Dallas Bar Association
HEADNOTES
Focus Bankruptcy & Commercial Law
May 2014 Volume 39 Number 5
Dallas Loses Icon in Legal Community Judge Louis A. Bedford, Jr. Passed Away on April 10, 2014
ognize his name, and that he may not be known or remembered by a people who received the bounty of his labor and wisdom. Durham, an emancipator, removed so many legal shackles from our arms and legs. I will speak of Durham’s dedication and total In 1990, when Bedford was 64 years old, he wrote an imaginative, thoughtful article for Headnotes, commitment to equal justice under the law. He describing what he would say about his life when he had the ability to transform the hostile environment which existed in most no longer was able to “stand before the courtrooms to an impartial and bar.” (Perhaps he was too young to equitable setting. Durham was an write his reminiscences, but during his outstanding trial lawyer and often lifetime so many dramatic changes had received favorable verdicts for Afritaken place that it must have seemed can Americans from all white juries to him that he was already very old.) when the opposing party and attorThere had been joys but also tribulaney were white. tions in his own practice, he wrote, When I become an old lawyer and the tribulations left the deepest and and can no longer stand before the most lasting impressions. bar, I will tell all who will listen His central theme was the debt he of my big brothers, J.L. Turner, Jr. felt he owed to the African American and C.B. Bunkley, Jr., and how they lawyers who had inspired him through Hon. L.A. Bedford, Jr. walked with and guided me along their courageous work and made it the way. J.L. Turner, Jr., affectionately known as possible for him and others to have a legal career. When Bedford’s career at last was over, he wrote, Brother Turner, was a scholar, philosopher, quite, he would “walk slowly away, my sun setting in my dignified, reliable, a true friend, and a son who heart, I will be watching the sun rise as I see young held his father, J. L. Turner, Sr., in high esteem. African American lawyers taking my place before I will speak of C.B. Bunkley, Jr., who was one of the Bar.” [Taken from Quest for Justice by Darwin my dearest and closest friends. I will speak of his ability to make impromptu speeches which would Payne] stir the souls of those who heard him. A gentleman, he was, yet bold, aggressive, and unyielding Headnotes, November 1990 in and out of the courtroom when fighting against When I become an old lawyer and can no inequities and the right to be treated with respect. longer stand before the bar, and all I have are C.B. Bunkley, Jr., was a devoted family man with memories of times long past, I will tell to all who deep moral and religious convictions, and a servant of his community. will listen of my tribulations and joys. When I become an old lawyer and can no I will recall the beginning, not expecting anything, yet expecting everything. I had the feeling longer stand before the bar, I will speak of the that I was trodding new paths which many are to decades of the 50s and 60s. In the 50s, African follow. Perhaps I was to become a new Moses in American lawyers were subjected to retaliation for a new land infested by old prejudices and hatred. representing and participating in civil rights suits. I will speak of Judges who knew not the meaning The threat of barratry and disbarment where ever of justice, and being surrounded by a sea of white- present for those who sought equality by attackness that covered the courthouse, except for jani- ing unjust laws. The times were hostile and sometime scary, yet it was a most rewarding time. The tors who were invisible. When I become an old lawyer and can no friendships, caring, and trust that existed among longer stand before the bar, I will tell all who the few of us could never be understood by those will listen of those Comets, dedicated intense, who will hear my words. I will tell of the 60s and the fire that swept and brilliant, who illuminated the legal sky for all seeking justice and equality from a hostile and over the college campuses. Young men and women burning with desire to become first class racist legal system. I will speak of men who maintained their dig- citizens in their lifetime. I will tell all who will nity and never lost their pride, whose eloquence listen about the students who attended Wiley and with words and knowledge of the law could never Bishop Colleges, both then located in Marshall, be denied. I will recall J.L. Turner, Sr., a very small a small East Texas town. I will speak in reverman of stature, but stood as tall as a giant when ence, with tears in my eyes, of Romeo Williams, he walked into the Dallas County courthouse in my friend and fellow lawyer, and Mattie Mae 1896, and proclaimed to all that he would prac- Ella Johnson, a student at Bishop, both of whom tice law and protect the property rights of his lost their lives in a tragic accident shortly after people. I will ask those who will listen to imagine leaving the Harrison County Courthouse. I will the pain, humiliation, bias, and injustice he must always remember with pride and respect those have endured. Also imaging the courage, bold- students who faced the criminal justice system, ness, and Mr. Turner’s ability to overcome fear physical abuse, and possible death for the cause of and apprehension in the hostile environment justice and equality. When I become an old lawyer and can no lonexisting in the halls of justice of Dallas County, ger stand before the bar, I will tell all who will lisin the year of 1896, almost a hundred years ago. When I become an old lawyer and can no ten that no accumulation of wealth can bring the longer stand before the bar, I will speak in awe joy and satisfaction that one receives by knowing and with reverence of W.J. Durham, my leader, that his efforts helped to loosen the legal shackmy idol and mentor. I may be shocked and sadcontinued on page 17 dened that so few African American lawyers rec-
Inside 5 A Primer on Fraudulent Transfer Actions in Bankruptcy Court 11 Personal Liability of Officers and Directors 13 Accepting Payment From Strangers Can Buy You Strict Liability 17 Options When One of Multiple Defendants Files Bankruptcy
Kinky Suits Hits the Greer Garson Theatre in June by Michelle M. Alden
Join the cast and crew of Bar None June 11-14 as they present Kinky Suits. This is the 29th year for the Bar None variety show, and it promises to be the best show yet. Watch Dallas area lawyers and judges sing, dance and make you laugh so hard your sides hurt. As much as the cast and crew love performing and making people laugh, their real motivation is to support the Sarah T. Hughes Diversity Scholarship program. The scholarship program was established in honor of U.S. District Judge Sarah T. Hughes, a former trustee of the Dallas Bar Foundation, who devoted herself to improving the rights of women and minorities. The Hughes Scholarship at the Dedman School of Law at SMU provides tuition and fees for deserving minority students each year. The Dallas Bar Foundation takes its responsibility for finding deserving recipients seriously. If you have ever met a Hughes Scholar, you know how impressive these students are. Support them by coming to Bar None.
Thousands of volunteer hours go into putting on such a large production each year. The hours come from lawyers all over the metroplex including 29-year veteran Director Martha Hardwick Hofmeister and Producer Tom Mighell, as well as the choreographers, script writers, committee members, actors and numerous behind-the-scenes staff. All of these Bar Noners share a passion for making a difference in the lives of the Scholars, our legal community and, for a few hours, the audience members. Show your support for the Dallas legal community and the Hughes Scholars by heading to the Greer Garson Theatre on the SMU Campus June 11-14. To purchase tickets, visit www. barnoneshow.com. Or contact Elizabeth Philipp at (214) 2207487 or ephilipp@dallasbar.org for sponsorship and ticket informa HN tion. Michelle Alden is the Managing Attorney of the Dallas Volunteer Attorney Program and a Member of the Marketing Committee of the Bar None Production Company. She can be reached at aldenm@lanwt.org.
Does Advertising Work? It Just Did! Don’t miss your opportunity to advertise (print & online) in the #1 “Legal Resource & Expert Witness Guide” in Dallas County. Ad Deadline: May 12 Contact PJ Hines at (214) 597-5920 or pjhines@legaldirectories.com
2 He a d n o t e s l D a l l a s B a r A s s o ciation
Calendar
May Events
MAY 9-NORTH DALLAS** Noon
May 2014 Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
FRIDAY CLINICS
“E-filing in Dallas County—What Works,” Ashley Arnold, Hector Faulk, Brian McGrath and Sandra Sifford. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor The Dallas Bar Foundation. RSVP to kzack@dallasbar.org.
MAY 16-BELO Noon
“Practice of Behavior and Ethics in Dealing with Judges, Peers and Clients,” Marty Lumpkin and Cynthia Pladziewicz. (Ethics 1.00)* RSVP to sevans@dallasbar.org. Sponsored by CLE & Peer Assistance Committees.
Construction Law Section “Update on Construction Coverage Issues,” Lee Shidlofsky. (MCLE 1.00)*
Family Law Section Board Meeting
Admissions & Membership Committee
Lawyer Referral Service Committee
1:00 p.m. DBA Pro Bono Golf Tournament at Brookhaven Country Club, Dallas, TX 3:30 p.m. DVAP Small Business Clinic at Belo. For more information contact anne.shuttee@shutteelaw. com. 6:30 p.m. Celebration of the Life and Legacy of the Honorable L. A. Bedford, Jr. Hosted by J.L. Turner Legal Association. RSVP to err@hammerle.com.
FRIDAY, MAY 2
11:45 a.m. Annual Law Day Luncheon Keynote speaker: Hon. Jennifer Walker Elrod, U.S. Court of Appeals for the Fifth Circuit. To purchase tickets, visit www.dallasbar.org, or contact mjohnson@dallasbar.org.
MONDAY, MAY 5 Noon
Tax Law Section “Federal Tax Update,” Bruce A. McGovern. (MCLE 1.00)*
Federalist Society
Tort & Insurance Practice Section “Guardians at the Gate,” Catherine Crier. (MCLE 1.00)*
Morris Harrell Professionalism Committee
1:00 p.m. USPTO Patent Trial and Appeal Board AIA Roundtable and Reception For more information, visit www.uspto.gov/ip/ boards/bpai/ptab_aia_trial_roundtables_2014.jsp 6:00 p.m. DAYL Board of Directors Meeting
Noon
Employee Benefits & Executive Compensation Law Section “Benefits for Same-Sex Couples: Windsor and Subsequent Developments,” Jake Barney. (MCLE 1.00)* Solo & Small Firm Section “The Media & The Attorney: Using the Media to Your Advantage,” Mark Annick and Amy Boardman Hunt. (MCLE 1.00)*
Public Forum Committee
DAYL Judiciary Committee
THURSDAY, MAY 8 Noon
J
Judiciary Committee “Trial Lawyers Want to Know: Why Judges Do
Dallas Bar Foundation Board Meeting
Summer Law Intern Program Committee
Entertainment Committee
DAYL Elder Law Committee
DAYL Lawyers Promoting Diversity
WEDNESDAY, MAY 21
DAYL Young Partners Committee
Noon
Energy Law Section Topic Not Yet Available
Health Law Section “Peer Review and HIPAA—What is Really Protected?” Karin M. Zaner. (MCLE 1.00)*
CLE Committee
11:30 a.m. House Committee Walk Through
Publications Committee
Noon
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
Christian Lawyers Fellowship
DAYL Lawyers Serving Children Committee
DAYL Young Partners Panel
St. Thomas More Society
Family Law Section “Objection, That Testimony is Devastating to My Case: Preparing Your Witnesses,” Suzanne Wooten. (MCLE 1.00)* Magna Carta Discussion Group “The Magna Carta and the Freedom from Arbitrary Authority: The Role of Legal Education,” Hon. W. Royal Furgeson, Jr. (MCLE 1.00)*
5:00 p.m. Annual Evening Ethics Fest Early registration deadline: May 4, midnight. Early Pricing: $65 DBA members/$135 nonmember. Register online at www.dallasbar.org or contact ahernandez@dallasbar.org. (Ethics 3.00)*
Bench Bar Conference Committee
Criminal Justice Committee
DAYL Lunch & Learn CLE. For more information, contact cherieh@dayl.com.
5:30 p.m. Annual Senior Lawyers’ Appreciation Dinner Keynote speaker Hubert Crouch, lawyer/novelist; tickets $40, tables $400. Contact Kathryn at kzack@dallasbar.org or (214) 220-7450.
Dallas Asian American Bar Association
FRIDAY, MAY 9 Noon
Friday Clinic-North Dallas** “E-filing in Dallas County—What Works,” Ashley Arnold, Hector Faulk, Brian McGrath and Sandra Sifford. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor The Dallas Bar Foundation. RSVP to kzack@dallasbar.org.
