Dallas Bar Association
HEADNOTES
Focus Bankruptcy & Commercial Law
July 2012 Volume 37 Number 7
Road to Executive Leadership
Mike McKool, Jr. Named DBA Trial Lawyer of the Year by Timothy G. Ackermann
The Minority Participation Committee hosted the Road to Executive Leadership Program, an enlightening discussion on how to obtain a general counsel or executive leadership position. Participants included: Hyatte Simmons, former General Counsel DART; Shauna Martin, Wick Phillips Gould & Martin; Maricela Moore, Committee Co-Chair; David Huntley, General Counsel AT&T; and Richard Cheng, General Counsel Senior Care Centers.
Focus
Bankruptcy/Commercial Law
A Primer on Preferences Creditor Defenses
by Judge Harlin DeWayne Hale and Andrew Edson
Your client receives a demand from a bankruptcy trustee that certain otherwise valid payments made for goods or services have to be returned. Affectionately known as “preferences,” such claims are troublesome to creditors, for a good faith and innocent recipient may have to refund payments received from a bankrupt debtor before the bankruptcy filing. Understanding basic preference law should aid you in your conversation with your client.
The Basics
Preference law is strict. A trustee must prove six elements to recover under 11 U.S.C. Section 547(b): (1) a transfer of an interest of the debtor in property; (2) to or for the benefit of a creditor; (3) for or on account of antecedent debt; (4) made while the debtor was insolvent; (5) made on or within 90 days before the date of the filing of the bankruptcy petition; and (6) that enabled the creditor to receive more than it would otherwise have received if the transfer had not been made and the case had proceeded under Chapter 7. A preferential transfer may include money, property, or lien rights.
Thankfully, for the creditor in the goods and services situation, some defenses exist. If the trustee is able to prove all the preference elements, the Bankruptcy Code provides three primary defenses under 11 U.S.C. Section 547(c): the contemporaneous exchange, the subsequent new value, and the ordinary course of business defenses. The contemporaneous exchange defense protects from avoidance the simultaneous payment by the debtor for goods or services provided at the same time. A cash on delivery transaction, where payment was received about the same time as goods were delivered, is an example. The subsequent new value defense reduces the creditor’s potential preference liability by the amount of goods or services provided to the debtor after the preferential transfer. Thus, if the debtor made a preferential payment, and the creditor subsequently provided additional goods or services, the creditor can reduce the overall preference liability by the amount of those additional goods or services provided. This defense encourages creditors to continue doing business with the debtor prior to bankruptcy. continued on page 10
Inside 5
Beware of Hidden Liens
9
Bankruptcy is Watchdog Friendly
11 Debt Collection Communication Regulations 13 An Introduction to Chapter 15 of the Bankruptcy Code
There are many routes to becoming a great trial lawyer—Mike McKool, Jr., got there by learning, starting in childhood, how to be the kind of lawyer that businesses call on when the stakes are truly high. The kind of lawyer that has some of his best friends on the other side of the aisle. And the kind of lawyer that recognizes the importance of legal services to his clients and to our community. “Mike McKool is an excellent trial lawyer,” said Paul K. Stafford, President of the Dallas Bar Association, “and is an example of all that is good in our profession—inquisitive by nature, committed to excellence, effective and ethical in and out of the courtroom.” Acknowledging these qualities, the Dallas Bar Association has named Mr. McKool its 2012 Trial Lawyer of the Year. His successes are well-known. After becoming the youngest partner at the firm he joined after law school, he left that firm (then Johnson & Gibbs) in 1991, along with nine other lawyers. With his co-founder, Phil Smith, a Baker & Botts partner, they formed McKool Smith. McKool Smith now has about 175 lawyers in eight offices. And the firm, of which McKool is the President and Chairman, has opened Washington, DC, New York City, Los Angeles and Silicon Valley offices in the last five years. Commenting on the award, Mr. Smith said, “Needless to say, the firm is proud of Mike for his accomplishments as a trial lawyer and firm leader. We believe this honor is well-deserved.” The firm originally gained recognition in commercial litigation. Tom Hicks, for example, was accused, with his partners, of mismanaging a company that later went bankrupt. McKool said he saw the suit as a sham—he felt strongly there simply were not two sides to the case—but it was going to be hard to win. Representing the lead defendant, after a nearly two-month trial, and with about a half-billion dollars at stake, McKool Smith got the jury to find for their client on every question. Having earned a reputation in commercial litigation, the firm entered the contingency fee IP litigation arena and has seen great success. Indeed, two of its cases last year were listed among the “10 Biggest IP Litigation Wins of 2011.” Other recent recognition includes winning 11 National Law Journal and VerdictSearch “Top 100 Verdicts” since 2007—more than any
other law firm in that period. Just some of the honors already awarded to McKool personally include membership as a Fellow of the American College of Trial Lawyers; membership as an Associate of the American Board of Trial Attorneys; being named as: one of only five “Go-To Attorneys” for civil litigation (Texas Lawyer); appearing in Best Lawyer in Dallas five different Mike McKool times (D Magazine); and being chosen as one of the five Top Business Trial Lawyers in the DFW Metroplex (Dallas Business Journal). He has also been featured in The Best Lawyers in America in Commercial Litigation for almost 20 years and in Bet-the-Company Litigation since 2006. Recognition of his skill, tenacity and integrity also extends to his opposing counsel. Terry Murphy, who opposed McKool in more than one case, remarked, “You need to anticipate that Mike will pick out … themes that will win his case,” and that “Mike is a very fair, reasonable guy to deal with. He’s got a lot of integrity and honesty.” Mr. Murphy also noted: “Mike will dig to the bottom and get every fact he needs. You know you’re in a battle royal when you go up against him.” Mr. McKool came by those characteristics honestly— starting with his family. Mike McKool, Sr., who passed away in 2003, also a Dallas trial lawyer, and state Senator, came to this country as a child with his Lebanese parents. Mr. McKool remembers him as “hardworking and ambitious, like so many immigrants.” No surprise, then, that instead of playing during the summer, Mike went to work with his father. Although he may have hated it then, he watched his father try more than 20 cases. And he credited that experience with giving him a sense of ease and comfort in the courtroom. Mr. Smith remarked that Mike is “just as comfortable in a jury trial in an East Texas courtroom as in an appellate court in Washington, D.C.” His mother’s family was from Dallas, but Betty McKool’s father was a carnival photographer when she was a child. So the family followed around the carnival and she performed a comedy boxing routine with her sister. Mike notes that he still hears from continued on page 7
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
July Events
JULY 13-NORTH DALLAS** Noon
Jul y 2012 Visit www.dallasbar.org for updates on Friday Clinics and other CLEs. Griffith Nixon Davison P.C. RSVP to kzack@ dallasbar.org.
FRIDAY CLINICS
“Business Bankruptcy Basics,” Tonya Ramsey. (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 Griffith Nixon Davison P.C. RSVP to kzack@ dallasbar.org.
JULY 20-BELO Noon
“Pillow Talk a/k/a Negotiation of Marital Agreements,” Carol Wilson. (MCLE 1.00)*
MONDAY, JULY 2
WEDNESDAY, JULY 11
TUESDAY, JULY 3
Noon
Family Law Section “The Collateral Consequences of an Affirmative Finding of Family Violence,” John Withers, Jr., Esq. (MCLE 1.00)*
Closed in Observance of Independence Day
Admissions & Membership Committee
THURSDAY, JULY 5
DAYL Lunch & Learn CLE. For more information contact cherieh@dayl.com.
No DBA Events Scheduled
No DBA Events Scheduled
WEDNESDAY, JULY 4 Noon
Family Law Section Board Meeting
DAYL Freedom Run Committee
St. Thomas More Society
FRIDAY, JULY 6 No DBA Events Scheduled
MONDAY, JULY 9 Noon
Alternative Dispute Resolution Section “Coffee is for Closers: Advanced Closing Techniques for Mediators,” Lee Jay Berman. (MCLE 1.00)* Real Property Law Section “The Quiet Before the Storm – A Guide to the Upcoming Dodd Frank Revolution and Loan Documentation,” Barry D. Johnson. (MCLE 1.00)* DAYL Lawyers Against Domestic Violence
TUESDAY, JULY 10 Noon
Business Litigation/Tort & Insurance Practice Sections “The Sovereign in the Courthouse: Litigating For, With and Against the State of Texas,” David J. Schenck. (MLCE 1.00)*
Entertainment Committee
Morris Harrell Professionalism Committee
Dallas Bar Foundation Board Meeting
DAYL Criminal Bar Involvement Committee
6:00 p.m. DAYL Board of Directors Meeting
11:30 a.m. House Committee Walk Through
5:00 p.m. Bankruptcy & Commercial Law/Tax Law Sections “Individual Taxes in Chapter 7 and 13 Bankruptcy Cases,” David Adams and Leo Carey. (MCLE 1.00)* 5:15 p.m. LegalLine—Volunteers welcome. Second floor Belo.
THURSDAY, JULY 12
11:30 a.m. DAYL Lawyers Serving Children Noon
Judiciary Committee “Extraordinary Remedies: Injunction and Restraining Order Requirements,” D. Paul Dalton and Hon. Emily Tobolowsky. (MCLE 1.00)*
Trial Skills Section “Maximizing Damages. Have a Basis for ‘Swinging for the Fences,’” Greg Gray. (MCLE 1.00)* Minority Clerkship Luncheon. Panelists include Tatiana Alexander, Chip Brooker, Victor Corpuz and Carlos Morales. Learn about the broad range of opportunities in Dallas. RSVP to bavina@dallasbar.org.
