Dallas Bar Association
HEADNOTES
Focus International/Franchise & Distribution Law
February 2011 Volume 36 Number 2
DBA Board Chair and Vice Chair Elected Jessica d. smith
Brad C. Weber and Jerry Alexander have been elected as Chair and Vice Chair, respectively, of the 2011 Dallas Bar Association Board of Directors. Mr. Weber, a partner at Locke Lord Bissell & Liddell LLP, is CoLeader of the firm’s Antitrust Litigation Practice Group. He is a graduate of University of Michigan Law School. An active mem- Brad C. Weber ber of the DBA Business Litigation and Energy Law Sections, Mr. Weber is also Co-Chair of the 2011-2012 Campaign for Equal Access to Justice and serves as the 2011 Chair of the
Focus
Finance Committee. In addition, he is the Board Advisor for the Antitrust and Trade Regulation Section, the Trial Skills Section and the Media Relations Committee. He is also past chair of numerous committees, including the Bylaws Committee and the Morris Harrell Professionalism Committee. Mr. Weber is a past president of the Dallas Association of Young Lawyers. A shareholder at Passman & Jones, Mr. Alexander’s areas of practice Jerry Alexander include antitrust, business torts, patents, trade secrets, unfair competition and labor-related business continued on page 12
MLK Day Celebrated at the Belo Mansion
Past recipient Kim Askew, left, and DBA President Barry Sorrels, right, presented the MLK Justice Award to E. Leon Carter, a partner at Munck Carter, LLP, for inspiring others and reflecting the values and service portrayed by Dr. King. The Dallas Bar Association has celebrated Martin Luther King Jr.’s birthday annually since 1993.
International/Franchise & Distribution Law
The Franchise Disclosure Document: Puzzling or Just a Puzzle? by Stephanie L. Russ and Kelly G. Dion
Drafting a Franchise Disclosure Document (FDD) is much like assembling a jigsaw puzzle. Each puzzle piece represents an element of the franchise program. When assembled, the viewer sees and understands the big picture— the franchise model as a whole. The FDD is arranged in 23 chapters— called Items—which are designed to provide prospective franchisees detailed information about the franchised business so that they can make an informed decision about whether or not to purchase a franchise. The FDD includes the franchisor’s audited financial statements and a copy of all agreements that a franchisee must sign. Federal law prescribes the content and format of the FDD, and requires delivery of the FDD at least 14 calendar days (or sooner in the sales process if requested) before a prospective franchisee signs a binding agreement or pays any consideration in connection with the franchise. Additionally, 15 states have franchise investment laws, some of which require additional disclosures to potential franchisees who live in, or will operate the franchise in, their states. Drafting with these franchisespecific statutes in mind is important because state sales and relationships laws may override provisions of the franchise agreement, as described below. While buyers become franchisees for various reasons, they usually ask the following two
questions: What is the cost of my investment? And how much can I make? To help avoid litigation, franchisors must be cautious as to the information contained in Item 7 and Item 19. Item 7 of the FDD is a table that contains a list of items representing the potential franchisee’s total estimated initial investment. The goal of Item 7 is to provide potential franchisees with material information regarding the expenses that are likely to occur in the start-up phase of the franchise so that potential franchisees can determine if they have the financial resources to start the business and support it during its initial phase. It is critical that Item 7 is accurate. Numbers are easy to compare and fairly easy to compile. If a franchisor underestimates initial investment costs, it may expose itself to misrepresentation and other fraud-based claims. With regard to potential earnings, federal law permits, but does not require, franchisors to disclose in the FDD any earnings information. Dissemination of any kind of historical or projected earnings information is considered a “financial performance representation,” and if made, must be contained in Item 19 of the FDD. Franchisors electing not to make a financial performance representation in the FDD are prohibited from providing any earnings or profit information to prospective franchisees. It is currently estimated that 30-40 percent continued on page 10
Inside 6 The Inaugural of President Barry Sorrels 9
Can They Really Do That? Expectations Meet Franchising Realities
11 Going Global: Strategic Considerations for International Expansion 13 Oil, Royalties, and Death: Transfer of a Mineral Estate
Several past recipients attended the luncheon, including (left to right) Commisioner John Wiley Price, Hon. Sam Lindsay, H. Ron White, DeMetris Sampson, Adelfa Callejo, L.A. Beford, Jr., Hon. Carolyn Wright, Kim Askew, Rhonda Hunter and Hon. Cleophas Steele.
(Left to right) Attendees John Carr, Leon Carter and DBA President Barry Sorrels.
2 He a d n o t e s l D a l l a s B a r A s s o ciation
Calendar
February Events
FEBRUARY 4 – Belo Noon
“Four Generations in the Workplace: Multi-Generational Perspectives on the Practice of Law,” Panel of speakers: Luther Jones, Ike Vanden Eykel, Penny Blackwell, Erin Callahan, and Cindy Pladziewicz, Moderator. (Ethics 1.00)* Co-Sponsored by the Peer Assistances Committee and the CLE Committee. “ESI Retention Policies, Litigation Holds and Managing eDiscovery Requests,” Malcolm Wells. (MCLE 1.00)* RSVP to kzack@dallasbar.org. At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Suite 240 Dallas, Texas 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, Griffith Nixon Davison, P.C
FEBRUARY 18 – Belo Noon
“Evidence Update,” Hon. Martin Hoffman and Andy Sommerman. (MCLE 1.00)*
TUESDAY, FEBRUARY 1 Noon
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs. Blackwell, Erin Callahan, and Cindy Pladziewicz, Moderator. (Ethics 1.00)* Co-Sponsored by the Peer Assistance Committee and the CLE Committee.
FRIDAY CLINICS
FEBRUARY 11 – North Dallas** Noon
February 2011
Corporate Counsel Section “Audit, Schmaudit—It’s Only Shrinkwrap Software,” David Weidenfeld, Jane Whitson and Linda Tyson. (MCLE 1.00)* Government Law Section “U.S. Supreme Court Update, Cases Affecting Local Government Issues,” Edwin P. Voss, Jr. (MCLE 1.00) Tort and Insurance Section “Attorney Conduct and/or Activities That Rise to the Level to be Reported to the State Bar of Texas,” Robert Hinton, Suzanne Westerheim, and Al Ellis, Moderator. (MCLE 1.00)*
Public Forum Committee
DAYL Judiciary Committee
5 p.m.
Bankruptcy & Commercial Law Section “The Meaning and Application of Adequate Assurance of Future Performances,” Jason B. Binford. (MCLE 1.00)*
THURSDAY, FEBRUARY 3 Noon
MONDAY, FEBRUARY 7 Noon
Tax Section Topic Not Yet Available
Peer Assistance Committee
DAYL Foundation Board Meeting
TUESDAY, FEBRUARY 8 Noon
Business Litigation Section “Bankruptcy Basics for the Business Litigator,” Angela Zambrano. (MCLE 1.00)*
Mergers & Acquisitions Section “M&A Developments in Delaware Law” Mark Morton. (MCLE 1.00)*
Bench Bar Conference Committee
3:30 p.m. Judicial Investitures of Judge Brenda Thompson and Judge Chris Wilmoth 6:00 p.m. Home Project Committee
Construction Law Section “Update on City of Dallas Construction Projects Including Woodall Rogers Park, Signature Bridge, Convention Center Hotel and Other Projects,” Mayor Tom Leppert. (MCLE 1.00)*
WEDNESDAY, FEBRUARY 9 Noon
House Committee LegalLine—Volunteers welcome. Second floor Belo.
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group
6:00 p.m. DAYL Board of Directors
5:15
WEDNESDAY, FEBRUARY 2
Judiciary Committee “A Conversation with Civil Court Judges,” Hon. Mark Greenberg and Hon. Gena Slaughter (MCLE 0.75)*
Family Law Section Board
11:00 a.m. Federal Bar Association
11:30 a.m. Solo & Small Firm Section “Practical Tips for Organizing the Solo/Small Office,” Kathy Rhodes. (MCLE 1.00, Ethics 0.15)* and “Hanging Out Your Shingle: Do’s and Don’ts of Going Solo,” Thelma Clardy, Laura Benitez Geisler, Steve Russell and moderator Vincent Bhatti. (MCLE 1.00)* Noon
Employee Benefits/Executive Compensation Section “Fees, Forms, Fiduciaries and Plan Assets: Representing Plans and Funds in the Alternative Investment Arena,” Eric Winwood. (MCLE 1.00)*
THURSDAY, FEBRUARY 10
Lawyer Referral Service Committee
11:30 a.m. DAYL Barristers for Babies
St. Thomas More Society
Noon
DAYL CLE Committee
Collaborative Law Section “International Academy of Collaborative Professionals,” Linda Solomon. (MCLE 1.00)*
CLE Committee
Publications Committee
6 p.m.
J.L. Turner Legal Association
FRIDAY, FEBRUARY 4 Noon
Friday Clinic – Belo “Four Generations in the Workplace: Multi-Generational Perspectives on the Practice of Law,” Panel of speakers: Luther Jones, Ike Vanden Eykel, Penny
Christian Lawyers Fellowship
FRIDAY, FEBRUARY 11
11:30 a.m. Family Law Section Bench Bar. InterContinental Hotel, 15201 Dallas Pkwy., Addision, TX. Speakers: Dr. Richard Warshack, Charlie Wilson, Randy Johnston. For more information, contact Jeff Coen at jeffco@airmail.net. Noon
Friday Clinic – North Dallas* “ESI Retention Policies, Litigation Holds and Managing eDiscovery Requests,” Malcolm Wells. (MCLE 1.00)* RSVP to kzack@dallasbar.org. At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Suite 240 Dallas, Texas 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, Griffith Nixon Davison, P.C Trial Skills Section Topic Not Yet Available
MONDAY, FEBRUARY 14
11:30 a.m. Solo & Small Firm Section “Ethics for the Solo & Small Firm Practitioner: Let’s Keep it All Hearts & Flowers,” Rhonda Beassie and Allison Regan. (Ethics 1.00)*
Proceedings,” Hon. Mark Whittingon, Hon. P. Oswin Chrisman and Cecilia H. Morgan. (MCLE 1.00)*
Law Day Committee
Library Committee
Pro Bono Activities Committee
DAYL Lunch and Learn: Legal Writing Tailored for Judges
Municipal Justice Bar Association
5:15 p.m.
Non-Profit Law Study Group LegalLine—Volunteers welcome. Second floor Belo.
