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Sponsored Content: How is Cloud Computing Secured?

In today’s digital workplace, organizations are deciding to outsource services to the Cloud. Cloud computing is transforming IT, there are significant benefits to this which can introduce real cost savings and an abundance of flexibility to businesses.

When choosing to move to the Cloud, IT services, data, and infrastructure are transferred to a Cloud Provider. Essentially, the IT systems are moved to a secured data center somewhere in the world and clients just need a computer and internet connectivity.

Data is a valuable asset and must be protected, it is critical to understand your Cloud Security compliance as we are constantly reminded of Malware/Virus outbreaks, Ransomware attacks, Data misuse scandals and privacy breaches.

How is my data protected?

The security landscape is forever changing, frequent vulnerability scanning and fixes must be performed by security experts to keep one step ahead. Customer data networks and Cloud provider management networks must be segregated and encrypted to ensure only privileged users have access to sensitive client data, on a need-to-know basis.

Modern data centers are constructed to stringent physical and technical security safeguards, your Cloud provider must have audited access to the buildings, 24/7 security patrols, and extensive security camera protection. IT Systems must be protected with complex passwords and strong authentication methods.

Cloud Computers need to be constantly monitored and maintained to offer the best protection, the Cloud Provider is responsible to seamlessly manage and guarantee all the underlying server infrastructure is updated and regularly patched to provide robust antivirus protection.

Who has access to my data?

Data must be controlled and managed to provide greater data integrity standards. When organizations move to the Cloud, the IT Services are usually moved from the organizations head office. This immediately provides increased security as it separates the clients from their servers.

A virtual private network (VPN) is created which can grant site-to-site access to the Cloud. All other access can be restricted, allowing only privileged VPN users secured access.

Cloud Computers are built with many software-defined security policies which control user account privileges. Each user account has a unique set of security rights, this dictates which computer service and what data a user account can have access too.

Strict deny permissions are implemented to prevent users from accessing unauthorized files that are not within the user’s remit. These permissions can be managed centrally and are used to create a bespoke set of rules to control data access.

Where is my data located?

Cloud Computing providers offer 3 distinctive services; private, public and hybrid Cloud solutions. Finding the Cloud solution that matches your organization’s IT strategy is essential. This decision will ultimately affect where your data is located, which is extremely important when considering data privacy laws and data protection compliance.

For Organizations that handle secret, confidential and private data, private and isolated Cloud offerings would be beneficial. This will guarantee the user that data is geographically located in an appropriate data center for compliance and on systems for exclusive use.

Public Cloud is internet facing, public accessible Cloud Computing services. This is for companies who have no confidential data, typically this may be used on shared web hosting for public information.

Hybrid Cloud offers the best of both worlds, client private data can be stored in a secured location, and public services can be leveraged into a public provider.

If you are looking for a cloud hosting solution and are still not sure what you need, or need healthcare compliant HIPAA hosting then contact us and one of our sales engineers will be happy to guide you further.

About Moazzam Adnan Raja

Moazzam Adnan Raja has been the Vice President of Marketing at Atlantic.Net for 14 years. During Raja’s tenure, the Orlando-based, privately held hosting company has grown from having a primarily regional presence to garnering and developing attention nationwide and internationally. In collaboration with a skilled and dedicated team, Raja has successfully led a full spectrum of marketing campaigns, as well as handling PR work with major news outlets and the formation of key strategic alliances.

Original author: Guest Blogger
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Texas Gavel Awards presented at FOIFT annual conference

From left: State Bar of Texas President Joe K. Longley; Jason Wheeler of WFAA-TV; Eleanor Dearman of the Corpus Christi Caller-Times; Anita Hassan, formerly of the Houston Chronicle; Jessica Savage and Veronica Flores of KRIS-TV, and Rudy England, chair of the SBOT Public Affairs Committee.

State Bar of Texas President Joe K. Longley and SBOT Public Affairs Committee Chair Rudy England welcomed journalists from around the state as winners of Texas Gavel Awards.

The Texas Gavel Awards recognize excellence in journalism that fosters public understanding of the legal system; educates the public about the rule of law, the legal profession, and the judicial branch of government; and discloses practices or procedures needing correction to improve the justice system.

