Here at the offices of Abogado Aly, our attorneys take care of our clients and make sure they get the honesty and truth that they deserve. Visit Our Immigration Law site here!
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.
Insurance claims adjusting is not easy business. Quality adjustment which vets claims quickly and gets the money to policyholders fairly, promptly and fully is challenging work. I have repeatedly indicated this in numerous blogs. The following quote found in Insurance Company Claims People Are Important, is similar to many comments in other blog posts: Insurance… Continue Reading
I love youth activities because they start out so spirited, often with a riddle, a challenge, or a song. Recently, I realized that my some of the difficulties that students face is that they can easily avoid the obvious. That’s…
My husband and I disconnected our home phone number recently. We both have cell phones, and it seemed like the only calls we received were sales calls and scams.
Receiving a call from someone posing as a representative of a government agency threatening legal action is scary. I remember receiving a frantic phone call from a neighbor several years ago after she received a call from someone purporting to be an IRS agent who claimed she owed back taxes, demanded that she pay immediately over the phone, and threatened that another agent was in route to arrest her if she did not comply.
She was so stunned and scared that she hung up the phone. That was the right thing to do.
The Inspector General of Social Security recently issued a warning about scammers impersonating Social Security officials who
threaten arrest or legal action unless you pay a fine;
promise to increase your benefits if you pay a fee; or
demand payment with retail gift cards, wire transfers, internet currently, or cash
What’s frightening is that these calls sometimes seem legitimate because scammers use spoofed phone numbers to appear on your caller ID to make it appear that the call is coming from a real government agency.
It’s important to know that the Social Security Administration will never demand payment by phone. If you owe money to Social Security, the agency will mail you a letter with payment options and also instructions on how to file an appeal.
The Inspector General of Social Security recommends that you take the following action if you receive a suspicious call:
Hang up
Never share personal information or make any payments
Report the scam at OIG.SSA.GOV
You can also get information about other scams on the Federal Trade Commission website by clicking here.
Are your workers independent contractors or employees? How can you tell the difference? What are the rules to determine whether a worker is an independent contractor in Texas or elsewhere? Why does this even matter?
California’s
AB5 law, which made it harder for a number of workers to be independent
contractors (as workers must meet all 3 of the ABC factors to be employees as
discussed below), may spread to other states. Even if it doesn’t, there will
still be the risk of a misclassification lawsuit in a number of states because
companies in the gig economy are generally seen by state governments and
plaintiff’s attorneys as misclassifying independent contractors and thus are a
target for lawsuits.
Proper
classification also matters for employees and the states that they work in (as
shown by New Jersey’s lawsuit against Uber). Misclassified workers can cost
states to collect less unemployment insurance, worker’s compensation insurance,
and income taxes. Workers lose out on unemployment insurance (unless they can
show in a proceeding that they were misclassified) and workers compensation
insurance as contractors. On the other hand, many workers prefer to be
independent contractors due to the benefits that they can obtain such as
certain tax write offs, more control of their business, and better
opportunities to profit. The most recent example of this are freelance writers and truckers in California.
What is an Independent Contractor?
States and
the federal government have a wide variety of tests that they use to determine
whether a worker is an independent contractor.
To determine whether a worker is an independent contractor under the Fair Labor Standards Act (which governs most wage and hour issues at the federal level) courts use the economic reality test. The test has the factors the bullets below. All of these factors are considered, and a worker need not meet every factor to be an independent contractor.
The extent to which the services rendered are an integral part of the principal’s business.”
Essentially the question is whether the person performing work that is an essential part of the service that the business provides? A traditional plumbing company that only has plumbers that are independent contractors would not pass the test. Plumbers are a main part of the services provided by the plumbing company. In contrast, a worker that only mows the plumbing company’s lawn every 2 weeks is not an integral part of the plumbing business.
“The permanency of the relationship.”
Is there a definite end to the employment relationship or are
the services only provided periodically? A cleaning person that comes once a
week could be an independent contractor). Both factors would tend to indicate
that the workers are independent contractors.
“The amount of the
alleged contractor’s investment in facilities and equipment.”
If the contractor provides their own tools, then that is a good
indication that they could be independent contractors. If the company provides
all the tools, then that weighs in favor of a finding that they are employees.
“The nature and degree
of control by the principal.”
Does the worker have the ability to determine how to perform the
work? Are they able to determine the means that they use to complete the
project and perhaps the time that they use to complete the project? For
example, suppose you hire someone to develop an app for your company. If they
can determine the means that they use to develop the app; are free to work on
the development when they want; and can choose the programing language they use
to complete the app (even though the company decides what the app is supposed
to do), then this factor would tend to show that they are independent
contractors.
“The alleged
contractor’s opportunities for profit and loss.”
Independent contractors typically can make money, lose money,
and don’t have a fixed amount of money that they can make (or at least are
usually not getting paid an hourly rate).
“The amount of
initiative, judgment, or foresight in open market competition with others
required for the success of the claimed independent contractor.”
Do workers compete with others in the marketplace? Is it
possible for them to lose the business? Does the work require them to use
independent judgment to complete the work? If so, then this factor supports a
finding that they are independent contractors.
“The degree of independent business
organization and operation.”
Do they have their own business? Do they set
their own schedule? Do they send out invoices? Do they do the things that
separate businesses typically do? If so, then they are more likely to be
independent contractors.
The ABC Test for Independent Contractors
Many states,
like California, use the ABC test to determine whether a worker is an
independent contractor. The factors in the test are generally:
The worker is free from control (they determine how to do the work)
The work is outside the usual business of the company
The worker is customarily engaged in an independently established trade, occupation, or business.
In California, all 3 aspects must be met. Meeting all 3 factors can be difficult and is one of the reasons why there is such a fight over workers in the gig economy right now especially in California. Their main issue is whether the workers provide a service that is in the company’s usual course of the business (is Uber a company that provides a ride sharing service) or whether the companies merely connect providers (like Uber drivers or DoorDash workers) with potential clients that need their services. It is a question that will eventually be determined in the courts and legislative branches.
