Top 10 from Texas Bar Today: Woes, Wispiness, and Works of Art

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. Ratification Issue Did Not Provide Path to Attorneys’ Fees – Ryan Lammert of McGinnis Lochridge @mcginnislaw in Austin

9. $334,500 Age Discrimination Verdict Against Time Warner Cable Upheld on Appeal – Christopher McKinney @CJMcKinney of The Mckinney Law Firm, P.C.

8. NLRB Restresses Risk of Firing Employees Who Discuss Pay – Robert G. Chadwick, Jr. @chadwicklawusa of Seltzer Chadwick Soefje & Ladik, PLLC in Frisco

7. What Businesses Can Learn From the Apple and Qualcomm Partnership Disputes – MehaffyWeber, P.C. @MehaffyWeber in Houston

6. Viewing Law as a Work of Art: A Q&A with Adriana López-Ortiz – Grable Martin Fulton PLLC in Southlake

5. What if the IRS Violates the Law? – Kreig Mitchell LLC @irs_tax_trouble in Houston

4. Immunity Under the Texas Environmental, Health, and Safety Audit Privilege Act – C. William Smalling of The Law Office of C. William Smalling, P.C. in Houston

3. The “Wispiness” – or Not – of the TCPA – Ken Carroll of Carrington Coleman Sloman & Blumenthal LLP in Dallas

2. Copyright Woes are Over the Rainbow: Harold Arlen Estate Sues Tech Giants – Peggy Keene of Klemchuk LLP @K_LLP in Dallas

1. Reasonableness and undue burden for captioning websites – there are precedents – Richard Hunt of Hunt Huey PLLC in Dallas

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$334,500 Age Discrimination Verdict Against Time Warner Cable Upheld on Appeal

Originally published by Christopher McKinney.

ADEA – Age Discrimination in Employment Act

The 4th U.S. Circuit Court of Appeals has let stand a $334,500 jury verdict for a 61-year-old employee who the company fired over a single incident of backdating a form.

The Plaintiff, Glenda Westmoreland, had worked for a Time Warner Cable subsidiary for more than 30 years, was fired after instructing a subordinate to backdate a form to reflect the date of a related meeting, rather than the date the form was actually completed. TWC initially told her the infraction wasn’t serious but later concluded that she had violated company policy prohibiting false statements and created “trust and integrity” issues. While walking her to her car, a supervisor told the Plaintiff, “You’ll get another job. Just go home and take care of those grandbabies.” Westmoreland sued, alleging age discrimination.

A jury found for Westmoreland and, on appeal, the 4th Circuit upheld the verdict. TWC’s “about face” on the disciplinary matter could give rise to a “suspicion of mendacity” about the company’s rationale for firing her, the court said. It also noted that company representatives had testified that there were lesser forms of discipline available. As a result, the court said, the jury could reasonably find that Westmoreland’s firing for one infraction that did not require termination was “such an extreme overreaction as to be pretextual.” In addition, the jury could have found that the “grandbabies” comment was made by a supervisor who harbored age bias, the court said.

Age discrimination in employment is illegal, but two-thirds of older job seekers report encountering it. Employees between the ages of 46 and 65 (especially those nearing retirement age) are the most likely to be targeted. Those employees are often let go by employers who perceive them to be more expensive and less valuable than younger replacements.

The Age Discrimination in Employment Act (ADEA) exists to protect individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment — including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

You can read the full 4th Circuit opinion here.

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Sharing an attorney in a Texas divorce- Is it possible?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

In some instances, spouses will come into our law office to discuss the
possibility of our office representing both of them in an upcoming
divorce. They have already hatched a plan to settle all of the outstanding issues
in their case. All that they need now is an attorney to file the divorce
and get the process started. The spouses, in their minds, would rely on
that attorney for advice on particular issues and then would finish out
the divorce by drawing up all the court orders that a judge would eventually
sign their name to.

On the outside, this seems like a nice plan. Lawyers, popular belief holds,
typically muddy up the waters and make life more difficult for spouses
who are entering into a divorce. What’s more- attorneys will charge
you money in order to do so. The divorce would likely take longer as a
result and take up more time that could be devoted to their family or
other interests. With these circumstances in mind, spouses will come in
and see if this dream can be their reality. Unfortunately I will need
to steer them out of this mindset for a number of reasons that we will
discuss in today’s blog post.

Conflict in interest when an attorney represents two spouses in a divorce

If you and your spouse find yourself in a situation where you agree on
absolutely every issue in your divorce then you are certainly in a unique
position. Even the most amicable of divorces have a few issues that need
to be sorted out before the case can truly be said to be done. Even in
situations where you and your spouse agree on every or most every issue
you are still technically opposing parties in your divorce. Because of
this an attorney cannot adequately represent both you and your spouse’s
interests.

With all of this said, there are still options available to people in your
position who would like to limit the costs associated with hiring two
attorneys in a divorce. First of all, you and your spouse can forego hiring
two attorneys and have you or your spouse hire an attorney while the other
remains unrepresented. The other is to have neither of you hire an attorney
and instead utilize the services of a divorce mediator to mediate any
outstanding issues that are relevant in your case.

Mediating your case instead of hiring lawyers

If you and your spouse would like, you can hire a private
mediator to intercede into your divorce case and to help you and your spouse craft
a settlement on any outstanding issues in your case. This means that issues
related to children and property will all be settled in mediation- or
will be attempted to be settled in mediation. A mediator will typically
be a practicing family law attorney him or herself. The mediator will
charge you and your spouse a set amount of money for either a half day
or full day mediation.

The job of the mediator is basically to act as a ping pong ball- bouncing
in between you and your spouse in order to help you both come together
to come up with the specific terms that will create your final orders.
If you and your spouse have a general understanding of what your custody/visitation
agreement will look like for your children after the divorce a mediator
will help you to create something that is specific and able to stand the
test of time. Likewise, all property matters will hopefully be settled
in mediation. Who remains in the family home (if any), what spouse gets
what share of your community estate and any other issues related to property
matters will also be sorted out.

Mediations will typically occur at the office of the mediator. You will
be in one room while your spouse is in the other. Sometimes spouses will
agree to be in the same room and to negotiate across the table from one
another. From my experience this can be a tough atmosphere to negotiate
in as a glance of the eye or a curl of the lip can aggravate/frustrate
the other side.

The mediated settlement agreement

A Mediated Settlement Agreement (MSA) is what you and your spouse will
be negotiating for in mediation. The MSA contains all of the agreements
that you and your spouse came up with and will act as the guide for whichever
spouse ultimately ends up writing your
final decree of divorce. He or she will take the MSA and turn its language into an order that
a judge will be comfortable signing their name to.