Winners included Anita Hassan, formerly of the Houston Chronicle and now a member of an investigative team at the Las Vegas Review-Journal; Eleanor Dearman of the Corpus Christi Caller-Times; Krista M. Torralva, formerly of the Caller-Times and now a member of the San Antonio Express-News reporting staff; Jason Wheeler and Tanya Eiserer, both of WFAA; and Jessica Savage, Veronica Flores, Cameron Gorman, and Michael Salazar of KRIS-TV in Corpus Christi.

To read their winning entries and short bios of the recipients go to texasbar.com/gavelawards.

The awards were presented as part of the Freedom of Information Foundation of Texas’ annual conference and awards luncheon. At that same luncheon, First Amendment attorney Laura Lee Prather was awarded the foundation’s James Madison Award. The award honors those who demonstrate outstanding commitment to upholding the principles of the First Amendment and open government.

Texas Comptroller Glenn Hegar was keynote speaker at the luncheon.

Original author: Amy Starnes
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State Bar Board of Directors to meet September 28 in Austin

The State Bar of Texas Board of Directors will hold its quarterly meeting Friday, September 28 in Austin.

The meeting will begin at 9 a.m. at the Renaissance, 9721 Arboretum Blvd. Members of the public are welcome to attend.

Click here to view the meeting agenda and backup materials.

Original author: Lowell Brown
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Discounts for home improvement

Your Member Benefit Program has everything you need to spruce up your home without breaking the bank. Check out the Home & Garden page for more info.

SunPower Solar — Solar power lowers your monthly electric bill and helps protect the earth for the next generation. When you sign up for a free home evaluation from SunPower, you’ll get a rebate of up to $1,000. Whirlpool — With Whirlpool’s Inside Pass Program, you can enjoy substantial savings on trusted appliances, accessories, and other products for your home. Perks include exclusive promotions, easy payment, and more. ADT Authorized Dealers — ADT provides innovative security products and services. Get a free ADT monitored home security system, an $850 value, when you sign up for a new ADT monitoring service with Safe Streets USA. iRobot — State Bar of Texas members receive 15% off select iRobot home-cleaning robots. All robots come with a 30-day, money-back guarantee and a one-year limited warranty. Corelle Brands — With the Corelle Brands Employee Purchase Program, you can save 20% on cooking and cutlery products. Available brands include Pyrex, CorningWare, and more. Easy Canvas Prints — Easy Canvas Prints lets you turn your treasured photos into works of art. Enjoy free shipping and 75% off a range of sizes. Finecraft Rugs — The Finecraft Designer Rugs collection includes rugs from Belgium, Turkey, and India. State Bar of Texas members save 50%.

Current offers provided by Beneplace.

For more information on other discounts you’re eligible for as a member of the State Bar of Texas, visit texasbar.com/benefits.

Texas Bar Private Insurance Exchange
The Texas Bar Private Insurance Exchange is a multi-carrier private exchange designed for State Bar of Texas members and their staff and dependents. Available to both individuals and employer groups, the exchange offers a wide range of health insurance choices and more.

State Bar of Texas – Benefits & Services

Lifestyle
Spend time on you—life doesn’t have to be all work and no play. Browse offers Office
Make your practice more efficient with new tools and programs. Browse offers Travel
Make your plans for anything and anywhere, from a much-needed vacation to a quick business trip. Browse offers Insurance and Finance
Get peace of mind with health insurance and a retirement plan that work for you. Browse offers Technology
Get up to speed on everything from building a website to billing clients. Browse offers Additional Benefits
Look through hundreds of offerings to find just what you need—and things you didn’t even know about. Browse offers
Original author: Staff Report
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Hours for a Cause provides innovative way for attorneys to help

It’s no secret that the Texas legal community provides pro bono services, helping those in need. But while attorneys across the state may want to offer their assistance, they may not always have the time or necessary skills to do so. That’s where Hours for a Cause steps in. The website encourages lawyers to pledge to donate a day of billable hours to an organization that provides pro bono services.

Through the website, attorneys fill out an online pledge form, committing to match pay from a work day toward a nonprofit legal service organization that provides pro bono services. The site currently focuses on organizations that are helping with immigration issues, such as American Gateways, Kids in Need of Defense, and Refugee and Immigrant Center for Education and Legal Services.