Independent Contractor Tests in Texas and Elsewhere
“’employee’ means each person in the service of another under a contract of hire, whether express or implied, or oral or written,” and “includes: (1) an employee employed in the usual course and scope of the employer’s business … .” That term does not include “an independent contractor or … a person whose employment is not in the usual course and scope of the employer’s business.” In section 406.121(2) of that law, an independent contractor is defined as “a person who contracts to perform work or provide a service for the benefit of another and who ordinarily:
A. acts as the employer of any employee of the contractor by paying wages, directing activities, and performing other similar functions characteristic of an employer-employee relationship;
B. is free to determine the manner in which the work or service is performed, including the hours of labor of or method of payment to any employee;
C. is required to furnish or to have employees, if any, furnish necessary tools, supplies, or materials to perform the work or service; and
D. possesses the skills required for the specific work or service.”
The Texas Unemployment Compensation Act does not directly define “independent contractor”. Instead, it sets forth a broadly inclusive test, known as the “direction or control” or “common law” test, for who is an employee: “’employment’ means a service, including service in interstate commerce, performed by an individual for wages or under an express or implied contract of hire, unless it is shown to the satisfaction of the Commission that the individual’s performance of the service has been and will continue to be free from control or direction under the contract and in fact”. By implication, an “independent contractor” would be a person whose services do not meet the above test. To aid in application of the common-law test, TWC has adapted the old IRS twenty-factor test for use by the agency (online at
Other agencies have their own tests. The National Labor Relations Board has a test called that is outlined here. As a reminder, the National Labor Relations Act applies to all companies with more than one employee whether unionized or not. The NLRB’s test is useful to determine whether workers are employees (and thus eligible to form a union) or independent contractors (the workers cannot unionize under federal law or at least not with the company that they work as independent contractors for. It is possible that they could be employees of another company where they could unionize.).
Essentially, there are a ton of rules to follow to determine whether someone is an independent contractor or employee. Almost every state has a different test (and sometimes more than one test for different areas of the law). Different tests may even lead to conflicting results.
Middle Ground
Currently
there is no middle ground between independent contractors and employees.
Someone is an employee or independent contractor.
The rule
defines a “digital network” as (essentially) an app or other piece of
software/website that is used to connect the public with contractors that can
provide a service that the public is looking for. A marketplace platform is a
company that operates a digital platform (ex. DoorDash owns and operates its
delivery app).
–All or substantially all of the payment paid to the contractor shall be based on a per-job or transaction basis;
–The marketplace platform does not unilaterally prescribe specific hours during which the marketplace contractor must be available to accept service requests from the public (including third-party individuals and entities) submitted through the marketplace platform’s digital network;
–The marketplace platform does not prohibit the marketplace contractor from using a digital network offered by any other marketplace platform;
–The marketplace platform does not restrict the contractor from engaging in any other occupation or business;
–The marketplace contractor is free from control by the marketplace platform as to where and when the marketplace contractor works and when the marketplace contractor accesses the marketplace platform’s digital network;
–The marketplace contractor bears all or substantially all of the contractor’s own expenses that are incurred by the contractor in performing the service or services;
–The marketplace contractor is responsible for providing the necessary tools, materials, and equipment to perform the service or services;
–The marketplace platform does not control the details or methods for the services performed by a marketplace contractor by requiring the marketplace contractor to follow specified instructions governing how to perform the services; and
–The marketplace platform does not require the contractor to attend mandatory meetings or mandatory training.
Essentially,
the law was passed as a way for Texas to clarify what it took for a worker to
be an independent contractor rather than an employee in the gig economy.
What
Rules Apply to Your Business
Ok, you just read a number of different laws about independent contractors. How do you know what applies to your business? Before I give a checklist, I need to reiterate that this is a complicated issue. There is a lot of case law about a variety of workers, duties, and positions under these tests. It is an incredibly fact specific question to determine whether a worker is an independent contractor and is often very confusing.
Here are some steps to consider to determine what law to apply:
Why are you trying to determine whether the worker is an independent contractor or employee? Is it a federal tax, federal wage and hour, unemployment insurance, unionization, or workers compensation insurance issue? Workers should almost always be classified the same under the different laws.
What state does your business operate in?
Based on what issue applies and the state, you would then need to examine the law for that area, the state, and potentially the federal laws.
You need to gather the relevant information about the individual worker under the test.
You then need to follow the test and review how courts have looked at cases similar to yours in the past to reach a determination on the proper classification.
Correctly Classifying Workers
As noted above, it is incredibly important that you correctly classify your workers. If you are in an industry that has a history of misclassifying workers, then you should take extra precautions. Common industries where misclassification occurs includes construction, certain medical professionals, and the gig economy.
To avoid
these problems, many employers benefit from conducting a review of a worker’s
duties and other information to determine whether or not they have been
properly categorized. To do this, you must also have good job descriptions. I’ve written about this
before in the context of ADA accommodations and white-collar exemptions, but it is also useful for
classifying independent contractors.
Conclusion
You need to classify workers correctly. If you fail to classify workers properly, then your company could be subject to an expensive lawsuit that could upend your business. Do your due diligence utilizing the tests available to ensure your workers are classified appropriately.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
With all of the news about COVID-19 (Coronavirus) making its way into the United States, it is time for law firms to think about what they are going to do to prepare for a possible outbreak that will affect their business operations. Disaster Recovery and Business Continuity Plans need to be dusted off and updated to manage the different scenarios that may come our with over the next few months. We asked the Association of Legal Administrators interim Executive Director, April Campbell, to discuss what law firms need to be doing to prepare.
While these may be common sense approaches to reducing the risk of exposure to COVID-19, the firm’s leadership must go deeper and layout a strategic plan for what to do if the epidemic becomes a pandemic and affects the overall business operations of the firm and the firm’s clients.
