Tuesday, January 26, 2016

108 Year-Old Lease Survives

Originally published by Charles Sartain.

Honus-Wagner-100-Years-Ago-Today1-650x365A baseball question: You’ve got men on late in the game; a base hit to the right side wins. Do you put the bat on the ball for a single or swing for the deep seats, risking the game-ending strikeout?

The Stiles leases were executed in 1907, when Honus Wagner was in his prime.

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7 cyber risks using WiFi including risks of using free hotspots!

Originally published by Peter S. Vogel.

Every one is dependent on WiFi -unfortunately most people think it is safe, however Networkworld identified 7 “ways you could be giving away your identity through a Wi-Fi connection and what to do instead.”  The November 13, 2015 report entitled “7 ways hackers can use Wi-Fi against you” including these points about “Using free hotspots”:

They seem to be everywhere, and their numbers are expected to quadruple over the next four years. But many of them are untrustworthy, created just so your login credentials, to email or even more sensitive accounts, can be picked up by hackers using “sniffers” — software that captures any information you submit over the connection. The best defense against sniffing hackers is to use a VPN (virtual private network). A VPN keeps your private data protected because it encrypts what you input.

They seem to be everywhere, and their numbers are expected to quadruple over the next four years. But many of them are untrustworthy, created just so your login credentials, to email or even more sensitive accounts, can be picked up by hackers using “sniffers” — software that captures any information you submit over the connection. The best defense against sniffing hackers is to use a VPN (virtual private network). A VPN keeps your private data protected because it encrypts what you input.

All 7 of the WiFi Cyber Risks are:

  1. Using free hotspots
  2. Banking online
  3. Keeping Wi-Fi on all the time
  4. Not using a firewall
  5. Browsing unencrypted websites
  6. Not updating your security software
  7. Not securing your home Wi-Fi

Networkworld provided good advice given the ubiquitous nature of cells and tablets which rely on WiFi.

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Top 8 Pitfalls of Arbitration

Originally published by Cleve Clinton.

arbitration-pitfallsAfter months of arguing over defective solar panels with his supplier, California X-Tra Green Solar, Ed Ezeeout finally calls his favorite attorney at Fixx, Itt & Quick. Dutifully gathering all emails, invoices and transport documents with X-Tra Green, Ezeeout comes across the parties’ master sales agreement. Giving it another look, he discovers a “boiler plate clause” agreeing to mandatory arbitration. In the confidence of his favorite attorney, Ezeeout bemoans the time and cost of resolution and suggests, hopefully, “Well, at least the arbitration will be in Texas, will be confidential and will save me time and money. And, if we don’t like the way things are going, we can avoid arbitration and get a jury trial. Either way, we can appeal any unfavorable or wrong judgment, right?” Does Ezeeout risk even more frustrations?

Yes. Originally a viable alternative to the time and expense of a jury trial, the Federal Arbitration Act and the Texas Arbitration Act hoped to offer a confidential, final dispute resolution that would save litigants time and money. Many claim it now does neither.

Arbitration Pitfalls

  1. Arbitration agreements are valid. Resistance is futile. Texas courts almost always enforce them. Unless both parties agree not to enforce an arbitration clause, either party may send their dispute to arbitration. Ezeeout is not likely to get a jury trial.
  2. Arbitration may not be in Texas. X-Tra Green’s “boiler plate language” will likely require arbitration in California and applying California law, increasing Ezeeout’s cost and uncertainty.
  3. Arbitration isn’t always cheaper. It can be, but only if the arbitration clause is tightly drafted or the clients force a budgeting process. Litigants pay for either one or three arbitrators; even one costs more than a Texas court judge. Litigants often pay administrative services which can be prohibitive for small disputes. Depending upon the agreement, all of the costs of the judge and of administration are imposed either equally or against the losing party. Discovery can be just as expensive, if not more, depending upon the involvement of the arbitrator(s) and the permitted scope of discovery fights.
  4. Arbitrators aren’t always qualified. Selecting the best arbitrator for your circumstances requires careful consideration of cost, demeanor, conflicts of interest with the other attorney and their client, usefulness of fact-specific experience, and, perhaps, predilection to one kind of claim or the other. Depending upon complexity, specific field or industry knowledge may be helpful. Avoiding conflicts and knowing who your adversary knows may be even more critical. Finally, investigate whether your arbitrator is both capable and willing to rule decisively, and to not just “split the baby.”
  5. Arbitration might not be faster. It should be, but that’s not always the case. While intentionally not duplicating all of the rules of civil procedure and evidence, some arbitration service rules risk creating unfamiliarity. And, unfamiliarity affects timeliness. Properly managed, arbitration can provide flexibility to fashion the procedure and discovery to the circumstances. It hinges on the arbitrator(s) pushing to resolution rather than permitting the parities and their counsel to fight over irrelevant discovery and procedural matters. As the saying goes, time is money.
  6. Arbitration isn’t necessarily confidential. This is only true if the arbitration agreement specifically says so. Even then, it should include appropriate confidentiality language to suit the circumstances.
  7. Arbitration isn’t usually appealable. Unless the arbitration agreement provides otherwise (and even if it does, appellate courts disagree on application), an arbitration award is final and not appealable. The only “cure” is to insure that the arbitrator is diligent, qualified and fair.
  8. Arbitration isn’t enforceable unless written. The arbitration award is enforceable only by a written judgment or opinion. Absent the losing party voluntarily fulfilling the award, the arbitration award must be returned to a state or federal court for enforcement. If the trial court vacates the arbitration award, that’s appealable by the winning party in arbitration by court ordered mandamus as fellow blogger Drew York accomplished.