Labor & Employment Law Section “Surprise! You’re a Federal Contractor,” Shafeeqa Watkins Giarratani, Esq. (MCLE 1.00)*
TUESDAY, JULY 17 Noon
Antitrust & Trade Regulation Section “Revolution or Minor Disruption? Twombly and Iqbal Through the Rearview Mirror,” William Frank Carroll. (MCLE 1.00)*
Community Involvement Committee
DAYL Animal Welfare Committee
DAYL Elder Law Committee
WEDNESDAY, JULY 18 Noon
Energy Law Section “The Energy Industry and Current Happening of the Texas Railroad Commission,” Christi Craddock. (MCLE 1.00)*
Health Law Section “Patient Safety Organizations: The Protection and Benefits of Participation,” Paige Lueking. (MCLE 1.00)*
CLE Committee
Law in the Schools & Community Committee
Pro Bono Activities Committee
Publications Committee
Non-Profit Law Study Group
Christian Lawyers Fellowship
5:15 p.m. LegalLine—Volunteers welcome. Second floor Belo.
Dallas Asian American Bar Association
6:00 p.m. J.L. Turner Legal Association
FRIDAY, JULY 13 Noon
Friday Clinic-North Dallas** “Business Bankruptcy Basics,” Tonya Ramsey. (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
Noon
Friday Clinic-Belo “Pillow Talk a/k/a Negotiation of Marital Agreements,” Carol Wilson. (MCLE 1.00)*
DVAP Family Law CLE “Modification: In Form & Practice,” Hon. Graciela Olvera and Kathleen Turton. (MCLE 1.25, Ethics 0.25)*
MONDAY, JULY 23 No DBA Events Scheduled
Federal Bar Association
MONDAY, JULY 16 Noon
FRIDAY, JULY 20
THURSDAY, JULY 19
Noon
Media Relations Committee
Christian Legal Society
Dallas Gay & Lesbian Bar Association
3:30 p.m. DBA Board of Directors Meeting 5:30 p.m. Corporate Counsel Section “Campaign 2012: The Political Landscape,” Dennis Simon and Matthew Wilson.
TUESDAY, JULY 24 Noon
American Immigration Lawyers Association Courthouse Committee
WEDNESDAY, JULY 25 Noon
Sports & Entertainment Law Section “Bringing Bernie to the Big Screen,” Skip Hollandsworth. (MCLE 1.00)*
Legal Ethics Committee
DVAP New Lawyer Luncheon. For more information, contact reedbrownc@lanwt.org.
Municipal Justice Bar Association
DAYL Equal Access to Justice Committee
THURSDAY, JULY 26 Noon
Criminal/Environmental Law Section “State Prosecution of Texas Environmental Crimes,” Patty Robertson. (MCLE 1.00)*
Mentoring Committee
Community Service Fund Board Meeting
FRIDAY, JULY 27
9:00 a.m. Christmas in July donation drop off Noon
Intellectual Property Law Section “Advanced Patent Licensing,” Stephen Slater and Stephen Stein. (MCLE 1.00)*
DAYL CLE Committee
MONDAY, JULY 30 Noon
DAYL Solo & Small Firm Committee
TUESDAY, JULY 31 Noon
Senior Lawyers Committee “Source Options for Long-Term Care Costs,” Michael B. Cohen. (MCLE 1.00)*
DAYL Aid to the Homeless Committee
6:00 p.m. Dallas Hispanic Bar Association
YOU DON’T WANT TO MISS THESE EVENTS! Mark your calendars for: Bench Bar Conference September 27-29 Philbin Awards Luncheon October 1 Pro Bono Awards October 18 DBA Annual Meeting November 2
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.
Jul y 2 0 1 2
Focus
D al l as Bar A ssoci ati on l Headnotes 3
Bankruptcy/Commercial Law
The Next “Bubble” – Student Loan Defaults by Carron Nicks Armstrong
Finally, recovery from the recession appears to be gaining traction. There are signs of life in the housing industry, and unemployment is stabilizing. Pundits are warning, however, that another bubble is poised to burst. The Consumer Financial Protection Bureau reports that student loan debt has topped $1,000,000,000,000 (that’s one trillion)—a 100 percent increase over just five years ago. Let us put that in perspective. It equals the country’s budget deficit, exceeds the U.S. trade deficit by about 30 percent, and just about matches the amount of income tax the US Government collects each year. It outstrips personal credit card debt. The average 2011 college graduate with student loans owed $25,000. While that amount is affordable for graduates who are able to find a job, an increasing number of students cannot pay their loans. Many students have much higher debt burdens, or are unable to earn adequate income. The Department of Education says 13.4 percent of student loans that entered repayment in 2008 have already defaulted. The Department expects that rate to rise to 16.5 percent over a 20-year loan repayment period. For loans expected to be issued in 2013, the President’s budget predicts a whopping 25 percent default rate. Even for those students who timely make their payments, studies show that many are forced to delay or forgo buying cars and houses, starting families and planning for retirement. Indeed, with repayment terms of up to 30 years, more and more middle aged and retired Americans find themselves struggling to meet their student loan obligations. Bankruptcy’s fresh start, once a last refuge for struggling former students, has
been increasingly curtailed. Twenty-five years ago, the Second Circuit decided what has become the seminal case on student loan discharge, Brunner v. New York State Higher Educ. Servs. Corp., 831 F2d 395 (2nd Cir. 1987). Most circuits, including the Fifth Circuit, latched onto Brunner or a slightly modified version of it. The case remains a touchstone, even though the economy and the bankruptcy landscape have changed dramatically. When Brunner was decided, federallybacked student loans were automatically discharged in a Chapter 7 case if they were more than five years old. If a debtor wanted to discharge student loans within the five year period, the Bankruptcy Code required that the debtor show that the loans caused “undue hardship.” The Brunner court required the debtor to show that the undue hardship would be continuing into the future. Since Brunner, the Code has been modified twice, first to extend the five year period to seven years, and then to completely eliminate any time period, making all student loans nondischargeable unless they pose an undue Headnotes.Ad.6.2012:Layout 1 6/11/12 hardship for an undefined period of time into the future.
Partial relief is available for loans backed by the federal government. Many students consolidate their loans, which lowers payments but extends the repayment period and increases interest costs. Some are able to take advantage of the Department of Education’s income-based repayment program. Also, borrowers who work in public service or government jobs may be able to have loans forgiven after ten years of payments. Recognizing that student loan hardship is fast reaching crisis proportions, last year President Obama announced changes to the income-based repayment program that would allow federal loans to be paid at 10 percent of discretionary income with the balance forgiven after 20 years. That program, however, will be available only to borrowers who took out their first loans in 2008 or later. None of these measures, though, address private student loans, which are not subject to federal student loan collection regulations. Consequently, few private loans offer forbearance, deferment, consolidation, or income contin4:49 PM Page 1 programs comparable to gent repayment government loans. Under the 2005 bank-
ruptcy amendments, private student loans are also non-dischargeable. So far, legislation introduced in Congress to restore the discharge for private student loans has not generated serious consideration. Consequently, consumer bankruptcy attorneys and bankruptcy courts can expect to see more and more debtors with significant student loan obligations that they are unable to pay in full. Our society touts post-secondary education as a path to the American Dream and student loans as an investment in that future. Many believe that the confluence of rising tuition and easy credit will soon reach critical mass and that the bubble will burst, if it hasn’t already. How much drag that will place on an already fragile economy remains to be seen. In the meantime, wise consumer bankruptcy attorneys will master Brunner and its progeny, as well as private and government student assistance programs, to adequately represent their HN debtor clients. Carron Nicks Armstrong practices consumer bankruptcy law with Armstrong Kellett Bartholow P.C. Email comments to carron@akbpc.com.
Global Perspective. National Strength. Texas Spirit. Dykema bolsters its commitment to being a leader in the Dallas market.
Do You Want to Refresh Your Spanish?
We are pleased to welcome three extraordinary lawyers to our growing Dallas team.
Bill Finkelstein
Christopher D. Kratovil is a gifted appellate lawyer, who has represented clients in the most complex and sophisticated commercial disputes before tribunals that range from small town Texas trial courts to the U.S. Supreme Court. Chris’s research skills and persuasive presentational abilities make him a ‘go to’ resource for clients seeking favorable outcomes in the appellate courts. Chris served as a law clerk to the Honorable Edith H. Jones, Chief Judge of the United States Court of Appeals for the Fifth Circuit.
Spanish for Lawyers is the Answer! 10-Week Course Fall 2012 Classes begin August 7 All courses are a continuation of summer semester.
Christopher D. Kratovil
Outstanding outcomes. Dykema delivers.
David J. Schenck
For more information, contact Teddi Rivas at TRivas@dallasbar.org or (214) 220-7447.
David J. Schenck is a renowned litigator who joins Dykema from the Office of the Texas Attorney General, where he served as Deputy Attorney General for Legal Counsel. Regarded by many as one of the top Fifth Circuit appellate lawyers in the state of Texas, David’s achievements in trial, appellate and government law have garnered him statewide recognition. David served as a law clerk to the Honorable Henry A. Politz, Chief Judge of the United States Court of Appeals for the Fifth Circuit. He is Board Certified in Civil Appellate Law. Bill, Chris and David are extraordinary talents, whose background experiences and accomplishments affirm their top-tier status. Their presence at Dykema strengthens our reputation as one of the most credentialed law firms in Dallas. Please join us in welcoming them to the Dykema Dallas team.
Class duration: Week of August 7week of October 8 Class cost: $180
Bill Finkelstein is an accomplished corporate finance and restructuring attorney who, for over thirty years, has counseled businesses—from start-up to middle-market—on a broad array of commercial transactions, acquisitions and restructuring matters. Having served clients in industries as diverse as manufacturing, recycling, retail, jewelry and real estate, Bill has a wealth of experience in transactional and litigation work.
Comerica Bank Tower 1717 Main Street Suite 4000 Dallas, TX 75201 Darrell E. Jordan Office Managing Member 214-462-6410
www.dykema.com
California | Illinois | Michigan | North Carolina | Texas | Washington, D.C.
