Dallas Bar Association
HEADNOTES
Focus M&A and Corporate Securities
February 2010 Volume 34 Number 2
DBA presents the 18th Annual MLK Justice Award Staff Report
DBA President Ike Vanden Eykel, Kim Askew, Hon. John Creuzot
T
he Dallas Bar Association’s Martin Luther King, Jr. Justice Award honors an attorney whose life reflects the values and goals set forth by Dr. King and whose achievements inspire the community. This year’s award was presented to Kim Askew, a partner at K&L Gates. Since 1993, the DBA has bestowed the Justice Award on deserving recipients. The luncheon on Monday, January 18, marked the DBA’s 18th Justice Award presentation. Keynote speaker Robert J. Grey, 20042005 ABA president and partner at Hunton & Williams in Virginia, spoke of Dr. King’s dreams DBA Past President Mark Sales, Kim Askew, DBA and visions being President-Elect Barry Sorrels and Greg Taylor fulfilled in the everyday work of attorneys and judges who strive to keep justice at the forefront of our country. The honorable John Creuzot, 2005 recipient of the Justice Award, introduced Ms. Askew and presented her with this year’s award. He said that it is because of Ms. Askew’s excellence, intelligence, hard work and numerous community service activities that she has earned this honor. Ms. Askew is a long-time leader in the State Bar of Texas, the American Bar Association and the DBA. She was the first African-American lawyer to chair the State Bar Board and the ABA Section of ABA 2004-2005 President Robert J. Grey, Kim Askew, Litigation. In her comIke Vanden Eykel continued on page 6
DBA Board Elects Chair and Vice Chair Staff Report
T
he Dallas Bar Association Board of Directors elected Scott M. McElhaney as its 2010 Chair, and Brad C. Weber as Vice Chair, at its annual organizational meeting January 20. Scott McElhaney is a partner with Jackson Walker L.L.P., and is board certified in Labor and Employment Law. Mr. McElhaney has been active in the DBA for a number of years. Among other Committees, he has chaired the Judiciary Committee and Bench Bar Conference Committee. He is the chair of the 20092010 Campaign for Equal Access to Justice and serves on the DBA Community Service Fund Scott McElhaney Board of Directors. He is the Board Advisor for the Labor & Employment Law Section, Co-Board Advisor of the CLE Committee and is a past chair, and current Board Advisor, of the DBA Business Litigation Section. He is a graduate of Harvard Law School. A graduate of the University of Michigan Law School, Brad C. Weber is a partner with Locke Lorde Bissell
& Liddell LLP. He is a co-leader of the Antitrust Litigation Practice group at the firm and is experienced in a variety of arbitration matters and commercial litigation in both state and federal courts. Mr. Weber has served on a number of DBA committees and sections. He has been an active member of the Business
Brad Weber
Litigation Section and Antitrust Section, he is past co-chair of the Judiciary Committee, the Bench Bar Conference Committee and currently Chairs the Bylaws Committee, the Finance Committee and is Co-Chair of the Morris Harrell Professionalism Committee. Mr. Weber is a past president of the Dallas Association continued on page 10
“May I Have My Money Back?”: The Texas Securities Act by J. Mitchell Little
Q
uestion: What could a single mother, a university president, a yoga instructor, a plastic surgeon and a church pastor possibly have in common? “506 Fraud.” In the last two years, each claimed to have been deceived in an investment scheme by someone in the Dallas/Fort Worth area. The State of Texas has a set of investorfriendly securities statutes that can assist in recovering investments on behalf of victims of securities fraud. The Texas Securities Act (TSA), found in the Texas Revised Civil Statutes at Title 19, Article 581, may be referred to as the Texas “Blue Sky Laws,” so named for victims having purchased a piece of nothing more than the proverbial “clear, blue sky.”
All Shapes and Sizes
Securities don’t come only with a capital “S” and aren’t only traded on public exchanges. Along with your basic stocks and bonds, Section 4 of the TSA pulls into its definition of “secu-
Inside
rity” a host of other things, including working interests in oil wells, limited partner units, profit sharing agreements and investment contracts. While alleged victims come from a variety of backgrounds, the North American Securities Administrators Association reports that 28 percent of securities complaints come from senior citizens. As many clients in cases like these may develop dementia or even pass away, reliance would be an impossible hurdle to overcome. Thus, one major advantage of a TSA claim over a basic fraud claim is that justifiable reliance is not an element. Geodyne Energy Income Prod. Partnership I-E v. Newton Corp., 97 S.W.3d 779 (Tex.App.—Dallas 2003, rev’d on other grounds). This makes a TSA cause of action invaluable.
Technically Speaking
An important arrow in the quiver of an attorney trying to recover money on behalf of an investor is an understanding of the causes of action for continued on page 10
High School Mock Trial Volunteers Needed for the State Competition!
3 Weighing the Fraud Exception in Indemnification Provisions 8 The Inaugural of Ike Vanden Eykel 13 Lessons From Recent Insider Trading Cases
Volunteer judges are needed to evaluate teams in the State High School Mock Trial competition at the Crowley Courthouse on: Friday, March 5 n Saturday, March 6 Contact Amy Smith for the exact times at asmith@dallasbar.org if you are available to judge.
2 H e a d n o t e s l D a l l a s B a r A s sociation
Calendar
February Events
FRIDAY, FEBRUARY 5
Belo — “SEC Enforcement Priorities,” Michael King. (MCLE 1.00)*
FEBRUARY 12
North Dallas** — “If You’re Going to the Courthouse, Please File This for Me: Ten Documents Which Must be Filed in the Trial Court to Preserve Error for Appeal” Chad Ruback. Two Lincoln Centre is located at 5420 Lyndon B. Johnson Frwy., Suite 240 Dallas, Texas 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Thank you to our sponsor, Griffith Nixon Davison, P. C. (MCLE 1.00)*
Noon
FEBRUARY 19 Noon
Belo — “Preparing Trial Strategy,” Paul Enriquez and John Galvin. (MCLE 1.00)*
MONDAY, FEBRUARY 1
Noon
Tax Section “Publicity Rights, Taxation and the Power of Testation,” Joshua Tate. (MCLE 1.00)*
TUESDAY, FEBRUARY 2
Noon
Corporate Counsel Section “Preparing for the 2010 Proxy Season— Enhanced Disclosure Requirements and Other Developments,” Jim O’Bannon and Charlie Haag. (MCLE 1.00)*
Tort & Insurance Practice Section “Legends of Trial Practice,” Justice Patrick Higginbotham, Windle Turley, Frank Branson, Mark Werbner, Darrell Keith, Jim Cowles, Bob Mow, John Martin and Kleber Miller. (MCLE Ethics 2.00).
Morris Harrell Professionalism Committee
6 p.m.
DAYL Board of Directors
WEDNESDAY, FEBRUARY 3
Noon
Employee Benefits & Executive Compensation Section “2009 Legislative Roundup,” James Williamson. (MCLE 1.00)*
Lawyer Referral Service Committee
Public Forum Committee
5 p.m.
DAYL Environmental Awareness Committee Bankruptcy & Commercial Law Section “Chapter 11 Confirmation Issues,” E. Paul Keiffer, Louis R. Strubeck, Jr., Patrick J. Neligan, Jr. and William L. Wallander. (MCLE 1.00)*
THURSDAY, FEBRUARY 4
Noon
Construction Law Section “Construction Warranties and Latent Defects in Texas,” Jason Kennedy Thomas. (MCLE 1.00)*
Judiciary Committee
Family Law Section Board
St. Thomas More Society
DVAP CLE Program Landlord/Tenant
DAYL CLE Committee Meeting
FRIDAY, FEBRUARY 5 Noon
Friday Clinic - Belo “SEC Enforcement Priorities,” Michael King. (MCLE 1.00)*
MONDAY, FEBRUARY 8 Noon
Alternative Dispute Resolution Section Topic Not Yet Available
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
FRIDAY CLINICS Noon
February 2010
Real Property Law Section “How to Properly Bury Your Donkey… Dirt Lawyer Ethics,” Gregg Weinberg. (Ethics 1.00)*
Peer Assistance Committee
TUESDAY, FEBRUARY 9 Noon
Business Litigation Section “Media Savvy Litigation in the Internet Age,” David Marguiles. (MCLE 1.00)*
Mergers & Acquisitions Section “M & A Developments in Delaware Law,” Mark Morton. (MCLE 1.00)*
DAYL Equal Access to Justice Committee
6 p.m.
