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The 150-page opinion stands in contrast to the U.S. Second, Fourth, Seventh, and Ninth circuits, which all found transgender students can access restrooms in line with their gender identity.

"Our strategy is to send a message to other insurance companies that they have an obligation to pay under those statutes," said Steven Adler, a partner at Mandelbaum Barrett.

In dismissing the lawsuit earlier this year, U.S. District Judge John Kness highlighted the U.S. Supreme Court's decision last year in a challenge to Texas' six-week abortion ban.

One the greatest rights we have is the right to a jury trial. While many employment cases never make it to a jury, employees still have this fundamental right to attempt to get his/her case to a jury.

Over the last year, we have witnessed more employment cases being tried before a jury. One of the reasons we are seeing more jury trials is courts are trying to clear their backlogs from the pandemic, and the way to do that is by having jury trials and getting cases off their dockets. Another reason is people want their day in court. As a result, we have witnessed significant jury verdicts in employment cases.

I also realize that some people do not like juries. Why is this? Maybe it’s because your fate is in the hands of people that you do not know. Perhaps you may not feel confident that you will be given a jury of people who are truly your peers. That is okay if you are uncomfortable having a jury decide your case. You can always have a bench trial before the judge. I must admit getting a case to a jury is not easy, which is discussed by my colleague, Jairo Castellanos, in a recent blog.  But, for now, let’s discuss who jurors are, their purpose, and recent jury verdicts.

The post Let the Jury Decide appeared first on Dallas Employment Lawyer Blog.

The State Bar of Texas Executive Committee will meet at 10 a.m. CST on January 10. The meeting is open to the public and will be streamed live on the State Bar of Texas YouTube page.

The presiding officer and executive director will be physically present at the Texas Law Center, Stewart Morris Board Room, 1414 Colorado St. in Austin. Other committee members will participate remotely according to the requirements of Texas Government Code Section 551.127.

The full agenda can be viewed here. Read the agenda backup materials here.

Among other items, the committee will consider and discuss approval of:

updates to the State Bar of Texas Strategic Plan the State Bar of Texas proposed fiscal year 2023-2024 budget for publication in the Texas Bar Journal  Building Planning Special Committee recommendations pertaining to the 1415 Lavaca St. building proposed changes to Board Policy Manual Subsection 3.08.02, relating to the publication of the Client Security Fund application process proposed changes to Board Policy Manual Subsection 8.01.10, relating to sections as resources for governmental bodies proposed Rule 1.00 of the Texas Disciplinary Rules of Professional Conduct, relating to terminology proposed Rule 1.09 of the Texas Disciplinary Rules of Professional Conduct, relating to conflicts of interest regarding a former client proposed Rule 1.10 of the Texas Disciplinary Rules of Professional Conduct, relating to imputation of conflicts of interest referral of the State Bar Court Rules Committee’s proposed amendments to Texas Rule of Appellate Procedure 52.9 to the Texas Supreme Court for consideration referral of the State Bar Court Rules Committee’s proposed amendments to Texas Rule of Civil Procedure 226a to the Texas Supreme Court for consideration referral of the State Bar Administration of Rules of Evidence Committee’s proposed amendments to Texas Rule of Evidence 509 to the Texas Supreme Court for consideration referral of the State Bar Administration of Rules of Evidence Committee’s proposed amendments to Texas Rule of Evidence 510 to the Texas Supreme Court for consideration

The committee also will hear updates on the Committee Review Task Force, State Bar financial audits, and other issues.

Anyone wishing to address the committee in person should fill out a speaker card at the beginning of the meeting and submit it to a staff member onsite. To sign up to speak remotely during the meeting, please email This email address is being protected from spambots. You need JavaScript enabled to view it. or call 512-427-1713 or 800-204-2222 (toll free) before 5 p.m. CST on January 9. Please provide the agenda item number you wish to speak on.

Written comments regarding agenda items must be received by 5 p.m. CST on January 5 for timely distribution to the committee members before the meeting. Please submit written comments by email to This email address is being protected from spambots. You need JavaScript enabled to view it. and indicate the agenda item you are referring to.

In the space of three days in early December four different courts took very different … approaches to standing allegations by serial ADA litigants.

