Originally published by David Coale.
Vocada sued Nuance for securities fraud. They had a merger agreement in which they agreed to arbitrate “any . . . dispute relating to the Earnout Consideration.” The Fifth Circuit found that this claim had to be arbitrated, noting: “Although the arbitration clause as a whole is narrow, the ‘relates to’ language is broad.
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Originally published by Richard Smith.
The guarantors of a construction loan agreement and promissory note sought to avoid a deficiency judgment by disputing a successor bank’s summary judgment evidence that it was the holder of the note. The Dallas Court of Appeals was having none of that oft-repeated claim. In the absence of controverting evidence, affidavit testimony and a copy of the note are sufficient to prove it up for summary judgment purposes, and an affidavit is likewise sufficient to establish ownership or assignment of the note. Because none of the summary judgment evidence contradicted the bank’s affidavit testimony, summary judgment for the deficiency was properly granted. The Court went on to rule that the bank was not required to include a complete history of payment activity on the account as part of its summary judgment evidence, and that the guarantors’ own affidavits did not create a fact issue on the issue of the property’s fair market value.
Cha v. Branch Banking & Trust Co., No. 05-14-00926-CV
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Originally published by By Brian Humphrey.
On Friday, August 14, Conroe was rocked by a massive explosion at the DrillChem Drilling Services plant on North Loop 336. Investigators now say that they do not suspect foul play.
The explosion and fire, which started about 4:30 in the afternoon, took about four hours for firefighters to bring under control. There are no reported injuries to date, as the plant reportedly closes early on Friday, but one firefighter was transported to the emergency room to be treated for heat exhaustion. Residents within two miles were ordered to shelter in place for several hours.
Conroe Fire Marshal Mike Legoudes said at a press conference last Wednesday that the explosions were “accidental in nature.” He said that investigators are focused on at least three possible ignition sources: electrical issues, a potential gas leak, or old oily rags reported to be inside.
DrillChem is an oilfield chemicals company established in 2000 that produces sealants, shale inhibitors, and lubricants, according to its website. The DrillChem facility had no known inspection issues, but DrillChem had only been at the building for about a year. While DrillChem’s founder and CEO, James R. Hayes, spoke at the press conference with Fire Marshal Legoudes, he did not disclose what types of chemicals were present in the fire. He maintained that there was no air pollution or contamination outside the plant.
If you or someone you know has been injured in an industrial accident, contact an attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend by calling 713-222-7211 or toll free at 1-800-870-9584.
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Originally published by Benson Varghese.
Sentencing in the Federal System
Varghese Summersett PLLC Federal Criminal Defense Lawyers
If you have read our introduction to federal criminal law, you have a basic understanding of how sentencing works in the federal system. While the advisory sentencing guidelines may call for harsh sentences for most offenses, there are a limited number of ways to have reduce a sentence imposed by the court. 18 USC 3553(a) sets out a number of factors a court must consider in imposing a sentence.
Section 3553(a)(1) requires the court to equally consider:
the nature and circumstances of the offense and the history and characteristics of the defendant;
the kinds of sentences available;
the kinds of sentence and the sentencing range;
any pertinent policy statement issued by the Sentencing Commission;
the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
the need to provide restitution to any victims of the offense.
Additionally, Section 3553(a)(2) requires the sentence imposed to:
reflect the seriousness of the offense, to promote respect for the law and to provide just punishment for the offense;
to afford adequate deterrence to criminal conduct;
to protect the public from further crimes of the defendant; and
to provide the defendant with needed educational or vocational training, medical care or other correctional treatment in the most effective manner.
There are a limited number of ways for a sentence to be reduced based on statutory exemptions or through rehabilitation programs. The most significant sentence reducers in the federal system are described below.
(1) Safety Valve under 18 U.S.C. 3553(f)
A “safety valve” is an exception to mandatory minimum sentencing laws. A defendant who meets the criteria is exempt from any statutory minimum sentence of imprisonment and statutory minimum term of supervised release. Safety valves apply to a variety of crimes and offenders, following that the offender meets certain conditions.
Requirements:
The defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
The defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
The offense did not result in death or serious bodily injury to any person;
The defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in the Controlled Substances Act; and
Not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.
Applies to convictions under 21 U.S.C. Sections 841, 844, 846, 960, or 963.
(2) Substantial Assistance under 18 U.S.C. 3553(e)
The court has the authority to impose a sentence below the level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. There is no limit to the reduction of this sentence, based on the court’s evaluation of the offender’s assistance.
Appropriate reasons for reduction determined by the court:
The court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into account the government’s evaluation of the assistance rendered;
The truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
The nature and extent of the defendant’s assistance;
Any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
The timeliness of the defendant’s assistance.
If the defendant provides substantial assistance to the government after his/her sentencing, while the government is investigating or prosecuting another person, the defendant is eligible at the court’s discretion for a reduction of his/her sentence at a level below the minimum sentence established by the statute.