Trial Skills Section “The ETP Trial: What it Takes to be a Partner Under Texas Law,” Mike Lynn. (MCLE 1.00)*
DAYL Freedom Run Committee
Alternative Dispute Resolution Section “Practical Guide to Arbitration For the Practicing Attorney,” Gina Miller and Kim Taylor. (MCLE 1.00)*
Real Property Law Section “An Introduction to Conservation Easements,” Allison Elder. (MCLE 1.00)*
Peer Assistance Committee
Mergers & Acquisitions Section “In-house Counsel Roundtable: Effective Partnering between Inside and Outside Counsel on M&A Deals,” Debbie Bartlett, Paul Castenon, Ken Wimberley and Mary Korby, moderator. (MCLE 1.00)*
Sunday, May 11, 2014
oin us for a culinary tour at the beau�ful Pavilion at the Belo Mansion as you celebrate Mother’s Day. Dine in the ballroom or on the exquisite terrace overlooking the Arts District and enjoy complimen‐ tary champagne and mimosas. A boun�ful selec�on of fresh fruit, breakfast breads, chilled seafood sta‐ �on, carved prime rib, omelets and freshly made pancakes and waffles, a variety of pies, cakes and sweets and the ever‐popular children’s buffet. Serving hours from 10:30 a.m. to 2:30 p.m. | Adults: $39.00; Children 6-12: $13.00 Garage parking available ( from Olive Street. Taxes, gratuities and parking not included Reservations Required by May 6. Credit Card to hold reservation. No-shows will be billed. Call: ( 214 ) 220-0239 or e-mail jgreer@dallasbar.org. Limited seating. Sponsored by the DBA Entertainment Committee.
Noon
Appellate Law Section “Nuts and Bolts of Supersedeas Bonds in State and Federal Courts,” Daniel Huckabay. (MCLE 1.00)*
Media Relations Committee
Minority Participation Committee
Christian Legal Society
DAYL Animal Welfare Committee
Dallas Gay & Lesbian Bar Association
Noon
Friday Clinic at Belo “Practice of Behavior and Ethics in Dealing with Judges, Peers and Clients,” Marty Lumpkin and Cynthia Pladziewicz. (Ethics 1.00)* RSVP to sevans@dallasbar.org. Sponsored by CLE & Peer Assistance Committees.
DVAP/JLTLA CLE “Interaction Between Family Law and Criminal Law Issues,” Susan E. Anderson. (MCLE 1.50)* To register, contact perkinsa@lanwt.org. Sponsored by DVAP and J.L. Turner Legal Association.
11:30 a.m. DVAP CLE “Intestacy & Heirship Legal,” Mary Burdette, Larry Flournoy, John Norris III and Hon. Brenda Hull Thompson. Sponsored by DVAP, DBA Probate, Trust & Estate Section and Dallas County Probate Courts. (MCLE 2.00)* To register, contact perkinsa@lanwt.org.
Business Litigation Section “Pursuing and Defending Trade Secret Claims Under the Texas Uniform Trade Secrets Act,” A. Shonn. Brown, Jonathan R. Childers and Michael K. Hurst. (MCLE 1.00)*
Mother’s Day Brunch at Belo
THURSDAY, MAY 15
MONDAY, MAY 19
TUESDAY, MAY 13
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
8:00 a.m. Child Welfare Course (MCLE 7.50, Ethics 3.50)* To register, go to www. dallasbar.org or contact ahernandez@dallasbar. org. Presented by the DBA Juvenile Justice Committee
10:30 a.m. Mother’s Day Brunch at Belo. Adults: $39, Children 6-12: $13. RSVP to Jonathan Greer at (214) 220-7470 by May 6.
Noon
4:00 p.m. DAYL Swearing-In Ceremony
FRIDAY, MAY 16
SUNDAY, MAY 11
Noon
5:30 p.m. Bankruptcy & Commercial Law Section “Chapter 15 Basics and Recent Case Update,” Katharine Battaia Clark, Rebecca petereit and Judith Ross. (MCLE 1.00)*
Speakers Committee
6:00 p.m. Home Project Committee
MONDAY, MAY 12
WEDNESDAY, MAY 7
7: 45 a.m. Dallas Area Real Estate Lawyers Discussion Group
Corporate Counsel “The Investigation and Settlement of Allegations Related to the Misuse of Immigration Visas for HighTech Workers,” Shamoil T. Shipchandler. (MCLE 1.00)
Community Involvement Committee
WEDNESDAY, MAY 14
TUESDAY, MAY 6 Noon
What They Do,” Hon. Roberto Canas, Hon. Mark Greenberg, Hon. Ken Molberg, Victor Vital and Laura Benitez Geisler, moderator. (MCLE 1.00)* RSVP to kzack@dallasbar.org.
THURSDAY, MAY 1 Noon
Legal History Discussion Group “Don’t Join the Navy, Be a Pirate: a History of Law Firm Innovation,” Billie J. Ellis. (Ethics 1.00)*
Noon
Labor & Employment Law Section “Think Twice Before You Delete That Email: Computers & Employment Law Nightmares,” Dianne Bowen. (MCLE 1.00)*
Securities Section “Brave New IPO World – New Rules for New Times,” Harva Dockery and Glen Hettinger. (MCLE 1.00)*
TUESDAY, MAY 20 Noon
Antitrust & Trade Regulation Section Topic Not Yet Available
International Law Section “Doing Business in the European Union – Practical Legal and Operation Considerations for U.S Companies,” S. Kerry Tassopoulos. (MCLE 1.00)*
Pro Bono Activities Committee Non-Profit Law Study Group
THURSDAY, MAY 22 Noon
Criminal Law Section “Trying the High-Profile Case,” George Milner III. (MCLE 1.00)*
Environmental Law Section Topic Not Yet Available
DBA Community Service Fund Board Meeting
FRIDAY, MAY 23 Noon
Intellectual Property Law Section “Recent Precedential Cases from the TTAB,” Molly Buck. (MCLE 1.00)*
MONDAY, MAY 26
Offices closed in observance of Memorial Day
TUESDAY, MAY 27 Noon
Computer Law Section “The Law of Attorney-Client Privilege and AttorneyWork Product, Focusing on the Context of InHouse Counsel,” David Tobin. (Ethics 1.00)*
Probate, Trust & Estate Law Section “Tax Law Update,” Prof. Stanley Johanson. (MCLE 1.00)*
Courthouse Committee
American Immigration Lawyers Association
1:00 p.m. DVAP CLE “Guardianship of Incapacitated Person Ad Litem,” Hon. Michael E. Miller, Hon. Brenda Hull Thompson, Hon. Chris Wilmoth, and Hon. John Peyton. (MCLE 3.00, Ethics 1.00)* 6:00 p.m. Dallas Hispanic Bar Association
WEDNESDAY, MAY 28 Noon
Tips for Success from In-House Counsel: From Developing Business to Going In-House Speakers: Robert Jones, American Airlines; Stephanie Zapata Moore, Luminant; Leanne Oliver, Frito-Lay, Inc.; Eunice Nakamura, Motel 6; and Marc Schoenecker, Verizon. Sponsored by the DBA Minority Participation Committee (MCLE 1.00*)
Sports & Entertainment Law Section “Writing About History – A Death in Paradise: The Unwritten Law and the Last Trial of Clarence Darrow,” Mike Farris. (MCLE 1.00)*
DAYL Equal Access to Justice Committee
DAYL Fashion in the Law CLE. For more information, contact cherieh@dayl.com.
DVAP New Lawyer Luncheon. For more information contact reed-brownc@lanwt.org.
Municipal Justice Bar Association
THURSDAY, MAY 29
2:00 p.m. Law Student Professionalism Program A program for law students & recent graduates. Keynote speaker: Hon. Tonya Parker. (MCLE 3.00)*. RSVP to mjohnson@dallasbar. org. Sponsored by the DBA Morris Harrell Professionalism Committee.
FRIDAY, MAY 30 Noon
Dismantling the Schools to Prison Pipeline “What Can Lawyers Do?” (Ethics 1.00)* A special CLE presentation celebrating the 60th anniversary of Brown v. Board of Education.
Transition to Law Practice Committee CLE “Malpractice Traps for the Beginning Lawyer,” Kelli Hinson and Robert Tobey. (MCLE 1.00)*
DAYL CLE Committee
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.
M ay 2 0 1 4
D al l as Bar A ssoci ati on l Headnotes 3
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4 He a d n o t e s l D a l l a s B a r A s s o ciation
May 2014
Headnotes
President's Column
Law Day 2014: Democracy and Voting Scott M. McElhaney
Along with Mother’s Day, occasional thunderstorms, and the growing excitement of kids as the end of the school year approaches, the arrival of May brings another Spring tradition— Law Day, which we celebrate at the Belo Mansion each year. This year’s theme—American Democracy and the Rule of Law: Why Every Vote Matters—asks us to reflect on the importance of voting and the ways that we can help all those who are eligible to meaningfully participate in our almost 240-year old experiment in self-government. Now, Law Day may not have the same pedigree as other upcoming holidays and days of remembrance such as Memorial Day and Independence Day. After all, Law Day is not even an official government holiday. The celebration began in 1958 when President Dwight Eisenhower proclaimed May 1 as Law Day in the United States in order to celebrate the rule of law. In his initial proclamation, President Eisenhower explained Law Day’s importance by saying that “[i]n a very real sense, the world no longer has a choice between force and law. If civilization is to survive it must choose the rule of law.” As it is now expressed in the United States Code, Law Day is “a special day of celebration by the people of the United States—(1) in appreciation of their liberties and the reaffirmation of their loyalty to the United States and of their rededication to the ideals of equality and justice under law in their relations with each other and with other countries; and (2) for the cultivation of the respect for law that is so vital to the democratic way of life.” Anyone with a passing knowledge of post-World War II history will recognize the subtext of what was going on. May 1 was known in many countries as May Day not simply as a recognition of a festival day of Spring, but as a day to remember the struggles of workers in their fight for better wages and working conditions. Indeed, May Day was a major state holiday in the Soviet Union. By establishing May 1 as Law Day, the United States aimed to replace what was perceived by many to be a communist holiday with an American patriotic holiday. With the demise of the Soviet Union and communism generally, the Cold War roots of Law Day have become less apparent. But the lessons that Law Day seeks to impart remain as vital today as they were when Law Day was established. Law Day should remind us how the rule of law contributes to the freedoms we enjoy and how our participation in the continuing work of our democracy, and thus the administration of the rule of law, is essential to the preservation of our liberty. Two of the principal ways we participate in the continuing work of our democracy and the rule of law are by serving as jurors when called and by voting. This year’s Law Day theme focuses on the importance of voting. As current American Bar President James R. Silkenat has eloquently put it, “[t]he right to vote is the foundation of our representative democracy. It is the very essence of government by the people. When voters participate in free and fair elections, they reinforce the legitimacy of the rule of law.” Recently passed laws in Texas and other parts of the country have made issues surrounding voting procedures and requirements lead stories in all sorts of media. Opponents and supporters of those laws will continue to contest them in legislatures and courtrooms. But by asking us to consider how we can help voters meaningfully participate in our democracy, the sponsors of Law Day ask us
to consider, separate from those contested measures, how we can encourage those who are eligible to vote to do so and how we can encourage voters to cast their ballots thoughtfully. By any measure, Texas has work to do in encouraging voters to vote. Although voter turnout has been rising in the country as a whole, the University of Texas’s nonpartisan Annette Strauss Institute for Civic Life reported last year in its Texas Civil Health Index that Texans ranked last in a comparison of voter turnout in 2010, the last period measured. Even worse, since 1972, Texas has come in under the national voter turnout average. Our rank on voter registration fares little better, where we came in 42nd in the most recent Civil Health Index survey. One answer to the naggingly low participation problem that we all should be able to agree upon doubles as an answer to the second goal of Law Day’s focus on voting—how to encourage voters to thoughtfully exercise their right to vote. An answer to how to address both issues is education about the importance of voting and how voters should consider their choices. As President Franklin D. Roosevelt aptly put it, “[d]emocracy cannot succeed unless those who express their choice are prepared to choose wisely. The real safeguard of democracy, therefore, is education.” The Dallas Bar Association has a long tradition of sponsoring educational programs designed around the annual Law Day theme. Led by Chair Mandy Childs, Co-Vice-Chair Rob Bogdanowicz and Co-Vice-Chair Kristen Cox, the DBA’s Law Day Committee coordinates competitions for Dallas Independent School District students. This year’s competition invites students to create works expressing their ideas about the importance of voting in art (for elementary school children), essays (for sixth, seventh and eighth graders) and photography (for middle and high school students). The winners are announced at our annual Law Day luncheon, and many of the winners of our contests go on to win and place in statewide contests as well. I encourage you to come to our Law Day Luncheon on Friday, May 2, 2014 at the Belo Mansion. Tickets are available online at www.dallasbar.org or by contacting Mary Ellen Johnson at mjohnson@dallasbar.org. If you cannot make the Law Day Luncheon, there are other ways that you can help educate others about how the rule of law contributes to the freedoms we enjoy and how our participation in our democracy is essential to the preservation of liberty. The DBA recruits lawyers to speak in schools about the rule of law, and this year’s ABA Law Day programming encourages lawyers to lead classes about, for example, how to analyze political advertisements. Education about topics such as these will hopefully foster what Judge Learned Hand called the “spirit of liberty.” In a speech that deserves renewed attention, Judge Hand addressed a group of new citizens and noted that people had always come to America to seek liberty. He then tried to define liberty and explained that the spirit of liberty is “the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weights their interests alongside its own without bias. …” As citizens we have many opportunities to ensure that the spirit of liberty lives on. Regular and thoughtful voting is surely one of the most significant ways it endures. On this Law Day, we should all ask ourselves to help others understand the importance of voting, and how through voting our democracy, and our laws, are renewed and HN keep us free.