Hours for a Cause was created by Liz Nielsen, of Austin-based Nielsen Law. During the recent family separation crisis, Nielsen wanted to help but needed to get creative with her busy estate-planning practice and lack of knowledge on immigration. Her solution: to donate a day of her billable time to a legal services organization that provides pro bono services to asylum seekers.

“It occurred to me that there were probably lots of attorneys like me, who wanted to give back in the wake of the immigration crisis but didn’t have the time or skills to provide pro bono legal representation,” Nielsen said.

She then created Hours for a Cause so that other attorneys could pledge to support causes they feel passionate about. Hours for a Cause sends out email reminders about pledges. Attorneys are instructed to donate directly with their preferred organizations.

For more information on Hours for a Cause and how to donate, go to hoursforacause.com.

Original author: Eric Quitugua
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Secretary Pablos Convenes Border Trade Advisory Committee Meeting With Transportation Infrastructure And Technology Focus

Texas Secretary of State Rolando Pablos today convened the second Border Trade Advisory Committee (BTAC) meeting of 2018, his fifth since taking office, focusing on cross-border transportation infrastructure and technology.
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Secretary Pablos Reminds Texans To Register To Vote By October 9th, Plan Their Trip To The Polls

Texas Secretary of State Rolando Pablos today reminded all eligible Texans to register to vote by October 9th and to make all necessary preparations to be able to cast a ballot in the upcoming November 6 General Election.
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Top 10 from Texas Bar Today: Confusion, Confirmation, and Conviction

Originally published by Joanna Herzik.

To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.

10. Does silence mean “without prejudice”?David Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas

9. Attorney Marketing: Use Mass CustomizationCordell Parvin @cordellparvin of Cordell Parvin LLC in Dallas

8. Blood-Stain Pattern Forensic Analysis In Texas Conviction is Flawed, Expert SaysBroden & Mickelsen, LLP @BrodenLaw in Dallas

7. Austin COA Affirms Order Confirming $16 Million Arbitration Award Despite Lack of Hearing RecordBeth Graham of Karl Bayer @karlbayer in Austin

6. Attempt to Prove a Texas Partnership FailsCharles Sartain and Ethan Wood of Gray Reed & McGraw, P.C. @GrayReedLaw in Dallas

5. Nueces County vs. San Patricio County: Texas’ Jarndyce v. JarndyceJohn McFarland of Graves Dougherty Hearon & Moody @GravesDougherty in Austin

4. Mediator-Attorney: Proactive Avoidance of Party ConfusionAndrew Tolchin of Tolchin Law Firm, PLLC in Angleton and 713 Mediator in Houston

3. Hiding in Plain Sight: Often Overlooked Problems with Letters of IntentMark G. Johnson and Ladd Hirsch of Winstead PC @WinsteadPC in Dallas

2. Demonstrating Your Value to Your Law FirmStacey E. Burke of Stacey E. Burke P.C. @StaceyEBurke in Houston

1. Want to Improve Your Trial Skills? Be Cognizant of the ClockDavid K. Bissinger of Bissinger, Oshman & Williams in Houston

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Joanna Herzik
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Demonstrating Your Value To Your Law Firm

Originally published by Stacey E Burke Blog.

As more potential job candidates flood the workforce, law firms have ample opportunity to hire more economical employees… potentially replacing higher paid existing employees. In order to maintain a semblance of job security, you have to work that much harder to both understand what “value” your law firm needs from you and how you can demonstrate you are fulfilling their needs and more.

Employees who know how to promote themselves and their contributions in the right way generally get ahead faster, even before their higher-performing peers. The first and often biggest obstacle is that law firms don’t always do a great job of letting employees know what job duties or metrics will determine their success; therefore, it can be very difficult to know if you’re meeting the firm’s standards.

How Does a Law Firm Define Value?

Value

Value can be defined as the benefits received after accounting for the costs to obtain the benefits. For example, for an associate attorney in a law firm, the firm’s measurement of his or her value would consist of what the associate brings to the table (e.g. hours billed, new clients brought in, etc.) minus their salary, benefits, and general overhead costs. In today’s fickle and competitive legal market, knowing how to demonstrate your value to your law firm is more important than ever before. And this value assessment applies not just to lawyers, but also to administrators and legal staff members.

