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.

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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.

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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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What If You Die Without a Will in Corpus Christi?

If you die without a will in Corpus Christi, Texas, your estate may go to your spouse, children, parents, or other relatives as dictated by state law. However, this is not always the case. If you have any assets or debts that you want to leave to someone other than your spouse, then you will […]

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