Dallas Bar Association
HEADNOTES
Focus Corporate Counsel/Mergers & Acquisitions
February 2015 Volume 40 Number 2
Equal Access to Justice Campaign Tops $1 Million by Alicia Hernandez
On Saturday, January 17, the Dallas Bar Association announced that the 2015 Equal Access to Justice Campaign raised a recordbreaking $1,100,415 for pro bono legal services to the poor. The Equal Access to Justice Campaign (EAJ) is a joint fundraising campaign of the Dallas Bar Association and Legal Aid of NorthWest Texas, which benefits the two organizations’ joint pro bono program, the Dallas Volunteer Attorney Program (DVAP). The Campaign’s momentum has been steadily increasing over the last seven years with significant increases every year in donations to the campaign. This year, campaign Co-Chairs Robert Tobey and Laura Benitez Geisler focused on increasing the number of campaign donors and the overall campaign total, and the results show that they were successful on both ends. In addition to the record-breaking, $1 million plus total, the campaign benefited from an 8 percent increase in donors. “The growth of our EAJ Campaign totals has been phenomenal,” said Brad Weber, 2015 DBA President. “In 2009, we raised about $544,000. This year we topped $1.1 million—a 102 percent gain over six years. Part of the reason for this success is the campaign leadership we have had in place dur-
ing the last seven years. Each year the new Campaign Chairs are determined to break the record set the year before, and each year they achieve a new record. After last year’s recordbreaking campaign results, I knew that this year we would need two tireless and competitive Co-Chairs if we wanted to break last year’s total. Robert Tobey and Laura Benitez Geisler were the two people I knew would rise to the challenge and they did, by shattering the record by more than $177,000.” Campaign proceeds will be used to continue and expand DVAP’s work in the community. With over 600,000 people meeting legal aid’s financial guidelines for assistance, there is more work to be done in keeping access to the courts open in Dallas. DVAP will focus its efforts on recruiting more volunteer attorneys to represent clients in more complex cases and contested family law cases. The Dallas Bar Association and Legal Aid of NorthWest Texas joined forces in 1997 to create DVAP from the organizations’ two, previously separate and competing pro bono programs. DVAP’s 15 person staff coordinate legal advice and intake clinics, manage the program’s pro se family law clinics, work up cases for referral to volunteer attorneys, and recruit, train, and mentor volunteer attorneys to represent clients. In addition to its partnership with the DBA for DVAP, Legal Aid of NorthWest Texas has a Dallas office
that operates like a law firm where staff attorneys represent low-income clients on a daily basis. Even with DVAP’s volunteers and Legal Aid’s staff attorneys hard at work, the programs turn people away because they do not have enough lawyers to help. More work needs to be done, and the Campaign’s success demonstrates the legal community’s commitment to making this happen. Now 18 years old, DVAP and the relationship between the Dallas Bar Association and Legal Aid of NorthWest Texas continues to strengthen and grow. “We want Dallas lawyers to see the Dallas Volunteer Attorney Program as their pro bono program—a reliable resource for the low-income people who cannot afford to hire a lawyer and one of the most important things our legal community does,” said Campaign Co-Chair Robert Tobey. “I am confident that Dallas lawyers will see the value in access to justice for all and will continue to increase their support for DVAP,” continued Co-Chair Laura Benitez Geisler. “Robert and I are so proud of our bar and the standard it has set in supporting equal access to justice HN for the poor.” Alicia Hernandez is the director of the Dallas Volunteer Attorney Program and the DBA director of community services. She can be reached at ahernandez@dallasbar.org.
Energy Future Holdings, Luminant & TXU Energy Donate $25,000 by Alicia Hernandez
The 2014-2015 Equal Access to Justice Campaign culminated at the Dallas Bar Association Inaugural Ball on January 17 with a record number of donations and an historical high of $1,100,415. “Only a few years ago, the $1 million mark seemed unobtainable. Now that we’ve passed this mark, I am hopeful that this becomes the norm, and we pass it every year,” said Brad Weber, 2015 Dallas Bar Association President. “If we can continue to raise over a million dollars each year going forward, we will be able to extend the reach of DVAP and help even more low income individuals who desperately need pro bono legal representation.” The donations will provide legal aid to the poor in Dallas through the Dallas Volunteer Attorney Program, a joint pro bono program of the Dallas Bar Association and Legal Aid of NorthWest Texas. Equal Access to Justice Campaign CoChairs Laura Benitez Geisler and Robert Tobey, with their relentless enthusiasm, maintained the momentum of the campaign from its kickoff in September 2014 to its completion by focusing on increasing new donors and bringing back prior donors. They also pulled together a team of local lawyers from a variety of types and sizes of
practices, including corporate counsel, to reach into the Dallas legal community and gain support for legal aid to the poor. “One of our Campaign goals this year was to expand the donor base through the involvement of in-house counsel. This aspect of the Campaign was very successful thanks in large part to the efforts of our Honorary CoChairs, Stacey Doré of Energy Future Holdings and Jack Stacey Doré Balagia of Exxon Mobil Corporation,” said Robert Tobey. “In addition, Dan Kelly of Energy Future Holdings (EFH) is a longtime supporter of the Dallas Volunteer Attorney Program, and his work on the Campaign this year was critical to its success!” Ms. Geisler echoed Mr. Tobey’s sentiments. “The Campaign’s Honorary CoChairs, Stacey Doré and Jack Balagia were a tremendous help in making this year’s Campaign a record-breaking success,” said Ms. Geisler. “Robert and I are very grateful for all of their efforts toward improving Equal Access to Justice in Dallas County.” Energy Future Holding, TXU Energy and Luminant donated $25,000 to the Equal Access to Justice Campaign, the largest cor-
porate donation in the history of the Equal Access to Justice Campaign. The fundraising efforts of Ms. Doré and Mr. Kelly brought in an additional $102,500 to the campaign. Energy Future Holdings Corporation is a Dallas-based, privately held energy company with a portfolio of competitive and regulated energy companies, including TXU Energy and Luminant. Ms. Doré, the Executive Vice President and General Counsel of Energy Future Holdings, has been with the company since 2008 and has served as vice president and general counsel of Luminant, and as associate general counsel in charge of litigation for Energy Future Holdings. In 2010, she was named Outstanding In-House Counsel by the Association of Corporate Counsel and DCEO Magazine. Before joining Energy Future Holdings, Ms. Doré was a business litigation attorney at Vinson & Elkins for 11 years and served as the firm’s Pro Bono Coordinator, where she increased its pro bono involvement in the Dallas Volunteer Attorney Program and other pro bono organizations. Dan Kelly, Vice President and Associate General Counsel of Energy Future Hold-
ings, is also a long-time supporter of DVAP. Mr. Kelly, formerly an attorney with Vinson & Elkins, was a pro bono volunteer while in private practice, has continued to represent pro bono attorneys since joining EFH, and serves as the legal department’s pro bono coordinator. The Dallas Volunteer Attorney Program recruits, trains and mentors volunteer attorneys to provide free, civil legal services to the poor. The funds pay the expenses of the program and to keep all the DVAP activities running. Activities include at least 11 legal clinics each month where clients apply for help and speak with an attorney, referral of client cases to pro bono attorneys, and special legal clinics and outreach programs for the low-income community. DVAP’s activities also include sponsoring CLE programs for local attorneys, going out to law firms, corporations, and other bar associations to spread the word about DVAP and recruit volunteers. DVAP’s staff oversees all pro bono cases referred through the program and mentors attorneys who take these cases, and the program provide malpractice insurance coverage on pro bono cases handled through the program. The support of Energy Future Holdings, TXU, Luminant and all donors to the Equal continued on page 8
Inside 5 Agency as an Affirmative Defense 9 Insurance Issues in Mergers and Acquisitions 10 Inaugural of Brad Weber 13 Trends in M&A Law: Shale Development
Don’t miss your opportunity to advertise (print & online) in the #1 “Legal Resource & Expert Witness Guide” in Dallas County. Contact PJ Hines at (214) 597-5920 or pjhines@legaldirectories.com
2 He a d n o t e s l D a l l a s B a r A s s o ciation
February 2015
Calendar February Events FEBRUARY 6-BELO Noon
FRIDAY CLINICS
“Cross Examination: Truths and Myths,” Quentin Brogdon. (MCLE 1.00)* RSVP to kzack@dallasbar.org.
FEBRUARY 13-NORTH DALLAS** Noon
“Creditor Strategies and Options for Dead Borrowers,” Bret Allen. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to kzack@dallasbar.org.
FEBRUARY 20-BELO Noon
“Texas’s ‘Citizens Participation Act’: A Solution Looking for a Problem,” Matthew J. Kita. (MCLE 1.00)* RSVP to kzack@dallasbar.org.
