The Rules of Influencing

“Influencer” is a relatively recent job title. While social media has been around for a few years now, in its early stages it was used primarily to connect with friends or watch funny cat videos. But as we all know, times have changed, and now “Influencer” can be a lucrative title to have. That said, there are rules and legal aspects to familiarize yourself with before you invest in those ring lights and Instagram (or are we only using TikTok now) presets.

For starters, as an Influencer, you need to think of yourself as a legitimate business. While some of the Influencers we work with have their personal brand alongside other active businesses, they generally started with just the personal brand. Treating your personal brand as a business from day one will put you years ahead and likely save you thousands of dollars down the road.

What It Means to Treat Your Personal Brand as a Business

There are many categories you should consider when developing your personal brand into a business — here are just a few:

Forming a business entity that is right for you

• Deciding which type of entity is correct, such as a limited liability company, corporation, or even a nonprofit

• Having all of the proper agreements in place to cover this entity such as an operating agreement or corporate bylaws

• For an Influencer team, perhaps a joint venture agreement or other documentation of the arrangement

Setting up a business entity is key. This helps shield you and your personal assets from liability for things that happen while you’re acting as an Influencer. While having an entity doesn’t mean you can be careless, it provides a buffer of protection, and can also provide tax benefits.

Having contracts in place

• With brands you work with

• In any collaborations you do with other Influencers

• With contractors you hire to help you

• With clients as you start to grow into a product or service-based business

Ensuring your personal brand, product, and business names and logos are not infringing on the intellectual property rights of others

• Trademark clearance searches to help identify other trademarks that are the same or similar to yours

• Copyright-protected material exists in an abundance online — if you didn’t create it, you likely cannot use it.

There is no point in building a personal brand if you’re not sure whose trademarks you might be infringing with your own branding. Your social media handles may be protectable with trademark registration if certain facts are present, and your social media handle could similarly infringe on a business that already exists.

If you do not do a proper trademark search and clearance before you start developing your brand, there’s a good chance someone will send you a cease-and-desist and ask you to stop using your chosen name, logo, business name, or product names. Rebranding can be time-consuming and cost thousands of dollars. You should always clear your desired trademarks before you use them to avoid marketplace confusion. Once cleared, you should seek out federal trademark registration.

Working with other existing brands

• Get all your brand deals in writing

• Ensure you know what it is you’re agreeing to do in exchange for products or money

• Be on the lookout for who owns the content you create — it could be you, the brand you are partnering with, or some combination of the two

And don’t forget the FTC . . .

The Federal Trade Commission (FTC) guidelines for advertising, marketing, and endorsements as they apply to social media are no joke, and you can face severe penalties for failing to follow the rules. The FTC is concerned with consumer protection and ensuring that people’s buying decisions aren’t inappropriately influenced, and that their buying experiences aren’t negative or fraudulent. They are a government agency that does, in fact, monitor your social media.

Unfortunately, there can be a lot of confusion related to social media, brands, and promoting products or services. If you’re approached by a brand that either gives you a free product, or gives you a product and pays you, and then asks for you to post about your experience with that product, you must follow the FTC guidelines. You can check out the endorsement and advertising rules here.

The FTC Endorsement Guides require that any material connection between an influencer and the product or service they are posting about must be clearly disclosed — that is, you must tell the world you were given the product for free, paid to post, or somehow inorganically came in contact with the product or service in exchange for a social media post. How these disclosures are made can happen in a variety of ways. For example, on Instagram, the use of hashtags that say sponsored or paid advertisement is often seen as appropriate — particularly if paired with a statement within the caption from the Influencer regarding the connection. The FTC clearly stated that messages (posts, videos, etc.) that are not readily “identifiable as advertising to consumers are deceptive if they mislead consumers into believing they are independent, impartial or not from the sponsoring advertiser itself.” Other businesses aren’t allowed to mislead consumers in their marketing, so neither are you. Unfair or deceptive advertising is a no-go for you, the Influencer, as well as for the brand you are working with.

Further, the FTC isn’t the only one paying attention. Kim Kardashian (and a number of other celebrity influencers) was recently fined over one million dollars by the Securities and Exchange Commission for posts and statements touting a particular cryptocurrency and not disclosing that she was being paid to do so.

Bottom line: disclose, disclose, disclose, even if you are not sure it’s necessary.

Conclusion

To sum it all up, starting your career as an Influencer with a strong legal foundation is key. It might be a little more work (and money) upfront, but the time and resources it will save you as you grow are priceless.

For more information on this article and this topic, contact Shannon Montgomery.

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New Rule for Determining Joint-Employer Status Under the NLRA

The National Labor Relations Board (NLRB) recently proposed a new rule which restored a prior interpretation that was changed under the Trump Administration. Although the rule is described as new, it is merely the latest step in a battle over what actually creates an employment relationship. The NLRB’s new rule makes it easier for an employer to be considered a “joint employer” under the National Labor Relations Act for purposes of bargaining and legal actions against the employer.

How Joint Employment Arrangements Work

Joint employment means that more than one entity employs the worker. There is usually a direct employer who hires the worker and pays them wages. There may then be another employee who has the ability to control the worker. Joint employer arrangements commonly occur when someone is employed by a staffing agency or a subcontractor. The temporary employer or the general contractor has the ability to direct the employee. When a joint employer does not fulfill its legal obligations, the other employer may be held liable. For example, if a staffing agency fails to pay a worker regular pay or overtime, the company that contracts with the staffing company then likely has an obligation to do so. This designation may be critical in wage and hour actions.

Why it Matters Whether an Employer Is a Joint Employer

Further, the definition of “joint employer” is important in several critical respects, including:

• Whether the employer is required to collectively bargain with a certain union
• Whether the employer could be jointly and severally liable for the actions of the other employer
• Whether workers can picket when it would otherwise be unlawful

The New Rules Restore the Browning-Ferris Decision

In a 2015 case, the NLRB dramatically changed the definition of “joint employer.” In Browning-Ferris Industries of California, Inc., the NLRB dramatically expanded this definition from what it had been in the decades prior. Previously, in order to be considered a joint employer, a company had to exercise actual control over a worker, as opposed to just having the ability to control them.

In Browning-Ferris, the D.C. Circuit Court affirmed that an employer could be a joint employer in far more circumstances, including when they share or codetermine matters governing the essential terms and conditions of employment. This decision reinstated a prior standard that was in place since 1982, but had been weakened over the years. Under Browning-Ferris, there is a two-step process for determining joint employers:

• The first question asks whether there is a common-law employment relationship with the employees
• If the answer is yes, the second question is whether the potential joint employer possesses sufficient control over the employees’ essential terms and conditions of employment to permit meaningful collective bargaining

The NLRB made it clear that control did not have to be actual. Instead, it just meant the putative joint employer had the right to control.

Browning-Ferris Has Been the Subject of a Virtual Tug-of-War

Browning-Ferris was controversial the instant the ruling was issued. In fact, it only lasted for about two years. Very shortly after, the Trump Administration changed the composition of the NLRB, expressly overruled Browning-Ferris, and reinstated the requirement that an employer must have directly and immediately exercised actual control over an employee in order to be deemed a joint employer.

As political control of the NLRB has shifted back and forth between Republicans and Democrats, the definition of joint employer has changed along with it. In 2020, the Trump Administration’s appointees to the NLRB spearheaded a rule change that put into rulemaking form its overturning of the holding of Browning-Ferris, and attempted to restore the status quo to what it was before the controversial decision.

Now, Browning-Ferris Will Be Reinstated

Now that Democrats effectively control the NLRB, it has begun the process of revoking the Trump-era rule and committing the holding of Browning-Ferris to a new one. The back-and-forth continues, resulting in the standard being changed for the third time in seven years. There is a fundamental difference of opinion as to whether actual control or the ability to control is needed to establish a legal employment relationship.

The proposed rule restores the status quo that was in place for two years. The essential statement of the rule is as follows:

“a party asserting a joint-employment relationship may establish joint-employer status with evidence of indirect and reserved forms of control, so long as those forms of control bear on employees’ essential terms and conditions of employment.”

In the NLRB’s view, essential terms and conditions of employment would include:

• Wages, Benefits, and Other Compensation;
• Hours of Work and Scheduling;
• Hiring and Discharge;
• Discipline;
• Workplace Health and Safety;
• Supervision;
• Assignment;
• Work Rules; and/or
• Directions Governing the Manner, Means, or Methods of Work Performance

According to the NLRB, the Board’s rules are supposed to reflect the common law interpretation of an employment relationship. The Restatement (Second) of Agency is clear that an employer-employee relationship is created either by actual control or the right to control.