There will most likely be a significant increase in those working from home. The firm needs to test the ability of the firm’s infrastructure to handle that type of stress. While many of the lawyers may be set up to work from home for a prolonged period, but what about the other employees of the firm? Are they properly trained? Do they have the right equipment? How do you manage personnel who may have never worked from home before?
There is a multitude of issues facing law firms should COVID-19 become a serious epidemic. The better prepared the firm is now, the better the firm will react should the event come to fruition. As the saying goes, no emergency should go to waste. Now is the time to act and test where the firm needs help, or where there needs to be more flexibility in business operations. If you do not have a disaster recovery plan, reach out to your colleagues in the industry to ask them for help.
If your firm has created new policies or is testing scenarios based on a COVID-19 outbreak, we’d love to hear more. Send us an email or voicemail and share your experiences.
Listen, Subscribe, Comment
Special thanks to Gabriel Teninbaum for his inspiration on this issue.
Please take the time to rate and review us on Apple Podcast. Contact us anytime by tweeting us at @gebauerm or @glambert. Or, you can call The Geek in Review hotline at 713-487-7270 and leave us a message. You can email us at geekinreviewpodcast@gmail.com. As always, the great music you hear on the podcast is from Jerry David DeCicca.
It’s a case that tests the boundary between a government employee’s right to voice concerns on government spending on one hand, and on the other, a public official’s right to expect loyalty from employees so that the government runs efficiently.
Involving A civil case has been filed against Theranos founder Elizabeth Holmes after Holmes allegedly failed to pay the attorneys representing her in a criminal case that alleges she committed fraud in California by taking blood samples from her clients despite the fact that she knew the blood-testing technology she was supposed to use it for was still in the development phase.
As Holmes is a billionaire, the subsequent withdrawal of the attorneys defending her in the fraud case has raised speculation that Holmes is in dire financial straits. Public records of the civil case filed show that her attorneys have alleged that Holmes has failed to pay their firm for over a year. Especially telling is one sentence from the complaint that reads given “Holmes’s current financial situation, Cooley has no expectation that Ms. Holmes will ever pay It for Its services as her counsel.”
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Editor’s note: This post was originally published on October 15, 2014.
Editor’s note: TLAP offers confidential assistance for lawyers, law students, and judges with substance use or mental health issues. Call TLAP at 1-800-343-8527 (TLAP), text TLAP to 555888, or find more information at tlaphelps.org.
I’ve been given the precious gift of life three times; when I was born, when I got sober, and when I finally overcame an eating disorder.
My parents are healthcare professionals who gave us a great home and many advantages growing up, but there were unspoken high expectations. We were the “perfect” family outwardly, but my heart kept growing cold when I did not receive time, love, or attention from my father. Unknowingly, I was beginning my quest for that certain male/father figure that would later bring me great misery.
So, I excelled in everything that I did, whether it was being valedictorian, being the best dancer, being the best all around … you name it. I did it and did it well. But I still never got that hug from my dad. I still never got that “twinkle in the eye/I’m so proud of you” look.
I don’t remember when it started, but for about 20 years of my life there was nothing less than a roller coaster of addiction, emotional chaos, blackouts, swollen faces, and nonstop searching for a way out. When I was drinking, my eating disorder was in the shadows. When I tried to restrain my drinking, I’d turn back to unhealthy eating. As I tried to “stabilize” one addiction, I’d be de-stabilizing the other.
Men enjoyed being around me when I drank, and men looked at me in a new and exciting way when I would starve myself. I was finally receiving the attention from men that I had longed for, and perhaps, I didn’t need my father’s attention.
I went to two different colleges because I felt that I would be “safe” being an unknown. I never had close friends. I was very good at having acquaintances who thought I was their friend. I showed interest in their lives but they never knew about mine. I would rotate my “friends” like I would rotate my liquor stores.
Despite the moving around that I did, the shame, fear, and insecurity never left. The ongoing search for my father’s attention led me into many affairs that left deep scars. Guilt and depression overwhelmed me. I soon became an expert at isolation. I felt trapped. I felt like I was in that hole in the movie The Silence of the Lambs and I was never going to escape.
I found almost total peace when I took my last drink and admitted to God that I was powerless over alcohol. I started slowly crawling out of that hole and enjoying life. I applied to law school at the age of 26 and got accepted. I was at the peak of my recovery from alcoholism. I was finally feeling that fatherly love from my AA family. But I could still hear that voice in my head saying, “You’re not perfect enough. You’re FAT. You’re worthless.”
So, I began taking as many as 30 laxatives three to four nights a week. I spent many nights and in between classes in the bathroom. My face was swollen from the purging. My hair was falling out. My teeth were breaking. And, yet, I still felt like I was in control.
It wasn’t until I was vomiting blood and bleeding internally because I had three bleeding ulcers, due to my purging, that I was tired of “being in control.” I was tired of looking for the man that could love me in a way that a father loves his child. My search for that love ended that day when I realized that my father is God, who loves me unconditionally.
I graduated from law school and have been practicing law for several years. As a female attorney, I will always struggle to be “perfect” and want to control my surroundings. There will always be life challenges. However, when I find myself feeling lost, alone, and controlling the situation, I remind myself that I am a precious child of God and he is the director of my life and the basis of my recovery.
Today, I am happily married to “my gift from God” who is the complete opposite of my father. God sure does have a sense of humor.
Warning signals of an eating disorder include isolation, compulsivity, many trips to the bathroom, frequent illness, weight fluctuation, inappropriate focus on exercise and food, and an inability to maintain intimacy in relationships.
If you think you have an eating disorder, consult a professional. Without treatment, it will never go away.
You are not alone as someone who wishes to share aspects of your life with your friends and family via social media. Millions of users log onto Facebook, Instagram, Twitter, SnapChat, TikTok and other social media apps daily. Around 70% of Americans use social media sites, according to the Pew Research Center. If you get into a personal injury accident, it is in your best interest to restrict what you post to social media. Posting the wrong thing could have the power to reduce your financial recovery award…or eliminate it completely.