4 He a d n o t e s l D a l l a s B a r A s s o ciation
Jul y 2012
Headnotes
President's Column
Published by: DALLAS BAR ASSOCIATION
Continuing Commitment By Paul K. Stafford
It’s the middle of the summer. The resolutions of the New Year are now long forgotten, the first six months of 2012 are now recent history, and the challenges and opportunities of the remainder of the year await. So, how is your Dallas Bar Association at the mid-point? To use a sports metaphor, how are we doing at “half-time?” Well, we’ve got six in one hand…so, let’s reflect on the first half of the year. At the Dallas Bar Association’s Inaugural in January, I inquired of our members “Who are you?” I responded that you are some of the best, brightest and most prominent people that Dallas has to offer. I reminded you that you are all unique in your own way, yet united by commonality, defined by commitment, with collective conscience to achieve common causes. I also inquired of our members as to whether they are fully committed and engaged, and encouraged you as a member to commit, engage, improve and enhance this bar association…and by extension, your profession and your community. I encouraged you to donate a portion of your most precious commodity (“time”) to the Dallas Bar Association in 2012. At 2012’s mid-point, I’m checking-in on that commitment and that engagement. In the preceding six months, there have been many opportunities for involvement with our Bar. Each of our Sections and Committees have been very active in providing professional development, CLEs and service opportunities. In addition, the DBA has commissioned a Trial Academy for the purpose of providing practical litigation tips and training to the newer members of our bar. Through “Arts Month” in April, the DBA has promoted a greater collaboration with the arts community here in Dallas. The DBA has co-hosted the Marshall Forum—an international gathering of thought leaders on the transatlantic relationship and the implications of law and the economy upon that relationship. There have been collaborative events with groups outside of our Bar, including accountants and business leaders. The Bar has continued its commitment to diversity and inclusion, and has hosted several events in that regard, including the Minority Clerkship Luncheon in June, with the next Minority Clerkship Luncheon scheduled for July 13.
Looking forward into the second half of 2012, we know that the “fierce urgency of now” remains and we must remind ourselves daily that “Our Time Is Now.” Accordingly, I ask each of our members individually “How are you progressing on those 12 hours that we talked about in January?” Have you committed yourselves to professional development, community services, personal growth or any of the other aspects of engagement with the Dallas Bar Association? At half-time, do you have the time to help us…the time to help yourselves, our profession and our community? The potential and prospects for a most successful year exists, but it will require the same (or greater) level of commitment and engagement that has brought us thus far. We hold in our collective hands the power, responsibility and ability to continue great works and to effectuate great change. Continue to commit to the diligent work of our award-winning Sections and Committees. Continue your commitment to volunteer pro bono services and support the upcoming Campaign for Equal Access to Justice, so that those less fortunate in our community may be afforded much needed legal assistance and counsel. Participate in the Bench Bar Conference on September 27-29, which is an excellent opportunity to receive CLE credit and to network with fellow attorneys and members of the judiciary (www. regonline.com/2012bbc). Support the Philbin Awards on October 1, in which excellence in legal reporting will be recognized (www.dallasbar.org/philbin). A t t e n d the Dallas Bar Association’s Diversity Summit on November 29, and engage in a productive dialogue on diversity and best practices which ensure and promote diversity within our profession. Thanks for allowing me to serve as your President during a great first-half. Thanks to the DBA staff for all of their hard work in ensuring a consistent and professional product in your bar. In addition, I certainly would like to thank you as members for all that you are doing. My challenge to you within the next six months is to find a way in which you can enhance and improve your bar, your profession and your community. As I requested at the commencement of this wonderful year, I ask that you have the time to make HN 2012 the year of now.
Minority Clerkship Luncheon Friday, July 13, Noon At the Belo Mansion Panelists: Tatiana Alexander, J.L. Turner Legal Association Chip Brooker, Dallas Association of Young Lawyers Victor Corpuz, Dallas Asian American Bar Association Carlos Morales, Dallas Hispanic Bar Association For more information or to RSVP, e-mail BAvina@dallasbar.org.
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: Lawrence Boyd, Christina Melton Crain, Ike Vanden Eykel, Andy Payne, 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: Mary Ellen Johnson 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.
Jul y 2 0 1 2
Focus
D al l as Bar A ssoci ati on l Headnotes 5
Bankruptcy/Commercial Law
Beware of Hidden Liens by Sue Murphy and Sakina Rasheed
Whether you are representing a secured lender, litigant, purchaser, debtor, or a client in bankruptcy, understanding whether the assets at issue are encumbered by liens can be critical. Many people mistakenly believe that UCC, judgment lien, tax lien and real property searches will disclose the universe of potential liens on a borrower’s assets. However, a number of other liens may be lurking, hidden from such searches. Such “hidden” liens include: (i) agricultural liens, such as trust liens under the Perishable Agricultural Commodities Act (PACA) and the Packers and Stockyards Act; (ii) liens that arise by sale of assets; (iii) liens imposed by operation of law, such as liens of mechanics, materialmen, warehousemen, carriers and landlords; (iv) security interests in assets that can be perfected by control, such as deposit accounts and securities accounts; and (v) security interests in assets that can be perfected by possession, such as goods, instruments, chattel paper, or tangible negotiable documents. Under a 1984 amendment to PACA, perishable agricultural products are placed in a “PACA trust” and are set aside to pay unpaid suppliers. In Reaves Brokerage v. Sunbelt Fruit & Vegetable, 336 F.3d 410 (5th Cir. 2003), the Fifth Circuit held that PACA protects sellers of perishable commodities by giving them priority over secured creditors. Similarly, in Nickey Gregory Co., LLC v. AgriCap, LLC, 597 F3d 591 (4th Cir. 2010), the Fourth Circuit held that an unpaid supplier of perish-
able agricultural products had a superior interest in the accounts receivables and proceeds held by a secured lender. The interests of such unpaid suppliers may not appear on a lien search. Practitioners should be mindful of dealing with debtors in the agricultural industry and be aware that a secured lender’s security interest could be trumped by an unpaid supplier. Another category of “hidden liens” can be discovered through searches, but not through the typical UCC, judgment lien, tax lien, or real property lien searches. Examples include: (i) liens on copyrights, patents, and trademarks; (ii) property tax liens; (iii) aircraft liens; (iv) liens on manufactured homes; and (v) maritime liens. Another type of “secret” lien can also arise when a debtor has interacted with the U.S. Government. Certain government contracts include a clause that vests “title” in a contractor’s materials and special tooling equipment in the Government. The Government often relies on these title-vesting clauses to support a claim that it holds a superior interest in these assets over other lenders. Often, a subsequent lender is surprised to learn that the Government may have a super-priority lien on the debtor’s inventory, without the Government ever having filed a financing statement. The U.S. Court of Claims held in Marine Midland Bank v. United States, 687 F.2d 395, 36 UCC Rep. 968 (Ct. Cl. 1982), cert. denied, 460 U.S. 1037 (1983), that “title vesting” clauses in government contracts give the Gov-
ernment an interest closely analogous to a purchase money security interest, and these interests prevail over the interest of a general creditor on unrelated debt. The court analogized the Government’s interest to a PMSI without much further analysis, other than stating that the “the government should be able to take out of the contractor the value that it has put in, if that value is identified with specific property.” The court later held in First National Bank of Geneva v. United States, 5 UCC Rep. 2nd 190, 13 Ct. Cl. 385 (1987) that a secured lender may have priority over the Government if it properly perfected a PMSI. Arguably, a lender facing a challenge by the Gov-
ernment would need to provide evidence tracking that its loan funds were used to purchase the inventory at issue. A secured lender may avoid being surprised by a lurking super-priority government lien by determining whether the debtor has a contractual relationship with the government. A thorough knowledge of the debtor’s industry and the related business relationships can help lead counsel in the right direction so that the appropriate due diligence can be conducted HN to uncover “hidden liens.” Sue Murphy is a partner at Haynes and Boone, LLP (sue. murphy@haynesboone.com) and Sakina Rasheed is an associate at the firm (sakina.rasheed@haynesboone.com).
Trials – Arbitrations – Appeals • Securities • Financial • Commercial Fraud • Business • Energy • 300+ jury trials • 23 reported cases – civil /criminal • Board Certified – Civil Trial Law Texas Board of Legal Specialization
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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
Jul y 2012
Changes to Dallas County Mediations The DCDRC has implemented requirements for mediators and criteria for the referral of cases for mediation to make sure that: (1) the DCDRC is using qualified mediators; (2) referred cases meet the established criteria; and (3) ADR-related funds are being used to assist parties who cannot afford private mediations. Parties who participate in DRDRC mediations currently do not pay a fee for the mediation session and mediators will serve pro bono.
by Othel Bursey, Jr. and Gene Roberts
Big changes have occurred in Dallas County and how it handles mediation services. For approximately 30 years, Dallas County contracted with Dispute Mediation Service, Inc., as a provider for mediations as allowed by the Texas Civil Practice and Remedies Code. Last year, the Dallas County Commissioners Court signed an order creating the Dallas County Dispute Resolution Center (DCDRC) which will allow for mediations to be conducted in-house, instead of using Dispute Mediation Service, Inc. Dallas County hired Othel Bursey, Jr., as the ADR Coordinator and Brittany Stephenson as his assistant. His office is located on the 6th floor of the George L. Allen Sr. Courts Building in Suite 681C.
Mediation Criteria
Civil cases eligible for referral meet the following criteria: • Mediation services are available to Dallas County residents or litigants, only; • If a party is pro se, a case is eligible for referral without limitation as to discovery
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level or total amount of claims; • Discovery Level 1 cases (total claims of $50,000 or less) are eligible for referral; Civil cases that are not eligible for referral are those where: • Any party is represented by an attorney under a contingency fee agreement; • Any party is represented by counsel retained by an insurance company or other indemnitor; and • All parties are represented by retained counsel, unless the Court determines that the parties do not have the financial means to bear the cost of private mediation. Family cases eligible for referral meet the following criteria: • Mediation services are available to Dallas County residents or litigants, only; • If a party is pro se, a case is eligible for referral without limitation as to discovery level or total amount of claims; • Non-SAPCR cases under Discovery Level 1 (with total claims under $50,000); and • SAPCR cases involving conservatorship, possession, or support of minor children. Family cases that are not eligible for referral are those where: •All parties are represented by retained counsel, unless the Court determines that the parties do not have the financial means to bear the cost of private mediation. County Court at Law cases that are eligible for referral: • Services are available to only Dallas County litigants. • Cases where any party is pro se are eligible for referral without limitation as to discovery level or total amount of claims. • Cases under Discovery Level 1 with total claims under $50,000 as well as JP/ Small Claims appeals are eligible for referral.