Your mediator will likely walk you through each item in the MSA and will
make sure you understand everything contained therein. Usually your attorney
would do this but if you don’t have one the mediator can certainly
explain the points of the MSA to you. However, he or she is not able to
advise you on whether or not something is a “good idea” for
you to enter into with your spouse. The mediator can refer you and your
spouse to an attorney who can draft an order based on the language contained
in the MSA but will not represent either you or your spouse.

Although mediation costs money it is typically a small sum of money compared
to the costs of hiring an attorney and going through an extended family
law case. On the other hand, you will not be able to receive any advice
or pointers on what you are negotiating and you will not be able to rely
upon your attorney’s years of family law experience in negotiating
a settlement in your divorce case.

Texas divorce cases are most likely to end in mediation. The vast majority
of divorces where the Law Office of Bryan Fagan, PLLC represents one spouse
end in mediation. However, if you and your spouse cannot settle in mediation
your options become somewhat limited. You have already exercised the most
likely route to a settlement and have failed to reach an agreement. If
you find yourselves in this position it is likely that at least one of
you will now move to hire an attorney to represent your interests.

One family law attorney to represent you or your spouse

The other option that you and your spouse can choose to take on is to have
one of you hire an attorney and for the other spouse to be unrepresented.
The represented spouse will be responsible for filing the divorce and
drafting a final decree of divorce once a settlement is reached. The main
advantage this spouse will have is the ability to receive advice about
the divorce process from their attorney. If you are represented by an
attorney you would know if entering into an agreement on a particular
issue were a good idea or not. You would also know how a negotiating strategy
could backfire or have unintended consequences for you years down the road.

In many situations this is an arrangement that works out well for people.
Our office has represented clients who are in basic agreement with their
spouses on the terms of their divorce. The key thing to understand is
that most attorneys are not looking to stir up trouble- on the contrary,
these folks are more than happy to work on behalf of their client to resolve
whatever issues are in play. It is usually simple, straightforward divorce
cases where this method works out for both spouses in the divorce.

Questions about the different methods for completing a divorce? Contact
the Law Office of Bryan Fagan, PLLC

There are more ways than one to skin a cat, and there is more than one
way to get a divorce. Just because you have a friend or family member
who got divorced one way doesn’t mean there aren’t a handful
of other options for you and your spouse to pursue.

If you are interested in speaking to an attorney in order to begin your
divorce please consider
contacting the
Law Office of Bryan Fagan, PLLC. We represent clients just like you in our community and we would be honored
to do the same for you and your family. A consultation with one of our
licensed family law attorneys is at no charge to you.

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Muscle Learning & Bar Prep Success

Originally published by Academic Support.

Last week at the annual Association of Academic Support Educators (AASE) Conference, Professor Paula Manning shared an analogy about learning that gripped my mind and heart. You see, as Professor Manning reminded us, working out to get in shape is…

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Reasonableness and undue burden for captioning websites – there are precedents

Originally published by Richard Hunt.

My colleague William Goren recently shared with me some correspondence with an internet service for attorneys that was offering a free webinar. Bill is deaf and was inquiring about captioning for the webinar. The response was that the service through which the webinar was offered didn’t offer captioning. I had looked at the same issue myself a few years ago in an effort to make my own webinars more accessible. What I found was that to add captions to a prerecorded webinar is relatively easy and inexpensive, but that live captioning was both technically difficult and expensive. Bill’s inquiry made me spend some additional time looking at whether captioning is something the ADA should require (assuming, of course, that the ADA even applies to websites and services provided on the internet).

The first place to look for web accessibility standards is, of course, the Web Content Accessibility Guidelines. They have no legal standing, but they have been used as the de facto standard by the Department of Justice and at least one district court. They are also incorporated into the regulations for Section 508 of the Rehabilitation Act, which requires accessibility for federal government electronic communications, including websites.

WCAG 2.0 success criterion 1.2.4 requires captioning for live audio content in synchronized media – meaning live video presentations in which someone talks. This is a success level AA criterion, so it falls within the requirements imposed by Section 508 and the many settlements negotiated by DOJ and others. However, WCAG success criteria seem to be based more on the availability of technology than the cost of the service. The underlying principle seems to be if you can do it you should do it even though the cost may be prohibitive.

This is where reasonableness and undue burden come into play.  Remember that unlike other anti-discrimination statutes the ADA requires affirmative action to make public accommodations and their services accessible.* For the disabled, equal treatment isn’t enough because their disabilities make it difficult or impossible to take advantage of facilities and services as they exist. Without the requirement of affirmative action any public accommodation could claim it was not discriminating as long as it provided the same physical space and services to everyone. Sections 12182(b)(2) and 12183 contain the affirmative action requirements at the heart of Title III of the ADA. Section 12183 concerning new construction doesn’t apply to websites at all, so disabled website accessibility advocates must find relief in something under Section 12182(b)(2)(A). Of these only (ii) and (iii) plausibly apply to an inaccessible website, and these are both qualified. Section 12182(b)(2)(A)(ii) requires “reasonable” modifications in policies, procedures etc while Section 12182(b)(2)(A)(iii) requires the provision of auxiliary aids and services only if they do not impose an “undue burden.”

Thus, under any theory of website accessibility the changes needed to make a website accessible must either be reasonable or not impose an undue burden. WCAG 2.0 suggests that captioning is not so technically difficult providing it would be unreasonable or burdensome, but WCAG 2.0 doesn’t look at cost, and for captioning cost is as much an issue as technical ability. So, where can we find information about what cost is reasonable for captioning?

Fortunately there is a law and set of regulations that looked very specifically at the cost of captioning technology. The Telecommunications Act of 1996 was passed in part as a reaction to the holding in Stoutenborough v. Natl. Football League, Inc., 59 F.3d 580 (6th Cir. 1995), a case that refused to apply the ADA to football broadcasts. It did not directly address captioning, but the effect was to exempt broadcasters from any ADA accessibility requirement. The Telecommunications Act remedied this by providing for a phased in requirement that TV broadcasts be captioned. It gave the FCC authority to implement the captioning requirement and in particular to determine by rule when it would be too costly.

The FCC regulations took cost into account when creating a series of “self-executing” exemptions to the captioning requirement. Two of those exemptions are relevant to the reasonableness and undue burden problem under the ADA. The FCC exempts from captioning any broadcaster with less than three million dollars in annual revenue or for whom captioning would cost in excess of 2% of gross revenues. This is pretty clearly a regulatory finding that these costs are excessive in relation to the benefit of captioning live video.

