Dallas Bar Association
HEADNOTES
Focus Mergers & Acquisitions/Securities
February 2012 Volume 37 Number 2
Dallas Lawyers Donate $750,000+ to Equal Access to Justice Campaign by Alicia E. Hernandez
The generosity of Dallas lawyers to the annual Equal Access to Justice Campaign benefitting the Dallas Volunteer Attorney Program has continued to blossom despite difficult economic times. Through the hard work and dedication of Campaign Co-Chairs Rob Crain, a partner at Crain Lewis LLP, and Brad Weber, a partner at Locke Lord LLP, the campaign raised more than ever before—over $750,000—which will be used in 2012 to provide legal aid to the poor. The Dallas Bar Association honored campaign donors and their efforts at making equal access to justice a reality at the inaugural of Paul K. Stafford, the 103rd President of the Dallas Bar Association, on January 21. A common theme for the campaign’s major donors is their desire to help people and keep access to justice alive. Champions of Justice Lisa Blue Baron and Mike Kaeske donated at the $50,000 level. Ms. Blue Baron, a long-time supporter of pro bono legal aid to the poor, has donated over $293,000 to DVAP over nearly 20 years. Ms. Blue Baron is also a volunteer for DVAP. Mr. Kaeske’s generous gift extends his passion for helping plaintiffs with their legal problems to legal aid clients. His goal is to make a positive difference in their lives. Campaign Co-Chair Rob Crain and his partner Chris Lewis, of Crain Lewis, L.L.P., are major donors at the President’s Council level, donating $30,000 to the campaign. Mr. Crain, a personal injury lawyer, and Mr. Lewis, a criminal defense lawyer, feel that supporting legal aid to the poor is “the best thing we do as a collective group of lawyers.” The Payne Mitchell Law Group and the Honorable Deborah G. Hankinson both donated $25,000 to this year’s campaign. Over the last four years, Andrew Payne and Jim Mitchell have donated over $76,000 to Equal Access to Justice and have supported other fundraising efforts for DVAP. Justice Hankinson, who has donated $165,000 to the cam-
Paula Sweeney and Ladd Sanger
Andy Payne and Jim Mitchell
Rob Crain and Chris Lewis
Hon. Deborah Hankinson
paign since 2003, is also a tireless national and statewide advocate for legal aid to the poor. Locke Lord LLP raised the bar for donations from large Dallas law firms with its donation of $15,000 to Equal Access to Justice. Locke Lord has donated $95,400 to the campaign since 1998. The firm has been active in pro bono since the 1980s. In 2011, they received the Bronze Award for Pro Bono service, and Locke Lord lawyers regularly represent DVAP clients and volunteer at DVAP’s legal clinics. The law firm of Slack & Davis, L.L.P., a new donor to the annual Campaign, contributed at the $15,000 level. The firm’s donation pushed the campaign over the $750,000 goal, helping it reach a new high in the history of the campaign. Ladd Sanger and Paula Sweeney, who represent Slack & Davis’ Dallas office, are “glad to help this important program and continue the firm’s tradition of serving the community.” AT&T continued its support of DVAP with its $15,000 gift to the Campaign. Over the
Lisa Blue and Mike Kaeske
last four years, AT&T has donated $50,000 to Equal Access to Justice. AT&T’s legal department also continues to set the bar for corporate pro bono work in Dallas. They are increasingly active in pro bono, hosting pro bono CLE programs for its attorneys, working on pro bono projects with other firms, and representing pro bono clients. The generosity of Dallas lawyers continues with $10,000 donations to the Campaign from Andrews Kurth LLP, Baker Botts, L.L.P., Brown McCarroll L.L.P., D Magazine, Dallas Lawyers Auxiliary Foundation, Jones Day, Koons Fuller, Mike McKool, Jr., Patton Boggs LLP, Shore Chan Bragalone DePumpo LLP, and Vinson & Elkins. The success of the annual campaign would not be possible without dedicated volunteers who have donated their time and fundraising expertise to help DVAP continue to serve the poor. This year’s Campaign Committee, led by
Rob Crain and Brad Weber, includes Jerry Alexander, Kim Askew, DBA President-Elect Sally Crawford, Melinda Eitzen, Michael Forshey, Dawn Fowler, Beverly B. Godbey, Michael Hurst, Christina McCracken, Greg Sampson, Immediate Past President Barry Sorrels, DBA President Paul Stafford, Lindsay Stengle, Diane Sumoski, and Past President Ike Vanden Eykel. “The generosity of Dallas lawyers has been outstanding,” says DBA President Paul K. Stafford. “And this generosity comes at a time when things are looking pretty bleak for legal aid programs locally and across the country. Dallas lawyers are truly setting the example for attorneys here and beyond. We are standing behind our justice system when we support legal aid to the poor.” And the support comes at a time when it is needed more than ever. Over the last several years, economic turmoil, significant reductions in grants based on Interest on Lawyers Trust Accounts, and, most recently, Congress’ substantial reductions in funding for legal services to the poor, have plagued the legal aid community. With the support of Dallas attorneys, the Dallas Volunteer Attorney Program, a joint program of the Dallas Bar Association and Legal Aid of NorthWest Texas, will continue to help several thousand clients this year. In 2012, the Dallas Volunteer Attorney Program wants to raise the bar on the number of people it can help. To help the program succeed in this challenge, it needs more Dallas lawyers of all levels of experience to volunteer. The benefits are many—free CLE training, mentoring from top Dallas attorneys, opportunities to get courtroom experience and develop new skills, or simply the opportunity to help someone in need doing what only lawyers can do, providing legal help. To learn more about the program and volunteer, contact Alicia Hernan HN dez at ahernandez@dallasbar.org. Alicia Hernandez is the Director of the Dallas Volunteer Attorney Program and the DBA Director of Community Services. She can be reached at ahernandez@dallasbar.org.
DBA Board Chair and Vice Chair Elected Staff Report
At its January Organizational Meeting, the Dallas Bar Association Board of Directors elected Jerry Alexander Chair, and Rob Crain Vice Chair, for 2012. Mr. Alexander, a Shareholder at Passman & Jones, P.C., is an active participant in the Committees and Sections of the DBA. He was the Chair of the 2010-2011 Campaign for Equal Access to Justice, which had a recordbreaking year, and headed the DBA’s drafting project for the Local Rules of Practice in the Civil District and County Courts at Law Courts for Dallas County, which are presently in use. In addition, he is currently the Board Advisor for the Bankruptcy & Commercial Law and Energy Law Sections, as
Jerry Alexander
Rob Crain well as the Admissions & Membership and Fee Disputes Committees. Mr. Alexander has also chaired the Judiciary Committee and the Judicial Polls Study Subcommittee. Mr. Crain, of Crain Lewis, LLP, is the CoChair of the 2011-2012 Campaign for Equal
Access to Justice, which surpassed the previous year’s donation totals. He is currently the Board Advisor for the Securities and Tort & Insurance Practice Sections and Golf Tournament and Media Relations Committees. He is also Co-Chair of the Bench Bar Committee. In addition, Mr. Crain serves on the Board of Directors of the North Texas Chapter of Big Brothers and Big Sisters and on the Board of Directors of the Texas Trial Lawyers Association. Also appointed at the board meeting to fill a one-year at-large judicial position was Judge Kenneth Molberg, of the 95th District Court. A graduate of SMU Dedman School of Law, Judge Molberg is a Co-Vice
Inside 6 The Inauguration of Paul K. Stafford 9 When, Why and How of Selling the Family Business 11 SEC Adopts Final Dodd-Frank Whistleblower Rules 13 “It’s Just Three Nines!” Protecting Against Securities Liability
continued on page 8
2 He a d n o t e s l D a l l a s B a r A s s o ciation
Calendar
February Events
FEBRUARY 3-BELO Noon
FRIDAY CLINICS
“Legal Technology: Mobile Computing for Lawyers,” Michael St. Martin. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., 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 Griffith Nixon Davison P.C. RSVP to kzack@dallasbar.org.
FEBRUARY 17-BELO Noon
“Perspectives From the Boardroom and the Courtroom on Selecting the Right Lawyer for Your Next Commercial Litigation Case,” David Cannington, Kristin S. Erler, Hon. Barbara M.G. Lynn, Hon. Eric V. Moyé, and James M. Stanton, moderator. (MCLE 1.00)*
WEDNESDAY, FEBRUARY 1 Noon
Employee Benefits & Executive Compensation Section “Updated HIPAA Privacy Regulations and the Texas Medical Records Privacy Act,” Lisa Christensen. (MCLE 1.00)*
Expression and the Policing of Public Property in Dallas,” Chris Bowers, Chris Caso, and Jonathan Winocour. (MCLE 1.00)*
Pro Bono Activities Committee
Bench/Bar Conference Committee
Lawyer Referral Service Committee
Dallas Asian American Bar Association
5:15 p.m. LegalLine—Volunteers welcome. Second floor Belo.