THURSDAY, FEBRUARY 17 Noon
Appellate Law Section “State of the Texas Supreme Court,” Chief Justice Wallace B. Jefferson. (MCLE 1.00)*
Minority Participation Committee
Dallas Gay and Lesbian Bar Association
UPL Subcommittee
FRIDAY, FEBRUARY 18 Noon
Friday Clinic – Belo “Evidence Update,” Hon. Martin Hoffman and Andy Sommerman. (MCLE 1.00)*
Transition to Law Practice Committee
MONDAY, FEBRUARY 21 No DBA meetings scheduled
TUESDAY, FEBRUARY 22 Noon
Franchise & Distribution Law Section “Annual Franchise Law Update,” Stephanie L. Russ and Kelly G. Dion. (MCLE 1.00)*
Probate, Trusts & Estates Section “Guardianships,” Niki Deshazo and Donna Yarborough. (Ethics 1.00)*
American Immigration Lawyers Association
DAYL Aid to the Homeless Committee
6 p.m.
Dallas Hispanic Bar Association
WEDNESDAY, FEBRUARY 23 Noon
Sports & Entertainment Law Section “So You Want to Write a Book: Lawyers and Publishing,” David Marlett, Jamey Newberg and Mike Farris. (MCLE 1.00)*
Legal Ethics Committee
DAYL Environmental Awareness Committee
DVAP New Lawyer Lunch. For more information, contact Chris Reed-Brown at reedbrownc@lanwt.org.
THURSDAY, FEBRUARY 24 Noon
Criminal Law Section “Gang Evidence,” Hector H. Garza. (MCLE 1.00)*
Environmental Law Section “Discussion of UESPA PCB Use of Authorization Advanced Notice of Petition for Rulemaking,” Jim Kerlin. (MCLE 1.00)*
Legal History Discussion Group Senior Lawyers Committee
Noon
Alternative Dispute Section “Performance Intelligence for the Mediator’s Mind,” Robin Pou. (MCLE 1.00)*
Real Property Law Section “All the Latest on Online Records and Paperless Filings,” Gary Fitzsimmons, John Warren and Robert J. Stack. (MCLE 1.00)*
9:00 a.m. Clerks and Coordinators Seminar
TUESDAY, FEBRUARY 15
FRIDAY, FEBRUARY 25 Noon
Intellectual Property Law Section Topic Not Yet Available
MONDAY, FEBRUARY 28 Noon
Computer Law Section Topic Not Yet Available
Securities Section “Antitrust Pitfalls in Doing a Merger or Acquisition,” Greg Huffman. (MCLE 1.00)*
Law in the Schools and Community Committee
Criminal Justice Committee
Speakers Committee
DAYL Solo & Small Firm Committee
DAYL Elder Law Committee
Golf Tournament Committee
DAYL Animal Welfare Committee
TUESDAY, MARCH 1
Dallas Asian American Bar Association
Noon
Energy Law Section “Texas PUC: 2010 Year in Review,” Marianne Carroll. (MCLE 1.00)*
International Law Section Topic Not Yet Available
WEDNESDAY, FEBRUARY 16 Noon
Health Law Section “Mediation and Conduct of Peer Review
6:00 p.m. Experience Exchange Mentoring Dinner. Sponsored by the DBA Minority Participation Committee. Registration Fee: $20 for lawyers; $10 for law students (includes dinner & parking). RSVP to ahernandez@dallasbar.org or (214) 220-7499, by February 28.
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.
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D al l as Bar A ssoci ati on l Headnotes 3
DBA Launches New Website Staff Report
As you may have noticed, the Dallas Bar Association website has a new look. As of January 1, www.dallasbar. org is up-to-date, organized and user friendly. You’ll find the same helpful information that’s always been there, but the website now offers an easier way to find what you are looking for—and there are a few new additions. The clean look of the website opens with three images promoting upcoming events and our “Today at the DBA” calendar. You’ll find helpful tabs at the top of the page, including About the Bar, Membership, For the Public, CLE, Judiciary, Pro Bono and the Belo Mansion. Each tab offers a drop-down menu for easy navigation. A prominent Member Login is at the top left of the page and a search option is at the top right. In the middle of the page, you’ll find easy access options for Community Involvement; Staying Connected with press releases, Headnotes and DBA Online; and a Featured DBA Member, where each month a different Section or Committee Chair will be featured. A short Q&A will give you a chance to “meet” one of your fellow DBA members. You may have seen January’s Featured Member—Aaron Tobin, of Anderson Tobin, PLLC, Chair of the Public Forum Committee. February’s Featured Member is James Deets, of Hunton & Williams, LLP, Chair of the Employee Benefits & Executive Compensation Section. Below this, a list of Quick Links can be found on the right side of the homepage. Don’t forget to take a look at our Publications page for a quick view of all the publications offered by the Dallas Bar Association, and easy access to current and past issues of Headnotes. The new DBA Annual Events Page, located under the tab Quick Links option, lists all of the DBA’s main events throughout the year, with detailed information for each and an easy way to contact the corresponding
staff member. Section and Committee pages are available and can be found under the tab “Membership.” All Committee and Section officers have been updated. The Section pages are a great way to keep your members informed, upload materials and share information about your Section. If you haven’t already appointed a web administrator, please do so and have them contact Jes-
sica Smith at jsmith@dallasbar.org or (214) 220-7477 for the Section username and password so you can get started on your webpage updates. Also found under Membership is a link for “New Lawyers/Law Students,” which offers a simple way to see how you, as a new, or soon-to-be, attorney can get involved with the DBA. Also, don’t forget to click the “Get Involved” option under Membership to see how
you can sign up for a Committee, Section or volunteer at DVAP. Under the “For the Public” tab, you can find items such as Law-Related Education, Advertising, DVAP, Legalline and more. And, when you need to look up a DBA member or find a legal expert, the DBA Membership Directory and Legal Expert Witness Guide are easily HN found under Publications.
2011 Energy Symposium March 3 - 4, 2011 — Fort Worth, Texas
The Only Law School Located On The Barnett Shale Presents this Third Annual Symposium
Co-Hosted By Tarrant County Bar Association Energy Section
Who Should Attend? This event will include a wide variety of topics beneficial to legal practitioners, landmen, and other energy professionals. This symposium is anticipated to be approved for 10 Hours CLE Credit, and 10 CEU Hours for Landmen For more information please contact: Jeanette Walston Texas Wesleyan Law Review Symposia Editor texwesenergysymposium@gmail.com http://tinyurl.com/energysymposium
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 2011
Headnotes
President's Column
Published by: DALLAS BAR ASSOCIATION
Honoring the Profession by BARRY SORRELS
Inaugural Address given on January 15, 2011. I cannot tell you how deeply moved I am on this occasion. I hope you realize how grateful I am for this honor. Leon Carter, thank you for that beautiful invocation. And, congratulations, Leon, on being the 2011 Recipient of this Association’s Martin Luther King Jr. Justice Award. Ike Vanden Eykel, thank you for that generous and thoughtful introduction. As many of you know, Ike is a highly-respected family lawyer and an excellent representative of our family law community. Through years of service, he and his firm have developed a legacy of generous contributions—giving their time and money to our Dallas Volunteer Attorney Program in one of the highest callings of our profession, the delivery of pro bono legal services to those in need. Ike’s theme in 2010—Team DBA—reinforced the notion that, in many ways, we are all in this legal community together. Thank you for your leadership last year. Ladies and Gentlemen, please stand and join me in expressing our gratitude for his service. To our friend, colleague, and 101st President of the Dallas Bar Association, Ike Vanden Eykel. Ladies and Gentlemen—members, family and friends: None of us would be here tonight without the special people who have loved and supported us, and I am blessed to have a bunch of people here loving and supporting me tonight. My mother, Evelyn, and her husband, Jimmie—live exciting, vibrant lives and model for the rest of the family that age is just a number. I grew up with three brothers, and the only thing I am willing to tell you is that you had to eat fast if you wanted the last piece of chicken fried steak. We lost our older brother, Nathan, three years ago. He would have loved this night. But, I’m very happy to share it with my two younger brothers. Craig is here with his wife, Sandy; and my youngest brother, Lance is here. My two lovely daughters are here—Quincy and Avery— who have never looked more beautiful to their dad than they look to him right at this moment. My wife, Brenda is here— who has shared with me a life of love, encouragement and friendship. Thank you all for your inspiration, support and affection. In the Dallas Bar, there is no greater asset to the administration than my friend, our Executive Director, Cathy Maher. Needless to say, her knowledge and expertise provide a guiding light for all of us, and in the upcoming year, especially for me. Thanks to you all; who have worked so hard to make this evening a success. I extend my heartfelt thanks. I consider myself very lucky to work with scholars of criminal law and exceptional advocates, my four law partners, Robert Udashen, Bruce Anton, Gary Udashen, and Kevin Ross, and our associates, Joey Mongaras, Stephanie Luce, Katherine Borras and Dan Gividen. I could not move on without recognizing my legal secretary, Janine Hargraves. We have worked, laughed and argued with each other every day. When I first hired her, I thought I would be the boss, but I know a lot more now than I did 27 years ago. It is an honor to work with all of you. I have close friends; lawyers who I am honored to share this night with. John Carr, a prominent family lawyer in the Salem/Boston area, traveled from Massachusetts with his wife, Carol, to be here tonight. One of Texas’ great criminal defense lawyers, and a close friend of mine, Jeff Kearney from Fort Worth, is here tonight with his wife, Olivia. And, another outstanding lawyer I admire, Mark Werbner, my close, personal friend since law school over 3 decades ago. I have chosen for my theme in 2011 “Honoring the Profession,” so tonight; I want to share with you why I have chosen that theme and my plans for 2011.
CLE/Mentoring
Over the years, it seems my friends and I have had one continuous conversation. We ask each other the same question that I know all of you have been asking yourselves, “How can I get better at the practice of law?” I believe the pursuit of that answer is why we are all here. The desire to become better lawyers has made our home, the Belo Mansion, first and foremost, a place of learning where we help each other learn our craft, elevate our skills, and grow as lawyers. We all need teachers and mentors to share wisdom and experience, and the magical powers that come with it. We know that none of us can “go it alone.” The work we do is challenging, and, it seems, the stakes are always high. That reality drives the men and women drawn to this profession. We know that the greater our skills, the better our chances of just results for our clients, and justice is important. Go to the Belo Mansion, and you will see lawyers volunteering their time and energy to other lawyers. The Dallas
Bar Association is the second largest provider of continuing legal education programs in the State—second only to the State Bar of Texas—and offers over 400 programs a year, almost all of which are prepared, produced and presented by our own members volunteering their time. Our members also believe we have duties and obligations outside the doors of the Belo, and we back up these beliefs with action. From the tallest buildings housing the largest, international law firms to the solo practitioners sharing space in small suburban offices, the lawyers of our association donate their time, money, and experience to this community. We have 38 standing committees and 29 standing sections populated by thousands of lawyers—most, if not all, have full time jobs, yet still find a way to volunteer their time and contribute. The Community Involvement Committee, Law in the Schools Committee, Legalline, Mentoring, Minority Participation, Pro Bono Activities and the Summer Law Intern Program, just to name a few.