Tips for Success from In-House Counsel: From Developing Business to Going In-House Wednesday, May 28, Noon at Belo, MCLE 1.00
JOIN THE 2014 DBA 100 CLUB Membership is Now Open!
What is the cost to join the DBA 100 Club? It’s FREE! What is the DBA 100 Club? The Dallas Bar Association 100 Club is a special membership recognition category given to firms, agencies, law schools and organizations that have 100% membership in the Dallas Bar Association. How do you join? Firms, government agencies, and law schools with two or more lawyers as well as corporate legal departments may qualify for the DBA 100 Club if all attorneys are a member of the Dallas Bar Association. To join the 2014 DBA 100 Club, please submit a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and once approved, your firm will be added to the 2014 DBA 100 Club membership list! What are the perks? Our 2014 DBA 100 Club members will be recognized in Headnotes, the 2015 DBA Pictorial Directory and receive a Certificate of Appreciation as well as recognition at our Annual Meeting in November. If we receive your list by May 4th, your organization will be included in the June, July and August DBA 100 Club recognition ad in Headnotes. Send in your list TODAY! Don’t Miss Out on this Great Opportunity!
Speakers: Robert Jones—American Airlines Stephanie Zapata Moore—Luminant Leanne Oliver—Frito-Lay, Inc. Eunice Nakamura—Motel 6 Marc Schoenecker—Verizon
Published by: DALLAS BAR ASSOCIATION 2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. OFFICERS President: Scott M. McElhaney President-Elect: Bradley C. Weber First Vice President: Jerry C. Alexander Second Vice President: Rob Crain Secretary-Treasurer: Audrey Moorehead Immediate Past President: Sally L. Crawford Directors: Tatiana Alexander (President, J.L. Turner Legal Association), A. Shonn Brown (At-Large), Wm. Frank Carroll, Laura Benitez Geisler (Vice Chair), Hon. Martin Hoffman, Hon. David Horan (Judicial At-Large), Michael K. Hurst (Chair), Krisi Kastl, Michele Wong Krause, Meyling Ly (President, Dallas Association of Young Lawyers), Karen McCloud, Courtney Barksdale Perez (At-Large), Sakina Rasheed (President, Dallas Asian American Bar Association), Mary Scott, Scott Stolley, Diane M. Sumoski, Robert L. Tobey, Aaron Tobin and Elisabeth A. Wilson (President, Dallas Hispanic Bar Association) Advisory Directors: Jonathan Childers (President-Elect, Dallas Association of Young Lawyers), Monica Lira (President-Elect, Dallas Hispanic Bar Association), Bill Richmond (PresidentElect, Dallas Asian American Bar Association) and Ebony Rivon (President-Elect, J.L. Turner Legal Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Lawrence Boyd, Wm. Frank Carroll, Andy Payne, Florentino A. Ramirez and Ike Vanden Eykel HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Display Advertising: Deni Ackerman, Tina DeRobertis, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Dawn Fowler and Jared Slade Vice-Chairs: Paul Clevenger and Meghan Hausler Members: Timothy Ackermann, Vincent Allen, Natalie Arbaugh, Benjamin Barmore, Joi-lee Beachler, Martha Beard-Duncan, Lisa Blackburn, Jason Bloom, Eric Blue, Leigh Bradford, Bobby Braxton, Kandice Bridges, Kelsey Brock, Sara Ann Brown, John G. Browning, Casey Burgess, Eliot Burriss, Stacie Cargill, Nancy Carroll, Lance Caughfield, Julie Chandler, Joel Crouch, Walter Dean, Lea Dearing, David Dodds, Adam Dougherty, Brandon Duck, Christopher Elam, Alexander Farr, J. Martin Futrell, Jenny Givens, Jennifer Gjesvold, Andrew Gould, James Gourley, Nadia Haghighatian, Susan Halpern, William Hammel, Jordan Harrison, Jeremy Hawpe, John Herring, Zachary Hilton, Kelli Hinson, Tyler Hokanson, Alison Hollender, Mary Louise Hopson, Mandy Jenkins, Soji John, Amanda Kelley, Cynthia Jon-Ubabuco, Yoon-Joo Jung, Tiffany Kamuche, Nicholas Kennedy, Adam Kielich, Michelle Koledi, Matthew Kolodoski, Susan Kravik, Norman Lofgren, Sixuan Lu, Margaret Lyle, Ashley Mason, Andrew Mayo, Jennifer McCollum, Christina McCracken, R. Sean McDonald, Scott McElhaney, Elizabeth “Jodi” McShan, John McShane, Michael Merrick, Christopher Meuse, Aaron Michelsohn, Wendy Mills, Constance Mims, Ethan Minshull, Paige Montgomery, Caitlin Morgan, Hon. Jim Moseley, Terah Moxley, Derek Neilson, Nick Nelson, Christopher Norcross, David Parham, Murali Pasupulati, Seth Phillips, Keith Pillers, Amiee Pingenot, Kirk Pittard, Irina Plumlee, Laura Anne Pohli, Ellen Pryor, Gabriel Reyes, Edward Rice, Morgan Richards, David Ritter, Carl Roberts, Richard Salgado, Joshua Sandler, Brandon Schwarzentraub, Calvin Scott, Ifeyinwa “Ify” Seales, Isabel Segarra, Micah Skidmore, Crystal Smith, Phillip Smith, Bradley Smyer, Yon Sohn, Thad Spalding, Timothy Springer, Jacob Stasny, Cori Steinmann, John Stevenson, Scott Stolley, Brian Stork, Amy Stowe, Billye Summers, Kristopher Tate, SaKinna Thomas, Pryce Tucker, Brent Turman, Peter S. Vogel, Whitney Warren, Bradley C. Weber, Suzanne Westerheim, Elisabeth Wilson and Andrew Wirmani DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Director: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Kimberlynn Taylor Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas
Questions? Contact ahernandez@dallasbar.org. Sponsored by the DBA Minority Participation Committee
DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Marisol Guzman, Andrew Musquiz, Carmen Perales Program Assistant: Patsy Quinn
A Celebration of the Life & Legacy of Hon. L.A. Bedford, Jr.
Copyright Dallas Bar Association 2014. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher.
Thursday, May 1, 6:30-8:00 p.m., Belo Hall. RSVP to err@hammerle.com. Hosted by J.L. Turner Legal Association
Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
M ay 2 0 1 4
Focus
D al l as Bar A ssoci ati on l Headnotes 5
Bankruptcy & Commercial Law
A Primer on Fraudulent Transfer Actions in Bankruptcy Court by Judge Harlin Hale, Andrew Edson, Maria G. Fernandez and Moira Chapman
Fraudulent transfers are common in bankruptcy. They occur when principals take advantage of companies, when assets are transferred for less than reasonable value, or when the debtor has made unusual payments. Fraudulent transfer issues also arise under guaranties, leveraged buyouts, and donations. This article summarizes statutes governing fraudulent transfers and offers advice for practitioners.
Section 548
Section 548 of the Bankruptcy Code gives trustees or debtors the power to avoid fraudulent transfers made within two years of filing a petition. A “transfer” includes every method of disposing of or parting with property. Foreclosures, leveraged buyouts and mortgage modifications are examples of “transfers.” A party must prove that the transfer was actually or constructively fraudulent. Actual fraud requires a showing of actual intent to hinder, delay or defraud a creditor. Since direct evidence is rarely available, movants often present evidence through “badges of fraud”—circumstantial conduct surrounding the transfer that raises a strong presumption of fraud. The burden then shifts to the defendant to prove some legitimate purpose for the transfer(s). Unlike actual fraud, constructive fraud requires no showing of intent. Rather, the movant must show: (1) that the debtor received less than reasonably equivalent value; and (2) that the debtor was insolvent or would become insolvent. Factors
such as market value and good faith are used to determine reasonably equivalent value. Insolvency generally means that the debtor is unable to pay its debts when due. There is, however, a defense for good faith transferees (GFT). A GFT may receive a lien or allowed to retain any interest transferred if the transfer was made in good faith and for value. “For value” is usually determined by the market value of the interest. “Good faith” requires an inquiry into whether the GFT knew or should have known that the transfer was fraudulent.
TUFTA
The Texas Uniform Fraudulent Transfer Act (TUFTA) borrows heavily from the Bankruptcy Code. In addition to actual and constructive fraud, Texas codifies two other transfers that are deemed invalid. Actual and constructive frauds are analyzed in the same manner as in section 548. Importantly, however, GFT’s are limited to a lien under a constructive fraud theory in the amount given. Current or future creditors may also avoid a transfer where reasonably equivalent value is not given and leaves the debtor with insufficient capital to conduct normal business operations. This is known as a “quasi-fraudulent” transfer. It does not require a debtor to be insolvent and gives GFT’s a lien in the amount they paid. A transfer made to an “insider,” (e.g., a close family member, partner, etc.) who had reason to believe that the debtor was insolvent at the time of the transfer is avoidable under an “insider preference” theory. This action can only be brought by an existing creditor and requires the debtor to have been insolvent at the time of the transfer. The insider may be
required to pay back the amount, despite giving fair value.
Statute of Limitations
Both section 548 and TUFTA have statute of limitations (SOL) prescribing the time within which to bring an action. Under TUFTA, a party must bring an avoidance action within four years from the date of the transfer for actual or constructive fraud. The limitations period is reduced to one year if the transfer was made to an insider. However, the discovery rule is built into the SOL for actual intent, so that parties receive an additional year upon discovering the existence of the transfer, not when learning of the alleged fraudulent intent. A two-year SOL exists for actions brought on behalf of a spouse, minor, or ward. Under section 548, the debtor or the trustee must commence an avoidance action within two years of the bankruptcy filing and before the case is closed or dismissed. Generally, parties rely on TUFTA since it is more generous. It is important to note that governmental creditors are not bound
by the SOL and courts will sometimes allow an equitable tolling of the Bankruptcy Code limitations period.
Practice Pointers
1. Carefully document the transaction and clearly identify the consideration given and received. 2. Watch for statute of limitations defenses under State law and Bankruptcy Code. 3. If you do not want to be in bankruptcy court, say so at the beginning. The bankruptcy court’s power to hear fraudulent transfer actions is uncertain at this time. 4. If you are handling a company sale, do not let your client(s) get too greedy. Exiting shareholders who take too much give rise HN to fraudulent transfer actions.