A comparison shows there is no certainty in how the law will be applied in ADA cases at the District Court level because neither the Constitution nor the pronouncements of the Supreme Court appear to matter when it comes to standing decisions.

We’ll start in the Western District of Texas.  Joseph Castillo is not among the worlds most prolific serial filers of ADA claims. On the date of this blog he has filed “only” sixteen ADA lawsuits in the last 12 months, all in the Western District of Texas. His lawyers use a form complaint so all sixteen lawsuits have identical allegations concerning his standing to sue. He claims to be a tester and advocate for the disabled, he lives within 30 miles of the defendant property (usually a convenience store on a major street), he wanted to but was unable to take advantage of its goods and services because of some problem with the parking and he plans to go back soon. In Castillo v. Sanchez et al, 2022 WL 1749131 (Dec. 6, 2022) Magistrate Judge Chestney found these allegations were sufficient, and in particular that they met the plausibility standard required by Iqbal and Twombly.

The analysis of the law is interesting because the Magistrate Judge seems to apply two different standards in analyzing the standing allegations. She first discusses the plausibility standard in Iqbal and Twombly:

Under that [the Rule 12(b)(6)] standard, the party seeking the federal forum bears the burden to prove that the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face. . . Determining plausibility is a “context specific task” requiring application of “judicial experience and common sense” to ascertain whether the facts pleaded permit the court to make “a reasonable inference that the defendant is liable for the misconduct alleged.”

She follows this nod to Iqbal and Twombly with a reference the legal standard in effect before those cases were decided, citing Fifth Circuit opinions from 1990 and 2004 for the propositions that:

On review of the motion, this Court must accept “all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.”

and

“A claim should not be dismissed unless the court determines that it is beyond doubt that the plaintiff cannot prove a plausible set of facts that support the claim and would justify relief”

“Beyond doubt that the plaintiff cannot prove” is hardly the same as “plausible.” Neither of these statements is good law after Iqbal and Twombly because every allegation is subject to the plausibility standard they impose. In any case, the Magistrate Judge makes it clear she has no problem with the plausibility of Castillo’s allegations for she explicitly states that she finds his allegations to be plausible.

But are these kinds of allegation really plausible based on “judicial experience and common sense?” Viewed in isolation they could certainly be true. Castillo might plausibly want to stop at some random convenience store and, if it is on a major street, might plausibly stop there in the future. But sixteen times? Looking at the record this doesn’t seem plausible, but perhaps that doesn’t matter. In Gastelum v. Pinnacle Hotel Circle L.P., 2022 WL 17419366 (S.D. Cal. Dec. 5, 2022) another District Court explicitly rejected the notion that allegations became implausible merely because they were repeated in dozens or hundreds of cases, citing early Ninth Circuit authority to the effect that serial litigation was an intended means of enforcing the ADA.

This brings us to a third case, Johnson v Kuma Kuma LLC, 2022 WL 17418977 (N.D. Cal., Dec. 5, 2022). Decided on the same day as Pinnacle Hotel and a day before Castillo, Kuma Kuma LLC was filed by Scott Johnson, an extremely prolific serial filer, with at least a thousand lawsuits to him name. In Kuma Kuma LLC the defendant defaulted, a reasonable defense strategy to reduce the overall cost of litigation in some cases. Rather than relying on Johnson’s standing allegations the Court required, sua sponte, that Johnson and his counsel submit declarations to substantiate his standing allegations. Then, finding the declarations inadequate, the court scheduled an evidentiary hearing on the subject. The justification for this action in an undefended case could only be a serious concern that Johnson’s allegations were not plausible in light of his litigation history. For this Court, at least, Johnson’s well established past was sufficient to cast doubt on allegations that, in isolation, might have appeared plausible.

In Garcia v. Alcocer,  2022 WL 17538751 (9th Cir. Dec. 8, 2022)[unpublished] we see an example of what happens when the rubber hits the road, or more accurately, when the truth don’t lie,  in terms of standing allegations. In Garcia v Alcocer the District Court not only dismissed the claims of a serial plaintiff, it also awarded fees to the defendant because the lawsuit was “frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” Garcia’s standing allegations were very similar to those made by Castillo but there was a difference; by the time of the Alcocer decision Garcia had lost two almost identical lawsuits on standing grounds and the District Court made its decision after an evidentiary hearing. Garcia’s allegations were not merely hard to believe, they were false.

