“MidSouth Bank is committed to making our communities batter places to live and work,” said Chris Mosteller, chief banking officer of MidSouth Bank, in a press release. “We encourage others in the community to join our efforts to level the legal playing field for the economically disadvantaged among us, and we are excited to be a part of the Prime Partner Bank program, which can drastically improve the lives of these fellow Texans.”

For more information on TAJF, go to teajf.org. Additional information on the Prime Partner Bank program can be found at teajf.org/financial_instiutions/prime_partners.aspx.

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