MONDAY, FEBRUARY 2 Noon
Tax Law Section “How to Foul Up the Economic and Tax Provisions in a Partnership or an LLC Agreement,” Terry Cuff. (MCLE 1.00)*
TUESDAY, FEBRUARY 3 Noon
Corporate Counsel Section “Common Law Marriage – The ETP v. Enterprise Case,” Mike Lynn. (MCLE 1.00)*
Tort & Insurance Practice Section Topic Not Yet Available 6:00 p.m. DAYL Board of Directors Meeting
WEDNESDAY, FEBRUARY 4 Noon
Employee Benefits & Executive Compensation Section “Sweat the Small Stuff - 401(k) Plans and Audits,” David A. McBee. (MCLE 1.00)*
Noon
Friday Clinic-Belo “Cross Examination: Truths and Myths,” Quentin Brogdon. (MCLE 1.00)* RSVP to kzack@dallasbar.org.
Noon
Real Property Law Section “Tax Considerations in Real Estate Transactions,” Todd D. Keator. (MCLE 1.00)*
Peer Assistance Committee
Criminal Justice Committee
Publications Committee
6:00 p.m. J.L. Turner Legal Association
Transition to Law Practice Committee
FRIDAY, FEBRUARY 13
MONDAY, FEBRUARY 23
Noon
Friday Clinic—North Dallas** “Creditor Strategies and Options for Dead Borrowers,” Bret Allen. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to kzack@dallasbar. org. Trial Skills Section “Reptile and Rules of the Road: Strategy & Admissibility Issues for Plaintiffs and Defendants,” Prof. Gerald R. Powell and Prof. Jim Wren. (MCLE 1.00)*
Mergers & Acquisitions Section “Recent M&A Developments in Delaware,” Timothy R. Dudderar and Thomas A. Mullen. (MCLE 1.00)*
TUESDAY, FEBRUARY 17
Legal Ethics Committee
St. Thomas More Society
DAYL Lawyers Promoting Diversity Committee
6:00 p.m. Home Project Committee
WEDNESDAY, FEBRUARY 11 7:45 a.m. Dallas Area Real Estate lawyers Discussion Group
Construction Law Section “Tips on Avoiding Malpractice,” Cara Kennemer. (Ethics 1.00)*
11:30 a.m. House Committee Walk Through Noon
Bench Bar Conference Committee
Judiciary Committee “The Kaufman County Killings: Views from the Bench,” Hon. Michael Snipes. (MCLE 1.00)*
Summer Law Intern Program Committee
Lawyer Referral Service Committee
DAYL Lunch & Learn CLE. For more information, contact cherieh@dayl.com.
5:30 p.m. Transition to Law Practice Committee “Introduction to the Transition to Practice Program,” Hon. Tonya Parker and Sarah
Judicial Investitures at Belo
FRIDAY, FEBRUARY 20
Pro Bono Activities Committee
Noon
Dallas Gay & Lesbian Bar Association
Government Law Section “Claims to Conclusion,” William Krueger. (MCLE 1.00)*
DAYL Judiciary Committee
Christian Lawyers Fellowship
Christian Legal Society
Friday Clinic-Belo “Texas’s ‘Citizens Participation Act’: A Solution Looking for a Problem,” Matthew J. Kita. (MCLE 1.00)* RSVP to kzack@ dallasbar.org.
Public Forum Committee
FRIDAY, FEBRUARY 6
Noon
Business Litigation Section “Madison’s Gift: Five Partnerships That Built America,” David O. Stewart. (MCLE 1.00)*
CLE Committee
Noon
Juvenile Justice Committee
Noon
TUESDAY, FEBRUARY 10
Noon
THURSDAY, FEBRUARY 12
Alternative Dispute Resolution Section “Mediation of Probate Matters—a Panel Discussion,” Hon. Brenda Hull Thompson. (MCLE 1.00)*
Solo & Small Firm Section “Attorneys’ Fees: Setting, Proving and Collecting Them,” Robert Tobey. (Ethics 1.00)*
THURSDAY, FEBRUARY 5
Rogers. (MCLE 1.50)* 5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
MONDAY, FEBRUARY 9
5:30 p.m. Bankruptcy & Commercial Law Section “Doing Business in Dallas County - The Impact of County Policies and Decisions on Your Clients’ Business,” Hon. Clay Jenkins. (MCLE 1.00)*
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
DAYL Freedom Run Committee
MONDAY, FEBRUARY 16
Noon
Labor & Employment Law Section “The Complete Professional: Effective Interaction with Courts, Clients, Counsel & Colleagues,” Mike Maslanka. (MCLE 1.00)*
Franchise & Distribution/ Computer Law Sections “Digital Money Panel,” Juli Greenberg and John Tyson. (Ethics 1.00)*
Noon
Securities Section “Caution - Speed Bumps Ahead: the Outlook for SEC Enforcement in 2015,” Kit Addleman and Tim Newman. (MCLE 1.00, Ethics 0.25)*
Golf Tournament Committee
DAYL Solo & Small Firm Committee
TUESDAY, FEBRUARY 24 Noon
Probate, Trust & Estate Law Section “Drafting issues That Come Back to Haunt,” Chris Klemme and David Reber. (MCLE 1.00)*
American Immigration Lawyers Association
6:00 p.m. Experience Exchange Mentoring Dinner An exchange of ideas and experiences to build relationships in the community. Attorneys: $20. Law Students: $10. Scholarships available for students. Contact ahernandez@dallasbar.org. Sponsored by the DBA Minority Participation Committee.
Dallas Hispanic Bar Association
WEDNESDAY, FEBRUARY 25 Noon
Magna Carta Discussion Group “Magna Carta and the Surprising Survival of Jury Trial,” Prof. Josh Tate. (MCLE 1.00)*
International Law Section “Legal Implications of the ‘New Era of U.S.Cuba Relations,” Edward Lebow, Cynthia Thomas and Webb Spradley. (MCLE 1.00)*
Sports & Entertainment Law Section Topic Not Yet Available
DAYL Equal Access to Justice Committee
DAYL Elder Law Committee
DAYL Foundation Board Meeting
DVAP New Lawyers Luncheon. For more information, contact reed-brownc@lanwt. org.
Municipal Justice Bar Association
WENDESDAY, FEBRUARY 18 Noon
Energy Law Section “Ethical Constraints in Negotiation,” John Holden, Jr. (Ethics 1.00)*
Health Law Section “Adapting to Increased Federal Enforcement in the Healthcare Industry,” Dennis L. Roossien, Jr. and Edward Vishnevetsky. (MCLE .100)*
Law Day Committee
Library Committee
Non-Profit Law Study Group
THURSDAY, FEBRUARY 26
9:00 a.m. DVAP 2014 Family Law Nuts & Bolts Video CLE MCLE 6.00, Ethics 2.00. Sponsored by DVAP and the DBA Family Law Section. To register, contact hickmont@lanwt.org. Noon
Collaborative Law Section Topic Not Yet Available
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
Criminal Law Section Topic Not Yet Available
5:30 p.m. Labor & Employment Law Section “Employment Litigation: A Judicial Perspective,” Hon. David Horan, Hon. Barbara M.G. Lynn, Hon. Dale Tillery and Hon. Melody Wilkinson. (MCLE 1.50)* $20 at the door.
Environmental Law Section Topic Not Yet Available
THURSDAY, FEBRUARY 19 Noon
Appellate Law Section “View From the Lege: Bills Pending in the 83rd Legislature,” Jerry Bullard. (MCLE 1.00)*
Minority Participation Committee
DAYL Animal Welfare Committee
3:30 p.m. Judicial Investitures Hon. Bonnie Goldstein and Hon. Staci Williams
FRIDAY, FEBRUARY 27 Noon
Intellectual Property Law Section “Navigating Deep Waters—Negotiating IP Licenses,” Heiko Burrow and Brian McCormack. (MCLE 1.00)*
DAYL CLE Committee
DBA MEMBER REMINDER:
The DBA hosted the Judicial Investitures of Judge Andrea Martin, of the 304th District Court (left), and Judge Kim Cooks, of the 255th District Court (right), shown with DBA President Brad Weber, on January 6, 2015.
All members who have not yet renewed for 2015 will be dropped on March 3, 2015! Renew TODAY in order to continue receiving all your member benefits. Thank you for your support of the Dallas Bar Association!
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KZack@dallasbar.org.
