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 […]
The post What If You Die Without a Will in Corpus Christi? appeared first on Kreig LLC.
The U.S. Court of Appeals for the 5th Circuit is accepting comments about proposed amendments to 5th Circuit Rule 47.5.4.
Read the full notice, which includes the proposed redline changes, on the court’s website.
The court is accepting written comments through October 21 by email at changes@ca5.uscourts.gov or by mail at:
Clerk of Court
U.S. Court of Appeals for the 5th Circuit
ATTN: Rule Changes
600 S. Maestri Place
New Orleans, LA 70130
Privacy, Technology and Perspective
Avoiding the Consequences of Undisclosed Endorsements and Testimonials. This week, let’s focus on what’s required to include fair and non-deceptive endorsements and testimonials in advertising.
The explosive growth of television in the 1950s and ’60s brought remarkable new techniques in subliminal and unspoken advertising, including the use of models and settings not to deliver facts but to evoke a pleasing association between the product and the viewer. Soon, the use of sports figures, actors, and other celebrities using the power of their notoriety to endorse others’ products and services became commonplace. Fearing that star-struck consumers might mistakenly believe their heroes were making the endorsements out of their heartfelt beliefs that everyone needed to know the glories of the goods they were endorsing – rather than (at least in part) because the celebrities were being paid to do it – the FTC issued its first Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 C.F.R. Part 255) in 1973. Of course, they have evolved since then.
As made clear by the Guides, staff and judicial interpretations of Section 5 of the FTC Act, case law under Section 43(a) of the Lanham Act, decisions of the National Advertising Division, and much more, the bedrock of fair advertising has always been Truth. If the message(s) received by consumers – i.e., what the consumer takes away, which is not necessarily the same thing as what the ad actually says – is essentially truthful, then it will not be unfair or deceptive. But if the message(s) that the ad communicates (by whatever means) bends or distorts the truth, the ad will be unlawful, even if its spoken or written words happen to be true. And that is the case whether the message(s) are communicated by celebrities, actors, experts in the field, actual users filmed by “hidden cameras,” or Authentic Average Janes and Joes.
While they are not legally binding, the Guides provide the FTC Staff’s interpretations of the law, which are helpful in their details and examples.
The Guides define endorsements and testimonials broadly to mean any advertising message consumers are likely to believe reflects the opinions, beliefs, findings, or experience of someone other than the sponsoring advertiser. Endorsements must also reflect the endorser’s honest opinions, findings, beliefs, or experience.
Among other things, the Guides require:
Endorsers must be bona fide users of the products or services at the time they give their endorsements;
Advertisers are subject to liability for false or unsubstantiated statements made through endorsements or for failing to disclose material connections between themselves and their endorsers, and endorsers also may be liable for statements made in the course of their endorsements;
Advertisements presenting endorsements by what are represented to be “actual consumers” should utilize actual consumers or clearly and conspicuously disclose that the persons are not actual consumers; and
An organization’s endorsement must be reached by a process sufficient to ensure that the endorsement fairly reflects the collective judgment of the organization.
In other words:
· Endorsements should be honest;
· They should reflect the actual experiences of the endorsers;
· Those experiences should be typical (so, for example, if one person loses 50 lbs on a diet, but others usually lose only 10 lbs, the higher figure for weight loss is not typical, and the person losing an unusually-high amount wouldn’t be the right person to endorse the product); and
· All endorsements should “clearly and conspicuously” disclose material connections. Put another way, the fact that you’re being paid to endorse a product could materially affect a consumer’s thinking about your endorsement, so you should disclose it. The updated Guides have even added a definition for “clear and conspicuous” as a disclosure that “is difficult to miss (i.e., easily noticeable) and easily understandable by ordinary consumers.” (255.0(f)) (e.g., #ad #sponsored [Post follows]).
The Digital Age has brought as many changes to advertising as television did in the 1950s and 60s, with new generations of eyeballs encountering new challenges to Truth. Where once actors, sports heroes, doctors, and others earned their “celebrity” status through accomplishments in their field, which (presumably) would entitle their views to respect, today “influencers” have emerged who are essentially famous for being famous and encouraging people to follow their leads in dress, alcohol, leisure, and diversions. Some things have changed dramatically, such as whole new industries like crypto. Other things haven’t changed at all, like fake reviews, spreading disinformation, and especially advertisers’ and celebrities’ disinclination to pop the balloon of consumer adoration by disclosing that they are, after all, being paid.