The Rule Will Likely Be Challenged in Court

If this rule is finalized, and it withstands scrutiny from the inevitable legal challenges, employers need to prepare for a drastically altered landscape – they can do this with the legal counsel of a labor and employment attorney. They must be careful about the terms of any alternative working arrangements because they could bring about significant and unexpected liability exposure. Companies should begin the process of reviewing staffing arrangements to check for terms that may imply the ability to control the employee. If the arrangements allow for any type of control, the company may end up with far more than it initially bargained for when it initially reached an agreement.

As with any administrative rule, there will likely be a lengthy period of review where the public will comment on the proposed rule, and the NLRB will consider the feedback it receives. Given the lengthy history of this rule and the accompanying intense controversy over it, litigation can certainly be expected. In addition, if political control shifts again in the 2024 election, this new rule would again be short-lived.

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Should the Child Decide on Custody?

At what age in Texas can a child help determine where he or she will live primarily?

In the state of Texas, when your child reaches the age of 12, he or she is legally able to help determine where they will live on a primary basis. However, a family court judge does not need to necessarily follow your child’s wishes and not consider any other information available to him or her. It would be a rare occasion where only the opinion of your child was factored into the decision of a judge. Rather, there are many circumstances and factors in play when it comes to determining an issue of primary conservatorship in a Texas child custody or divorce case. Not only is the opinion of your child important but also what is in the child’s best interests.

It would be a mistake for you to tell your child, or anyone else for that matter, that he or she is going to be able to choose where they live primarily after the family law case is over with. As we just finished discussing, your child will play a role in determining where he or she lives, potentially, but a family court judge will likely have much more evidence to consider than simply the wishes of your child when it comes to figuring out where he or she will live primarily. Children must abide by make custody orders until they reach the age of adulthood. Until then, the terms of the custody order will impact where your child lives and how often you and your co-parent can possess your child.

It used to be that if your child were over the age of 12 then he or she could sign some paperwork telling the court which parent he or she would like to live with primarily. A child’s primary residence is where he or she lives during the school week. The other parent would have visitation, most likely on the first, 3rd, and 5th weekends of each month. Primary conservatorship is important because it carries with it more time and likely more rights to be able to make decisions for your child.

Now in Texas, the law has changed that your child may speak to the judge in their office privately about their wishes regarding primary conservatorship if he or she is over the age of 12. Testifying in court about custody preferences does not happen very often. One of the reasons why this is very rare is that most parents do not want to put their child in the middle of a contested custody hearing or trial and therefore have their child feel like they are having to choose between you or their co-parent.

How it works is that if you or your co-parent file a motion with the judge to have your child be able to express to the judge their wishes as far as primary conservatorship is concerned the judge must interview your child in their office if he or she is over the age of 12. You may file the same motion for you were a child under the age of 12 but at that point, it is up to the judge whether he or she will allow your child to be interviewed. The facts and circumstances of your case as well as whether the judge thinks a child of their age will be able to express themselves adequately will also factor into the primary custody decision and whether or not an interview will be allowed.

How will the interview work with your child?

If your child is to be interviewed by the judge, then it must be in a non-jury trial setting. Fortunately, most child custody cases are bench trials before the judge and do not involve juries. As we just finished talking about the judge will determine whether to allow the interview to be conducted if your child is under the age of 12. If your child is 12 or older then the judge must allow for the interview to occur, but it is up to the judge’s discretion whether to allow for your attorney in that or your Co-parent to be present during the interview itself. However, if you or your co-parent request that a court reporter is present then the judge must allow for that to occur. Under no circumstances are you or your co-parent allowed in the judge’s office during this interview.

How closely does the judge have to follow the desires of your child as far as primary custody?

The judge is under no obligation to follow your child’s specific wishes or wants as far as primary custody or visitation. This is true for many reasons, not the least of which involves how the opinions and desires of teenage children tend to change quite frequently. One day your child could express an intense desire to live with you primarily. The next, the opposite could be true when your child wants to live with your co-parent. Very little may have changed overnight but your child is learning and developing and changes in their opinion like this are normal. However, that does not mean that a family court judge must necessarily take everything your child says at face value. Judges know enough to be able to determine that the opinion of teenagers tend to change rapidly for several reasons or no reason at all.

Oftentimes, children make decisions based on factors as simple as who allows the child to get away with more, who is less strict in the household, which parent lives closer to their friends, or which parent is “nicer.” I have seen children express desires to live with one parent over the other because that parent is a better cook. This is not to belittle or second guess the opinions of your children as they go through a very difficult stage in their life. However, it does speak to how the interests of your child at their age may be quite different than what is in their best interests. This is the standard that a family court judge and you as a parent must follow when making decisions for your child. Children are notoriously poor at making decisions that are in their long-term best interests. This is one of the most important reasons why a family court judge will not solely consider the opinion of your child when it comes to determining their primary conservator and place of residence.

Judges are also aware of the possibility that your child may be influenced by you or your Co-parent when it comes to making statements regarding their desire to live with one parent or the other. For example, you may be trying to influence your child by making him or her feel guilty about selecting your co-parent as the primary conservator. Many children can be influenced by feelings of guilt when it comes to giving their opinion on subjects like primary conservatorship. On the other hand, your co-parent may be attempting to bribe your child with gifts, leniency with their schoolwork and chores, or a later bedtime or curfew. These are other factors that a family court judge must be aware of and watch for when questioning your child about their preference for a living situation.

What are the most important factors that a family court judge will look at in considering the opinions of your child?

As with any person in the judge’s position, he or she will likely ask why your child is stating a preference for one parent over the other. If your child walks into their office and says that he or she wants to live with you primarily then a simple follow-up question would likely be why that’s the case. The judge will listen to your child’s answer for several reasons not the least of which is to determine the child’s thought process and maturity level. The more well-developed and thought out your child’s answers and explanations are the more likely the judge in your child’s case will be to consider the opinion as more valid and trustworthy. Age has a lot to do with this and is a major reason why children under the age of 12 are not always given the ability to speak to a judge about this subject.

If your child expresses their desire to live with a parent who allows for a later curfew, fewer rules, and more junk food then that probably will not sit well with the judge and he or she may end the interview at that point. It would be very unlikely for the child’s position to carry much weight with the judge.

What specific elements of a parenting plan can your child potentially choose?

Other than deciding which parent will become their primary conservator, the law in Texas does not provide much in the way of autonomy to your child when it comes to other decisions that can be made in your case. Imagine putting yourself in a position where your child can determine how and when you see him or her without being able to submit evidence or have a court consider your arguments. The child custody laws of Texas are designed to prevent a situation like this from occurring.

On the other hand, there is a possibility that a child custody evaluator, amicus attorney, or attorney ad litem is appointed to your case to provide the judge with another set of eyes and ears on the case to help him or her decide. All these people could be appointed (though likely not all in one case) to give the judge a different perspective on the case. Remember that no matter how much evidence you submit in a hearing or trial the judge will only know what is happening in your case based on what is going on inside the courthouse. Needless to say, what goes on outside of court is more indicative of who you are as a parent.

How can you convince a judge to let your younger child speak on custody issues?

If you have a child who is under the age of 12 then you may be looking for any tips that you can get your hands on as far as helping to convince a judge to consider strongly the wishes of a younger child. Remember that the judge does not even have to speak to a child under the age of 12 even if you were to file a motion requesting that this occurs. With that said, how can you get to a point where the judge more strongly considers their opinion when he or she is going to decide on naming a primary conservator of the children?

We have already talked about one of the options that you can consider- namely, asking the court to appoint an amicus attorney. An amicus attorney would represent your interests of you by communicating the child’s preferences to the judge as well as other information. This is sort of an inadvertent way to have your child’s preferences be made known to the judge without ever having your child step foot in the judge’s office. This may even be preferable for you if you want to do whatever is possible to your child as uninvolved with the divorce or child custody as possible.

Ideally, the amicus attorney will be told by your child where he or she wants to live primarily. That information can be relayed to the judge either in writing or orally in a hearing. Taking your child as a counselor may be a good way to help him or her sort out their emotions surrounding the family law case. It is also a way for you to get your child’s position on the record without having him testify. This could be done by calling the counselor as a witness either in a temporary order hearing or trial.

The best interest standard in a child custody case

The best interest standard is one that is applied in child custody cases across the country. However, be aware that the factors that a judge can consider do not appear in a specific order. Rather, the judge is empowered to make custody decisions based on the best interests of your child. He or she will consider these factors in some order when it comes to your child custody case.

Your relationship with your child is crucial when you are asking to become that child’s primary conservator. If you have been a well-meaning yet distant parent then you probably do not stand much of a chance to become the child’s primary conservator. This isn’t due to your being a bad parent or an absentee parent. Rather, it is due to your never having played that role in the life of your child before. Family Court judges are very conservative when it comes to handing down conservatorship orders. Do not expect miracles if you have never been the primary caretaker of your children.

Next, it can feel overly personal at times but your mental health and that of your co-parent are extremely relevant in the context of a child custody or divorce case. If you are battling with suicidal thoughts, extreme behavioral issues are important for the case to consider. If you do have any mental health troubles, then you should discuss them with your attorney at the beginning of a case. Do not hide these diagnoses or problems from your attorney. The last thing you will want to do is to completely not tell your attorney about the problems with mental health that you may be experiencing.