Fe bru a ry 2 0 1 5 â€
D al l as Bar A ssoci ati on l Headnotes 3
The Law Firm of
Shook Gunter & Wirskye is pleased to congratulate
Judge Susan Hawk on her win as Dallas County District Attorney
& bids farewell with congratulations to
Bill Wirskye selected as Dallas County First Assistant District Attorney
Shook Gunter & Wirskye 2001 Bryan Street Suite 1905 Dallas, TX 75201 214-850-9229 www.sgw-law.com
4 He a d n o t e s l D a l l a s B a r A s s o ciation
February 2015
Headnotes
President's Column
Assisting the New Generation Brad Weber
Inaugural Address given on January 17, 2015 During 2011 and 2012, I served as our firm’s Hiring Partner in the Dallas office and I saw firsthand the many challenges that law students and new lawyers are facing today. As the parent of a “soon to be” law student, those challenges are again fresh on my mind. Let me give you a few sobering statistics. • Based on a recent report from the Illinois State Bar Association, the average new lawyer graduates with $100,000 in law school loans, which can balloon up to $200,000 when factoring in interest, undergraduate debt and bar review loans. • The same Illinois report also noted that the high debt load carried by the average new lawyer is negatively impacting diversity in the legal profession, as many minority college students cannot afford to attend law school. • Also, those with large student loan obligations are more likely to commit ethics violations and are less likely to engage in pro bono work. • Many new lawyers go months without finding a job, while others take jobs that don’t require a law degree, or at salaries that are too low to meet monthly loan payments. • New lawyers today also have fewer professional development opportunities. Traditionally, law firms have trained young associates, but firms now are less willing to train their new lawyers because clients are not willing to pay for it. When I started thinking about what my “theme” should be for 2015, I kept coming back to the idea that we as a Bar Association really need to assist this “new generation” of law students and young lawyers. During this past fall, I had the opportunity to meet with a number of law school deans, including Dean Jennifer Collins from SMU, Dean Darby Dickerson from Texas Tech, and Dean Royal Ferguson from UNT Dallas College of Law. We discussed the challenges faced by current law students, and we brainstormed about ideas for how the DBA can assist law students in overcoming these challenges. Among the ideas that appealed to me, and that I plan to implement this year, are: • A law student advisory committee, comprised of students from our local and regional law schools, who can meet with our DBA leadership and provide unfiltered information about the challenges they face and how the DBA can assist them. • A debt counseling conference that will focus on options for law students and young lawyers to better manage their student loan debts. • And perhaps most importantly, a renewed focus on making sure that all law students feel welcomed when they enter the Belo Mansion, and that we provide them with many good reasons for joining our association. Another way we will assist new lawyers is through the existing Transition to Law Practice Program. This program was the brainchild of Justice Doug Lang and DBA President Frank Stevenson back in 2008. The concept of the program is to match experienced lawyers with new attorneys at the beginning of their legal careers. Through a series of group presentations and one-on-one mentoring, the program provides new lawyers with the necessary essentials to start their careers on the proper path. This year the Transition to Law Practice Program will include a number of new features. Earlier this week I had a meeting with all 29 DBA Section Chairs. I asked them to assist us in locating qualified members of their Sections who will agree to serve as mentors for the new lawyers enrolled in the program. As an example of how this will work, if a young criminal attorney wants to participate in the program, we plan to match that lawyer with an experienced member from the DBA Criminal Law Section. By enlisting the
support of our Sections, we should be able to better match young lawyers with more experienced attorneys who practice in the same field of law. I’ve also asked the Section Chairs to consider creating a young lawyer division or committee within their sections this year. These young lawyer divisions could serve a number of purposes, including the better integration of new lawyers into the DBA. I also asked the Sections to consider assigning members of the young lawyer divisions to present at least one monthly CLE program this year, so that they can get more exposure and speaking experience. Another suggestion is to award scholarships for young lawyers in their sections to attend the DBA Bench Bar Conference next fall or the State Bar Annual Meeting this summer. I do not want to leave you with the impression that the only new projects and plans for 2015 involve law students and new lawyers. Through the hard work of our 34 committees and 29 sections, the Dallas Bar Association will continue to provide outstanding services and benefits to all members of our community—including lawyers and the general public. In addition, for 2015 we plan to focus on another segment of the community with the creation of our 30th DBA Section. The DBA currently does not have an Immigration Law Section, despite the fact that Dallas is now the home for over 350,000 foreign-born residents, our own Sarah Saldaña recently was appointed as the new head of the U.S. Immigration and Customs Enforcement agency, and immigration law reform is one of the high-profile legal issues in our country today. We already have formed an Immigration Law Study Group, which is the first step in creating a new DBA Section. That Group will begin meeting later this month, and hopefully by September it will have completed all of the requirements necessary to become our 30th Section. The creation of this Study Group comes at an ideal time. I received a letter just last week from the Department of Homeland Security and the Department of Justice, seeking our help in recruiting DBA members to represent unaccompanied children in immigration proceedings. This will be one of the first issues on the agenda for our new Immigration Law Study Group. Before I conclude my remarks, I want to let you in on a secret. I love to watch the Academy Awards program each year. One of my favorite parts of the program is when they scroll through the names of the famous actors, directors, and other film makers who died during the previous year. It is an Oscar’s tradition that allows us to remember and honor the people who entertained us over the years. The Dallas Bar Association has a similar tradition. At the DBA’s annual meeting each November, we scroll through the names of our members who passed away during the prior 12 months. It is also a time for us to remember and honor the lawyers and judges who served our association. In 2014, we lost some of our greatest bar leaders and members. Inspirational lawyers and judges, including Judge L.A. Bedford, Jr., Professor Alan Bromberg, Adelfa Callejo, Judge Jeff Coen, Ken Fuller, Blackie Holmes, Ray Hutchison, Bob Mow, and Ambassador Robert Strauss. As I sat and listened to the names of all the great lawyers and judges we lost during the past year, the thought occurred to me that Dallas’ new generation of lawyers may just as easily include a similar group of extraordinary leaders. But without our help—all of our help—this next generation of potentially great lawyers and judges may not reach their full potential. It is my sincere hope that in 2015 this great bar association will come to the aid of a group that needs our help—our next genera HN tion of lawyers.
Play Golf and Support Pro Bono Save the date for the 23rd Annual Pro Bono Golf Classic, benefitting the Dallas Volunteer Attorney Program.
Thursday, April 30, 2015 Brookhaven Country Club TREAT YOUR CLIENTS TO A GAME OF GOLF! Registration includes a sleeve of golf balls, goody bag, lunch, on-course beverages, post-tournament reception and awards dinner. The tournament is a 4-person scramble format—limited to the first 128 golfers. Plus, we have first-rate team awards for 16 teams, a raffle and other fun contests and games! Check-in and practice range open at 10 a.m. and shotgun start is at 1:00 p.m. A reception and awards dinner will follow the tournament at approximately 5:00 p.m.
Register online at www.dallasbar.org. For more information on sponsorships, contact Rhonda Thornton at rthornton@dallasbar.org.
Published by: DALLAS BAR ASSOCIATION 2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873
The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.