Television broadcasts and webcasts are not perfectly comparable, of course, but it seems unlikely the cost of captioning a live webcast is any less than the cost of captioning a live television broadcast despite possible differences in technology. The biggest difference is likely to be that the capital and licensing costs associated with television broadcasting mean most broadcasters will not meet this economic exemption. The ease and low cost of internet webcasting, on the other hand, make it very likely that a large majority of webcasters would be exempt under these standards. In any case, for this slice of the accessibility pie we do have a reasonably authoritative determination as to when the cost of accessibility imposes an undue burden on the owner or operator of a webcast. If the webcaster has revenues of less than three million dollars or the cost of captioning would exceed 2% of its revenues then notwithstanding the WCAG success criteria captioning of live webcasts should be regarded as an undue burden.

*  See the discussion in Natl. Fedn. of the Blind v. Target Corp., 452 F. Supp. 2d 946, 951 (N.D. Cal. 2006).

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May 31, 2019 Weekly Round Up

Originally published by tiffany.dowell.

 

We’ve reached the end of May…I’m not sure how time goes so quickly.  Here are a few ag law stories in the news recently.

*Texas judge finds 2015 WOTUS Rule violated Administrative Procedures Act.  A federal judge here in Texas found that the 2015 WOTUS rule violated the Administrative Procedures Act.  Specifically, the judge found that the proposed rule, for which public comment was allowed, differed too greatly from the final rule.  In other words, because there were portions of the final rule that were significantly modified from the proposed rule, the public did not get an adequate opportunity to comment.  One such substantial change the court relied upon was the definition of “adjacent” wetlands.  The proposed rule provided that this meant all wetlands adjacent to jurisdictional waterways.  The final rule included all waters within 100 feet of waterways and those within the 100-year floodplain of a waterway or jurisdictional water.  This type of substantial change between the proposed rule and final rule, the court reasoned, was not permitted.  [Read Opinion here and article here.]

*Eminent domain reform dies as Legislative session ends.  One of the most-watched bills in the Texas Legislature related to eminent domain reform.  Senate Bill 421, sponsored by Lois Kohlkorst, did not make its way out of the legislature.  The bill passed the Senate, but after modifications were made in the house, the Conference Committee was unable to agree on a final version.  [Read article here.]  I’ll have a blog post and/or podcast episode recapping the 86th Legislative Session coming soon.

* Texas House and Senate unanimously pass bill related to growing industrial hemp; selling and using CBD oil.  Another bill that had been of interest to many farmers in Texas was HB 1325, which requires the Texas Department of Agriculture to promulgate a state plan to regulate hemp production in Texas.  This plan will include many rules and regulations related to growing industrial hemp, including procedures for inspection and testing of the THC content.  Keep in mind, industrial hemp is required to have less than .03% THC.  Importantly, producing industrial hemp is not allowed until this plan has been promulgated by TDA.  The USDA is working on developing federal guidelines as well. The bill also allows the sale of CBD oil, but limits this to permitted establishments governed by the Texas Health and Human Services Department and provides for testing of THC levels. This bill is currently on the Governor’s desk.  [Read article here and  bill text here].

* Article outlines arguments in lawsuit against Permian Highway Pipeline.  As I mentioned in this previous post, a lawsuit has been filed by several landowners, cities, and groups against Kinder Morgan and the Texas Railroad Commission related to the Permian Highway Pipeline.  I thought this article did a good job setting forth the arguments of the plaintiffs–namely that the challenge does not expressly relate to the right of the project to condemn land, but really challenges the oversight of the routing process (or lack thereof as the plaintiffs argue) by the Texas Railroad Commission.  [Read article here.]  Both Kinder Morgan and the Railroad Commission have filed motions to dismiss, which were argued before Judge Lora Livingston this week.   [Read article here.]

* One Dandy of a Scheme.  I’m fortunate to have the opportunity to write for Progressive Farmer’s “Our Rural Roots” column.  My most recent article tells one of my favorite stories about my Gran and a scheme she pulled off on our family’s farm.  If you want to read it, click here.

Upcoming Programs

Next week will be a busy one as I’m headed south.  On Thursday, I’ll be speaking in Fredericksburg at the Hill Country Cattle Women meeting. [Click here for more info.]  On Friday, we’re expecting a big turn out at our Owning Your Piece of Texas program on the top laws Texas landowners need to know in San Antonio.  For more info and to register, click here.]  As always, you can check out all of my upcoming presentations by clicking on the tab at the top of the page, or by clicking here.

 

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Ratification Issue Did Not Provide Path to Attorneys’ Fees

Originally published by Ryan Lammert.

M & M Res., Inc. v. DSTJ, LLP, 2018 Tex. App. LEXIS 9331 (Tex.Civ.App.—Beaumont 2018, no pet.)

Plaintiffs in title disputes sometimes will allege a claim under the Declaratory Judgment Act in order to seek attorneys’ fees. In this case, the court held that the claim could only be asserted as a trespass to try title claim, where attorneys’ fees are not recoverable.

Here, an oil and gas company hired landmen to acquire oil and gas leases in Jefferson County. Landmen acquired 22 leases and assigned them to the oil and gas company using a form that included an overriding royalty reservation and a provision indicating the assignment would terminate upon any late royalty payments. The landmen allegedly recorded the assignment without giving the oil and company an opportunity to review or approve the form. Years later, the landmen claimed royalty payments were untimely and sought termination of the assignment. The landmen claimed that, even though the oil and gas company had not reviewed or accepted the assignment, it ratified the assignment by its conduct.

 

At the trial court, the oil and gas company complained that the landmen’s complaint was really a trespass to try title claim (attorneys fees are generally not recoverable) and that the landmen were improperly attempting to couch their lawsuit as a claim for declaratory relief in order to seek attorneys’ fees. The court stated that “if a disputed involves a claim of superior title and the determination of possessory interests in property, it must be brought as a trespass-to-try-title action….a party may not proceed alternatively under the Declaratory Judgments Act to recover their attorneys’ fees.” While ratification was also an issue in the suit, which may also involve separate fact questions, the Court held that “it is an issue within the context of a trespass to try title case, adjudicating which party holds superior title to the mineral estates.”

As a result, the court held that the ratification issue did not negate the requirement the case be pleaded and litigated as a trespass to try title action.

Author information

Ryan Lammert

Oil and Gas Attorney at McGinnis Lochridge (click for profile)

Ryan represents oil and gas exploration and production companies, saltwater disposal operators, landowners, and electric cooperatives before multiple state agencies, including the Railroad Commission of Texas, the Public Utility Commission of Texas, and the State Office of Administrative Hearings. Ryan also assists clients with a wide range of oil and gas transactional matters, including lease negotiation, joint operating agreements, production sharing agreements, and farmout agreements. By understanding the interplay between administrative regulations and oil and gas law, he is able to provide sound, efficient, and effective legal advice.

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Lawyers: Preparing a Business Plan

Originally published by Cordell Parvin.

I hope you will be able to join me on June 13 for my second Lateral Link Rainmaker webinar. In this one, I will share with you how to prepare a business plan.