Dallas Volunteer Attorney Program
And, of course, we are so proud of our Dallas Volunteer Attorney Program—working in partnership with Legal Aid of Northwest Texas— and financially supported by our Equal Access to Justice Campaign. As you just heard, because of the extraordinary efforts of Jerry Alexander and the members of his Campaign committee to secure donations (largely from our members), they raised over $700,000—more than has ever been raised before. These are practicing lawyers with full-time jobs, not professional fundraisers. And they have spent their free time working for this campaign so that more members of our community, living at or below the poverty line, will receive free legal services. With that kind of support, the Dallas Bar pro bono efforts are constantly growing and evolving. Michael Regitz, a fiveyear lawyer at Fulbright & Jaworski—and Dan Scott, a fiveyear lawyer at Gardere Wynne & Sewell—opened the Veterans Legal Clinic in Dallas to help provide basic legal aid to the deserving men and women of our country’s armed forces. Mike and Dan worked hard to bring in lawyers with a wide range of skills, so they would be able to handle many of the different legal issues presented by the veterans who came to the clinic. They are helped in this effort by our Dallas Volunteer Attorney Program and the State Bar’s Texas Lawyers for Texas Veterans. Pablo Almaguer, Chairman of the Board of the State Bar of Texas, who is a guest with us tonight, has played an important role in implementing this initiative statewide. So far, over 350 veterans have visited the clinic and over 100 veterans have received continuing legal services at the Dallas Veterans Legal Clinic.
Ambassadorship/Diversity
Another word about Mr. Almaguer. He is not only the first legal aid lawyer, but also the first Hispanic lawyer, to become Chairman of the Board of Directors of the State Bar of Texas. We at the Dallas Bar salute your accomplishments, and I am going to ask you to do us a favor in your many travels across this great state. Please tell all who will listen that at the Dallas Bar, not only do we believe in diversity, but it is our formal policy to promote diversity. We believe a diverse membership adds richness, depth, texture and value to our bar. Wherever we go, whatever we do—hosting national or international lawyers—sponsoring the Dallas Minority Attorney programs—participating in programs within Dallas ISD—or talking to law students—we will deliver the clear message that we want men and women of every color and creed to come to Dallas, become lawyers, and become members of the Dallas Bar Association. In 2011, our doors at 2101 Ross Avenue will be open, and we will host some very special guests. We will help our colleagues in the Dallas Hispanic Bar Association in welcoming the Hispanic National Bar Association for their annual convention. This is the first time this convention has been held in Dallas. Many members of the Dallas Hispanic Bar Association are also distinguished members of our Dallas Bar Association. We will help them roll out the red carpet for these honored guests who are visiting our city and jointly host a reception in their honor at the Belo Mansion. We will also invite to the Belo lawyers from every populated continent: Africa, Asia, Australia, North and South America and Europe. They will be in town for a six week academy held at the Center for American and International Law. I believe an evening like this has the potential to foster friendships and create goodwill. Our Public Forum Committee, which has sponsored programs of intense interest to the general public, will be ready continued on page 7
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: Barry Sorrels President-Elect: Paul K. Stafford First Vice President: Sally Crawford Second Vice President: Scott McElhaney Secretary-Treasurer: Sean Hamada Immediate Past President: Ike Vanden Eykel Directors: Brad C. Weber (Chair), Jerry C. Alexander (Vice Chair), Kim Askew (At-Large), Penny Brobst Blackwell (President, Dallas Association of Young Lawyers), Eric Blue (President, J.L. Turner Legal Association), Hon. Rob Canas ( Judicial At-Large), Wm. Frank Carroll, Rob Crain, Laura Benitez Geisler, Hon. Martin Hoffman, Michael K. Hurst, Monica Latin (At-Large), Karen McCloud, Eunice Kim Nakamura (President, Dallas Asian American Bar Association), Mary Scott, Hon. Teresa Guerra Snelson (President, Dallas Hispanic Bar Association), Diane M. Sumoski; and Michele Wong Krause. Advisory Directors: Chip Brooker (President-Elect, Dallas Association of Young Lawyers, Victor N. Corpuz (President-Elect, Dallas Asian American Bar Association), Lori Hayward (President-Elect, J.L. Turner Legal Association) and Carlos Morales (President-Elect, Dallas Hispanic Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Douglas S. Lang Directors, State Bar of Texas: Talmage Boston, Christina Melton Crain, Beverly Bell Godbey, Robert R. Roby, Frank E. Stevenson, II 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 Advertising: Karla Howes PUBLICATIONS COMMITTEE Co-Chairs: Vincent J. Allen and Timothy G. Ackermann Vice-Chairs: Lea N. Clinton and Natalie L. Arbaugh Members: H. Joseph Acosta, Kevin Afghani, Nelson Akinrinade, Vance L. Beagles, Jason Bloom, Barbara Boudreaux, Jeremy Camp, Noel Chakkalakal, Y.W. Peter Chen, Ryan Cosgrove, Sally Crawford, Weston Davis, Pat Driscoll, David Drummer, Dawn E. Fowler, Jennifer Gajak, Constance Hall, James Holbrook, Dyan House, Victor Johnson, Harold Jones, Adam Kielich, Michelle Koledi, Cherika Latham, Jamie McKey, Patrick McLain, Thomas L. Mighell, Clay Miller, Jennifer Mitchell, Heather Bailey New, Emmanuel Obi, Jenna Page, Kirk L. Pittard, Elizabeth Pletan, Irina B. Plumlee, Laura Anne Pohli, Robert Ramage, Juan Renteria, Bryon Romine, John Roper, Gregory W. Sampson, Mary Scott, Barry Sorrels, Thad Spalding, Paul K. Stafford, John C. Stevenson, Amy E. Stewart, Scott Stolley, Roxana Sullivan, Sherry Talton, Peter S. Vogel, Suzanne R. Westerheim, Elisabeth Wilson, Sarah Q. Wirskye, Sarah Woodell, Angela Zambrano and Viktoria Ziebarth 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 Coordinator: Rhonda Thornton Executive Assistant: Michelle Dilda Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Amy E. Smith 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 Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Lakeshia McMillan, Andrew Musquiz, Jigna Gosal, Tina Douglas Data Entry/Office Support: Patsy Quinn Copyright Dallas Bar Association 2011. 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 Associationís 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.
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Focus
D al l as Bar A ssoci ati on l Headnotes 5
International/Franchise & Distribution Law
Attorney-Client Privilege Across Borders: In-House Counsel by Jordan W. Cowman and Ausra Laurusaite-Kromelis
“Never write what you can speak; never speak what you can wink,” as the sage expression goes. “And never put anything in an e-mail,” Eliot Spitzer added recently. These admonishments ring true to in-house counsel advising multinational companies doing business in the European Union, in light of recent developments regarding privilege in EU-level regulatory cases. Imagine that your client, a transnational corporation, conducts an extensive internal analysis to improve its global antitrust compliance program. In-house lawyers based in several countries are involved. Memoranda and e-mails containing self-critical analysis are exchanged between lawyers and company executives. All communications are made between in-house lawyers and the client for the purpose of giving legal advice; none of it is disclosed to third parties. Thus, you can rest assured that attorney-client privilege will protect them from seizure and use as evidence against your client by, say, the European Commission in conducting an antitrust probe, right? Think again.
Erosion of Attorney-Client Privilege?
Domestically, the erosion of attorneyclient privilege has been noted in the post-Enron world. Anything kept secret
increasingly is viewed as a red flag to inappropriate activity. Nevertheless, the principle that attorney-client communications of both outside and in-house counsel are privileged remains intact, although diminished in recent years, in the U.S. However, operating in overseas jurisdictions, often under conflicting regulations, subjects a company to special challenges regarding disclosure and confidentiality matters. When a U.S. company’s operations reach jurisdictions where the legal system is not based on English common law, it faces attorney-client privilege rules that are quite different. It is particularly important that inhouse counsel is aware of these rules in every jurisdiction in which the company operates.
Development for In-House Lawyers
The European Court of Justice, the highest court in the EU, recently issued a highly-anticipated decision in Akzo Nobel Chemicals Ltd. and Akcros Chemicals Ltd. v. European Commission on privilege as it pertains to in-house counsel. The ECJ definitively ruled that communications between in-house counsel and their clients regarding EU competition matters are not protected by legal professional privilege (LPP), a concept similar to the U.S. attorney-client privilege. The Akzo case arose from the February 2003 investigation by the European Commission (EC) of the alleged anti-competitive practices by Akzo Nobel N.V., a large multinational company and the world’s
JUDICIAL INVESTITURE Judge Brenda Thompson, Probate Court No. 1 Judge Chris Wilmoth, Probate Court No. 2
largest maker of paints. The EC, during a two-day dawn raid of Akzo’s UK offices, seized a number of documents, including certain e-mails exchanged between Akzo’s general manager and the company’s inhouse competition counsel, a member of the Netherlands Bar. According to the ECJ, the LPP did not apply to in-house lawyers. They do not enjoy the same degree of independence as outside lawyers, concluded the ECJ, due to their close economic ties to the company. As a result, neither bar membership nor professional ethical obligations associated with it are sufficient to make an in-house lawyer capable of dealing with conflicts of interest between professional obligations and the wishes of the client.
Lots of Moving Parts
Additional confusion arises from the fact that LPP under EU law is different than it is in many of the 27 EU member states. Not only does the approach of civil law countries differ significantly from that of the common law countries (for example, under UK law LPP applies to in-house lawyers), there is also no uniformity among the EU civil law countries regarding privilege. Key points, then, are that (1) identical evidence receives different privilege status in parallel proceedings in various countries, and (2) while in-house privilege does not apply on the EU level, it can still be relied upon in matters involving national laws of some EU member states.