OFFICERS President: Bradley C. Weber President-Elect: Jerry C. Alexander First Vice President: Rob D. Crain Second Vice President: Michael K. Hurst Secretary-Treasurer: Victor D. Vital Immediate Past President: Scott M. McElhaney Directors: Wes Alost, A. Shonn Brown, Jonathan Childers (President, Dallas Association of Young Lawyers), Laura Benitez Geisler (Chair), Hon. Harlin “Cooter” Hale (Judicial At-Large), Hon. Martin Hoffman, Krisi Kastl, Michele Wong Krause, Monica Lira (President, Dallas Hispanic Bar Association), Bill Mateja, Karen McCloud, Cheryl Camin Murray (At-Large), Courtney Barksdale Perez (At-Large), Bill Richmond (President, Dallas Asian American Bar Association), Ebony Rivon (President, J.L. Turner Legal Association), Mary Scott, Diane M. Sumoski, Robert L. Tobey (Vice-Chair) and Aaron Tobin Advisory Directors: Stephanie Gause (President-Elect, Dallas Association of Young Lawyers), Rocio Cristina Garcia (President-Elect, Dallas Hispanic Bar Association), Emmanuel Obi (President-Elect, J.L. Turner Legal Association), and Monika Sanford (President-Elect, Dallas Asian American Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Lawrence Boyd, Wm. Frank Carroll, Leon Carter, John Jansonius and Florentino A. Ramirez HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Display Advertising: Deni Ackerman, Tina DeRobertis, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Jared Slade and Meghan Hausler Vice-Chairs: Paul Clevenger and Keith Pillers Members: Timothy Ackermann, Jerry C. Alexander, Vincent Allen, Natalie Arbaugh, Jody Bishop, Lisa Tomiko Blackburn, Jillian Bliss, Jason Bloom, Andrew Botts, Lance Caughfield, Chhunny Chhean, Stephen Clarke, Shannon Conway, Joel Crouch, David Dummer, Christopher Elam, Alexander Farr, Daniel Felz, Dawn Fowler, Robin Ghio, Basheer Ghorayeb, Kimberly Gonzalez, Andrew Gould, Susan Halpern, Jeremy Hawpe, Zachary Hilton, Ezra Hood, Mary Louise Hopson, Michael K. Hurst, Ashley Johnson, Amanda Kelley, Sara Krumholz, Margaret Lyle, Thomas Maddrey, Orly Mazur, Jodi McShan, Ethan Minshull, Paige Montgomery, Jessica Nathan, Jeffrey Novel, Eugene Olshevskyy, Mason Parham, Aimee Pingenot, Kirk Pittard, Laura Anne Pohli, Lisa Prather, Michelle Reed, David Ritter, Carl Roberts, Lantis Roberts, Eugenie Robichaux, Joshua Sandler, Chandrika Shori, Micah Skidmore, Stefan Smith, Bradley Smyer, Thad Spalding, Elizabeth Stanley, John Stevenson, John Ting, Paul Tipton, Pryce Tucker, Peter Vogel, Tracey Wallace, Brad Weber, Philip Worley DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Director: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Avina, Marcela Mejia Law-Related Education & Programs Coordinator: Kimberlynn Taylor Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Karina Sanchez, Monique Scott Program Assistant: Patsy Quinn Secretary: Ellie Pope Copyright Dallas Bar Association 2015. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@ dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
Fe bru a ry 2 0 1 5
Focus
D al l as Bar A ssoci ati on l Headnotes 5
Corporate Counsel/Mergers & Acquisitions
Agency as an Affirmative Defense by Hugh A. Fuller
It is well settled in Texas that the law does not presume agency. An often overlooked result of this doctrine is that agents signing contracts on behalf of their business entities’ principals put themselves at risk of individual liability when a contract does not disclose the full legal name of their principal. Agents may sign contracts for disclosed, undisclosed and partially disclosed principals. If an agent signs a contract for an undisclosed or partially disclosed principal, both the agent and the principal are liable on the contract, though the plaintiff must elect to take a judgment against just one. Disputes arise when the parties disagree whether the agent’s principal was fully disclosed or partially disclosed. In these cases, the defendant has the affirmative burden to plead the defense of agency and to prove that the plaintiff had actual knowledge of the true identity of the principal at the time the contract was signed. This burden is not obvious to many practitioners because agency is not listed as an affirmative defense in the Texas Rules of Civil Procedure. The seminal case setting forth the affirmative defense and elements of agency is Southwestern Bell Media, Inc. v. Trepper, 784 S.W.2d 68, 71 (Tex.App.—Dallas 1989, no writ). In Trepper, the defendant, Elliot Trepper, signed a contract for yellow-pages advertising in his capacity as “President” of a corporation. The contract stated the trade name of the corporation, not its true legal name. Southwestern Bell sued Trepper in his individual capacity and prevailed in a jury
trial when Trepper failed to obtain a jury finding on his defense of disclosed agency. On appeal, the Fifth Court of Appeals held that (1) agency is an affirmative defense and is never presumed, and that (2) an agent, to avoid personal liability, must disclose (a) that he is acting in a representative capacity, as well as (b) the true legal identity of his principal. The agent is not relieved of liability merely because the person with whom he deals has the means of discovering his principal’s true identity. Instead, only the plaintiff ’s actual knowledge of the principal’s true legal identity at the time the contract was entered will absolve the agent from liability on the contract. This doctrine was expanded one step farther in Patel v. Whiteco Industries, Inc., 1991 WL 134576, at *4 (Tex. App.—Dallas 1991, no writ), where the Fifth Court of Appeals held that the defendant Vino Patel, the president of “Delux Management Company,” was individually liable under an advertising contract which he signed on behalf of “Delux Inn Management Company, Inc.” —even though Whiteco, the plaintiff, had drawn up the contract and was responsible for the misnomer. A recent case showing the dangers of this doctrine to agents is John C. Flood of DC, Inc. v. SuperMedia, LLC, 408 S.W.3d 645 (Tex.App.—Dallas 2013, pet. denied). There, a business owner was held personally liable under several contracts he signed on behalf of his company John C. Flood of DC, Inc. Again, the contracts did not state the business’s full legal name – instead, listing the name as, among others,
true legal name of one party are common. For plaintiffs prosecuting such suits, it is a simple matter to include the agent as a co-defendant. In collection cases when the agent is a highranking officer or the owner of a financially-strapped business, it may be preferable to elect to take the judgment against the agent. Defense counsel, in cases where an individual agent is sued on a contract along with their principal, should affirmatively plead the defense of agency and seek discovery to prove that the plaintiff knew the true, legal identity of the individual agent’s principal at the time the contract was HN signed.
“Flood, John C Plumbing & Heating,” and “John C. Flood Inc.” The business owner both failed to plead agency as an affirmative defense and to present competent summary judgment evidence regarding the plaintiff ’s knowledge of the company’s identity. Both the business and the business owner were held liable on the contracts on summary judgment. The plaintiff then elected to take its judgment against the business owner in order to collect on his personal assets—including the business. Practitioners, especially those focusing on collections cases, should make note of these decisions and plan their cases accordingly. Contracts for goods and routine services are often prepared by the parties without input from counsel and errors regarding the
Hugh Fuller is an associate at Gray, Reed & McGraw, P.C. He may be reached at afuller@grayreed.com.
HELP PRESERVE BELO BECOME A 2015 SUSTAINING MEMBER OVER 200,000 PEOPLE COME THROUGH OUR BUILDING EACH YEAR Your 2015 dues statements have arrived and we ask that you consider renewing as a Sustaining Member ($500). 200,000+ members and guests use the building each year and your contribu�on at the Sustaining Member level will help us con�nue the essen�al upkeep needed to preserve our beau�ful building—as the premiere bar headquarters in the na�on. Thank you for your support. All Sustaining Members will be prominently recognized in Headnotes and at our Annual Mee�ng.
6 H e a d n o t e s l D a l l a s B a r A s s o ciation
February 2015
DBA Presents the 23rd Annual MLK Justice Award The Dallas Bar Association’s Martin Luther King, Jr. Justice Award is presented to local leaders whose lives and practice exemplifies the principles embodied by Dr. King’s leadership. This year’s award was presented to Carlyle H. Chapman,
Jr., partner at Franklin Chapman Skierski Hayward LLP. Since 1993, the DBA has bestowed the MLK Justice Award on deserving recipients. The luncheon on Monday, January 19, marked the DBA’s 23rd Justice Award presentation.
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D al l as Bar A ssoci ati on l Headnotes 7
Corporate Counsel/Mergers & Acquisitions
Corporate Philanthropy: The Charity’s Point of View by Jonathan Blum and Genevra Williams
As corporate clients focus on social responsibility, an attorney might find himself or herself opposite a charity. Often, the attorney representing the corporation is in-house or in a corporate transactional practice and approaches the charitable transaction like a common vendor agreement. But grants to charities are dissimilar to typical business transactions, largely due to the often complex rules charities must follow for the privilege of being tax exempt and the rules related to tax deductibility of contributions. This article highlights the most common issues when working with charities. Our goal is to provide a brief introduction into these issues, and help keep the act of giving money away as simple as possible. A grant agreement is not a vendor agreement. Contracts that accompany charitable gifts are gift instruments and not your typical contract where both parties get to bargain for a particular outcome. Charitable gifts must be given freely, without any continuing rights in the donated property. This can be hard for some corporate executives to swallow, particularly those who are entrepreneurial and control oriented. But the law is clear. Too much donor control over a gift is a “material restriction,” which results in an incomplete gift. This has a big impact on donors in particular, who cannot claim a tax deduction for incomplete charitable gifts. Take, for example, a company funded scholarship at your local university. It is a material restriction for your client-corporation to have the absolute right to choose the recipients of the scholarship it is funding. But it is permissible for company representatives to have a non-controlling presence on the university’s scholarship committee. Another often-attempted material restriction is to require a charity to invest an endowed gift in a particular manner. This tends to happen when the donor is in the financial services industry and, with the best intentions, wants to insure the charity gets the best long-term financial return on the gift. This is also a material restriction, and a knowledgeable charity will refuse it. Quid pro quo is a no go. The charitable tax deduction is a benefit bestowed on persons and corporations who make donations for which they
Professionalism Tip Lawyers and judges owe each other respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack.
receive nothing in return. Your clients may be publicly acknowledged for their gift, but not much else. Charities cannot endorse your products or advertise your services without potentially triggering unrelated business income taxes (UBIT). Auctions at charity galas can also be tricky. The money paid to win a trip to Hawaii at a silent auction is only tax deductible for the amounts paid in excess of fair market value. Unfortunately, you cannot buy a deeply discounted vacation and take a tax deduction of the full purchase price. Sponsorship “Ads” should be boring. If your client pays for recognition in a charity’s event program, the language should not include coupons, calls to action, quantitative, or qualitative statements about the client’s products or services, rather it should be an expression of support for the charity’s activities. It can include pictures of products and the name, address, logo and registered trademark of the
corporation. Further, the charity cannot provide any substantial benefit to the donor corporation without triggering UBIT. If any of these rules are violated, the charity could be deemed to be advertising on your client’s behalf and could incur UBIT. It is the charity’s issue, but if your client is supportive of the charity, presumably they would not want the charity to have to pay tax. Cause-related marketing can be complex. Studies have shown that consumers prefer products that support worthy causes. If your client-corporation advertises that the purchase of a product or service triggers support for a charity (e.g., for every purchase, $1 goes to a charity), your client has triggered state commercial co-venture laws, designed to protect the consumer and the charity. Approximately 20 states have such statutes, with some requiring written contracts, filings, posting of bonds and an accounting
Jonathan Blum is counsel at Polsinelli and formerly general counsel for Susan G. Komen and the executive director/general counsel of the David Nathan Meyerson Foundation. He can be reached at jblum@polsinelli.com. Genevra Williams is an associate at Weycer, Kaplan, Pulaski & Zuber, P.C. and formerly associate legal counsel for The Dallas Foundation. She can be reached at gwilliams@wkpz.com.
