RW TEX-LAW Feeds

Great collection of legal web feeds and RSS articles. All links go directly to the articles and publisher information is posted. RW TEX-LAW Attorneys at law - Your Cypress, Houston, Texas Lawyers

$1.8M Settlement Shows New Law's Teeth—and Is Harbinger of Institutional Liability

"I think that this case shows that the 2019 amendments to the statute do what they are supposed to do, which is hold the organization financially responsible for the criminal sexual abuse of a minor by a member of that organization," said the plaintiff's lawyer Michael Pender.

     
Continue reading
  27 Hits

Goodwin Cuts Attorney, Staff Positions Amid Demand Slump

The Am Law 20 firm announced Thursday it would lay off attorneys and professional staff members across multiple offices in the U.S.

     
Continue reading
  21 Hits

DHA Will Serve 'Anytime, Anywhere — Always,' Says New Director

Army Maj. Gen. Telita Crosland became the Defense Health Agency's fourth director in its nearly 10-year existence, pledging to continue taking the DHA "down its path of excellence."
(Originally posted by Defense Health Agency)
Continue reading
  40 Hits

Remote Juror Didn't Create Unfair Criminal Trial, 9th Circuit Says

One juror watched the trial virtually for the first two days because his wife was potentially sick with COVID-19.

     
Continue reading
  44 Hits

An Under-the-Radar Threat to the Attorney-Client Privilege

The attorney-client privilege should apply to any confidential communication with a lawyer where a purpose of the communication is to seek lawful legal advice.

     
Continue reading
  25 Hits

In SCOTUS Brief, Biden Administration Defends Student Loan Forgiveness as Economic Recovery Measure

Federal lawyers feared how granting standing to the plaintiff states or borrowers could impact future litigation against the government.

     
Continue reading
  53 Hits

10th Circuit Joins Sister Courts in Holding Presence of COVID-19 Does Not Constitute 'Direct Physical Loss or Damage'

"As an initial matter, whether COVID-19 causes direct physical loss or damage under a property insurance policy is an open question in Colorado," Judge Timothy M. Tymkovich said. "Relying on relevant precedent from Colorado and other jurisdictions, we answer that question in the negative and conclude Sagome was not covered."

     
Continue reading
  27 Hits

DOD Releases Memo Expanding Military Parental Leave Program 

The Defense Department has released guidelines for the expansion of the military parental leave policy.  
(Originally posted by Jim Garamone)
Continue reading
  194 Hits

Anticipating Uptick in Regulatory Inquiries, SEC Attorney Joins Morgan Lewis

Frederick Block served as the SEC enforcement division's supervisory trial counsel since 2012.

     
Continue reading
  66 Hits

Gender Identity Freedom with California as Safe Haven v. Texas-Style Prosecution

California is viewed as a refuge for trans children. The Texas Supreme Court dismissed a pro se mandamus In Re Younger - how will the ruling impact gender affirming treatment options?

     
Continue reading
  58 Hits

Latham Adds Former Federal Judge to Litigation Team in Chicago

Former U.S. District Judge Gary Feinerman is joining as a partner in complex commercial litigation, with a focus on trials and appellate advocacy.

     
Continue reading
  29 Hits

Former US Ambassador to Russia Rejoins Mayer Brown

John Sullivan is coming back to co-lead the national security practice he co-founded in 2015.

     
Continue reading
  76 Hits

Updated FTC Guidance on Environmental Claims to Help Set 'Guardrails'

Industry groups hope the revisions to the FTC's "Green Guides" will give company legal departments greater clarity on what constitutes legitimate marketing and "greenwashing."

     
Continue reading
  28 Hits

Texas Bar Foundation funds clearer language for court forms

A $10,000 grant from the Texas Bar Foundation will help Texas Appleseed develop a plain language packet for pro se defendants in debt collection lawsuits. The information will educate them about the court process, making it easier to participate in the lawsuit. Texas Appleseed will release a report with findings and final language recommendations for court forms in the first quarter of 2023.