Lessons for Protecting the Privilege
When dealing with the client’s overseas offices, U.S. in-house counsel should be aware that privilege may not attach to attorney-client communications and that correspondence sent to the EU may be seized by the EU competition authorities in a regulatory probe. In a nutshell, the communications with your overseas colleagues that you thought were privileged may be a dawn raid, or a clever discovery request, away from disclosure. To increase the likelihood that privilege is preserved, you should, among other things: Familiarize yourself and your client with privilege laws in all relevant jurisdictions; Be mindful regarding what communications are sent overseas; Involve outside counsel early upon discovering a potential violation of EU antitrust laws or when developing internal compliance programs; and Establish protocols and procedures to maximize privilege. Finally, avoid creating unnecessary documents, and never write what you HN can speak (or wink)!
Jordan W. Cowman is a Partner and Ausra Laurusaite-Kromelis is an Associate at Akin Gump Strauss Hauer & Feld LLP. Their focus is international law, international public policy, cross-border matters and corporate compliance. They can be reached at jcowman@ akingump.com and alaurusaitekromelis@akingump.com.
Criminal Appellate & Post-Conviction Seminar Friday, March 18, 9 a.m. to 3:30 p.m., at the Belo The seminar will cover Preservation of Error, the Nuts and Bolts of Criminal Appellate Practice, Applications for Writs of Habeas Corpus, Capital Murder Appeals and Writs, Significant Decisions of the Court of Criminal Appeals, Ethics and the standards for the new Board Certification in Criminal Appellate Practice. Speakers will include Appellate Court Judges and prominent criminal appellate lawyers from the defense and prosecution side. For more information call Gary Udashen (214) 468-8100 or Cynthia Garza (214) 653-3600.
Tuesday, February 8, at 3:30 p.m. Belo Mansion
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6 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
February 2011
The Inaugural of Barry Sorrels
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D al l as Bar A ssoci ati on l Headnotes 7
DBA’S 102ND PRESIDENT
Honoring the Profession continued from page 4
on short notice to present programs addressing relevant, developing topics—and controversial issues—important to this community. We will open our doors to any member of the public who would like to engage in the discussion of these public issues. This positive flow of new, dynamic, fresh energy that all these guests will bring to our home, the Belo Mansion, is healthy for our association.
Criminal Justice Forum
We believe in diversity, new friends and new ideas. We also believe in justice and due process of law. I am certain of that because every lawyer in this room took an oath to support the Constitution. It is a privilege for me now to recognize a man whose commitment to our system of justice and the rule of law defines his life, Judge Patrick Higginbotham. As most of you know, Judge Higginbotham is a former Dallas trial lawyer, former federal District Judge, and, now, Senior Judge on the United States Fifth Circuit Court of Appeals. He has a reputation as one of the most well-respected jurists in the nation. He is an ardent protector of our 6th Amendment right to trial by jury, and he has personally shaped my career, as well as the careers of many of my colleagues, because of his unmatched respect for and commitment to the criminal defense bar. When he speaks to us about his feelings for the importance of our work, he motivates and inspires us. Once, in a private conversation, he shared his views on the importance of a strong criminal defense bar in our system of criminal justice. His metaphor for the system is a stool with three legs—the judiciary, the prosecution and the defense are the legs. All must be strong, or it will not stand. His description is the source for the 2011 Criminal Justice Forum this
October. The forum brings together our judges, prosecutors and private and public defense attorneys to share ideas about the Dallas County criminal justice system. There will be no trespass— zero—on the fundamental responsibilities or respective roles of the judges, Craig Watkins’ prosecutors, or criminal defense attorneys in our adversarial system of justice. When we come together, it will be to discuss the areas of common ground we share. Those individuals responsible for the planning and preparation of this unprecedented opportunity are also well known leaders within the Dallas Criminal Justice System. Judge Elizabeth Crowder will chair the committee. Her co-chairs will be Judge Roberto Canas, and my well-respected law partner, Bruce Anton. Honorary Co-Chairs will be District Attorney Craig Watkins, and Public Defender Lynn Pride Richardson—who have pledged the enthusiastic participation of their respective offices. All will work hard to properly prepare between now and then. Their leadership in this forum is important. Because leaders of this quality and caliber must be involved for this forum to make real, positive strides, not only for our judges, prosecutors and defense attorneys, but also for the people of Dallas County. Judge Higginbotham, thank you for being here, for your contributions to our justice system, and for the knowledge and support you have given me and all other criminal defense attorneys.
Judicial Media Response Team
The Dallas Bar recognizes and appreciates the significant contributions our judges make to our system of justice, this community and our association. In the course of our professional lives, unfortunately, we have all seen judges unfairly attacked in the media for merely exercising their duty to apply the law to the facts in a fair and
impartial manner. This is not right, but it happens. It is made worse because there are many rules preventing judges from publicly defending themselves. This year, we will begin standing up for them, when appropriate. The Dallas Bar will adopt the basic model created by the American Bar Association and ask a team of highlyrespected lawyers to form the Judicial Media Response Team. The purpose of the team will be to provide quick responses to serious and unjust criticisms of judges. Be assured that the Dallas Bar is, and will remain, a non-political, nonpartisan organization that embraces the entire diversity of the political beliefs of our members. This team will not be used for political purposes and will not respond to political or personal criticism. We will respond to criticism only if it unjustly impugns the integrity of the judiciary. When the team is called to action, we will defend our judges and educate fellow citizens about the core concepts of our system of justice. This skillful team will always be ready, but, it is my hope, rarely be needed. Even though we may not accept every request, I assure you that when we do, our response will be professional, appropriate and effective.
Media Training
In this day and age of 24-hour news coverage and growing interest in legal matters, the odds are increasing that you may be contacted by the media. Many of us have differing opinions on what to do if, and when, that happens, but in any case, we must be prepared to defend our clients in the court of public opinion when it is in their best interest, and not in conflict with the rules of professional conduct. This year, the Dallas Bar will offer two half-day media training sessions, one in the spring, one in the fall, to teach the fundamentals of dealing with media attention. These intensive ses-
sions will be coordinated by our Media Relations Committee, along with the experts from Androvett Legal Media, to help build confidence and skill so that when the media calls, you will capitalize on the opportunity to effectively represent your client, yourself and your profession to the public.
Reasons to Honor
I have seen the many positive contributions of our lawyers. We support each other by providing continuing legal education. We form mentoring relationships with other lawyers, law students and students. We celebrate and promote diversity. We help provide legal representation to those who cannot afford it. We defend the rule of law. Being a lawyer—being a judge—in a constitutional democracy is special. We are responsible for practicing law, for the rule of law in our community, and, ultimately, for justice for the citizens of this city, county, state and nation. These facts are many of the reasons why I have chosen “Honoring the Profession” as my theme for 2011. But there are other reasons, also. Intensely personal reasons. Not just personal to me, but to the men and women I practice law with—to Jeff and John and Mark—and to most, if not all, of you here tonight. The great battles we fight, the constant challenges we face, and the extra effort we put into our practice—these things broaden and deepen our individual experiences and enlarge our lives. The practice of law, which contributes so much to our way of life, provides us with a nourishment the human spirit needs and wants—that is, feeling a deep sense of meaning and purpose in your heart while living in this world. The profession deserves to be honored because it is an honor to be a member this profession. I am so pleased that you all came tonight. I promise to do my best as your president. HN Thank you very much.
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 2011
Column Writing on Writing
Toxic Words by Scott P. Stolley
Bryan Garner, the preeminent legalwriting scholar, has said: “If you approach your own writing mercilessly, your readers are sure to be merciful.” So, for example, you should be merciless in eliminating words that may impede the court’s comprehension. Even more importantly, you should mercilessly eliminate what I call toxic words. These are words that, when used incorrectly or indiscriminately, can damage your case or your professional credibility. The following words are often toxic and should rarely, if ever, be used in a brief. Disingenuous—I cringe when I see this word in a brief. It gets thrown around too freely, seemingly without knowledge of its meaning. Many lawyers seem to think that to be disingenuous is to be inconsistent or contradictory. But the word means something much worse. One dictionary defines disingenuous as “not straightforward or candid.” Synonyms for disingenuous include deceitful, deceptive, dishonest, misleading and untruthful. So, when you say that the other side is being disingenuous, you are doing more than accusing them of being inconsistent. You are
effectively calling counsel a liar. That is a serious accusation that should almost never appear in a brief. If your opponent is being inconsistent or contradictory, just say that. If you think worse of your opponent, then say something like “The defendant misunderstands the facts,” or “The plaintiff misreads the case law.” You can point out that your opponent is wrong without accusing them of lying. Specious—This word is a close cousin to disingenuous. It means “having superficial appeal but false.” So it does not necessarily accuse counsel of lying. But it comes close, especially when you consider that some synonyms for specious are bogus, deceptive, fake, fallacious, misleading and phony. Overall, it is best to avoid this word, since it is potentially too accusatory. And, because many people don’t understand its meaning, it makes sense to avoid the word anyway. Clearly—It is common to see briefs with statements like “Clearly, the defendant is wrong,” or “Clearly, that is not the law.” It is ironic, but the statement that follows “clearly” is usually not clear. What follows is usually some conclusory, ipse dixit statement that is subject to question. So the word “clearly” weakens your argument. The same is true of its allies: obviously,
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undeniably, plainly, patently, undoubtedly and incontestably. You are better off omitting those words. Your writing will be stronger, because courts reflexively question what follows when they see “clearly” or its allies. Woefully—It is not unusual to see a brief containing a statement such as “The appellant’s statement of facts is woefully inadequate,” or “The appellee’s analysis is woefully off the mark.” Used in this way, “woefully” is almost always hyperbole. Worse, it is hyperbole that calls attention to itself, because something about that word naturally captures a reader’s mind. Experts uniformly caution against any hyperbole in legal writing, as it is prone to weaken your argument. That goes double for hyperbole that calls attention to itself. Other examples of hyperbolic phrases are blissful ignorance, grievous error, especially egregious, utter fallacy, utterly wrong and completely unsupported. How do you avoid such hyperbole? The best solution is to omit the adjectives and adverbs. Let the nouns and verbs do your talking. He—You ask: How can this male personal pronoun be toxic? Answer: Precisely because it is male, it excludes the female. So if you write “When a judge enters a judgment, he must do so in writing,” you are
guilty of sexist writing. This is toxic because it automatically offends some percentage of both the male and female populations. Some have suggested that a solution is to use contrivances such as he/she or s/he. These are abominations to be avoided. Even worse is s/he/it. Think about how that would be pronounced. A better solution is to rewrite the sentence to avoid gender (“Judges must enter judgments in writing”), to include both genders (“When a judge enters a judgment, he or she must do so in writing”), or to use a plural pronoun (“When judges enter judgments, they must do so in writing”). The Court must . . . . —This phrase is acceptable when you are telling the court something routine—such as that the court must follow a certain standard of review. But it can become toxic when you are telling the court how it must rule. Courts usually resist being told that they have no option but to rule a certain way. As with the other toxic words, this is not the best way to endear HN yourself to the court. Scott P. Stolley is the leader of the Appellate Practice Group at Thompson & Knight LLP in Dallas. He is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization. He can be reached at scott.stolley@tklaw.com.