Trial Skills Section “Preparing a Successful Trial Strategy and Making it Work at Trial,” Ladd Hirsch and Paul Malouf. (MCLE 1.00)*
MONDAY, FEBRUARY 15
Noon
Labor & Employment Law Section “Covenants Not to Compete,” Gary Fowler. (MCLE 1.00)*
Transition to Law Practice Program “For the Beginning Lawyer—The Job Search in a Bad Economy.”
DBF Board of Directors
Golf Tournament Committee
TUESDAY, FEBRUARY 16
Summer Law Intern Committee
American Immigration Lawyers Association
6 p.m.
Dallas Hispanic Bar Association
WEDNESDAY, FEBRUARY 24
Noon
Sports & Entertainment Law Section “Legal Issues in the Insurance of Entertainment Events,” James Chippendale. (MCLE 1.00)*
Health Law Section “Ethical Developments in Clinical Research,” Bruce Howell and Bryan Cave. (MCLE 1.00)*
Juvenile Justice Committee Legal Ethics Committee
Noon
Franchise & Distribution Law Section Topic Not Yet Available
International Law Section Topic Not Yet Available
THURSDAY, FEBRUARY 25
DAYL Elder Law Committee
WEDNESDAY, FEBRUARY 17 Noon
Energy Law Section “Assignments and Conveyances,” Robert Thierot and Jana Grauberger. (MCLE 1.00)*
Law Day Committee Pro Bono Activities Committee
DAYL Lunch and Learn CLE on Discovery
Home Project Committee
5:15 p.m.
WEDNESDAY, FEBRUARY 10
DVAP New Lawyer Luncheon
Noon
Criminal Law Section Topic Not Yet Available
Environmental Law Section EPA Perspective on Matters in the Region,” Suzanne Murray. (MCLE 1.00)*
Library Committee
FRIDAY, FEBRUARY 26 9 a.m.
Dallas Volunteer Attorney Program CLE Family Law Nuts & Bolts II Video
Non-Profit Law Study Group
Noon
Intellectual Property Law Section “Copyright/New Media,” Mark Fischer. (MCLE 1.00)*
LegalLine
Media Relations Committee
Federalist Society
DBA Judicial Candidates Forum “Includes candidates for Dallas County’s civil and criminal district courts and Fifth District Court of Appeals” Investiture of Justice Lana Myers
Municipal Justice Bar Association
7:45 a.m.
Dallas Area Real Estate Lawyers Discussion Group
Noon
CLE Committee
Noon
Appellate Law Section Topic Not Yet Available
House Committee
Minority Participation Committee
DAYL Judiciary Committee LegalLine
Dallas Criminal Defense Lawyers Association
3:30 p.m.
5:15 p.m.
Dallas Gay & Lesbian Bar Association
MONDAY, MARCH 1
UPL Subcommittee
THURSDAY, FEBRUARY 11
THURSDAY, FEBRUARY 18
11:30 a.m.
DAYL Barristers for Babies
Noon
Collaborative Law Section “Using a Facilitator in the Collaborative Process,” Mary Ann Kildebeck. (MCLE 1.00)*
FRIDAY, FEBRUARY 19 9 a.m.
Dallas Volunteer Attorney Program CLE Family Law Nuts & Bolts I Video
Publications Committee
Noon
Friday Clinic – Belo “Preparing Trial Strategy,” Paul Enriquez and John Galvin. (MCLE 1.00)*
Dallas Asian American Bar Association
3:30 p.m.
Investiture of Justice Jennifer Balido
6 p.m.
J.L. Turner Legal Association
DAYL Freedom Run Committee
FRIDAY, FEBRUARY 12
Noon
Friday Clinic – North Dallas** “If You’re Going to the Courthouse, Please File This for Me: Ten Documents Which Must be Filed in the Trial Court to Preserve Error for Appeal” Chad Ruback Two Lincoln Centre is located at 5420 Lyndon B. Johnson Frwy., Suite 240 Dallas, Texas 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Thank you to our sponsor, Griffith Nixon Davison, P. C. (MCLE 1.00)*
Government Law Section “Ethical Concerns for Governmental Lawyers,” Christopher Caso. (MCLE 1.00)*
PEARL STREET CONSTRUCTION UPDATE During the month of February, the Pearl/Olive exit on Woodall Rogers will be closing. This project will take approximately four months. TXDOT has posted directions for getting to and from the Arts District during the construction on their Web site at www.thedallasartsdistrict.org/construction.html.
MONDAY, FEBRUARY 22
Noon
Computer Law Section “Update on In re Bilski,” Shubha Ghosh. (MCLE 1.00)*
Securities Section “Ethics in Securities Law,” Marc I. Steinberg. (MCLE 1.00)*
TUESDAY, FEBRUARY 23
Noon
Probate, Trusts & Estates Section “Estate Administration, Unfunded Testamentary Trust and Other Thorny Issues,” Mickey R. Davis. (MCLE 1.00)*
Courthouse Committee
Noon
Tax Section Topic Not Yet Available
Transition to Law Practice Program “For the Beginning Lawyer—Starting a Law Practice.” (MCLE 1.00)*
Peer Assistance Committee
TUESDAY, MARCH 2 Noon
Corporate Counsel Section Topic Not Yet Available
Tort and Insurance Practice Section Topic Not Yet Available
Morris Harrell Professionalism Committee
WEDNESDAY, MARCH 3 Noon
Employee Benefits/Executive Compensation Section Topic Not Yet Available
Solo & Small Firm Section Topic Not Yet Available
Legal Ethics Committee
SAVE THE DATE: FAMILY LAW NUTS & BOLTS VIDEO CLE If you were unable to attend the live CLE presentation last fall, please plan to attend the video presentation.
FEBRUARY 19 & 26, 2010 • 9 a.m. – Noon at The Belo Pavilion CLE 3.00 • 1.00 Ethics per day Topics covered include recent legislative changes in family law, prove-ups, mediation, orders preparation, filing, information on domestic violence and child support. The CLE also includes role plays of the client/attorney interview, a Prove-up Hearing and a Panel of Family District Court Judges.
For more information and to receive a registration form, contact Alicia Perkins at perkinsa@lanwt.org, or call Chris Reed-Brown at (214) 243-2243.
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 KTarangioli@dallasbar.org.
Fe b ru a ry 2 0 1 0
Focus
Dal l as Bar A ssoci ati on l Headnotes 3
M&A and Corporate Securities
Weighing the Fraud Exception in Indemnification Provisions
T
he fraud exception to the “sole remedy” provision in a contractual indemnification provision is among the least understood deal points in mergers and acquisitions transactions. A sole remedy provision establishes those indemnification provisions as the sole available remedy for breach of a representation and warranty. If the parties include a fraud exception, however, fraud committed by the breaching party remains fully actionable. For the unwary practitioner, including a fraud exception can result in a host of unintended (and potentially catastrophic) consequences.
Fraud: Not Just “Lying”
Public Policy
Practitioners should also be aware that courts in some jurisdictions may read a fraud exception into the agreement as a matter of public policy. For example, a recent case held that Delaware public policy prohibited the parties to a stock purchase agreement from enforcing indemnifications provisions that limited an injured party’s remedies for intentional misrepresentations. ABRY Partners V. L.P. v. F&W Acquisition LLC, 891 A.2d 1032, 1064 (Del. Ch. 2006). Although Texas has not addressed this question, the influence of Delaware jurisprudence in Texas cases involving corporations should put practitioners on notice that Texas courts may follow Delaware if confronted with similar factual circumstances.
You Are Invited: Judicial Investitures Justice Jennifer Balido—203rd District Court Thursday, February 11 | 3:30 p.m. in Belo Hall Justice Lana Myers—Fifth District Court of Appeals Friday, February 26 | 3:30 p.m. in Belo Hall Reception to follow both investitures.
Ted M. Akin ) 4,000+ cases mediated ) Full-Time Mediator since 1989 ) 90%+ settlement rate ) 35 years of judicial experience ) Justice retired 5th Court of Appeals
3023 Hester Avenue Dallas, Texas 75205-3525 (214) 821-6370 www.judgeakin.com
Allocating Liability
In many merger and acquisition transactions, the party making the representations and warranties is not the party receiving the transaction consideration. Here, the fraud exception muddies the question of ultimate responsibility when fraud is established. The Delaware court in ABRY grappled directly grappled with this question, holding that if Delaware public policy is satisfied, the contractual provisions of the parties will control. This persuasive guidance gives an additional reason for deal lawyers to exercise special caution when drafting a fraud exception provision.