The May 2022 latest update to the Guides addresses these issues, partly by adding subsections on endorser liability (255.1(e), intermediary liability (think ad agencies and PR firms) (225.1(f)), and an admonition that advertisers should not take action to distort or misrepresent what consumers think of products (255.2(d)). (Note: The manipulation and distortion of online reviews have become hot topics, and the Guides have some helpful examples, including examples of appropriate neutral screening techniques for online reviews and inappropriate payments of incentives for positive online reviews).
All of this information and more appears in the most recent version of the Guides, a link to which follows:
On Monday, October 3d, the Securities and Exchange Commission (“SEC”) charged celebrity Kim Kardashian for unlawfully promoting a crypto security, EthereumMax, without disclosing that she was being paid to promote it. A link to the SEC’s press release follows:
https://www.sec.gov/news/press-release/2022-183
Kardashian is one of many crypto influencers accused of “shilling” cryptocurrencies. Note that the word “shill” is used in the jargon-heavy crypto world specifically to mean “to promote or endorse some crypto in a way that is misleading or insincere, in return for money or some other interest (often tokens).” YouTube is full of influencers who are rumored to be “shillers.” However, the action against Kardashian by the SEC is expressly designed to “serve[] as a reminder to celebrities and others that the law requires them to disclose to the public when and how much they are paid to promote investing in securities.”
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Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.
The Texas Department of Health and Human Services Commission can offer grandparents like yourself multiple benefits options to be able to assist you with the needs of your grandchildren while they are living in your home with you. Taking on the responsibility of caring for grandchildren is a significant step for you to take. After caring for your children, you are now shouldering the burden of caring for another generation of children. Whether this is a permanent move to your home, or only temporary, here is some important information regarding benefits that are available for you through the State of Texas.
Monthly Temporary Assistance for Needy Families is a payment from the State of Texas for families like yours to help pay for essential items like food, clothing, shelter, utilities, and other basics of everyday life. Depending upon how much money you earn in income per month as well as the resources and assets that you own you may be able to get a one-time TANF payment. Additionally, you may also be able to get monthly TANF payments for your grandchildren only or monthly TANF payments for both you and your grandchildren.
You do not need to have custody or conservatorship rights regarding your grandchildren to apply for these benefits. This means that you do not have to have court orders which place your grandchild with you in your home, confer conservatorship rights upon you, or anything else like this. However, your grandchild must be a relative of yours and you must be caring for your grandchild in your home. You cannot drive across town and babysit your grandchild at your son’s home, for example, and expect to be able to receive TANF benefits as a result.
One factor to consider when it comes to receiving TANF benefits for your grandchild is that all sources of income for your grandchild will also be considered. Your grandchild may benefit from “income” sources like child support, cash medical support, or Social Security survivor’s benefits. As a result, those benefits will need to be reviewed to determine eligibility, as well. One-time cash payments of $1000 may be available to you as a grandparent, as well.
This is limited to a one-time payment only and it does not matter how many grandchildren you are caring for the one-time payment is limited to $1000. When it comes to any kind of benefits that you may be able to receive for taking care of your grandchildren it would make sense for you to start keeping track of your income. Any documentation like paystubs or tax returns that you can dig up would help. When you apply for these benefits, you will be asked to verify your assets so bank account information, rent subsidies, or proof of any other benefits that you receive would help determine how much in TANF you may be awarded.
SNAP food benefits are intended to assist people with income problems to be able to afford healthy food for themselves and their families. As a grandparent you and your grandchild, if they live with you, may be able to get SNAP benefits if your income and assets meet program rules. This is a benefit that is based on how many people live in your household. The more people who live in your household the greater amount of the benefits that you may be able to earn. Again, this is a situation where keeping track of your income, assets, and bank account statements can help you be prepared when applying or inquiring about eligibility. Statements from other government programs that you receive care from are also important to have organized.