How old your child is plays a huge role in determining primary custody- especially if your child has spoken to the judge in their office. The older your child is the more mature he or she likely is. This means that a judge is more likely to consider their opinion. On the other hand, your child may be too young to testify to the judge and may be at an age where their main concern is who they are going to dress up as for Halloween.

It should be obvious to you that there are a lot of moving pieces in play when you are a part of a divorce or child custody case. For that reason, you should reach out to an experienced family law attorney to help guide you in a case. A consultation with an attorney who can answer questions and who can provide you with information is a great start. Find yourself an attorney with the heart of a teacher and you can succeed often.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as what may happen if a child custody or divorce case is filed.

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Negotiating an Oil and Gas Lease

Oil and gas leasing is a complex area. The landowner wants to monetize and be paid for the resources on their property, while the oil company wants to maximize its profits and ensure a steady supply of products. Oil and gas leases often require extensive negotiations between the two parties. It is essential to get legal help from an experienced oil and gas attorney before you sign any oil or gas lease agreement. Here are some things that may come into play when negotiating an oil and gas lease.

In oil and gas leases, several key terms need to be considered:

• Bonus – The owner of the mineral rights gets a one-time upfront payment when the lease is signed
• Primary term – The amount of time the lessee has to drill the initial well
• Royalty fraction – The percentage of the revenue the lessor will receive (in addition to paying all costs of production) – the fraction is usually somewhere between an eighth and a quarter
• Delay rental – If the drilling is delayed, the mineral rights owner may be paid an annual payment until the well is drilled
• Shut-in royalty – The payment the lessee may make to keep the lease in force when they have not yet successfully drilled a well
• Depth clause – The driller is only allowed to drill to a certain depth, as specified in the agreement because without limits, a driller would be entitled to all the oil or gas in the well

Price is Only Part of an Oil and Gas Lease

The price paid for the oil or gas under a lease agreement is only one consideration. Many landowners may get caught up in price negotiations without considering other major factors. In the end, a landowner wants to maximize the value of the oil or gas on their property while protecting their financial interests. In addition, they also want to preserve the value of their land beyond simply extracting the resources.

Although there are terms that are commonly part of leases, keep in mind that all of the above terms are negotiable. Landowners have bargaining power in the deal, and they do not need to accept terms handed to them by larger companies. They may negotiate with multiple parties to secure the best deal.

There will likely be many money or payment issues aside from price that must be addressed between a lessor and lessee. For example, the lessee may incur post-production costs that can be significant. They may want to pay royalties based on a price that reflects the investment they must make to treat or transport the oil or gas. Most major oil companies will use leases that are calculated at the “mouth of the well,” meaning they can deduct post-production costs from the amount on which they pay royalties. There have been recent court cases that have held that lessees do not have to pay for the use of oil and gas from the wells “off-lease” to support their production when the use was supported by the language of the lease.

The larger the parcel of land involved, the more issues the parties may encounter. For example, the lessee will not want to lease the entire parcel when only certain parts of it may contain oil or gas. Once they drill and determine which parts of the land contain oil or gas, they would release the rest of the land to the lessor.

Eliminate as Many Ambiguities as Possible in an Oil and Gas Lease

There may be numerous ambiguities that can lead to difficulties and litigation between the parties. It is in both parties’ best interests to define as many terms as clearly as possible when negotiating an oil and gas lease and to account for as many contingencies as they can. The landowner should read all terms carefully, especially knowing that oil and gas companies enter into many leases and they and their legal counsel likely have superior knowledge.

Many leases are not as cut-and-dry as the lessee simply paying a portion of the oil or gas that it extracts. The parties should account for various possible situations in their leases, such as when a well begins to produce less oil or gas and the royalty payments to the lessor decrease. Also, the lessor often suffers a decrease in the value of their property from drilling operations on their land while they continue to own the surface estate. At a certain point, they may not make enough money from their mineral and gas rights to make leasing them worthwhile, but they may still be locked into a lease.

Finally, one major issue in every oil and gas lease is a potential indemnification provision. The lessee is undertaking activities on the lessor’s land over which the lessor has no control. The lessor could find themselves legally liable in the event the lessee is negligent. Thus, a lease agreement may include some form of indemnification for the lessee, even though courts do not always favor indemnification provisions.

The Parties Should Know Who They Are Getting Into Business With

Landowners negotiating an oil or gas lease are partners in some way with the lessee. The better the lessee does, the more the landowner makes in royalties. From the landowner’s perspective, they should do their due diligence on the lessee before executing a contract. Leasing the land to the wrong person can cost money and can lead to legal problems. The two parties will be in a contractual relationship for many years. The lessor should know the true identity of the lessee and understand their experience and track record of success. Before signing any oil and gas lease contract, a lessor should do extensive research on their counterparty.

The post Negotiating an Oil and Gas Lease appeared first on Feldman & Feldman.

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What is the Purpose of a Post-Marital Agreement in Texas?

When you are planning to get divorced in Texas, it may be difficult to reach any type of marital settlement agreement with your spouse if you are anticipating a contentious divorce case. Yet you might have specific assets that you want to exclude from the division of community property, or assets that you want to clarify are separate property and are not subject to division in your divorce.

Ideally, these issues would be addressed in a premarital agreement according to the Texas Family Code. However, many people do not enter into premarital agreements and wish they had done so. Here is where a post-marital agreement can become extremely important and helpful.

Texas law allows spouses to enter into post-marital agreements through which they can reach an agreement about similar issues to those contained in a premarital agreement. The key difference is that a post-marital agreement is signed after the marriage, while a premarital (or prenuptial) agreement is signed before the marriage.

Managing Finances and Property During the Marriage

Even if you are not anticipating a divorce soon, a post-marital agreement can allow you to enter into an agreement with your spouse about how finances will be managed during the marriage from the point of signing the agreement onward. In addition, you can reach an agreement about which spouse can manage one or more particular assets, and who has those responsibilities. A post-marital agreement is a legal contract, and thus, once the parties enter into an agreement about these types of issues, they must abide by the terms.

Identifying Separate Property

Another purpose of a post-marital agreement, similar to a prenuptial agreement, is to identify and clarify which debts or assets are separate. In other words, through this agreement, you can specify that certain debts or assets are owned by one spouse alone and will not be subject to division as community property in the event of a divorce. In general, without a prenuptial or post-marital agreement, there is a presumption of community property under Texas law unless a spouse can prove by clear and convincing evidence that a specific asset or debt is separate property.

Dividing Community Property During a Divorce

Post-marital agreements in Texas also serve the important purpose of allowing spouses to determine how community property will be divided in the event of a divorce. Without a valid agreement, the court will divide community property in a divorce “in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” Keep in mind, however, that any agreement about the division of community property cannot be unconscionable, and the agreement must be entered into freely by both spouses.

Contact Our Dallas Post-Marital Attorneys Today

If you wish you had entered into a premarital or prenuptial agreement before your marriage, it may still be possible to reach an agreement with your spouse through a post-marital agreement. One of our experienced Dallas post-marital attorneys can speak with you today about your circumstances. Contact Orsinger, Nelson, Downing & Anderson, LLP today online or call our firm at (214) 273-2400 for assistance.

The post What is the Purpose of a Post-Marital Agreement in Texas? appeared first on ONDA Family Law.

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Legal Issues Surrounding Customer Lists

Privacy Plus+

Privacy, Technology and Perspective

Legal Issues Surrounding Customer Lists.  This week, let’s examine the numerous legal issues surrounding Customer Lists. Customer lists are often among the blue-ribbon prizes in fights among competitors or between employers and their departing employees. “Customer List Litigation” has become almost a specialty, standing in an explosive space where nine (9) or more areas of law intersect.

Especially for lawyers new to the field, obsessing over one of these areas may distract from the others’ useful (or dangerous) aspects.  So let’s step back and consider what these different areas are.

1. Intellectual Property:  Trade Secrets and Confidential Information (of course).  Under the Uniform Trade Secrets Act followed in 49 states and D.C., Section 757 comment b of the Restatement of Torts (1939) still followed in New York, and the federal “Defend Trade Secrets Act,” a customer list may fall within the definition of a “trade secret” but doesn’t necessarily.  It must still be a “secret” (not generally known or readily ascertainable in the industry), valuable, and the subject of reasonable measures to keep it under wraps. Usually—but not always—the more detailed, valuable, obscure, and protected the customer information is, the more likely it is to constitute a trade secret.