Drafting Considerations
Including the fraud exception in a sole remedy provision may capture multiple types of conduct and result in draconian remedies. Thus, practitioners who intend to merely except “lying” should consider either limit-
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ing the definition of fraud exclusively to “intentional misrepresentations,” or perhaps omitting the fraud exception altogether. Although some courts have held that public policy prohibits parties from limiting remedies for intentional misrepresentations, courts have otherwise generally upheld the right of buyers and sellers to contract freely concerning the consequences of breached representations and warranties. Similarly, practitioners should consider tailoring the application of the fraud exception to the particular party responsible for the breach. When negotiating the fraud exception to a sole remedy provision, watch your language; otherwise the deal you think you memorialized may turn out surprisingly different in litigation. HN
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Not limited narrowly to “lying,” fraud can encompass statements a party does not definitely know are true, as well as omissions. In Texas the elements of common law or “actual” fraud are a material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of the truth, which was intended to be acted upon, which was relied upon, and which caused injury. Although Texas generally limits fraud claims to positive misrepresentations, “fraud by omission” can arise from the failure to make a complete and truthful disclosure if there is a duty to disclose information. That duty may arise where there is a confidential or fiduciary relationship, if one party voluntarily discloses information that gives rise to a duty to disclose the whole truth, or when one party makes a representation that gives rise to the duty to disclose newly acquired information.
In Texas, the fraud exception can also give rise to causes of action for negligent misrepresentation, constructive fraud, and statutory fraud in real estate and stock transactions. The remedies for fraud are substantial. Plaintiffs may recover actual damages, including economic damages, repair costs and damages for mental anguish. Exemplary damages are also available, although the standard of proof is higher. In lieu of monetary damages, a plaintiff may elect equitable remedies, including reformation or rescission of the contract. Few sellers would bargain for the prospect of an aggrieved buyer recovering damages in excess of the original purchase price or having a “put right” on account of a breached representation and warranty. Including the fraud exception in a sole remedy provision makes these outcomes dangerously real possibilities.
Law F ir
By Christopher D. Kratovil and D. Joseph Meister
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Support the DBA Home Project Help us reach our goal of $60,000 to build our 19th house for Habitat for Humanity. For more information, contact Co-Chair Scott Conrad (sconrad@settlepou.com, 214-520-3300) or David Diaz (ddiaz@kbdtexas.com, 214-521-8800). Make checks payable to Dallas Area Habitat for Humanity and mail donations: c/o Teddi Rivas, Dallas Bar Association, 2101 Ross Avenue, Dallas, TX 75201
To donate, log on to www.dbahp.com.
4 H e a d n o t e s l D a l l a s B a r A s sociation
February 2010
Headnotes
President's Column
Published by: DALLAS BAR ASSOCIATION
Team DBA by ike vanden eykel
Inaugural Address given on January 23, 2010.
A
s we enter into the second decade of the 21st Century, it is with a profound sense of humility and reverence that I accept the responsibilities as the 101st President of the Dallas Bar Association. It is with great pride that I welcome you into our home—The Belo Mansion. May this evening be the start of a positive tradition at the Dallas Bar, and I hope you enjoy your evening of festivities. The DBA is the most significant and accomplished bar association in our great country. We have a proud past and together we can continue the great legacy of this organization. It is a legacy forged by the teamwork of major players in our civic life, a dedicated staff, relevant and successful programming and the greatest bar association facility in the country. And so, my theme for 2010 is TEAM DBA! To stand here in our great Pavilion before this group of distinguished guests in this great city is an honor of epic proportions. We have been blessed with visionary leadership in the past that has enabled this organization to attain many strategic, lofty goals and set the gold standard for other bar associations across this great state and our nation. Tonight is truly a time for Dallas pride! We have worked hard to get where we are today and we will match our winning record with anyone! Tonight is a night of celebration. A celebration of where we have been, a celebration of where we are today, and a celebration of where we are going in the future. I want to recognize and pay homage to an outstanding leader in the long standing tradition of DBA Presidents. We were fortunate in 2009 to have a President with vision, tenacity and insight who led this organization with competence, grace and dignity. Ladies and gentlemen please join me in honoring our 2009 Dallas Bar Association President—Christina Melton Crain. Christina helped the Dallas Bar climb to new heights while illuminating the continuing needs of our community. She has been a tireless advocate for the mentoring of the youth of our city with special emphasis on the children of imprisoned parents through a partnership with Big Brothers & Big Sisters called the Amachi Program. Christina—you have brought honor and recognition to the DBA in many ways and continued the unrivaled success of the Dallas Bar Association. We salute you! The Dallas Bar has been blessed in past years with leaders who were not content to rest on the successes of our organization. These individuals were intent on making something happen—they had the guts and strength of character to push this association to new frontiers without being held back by any fear of failure. On the wall in my office I have framed a quote from President Theodore Roosevelt that has challenged me in years past and that speaks to the courage and commitment of our fine leaders of this Bar Association: “It is not the critic who counts, not the man who points out how the strong man stumbled, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena; whose face is marred by dust and sweat and blood; who strives valiantly; who errs and comes short again and again; who knows the great enthusiasms, the great devotions and spends himself in a high achievement; and who, at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who know neither victory or defeat.” In 1978, our Bar was led by such a doer of deeds who was able to look into the future and know that he wanted the DBA to be part of it. This person spearheaded the purchase of the Belo Mansion with the idea that it could be turned into our headquarters in the middle of what at that time was a series of car dealerships, as well as muffler and repair shops. The bleak conditions in this part of our city in 1978 that were apparent on the surface did not deter the DBA leadership team and now we are proud to be part of the Dallas Arts District because of the vision of that leadership. Tonight the Belo Mansion is a proud symbol of our strength and success. I am honored to salute Bob Thomas, 1978 Dallas Bar Association President, for his courage and vision! In 1994, the poor and less fortunate of Dallas were in need of better access to our legal system. The Dallas Bar in 1994 was blessed to have a leader who was not content with
the status quo but rather had the courage and conviction to create our Campaign For Equal Access to Justice as a way to better serve our community. He approached six firms with the novel idea of asking them to donate $10,000 each to underwrite his project. I am proud that our firm was one of the original six and that we got on the bandwagon to help the poor and needy of our community have their rightful access to our legal system. I am proud that the Dallas Bar Association was there to help and show the way for the rest of the state. That program through 2009 has raised more than $4.3 million to help provide legal representation for the needy of our city. The Dallas Bar Association is the symbol of success in our support of legal aid and helping those less fortunate than ourselves. Tonight we salute our 1994 Dallas Bar President, Peter Vogel, for his tenacity, vision and leadership. In 1999 our organization was faced with the reality that we had outgrown the Belo Mansion as it stood at that time. Over the next two years, our leadership had the strength and vision to develop a plan that was thought by many to be foolish and impractical. That did not stop Team DBA from creating the Raise The Bar Campaign with the idea of adding an addition to the Belo Mansion. Timing is everything and the campaign was launched right before 9/11 but that did not stop the efforts of our Bar and the Campaign that raised over $14 million to build this beautiful pavilion to serve the growing needs of our membership. Here we are tonight because we had leadership with the strength of conviction and the courage to succeed. Please join me in saluting 1999 Dallas Bar President Bob Jordan and 2000 President Mike Baggett for their boundless service to the Dallas Bar. I would be remiss in failing to recognize the continued leadership of three Past Presidents who were instrumental in the completion of the construction of the Pavilion. Hard hats were a part of their daily wardrobe during their terms as President of this organization. We salute Nancy Thomas, Mark Shank and Brian Melton for their vital contribution