Mock Trial Competition Judges Wanted
If you are interested in Season Tickets, Suite Rentals or Group Tickets, please contact Jeremy Christopher at (817) 273-5173.
The Texas High School Mock Trial Competitions in Jan., Feb., and Mar. 2011 are in need of attorneys to help critique. Teams are from DISD, Region 10 and across the State. Variety of dates available. Earn self-study CLE credit. Sign-up online at www.dallasbar.org/thsmtc or contact Amy Smith at asmith@dallasbar.org.
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D al l as Bar A ssoci ati on l Headnotes 9
International/Franchise & Distribution Law
Can They Really Do That? Expectations Meet Franchising Realities. by Kat Tidd
A franchise is not a magic word, it is a legal definition: (1) license a trademark or permit substantial association with the trademark or trade name; (2) accept payment of consideration; and (3) provide significant assistance, control or other forms of ongoing support or a continuing relationship. If that definition is met, then the franchisor has certain obligations concerning the timing and manner of offering and selling a franchise, and the use of a Franchise Disclosure Document. Keep in mind that a franchise is essentially a specialized form of business opportunity, with the additional element of a trademark or trade name license. And, generally, a franchisee has no special rights except those that the franchisor grants by contract or those accruing through reasonable reliance on franchisor promises. In some states, there are specific statutes that regulate relationships and/or termination, like Arkansas, New Jersey (Franchise Practices Act) and Wisconsin (Fair Dealership Law). Pricing. While many antitrust issues have fallen into disfavor, pricing controls traditionally unquestioned as per se unlawful price-fixing practices were rehabilitated by the Supreme Court in Leegin Creative Leather Products Inc. v. PSKS, Inc., 127 S. Ct. 2705 (2007). Since Leegin’s holding that vertical price restraints are to be evaluated under the rule of reason, Pandora’s Box has opened. Leegin offers franchisors some comfort in their ability to dictate at least the parameters of a franchi-
see’s pricing as a reasonable resale price maintenance program. Any challenge will now be scrutinized under a rule of reason analysis that calls for establishing several ambiguous and difficult-todefine factors (e.g., such as what is the relevant product market). This may make plaintiff ’s counsel more reluctant to challenge such practices. Several states, however–Illinois, Michigan and California among them– have reacted negatively to Leegin and maintain that minimum resale price maintenance is still per se illegal. And with less certainty, friction seems inevitable. Encroachment. Disputes over the proximity of competing franchisees, solicitation and diversion of customers, and sales of product within a franchisee’s trade area or exclusive territory are being litigated with more frequency. Some states like Iowa have passed protective legislation. Franchisors have reacted by broadening the reservations of the rights to encompass everything not specifically granted to the franchisee. With such clauses in place, more franchisors are exercising their contractual right to place franchises closer together and to sell products and services directly by “alternative distribution channels,” e.g. Internet sales and discount membership chains like Costco. Where the franchisor diverts– real or perceived–business and customers that would otherwise go to a franchisee, disputes and litigation ensue. Duty or Implied Covenant of Good Faith and Fair Dealing. In franchising, this is typically asserted by a franchisee.
Numerous states recognize this duty or implied covenant–sometimes by statute and sometimes by common law–including Oklahoma, Tennessee and Georgia. However, Texas courts have yet to find that a franchise creates a special relationship beyond that of a normal commercial contract and, so far, have not found that a franchisor owes its franchisees such a duty. Breakaway Franchisees. Franchisors often assume they can keep franchisees from going into the same business or from competing with their franchisees. They often fail to grasp that there is a patchwork quilt of state laws affecting restrictions against competition. They must balance the scope of protection they want in the franchise agreement against what is most likely to be enforced in the greatest number of jurisdictions in which they will franchise. In some states, like California, a post-termination restriction may not be enforceable at all. In Georgia covenants against competition in franchise agreements have long been disfavored and subjected to the difficult standard of strict scrutiny. In Texas and several other states, the scope must be reasonable in duration and geography. What constitutes “reasonable” remains unpredictable
and intensely fact-driven. Amerispec, Inc. v. Metro Inspection Services, Inc., 2001 US. Dist. LEXIS 9259 (N.D. Tex. 2001) had the odd result of finding the franchisee in the wrong, but refusing to apply the contractual provision prohibiting the franchisee from competing in the territories of other Amerispec franchisees in Texas. Whose law? Franchising reaches across state borders. It is an industry regulated at both the federal and state level in a way much like securities are. Whether representing franchisees or franchisors, Texas counsel needs to be sensitive to the laws of other jurisdictions that may apply, such as state franchise registration laws, franchise relationship and protection laws, “little FTC” acts and, of course, the overriding umbrella of the Federal Trade Commission’s Franchise Rule, 16 CFR § 436.1 et seq. Much useful information and a copy of the Franchise Rule and the proposed new business opportunity regulations can be found at business.ftc.gov/ HN legal-resources/13/33. Kat Tidd, Law Offices of Kat Tidd, P.C., advises franchisors, franchisees, dealers, and entrepreneurs and advises other attorneys on franchise and business opportunity transactional and dispute resolution matters. Ms. Tidd may be reached at kat@tiddlaw.com or (972) 247-6934.
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
February 2011
“Attorney” in the Old Sense by Justice Jim Moseley
Barry Sorrels has identified “Honoring the Profession” as the central theme of his tenure as President of the Dallas Bar Association. As he references in his inaugural speech (printed elsewhere in this publication), there are a number of ways we can accomplish this. However, one precept is essential to any serious effort to bring honor to what we do. Simply put, to honor our profession we must—as best we can— be attorneys in the old sense. An “attorney” means “one who is designated by another to transact business for him/her.” It is derived from the word “attorn,” meaning “one who is put in place of another.” This derivation arose during medieval times, when a party appearing in court had to stand and speak on his own behalf. Because of the formal and strict rules of pleading, a mistake in how a party worded his claim or defense could be fatal. As a result, litigants sought the advice of those more knowledgeable about the law and its procedures. Eventually the courts permitted such advisors to be “attorned” to the case—to stand and speak in the place of the party. When my daughter (now a third year law student) was young, she asked me what I did for a living. I told her I was a lawyer and, in response to her quizzical expression, explained that I helped people who had problems. During playtime several days later I overheard her proudly announce to a friend: “My daddy is a lawyer. When people fall down, he helps them get up.” That child-like understanding expresses the core purpose of our profession. Clients seek out attorneys because they have problems and need help. In a sense, they have “fallen down” (or fear they might fall) and are
looking for assistance. Our profession exists to provide that help, to stand in place of our clients, to steady them and help them back to their feet. Our purpose is to be—in the old sense—attorneys. The mostly commonly thought-of role of an attorney arises from the literal, historical meaning. An attorney stands in court on behalf of her client, who may be inarticulate or unpopular (or both), and make the best arguments that party has as best they can be made. It is also understood that an attorney stands in place of his clients when he provides them advice or negotiates or drafts agreements on their behalf. Within the context of these roles, we honor our profession by performing our services to the best of our ability and within the bounds of honesty and ethics. And we honor our profession by explaining to others what our role is and where those bounds of honesty and ethics lie. But to achieve the full honor of what our profession should be, we should understand that we also need to be attorneys for our legal system— to stand in its place and speak on its behalf. Our legal system insures—as best any system has to date—that the powers of government are limited, that individual rights are honored, and that disputes as to those rights are resolved based on the law and not the identity of the parties. These are honorable things. They are honorable because they enable persons—whether acting individually or through legally recognized organizations—to protect their rights. They are honorable because they recognize the worth and dignity of persons, enabling them (within the boundaries of the law) to arrange their own affairs as they see fit.
However, our system is under constant change. Legislative bodies—federal, state and local—enact new laws, the courts modify procedural rules, and the common law changes and develops. Society itself changes, placing new and different demands on a legal system designed to enforce and protect the rights of its members. Moreover, even if our society were static, our legal system is not—and has never been—perfect. As attorneys, our training and experience give us a unique understanding as to both the strengths and shortcomings of our legal system. We bring
honor to our profession by using that training and experience to explain how our legal system works, to defend it from unfair attack, and to advocate ways to make our system better. To bring honor to our profession, we should stand in the place of our clients individually and in the place of our legal system as a whole. We should speak on their behalf and help both of them when they fall or are in danger of falling. In short, we should be attor HN neys in the old sense. Jim Moseley is a Justice on the Fifth District Court of Appeals. He can be reached at jim.moseley@gte.net.
Investiture of Judge Tonya Parker
The Investiture of Judge Tonya Parker was held at the Belo on January 11. At the event were (left to right) Hon. Sam Lindsay, who performed the swearing in ceremony; H. Ron White, who introduced Judge Parker; Judge Parker; Rev. Jay Cole; and DBA President Barry Sorrels.