• The individual Judges of each County Court at Law shall decide on a case by case basis which cases are not eligible for referral.
Mediator Criteria
DRC mediators must apply to participate as a mediator and will be placed into one of the following categories: Observer: a mediator who recently completed 40 hours of training and has less than 20 mediations or 125 hours in mediation. These mediators will observe mediations with a Credentialed Mediator; Co-Mediator: a mediator with more than 20 mediations or 125 hours of mediations, but will participate with a Credentialed Mediator; Credentialed Mediator: a mediator who is “credentialed” by the Texas Mediator Credentialing Association. For the initial implementation phase for the DRC, mediators who have participated in Settlement Week or in similar programs will be grandfathered in to the mediator pool; or Family law cases will be assigned to mediators with significant family law experience or to a mediator approved by the referring court. Judges still have the ability to refer cases to private mediators, but the new DRC system will provide an avenue for those parties who cannot afford the cost of private mediation services. Additional information, a Mediator’s Application Form and a copy of the referral criteria can be found on the ADR Section’s website (http://tinyurl. HN com/87emhkx).
Othel Bursey, Jr. is the Dallas County ADR Coordinator. Gene Roberts is the Chair of the ADR Section for the Dallas Bar Association. They can be reached at othel.bursey@dallascounty.org and gene@northtexasnegotiations.com, respectively.
J ul y 2 0 1 2
D al l as Bar A ssoci ati on l Headnotes 7
2012 DBA 100 CLUB – We Want YOU! What is the DBA 100 Club? The DBA 100 Club is a distinguished membership recognition category that consists of Firms and Government agencies with two or more attorneys as well as corporate legal departments that have 100% membership in the DBA. Recognition for 100% support is given to the 2012 DBA 100 Club members in our June, July and August Headnotes and at our Annual meeting in November. Please note that the DBA 100 Club is open for renewal annually to every firm. We do not automatically renew a firm’s membership due to changes in firm rosters from year to year. Do you see your name on the list? If not, you need to GET ON THE LIST! To become a 2012 DBA 100 Club member, please submit your request via email and include a list of all lawyers in your Dallas office or corporate legal department to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and if you qualify, your firm will be added to the 2012 DBA 100 Club! If we receive your list by July 9th, your firm will be included on the August DBA 100 Club recognition list in Headnotes.
Send in your list TODAY! DBA 100 Club Members As of June 11, 2012 Law Firms with 2 to 5 Attorneys 123 Divorce Company A. William Arnold III & Associates, P.C. Ackerman & Savage, L.L.P. Adair, Morris & Osborn, P.C. Aldous Law Firm Alexander Dubose & Townsend LLP Anderson & Brocious P.C. Ashcraft Law Firm Ashley & Laird Atkins, O’Toole & Briner, L.L.C. Barnett • McNair • Hall, L.L.P. Beirne, Maynard & Parsons, L.L.P. Blankenship, Wiland & O’Connor, P.C. Broden & Mickelsen Brown Fox Kizzia & Johnson PLLC Bruegger & McCullough, P.C. Brusniak Blackwell, P.C. Buchanan & Bellan, L.L.P. Busch Ruotolo Simpson LLP Carlock-Gormley-Hight Clark Law Firm Coffin & Driver, PLLC Collins Law Group PC Crain Lewis, L.L.P. Curtis | Castillo PC Daniel Sheehan & Associates, LLP Diamond | Apgar, LLP Edwards & de la Cerda, L.L.C. ELROD, PLLC Fair & Watts, P.C. Grogan & Brawner P.C. Hamilton & Squibb, LLP Hance & Wickham, P.C. Hankinson LLP Helms, Roberts & Diaz LLP Hollingsworth Walker Horton & Archibald, P.C. Hunt | Ham, PLLC Johnston u Tobey, P.C. Kabani & Kabani, PLLC Kapioltas & Forni, PLLC Karel & Hicks, P.C.
Keane, Fowler & Donohue Kelly, Durham & Pittard, LLP Kleiman, Lawrence, Baskind & Fitzgerald, L.L.P. Koning Rubarts LLP Law Office of Emily Horton PLLC Lidji Dorey & Hooper Little Pedersen Fankhauser LLP Maris & Lanier, P.C. Marshall & Kellow, LLP McShane & Davis, L.L.P. Milby, PLLC Miller and Bennett, Attorneys and Counselors Mills & Williams L.L.P. Mincey-Carter, PC Mitchell, Goff & Mitchell, LLP Mullin Hoard & Brown, L.L.P. Prager & Miller, P.C. Pratt & Yungblut, P.C. Quaid & Quaid, L.L.C. Ramirez & Associates, P.C. Rasansky Law Firm Ray & Thatcher, Attorneys at Law PC Reed & Riordan, PLLC Richardson Koudelka, LLP Rochelle & Rankin LLP Schuerenberg & Grimes, P.C. Secore & Waller, L.L.P. Smith, Stern, Friedman & Nelms, P.C. Stromberg Stock Stuber Cooper Voge, PLLC Sullivan & Holston The DeLoney Law Group, PLLC The Foret Law Firm The Law Offices of Shanna Nugent, P.C. Thomas, Cinclair & Beuttenmuller, PC Tillman Betanzos LLP Tinsley Law Firm Tobolowsky & Burk, P.C. Vela | Keller P.C. Winn, Beaudry & Winn, L.L.P. Wisener Nunnally Gold LLP Withers & Withers, P.C. Woodward & Shaw Wright & Toles Yarbrough & Elliott, P.C.
Law Firms with 6 or More Attorneys Ackels & Ackels, L.L.P. Addison Law Firm P.C. Allmand Law Firm PLLC Anderson Tobin, PLLC Baker & McKenzie LLP Baker Botts, L.L.P. Bell Nunnally & Martin LLP Blanscet Sutherland Hooper & Hale, LLP Brousseau Graham & Massingill Brown & Hofmeister, L.L.P. Brown McCarroll, L.L.P. Burford & Ryburn, L.L.P. Calloway, Norris, Burdette & Weber, PLLC Campbell & Chadwick, P.C. Canterbury, Elder, Gooch, Surratt, Shapiro & Stein, P.C. Carrington, Coleman, Sloman & Blumenthal, L.L.P. Carstens & Cahoon, LLP Cowles & Thompson, P.C. David, Goodman & Madole, P.C. Deans & Lyons, LLP DeHay & Elliston, L.L.P. Fletcher, Farley, Shipman & Salinas, LLP Ford, Nassen & Baldwin, P.C. Fulbright & Jaworski L.L.P. Godwin Ronquillo PC Goldfarb LLP Goranson Bain, PLLC Grau Koen, P.C. Griffith Nixon Davison, P.C. Gruber Hurst Johansen Hail Shank LLP Guida, Slavich & Flores, P.C. Hermes Sargent Bates, LLP Hiersche, Hayward, Drakeley & Urbach, P.C. Johnson Jordan Cresswell Monk, PC Kessler Collins, P.C. KoonsFuller Kroney Morse Lan, PC Langley Weinstein LLP Littler Mendelson, P.C. Locke Lord LLP Loewinsohn Flegle Deary L.L.P. McCathern | Mooty | Grinke, LLP
McCurley, Orsinger, McCurley, Nelson & Downing, L.L.P. McGuire, Craddock & Strother, P.C. McKool Smith P.C. Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. Munsch Hardt Kopf & Harr, P.C. Passman & Jones, P.C. Sayles Werbner, P.C. Scheef & Stone, L.L.P. SettlePou Shackelford, Melton & McKinley, LLP Shannon, Gracey, Ratliff & Miller, L.L.P. Sorrels, Udashen & Anton Staubus & Randall, L.L.P. Steed Flagg Lamberth LLP Stinnett Thiebaud & Remington L.L.P. Susman Godfrey L.L.P. Taber Estes Thorne & Carr PLLC The Bassett Firm, P.C. The Hartnett Law Firm The Law Offices of Frank L. Branson, P.C. Thompson & Knight LLP White & Wiggins L.L.P. Winstead PC Corporate Legal Departments Alon USA Energy Inc. Austin Industries, Inc. Baptist Foundation of Texas Belo Corp. Contran Corporation Front Burner Restaurants, LP Genesco Sports Enterprises Hexter-Fair Title Company MetroPCS Communications, Inc. Morgan Management Corporation Neuberger Berman ORIX USA Corporation Tenaska Power Services Co. Government Agencies City of Irving
Mike McKool, Jr. Named DBA Trial Lawyer of the Year continued from page 1
people who know his mother about what a charming person she is. Growing up in Dallas, Mike went to Jesuit High School, where he was active in debate, student body President and, he remembers, the smallest guy on the football team. Unlike today—with college counselors and the like—Mike recalled with a chuckle that he chose Notre Dame University because his “girlfriend’s brother told me it was cool.” But he found it a great experience and to this day enjoys reading history and biography. Leaving Notre Dame magna cum laude and Phi Beta Kappa as an anthropology major, he says he was on a knife’s edge between graduate school and law school. Looking back, he thinks that—in choosing law school—he did not want to hurt his father’s feelings. But he also knows there was no doubt that it was the right choice. In 1974, he graduated with honors from the University of Texas School of Law, as a member of the Order of the Coif and the Texas Law Review. He then began his practice at the Hewett Johnson Swanson Barbee firm. One memory from the firm was examin-
ing witnesses in a suit on a note—sitting second-chair only days after being licensed. He also recalled a mentor, Ernie Figari (the Dallas Bar Association 2000 Trial Lawyer of the Year), who demanded excellence: “There was no ‘good enough’ for Ernie.” What are some of the things Mr. McKool has learned over the years? He starts with a new case by listening to his client’s story but “without prejudice on my part.” In other words, tempting though it may be to be skeptical as an experienced lawyer, you must “feel it the way the client feels it.” He is a strong believer in serial jury testing to identify what the jury likes about an approach and why. But he avoids too many questions for shadow juries, which he thinks can cause their experience to differ too much from that of the real jury. When picking the client’s representative—the face of the client—he looks for a likeable, approachable person. Juries, he says, feel empathy for people like them, people that are not intimidating. Nor has Mr. McKool stopped learning. To improve his ability to develop a strong trial theme, Mike and McKool Smith partner, Doug Cawley, recently attended a creative writing seminar on how to write a com-