Judge Hale has been a bankruptcy judge in Dallas since 2002. Andrew Edson is an associate with Strasburger & Price, LLP, and can be reached at andrew.edson@strasburger.com. This article was written in part and edited by Maria G. Fernandez and Moira Chapman, law students at Southern Methodist University and judicial externs for Judge Hale.
Practice of Behavior and Ethics in Dealing with Judges, Peers & Clients Friday, May 16, 2014 at Belo | Ethics 1.00 Speakers: Marty Lumpkin and Cynthia Pladziewicz RSVP to sevans@dallasbar.org. Sponsored by the CLE and Peer Assistance Committees
6 H e a d n o t e s l D a l l a s B a r A s s o ciation
May 2014
“Separate but Equal” How the Civil Rights Act of 1964 Changed Dallas On March 27, the Dallas Bar Association presented the first of a series of programs to mark the 50th anniversary of the Civil Rights Act of 1964. The distinguished panel included Ernie Higginbotham, Sr. V.P. and General Counsel of United Lex and Former President, Greater Dallas Community of Churches; Rev. Zan W. Holmes, Jr., Pastor Emeritus, St. Luke “Community” United Methodist Church; Sandra Dorsey Malone, Retired Dallas ISD Educator & Former Desegregation Court Auditor, U.S. District Court; Robert H. Thomas, DBA Past President and attorney at Strasburger & Price LLP; and Moderator Richard Stewart, Assistant General Counsel (Retired), Verizon.
YO U d o n’t H AV E TO B E A B I L L I O N A I R E TO B E A P H I L A N T H R O P I S T.
At Communities Foundation of Texas we make it easy for you to create your very own philanthropic or charitable fund. All it takes is a minimum opening balance of $10,000 to support the causes you believe in. For more information on how you can feel like a billion for a whole lot less, Call or email Geri Jacobs at 214-750-4255 or g jacobs@cftexas.org
5 5 0 0 C A R U T H H AV EN L A N E | DA L L A S , T E X A S | CF T E X A S .O R G /G I V I N G F U N D
May 2 0 1 4
D al l as Bar A ssoci ati on l Headnotes 7
A LAW FIRM BUILT WITH FAMILY IN MIND.
W
HEN AUBREY CONNATSER
created Connatser Family Law, she set out to prove
■ DIVORCE
■ PATERNITY DETERMINATION
■ CHILD CUSTODY AND VISITATION
■ PRE- AND POSTMARITAL AGREEMENTS
■ COMPLEX PROPERTY SETTLEMENTS
■ MODIFICATIONS
■ BUSINESS VALUATION
■ COLLABORATIVE LAW
that a cohesive team of creative problem solvers can achieve positive results while maintaining the dignity of the families they represent. Connatser Family Law attorneys strive to identify
and anyone who could lose something valuable by
the most productive way forward for parents and
selecting counsel with different priorities.
children caught in the throes of a family law crisis. We demonstrate our commitment to this principle each day in every divorce, complex property and business valuation matter, intractable child custody and visitation issue, tax matter, marital agreement, divorce decree modification, and collaborative law matter. INTEGRITY drives our uncompromising professionalism. INTENSITY keeps us focused. INTUITION guides us to achieve our goals. Our clients include professional men and women,
Those who retain Connatser Family Law benefit from
PICTURED ABOVE, FROM LEFT –
a rare assemblage of talent — the energetic spirit and
CHRISTINE POWERS LEATHERBERRY
keen abilities of associates Christine Powers Leather-
ASSOCIATE ATTORNEY Texas Rising Stars 2014 Business, Family Law Litigator christine@connatserfamilylaw.com
berry and Abby Gregory, the veteran wisdom of firm member Mike DeBruin, and the vision of managing member Aubrey Connatser.
MIKE DEBRUIN
tion for themselves and their loved ones. Clients facing
MEMBER Board Certified in Family Law, Texas Board of Legal Specialization Texas Super Lawyers 2003-2013 Best Lawyers 2009-2011 mike@connatserfamilylaw.com
the chaos of a family conflict should require no less
AUBREY CONNATSER
Families hire us to provide honest, ethical representa-
from a family lawyer. We never fail to deliver.
high-level businesspeople, stay-at-home parents,
INTEGRITY. INTENSITY. INTUITION.
MANAGING MEMBER Board Certified in Family Law, Texas Board of Legal Specialization D Best Lawyers in Dallas 2011 Texas Super Lawyers 2004, 2009-11, 2013 Best Lawyers 2011-14 aubrey@connatserfamilylaw.com
ABBY GREGORY ASSOCIATE ATTORNEY Trained in Collaborative Law abby@connatserfamilylaw.com
LEARN MORE ABOUT CONNATSER FAMILY LAW
AUBREY M. CONNATSER, PLLC 300 Crescent Court, Suite 270, Dallas, Texas 75201 214 306-8441
www.connatserfamilylaw.com info@connatserfamilylaw.com
8 He a d n o t e s l D a l l a s B a r A s s o ciation
May 2014
Opportunity to be Listed on the Belo Pavilion Donor Wall For a Limited Time Only The Dallas Bar Foundation is pleased to announce a one-time opportunity for lawyers, law firms, and others to contribute to the Pavilion at the Belo Mansion and receive prominent recognition on the Donor Wall in the Grand Entrance of the Pavilion. Individuals and law firms may contribute in amounts starting at $5,000. Donors to the original Raising the Bar Campaign in 2001 may make an additional contribution and naming opportunities throughout the building are available. All donors will be recognized for the total amount of their contributions on new re-installed donor plaques in the Pavilion at the conclusion of this year’s campaign. Proceeds will be used to retire the mortgage debt on the Belo Mansion property and to continue to protect and preserve our beautiful home. All donations are tax deductible as a charitable contribution. We hope that you will make a lasting difference in your legal community by making a donation today. Fifty percent of donated amounts must be received by December 31, 2014, with the remainder paid in full during 2015. For further information, please contact Elizabeth Philipp, Dallas Bar Foundation Executive Director, at (214) 220-7487.
George Allen Attorney Lounge To Reopen Soon Staff Report
Thanks to the Courthouse Committee and the Family Law Section, the Attorney’s Lounge at the George Allen Courthouse on the second floor will reopen soon—with a shiny new-andimproved look! When then-chair, Chris Lake, proposed that the Family Law Section help the Courthouse Committee with the renovation of the lounge and make a $5,000 donation toward the project, the board voted its approval and Carl Roberts, Family Law Section Vice-Chair, took on the day-to-day tasks to move the renovation
forward. Due to the hard work of Mr. Roberts and Courthouse Committee Chair Michele Wong Krause, the newly renovated lounge is set to open mid-summer. “It is our intent to bring it up to date with more functional furniture for ease of use and to make the Lounge more appealing to those attorneys who frequent the courthouse,” said Mr. Roberts. “The Lounge is an amenity for all lawyers who look for a place to go while at the courthouse. With the invaluable assistance of Lori Ann Bodino, we have coordinated with the County to get some cabinets built, a work
“Dismantling the Schools to Prison Pipeline: What Can Lawyers Do?” Friday, May 30, Noon at Belo Ethics 1.00
Carl Roberts
Elm Fork Sporting Clays Course Event May 17, 2014 | 9:00 a.m. Cost: $150 (pay at event) Elm Fork Shooting Range, 10751 Luna Road, Dallas
Celebrating the 60th Anniversary of Brown v. Board of Education Sponsored by: Dallas Bar Association, DBA Juvenile Justice Committee, DBA Mentoring Committee, DBA Community Involvement Committee, DBA Law in the Schools Committee, J.L. Turner Legal Association, Dallas Hispanic Bar Association, Dallas Asian American Bar Association
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counter has been installed and the space has been painted.” In addition, he says they hope to have furniture in place shortly, including chairs for the counter work area and tables and chairs in the center area for meeting with other attorneys. “I am working with the county to get Wi-Fi for the Lounge and District Clerk Gary Fitzsimmons has said he would install an e-filing kiosk with computer and scanner in the Lounge as well, which should be a great asset with the new e-filing requirements,” added Mr. Roberts. Thank you for all of your hard work on HN accomplishing this task!
10/9/12 10:39 AM
Entry includes instructions, range gun use (if necessary), targets, ammunition, golf cart use, eye and ear protection, snacks and lunch For more information, contact rthornton@dallasbar.org. Hosted by the Entertainment Committee
May 2 0 1 4
D al l as Bar A ssoci ati on l Headnotes 9
CALABresehuFF.CoM | FoLLoW us on FACeBooK
Left to right: Carson EpEs stEinbauEr, CarLa M. CaLabrEsE, WinifrEd “WinniE” Huff, & Madison WHitE
When Better turns to Worse, Choose the Best. When things are no longer well on the home front, you need an experienced family lawyer who is smart, compassionate and tenacious. Someone you can trust and turn to; who protects and preserves all that you value most in life. You’ll find that partner at Calabrese Huff. Whether in litigation or collaboration, Calabrese Huff commits to lead you through the worst of times toward a better future. + divorce + Complex property division + Collaborative Law + Marital agreements (pre- and post-nuptial) + Child Custody and support + ado ptio n + pater n ity + M ediation + assisted reproductive technology (art) + surrogacy, Egg donor and Gestational agreements Ser v i n g N o r th Te x a s , i n c l u d i n g D a l l as , C o l l i n, Tar r ant , D e nt o n and R o c k w al l C o unt i e s
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
May 2014
Have Iqbal/Twombly Impacted Litigation in a Significant Way? By Ron Breaux and Chris Quinlan
Ashcroft v. Iqbal, 556 US 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 US 544 (2007), initially shocked the federal litigation bar. The decisions abrogated the long-standing Conley pleading standard, which permitted dismissal only when it was “beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” In place of that “no set of facts” standard, the Supreme Court instituted plausibility pleading and ostensibly raised the bar for plaintiffs to survive motions to dismiss. Interestingly, critics and proponents alike predicted that Iqbal/Twombly would drastically increase the difficulty of defeating 12(b)(6) motions and have long-lasting repercussions.
Empiricists scrambled to quantify the Iqbal/Twombly effect and initially found evidence that Iqbal/Twombly were altering the pleading landscape. For example, Patricia Hatamyar, writing in the American University Law Review, found that the rate of 12(b) (6) motions granted increased significantly in the three months following Iqbal. However, in the years that followed, as more cases were decided under the new plausibility regime, empiricists struggled to duplicate previous results and confirm a long-term effect. Most notably, by 2011, a Federal Judicial Center report to the Judicial Conference Advisory Committee (FJC report) found “no increase in the rate of grants of motions to dismiss without leave to amend.” How could holdings so widely seen
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by practitioners as revolutionary and cited thousands of times each year have so little effect? A memorandum from Andrea Kuperman to the Civil Rules Committee suggested a plausible explanation: circuit courts overrule aggressive applications of the Iqbal/ Twombly standard and “instruct[] the district courts to be careful in determining whether to dismiss a complaint.” As subsequent commentators have stated more plainly, Iqbal/Twombly are not having a substantial longterm effect because lower courts are simply not following their precedent. This theory, though plausible, is essentially unprovable: it contends that lower courts have adopted the language but not the import of Iqbal/ Twombly—that Iqbal/Twombly are interpreted as “a new framework in which to analyze familiar pleading concepts” without “dramatically changing the application of the standards used to determine pleading sufficiency.” Because the Iqbal/Twombly standard is so subjective, district and appellate courts can pull back from Iqbal/Twombly without explicitly refuting Supreme Court precedent. In other words, a judge can talk the Iqbal talk but need not walk the Iqbal walk. The subjectivity of applying the standard, however, also makes a case by case legal analysis ineffective at proving whether there has been judicial retreat from Iqbal/Twombly. As long as a judge adopts the plausibility language, it is difficult to distinguish between decisions to deny a motion to dismiss based on fact-intensive subjective factors and decisions that reflect an abandonment of the Iqbal/Twombly standard. Additionally, the empirical back-
bone of the “Iqbal/Twombly have little effect” argument may be fatally deficient. See e.g., Gelbach, Jonah, Can the Dark Arts of the Dismal Science Shed Light on the Empirical Reality of Civil Procedure (2014), Faculty Scholarship, Paper 1046. This is because studies following the FJC report have primarily focused on one statistic: the success rate of motions to dismiss. That success rate, however, does not account for at least three important factors. First, as the FJC study itself confirms, 12(b)(6) motions have increased significantly since Iqbal. Second, defendants now file 12(b)(6) motions in cases where they may have had little chance of succeeding under Conley and therefore may not have filed. Third, plaintiffs may refrain from bringing cases that might have survived under Conley, but that have only very little chance under Iqbal. These factors alone would impact any analysis relying exclusively on the success rate of motions to dismiss, and therefore call into question the FJC study on which most commentators rely. So, where are we? The empirical data, flawed as it may be, suggests the needle has not moved materially following the adoption of Iqbal/Twombly. Interestingly, many practitioners, particularly in the specialized fields of antitrust, employment and discrimination law, do not agree. To many, it simply “feels” like more cases are being tossed at the motion to dismiss stage. HN The debate will continue. Ron Breaux is a partner at Haynes and Boone, LLP, and can be reached at ron.breaux@haynesboone.com. Chris Quinlan is an associate at the firm and can be reached at chris.quinlan@haynesboone.com.
