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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. Ratification Issue Did Not Provide Path to Attorneys’ Fees – Ryan Lammert of McGinnis Lochridge @mcginnislaw in Austin
9. $334,500 Age Discrimination Verdict Against Time Warner Cable Upheld on Appeal – Christopher McKinney @CJMcKinney of The Mckinney Law Firm, P.C.
8. NLRB Restresses Risk of Firing Employees Who Discuss Pay – Robert G. Chadwick, Jr. @chadwicklawusa of Seltzer Chadwick Soefje & Ladik, PLLC in Frisco
2. Copyright Woes are Over the Rainbow: Harold Arlen Estate Sues Tech Giants – Peggy Keene of Klemchuk LLP @K_LLP in Dallas
Originally published by Christopher McKinney.
ADEA – Age Discrimination in Employment Act
The 4th U.S. Circuit Court of Appeals has let stand a $334,500 jury verdict for a 61-year-old employee who the company fired over a single incident of backdating a form.
The Plaintiff, Glenda Westmoreland, had worked for a Time Warner Cable subsidiary for more than 30 years, was fired after instructing a subordinate to backdate a form to reflect the date of a related meeting, rather than the date the form was actually completed. TWC initially told her the infraction wasn’t serious but later concluded that she had violated company policy prohibiting false statements and created “trust and integrity” issues. While walking her to her car, a supervisor told the Plaintiff, “You’ll get another job. Just go home and take care of those grandbabies.” Westmoreland sued, alleging age discrimination.
A jury found for Westmoreland and, on appeal, the 4th Circuit upheld the verdict. TWC’s “about face” on the disciplinary matter could give rise to a “suspicion of mendacity” about the company’s rationale for firing her, the court said. It also noted that company representatives had testified that there were lesser forms of discipline available. As a result, the court said, the jury could reasonably find that Westmoreland’s firing for one infraction that did not require termination was “such an extreme overreaction as to be pretextual.” In addition, the jury could have found that the “grandbabies” comment was made by a supervisor who harbored age bias, the court said.
Age discrimination in employment is illegal, but two-thirds of older job seekers report encountering it. Employees between the ages of 46 and 65 (especially those nearing retirement age) are the most likely to be targeted. Those employees are often let go by employers who perceive them to be more expensive and less valuable than younger replacements.
The Age Discrimination in Employment Act (ADEA) exists to protect individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment — including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.
You can read the full 4th Circuit opinion here.
Originally published by tiffany.dowell.
We’ve reached the end of May…I’m not sure how time goes so quickly. Here are a few ag law stories in the news recently.
*Texas judge finds 2015 WOTUS Rule violated Administrative Procedures Act. A federal judge here in Texas found that the 2015 WOTUS rule violated the Administrative Procedures Act. Specifically, the judge found that the proposed rule, for which public comment was allowed, differed too greatly from the final rule. In other words, because there were portions of the final rule that were significantly modified from the proposed rule, the public did not get an adequate opportunity to comment. One such substantial change the court relied upon was the definition of “adjacent” wetlands. The proposed rule provided that this meant all wetlands adjacent to jurisdictional waterways. The final rule included all waters within 100 feet of waterways and those within the 100-year floodplain of a waterway or jurisdictional water. This type of substantial change between the proposed rule and final rule, the court reasoned, was not permitted. [Read Opinion here and article here.]
*Eminent domain reform dies as Legislative session ends. One of the most-watched bills in the Texas Legislature related to eminent domain reform. Senate Bill 421, sponsored by Lois Kohlkorst, did not make its way out of the legislature. The bill passed the Senate, but after modifications were made in the house, the Conference Committee was unable to agree on a final version. [Read article here.] I’ll have a blog post and/or podcast episode recapping the 86th Legislative Session coming soon.
* Texas House and Senate unanimously pass bill related to growing industrial hemp; selling and using CBD oil. Another bill that had been of interest to many farmers in Texas was HB 1325, which requires the Texas Department of Agriculture to promulgate a state plan to regulate hemp production in Texas. This plan will include many rules and regulations related to growing industrial hemp, including procedures for inspection and testing of the THC content. Keep in mind, industrial hemp is required to have less than .03% THC. Importantly, producing industrial hemp is not allowed until this plan has been promulgated by TDA. The USDA is working on developing federal guidelines as well. The bill also allows the sale of CBD oil, but limits this to permitted establishments governed by the Texas Health and Human Services Department and provides for testing of THC levels. This bill is currently on the Governor’s desk. [Read article here and bill text here].