Viewing value another way – the law firm is your client and you are providing the necessary services to keep them happy and meet their goals. In doing so, you need to provide value to the law firm’s clients, the lawyers you work with, and the firm as a whole. If you really want to think big picture, you can also be mindful of your value to society as a whole via your contributions through legal work with the firm.

8 Ways to Show Your Law Firm What You’re Worth

Don’t just talk the talk, walk the walk too – you need to demonstrate your value instead of just describing it. Here are eight ways you can make sure your professional colleagues know you are an indispensable part of their organization:

Be a Guide: Show how you can help your colleagues learn something at work that they may not already know or be familiar with, from something simple like completing a time sheet properly to a more complex task like legal research. If someone is new to the law firm, you can help fill them in on the way things are done; but even lawyers who have been with a firm for a while often change roles or dockets or practice areas. If you have valuable insights to share about people, processes, and procedures, do it! Make Your Own Metrics: While some jobs come with built-in, easy-to-understand metrics, most law firm jobs don’t. While some basic metrics like hours billed or hours worked can be helpful, they are rarely sufficient to demonstrate your full value to the law firm. Whether your law firm has its own system or not, you can come up with your own way to measure your value and track your progress by using appropriate metrics. Be consistent and build on your data from week to week in order to tell the story of your success one year or one quarter at a time. Be sure to tie your own success directly to the goals of your law firm and show how you are helping them get achieved. Watch Out For ‘We’: When you are part of a team, practice section, or other organized group, it is easy to say “we” did this or that when you really did the majority of it yourself. Avoid lumping your individual contributions in with everyone else on your team. Teamwork is important, but you won’t get hired or fired as a team, so be sure to own the specific work you’ve done. When In Doubt, Don’t Throw It Out: Save all important paperwork, e-mail, and other forms of data. In many cases, you can clear up confusion later by producing an email where someone “confirmed” a task was completed. Be Adaptable: Ask your coworkers how they prefer to work, such as whether someone is a hands-on micromanager who prefers to be kept in the loop on every small detail or prefers only a daily email update on a project. If they want it, give it to them. Find out what they feel are the priorities for your role and make those priorities your priorities. Check In Regularly: This may be our most important tip. So much future drama can be avoided by checking in regularly throughout the course of a case or project or workweek. Everyone in a law firm works with others, and you never know just how important each “other” will be in determining your value. One approach is to send a weekly email to your supervisor covering what you’ve done in order to keep them apprised of your progress. An email like that often triggers a response where you are told which items to prioritize. While you don’t want to be a narcissistic braggart, you do want to show how you went above and beyond your normal job duties. Listen to Tip Number Four, and keep a record of all of your weekly updates so you can refer back to them when it’s time for your formal performance review or annual bonus. Don’t Just E-Communicate: In today’s age of modern communications, all of us –  especially millennials – are more prone to engage with others exclusively via the impersonal means of email, messenger, or text. Communicating with your coworkers in real life, face-to-face, helps build relationships with them and keeps conversations more personal. Employees who can communicate effectively in person and interact with others to get things done have greater value (especially in a service-based business) than those who can’t or simply choose not to. Develop Your Intensive Value: Intensive value is derived from a specific skill you’ve developed over time. For a litigation paralegal, this can be going with your attorneys to trial. Being known as the “trial paralegal” is a huge coup for a paralegal and often makes him or her one of the most important employees of a law firm. You can develop your intensive value or skills by taking continuing education courses, reading books, blogs, and articles on your topics of expertise, building relationships with well-known people in your field, and knowing when your expertise is or will be needed at your law firm and stepping up to help, even if it is not your job.

We Think You’re Valuable

Sometimes showing up to work on time, maintaining a positive attitude, and keeping your head down at your desk to get your work done are simply not enough to make a law firm understand your value as an employee. Our law firm business development experts work with lawyers and other law firm staff every single day to ensure they add value to their law firms and to their lives. Be sure to let us know how we can help.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Stacey E Burke Blog
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Austin COA Affirms Order Confirming $16 Million Arbitration Award Despite Lack of Hearing Record

Originally published by Beth Graham.