to our success. Since ground was broken on the Pavilion to this very day there are many to thank for the continued success and grandeur of our facilities here at the Belo Mansion. But there are two unsung heroes who have toiled on behalf of our Bar to ensure that the Belo Mansion and everything associated with our headquarters is first class and operating at maximum efficiency. Nothing gets by these individuals and they know how everything in this place works. They treat this facility as if it truly is their home. Without their efforts, our facility would not stand as it does today as a beacon of unrivaled success. Tonight we recognize and salute our Belo Heroes—Rob Roby and Nick LaBranche! We have been blessed with great leadership and success in the past, but we cannot and will not rest on our past accomplishments. We have miles to go before we sleep! One of the cornerstones of my law firm is: “Doing nothing is only acceptable if it is a conscious decision.” Another principle I believe in and live by: To whom much is given much is expected. There is no doubt that those in attendance here tonight and our membership as an association have been fortunate and it is imperative that we look to the future to insure that we can continue to deliver the much needed services to our members and to the citizens in need in this city. When you become President of the DBA, you owe a debt of gratitude to the Team DBA members who came before you, but you owe even more to those who will follow you. Tonight I announce the formation of the VISION 2020 COMMISSION. The directive and mandate to this group of DBA members is to take on the challenge of looking 10 years into the future to help determine what we can do now so we will be prepared for what may lie ahead for us as a Bar Association in the year 2020. To remain relevant, doing nothing is unacceptable. I am appointing Jerry Alexander to chair the Vision 2020 Commission and I ask Kim Askew and Rob Crain to serve as Co Chairs of the group. We will be announcing other appointments to the commission, which will include attorneys from every age group of the bar so that we can get input from all of our members, as well as other bars and organizations around the country. I ask this Commission to utilize all available resources to determine what needs to be done so that the Dallas Bar Association is relevant and vibrant in the year 2020! We have reached a point of strategic importance to the life of this organization. It’s one of those times when we can productively look backward and forward at the same time. I will ask the Commission to report to the Dallas Bar Board in November of this continued on page 9
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: Ike Vanden Eykel President-Elect: Barry Sorrels First Vice President: Paul K. Stafford Second Vice President: Sally Crawford Secretary-Treasurer: Wesley Young Immediate Past President: Christina Melton Crain Directors: Scott M. McElhaney (Chair), Brad C. Weber (Vice Chair), Jerry C. Alexander, Hon. Jane J. Boyle (At Large), Wm. Frank Carroll, E. Leon Carter, Rob Crain, Jennifer Edgeworth (President, Dallas Association of Young Lawyers), Laura Benitez Geisler, Michael K. Hurst, Hon. Marty Lowy, Michele Wong Krause, Karen McCloud (President, J.L. Turner Legal Association), Jose Ortiz (President, Dallas Hispanic Bar Association), Mary L. Scott, Hope Shimabuku (President, Dallas Asian American Bar Association), Scott P. Stolley (At Large), Diane M. Sumoski, Debra K. Thomas and Michelle Wong Krause. Advisory Directors: Penny Brobst Blackwell (PresidentElect, Dallas Association of Young Lawyers), Eric Blue (President-Elect, J.L. Turner Legal Association), Eunice Kim Nakamura (President-Elect, Dallas Asian American Bar Association) and Hon. Teresa Guerra Snelson (President-Elect, Dallas Hispanic Bar Association). Delegates, American Bar Association: Kim J. Askew, Hon. Douglas S. Lang Directors, State Bar of Texas: Talmage Boston, Beverly B. Godbey, Timothy W. Mountz, Robert R. Roby, Mark K. Sales HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications / Media Director & Headnotes Editor: Jessica D. Smith Calendar: Kathryn Zack In the News: Judi Smalling Art Director: Laura E. Heymann Advertising: Karla Howes PUBLICATIONS COMMITTEE Co-Chairs: Vincent J. Allen, Timothy G. Ackermann and Suzanne Raggio Westerheim Vice-Chairs: Lea N. Clinton, Paul R. Clevenger Members: H. Joseph Acosta, Natalie L. Arbaugh, Wesley J. Bailey, Heather J. Barbieri, Vance L. Beagles, Eric Blue, Barbara Boudreaux, Quentin Brogdon, Lance E. Caughfield, Pat Driscoll, Dawn E. Fowler, Floyd R. Hartley Jr., John Thomas Hayes, Paul W. Herring, Arshil A. Kabani, Mike Keliher, Jamie McKey, Elizabeth Jo McShan, Thomas L. Mighell, Mitchell S. Milby, Clay Miller, Jennifer Mitchell, Hon. Jim Moseley, Sonia Navia, Heather Bailey New, Jenna P. Page, Kirk Pittard, Irina B. Plumlee, Laura Anne Pohli, Robert D. Ramage, Andrew Baxter Ryan, Gregory W. Sampson, Steven D. Sanfelippo, Barry Sorrels, Paul K. Stafford, Scott B. Stahl, Amy E. Stewart, Sherry L. Talton, Debra K. Thomas, Ike Vanden Eykel, Peter S. Vogel, Thomas Williams, Courtney Willis, Elizabeth A. Wilson, Sarah Q. Wirskye. DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications / Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Coordinator: Rhonda Thornton Executive Assistant: Michelle Dilda Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Amy E. Smith Membership Coordinator: Kimberly Watson Projects & Communications Assistant: Kathryn Zack Publications Assistant: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Lakeshia McMillan, Andrew Musquiz, Jigna Gosal, Tina Douglas. Data Entry/Office Support: Patsy Quinn Copyright Dallas Bar Association 2010. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Associationís sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
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Meet the DVAP Staff
The Dallas Volunteer Attorney Program is a joint program of the Dallas Bar Association and Legal Aid of NorthWest Texas. Providing free civil legal services to low-income residents of Dallas County, the DVAP staff recruits, trains and supports hundreds of volunteer attorneys who donated more than 40,000 hours in the last calendar year. We invite you to meet the DVAP staff here. the operations of DVAP and the DBA Lawyer Referral Service.
Michelle Alden, Managing Attorney (214) 243- 2234 aldenm@lanwt.org Michelle joined DVAP in 2007. She is responsible for the day-today management of DVAP and works closely with the management teams of both Legal Aid and the Dallas Bar Association.
ALDEN
Torsha McCarty, Paralegal (214) 243-2260 mccartyt@lanwt.org MCCARTY
Whitney Breheny, Paralegal (214) 243-2238 brehenyw@lanwt.org Whitney joined DVAP in 1999 and handles all referrals of client cases to volunteer attorneys. She also serves as a contact person for lawyers who need assistance on their cases.
BREHENY
DOUGLAS
MCMILLAN
GOSAL
MUSQUIZ
HERNANDEZ
Andrew joined DVAP in 2001. He coordinates the West Dallas Clinic and the Pro Se Clinic for Spanish-speaking clients.
Alicia Perkins, Paralegal perkinsa@lanwt.org
PERKINS
Alicia joined DVAP in 2009. She assists with the South Dallas Clinic and helps plan and coordinate trainings and recruiting events.
Ellie Pope, Legal Secretary (214) 243-2236 pope@lanwt.org
Alicia Hernandez, Director (214) 220-7499 ahernandez@dallasbar.org Alicia joined the DBA in 2001 and splits her time between the DBA and DVAP. She oversees
Lakeshia joined DVAP in 2005. She staffs the Neighborhood Legal Clinics with volunteers, coordinates the Garland Legal Clinic, and handles the Pro Se Divorce Clinic for cases without children involved.
Andrew Musquiz, Paralegal (214) 243-2239 musquiza@lanwt.org
Jigna Gosal, Paralegal (214) 243-2247 gosalj@lanwt.org Jigna joined DVAP in 2007. She is responsible for the South Dallas Legal Clinic, coordinating monthly Wills Clinics, and managing all bankruptcy and landlord-tenant cases from the Housing Crisis Center’s workshops.
Torsha joined DVAP in 2009. She is responsible for the cases which are referred to DVAP from Legal Aid as well as case management.
Patsy joined DVAP in 2008. She is responsible for all data entry and statistical reporting for the program. She also assists on other projects as needed. QUINN
Lakeshia McMillan, Paralegal (214) 243-2245 mcmillanl@lanwt.org
Tina Weaver Douglas, Paralegal (214) 243-2241 douglast@lanwt.org Tina joined DVAP in 2000. She is responsible for coordinating the Pro Se Clinic for cases with children involved, including DVAP’s monthly prove up clinic.
Patsy Quinn, Office Support (214) 243-2242 quinnp@lanwt.org
POPE
IRS REPRESENTATION
Ellie joined DVAP in 2008. She is legal secretary to Michelle Alden, Kristen Salas, and Katherine Saldana.
REED-BROWN
Chris Reed-Brown, Recruiter (214) 243-2243 reed-brownc@lanwt.org Chris joined the DVAP staff in 1996. She recruits lawyers for DVAP by conducting monthly luncheons, coordinating DVAP’s monthly CLE training programs, and planning recruiting programs for local law firms.
Kristen Salas, Mentor Attorney (214) 243-2237 salask@lanwt.org
SALAS
Kristen joined the DVAP staff in 2008. She is an attorney who mentors volunteer attorneys on their pro bono cases by providing advice, help with pleadings, and assistance in court as needed.
Katherine Saldana, Mentor Attorney (214) 243-2235 saldanak@lanwt.org Katherine joined the DVAP SALDANA staff in 2007. She is an attorney who mentors volunteer attorneys on their pro bono cases by providing advice, help with pleadings, and assistance in court as needed.
The Dallas Volunteer Attorney Program’s vision is to create a pro bono program through which all Dallas attorneys provide legal services to the poor and ensure equal access to justice. For more information, log on to www.dallasbar.org/dvap.