Medicaid is a health care program that is designed for children, people over the age of 65 as well as people with disabilities. You and your grandchild may also be eligible for Medicaid if your income and resources meet the specific program guidelines of Medicaid. Medicaid is a great resource for your grandchild because it covers their doctor’s visits, such as seeing a pediatrician for well-child visits. Medications are also covered in addition to vaccines that they may need for school. Hospital care, dental care, glasses, and types of mental health care are covered by Medicaid as well.
If you cannot qualify your grandchildren for Medicaid, then the Children’s Health Insurance Program (CHIP) is also a possibility for you to investigate. If there is no health insurance available through your employer or that of your grandchild’s parents, then you should check out CHIP. The same types of services discussed earlier regarding Medicaid also apply to CHIP.
These are just some of the more well-known programs that are administered by our state government here in Texas. There are a lot of local resources that you can and should investigate when you are caring for your grandchild consistently. It’s almost like applying for scholarships as a high school student. If you apply for 500 scholarships you will probably only win 10 or so, but those 10 can make a huge difference in your budget when you are going to college.
I think that is an incredibly useful lesson when it comes to the position that you are in as a caretaker for your grandchildren. It is well worth the effort to investigate these programs. Health insurance and things of this nature can be the difference between your child being able to take advantage of certain procedures and certain types of care. Otherwise, you may be limited to doctor’s offices that accept cash payments which may not offer the type of care that your grandchildren need.
Food pantries are a great resource of which there are many in Houston. The Houston Food Bank is probably the most well-known but you need only look for resources in your area as far as churches and other non-profits that offer food banks to learn more about what is out there for your grandchild. Do not underestimate the available resources. Also, if you cannot afford food for your grandchild but need to care for him there is nothing wrong with that. You are not doing anything wrong by inquiring about help. Remember that you are going above and beyond when it comes to the life of your grandchild, and you should not necessarily be expected to be able to provide all the food that he or she would need- especially not at first. While you adjust to your “new normal” you can look into these resources and go from there.
Does your grandchild’s school have after-school programs/daycare or childcare of any sort? If so, then you may need to investigate this by necessity. One of the major reasons why many grandparents shy away from caring for a grandchild on a full-time basis is that they still need to work. If you are in your fifties or sixties and otherwise in good health, then you are probably still working. If so, your work hours may not allow you to head out until 4:00 or 5:00 pm. Most elementary schools let out around the same time. Middle and high schools were let out even earlier.
This is a practical consideration to think about when deciding whether to take on the hefty responsibility of caring for a grandchild. After-school programs are becoming more popular as parent work hours shift in the months after the pandemic. Even if your child joins a club, group, activity, or sports team that can count as childcare from 3-4 p.m., giving you enough time to make it home before they catch a late bus home. Getting creative is the name of the game when you find yourself caring for your grandchild. Whether that creativity centers around childcare, food, shelter, or anything in between. If you do not think creatively or “outside the box” you probably won’t be willing to take on the responsibility at all.
We have also talked about the resources available to you when it comes to medical care for your grandchild. You should investigate every program available for you, your grandchild, and your spouse when it comes to making sure that you all have health insurance of some kind in place. Even if it is minimal or just covers primary care doctors’ visits and prescriptions. It is better than nothing. One of the leading causes of filing bankruptcy is not having health insurance coverage. This is not to say that you are going to go bankrupt because you’ve chosen to care for your grandchild, but this is still a concern for many families.
There is a website out there that can help you sort through all the different benefit options available in Texas: YourTexasBenefits.com. This website will also help you to find a local office and even obtain assistance in preparing paperwork and other forms that you may need to follow through on asking for benefits.
If you are a grandparent who is considering caring for your grandchild on a full-time basis then you are probably someone with a big heart who is willing to shoulder a great deal of responsibility without asking for much in return. However, the responsibility that you will be taking on with your grandchild is probably the most significant challenge of your life. With that said, Texas grandparents like you have options available to you for assistance and support.