Why You Should Avoid Social Media
Your Dallas personal injury lawyer will most likely advise you to stay off of social media for the duration of your personal injury case. Investigators can access content posted across social sites and use it as admissible evidence. The defense may be able to take anything you post and turn it around to paint you in a negative light. Staying active on social medial during a claim could interfere with your ability to recover in many ways.
Contradicting your story. You or one of your friends might post something that contradicts the story you have been telling. If you say you have chronic pain that interferes with your enjoyment of life, for example, posting photos of you bowling or at a party could hurt your case.
Undermining your reliability. If you post something on social media that contrasts any information you gave to an insurance company, no matter how minor (such as a photo showing you at Disney when you said you were at work), this could be enough for the defense to establish that you are an unreliable witness.
Divulging your location. Something as seemingly innocent as checking in at a location could still serve as evidence against you during an injury case. The defense might use the fact that you checked in at a yoga studio as proof that your injuries are not serious, for instance, no matter why you were at the studio.
Saying the wrong thing. Even if you are careful about what you post on social media, you cannot control what your friends or family members post. Comments regarding your case or lifestyle, such as how much money you wish to make in a settlement, could hurt your case or damage how you look to a jury.
Trying to cover up evidence. Deleting messages or photographs you think might be incriminating could harm your case further. Investigators have ways of retrieving deleted content. The fact that you deleted things could look suspicious to a judge or jury, regardless of the actual content of the material deleted.
It can be difficult to predict how the defense may use your social activity against you during a personal injury claim. Changing your privacy settings will not keep investigators out. The best way to protect yourself from potential social media pitfalls is to delete or freeze your accounts during your claim. Do not post anything, check-in anywhere or let your friends tag you in any photos on social media sites. The same is true for other forms of digital communication. Be careful what you email, text and message to others, as this could also become evidence during your case.
Do Not Run the Risk – Log Off During Your Claim
Many injured parties believe they are exceptions to the rule and can do better about posting carefully on social media during an ongoing injury case. Unfortunately, they underestimate the ways in which an aggressive defense team can twist posts and online activity into evidence against them. Even the most prudent plaintiff could make a mistake on social media that comes back to hurt his or her claim. The best way to optimize your odds of obtaining fair compensation for an injury is by pausing your social media use entirely until the conclusion of your case.
Kristina Marlow is a senior director in Washington, DC. She is one of the few recruiters to have both practiced law and later recruited for Big Law.
Stephanie Ruiter is a director in the New York City office. Stephanie practiced law with two small DC law firms before becoming a recruiter.
They both are tops when it comes to helping young lawyers find the firm that will be best for their careers.
You’ve done it. You’ve made it to your 5th year at a law firm. You should be proud of how far you’ve come. Chances are you got where you are by keeping your head down and working hard. You got into the right schools, which led to the right law firm.
You’re done, right? Unfortunately, wrong. What firms don’t tell you is that you’re on a ticking clock in terms of marketability and ability to lateral to another firm. It’s never too early to decide you’d like to move to another firm, but it can be too late. By the time you reach your 6th year, firms no longer have interest in bringing you on as a lateral, no matter your reputation or your pedigree.
You may wonder why a firm would be reluctant to bring you on as a senior associate, counsel position, or “service partner,” or even at a more junior level. This comes as a shock to many experienced attorneys, who assume that their years of work have made them more desirable, not less. But the reality is a firm will rarely hire a senior attorney who does not have portable business.
The main reason is the pyramid shaped Biglaw business mode, which depends on the attorneys at the top to bring in business. The firm needs you to bring enough business to keep yourself busy. Do a quick perusal of open listings and you’ll see that the majority, if not all, associate openings are for 5th year associates and below.
This makes your 5th year the most pivotal of your career. At this point, chances are you’ve evaluated your career and your future. Maybe you’ll realize you do want to work at a law firm, but that the one you’re at isn’t “right” for you in the long term. Or maybe the firm will let you know that you are not “right” for partnership.
WHAT SHOULD YOU DO?
If you’re a junior associate, conduct regular evaluations of your career and goals to determine whether you should make a change. If lateraling to an equivalent firm is not an option, you can consider moving to a smaller firm or relocating to a market where your expertise will be more valued.
Work to learn new skills and stay current on legal market developments;
Keep your resume up to date. It’s always a worth it to have a conversation with a firm that is looking for someone with your background. Even if you’re not sure you’re ready to move, the conversation will build your network as well as provide you with a clearer view of the opportunities available in your practice area.
Find an established partner to serve as your mentor/sponsor through the partnership process. If your firm has an established mentor/mentee program and your mentor is not providing guidance, speak up! The squeaky wheel gets the grease and your request will be viewed favorably as coming from someone who cares about their future at the firm.
Think strategically about your career development. Consider hiring a coach to help with business development or career development
Thanks to Kristina and Stephanie for their insights. If you are a law firm associate, I hope you will find their thoughts valuable. You can learn more about them and contact them using the links in the first paragraph.
This week I have been exploring the Wells Fargo Department of Justice (DOJ) and Securities and Exchange Commission (SEC) settlement of $3 billion. The case presents multiple lessons for the compliance professional and one very large lesson for the consuming public. Today, I want to consider the fraud schemes used and approved by Wells Fargo […]
Ladies and gentlemen, welcome to the main event. In the northeast corner, weighing in at half a ton, the rookie from Emeryville, California—Guinevere! And in the southwest corner, also weighing in at half a ton, the reigning heavyweight champion from San Francisco, California—Vanicorn! Which unicorn or pegasus-emblazoned 1972 Chevrolet G10 Van will be the victor?