pelling plot. What did he learn? A client’s story often may show that it was not without some fault in the dispute. Mike used to try to exclude or minimize those bad facts. But he recognizes now that “struggle is compelling” and that “perfect heroes are not interesting.” In developing his theme, he keeps in mind that, “in the arc of struggle, it’s OK to make goofs.” Mr. McKool also recalled two changes during his early years: increased self-confidence and appreciation for the importance of respect for those involved in the litigation process—both lawyers and witnesses. He considers the two related, and recalled that he did not fully appreciate that importance as a new lawyer. He now works to instill that respect in young McKool Smith lawyers. But he remembers learning respect from someone on the other side of the courtroom. He remembers John Gilliam, of Jenkens & Gilchrist, setting an example of a lawyer who was a gentleman, respectful and polite. “You need to respect everyone in the process,” he said. And despite the value of self-confidence, he emphasized that “you can have self-confidence and not be arrogant.” Even now, he says, if he could change things afterward, there are trials where he “would have been
more humble.” With humility comes recognition of the importance of legal services to those who cannot afford them. Mr. McKool is a longtime supporter of the Dallas Bar Association’s Equal Access to Justice Campaign. “It doesn’t take much looking,” he said, “to be empathetic when you see people who cannot afford legal services.” And, he noted, “Even very reasonable lawyer’s [fees] are out of reach of most people who need legal services.” To address this problem, Mr. McKool, who kicked off the most recent Campaign, has donated each year since it started in 1994—a total of over $190,000. Mike and his wife, Erin , have been splitting time between Dallas and New York since the firm opened its new office there, and have a 4-year-old son, Michael. His daughter and son from a previous marriage, Raney and Jack, live in Austin and in Seattle. The award will be presented at the Bench Bar Conference, held September 27-29 at the Horseshoe Bay Resort HN Marriot. Tim Ackermann practices patent, trademark and copyright law at The Ackermann Law Firm. He was Co-Chair of the Publications Committee of the Dallas Bar Association from 2009-2011. He can be contacted at tim@ackermannlaw.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
Jul y 2012
Bar None XXVII Provides Entertainment And Scholarship Funds Lights, camera, action! Bar None XXVII’s cast included more than 50 performers from the legal community. They revealed their on-stage talent, proving that their abilities extend beyond practicing law. “The Girl with the File-Stamp Tattoo” lasted for four nights in June, led by show director Martha Hardwick Hofmeister, choreographer Rhonda Hunter and producer Tom Mighell. Thanks to the Dallas Bar Foundation and these hard-working singers, dancers and actors, more than $1.4 million has been contributed to the Sarah T. Hughes Diversity Scholarships at SMU Dedman School of Law, and benefited 47 law students. For more information, visit www.barnoneshow.com. Photos courtesy Scott Alden
Thank You, Bar None Sponsors!
On behalf of the Sarah T. Hughes Diversity Scholarship, the Dallas Bar Foundation salutes and thanks the following sponsors of Bar None XXVII. Their generous contributions not only benefit the scholarships, but they made this year’s show possible.
Mogul:
Point MultiMedia
Producers:
Sarah T. Hughes Alumni Scholars
Directors:
Baker Botts • DBA Real Property Law Section • Exxon Mobil Corporation • Fulbright & Jaworski, L.L.P. • Merrill Corporation • Shackelford, Melton & McKinley
Stars:
Altrusa International Downtown Dallas, Inc. • Brown & Hofmeister • Burdin Mediations • Carol Crabtree Donovan, P.C. • Leon Carter • Carter Stafford Arnett Hamada Mockler PLLC • Cooper & Scully ,P.C. • Cowles & Thompson, P.C. • Dallas Asian American Bar Association • Dallas Morning News/WFAA • DBA Appellate Law Section • DBA Bankruptcy & Commercial Law Section • DBA Corporate Counsel Section • DBA Mergers & Acquisitions Section • DBA Tort & Insurance Law Section • Al Ellis • Farrow-Gillespie & Heath, LLP • Federal Bar Association, Dallas Chapter • Goranson Bain • Jones Day • Kastl Law, P.C. • Judge Marty Lowy • Rey Rodriguez • Siemens PLM Software • Thompson & Knight, LLP
J ul y 2 0 1 2
Focus
D al l as Bar A ssoci ati on l Headnotes 9
Bankruptcy/Commercial Law
Bankruptcy is Watchdog Friendly By Mary Fran Durham and Lisa L. Lambert
The United States Trustee Program serves as the “watchdog over the bankruptcy process,” H.R. Rep. No. 989, 95th Cong., 2d Sess. at 88 (reprinted in 1978 U.S. Code Congressional & Admin. News at 5787, 5963, 6049). Generally, the United States Trustees (the “U.S. Trustees”) “promote integrity and efficiency in the nation’s bankruptcy system.” United States Trustee Program Mission Statement. To achieve this transparency, the U.S. Trustees’ statutory duties include investigating cases for hidden assets or other abuse, reviewing employment and fees, appointing and overseeing trustees, and overseeing administrative compliance. Each U.S. Trustee is appointed by the Attorney General. Locally, William T. Neary has served as the U.S. Trustee in Region 6, which encompasses the Northern and Eastern Districts of Texas, since 1986. Bankruptcy cases depend on the debtor’s affirmative disclosure of assets and liabilities. The U.S. Trustees may respond to abusive conduct by seeking civil remedies from the bankruptcy court. The U.S. Trustees review chapter 7 liquidation cases to determine whether the case is a substantial abuse because the debtor could repay creditors or otherwise resolve debts. In both chapter 7 liquidation and chapter 13 repayment cases, the U.S. Trustees also evaluate whether the debtor has disclosed all assets and liabilities, has filed multiple cases in violation of the Bankruptcy Code, or has otherwise failed to comply with bankruptcy
requirements. Just as the U.S. Trustees monitor for debtor abuses or errors, the U.S. Trustees monitor creditors’ proofs of claim, motions to lift stay, and other pleadings for accuracy and sufficiency. On February 9, 2012, United States Attorney General Eric Holder cited these efforts when announcing the national foreclosure settlement: “The U.S. Trustees Program . . . was one of the first federal agencies to investigate mortgage servicer abuse of homeowners . . . Trustees reviewed more than 37,000 documents filed by major mortgage servicers in federal bankruptcy court—and took discovery in more than 175 cases across the country.” The efforts to monitor claim accuracy continue. In addition to seeking civil remedies, U.S. Trustees must report to the United States Attorneys if they have “reasonable grounds to believe” that a federal crime has been committed in connection with a bankruptcy case. The national hotline at www.justice. gov/ust/eo/fraud makes it easy to refer bankruptcy fraud to a Trustee’s office. In any type of bankruptcy case, the U.S. Trustees review professionals’ fees. Since bankruptcy filings create an estate like a probate estate or a trust, the Bankruptcy Code requires professionals to be employed and to have their fees approved by the court. The U.S. Trustees have a statutory duty to review employment arrangements and fee requests. In addition to other legal standards for these requests, the U.S. Trustees have promulgated fee guidelines, at www.justice.gov/ust/ eo/rules_regulations/index.htm. (Pro-
posed guideline revisions for large cases are posted at www.justice.gov/ust/eo/ rules_regulations/guidelines/proposed. htm.) To avoid jeopardizing their fees, counsel handling personal injury or other legal issues should assess whether a client’s bankruptcy filing means their ongoing employment requires court approval. In certain types of bankruptcy cases the U.S. Trustees appoint a trustee to administer the bankruptcy estate. The U.S. Trustee selects and oversees panel trustees, who liquidate chapter 7 assets for distribution, and standing trustees, who oversee cases and distribute funds in chapter 13 individual repayment cases and chapter 12 family farmer cases. Trustees are subject to background checks, auditing, and periodic review. While trustees often are attorneys, they are not required to be. Accuracy is also monitored in business cases. When a business entity seeks to reorganize rather than liquidate, it seeks bankruptcy protection under Chapter 11. Absent unusual circumstances, the debtor becomes
a debtor-in-possession, meaning the debtor generally retains control of the estate. The U.S. Trustees conduct initial debtor interviews to go over the debtor’s obligations, including banking, maintaining insurance, working toward reorganization, and preparing monthly operating reports. The Dallas Office of the U. S., Trustee developed a two-hour Monthly Operating Report Workshop for debtors, attorneys, and financial personnel. The schedule for these classes and the U. S. Trustee’s Local Guidelines for Chapter 11 Cases are available at www.justice.gov/ust/ r06/. The U.S. Trustees’ duties are further detailed at the links provided. Education helps to prevent problems, so we encourage you to review the national and local websites for further informa HN tion. Mary Fran Durham is a Trial Attorney with the Office of the U.S. Trustee and Lisa L. Lambert is the Assistant United States Trustee. They can be reached at MaryFrances. Durham@usdoj.gov and Lisa.L.Lambert@usdoj.gov, respectively.
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
Senior Lawyer’s Appreciation Dinner More than 100 lawyers, judges and guests attended the annual Senior Lawyer’s Appreciation Dinner, with Dallas Mayor Mike Rawlings as the keynote speaker. Thank you to these attorneys who helped build the foundation of the Dallas Bar Association.
Jul y 2012
A Primer on Preferences continued from page 1
The ordinary course of business defense may protect creditors who received payments that are either consistent with the historical business relationship or conform to the typical industry standard. Courts consider, among other factors, the length of time of the business relationship, whether the payment at issue conformed to past payment practices, and if the creditor engaged in unusual collection activities. This defense is often met if the preferential payments fall within the typical range of payments from invoice date or according to industry standards.