* Article outlines arguments in lawsuit against Permian Highway Pipeline. As I mentioned in this previous post, a lawsuit has been filed by several landowners, cities, and groups against Kinder Morgan and the Texas Railroad Commission related to the Permian Highway Pipeline. I thought this article did a good job setting forth the arguments of the plaintiffs–namely that the challenge does not expressly relate to the right of the project to condemn land, but really challenges the oversight of the routing process (or lack thereof as the plaintiffs argue) by the Texas Railroad Commission. [Read article here.] Both Kinder Morgan and the Railroad Commission have filed motions to dismiss, which were argued before Judge Lora Livingston this week. [Read article here.]
* One Dandy of a Scheme. I’m fortunate to have the opportunity to write for Progressive Farmer’s “Our Rural Roots” column. My most recent article tells one of my favorite stories about my Gran and a scheme she pulled off on our family’s farm. If you want to read it, click here.
Next week will be a busy one as I’m headed south. On Thursday, I’ll be speaking in Fredericksburg at the Hill Country Cattle Women meeting. [Click here for more info.] On Friday, we’re expecting a big turn out at our Owning Your Piece of Texas program on the top laws Texas landowners need to know in San Antonio. For more info and to register, click here.] As always, you can check out all of my upcoming presentations by clicking on the tab at the top of the page, or by clicking here.
Originally published by The Law Office of Bryan Fagan, PLLC Blog.
In some instances, spouses will come into our law office to discuss the
possibility of our office representing both of them in an upcoming
divorce. They have already hatched a plan to settle all of the outstanding issues
in their case. All that they need now is an attorney to file the divorce
and get the process started. The spouses, in their minds, would rely on
that attorney for advice on particular issues and then would finish out
the divorce by drawing up all the court orders that a judge would eventually
sign their name to.
On the outside, this seems like a nice plan. Lawyers, popular belief holds,
typically muddy up the waters and make life more difficult for spouses
who are entering into a divorce. What’s more- attorneys will charge
you money in order to do so. The divorce would likely take longer as a
result and take up more time that could be devoted to their family or
other interests. With these circumstances in mind, spouses will come in
and see if this dream can be their reality. Unfortunately I will need
to steer them out of this mindset for a number of reasons that we will
discuss in today’s blog post.
Conflict in interest when an attorney represents two spouses in a divorce
If you and your spouse find yourself in a situation where you agree on
absolutely every issue in your divorce then you are certainly in a unique
position. Even the most amicable of divorces have a few issues that need
to be sorted out before the case can truly be said to be done. Even in
situations where you and your spouse agree on every or most every issue
you are still technically opposing parties in your divorce. Because of
this an attorney cannot adequately represent both you and your spouse’s
With all of this said, there are still options available to people in your
position who would like to limit the costs associated with hiring two
attorneys in a divorce. First of all, you and your spouse can forego hiring
two attorneys and have you or your spouse hire an attorney while the other
remains unrepresented. The other is to have neither of you hire an attorney
and instead utilize the services of a divorce mediator to mediate any
outstanding issues that are relevant in your case.
Mediating your case instead of hiring lawyers
If you and your spouse would like, you can hire a private
mediator to intercede into your divorce case and to help you and your spouse craft
a settlement on any outstanding issues in your case. This means that issues
related to children and property will all be settled in mediation- or
will be attempted to be settled in mediation. A mediator will typically
be a practicing family law attorney him or herself. The mediator will
charge you and your spouse a set amount of money for either a half day
or full day mediation.
The job of the mediator is basically to act as a ping pong ball- bouncing
in between you and your spouse in order to help you both come together
to come up with the specific terms that will create your final orders.
If you and your spouse have a general understanding of what your custody/visitation
agreement will look like for your children after the divorce a mediator
will help you to create something that is specific and able to stand the
test of time. Likewise, all property matters will hopefully be settled
in mediation. Who remains in the family home (if any), what spouse gets
what share of your community estate and any other issues related to property
matters will also be sorted out.
Mediations will typically occur at the office of the mediator. You will
be in one room while your spouse is in the other. Sometimes spouses will
agree to be in the same room and to negotiate across the table from one
another. From my experience this can be a tough atmosphere to negotiate
in as a glance of the eye or a curl of the lip can aggravate/frustrate
the other side.
The mediated settlement agreement
A Mediated Settlement Agreement (MSA) is what you and your spouse will
be negotiating for in mediation. The MSA contains all of the agreements
that you and your spouse came up with and will act as the guide for whichever
spouse ultimately ends up writing your
final decree of divorce. He or she will take the MSA and turn its language into an order that
a judge will be comfortable signing their name to.
Your mediator will likely walk you through each item in the MSA and will
make sure you understand everything contained therein. Usually your attorney
would do this but if you don’t have one the mediator can certainly
explain the points of the MSA to you. However, he or she is not able to
advise you on whether or not something is a “good idea” for
you to enter into with your spouse. The mediator can refer you and your
spouse to an attorney who can draft an order based on the language contained
in the MSA but will not represent either you or your spouse.