Tilting the Scales in Your Favor.

Properly drafted and implemented, an arbitration clause in your company agreement can permit you to keep dispute resolution in Texas, before an arbitrator of your selection, with narrowly crafted, appropriate discovery. It could even include a limited resolution process permitting an accelerated timetable to reduce expenses, and perhaps even position the resolution to minimize damages to the business relationship between litigants. The starting point?

For example, quality control can be aided by: asking your counsel to prepare a budget and calibrate it to the amount and importance of the case; setting limitations on discovery to avoid discovery overkill by broadly preserving every back-up tape, hard drive and document, and focusing on the specific subject matter, evidence and likely witnesses by promptly investigating to find out what is likely discoverable, where it is stored and who the likely witnesses are; mutually agreeing to exchange access to inspect and copy documents at the expense of the inspecting party; limiting email production, if any, by custodians, search terms and date range; stipulating to facts not in issue; and agreeing to use affidavit and deposition testimony for noncontroversial testimony.

If you are still reading this and you are an in-house counsel or business owner looking to make your arbitration options more cost and time efficient, retired Justice Jim Moseley of my firm and I would like to buy you a cup of coffee. We have some ideas about a streamlined process for arbitration that we would like to poll. No obligations and no warranties, express or implied!

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Avoid “Uh-Oh”- Pen Carry at the Airport

Originally published by Drew York.

open-carry-airportSince Texas’ open carry law went into effect at the beginning of the year, Pistol Pete has carried his Glock everywhere he can in his shoulder holster. In a rush to make his flight to Houston for a business meeting, Pete forgets to remove his holster and attempts to walk through TSA’s screening with his loaded Glock. Does he face big-time legal trouble when the TSA agent sees his gun?

Pete’s Not Alone.

Apparently, passengers attempt to bring guns through airport security several times a day, and TSA says the numbers keep rising each year.

It’s Okay in Texas—if Concealed.

Some Texas airports took a proactive approach to the new open carry laws by posting statements on where gun owners can carry their weapons on airport property. In addition to open carry, last year the Texas Legislature passed a law that gave concealed carry owners the opportunity to immediately leave the airport screening area when security notified him or her that their weapon was discovered. However, the law also seems to provide that it is not a defense if Pete openly carried the weapon, even though he has his CHL. So, Pete may still be in trouble for his open carry folly—although TSA will probably give him a free pass by allowing him to leave the security area and store the weapon in his truck.

Each State is Different.

Pistol Pete might be in some trouble, had this happened in another state.  Attempting to carry a gun through airport security is a state issue—not a federal issue—and thus the penalty, if any, is determined by the jurisdiction where the airport is located.

Tilting the Scales in Your Favor.

Accidents happen, especially when we’re distracted. If you inadvertently attempt to take a handgun through security (whether open or concealed carry) tell the TSA agents it was a mistake, you forgot you had it on you, and that you would like to go back to your vehicle.  Remember, staying calm is likely to get you the best result under the circumstances!

If you are traveling outside of Texas and plan to bring your gun with you, you should review the gun laws for the states you are traveling through.

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Kit Kat Loses Great Britain Trademark Battle for Chocolate Bar Shape

Originally published by Ryan Jones.

NestlĂ© tried to trademark the shape of its popular Kit Kat bar overseas, but it just couldn’t get a break. After a UK court recently […]

The post Kit Kat Loses Great Britain Trademark Battle for Chocolate Bar Shape appeared first on Klemchuk LLP.

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Supreme Court Upholds FERC’s Demand Response Rule, Order No. 745

Originally published by David Poe, David Perlman and Seth Lucia.

In a closely watched case with potential impacts across a broad swath of the electric energy industry, on January 25, 2016, the U.S. Supreme Court reversed the D.C. Circuit’s May 2014 ruling in EPSA v. FERC and instead upheld the Federal Energy Regulatory Commission’s (FERC) demand response rule, Order No. 745, thereby affirming FERC’s jurisdiction […]

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Lawyer Wins $350,000 Judgement In Defamation Lawsuit Over Bad Online Review

Originally published by Gerry W. Beyer.

An appeals court in Florida has upheld a $350,000 judgement …

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