This is not an unusual outcome; in fact, few serial ADA litigants can withstand the scrutiny that comes when standing allegations must be proven. The problem, of course, is that the road to victory for the defendant costs far more than a quick settlement, and most defendants would rather just pay up and get it over with. Decisions like Castillo v. Sanchez and Gastelum v Pinnacle Hotel encourage serial litigation because they eliminate any possibility of a reasonably inexpensive dismissal, forcing the defendant to choose between a cheap settlement and an expensive victory.

One lesson from these cases is that decisions on Rule 12(b)(6) motions in ADA serial cases depends very strongly on the judge. I obtained the dismissal of a case with standing allegations identical to those in Castillo v. Sanchez in a case in the Northern District of Texas, but an essentially identical motion to dismiss was denied in a different Castillo case in the Western District. The same variation in outcomes can be found in the Ninth Circuit and  Second Circuit at the District Court level. The philosophy of the individual judge or, perhaps, the quality of the briefing, determines the outcome of a Rule 12(b)(6) motion.

This isn’t a necessary situation except to the extent any judge relies on good briefing. The analysis of standing for ADA testers can be straight-forward:

First, Havens Realty Corp. teaches that a tester has statutory standing to sue for a violation of a statute if the tester suffers “injury in precisely the form the statute was intended to guard against.” What injury was Title III of the ADA intended to guard against? 42 U.S.C. §12182(a) prohibits discrimination in the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” To have standing to sue under Title III of the ADA the plaintiff must have been denied the full and equal enjoyment of the goods, services, etc. of the defendant public accommodation. The most liberal reading of this requirement would be that a tester, regardless of motive, has a right to access to a public accommodation so they can enjoy the “facility” by standing inside it or perhaps by parking their car in the parking lot.

Standing to sue under the statute is not, however, enough. The clear message of Transunion and Spokeo is that statutory standing is not the same thing as Article III standing, which requires a concrete and particularized injury. Here the ADA’s definition of “discrimination” becomes important. For most tester cases the ADA violation at issue is found in 42 U.S.C. §12182(b)(2)(A)(iv), which defines discrimination as the failure to remove architectural barriers. A building owner or operator does not fail to remove architectural barriers on a person by person basis. A tester who cannot find an accessible parking space, or who confronts a ramp that is too steep, is confronting exactly the same unremoved architectural barrier that every other person with a disability will confront. If another person suffers their same disability then that other person will suffer exactly the same injury. The tester’s injury is not particularized, it is generic. If the tester wanted to buy cigarettes and could not the injury would be particularized – they would be seeking a different kind of goods or services than some other disabled person might be seeking. But if the only injury is to the statutory right to access then the injury is not particular to them because every other disabled person suffers the same injury.

Moreover, the existence of an architectural barrier does not cause a concrete injury unless its existence has some consequence. In Transunion class members whose false credit information was never disseminated had not suffered a concrete injury because the mere existence of the statutory violation caused them no harm. A disabled plaintiff who cannot find an accessible parking place because a sign is missing has suffered a concrete injury; a disabled plaintiff who finds that accessible space anyway has not. Similarly, a disabled plaintiff unable to make it up a ramp that is too steep has suffered a concrete injury because they could not in fact have access to the facility. A disabled plaintiff who easily negotiates the ramp has not suffered such an injury.

In short, to plausibly allege a particularized injury the plaintiff must first allege some motive for visiting the facility in question that is unique to him or her. Only if they have such a motive is their injury particular to them. For a tester who has filed sixteen cases in a short period of time an allegation of intent to enjoy the goods and services of the facility that merely quotes the statute is not plausible. A plausible allegation of a particularized injury requires some explanation of why the tester wanted to stop at this particular facility to enjoy something more than seeing whether the accessible parking had correct signage or the ramps were too steep.

In addition, to plausibly allege a concrete injury the plaintiff must allege not merely that an architectural barrier existed, but that the barrier at least interfered with their access to the property. Here again plausibility requires specificity when the same allegation is repeated sixteen times in different lawsuits concerning different properties. Using a generic description of difficulty accessing the property is no different than alleging an injury in the exact language of the statute; it is not plausible because it is not specific.