Several years ago I gave a presentation on career planning to over 200 associates in a large law firm. As I often do, I began by asking how many in the room had prepared a Personal Performance and Development Plan or Business Plan with written goals. Surprisingly only a handful had a prepared a plan.

I then asked how many had begun planning their summer vacations. Far more hands were raised. Many lawyers spend more time planning their vacations than they spend planning their careers.

Why should you have a plan? I believe when you prepare a plan with written goals, you will take control of your future. In addition, if your plan and written goals are focused on something you truly value, you will feel energized, committed, and disciplined to achieve them. Finally, having a plan enables you to best use your two most important resources: your time and your energy.

Not to plan is to risk what Yogi Berra once said:

“If you don’t know where you are going, you are likely to end up somewhere else.”

I learned early in my career that without a focus, I could easily get distracted. So, it was important to me, to not only know where I was going but also to have a map to show me if I was on course for my destination. If I had not identified what I wanted in my future and charted a written course, I would not have had the discipline to take the actions necessary to get there.

When I speak to lawyers on planning, I share ideas from the first three habits in Dr. Stephen Covey’s book The 7 Habits of Highly Effective People. Dr. Covey’s first three habits are:

• Habit 1 — Be Proactive;
• Habit 2 — Begin with the End in Mind;
• Habit 3 — Put First Things First.

What do these habits mean to your law career? First, being proactive means that each of you is responsible for your own career. Where you go from here is up to you. Your firm can help, but you are the one who ultimately is responsible.

Beginning with the end in mind means you must have some idea of what you want to accomplish and what you want to become in the future. In planning your career, you must have a vision of where you want to go and what you want to accomplish. For each of you this will be different and your ability to see the future will be different.

Putting first things first means establishing priorities. You can’t do it all. You have to make choices. A lawyer I coached several years ago decided her priorities were:
• Her family;
• Her church;
• Her health; and
• Her clients and law firm.

I recommend you prepare a list of 10 things you want to accomplish. Then, rank each
goal on your list and to identify the one goal which, if accomplished, would have the greatest impact on your career and life.

For each one, I suggest you answer why accomplishing it would be important to you. Without a good answer to the “why” question, you will not have the discipline or commitment to stay with it.

Your Business Plan will be of little value if it is not implemented. So how can you hold yourself accountable?

First, I suggest you break down your plan into 90-day goals. Make a list of what you want to do in the next 90 days.

Next, get a colleague in your firm or a friend and share your plans and 90-day goals with each other.

Finally, plan each week by listing what you plan to do, estimating how much time it will take and put it on your calendar.

There are 168 hours in a week.  If you sleep 56 hours and bill 40 hours a week and plan and use 10 non-billable hours a week for your own development and client development, that leaves you with 62 waking hours a week for personal time.

How well you plan and use the 10 non-billable hours will ultimately determine the quality of your career and how well you plan and use the 62 personal hours will determine the quality of your life.

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Getting It Right from the Start

Originally published by Academic Support.

Years ago, as part of an effort to address bar passage issues at my school, some well-meaning professors suggested having a remedial course for lower-performing law students. In broad-brush terms, the centerpiece of the proposal was to require students to…

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Practice Tip: Warning Signs Your Plan May Have a Missing Participants Problem

Originally published by Haynes and Boone Benefits Group.

When participants in a qualified retirement plan terminate employment with the plan sponsor, it can be challenging to ensure that their contact information in the plan’s records is kept up to date and accurate. Inaccurate contact information is problematic for a variety of reasons, including potentially causing an operational failure when such participants do not receive distribution of their plan benefits by their required distribution date, as well as increasing the possibility of fraud when a participant’s information is sent to the wrong address. In addition, a plan sponsor’s failure to make reasonable efforts to locate missing participants would be a breach of their fiduciary duties of loyalty and prudence.

Often, the first indication that a participant may be missing is that mail sent to their last known address is returned undeliverable or their distribution checks are returned or remain uncashed. In addition, a plan sponsor should check to see if there are any participants who have reached their required distribution date but who are not receiving distributions. The IRS, DOL, and PBGC have each published guidance on the steps a plan sponsor must take to try to locate missing participants, which is discussed in more detail in our prior blog posts listed below:

IRS Memo Addresses Required Minimum Distributions to Missing Participants

New Guidance on Locating Missing Participants of Terminated Defined Contribution Plans

PBGC Expands Missing Participants Program to Terminated Defined Contribution Plans

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Copyright Woes are Over the Rainbow: Harold Arlen Estate Sues Tech Giants

Originally published by Peggy Keene.

 

 

The estate of famous composer Harold Arlen, composer of the classic “Over the Rainbow,” has sued multiple technology giants over alleged unauthorized recordings of Arlen’s compositions.  In the copyright infringement lawsuit, the Arlen estate claims that there are over 6,000 unauthorized recordings of Arlen’s compositions streaming or for sale on platforms provided by Apple, Amazon, Microsoft, and Google.

Arlen Estate Files Copyright Infringement Lawsuit in California

Filed in California’s Central District Court, the lawsuit alleges that the unauthorized streaming and sale of Arlen’s compositions amount to massive piracy and, as such, the estate of Arlen is entitled to millions of dollars in damages.  The Arlen estate is asking for maximum statutory damages under U.S. copyright law, claiming that the infringement has been willful.

At the heart of the case, Arlen’s estate argues that the technology giants’ unauthorized distribution of the copyright works has cheated the Arlen estate out of royalties that should be paid whenever the copyrighted work is copied and distributed on sound recordings. Specifically, Arlen’s estate argues that the “distribution” of the work now also encompasses streaming and digital downloads, in addition to the traditional distribution of works on physical mediums like CDs or vinyl records.

The Arlen Estate Focuses on Infringement Claimed to be Caused by Tech Giants

The rapid innovation of technology plays a particularly relevant role in this lawsuit as it has generally been the impetus behind such rapid unauthorized distribution of Arlen’s works.  For example, the Arlen estate points out that Apple’s iTunes store not only sells the official recording of one of Arlen’s compositions, which would rightfully compensate the estate, but also sells an undercutting illegal version of the song at a lower price, effectively deterring consumers from purchasing the authorized, official version that would rightfully compensate Arlen’s estate.

While the consumer that purchases the unauthorized recording is arguably also infringing upon Arlen’s works, the Arlen estate chose to go after the technology giants, because metadata on the works is generally difficult to find, making it hard for consumers to correctly determine whether they are purchasing an authorized version or an illegal copy.

U.S. and Foreign Copyright Laws

Although the Arlen estate filed suit against the aforementioned technology giants, it has also filed claims against dozens of both named and unnamed labels that are allegedly infringing upon Arlen’s works.  In fact, the majority of the defendants named in the suit are actually based outside of the United States, making the differences in U.S. copyright law and foreign copyright law another wrinkle in the lawsuit.  As a result, the Arlen estate must properly navigate the differences in foreign copyright laws when pursuing these “John Doe” distributors and labels abroad.