   It may be tempting to bootstrap your facts up to the level of a trade secret, quickly tie the laces of your trade secret’s “misappropriation,” and race straight into court, especially since in many states, the UTSA is preemptive of some—not all—other remedies. But first, consider also:

2.  Employment Law/Fiduciary Duties.  Fiduciaries, both formal and informal, owe their principals the highest duties of care and loyalty, including protecting their trade secrets during the fiduciary relationship and after it ends. All employees—of high position or low—owe duties not to compete with their employers while in their employ or to spirit away those employers’ trade secrets when they leave. But employees generally can take their “general industry skills, knowledge, and information” with them when they leave and use those skills to compete against their former employer, even if they improved those skills while in the former employer’s workforce. This may extend to skills or information they already had when they joined the former employer.

3. Contract.  Many legal duties can be rearranged by contract, though not all. For example, employers and others often use Non-Disclosure Agreements (NDAs) to specify what their trade secrets are and hopefully to expand their grasp beyond the prevailing judicial definitions of “trade secrets” and also capture “[merely] confidential information” — information which may not constitute “trade secrets” strictly speaking, but which the employer nevertheless considers confidential as between it and its employee and does not want its employee to misuse.

4. Business Competition Law.  Customer lists may also be the subject of much business competition law, either directly or indirectly. Indirectly, in most states (not Louisiana) misuse of customer lists or information may form the basis for a claim of tortious interference with actual or prospective contracts. Many employers require Non-Compete Agreements (NCAs) and/or non-solicitation agreements from their employees to enforce the protection of their trade secrets by keeping the former employee out of the relevant industry long enough for the trade secrets to become stale and valueless.  But be careful: while some states think NCAs are good for “bidness,” other states consider them void as a matter of public policy and won’t enforce them at all. (And when California and Alabama agree on public/business policy, that should get our attention!)

5. Electronically Stored Information.  By now, most customer lists are stored and transmitted electronically. So how the lists are poached may trigger any number of electronics-related statutes, such as the Computer Fraud and Abuse Act (18 U.S.C. § 1030), the Wiretap Act (18 U.S.C. § 2511), the Stored Communications Act (18 U.S.C. Chapter 121 §§ 2701-2712), and others – which may impose their liability or defenses apart from the issue of “misappropriation” of trade secrets.

6. Unfair Competition.  All states have a “Little FTC Act.” Some of these offer businesses a cause of action against their competitors for acts of unfair competition, which may include purloining customer lists.  Other states’ “Little FTC Acts” do not, but those states (including Texas) often permit a derivative cause of action for “common law unfair competition” which usually applies whenever some other cause of action which sounds in unfair competition has been established, subject however to issues of preemption.

7. Copyright.  “Copying” customer lists may also constitute copyright infringement, but be careful.  Copyright is exclusively federal, requires prior registration, and is sweepingly preemptive of all other actions which purport to give equivalent remedies or affect equivalent rights.  Preemption especially may offer defendants an opportunity for jurisdictional challenges in state court or outright dismissal where the complaint concerns activity that the Copyright Act would permit.

8. Criminal Liability.  Under the Theft of Trade Secrets Act (18 U.S.C. § 1832), state criminal statutes such as the Texas criminal prohibitions against theft of trade secrets (Tex. Penal Code § 31.05), and many other state and federal statutes, theft or misappropriation of customer lists which meet the necessary definitions may lead to horrendous criminal consequences, including serious prison time.

9. Privacy.  For a moment, forget whether your customer list is protected from your competitors or former employees. Instead, consider whether personal information is contained in the list.  If it is, your collection, use, sharing, and protection of that personal information will also implicate your organization’s privacy notice, the FTC Act, and potentially other federal, state, and even international privacy laws, like the EU’s General Data Protection Act (“GDPR”). Have you accurately represented your organization’s privacy practices concerning the personal information in your Customer List?  Were you required to get consent to use that information in the way that you are using it?  Can you prove it?

—

Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.

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Interactive Process Obligation Continues Through Litigation

Today’s blog entry deals with the question of whether the interactive process continues through any litigation and whether evidence of that interactive process taking place or not taking place when the case is being litigated can be brought into evidence. The case is Kovachich v. Department of Mental Health and Addiction Services, here, decided by the Supreme Court of Connecticut on September 27, 2022. As usual, the blog entry is divided into categories and they are: facts; majority reasoning that exhibits were properly admitted; Chief Justice Robinson’s dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The facts can be distilled quite a bit. What you have here is a plaintiff requesting from her employer a scent free work environment. While the employer granted accommodations, some employees failed to comply with the scent free working environment designation. As a result, plaintiff was exposed to scents at the jobsite that exacerbated her rhinitis and asthma and on multiple occasions triggered the need for emergency medical treatment. She then sought out legal counsel to ensure that she was protected in the workplace. The plaintiff, her counsel, and the human resources director did meet with the result being a notice was placed on the overtime sign-up sheet informing employees that the Brief Care Unit was scent free. However, with limited exceptions, no additional measures were taken to educate the workforce or to enforce the scent free designation by means of workforce discipline. This led to a filing with the Connecticut version of the equal employment opportunity commission.

 

At trial, plaintiff’s counsel sought to introduce into evidence an April 29, 2013, email from plaintiff’s counsel to a Connecticut Assistant Attorney General with a subject line, “request for demand.” the content of that email asked for a discussion to find a solution to ensure that plaintiff could be given a scent free environment. No such meeting took place in response to the email. Plaintiff’s counsel also offered into evidence in the email of May 30, 2013, stating that one of the plaintiff’s coworkers was also affected by scents in mandatory training situations and suggesting that online training as a possible accommodation. It also said her employer’s approach was the wrong one and that plaintiff intended to move forward with her case. It specifically inquired about what solutions the employer might propose. Plaintiff’s counsel also sought to introduce into evidence a July 22, 2013 letter containing a set of demands and ending with, “we would be happy to meet with representatives of the defendant who has authority to discuss and recommend these requests.” All of these exhibits were offered for purposes of illustrating plaintiff’s attempts at the interactive process. The trial court admitted the exhibits and wound up finding in favor of the plaintiff awarding $3800 of additional pension income. It also awarded the plaintiff $125,000 for the emotional distress caused by the actions of the employer and $415,389.50 in attorney fees.

 

The defendant appealed to the appellate court and the appellate court wound up agreeing with the defendant on that the various exhibits should not have been admitted and for other reasons as well. Plaintiff appealed to the Connecticut Supreme Court.

 

II

Court’s Reasoning That the Exhibits Were Properly Admitted

 

1. It is true that the Connecticut Code of Evidence provides that evidence of an offer to compromise or settle a disputed claim is inadmissible on the issue of liability and the amount of the claim. Good policy reasons exist for that rule.
2. It is also true that the Connecticut Code of Evidence allows an offer to compromise or settle a disputed claim into evidence if it is offered for another purpose. The list of purposes that appear in that statute are illustrated rather than exhaustive.
3. Whether the exhibits should have been admitted is an evidentiary area issue reviewed for an abuse of discretion.
4. The Connecticut Fair Employment Practices Act borrows from the ADA and requires an interactive process to figure out what accommodation can be put in place in order to overcome a person with a disability’s limitations.
5. The need for the interactive process arises because both parties hold information that the other does not have or cannot easily obtain.
6. The employee has the burden of initiating the interactive process must come forward with some suggestion of accommodation, and the employer then must make a good-faith effort to participate in that discussion.
7. A plaintiff who fails to initiate or participate in the interactive process in good faith loses.
8. An employer’s refusal to give an employee his or her specific requested accommodation does not necessarily amount to bad faith, so long at the employer makes an earnest attempt to discuss other potential reasonable accommodations.
9. An employer’s failure to participate in the interactive process in good faith does not give rise to per se liability. However, it may be sufficient grounds for denying a defendant’s motion for summary judgment because it is at least some evidence of discrimination. In other words, in Connecticut a failure to engage in a good faith interactive process, is not a separate cause of action but can be introduced as evidence tending to show disability discrimination.
10. The interactive process required by law is ongoing and is not exhausted by one effort. The ongoing interactive process continues during the course of plaintiff’s employment even after the plaintiff has filed a complaint alleging disability discrimination.
11. The Connecticut Supreme Court found persuasive the reasoning of numerous federal courts that have been admitted evidence of compromise offers and negotiations for purposes of showing that the parties engaged in the interactive process.
12. Nothing in the record establishes that the communications contained in the exhibits occurred within the context of the commission’s mandatory mediation program. In fact, plaintiff’s complaint had been pending with the commission for approximately one year and had been referred to in commission investigator at the time the document was generated, which means that the mandatory mediation had at least concluded.
13. Although the communication contained in the exhibits occurred while the plaintiff’s complaint was pending before the commission, no evidence exists to indicate that the exhibits were part of the commission’s conciliation efforts, as opposed to their investigative efforts, or independent of the commission’s efforts altogether.
14. The purpose of the evidentiary admissions was not to show liability but to show that a party was engaging in the interactive process.
15. The trial court did not rely on the exhibits to find that the defendant engaged in discrimination. Instead, the trial court found that the defendant had failed to effectuate the plaintiff’s accommodations by an abject failure to make any reasonable effort to educate the staff about what a scent free environment meant and a supervisor’s refusal to do anything whatsoever about the scent free workplace environment provided by the ADA committee.
16. While the trial court did rely on the defendant’s failure to respond to one of the exhibits to find that the good faith interactive process had broken down, that finding was based on defendant’s failure to present any evidence that it responded to the plaintiff’s communication, rather than the content of the communication itself.
17. There was no error in the trial court’s determination that the exhibits were highly relevant to the defendant’s ability to react intelligently and legally to the plaintiff’s request for accommodations.
18. The content of the communications demonstrate that the plaintiff wanted to continue with the interactive process but was getting nowhere.