Finding yourself in a position where you want to try and win custody of your grandkids probably means that you know your grandchildren are in a bad situation. It could be that your child is in prison or is on their way there. The same could be true for your child’s spouse or partner, and now your child is left without many options for childcare or income. Whatever the situation, you need to know your options as far as how to win custody of your grandchildren if you believe that doing so is in their best interests.
Unless your child and their co-parent agree that you should be able to have custody of your grandchildren you will engage in a contested child custody case with your child and/or their co-parent. With the presumption being that parents act in the best interests of their child, not seeing your grandchildren as often as you’d like is not necessarily something you can fight. That is unless you have an established relationship with your grandchildren and can prove that not seeing you is detrimental to their physical and/or mental well-being.
Here are the details on how to file a custody case in that instance. First, you need to be able to establish that your grandchild has lived with you for at least the past six months. Even if your grandchild no longer lives with you currently, he or she could have resided with you in the past three months for the previously stated six-month period. So long as the separation happened recently you will be ok to file a custody case.
Next, you need to prove that your grandchild’s well-being is at stake when it comes to remove you from their lives. Again, the presumption in Texas is that if a parent decides on behalf of their child that he or she is acting in the best interests of the child. Now, that can be rebutted with sufficient evidence, but the general idea is that parents make good decisions on behalf of their children and do so with the child’s best interests in mind. The alternative to this is that any relative, hypothetically speaking, could interject themselves into the life of a child whenever a questionable decision is made by a parent. As a result, the state legislature does not want even well-meaning relatives to get in between a parent and their child unless it is necessary.
There may already be a child custody case that has been filed with a family court in your area. You should investigate that before filing an independent case. You may be able to intervene in that lawsuit rather than file your own. Intervening into a lawsuit for custody is not a sure thing as a grandparent, however. You must show the court that you have a substantial amount of past contact with your grandchild. Caring for them daily, having vacations, time with them, and a knowledge of their activities are great ways to establish that level of past contact.
Next, you would need to be able to prove that being denied custody or time with you is hurting your child. Additionally, their living conditions or even the caretakers of your grandchildren need to be in a position where they are hurting the well-being of your grandchild, physically, emotionally, or both.
This can be a heavy burden to lift. Grandparents have very few established rights in Texas when it comes to maintaining a relationship with their grandchildren. For someone like you who has a keen interest in the well-being of your grandchildren, this can be a difficult pill to swallow. However, there are ways for you to gain an upper hand in a potential family law case involving custody of your grandchildren.
First, you need to determine the extent of your actual relationship with your grandchildren. This does not mean that you don’t love your grandchildren if you figure out that maybe your relationship with them is not as well-established as you had thought. You may live far from them or otherwise have a physical impairment that does not make seeing them practical or easy. That’s ok. There is nothing wrong with acknowledging the limits of your relationship with your grandchildren. Your heart was in the right place in wanting to move forward with a case no matter the obstacles in your way.
On the other hand, if you have thought through the issues and want to pursue a child custody case then organizing your case is important. Do not wander into a family law case without first planning out the steps. You won’t get any credit from the family court judge for having good intentions. Evidence is key. Establish a timeline of events, your specific level of care with your grandchildren as well as information about how your grandchild is being harmed by not having contact with you. This is what you need for a successful grandparent-custody case.
Hiring an experienced family law attorney with the Law Office of Bryan Fagan is a great first step in a grandparent-custody case. Our attorneys and staff have worked with many grandparents in your circumstances. We can help you determine if you have a case to move forward with and help you win at the court level once your case is filed.
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 your rights as a grandparent as well as custody cases in Texas.
Jonathan James shares the benefits of pre-marital and post-marital agreements, and whether one of them might be the right option for both you and your future spouse.
The post Pre-Marital and Post-Marital Agreements: The Gold Standard for Protecting Assets appeared first on Goranson Bain Ausley.
