Originally published by lawschool academicsupport.
It’s the time of the year when one group of graduates are taking their oaths of office while another group of graduates are preparing for the bar exam this summer. That brings me to an interesting conversation with a recent…
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Originally published by Lowell Brown.
Earlier this week, the Supreme Court of Texas amended Article IV of the State Bar Rules to implement changes to the bar’s election process designed to ensure fairness and a level playing field among all candidates.
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Originally published by Bruce Vincent.
Recent breaking news about the potential union of Dallas’ Winstead and Atlanta-based Troutman Sanders is another example of how the media can quickly become a factor in private law firm mergers. Leaders from Winstead and Troutman declined to confirm last week’s story from The Texas Lawbook about their reported plans for a national megafirm. If […]
The post Successfully Navigating Media in Law Firm Mergers appeared first on Muse Communications.
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Originally published by Houston Tax Attorney.
S corporation’s account for separately stated items that flow through to the shareholder’s tax returns. They are computed on page 3 of the Form 1120S and then listed separately on the Schedule K-1. The idea for breaking these items out separately is that they can impact the shareholder’s individual returns differently. That makes sense, but […]
The post Shareholder Cannot Make S Corp. Separately Stated Item Election appeared first on Houston Tax Attorneys: Mitchell & Patel.
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Originally published by Walter James.
When I first started practicing environmental law in 1987, I read the book “America’s Future in Toxic Waste Management: Lessons from Europe” by Bruce W. Piasecki and Gary A. Davis. In the book, they discussed the difference in philosophies between European environmental enforcement theories (the carrot) and the United States’ philosophy (the stick).
My good friend, Brent Fewell, with the Earth and Water Group, recently posted on Facebook, regarding the current administration’s attempts to use the “carrot” approach to enforcement – that is, (and I am paraphrasing somewhat here) give non-compliers notice that they are noncompliant, give them sufficient time and the tools to come into compliance, warn them of the consequences of continued noncompliance and then if the regulated entity fails to heed the advice and take advantage of the leniency, then drop the hammer.
Generally speaking, I am in favor of that approach. The question then becomes, how are the noncompliant entities going to come to the attention of the agency? Inspections are down, there are fewer agency employees, federal grants to state agencies are drying up, cooperative federalism only works so far, state agencies do not have the budgetary luxury of picking up the enforcement slack. So how will the noncompliant company come to the attention of the agency? In some sense, this approach provides an incentive to be in noncompliance, especially if it gives the regulated entity a competitive advantage.
On June 11, 2018, E&E News published an article entitled “Trump’s EPA Turns to Less Punitive Responses to Pollution” by Mike Soraghan, E&E News reporter. In essence, the article was setting out that the “enforcement initiatives” were going to become “compliance initiatives.” “The plan is to give state governments more authority in setting priorities for enforcement programs, according to a memo obtained by E&E News. Officials also want to remove from the priority-setting process considerations about consistency and using penalties to maintain a ‘level playing field’ for companies.”
Observing this from my vantage point, that approach will further weaken a substantially reduced enforcement agenda. The states are simply not equipped, or qualified, to deal with issues that cross state borders or affect entire regions of the country, if not the entirety of the country. While the oil and gas industry complained about the enforcement efforts launched after the Obama administration made “energy extraction” an enforcement priority, imagine the cacophony of the vagaries of enforcement by North Dakota, by Louisiana, by Texas, by Alaska and by Pennsylvania. According to the article, “Inspections of ‘energy extraction’ sites dropped by one-third in EPA Administrator Scott Pruitt’s first fiscal year, according to EPA’s website.”
There are a plethora of issues that scream for national enforcement (clean water, drinking water, clean air). And while these areas need a national approach and an incentive approach to compliance may work, there are way too many issues to leave to state enforcement or state-only input. Some states are unwilling to undertake enforcement against industry that supplies a significant tax employment base. State agencies also will not consider a broader picture. Clean water, clean air, safe drinking water and its enforcement may very well take divergent paths in different states as the different states will have different budgetary constraints as well as interests.
The agency that watches over an industry may lose its way in its efforts to present a friendlier face. Then again, that is just my opinion.
More later.
As always, feel free to contact me at walter.james@jamespllc.com
WDJiii
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Originally published by Thomas J. Crane.