Practical Advice
When bankruptcy seems imminent, questions may arise for a creditor worried about preferences. Consider: 1. Take the Money: Your client should always accept payment, even when worried it is about to receive a possible preference. Preferential transfers are only voidable under the Bankruptcy Code, not per se void. To be voidable, the transfer must meet all six Section 547 requirements, which is a difficult standard to meet. Finally, the penalty is only to give the money back. 2. Start With a Deposit: A deposit permits a creditor receiving payment to claim that it was partially secured, perhaps avoiding, the requirement that the payment allowed the creditor to receive more than it would have in a Chapter 7 case.
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CANCER bers of the Bar Exclusively protecting mem rly 40 years. and the ir fam ilies for nea
The foregoing should provide you and your client with the basic information regarding preferential payments and, with just a little precaution, a HN defense or two.
Judge Hale has been a bankruptcy judge 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 Justin Light and Conrad Steele, law students at Southern Methodist University.
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3. Go COD: Cash on delivery turns a credit transaction into a substantially contemporaneous exchange so long as the debtor pays at the time the creditor provides the goods or services. 4. Use Broad Contract Terms: Use broad contract terms that permit different types of payment so that any continued payment by the debtor before bankruptcy will be considered in the ordinary course of business. 5. But, Don’t Change Things Too Close to Bankruptcy: The debtor’s payment method close to bankruptcy should not change, because this is arguably outside the normal course of business. The mode of payment should be consistent with past forms of payment. 6. Consider Settling: If the trustee makes a demand for return of the alleged preferential payments, it is often cheaper to respond with defenses and offer a smaller amount to settle instead of saying, “see you in court.”
When your client has been harmed by the negligence of another professional, consider Taylor Dunham. For more information on this area of our practice, visit us online at: www.taylordunham.com Taylor Dunham, LLP ° 301 Congress Avenue, Suite 1050 °Austin, TX 78701° 800.557.5565
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J ul y 2 0 1 2
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Dal l as Bar A ssoci ati on l Headnotes 11
Bankruptcy/Commercial Law
Debt Collection Communication Regulations by Hayden Hodges
Debt collection regulation began as a state issue. In the 1970s, various government agencies collaborated on debt collection abuses, particularly consumer debt collection communications. Accordingly, Congress adopted the Fair Debt Collection Practices Act (“FDCPA”) intending to harmonize consumer debt collection abuse remedies on the federal level. This article surveys those debt collection communication regulations. The FDCPA governs debt collector activities related to consumer transactions and generally defines the following: • A debt is a consumer’s obligation, or alleged obligation, to pay money from a transaction in which the transaction’s subject is primarily for personal, family or household purposes; • A consumer is any natural person obligated, or allegedly obligated, to pay a debt; and • A debt collector is any person or organization using interstate commerce or the mails in any business operating primarily to collect debts owed or asserted to be owed another. Attorneys, however, were expressly exempted as debt collectors by the FDCPA until 1986 when a statutory amendment eliminated the exemption. The United States Supreme Court subsequently held that an attorney is a debt collector if the attorney regularly tries to obtain consumer debt payments to another, even if the attorney’s collection activities are limited solely to litigation. The FDCPA requires debt collectors attempting to collect consumer debts to send the consumer a written validation
notice within five days of their initial communication. Such written notice must contain the following information: i) the debt amount; ii) the creditor’s name; iii) a statement that the debt collector will assume the debt valid unless the consumer, within thirty days after receiving notice, disputes the debt’s validity; iv) a statement that the debt collector will mail the consumer a debt verification and/or a copy of the judgment against the consumer if the consumer notifies the debt collector in writing within the thirty day period that the debt is disputed; and v) a statement that the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor, upon the consumer’s written request within the thirty day period. Debt collectors should consider drafting clear validation notices so that the most unsophisticated consumers can understand them. The FDCPA further requires debt collectors to give a “mini-Miranda” notice in the initial written or oral communication to the consumer. The notice must state that the debt collector is attempting to collect a debt and any information obtained will be used for that purpose. All subsequent communications to the consumer must state that the communication is from a debt collector, but this requirement does not apply to a formal pleading made in connection with a legal action. Remember, debt collection efforts are permissible during the 30-day validation period unless the consumer requests debt verification, at which time the debt collector must cease all debt collection efforts until the consumer receives the
verification. Unless the consumer gives prior consent or a court expressly gives permission, debt collectors may not communicate with i) the consumer if the debt collector knows that the consumer is represented by an attorney and either knows or can readily ascertain that attorney’s name and address, but direct communication from debt collector to consumer is permissible if the attorney fails to respond within a reasonable time or the attorney consents to direct communication with the consumer; ii) the consumer at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer, but a debt collector may assume that communication with the consumer after 8:00 a.m. and before 9:00 p.m. local time for the consumer is convenient; iii) the consumer at the consumer’s place of employment if the debt collector knows or has reason to know that the consumer’s employer prohibits the consumer from receiving such
communication; and iv) any third parties for any reason other than ascertaining the consumer’s location, except for lawful communications with reporting credit agencies. Finally, in the rare event that debt collectors, particularly attorneys, are not aware of the fundamental importance of professionalism, the FDCPA clearly states that debt collectors may not use obscene or profane language, the natural consequences of which are to abuse the consumer. Attorneys beware, you and other debt collectors who violate the FDCPA are subject to liability for i) actual damages; ii) additional damages not exceeding $1,000.00 in the case of an action by an individual; and iii) reasonable attorney’s HN fees and court costs. Hayden Hodges, Assistant General Counsel at National Bankruptcy Services, LLC and Of Counsel at Brice, Vander Linden & Wernick, P.C., handles bankruptcy matters. He can be reached at hhodges@nbsdefaultservices.com.
Modification: In Form & Practice With
A View From the Bench Friday, July 20, noon at Belo. MCLE 1.25, Ethics 0.25 Speakers: Judge Graciela Olvera and Kathleen Turton Presented by DVAP For registration and more information contact reed-brownc@lanwt.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
Jul y 2012
Column Business of Law
“Rainmaking” 101: Tips for Marketing Success by Mary Louise C. Hopson
In my office is a woodblock art print that illustrates visually what all lawyers want when it comes to getting clients. Entitled “The Bountiful Harvest” by New Mexico artist Kris Hotvedt, it features an apple farmer with a basketful of apples on his shoulder. More apples fall down from the tree overhead, all around him, as the sun smiles merrily down in one corner—a perfect picture of abundance and happy prosperity. It looks so easy, I think. If only catching and keeping clients could be so easy! But, in reflecting further, I realize that a lot of planning and hard work went before the farmer began to reap the rewards of the harvest. As with an apple orchard, building a law practice takes hard work. If you are a lawyer wishing to review your marketing efforts with an eye towards increasing your chances of success,
read on to find a few tips that may help, and ask yourself how you might improve your rainmaking ability. Develop a Marketing Mindset and Have a Plan: Know what you have to offer and how you differ from the competition. Identify your best prospects and know how to position yourself to reach them. Develop a strategic approach to business development that you will follow over your career. You are never too busy to think about marketing. Think about promoting your practice constantly and have an organized plan to back you up, one that’s consistent with your firm’s overall goals. Evaluate what’s working and what needs to be changed. Remember the Client’s Perspective: The first rule of addressing client needs is to be a good lawyer first. Stay up to date on your practice area and become an expert. Do a great job for the client. Think about your clients’
needs and how you can fill them, not the other way around. Care about the client. Return phone calls promptly. Look at bills to make sure they are accurate and worded properly. Lawyers are expensive, and many clients would rather not have to be paying law firm bills. Ask for feedback from your clients. Even negative feedback, while tough to hear sometimes, can be very helpful. Prioritize Your Efforts: Be prepared to cross-sell—increase the range of services that your firm provides to an existing client by knowing your colleagues’ expertise. It takes more time and effort to find a new client than it does to cross-sell or retain an existing good client. You will probably find that about 80 percent of your business comes from about 20 percent of your clients. Burnish Your Brand: Be able to describe your work in a short, succinct sentence or two that illustrates the value you provide to your clients in terms people can grasp and understand. Appreciate those who refer clients to you. Keep up with your network. Use Innate Skills: You became a lawyer because you are smart, learn new things easily, are curious, can set goals and work hard, and can communicate well. You are an effective listener, and you can ask good questions. You have
empathy. These qualities can be used in your client development efforts. Use the smarts and skills you already have. If you need to learn new skills, such as feeling comfortable making presentations in front of groups, find ways to practice and learn these new talents to enhance your success. Find what you are good at, learn the rest if necessary, and tap your inner resources. The apple farmer looks happy to have the big basket full of apples on his shoulder, with the additional ones falling all around him. He’s taking care of the apples in his basket (the clients he already has) while catching the other apples (potential clients) that come his way. He’s grateful. He’s having fun, too! What’s in your basket right now? Is it full? Could it be fuller? Are you catching the apples that come your way? Are you looking for more apples, or planting new apple trees? Plan your orchard, plant your trees, nurture them, and be ready for the harvest. Find one thing to do this week to grow your practice. And get ready to HN grab those apples! Mary Louise Hopson is a longtime member and past co-chair of the Publications Committee. She has worked with Dallas attorneys in business development and other support roles for more than 30 years in both corporate and law firm environments. She can be reached at mlhops@sbcglobal.net.
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Dal l as Bar A ssoci ati on l Headnotes 13
Bankruptcy/Commercial Law
An Introduction to Chapter 15 of the Bankruptcy Code by David Bennett, Katie Battaia Clark and Cassandra Ann Sepanik
Chapter 15 of the Bankruptcy Code governs U.S. bankruptcy cases which are “ancillary” to foreign insolvency proceedings. 11 U.S.C. Section 1501(a). It is based on the Model Law on Cross Border Insolvency prepared by the United Nations Commission on International Trade Law and has been crafted to provide for the fair and efficient administration of cross-border insolvencies. A debtor that seeks to facilitate a foreign bankruptcy case may file a petition initiating a Chapter 15 case and seek the assistance of a U.S. court on insolvencyrelated issues.