Franchise Disclosure Document continued from page 1
of all franchisors make a financial performance representation in their FDD. This means that the majority of franchise companies are legally barred from providing prospective franchisees with any revenues or profit information helpful to preparing a rate of return analysis, a business plan for financing purposes or an initial operating budget. While the information contained in the FDD is important to educate prospective franchisees, the franchise agreement is the key piece of the puzzle that defines the parties’ relationship. The FDD must be prepared in “Plain English,” but the franchise agreement is often lengthy and complex, and terms of the franchise agreement are neither dictated by law nor reviewed or approved by any government agency. However, federal law prohibits the use of merger and integration clauses to disclaim a franchisee’s reliance on representations contained in the FDD, and state franchise sales and relationship laws may override certain key franchise agreement provisions, such as those dealing with termination and nonrenewal. State franchise laws also affect the enforceability of a franchise agreement’s forum
selection clause. For this reason, many franchisors elect to resolve franchisee disputes via arbitration pursuant to the Federal Arbitration Act. If electing arbitration, drafters should be familiar with arbitration procedures and federal law. Arbitration provisions should be written carefully and with knowledge of the Federal Arbitration Act and relevant case law. A well-drafted FDD helps prospective franchisees make an informed business decision by allowing them to see the “whole picture” of their potential investment. The federal and state regulatory schemes contribute to the process by providing the framework to which the different pieces of the franchise model fit together. Finally, the franchise agreement is the centerpiece that defines the contractual relationship between the parties overall. Together, these pieces can create a sound business system for both franchisor and franchi HN see. Stephanie Russ and Kelly Dion are attorneys at Mullin Law, PC. Ms. Russ handles franchise regulatory and commercial matters, and she is the past Chair of the DBA Franchise and Distribution Section. Mrs. Dion focuses her practice on franchise and commercial litigation. They can be reached at stephanie.russ@mullinlawpc.com and kelly.dion@mullinlawpc.com, respectively.
Get Involved in Dallas Asian American Bar Association!
Tuesday, February 15 at noon at Belo. Come meet the new Co-Chairs of our Committees, learn about what’s in store for the year and find the right place for your talents and contributions. Buffet lunch will be available for your purchase. Contact Jennifer Wang for information: jwang@ccsb.com or (214) 855-3123.
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Dal l as Bar A ssoci ati on l Headnotes 11
International/Franchise & Distribution Law
Going Global: Strategic Considerations for International Expansion by Ann Hurwitz
Even before the Great Recession, many U.S. companies facing a saturated domestic market sought to sustain their growth by expanding internationally. That trend has increased during the last two years with the decrease in U.S. consumer spending and limited access to capital for domestic expansion resulting from the Great Recession. Growing markets in China, India, the Middle East and Southeast Asia, among others, have enticed U.S. companies—and particularly U.S. franchise companies—to “go global. “When undertaking international expansion, franchise companies may be tempted to focus primarily on the franchisespecific regulation that has been enacted in numerous jurisdictions outside the U.S. in the last several years. Roughly 18 countries outside the U.S. now have some form of franchise-specific regulation. Where they exist, these laws may require franchisors to register the franchise, conduct market studies, prepare country-specific disclosure documents that differ from the U.S. form of disclosure, wait for significant “cooling off” periods before signing the franchise agreement or taking a fee, and/ or include certain mandatory provisions in,
or omit certain prohibited provisions from, the franchise agreement. Compliance with these laws is an extremely important consideration, but not the only consideration, when expanding internationally. In addition to the franchisespecific laws, a number of other key issues must be addressed for a successful international launch. A critical first step is ensuring that the company’s principal trademarks are available for use in the countries targeted for expansion. Trademark regimes differ. A country may be a “first to use” jurisdiction (like the U.S.), where trademark rights are established through use of a mark, or a “first to file” jurisdiction (like China), where use is not required in order to file for registration. Trademark “piracy” in first to file countries, where others may register a company’s mark and hold it hostage in exchange for payment, is not uncommon. To preserve expansion opportunities an international trademark strategy should be developed early, using available international protocols to reduce costs and administrative burdens. Understanding how the company’s brand “translates” locally is also critically important. In order to succeed outside the U.S., it may be necessary to adapt the company’s trade-
You Are Invited: JUDICIAL INVESTITURES Honoring:
Judge Teresa Hawthorne, 203rd Criminal District Court Judge Julia Hayes, County Criminal Court No. 2 Judge Etta J. Mullin, County Criminal Court No. 5 Judge Tina Yoo, County Criminal Court No. 8 Thursday, March 3, 3:30 p.m. Belo Mansion
Play Golf and Support Pro Bono Save the date for the 19th Annual Pro Bono Golf Classic, benefitting the Dallas Volunteer Attorney Program. Thursday, May 5, 2010 at Cowboys Golf Club Entertain clients with a golf game, while helping a family in need. Registration includes lunch, dinner and refreshments on the course. The tournament is a 4-person scramble format -- limited to the first 128 golfers. Lots of prizes, plus great goody bags, raffle and other fun games! Check-in and use of the practice range begins at 11 a.m. and shotgun start is at 1:30 p.m. A reception and awards dinner will follow the tournament at 5:30 p.m. For more information, visit www.dallasbar.org. For more information on sponsorships, contact Rhonda Thornton at rthornton@dallasbar.org.
mark and other characteristics of its brand to the local language and local tastes. A company’s initial due diligence is an important step in that process, but a full understanding of how best to adapt the brand to local tastes may come only after identifying the right local partner to act as the in-country master franchisee or developer. The ideal master franchisee/developer will have an in-depth understanding of the local market, as well as the capital, infrastructure and expertise to develop the U.S. company’s brand in the target country. Each side should carefully conduct all appropriate business and legal due diligence to ensure the maximum opportunity for success. Once a local partner has been selected, the parties’ negotiations must cover a variety of issues. On the business side, the parties must consider, among other things, the level of support to be provided by the U.S. franchisor, the development schedule to be undertaken by the master franchisee/developer, the establishment and operation of the supply chain, and of course, what fees are appropriate given the parties’ respective contributions. Among the most difficult issues are those relating to the unwinding of the relationship following expiration of the agreements or an event of default resulting
in termination. Critical legal points to be addressed include currency exchange issues, possible governmental restrictions on payments, and applicable withholding taxes (including possible structures to reduce the level of withholding). Dispute resolution mechanisms may need to be modified; often, companies that rely on the U.S. courts to resolve domestic disputes look to recognized arbitral procedures for international disputes. Applicable competition laws may require reassessment and modification of territorial provisions. Knowledgeable local counsel can provide invaluable assistance on these and other country-specific issues, including whether local agency laws will require compensation to a terminated franchisee, the enforceability of post-term covenants, industry-specific regulations and, of course, compliance with franchise-specific laws. International expansion of a U.S. franchisor’s brand can contribute significantly to the brand’s growth. But that contribution does not come without careful initial HN planning. Ann Hurwitz is Chair of the Franchise & Distribution section at Baker Botts, LLP. She can be reached at ann.hurwitz@bakerbotts.com.
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 2011
The Future of Gene Patents by Angela M. Buchanan
In 1980, the Supreme Court broadened the availability of gene patents in Diamond v. Chakrabarty, 447 U.S. 303 (1980). Since that time, gene patenting has grown so that in 2005 it was estimated that 20 percent of the human genome was protected by patents. Stefan Lovgren, One-Fifth of Human Genes Have Been Patented, Study Reveals, Nat’l Geographic News, Oct. 13, 2005, http://news.nationalgeographic.com/ news/2005/10/1013_051013_gene_patent.html. Recently, Judge Sweet in Association for Molecular Pathology v. United States PTO, 2010 702 F.Supp.2d 181 (S.D.N.Y. 2010) (Myriad), ruled on the limitations of gene patents when he held that patents for isolated gene sequences were invalid under Chakrabarty because they were naturally occurring. Currently, there are thousands of other Myriad-type gene patents that would be invalidated under Judge Sweet’s holding. Though that judgment is on appeal, opponents of gene patents seek to capitalize on Myriad, while patent holders rush to protect their rights. Myriad provides fodder to the longstanding debate regarding the morality of patenting genes as many are left to question where the future of gene patents lie. Gene patents are a hotbed for moral debate. Gene patents both promote the progress of medical science, as well as restrict access to health technologies. The restricted access to medicines, diagnostic tests and other innovations is detrimental to human well-being and disproportionately impacts America’s poor.
However, without patents, many argue that medical innovation would slow due to lack of economic incentive. Much of the animosity towards gene patents originates from the impact that the patents have on access to medicines and medical tests. Patents elevate prices because they restrict competition by giving patent holders exclusive rights to use patented material. History illustrates that patents adversely affect the affordability and access to health technologies. For example, in 2005, the average worldwide price for anti-retroviral combination therapies (ARVs) that treat HIV/AIDS cost was about $10,000 per patient. However, when critical patents for those therapies expired, the cost decreased to $168 per patient. Amy Kapczynski et al., Addressing Global Health Inequities: An Open Licensing Approach for University Innovations, 20 Berkeley Tech. L.J. 1031, 1033 (2005). The expiration of ARV patents provided access to vital medicines for those who had great need but limited resources to acquire them. The access to generic drugs caused by the expiration of the ARV patents saved lives. Before the patents expired, nearly 8,000 people died of AIDS in developing nations every day. Ellen F.M. ‘t Hoen, The Responsibility of Research Universities to Promote Access to Essential Medicines, 3 Yale J. Health Pol’y L. & Ethics 293, 294 (2003). Opponents of gene patenting feel that prices should be manageable for medicines, especially when the medicines are essential for survival. Proponents of gene patents focus on scientific and medical progress and
“Four Generations in the Workplace: Multi-generational Perspectives on the Practice of Law” 1 hour Ethics (pending) February 4, 2011 at Noon— Belo Hall Panel of speakers includes: Luther Jones, Attorney; Ike Vanden Eykel, DBA Immediate Past President; Penny Blackwell, DAYL President; Erin Callahan, Law Student, President of SMU Student Bar Association; and Cindy Pladziewicz, DBA Peer Assistance Committee Chair, Moderator Hosted by the Peer Assistance Committee
postulate that progress would languish without the economic incentive that patents offer through exclusivity rights. See e.g., F. Scott Kieff, Property Rights and Property Rules for Commercializing Inventions, 85 Minn. L. Rev. 697, 703 (2001). Patents give time-constrained exclusive rights to inventors of new and useful creations. U.S. Const. art. I § 8, cl. 8. Proponents argue that without these exclusive rights two things would happen: a reduction in invention and an increase in privacy for inventions. This is because development of gene technology is expensive and time consuming. Development costs are exceptionally expensive in the biopharmaceutical field where it is estimated that the cost of developing a new FDA-approved drug is $802 million dollars. See Joseph A. DiMasi et. al., The Price of Innovation: New Estimates of Drug Development Costs, 22 J. Health Econ. 151, 166 (2003). Without patents, many inventors and researchers would have to rely on trade secret law if they wanted to make a
profit from their labors. This, proponents argue, would limit access to knowledge, further reducing progress. Patents allow for economic rewards and the sharing of knowledge. This economic theory champions consequentialism, the idea that the ends justify the means. Expansive gene patentability may limit access and cost lives, but without them, the technologies might not have been invented in the first place. Opponents champion the deontological argument that moral means are necessary for a just result and the death of thousands for hastened progress is unacceptable. This debate is not likely to end in the foreseeable future, and human life will continue to be the benefactor and victim of both sides of this debate. As the courts debate the law and scope of gene patentability, society debates the HN morality of gene patents. Angela M. Buchanan, an associate at Greenberg Traurig, LLP, handles complex commercial litigation. She can be reached at buchanana@gtlaw.com.