Although mediation costs money it is typically a small sum of money compared
to the costs of hiring an attorney and going through an extended family
law case. On the other hand, you will not be able to receive any advice
or pointers on what you are negotiating and you will not be able to rely
upon your attorney’s years of family law experience in negotiating
a settlement in your divorce case.
Texas divorce cases are most likely to end in mediation. The vast majority
of divorces where the Law Office of Bryan Fagan, PLLC represents one spouse
end in mediation. However, if you and your spouse cannot settle in mediation
your options become somewhat limited. You have already exercised the most
likely route to a settlement and have failed to reach an agreement. If
you find yourselves in this position it is likely that at least one of
you will now move to hire an attorney to represent your interests.
One family law attorney to represent you or your spouse
The other option that you and your spouse can choose to take on is to have
one of you hire an attorney and for the other spouse to be unrepresented.
The represented spouse will be responsible for filing the divorce and
drafting a final decree of divorce once a settlement is reached. The main
advantage this spouse will have is the ability to receive advice about
the divorce process from their attorney. If you are represented by an
attorney you would know if entering into an agreement on a particular
issue were a good idea or not. You would also know how a negotiating strategy
could backfire or have unintended consequences for you years down the road.
In many situations this is an arrangement that works out well for people.
Our office has represented clients who are in basic agreement with their
spouses on the terms of their divorce. The key thing to understand is
that most attorneys are not looking to stir up trouble- on the contrary,
these folks are more than happy to work on behalf of their client to resolve
whatever issues are in play. It is usually simple, straightforward divorce
cases where this method works out for both spouses in the divorce.
Questions about the different methods for completing a divorce? Contact
the Law Office of Bryan Fagan, PLLC
There are more ways than one to skin a cat, and there is more than one
way to get a divorce. Just because you have a friend or family member
who got divorced one way doesn’t mean there aren’t a handful
of other options for you and your spouse to pursue.
If you are interested in speaking to an attorney in order to begin your
divorce please consider
Law Office of Bryan Fagan, PLLC. We represent clients just like you in our community and we would be honored
to do the same for you and your family. A consultation with one of our
licensed family law attorneys is at no charge to you.
Originally published by Academic Support.
Last week at the annual Association of Academic Support Educators (AASE) Conference, Professor Paula Manning shared an analogy about learning that gripped my mind and heart. You see, as Professor Manning reminded us, working out to get in shape is…
Originally published by Richard Hunt.
My colleague William Goren recently shared with me some correspondence with an internet service for attorneys that was offering a free webinar. Bill is deaf and was inquiring about captioning for the webinar. The response was that the service through which the webinar was offered didn’t offer captioning. I had looked at the same issue myself a few years ago in an effort to make my own webinars more accessible. What I found was that to add captions to a prerecorded webinar is relatively easy and inexpensive, but that live captioning was both technically difficult and expensive. Bill’s inquiry made me spend some additional time looking at whether captioning is something the ADA should require (assuming, of course, that the ADA even applies to websites and services provided on the internet).
The first place to look for web accessibility standards is, of course, the Web Content Accessibility Guidelines. They have no legal standing, but they have been used as the de facto standard by the Department of Justice and at least one district court. They are also incorporated into the regulations for Section 508 of the Rehabilitation Act, which requires accessibility for federal government electronic communications, including websites.
WCAG 2.0 success criterion 1.2.4 requires captioning for live audio content in synchronized media – meaning live video presentations in which someone talks. This is a success level AA criterion, so it falls within the requirements imposed by Section 508 and the many settlements negotiated by DOJ and others. However, WCAG success criteria seem to be based more on the availability of technology than the cost of the service. The underlying principle seems to be if you can do it you should do it even though the cost may be prohibitive.
This is where reasonableness and undue burden come into play. Remember that unlike other anti-discrimination statutes the ADA requires affirmative action to make public accommodations and their services accessible.* For the disabled, equal treatment isn’t enough because their disabilities make it difficult or impossible to take advantage of facilities and services as they exist. Without the requirement of affirmative action any public accommodation could claim it was not discriminating as long as it provided the same physical space and services to everyone. Sections 12182(b)(2) and 12183 contain the affirmative action requirements at the heart of Title III of the ADA. Section 12183 concerning new construction doesn’t apply to websites at all, so disabled website accessibility advocates must find relief in something under Section 12182(b)(2)(A). Of these only (ii) and (iii) plausibly apply to an inaccessible website, and these are both qualified. Section 12182(b)(2)(A)(ii) requires “reasonable” modifications in policies, procedures etc while Section 12182(b)(2)(A)(iii) requires the provision of auxiliary aids and services only if they do not impose an “undue burden.”