THURSDAY, FEBRUARY 9 11:30 a.m. DAYL Lawyers Serving Children
Family Law Section Board Meeting
Judiciary Committee “Who Is Hearing Your Motion & Would You Consent to Try this Case Before Him/Her? The Role of the U.S. Magistrate In the NDTX, ” Hon. Jeffrey Cureton, Hon. Jeff Kaplan, Hon. Irma Ramirez, Hon. Paul Stickney, and Hon. Renee Toliver. (MCLE 1.00)*
Law in the Schools & Community Committee
Publications Committee
Christian Lawyers Fellowship
DAYL Foundation Board
DAYL Counsel with Kids Committee
6:00 p.m. J.L. Turner Legal Association
St. Thomas More Society
FRIDAY, FEBRUARY 10
Tax Section “Help Your Client Under the New Innocent Spouse Relief Guidelines,” David Gair. (MCLE 1.00)* Peer Assistance Committee
TUESDAY, FEBRUARY 7 Noon
Corporate Counsel Section “Effective Litigation Management,” Alan Dabdoub. (MCLE 1.00)* Government Law Section “Lex Occupare: Constitutionally-Protected
Business Litigation Section “You Posted What On Facebook! And, Now It Is Admissible at Trial!,”Mike Sawicki and Peter Vogel. (MCLE 1.00)*
Library Committee
House Committee Walk Through
MONDAY, FEBRUARY 6
Mergers and Acquisitions Section “2011 Private Target Deal Points Study,” Wilson Chu. (MCLE 1.00)*
Noon
Friday Clinic-Belo “Law Firm Management Addresses Issues of Mental Health and Substance Abuse Among Firm Attorneys,” Glenn Callison, George Hettrick, and Ike Vanden Eykel. (Ethics 1.00)* Sponsored by the CLE and Peer Assistance Committees.
Noon
Law Day Committee
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group
Noon
FRIDAY, FEBRUARY 3
TUESDAY, FEBRUARY 14
6:00 p.m. DAYL Board of Directors
Noon
DAYL Foundation Board Meeting
Health Law Section “Mental Capacity and Consent to Treatment Issues,” Robert Gordon JD, PhD. (MCLE 1.00)*
WEDNESDAY, FEBRUARY 8
Construction Law Section “Pulling Back the Curtain on E-Discovery – Tips for Managing Client and Judicial Expectations,” Patrick E. “Gene” Blanton. (MCLE 1.00, Ethics .50)*
DAYL Judiciary Committee
11:00 a.m. Dallas Women Lawyers Association Board Meeting
Real Property Section “Government Incentives for Development”, Ike Shupe. (MCLE 1.00)*
Energy Law Section “Texas PUC & Legislative Session: 2011 Year in Review,” Tammy Cooper. (MCLE 1.00)*
THURSDAY, FEBRUARY 2
Noon
Public Forum Committee
5:00 p.m. Bankruptcy & Commercial Law Section “Bankruptcy Issues related to Consent Orders being issued by the Board of Governors of the Federal Reserve System,” Roberto Cortez and John Mitchell. (MCLE 1.00)*
Alternative Dispute Resolution Section “Litigators’ Views on Mediation and Negotiation,” Maricela Moore, Andy Payne, James Stanton, and Victor Vital. (MCLE 1.00)*
Juvenile Justice Committee
Noon
Noon
Tort and Insurance Practice Section “Jury Consultants During the Discovery and Pre-Trial Phases of Litigation,” Lisa Blue Baron and Robert Hirschhorn. (Ethics 1.00)*
Noon
MONDAY, FEBRUARY 13
Solo & Small Firm Section “What Every Attorney Needs to Understand About Business Valuation and Why,” Alan L. Tolmas. (MCLE 1.00)*
Noon
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
“Law Firm Management Addresses Issues of Mental Health and Substance Abuse among Firm Attorneys,” Glenn Callison, George Hettrick, and Ike Vanden Eykel. (MCLE 1.00)* Sponsored by the CLE and Peer Assistance Committees.
FEBRUARY 10-NORTH DALLAS** Noon
February 2012
CLE Committee
Friday Clinic-North Dallas** “Legal Technology: Mobile Computing for Lawyers,” Michael St. Martin. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., 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 Griffith Nixon Davison P.C. RSVP to kzack@dallasbar.org.
12:30 p.m. Family Law Section Bench Bar “2012 The Year of Good Vibrations,” at Hotel Intercontinental. Lunch at 11:30 a.m., Program at 12:30 p.m. Please pre-register for the event. (MCLE 4.50)*
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group 9:00 a.m. DVAP Family Law Nuts & Bolts Video CLE “Boot Camp Basics and Beyond the Basics,” To register, contact perkinsa@lanwt.org. Noon
Sports & Entertainment Law Section “Update on the NCAA Enforcement Process and Recent Case,” Ameen Najjar. (MCLE 1.00)*
Legal Ethics Committee
DVAP New Lawyers Luncheon. For more information, contact reed-brownc@lanwt.org.
DAYL Lunch & Learn.
DAYL Equal Access to Justice Committee
THURSDAY, FEBRUARY 23 Noon
6:00 p.m. Home Project Committee
WEDNESDAY, FEBRUARY 15
Environmental Law Section “E-Discovery and Digital Forensics for Environmental Attorneys,” Dr. Gavin Manes. (MCLE 1.00)*
Intellectual Property Law Section “It’s All About Me! Proving (or disproving) Mens Rea for Induced Infringement,” Steve Malin. (MCLE 1.00)*
Municipal Justice Bar Association
Transition to Law Practice Committee
Non-Profit Law Study Group
DAYL CLE Committee
Noon
Appellate Law Section “Positioning Your Appeal for Successful Mediation,” TBA. (MCLE 1.00)*
Minority Participation Committee
Christian Legal Society
Dallas Gay & Lesbian Bar Association
FRIDAY, FEBRUARY 17
Friday Clinic-Belo “Perspectives From the Boardroom and the Courtroom on Selecting the Right Lawyer for Your Next Commercial Litigation Case,” David Cannington, Kristin Erler, Hon. Barbara M.G. Lynn, and Hon. Eric V. Moyé with moderator James M. Stanton. (MCLE 1.00)*
MONDAY, FEBRUARY 20 Noon
Criminal Law Section “Obtaining Court Appointed Experts,” Judge Robert Burns. (MCLE 1.00)*
Noon
THURSDAY, FEBRUARY 16
Noon
Collaborative Law Section “Using Jointly Engaged Experts in a Collaborative Case,” Honey Sheff and Steve Walker. (MCLE 1.00)*
FRIDAY, FEBRUARY 24
5:15 p.m. LegalLine—Volunteers welcome. Second floor Belo.
Labor & Employment Law Section “Ethical Social Networking in Labor and Employment Law,” Nick Bettinger. (MCLE 1.00)*
TUESDAY, FEBRUARY 21 Noon
Franchise & Distribution Law Section “Annual Franchise Law Update,” Kelly Ganzberger Dion, Melissa Gardner, Jacob Kring, and Paul Russell. (MCLE 1.00)*
International Law Section “It’s a Mad, Mad Offshore World: Advising your Client In and Out of the IRS Offshore Voluntary Disclosure Initiative,” Anthony P. Daddino. (MCLE 1.00)*
Trial Skills Section Topic Not Yet Available Transition to Law Practice “How to Start Your Own Law Firm,” Laura Benitez Geisler, Tiffany Hamil, Andrew Jee, and Dena DeNooyer Stroh, moderator. (MCLE 1.00)*
Dallas Bar Foundation Board Meeting
WEDNESDAY, FEBRUARY 22
MONDAY, FEBRUARY 27 Noon
Computer Law Section “Recent Trends in Software Licensing Transactions and Disputes,” Rob Scott. (MCLE 1.00)*
Securities Section “Texas Securities Act: Recent Developments in Private and Regulatory Actions,” Beth Ann Blackwood, Wallis Hampton, John Kincade, David Peterson and Carrie Huff, moderator. (MCLE 1.00)*
Criminal Justice Committee
Golf Tournament Committee
DAYL Solo & Small Firm Committee
5:00 p.m. DVAP Divorce Clinic. For information contact: reed-brownc@lanwt.org.
TUESDAY, FEBRUARY 28 Noon
Probate, Trust & Estate Section “Family Wealth Transfer Tax Planning,” Stephen Akers. (MCLE 1.00)*
Senior Lawyers Committee
DAYL Aid to the Homeless Committee
American Immigration Lawyers Association Committee
6:00 p.m. Dallas Hispanic Bar Association Meeting
WEDNESDAY, FEBRUARY 29
No DBA events scheduled.