Although this article doesn’t involve an actual bout between vans, it does involve recently-alleged copyright infringement of a peculiar nature. In 2014, a San Francisco tattoo artist and unicorn fanatic who goes by the name of “Sweet Cicely Daniher” painted a unicorn onto her 1972 Chevrolet G10 Van as a way of coping with her recent divorce from a (now former) husband who would not “allow her” to paint the unicorn on the van. Vanicorn was thus born, making a splash in the San Francisco arts scene, appearing in San Francisco Magazine, and eventually catching the attention of Pixar Animation Studios. Pixar later contacted Daniher to request rental of Vanicorn as a show piece and visual prop for an upcoming activity for its employees and their families—Daniher agreed.
Several months after bringing Vanicorn back home, and upon viewing the trailer for the upcoming Pixar film Onward, Daniher noticed that the film’s two protagonists drove a van named “Guinevere” that bore a striking resemblance to Vanicorn—right down to the make, model, color, and large fantastical beast painted on the side. Pixar contacted Daniher later to apologize for using Vanicorn as inspiration without permission, and Daniher wasted no time in letting the world know her opinion on the matter:
Daniher promptly filed suit against Pixar, alleging copyright infringement. There can be no dispute that the vans look similar—but is there a case to be had? What truth is there to Daniher’s assertions in her complaint that Pixar “pilfered” her work “under wickedly misleading pretenses[?]” Let’s explore.
The Copyright Act extends federal copyright protection to creative works that are “fixed” in a “tangible medium of expression” and expressly declines to extend such protection to ideas—regardless of the form in which the idea is embodied. 17 U.S.C. § 102. This means that copyright protection extends to an original painting of a unicorn, but not to the idea of a unicorn painting—meaning an infringement occurs when someone copies the way an original work is expressed, but not necessarily when someone makes their own original work. The reason behind this policy is to maintain the integrity of the Constitution’s Copyright Clause, which recognizes the importance of promoting the progress of the arts. U.S. Const. art. I, § 8, cl. 8.
So how does this fit in with Daniher’s infringement suit against Pixar? Although it can hardly be said that Pixar cannot include unicorn or pegasus-emblazoned vans in its movies, there is something compelling about the similarity between Vanicorn and Guinevere—both of which prominently display a large mythical horse-like beast facing to the left, with flashes of lightning, and a shape in the upper-right corner. Pixar’s brief custody of Vanicorn dispels any doubt that the similarities between the vans are just a crazy coincidence, and Pixar’s follow-up apology call with Daniher doesn’t help Pixar’s case either.
It’s anybody’s guess as to how this lawsuit will play out, but given Pixar’s audience, it would not be a stretch to imagine that similar unicorn or pegasus-emblazoned vans may start popping up after Onward releases on March 6. The lesson here: if you like and want to use someone else’s idea, make sure that any expression of that idea departs significantly from the original.
The Trump Administration has issued a proposed rule, 85 Fed. Reg. 5915 (February 3, 2020), that would codify its interpretation of the Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703 et seq., as applying only to the direct take of birds subject to the Act. For decades, the federal government interpreted the MBTA as criminalizing both the direct (intentional) and incidental (unintentional and incident to an otherwise lawful activity) take of birds, their nests, and eggs covered by the Act.
Voting in the 2020 election for State Bar of Texas president-elect and district director will take place April 1-30. In an effort to encourage voter participation and educate members on the candidates’ platforms, the State Bar is distributing messages submitted by the president-elect candidates addressing topics of their choosing. The first messages are available at the links below.
Click here to read Sylvia Borunda Firth’s message.
On April 1, attorneys eligible to vote will be mailed an election packet that includes a paper ballot, candidate brochures, and instructions on how to cast their vote. An email also will be sent to attorneys, giving them instructions on how to vote online. Be sure to check your spam filter. Election emails are sent by the State Bar’s election provider, Election Services Corporation, from statebaroftexas@electionservicescorp.com.
The election packet and email will contain a voter authorization number (VAN) with instructions on how to vote online. Attorneys may use this VAN and their bar card number to log on to the election website to cast their ballot. If attorneys do not have their VAN, they can also go to the State Bar website, texasbar.com, to cast their vote during the voting period.
Attorneys may either submit their paper ballot via mail or vote online using the information provided. The secure election system will not allow duplicate votes.
Sometimes in a Texas custody case, the court may find it appropriate to place certain restrictions on a parent’s access to the children. In time and with changed circumstances, it may be in the children’s best interest to remove those restrictions to allow the children to spend more time with that parent. In a recent case, a mother appealed an order modifying visitation.
The parents had two children during their marriage. The mother moved to another town and filed for divorce. The decree required the father to use a Soberlink alcohol monitoring device before and during visitation. The court ordered the father’s visitation would be supervised in Hidalgo County, but he would be allowed unsupervised visits beginning in August 2018 when the youngest child turned three.
The mother petitioned to modify the parent-child relationship to postpone the unsupervised visits. She argued unsupervised visits were not in the children’s best interest because the oldest child had significant speech delays and the younger child lacked emotional maturity. She also alleged the father failed one of his alcohol tests.
The father filed a counter petition, asking for standard visitation with exchange of the children occurring about midway between the parents’ homes in Alice. He claimed the modifications were in the children’s best interests and that there was a material and substantial change in circumstances since the divorce decree.
The trial court ordered a mental evaluation of the father, and based on that evaluation, allowed him unsupervised overnight visitation. The trial court issued a final order granting standard unsupervised visitation, omitting the Soberlink requirement, and requiring the parents to meet in Alice to exchange the children.
The mother appealed, arguing the trial court abused its discretion in ordering the parents to exchange the children in Alice. Pursuant to Tex. Fam. Ann. § 153.316, the court must order the parents to surrender the children at one of their homes. The appeals court noted, however, that this section only applies to the original possession order, and this case involved a modification. Modifications are governed instead by § 156.101, which allows modification of a possession order if it is in the children’s best interest and the circumstances have changed. The mother had alleged a change of circumstances in her own petition to modify. Under Texas case law, that allegation of changed circumstances constituted a judicial admission for purposes of the other father’s similar pleading.