In Myles v. UT Health Science Center at San Antonio, No. 17-00871-XR, 2018 US Dist. LEXIS 5080 (W.D. Tex.), we see an instance in which the state employee successfully sued the state employer for a violation of the Family Medical Leave Act. Normally, a state employer is immune to a suit based on the FMLA, if the allegation is the employee had to stay home to care for herself. The state employer can simply cite its Eleventh Amendment immunity, and the lawsuit would end. But, in this case, the employee also sued the individual managers who were responsible for her termination.
Loretta Myles worked for UTHSC for many years, eventually rising to the manager level in the Human Resources department in 2009. In 2015, she requested FMLA leave to care for her ill husband. He suffered from prostrate cancer. But, Plaintiff’s supervisor, Ann Gaeke told her not to use FMLA leave. At one point, Ms. Gaeke warned Ms. Myles she should start looking for another job. The Plaintiff then took several weeks leave, saying she needed a break from harassment by her supervisor. On her first day back at work, Ms. Gaeke presented the employee with written discipline. Three days later, she was fired.
At the outset, the employer submitted a motion to dismisses citing Eleventh Amendment immunity. The Agency also argued that the two named defendants, Ann Gaeke and Heather Kobbe, are not “employers” as defined in the FMLA. But, the district court pointed to caselaw which did find that “employer” could include a public employee. Looking at Ms. Myles’ leave request as “self-care,” the court rightly noted that the Supreme Court has held that state employees cannot sue the state under the FMLA for taking care of oneself. But, the district court noted that Ms. Gaeke took sufficient actions against the plaintiff that her actions were in controversy. This was more than a supervisor simply carrying out state mandated requirements.
In its reply brief, the state raised the issue of qualified immunity regarding Ms. Gaeke. But, accepting the Plaintiff’s allegations as true, as the court must, the plaintiff has shown sufficient facts to indicate Ms. Gaeke violated clear statutory rights. Therefore, qualified immunity does not apply.
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Originally published by Michelle O'Neil.
The Supreme Court recently issued an opinion parsing out the practical concerns at play in a post-divorce life insurance case. Specifically, in Sveen v. Melin, a woman named as primary beneficiary in her ex-husband’s life-insurance policy challenged a Minnesota statute that automatically revoked that designation upon divorce. All in all, the Supreme Court was asked whether such revocation-upon-divorce statutes are constitutional when applied retroactively—that is, when applied to beneficiary designations made before the statute was enacted. In short, the answer is ‘yes!’
To better understand the case at hand, consider the following facts: Mark Sveen married Kaye Melin in 1997 and named her as the primary beneficiary of his life-insurance policy. In 2002, Minnesota amended its probate code to provide that the designation of a spouse as a beneficiary would be automatically revoked upon divorce. Sveen and Melin divorced in 2007, and much to the surprise of his children, he never updated the beneficiary designation. So, when Sveen died in 2011, the insurance company was uncertain how to proceed: should it pay the proceeds to Sveen’s ex-wife (Kaye), or alternatively, to Sveen’s children? Phrased differently, should the insurance company follow Sveen’s original instruction, or alternatively, Minnesota’s new statute? Given this predicament, the insurance company asked the Court for help.
In an 8-1 opinion, the Court held that the retroactive application of Minnesota’s revocation-upon-divorce statute does not violate the contracts clause of the Constitution. According to the Court, the law in this case was meant to reflect the policyholder’s intent, thus supporting, rather than frustrating, the contractual scheme. Indeed, Sveen, amongst many others, would probably not want his life insurance proceeds to pass to his ex-wife. Furthermore, the law in this case was unlikely to defeat the policyholder’s expectations, as the policyholder could not reasonably expect a beneficiary designation to stay in place post-divorce. Moreover, the law in this case merely served as a default rule, which the policyholder could undo at any point in time by submitting a new beneficiary designation form. According to the Court, the burden of such negligible paperwork does not violate the contracts clause under its well-established precedent.
Like Minnesota, Texas has a similar statute under the Texas Family Code §9.301, which is why the Supreme Court’s decision is particularly relevant to us. In Texas, a divorce invalidates any pre-divorce designation of the former spouse as a beneficiary of life insurance unless (1) the decree designates the insured’s former spouse as the beneficiary, (2) the insured re-designates the former spouse as the beneficiary after rendition of the decree, or (3) the former spouse is designated to receive the proceeds in trust for, on behalf of, or for the benefit of a child or a dependent of either former spouse. It is important to keep in mind, however, that this state statute is preempted by ERISA!
This post comes from Saira Ukani, summer law clerk for O’Neil Wysocki. Saira is a law student at the University of Texas School of Law. She is interested in family law as a career after law school. We are happy to have her helping with our blog as well!
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