THURSDAY, MARCH 1 Noon
Family Law Section Board Meeting
DAYL Elder Law Committee
Judiciary Committee
DAYL Animal Welfare Committee
St. Thomas More Society of Dallas
Speakers Committee
Young Lawyers, You Are Invited To:
“Law Firm Management Addresses Issues of Mental Health and Substance Abuse Among Firm Attorneys”
MCLE 1.00 February 10, 2012 at Noon at Belo Speakers: Andrew Jee, Laura Benitez Geisler, Tiffany Hamil and Dena DeNooyer Stroh, moderator RSVP to ahernandez@dallasbar.org. Hosted by the Transition to Law Practice Program
1 hour Ethics (pending)
“How to Start Your Own Law Firm”
February 3, 2012 at Noon at Belo Speakers: Ike Vanden Eykel, KoonsFuller • George Hettrick,Hunton & WIlliams • Glenn Callison, Munsch Hardt Kopf & Harr, P.C. Sponsored by the CLE and Peer Assistance Committees
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KZack@dallasbar.org.
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4 He a d n o t e s l D a l l a s B a r A s s o ciation
February 2012
Headnotes
President's Column
Our Time Is Now By Paul K. Stafford
Inaugural Address given on January 21, 2012. Everybody comes from somewhere. Mary left Georgia with nothing but her family, her freedom, and her dreams. She settled in Moccasin Bend, got married to Jake and raised 14 children, the youngest of which was Bessie. Bessie lived almost a century, and in that century, she and her husband Will reared two children (Myrtle and George), and dedicated their lives to educating countless others. George grew-up in Italy (Texas), went to college at Prairie View (A&M), went to war in Italy (Europe) risking his life abroad for a segregated society at home, and came back a decorated veteran to finish college. He taught for a while, then went to Cornell for post-graduate work. While at Cornell, he met Eula—a daughter of the South… reared in Tuskegee…the youngest daughter of Corinne and James Patrick. Eula grew-up in the shadow of Booker T. Washington’s legacy, while watching George Washington Carver work in his lab, and witnessing Airmen train a few miles from her home. After graduating from Tuskegee Institute, and on the eve of a social movement in her native Alabama that would soon transform a nation, she traveled to upstate New York to further her education and fashion her future. George & Eula married, travelled the world, and eventually settled down at George’s alma mater (Prairie View) to teach at the university and to rear their five children. I am the youngest of those five…and I am the product of all of these experiences. Born on a snowy Spring day in Houston, I’m a son of the Civil Rights Movement, a grandson of Jim Crow and the Deep South and a greatgrandson of slavery, the potato famine and the trail of tears. I’m a scholar, an athlete, a musician and a dreamer. I’m a student and a teacher. I’m an Aggie…and a Raider…born to two Ivy-Leaguers. I value traditions while striving to be non-traditional, unpredictable, and at times unconventional. I was raised in the church as a person of faith and I constantly strive to maintain and strengthen that faith. I’m a husband and a father of three. I’m a mentor to some, and a mentee to many. I am Paul K. Stafford. I’m a lawyer, I’m a Dallas Bar member and I’m honored and humbled to serve as your President for 2012. Who are you? You are some of the best, brightest and most prominent people that Dallas has to offer. You are attorneys, judges and members of the legal community. Influencers, investors and innovators. Advocates, adversaries and activists. Trend-setters, change-agents, talented-tenth, and some of you are the 1 percent. You are a group of individuals with hopes, dreams and aspirations…all unique in your own way, yet united by commonality, defined by commitment, with collective conscience to achieve common cause. Our commonality manifests itself in the organization known as the Dallas Bar Association, dedicated to serving and supporting the legal profession in Dallas; providing excellent continuing education to its members; promoting good relations among lawyers, the judiciary, and the community; serving the public; improving the administration of justice. But the DBA is more than this. It takes time and commitment to create an institution and it is the actions of the Dallas Bar that has transformed it from merely an organization to the prominent institution that it is today. These actions transcend time and create a lasting legacy for those who shall follow us. So, what is this institution called the Dallas Bar Association, and how are we fulfilling our commitment? We are a 139 year-old Bar Association—39 Committees, 29 Sections and nearly 11,000 members. We are a consistent force in the community. We are legal past, present, and future simultaneously. We are professional development, community service, and pro bono. We are Criminal & Civil; Big Firm and Solo & Smalls; Government & Private; In-House and Outside Counsel. We are Courthouse, Judiciary, Professionalism, and Probate. We are Bar None, Bench Bar, Blood Drives, and the Belo. We are Health Law and Habitat, Food Drives and Fee Disputes. We are Law Day, Law in the Schools, Lawyer Referral,
and LegalLine. We are Mentoring, Minority Participation, and Mock Trial. We are IP, M&A, ADR, and Business Lit. We are Taxes and Torts, Trusts, and Trial Skills. Define us at your own risk. We are the DBA—committed to common causes with collective conscience. All of these activities display the commitment of the DBA and its members… But are we fully committed? Are we fully engaged? We tell ourselves that the DBA is a great institution, and our works are a testament that it is…and someday we’ll be even better. But when does SOMEDAY begin? When do “What If’s” become “What Is,” and Thoughts transform from “Aspirational” to “Actionable.” During his “I Have a Dream Speech” in August of 1963, Reverend Dr. Martin Luther King stated, “We have also come to this hallowed spot to remind America of the fierce urgency of now.” In a subsequent sermon in April of 1967, Dr. King stated, “We are now faced with the fact that tomorrow is today. We are confronted with the fierce urgency of now. In this unfolding conundrum of life and history there is such a thing as being too late. Procrastination is still the thief of time.” Well, I submit to you that tomorrow is today. SOMEDAY began yesterday and GREAT begins NOW. Our time IS now. In this time, at this moment, in this place, with this commitment, with this consciousness. Commit. Engage. Improve. Enhance. Long ago, a young ambitious boy asked an old man of great wealth “What is your most precious asset? What is your most prized possession?” “Time,” the old man replied. He reminded me that time is sacred, and of unknown quantity. He said he would give all of his possessions for more of it, but admitted that it ultimately could not be bought. Nevertheless, as in Ephesians, he advised me to redeem the time like you have to pay for it by being careful in my walk and not being foolish. I am no longer that young boy, but I am no less ambitious. Will you help me in this cause? Will you commit to the DBA and help it in using its time and resources to become what it could become. Will each of you commit to donating your most precious commodity…TIME. Abraham Lincoln said that “[A] lawyer’s time and advice are his stock in trade.” We are in fact a profession that in large measure defines itself in terms of TIME. We perform services to clients at a billable rate and presumably are compensated based upon the amount of time expended on a matter. Most of us even think in 6 minute increments. Why not donate some of that time to a common cause with collective conscience. Why not donate some of that time to the DBA? How much time? As much as your time will permit; but let’s start with a simple commitment… As your President, I request that you donate at least 12 hours to the Dallas Bar Association in 2012. That could be one hour per month, 12 hours in one day or however much you wish. What could we be with this renewed commitment and engagement? As a city and region, we could be the best legal market in the state, and perhaps the Nation. We could be a place where even more top-notch attorneys and newly minted law graduates want to live, practice and thrive. We could be a place where more women and minority attorneys want to stay, and not leave for opportunities elsewhere. As a Bar, we could continuously strive to be more. We could be a Bar that continues to have one of the premiere addresses not only in the city, but in the State and the nation. We could be a beacon of diversity & inclusion. We could be a Bar that continues to offer excellent CLE at little to no cost to its members. We could continue to be a professional outlet for community involvement. What will we say at the end of this year of renewed commitment and engagement? continued on page 7
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: Paul K. Stafford President-Elect: Sally Crawford First Vice President: Scott McElhaney Second Vice President: Brad C. Weber Secretary-Treasurer: Shonn Brown Immediate Past President: Barry Sorrels Directors: Jerry Alexander (Chair), Kim Askew (At-Large), Chip Brooker (President, Dallas Association of Young Lawyers), Wm. Frank Carroll, Victor Corpuz (President, Dallas Asian American Bar Association), Rob Crain, Laura Benitez Geisler, Lori Hayward (President, J.L. Turner Legal Association), Hon. Martin Hoffman, Michael K. Hurst, Michele Wong Krause, Karen McCloud, Christina McCracken (At-Large), Hon. Kenneth Molberg ( Judicial At-Large), Carlos Morales (President, Dallas His-panic Bar Association), Mary L. Scott, Diane M. Sumoski, Robert L. Tobey and Aaron Tobin (At-Large). Advisory Directors: Angelina LaPenotiere (PresidentElect, Dallas Hispanic Bar Association), Mandy Price (President-Elect, J.L. Turner Legal Association), Sarah Rogers (President-Elect, Dallas Association of Young Lawyers) and Jennifer Wang (President-Elect, Dallas Asian American Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Douglas S. Lang Directors, State Bar of Texas: Andy Payne, Christina Melton Crain, Beverly Bell Godbey, Ike Vanden Eykel, Frank E. Stevenson, II HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Advertising: Karla Howes PUBLICATIONS COMMITTEE Co-Chairs: Vincent J. Allen and Lea Dearing Vice-Chairs: Natalie L. Arbaugh and Dawn Fowler Members: Timothy G. Ackermann, Kevin Afghani, Favad Bajaria, Matthew Baker, Jody Bishop, Lisa Blackburn, Jason Bloom, Kandice Bridges, William Brown, Lance Caughfield, Sally Crawford, James Crewse, Joel Crouch, G. Edel Cuadra, David Dodds, Adam Dougherty, Sabeen Faheem, Enrique Flores, Megan George, Susan Halpern, Zachary Hoard, James Holbrook, Ezra Hood, Mary Louise Hopson, Dyan House, Michael Hurst, Michelle Jacobs, Jessica Janicek, Taylor Jerri, Soji John, Douglas Johnson, Adam Kielich, Michelle Koledi, Susan Kravik, Scott McElhaney, Nick Nelson, Jenna Page, Kirk Pittard, Laura Anne Pohli, Robert Ramage, Jared Slade, Thad Spalding, Paul K. Stafford, Jeanette Stecker, John C. Stevenson, Scott Stolley, Michael Sukenik, Robert Tobey, Peter S. Vogel, Suzanne R. Westerheim and B. Joyce Yeager DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Coordinator: Rhonda Thornton Executive Assistant: Michelle Dilda Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Amy E. Smith Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Lakeshia McMillan, Andrew Musquiz, Tina Douglas Program Assistant: Patsy Quinn Copyright Dallas Bar Association 2012. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Execu-tive 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. Fea-ture articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informa-tional and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