According to Texas Appleseed, a social justice advocacy nonprofit, consumer debt claim cases in Texas have increased by 87% from 2017 to 2021 in justice courts, where the majority of such cases are filed.

“Debt collection lawsuits are exploding in Texas, and the majority of judgments are default judgments,” said Ann Baddour, Texas Appleseed’s Fair Financial Services Project director. “People who lose those lawsuits can face aggressive collection actions, including losing all the money in their bank account. These high stakes make it essential to have a fair court process and provide debt defendants with access to information to help them better participate in the process.”

Texas Appleseed, through funding from the Texas Bar Foundation, designed a study to implement recommendations from the Texas Judicial Council, which in 2020 adopted several resolutions aimed at improving access to justice for defendants in debt claim lawsuits.

The nonprofit’s study aims to mitigate high rates of default judgments in these lawsuits. As part of the study, Texas Appleseed developed and user tested a plain language packet in English and Spanish. In the packet is a letter from the court with information about the lawsuit and legal resources, a sample answer form, and instructions on completing and filing the form. The focus is on Texans who may not be able to hire an attorney and instead will have to navigate the process of the lawsuit on their own.

For more information about the Texas Bar Foundation, go to txbf.org. For more information about Texas Appleseed, go to texasappleseed.org.

(Originally posted by Eric Quitugua)
Continue reading
  19 Hits

Let’s Talk Attorney Fees in Serial Plaintiff Cases and Let’s Talk About the Pregnant Workers Fairness Act

To start the new year, we are going to have a short discussion of a couple of cases dealing with attorney fees in the serial plaintiff context. Then, we are going to explore the Pregnant Workers Fairness Act that was just signed by Pres. Biden as part of the massive bill to keep the government open. As usual the blog entry is divided into categories and they are: Shayler v. 1310 PCH, LLC; Garcia v. Guadalupe Alcocer; Pregnant Workers Fairness Act highlights; and Pregnant Workers Fairness Act thoughts/takeaways. It is hard to believe that the reader won’t want to read the whole blog entry, but of course the reader is free to focus on any or all of the sections.

I
Shayler v. 1310 PCH, LLC

In Shayler v. 1310 PCH, LLC, here, the Ninth Circuit in a published decision decided on October 24, 2022, winds up approving a 65% downward multiplier to the total amount of fees and a $300 per hour blended billing rate for plaintiff’s counsel because the nature of the work was turnkey. Also, the court specifically referenced abusive ADA litigation and that the serial plaintiff model allows for a quick recovery of attorney’s fees with relatively minimal difficulty. The cases also include boilerplate filing then rarely involve complex legal issues or any difficult factual discovery. Finally, the court said that $300 per hour was a sufficient figure for a case involving a run-of-the-mill repeat player ADA case lacking in legal, factual, or procedural complexity.

Comment: I know what it takes to keep my doors open even as a solo practitioner practicing virtually. $300 per hour is not much at all. I doubt the firm can make much of a profit at that figure, if any. It is a published decision, so I definitely expect defense firms to utilize this case widely in attempting to keep plaintiff’s attorney fees to the bare minimum.

II
Garcia v. Guadalupe Alcocer

In Garcia v. Guadalupe Alcocer, here, the Ninth Circuit in an unpublished decision decided on December 8, 2022, holds an award for attorney fees for a defendant involved in litigation with a serial plaintiff. The court said that there was no way the plaintiff attorney could have believed that the plaintiff had a credible intent to return, which is necessary to get injunctive relief, and therefore the defendant was entitled to its fees.

Comment: There can be real advantages for a defense attorney to notice up a deposition immediately to establish standing, an idea that my colleague Richard Hunt frequently brings up in his access defense blog. Also, on the plaintiff side, plaintiff attorneys do need to be aware of the requirement to establish an intent to return when they are prosecuting title III cases. Finally, keep in mind that how intent to return is viewed can vary considerably from jurisdiction to jurisdiction.

III
Pregnant Workers Fairness Act Highlights

I previously blogged on the Pregnant Workers Fairness Act here, but it pays to go over it as it exists when it was signed into law.