COMMUNITY VOLUNTEER OPPORTUNITIES FOR LAWYERS Help Build the DBA’s 24th House with Habitat for Humanity, contact gmcallister@ghjhlaw.com.
Tutor a Child Confined to the Henry Wade Juvenile Justice Center, contact ahernandez@dallasbar.org.
Mentor a Child Impacted by Incarceration, contact Mandy Klem at (214) 288-3551.
Speak to a Community or Civic Group on a Law-Related Topic, contact mjohnson@dallasbar.org.
in association with Communities Foundation of Texas, Dallas Bar Association Tax Section, Dallas Estate Planning Council, Financial Executives International (Dallas Chapter), Institute of Internal Auditors (Dallas Chapter), State Bar of Texas Tax Section and Tax Executives Institute (Dallas Chapter)
May 8, 2014 InterContinental Dallas Hotel Receive eight houRs of continuing PRofessional education
Register at www.cpadallas.org Members of Partnering Organizations Receive a Special Rate
972.960.8311
May 2 0 1 4
Focus
Dal l as Bar A ssoci ati on l Headnotes 11
Bankruptcy & Commercial Law
Personal Liability of Officers and Directors by Eric C. Wood and Richard J. Wallace, III
Section 171.255 of the Texas Tax Code subjects officers and directors to personal liability for corporate debt when the corporation fails to timely pay its franchise taxes. Specifically, when the privileges of a corporation are forfeited for the failure to file a report or pay a tax or penalty, each director or officer is personally liable for debt of the corporation that is created or incurred in Texas after the date on which the report, tax, or penalty is due and before the corporate privileges are revived. If a corporation’s charter or certificate of authority and its privileges are forfeited and later revived, the liability of a director or officer of the corporation is not affected by the revival of the charter or certificate and the corporate privileges. The liability is in the same manner and to the same extent as if the director or officer were a partner and the corporation were a partnership. The statute applies similarly to virtually all types of entities in Texas, such as corporations, limited partnerships, limited liability companies, limited liability partnerships, professional associations, joint ventures, and hold-
ing companies. However, banking corporations and savings and loan associations are specifically excluded from the statute, provided they are organized under the laws of the State of Texas or under federal law and have their main office in Texas. There is a safe harbor in the statute. A director or officer is not liable for a debt of the corporation if the director or officer shows: (1) that the corporation created or incurred the debt over the director’s or officer’s objection or without the knowledge of the director or officer; and (2) that the exercise of reasonable diligence to become acquainted with the affairs of the corporation would not have revealed the intention to create the debt. Since Section 171.255 of the Tax Code is penal in nature, courts strictly construe it and do not extend it beyond the clear meaning of its language. However, officers and directors are not required to have personally participated in the transactions resulting in the corporate debt. Rather, it is the director’s or officer’s consent to and approval of the corporate debts that leads to personal liability. As a result, actual knowledge of a corporate debt is not required. However, the statute does not apply to involuntary debts
Annual Evening Ethics Fest 3 Hours of Ethics Thursday, May 8, at the Belo Mansion Check-In and Dinner begins at 4:45 p.m. Program begins at 5:30 p.m. (3.00 Ethics) DBA members: $65 early registration | $95 late registration
such as tort judgments. The date the corporate debt is created or incurred is crucial. Personal liability attaches only to those directors and officers of the entity at the time the debt is created or incurred. This is because these directors and officers have abused the corporate privilege by continuing to create and incur debts after the franchise tax is delinquent. See PACCAR Fin. Corp. v. Potter, 239 S.W.3d 879 (Tex.App.—Dallas 2007, no writ). Performance or implementation of the contractual provisions relate back to and are authorized at the time of execution of the contract. Thus, the words “created” and “incurred” as used in Section 171.255, have a clear and well defined meaning. The word “create” means “to bring into existence something which did not exist.” The word “incur” is defined as “brought on,” “occasioned” or “caused.” Thus, courts have held that the liability imposed
under the statute is only for debts contracted after the forfeiture of the right to do business, and has no application to the renewal of obligations arising prior thereto. Because of Tax Code Section 171.255, a company should be careful to ensure that it remains in good standing with the Texas Secretary of State to prevent its officers or directors from becoming personally liable for debts of the company. If the entity was formed in Texas, a party can obtain a corporate standing history by making an open records request to the Texas Comptroller of Public Accounts at open.records@ cpa.state.tx.us. The responsive document can then be used in court as the basis for establishing or refuting officer HN or director liability. Eric C. Wood is a member and Richard J. Wallace III is a partner with Scheef & Stone, LLP. They can be reached at eric.wood@solidcounsel.com and richard.wallace@ solidcounsel.com.
Professionalism Tip I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior. Find the complete Creed online at http://txbf.org/texas-lawyers-creed/. Excerpt from the Texas Lawyers Creed
If it’s a matter of
To register, log on to www.dallasbar.org. For more information contact Alicia Hernandez at (214) 220-7499 or ahernandez@dallasbar.org.
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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
May 2014
Encouraging “Slow Thinking” in the Jury Box by Jonathan Leach
Cognitive psychologists often describe the mind as an uneasy alliance between two systems. System 1 operates automatically and quickly; System 2 requires attention and effort. Understanding these two systems can enhance our efforts to connect with jurors. System 1, the engine of “fast thinking,” operates with little or no effort. We use System 1 when we interpret a facial expression as angry or sad, when we detect hostility in someone’s voice or when we navigate a familiar route to work. Now think about filling out a tax form, or multiplying two-digit numbers. Those tasks demand heightened focus and trigger the slower-thinking System 2. System 2 requires us to spend mental resources, and we “pay attention” in a very literal
way. The extra energy required by System 2 causes us to adjust physically, as our pupils dilate and more areas of the brain light up on a scan. Most of the time, the two systems work well together. The problem is that System 1, though efficient, is easily misled. It is intuitive and fast but often wrong. Meanwhile, System 2 is lazy. System 2 is uniquely equipped for thinking requiring effort, but it prefers ease over strain. It usually adopts the conclusions reached by System 1. Here are a couple of ways in which System 1 thinking shows up in the courtroom, together with some suggestions for how to mobilize System 2. Hindsight bias. Thanks to System 1, an unpredictable outcome will seem knowable and inevitable after the fact. This is the “I-knew-it-all-along” effect.
2014 Conference of the Professions Agony & Ecstasy: How Your Emotions Affect Practice
Friday, May 9, 2014, 8:00 - 11:30 a.m. at Texas Scottish Rite Hospital Keynote Speaker: Danielle Ofri, MD, author of What Doctors Feel Panelists: Dr. Wayne Albrecht, James Wagner and Will Pryor Cynthia Pladziewicz, Moderator
Relying on System 1 thinking, a juror will conclude that any reputable financial advisor would have recognized, well before it happened, that the 2008 financial crisis was inevitable. When a bizarre event occurs during a low-risk surgical procedure and the patient dies, System 1 prompts jurors to conclude that the operation was actually risky, and that the doctor who ordered it should have known better. There is good news: once sensitized to hindsight bias, most jurors become vigilant against it. This means that voir dire and opening are golden opportunities to sensitize jurors to hindsight bias. Caution jurors about the opponent’s strategy to turn them into Monday-morning quarterbacks. Help them distinguish the information they have now, in the courtroom, from that which the client had at the time of his or her questioned decision. Consider using cultural markers from the relevant time period, such as popular songs or movies, or major political events. (“Most of these events happened in 1973–ten years before Carrie Underwood was born.”) References like these can help jurors “turn the clock back” to when the outcome was still unknowable. Substituting an easier question for a harder one. If System 1 does not quickly find a satisfactory answer to a hard question, then System 1 finds a related question that is easier, and answers it instead. Suppose that, just before deliberations, jurors have watched the deposition video of a defendant. In the jury room, some jurors comment that the defendant looked uncomfortable at times. Now they address the first question on the verdict form: “Did the defendant know that the
company’s financial statements were false?” That is a hard question. It may require reviewing reams of accounting records and hundreds of e-mails. So System 1 quickly substitutes an easier question: “Did statements the defendant made in his deposition appear to be false?” Jurors have just watched the video. This second question is much easier to answer than the actual verdict question. And voila: the verdict is “Yes.” As with hindsight bias, forewarned is forearmed. The attorney may need to state the problem explicitly for the jury: “The question you are asked is whether [and carefully state the question]. Beware of substituting some other question you have not been asked.” It’s also effective to guide jurors, visually, through the path they must follow in order to arrive at an answer. Simple icons such as checkboxes, stair steps, or decision trees can be used (“First consider A, then B,” and so on). Depicting the question as a series of interrelated and essential parts can make the “hard question” much less intimidating. System 1 has been called “a machine for jumping to conclusions.” To minimize its effects, consider a two-pronged strategy. Warn jurors of the traps that lie ahead—such as hindsight bias or substituting the hard question with an easier one. Help them anticipate the temptations that they will face. Then–using cultural references, visual aids and simple language–point jurors away from those traps. Help jurors mobilize the more com HN plex thinking of System 2. Jonathan Leach is a shareholder in Trial Lab, LLC and can be reached at jleach@triallab.com.
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5th Annual Child Welfare Conference Friday, May 16, 8:00 a.m. to 5:00 p.m. at Belo MCLE 7.50 (Ethics 3.50) For rates and registration information, log on to www.dallasbar.org. Presented by the DBA Juvenile Justice Committee
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Malpractice Tips for the Beginning Lawyer Friday, May 30, Noon at Belo Speakers: Kelli Hinson and Robert Tobey Questions? Contact ahernandez@dallasbar.org. Sponsored by the DBA Transition to Law Practice Committee
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President Jimmy Carter, together with thousands of volunteers, will be in the DFW area for a weeklong build. The DBA and the sister bar associa�ons will partner with Dallas Habitat for Humanity on this project. For more informa�on about volunteering, contact kzack@dallasbar.org.