Fe bru a ry 2 0 1 2
Focus
D al l as Bar A ssoci ati on l Headnotes 5
Mergers & Acquisitions/Securities
Assignability Clauses in M&A – Pre-Transaction Implications by Jonathan K. Hustis
Your client seeks to be acquired, sooner or later, and has asked you for help getting ready. Here is one topic among many to consider and address. Background: Assignability Clauses. Assignability clauses in corporate commercial contracts can be key factors in acquisition readiness. Ignoring them creates greater risk of surprises and breach, and likely deal costs. Any significant commercial agreements should be considered: leases, loans, liens, licenses, alliances, supply/service agreements, etc. By “assignability clause” we mean language that (1) restricts your company’s ability to assign or convey a contract, or (2) affects your company’s contract rights or obligations in a sale, change of control or merger. A buyer bases its purchase price on assumed future business results. Achieving those results may depend on a contract continuing after an acquisition. Not surprisingly, acquisition agreements typically require that existing contracts not be violated by the acquisition and that they remain enforceable after acquisition, except as agreed in an exceptions schedule. So, be aware of assignability clauses in company commercial agreements, and assess their impact. This should preferably be done before price and terms are negotiated, but certainly before the acquisition agreement is negotiated and signed. Pre-Emptive Avoidance. Anticipate and keep unnecessary assignability clauses out of your commercial agreements portfolio. For example: Educate executives and staff to identify assignability clauses in proposed commer-
cial agreements; require that no assignability clauses be included without counsel’s approval. Where approval is given, include standard negotiated exceptions permitting assignability in case of (i) a strategic corporate transaction such as disposition of all assets of the company or relevant business subdivision, or the merger, sale or change of control of an entity; or (ii) the internal assignment of the contract to an affiliate entity under common corporate control. Where a standard negotiated exception is not negotiable, learn what concern the other party has. Then narrow the exception to fit the concern. For example prohibit assignability without the vendor or customer’s consent, but only for an identified set of potential acquirers. Require that consent not be unreasonably withheld. Pre-Emptive Due Diligence. Some contracts were created before you were able to set controls, or were acquired in acquisition transactions from predecessors. Sometimes controls have been bypassed. You can still proactively research, before an acquisition arises, which contracts have assignability clauses, how material they are, and how those clauses are written. Require a checklist at the execution of any new contract, including specific identification of assignability clauses. When you acquire a company, catalog the acquisition records that reference these agreements, so that you’ll have them available if you later sell the company. Require contracts to be collected, catalogued and filed centrally with a contract administrator, with a specific filter for assignability. Create a data store of assignability clauses that are identified by the filter, preferably with each clause available for
immediate reference. Online Agreements, a Special Case. Critical license and service agreements, website use agreements, etc., are now frequently formed online with “click-wrap” terms and conditions. With these agreements, there is often no negotiation. Online vendors may include onerous assignability clauses that present obstacles in an acquisition. So it is important to: Educate company employees; require a process for entering into online contracts that includes the identification and prior approval of assignability clauses, and filing for future reference. Require dated files in *.pdf or other fixed, screen-shot formats to be catalogued and stored, to document offer and acceptance, and all online contract terms. Remember that archiving the Internet URL used to link with online terms is not enough. Online terms may change without notice and without any change in the URL link. Have your contracting employees save the versions extant at the time of
the contract formation. Deal Time. Where unacceptable assignability clauses slip into your commercial contracts, you may have to negotiate waivers with suppliers and customers, renegotiate contracts, or find alternative suppliers during acquisition discussions or before closing. So identify assignability clauses early enough to get waivers, modifications and replacements done without delaying or missing an acquisition deadline. Engage your company contacts with these vendors early, communicating and monitoring deadlines for waivers or replacements. Be sure to consider the impact on technical operations of a vendor change. In summary, to maximize business value for a potential acquirer, and for your HN shareholders, be prepared. Jonathan K. Hustis is an attorney with Phillips & Reiters, PLLC in Dallas. His general counsel practice includes businesses in telecommunications, information technology and software. He can be reached at jhustis@outsourcegc.com.
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6 H e a d n o t e s l D a l l a s B a r A s s o ciation
February 2012
The Inaugural of
Paul K. Stafford The Inaugural of
The Inaugural of Paul K. Stafford, DBA’s 103rd President, was held January 21, 2012. The evening was an elegant event, with stylish guests, a silent and live auction and a casino party and dancing. Each year, the Inaugural is the culmination of the Campaign for Equal Access to Justice. This year, $787,950 was raised for the Dallas Volunteer Attorney Program. Congratulations to this year’s raffle winners: Marsha Schiller, of Baird Crews Schiller Whitaker PC, was the grand prize winner and will take home her choice of a Cadillac CTS, Lexus hs250h or a Mini Cooper Convertible. Stephen Thompson, of Willowbend Corporation, was the first runner up and receives, airfare and 4-night stay at the Westin Kaanapali Ocean Resort Villas in Maui or the Westin Princeville Ocean Resort Villas in Kauai. Second runner-up, Sean Hamada, of Carter Stafford PLLC, receives a Bachendorf’s stainless steel watch.
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F e bru a ry 2 0 1 2
D al l as Bar A ssoci ati on l Headnotes 7
103rd President of the DBA
Inaugural Address continued from page 4
We’ll say that the DBA continued to offer over 400 excellent CLEs at low cost or no cost. We’ll say that the Committees and Sections continued the high-quality programming and community service for which each are known. We’ll say that the during the 20th Anniversary of the Dallas Volunteer Attorney Program, the Dallas legal community continued to provide Pro Bono services and vital assistance to those less fortunate than us. We’ll say that the DBA continued to offer “Real Help In Hard Times” through the DBA’s Career Center. We’ll say that beginning in March of 2012, the DBA continued its commitment to its young professionals by commissioning a Trial Academy which allows for valuable litigation instruction and trial skills development. We’ll say that the DBA became more collaborative with other prominent entities and portions of our community, such as the Dallas Arts District, professional organizations, community organizations and international organizations. One such organization is the German Marshall Fund Marshall Memorial Fellows program, which will be hosting its annual Marshall Forum here in Dallas April 26-29, 2012.The DBA (in particular, the International Law and Business Litigation Sections) are collaborative partners for the Forum, and a portion of the Forum will take place in the Belo. We’ll say that we networked and got to know each other a little better, at events such as the DBA Summer Recess—Picnic in June, 2012. And, we’ll also say that the DBA
hosted and facilitated a candid and productive dialogue on diversity and inclusion best practices within the legal profession at the Diversity Forum on November 29, 2012. Most importantly at the end of 2012, we’ll collectively say that we were committed and engaged. Twelve hours in 2012 is what I ask, because: If Mary can leave Georgia with nothing but her family, her dreams and her freedom, then we can leave our comfortzones and help others most in need. If Jake can raise a family in rural Texas with few if any resources, we can utilize our resources to raise the Bar to new heights. If Bessie and Will can dedicate their lives to teaching coloured youth at the public school, we can teach a DISD what it means to be a productive citizen. If George can fight fascism overseas, and racism at home, we can fight for a diverse and inclusive profession If Eula can leave all that she knew for a better yet unknown future, we can leave this Bar and this community better than we found it. Mary, Jake, Bessie, Will, Myrtle and George are no longer with us, but their legacy lives on in their progeny and in a resounding hope for the future. A hope born when hope unborn had died. A hope of what we could become… individually and collectively. A hope that a small boy from Prairie View could someday become President of the best Bar Association anywhere— Bar None. Thank you for the opportunity to serve, and God Bless and keep us as we journey together through 2012 and HN beyond.