A motion to reduce can be made more than one year after sentencing stating that the defendant’s substantial assistance involved: information not known to the defendant until one year after sentencing, information provided by the defendant within one year of sentencing but was not useful until more than a year later, or information which the defendant did not anticipate to be useful until more than one year after sentencing, was provided to the government after its usefulness was realized.
(3) Residential Drug Abuse Program (RDAP) under 18 U.S.C. § 3621
Drug rehabilitation is a treatment program for eligible defendants who are determined by the Federal Bureau of Prisons (BOP) as having a substance abuse problem and are willing to participate in a residential substance abuse treatment program. The Residential Drug Abuse Program (RDAP) is an intensive six-month program. The defendant must have been convicted of a nonviolent offense and have no detainers or INS holds to be eligible for rehabilitation.
After successful completion of the treatment program, the period of custody may be reduced by the BOP by up to one year; the reduction of the sentence is at the discretion of the Director of the BOP.
(4) Good Time Credit under 18 USC 3624
The “good time” reduction encourages and rewards rehabilitation and discourages rule breaking in prisons. Good time reductions are at the discretion of the BOP. A federal prisoner may obtain 54 days of good time credit for every year that they serve.
Eligibility for Good Time Reduction:
Defendant is serving a term of imprisonment of more than one year, but less than life.
Defendant, as determined by the BOP, has displayed exemplary compliance with institutional disciplinary regulations.
The BOP considers whether the prisoner is making satisfactory progress toward earning a high school diploma or equivalent degree.
The defendant may receive credit, beyond the time served, of up to 54 days, per year, for each year served of the sentence at BOP discretion.
(5) Residential Reentry Centers under 18 U.S.C. § 3624
A defendant may be released from prison to a halfway house up to 12 months prior to sentence expiration date at discretion of BOP and the availability of halfway house facilities.
The release to a halfway house is determined on an individual basis. The time given to the defendant to spend in the halfway house should be of sufficient duration to provide the greatest likelihood of successful reintegration into the community. While in the halfway house, the defendant remains in Federal custody and is monitored 24 hours a day.
Determining whether or not to release a prisoner to a halfway house, the BOP will consider the following before making a decision:
The resources of the facility in question;
The nature and circumstances of the offense;
The history and characteristics of the prisoner;
Any statements by the court that imposed the sentence concerning the purposes for which the sentence to imprisonment was determined to be warranted or other recommendations; and,
Any pertinent police statement issued by the US Sentencing Commission.
The following prisoners are not eligible for halfway house placement:
Those assigned a “Sex Offender” Public Safety Factor (but though those convicted of possession of child pornography are permitted to go to halfway houses).
Those assigned a “Deportable Alien” Public Safety Factor.
Those requiring in-patient medical, psychological, or psychiatric treatment.
Those who refuse to participate in the Inmate Financial Responsibility Program.
Those who refuse to participate, withdraw, are expelled, or otherwise fail to meet attendance and examination requirements in a required Drug Abuse Education Course.
Those with unresolved pending charges, or detainers, which will likely lead to arrest, conviction, or confinement.
Ordinarily, those serving sentences of six months or less.
Those who refuse to participate in the Institution Release Preparation Program.
Those who pose a significant threat to the community (e.g., prisoners with repeated disciplinary violations that involve violence or escape).
Pretrial, holdover, or detained prisoners.
If you have been charged with a federal offense, contact the attorneys at Varghese Summersett PLLC. Our attorneys include former federal prosecutors and we regularly handle complex federal criminal cases throughout the county. Contact us today at (817) 203-2220.
The post Federal Criminal Sentencing and Sentence Reducers appeared first on Criminal Defense | Fort Worth DWI Lawyers | Federal Criminal Defense.
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Originally published by Rania Combs.
If you die intestate (without a valid will), the Texas statutes will determine how your property will be divided. In other your property will be distributed in a manner set by the Texas statutes, which may conflict with the way you would chosen to have your assets distributed. Read more…
Although a will is an important part of an estate plan, it only takes effect after you die. Other documents are needed to carry out your wishes and manage your assets in the event you are temporarily or permanently disabled. I recommend five basic estate planning documents. Read more…
In addition to a will, you should also have a durable power of attorney, a medical power of attorney, a health care directive and a HIPAA authorization. Read more…
There are no hard and fast rules about how often you should review your estate plan, but certain life changes, such as a change in your marital status, an addition to your family, a change in the value of your assets, a move to another state, changes in the tax code, and the simple passage of time may trigger a need to update your plan. Read more…
Estate planning is the process of making the legal arrangements necessary to protect your family, plan for your personal and health care, and manage or transfer assets in the event of your incapacity or death.
An “estate” consists of all your assets including real estate, bank accounts, stocks and other securities, life insurance policies, and personal property such as cars, jewelry and artwork. The value of your estate is equal to the fair market value of the assets minus your debts. Read more…
You do, regardless of the size of your estate. Without adequate estate planning, you forfeit your opportunity to make many important decisions such as:
The federal estate tax is a tax imposed on the transfer of a “taxable estate” to a decedent’s heirs and beneficiaries. The “taxable estate” is calculated by deducting funeral costs, debts, and assets transferred to a spouse from the fair market value of all assets, including life insurance, in which the decedent had interest at the time of death.