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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 sociation
February 2010
DBA presents the 18th Annual MLK Justice Award every day by being an attorney who fights for equality for all. She thanked ments, Ms. Askew said she believes the members of the Dallas Bar AssoDr. King’s message is about service to ciation, the partners and attorneys at others, and that she is living the dream K&L Gates and her extended family. During the luncheon, guests also enjoyed a musical performance by Kerry Brinkley & The Praise Factory, an inspirational reading by Alexandra Ray, SMU Dedman School of Law Hughes Fellow and an oratory presentation by Courtnie Ivey, Gardere MLK Oratory Competition fifth grader at R.L. Thornton Elementary. The event was cosponsored by the DBA, Dallas Asian American Bar Association, Dallas SMU Dedman School of Law Hughes Fellow Alexandra Ray, Au- Hispanic Bar Associadrey Moorehead and DBA First Vice President Paul K. Stafford tion, J.L. Turner Legal continued from page 1
Association, Dallas Association of Young Lawyers, Dallas Women Lawyers Association and the DBA Community Involvement Committee. HN
“Injustice anywhere is a threat to justice everywhere.” — Dr. Martin Luther King, Jr. in a letter from Birmingham jail, April 16, 1963
DBA Past President and 2007 MLK Justice Award winner Rhonda Hunter and 2010 MLK Justice Award winner Kim Askew
Shifting Litigation Risk By Offer Of Settlement By Warren Westberg
I
n both federal and state courts, various forms of alternative dispute resolution are strongly encouraged, if not mandated. Additionally, many clients prefer to settle claims before entering the more intense stages of litigation. Texas state courts provide for the use of a strategic “Offer of Settlement” procedure that is comparable to an “Offer of Judgment” under Rule 68 of the Federal Rules of Civil Procedure. Both mechanisms promote a cost-effective, non-litigious resolution of cases. Both can also be used as a tool to manage risk and force a more favorable outcome through settlement or trial. When used correctly, the Texas procedure can be a particularly effective way to apply pressure to an opponent with real “dollars and cents” risk for not settling. In 2003, the Texas legislature, as part of tort reform, enacted a new “Offer of Settlement” statute found at Chapter 42 of the Texas Civil Practice and Remedies Code. The Supreme Court then adopted Rule 167 of the Texas Rules of Civil Procedure to establish the process for making a formal Offer of Settlement. The process substantially tracks the Offer of Judgment rule that has existed in federal courts for many years. However, it differs in the nature and extent of the settlement incentives it provides. For example, under the Federal Rule, a plaintiff can be ordered to pay “costs” incurred after the offer was made if the plaintiff does not accept the offer and ultimately wins a less favorable judgment. “Costs” under the Federal Rules, includes such things as filings fees, witness fees, court reporter fees, compensation of court appointed experts and other miscellaneous fees taxable under 28 U.S.C. § 1920. Unlike the Texas Rule, it generally does not include attor-
ney’s fees unless there is an applicable underlying statute that defines costs to include attorney’s fees. Under the Texas procedure, to invoke the process a defendant must file a Rule 167 declaration at least 45 days prior to trial. The offer must be in writing, state that it is made under Rule 167 and Chapter 42 of the CPRC, identify the party or parties to whom the offer applies, state the terms by which all monetary claims may be settled, state a deadline for acceptance that is at least 14 days after the offer is served, and be served on all parties to whom the offer is made. Interestingly, only a defendant can invoke the process but it can be used by any party thereafter. The teeth of the Texas process are found in Rule 167.4, entitled, “Awarding Litigation Costs.” The rule states that if a settlement offer is rejected and the judgment to be awarded on the monetary claims covered by the offer is “significantly less favorable,” the court must award litigation costs from the time the offer was rejected to the time of judgment. “Significantly less favorable” is defined as a judgment less than 80 percent of an offer made to a claimant, and a judgment more than 120 percent of an offer made to a defendant. Importantly, litigation costs awarded to a defendant must be made a setoff to the claimant’s judgment. Additionally, invoking the offer of settlement process does not prevent a party from making additional offers outside the process. Those offers simply cannot be the basis for an award of litigation costs. While both the Texas Rule and the Federal Rule encourage early settlements by shifting costs to a party that rejects a fair settlement offer, the Texas Rule can be more powerful because it provides a way to shift reasonable attorney’s fees,
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thereby giving a party the ability to shift significantly more risk than under the Federal Rule. Further, if a party is entitled to recover litigation costs under another law, but rejects a Rule 167 settlement offer which results in litigation costs being imposed, then that party cannot recover under the other law the litigation costs it incurred after rejecting the offer. Thus, the Texas procedure gives parties incentive to make fair offers by providing a mechanism to shift their own costs while at the same time lim-
iting the opposition’s ability to recover costs. Conversely, the rule gives parties incentive to carefully consider any Rule 167 offer because rejection of a fair offer may result in a party losing the ability to recover some of their own costs, as well as the added risk of potentially paying costs of the other side. HN Warren Westberg is a trial lawyer with Passman & Jones. He also acts in the capacity of general corporate counsel for small businesses and non-profit organizations. He can be contacted at westbergw@passmanjones.com.
DBA Judicial Candidates Forum Friday, Feb. 26 at noon at The Belo Includes candidates for Dallas County’s civil and criminal district courts and Fifth District Court of Appeals. Co-sponsored by the DBA Judiciary Committee, Dallas Asian American Bar Association, Dallas Hispanic Bar Association and the J.L. Turner Legal Association. RSVP to KZack@dallasbar.org.
For the Beginning Lawyer: The Job Search in a Bad Economy Monday, February 15, Noon to 1:00 p.m. at The Belo AND For the Beginning Lawyer: Starting a Law Practice (MCLE 1.00) Monday, March 1, Noon to 1:00 p.m. at The Belo
Listing cost: $25.00
The DBA Transition to Law Practice Program will present two CLE programs on February 15 and March 1 at noon at The Belo. Both programs are designed for lawyers licensed less than three years only and are intended to address what new lawyers can do to find employment and practice law in today’s tough economy.
For more information and an order form, contact Judi Smalling at JSmalling@dallasbar.org or (214) 220-7452.
For more information, contact Alicia Hernandez at ahernandez@dallasbar.org or 214-220-7499.
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Focus
Dal l as Bar A ssoci ati on l Headnotes 7
M&A and Corporate Securities
Negotiating Indemnification Provisions in the Sale of a Business By Richard Rafferty
F
or many sellers of businesses, particularly sellers of family-owned or other privately-held businesses, the sale of the business might be their first experience in dealing with a complex purchase and sale agreement. This article is a basic overview of issues sellers should consider in negotiating the indemnification provisions in such an agreement. When a business is sold, seller makes representations and warranties to buyer regarding the business. For example, seller may represent that “there are no lawsuits pending or threatened against the business.” Other topics typically covered include ownership of assets, the accuracy of the business’ financial records, the business’s compliance with laws, and payment of taxes by the business. Indemnity involves an agreement by one party to secure the other party against loss. Indemnity provisions in a purchase and sale contract provide that seller will reimburse buyer for any losses suffered by buyer if a representation or warranty is not true. For example, if there is a pending lawsuit, seller would have to cover buyer’s losses related to that lawsuit.
If seller is unable to make a clean representation, then seller provides a schedule of items that are exceptions to the representation. Using the “no litigation” representation above as an example, the representation would be modified to read “except as set forth on the attached Litigation Schedule, there are no lawsuits pending or threatened against the business.” Seller would then list on the Litigation Schedule all lawsuits pending against the business. Because the lawsuits are listed on the Litigation Schedule, seller will not be in breach of the representation and warranty. However, listing an exception to a representation on an exception schedule does not terminate the negotiations regarding which party should bear the risk of loss associated with that item. A typical indemnification provision will provide for line item indemnification for certain items listed on the various exception schedules if the parties negotiate that seller should rightfully bear the risk of loss associated with the listed items. The proper allocation of risk between buyer and seller is the primary negotiation point with respect to drafting indemnification provisions in a purchase and sale contract.