Texas’ Third District Court of Appeals in Austin has affirmed a lower court’s order confirming an arbitration award despite that no transcription of the arbitration hearing was created.  In Dixie Equipment, LLC v. Energia de Ramos, S.A.P.I. de C.V., No. 03-17-00492-CV (Tex. App – Austin 2018), Dixie Equipment, LLC and Dixie Turbine Services, LLC (“Dixie”) entered into two contracts with Energia de Ramos, S.A.P.I. de C.V. f/k/a Deacero Power S.A.P.I. de C.V. (“Deacero”) to procure and assemble certain equipment for a power plant located in Nuevo Leon, Mexico.  Both contracts contained an arbitration clause.  After Dixie purportedly abandoned the project, Deacero filed a demand for arbitration.  In response, Dixie filed a counterclaim against Deacero.

The two companies selected an arbitration panel, agreed to a discovery timeline, and scheduled a final arbitration hearing to take place in Austin, Texas using International Centre for Dispute Resolution (“ICDR”) procedures.  About five months before the hearing, however, Dixie notified the arbitration panel and Deacero that the company was no longer financially capable of participating in arbitral proceedings or paying its share of the arbitration fees.  Despite this, the final arbitration hearing took place as scheduled.

Dixie’s legal counsel failed to attend a portion of the arbitration proceedings and the hearing was not transcribed.  The arbitral panel ultimately issued a default award of more than $16 million in favor of Deacero.  A Travis County trial court confirmed the arbitration award against Dixie and the company filed an appeal with the Third District Court of Appeals in Austin.

On appeal, Dixie claimed the trial court’s order should be reversed because the arbitration panel failed to create a record of the final arbitration hearing.

Dixie points to the established rule in judicial proceedings that a post-answer default judgment will be reversed if the proceeding resulting in the rendition of the default judgment is not recorded. See Smith v. Smith, 544 S.W.2d 121, 123 (Tex. 1976). Dixie then urges, without supporting authority, that the same rule should be applicable to a post-answer default arbitration award, as here. Dixie inquires why should post-answer default arbitration awards receive less scrutiny than post-answer default judgments rendered by publicly elected judges in open court.

In response to Dixie’s claim, the appellate court cited its own 2012 opinion in Vorwerk v. Williamson Cty. Grain, Inc.:

This Court noted that because there had been no record made of the arbitration hearing, it was not possible to know whether the ex parte communication contained new information not already presented to the panel or was merely a summary of evidence introduced at the hearing. See id. at *6. Without a record showing evidence to the contrary, the Court presumed that no misconduct occurred; that the information in the ex parte communication was a summary of information previously conveyed to the panel in the hearing; and that the ex parte communication did not operate to deprive Vorwerk of a fair hearing. See id. The Court concluded, accordingly, that the trial court did not err in confirming the award. See id. In absence of contrary authority, this Court remains committed to the rule followed in Vorwerk.

After that, The Austin court stated Dixie’s assertion that the company’s due process rights were violated “because lack of financial resources barred it from presenting its counterclaim” was without merit.

Dixie did not file with the arbitration panel any proof of its financial inability to pay the required deposit to assert its counterclaim. In June 2016, Dixie’s counsel wrote the arbitration panel asserting that Dixie was “financially unable to continue to defend” against Deacero’s claim. In the same letter, counsel stated that Dixie would be seeking bankruptcy “sometime in the near future.” These assertions were not supported by affidavit or other proof. In its brief, Dixie refers to its net-worth statements filed in the trial court in support of its motion to suspend enforcement of judgment.

Dixie agreed to abide by the rules of the arbitral forum. Those rules state that failure of a party asserting a counterclaim to pay the required deposit will be deemed a withdrawal of the counterclaim. ICDR art. 36.4. In the absence of proof to substantiate Dixie’s claim of inability to pay the required deposit, the arbitration panel was justified in withdrawing the counterclaim.

Finally, Texas’ Third District Court of Appeals in Austin affirmed the trial court’s order confirming the arbitration award.

Photo credit: Christian Frausto Bernal on Foter.com / CC BY-SA

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Beth Graham
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French Chemical Company Indicted in Texas

Originally published by Priyanka Kasnavia.

Harris County Grand Jury Indicts Arkema for Crosby Plant Explosion On Friday August 3, a Harris County grand jury indicted French chemical company Arkema, and 2 officials, for a “reckless” chemical release that resulted in a chemical plant explosion during Hurricane Harvey. After sustaining almost seven-feet of floodwater, the plant lost power did not have […]

The post French Chemical Company Indicted in Texas appeared first on .