Last June the Corpus Christi Court of Appeals decided that the right to store oil in a salt cavern belongs to the surface owner. In Myers-Woodward, LLC v. Underground Services Markham, LLC, et al., No. 13-20-00172-CV, the court addressed a dispute between Myers-Woodward, which owned the surface estate and a royalty on minerals, including salt, in a tract in which Underground Services owned the salt. Underground Services mined and sold salt by solution-mining from a salt cavern under the land. Myers-Woodward disputed how Underground calculated its royalties on the salt. Underground also asserted that, as owner of the salt, it has the right to use the resulting salt cavern to store hydrocarbons. The court ruled in favor of Underground on its method of determining the royalties owed, but it ruled in favor of Myers-Underwood on the right to use the resulting salt cavern, holding that Myers-Underwood held the storage rights, a part of its rights as owner of the surface estate.
Underground cited Mapco, Inc. v. Carter, 808 S.W.2d 262 (Tex.App.–Beaumont 1991), rev’d on other grounds 817 S.W.2d 686 (Tex 1991), in support of its claim to storage rights. Mapco has often been cited as lending uncertainty to the issue of whether the surface owner owns the pore space under its land. The Beaumont court in Mapco, without citing any authority, held that the mineral owner had storage rights for underground storage facilities. After reviewing other authority, the Corpus Christi court concluded that, contrary to Mapco, “the well-recognized, decisional law states that the mineral estate owner owns the minerals but not the subsurface. … Therefore, we decline to follow Mapco in this case.”
Storage rights have become a more important issue recently with the advent of CO2 sequestration projects in Texas. Although the court did not cite Lightning Oil v. Anadarko, Lightning would seem to support its conclusion as well.
By Kent Altsuler
Remember when mediations were in person? Since March 2020, I’ve conducted hundreds of mediations, and almost all of them have been by Zoom. Zoom mediations started because of health concerns, of course. Even though the coronavirus appears to be finally in check, it seems that this trend in favor of Zoom may go on forever. Aside from safety benefits, remote mediations are good because adjusters and representatives don’t have to travel. So even though some people prefer to share an actual conference room with their opponents during the general session of a mediation, Zoom is obviously here to stay. The purpose of this article is to discuss the traditionally important aspects of mediations, while taking into account the reality—and potential effect—of this development.
Purpose of the Mediation
The first thing to consider when formulating your approach to a particular mediation in a particular case is: Why am I mediating? Do I actually want to settle this case? Is there information that I’m only going to get during mediation? Do I want to eyeball my opponent in a non-deposition environment? Or am I only mediating because the judge ordered me to?
The limitations placed on human beings by Zoom must be considered. While they are now a mainstay, Zoom mediations can only do so much. After two years, I’ve finally come around to the notion that they can be almost as effective as in-person mediations when it comes to actual settlement results. Even though parties feel less pressure with Zoom than they do in person (less pressure to settle, less pressure to move, and less pressure to be affected by someone else’s behavior), enough of my Zoom cases are settling that I now have confidence that Zoom is not a compromise killer in and of itself. However, it’s almost impossible to assess a party-witness by Zoom; in fact, many times they are not even visible on the computer screen. Additionally, it’s more difficult to meaningfully share or exchange documents over Zoom than in person. In many ways, a Zoom meeting is just a glorified phone call, which sometimes is not the ideal way to experience mediation.
Length of Time
Half day or full day? My rule of thumb is no half-day mediations if liability is an issue. If we’re only going to be talking about damages, a half day is usually sufficient. Zoom indirectly impacts this decision in a couple ways. One advantage to Zoom is that going back and forth between caucus rooms is as easy as a click of a mouse. But if your mediation is going to require conceptual conversations, those communications take longer no matter whether the mediation is in person or remote. Finally, if no pre-mediation negotiations have occurred and the parties are extremely far apart on the dollar figures, then the extra cost of a full-day session may be justified.
Opening
None of the participants in my mediations are doing full-blown, old-school openings anymore. It’s really difficult to give an opening over Zoom with the same punch as one that is given in person. Also, with the advent of Zoom, there is an enhanced desire to not waste time with posturing and to just get down to the business of negotiating potential settlement amounts. Here is how I handle this new sentiment. Because a mediation is ultimately the attorneys’ show, I don’t insist that they pound the table or present a power point if they don’t want to. But in those cases where the parties’ confidential mediation memos are simply not enough to fully educate me on the case, I encourage them to stick around in the main Zoom room together so that we can have a conversation about the non-controversial aspects of the case (where the negotiations left off, what’s really going on here, the amount of alleged damages that have already been disclosed, etc.). This minor adaptation has proven to be crucial in resolving the most-difficult-to-settle matters that I’ve encountered.