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8 He a d n o t e s l D a l l a s B a r A s s o ciation
February 2012
MLK Day Celebrated at Belo DBA Board Chair and Vice Chair continued from page 1
DBA President Paul K. Stafford (right) presents the Martin Luther King, Jr. Justice Award to the 2012 recipient Dr. Walter Sutton, of Wal-Mart Stores, Inc.
Chair of the 2012 Bench Bar Conference Committee. Filling a two-year at-large director position is Christina McCracken. Ms. McCracken, a graduate of St. Mary’s University School of Law, is Senior Counsel at Gordon & Rees LLP, where her practice focuses on commercial liti- Christina gation, construction McCracken and environmental law. She has been the chair or vice chair of numerous DBA committees and was awarded the Jo Anna Moreland Outstanding Committee Chair Award in 2011. Aaron Tobin, of Anderson Tobin, PLLC, was appointed to a one-year at-large director position. Mr. Tobin is Co-Chair of the 2012 Media Relations Committee and is Immediate Past Chair of the Public Forum Commit-
tee. He is a graduate of SMU Dedman School of Law. In addition to these five members, the board will include: President Paul Stafford; President-Elect Sally Crawford; First Aaron Tobin Vice President Scott McElhaney; Second Vice President Brad Weber; SecretaryTreasurer Shonn Brown; Immediate Past President Barry Sorrels; and Directors Kim Askew, Chip Brooker, Wm. Frank Hon. Kenneth Carroll, Victor Cor- Molberg puz, Laura Benitez Geisler, Lori Hayward, Hon. Martin Hoffman, Michael K. Hurst, Michele Wong Krause, Karen D. McCloud, Carlos Morales, Mary L. Scott, Diane Sumoski and Robert Tobey. HN
Critique/Score High School Mock Trial Competitions Help judge the State High School Mock Trial Competition — March 2-3, 2012! Teams are from across the State. Earn self-study CLE credit. Sign-up online at www.dallasbar.org/mocktrial or contact asmith@dallasbar.org.
Walter Sutton with DBA member, John McCormack, whom he recognized as his mentor while working together in the legal department at Texas Instruments. Also pictured is wife of John McCormack, Janet.
Dr. Sutton (center) and the Wal-Mart Stores, Inc. Legal Department.
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F e bru a ry 2 0 1 2
Focus
D al l as Bar A ssoci ati on l Headnotes 9
Mergers & Acquisitions/Securities
The When, Why and How of Selling the Family Business by Andrew K. Jenkins
Every entrepreneur at some point feels the desire to pass the business to his or her children. But sometimes those children are not capable and/or willing to lead the business. This article is about what the owner should do in that case.
Why the Family Business Should be Sold
The first step in selling the family business is knowing why it should be sold. The owner should be acutely aware of the next generation’s abilities and desires, and should dispassionately assess their viability as future leaders of the business. Because lack of viability in the next generation is often something to which the business owner is blind (at least partially), outside management and trusted advisors, like attorneys, may need to be involved in this difficult conversation. If the current owner or owners are the last family members who are willing and/or capable of running the business, it will cease to be a family business. But it may cease to be a business at all if forced upon leaders without the aptitude or desire to run it.
When to Sell the Family Business
After deciding that the business should be sold, the next decision an owner should make is when to sell it. Ideally, it should
be sold at the peak of its success with the current generation. The worst scenario is a forced sale of the business under fire sale conditions because the management and leadership who have controlled the business all along are no longer there. While it may seem obvious to sell the business when its value is at its greatest, it is common for business owners to want to postpone a sale while everything in the business is operating well and everyone is healthy. Their feelings are, “I have run the business for __ years and there is no reason I can’t run it for __ more years.” Keep in mind, also, that selling the business often means the end of the owners’ income streams. There will obviously need to be some balancing between increasing, or at least maintaining, the value of the business and maximizing the financial impact to the owners. Therefore, to the extent the owners’ health permits, the most advantageous solution would be a time sometime around the collective owners’ retirements.
How to Sell the Family Business
After getting over the first two hurdles, the next step is determining how to sell the business. More importantly, the owners need to decide (generally) the best type of buyer. While identifying a specific buyer is unnecessary, considering the range of buyers is important because different buyers will have different plans
for the business. Without being too detailed, there are two basic kinds of buyers: strategic and financial. A strategic buyer buys a business because there is something (technology, market share, supply chain, etc.) that enhances the buyer’s existing business. A financial buyer buys a business as an investment. This is important because the current composition of the business may dictate the kind of buyer best suited for a successful transaction. For example, a business whose management is comprised solely of departing family members may not be a good fit for a financial buyer because the buyer is not likely to have the desire to run the business. By the same token, a strategic buyer may be dissuaded by the possibility of having to eliminate a lot of “redundant” positions. Therefore, it is important for the owners to have a very clear vision of the desired outcome of the sale and position the company accordingly.
One More Wrinkle
It is important to note that not all
buyers come from outside the business. If there is a core management group in place that can operate the business without any family members, a sale to management or the employees as a whole may be desirable. Such a sale may lead to a higher valuation (assuming financing is available) because new owners’ salaries may be included in the return on investment calculation.
Conclusion
It is important for owners to recognize that the “family business” may not always remain in the family. If they think back to the reasons the business was started, the main reason likely was, “I want to provide my children with the opportunities I never had.” Accordingly, the business was always intended to be an asset. It should be treated like one and not allowed to waste regardless of how much blood, sweat and HN tears have been invested.
Andrew Jenkins is an associate at Mullin Law, PC. He has a corporate law and real estate practice focusing on closely held businesses. He can be reached at Andrew.Jenkins@mullinlawpc.com.
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10 H e a d n o t e s l D a l l a s B a r A s s o ciation
February 2012
Column Writing on Writing
The Hardest Kind of Writing by Scott Stolley
Duke University professor George Gopen recently declared that legal writing is the hardest kind of writing. That seems like a bold statement when you consider that good writing of any type is always hard to produce. As sportswriter Red Smith quipped, “Writing is easy. All you do is sit down at a typewriter and open a vein.” But Professor Gopen makes a good point. He compares legal writing to other types of technical writing, such as medical or scientific writing, where the audience is often willing to work at understanding what the writer is trying to say. By contrast, Gopen says, “The audience for a legal brief is often openly and energetically hostile.” Such audiences will not tolerate having to work to understand your writing. When you think about it, Professor Gopen is right: Legal audiences (judges and opposing counsel) are often hostile
(or at least skeptical), which does make legal writing especially difficult. You have to overcome that hostility to even begin making any headway. You do not necessarily have to win over a hostile opposing counsel (though that might promote settlement), but you do have to win over a hostile judge or judicial panel. And you are less likely to do that if the judges have to work to understand your argument. There are many writing techniques for overcoming a hostile legal audience. Gopen’s revolutionary Reader Expectation Approach is an example, something to be discussed in a later article. As law professor James McElhaney says, the overarching principle is that the argument must do more than make legal sense. It must be factually and emotionally plausible, too. The best way to do that is to engage in rigorous analysis of your writing. As many legal-writing experts have said, good writing results from good thinking. Or as Steven Smith (Dean at Cali-
Law Offices of Richard H. Elliott
fornia Western School of Law) recently said, “Inadequate thought and preparation create a kind of fraud—pretending to know something well enough to tell someone else.” The lack of thought gives rise to the fraud. To avoid that sort of fraud, University of Texas legal-writing instructor Gretchen Sween recently posited that legal writers must be more like the Shakespeare character Hamlet. But wait a minute, how does that make sense? Didn’t he go crazy and embark on a killing spree ending in his own death? Sween hypothesizes that it was Hamlet’s obsessive soliloquizing that kept his “madness at bay.” As he thought about all of the “wherefores” and “what-ifs,” he was self-regulating. But once he quit soliloquizing—once he stopped engaging in introspection—he went crazy for good. Without the introspection, the consequences no longer mattered to Hamlet. When you think about it, Hamlet’s pre-rampage soliloquizing was itself a bit insane, serving as a finger in the dike to prevent the rampage. It was a useful insanity. Similarly, Sween concludes that “Good legal writing requires the kind of insanity that temporarily kept Hamlet from going nuts.” We have to obsessively think about all of the angles if we are going to produce a persuasive brief. When we do not obsess, then the insanity appears—the kind of insanity that does not care about the consequences. Without the obsessiveness, we can lapse into careless, or even stupid, briefing. For example, Professor McElhaney points out that there are five especially deadly ways to lose an argument: Failing the giggle test (the plausibility test). Overstating the facts in your favor.