Reminder
Voting in the State Bar of Texas Referendum on proposed amendments to the Texas Disciplinary Rules of Professional Conduct ends on Feb. 17, 2011, at 5 p.m. For more information, visit www.texasbar.com/rulesupdate. Know the issues and vote!
DBA Board Chair and Vice Chair Elected CONTINUED FROM PAGE 1
issues. He is a graduate of the SMU Dedman School of Law. Mr. Alexander has a variety of experience serving on Committees and Sections of the DBA. He is currently the Chair of the 2010-2011 Campaign for Equal Access to Justice and took the lead on the DBA’s Vision 2020 plan. In addition, he is the Board Advisor for the Fee Disputes, Mergers and Acquisitions and Real Property Sections, as well as the Senior Lawyers Committee. Mr. Alexander has also chaired the Judiciary C o m m i t tee and the Judicial Polls Study Subcommittee. A l s o appointed at the board meeting to fill a one-year at-large judicial position Hon. Robert Canas Jr. was County Criminal Court presiding judge Hon. Robert Canas, Jr. A graduate of Texas Tech University School of Law, Judge Canas is a former Co-Chair of the DBA Bench Bar Conference Committee. Filling a two-year atlarge director position is Kim Askew. Ms. Askew is a partner at Kim Askew
K&L Gates, LLP, where her practice focuses on the areas of commercial and employment litigation. She has been the Board Advisor to numerous DBA Committees and Sections and has served as the DBA’s delegate to the ABA House of Delegates for many years. Ms. Askew is a graduate of Georgetown University Law Center. Monica Latin, a partner at Carrington, Coleman, Sloman & Blumenthal, L.L.P., was appointed to a one-year at-large director position. Ms. Latin is Co-Chair of the 2011 DBA Judiciary Committee, and is past chair of the Bench Bar Conference Committee. She is Monica Latin a graduate of the University of Texas School of Law. In addition to these five members, the board will include: President Barry Sorrels; President-Elect Paul Stafford; First Vice President Sally Crawford; Second Vice President Scott McElhaney; Secretary-Treasurer Sean Hamada; Immediate Past President Ike Vanden Eykel; and Directors Penelope Brobst Blackwell, Eric Blue, Wm. Frank Carroll, Rob Crain, Laura Benitez Geisler, Hon. Martin Hoffman, Michael K. Hurst, Michele Wong Krause, Karen D. McCloud, Eunice Kim Nakamura, Mary L. Scott, Scott P. Stolley, Hon. Teresa Guerra Snel HN son and Diane Sumoski. Jessica D. Smith is the DBA’s Communications/Media Director. She can be reached at jsmith@dallasbar.org.
F e bru a ry 2 0 1 1
Dal l as Bar A ssoci ati on l Headnotes 13
Oil, Royalties, and Death: Transfer of a Mineral Estate by Caroline Akers Peterson
When probating or administering mineral interests, it becomes necessary to identify mineral interests for purposes of property inventory and transfer of legal ownership.
Where is the Property?
The first step is to obtain from your client sufficient information to identify the location and type of mineral interests. In many instances, your client may not have that information readily available. A few ways to determine the type and location of mineral interests is to request the following from your client: • Mineral Deeds; • Stubs from Royalty Checks and/ or Division Orders for Producing Royalty Interests; • Property Tax Records; • Previous Income Tax Returns; and • Inventory, Appraisement & List of Claims (Previously Inherited Mineral Interests). If your client can only provide where the minerals are located, such as the county, you will need to conduct some basic research. This starts with distinguishing whether the mineral interests are producing or non-producing. Producing mineral interests can be researched in the property tax records by searching the owner’s name to locate the operator, or oil and gas company. For example, records may be found at the following websites: Fort Worth (www.tad.org/); Dallas (www.dallascad.org/); and small counties (http:// appraisaldistrict.net/). The operator, along with the name of the well and unit, is usually listed on the tax statement. With this information, you can contact the operator to obtain copies
of mineral deeds, assignments, conveyances or unit designations. You may also research the Railroad Commission of Texas records online at http:// www.rrc.state.tx.us/ to obtain additional information. It is advisable to contact the operator before contacting the Commission because the information the operator provides you will be more detailed. Non-producing mineral interests can be researched in real property records by the grantor/grantee name. Many local county websites allow you to search records for free, such as Dallas County (http://roamdallaspropertyrecords.com/ailis/search.do); Collin County (http://countyclerkrecords.co.collin.tx.us/webinquiry); and Tarrant County (https://ccanthem. co.tarrant.tx.us/RealEstate/SearchEntry.aspx?e=newSession). You may also research records for a fee at www.texaslandrecords.com. However, most small county real property records are not accessible via the Internet. Even many large county real property records only go back to the late 1980s on the Internet. In those situations, you can contact the county clerk and request a record search of the grantor/grantee indices for a particular name and time period for a nominal fee. In some cases, it may be necessary to hire a landman to locate mineral interests; however, this method can be costly (especially if mineral interests are located in numerous counties).
Transferring Title
If there is no administration of the estate, such as muniment of title or small estate affidavit, certified copies of the will/order or affidavit should be recorded with the county clerk in all the counties where the mineral inter-
‘Experience Exchange’ Mentoring Dinner ~ 20 Years In 2 Hours ~
Tuesday, March 1 ~ 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 5 years. Registration Fee: $20 for lawyers (or $10 for law students). Includes dinner and parking. Registration deadline: Monday, February 28. Contact ahernandez@dallasbar.org or (214) 220-7499.
Ted M. Akin Voted # 1 Best Individual Mediator/Arbitrator in Dallas - Texas’ Best Survey
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ests are located. For estates, where an administrator or executor has been appointed, the personal representative can execute a mineral deed conveying the mineral interests to beneficiaries. If you do not have sufficient information to describe the location and type of mineral interests, the administrator or executor can execute a general blanket deed to transfer ownership. Even though you may have very little information to describe the mineral interests, you will want to include as much property identification information as possible in the deed. Deeds executed by an administrator or executor should be recorded with the county clerk in all the counties where mineral interests are located. With a general blanket deed, you will want to record the deed in all counties where you have identified that the decedent may have owned mineral interests.
Getting the Money
In the case of an estate involving producing mineral interests, you will need to contact the operator, or oil and gas company, to request a new division order be prepared. The division order is the document that is signed by the owner (the beneficiary) that reflects new ownership and how royalty payments are to be distributed. Depending on the type of administration, the operator usually requires evidence as to probate or the administration of the estate. You should verify with the operator what type of documentation it requires to issue a new division order. A new division order does not transfer HN title.
Caroline Akers Peterson is an associate at Looper Reed & McGraw in Dallas. She practices in the areas of energy, wills, probate and trusts. She can be reached at cakers@lrmlaw.com.
Need someone to help take on the ‘unwanted’ office work? Will your busy office need some quality help this summer? Let our Summer Law Intern Program help you fill the position – Part-time or Full-time for either 4-wks or 8wks – the choice is yours! We have goal-oriented DISD high school seniors interested gaining law firm experience by assisting you for a nominal fee. Employers can also interview and select these goaloriented students from a large pool - expect the best. Program: June 13-Aug. 5. For more information, please contact Amy Smith at asmith@dallasbar.org or (214) 2207484 or visit our website www.dallasbar.org/content/summer-law-intern-program
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
In the News
February 2011
February
KUDOS
Judge Craig Smith, of the 192nd Civil District Court, has been elected President of the Texas Association of District Judges. Ira Bowman, G. Edel Cuadra and Tandy Jouret, of Godwin Ronquillo PC, have been promoted to Senior Attorneys. Jenny Martinez and Robert Wiegand have been elected vice presidents on the Executive Committee of the firm. Michael B. Franklin and Robert L. Rickman have become Shareholders of Hallett & Perrin, P.C. Michael Alessio, of Winstead PC has been elected to the firm’s Executive Committee and Jeffrey W. Matthews has been elected shareholder. John Clark Long IV, of Bickerstaff Heath Delgado Acosta LLP, has been honored by Kaufman County Commissioners Court, which designated December 16, 2010, as “John Long Day” in Kaufman County. He was also awarded the Kaufman County Medal of Courage for displaying courage, determination and a positive attitude during his fight with cancer.
M. Scott Fuller, Jason L. Sanders and Todd J. Thorson, of Locke Lord Bissell & Liddell LLP, have been promoted to partner. Angela Zambrano, of Weil, Gotshal & Manges LLP, has been elected as a Fellow of the Texas Bar Foundation. Sonya D. Hoskins, of Robinson & Hoskins, L.L.P., was presented the C. B. Bunkley Community Service Award by J. L. Turner Legal Association. She also was elected 1st Vice Chair of the Dallas Black Chamber of Commerce. Britta Erin Stanton, of Lynn Tillotson Pinker & Cox, LLP, has been promoted to Partner. Amy E. Stewart, of Amy Stewart PC, has been elected to membership in the Fellows of the Texas Bar Foundation. Brad LaMorgese, of McCurley, Orsinger, McCurley, Nelson & Downing, L.L.P., has been promoted to partner. Marc W. Taubenfeld, of McGuire, Craddock & Strother, P.C., has been elected Chair of the Bankruptcy Section of the Federal Bar Association. Danika Mendrygal, of Haynes and
Boone, LLP, has been elected to the board of directors of Uptown Dallas, Inc.
ON THE MOVE
Favad Bajaria has joined Looper, Reed & McGraw, P.C. as Associate. Aida Wondwessen has joined Winstead PC as Associate.
James C. Ho has re-joined Gibson, Dunn & Crutcher LLP as Partner. Patrick Clerkin has joined Javitch, Block & Rathbone as Partner and manager of the Richardson office. Misty Escobedo and Rwan Hardesty have joined the firm as Associates.
Michelle Verdiguel Alonzo has joined Badmus Law Firm as Associate.
John G. Fischer and Bruce A. Stockard have joined the firm Scheef & Stone, L.L.P.
William Dunne has joined Busch Ruotolo Simpson LLP as Associate.