 

III

Chief Justice Robinson Dissenting Opinion

 

1. Failure to engage in interactive process is not entirely distinct from the liability inquiry as a matter of law.
2. Most circuits find a failure to engage in the interactive process results in liability when a reasonable accommodation would otherwise have been possible.
3. Connecticut Code of Evidence prohibits admissibility of a variety of things when it goes to liability in general.
4. Majority view is too narrow as to what is part of the mediation process.

 

IV

Thoughts/Takeaways

 

1. My thanks to Daniel Schwartz, who has a blog called the Connecticut Employer Law Blog (the link will take you to his discussion of the case), for first bringing my attention to this case.
2. Six justices were in the majority with the Chief Justice being the lone dissenter.
3. The interactive process is a continuing duty that continues through any litigation.
4. I am not a Connecticut licensed attorney. Mileage may also vary depending upon jurisdiction.
5. Federal case law exists holding that request to engage in the interactive process made during ongoing litigation can be admitted for the purpose of demonstrating the continuing obligation of engaging in the interactive process.
6. As a preventive law matter, an employer would do well to respond to any accommodation offers while litigation is ongoing. Of course, as we have discussed numerous times in our blog, such as here, once an employer is put on notice that a need for accommodation exists (magic words are not required), the employer should engage in the interactive process.
7. In most circuits, failure to engage in the interactive process is a separate cause of action. In those circuits, the dissenting opinion here may hold quite a bit of sway because of the failure to engage in interactive process being a liability issue.

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Beware Assignor: Own the Leases Before You Reserve the Override

Let’s begin with a quiz. Armour purchases non-recourse mortgage notes, becoming a lienholder in 99 oil and gas leases and 13 wells; fails to record the transfer documents in the real property records; assigns the leases to Sandel, reserving an overriding royalty interest in 23 of the leases; and can’t show that the liens were ever foreclosed.  Litigation arises among Armour, Sandel and the operator CML. What is the result:

A. Armour wins on estoppel by deed.

B. Armour wins against CML on breach of contract.

C. The purported reservation is void; Armour is a stranger to the title.

D. It doesn’t matter. The EPA, after “mostly peaceful” protests by PETA (only three tank batteries, seven F-250’s, and an amine unit destroyed and one toolpusher thrown into the mudpit), shuts down operations because the wells impinge on the ever-shrinking habitat of Jackalopus Westexacanus, a precious but rarely seen denizen of Grimes County, Texas, that is protected by federal law.

In Armour Pipe Line Company et al v. Sandel Energy Inc. et al., “C” was the correct answer.

In the first assignment, Armour reserved the override. In a second assignment, Armour sold the override to Sandel. Sandel farmed out to CML who drilled several successful wells.

CML concluded that the reservation was ineffective and suspended funds. Sandel sued for a declaratory judgment that the first assignment was void, alternatively that Armour’s rights in the override were extinguished such that Armour had no claim to the royalty, and for declaratory judgment based upon Armour’s release of the liens.

Armour counterclaimed for judgment based on the doctrine of estoppel by deed that it was the rightful owner of the override and for breach of contract against CML for not paying revenues from production.

There were motions and cross motions for summary judgment, an appeal, followed by more motions and cross motions.

The holding

Armour was a stranger to the title. An exception or reservation in favor of a purported owner of real property who in fact is a stranger to the title with no interest in the property creates no title in the stranger.

Armour’s claim of estoppel by deed was unsuccessful. Under estoppel by deed, a party claiming through a deed is bound by recitals in a deed in which the party or its predecessor in title was a party. A “recital” is a formal statement or setting forth of a matter of fact in a deed in order to explain the reasons upon which the transaction is found.

The first assignment’s granting clause, the reservation of the override, and excepting the override from the grant were not recitals. Assignment of an assignor’s right, title and interest reflects an intent to convey whatever interest the assignor may have had rather than a statement that it owns the interests. Likewise, a reservation or exception create a right in favor of the grantor. Armour’s purported reservation and exception were not recitals.

Armour’s argument that the second assignment was a basis for estoppel by deed was denied. Sandel did not claim its title based on the second assignment. Because there was no evidence that Armour foreclosed on the lien, its lienholder status did not give it any right, title or interest in the leases.

The court awarded legal fees to CML as interpleader to the tune of $42,000+. See pages 16 – 20 of the opinion for a tutorial on a stakeholder’s right to fees in an interpleader, including when the stakeholder also has an interest in the claim.

Your musical interlude, dedicated to our political parties.

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Lawsuit Alleges HarborChase of Southlake Fired Sales Director for Refusing to Participate in Illegal Price Fixing

The former Director of Sales of an upscale assisted living facility in Southlake claims she was fired for refusing to violate federal antitrust laws by sharing pricing information with competitors.

 

In a lawsuit filed in U.S. District Court for the Northern District of Texas, Fort Worth Division, Sarah Harris claims that her supervisors at HarborChase of Southlake fired her when she refused to complete her employer’s Competitive Analysis spreadsheet.

The spreadsheet listed the prices, availability, floor plans, and other data about HarborChase’s competitors. As part of the exercise, the lawsuit alleges that Harris was required to “set a meeting with her counterpart at the competing senior living community, and exchange Defendants’ and the competitor’s pricing information.”

On Sept. 15, 2021, Harris emailed her supervisor, Executive Director Veronica Cobb, and said she would not participate in updating the spreadsheet:

I do not participate in Competitive Analysis. It is price fixing, breaks anti-trust federal laws and is part of the Sherman Anti-Trust Act which states it is a felony to discuss pricing with your competitors. Not only can the company be prosecuted but also the individual involved in the conversations.

Rather than address Harris’s concerns, the lawsuit says, “Cobb stated that she would accept Harris’s resignation. When Harris asked if Cobb would fire her if she did not resign, Cobb stated that she would indeed do so. Cobb then directed Harris to immediately gather her belongings and escorted Harris off the premises.”

Firing Harris was a retaliatory termination in violation of the whistleblower provision of the Criminal Antitrust Anti-Retaliation Act of 2019, says Harris’s attorney, Jennifer Spencer, of Dallas’ Jackson Spencer Law.

“Rather than do the right thing — which would have been to address Harris’s concerns and change the way they do business — HarborChase chose to kill the messenger,” Spencer says. “My client saw what was obvious to everyone in the room: that HarborChase and its competitors were engaging in price-fixing and taking advantage of senior citizens. But instead of being rewarded for standing up for what was right, she was shown the door.”

Harris seeks unspecified damages consisting of past and future lost wages, compensation for past and future emotional distress, pre- and post-judgment interest, and litigation expenses. The lawsuit is Sarah Harris v. Harbor Southlake Management, LLC, dba HarborChase Southlake, et al., No. 4:22-cv-00854-P.

The post Lawsuit Alleges HarborChase of Southlake Fired Sales Director for Refusing to Participate in Illegal Price Fixing appeared first on Jackson Spencer Law.

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Leaving a Legacy

In recognition of National Hispanic Heritage Month (September 15-October 15), which celebrates the contributions of Hispanic and Latino Americans to the United States, the Texas Bar Blog connected with Guillermo Hernández III, a San Antonio-based immigration law and personal injury law attorney and District 18, Place 2 director of the Texas Young Lawyers Association. The first-generation attorney spoke about being inspired by his mother to pursue education, changing his career focus, and connecting with clients.

Tell us a little about your upbringing. Have you lived in San Antonio your whole life?
I was born and raised in the rural town of Uvalde. I am the oldest of four siblings in a Mexican American household. My mother always stressed the importance of an education and pushed us to do well in school. My mother passed away from breast cancer when I was 14 years old, so I carried that importance of education with me all my life. This eventually led to me seeking a higher education and applying to law school.

Are you the first in your family to practice law?
Yes.

How did you decide on St. Mary’s?
I knew I wanted to go to law school in Texas. St. Mary’s was one of the first law schools to accept me, and they offered a good scholarship package. San Antonio is close to home—so there were a lot of positive factors pulling me to study at St. Mary’s.