Sellers will often try to include qualifiers in the representations and warranties in order to shift some of the risk to buyer. Two typical qualifications are knowledge (i.e., “to seller’s knowledge, there is no pending or threatened litigation against the business”) and materiality (i.e., “there is no material litigation pending or threatened against the business”). The effects of these qualifiers are that buyer bears the risk, respectively, of items of which seller was unaware or which are immaterial to the business. Another typical negotiation point is the existence and size of any cap on the amount of indemnification from seller. If there is a cap on seller’s indemnification obligations, buyer bears the risk of any losses in excess of the cap. The parties may negotiate that specific types of claims, such as fraud or specific items included on the exception schedules, are excluded from the cap and remain seller’s responsibility. Another typical feature of indemnification provisions is a basket. A basket is a dollar amount of losses that must be suffered by buyer before buyer can seek recovery from seller. Two typical variations are a deductible, where buyer bears the cost of the
deductible, and a first dollar basket or “tipping basket,” which provides that once the basket limit has been reached, seller pays all losses, including losses for items in the basket. Certain specific items may be excluded from the basket and remain fully the responsibility of seller. A seller will not want its indemnity obligations to last indefinitely. Indemnification provisions typically contain a time limit for a buyer to assert indemnification claims. Again, as is typical with most indemnification deal terms, the time period for asserting claims is subject to intense negotiation and specified exceptions. The indemnification provisions are often the most heavily negotiated provisions of a purchase and sale contract and can spark hours of lively debate amongst the lawyers for buyer and seller. Accordingly, sellers of businesses should make sure that they fully understand how the particular indemnification provisions in any proposed purchase and sale contract operate and give the proper amount of attention to negotiating those provisions. HN
Richard Rafferty is a partner at Strasburger & Price, LLP, and a member of the firm’s Corporate/Securities Section.
Trial Legends
DBA Summer Law Intern Program Employers Wanted!
February 2 | Noon to 2 p.m. | The Belo | MCLE Ethics: 2 hours
Employ a bright Dallas ISD senior student and give them the experience of a lifetime! We interview and train them; you guide and direct them through the summer. No task is too small.
The DBA Tort and Insurance Practice Section will sponsor a program honoring eight local trial lawyer legends, who will participate in a panel presentation moderated by Judge Patrick Higginbotham. The panel will feature trial legends, Frank Branson, Jim Cowles, Darrell Keith, John Martin, Kleber Miller, Bob Mow, Windle Turley and Mark Werbner.
Program runs mid-June to early-August (8 weeks). Since 1994, more than 400 students have benefited from this program! For more info, visit www.dallasbar.org/summerlawinternprogram or contact Amy Smith at asmith@dallasbar.org
The program will be conducted in a war story format featuring what to focus on during the case preparation process; presenting merits of the case effectively; how to prepare cases; and what makes lawyers influential in trial by describing personal experiences during the discovery phase or actual trial. Contact Michael Huddleston at (469) 245-3075 or mhuddleston@shannongracey.com.
DVAP’s Finest Karl Larson
Karl Larson is an intellectual property associate at Gardere Wynne Sewell LLP. He has been taking cases through DVAP for the past three years, and especially enjoys landlord-tenant and consumer matters. In one case, he was able to collect a security deposit and treble damages for a low-income applicant. In another case, Karl represented the plaintiff in a lawsuit involving real property—seeking specific performance by the defendant to turn over equitable title to a house won in radio station contest. He represented the plaintiff at the preliminary injunction hearing and negotiated a $100,000 settlement from the radio station sponsoring the contest. Karl brought these two appreciative clients to meetings of the Dallas Bar Association Community Service Fund Board to share their stories. Thanks for all you do, Karl!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
A joint legal aid program of the Dallas Bar Association and Legal Aid of NorthWest Texas (formerly Legal Services of North Texas).
8 H e a d n o t e s l D a l l a s B a r A s sociationâ€
February 2010
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Dal l as Bar A ssoci ati on l Headnotes 9
Team DBA continued from page 4
year on its findings and recommendations as we move forward. We have outstanding programs at the DBA that serve the needs of its members as well as our community. I pledge to you tonight that in 2010 we will do what is necessary to enhance and support these programs. As Team DBA, we are truly stronger than the sum of our parts. The Dallas Bar has a significant footprint in Dallas and in Texas. More often than not it has been the DBA that leads the pack on issues of importance to our profession and our state. We need to continue this tradition and with your support and effort
we can do that. One of our programs at the DBA that I would like to highlight is our
This effort is our responsibility as a profession and we will not let the Dallas community down. Do not wait for
When you become President of the DBA, you owe a debt of gratitude to the Team DBA members who came before you, but you owe even more to those who will follow you. Dallas Volunteer Attorney Program (DVAP). I consider the delivery of pro bono legal services to those in need to be one of our highest callings. Because of the economic dislocation in our community, the delivery of legal aid is more essential than ever before.
our government to order you to do what morality and responsibility already dictates that we should do. Do not hold back until someone else picks up the oar that is sitting squarely in your lap. You have been licensed by this state to practice law and that is a privilege to
be cherished and protected. We have all been enlightened about how our money and our pro bono investment of time changes lives. I challenge you to embrace the responsibilities that come with our license to practice law. Tonight I call upon you to be an active part of Team DBA in 2010. There are many out there who have been damaged by the Great Recession, but character is not molded by how we celebrate success. Rather, it is molded by how we react to adversity. We shall not leave any of our wounded behind. Please help show the world our character as an organization in these trying times. What will your answer be when the opportunity to help knocks at your door? What will history
10 H e a d n o t e s l D a l l a s B a r A ss ociation
DBA Board Elects Chair of Young Lawyers. At the January meeting, the board also appointed U.S. District Judge Jane J. Boyle, to fill a one-year at-large judicial position. Judge Boyle is a former CoChair of the Bench Bar Conference Committee and currently serves as the Board Advisor for
the Board Advisor for the Morris Harrell Professionalism Committee and Appellate Law Section. These four board members will join President Ike Vanden Eykel; President-Elect Barry Sorrels; First Vice President Paul K. Stafford; Second Vice President Sally Crawford; Secretary-Treasurer Wesley K. Young; Christina Melton Crain, Immediate Past
Hon. Jane Boyle
Scott Stolley
the Public Forum Committee and the Real Property Section. Judge Boyle is a graduate of the SMU Dedman School of Law. Scott P. Stolley, a partner with Thompson & Knight, LLP was appointed by the board to fill a two-year at-large director position. Mr. Stolley is board certified in Civil Appellate Law. A graduate of the University of Iowa College of Law, Mr. Stolley isCommercial a past Chair of the AppelProperties Ad_finalHR.pdf 5/22/09 9:02:52 AM late Law Section and serves as
President; and Directors, Jerry C. Alexander, Wm. Frank Carroll, Leon Carter, Rob Crain, Jennifer Edgeworth, Laura Benitez Geisler, Michael K. Hurst, Michele Wong Krause, Hon. Marty Lowy, Jose Ortiz, Mary K. Scott, Hope Shimabuku, Diane Sumoski and Debra K. Thomas. ABA Delegates are Kim Askew and Hon. Doug Lang. State Bar Directors include Talmage Boston, Beverly Godbey, Tim Mountz, Rob Roby and Mark Sales.
continued from page 1
February 2010
Focus
M&A and Corporate Securities
The Texas Securities Act continued from page 1
rescission that lie in the “technical” or “failure to register” violations of the TSA. The general rule is that, like ordinary stocks, securities have to be registered by the issuer. There are a variety of exemptions from registration. One is the “limited offering” exemption found in Rule 506 to Regulation D of the Securities Act of 1933, hence the name to “506 Fraud,” which is commonly used in private placements. Some of the more common facts nullifying registration exemptions include: (1) Payment of illegal commissions to unlicensed brokers; (2) Use of public solicitation (the old “smile-and-dial”); and (3) Selling to too many unsophisticated or unaccredited investors. If any of these circumstances exist, a plaintiff may have a “technical” basis for rescission under Section 33(A)(1) of the TSA without any true fraud having occurred.
money to buy a Ferrari instead of drilling an oil well is a misrepresentation and that failing to disclose a felony conviction for cocaine trafficking is a material omission.
Getting Personal
A truly important feature of the TSA is the ability to subject “control persons” and “material aiders” to joint and several liability with the seller under Sections 33(F)(1) and (2). Once seller liability is established, those persons in control of the seller and with the ability to control the transaction in question are subject to personal liability unless they prove that they did not know and could not have known of the reasons for which the liability is alleged to exist. Similarly, those persons who provide assistance to the seller with intent to deceive or defraud or with reckless disregard for the truth or the law are subject to personal liability. The reach of this statute could extend all the way to lawyers and accountants, and is designed to target the entity “shell game” problem and reach the real violators.
Put My Money Where Your Time’s A-Wasting Documents Were The anti-fraud provision of the TSA found at Section 33(A)(2) provides the same rescission remedy for investments offered by way of misrepresentation or omission of material facts. Under Texas law, a fact is “material” if there is a substantial likelihood that it would have assumed actual significance in the deliberations of a reasonable investor in deciding whether to invest. Head v. State, 2009 WL 3126340 (Tex.App.— Houston [14th. Dist.] 2009). For instance, one could argue that using investors’
It’s important not to dilly-dally. The TSA gives an investor only three years from the sale to sue for technical violations and only three years from discovery, with a repose period of five years, to sue under the anti-fraud provision. The federal analogs for these causes of action, however, are even more restrictive in their limitations, making the TSA quite a favorable alternative. HN
Mitch Little is a trial lawyer and a Partner with the law firm of Scheef & Stone, LLP. He may be reached at mitch.little@ solidcounsel.com.