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of the promotion (Texas is not one of those states). Charities can acknowledge your client’s support, but cannot advertise or promote the products or services without incurring UBIT. If you work on a charitable transaction, recognize that charities have their own specific regulations, just like any other industry. Typically, problems occur when the client pushes the charity to demonstrate a return on the charitable “investment,” which is sometimes at odds with the charity’s need to preserve its tax exempt status. The best relationships with charities are based on mutual understanding that helping the charity’s mis HN sion brings its own rewards.
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8 He a d n o t e s l D a l l a s B a r A s s o ciation
February 2015
DBA Board Elects Chair and Vice Chair Staff Report
At its January Organizational Meeting, the Dallas Bar Association Board of Directors elected Laura Benitez Geisler Chair of the Board and Robert Tobey Vice-Chair of the Board for 2015. Ms. Geisler, principal at the Geisler Law Firm, is an immediate past Co-Chair of the Campaign for Equal Access to Justice, which reached a record-breaking $1,100,415 in donations. She has been active in the DBA for many years, first joining the DBA Board of Directors in 2007 as President of the DAYL. She is currently the Co-Chair of the Judiciary Committee and Board Advisor of the Real Property and Tax Law Sections. Her past service includes Chair of the Judicial Investiture Committee, Chair of the Transition to Law Practice Program, Chair of the Entertainment Committee and Chair of the Bench Bar Conference. A graduate of SMU Dedman School of Law, Ms. Geisler is a Fellow of the Texas Bar Foundation, the Dallas Bar Foundation and the Dallas Association of Young Lawyers Foundation. She also serves on the DBA’s Community Service Fund Board of Directors. Mr. Tobey, of Johnston Tobey, P.C., is also an immediate past Co-Chair of the record-breaking Campaign for Equal Access
Laura Benitez Geisler
Robert Tobey
to Justice, and is Co-Chair of the Continuing Legal Education Committee, as well as Chair of the Trial Skills Section. He joined the DBA Board of Directors in 2012. A graduate of the University of Texas School of Law, Mr. Tobey is a member of the DBA Executive Committee, serves on the DBA’s Community Service Fund Board of Directors and is a Life Fellow of the Dallas Bar Foundation. He has also been a member of the Board of Directors of the Dallas Trial Lawyers Association for the past five years. The Board also appointed Hon. Harlin “Cooter” Hale, U.S. Bankruptcy Judge, to serve a one-year judicial at-large position.
Wes Alost
Cheryl Camin Murray
Judge Hale is a graduate of the Louisiana State University Law School. He is the Board Advisor to the Minority Participation Committee and International Law Section. Filling a two-year at-large director position is Wes Alost. Mr. Alost, a graduate of Loyola University New Orleans School of Law, is a Partner at Jones Carr McGoldrick, where his practice focuses on personal injury litigation and products liability. Filling a one-year at-large position is Cheryl Camin Murray. Ms. Camin Murray is a graduate of the University of Houston Law School and is a Shareholder in Winstead PC’s healthcare industry group. She also
practices corporate securities and mergers & acquisitions law. The 2015 board will also include: President Brad Weber; President-Elect Jerry Alexander; First Vice President Rob Crain; Second Vice President Michael Hurst; Secretary-Treasurer Victor Vital; Immediate Past President Scott McElhaney; and Directors A. Shonn Brown, Jonathan Childers, Hon. Martin Hoffman, Krisi Kastl, Michele Wong Krause, Monica Lira, Bill Mateja, Karen McCloud, Courtney Barksdale Perez, Bill Richmond, Ebony Rivon, Mary Scott, Diane HN Sumoski and Aaron Tobin.
EFH, Luminant & TXU Donate $25,000 continued from page 1
Access to Justice Campaign ensures that DVAP and its volunteers will continue to help their clients on a variety of civil matters. These are volunteers and clients like attorney Debbie Cunningham who helped “Joy” recover over $2,000 from the proceeds of the sale of her deceased mother’s home, which, in turn, helped
Joy find a new place to live. DVAP Volunteer Chris Attig helped “Suzanne,” a veteran, secure her Veteran’s Benefits, including a significant back benefits award. Volunteers Bryan Bond, Larry Adams and Charles Gall helped “Judy” resolve her landlord tenant case to her satisfaction, and volunteer Bruce Akerly helped “Max,” another veteran, negotiate a settlement on a car loan, saving Max
thousands of dollars and a significant amount of stress. Volunteer John Napier represented “Elizabeth” in a deceptive trade practices case involving an auto repair shop that resulted in a $7,000 judgment, and $5,000 post-judgment collection. And Hunter Lewis helped his client recover her infant son from his presumed father and establish paternity and child support.
For more information or to apply, please contact Alicia Hernandez at ahernandez@dallasbar.org.
Alicia Hernandez is the director of the Dallas Volunteer Attorney Program and the DBA director of community services. She can be reached at ahernandez@dallasbar.org.
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The Dallas Bar Association, Legal Aid of NorthWest Texas and the Dallas Volunteer Attorney Program thank all of its generous donors and volunteers for making access to justice in Dallas HN possible.
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Focus
D al l as Bar A ssoci ati on l Headnotes 9
Corporate Counsel/Mergers & Acquisitions
Insurance Issues in Mergers and Acquisitions by Michael W. Huddleston
Liability insurance contracts are very direct and literal instruments. The parties insured are clearly stated, and variances can be fatal. See, e.g., VRV Dev., L.P. et al. v. Mid-Continent Co., No. 3:09-CV-1382 (N.D. Tex., Feb. 3, 2010) (a corporate conversion under Tex. Bus. Org. Code Act section 10.106 changes the named insured and thus the policy issued pre-conversion to the converted entity does not provide coverage for the newly converted company). Automatic coverage for newly acquired ventures is typically limited to 90 days. The coverage must match the names of the entities generating liability. Texas enforces anti-assignment clauses prohibiting assignment of the insurance policy absent consent of the carrier. Ford, Bacon & Davis, L.L.C. v. Travelers Ins. Co., 635 F.3d 734, 737 (5th Cir. 2011). In Texas, unlike many other jurisdictions, the insurance does not follow the business through the various types of transfers, whether those transfers involve a merger, asset sale, etc. Keller Foundations, Inc. v. Wausau Underwriters Ins. Co., 626 F.3d 871, 878 (5th Cir. 2010). Involvement of the insured with an undisclosed enterprise will also run afoul of business enterprise exclusions. See, e.g., Bott v. J.F. Shea Co., Inc., 299 F.3d 508, 511 (5th Cir. 2002) (joint venture exclusion). From the perspective of the acquiring company, the potential insurable liability risks must be identified and the related coverage analyzed for sufficiency. Existing general liability policies of the acquiring company are unlikely to provide it coverage as to claims involving the acquired company because (1) the named insured
is the acquiring company, not the company or operation being acquired; and (2) the bodily injury or property damage must have occurred during the policy period of the acquiring company’s policy. If the acquired company is in a business where “claims-made” policies are utilized, such as with professionals like lawyers and doctors, care must be taken to make sure that the purchase of a new policy by the acquiring company does not include a “retro date” that matches the date of issuance. This is typical with a new policy. While it clearly costs more, the best approach is to pay for retro coverage that would at least match any retro dates used on the policies of the acquired company. An acquiring company should consider the following checklist in protecting itself from an insurance standpoint in a merger and/or acquisition: 1. In the context of target companies with large scale exposure, such as toxic tort exposure, a detailed review of the remaining liability exposure and the available insurance resources should be undertaken by the acquiring company. 2. Seek an assignment of the acquired company’s policy and seek the consent of the carrier to place the name of any new combined entity and/or the acquiring company on that policy or policies. 3. If assignment of that policy is not possible, then make sure the acquired company or enterprise is added to the acquiring company’s existing policy, and be aware that a claim against the acquiring company for injury before the transfer, which would pre-date addition to the policy, will not be covered absent some special manuscript endorsement.