Concealing facts that hurt you; Misstating the law; and Ignoring the issues. The deadliness of these errors lies in the fact that they all harm your credibility. Expert after expert has said that your credibility is paramount. So is not it a form of insanity to write something that harms your credibility? To write something without concern for the consequences is insane. To prevent that kind of insanity from infecting your brief, you must engage in a lot of “crazy talk.” As Sween puts it, “Taking time to argue with yourself is a sane practice.” It certainly leads to saner writing, for as Dean Smith says, “Good writing requires us to understand ourselves.” It’s the introspection, stupid. So staring out the window, thinking about your brief, is not only sane, but necessary. As James Thurber once quipped, the hardest thing he had to do was convince his wife that he was working as he was staring out the window. You have to engage in the hard work of thinking (go temporarily insane) if you want to produce a sane brief. All of this may explain the old writer’s quip, “I don’t like to write; I like to have written.” Once you have gone through the temporary insanity of writing, it feels good to savor your work. In that regard, legal writing is like most other writing. It is the hostile audience that sets legal writing apart from other kinds of writing. A hostile audience makes your job that much harder. You have to go through that much more HN insanity to get the job done. Scott P. Stolley is the leader of the Appellate Practice Group at Thompson & Knight LLP in Dallas. He is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization. He can be reached at Scott.Stolley@tklaw.com.
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Let our Summer Law Intern Program help you fill the position – Part-time or Full-time for either 4-wks or 8wks – the choice is yours! We have goal-oriented DISD high school seniors interested gaining law firm experience by assisting you for a nominal fee. Employers can also interview and select these goal-oriented students from a large pool — expect the best. Program: June 11-Aug. 3. For more information, please contact Amy Smith at asmith@dallasbar.org or (214) 220-7484 or visit our website www.dallasbar.org/summerlawinternprogram
F e bru a ry 2 0 1 2
Focus
Dal l as Bar A ssoci ati on l Headnotes 11
Mergers & Acquisitions/Securities
SEC Adopts Final Dodd-Frank Whistleblower Rules by Roger Bivans and Erik Lopez
The Securities and Exchange Commission recently adopted rules implementing the whistleblower program established under the Dodd-Frank Wall Street Reform and Consumer Protection Act. Now, persons who voluntarily provide the SEC with original information regarding a violation of the securities laws, including the Foreign Corrupt Practices Act, may be eligible to receive a bounty if the information leads to a successful SEC action exceeding $1 million in sanctions. DoddFrank requires the SEC to pay successful whistleblowers a bounty ranging from 10 percent to 30 percent of the aggregate penalties collected. Dodd-Frank’s anti-retaliation provisions apply to all “whistleblowers,” regardless of whether an investigation is commenced or a bounty is awarded. Any natural person who has a “reasonable belief” that information provided relates to a “possible” violation of applicable law will be considered a whistleblower entitled to anti-retaliation protection. The “reasonable belief” standard requires a genuine subjective belief that information relates to a possible violation and that belief must be one that a similarly-situated employee might reasonably possess. Only whistleblowers who “voluntarily” provide the SEC with “original information” that leads to qualifying enforcement action may receive an award. To be “voluntary,” the information must be submitted before a request, inquiry or demand by specified federal, state and quasi-governmental authorities. “Original information” must be derived from the whistleblower’s independent knowledge or analysis and can-
not already be known to the SEC. It can only be derived from public sources if the whistleblower provides enough independent analysis to make it qualify as original information. Some persons are generally not eligible for awards, including: • those with a duty to report to the SEC; • people who obtain the information in connection with legal representation; • individuals convicted of a criminal violation related to the covered action; • anyone who obtains the information in a manner determined by a U.S. court to violate U.S. federal or state criminal law; • foreign government officials; • officers, directors, trustees or partners of a company who are informed by another person of allegations of misconduct (such as through a hotline); and • compliance and internal audit personnel and independent public accountants. People in a legal, compliance, investigative or audit role, however, may be eligible to receive bounties if: they have a reasonable basis to believe disclosure is necessary to prevent conduct likely to cause substantial injury to the financial interest or property of the company or investors; they have a reasonable basis to believe the company is engaging in conduct that will impede an investigation of the misconduct; or 120 days have lapsed since they provided information to the audit committee, chief legal or compliance officer or supervisor. The SEC only requires a simple form for whistleblowers to submit information. Even anonymous reporting is allowed if
whistleblowers retain counsel, and their identity may remain confidential unless required to be disclosed in a court or administrative proceeding. The claims procedure is simple, requiring completion of a one-page, online form. Although internal reporting is not required, the rules provide incentives to use internal compliance processes: Voluntary participation in internal compliance can increase award amounts. Whistleblowers who report internally receive credit if the company ultimately reports the information to the SEC. A whistleblower can report to the SEC up to 120 days after first reporting internally and receive a “look-back” date
of submission. The intent of the rules is to provide the SEC with timely, more relevant information to defer, detect and prevent fraud. While the rules provide a significant financial incentive for employees to report misconduct to the SEC, the company has little, if any, role in whether or not an employee is entitled to a bounty. Instead, companies are now challenged to create a culture in which compliance and HN internal reporting is valued. Roger Bivans is a Partner with Baker & McKenzie LLP in Dallas. He can be reached at roger.bivans@bakermckenzie.com. Erik Lopez is an associate at Baker & McKenzie LLP in Dallas. He can be reached at erik.lopez@bakermckenzie.com.
12 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
February 2012
Mergers & Acquisitions/Securities
Arbitrating the Brokerage Case: The Basics by Richard Elliott
Claims against brokers and brokerage firms for investment losses are handled through arbitration with the Financial Industry Regulatory Authority (FINRA). In 2007, the SEC approved the consolidation of the enforcement functions of the NASD and the New York Stock Exchange in FINRA. FINRA conducts regulatory oversight of more than 4,500 brokerage firms and 635,000 registered securities representatives. It is responsible for all arbitration and mediation functions in disputes between member firms and their customers. FINRA is now the only forum for securities arbitration. Claims against brokers and dealers are generally not eligible for litigation in state or federal court because the customer’s brokerage account provides by contract that any dispute between the customer and the broker must be submitted to binding arbitration. The rules of procedure and discovery are governed by the Code of Arbitration Procedure and FINRA’s rules, and not by rules governing trials of cases in court.
Types of Claims and Defenses
There are a number of claims that may be asserted arising out of losses sustained in a brokerage or retirement account. The following are the most common: (1) suitability; (2) failure to supervise; (3) fraud; (4) negligence; (5) breach of contract; (6) breach of fiduciary duty; (7) unauthorized transactions; (8) over-concentration; (9) churning; (10) statutory violations, such as the Texas Securities Act or Blue Sky Law; and (11) licensing violations. There are other, more mundane, claims such as selling away, improper execution of trades and margin account trading.
The most common claim made is that the investment was unsuitable. Pursuant to NASD Rule 2310, the Suitability rule, brokers owe customers a duty to make suitable investment recommendations. An unsuitable recommendation which causes loss may lead to an award of damages to the investor. Over-concentration of an investors’ holdings in one or a few securities or in one industry, can lead to claims for failure to diversify. Since the collapse of the financial market in 2007-2008, another claim frequently made is that the product sold was so toxic that it would not be suitable for any investor, regardless of the customer’s level of sophistication or wealth. There are numerous defenses available to the brokerage firms and securities representatives, depending on the facts of the case and history of the account. One of the most often used defenses is the sophisticated investor defense. Others include that the investments were suitable, ratification, the prospectus defense, failure to mitigate and contributory negligence. Statutes of limitations are generally not available as a defense in securities arbitration as FINRA Rule 12206 provides that for a claim to be eligible for arbitration, it must be brought within six years from the occurrence or event giving rise to the claim. It often becomes a fact question as to when the cause of action accrued.
the final hearing. Discovery is limited to document production and requests for information. Normally, there are no depositions taken in FINRA arbitration. Jury trials are not allowed. Expert witnesses are typically used by both parties regarding both liability and damages. Damages may include actual market losses, benefit of the bargain losses or the difference between the actual value of the account and what it would have been, had it been well-managed. Rescission is also an available remedy. If the transactions are rescinded, the damages include a return of the original investment, less any dividends or earnings, plus pre-judgment interest and attorney’s fees. The panel may award attorney’s fees in addition to actual damages in making an award to a successful claimant. Attorney’s fees are recoverable under the Texas Securities Act, as well as under common law and FINRA’s rules. Arbitrators have authority to award attorney’s fees and costs even in the absence of an explicit statute. Punitive or exemplary damages are also recoverable by a claimant in appropriate cases. Shearson/ American Express, Inc. v. McMahon, 482 U.S. 220, 107 S. Ct. 2332 (1987).