M ay 2 0 1 4
Focus
D al l as Bar A ssoci ati on l Headnotes 13
Bankruptcy & Commercial Law
Accepting Payment From Strangers Can Buy You Strict Liability by Brandon Lewis
Do not accept payment from someone for services rendered to someone else. This simple rule applies to lawyers and clients alike and has ethical and economic aspects. But whereas informed consent and professional judgment can avoid conflicts of interest, they cannot cure the other danger that this rule prevents: fraudulent transfer liability. Under the Bankruptcy Code and Texas law, a transfer is fraudulent if it is made for less than reasonably equivalent value and occurs when the transferor is or becomes insolvent as a result, is inadequately capitalized, or should know that it will be unable to service debts. A person (or law firm) who receives money from an insolvent without giving that insolvent reasonably equivalent value in exchange is strictly liable as an “initial transferee.” Therefore, if an insolvent pays you for services you rendered to someone else, your firm may potentially acquire strict liability. Put differently, although your services constitute “value,” you gave that value to your client—not to the person paying you. You gave your payor nothing in exchange, and you could have to disgorge every cent received. Even if you are not the first to receive the fraudulent transfer but receive proceeds of it later on through someone else, you face liability as a “subsequent transferee.” For example, suppose that an insolvent third party pays your client for services rendered to a customer. And suppose your client pays you with some of those funds. Your client received a fraudulent transfer for which it faces strict liability, and you face potential liability as a subsequent transferee. These examples are simplistic, but consider your own practice. Do you see every check for every matter, or are they cursorily
sent to accounting? What happens when the name on the check does not match the engagement letter? Do your corporate clients have paymaster affiliates that cover your invoices? Have you been told that a payment from a non-client resolves an inter-company receivable? What about settlement payments made by non-parties? Each of these practices carries the potential for strict liability if the payor is insolvent. Moreover, if your client is paid by one of these methods and uses those funds to pay you, your client faces strict liability, and you are a subsequent transferee. As a subsequent transferee, you can assert the “good faith” affirmative defense. A subsequent transferee defeats liability by proving it received the transfer for value and in good faith. The Bankruptcy Code separately requires you to have received the transfer without knowledge of its voidability. Texas wraps this concept into “good faith.” Unlike initial transferees, subsequent transferees asserting the “good faith” defense do not have to have provided value to their transferor. They need only have provided value to someone in exchange for the transfer received. But knowing (or refusing to investigate) why a stranger is covering your client’s tab can preclude “good faith.” Under both Texas law and the Bankruptcy Code, having knowledge that would put an ordinary person on inquiry notice of a transferor’s insolvency or other red flags defeats the “good faith” defense. For those still skeptical, consider the recent opinion in Liquidating Trustee of the App Fuels Creditors Trust v. Bingham Greenebaum Doll LLP, No. 13-8023, 2014 WL 185033 (B.A.P. 6th Cir. Jan. 17, 2014). A client had paid a law firm’s fees with settlement proceeds. The client and the law firm, however, had allowed a non-party to make the settlement payment. Because that non-
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party happened to be insolvent, the settlement payment was a fraudulent transfer, and the firm was sued as a subsequent transferee. The firm asserted a “good faith” defense and sought summary judgment, but the Sixth Circuit B.A.P. held that three emails sent to the firm—when construed together—put the firm on notice that a company in financial difficulty was making the settlement payment despite no obligation to do so. This knowledge, coupled with the failure to investigate further, was sufficient to require a trial on the merits. Had the client insisted that a party to the settlement make the payment or
had the firm refused payment from the settlement proceeds, the result would have been different. Instead, three emails defeated the firm’s summary judgment bid. How many emails does your firm receive during a representation? Could three be construed together to sink your “good faith” defense? Avoid that risk entirely. Refuse payment from anyone other than those you render services to, and advise your clients to do HN the same. Brandon Lewis is a partner at Reid Collins & Tsai LLP. He can be reached at blewis@rctlegal.com
Bob Mow Receives Fellows Justinian Award
In March, the Dallas Bar Foundation presented Bob Mow (center), of K&L Gates, with the newly inaugurated Fellows Justinian Award. Kim Askew (left), DBF Fellows Chair, and Mark Sales (right), DBF Chair, presented the award to Mr. Mow.
We look for people who raise it.
specialcounsel.com/dallas 800.737.3436 214.698.0200
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
May 2014
LAW DAY 2014 American Democracy and the Rule of Law: Why Every Vote Matters Each year, the American Bar Association sponsors Law Day, and regional bar associations, including the Dallas Bar Association, host various events, programs and contests to commemorate the chosen theme. Law Day not only educates students and citizens about our government, but also the legal system itself. One of its main goals is to focus students’ attention on important constitutional principles. As part of the DBA’s Law Day celebration, the association sponsors essay, art and photography competitions for Dallas ISD students in grades K-12. Here are some of this year’s winning entries, which depicted the Law Day theme of “American Democracy and the Rule of Law: Why Every Vote Matters.” You can see all the entries at the Law Day Luncheon on Friday, May 2, at the Belo Mansion with keynote speaker Hon. Jennifer Walker Elrod, Fifth District U.S. Court of Appeals, where the DBA will honor our judiciary and recognize the winners of this year’s Law Day contests. Iris Ibarra, 11th Grade First-Place Winner H. Grady Spruce High School
Joaquin Garcia, 5th Grade First-Place Winner Obadiah Knight Elementary
Taayah L. Dunn, 2nd Grade First-Place Winner Ronald McNair Elementary
What Judges Want: A Former Judge’s Guide to Success in Court In the new edition by James M. Stanton, you will find litigation strategies and tactics for the courtroom in a pocket guide created by a former judge. These methods are not found in legal hornbooks or practice guides; rather they are based on Stanton’s collective experience at over 100 trials and thousands of hearings as a lawyer and judge. ABOUT THE
What Judges
AUTHOR
JAMES M. STAN
TON
Want: A Form er Judge’s Guid e to Success in
James M. Stanto n assists indivi duals and businesses in high-s and federal court. takes litigation in state The depth and his courtroom experience provid breadth of perspective to es a unique persuade judge s and juries to resolve issues favorably for his clients. Before founding Stanton Law Firm PC, James served as presid ing judge of the District Court 134th Judicial in Dallas Count y, Texas, and practiced in the trial department Kurth s at Andrews his career as a lawyer and judge LLP and Cozen O’Connor PC. During 60 jury trials, , his experience 40 bench trials, includes handl and thousands certified in Civil of hearings. He ing over Trial Law and is board Board of Legal Personal Injury Specialization. Trial Law by the Texas His scholarly writing in the Baylor Law Review Law Review has and the Thurg been cited by ood Marshall Texas appellate frequently on trial advocacy courts, and he and juror and speaks judicial decisi on making. James is marri ed to Britta Erin Stanton, a Partne Lynn Tillotson Pinker & Cox r at trial boutiq LLP. They are United Metho ue active members dist at the First Alexandra, Luke, Church in downtown Dallas and have four Eric and Caroli children: ne.
What Judges A Former Judg Want: e’s to Success in Guide Court 2014
James M. Stan ton
Court
Foreword by Hon. Scott
A. Brister
2014
Now in private practice, he has effectively used these methods to persuade judges to find for his clients. A must-have for any trial lawyer, this is a field guide for preparing pleadings and oral arguments before hearings. Each chapter includes examples of how to effectively persuade judges and checklists of tips that can be immediately used. Order yOur cOpy tOday! Print and e-Book: $99.00 eBook only: $79.00 Call 1.800.756.8993 or visit www.TexasLawyerBooks.com. ABOUT THE AUTHOR James M. Stanton assists businesses at all stages of litigation in federal and state court. His experience as a state district judge and a board certified trial attorney helps his clients resolve their lawsuit so they can get back to focusing on their business. James went into private practice following his service as presiding judge of the 134th Judicial District Court in Dallas County. As both lawyer and judge, his experience includes handling over 60 jury trials, 40 bench trials, and thousands of hearings. Board certified in Civil Trial Law by the Texas Board of Legal Specialization, he speaks frequently on trial advocacy and juror and judicial decision making.
May 2 0 1 4
Focus
Dal l as Bar A ssoci ati on l Headnotes 15
Bankruptcy & Commercial Law
The Art, Science and Strategy of Presenting Unsecured Claims by Howard Rubin
Different types of claimants participate in bankruptcies. This article focuses on the unsecured creditor who may have provided goods and services before the bankruptcy is filed. Recent amendments to the Bankruptcy Rules and Texas case law highlight the need to be careful if you are asked to file a proof of claim for a trade creditor. Generally speaking, a creditor will not be paid anything unless it timely files a complete proof of claim. This type of creditor establishes a right to payment through the filing of an official form B-10, available at every bankruptcy court’s website. Bankruptcy Rules 3001 – 3002 deal with the procedural aspects of filing a claim. Bankruptcy Code Sections 501 and 502 establish the substantive legal basis for the filing of and allowance of general unsecured creditor claims. Whether a party should file a claim is dictated by whether there are assets to distribute and whether the creditor believes it can obtain a better result against third parties. In a chapter 7 (liquidation) case, if the debtor’s schedules show that there are not likely to be assets to distribute, the notice of commencement of the case sent to scheduled creditors will state “Do Not File a Claim.” If assets are discovered later, the creditors will receive another notice of the claim filing deadline. In a chapter 11 or 13 case, filing a claim that is eventually allowed gives a creditor a right to share in distributions from a plan. While the Bankruptcy Rules outline the deadlines for filing claims, more often than not, corre-
spondence from the clerk or an order from the court notes a certain date for filing of claim. By filing a claim, a creditor subjects itself to the jurisdiction and limits of the Bankruptcy Code. In rare circumstances, a creditor may consider simply going after the third party obligor. For example, in In re Stonebridge Techs., 430 F.3d 260 (5th Cir. 2005), the court held that a landlord was not subject to the cap on damages set forth in 11 U.S.C. § 502(b)(6) when it drew down a letter of credit issued by a bank on behalf of a tenant because the landlord did not file a claim in the bankruptcy. If your client sold goods in the ordinary course of business to a customer within 20 days of that customer’s bankruptcy filing, your client may be entitled to an administrative priority under 11 U.S.C. § 503(b)(9). In that case, your client must file a claim for the amount owed for those goods to be entitled to treatment ahead of other unsecured creditors. Under the 2011 amendments to Bankruptcy Rule 3001, a proof of claim must be signed under penalty of perjury that the information provided is “true and correct to the best of my knowledge, information and belief.” Additionally, copies of the contract, statement of account, invoices and any other supporting documentation should be attached as exhibits. Some attorneys, like the writer, frequently attach to the form B-10 an “Explanation of Claim” that details the calculation of the claim hoping that a detailed explanation with supporting documentation may escape a meaningful objection. While it is not uncommon for an
attorney to sign the proof of claim for their client, two recent cases from the Southern District of Texas raise concerns about this practice. In the 2011 case of Duke Investments LTD., 454 B.R. 414, the court warned counsel “to think twice before signing proofs of claim for their clients” or risk possible disqualification by being a “fact witness.” Last year, in In re Rodriguez, 2013 WL 2450925 (Bankr. S.D. Tex. 2013), the court did find that the attorney who signed the proof of claim made himself a fact witness, waived work-product and attorney-client privileges, and put himself in a position as a deponent in a contested matter. Con-
sequently the better practice may be for the attorney to assist in the preparation of the claim, just as is done in the drafting of affidavits and declarations, but have the proof of claim signed by a client’s representative with knowledge of the facts or account. A local bankruptcy judge once opined that the filing of a claim should be no more than a routine five-minute task (In re Great Western Cities Inc., 88 B.R. 109, 114 (Bankr. N.D. Tex 1988). That has changed and will continue to change. Be HN vigilant and be careful! Howard Rubin is a shareholder at Kessler & Collins, P.C. He may be reached at hrubin@kesslercollins.com.
UPCOMING DVAP CLES From Arrest to Detention Hearing Friday, May 16, Noon, Belo Speaker: Susan E. Anderson • MCLE 1.50 Intestacy and Heirship Issues Monday, May 19, 11:30 a.m.-1:30 p.m., Belo Speakers: Mary C. Burdette, John R. Norris III, Hon. Brenda Hull Thompson and Larry A. Flournoy • MCLE 2.00 Guardianship of Incapacitated Person Ad Litem Tuesday, May 27, 1:00-4:00 p.m., Belo Speakers: Hon. Michael E. Miller, Hon. Brenda Hull Thompson, Hon. Chris Wilmoth, and Hon. John Peyton • MCLE 3.00, Ethics1.00
All CLEs are free to those volunteering to take a DVAP case. To register, contact Alicia Perkins at perkinsa@lanwt.org.