4. Absent an assignment of the acquired company’s policy, seek contractual indemnity from the owners of the acquired company as a part of the acquisition itself, but understand coverage for such indemnity is unlikely if the injury occurred before the indemnity was entered into. The acquired company or its owner should consider the following checklist: 1. Do not assign the acquired company’s policy, and add with carrier consent the new name of the acquired entity as an additional named insured; the coverage should be continued for a period that tracks potential statutes of limitations. 2. Contract to have the acquiring company add the acquired company or its owner or both as additional named insureds for post-transfer injuries and claims. 3. If liabilities are retained, make
sure to retain or add onto existing coverage, if any attached to those liabilities. 4. Dissolve the acquired company in the event of an asset sale or other form of merger, thus assuring a more limited period of additional exposure under Tex. Bus. Corp. Act § 7.12 (allowing three years of corporate existence after dissolution; suit must be brought within the three year period in order to avoid the time limit requirements). Both the acquiring company and the target or its owner should involve current insurance agents in the process. The ease of obtaining consent and manuscript policy solutions to insurance and risk management problems can be increased by use of an astute and well HN connected agent. Michael Huddleston is a Shareholder at Munsch Hardt Kopf & Harr, P.C. He can be reached at mhuddleston@munsch.com.
‘Experience Exchange’ Mentoring Dinner ~ 20 Years In 2 Hours ~ Tuesday, February 24 ~ 6 - 8 p.m. ~ The Belo Mansion Sponsored by the DBA Minority Participation Committee. An exchange of ideas, experiences, questions, answers, concerns, resources and success stories between senior, mid-level and junior attorneys of color—to further the growth and careers of younger attorneys and build relationships within the minority legal community. Ideal for lawyers licensed less than 10 years. Registration Fee: $20 for lawyers (or $10 for law students). Includes dinner and parking. Registration deadline: Monday, February 23 To register, contact ahernandez@dallasbar.org or (214) 220-7499.
10 H e a d n o t e s l D a l l a s B a r A s s o ciation
The Inaugural of The Inaugural of Bradley C. Weber, DBA’s 106th President, was held January 17, 2015. It was an elegant evening, with stylishly dressed guests, a silent and live auction and a casino party and dancing. Each year, the Inaugural is the culmination of the Campaign for Equal Access to Justice. This year, the Campaign reached an all-time high amount—topping the $1 million mark! A total of $1,100,415 was raised for the Dallas Volunteer Attorney Program. Congratulations to this year’s Ticket to Drive Raffle winner: Debbie Branson, who will take home a 2015 Mercedes Benz and runner up Frank Finn, winner of the Fairmont Hotel getaway trip.
February 2015
Brad Weber
F e bru a ry 2 0 1 5 â€
Dal l as Bar A ssoci ati on l Headnotes 11
106th President
of the DBA
THANK YOU Locke Lord for underwriting the
Inaugural Casino Party!
12 H e a d n o t e s l D a l l a s B a r A s s o ciation
February 2015
Why Do a Corporate Clean-Up? by Shawn McBride
For a variety of reasons, it is important to have clear records of accounts, systems, processes, powers, duties and business contracts. Emerging businesses (and some established businesses) often overlook systematizing internal processes and record keeping due to lack of time, knowledge and manpower. This often becomes a major stumbling block as businesses grow. This article summarizes some of the major issues seen on a recurring basis but is not comprehensive.
Basic Formalities/ Liability Protection
Corporations, limited liability companies and other business entities often provide their owners (shareholders and members, respectively) a liability shield where the owners are not responsible for debts and liability of the business. However, certain acts may compel the courts to “pierce the corporate veil” to hold the actual owners, officers and directors personally liable for what would otherwise be business debts and liabilities.
Some business owners fail to maintain a formal separation between business and personal finances, so that the corporation or LLC appears to be more like the alter-ego of the owners. This may lead to a perception that the business is being personally operated by the owners as if no corporation or LLC existed. Courts in such circumstances may consider piercing the corporate veil and holding business owners personally liable. Further, the use of the business bank account for personal matters (or vice versa) may raise issues relating to ownership of the bank account—a classic “comingling” of assets.
Contracts
Keeping a track of business contracts is also critically important. Businesses function by means of their relationships and agreements with external parties such as customers and suppliers. Course of dealing often takes effect, and customers and suppliers may work together for years without looking at the underlying contract. However, when a problem arises the parties often run to the files to review the original terms of the contract.
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Some contracts also contain automatic renewal clauses with long periods of notice to terminate the relationship, which can lead to harsh penalties. Additionally, should a business come up for sale, a critical component of the sale process will be a review of the contracts. Are the contracts assignable? Have they terminated by the passage of time? Have they automatically renewed on unfavorable terms? Often these issues are not thought about until the acquisition process is started. It is then often too late to negotiate a meaningful change.
Officers
Businesses typically have internal policies where specific officers are delegated certain powers and duties. Newer, smaller and fast growing businesses tend to have few or no policies in place, and being owner driven, may make oral delegation of authority and duties. When officers cease a role or leave a company, typically little or no documentation is created. Also, officers often seem to broaden the scope of their roles within an organization over time. This may create overlaps in authority and, more importantly, a third party may not understand the scope of an officer’s authority. Past officers, for their personal gain, may also continue to interact with third-parties and legally bind the company if care is not taken to communicate the change in authority to business counterparties. Ultimately, if a third party reasonably relies on officers’ authority based on dealings with the organization, courts may find those offi-
cers have the legal authority to bind the company to contracts and agreements.
Properties
It is not unusual for business owners to lease office space in their own names prior to entity formation, or lease space with personal guarantees after formation. Over time owners may contribute or use their personal property (such as a car, truck or furniture) for business or may use business assets in their personal life. This can lead to tax issues (on the depreciation of the assets and imputed income from use of business assets personally), liability issues (if an accident happens with an incorrectly titled vehicle, liability can attach and insurance could try to avoid payment on a claim) and it could also lead to issues in completing a sale in a quick manner, as an acquirer will typically want full title to all assets needed for the business and will not want to take ownership of assets that are not core to the business.
Valuation
Business owners looking to sell their businesses should engage professionals who can provide a third party perspective on the current internal systems of the business. Sellers will almost certainly see higher valuation levels attached to their business if in addition to a being a profitable venture, the internal management systems of the business are streamlined and simple for a new buyer to fol HN low through and adopt.
Shawn McBride, of The R. Shawn McBride Law Office, P.L.L.C., can be reached at shawn.mcbride@rsmlawpllc.com.