Two Traditional Problems That Are Made Even Worse by Zoom
Over the course of the past two years, I’ve observed a small number of problems that are exacerbated by the use of Zoom: (1) problems created by the initial demands/offers; and (2) problems created by the misuse of brackets.
Let’s talk about initial demands and offers first. Every lawyer has his or her own negotiating style. Some experienced attorneys swear that over time they’ve attained superior results for their clients by starting out negotiations with hyper-aggressive numeric positions. I’m talking about the attorneys who come out of the gate in a case lacking a real liability dispute with an offer of $2,000 when the other side has had two surgeries and incurred over $100,000 in medical expenses. I’m not going to be able to teach an old dog new tricks, but I have found that this is not constructive. It gets the mediation off track right away.
And with Zoom, it’s even harder than before to get it back on track. As we all know, Zoom can be impersonal. It permits lawyers and stakeholders to “attend” a mediation while actually working on other things. Ideally, the beauty of a mediation is that everyone is focused on the same case on the same day. It’s harder to make sure that’s the reality with Zoom. For this reason, I would recommend that initial demands and offers be at least slightly reasonable. It’s hard enough to keep someone interested by Zoom, and a demand or offer that feels like it’s not made in good faith can lose someone for the rest of the day.
The other problem that seems to be getting worse in the Zoom era relates to brackets. Lots of people hate brackets. Some don’t know how to use brackets. Brackets, which are utilized when normal back-and-forth negotiations break down, are devices that limit the parameters of a potential settlement going forward. For example, a defendant may propose a bracket “with $50,000 on the low end, and $200,000 on the high end” (which on the written page looks like this: “[$50,000/$200,000]”). That means that the case will, by definition, not settle in that particular round, but it might eventually settle somewhere in the $50,000 to $200,000 range. It also means that the defendant would be willing to go up to $50,000 if the plaintiff is willing to go down to $200,000. Coming up with a good bracket takes time.
The topic of brackets warrants a whole article of its own. I actually like brackets because they give all of us in the mediation something to talk about when things seem bleak, and the mere continuation of communication can sometimes lead to resolution. But I have found that with Zoom, one misguided bracket proposal can waste a great deal of time and mental energy—and lead the parties down the wrong rabbit trail. We’ve all had mediations where we’ve been left alone in our room for way too long; with Zoom, that problem is magnified. So if one side is working on its counter to a bracket proposal for 20 minutes, the other side may lose interest altogether. Although I always offer the lawyers input on potential bracket proposals, I’ve learned to mitigate this waiting problem by checking in on all the different Zoom rooms from time to time no matter whose turn it is in the negotiations. It can be difficult or even uncomfortable to stop a Zoom conversation to pop in on the other room, but it can keep the mediation from veering off in an unfruitful or hopeless direction.
Mediator’s Proposals
A mediator’s proposal is when—after the parties’ negotiations have stalled without resolution—the mediator picks a number that he or she has some reason to believe both sides might accept. After I issue the proposal, I don’t tell either side about the responses to it unless both sides accept my terms. When that happens, I obviously inform everyone that they have a deal.
Parties have requested more mediator’s proposals from me since mediations have gone remote. But the effect that mediator’s proposals have has not been altered by this new landscape. This is most likely because the issuance of the mediator’s proposal usually takes place after the mediation itself. For example, a normal situation for me is to (1) conduct the remote mediation; (2) facilitate negotiations; (3) get the parties as close to settling as possible during the mediation; (4) field (and eventually grant) a request from one or both sides for temporary impasse; and then (5) email around a mediator’s proposal the very next day. Most of my cases settle by mediator’s proposal. Even COVID can’t stop a good deal from getting done.
Conclusion
In summary, the following are my items of advice for making Zoom mediations as effective as possible:
Good luck at your next mediation.
Kent Altsuler is a partner in the Houston office of Lewis Brisbois. He has been certified as a mediator since 2011.