Thus, under any theory of website accessibility the changes needed to make a website accessible must either be reasonable or not impose an undue burden. WCAG 2.0 suggests that captioning is not so technically difficult providing it would be unreasonable or burdensome, but WCAG 2.0 doesn’t look at cost, and for captioning cost is as much an issue as technical ability. So, where can we find information about what cost is reasonable for captioning?
Fortunately there is a law and set of regulations that looked very specifically at the cost of captioning technology. The Telecommunications Act of 1996 was passed in part as a reaction to the holding in Stoutenborough v. Natl. Football League, Inc., 59 F.3d 580 (6th Cir. 1995), a case that refused to apply the ADA to football broadcasts. It did not directly address captioning, but the effect was to exempt broadcasters from any ADA accessibility requirement. The Telecommunications Act remedied this by providing for a phased in requirement that TV broadcasts be captioned. It gave the FCC authority to implement the captioning requirement and in particular to determine by rule when it would be too costly.
The FCC regulations took cost into account when creating a series of “self-executing” exemptions to the captioning requirement. Two of those exemptions are relevant to the reasonableness and undue burden problem under the ADA. The FCC exempts from captioning any broadcaster with less than three million dollars in annual revenue or for whom captioning would cost in excess of 2% of gross revenues. This is pretty clearly a regulatory finding that these costs are excessive in relation to the benefit of captioning live video.
Television broadcasts and webcasts are not perfectly comparable, of course, but it seems unlikely the cost of captioning a live webcast is any less than the cost of captioning a live television broadcast despite possible differences in technology. The biggest difference is likely to be that the capital and licensing costs associated with television broadcasting mean most broadcasters will not meet this economic exemption. The ease and low cost of internet webcasting, on the other hand, make it very likely that a large majority of webcasters would be exempt under these standards. In any case, for this slice of the accessibility pie we do have a reasonably authoritative determination as to when the cost of accessibility imposes an undue burden on the owner or operator of a webcast. If the webcaster has revenues of less than three million dollars or the cost of captioning would exceed 2% of its revenues then notwithstanding the WCAG success criteria captioning of live webcasts should be regarded as an undue burden.
* See the discussion in Natl. Fedn. of the Blind v. Target Corp., 452 F. Supp. 2d 946, 951 (N.D. Cal. 2006).
Originally published by Ryan Lammert.
M & M Res., Inc. v. DSTJ, LLP, 2018 Tex. App. LEXIS 9331 (Tex.Civ.App.—Beaumont 2018, no pet.)
Plaintiffs in title disputes sometimes will allege a claim under the Declaratory Judgment Act in order to seek attorneys’ fees. In this case, the court held that the claim could only be asserted as a trespass to try title claim, where attorneys’ fees are not recoverable.
Here, an oil and gas company hired landmen to acquire oil and gas leases in Jefferson County. Landmen acquired 22 leases and assigned them to the oil and gas company using a form that included an overriding royalty reservation and a provision indicating the assignment would terminate upon any late royalty payments. The landmen allegedly recorded the assignment without giving the oil and company an opportunity to review or approve the form. Years later, the landmen claimed royalty payments were untimely and sought termination of the assignment. The landmen claimed that, even though the oil and gas company had not reviewed or accepted the assignment, it ratified the assignment by its conduct.
At the trial court, the oil and gas company complained that the landmen’s complaint was really a trespass to try title claim (attorneys fees are generally not recoverable) and that the landmen were improperly attempting to couch their lawsuit as a claim for declaratory relief in order to seek attorneys’ fees. The court stated that “if a disputed involves a claim of superior title and the determination of possessory interests in property, it must be brought as a trespass-to-try-title action….a party may not proceed alternatively under the Declaratory Judgments Act to recover their attorneys’ fees.” While ratification was also an issue in the suit, which may also involve separate fact questions, the Court held that “it is an issue within the context of a trespass to try title case, adjudicating which party holds superior title to the mineral estates.”
As a result, the court held that the ratification issue did not negate the requirement the case be pleaded and litigated as a trespass to try title action.
Oil and Gas Attorney at McGinnis Lochridge (click for profile)
Ryan represents oil and gas exploration and production companies, saltwater disposal operators, landowners, and electric cooperatives before multiple state agencies, including the Railroad Commission of Texas, the Public Utility Commission of Texas, and the State Office of Administrative Hearings. Ryan also assists clients with a wide range of oil and gas transactional matters, including lease negotiation, joint operating agreements, production sharing agreements, and farmout agreements. By understanding the interplay between administrative regulations and oil and gas law, he is able to provide sound, efficient, and effective legal advice.
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