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Dal l as Bar A ssoci ati on l Headnotes 11
Patriotic Perspectives: Wick Phillips Attorney on Holiday Mission by Sherry Talton
I
t is not uncommon for attorneys to take some time off at the holidays. Many even travel to exotic locations to enjoy some much-needed holiday down-time. In December, Jeffrey W. Hellberg, Jr., head of the Wick Phillips appellate group, grilled steaks for himself and about 5,000 friends at a picnic halfway around the world—on the deck of aircraft carrier USS Nimitz (CVN 68).
Steak Team Mission member Jeffrey Hellberg, his grilling skills.
Mr. Hellberg is a member of Steak Team Mission, a non-profit that supports U.S. troops by bringing steak dinners to deployed military personnel during the holidays. “Participating in Steak Team Mission is just my way of supporting our sailors and soldiers in the field and letting them know that people back home are thinking about them,” said Mr. Hellberg. Since 2002, Steak Team Mission has grilled steaks for soldiers in Uzbekistan, Iraq, Afghanistan, Kuwait and Djibouti. According to Lieutenant Commander Jason Salata, the USS Nimitz & Carrier Strike Group 11 Public Affairs Officer, the USS Nimitz is “in the North Arabian Sea conducting flight operations in support of Operation Enduring Freedom (OEF) in Afghanistan.
Since entering the U.S. 5th Fleet Area of Operations September 18, Nimitz has flown more than 1,800 combat sorties, providing 30 percent of the close air support to the coalition forces in Afghanistan.” [Ed. note: It’s now more than 2,200 sorties.] Just getting enough food to the troops on the Nimitz was a challenge. Local donors provided much of the over 2500 pounds of food, which American Airlines Cargo helped transport to the Nimitz. Mr. Hellberg and his team cooked steaks for over five hours on nine grills on the flight deck as part of a “steel beach picnic.” The picnic also included games like ping pong and basketball during the day and closed with a movie night in the ship’s hangar bay. Lieutenant Commander Salata expressed the troops’ gratitude, “each of us was honored that the members of the Steak Team Mission came out to visit us and show their support for what we are doing … that alone Jr. shows off would have been enough. To add on 5,000 steaks and the fixings, that just made their visit all the more memorable. We are truly lucky to live in a country where people are willing to do these very kind things.” The event was memorable for Mr. Hellberg, as well. “Being able to watch the sailors in action really helped me understand exactly what those men and women are dealing with out there,” he said. “They are on the front lines providing key support for the troops on the ground. It was just an amazing experience.” He got a tour of the aircraft carrier from the captain and observed both day and nighttime operations. “They fired the ship’s 50-caliber machine guns for us and we stood right next to some F/A-18 Hornet fighter jets,” Mr. Hellberg recalled with boyish excitement. “I couldn’t have had any more fun.”
Some of the more than 5,000 U.S. troops aboard the USS Nimitz enjoying a holiday steak feast.
As Mr. Hellberg explains, Steak Team Mission would not be possible without the local individuals and businesses who donated food and supplies and employers who let Steak Team Mission members take time off work. “I also can’t thank Wick Phillips enough for supporting this endeavor,” he said.” In addition to letting me take the time away from my practice, they donated special aprons for Steak Team Mission members to wear to the cookout and
helped us find other donors willing to contribute. The firm’s support is just one more example of why it’s such a great place.” From the firm’s perspective, Todd Phillips, founding partner of Wick Phillips, LLP, says that he is “so proud of Hellberg’s generosity.” “He [Hellberg] gave up time with his 9-year-old daughter and 1-year-old son to give our troops a little piece of home for the holidays,” said Mr. Phillips. “Everyone here at Wick Phillips supports our troops 100 percent throughout the year, but we think it’s especially important to remember the troops during the holiday season.” It will be interesting to see where the Steak Team Mission’s next holiday will be. HN Photos courtesy Steak Team Mission. Official Navy press release: tinyurl.com/yagse6r.
Sherry L. Talton is a solo practitioner offering trial and appellate briefAs of September 19, the USS Nimitz has flown more than 2,200 ing services to firms of all sizes. combat sorties, providing 30 percent of the close air support to the She can be reached at sherrytalton @gmail.com.” coalition forces in Afghanistan.
Employment Eligibility Compliance and Enforcement By Rick Gump
T
he landscape of worksite compliance and enforcement has changed dramatically this past year. On July 1, Immigration and Customs Enforcement officials launched a new worksite enforcement campaign targeting employers and their practices for verification of an individual’s eligibility for employment. Six hundred fifty-two businesses nationwide were presented with a Notice of Inspection (NOI), one hundred eleven of which were in Texas. Texas employers received more NOIs than any other state, including states such as California, New York and Florida, all of which have heavy immigrant populations. ICE had a goal of 1,000 audits in 2009 alone. With $139 million appropriated for worksite enforcement, more agents are being trained for worksite investigations. Employers are required to complete and retain a Form I-9 (“Employment Eligibility Verification”) for each individual they hire for employment in the United States. This form requires the employer to review and record the individual’s identity and employment authorization document(s) to determine whether or not the document(s) reasonably appear to be genuine and relate to the individual. A few of the companies recently
affected by ICE’s worksite enforcement campaign, which targets employers and their I-9 practices, include: • George’s Processing, Inc., a poultry processing plant based in southwest Missouri, paid a $450,000 criminal fine in September 2009. • Shipley Do-Nut Flour and Supply Company Inc., a Houston-based company, received three years of court supervision, paid a criminal fine of $250,000 and forfeited $1.334 million to ICE in August 2009. • Krispy Kreme Doughnut Corporation, a Cincinnati based company, paid a $40,000 criminal fine to ICE in July 2009. In an August 2009 press release, John Morton, the Department of Homeland Security’s Assistant Secretary for ICE, stated, “An effective immigrant enforcement strategy must target the illicit labor market that fuels illegal immigration. ICE will hold employers and businesses accountable and will hit those who knowingly break the law where it hurts – their bottom line.” While ICE is continuing to charge employers with criminal violations for egregious behavior, ICE is also hitting employers with the full range of civil fines for offenses ranging from mere paperwork violations to hiring, or continuing to hire, unauthorized aliens.
ICE has indicated that they will use any and all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment. Employers should expect to see more of this trend as ICE continues to increase the number of audits and more employers come under scrutiny for their I-9 practices. With the use of civil fines, businesses can incur significant financial losses for first-time violations with penalties for Form I-9 paperwork violations ranging from $110 to $1,100 for each violation, and $275 to $2,200 for unauthorized hiring violations. With numerous deficient I-9s, fines can quickly escalate into a significant and substantial financial loss for the company. As of September 8, 2009, many employers who have contracts with the federal government were required to register and use E-Verify. Certain subcontractors on federal contracts were also required to enroll in E-Verify. E-Verify is a free, on-line system offered by the United States Citizenship and Immigration Services, which allows employers to electronically verify the employment eligibility of newly hired employees. The program allows employers to enter information provided on Form I-9 and compares it to various databases, including Social Security and the Department of
Homeland Security. Because the entire chain of companies below the prime contractor must use E-Verify for new and current employees working on the federal project, many issues arise requiring legal assistance. Employers should expect the inevitable rapid spread of E-Verify (or a more technically advanced system) to all employers over time, and failure to use the system properly can result in significant legal liability. The federal government will identify improper use of E-Verify through data mining. The future is clear. Consistent civil and criminal sanctions will be utilized to change the corporate culture. Enhanced electronic verification will impede the use of fraudulent documents and identity theft. Additionally, state and local laws will continue to create a complicated patchwork of compliance requirements. Employers should educate themselves regarding the basic elements of the worksite compliance system. This should include an independent third party audit of immigration-related practices and the establishment of a set of best practices to ensure compliance and implementation of a formal I-9 compliance policy. HN
Rick Gump is the shareholder of the Law Offices of Richard A. Gump, Jr. Mr. Gump concentrates his practice on immigration and nationality law, with an emphasis on businessrelated immigration and worksite compliance. He can be contacted at rickgump@rickgump.com.
