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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 […]

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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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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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The Blind Spot in Companies' Financial Reports

Some big U.S. multinationals are being partially audited by Chinese accounting firms U.S. regulators can’t check.
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Air Taxis and Self-Driving Aircraft: Aviation Industry Faces Its Future

The Farnborough International Airshow in England this past week highlighted technology of the near future, including autonomous aircraft and urban flying vehicles that don’t need an airport.
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Facebook Suspends Analytics Firm on Concerns About Sharing of Public User-Data

Facebook said it was suspending analytics firm Crimson Hexagon while it investigates whether the firm’s government contracts violate Facebook policies.
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In Hollywood, 'Anything Goes' Becomes 'You're Fired'

Hollywood’s longstanding say-anything, do-anything culture is rapidly turning into one where the wrong words can kill careers.
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Congress Ends Bid to Undo President's Deal to Save China's ZTE

Congress abandoned a bipartisan attempt to undo President Trump’s deal with Beijing to save Chinese telecommunications giant ZTE Corp.
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New CEO to Replace Ailing Marchionne Atop Fiat Chrysler

Fiat Chrysler appointed a new chief executive Saturday in an unexpected move to replace the ailing Sergio Marchionne, who has led the company for nearly a decade.
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America Is Running Out of Family Caregivers, Just When It Needs Them Most

Family members have long been the backbone of the nation’s long-term care system. But smaller, more far-flung families mean fewer of these unpaid helpers to attend to the rising population of elderly Americans. “Are you really my daughter?”
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Trump's Emerging Economic Policy: Picking Winners and Losers

The president’s unorthodox approach to economic policy could harm some U.S. industries with tariffs, but it also includes concrete plans to maintain America’s technological edge.
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U.S. Jobless Claims Hit Lowest Level Since 1969

The number of Americans claiming new unemployment benefits fell last week to the lowest level in nearly five decades.
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Trump Continues Fed Criticism, Renews Threat on China Imports

President Trump continued his criticism of the Federal Reserve, saying higher rates hurt the U.S. economic expansion, and accused China and Europe of manipulating their currencies to hurt the U.S. on trade.
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