Although music is often purchased and streamed via the world wide web, it’s important to understand that copyright laws are not “international.” U.S. rights do not automatically extend to foreign jurisdictions, and most countries have their own copyright protection laws. Additionally, there are international copyright treaties and conventions that will help to extend protection. Seeking assistance from copyright attorneys with international experience is important when pursuing adequate copyright protection of works likely to be infringed abroad.

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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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What Businesses Can Learn From the Apple and Qualcomm Partnership Disputes

Originally published by Russell Chimeno.

Apple and its chip-making partner, Qualcomm, have been locked in a bitter legal battle for over two years with millions of dollars at stake between the two companies. Though the partnership provided a major source of revenue for Qualcomm, with the entity earning money for each iPhone sold, its relationship with Apple has gone south following several lawsuits between the two.

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Reasoning about reasoning

Originally published by David Coale.

A recurring question in commercial arbitration is the amount of detail required for a “reasoned award’ – described generally as “something short of findings and conclusions but more than a simple result.”  The Fifth Court provides a helpful example in YPF S.A. v. Apache Overseas, Inc., which quotes the relevant part of the arbitrator’s award and holds: “KPMG noted that it based its analysis on the parties’ statements and accounting records, pointed to its finding on the accrual of liabilities, and explained what documentation it found relevant in evaluating the proper refund amount.” No. 17-20802 (May 24, 2019).

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Viewing Law as a Work of Art: A Q&A with Adriana López-Ortiz

Originally published by Grable Martin Fulton PLLC.

To an outside observer, the legal profession might not make sense for a classically trained dancer, actress and fine arts student, but for Adriana López-Ortiz, it was a clear career choice. Eager to find a career that rewarded hard work, intelligence and dedication (not the luck of the draw on audition day), Adriana uses the skills she cultivated in her former life to assist her transactional clients in the arts, entertainment and cultural space.

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Lessor, Should You Cash That Royalty Check?

Originally published by Charles Sartain.

Did the lessor’s deposit of royalty checks for production from a pooled unit that she contends was improper ratify the improper pooling? In Strickhausen v. Petrohawk et al, a jury will have to sort out the answer. Her case will be aided by exculpatory language in her oil and gas lease and her complaints from the beginning that her lease was improperly pooled.

 

The “Future Documents” clause and other facts

 

Strickhausen’s lease on 50 percent of the minerals on land in LaSalle County, Texas, prohibited pooling without her express written consent. An unusual “Future Documents” provision said (to paraphrase): If the lessee requires her to execute any document, such as a division order, such execution does not constitute waiver, acceptance, ratification, reviver, or adoption or waiver of any claim or demand, unless the document expressly states that as its purpose.

 

While the land department must have been debilitated after three days at NAPE, the lessees pooled Strickhausen’s lease and the lease on the other 50 percent (which had no such prohibition) into the WK Unit #4 without obtaining her consent. Strickhausen’s lawyer and Petrohawk traded demands, communications and settlement offers, during which time Strickhausen received and deposited royalty checks totaling over $590,000 for production from the pooled unit.

 

 Strickhausen sued. Petrohawk alleged as defenses that she ratified the improper pooling and was estopped from denying that she ratified the pooling.

 

The law

 

 A pooled unit that does not comply with the terms of a lease’s pooling authority is invalid and unenforceable absent the lessor’s ratification. There was no doubt Petrohawk breached the pooling provision.

 

Victory based on the defense of ratification requires evidence establishing:

 

• approval by act, word or conduct,

• with full knowledge of the facts of the earlier act, and

• with the intention of giving validity to the earlier act.

 

How the court saw it

 

After being tossed by the trial court, Strickhausen lives to fight another day. The court of appeal based its analysis on two recent Supreme Court cases, Hooks v. Samson Lone Star, LP  and Sampson Exploration v. T S Reed Properties, LLC. In those cases, Hooks ratified a pooling amendment. Having full knowledge that something had changed from the original, Hooks consented to the amendment by his actions. He didn’t challenge or deny the validity of the new unit and therefore couldn’t later assert that he should also receive royalties from the old unit.  The important distinction between this case and Hooks is that Strickhausen immediately challenged the pooling.

 

Strickhausen’s Future Documents clause addressed documents that the lessee required Strickhausen to execute. The court observed that Petrohawk did not require her to execute the royalty checks. We’ll see if that plays a part in the final result.

 

The court reversed summary judgment in favor of Petrohawk on the defense of ratification as it relates to the no-pooling clause.

 

The court of appeal said it didn’t understand the trial court’s ruling on estoppel. In any event, there was a fact question on one of the elements defined by Hooks. Petrohawk’s summary judgment on estoppel was also reversed.  

 

For our musical interlude, dead guitar players you should pay more attention to: Hubert Sumlin, Michael Bloomfield, John Fahey.

 

 

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Fourth Court Denies Arbitration Agreement

Originally published by Thomas J. Crane.

Mandatory arbitration agreements have become very common in a wide variety of jobs. Typically, the newly hired employee signs a raft of documents, one of which may include an arbitration agreement. Often, the employee has no recollection that s/he signed an arbitration agreement. One plaintiff attorney, recognizing that the employee may not know whether he signed an arbitration agreement, sent a pre-suit letter to the former employer asking if the employee signed a mandatory arbitration agreement. The lawyer’s letter provided that if the employer did not respond within one month with a signed arbitration agreement, then the plaintiff would file suit in state court. The plaintiff would presume that if there was a mandatory agreement, then failing to provide it would constitute assent to a lawsuit field in state court.

The employer did not respond. Neither did it provide a signed mandatory arbitration agreement. Yet, it moved to compel arbitration. So, was the plaintiff lawyer’s letter a new agreement which essentially overrode the mandatory arbitration agreement? Yes, said the Fourth Court of Appeals in San Antonio. In Adcock v. Five Star Rentals, No. 04-17-00531 (San Antonio App. 4/18/2018), found that the pre-suit letter amounted to an agreement to proceed in state court with this employment related lawsuit. The court noted that the lawsuit commenced, and written discovery was propounded. It was not until the employer noticed the mandatory arbitration agreement when producing documents that it invoked arbitration. The lawsuit was six months old at that point. But, the court did not rest on the possibility that the employer may have invoked arbitration too late. It found the parties entered into a new agreement when Five Star did not provide a copy of the mandatory arbitration agreement.

See the decision here.

 

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Punitive Damages After An Accident

Originally published by Travis Patterson.

Punitive damages, also called exemplary damages, are damages that may be awarded after an accident in a civil trial as a penalty for severe misconduct or gross negligence. Punitive damages are intended to punish the person who has acted recklessly and are also meant to deter others from behaving in a similarly negligent way. Punitive […]

The post Punitive Damages After An Accident appeared first on Fort Worth Personal Injury Lawyers | Patterson Law Group.