The mother argued exchanging the children in Alice was not in their best interest. The appeals court noted, however, that there was evidence supporting a conclusion that meeting in Alice was in the children’s best interests. The father testified he had not exercised his right to communicate with his children electronically because the mother had stated she would not allow them to communicate through video-teleconference or Skype. He claimed she was trying to prevent him from having a strong relationship with his children. He asked the court to have them meet in Alice if standard visitation was granted. He said it was a little more than halfway for him and he thought it was in the children’s best interests for him to be in their lives.
The mother’s attorney argued she was working on her master’s degree in clinical psychology and was required to be at a facility all day and could not get from work to Alice at the scheduled time. The father offered to change the time, but pointed out it would only be once a month. The court agreed to order the weekend visitation exchange to occur in Alice.
The appeals court found there testimony that seeing their father more often was in the children’s best interests and found no abuse of discretion in the court ordering the exchange to occur in Alice.
The mother also argued the court abused its discretion in eliminating the Soberlink requirement. The divorce decree required sobriety testing before and during the father’s time with the children for five years after the divorce. The mother argued the father had not requested the removal of the condition and the judgment had to conform to the pleadings. The appeals court noted, however, that the best interests of the children are the most important issue in custody cases, and technical rules should not interfere with acting in their best interests. The appeals court found that the trial court did not abuse its discretion in not conforming to the pleadings if it did not do so arbitrarily.
The mother argued the Soberlink requirement was in the children’s best interests. The father testified he used a breathalyzer twice a day for another court and did not have any violations. The mother offered evidence of an alleged positive Soberlink test result, but the father testified it was a false positive and another test six minutes later was confirmed at 0.000. The trial court found the first test was a false positive. The court further stated the father testified he was receiving psychological and psychiatric treatment. The appeals court found no abuse of discretion in the trial court’s elimination of the Soberlink requirement because there was some evidence it was no longer in the children’s best interests.
The mother also argued the trial court erred in granting overnight visitation to the father. The children’s counselor testified that “It would be very difficult and traumatic for them to be away from their mother at night.”
The father argued the original divorce decree granted him unsupervised overnight visits. The father’s psychological evaluation resulted in a recommendation the father have full access to his children with standard visitation. The appeals court found the trial court had sufficient evidence to exercise its discretion and did not abuse its discretion. There was evidence it was in the children’s best interests to have unsupervised, overnight visits with the father.
The appeals court affirmed the trial court’s judgment.
If you are seeking or fighting a modification of a custody order, an experienced Texas custody attorney can help you fight for your children. Call McClure Law Group at 214.692.8200 to set up a meeting to discuss your case.
A “trade secret” is broadly defined as any formula, pattern, device or compilation of information unknown to others that gives the owners an opportunity to obtain an advantage over competitors. Public policy supports protecting corporate trade secrets to encourage innovation – and both state and federal law provisions offer formal protection. In line with this, Texas courts will protect Houston trade secrets when companies take reasonable steps to keep these important property rights confidential.
Misappropriation of trade secrets is a common claim raised between competitors in the business world. When the wrong individual gains access to a trade secret, litigation is sometimes the only means of preventing disclosure or use by others. The release of protected information to someone without a fiduciary responsibility or confidential relationship to the trade secret holder may void the property right. An owner’s continued efforts to maintain secrecy are key to proving the existence of a valid trade secret.
Houston Trade Secrets Litigation
When a business is forced into litigation to protect its trade secrets, its lawyers must be careful to avoid disclosing them and accidentally undermining the intention of the lawsuit. Not only must trade secrets be vigorously defended, but special care must also be used to guard against their disclosure during litigation.
The first potential time where trade secret disclosure can occur is when the plaintiff files its petition or complaint. Since complaints are publicly available, any disclosure of business secrets within this initial pleading would publicize the very thing the plaintiff seeks to protect. As such, trade secret complaints rarely identify the trade secrets with particularity, and plaintiffs generally want to delay such identification as long as possible. The defendant, on the other hand, will want and need to obtain a reasonably particular definition of the information plaintiff claims as its trade secrets before discovery production requires the revealing of its own secret information.
Despite this, numerous courts require trade secrets to be identified before discovery commences to “prevent trade secret related discovery from beginning before a particular trade secret has been identified.” See MedioStream, Inc. v. Microsoft Corp., 749 F. Supp.2d 507, 517–8 (E.D.Tex. 2010).
Limiting The Scope of Disclosure
One commentator suggested a “workable definition might be that the plaintiff should provide the defendant with a general outline of its trade secrets sufficient to allow the defendant to assess the relevancy of the requested discovery and to assure the defendant (and the Court) that the defendant is not the victim of a fishing expedition.“
At the initial stage of discovery, a plaintiff in Houston trade secrets litigation rarely knows exactly what trade secrets were stolen. But it does know what trade secrets it has, and this is the subject of the trade secret identification. To require instead, or in addition, that the plaintiff identify as discovery precisely which trade secrets the defendant actually misused would defeat discovery’s very purpose, substantially increase the plaintiff’s likelihood of failure, and effectively deprive the plaintiff of the benefit of discovery.
In federal court, if a competitor brings a claim of misappropriation of trade secrets against you, you have no obligation to comply with any of the rules of discovery until the other side first discloses “with reasonable particularity” the trade secrets that are at issue. If the party fails to do so but still seeks discovery, then you can bring a motion for protective order to stop the other side until it complies with its trade secret disclosure requirement.
A litigant can protect trade secrets during the discovery process through the use of confidentiality or protective orders, sealing court records, and/or limiting access to trade secrets to specified individuals involved in the litigation.