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Priyanka Kasnavia
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New City Ordinance Requires San Antonio Pet Owners to Provide Pets with Shade

Originally published by Herrman & Herrman, P.L.L.C..

On this past Thursday, the San Antonio City Council approved and adopted revisions to the City Code that require owners of all outdoor pets to provide shade for their animals to be able to take shelter from direct sunlight when outdoors.

The idea was first sparked earlier this summer when a six-month-old shepherd mix named Molly sustained severe thermal injuries from prolonged exposure to the sun with no shelter. The owners surrendered Molly to the Animal Care Services where she received medical treatment and was able to recuperate.  Since the incident, Molly has now been adopted.

District 8 Councilman, Manny Paelez, along with the Animal Care Services and the Animal Defense league spearheaded the initiative and prepared the revisions to the City Code which was approved on Thursday.  The new law went into effect immediately.

The new revisions included adding the definition of shade to the current code which gives officers the tools to be able to ensure that pets are safe.  Shade can include patios, trees, canopies, and more. Essentially anything that provides the animals shade from direct sunlight and allows them to get out of the heat can be considered shade under the city code.

In a written statement to the San Antonio Express-News, Pelaez said: “adding the definition of shade to our current code brings a critical gap and provides ACS officers with the necessary tools to ensure our pets are safe, especially during the hot summer months.”   The City code previously included various requirements to pet owners to provide animals with “humane care and treatment” but it did not go as far as to require owners to provide shade to the animals.

The new city ordinance can come with civil or criminal penalties and can result in fines up to $2,000.

 

The post New City Ordinance Requires San Antonio Pet Owners to Provide Pets with Shade appeared first on .

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Herrman & Herrman, P.L.L.C.
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Should Employers Include “No Rehire” Clauses In Separation Agreements?

Originally published by Robert G. Chadwick, Jr..

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

When terminating an employment relationship, a separation agreement can be a prudent strategy for managing the risk of a subsequent lawsuit. Such an agreement typically offers monetary or other consideration in exchange for a waiver or release of all claims, including claims of harassment and discrimination.

A waiver or release, however, generally cannot lawfully discharge future claims, including claims based upon denials of applications for re-employment. To manage this risk, it is common for separation agreements to include “no rehire” clauses. Such a clause can include an agreement by a former employee to (1) refrain from applying for or seeking employment, reemployment or reinstatement, (2) waive any  right to such employment, reemployment or reinstatement, or (3) termination of employment if rehired.

Recent developments have nevertheless raised two important questions for employers as to “no rehire” clauses: (1) Are such clauses legal? (2) Should employers include such clauses in separation agreements?

Are “No Rehire” Clauses Legal?

For at least a decade, the Equal Employment Opportunity Commission (“EEOC”) has warned that “no rehire” clauses can be viewed as retaliation against employees who come forward with claims of harassment or discrimination. Despite this warning, federal case law has routinely upheld such clauses. See Jencks v. Modern Woodmen of America, 479 F.23d 1261 (10th Cir. 2007)(employee’s waiver of any right to reemployment or reinstatement was legitimate nondiscriminatory reason for employer’s refusal to subsequently consider former employee for sales position).

Not all states, however, view “no rehire” clauses favorably.

Effective July 1, 2018, a new Vermont law provides: “An agreement to settle a claim of sexual harassment shall not prohibit, prevent, or otherwise restrict the employee from working for the employer or any parent company, subsidiary, division, or affiliate of the employer.” Such a clause is rendered “void and unenforceable” by the new Vermont law.

Section 16600 of California’s Business & Professions Code states, subject to certain exceptions: “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” On July 24, 2018, the Ninth Circuit in Golden v. California Emergency Physicians Medical Group addressed the legality under Section 16600 of a provision of a settlement agreement whereby a physician waived “any and all rights to employment with CEP or at any facility that CEP may own or with which it may contract in the future.” The Court held the clause survived to the extent it prevented the physician from working at facilities owned or operated by CEP, but failed to the extent it (1) prevented the physician from working for employers that have contracts with CEP, or (2) permitted CEP to terminate the physician from existing employment in facilities not owned by CEP.

Section 16600 of California’s Business & Professions Code is not dissimilar to the laws of other states.  It is safe to assume, therefore, that other states have taken notice of the broad interpretation by the Ninth Circuit of Section 16600.