Although every U.S. citizen is subject to the estate tax, the vast majority will never have to pay any taxes at all because a certain amount of a person’s estate is exempt from taxation. Currently, Americans can transfer $5 million, indexed for inflation, without any federal estate tax liability. Assets valued at over $5 million are subject to an estate tax of 40 percent.
No. For more information read my article “Does Texas Have an Inheritance Tax?”
A living will, or directive to physicians, is a document that allows you to instruct your physicians not to use artificial methods to extend your life in the event you are diagnosed with a terminal or irreversible condition.
Probate is the legal process by which a will is proved to be valid or invalid, though current usage of this term has been expanded to refer to the legal process in which the estate of a decedent is administered.
Generally, the probate process involves collecting a decedent’s assets, liquidating liabilities, paying necessary taxes, and distributing property to heirs. These activities are carried out by the executor or administrator of an estate.
You can, but by doing so, you run the risk that your estate will not be handled according to your wishes. There are many risks associated with Do-It-Yourself Wills and Estate Planning. Texas has very specific requirements concerning wills. If a will does not comply with all these requirements, it can be declared invalid, meaning that your estate could be treated as though you never had one.
By doing your own estate planning, there is a chance you could misapply the law, use the wrong form, or prepare it incorrectly. Additionally, the one-size-fits-all character of a do-it-yourself plan does not take into account each individual’s unique circumstances, and consequently each of their individual estate planning needs. Read more…
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Originally published by Saul Perloff (US).
On August 21, the U.S. District Court for the Southern District of California dismissed a putative class action lawsuit alleging that Beam Suntory falsely advertises its Jim Beam bourbon as “handmade.” Order of Dismissal, Scott Welk v. Beam Suntory Import Co. and Jim Beam Brands Co., Case No. 15-cv-328 (S.D. Cal. Aug. 21, 2015).
The ruling comes less than a month after a different judge in the same court dismissed a nearly identical suit against Maker’s Mark and less than four months after a federal judge in Florida dismissed another would-be class action against Beam Suntory. See our analysis of the earlier rulings at the Brand Protection Blog post, “Maker’s Mark prevails in “handmade” false advertising suit.”
In each of these cases – and in a similar case brought against Tito’s Handmade Vodka – the plaintiffs were consumers who claimed they purchased the defendant’s liquor because its label contained the statement that it was “handmade.” This representation allegedly led the plaintiffs to believe the product was superior in quality to others. The plaintiffs claimed the labels were false or misleading insofar as the process the defendants use in producing their spirits allegedly involves little or no human supervision or involvement.
In his order of dismissal in Welk, Judge Larry Burns analyzed the earlier rulings in the Hoffman, Salters and Nowrouzi cases and found the latter two decisions persuasive. According to Judge Burns, “Welk’s proposed definition of the word ‘handcrafted’ doesn’t fit the process of making bourbon.” Order at 6.
To make bourbon, grains are ground into ‘mash’ and cooked; then yeast is added, and the mixture ferments; then the mixture is distilled, i.e., heated until the alcohol turns to vapor; then the alcohol is cooled until it returns to liquid form, and transferred to barrels for aging. Fermentation, distillation, and aging are necessary to meet the legal definition of bourbon. Machines, including stills and other equipment, have always been necessary to make bourbon.
Id. (citations omitted).
Thus, the court concluded a “reasonable consumer” would not interpret the word “handcrafted” on a bourbon label to mean that the product was literally “created by a hand process rather than by a machine.” Id.
It is worth noting that in Welk, Nowrouzi and Hoffman, the distillers also sought dismissal based on California’s Safe Harbor Doctrine. This doctrine provides that if the legislature permits certain conduct or “considered a situation and concluded no action should lie,” the courts cannot override that determination. See Cel-Tech Comms. Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 182 (1999). In other words, “when specific legislation provides a ‘safe harbor’, plaintiffs may not use the general unfair competition law to assault that harbor.” Id.
In these cases, the liquor producers claimed that the federal Alcohol Tobacco Tax and Trade Bureau (“TTB”) reviewed and pre-approved their labels to ensure they complied with applicable laws and regulations thus providing a safe harbor. However, in each case, the Court concluded that it was not clear – at least at the motion to dismiss stage – that the TTB had actually reviewed and approved the specific label claim (i.e., “handmade”) in question.
It is possible that at a later stage, with a more developed record (i.e., on summary judgment), a court would entertain dismissal based on the Safe Harbor Doctrine. But, if distillers continue winning dismissal on “reasonable consumer” grounds, that theory may never be tested.
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Originally published by Cordell Parvin.
A few years ago, Seth Godin posted a blog titled: “The Law of the Little Shovel.” It is short and well worth reading. He begins by saying:
If you want to dig a big hole, you need to stay in one place.
That means it is important to focus on one group, or one event to earn trust.
What are the main points for lawyers?
The post Short Marketing Tip: Earn Trust by Focusing appeared first on Cordell Parvin Blog.
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