DVAP’s Finest
Basheer Ghorayeb
Basheer Ghorayeb is a partner at Jones Day, representing oil and gas companies in litigation and white-collar criminal investigations. He serves as the pro bono coordinator for his office and has managed Jones Day teams handling civil rights, religious freedom, and children’s rights cases. He volTRIM: 5"w x 7.75"h LIVE: 5"w x 7.75"h unteers at DVAP’s legal clinics and supervises new lawyers BLEED: n/a working on DVAP cases. Basheer and his colleagues at Jones COLOR: CMYK Day are also co-counsel to Legal Aid of NorthWest Texas in PUB: Headnotes an access to justice case challenging the Tarrant County District Clerk’s practice of CONTACT: Jessica D. Smith, collecting court costs from indigent litigants. Thank you for all you do, Basheer! Headnotes Editor CLIENT: Communities Foundation of Texas JOB#: CFOT-14-011 Brand Campaign
Communications/Media Director (214) 220-7477 jsmith@dallasbar.org
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D al l as Bar A ssoci ati on l Headnotes 13
Corporate Counsel/Mergers & Acquisitions
Trends in M&A Law: Shale Development by Arthur J. Wright, Lucas A. LaVoy and Claudia A. Duncan
Developing shale acreage requires complex and continuous drilling operations that result in large capital expenditures. Costs for drilling horizontal wells with multistage fracs range from approximately $2.5 million to $10 million. To fund these development projects, companies are pursuing various capital structures, including engaging in creative corporate partnership structures and joint ventures, as well as selling non-core assets. However, due to declining oil and gas prices and the resulting financial risks, exploration and production companies will find it increasingly more difficult to gain access to capital. Accordingly, they will be forced to accept greater risk and liabilities, which will be seen in financial, commercial, and operational terms that are significantly more favorable to asset buyers, capital providers, and investors. Companies will struggle to preserve deal value in sales and to obtain investors due to thin margins yielded by lower oil prices. Some of the commercial terms that seek to mitigate risk and maximize value include new defect structures with mechanisms that address acreage defects versus producing assets. These terms, which are becoming increasingly prevalent in the industry, require changes to the due diligence process provided in typical purchase documents. For example, in very large acreage acquisitions, as opposed to acquisitions of producing properties, title to many of the acquired leases will not have been formally examined. Because many of the tracts may never be drilled or are held by production at other depths, obtaining title reviews or opinions on large numbers of tracts in an acquisition package is unrealistic or of little
Because these buyers and sellers will participate in concurrent operations over the same lands following the closure of a deal, existing contracts that relate to the leases must be reviewed and occasionally amended as a condition to closing. Additionally, cooperation agreements dealing with future joint surface and infrastructure use and development should be considered in acquisition of depth severed acreage. These agreements will prove particularly important in situations where existing infrastructure will service both existing production and new production from the acquired/divested depths and where surface operations are restricted by applicable oil and gas leases or where surface facilities located on one lease service multiple other leases. Heavily leveraged producers will need to sell acreage to raise cash for development and to avoid default under their credit facilities. Greater buyer bargaining leverage will drive reduction or elimination of title deductibles and thresholds. Buyers will also push sellers to accept pro-buyer indemnifica-
benefit due to cost. Many buyers rely on field landmen to check title on acreage, versus hiring attorneys to review title. In those cases attorneys are only consulted to deal with identified complex problems. In large acquisitions, other clients take a sampling, for example 50 to 75 tracts in an area, and check these for title prior to committing to purchase. The rate of title failure found in the spot check is assumed to be roughly representative of the rate of title failure for the package. Other clients have been able to obtain and take advantage of a limited period for post-closing title review. Also, sometimes, if the package contains a high percentage of wells that are in production, even if the buyer is not buying the producing depths, the seller may have title opinions that cover all depths, and these should be copied and reviewed. Pooling and unitization are other areas in which novel defect mechanisms are developing. Horizontal drilling results in long lateral wells and accordingly large units must be formed. Older leases or leases taken by unsophisticated brokers/lease flippers sometimes may not contain authority for the operator to form pooled units that are large enough for development with long laterals. As a result, a defect for “inadequate pooling authority” arises. If the seller has marketed the economics of the sale package based on assumptions about its development, and those assumptions are not supported by the terms of the seller’s leases, then the seller should bear the burden to cure the leases’ shortcomings or take a reduction in price. An increasing number of sellers of shale assets will reserve certain depths and/or producing wells. Therefore, buyers should scrutinize the provisions of joint use contracts, such as joint operating agreements, facilities use agreements, and similar contracts.
tion provisions including lower thresholds and deductibles for indemnification. Buyers entering a play with oil at today’s lower prices will simply be unwilling to take many deductions against their expected value for the deal, because margins will be much slimmer than in the past. In conclusion, unconventional shale development will continue to occur, and falling oil prices will affect many buyers’ access to investment capital. Also, the changing financial landscape will bring pro-buyer terms in PSAs. As buyers seek to mitigate risk and preserve deal value, sellers should expect to accept greater risk and liability in the form of novel defect structures, less favorable deductibles and thresholds, and heightened scrutiny of joint use contracts and HN defect mechanism. Arthur J. Wright is Senior Counsel at Thompson & Knight. Lucas A. LaVoy and Claudia A. Duncan are Associates at the firm. They can be reached at arthur.wright@tklaw.com, lucas.lavoy@tklaw.com and claudia.duncan@tklaw.com, respectively.
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14 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
February 2015
Corporate Counsel/Mergers & Acquisitions
Acquiring Assets Out of Bankruptcy by Mark Farha
Transactional attorneys often represent a buyer of assets from an entity in bankruptcy. The financial distress experienced by bankrupt companies may create opportunities to purchase assets at depressed prices or to enter into transactions otherwise not available in normal circumstances. When an entity in bankruptcy sells assets outside the ordinary course of business, authorization from the presiding Bankruptcy Court is required, typically after notice to parties in interest and a hearing. Such a sale is usually accomplished: (i) through a Motion to Approve the Sale under Bankruptcy Code Section 363, or (ii) through a Plan of Reorganization in Chapter 11 reorganization cases.
Motion to Approve Sale Free and Clear
An advantage of purchasing assets
from a bankruptcy estate is the ability to obtain those assets free of interests of other parties. Under the following conditions, property of the debtor may be ordered sold by the Court free and clear of any liens, claims or encumbrances under Section 363(f) if: (i) Applicable non-bankruptcy law permits such sales; (ii) The other party consents; (iii) The interest is a lien and there is equity in the property; (iv) The interest is in bona fide dispute; or The holder of the interest could be compelled, in a legal or equitable proceeding, to accept a money satisfaction of such interest. Often, a lienholder will consent to the sale of the encumbered property because the funds obtained at the closing of the sale will be used to satisfy the lien. Further, if the value of the property exceeds
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the value of liens, the Bankruptcy Court can approve the sale pursuant to Section 363(f)(iii). Again, the proceeds of the sale will be used to pay the lienholder. A more controversial issue arises when a lienholder does not consent to the sale and the purchase price is less than the amount of liens on the property. Many courts have refused to approve sales in such instances. Other courts have permitted such sales so long as the purchase price is fair and reasonable and the liens attach to the sales proceeds. To ensure the price is fair, the Court may require the asset sold to be subject to competitive bidding with notice to all interested parties.
Acquiring Assets Through a Plan of Reorganization
Another way to purchase assets from a bankruptcy debtor is through a plan of reorganization. Unlike the sale of assets under Section 363, a plan of reorganization resolves claims against the debtor and the distribution of assets to creditors. Like Section 363 sales, a plan of reorganization may convey assets to third parties free and clear of liens. The restrictions placed on sales free and clear of liens under Section 363 do not apply to plans of reorganization. However, there are a myriad of other requirements for plan confirmation.
Acquiring Assets under a Plan vs. Section 363
An important difference between the two methods is timing. A motion under Section 363 can be filed soon after the commencement of the case. In contrast,
it typically takes a considerable period of time for the debtor, or other parties in interest, to file a plan of reorganization. Cost, complexity and uncertainty are also important differences. The drafting and other procedural requirements related to a plan of reorganization are generally more costly, complex and uncertain than those associated with a Section 363 motion. However, the use of a plan of reorganization as a vehicle to transfer assets offers considerable flexibility, whereas the requirements of Section 363 are more rigid. If, for example, the amount of liens on the property to be sold exceeds the purchase price, the Section 363 motion might not be approved by the court without the consent of the lienholder. In this instance, a plan of reorganization might be the best choice.
Practice Tips for Buyers from Bankrupt Entities
First, the acquisition agreement should provide that it is subject to approval by the bankruptcy court. Second, if the buyer fears that its offer to purchase assets might attract competing bids, the buyer can consider adding a provision that provides for a “breakup fee” if the assets are sold to a higher bidder. Third, both the buyer and seller should ensure that all parties in interest receive notice and opportunity to object to the proposed sale. If notice is not properly given, there is a risk that the sale can be unwound completely. Lastly, the order approving the sale should provide that the HN assets are sold free of liens.
Mark Farha, attorney at law, can be reached at markfarha@ business-lawyer.net.
F e bru a ry 2 0 1 5
Classifieds
Dal l as Bar A ssoci ati on l Headnotes 15
February
EXPERT WITNESS
Economic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, business valuation, credit damage and divorce matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. troney@thomasroneyllc.com. “We Count.” Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 2229494. dlopez@pulmanlaw.com.
FOR SALE
Share prime Texas Rangers seats at the Ballpark: Groups of 2 or 4 seats plus reserved parking pass available for each game in several front row locations, along with several locations 5-10 rows behind the plate and dugout. Tickets are selected by draft, with minimum purchase of 10 games per partner; each partner picks his/her own games (all games except opening day and playoffs included in the draft). Call (214) 560-4212 or email rwamre@advocatemag.com for information.
OFFICE SPACE
North Dallas Offices, great work environment. Window ($750) interior ($600) assistant cubicles ($150) for sublease in 5th floor law office directly off elevator. Includes Wi-Fi, two conference rooms, covered parking, front door signage. Contact Aaron at (214) 336-4004 or email info@hn-lawfirm.com. Dallas Arts District/Uptown area: Easy access on Woodall Rodgers at Klyde Warren Park. 1821 sq ft. for $25/sq ft. Multioffice space includes kitchen and conference room. Call (214) 220-1210 ext. 102 or dhaley@milbyfirm.com. 4340 North Central Expressway. 500 2000 sq. ft. that can be modified to meet requirements. Contact Jack Manning (214) 823-6600 or Jack@Lawyeranddefender. com. Located on the east Frontage road between Fitzhugh and Henderson, excellent location, friendly environment, a good place to practice. Central Expressway | Park Cities – Varying sized offices and cubicles are available for rent. Office with several long-established law practices. Perfect for Solo practitioners and 2-to-3 partner groups. Your space comes with turnkey services, amenities and updated technology at affordable pricing.