The Pregnant Workers Fairness Act can be found at the very end of the massive bill that Pres. Biden signed to keep the government open. That bill is here. The highlights of the bill follow:

Applies to employers of 15 or more. Applies to Congress. Applies to State elected officials and their staff. Applies to States. Applies to federal employees. Applies to religious entities with respect to their employees. A key term is “known limitation,” which means a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of disability under the ADA. Another key term is “qualified employee,” which means an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position. A person is qualified under the Act if all of the following are true: 1) any inability to perform an essential function is for a temporary period; 2) the essential function could be performed in the near future; and 3) the inability to perform the essential function can be reasonably accommodated. “Reasonable accommodation,” and “undue hardship,” have the same meaning as under title I of the ADA and its final implementing regulations, including the interactive process regulations. Unlawful employment practices include:

(1) not make reasonable accommodations to the known
limitations related to the pregnancy, childbirth, or related
medical conditions of a qualified employee, unless such covered
entity can demonstrate that the accommodation would impose an
undue hardship on the operation of the business of such covered
entity;
(2) require a qualified employee affected by pregnancy,
childbirth, or related medical conditions to accept an
accommodation other than any reasonable accommodation arrived
at through the interactive process referred to in section
102(7);
(3) deny employment opportunities to a qualified employee
if such denial is based on the need of the covered entity to
make reasonable accommodations to the known limitations related
to the pregnancy, childbirth, or related medical conditions of
the qualified employee;
(4) require a qualified employee to take leave, whether
paid or unpaid, if another reasonable accommodation can be
provided to the known limitations related to the pregnancy,
childbirth, or related medical conditions of the qualified
employee; or
(5) take adverse action in terms, conditions, or privileges
of employment against a qualified employee on account of the
employee requesting or using a reasonable accommodation to the
known limitations related to the pregnancy, childbirth, or
related medical conditions of the employee.

Exhaustion of administrative remedies is required. This is a fee shifting statute. Damages are tied into title VII the of the civil rights act. Prohibits retaliation. Prohibits coercion, which term includes coercing, intimidating, threatening, and interfering. An employer’s good faith effort with respect to the interactive process is a defense to damages just as it is with title I of the ADA. EEOC has to come up with regulations within one year of Pres. Biden signing the bill. The regulations implementing the statute with respect to Congress must parallel the EEOC regulations. There is a forcible waiver of State sovereign immunity.

IV
Pregnant Workers Fairness Act Thoughts/Takeaways

A disability is not necessary for person to be protected by the Pregnant Workers Fairness Act. Reasonable accommodations and undue hardship mean the same thing as the ADA and that is in the statute. Interesting question as to whether putting this in the statute would allow the Supreme Court to say that undue hardship and reasonable accommodation can mean something different with respect to religion than it does with respect to the ADA and the Pregnant Workers Fairness Act because analogous statutory language and final regulatory language do not exist in the religious accommodation area. Also, while the law theoretically applies to religious employers, don’t forget about Our Lady of Guadalupe and Hosanna-Tabor, here and here for example. Interactive process is specifically in the statute. With respect to the ADA, it only appears in the title I regulations but has been adopted widely throughout title I-III jurisprudence. In the unlawful employment practices section of the Act, the very first subsection implicitly says that the ADA’s concept of fundamental alteration found in title II and title III of the ADA is very much in play. I have said for years that employers should go slowly with respect to insisting on leave rather than engaging in the interactive process and coming up with a reasonable accommodation. Subsection 4 of the unlawful employment practices section makes clear that employers cannot do this. I would expect that ADA plaintiff side lawyers use this particular provision by analogy against employers that force people on leave instead of engaging in the interactive process to see what accommodation may work for an employee with a disability. The Act extends to terms, conditions, and privileges of employment. Good faith efforts are a defense to damages just like in the ADA. Sovereign immunity is forcibly waived. It will be interesting to see how the courts feel about that with respect to the Act’s congruence and proportionality to the harm being redressed. Keeping in mind that since women are in the intermediate class for purpose of equal protection jurisprudence, one has to figure that the odds would be quite high that courts would find sufficient congruence and proportionality and uphold the law as being constitutional. The use of the term “based on,” means that causation is but for as detailed in Bostock, discussed here. The Act means the confusion created by the Supreme Court in Young is now clarified by statute. Previously, I have said in many a presentation that it is important to think ADA when accommodating pregnancy as a matter of preventive law, this Act now mandates such thinking.