How did you decide that immigration law and personal injury law were the specialties you’d focus on?
As a baby lawyer, I practiced real estate litigation with a reputable firm in San Antonio, but after a few years, I realized that was not where I felt called to practice. I had worked with the immigrant population in law school when I interned for the Equal Justice Center, a nonprofit that helps people recover unpaid wages regardless of immigration status. I loved the experience of direct representation of people who need help navigating the complex legal system in Texas and the United States. Practicing immigration and personal injury law, I have a personal connection to my clients and help them through what can be some of the most difficult and stressful situations in their lives.

Can you find a commonality in the two?
Absolutely. Both practices have a direct, personal connection to clients when I am representing them in their case. I get to walk with them through the entire process, whether it is helping them avoid deportation, reunite with a family member, or helping them recover after a car accident. Additionally, in my practice, most of my clients speak Spanish. I speak my client’s language and am from the same comunidad. This helps build trust from my clients that I am fighting their fight alongside them.

What’s something you learned in law school that has come in handy since becoming an attorney?
Overprepare. Be the person in the room who knows the most about your case, has thought of every possible scenario, and is prepared to deal with whatever happens.

What motivated you to get involved with the Texas Young Lawyers Association?
TYLA is the service arm of the State Bar of Texas. It is a great opportunity to get involved in projects that have an impact across the state both for members of the bar and the community at large. TYLA also provides a great opportunity to network and get to know lawyers throughout the state of Texas and make connections that will last an entire career.

What responsibilities do you have as a board member?
I am one of two district directors for the area of San Antonio. One responsibility is to represent young lawyers in my district with respect to ongoing projects of TYLA. I am currently serving on the Member Services Committee and the Diversity, Development, and Wellness Committee.

What are some projects you’ve been working on that you enjoy the most?
I am excited to work in the Diversity, Development, and Wellness Committee. We are currently planning a wellness retreat/conference to help attorneys find ways to deal with stress and anxiety that is a part of our profession.

What do you ultimately hope to accomplish as a lawyer?
I hope to have helped people and made a difference in my clients’ lives. I hope to leave a legacy that my parents, my wife, and my children would be proud of. I hope to make the practice of law more accessible to those who come after me, especially would-be first-generation lawyers.

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Practicing Before the U.S. Supreme Court | Kannon Shanmugam

For many attorneys, the prospect of a U.S. Supreme Court argument serves as the capstone of a legal career. But for a select few, like Kannon Shanmugam, chair of Paul Weiss’s Supreme Court and Appellate Practice Group, arguing before the Supreme Court is a regular occurrence.  Kannon joins Jody Sanders and Todd Smith to discuss his path to Supreme Court advocacy and some of the unique challenges it offers. Kannon also discusses

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October 23 is Paralegal Day

Each year in Texas, October 23 is recognized as Paralegal Day to honor the paralegal community and its contributions. The State Bar of Texas Paralegal Division encourages everyone to honor paralegals by celebrating Texas Paralegal Day.

October 23 marks the 41^st anniversary of the division’s founding in 1981. The division was created to promote high standards of conduct, professional ethics, and responsibility through continuing legal education and cooperation with the State Bar of Texas—the first bar association in the U.S. to create a separate division for paralegals.

On April 5, 1993, Texas Senate Concurrent Resolution 69 was signed by Lt. Gov. Bob Bullock and Speaker of the House Pete Laney, commending the division and the legal assistants of the state of Texas and resolving that the 73rd Legislature of the state of Texas had declared October 23 as Texas Legal Assistants Day.

Beginning in 2005, the Texas House of Representatives signed proclamations acknowledging October 23 as “Paralegal Day” for one or two years at a time. However, on January 22, 2009, the Texas Senate issued Proclamation No. 1144, declaring October 23 to be Texas Paralegal Day indefinitely.

For more information about the State Bar of Texas Paralegal Division, go to txpd.org/.

 

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Building a Successful Law Firm Instagram Account With Help From Your Staff

As digital marketing progresses, your strategy must evolve with it, which is why we are suggesting your law firm gets started on Instagram.

The post Building a Successful Law Firm Instagram Account With Help From Your Staff appeared first on Stacey E. Burke, P.C..

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Privacy in the Work Place

In Wilhite v. HE Butt Co., 812 S.W.2d 1 (Tex.App. Corpus Christi 1991), the employee was accused of sexual harassment. His employment was terminated after many years at HEB. Mr. Wilhite sued for defamation and invasion or privacy. The district court granted summary judgment regarding the invasion of privacy.

On appeal, the Corpus Christi Court of Appeals found that summary judgment to be error, sort of. Texas, said the court, recognizes a tort known as intrusion upon a person’s seclusion or solitude, or into his private affairs. Physical acts such as eavesdropping on a conversation or physical invasion of a person’s property are associated with this sort of invasion of privacy. The court found that the plaintiff did not allege this sort of privacy invasion. Instead, Mr. Wilhite described his employer not allowing him to confront his accusers and by invading his private life by trying to control what he could do or not do. There was no physical invasion of the plaintiff’s privacy by his employer.

The Court noted that the plaintiff’s description sounded more like the torts of 1) disclosure of embarrassing facts or 2) publicity which places the person in a false light. But, said the court, the HEB officials did not make public any private acts or accusations. So, summary judgment was appropriate. So, the court of appeals affirmed the summary judgment. See the Wilhite decision here.

The decision then recognizes that invasion of privacy at work can occur if the employer eavesdrop on conversations or invades an employee’s seclusion or solitude. The question then becomes at work, what are those areas of seclusion?

One case that answers the question is K-Mart Corp. Store No. 7441 v. Trotti, 677 S.W.2d 632 (Tex.App. Hou. 1984). That decision found that a worker did have an expectation of privacy in his locker, which the employer provided. The locker was used to store personal effects. The lockers were sometimes locked, sometimes not. In this instance, the employee did lock her locker, with her purse inside. Later, she found the locker open and her purse had been ransacked. The manager had opened all the lockers, because he believed some unknown employee had stolen a watch.

This invasion of privacy amounted to an intrusion of the plaintiff’s seclusion, said the court. In providing her own lock with the employer’s consent, the employee showed a legitimate expectation of privacy to the locker and the contents of the locker. See the decision in the Trotti case here.

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Demand Letter Response Time in Texas

Your Houston personal injury lawyer may send a demand letter to the insurance company of the person who caused your injury. It outlines the legal reasons why the person is liable for your damages, describes your damages, and “demands” an amount to settle the claim. The letter begins the negotiations to settle your personal injury claim.

The insurance company can reject or accept the settlement offer. However, in many cases, the company makes a counteroffer for a lower amount. From that point, your lawyer and the insurance company could go back and forth for weeks until they agree on a settlement amount.

Unfortunately, the demand letter response time depends on the specific factors of your case.

How Long Does It Take for an Insurance Company To Respond to a Demand Letter?

Texas insurance laws include time limits for insurance companies to perform certain steps in the claims process. The deadlines are designed to make the process efficient and timely for all parties.

For example, when you file the initial claim with the insurance company, it must acknowledge the claim within 15 days. After that, the insurance company must request additional information it needs to process the claim and investigate the claim.

Once the company receives all necessary items to process the claim, it has 15 days to reject or accept the claim. However, the company can extend this deadline for an acceptable reason. If the company accepts the claim, it has five days to issue a settlement check.

However, these deadlines do not mean that your personal injury case only takes a couple of months to settle. Settlement timelines vary substantially, depending on the facts of the case.

What Is the Average Demand Letter Response Time in Texas?

First, your accident attorney does not send a demand letter until you complete medical treatment and reach maximum medical improvement. Settling a claim before your doctor determines whether you sustained a permanent impairment could result in a much lower settlement amount.

Therefore, your recovery period is a significant factor in determining a settlement timeline. For example, if it takes eight months to recover from your injuries, a demand letter might not be sent to the company until almost a year after your accident.

After your doctor releases you, your attorney must calculate the value of your damages. That means they must have the final totals for all economic damages, including your medical bills, lost wages, and out-of-pocket expenses.

If you sustained permanent impairments, your lawyer might retain financial professionals, medical specialists, and other expert witnesses to provide an estimate of your future economic damages. At the same time, your lawyer spends time detailing your non-economic damages.

Other Factors That Could Impact How Long It Takes To Receive a Demand Letter Response

Other factors could lengthen the time it takes for an insurance company to respond to a demand letter. Factors that lengthen the settlement timeline include:

• Disputes related to liability for damages
• Lengthy settlement negotiations
• Multiple parties involved in the claim
• Allegations of contributory fault or failure to mitigate damages
• Whether you have a pre-existing condition or prior injury
• Mistakes and errors made in the paperwork or documentation
• The volume of cases the insurance company is processing
• Insurance company bad faith

You can expect cases involving catastrophic injuries and complex factors to take longer to settle. An insurance company may take several weeks to review the demand letter before responding. In addition, the company may include its legal counsel in the review, which could also slow down the process.