Habitat House $60,000
$50,000 $40,000 $30,000 $20,000 $10,000 $5,000
For pictures, floorplan and greater detail, please visit us at www.MeadowsLawCenter. com or call (214) 368-7880 Ext 4413. Two Uptown office spaces, @17x12 and 9x12, shared amenities, Uptown. Lemon and Cole Ave. Call (214) 276-6014. Downtown Dallas - Pacific Ave: Affordable, furnished office(s) available for rent with amazing glass views overlooking downtown Dallas. Shared break room, lobby, conference room. Internet included. Flexible terms. All professionals welcome. Call (214) 606-4386 or email Anita@ponder-chenlawgroup.com. Richardson – Spring Valley & 75. Private office space and suites for lease in Richardson. Excellent Location off Spring Valley two blocks east of I-75. Perfect space for Attorneys/CPA’s / Title Company / Insurance Agent / Architects. Available January 1, 2015. Amenities Include: Receptionist service, Use of standard conference room, Complimentary coffee service, Full kitchen, Copier/scanner available for an added charge. Flexible lease terms. All utilities included. Free parking and 24/7 access. Additional information available please send email to: janice@nacollawfirm.com. Furnished office space available within small real estate law firm located at 4054 McKinney Avenue. Shared conference and break room, copier, fax, DSL & phone equipment are available if needed. No long term commitment and a monthly rate of $450.00. Call Tom Smith at (214) 520-0600. Walnut Glen Tower (Walnut Hill/Central). Tasteful, bright, spacious offices in Class A building with views of downtown over lake with fountain. 16-story glass atrium with glass elevators and waterfall. Practice in a relaxed yet professional 4-lawyer environment which includes administrative stations, conference room, kitchen, copier, phone system, reserved garage parking, on-site restaurant and other amenities. Why not have quality of life while you practice? Please call (214) 750-1600 for details. Arts District Offices available for rent with law firm located in Downtown Dallas Class A, Arts District building. Amenities include conference room, law library, secretarial station, kitchen, parking garage, photocopy/ scanner/postage/facsimile and related amenities. Contact Laura at (214) 922-9265. Pearlstone Suites in the West End of downtown Dallas are unique new law offices combined with professional law firm marketing services to help attorneys launch or grow a solo practice or small firm. Suites include these amenities at no additional cost: Direct dial phone with personalized voicemail and call forwarding, highspeed Internet access, IT support, law office reception, on-site building security, conference rooms, kitchen and coffee service, fitness center, building directory listing, all utilities and CAM charges. Marketing services available include websites, branding, brochures, strategy, coaching and more. Pre-leasing discounts available until June 30. Visit www.pearlstonesuites.com or call (214) 446-3943.
Support the DBA Home Project Help us reach our goal of $60,000 to build our 24th house for Habitat for Humanity. For more information, log on to www.dbahp.com or contact Co-Chairs David Fisk (dfisk@krcl.com) or Ethan Minshull (eminshull@ghjhlaw.com). Make checks payable to Dallas Area Habitat for Humanity and mail donations: c/o Teddi Rivas, Dallas Bar Association, 2101 Ross Avenue, Dallas, TX 75201
To donate, log on to www.dbahp.com.
Office space available, shared receptionist/ legal assistant with solo attorney, Irving 183 and MacArthur-Wells Fargo Tower, Great location and price. Call 972-432-9400.
POSITION AVAILABLE
Business litigation firm seeks experienced trial attorney with first chair trial, deposition, and appellate experience. Some existing hourly clientele a plus. Compensation negotiable. Firm offers first rate office facility, a tenured, experienced support staff, and good work environment. Send cover letter and resume in confidence to oaklawnfirm@aol.com Finance Attorney Wanted: McGuire, Craddock & Strother, PC, seeks a bright, hardworking associate with 4-8 years commercial lending/finance experience (with an emphasis on commercial real estate lending), excellent writing skills, and excellent people skills. Prefer top 25% of class from major law school and a sense of humor. Please submit resume and writing sample to lscott@mcslaw.com. Health Law Attorney Needed. Experience in healthcare regulatory and payment matters - Medicare, Medicaid, licensing, transactional or criminal law services to healthcare providers. We prefer a problem solver with a disciplined work ethic, excellent writing skills, good attitude who is self-motivated and will participate in marketing & seminar presentations. Please email resume to markskennedylaw@msn.com. Experienced Paralegal. A privately owned, Texas based hotel development firm seeks a paralegal with 3-10 years real estate and corporate experience. Please apply online at careers.newcrestimage.com or send resume to Elise.Rutig@NewcrestImage.com. Palmer & Manuel seeks to add one or two attorneys with established practices in any of the following areas: business litigation, business transactions, estate planning or probate, or family law. Our formula based compensation system allows attorneys to keep a high percentage of their fees. See our website at pamlaw.com. Contact Steve Palmer at spalmer@pamlaw.com. Expanding North Dallas firm seeks a Real Estate Finance and Transactional Attorney. Credible experience in residential and commercial real estate transactions is required. Primary focus is on all aspects of real estate and real estate finance. Shareholder track position would be considered subject to verifiable portable business. Interested applicants should send cover letter and resume to JDJ75001@gmail.com Live and Practice Law Efficiently. If you are tired of paying high overhead, spending hours on the roads fighting traffic, or spending countless hours on administration, read on. We are an AV-Rated litigation firm in Collin County — an easy drive from the northern suburbs — looking for a strong lawyer to share in our goal of maintaining low firm overhead, high quality clients, and spending more time with our families. We handle the firm administration, office and collegial atmosphere; you practice law along with high quality partners and people. Some portable business is necessary. If interested please email us at info@saunderswalsh.com. Emmert & Parvin, LLP is seeking the addition of 2-3 attorneys with established
practices in commercial litigation, family law and probate. Our compensation formula has no billable hours requirements and allows you to set your hours. Contact Chris Parvin for more information at chris@emmertparvin.com. Legal Aid of NorthWest Texas (“LANWT”) currently has various openings throughout its firm at various locations. We are a Section 501(c)(3) nonprofit Texas Corporation. LANWT provides free civil legal services to eligible low-income residents in 114 Texas Counties. If you are interested in joining a great team that offers you the opportunity to rapidly develop litigation skills in court, a generous health benefits package, and the ability to be of service to others, we encourage you to visit LANWT’s career site at www.lanwt.org.
POSITION WANTED
Real Estate and Finance Attorney. Over fifteen years major firm experience representing lenders, buyers and sellers of commercial real estate, including multi-state portfolios. Full or part time. Willing to maintain own insurance. Dallas area. Prefer real estate section of law firm. cpant@verizon.net. Experienced Trial and Probate Attorney for Contract or of Counsel Engagements. AV rated trial lawyer, UT law grad, large firm background, and over 30 years’ first chair trial and deposition experience available for lead counsel or co-counsel engagements in business, real estate, municipal or probate matters. Refer a single case or establish an of counsel arrangement. I maintain my own office in Preston Center with staff and insurance. Reply to Dallas Bar Association, Box 15_02, 2101 Ross Avenue, Dallas, Texas 75201.
SERVICES
Energy Acquisition(s): I buy any size royalty(ies), mineral(s), working interest(s) and try to reach (and pay) the sellers asking price. I am a licensed attorney and have been making oil and gas purchases for 35 +/- years. E-mail to bleitch@prodigy.net or call Brenda at 1-800-760-9890 or (214) 720-9890 for a friendly and quick analysis and response. Transfer Pricing Expert. William Seeger, PhD, is an economist with 23 years of experience, IRS and Big Four, providing Economic consulting services, Transfer Pricing Documentation, International Tax Planning advice, and Dispute Resolution guidance and strategy. His Dispute Resolution experience includes IRS field audits, Appeals, Competent Authority, and Advanced Pricing Agreements. Former Partner, PwC and KPMG, and Dallas District Industry Economist. Contact Dr. Seeger at Quantecon Consulting,( 972) 422-9170 or visit www.Quanteconconsulting.com Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high end watches. Consignment terms available @ 10-20 % over cash. For consultation and offers please call J. Patrick (214) 739-0089. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org.
Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career Center. www.dallasbar.org/career-center.
16 H e a d n o t e s l D a l l a s B a r A s s o ciation
February 2015
W ishes to Congratulate
For their Top Verdict and Settlement in 2014. VERDICT
SETTLEMENT
$6,209,597
$12,500,000
FEDERAL COURT, TEXAS
STATE COURT, TEXAS
WOOTEN V. RELCO SYS. INC. WRONGFUL DEATH
MOTOR VEHICLE ACCIDENT
ROB CRAIN (left) | Catastrophic Personal Injury CHRIS LEWIS (right) | Criminal Defense
214.522.9404 | www.CrainLewis.com