The Texas Uniform Trade Secret Act (“TUTSA”) creates a presumption in favor of granting protective orders to preserve Houston trade secrets. This gives courts the power to seal filings and records, to limit disclosure of information to only attorneys and experts, and to order parties not to disclose trade secrets exposed during the course of litigation. Courts routinely issue protective orders forbidding unauthorized disclosure of trade secrets and redact their published opinions. Both the Uniform Trade Secrets Act (UTSA) and the federal Defend Trade Secrets Act (DTSA) authorize these and similar precautions to safeguard trade secrets during litigation.
Trade Secret Protection
A trade secret protection plan should be in writing and reflect reasonable efforts to safeguard your organization’s trade secrets. The following safety measures can be included in a trade secret protection policy:
Mark documents containing your company’s trade secrets.
Disclose the least amount of information necessary. Like employees, outsiders should be given access to the least amount of information necessary to achieve your company’s objectives.
Mark all confidential documents given to outsiders. The trade secrets legends discussed above are particularly important when exchanging documents with outsiders.
Require signed confidentiality agreements from all outsiders before giving them access to company trade secrets. The importance of this point cannot be overemphasized. Whether your relationship with the outsider is new or established, and regardless of the duration of the relationship, it is essential to obtain a written confidentiality agreement.
Houston Trade Secrets Lawyers
Trade secret misappropriation claims can be complex and technical. But our Houston business attorneys can help. We are experienced in both defending and prosecuting claims for trade secret misappropriation in Texas state courts and federal courts. We invite you to contact us and learn more.
The day-to-day aspects of business operations can involve lots of moving parts and the potential for partnerships. The way a business partnership functions can vary depending on a variety of factors. Because of this, every partnership should have a formal partnership agreement in place to ensure all possible scenarios that could affect the business are formalized.
What is a partnership agreement?
A partnership agreement is a legal document that both sets out the terms and conditions agreed to by those involved and dictates how the business is run. Many clauses should be included within the agreement, including those designed to ensure any conflict that could arise can be easily resolved. The following items should always be included in a business partnership agreement:
Percentage of ownership
In each partnership, the partners commit to their contribution to the business. While some partners may agree to invest capital in the business as a contribution to help cover costs, others may prefer to assist with equipment and services offerings. These different contributions can dictate the percentage of ownership for each partner.
Division of profits
The division of profits in a partnership agreement dictates how business profits and losses will be allocated among the partners. Partners can agree to share in profits and losses in accordance with their ownership percentage or the division can be allocated to each partner equally. These terms should be detailed as clearly as possible in order to avoid potential conflicts throughout the life of the business and duration of the partnership.
Partnership duration
Contrary to popular belief, not all business partnerships run for an indefinite amount of time. Though this practice is common, there are still instances where a business will be designed to dissolve after reaching a specific milestone or after a specified number of years. The agreement should clearly state this information.
Withdrawal or death
When a partner withdraws from a partnership agreement or passes away, the agreement is no longer valid and can immediately be dissolved. A buy and sell agreement can be used to stipulate how a partner’s shares will be assigned in the event of a death or departure. These agreements often stipulate that the available shares should be sold to the remaining partners.
Other clauses that could potentially be included in a partnership agreement including:
Non-compete agreements
Non-compete agreements can be used in a partnership agreement in order to restrict a partner from leaving the partnership or competing with the partnership within a defined geographic area for a set amount of time.
Non-disclosure agreements
A non-disclosure agreement is designed to keep sensitive business information – including trade secrets – confidential. These agreements can and often should be used any time confidential information is disclosed.
Dispute resolution
Should partners find themselves at odds with each other, alternative dispute resolution options can be dictated by a partnership agreement as an alternative to litigation. Mediation is one such option wherein the process brings the disputing parties together to come to an agreement on the issues at hand.
Houston Contract Drafting Attorney
Business contracts help to allocate the risks, benefits, liabilities, and more among the parties involved. When drafting a contract like a business partnership agreement or negotiating its terms, it’s important to have skilled legal counsel on your side. At Feldman & Feldman, we have extensive experience handling a variety of contract matters. If your business needs assistance, contact our business lawyers today for more information.
Seyfarth Synopsis: As companies face increasing competition for the best talent within the marketplace, a growing number of businesses are turning to artificial intelligence and data driven strategies to more effectively identify and evaluate potential employees. The first installment of our artificial intelligence series will focus on some of the ways that employers are using these technologies in the area of talent acquisition.
Business has always been in a search for “the next big thing.” Something to give them an edge over competitors or allow them to anticipate shifts in the marketplace before they happen. Companies who moved from hand production to large-scale manufacturing were able to dominate nascent markets around the turn of the 20th Century. And since the 1990s, businesses have been in a fierce competition to harness the power of computers and the internet. The next iteration of that competition is the use of Big Data and Artificial Intelligence.
Just as individuals today engage with the world differently in terms of how they produce and consume information, there has been a shift in how employers and particularly recruiters think about the employment landscape. Many employers are moving away from traditional hiring methods that included posting jobs online and interviewing the candidates that apply. Companies have started utilizing search algorithms to passively source candidates based on their digital footprint and artificial intelligence programs to help more efficiently evaluate the increased applicant pools that this type of sourcing generates.
As an illustrative example, let’s say that a company has an opening for a computer programmer. Previously, a recruiter would post to job aggregation sites like Monster.com or Indeed, review the resumes of the candidates that applied, bring the top candidates in for an interview and then make the desired candidate an offer. Nearly everything about that pre-offer process is changing. Today, in addition to the posting on aggregation sites, recruiters also post to Twitter, Snapchat, and Instagram. They use the built in search functionality tools on each of these platforms to look for profiles that use industry related terms and hashtags. Still more companies are using AI automation tools to crawl through LinkedIn profiles and Facebook news feeds to try to identify additional candidates. Today, recruiters can gather a list of potential candidates well before those potential candidates would even know they are a potential candidate, and without even knowing the job opening even exists. Rather than waiting for potential candidates to apply, recruiters can reach out to potential candidates across a variety of different social media platforms and email addresses to encourage them to apply for the opening.