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Property Owners Association Refusing To Abide By Sale Of Marina

Originally published by Cris Feldman.

The Harborwalk in Hitchcock is a well known Galveston hot spot. Home to a marina, boat launch, restaurant, and even a swimming pool, it should be a bustling location. Instead, the entire area has been boarded up amidst a dispute among the location’s owner, the Flamingo Isles Municipal Utility District, and the Harborwalk Property Owners Association.

In total, the property consists of a 150-slip marina, yacht club, swimming pool, restaurant, ship store/welcome center, and extra real estate opposite the marina for expansion. The property was bought after previous owners went bankrupt; and, significant repairs were needed to get the property functional again. After pouring money into repairs, Harborwalk ran into a huge problem. The Harborwalk Property Owners Association has refused to vacate commercial properties and the Flamingo Isles Municipal Utility District has refused to properly dredge the marina. Although the utility district is responsible for dredging activities, it hasn’t dredged the Harborwalk, causing serious financial consequences. Without being dredged, the marina water is unsafe for boats. Last year, many boats were unable to dock at Harborwalk and many that tried were damaged. Harborwalk’s owner alleges the property owners association and the utility district are refusing to acknowledge and enforce the terms of the sale.

The dispute is a complicated one. Firstly, the utility district is a government agency, which means it has certain legal requirements and responsibilities to meet. Determining whether or not the agency has met these requirements and responsibilities is not always straightforward. Secondly, Harborwalk will have to contend with a property owners association, which also poses legal challenges. Property owners associations usually have their own bylaws and requirements for all members.

Commercial Litigation Attorneys

If our company is suffering severe financial injury due to a breach of a contract, you need an attorney who is able to offer innovative, aggressive legal representation. Feldman & Feldman has represented businesses in breach of contract litigation for many years. Litigation is the primary focus of our law firm. We know how to handle complicated commercial litigation matters. We have experience successfully resolving legal claims involving governmental agencies and other organizations. By using innovative and personalized strategies, we can help clients resolve matters quickly and efficiently. Contact us today to schedule an appointment with one of our commercial litigation attorneys.

The post Property Owners Association Refusing To Abide By Sale Of Marina appeared first on Feldman & Feldman.

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Immunity Under the Texas Environmental, Health, and Safety Audit Privilege Act

Originally published by Environmental and Energy Law Blog.

Under the Texas Environmental, Health, and Safety Audit Privilege Act (“the Act”), those entities who conduct voluntary health, environmental, and safety audits of regulated facilities and operations are entitled to immunity from penalties for violations that are discovered, disclosed, and corrected within a specified amount of time. Below is some additional information about immunity under the Act.

Voluntary disclosure of violations

In order for an entity to receive immunity, a disclosure must be voluntary and preceded by a notice of audit. A disclosure is considered voluntary if the following conditions are met:

• The disclosure was made soon after the violation was discovered
• The disclosure was submitted in writing
• The disclosure was made prior to the initiation of an independent investigation
• The violation was disclosed as the result of a voluntary audit
• Efforts to correct the violation are initiated by an entity within a reasonable amount of time of the disclosure
• The disclosing entity cooperates during the investigation of the issues identified
• The disclosed violation hasn’t caused injury or an imminent risk of injury
• The disclosure isn’t required by an enforcement decree or orderAnd when a violation is discovered during an audit that was conducted prior to an acquisition closing date, the person making the disclosure must certify the following:

• Before the closing date, he or she wasn’t responsible for compliance at the regulated entity
• Before the closing date, he or she didn’t have the largest ownership share of the seller
• Before the closing date, he or she and the seller didn’t have a common corporate parent

 Limitations

Immunity does not apply under any of the following circumstances:

• The disclosed violation was committed intentionally or knowingly
• The disclosed violation was committed recklessly
• The disclosed violation resulted in a significant economic benefit that gave the violator an advantage over its competitors
• An administrative law judge or court finds that the person or entity claiming immunity has continuously committed significant violations and hasn’t tried to bring the facility into compliance

Texas Environmental Law Attorneys

If you or your company have been cited for non-compliance or are facing legal action based on non-compliance, then you need an experienced Texas environmental law attorney like C. William Smalling on your side. Smalling, with a background in engineering, understands both the technical and legal aspects of situations affecting corporations in the oil, gas, and energy industries. Whether negotiating with the government or litigating government enforcement actions and private tort suits, the experience of C. William Smalling provides corporate clients with a significant edge in all oil, gas, and energy matters. We take pride in providing our business clients with the legal tools to remain confident while navigating the complicated world of environmental regulations. If your company is facing legal action or simply needs guidance in the area of environmental law, please contact the Law Office of C. William Smalling for a consultation.

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New SEC Proposal Could Make Regulations More Complicated for Small Business

Originally published by Brent Perry.

 

The U.S. Securities and Exchange Commission (SEC) is floating a new proposal that proponents hope will encourage more Initial Public Offerings (IPOs) by reducing auditing requirements for smaller public companies. However, experts have pointed out the proposal creates a new grey area that leaves questions for regulators and for small businesses too.

The SEC is seeking comments on its proposal to reduce auditing regulations that were enacted to improve internal controls for public companies and reduce securities fraud. Under Sarbanes-Oxley 404(b), businesses are required to utilize independent auditors to review internal controls, and strong internal controls lead to accurate financial reporting. The Sarbanes-Oxley Act of 2002 was a response to the early 2000s accounting scandals at companies like Enron and WorldCom.

The SEC estimates the changes could save small companies $110,000 in audit fees and $100,000 in non-audit costs annually. It’s obvious that small businesses would welcome this regulatory and financial relief. But what exactly counts as a small business? Last June, the SEC updated its definition of smaller reporting companies (“SRCs”) to include businesses with up to a $250 million market capitalization. Critics pointed out the updated definitions did not provide significant relief because an SRC was often still considered an “accelerated filer” or a “large accelerated filer” and still subject to the audit requirements.

So how do small public companies know if they qualify for small business regulatory exemptions involving public disclosures and auditing requirements? That’s a tough question to answer based on the current complex regulations. According to SEC Commissioner Hester Peirce, the current proposal doesn’t simplify regulations for small businesses as much as it should. She also points out the SEC has so many categories of public companies that regulators “often need diagrams to figure it out.”

What Confusing Regulations Mean for Businesses

While the SEC struggles to create and adopt simplified requirements and regulations for smaller public companies, businesses and investors are paying the price. Confusing regulations greatly increase the likelihood that smaller reporting companies will face securities litigation. When regulators struggle to understand the regulations they impose, businesses are almost certain to face litigation for possible infractions.