 

(Originally posted by William Goren)
Continue reading
  47 Hits

Oops! Sellers Didn’t Read The Mineral Deed Before Signing

Precious little legal analysis is required to grasp the lesson from Springbok Royalty Partners v. Cook.  No mode or manner of legal gymnastics is likely to save parties from the legal effect of a contract they didn’t bother to read before they signed it.

The agreement

Following a lengthy conversation between the Cooks and a Springbok employee, the parties agreed to a price for the sale of the Cooks’ minerals and signed a letter agreement entitled “Offer to Purchase Mineral Interests in Lands”. Springbok made a cash offer of $575,000 in consideration for a mineral deed for all of the right, title and interest they held and/or owned in and to 111 net mineral acres under land in DeSoto Parish, Louisiana.

The agreement included language to the effect: It would form a binding agreement; the Cooks would be deemed to have received good, valuable and sufficient consideration for their execution and delivery of their counterpart of the letter and performance of their obligations thereunder; they would not take a position to the contrary; if they signed the agreement they would be obligated to execute and deliver a mineral deed covering all their interest in the property.

The suit

Springbok sued the Cooks to enforce the letter agreement. The Cooks refused to conclude the sale after receiving a better offer. Summary judgment in favor of Springbok was affirmed.

The Cooks’ summary judgment affidavits testified that they thought they were selling half of their interests and that they never intended to sell the entirety. They also testified that they did not read the agreement prior to signing it.

The Cooks’ futile arguments

The contract was ambiguous:  The agreement was clear and explicit and led to no absurd consequences. It unambiguously stated that they were selling all of their mineral interests. When Mr. Cook read the contract two days after he signed, it became clear to him then that they had sold the entirety of their interests.

Unilateral error: Consent may be vitiated by error, fraud or duress only when it concerns a cause without which the obligation would not have occurred and that cause was known or should have been known to the other party. Unilateral error will not vitiate consent to a contract unless the error was inexcusable.  The Cooks were sophisticated landowners who had previously executed leases and engaged in other complicated property transactions.

Fraud:  The Springbok employee knew or should have known that their intent was to only convey half of their minerals. Fraud does not vitiate consent where the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience or special skill. The record showed no evidence of fraud.

Accounting was error. because Springbok did not plead for it. The trial court had discretion to allow enlargement of the plaintiff’s recovery to conform to the evidence. The final judgment must grant the relief to which the party whose favor it is rendered is entitled even if the party has not demanded such relief in his pleadings and there is no prayer for general and equitable relief.

New Orleans’ own Walter “Wolfman” Washington RIP

Anita Pointer RIP

 

(Originally posted by Charles Sartain)
Continue reading
  52 Hits

Estate Planning for Your Graduate

If you are the parent of a high school senior about to graduate, you’re probably feeling a whirlwind of emotion right now. I know I am. My youngest child is scheduled to graduate in May!

While you’re proud of how much your child has accomplished and excited about the bright opportunities ahead for him or her, you’re probably also a bit anxious too. As a parent, it’s been your job to keep your child safe for 18 years, but now, your baby is heading out alone.

It’s scary, especially if your child is going to school hours away or in another state.

Your anxious mind can spiral into negative thoughts. What happens if your child is in an accident in the middle of the night while away at school? How will anyone know to contact you in the event of an emergency?

Those are valid concerns.

High School Graduates Need Estate Planning

I’ve written before about the three legal documents that every college student needs: A Durable Power of Attorney, Medical Power of Attorney, and HIPAA Authorization.

Why?

Because even though your child will likely be relying on you for the majority of his support during college, in the eyes of the law your 18-year-old child is legally an adult and entitled to the same privacy protections you are.