Suppose an insurance company refuses to respond to a demand letter. In that case, your Houston personal injury attorney may determine the company is acting in bad faith and advise you to proceed with filing a personal injury lawsuit and a bad-faith claim.

Filing a lawsuit lengthens the time it takes to receive a settlement for your personal injury claim. However, filing a lawsuit and taking the case to court might be the only way to protect your right to fair compensation for damages after an accident. It is also the only way for you to obtain a punitive damages award if your lawyer believes your case justifies an award of punitive damages.

How Can You Speed Up the Settlement Process?

You cannot speed up the healing process for your injuries. However, you can help speed up the settlement process by responding promptly to requests from your lawyer. Provide documentation of expenses and costs, so your attorney can add those to the value of your claim.

Your lawyer will not rush to a settlement that is not in your best interest. Rather, a good personal injury lawyer will diligently work to settle your case to get you the money you need after an accident.

Contact the Houston Personal Injury Lawyers at Attorney Brian White Personal Injury Lawyers For Help

For more information, contact the Houston personal injury law firm of Attorney Brian White Personal Injury Lawyers by calling (713) 500-5000.

Attorney Brian White Personal Injury Lawyers
3120 Southwest Freeway, Suite 350
Houston, TX 77098
United States

Attorney Brian White Personal Injury Lawyers – East Fwy
11811 East Fwy, Suite 630-06
Houston, TX 77029
United States

Attorney Brian White Personal Injury Lawyers – South Loop
2600 S Loop W, Suite 293
Houston, TX 77054
United States

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A Federal Court in Texas Upholds Employee Non-Solicitation Clause

Many non-compete agreements in Texas often include employee non-solicitation restraints, which prohibit departing employees from soliciting their co-workers to leave with them. Whereas non-competition restraints are usually tied to a certain geographic area, employee non-solicitation restraints are tied to certain individuals, regardless of the geographic location.

Recently, a federal district court in Texas found that the following employee non-solicitation clause was valid and enforceable, despite the employees’ arguments to the contrary:

5.2 Non Solicitation of Employees. For eighteen (18) months following your termination of employment, for whatever reason, you will not, whether initiated by you directly or on behalf of your employer, or a third party, recruit, lure or entice away, or in any other manner persuade an employee to terminate their employment with the Company. This shall not bar any employee of the Company from applying for or accepting employment with a person or entity.

In this case, former employees accused of violating a non-solicitation clause argued that it was unreasonable under the Texas Covenants Not to Compete Act and, therefore, was invalid. Specifically,  employees argued that the phrase “in any other manner persuade an employee to terminate their employment” was ambiguous. However, the federal court rejected that argument.

Employees also argued that the agreement was overbroad because the clause covered all of the company employees and not just those employees whom they supervised while working at the company. The federal court rejected that argument as well, relying exclusively on pre-existing case law on this issue.

BOTTOM LINE:  Employee non-solicitation clauses can be enforceable in Texas, but state and federal courts often diverge on the enforcement criteria for these clauses. When faced with an employee solicitation claim, it is best to consult with an attorney who is familiar with the case law in this area and who can interpret the language of the specific non-solicitation clause in question.

Note that employee non-solicitation restraints, which are mostly legal in Texas, should not be confused with no-poaching agreements between two employers, which are illegal.

Leiza Dolghih is the founder of Dolghih Law Group PLLC.  She is board certified in labor and employment law and has 16+ years of experience in commercial and employment litigation, including trade secrets and non-compete disputes. You can contact her directly at leiza@dlg-legal.com or (214) 531-2403.

The post A Federal Court in Texas Upholds Employee Non-Solicitation Clause appeared first on North Texas Legal News .

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Can you withhold visitation from an ex who is not paying child support?

When a relationship ends in a divorce or separation, two of the most important issues the court will take an interest in are the child’s living arrangement as well as child support. Once these issues are litigated and judgments pronounced, both parties are required to obey them.

If your ex falls behind on child support, it can be tempting to think that they no longer have a right to see their child. However, they do. Trying to deny your ex their court-ordered visitation and parenting rights can land you in trouble.

Child support and parenting time are distinct issues

Texas law treats parenting time and child support as two separate issues. You cannot limit a parent’s access to their child because of failure to pay child support. Doing so can attract the following penalties:

• Modification of the existing custody arrangement to make up for missed visitations
• Fines and requirements to pay attorney fees
• Permanent modification of the custody and visitation order
• Incarceration and/or change of primary custody in extreme cases

Enforcing Texas child support orders

There are several options at your disposal if your ex has fallen behind in their child support payments. First, you and your ex can agree to modify the existing child support amount and deposit the agreement in court. However, if this is not possible, you can petition the court to enforce the existing order. Some of the strategies the court can use to enforce a child support order include:

• Issuing a lien on their property
• Garnishing their paycheck
• Intercepting their tax refunds
• Revoking their driver’s license
• Criminal prosecution and incarceration in extreme cases

Find out how you can protect your interests while pursuing your ex for child support payments.

 

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Title III Standing Undoubtedly Headed to Supreme Court

Today’s blog entry come from the First Circuit, Laufer v. Acheson Hotels, LLC, here. It discusses standing and creates a split in the circuits. Undoubtedly, this issue will go before the Supreme Court. The facts of the case are pretty straightforward. What you have is a serial plaintiff and an avowed tester of Internet sites. In this case, she focuses on the hotel reservation rule and checks sites to see if they are complying with the specific hotel reservation rules in the Code of Federal Regulations. While she has an intention of visiting the website to see if the website is complying with the rule, she has no intention of actually visiting the properties themselves. Does she have standing? The First Circuit says she does. As usual, the blog entry is divided into categories and they are: court’s reasoning that plaintiff has standing; effects of prior Supreme Court cases and other Circuit Court decisions; plaintiff has standing to seek injunctive relief; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Court’s Reasoning That Plaintiff Has Standing

 

1. When a place of public accommodation violates the ADA and discriminates against a person with disability, the ADA and the regulations implementing it permit a private individual to bring enforcement actions in federal court.
2. The question is whether a complaint contains enough facts to demonstrate that the court has subject matter jurisdiction.
3. In order to have standing, plaintiff must show that she: 1) suffered an injury in fact; 2) the injury is fairly traceable to the challenged conduct of the defendant; and 3) the injury is likely to be redressed by a favorable judicial decision.
4. An injury in fact means the invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.
5. Standing doctrine has several purposes, including: 1) tends to ensure that the legal question presented to the court are resolved in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action and not in the rarefied atmosphere of a debating society; 2) ensures federal courts don’t turn into a vehicle for the vindication of the value interests of concerned bystanders; and 3) reflects the separation of powers principles that courts should not be used to usurp the powers of the political branches.
6. Since standing is jurisdictional, it cannot be waived or forfeited and can be raised at any time by anyone. When it is raised, the burden of showing standing rests on the party invoking the court’s jurisdiction. A party has to meet that burden otherwise the case has to be dismissed.
7. In essence, standing is the question of whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.
8. Plaintiff’s claim is not so implausible that it is insufficient to preserve jurisdiction.
9. The hotel reservation regulation, 28 C.F.R. §36.302(e), clearly provides that hotels in their reservation portals must provide some detail-enough detail-to allow individuals with disability to know what services they can enjoy.
10. Concrete injuries must actually exist, though the injury does not have to be tangible. Intangible injuries, such as the suppression of free speech or religious exercise or the invasion of common law rights actionable without wallet injury, can also be concrete.
11. In figuring out whether an injury is concrete, the Supreme Court has said that you look to both history and the judgment of Congress.
12. It is the responsibility of judges to independently decide whether a plaintiff has suffered a concrete harm under article III even if Congress adamantly says they do.
13. A plaintiff’s deliberate choice to see if accommodations are obeying a statute does not mean that her injury impact is any less real or concrete.
14. The purpose of the reservation rule requiring that places of lodging make available in their accommodation descriptions on the reservation services information about the accessible feature in their hotel and guest rooms is to reasonably permit a person to assess independently whether a given hotel meets her accessibility needs, which was exactly what the plaintiff was doing.
15. There is also no carveout in the hotel reservation regulations that the information need only be turned over if the person trying to make a reservation actually wants to make a reservation.
16. The Supreme Court has said that a black tester has standing with respect to the Fair Housing Act because that tester had a right to truthful information but was denied. The same applies here because the plaintiff was denied information to which she has a legal entitlement. Another way to look at it is that the black tester lack of intent to rent an apartment did not negate the simple fact of injury. Therefore, plaintiff’s lack of intent to book a room at the hotel room would not negate her standing either.
17. The Supreme Court has repeatedly said that denial of information to which plaintiffs have a legal right to can be a concrete injury in fact.
18. Prior Supreme Court opinions have made clear that a denial of information that a plaintiff is statutorily entitled to can make for a concrete injury in fact. Those same decisions hold that the denial of information to a member of a protected class alone can suffice to make an injury impact and that the person’s intended use of the information isn’t relevant.