Eric L. Johnson has joined The Sandler Firm as Of Counsel.
Michelle Hartmann has joined Weil, Gotshal & Manges LLP as Partner.
Loren Jacobson has joined Waters & Kraus, L.L.P. as Partner.
Lisa M. Prather has joined Passman & Jones, P.C. as Associate.
Wei Wei Jeang and John H. McDowell, Jr. have joined Andrews Kurth LLP as Partners.
Natalia Duque and Clint Westhoff have joined Goranson, Bain, Larsen, Greenwald, Maultsby & Murphy PLLC as Associates.
Bevan Rhine has joined Cobb Martinez Woodward PLLC as a non-capital member.
. . . . . . DBA In the News . . . . . .
During the past two months, your DBA has been highlighted in the following media: The Advocate: Hon. Merrill Hartman and DBA’s Home Project
dBusinessNews: DBA 2011 Board of Directors, Equal Access to Justice Campaign donors Dallas Business Journal: Lisa Blue Baron’s donation to DVAP, Tort & Insurance Practice Section receives award, Dallas Bar Foundation, DBA 2011 Board of Directors Dallas Morning News: Legalline, DVAP’s Star Carter, Lisa Blue Baron donates $100,000 to DVAP, DVAP Thank you full page ad, Equal Access to Justice Campaign
D Magazine: DBA Judicial Evaluation Poll Focus Daily News: Legalline Fox 4 website: Philbin Awards Mesquite News: Legalline North Dallas Gazette: Lisa Blue Baron donates $100,000 to DVAP State Bar of Texas Newspapersclips. com: Lisa Blue Baron donates $100,000 to DVAP, DBA 2011 Board of Directors Texas Lawyer: Tort & Insurance Practice Section receives award, W. Mike Baggett receives DBA’s Morris Harrell Professionalism Award
DVAP’s Finest TH E
L ATE ST
APPELLATE
OPINIONS — AVA I L A B L E D A I LY ON T E X A S L AW Y E R .C O M Click on “Daily Case Alert” to see
Nina Orendain
Nina Orendain is a Staff Attorney at Akin Gump Strauss Hauer & Feld LLP. Recently, Nina has focused on taking as many of the Spanish-speaking clients’ cases for the drafting of Warranty Deeds in support of future Pro Se Divorces, Small Estate Affidavits and Wills and Powers of Attorney as she can. She enjoys meeting with clients and seeing how appreciative they are of the working through their documents with explanations in their native language. She also enjoys taking the Warranty Deeds for clients who do not need the Spanish language support because her experience with those has been very straightforward and simple. As a transactional attorney, she has occasionally needed guidance in the probate area, and has found the DVAP probate mentor attorneys responsive and helpful. “I am truly grateful and appreciative because DVAP provides the resources and support that allow me to truly give back to our community, in small ways, one person at a time. It feels so good to be able to do good with my legal and language skills,” Nina said. Thank you for all you do, Nina!
the most recent case law or click on “Appellate Court Opinions” to search by practice area.
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
F e bru a ry 2 0 1 1
Classifieds
Dal l as Bar A ssoci ati on l Headnotes 15
February
OFFICE SPACE
Time is Money! 3 miles from County Courthouse—2 miles to downtown! Quality office space—off-price value. $18/sf. Includes electricity and free garage parking. 9 miles to Love Field Airport. Minutes to DART rail, Baylor University Medical Center, Dallas Arts District, SMU, Oak Lawn, West Village. Centrally located on major thoroughfares. Uptown Tower. 4144 N. Central Expressway. (972) 490-7348. High-rise views at low-rise rates. Panoramic views from 63rd floor. Class-A downtown space close to courthouse, AVrated law firm. Access to large conference room, library, kitchen. Secretarial, clerical, reception available. Offices available with very nice secretarial stations. Negotiable. Call Kay (214) 761-6463. Northpark/Central Expwy—Law firm has “turnkey” office for sublease in Class A building for $1200. Includes use of office furniture (if needed), telephone, high-speed DSL, fax line, parking, and large conference room and kitchen. Great location with downtown and Park Cities views, excellent finish out with hardwoods in lobby, elevator exposure, and easy access to/from Central Expwy. Call (214) 292-4202. Downtown AV-rated law firm has one new window office with a secretarial space on the 25th floor with a great view. Call Mark or Vicki at (214) 752-0400. 3 Months Free Rent! Preston Tower. Large window office. Secretarial area available. Shared amenitites (kitchen, conference room, reception area, bathroom). Near Preston Center, 10 minutes from courthouse. Call (214) 369-1171 or e-mail herbhooks@aol.com.
Sublease. Huge, beautiful offices in law office in Richardson at Central/Campbell. Two large window offices—$1000/ mo./each; one large interior office—$800/ mo.; and one legal assistant area—$600/ mo. available. Office environment is quiet and friendly with new furnishings and updated technology. Receptionist, telephone system, internet, three conference rooms, two kitchens, free parking with 24 hour access to building. Please e-mail Jennifer Som at Jennifer@baalegal.com or call (214) 570-0700. Walnut Glen Tower (Walnut Hill/Central) Beautiful, new, spacious offices in Class A building with views of downtown over lake with fountains. Lobby with glass elevators, 18-story atrium, waterfall, trees and true outdoors feeling indoors. Practice in a relaxed yet professional 4-lawyer environment which includes administrative stations, conference room, kitchen, copier, phone system, DSL, 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. Office space available within small real estate law firm located at 4054 McKinney Avenue. Shared conference and break room, furniture, copier, DSL & phone equipment are available if needed. No long term commitment and a total monthly rate of $550.00. For inquiry, please call (214) 520-0600.
POSITION AVAILABLE
Well established Texas law firm with offices throughout the state seeks commercial litigators and transactional attorneys, or practice groups, with 10+ years of experience. These positions are located principally in our Dallas and Houston offices.
Summer Law Intern Program Interviwers Needed Help students get “real world” experience by interviewing for the upcoming Summer Law Intern Program. Interviews are held at each DISD high school and can be completed in about 2 hours.
Mail resume, in confidence, to D Loyd Legal Recruiting, P.O. Box 251, Addison, Texas 75001, or e-mail your response to dloyd@dloydlegalrecruiting.com. Small law firm with national practice specializing in commercial litigation seeks a two- to four-year associate attorney. Our location in historic Grapevine provides a unique atmosphere and an opportunity to avoid the downtown commute for the right individual. Reply to Ralph Canada at Canada Ridley, LLP by fax (817) 329-8715, or e-mail rcanada@canadaridley.com. Medium size AV rated downtown Dallas law firm seeks partner level business lawyer with varied corporate law experience. Candidate must have some portable business. Respond to Dallas Bar Association, Box 11–10B, 2101 Ross Avenue, Dallas, TX 75201. AV rated downtown law firm seeks litigation associate with 2-5 years’ experience. Candidate must have strong research and writing abilities and some deposition and hearing experience. Please send resume to Kristin Tennant, Cobb Martinez Woodward PLLC, 1700 Pacific Ave., Suite 4545, Dallas, Texas 75201 Godwin Ronquillo PC is seeking an associate with 4 to 6 years’ experience in commercial/civil litigation. Federal court experience preferred. Must have excellent research and writing skills. Principals only. Contact employment@godwinronquillo.com. Godwin Ronquillo PC is seeking an associ-
ate with 2 to 3 years’ experience in commercial litigation. Some family law background required. Candidate must have excellent credentials. Deposition, hearing and trial experience needed. Principals only. Contact employment@godwinronquillo.com.
POSITION WANTED
Experienced CPA seeks controllership position at private equity firm or professional services firm. Skilled in financial operations, financial statement reporting and tax return reporting for partnerships. Organized and detail-oriented administrator. Strong verbal and written skills. Accustomed to interacting with clients, investors, management, financial institutions and industry professionals. Works effectively with limited supervision. Expertise with Excel, time and expense software, and general ledger software. Excellent references. Please contact Lori Folz at (214) 8646050 or lorifolz@sbcglobal.net.
SERVICES
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. Coauthor, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 2229494. dlopez@pulmanlaw.com Place your ad here! For affordable classified advertising rates call Judi Smalling at: (214) 220-7452.
Classified Advertising – 2011 Rates & Deadlines Headnotes is mailed monthly to approximately 10,000 attorneys in the Dallas area, and is ideal for announcing available office space, job openings, items for sale, services, etc. DBA Member Rates: 40 words or less $80; 41-60 words; $112; 61-100 words $140. Non-Member Rates: 40 words or less $128; 41-60 words; $160; 61-100 words $190. Web Page Rates: Classified ads which run in Headnotes can also be posted on the DBA Web site for an additional fee of $40 for a 30-day period, or $60 for non-members. Web-only ads are also available. Ads are posted at www.dallasbar.org/ed-classifieds. Deadlines: Ad text and payments are due on the 10th of the month prior to the issue date. For instance, ads for the March 2011 issue of HEADNOTES are due February 10. Payment must be made at time ad is submitted. Mail items to Judi Smalling c/o Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. For additional information: Request rate card and details from JSmalling@dallasbar.org.
Dates available: March 29, 30, 31 - 1:30 p.m. For more information, please contact Amy Smith at asmith@dallasbar.or or (214) 220-7484 or visit our website: www.dallasbar.org/content/summer-law-intern-program
Exclusive coverage is easy to recognize... The State Bar of Texas Insurance Trust specializes in helping all Bar Members and their Eligible Employees obtain complete insurance coverage at any point in their lives. From Health Insurance to Long Term Disability Insurance, the Trust has you covered.
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Dallas Lawyers Auxiliary General Meeting February 16, 10:30 a.m. – 1 p.m. The French Room, Adolphus Hotel 1321 Commerce Street Faye Willis of Cartier’s will explain the checkered history of the legendary diamond. $75 per person. Limited seating. To reserve a place, contact Tina Gwinn ay tina@gwinn.net. Your check will be your reservation. If you are interested in joining the Dallas Lawyers Auxiliary, please contact Joan Nye at 214-361-7685 or at joannye@sbcglobal.net
DBA PARKING RATES GO TO $4 BUT YOU CAN PAY ONLY $3
Effective January 1, 2011, member parking at Belo will be $4.00. However, members may purchase a coupon book of 10 coupons for $30. Coupons are good through December 31, 2011, and may be purchased through the garage parking attendant or the Belo Mansion cashier on the first floor. Coupons must be used to exit the garage at the $3 rate, otherwise members must pay the $4 rate.
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 2011
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