Should Employers Include “No Rehire” Clauses in Separation Agreements?

The risk of omitting a “no rehire” clause from a separation agreement is not limited to a single failure to hire claim from a former employee. A disgruntled former employee can conceivably file a new claim as to each open position for which an application is denied.

Certainly, the new Vermont law provides few options for Vermont employers. Otherwise, the risks currently presented under state law, and to a lesser extent federal law, do not yet dictate the abandonment of “no rehire” clauses.  What these risks do mandate is that broad and overreaching clauses be avoided in favor of skillfully and carefully drafted clauses.

So, to answer the question presented by this article’s headline, most employers should include “no rehire” clauses in their separation agreements. What form these clauses should take depends upon the advice of experienced legal counsel.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Robert G. Chadwick, Jr.
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Risks Of Employee No-Poach Agreements

Originally published by Guest Contributor.

Craig Lee and Will Woods from Baker McKenzie’s Antitrust & Competition team shared the following update regarding no-poach agreements:

In July 2018, State Attorneys General from 11 states formed a coalition to investigate no-poach agreements in franchise contracts that restrict the ability to recruit or hire employees from the franchisor or another franchisee of the same chain. As part of the investigation, the coalition requested information about no-poach policies and practices from several fast food franchises.

 

This focus on no-poach agreements follows the US antitrust enforcement agencies’ policy guidance issued in October 2016 warning that agreements among companies—even companies that do not sell competing products, but merely compete for employee talent—would be treated as criminal antitrust violations like hard-core cartels. Companies and individuals, including human resources professionals, who agree not to solicit or poach employees from other companies could face criminal fines and jail sentences. In April 2018, the US Department of Justice filed its first enforcement action since the guidelines were issued. In that case, the no-poach conduct was enforced civilly because the conduct ended and was reported before the guidelines were issued. Officials from the Department of Justice have repeatedly stated their interest in investigating no-poach agreements and warned of the criminal penalties, including prison time, for violators.

Also in April, the Hong Kong Competition Commission issued an advisory warning businesses not to discuss or agree with competitors matters relating to hiring employees, such as agreeing not to “poach” each other’s employees. The advisory states that such discussions can violate competition law, even where the businesses involved are not competitors in the traditional sense. Other jurisdictions have also increased their interest in no-poach agreements.

What this means for you

All businesses, especially franchised businesses, need to be concerned about any no-poach provisions in their contracts. Even if the provisions are not enforced, their existence presents considerable risk. Many franchises have elected to remove such provisions from their contracts. However, this alone does not eliminate all the associated risks.

Franchised businesses and other companies are susceptible to class-action lawsuits from current and former employees for four years (and sometimes longer) after the no-poach provisions are removed from contracts. These lawsuits can last for years and grow as more plaintiffs are identified. Agreements—even unwritten or “gentleman’s agreements”—between unrelated companies, including between independent franchises, not to hire or solicit employees raise risks of civil and criminal enforcement. Franchises doing business outside the United States have risks of scrutiny of no-poach provisions by foreign authorities.

What to do next

Review contracts for any no-poach provisions. Consult with an attorney about whether to remove or modify such provisions even if they have not been enforced. Discuss internally, especially with your HR department, the risks associated with no-poach agreements. Review compliance training to ensure no-poach agreements are addressed. If any inappropriate conduct is identified, consult with an attorney about options to address and potentially to self-report to authorities. The Department of Justice can provide immunity from criminal antitrust enforcement, subject to several provisions, if the conduct is voluntarily disclosed in a timely manner.

Please contact your Baker McKenzie lawyer for more information.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Guest Contributor
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Want to Improve Your Trial Skills? Be Cognizant of the Clock

Originally published by David K. Bissinger.

 

Lawyers, penned up in their offices, are poor candidates for entertaining twelve strangers when those strangers have become accustomed to the instant gratification every juror has available on a mobile device.
      

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: David K. Bissinger
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Whose money is that, anyway?

Originally published by David Coale.