I.Recognition
In most Chapter 15 cases, a threshold issue will be whether the U.S. bankruptcy court will grant recognition of the foreign bankruptcy case as a “foreign main proceeding.” In order to grant recognition, the U.S. bankruptcy court must determine that (1) the foreign bankruptcy is a foreign main proceeding under Bankruptcy Code section 1502; and (2) the foreign representative applying for recognition is a proper representative of the debtor. 11 U.S.C.Section 1517. A “foreign main proceeding” is a foreign proceeding in the country where the debtor has its center of main interests (COMI). 11 U.S.C. Section 1502(4). Although Chapter 15 does not define COMI, courts generally equate COMI to the debtor’s “principal place of business” under United States law. E.g., In re British Am. Ins. Co., 425 B.R. 884, 909 (Bankr. S.D. Fla. 2010). An entity’s registered office or an individual’s habitual
residence is rebuttably presumed to be the debtor’s COMI. 11 U.S.C. Section 1516(c). A “foreign representative” is defined by section 101(24) to include a person or body appointed or authorized to administer or liquidate the debtor’s assets or affairs. A foreign representative may be appointed by the debtor’s board of directors, and need not be appointed by the foreign court. E.g., In re Bd. of Dirs. of Hopewell Int’l Ins., Inc., 275 B.R. 699, 707 (S.D.N.Y. 2002). Section 101(24) simply requires that such representative be “authorized” to administer the reorganization or the liquidation of the debtor’s assets or affairs or act as a representative of the foreign proceeding in a Chapter 15 case. Recognition, or any act for which recognition is sought, is subject to the “public policy test” of section 1506. A court may refuse recognition “if the action would be manifestly contrary to the public policy of the United States.” 11 U.S.C. Section 1506. However, this exception is narrowly construed and “is intended be invoked only under exceptional circumstances concerning matters of fundamental importance for the United States.” E.g., Lavie v. Ran (In re Ran), 607 F.3d 1017, 1021 (5th Cir. 2010).
II.Impact of Recognition
A Chapter 15 debtor that obtains “recognition” of its foreign insolvency proceeding as a foreign main proceeding, by statute, receives certain of the protections afforded to U.S. debtors under the Bankruptcy Code. Among these protections are (1) the imposition of the automatic stay with respect to actions affecting, among other things, the debtor’s U.S.
business operations; and (2) the ability to continue to operate the debtor’s business in the United States. 11 U.S.C Section 1520. The automatic stay facilitates the foreign insolvency proceeding by, among other things, preventing creditors from taking action against the debtor’s assets in the U.S. and preventing other creditor efforts to interfere with the debtor’s attempt to reorganize under the laws of its home jurisdiction. Chapter 15 recognition also gives U.S. bankruptcy courts the power to provide “additional assistance” to a foreign representative under the Code or other U.S. laws. 11 U.S.C. §§ 1507, 1521. Under section 1507(b), the bankruptcy court must consider several factors, including the standards of international comity, before deciding whether to grant additional assistance. Relief requested by foreign debtors as “additional assistance” under Chapter 15 often includes the ordering of formal discovery or the application of other Bankruptcy Code provisions to the Chapter 15 case. E.g., In re RSM Richter Inc. v. Aguilar (In re
Ephedra Prods. Liab. Litig.), 349 B.R. 333 (S.D.N.Y. 2006). Ultimately, a U.S. bankruptcy court may provide additional assistance to the foreign debtor’s home bankruptcy case by issuing an order enforcing the terms and conditions of an approved foreign reorganization plan or by facilitating the liquidation of the debtor’s assets.
III.Conclusion
With the expansion of international trade and finance, there is an increasing need for a uniform approach to insolvency and cross-border reorganizations. Congress’ adoption of Chapter 15, along with the adoption of similar statutes in foreign jurisdictions, implements a mechanism to facilitate cooperation among courts charged with administering bankruptcy cases across international HN borders.
David Bennett (David.Bennett@tklaw.com) is a Partner at Thompson & Knight and Katie Battaia Clark (Katie.Clark@ tklaw.com ) and Cassandra Ann Sepanik (Cassandra.Sepanik@ tklaw.com) are Associates at the firm.
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14 H e a d n o t e s l D a l l a s B a r A s s o ciation
Jul y 2012
Payment at Your Fingertips!
In the News
July
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Now you can leverage the power of your mobile device without the worries of handling or storing sensitive card data at any time. Get paid anywhere with our new mobile option! • LawPay’s mobile payment option: • Works with your existing account • No additional processing or monthly fees • Eliminate the hassle of manually entering payments • Secure processing- prevents storing and transporting sensitive card and client information • Flexibility- Ability for other staff to help using a secure login • Works with iPhone, iPad or Android If you already process payments through Dallas Bar Association’s member benefit, simply download the ePayments free app at the Apple App Store and Android Market and start accepting payments through your mobile device! In addition, LawPay offers an encrypted mobile attachment allowing you to securely swipe credit cards with your mobile device for additional time savings! To learn more about our mobile pay-
John O’Connor, of Weil, Gotshal & Manges LLP, has been honored by the State Bar of Texas with the Frank J. Scurlock Award for his outstanding pro bono work. ment options, contact us at (866) 3760950 or visit www.LawPay.com/dallasbar!
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CHRISTMAS IN JULY Friday, July 27 ~ 9 a.m. to Noon ~ The Belo Mansion ~
The DBA Community Involvement Committee is coordinating a drive to benefit local charities, including the Austin Street Centre, North Texas Food Bank, Genesis Women’s Shelter and The Family Place. Please bring donated items, including canned foods (tuna, beans, soup) and packaged foods (crackers and granola bars), cleaning supplies, children’s games/toys, diapers, etc. to the Belo Mansion on Friday, July 27. For more information, contact Elaine Mosher at jemmosher@aol.com or Doug Heuvel at doug.heuvel@tklaw.com.
Scott Meyer, of Chalker Flores, LLP, has been selected Membership Chairman of the Intellectual Property Specialized Litigation Group for DRI. Judge Martin Hoffman, of the 68th District Court, has been awarded the “Outstanding Mentor” award by the Dallas Association of Young Lawyers. Justice Douglas S. Lang, of the 5th District Court of Appeals in Dallas, was elected Secretary of the American Inns of Court Foundation to serve from July 2012 through June 2014. Natalie A. Smeltzer and Glenn D. West, of Weil, Gotshal & Manges LLP, have received the 2012 Burton Awards for Legal Achievement for co-authoring one of the nation’s 35 best law firm articles of the past year published in the Nov. 2011 issue of The Business Lawyer. The Burton Awards program is run in association with the Library of Congress. Peter S. Chantilis was posthumously awarded the highest honor given by the Association of Attorney Mediators, the Brutschè Award, which is given to the person(s) personifying the principles of service and commitment to the profession that are the foundation of the ADR movement. Robert M. (Bob) Clark, of Eddleman & Clark, has been elected President of the Dallas Goethe Center, the leading German cultural organization in the city.
Emily A. Parker has been appointed to the Best Lawyers® Advisory Board, an invitation-only group of international leaders from the world’s leading law firms and General Counsel of Fortune 500 and Fortune’s Global 500 companies. Vincent J. Allen, of Carstens & Cahoon, LLP, was selected as the Young Baylor Lawyer of the Year. The award was presented “in recognition of his service to the profession, his selflessness in life and his dedication to the aims and ideals of Baylor Law School.”
MOVE
Austin Champion has joined Klemchuk Kubasta LLP as Associate. Laura Elkind has opened a civil litigation practice, Laura Elkind Law, PLLC, at 306 West Broadway Ave, Fort Worth 76104; Phone: (817) 332-8532. Kate Gaither and Eliot Walker have joined Kane Russell Coleman & Logan PC as Associates. Roger J. Allen, Joseph T. Gorman, Jr., and Sandra G. Wilkinson have joined Johnson & Stephens, P.C. as Of Counsel. Katy Mathews has joined Wick Phillips Gould & Martin, LLP as Associate. Jeff Domen has joined Goranson Bain, PLLC as Shareholder. Gregory L. Vint, of the FDIC Legal Division, is on temporary assignment with the FDIC Office of Complex Financial Institutions. His temporary address is 1310 N. Courthouse Rd, Room 11291B, Arlington, VA 22201.
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Dal l as Bar A ssoci ati on l Headnotes 15
Classifieds
July
OFFICE SPACE
Founders Square spacious office; right between State and Federal courthouses – practically everything you need for solo and/or mediation practice – secretary/ receptionist/bookkeeper; furnished; two conference rooms; Internet/Wi-Fi; kitchen; storage space - $3,250/month. Contact tsimmons@pfloreslaw.com. Litigation firm seeking 7,500 -8,000 s.f. of sublease space on a 3-4 year term. Please contact Paula at (214) 212-4650 or pauladudlo@gmail.com. No Rent Until October! Offices in Preston Tower. Shared amenities (kitchen, conference room, reception area, bathrooms). Near Preston Center, 10 minutes from courthouse. Will consider lease with option to purchase over 3,000 sq. ft. Call (214) 369-1171 or email herbhooks@aol.com. Executive office space for lease in Uptown State Thomas area. Restored Victorian home circa 1886 w/ hardwood floors throughout. Shared conference room. 2619 Hibernia St/ Boll. 1 block from McKinney Avenue. Lawyers preferred. $700 - $800/month. Includes phone & Internet. Phone (214) 987-8240. North Dallas Tollway (Galleria area) office space. Hardwood floors and ornate mahogany paneled walls in common areas. Several offices available in different sizes, all with built-in mahogany secretarial carrel (located in outer office area). All have access to three conference rooms, copier, postage meter, high speed internet, phones and two kitchens. Receptionist services also available. Please call Kim at (972) 934-4100. Unfurnished office space for rent with Uptown family law/business litigation firm. Great location at Cedar Springs and Maple. Two window offices plus an open work-
DO THE MATH.
space. Total of approximately 485 sq. ft. Rent includes underground parking, receptionist, and access to shared kitchen and conference rooms. Postage meter, copier, scanner, and fax also available if needed. Possibility of referral work. Please call (214) 520-7494 or email cfaust@sullivancook.com for details. 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. 1500 square foot office available for sublease in Campbell Centre. Two large window offices, reception, conference room and storage/file rooms. Please contact spalmer@pamlaw.com.