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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
Focus
May 2014
Bankruptcy & Commercial Law
Pre-Bankruptcy Real Property Foreclosure as a Preference by Jason T. Rodriguez
Most bankruptcy cases are filed prior to foreclosure of the borrower/ debtor’s real property. It is rare that a borrower would not file bankruptcy in time to stop a foreclosure, but file after. In these cases, the borrower/debtor may attempt to claw back the foreclosure using the preference cause of action in the bankruptcy under 11 U.S.C. § 547. A preference is a transfer that enables a creditor to receive payment of a greater percentage of its claim against the debtor than he would have received if the transfer has not been made, and he participated in the distribution of
the assets of the bankrupt estate in a chapter 7 liquidation. Because most chapter 7’s do not provide payment to unsecured creditors anywhere close to 100 percent, the delta between distribution from the bankrupt estate and the amount received by the creditor pre-bankruptcy may be recoverable as a preference (subject to defenses not discussed herein). The typical time frame that the transfer is exposed to preference liability is 90 days before the bankruptcy filing. The time frame can be as far as one year prior to the bankruptcy filing. Some bankruptcy courts in Texas have considered whether non-collu-
Happy hour supporting DBA’s 23rd Habitat for Humanity House
Thursday, May 15, 5:00 p.m. - 7:00 p.m. at Tower Club, 1601 Elm Street, 48th Floor, Dallas, TX Please join us as we celebrate—and raise funds for—the DBA’s 23rd home!
Dedication of DBA’s 23rd Habitat for Humanity House Saturday, June 28, 10:00 a.m. at 3030 Dorris Street, Dallas, Texas 75212. Please join us as we turn over the keys to the homeowner.
Still Need to Make Your Donation?
The DBA’s Home Project is building its 21st house for Habitat for Humanity, and your contributions are needed. To donate, log on to www.dbahp.com or make checks payable to Dallas Area Habitat for Humanity and mail to Teddi Rivas, c/o DBA, 2101 Ross Ave., Dallas, TX 75201. Questions? Email gmcallister@ghjhlaw.com or kc@ashmorelawfirm.com.
is pleased to announce that
Mark K. Sales Past President of the Dallas Bar Association, Former Director of the State Bar of Texas, Past President of Dallas Association of Young Lawyers, and Current Chair of the Dallas Bar Foundation
Has joined the firm as a Partner. Mark practices complex commercial litigation, with a focus on probate, trust and fiduciary duty litigation. He previously served as Chair of the Probate, Trust, and Fiduciary Duty Litigation practice group for two national law firms. Diamond McCarthy LLP’s litigation practice focuses on the full range of local, national and international business disputes including high stakes complex litigation.
Houston Los Angeles
Dallas Austin
New York Denver
www.diamondmccarthy.com
sive foreclosures on real property can be clawed back as a preference. This article is an overview of them. The first was In re FIBSA Forwarding, Inc., 230 B.R. 334 (Bankr. S.D. Tex. 1999) aff’d 244 B.R. 94 (S.D. Tex. 1999). FIBSA found the secured bank had foreclosed on property worth more than the debt owed within the preference period. The bank was properly secured so FIBSA determined that in chapter 7, the bank would only be entitled to its secured portion of its claim. However, FIBSA concluded the foreclosure bid by the bank equated to reasonably equivalent value. Thus, the bid credited by the bank was reasonably equivalent to the property value and therefore no preference arose. In re Villarreal, 413 B.R. 633 (Bankr. S.D. Tex. 2009), followed. Villarreal found the pre-bankruptcy foreclosure by the secured creditor was proper. Like FIBSA, Villarreal concluded the property was over-secured when credit bid. Villarreal concluded the chapter 7 bankruptcy sale would give the chapter 7 trustee time to “orchestrate an orderly sale that produces a greater value than would be received at a foreclosure sale.” Thus, concludes Villarreal, the preference calculation is not made at the time of the foreclosure, rather at the time of the hypothetical chapter 7 distribution. In re Whittle Development, Inc. 463 B.R. 796 (Bankr. N.D. Tex. 2011), followed. The basic facts fall within the prior cases and Whittle essentially tracked Villarreal. Whittle is notable because it discusses remedies for recovery. Whittle notes that if an over-secured creditor received the real property at
foreclosure, “the additional amount of benefit conferred to the creditor is simply brought back into the estate.” Whittle proceeds if a non-creditor purchases the real property at foreclosure, then such purchaser “is not subject to a preference action, regardless of the price it pays at the foreclosure sale since the statute only allows avoidance of transfers to or from the benefit of a creditor.” The final case is FW Valencia Palms Apartments, LP v. LSREF2 Baron, LLC (In re FW Valencia Palms Apartments, LP), adversary no. 12-3014, United States Bankruptcy Court for the Western District of Texas (August 23, 2012), which presents the similar fact pattern. The Valencia Court concluded: “In general, a creditor’s realizing on its collateral in partial satisfaction of its claim will not give rise to a preference because the creditor is deemed to have received no more than it would otherwise have received in a chapter 7 liquidation case anyway—its collateral.” Stated differently, Valencia concluded a secured creditor was entitled to receive it collateral without regard to preference liability. However, Valencia held that the deficiency which may be claimed by the creditor in the bankruptcy is subject to adjustment as a preference. All of the issues surrounding a foreclosure preference are beyond the scope of this article. Regardless of whether you represent borrowers or creditors, the implications of such a suit are con HN siderable. Jason T. Rodriguez is an associate at Higier Allen & Lautin, PC and can be reached at jrodriguez@higierallen.com
M ay 2 0 1 4
Focus
Dal l as Bar A ssoci ati on l Headnotes 17
Bankruptcy & Commercial Law
Options When One of Multiple Defendants Files Bankruptcy by Eric M. Van Horn
Interesting issues arise in multi-defendant state court lawsuits when one of the defendants files for bankruptcy. Upon filing for bankruptcy, a debtor is broadly protected by the Bankruptcy Code’s “automatic stay”—a self-executing injunction that prohibits a wide range of actions by creditors (and other parties) against debtors. As a general rule, when the debtor is one of several defendants in a lawsuit, the automatic stay prohibits the action from continuing against the debtor only, not against the other non-debtor defendants. Bowman v. Computer Learning Ctrs., Inc., 73 Fed.Appx. 735 (5th Cir. 2003). An exception to this general rule may exist when “there is such identity between the debtor and the third-party defendant that a judgment against the third party defendant will in effect be a judgment or finding against the debtor.” A.H. Robins Co., Inc. v. Piccinin (In re A.H. Robins Co.), 788 F.2d 994 (4th Cir. 1986). For the exception to apply, courts generally require a showing of direct and immediate harm to the debtor’s estate. Arnold v. Garlock, Inc., 278 F.3d 426, 436 (5th Cir. 2001) (declining to extend the automatic stay to a non-debtor co-defendant because there was “no formal tie or contractual indemnification” between the co-defendant and the debtor to create an “identity of interests” between them). Plaintiffs have several options to evaluate how to proceed. A. Seeking Clarification Regarding Application of the Stay. Depending on the nature of the underlying claims and the debtor’s relationship to the other defendants, the extent of the application of the stay may be unclear. Certain state courts may automatically stay the entire action as a precautionary matter. In such instances, litigants may
file a motion and request clarification from the bankruptcy court regarding the applicability of the stay. Immediate clarification may be necessary if important deadlines are approaching. If a plaintiff continues an action without clarification, the bankruptcy court may determine the plaintiff’s continuation of such action violated the automatic stay, thereby subjecting the plaintiff to potential damages even absent interference from the state court or objection of the nondebtor defendants. See 11 U.S.C. § 362(k). B. Severance or Non-Suit. If the claims against the non-debtor defendants are not stayed by the debtor’s bankruptcy filing, the plaintiff may seek to either nonsuit the debtor or sever its claims against the debtor and remove them to the bankruptcy court. The plaintiff generally retains discretion to non-suit the debtor, assuming the debtor has not pleaded for affirmative relief. If the plaintiff wishes to continue prosecuting its claims against the debtor, it may seek to sever such claims from the remainder of the lawsuit and remove them to the bankruptcy court. C. Removal and Remand. The debtor, or any other party, may seek to remove the entire proceeding to the bankruptcy court. See Industrial Clearinghouse Inc. v. Mims (In re Coastal Plains Inc.), 338 B.R. 703 (N.D. Tex. 2006). The bankruptcy court has jurisdiction over a claim assuming the claim could have a conceivable impact on the debtor’s estate. Fire Eagle, L.L.C. v. Bischoff, et. al. (Matter of Spillman Dev. Group, Limited), 710 F.3d 299, 304 (5th Cir. 2013). Upon removal, the plaintiff has several options. First, if the plaintiff wants to continue the suit against all defendants (including the debtor) in the state court, it may seek relief from the stay pursuant to 11 U.S.C. § 362(d) and move to remand the case to state court. Second, if the
plaintiff wants to continue the suit in state court against only the non-debtor co-defendants, then the plaintiff may seek a declaration that the stay does not apply to the nondebtors, sever the debtor from the case, and remand to state court. Third, if the plaintiff wants to continue the case in federal court, but has a jury trial right or does not believe that the bankruptcy court has constitutional authority to enter a final order adjudicating
the case in the wake of Stern v. Marshall, 131 S.Ct. 2594 (2011), the plaintiff may request that the reference to the bankruptcy court be withdrawn to the district court (which has the authority to enter final orders on all claims that have some impact on the bank HN ruptcy estate). Eric Van Horn is an associate at Wick Phillips and can be reached at eric.vanhorn@wickphillips.com.
Dallas Minority Attorney Program
On April 4, the Dallas Minority Attorney Program presented its annual program, which is designed to meet the unique challenges facing the minority or female attorney practicing in the small firm or as a solo practitioner. In attendance were (left to right) Rhonda Hunter, event organizer; keynote speaker Lisa Tatum, State Bar of Texas President; Michele Wong Krause, event organizer; and Scott McElhaney, DBA President.
Dallas Loses Icon in Legal Community continued from page 1
les which we as a people have borne for more than 300 years. Having made that statement, some of the young listeners may become inquisitive and inquire about my earnings during my early years. I will tell them that I earned less than $2,000 my first year of practice. During my early years, African American lawyers received no Court appointments from the Civil or Criminal benches; therefore, we were deprived of fees generated from such appointments. Only white lawyers, some with considerably less experience and ability, were appointed as Ad Litems and to represent indigent defendants. Needless to say, neither the public nor private sector, regardless of one’s qualification, engaged the services of African American lawyers. If my listeners may ask how I survived during my early years, I will tell them that I was sustained by faith, family and friends. When I become an old lawyer and can no longer stand before the bar, I will tell all who will listen not to forget the lessons of History. And as I would speak, there would be those listeners who will say, “Old man, it can’t happen now.” “This is the United States of America,” or “As long as you have money you have nothing to worry about.” I will remind the listeners that there were many wealthy Jews in Germany, but wealth didn’t save them from the political system of Adolph Hitler which led to the death and enslavement of millions of Jews. I will remind my listeners that hate clusters flourish in these United States spreading their venom throughout the land. To those who cry out that it can’t happen here, I will remind that that it has happened before, and it can happen again, yes in these United States. In 1942, native born citizens, who happened to have been
of Japanese ancestry, were denied their basic constitutional rights, their property was taken without due process of law, and they were placed in concentration camps for the duration of World War II. I will also remind my listeners that no person of German or Italian ancestry, native born, naturalized or unnaturalized, suffered the denial of their basic constitutional rights. I will ask if racism triumphed over the Constitution. When I become an old lawyer and can no longer stand before the bar, I will tell all who will listen of my comrades, Fred Finch, Joseph E. Lockridge, and E. Brice Cunningham, who joined hands with me as I walked along the way. Some rested during the pilgrimage, but I have fond memories of each who accompanied me along the way. I will tell my listeners that Fred and I had so much in common. We both were born and reared in Dallas, attended the same elementary and high schools. Fred often spoke with pride of his Alma Mater, Wiley College, a small African American Methodist institution located in Marshall, Texas. Some may consider it strange that Fred, a graduate of the prestigious Harvard Law School, never mentioned it. I will tell my listeners the four years Fred attended Washington High School and the first year I attended a school day consisted of a mere four hours. Because Washington was over-crowded, Juniors and Seniors attended from 8:00 a.m. to 12:00 noon and Freshmen and Sophomores attended from 1:00 p.m. to 5:00 p.m. I will also tell my listeners that there was no eighth grade for African American students at that time. Washington High had no gymnasium. None of those conditions existed in the white schools of Dallas. Hopefully, my listeners will understand why the theory of separate but equal was a legal farce.