It has to be noted that the requirement that an injury be concrete and particularized is not a particularly hard standard to meet. “I visited the defendant’s store because I was thirsty and wanted a soft drink” isn’t a difficult allegation to make; neither is “the ramp was so steep I couldn’t make it up to the door.” The problem for serial plaintiffs is that specific allegations like this can be proven to be false, and the name of the game for serial plaintiffs is to avoid any allegation so specific they might be found to have made it in bad faith. The risk of being found to have lied, as was the plaintiff was in Garcia v. Alcocer, drives tester plaintiffs to use vague generic allegations that cannot be proven false. It also makes industrial litigation more efficient because it means the tester doesn’t have to take the time to get out of their car and the lawyer doesn’t have to spend even five minutes customizing the complaint.

This brings us back to the central holding in Transunion; that is, that no matter what the intent of Congress might have been, the Constitution requires a real injury for standing. It is very unlikely that Congress intended the current form of industrial ADA litigation as a means to effect the public policy of equal access for the disabled; after all, this litigation only benefits lawyers, and does almost nothing to improve access for the disabled.² However, even if Congress did have such a wasteful and inefficient system in mind, the Constitution limits the federal courts to cases and controversies. A careful analysis of the Supreme Court’s decisions makes it clear that testers who file generic ADA lawsuits have not suffered the required concrete and particularized injury required by Article III of the Constitution.

________________________________________

¹ See my blog, Transunion v Ramirez – has the Supreme Court put an end to cheap standing in ADA litigation?

² As I have observed before, if litigation was an effective means to improve access we would not, more than 20 years after passage of the ADA, see the number of lawsuits rise every year.

 

 

 

Cryptocurrency is in the news of late. Its relationship with Texas energy is … significant. As reported by Ryan Dusek and Cooper Ligon at Opportune.com, its because of our abundant energy supply, a mix of oil and gas and renewables, and good government policy.

With that in mind, here is a report by my Gray Reed colleagues that describes the larger cryptocurency phenomena. It is longer than our usual posts but well worth the read.

Blockchain and its related cryptocurrencies were intended to upend a financial system completely reliant on trusted intermediaries. Starting in 2021 the adoption rate of cryptocurrencies skyrocketed. However, most of these new adopters are not making use of the underlying blockchain technology and instead interact with cryptocurrencies using a variety of mostly unregulated intermediaries, including exchanges like FTX.com.

Trust has, therefore, been reinserted for millions of users into a system designed to eliminate such trust. Where trust is required, trust can be abused. And the news is littered with examples of cryptocurrency investors losing money at the hands of these intermediaries.  

Stablecoins appeared to be anything but stable when the Terra network and its algorithmic stablecoin (i.e. a digital asset collateralized by calculations instead of independent reserves of actual dollars) failed. Investors who didn’t understand these types of “stable” coins suffered when the calculations failed. Then the drop in cryptocurrency prices started to expose mismanagement and other risks in many other cryptocurrency companies (e.g. Celsius, Voyager and Three Arrows Capital). Sam Bankman Fried (SBF) and his FTX exchange became the latest very public example— admitting an inability to account for billions of invested capital and filing for bankruptcy. It will take time before the entire impact of the FTX failure and bankruptcy is known. However, here are five things for investors to take away from the recent events involving FTX when considering the future of digital assets. 

1. Beware the cult of personality.

FTX’s explosive growth was driven largely by the popularity of SBF himself and a roster of celebrity promoters—including Tom Brady, Giselle Bündchen, Steph Curry and Shaquille O’Neal. Perhaps most notably, Larry David appeared in a Super Bowl ad touting FTX as a “safe and easy way to get into crypto.” FTX also bought naming rights to the Miami Heat’s basketball arena, which in the eyes of many lent additional credibility to the company. SBF himself shamelessly promoted FTX—for instance, sitting for an “exclusive” CNBC interview in which he discussed surviving the “Crypto Winter” and his purportedly unique investment strategy. This interview aired less than a month before FTX collapsed. If this type of over-the-top promotional strategy conjures up memories of past frauds, it should. Remember Enron Field in Houston? The Stanford-St. Jude Championship and Allen Stanford’s ties to many notable professional golfers? Elizabeth Holmes “firing back at doubters” on CNBC, while popular “Mad Money” host Jim Cramer described her company Theranos as “one of the most exciting privately-held companies in Silicon Valley”?