Post-Hearing Remedies
Generally there is no appeal from an arbitration award. If the award is not paid within thirty days, a successful claimant may file a suit to confirm the award. Also, either party may file suit to vacate the award. However, vacatur is rarely granted, usually only where the arbitrator failed to disclose a material conflict. Each case is different and must be evaluated according to its own unique set of facts. Some investment advice is clearly unsuitable, such as a broker placing an elderly widow’s entire life savings into speculative stocks or a high-cost variable annuity with a long surrender period. But how do you explain to an investor the details of a credit default swap on a double-A tranche of subprime mortgage-backed collateralized debt obligations? The answer is you cannot, because hardly anyone, including the hedge fund managers on Wall Street, could understand what exactly is inside HN such a product.
Richard Elliott is a solo practitioner with offices in Dallas and Fredericksburg. He practices in the areas of securities litigation and personal injury. He can be reached at lonestarlawyer@austin.rr.com.
Thank You Thompson & Knight!
The Arbitration Process
The pleadings consist of a Statement of Claim and an Answer. No particular form of pleading is required. The parties select the panel from a list of public and industry arbitrators provided by FINRA. At the Pre-hearing Conference, the panel will set discovery deadlines, briefing deadlines and dates for
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F e bru a ry 2 0 1 2
Focus
Dal l as Bar A ssoci ati on l Headnotes 13
Mergers & Acquisitions/Securities
“It’s Just Three Nines!” Protecting Against Securities Liability by J. Mitchell Little
The year was 1976. That summer, The Omen was a hit at the box office. By October 1976, the film had been parodied in a skit on Saturday Night Live titled “The Ointment.” In the skit, the demon-child Damien’s family tries to discern why terrible and increasingly-violent “accidents” had befallen their family, coming up with increasingly-silly theories. The skit concludes with the family’s being informed by a priest that The Evil One is to blame, and that he can be identified by the appearance of the numbers “666” on his skin. Naturally, Damien is checked, at which point, his father realizes with relief, “Heyyy! It’s alright! It’s just three nines! Ahhh! Good boy, Damien!” Did Damien’s father spend more time qualifying his son as The Evil One or disqualifying him? Before you or your law firm bring a new private securities offering screaming into the world, consider this: Have you spent more time qualifying or disqualifying your client? While the federal court system continues to chisel away at aider and abettor liability under the federal securities laws, Texas law still holds sway in this area.
Material Aider Liability
The Texas Securities Act creates joint and several liability for anyone (including professionals) “who directly or indirectly with intent to deceive or defraud or with reckless disregard for the truth or the law materially aids a seller, buyer, or issuer of a security.” Tex. Rev. Civ. Stat. Title 19, Art. 581-33(F)(2). In other words, a material aider gets treated exactly the same way legally as the individual or company that lies or tells half-truths in
the sale of a security. Texas courts have interpreted this statute as requiring that a material aider have “rendered assistance in the face of a perceived risk that its assistance would facilitate untruthful or illegal activity by the primary violator.” Sterling Trust Co. v. Adderley, 168 S.W.3d 835, 842 (Tex. 2005). The court stated that this perception required that the aider become subjectively aware of his role in the improper activity.
In Your Right Mind
The fastidious securities lawyer traffics in a variety of information; information is the lifeblood and currency of his or her disclosure documents and memoranda. The question is not what to do with good information; the question is what to do with bad information. What types of information puts an attorney on notice that he is helping a bad client do a bad thing? Remembering that mere neglect does not create liability, we turn to the types of information that only a reckless attorney would ignore.
The Recalcitrant Seller
The Recalcitrant Seller says, “The SEC and Texas State Securities Board told me to do it this way, but I’m going to do it that way.” An attorney actively involved in advising a client in securities matters should take immediate, corrective action to resolve and disclose any regulatory disputes. These types of disputes put both your client and you on notice that things are going down an unacceptable path and that a new course is required.
The Lawyer Buffet
The Lawyer Buffet patron takes what he wants and leaves the rest, saying,
“I’d like you to prepare my memorandum, but I don’t want your advice on anything else. You don’t need to know everything.” While it may be appropriate from time to time to assist a troubled client with curative filings or litigation, it is nearly impossible for an attorney to provide meaningful securities law advice without providing systems and procedures that will help ensure a client’s compliance with securities laws in the future. These topics range from what types of activity are acceptable in the sales process, to types of acceptable compensation to sellers, to how the company finds its investors. When a client attempts to over-narrow the scope of your engagement, consider this a warning sign.
The Unguided Missile
The Unguided Missile says, “I tried doing it your way, but it was too hard, so I did it my way.” The Unguided Missile is the most dangerous type of secu-
rities client and the most likely to create liability because the client puts you on notice that the client has heard and ignored your advice. There are only two solutions for dealing with this type of client: (1) obtain firsthand knowledge that the client has corrected its action and is now complying with your advice or (2) fire the client.
Sixes or Nines
The only solution for the cautious securities lawyer is to make sure to spend some percentage of your time looking for “sixes” and not just “nines.” Spend time— even unbillable time, if necessary—trying to understand your client’s processes, procedures, and controls and making sure they comport with your advice. Otherwise, don’t be surprised if terrible and increasingly-violent “accidents” begin to HN befall your practice.
J. Mitchell Little, of Scheef & Stone, L.L.P, can be reached at mitch.little@solidcounsel.com.
Summer Law Intern Program Interviewers Needed Help students get “real world” experience by interviewing for the upcoming Summer Law Intern Program. Interviews are held at each DISD high school and can be completed in about 2 hours. Dates available: April 3, 4, 5 at 1:30 p.m. For more information, please contact Amy Smith at asmith@dallasbar.or or (214) 220-7484 or visit our website: www.dallasbar.org/summerlawinternprogram
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
February 2012
The Texas Supreme Court’s Latest On Post-Employment Non-Competition Agreements by Andrew M. Gould
In June 2011, the Texas Supreme Court published its latest decision about postemployment non-competition agreements. The decision, Marsh USA Inc. v. Cook, No. 09-0558, --- S.W.3d ---, 2011 WL 2517019 (Tex. 2011), is important and will likely impact the enforcement and enforceability of employee non-competition agreements across the state. Marsh & McLennan Companies, Inc. sued its former managing director, Rex Cook, to enforce a restrictive covenant against him. In exchange for Cook’s promise not to compete post-employment, he received stock options. Never before had the Texas Supreme Court, or just about any Texas appellate court, held that non-compete agreements could be supported by a financial incentive like stock options. The Texas Supreme Court, however, reversed
the Court of Appeals by a narrow majority, finding that the non-compete may be enforced. The Court declared that as long as the consideration provided by the employer (here, stock options) is reasonably related to the protection of a company’s goodwill, it will be worthy of protection under the Covenants Not to Compete Act, Tex. Bus. & Com. Code § 15.50. The Supreme Court also made clear what the heart of the issue is when it comes to non-competes: “The [] core inquiry is whether the covenant contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary…”. Since 1990, Texas non-competition law has been governed by statute (the Covenants Not To Compete Act) and, for the most part, the Texas Supreme Court’s 1994 decision in Light v. Centel Cellular Co. of
Texas, 883 S.W.2d 643. Without delving too much into the weeds, the Supreme Court in Light added technical requirements for drafting enforceable restrictions, and courts since then have spent an inordinate amount of time parsing Light’s meaning. Since 2007, the Texas Supreme Court has moved away from the rigidity of its Light decision. First, Alex Sheshunoff Mgt. v. Johnson, 883 S.W.3d 642 (Tex. 2007), reversed the principle that the contemporaneous exchange of confidential information at the time of execution was a requirement of the law. Next came Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex. 2009), which reversed the principle that confidential information had to be expressly promised by the employer to enforce a non-compete. Marsh further erodes Light by recognizing that even financial rewards in the form of stock options can support a non-compete. All three cases address the conditions that Light placed on non-competes and, ultimately, conclude that the law was not intended to be what it had become. The
cases likely reflect what our courts have always known: that any analysis of noncompetes must involve a balancing of two interests—the right of companies to protect themselves from employees, and the right of employees to work in a profession or position of their choosing. Two cases long predating Light, for instance, illustrate these principles: Bettinger v. N. Fort Worth Ice Co., 278 S.W. 466 (Tex. Ct. App. 1925); Justin Belt v. Yost, 502 S.W.3d 681 (Tex. 1973). There is no question that the Sheshunuff-Mann Frankfort-Marsh trilogy is significant and that now it may be easier to advise clients and litigants regarding noncompetition agreements. Courts may even be more receptive to upholding them. Ultimately, however, the validity of a noncompete agreement will turn on the need for the agreement and its reasonableness, a principle that has been around for nearly HN 100 years, if not longer. Andrew M. Gould is a Partner with Wick Phillip Gould & Martin, a full-service business law firm in Dallas, Texas. He can be reached at andrew.gould@wickphillips.com.