Problems in the construction of the Zapata County courthouse (right) led to litigation between S&P (the general contractor), and its subcontractors, as well as between S&P and its insurer. The insurer and S&P disputed S&P’s allocation of the proceeds from settlements with the subcontractors, and the Fifth Circuit affirmed judgment for the insurer: “S&P bears the burden to show that the subcontractor settlement proceeds were properly allocated to either covered or noncovered damages. If S&P cannot meet that burden, under the [two controlling cases], then we must assume that all of the settlement proceeds went first to satisfy the covered damages under U.S. Fire’s policy.” Satterfield & Pontikes Constr. v. U.S. Fire Ins. Co., No. 17-20513 (Aug. 2, 2018).

 

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: David Coale
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Attempt to Prove a Texas Partnership Fails

Originally published by Charles Sartain.

Co-author Ethan Wood

Like breaking into CIA headquarters, sneaking into the Vatican, or hanging off the side of the Burj Khalifa, sometimes getting the deal done seems impossible. The key to any successful mission is planning for disastrous contingencies—be they rats in an air duct, malfunctioning suction gloves, or having to reach out to a third party to finance the bid you just won. Your mission—should you choose to accept it—is to learn how to avoid the fallout of an oil and gas acquisition gone bad by studying Pacific Energy & Mining Co. v. Fidelity Exp. & Prod. Co.

 

The deal

Fidelity and Pacific entered into an Asset Purchase Agreement whereby Fidelity would sell certain oil and gas assets to Pacific. Pacific, lacking the necessary funds, approached Norman to help finance the acquisition. Those parties entered into a Memorandum of Understanding setting out their intent that Norman would put up funding and own the assets and Pacific would act as operator. Fidelity agreed to the assignment of the APA from Pacific to Norman (required under the APA) so long as Pacific agreed to remain subject to its APA obligations. The deal quickly unraveled. Pacific sued Fidelity for breach of contract and Norman for breach of fiduciary duty of loyalty (among other claims).

 

Did Pacific have standing to sue Fidelity?

 No. Fidelity’s argument was that Pacific did not have standing to sue for breach of contract because it assigned all of its rights in the APA to Norman. Pacific’s response was there was a “partial” assignment because Pacific retained its obligations. When one party to a contract assigns the contract, the assignor loses all rights to enforce the contract; however, the assignor is still liable to the other party unless released. Pacific’s retention of its APA obligations was a reflection of existing law. The assignment was not a “partial” assignment that entitled Pacific to sue Fidelity.

 

 Were Pacific and Norman partners?

No. Pacific’s claim that there was an “oral partnership agreement”, entitling it to fiduciary protections, failed. To determine whether a partnership has been formed, Texas courts consider these factors:

 Do both parties receive or have a right to receive a share of the profits?

Is there an expression of an intent to be partners?

Do both parties participate or have the right to participate in control?

Is there an agreement to share the losses or liabilities? and

Is there an agreement to contribute money or property?

 Sharing profits

Pacific was to receive a net profits interest as compensation for its services as operator, but under Texas law, “a share of profits paid as … compensation to an … independent contractor is not indicative of a partnership interest in the business.”

 

 Intent to be partners

The MOU did not evidence intent to be partners. A JOA is not evidence of intent to form a broader relationship. What’s important is whether the parties hold themselves out to third parties as partners—and there was no evidence of that here.

 

 Sharing control

Norman would’ve had complete discretion in how to develop the assets and Pacific would only have rights as operator under the JOA.

 

 Sharing of losses

There might have been loss sharing for pipeline connections, but this was not evidence of an agreement to share losses

 

 Contributions to the partnership

Pacific’s assignment of its rights under the APA to Norman could  have been a “contribution,” but evidence of only one factor in the analysis is insufficient to prove the existence of a partnership. Considering all factors, no partnership existed.

 

Lawyers beware.

Pacific made other arguments, all of which were untimely. Trial lawyers: See the decision for lessons about pleading your case.

 

This message may self-destruct in five seconds, but not the musical interlude. Good luck.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Charles Sartain
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No cases have been decided today.

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Mickey Mouse, Meet Homer and the 'Avatar' Crew

With its deal to acquire entertainment assets from 21st Century Fox, Disney is close to snaring popular properties including ‘The Simpsons’ and ‘Avatar.’ Here is a look at marquee Fox properties and what Disney might do with them.
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Swings and Misses for U.S. and China in Trade Dispute

In the escalating trade fight between the U.S. and China, both sides are targeting plenty of products they don’t actually import from one another.
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