I will tell my listeners that Joseph E. Lockridge had a more promising future than any of us. He was the President of the 1960 graduating Howard University Law School. Not since the reconstruction period had an African American served in the Texas State Legislature and Joe was among the first to do so. Joe was the first African American from Dallas County to be elected to the State Legislature where he was voted by his colleagues as the most outstanding freshman Legislature. For a period of time I was haunted by the memory that Joe asked me to accompany him to Prairie View University where he had been invited to speak. Joe said, “If you go with me I will drive, if you don’t, I guess I will fly.” I didn’t go. Joe flew and died
when his plane crashed. I cried. After thirty years, E. Brice Cunningham still walks with me. He is the last of a breed who can try any type of case, Civil or Criminal, in either State or Federal Court, and give a credible performance. Brice stepped into Durham’s shoes and traveled over the State trying cases which resulted in single member districts, desegregation of public schools and equal employment opportunities. Finally, when I become an old lawyer and can no longer stand before the bar, I will walk slowly away, my sun setting, but in my heart, I will be watching the sun rise as I see young African American lawyers taking my place HN before the Bar.
Support the DBA Home Project $60,000 $50,000 $40,000 $30,000 $20,000 $10,000 $5,000 Help us reach our goal of $60,000 to build our 23rd house for Habitat for Humanity. For more information, log on to www.dbahp.com or contact Co-Chairs KC Ashmore (kcashmorbttl@yahoo.com) or Greg McAllister (gmcallister@ghjhlaw.com). Make checks payable to Dallas Area Habitat for Humanity and mail donations: c/o Teddi Rivas, Dallas Bar Association, 2101 Ross Avenue, Dallas, TX 75201
To donate, log on to www.dbahp.com
18 H e a d n o t e s l D a l l a s B a r A s s o ciation
May 2014
Summer’s Coming! Stay Cool & Informed at Belo. The DBA has a variety of events for you to attend. Catch a Section or Committee CLE, an arts program or a DVAP CLE any day of the week!
The Construction Law Section presented a CLE with Section Chair Steven Kennedy, speaker Michelle Morgan and Committee Vice Chair Tony Jach.
The Judiciary Committee hosted a CLE with (left to right) Committee Chair Robert Tobey, Hon. Debra Lehrmann, Hon. Liz Lang-Miers, Hon. Catharina Haynes and Danny Tobey, moderator.
The Law Day Committee hosted a Mock Voir Dire at the George Allen Courthouse for 360 Dallas ISD students. The opening panel consisted of (left to right) DBA President Scott McElhaney; Wade Emmert, Republican Party County Chair; Judge Martin Hoffman; Theresa Daniels, Dallas County Commissioner; Senator Royce West; Mandy Childs, Law Day Committee Chair; and Miguel Solis, DISD Board Trustee.
The Dallas Volunteer Attorney Program hosted a Title Issues and Creditor Claims in Decedent and Guardianship Estates CLE on Monday, March 24. The turnout was excellent!
DBA Annual Senior Lawyers Appreciation Dinner Thursday, May 8 ~ The Belo Mansion
Cocktails at 5:30 p.m. ~ Dinner at 6:30 p.m. • Tickets $40 ~ Tables available $400 Keynote Speaker: Hubert A. Crouch III, Crouch & Ramey, L.L.P. To RSVP or for more information regarding sponsorship opportunities, contact Kathryn Zack at kzack@dallasbar.org. Sponsored by the DBA Senior Lawyers Committee
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M ay 2 0 1 4
Classifieds
Dal l as Bar A ssoci ati on l Headnotes 19
May
EXPERT WITNESS
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 Economic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, valuation and divorce matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 5137113. troney@thomasroneyllc.com. “We Count.”
OFFICE SPACE
North Central at Meadow Road. Thinking about leaving your law firm and looking for office space? Officing on your own and looking for new space? Consider officing with PlusAssociates LLP, a Multidisciplinary Professional Services Group of Firms. If your area of practice complements those that are currently provided at PlusAssociates LLP, this may be the perfect place for you. Our current firms provide the following services: Tax Planning, Tax Return Preparation and Asset Protection (Bruce E. Bernstien & Associates, P.C.), Commercial Collections, Wills and Trusts (Law Office of James R. Alexander), IRS Controversies, Wills and Trusts (Law Office of Stanton D. Goldberg), Financial Planning, Investments, Insurance, Estate Planning and Retirement Planning (Lora J. Hoff Financial Planning - CFP), Real Estate Investments (Trendview Real Estate Services - Carl Cross), Commercial Litigation (Cole & Cole, P.C. - Robert R. Cole, Jr.), Estate Planning, Probate, Wills and Trusts (John Paul Kelly, PC), Commercial Litigation (Grams Law Firm P.C. - Darrell Grams) and Bookkeeping/ Accounting (Watkins, Raine, and Associates, L.P. Terra Raine. Several offices are available with conference rooms, kitchen, fax machine, copier, scanner, phone service, high-speed internet, email, voicemail, free covered parking and Dart Sta-
tion nearby. Meadow Park office building is at Meadow Road and North Central Expressway. Join us and take advantage of being associated with a growing group of firms with many opportunities for referral of clients to your firm. Call (214) 7060837. Office Sublease. Very nice updated law office in Richardson at Central/Campbell. Two window offices - $1000/mo./each; one interior office - $800/mo.; and one legal assistant area -$600/mo. available. Office environment is quiet and friendly with new furnishings and updated technology. Base rent includes receptionist, use of four conference rooms, up to date security system, three kitchen areas, free parking with 24 hour access to building. Additional costs include telephone, internet, office and kitchen supplies. For more information please email Jennifer Som at Jennifer@baalegal.com or call (214) 5700700. North Dallas, Farmers Branch, Addison Area. Office space available within a small general practice law firm. 3 window offices available. Shared conference and break room, furniture, copier, internet and phone are available if needed. No long term commitment and a monthly rate of $750.00. Call (214) 838-3501 ext.1. North Dallas Tollway/LBJ – Class A Building - Lincoln Centre. Approx. 5,000 sq. ft. of office space for sublease. Several varying sized offices available. Shared Amenities include: Receptionist, use of conference rooms, copiers, postage meter, high speed internet, phones, kitchen area and parking garage. Contact : Cindy Robbins (972) 458-5358. North Dallas - Law Firm has furnished office with window view for lease near 635 & 75. Amenities include use of 3 conference rooms, covered parking, copier. Asking $650.00 month, Contact us at (214) 347-4259 or email info@hn-lawfirm.com Large furnished office space available within small real estate law firm located at 4054 McKinney Avenue. Shared Conference and break room, copier, fax, DSL & phone equipment are available if needed. There is a possibility of overflow real estate work. No long term commitment and a monthly rate of $750.00. Call Tom Smith at (214) 520-0600. North Dallas. Law firm located at Lincoln Centre has two partner size offices and one cubicle available. Located at Tollway and LBJ; two conference rooms; break room/ kitchen; copiers; postage machine. Email:
DVAP’s Finest Al Ellis
Al Ellis is an attorney and mediator at Sommerman & Quesada, LLP. He has been actively involved in pro bono legal services since 1972. He served on the Board of Legal Services of North Texas in 1976-77 and again from 1992-94, and is a charter member of the State Bar of Texas Pro Bono College. He frequently volunteers at the Veterans’ Legal Clinic and other DVAP clinics. Al has represented several DVAP clients during his 42 years as a trial lawyer and regularly donates to the Equal Access to Justice Campaign. Thank you for all you do, Al!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
dallasipfirm@gmail.com for more information. Downtown Dallas – Office available, located in the historic KATY Building directly across from the Dallas County Courthouses. Receptionist, phone system, conference room, wifi, fax and copier available for tenants use. No lease required. Please inquire at (214) 748-1948. Office sublease available. Attorney’s window office is unfurnished. Free valet parking for visitors, secretarial services, fax, and high speed internet available. Great location fifteen minutes from courthouse. Turley Law Center, 6440 N. Central Expressway. Contact Alan L. Wittenberg at (214) 361-6511. $825.00 per month, no assessments. Offices available for rent with law firm located in Downtown Dallas Class A, arts district building. Amenities include conference room, law library, secretarial station, kitchen, parking garage, photocopy/ scanner/postage/facsimile and related amenities. Contact Laura at (214) 9229265.
POSITION AVAILABLE
ACT (Advocates for Community Transformation), an inner-city justice ministry, seeks a civil litigation attorney with 4-7 years’ of experience. Work includes overseeing volunteer attorneys in legal proceedings against the owners of drug houses, coordinating neighborhood strategy, and working with other non-profits and City departments to further ACT’s mission. Must be a servantleader who possesses a growing relationship with Jesus Christ, a teachable spirit, a passion for social justice, strong interpersonal skills, and ability to multitask. Spanish preferred. Compensation commensurate with qualifications and experience. ACT is an Equal Opportunity Employer. To apply, please contact recruitment@actdallas.org. AV- Rated, well-established midsize law firm seeks lateral partners with portable business for its downtown Dallas office. Successful candidates will be equipped with drive, energy, leadership potential and high professional standards. The firm, which has been a distinguished part of the North Texas law community for over 30 years, offers the opportunity for a practice in virtually any area. The firm will consider flexible financial arrangements for individuals seeking support to expand their current book of business. The firm features an excellent reputation, great benefits and strong colleague support in a friendly and professional atmosphere. Send resume to: Dallas Bar Association, Box 14–05, 2101 Ross Avenue, Dallas, Texas 75201. Legal Administrative Assistant. Addison Law Firm, a nationally recognized, boutique, transactional firm is seeking an administrative assistant with five or more years of experience, strong word processing and administrative skills. Competitive compensation. Qualified candidates should send their resumes to mmartin@addisonlaw.com. North Dallas. Intellectual Property Law
firm located at Lincoln Centre is looking for a Patent Agent. At least 3 years’ experience in patent prosecution. Engineering or Computer Science preferred. Email: dallasipfirm@gmail.com for more information. Legal Aid of NorthWest Texas (LANWT) currently has various openings throughout its firm at various locations. We are a Section 501(c)(3) nonprofit Texas Corporation. LANWT provides free civil legal services to eligible low-income residents in 114 Texas Counties. If you are interested in joining a great team that offers you the opportunity to rapidly develop litigation skills in court, a generous health benefits package, and the ability to be of service to others, we encourage you to visit LANWT’s career site at www.lanwt.org. Thiebaud Remington Thornton Bailey LLP, a law firm specializing in medical malpractice defense and healthcare law, is seeking to hire a 3-5 year attorney with medical malpractice defense experience. Send your resume to Christine Santosuosso, Adm. Mgr., Thiebaud Remington Thornton Bailey LLP, 1445 Ross Ave., Ste. 4800, Dallas, TX 75202 or e-mail to csantosuosso@trtblaw.com or fax to (214) 754-0999.
POSITION WANTED
Freelance Attorney. Experienced, AVrated commercial litigation attorney/UT Law honors graduate available for legal research, legal writing, and editing work on a project basis. High quality work product for your firm with no commitment and no overhead. Excellent references. attorney3503-7615@yahoo.com.
SERVICES
Energy Acquisition(s): I buy any size royalty(ies), mineral(s) , working interest(s) and try to reach (and pay) the sellers asking price. I am a licensed attorney and have been making oil and gas purchases for 35 +/- years. E-mail to bleitch@prodigy.net or call Brenda at 1-800-760-9890 or (214) 720-9890 for a friendly and quick analysis and response. Oil and Gas Buyer. Buying royalty interests, overriding royalty interests and non-operating working interests. Send descriptive information to royalty@coromandelenergy.com for a prompt and fair evaluation. Owner is SBOT and DBA member. Diamond and Gold Buyer. Buying all types of Diamonds, Immediate Cash Paid. Consignment terms available @ 10 -20% over CASH. For consultation and offers please call (214) 739-0089. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org.
Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career Center. www.dallasbar.org/career-center.
20 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
May 2014