Houston Securities Litigation

At Burford Perry LLP, we regularly handle cases involving complex securities issues. We have represented both small businesses and individuals in securities litigation. We work to resolve matters quickly and efficiently. If you are anticipating or considering securities litigation, contact us today and schedule an appointment with one of Houston securities litigation attorneys.

The post New SEC Proposal Could Make Regulations More Complicated for Small Business appeared first on Burford Perry.

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Can a Court Order Marriage Counseling Prior to Granting A Divorce?

Originally published by San Antonio, TX Family Law and Military Divorce Blog.

Yes.  Texas Family Code Section 6.505 addresses this subject and provides the authority.

While a suit for divorce is pending, the Court may order the parties into marriage counseling with a person named by the Court.  The counselor must submit a written report to the Court prior to a final hearing.  The only opinion the counselor may give in the report is whether a reasonable chance for reconciliation exits and, if so, whether additional counseling may prove beneficial.  A copy of the counselor’s report must be given to each party/attorney of record.

If the counselor’s opinion is that a reasonable chance of reconciliation exists and further counseling may be beneficial, the court can continue the proceeding and order further counseling.  If no reasonable chance of reconciliation exists, the suit for divorce may continue in the customary manner.

Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC.  The firm provides a spectrum of family law-related services to clients in the greater San Antonio region, across the United States and throughout the world.  The firm specializes in Federal Civil Service and Military Divorce matters.

 

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The TPLT Proxy War

Originally published by John McFarland.

A couple of years ago I wrote about the history of Texas Pacific Land Trust (TPLT), one of the largest landowners in Texas.  The trust was formed out of the bankruptcy of Texas Pacific Railroad, which received 3.5 million acres of land in West Texas in consideration for building the T&P Railway across the state. It went into bankruptcy in 1888, and its land was put in a trust to sell of to pay the railroad’s bondholders. Those certificates of trust were later listed on the New York Stock Exchange, where they trade under the ticker TPL. Its shares closed today at $786.44 per share, a market cap of $6.2 billion.

TPLT now owns some 888,000 acres of land. The minerals under its land were spun off into a separate company and acquired by Texaco, now Chevron – now one of the largest mineral owners in the Permian. TPLT has royalty interests under about 500,000 of those acres, in El Paso, Hudspeth, Culberson, Reeves, Pecos, Winkler, Ector, Midland and Glasscock Counties. In addition to collecting royalties the trust makes money granting easements and collecting damages from oil companies operating on its land, and has recently begun a business supplying water to the industry.

Since its founding the trust has been managed by a three-member board of trustees. When a trustee dies or resigns, the remaining board members name his replacement, subject to shareholder approval. But now some investors want to change that, modernizing its management and converting it to a corporation. One of its trustees died in March, and those investors want to elect their own member rather than the nominee chosen by the other trustees.

The New York investment firm Horizon Kinetics, leading the dissident group, owns more than 23 percent of the trust shares and has nominated its own candidate for trustee.  The trust’s nominee is Donald Cook, a retired Air Force four-star general who was a commander of Randolph Air Force Base near San Antonio. He has served on boards of major corporations such as Burlington Northern Santa Fe railroad and the USAA Federal Savings Bank.

TPLT has postponed the shareholder meeting scheduled to elect its new trustee. It also filed a lawsuit in federal court in Dallas, accusing Eric Oliver, the nominee of the dissident shareholders, of violating securities laws.

Another chapter in the history of the T&P Railway.

 

 

 

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What if the IRS Violates the Law?

Originally published by Houston Tax Attorney.

What happens if the IRS violates the law? Specifically, what if the IRS assesses a penalty and attempts to collect it without first issuing the proper notice to the taxpayer? The court addresses this in Romano-Murphy v. Commissioner, 152 T.C. 62, in the context of a trust fund recovery penalty. Facts & Procedural History The […]

The post What if the IRS Violates the Law? appeared first on Houston Tax Attorneys: Kreig Mitchell.

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NLRB Restresses Risk Of Firing Employees Who Discuss Pay

Originally published by Robert G. Chadwick, Jr..

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

Employers understand the disruption to workplace morale which can result from open discussions about employee compensation.

For instance, on February 24, 2011, MCPc, Inc., a non-union company, invited employees to a “team building” lunch. The lunch quickly devolved from “team building” to complaints by employees about their excessive workloads. One employee urged the company to hire additional employees to alleviate these heavy workloads. He added the company could have hired several employees for the $400,000 annual salary being paid to a newly hired executive. Other employees agreed. Employee morale was worse after the lunch than it had been beforehand.

MCPc, Inc. responded to the ill-fated “team building” lunch by terminating the employee who had accessed and shared the salary of the newly hired executive. At the time, the company likely did not anticipate this decision would be the catalyst for more than eight years of costly litigation culminating in a May 23, 2019 Order that the employee be (1) reinstated without prejudice to his seniority and with all records of his prior dismissal expunged, (2) made whole for lost earnings and other benefits, with interest, (3) compensated for “search-for-work” expenses, and (4) compensated for the adverse tax consequences, if any, of receiving a lump sum backpay award.

So, what did MCPc, Inc. allegedly do wrong? According to the National Labor Relations Board (“NLRB”) Decision accompanying the May 23, 2019 Order, the employee’s conduct at the “team building” lunch was protected concerted activity under the National Labor Relations Act (“NLRA”). Specifically, the employee had contributed to shared employee concerns regarding staff shortages. The NLRB found the company violated Section 8(a)(1) of the NLRA by discharging the employee for his protected concerted activity.

To be sure, MCPc, Inc. can, and likely will, appeal the NLRB decision in a federal appeals court. Still, its experience serves as a cautionary tale for other employers. The NLRA is applicable to both union and non-union employers. What an employer may regard as a disruption to workplace morale, the NLRB may regard as legally protected conduct. When employee misconduct even arguably implicates shared concerns over terms or conditions of employment, prudent risk management demands that the NLRA be considered before taking any further action.

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The “Wispiness” – or Not – of the TCPA

Originally published by Carrington Coleman.

Erdner v. Highland Park Emergency Center, LLC
Dallas Court of Appeals, No. 05-18-00654-CV (May 22, 2019)
Justices Whitehill (Concurrence/Dissent, linked here), Molberg (Opinion, linked here), and Reichek
Ken Carroll

Highland Park Emergency Center, LLC (“HPEC”) sued one of its doctor-members for breach of fiduciary duty. HPEC claimed Erdner usurped an opportunity to expand its freestanding-emergency-room (“FSER”) business to new locations. Contending HPEC’s claim was based on or related to his exercise of his rights of association and free speech—specifically, his communications with other investors about forming a new company to pursue FSER locations—Erdner moved to dismiss under the Texas Citizens Participation Act. The trial court denied the motion and, in a split decision, the Dallas Court of Appeals affirmed, holding the TCPA does not apply to the communications at issue.