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F e bru a ry 2 0 1 2
Classifieds
Dal l as Bar A ssoci ati on l Headnotes 15
february
OFFICE SPACE
North Dallas/ Addison/ Carrollton/ Farmers Branch. Business, Real Estate, Employment, Litigation Law Firm has lease space for one or two attorneys, or for one attorney and staff member. Available early 2012. Seeking compatible persons with similar or augmenting practices, preferably in an “of Counsel” role. Contact Beverly at 214-764-7976, or email bmooney@metrocrestlaw.com Uptown Dallas. Window Office Space Available. We are located on the top floor of the McKinney Place Building in the heart of Uptown Dallas. The suite is shared among five other attorneys. Would prefer experienced State and Federal trial attorney. Shared overhead includes support staff, new NEC phone system, wireless capability, large and small conference rooms and break room. Building amenities include on site security, reserved and visitor parking. Call 214-740-9955 if interested. Prime 7th Floor Downtown Office Space: Founders Square. 900 Jackson Street @ Griffin, cattycorner from Federal Courthouse, 2 blocks from George Allen Courthouse: 4 great offices available in office sharing arrangement with 4 established solo practitioners. 1 partner office: $998.15/month; 1 partner office with secretarial carrel: $1,242.98/ month. 2-partner office suite with 2 secretarial carrels: $3,141.70/month. Amenities include large conference room, kitchen, workroom, built-in filing cabinets, and reception area. Tenants are responsible for their own telephone/fax/ internet. Underground parking available: $140/month reserved $110/month unreserved. Cafeteria, shoeshine and mail room in building. Many restaurants nearby. Contact Ted Steinke at 214747-7148 or ts@tedsteinke.com. Lovers Lane Professional Office Building. Near the tollway, this building contains a receptionist area surrounded by 4 or 5 offices/conferences. Front and back parking, kitchen, and possibly copier. Downtown courthouses approximately ten (10) minutes away. Officed at 4607 W. Lovers Lane 75209. Please call Brian at 214.634.0771 or 214.953.1560. 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 $650.00. Call 214-520-0600 Excellent Location on Stemmons Freeway! Small Dallas law firm has 6 unfurnished office spaces available. Includes all utilities. You provide your own phone/ fax lines. FREE PARKING! $650 - $800. Serious inquiries only please call 214378-8880. Free Office to Joint Venture Counsel! Young lawyer with huge case? Want to learn from working with exceptional joint-venture law firm instead of handing it off? Come visit our beautiful and fully-furnished office in NW Dallas and see if we’re a fit. Marc Lenahan 214.295.1008. Law@Lenahan.com www.SevereInjuryLawFirm.com Frisco law firm (Lebanon & Tollway) has 2 offices for lease. Each office is 13x14 (furnishing optional). New free standing building, full kitchen, conference rooms as available, state of the art phone system and security system. Contact: cborserine@friscolawfirm.com. Executive or private offices available in Preston Tower. Shared amenities (kitchen,
conference room, reception area, bathroom). Near Preston Center, 10 minutes from courthouse. Call (214) 369-1171 or email herbhooks @aol.com.
POSITION AVAILABLE
Unique Law Firm Opportunity. Love practicing law, but hate the administrative hassle? Want to keep more of your fee income? Bring your self-supporting client base and join a dozen first class business and family law attorneys in Campbell Centre. Be your own boss, share referrals and be more productive while we deal with billing, hiring staff, IT, supplies, etc. Just pay your very affordable share of overhead. Contact Steve Palmer @ 214-242-6444; spalmer@pamlaw.com; www.pamlaw.com. Small-sized north Dallas AV law firm seeks part time (25 hours a week) associate/of counsel attorney experienced in transactional, tax and/or estate planning law. Prior attorney in this position possessed a Master in Tax degree and experience in the employee benefits area. Perfect for an experienced colleague who wishes a flex time position in his or her career. Respond with cover letter and resume to Dallas Bar Association, Box 11–11A, 2101 Ross Avenue, Dallas, Texas 75201 GEICO staff counsel is seeking a Managing Attorney with insurance defense and trial experience to open their new Tyler, Texas office. The manager will be responsible for administration of the office including oversight of all day-to-day operations; evaluation and maintenance of staffing needs; submission of budgets and business plan, projections and administration of salary plan, merit reviews and performance evaluations. The Managing Attorney will also be responsible for litigation oversight including new case evaluation and case assignments; internal quality audits; trial strategies; and final review of all cases assigned for trial. Proficiency in computer use is a must. Applicant must be a licensed Texas attorney with 10 years of litigation experience in auto defense. Please apply on line at www. geico.jobs. Click Apply Now, Search by keyword ATTORNEY, and locationTexas. Qualified applicants will need to complete the application, include salary requirements, and upload a resume. No relocation expenses covered.
pects, overseeing Planned Giving program development and management, training and advising colleagues, managing stewardship of SMU’s Dallas Hall Society and the SMU Planned Giving Council. Bachelor’s degree is required. An Advanced degree is preferred. A minimum of five years of professional work experience is required. Some work experience that includes developing and maintaining relationships is also required, preferably in evaluating, analyzing and/or recommending charitable giving options and/or in service to constituents who are potential charitable giving prospects. The ideal candidate will have experience in a complex institutional environment where coordination, teamwork, and communication are of paramount importance. Experience that includes an established track record of closing on a broad range of planned gifts or as an estate and gift planning or trust advisor, is preferred. Work experience that includes working in development in higher education or for a nonprofit is desirable. Program or project management that includes budget development and oversight and/or supervisory experience of staff is preferred. Experience that includes volunteer committee management is a plus. Some travel is required. Candidates must submit a cover letter for full consideration. For a full job description and to apply visit www.smu.jobs SMU is AA/EO employer committed to excellence through diversity. Tucker, Vaughan, Gardner & Barnes, P.C. (www.tuckervaughan.com), a downtown Houston law firm, has an opening for a highly qualified practicing Texas attorney. Each applicant must have at least 7 years’ experience trying personal injury cases, be currently licensed in Texas, have some experience in federal court, have graduated in the top twenty percent, and have excellent writing skills. Spanish would be a plus, but is not required. Responsibilities will include handling the firm’s existing personal injury practice. The firm anticipates that the new attorney would expand that existing practice and would develop other practice areas as well. Initially, the position would be as an associate of the firm. If “partnership” capabilities and character are demonstrated, the firm would expect that the new attorney would become a shareholder. If you meet these qualifications and are interested, please
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Dallas boutique business, commercial, bankruptcy, and construction litigation firm seeks stable, reputable, and experienced civil litigator for office sharing or fee split arrangement. Appellate and actual trial and deposition experience a plus. Firm offers first rate office environment and tenured support staff. Hourly overflow work will be regularly available. This is an excellent opportunity for the right attorney with some portable hourly clientele to take advantage of a turn-key office environment. Respond to oaklawnfirm@aol.com. Mid-sized AV-rated North Dallas firm seeks a partner with portable business of at least $500k in any of the following areas: business litigation, insurance defense, real estate, or construction. Please reply to mssattorneys@gmail.com. Advancement Officer Specialist (Director Of Planned Giving) - Job ID# 900034 – Southern Methodist University - (Salary commensurate with experience and qualifications). The Director of Planned Giving, in the Office of Planned and Endowment Giving, supports the University’s fundraising efforts by serving all the schools and units, regional offices, and corporate & foundation relations in directing the University’s efforts to build a planned giving program, including both current and deferred gifts of non-cash assets by managing a portfolio of planned giving pros-
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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
February 2012
Thomas Wynne George R. Milner, III David Finn J. Michael Price II Gary Lon Redman, II