 

II

Effect of Prior Supreme Court Cases and Other Circuit Court Decisions

 

1. It is up to the Supreme Court to say that a decision overrules prior decisions of the Supreme Court and not to the Circuit Courts of Appeals.
2. Explicit holdings of the Supreme Court overrule any contrary dictum by the Supreme Court in later decisions. That is, arguments that the Supreme Court implicitly overruled one of its prior decisions are inherently suspect.
3. It is unlikely that the Supreme Court would overrule a prior decision in dictum with only three sentences of explanation contained in a footnote.
4. The black tester case, Havens Realty, is so similar to plaintiff’s case as to render any distinction between the two of them insufficiently material. So, the First Circuit is bound by that decision until the Supreme Court says otherwise.
5. The ADA make the denial of information discrimination against persons with disabilities and gives that person the right to sue in response. That plaintiff had no intent to use the information for anything but a lawsuit doesn’t change anything because she was still injured in precisely the way the statute was designed to protect.
6. The regulations at issue specifically make the denial of accessibility information actionable discrimination against persons with disabilities. That is, the regulation was not designed only to make sure that a person with a disability could book a room but to ensure that a person with a disability could independently assess whether a given hotel or guest room meets his or her accessibility needs. The reservation rule recognizes that the public information on accessibility features is necessary to make sure persons with disabilities are able to reserve hotel rooms with the same efficiency, immediacy, and convenience as those who do not need accessible guest rooms.
7. Denying the plaintiff the same efficiency, immediacy, and convenience as those not requiring accommodations is exactly the discrimination the regulations are trying to stamp out.
8. The decisions of other circuit courts are simply not persuasive for several reasons: 1) the decision do not explain why the ADA tester plaintiff didn’t suffer an injury but the black tester plaintiff in Havens Realty did even though her only interest in using the information was testing compliance and bringing her lawsuit, just as is the case with an ADA reservation rule tester; 2) regardless of whether the rule involves a misrepresentation or any representation, it is a distinction without a difference. In either case, the law conferred on the plaintiff a legal right to truthful information about an accommodation; 3) the Supreme Court recently reaffirmed that the violation of a procedural right granted by statute can be sufficient in some circumstances so that plaintiff’s need not allege any additional harm beyond the one Congress has identified; 4) downstream effects is not something that appears in the most relevant Supreme Court case law governing standing.
9. Discrimination itself, by perpetuating archaic and stereotypic notions or by stigmatizing members of a disfavored group as innately inferior and therefore as less worthy participants in the political community, can cause serious noneconomic injury to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.
10. Trans Union, discussed here, cited discriminatory treatment as an example of concrete de facto injuries that were previously inadequate at law that Congress could elevate to the status of legally cognizable injuries.
11. Plaintiff alleges that she suffered frustration and humiliation when the hotel reservation portals did not give her adequate information about whether she could take advantage of the accommodations. Without that information, plaintiff is not put on an equal footing to experience the world in the same way as those who do not have disabilities. Avoiding precisely that part is the point of the ADA which was designed to advance equal citizenship for persons with disabilities by aiming to guarantee a baseline of equal citizenship by protecting against stigma and systematic exclusion from public and private opportunities. When faced with exactly this situation, the 11^th Circuit, discussed here, found standing
12. Even assuming downstream consequences are a thing, plaintiff’s feelings of frustration, humiliation, and second-class citizenry are downstream consequences and adverse effects of the informational injury she experienced.
13. Plaintiff’s injuries are particularized. In particular, she personally suffered the loss of dignity and feeling less than equal and endured humiliation, frustration, and embarrassment.
14. The injury is also differentiated from others because plaintiff is a person with a disability who personally suffered the denial of information the law entitles her to have.

 

III

Plaintiff Has Standing to Seek Injunctive Relief

 

1. Standing to seek injunctive relief turns on the question of whether the plaintiff has shown a sufficient likelihood that she will again be wronged in a similar way, sometimes referred to as imminence.
2. Imminence requires that the injury not be conjectural, hypothetical, or simply possible. Describing this concept, the Supreme Court has said that a plaintiff’s proclaimed intent to return to the place that they have visited before is by itself simply not enough.
3. Plaintiff’s intent to revisit the website are the farthest thing from those same day intentions found insufficient in Supreme Court decisions. She specifically alleges that she has concrete plans to go back to the websites in the near future. In fact, she has a sophisticated system to continue monitoring the noncompliant website she finds.
4. Plaintiff is a self-proclaimed ADA tester who makes it her job to test website for ADA compliance.
5. Plaintiff also asserts that while the hotels reservation system had made its website ADA compliant, it had not persuaded third-party reservation services to do the same. So, her likelihood of future injury is far from conjectural or hypothetical rather it is imminent.
6. Defendant’s mootness argument does not fly because mootness is a demanding standard. For a case to be moot, it must be shown that it is impossible for a court to grant any effectual relief whatsoever to plaintiff assuming the plaintiff prevails. Further, the party asserting mootness bears the burden of showing that it exists. As mentioned above, the third-party reservation sites have yet to comply with the reservation rule.
7. Plaintiff’s claims against the third-party websites are not insubstantial and frivolous.
8. The reservation rule extends to reservations made by any means including through a third-party.
9. The defendant has not represented that it made the information available now on its website to all of the 13 third-party booking websites that plaintiff alleges are noncompliant.

 

IV

Thoughts/Takeaways

 

1. Judge Howard agreed that the complaint adequately alleges standing for declaratory relief, but was doubtful that it sufficiently alleges standing to pursue injunctive relief. That said, Judge Howard did not file a separate opinion.
2. I previously wrote a blog entry discussing a Seventh Circuit dissenting opinion arguing that emotional distress damages were a part of the Fair Debt Collection Practices Act, here. I argued that that dissenting opinion was a strong argument for the Supreme Court to distinguish tester standing under the Fair Housing Act from standing under title III of the ADA. In particular: 1) the Fair Housing Act has specific references to perceivable emotional harm within its statute but title III explicitly does not; 2) per Cummings, which we discussed here, the Rehabilitation Act does not allow for emotional distress damages; 3) since damages are not an element of title III of the ADA, it is impossible to show that damages are allowed under title III. Therefore, remedies incorporating an element of emotional distress have not been around for a long time; 4) the judgment of Congress pronged is going to be a difficult bar for a plaintiff to get over because of the statutory provisions of title III of the ADA, which doesn’t even allow for damages; 5) there is nothing in the ADA’s findings section explicitly addressing intangible harms. That is, you do not see language like you do in the Fair Debt Collection Practices Act that foreseeably lead to the conclusion that emotional distress is in play; 6) Justice Thomas’s private v. public right distinction that he discussed in TransUnion won’t help a person with a disability because disability discrimination is a public right.
3. Emotional distress damages are not a thing under title III of the ADA. All you can get is injunctive relief and attorney fees. That raises a real question to my mind as to the dignitary harms suffered by the plaintiff being sufficient for a plaintiff to get standing because emotional distress damages are not a thing under title III.
4. The court finesses the intent to return by suggesting that the proper analysis is an intent to return to the website and not to the hotel because the reservation rule involves a website and not the physical place. It’s an interesting argument taken by the court as I have not seen intent to return parsed that way before.
5. Not every Code of Federal Regulations results in a private cause of action being available. See, Schmidt v. Pennymac Loan Services, LLC, 106 F. Supp. 3d 859 (E.D. Mich. 2015).
6. TransUnion specifically said that a statutory injury by itself is not sufficient.
7. Since the Fair Housing Act implicitly recognizes that emotional harms are in play when housing discrimination occurs but the ADA does not have any similar language, certainly not in title III, the Supreme Court decision in Havens Realty can be distinguished.
8. The Supreme Court frequently narrows cases without explicitly doing so, particularly when Chief Justice Roberts was a swing vote.
9. On a personal level, it is very unclear to me whether the hotel reservation rule really makes a difference for people with certain kinds of disabilities. I can’t tell you how often I go into a hotel room where the hotel simply does not understand what it means to have a room that is accessible to a deaf individual. It is not unusual for me to get into a back-and-forth with the hotel to explain to them that the room is not accessible even though they are convinced that it is. In other words, if a website were to tell me that a room was accessible to a deaf individual I wouldn’t believe it unless they were to list out what exactly is in that hotel room.
10. The burden of showing standing is on the complainant, while the burden of showing mootness is on the defendant. Mootness was never easy to show and standing no longer is.
11. I fully expect my colleague Richard Hunt to eventually blog on this case, and I look forward to reading his take on the First Circuit decision.
12. This case is undoubtedly headed to the Supreme Court. Figuring out what the Supreme Court is going to do in disability discrimination matters is a fools errand. That said, for the reasons I discuss in this blog entry I do not like the chances of the plaintiff when it gets to the Supreme Court.

 

Go Braves!

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