Fraudsters know that investors are wowed by TV appearances, corporate sponsorships and celebrity endorsements. But TV commentators, corporate marketing departments and celebrities are not vetting these companies. If anything, these parties are blinded by sponsorship dollars or the competition to land an interview with “the next Steve Jobs” (as Holmes was described). And while the SEC’s recent wave of enforcement actions against celebrity crypto promoters like Kim Kardashian is a good message to the market, average investors continue to be fooled. The FTX fraud reinforces the need for skepticism and diligence.

2. Invest in a business, not a cause.

SBF was a major proponent of a movement called “effective altruism.” This philosophy dictated that the end game of SBF’s and FTX’s success was not their own wealth—but rather using that wealth to do good. To wit, SBF pledged to eventually donate substantially all of his net worth to charitable causes. This messaging dovetailed perfectly with much of the philosophy behind the development of cryptocurrencies—in which proponents advocated the “democratization” of the financial world, as power would be decentralized rather than concentrated in powerful financial institutions. Consequently, money poured in from those looking to not only profit, but to do good in the process.

Unbeknownst to these investors, rather than doing good with their money, SBF was misappropriating it to buy himself, his family and his friends 19 Bahamian properties worth roughly $121 million. This reinforces the fact that someone bent on fraud is not above lying about alleged charitable intentions. The FBI, IRS and other agencies for years have warned the general public about those who tug at the heartstrings of their victims in order to get them to part with their money. SBF’s version of this tactic was just more brazen and more public.

The bottom line is that investment decisions should be based first and foremost on the underlying business—not its good intentions. These purported good intentions may just be a vehicle to hide fraud.

3. Garbage in = garbage out.

The FTX exchange, and many other cryptocurrency exchanges, are not really decentralized. For most of the recently failed or bankrupt companies, there is a centralized group of managers interacting on behalf of investors with the actually decentralized networks. Therefore, it is the quality of these managers and their companies, and reserves on hand to protect investors, that must succeed and not the blockchain network used or the associated cryptocurrencies unconnected to the company.

Multiple commentators have indicated that FTX was horribly mismanaged and its books were beyond inaccurate. Including, as mentioned above, misplacing billions of dollars. The amounts invested don’t matter if the exchange, as FTX claims, can’t find and return the money invested when asked. There were advisors and accountants involved, but it didn’t appear to matter. There were little to no internal controls, the apparent outside controls of auditors also failed, and there were no regulatory reporting or other compliance requirements that might have signaled a problem. If the investment is going into a faulty company with a faulty system, it has very little, if any, chance of success.

Customers and legislators are almost guaranteed to demand more of the digital asset companies and exchanges going forward. This will likely require proof of adequate reserves and more public disclosure and reporting to both oversight government agencies and investors.

4. Compliance is a good investment.

The collapse of FTX has ushered in a significant change in dialog within the cryptocurrency community. After years of antagonism towards regulators (a two-way street, to be sure, as many regulatory agencies have been likewise antagonistic towards the industry and unfairly painted it with a broad brush), many within the community are now acknowledging that regulation could be a good thing. And whether it’s a good thing or not, it’s coming. FTX’s collapse has, predictably, led to calls for tighter regulation.

This reinforces that compliance is a good investment and a potential competitive differentiator. For instance, Coinbase stands out as a cryptocurrency exchange that has taken a markedly different compliance approach from FTX. Coinbase is a U.S.-based, publicly traded company. This requires it to comply with SEC and NASDAQ rules and regulations, to provide audited financials to the public, etc. This is not to say, of course, that every cryptocurrency or blockchain company can or should go public. These companies should, however, ensure that they have made the investment needed to both understand and meet certain compliance obligations demanded by the government and/or their investors. This will not only keep them out of trouble but also set them apart from their competitors.

5. Blockchain and digital assets will survive.

Bitcoin has a history of being discounted as a fad and has been pronounced dead multiple times. However, it always seems to survive, and the failure of specific digital asset companies are unlikely to be the demise of Bitcoin and other digital assets.