By signing a Durable Power of attorney, Healthcare or Medical Power of attorney, or HIPAA Authorization, your child gives you the legal authority to step in and help when he or she needs you most.

Storing Estate Planning Documents

The way you store these documents can also serve to notify you if your child is involved in an accident and hospitalized while away from school.  Services such as Docubank and Legal Directives LLC allow individuals to digitally store medical documents online. Both these companies have special programs for college students.

The enrollment form requests information about your child’s emergency contacts (parents), primary care physicians, allergies and medical conditions, and copies of healthcare directives. After your child enrolls, he or she will receive a wallet card indicating his membership. The wallet card provides instructions to emergency medical personnel about how to access your child’s healthcare documents.

Additionally, any time directives are requested by medical personnel, parents will receive an email alert. That means that if your child is out of town and has a medical emergency, you will always know where he or she is so that you can get information about your child’s condition and make travel arrangements immediately.

For more information about the importance of estate planning for your college student, read: Does My College Student Need Estate Planning?

This article was originally published on June 6, 1996, and updated on January 2, 2023.

The post Estate Planning for Your Graduate appeared first on Rania Combs Law, PLLC.

(Originally posted by Rania Combs)
Continue reading
  61 Hits

Is The Will I Signed In Another State Valid in Texas?

I have written before that a move to another state can trigger a need to update your will. It’s not necessarily because the move invalidates the will. Generally, a will signed in accordance with the laws of one state would remain valid if you move to Texas.

Why is it important to have your will updated?

Texas has unique procedures and laws that can simplify probate and can affect the distribution of your estate.

Texas allows a testator to request an independent administration when the testator provides in his or her will that there should be no action in the probate court in the settlement of the estate other than the probating and recording the will and the return of an inventory, appraisement, and the list of claims of his estate or an affidavit in lieu of an inventory. Independent administrations usually involve only one court hearing and the filing of an inventory or an affidavit in lieu thereof, which simplifies the probate process.

Additionally, Texas wills can include a self-proving affidavit. The self-proving affidavit affirms that the will was properly signed by the testator in the presence of two witnesses, who observed the testator sign his will and heard him say that it was his last will and testament. The benefit of a self-proving affidavit is that it eliminates the need for witnesses to appear in a probate proceeding to testify about the validity of a will, which saves time and expense. Some states do not permit the use of a self-proving affidavit.

While the Will you made in another state may be valid in Texas, it is not likely to be as effective as one specifically drafted to take advantage of Texas’ probate process. Having a Will tailored to this state’s laws will ensure that your estate is handled in the most expeditious manner and your property is distributed according to your wishes.

This article was originally published on February 27, 2012, and updated on January 1, 2023.

The post Is The Will I Signed In Another State Valid in Texas? appeared first on Rania Combs Law, PLLC.

(Originally posted by Rania Combs)
Continue reading
  55 Hits

Chief Justice Roberts Highlights Judicial Security in Annual Report, Says Judges 'Should Not Live in Fear'

"Judicial opinions speak for themselves," Roberts noted — while not everyone may agree with a particular court decision, discord can never escalate to using violence against judges.

     
Continue reading
  47 Hits

Supreme Court Will Again Be Focus of IP World in 2023

Despite having lost two of its strongest voices on IP in the last two years, the high court is wading into some 'meat and potatoes' IP issues such as pharma patents and copyright fair use.

     
Continue reading
  43 Hits

Twitter Feed

Law Links

State Bar of Texas The State Bar of Texas serves its members and the public.
Texas Bar Today Texas Bar Today is an online media network featuring curated news and commentary from Texas legal professionals.
Family Law Section The mission of the Family Law Section is to promote the highest degree of professionalism, education, fellowship, and excellence in the practice of family law.
Business Law Section The Business Law Section of the State Bar of Texas covers the complex and expanding fields of corporate, securities, commercial, banking and bankruptcy law.
REPTL Real Estate, Probate and Trust Law, Section of the State Bar of Texas

-Free consultation-