Once the applications and resumes get in the door, they are increasingly likely to be reviewed by AI algorithms rather than employees in HR. These algorithms may search for particular experience or keywords in the resumes to identify high potential candidates based on profiles built by looking at current high performing employees. Some companies have even shifted away from traditional applications and resumes and instead are having candidates play games designed by industrial and organizational psychologists to identify certain character traits that are likely to make someone a high or low performer within the job. Other companies have started to introduce AI tools into the interview process as well and instead of having candidates come in to talk with a recruiter or hiring manager, they will instead provide recorded answers to pre-loaded interview questions. These recordings are then analyzed by AI algorithms which analyze the words spoken, and may even attempt to glean the context in which words are spoken by analyzing facial movements, eye contact, and other physical features.
Most of these technologies are still in the very early stages of implementation, however, lawmakers have expressed clear concerns with the current lack of guidance around artificial intelligence and its potential impact on job candidates. Several states like Illinois and California have introduced or passed legislation to curb the unencumbered use of artificial intelligence in the hiring process. The Federal government also waded into the discussion with the April 2019 introduction of the Algorithmic Accountability Act which aims to create a regulatory framework for the use of AI. While we have yet to see large scale litigation in this area, there are already serious questions about bias, fairness, and whether all of the metrics being used to assess candidates are truly job related.
We are continuing to monitor the new uses of artificial intelligence in the workplace. Stay tuned!
For the first time in eleven years, the February bar examination starts on Mardi Gras. For those celebrating the first day of Carnival, today will be a joyous and hopeful celebration, followed tomorrow by a weeks-long period of disciplined self-denial;…
Procedurally, a lack of explanation as to key Daubert rulings and related elements of the plaintiff’s claim, characterizing them as “pithy to the point of being incomplete.”
Substantively, a fact issue on causation, given conflicting testimony on (a) the handling of the relevant piece of equipment, (b) the reasons for material continuing to flow through that equipment at the time of the accident.
Generally, if your will leaves your beloved “all … right, title and interest in and to”, said beloved would receive the entirety of your interest, whether a surface estate, mineral estate, or both. But in ConocoPhillips, et al. v. Ramirez, et al., the Texas Supreme Court looked beyond the four corners of the will in question and concluded that—based on family mineral leasing history—only the surface estate was devised.
If you don’t want to burn the 20 percent of your daily caloric intake that fuels your brain just to memorize the Ramirez family tree, leave with this takeaway: When a term in a will is open to more than one construction, a court can consider the circumstances existing when the will was executed.
The facts and a long history
In 1941, Ildefonso died and left 7,016 acres in Zapata County consisting of noncontiguous tracts to his two children Leon Juan and Felicidad. The brother and sister then partitioned the surface (each taking 3,508 acres) and severed the minerals (leaving each with an undivided 1/2 interest under the entire 7,016 acres). This family dispute is among Leon Juan’s descendants.
Leon Juan died and left his interests 1/2 to his wife Leonor and the remainder in equal shares to his three children, Leon Oscar Sr., Ileana, and Rodolfo. Thus, each child inherited a 1/6th interest in Leon Juan’s 3,508 surface acres and an undivided 1/12th interest in the minerals in both tracts. The three siblings and mother Leonor partitioned the surface estate and executed conveyances to swap some of the tracts. Each conveyance specified that it did “not … include oil, gas and other minerals which” were “to remain undivided.”
Following the partition, Leonor and the three children divided Leon Juan’s 3,508 acre surface estate into three tracts, one of which was “Las Piedras Ranch”, a tract not contiguous with the other property.
Leonor executed the will in question in 1987 and then died. At that time she shared ownership of the surface of Las Piedras Ranch with son Leon Oscar Sr., each owning an undivided 1/2 fee interest. Her will devised a life estate in “all of [her] right, title and interest in and to Ranch ‘Las Piedras’” to son Leon Oscar Sr. with the remainder to his living children in equal shares. The residuary was left equally to her three children, Leon Oscar Sr., Ileana, and Rodolfo.
In 1990, the siblings and their aunt Felicidad signed a lease extension with EOG (later transferred to ConocoPhillips) of the minerals under Las Piedras Ranch. The extension treated the siblings as equal fee owners of the minerals under the Ranch.
Leon Oscar Sr. died in 2006, terminating his life estate, which passed to his three children, Leon Oscar Jr., Rosalinda, and Minerva. In 2010, those three sued aunt and uncle Ileana and Rodolfo, EOG, and ConocoPhillips, seeking a declaration that their father’s life estate under grandmother Leonor’s will included her interest in the minerals beneath Las Piedras Ranch.
The trial court agreed and awarded Leonor’s grandchildren a $12 million judgment against ConocoPhillips, which the court of appeals affirmed, holding that the will included her interest in the minerals under Las Piedras Ranch.
The result
A unanimous Supreme Court reversed and rendered judgment for ConocoPhillips. Leonor’s bequest conveyed a life estate in only the surface of Las Piedras Ranch; her undivided interest in the 7,016 mineral acres passed in the residuary of her estate equally to her three children.
The court looked beyond the four corners of Leonor’s will to resolve the dispute because the will’s use of the term “Ranch ‘Las Piedras’” to identify the interest devised opened the will to more than one construction. The bequest of the life estate capitalized “Ranch ‘Las Piedras’” and placed the name in quotation marks, indicating a specific meaning to Leonor and her family. The history of family conveyances shows that Las Piedras Ranch referred to only the surface estate and, moreover, that the family always intended the minerals to be jointly owned. This interpretation was supported by Leon Oscar Sr.’s participation in the lease extension.
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.
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Seyfarth Synopsis: As companies face increasing competition for the best talent within the marketplace, a growing number of businesses are turning to artificial intelligence and data driven strategies to more effectively identify and evaluate potential employees. The first installment of our artificial intelligence series will focus on some of the ways that employers are using these technologies in the area of talent acquisition.
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