The blockchain technology, the networks employing that technology and the associated cryptocurrencies are built to be trustless, and they remain trustless. The blockchain technology and its underlying cryptocurrencies provide something that millions of new users flocked to in 2021 and are still adopting, albeit at a slower rate. There is clearly a demand. The intermediaries failed, not the blockchain networks.

In an ironic twist, the failure of centralized cryptocurrency intermediaries further supports the need for the actual decentralized financial exchange system. What users need is an easier way to access the actual blockchain network without the need for intermediaries acting on their behalf. Access to the actual blockchain system remains remarkably difficult for an average user, and that’s how intermediaries flourished and recruited customers by offering a user-friendly way to invest.

However, as a new innovation, it will hopefully become easier to access and use as the technology develops. Then users will not need to rely as heavily on outsiders to act on their behalf.  

FTX, mostly because of its penchant for publicity, is a very public failure, but it is not the entire blockchain and digital asset ecosystem—it’s just one piece. Investors must be careful but shouldn’t necessarily give up entirely on blockchain and digital assets because of recent events. Instead, they should demand more business and compliance formalities common in other industries to ensure that the risks involved are adequately disclosed and considered. Investors should also demand more protections, accountability, and punishment for companies acting on their behalf.

There will always be risks, but risks can be managed if the company and the investor deal in good faith with knowledge and understanding of all the facts. That should be the goal going forward.

Musical interludes, your choice

Christmas

Advent

 

It is never a great thing to take the first lot of recommendation you get unless you are assured that the person you’re dealing with has all the best solutions. The one method you possibly can presumably know this is by contacting a number of lawyers and by listening to what they each have to […]

The post The Hidden Truth on Trusted Legal Advice Solutions For The Real World Revealed first appeared on Family in Law.

Secretary of Defense Lloyd J. Austin III spoke with troops and delivered a holiday message with his wife, Charlene, wishing service members and their families happy holidays and thanked them for their service.

President Joe Biden has signed the Fiscal 2023 National Defense Authorization Act into law, allotting $816.7 billion to the Defense Department. 

After all, the best factor to do is to look after the bills that the household is accumulating. Budgeting is an efficient behavior to instill into young children at an early age and this may save on the embarrassment of being means examined. Debt Resolution Scams When you’ve got suffered private injury as a result […]

The post The Unexposed Secret of Law in Dictionary first appeared on Family in Law.

"There will be an uptick in filings in our court of appeals but ... we think the court of appeals will be able to accommodate the uptick," one judge said of the North Carolina state judiciary's projected increase in incoming appeals next year.

"After 34 years of public service, it is time for me to pursue new and different challenges and opportunities," Berkovitz said.

Judge Alan Albright's patent docket was slowed but not stopped. Judge Colm Connolly is pulling the lid off of nonpracticing entities. And PTO Director Kathi Vidal "has been everywhere."

Trump's attorney Alina Habba of Habba Madaio & Associates argued that the ASA is different from New York's Child Victims Act, a 2019 law that opened a similar look-back window for claims of sexual abuse for people who were underage at the time of the alleged assault.

"It's always the right time to do the right thing. I think that kind of permeates how I feel about our clients. They're working people, they don't make a lot of money, lots of times they feel that their rights are never going to be vindicated."

Even in the neat previous, there have been fairly a few cases fought towards the judiciary/the executive regarding the tax evaluation of sweepstakes. Hiring an legal professional won’t solely enable you to put an end to all of the tax controversies however can even show you how to file your returns more conveniently. What’s extra, […]

The post The Reduced Down on Legal Evidence Legal Advice Exposed first appeared on Family in Law.

Judges in high-profile mass tort bankruptcies involving Johnson & Johnson's talcum powder and 3M's combat earplugs came out with critical rulings this year, but all eyes are on appeals for 2023.

In reversing the district court decision, the judges pointed to a 2014 U.S. Supreme Court ruling that struck down a Massachusetts law creating a 35-foot "buffer zone" outside abortion clinics as violating the First Amendment.

The Defense Department announced $1.85 billion in additional security assistance for Ukraine, including a Patriot air defense battery and munitions.