The panel majority explained that prior Dallas Court decisions had held that, for a communication to qualify as an exercise of the right of association protected by the TCPA, that communication must be “between individuals who join together” and “must involve public or citizen’s participation.” And a TCPA-protected exercise of free speech requires a “communication made in connection with a matter of public concern.” The majority then held the communications in issue satisfied neither test. They were “private communications relating to establishing a business,” not “public [communications] or citizens’ participation,” and therefore not protected exercises of the right of association. The majority acknowledged that, under Texas Supreme Court precedent, a communication need have no more than a “tangential relationship” to a matter of public concern to be protected as free speech under the TCPA. But, the majority said, “A private communication made in connection with a business dispute is not a matter of public concern under the TCPA.” Relying heavily on a federal district court opinion from the Southern District of Texas, the majority held that “a communication cannot have a ‘tangential relationship’ to a matter of public concern that does not yet exist”—in this case, the FSER facilities that might, or might not, be built in the future.

Writing separately, Justice Whitehill concurred in—but disagreed with—the holding on the right of association, but dissented on free speech. Whitehill acknowledged that prior decisions from the Dallas Court had imposed a “public or citizen’s participation” requirement for protection of the right of association under the TCPA, and that this panel was bound to follow them. But, he said, “those controlling precedents were wrongly decided,” because the statute itself says nothing about such an additional requirement. Dissenting on the free-speech issue, Justice Whitehill noted that a “tangential” relationship to a matter of public concern, all the Supreme Court has found to be required under the TCPA, “is a very broad” standard, one that “conjures wispiness.” He would have found the communications at issue, regarding potential FSERs, to be sufficiently “tangentially related to” a matter of public concern—health and community well-being—to be covered by the TCPA.

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This Week in FCPA-Episode 155 – the Memorial Day edition

Originally published by tfoxlaw.

With the unofficial start of summer coming up this weekend, Jay and Tom reflect on Memorial Day and all the vets that served our country. They also turn to discuss both events some of this week’s top compliance and ethics stories which caught their collective eyes. Have you checked out the new OFAC compliance program? […]

The post This Week in FCPA-Episode 155 – the Memorial Day edition appeared first on Compliance Report.

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A Poor Prognosis? Call Your Estate Planning Lawyer!

Originally published by Rania Combs.

I worked with a young couple last year. Both were in
good health. They were happily married, had two small children, and were busy balancing
their careers and young family.

Their plan was typical: If one died, they wanted the surviving spouse to inherit outright with minimal fuss. Their wills made an outright distribution to each other, but most of their assets could transfer outside of probate:  joint financial accounts were held with rights of survivorship, each spouse was named as the primary beneficiary of life insurance and retirement plans, and the transfer on death deed would transfer the deceased spouse’s interest to the surviving spouse without probate.

But life happened around the signing of their documents. Family members passed away. Work got busy. Thanksgiving and Christmas happened. They executed all their documents, made sure accounts were titled properly, and beneficiary designations were correctly made, but the transfer on death deeds slipped through the cracks. Although they were signed, they were not recorded in the property records.

Fast forward six months. The husband was diagnosed with
an aggressive cancer and poor prognosis. He died just a couple of months later.

Estate planning is not a “once and done” undertaking. You
should periodically review your documents with your attorney to ensure that you
have your bases covered.

This is especially important if you’ve been diagnosed
with a life-threatening illness, such as cancer, or a disease which will result
in cognitive decline, such as Alzheimer’s disease or other dementias.

The “peace of mind” review should include matters such as:

• Making sure that your Will and/or Trust distribute your assets according to your current wishes and have been signed in accordance with the Texas statutes
• Confirming that powers of attorney are current and appoint those who you trust most to make medical decisions for you and handle your financial affairs
• Double-checking beneficiary designations to ensure they coordinate with your Will or Trust
• Verifying that financial accounts are titled properly and that any necessary POD or TOD designations have been made
• Making sure that transfer on death deeds have been recorded in the appropriate counties.

Planning for the worst is heartbreaking for the client
and the lawyer. But consulting with your lawyer at this critical stage can ensure
your affairs are in order so that your estate passes to your loved ones in the
most expeditious way possible.

Having an unrecorded transfer on death deed is not the end of the world. With a valid Will, a probate proceeding or probate alternative can transfer title to the surviving spouse. But such a proceeding could have been avoided completely by recording the transfer on death deed before death.

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When Should You Consider an Insurance Company Settlement?

Originally published by Thomas J. Henry.

No one plans to be injured. Whether it’s an automobile accident, an injury on the job, or any other personal insurance, when you are looking at an insurance company settlement, it’s safe to say you are not in your best state. Physical injuries, pain and suffering, and permanent mental scaring can all cause you to lose out on income and face mounting medical bills. Regardless of how bad the situation looks, an insurance claim attorney from Thomas J Henry is here to make sure all your needs are handled. With your best interests in mind, when is it time to start considering a settlement during this claim process?

Seeking an Insurance Company Settlement

After suffering an injury of any kind, trying to balance life with medical bills and other post-injury debts can seem overwhelming. Typically, you’ll find yourself missing work due to injuries, and often your medical bills will seem impossible. This situation is why the claim system in America is made to ensure you can receive just compensation for your injuries from the responsible party. Of course, going through the process of filing a claim and receiving compensation can seem like a difficult task for the individual. With an attorney on your side, you can explore a personal injury settlement as a more straightforward option.

Accepting a Personal Injury Settlement

There are a variety of benefits to considering an insurance company settlement. A settlement means that you can get paid out much more quickly than fighting outside of court or going to litigation over your injuries. Secondly, a settlement offer can often result in more money in your pocket simply because settling outside of court saves the insurance company legal costs. For many, an additional benefit is that you can get the process “over with.” Said differently, it allows you to get fair compensation for your injuries and proceed with your life.

When receiving a settlement offer, it’s important you weigh the potential benefits in your particular case. An experienced attorney will be able to review all your medical bills, missed work, and other injuries, including pain and suffering. From there, you can access whether the personal injury settlement is fair and beneficial. If it does not fully cover your loss due to the injury, it makes sense to push the button and seek higher compensation. However, if it does help repair the damage, cover your medical bills, and provide you closure after the accident, an offer can be a powerful tool in your toolbox.

Your Insurance Claim Attorney

If you are considering an insurance company settlement, the best thing you can do as a victim is to ensure you are taking all injuries and factors into account. Often, a settlement is the best way to get fair compensation without having to deal with months and months of haggling and negotiating. At Thomas J Henry, we have experience working with clients to ensure they get just compensation for their injuries. Call us today nationwide toll-free at 866-517-5659. An experienced insurance claim attorney will be delighted to help.

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