POSITION AVAILABLE
Estate Attorney. Sixty-lawyer general practice Far North Dallas firm seeks attorney with sophisticated estate planning experience (minimum 8 years, but much more experience welcome) to join estate practice group. Outstanding practice environment and opportunity. Email your resume to: estplanningatty@gmail.com. The Bassett Firm has a civil attorney position available. 5+ years’ experience. Other requirements: ready for hard work; no ego. Competitive salaries and benefits. Send resume to nmenchaca@thebassettfirm.com. A growing National Litigation Firm with a mid-sized Dallas office is seeking to further expand its practice and presence in Dallas through the addition of partner-level lateral attorneys with portable business in the following practice areas: Insurance Coverage, Labor & Employment, Commercial Litigation, Professional Liability Defense and Bankruptcy. Only attorneys with substantial six-figures and above in portable business need apply. The firm enjoys multiple Tier 1 ratings in different practice areas by U.S. News & World Report and highly recognized Practice Leaders in various litigation disciplines. The firm is efficiently run with manageable overhead and has excellent administrative support and office space available to accommodate a smooth transition. Please submit your resume to dallaslit@gmail.com. Downtown Dallas AV-Rated Litigation Law Firm seeks experienced lateral partners with portable business in the areas of energy, health care, intellectual property, and commercial litigation. Firm offers excellent office location and support staff. Compensation negotiable. This is an excellent opportunity for attorneys who wish to get away from
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the large law firm environment. Respond to firmjustice2012@gmail.com. Firm Builders Wanted. Ready to be on your own but don’t want the headaches and risk of starting your own firm? Have a great practice but law firm politics aren’t allowing you the compensation you deserve? This AVrated corporate real estate/business law boutique in North Dallas may be your solution. Send cover letter and resume to: Dallas Bar Association, Box 2–12A, 2101 Ross Avenue, Dallas, Texas 75201. Corporate/Transactional Associate – A-V rated downtown Dallas law firm seeks a recent graduate or an attorney with up to 3 years’ experience in corporate and securities matters to focus on mergers/ acquisitions, financial transactions and general corporate practice matters. Candidate must have a strong academic background graduating in the top 10% of law school class. Certified Public Accountant, strong accounting or finance background a plus. Replies to include cover letter, resume and transcript by email or fax to: Email: recruiting@meadowscollier.com; Fax: Attention: Recruiting at (214) 7473732. Estate Planning and Probate Associate – A-V rated downtown Dallas law firm seeks a recent graduate or an attorney with up to 5 years’ experience in estate planning and probate (in estate and financial planning and in dealing with high-net-worth clients). Strong academic background required, graduating in the top 10% of law school class. Masters in tax or estate planning, Certified Public Accountant or finance background a plus. Replies to include cover letter, resume and transcript by email or fax to: Email: recruiting@meadowscollier.com; Fax: Attention: Recruiting at (214) 747-3732.
SERVICES
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 and finance experts can help you with a variety of litigation services. Thomas Roney LLC
serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. troney@thomasroneyllc.com. “We Count.” Lawyer Dictation Service: Let us type your nightmare documents! Appeal—MSJ— brief—or combo of anything else legal. 28 years litigation experience in large and small Dallas firms. Receive a flawless, ready-to-file legal instrument. References provided. More Info: lawyerdictationservice@yahoo.com. Experienced Freelance Paralegals and Legal Assistants for traditional and digital transcription, document management, deposition summaries, drafting pleadings, discovery responses, typing, and more. Smart, economical solution for overflow work, staff shortages, sole practitioners. See www.TNTlegalresources.com for additional information or email info@TNTlegalresources.com. Phone: (972) 495-6272. Translation, interpretation and transcription: Arabic, English and Spanish. Native Arabic speakers with several years of experience providing the above services to various U.S. governmental agencies, private businesses, and commercial enterprises. Contact: ROSE LATY LLC for Translation Services, (972) 931-8002; (830) 734-6602. rosehanna.laty@sbcglobal.net. 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. Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 2229494. dlopez@pulmanlaw.com. PLACE YOUR AD HERE! For affordable classified advertising rates call 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.
DVAP’s Finest Rebecca Tillery
Rebecca Tillery is an associate with KoonsFuller, P.C. Since her graduation from law school in 2007, she has striven to help lowincome families through DVAP. As a dedicated volunteer with DVAP, she represents those in need throughout the year, and also regularly speaks before large law firm groups about the importance of DVAP and the “Nuts and Bolts” of taking on a pro bono family law case. As a young lawyer, she thinks it is incumbent upon her colleagues to make a commitment from the beginning to volunteer their time and expertise to assist those who need legal help the most. Rebecca recently had the chance to represent a young mother in securing protective orders against her violent ex-boyfriend, and the Court later awarded her sole custody of her infant son. Her client’s gratitude and positive outlook knows no bounds, and Rebecca feels like she was able to make a significant difference in her client’s life and safety. Rebecca is looking forward to her next role at DVAP where she will serve as a mentor attorney for a family law appeal. As Rebecca said, “No matter what step of the process you get involved with, helping on pro bono cases is an incredibly rewarding experience and I cherish every one of my pro bono cases.” Thank you for all you do, Rebecca!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
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
Jul y 2012
The Jewish Federation of Greater Dallas wishes to recognize and thank those members of the Cardozo Society who make our community so strong, caring and vibrant.
Anonymous (2) Warren N. Abrams David Adler James Alexander Martin Barenblat Darren Barnett Sheli Barnett Gilian Baron Steven T. Baron Jeffrey M. Becker David Bell Lindsay Bendorf Harold Berman Keefe Bernstein Bruce Bernstien Steven Blasnik Stuart E. Blaugrund Steven R. Block Brian Bloom Alan J. Bogdanow David R. Brickman Royal Brin Barry Brown Craig W. Budner Susie Carp Jeffrey A. Chapman Jacob Cherner Robert Cohan Harlan Cohen Michael Cohen John Cohn Clinton David Calman Donsky Michael W. Dubner Gary D. Eisenstat Stefani Eisenstat Stephen L. Enda Leonard A. Epstein Ari Feinstein Alan D. Feld Daniel Feldman Robert L. Feldman Steven A. Felsenthal Jeffrey R. Fine William B. Finkelstein Bradley Foxman Ronald A. Foxman D. Gilbert Friedlander Jason Friedman Lawrence J. Friedman
David B. Gail Brad Gaswirth Ronald M. Gaswirth Lisa Genecov David Genender Paul R. Genender Toby Gerber Lawrence D. Ginsburg Kenneth R. Glaser David G. Glickman Daniel Gold Barry Golden Jennifer Goldman Lawrence B. Goldstein Robert Goldstein Eric Green Alan N. Greenspan David Greenstone William Gutow Linda Wertheimer Hart Marcy Helfand Lawrence Hochberg Michael Hoffman Robert M. Hoffman Jane Rose Hurst Michael K. Hurst Mark Iola Randall Iola Randall B. Isenberg Jack E. Jacobsen David Judson Michael Kahn Michael L. Kaufman David Kleiman Alan C. Klein Marc Klein Harold Kleinman William S. Kleinman Robert Krakow Rick A. Lacher Carl B. Lee James J. Lee Lew A. Lefko Stephen Lerer Julian Lerner Jeffrey S. Levinger Brian Lidji Richard London Judge Barbara Lynn Ronald Mankoff
Sean Markowitz James Markus Richard D. Massman Alexander More Daniel Morenoff Stuart A. Morse Rory Nerenberg Lisa R. Newman Michael H. Newman David E. Olesky Michael Oster Sarah Pailet Elaine Pearlman Trevor L. Pearlman Alan J. Perkins Joseph Pevsner Eric Pinker Mark Platt Jerome L. Prager Richard Pullman Charles D. Pulman Howard Rachofsky David Radunsky Eliot R. Raffkind Manuel Rajunov Jeffrey Rasansky Jerry Rasansky Richard Reister Marc Richman Clifford J. Risman Richard A. Rohan Paula Romberg Thomas E. Rosen Sheldon Rosenberg Judge Jeff Rosenfield Helene C. & Joe Rudberg Morton A. Rudberg Brian Rutt Jane Saginaw Michael Saslaw Steven A. Schneider Larry Schoenbrun Michael R. Schulman Jessica Schwarz-Zik Scott Seideman Jerry R. Selinger Ben Setnick Howard Shapiro Lauren Shapiro
Todd Shapiro Alan Shor Charles Siegel Jonathon Siegel Mark Siegel Maxel Silverberg Ira Silverman Jeffrey Simon Gregory Singer Mark Solls Mark S. Solomon Martin A. Sosland Marc Stanley Barbara Stein Sheldon Stein Lawrence Steinberg Marc I. Steinberg Arlene Switzer Steinfield Barrett Stern Gary Stolbach Evan D. Stone Jill Tananbaum David Tannenbaum Michael C. Titens Daniel Tobey David Tobin Jay L. Tobin Peggy M. Tobolowsky Josh Ungerman Julie Ungerman Gerald Urbach Robert Velevis Peter Vogel Jenny Walters Craig Weinstein Loren J. Weinstein Carl Weisbrod Ronald Weiss Richard Wilensky Robert Wise Marc Wolens Steve Wolens Lawrence Wolfish Sally Wolfish Melvin Wolovits Harrison Yoss Michael Zientz Jeffrey A. Zlotky As of June 11, 2012
ABOUT THE CARDOZO SOCIETY The Cardozo Society, founded in 1995, is the leadership and programming arm of the Attorneys Division of the Jewish Federation of Greater Dallas. The goal of the society is to serve the Jewish Community and strengthen relationships among Jewish lawyers by promoting community service, tzedekah, education and leadership. Cardozo Society members support the work of the Federation by volunteering their time for worthwhile causes that benefit Jews locally , around the world and especially in Israel and by making a pledge to our community’s annual campaign of $2,000 or more ($1,000 for legal professionals under the age of 40 or over the age of 80). “Freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom.” - Justice Benjamin Cardozo, 1937
www.JewishDallas.org Jewish Federation of Greater Dallas