12 H e a d n o t e s l D a l l a s B a r A ss ociation
February 2010
Five Things You Need to Know About Changes to HIPAA by Chuck Blanchard
T
he 2009 legislation commonly known as the “Stimulus Package” included changes to the privacy protections contained the Health Insurance Portability and Accountability Act of 1996 (HIPAA). This article discusses the top five things everyone should know about these changes. 1. HIPAA penalties have gotten tougher. The consequences for HIPAA violations are greater. A new civil penalty scale based on the intent of the violator has been established: • Unknowing violations – $100 minimum • Violations based on “reasonable cause” – $1,000 minimum per violation ($100,000 maximum per year) • Violations caused by willful neglect, but which are corrected –$10,000 minimum per violation ($250,000 maximum per year) • Violations caused by willful neglect, which are not corrected – $50,000 per violation ($1,500,000 maximum per year) • These penalties can now be enforced by actions brought by state attorneys general, and courts have the ability to award costs and attorneys’ fees. Additionally, individual employees – not just the covered entities themselves – can be subject to penalties for HIPAA violations.
2. HIPAA’s penalties now apply to “Business Associates.” Formerly, HIPAA only directly applied to “covered entities” (health plans, health care providers, hospitals, etc.). Business associates – those who performed various functions involving protected information, such as legal services, accounting, information technology, financial support, and other similar services – were not directly subject to HIPAA. Covered entities were required to execute agreements to ensure that business associates would follow the HIPAA rules, but any unauthorized disclosure only subjected the business associates to a breach of contract action, not civil or criminal penalties. Now, business associates may face civil or criminal penalties for violations of HIPAA, and they will be directly required to follow many HIPAA security and privacy provisions. In addition, the definition of “business associates” has been expanded to include organizations previously excluded. 3. Patients now must be notified of breaches of “unsecured” information. Individuals must be notified when their “unsecured” information is improperly disclosed. Generally, “unsecured” information is protected health information that is not secured through the use of technology or methods – specified by federal standards – that make the information unusable, unreadable, or indecipherable (such as encryption or destruction).
Not all disclosures are considered “breaches” under the statute. However, if a breach occurs, the patient must be notified within 60 days. If the breach involves more than 500 patients, the Department of Health and Human Services (HHS) and media outlets must also be notified. 4. The focus is on “limited data sets.” Under HIPAA standards, a covered entity may use “minimum necessary” patient health information to meet its business purposes. The definition of “minimum necessary” information has been largely left to the discretion of the covered entity. Now, covered entities must first consider whether defined chunks of information called “limited data sets” could be used to accomplish the same business objectives. These “limited data sets” must exclude basic identifying information (often referred to as “de-identifying” certain health information) such as the individual’s name, Social Security number, postal addresses, email addresses, telephone numbers, and similar identifiers. The HHS should issue greater guidance in 2010 regarding what “minimum necessary” information can be used in certain circumstances; however “limited data sets” should be used whenever possible until that guidance is provided. 5. Patients have greater say over how their information is used. Generally, there are greater restrictions on the use of patient information. • Protected information may not be sold without permission. Covered entities and business associates may not accept remuneration
for patient information without patient authorization, apart from some fairly narrow exceptions. • No more marketing by “patient profiling” without permission. In the past, covered entities could market products and services to individuals based on their protected health care information (e.g. age or weight), and then receive direct or indirect payment in exchange for making the recommendation. HIPAA now prohibits entities from defining such marketing communications as “health care operations,” effectively making most such communications – without patient authorization – a violation of HIPAA. • Paying patients have “veto” power over certain disclosures. If a patient requests that a provider not disclose information to his or her health plan – and the patient pays out-of-pocket for services of the provider – the provider must never disclose the information or else risk penalties for violation of HIPAA. • Patients must be provided an accounting. Patients can request an accounting of disclosures of health information made through the use of an electronic health record system for any business operations. Records of such disclosures must be retained for a period of three years. HN Chuck Blanchard is a partner at Carrington Coleman and a member of the firm’s Healthcare practice group.
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Focus
Dal l as Bar A ssoci ati on l Headnotes 13
M&A and Corporate Securities
Lessons From Recent Insider Trading Cases By Janice V. Sharry and David Heard
L
eaks of material non-public information from a publicly traded company can give rise to insider trading by recipients of that information. In most cases, the leakage occurs without any wrongful action by the company whose securities are implicated. Instead, it often is the result of an action by a misguided employee or company outsider who obtains and then trades on market sensitive information. It can also result from an employee’s reckless and even inadvertent disclosure of information, which often stems from a failure to appreciate the legal ramifications of their actions. Yet, when the insider trading is revealed and the source of the leak is identified, the company suffers in the media and its customer relationships may be harmed. Moreover, the company may incur significant expenses in connection with the lost time and costs associated with an SEC enforcement action and possible litigation. It can also lead to an independent violation by the company of SEC rules. So, how can a company limit this risk? Recent SEC enforcement actions, including those against Mark Cuban
and persons associated with the Galleon Group, provide some guidance on how companies can act to minimize risks. In particular, companies should consider new internal compliance policies and procedures, should restrict and manage their employees more effectively, and should reassess their relationships with, and how information is provided to, outside parties such as investors, professional advisors and contractors. In the Galleon Group investigation, the SEC alleged that employees of a number of public companies, including some very large ones, as well as other consultants and analysts, were involved. These employees allegedly provided sensitive and non-public company information relating to the companies and their clients to the Galleon Group or to persons affiliated with the Galleon Group. The SEC alleged that some employees, such as one executive in a company’s treasury department, profited from leaking this information. In other instances, it is unclear how or whether the employee may have benefited from the alleged disclosure. Many of the third-party individuals that have been implicated, moreover, are socially connected to Galleon Group’s founder, Raj
After Hours
Lea Clinton — Practicing Horsemanship & Practicing Law
Rajaratnam. But, regardless of their motives, the damage was done once this information was leaked. In the Mark Cuban investigation, Mark Cuban was an outside investor in an internet company. The company’s CEO, allegedly believing Cuban had consented to an oral confidentiality agreement, disclosed to Cuban details of a planned offering before public announcement. Cuban allegedly believed he had not agreed to any restriction on his trading and, after the conversation with the CEO, sold his securities in the company. The SEC brought insider-trading charges against Cuban, but a court later dismissed the charges. It determined that, even if a confidentiality agreement had existed, the agreement did not go far enough to ensure that Cuban did not act on the information provided by the company. The court indicated that, unless a fiduciary relationship exists, a confidentiality agreement must specifically restrict third parties from trading on non-public information before it can form the basis for an insider-trading violation. The practical result is that a standard-form confidentiality agreement or statement is not enough. Instead, an agreement must specifically include a provision restricting the third-party’s trading in the company securities. A company must also caution its executives not to rely on oral agreements or confidentiality headers when information is supplied to third parties. These examples teach lessons for
minimizing risk. Publicly-traded companies should: Make sure employees are adequately and periodically briefed on the importance of preventing insider trading and the consequences for violations; • Create and maintain information barriers, including restricting computer access of information, to limit the number and types of employees with sensitive, non-public information; • Monitor contracts and agreements to protect against improper use of confidential information in trading activities; • Limit employees’ contact with outside investors and analysts, monitor disclosures and steer any questions to investor relations personnel or legal counsel; and • Have policies and procedures in place to act quickly to investigate their employees’ activities. If, in spite of the foregoing, a leak does occur, a publicly held company should be prepared to conduct a privileged investigation to identify the source of the leak, and, if necessary, contact the SEC and other law enforcement agencies. Employees should know that failure to comply with any of these procedures could result in immediate termination. A course of action that supports these principles should minimize risks. HN Jan Sharry is a partner at Haynes and Boone who specializes in corporate securities and mergers and acquisitions. She can be reached at Janice.Sharry@haynesboone.com. David Heard is an associate at Haynes and Boone. He can be reached at david.heard@haynesboone.com.
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by Mary Louise Hopson
W
inston Churchill said that no hour of life is wasted that is spent in the saddle. That being said, between her lawyering time and time spent with her horses, DBA member Lea Clinton must have little time available to waste. Ms. Clinton, a litigation associate at Munsch Hardt Kopf & Harr, P. C., finds the time to keep up a lifelong passion—riding Arabian horses and competing in horse shows across the country—while maintaining a busy law practice. Ms. Clinton graduated summa cum laude in 2006 from Texas Wesleyan University School of Law, where she served as Articles Editor of Texas Wesleyan Law Review. She somehow managed to keep up her interest in horses during her law school years. “Riding to me is an escape from the ‘real’ world,” said Ms. Clinton. “There is nothing that clears my mind better than galloping a horse through an open field, competing on an English show horse, or jumping a cross-country course.” Ms. Clinton was riding Arabian horses before she was walking. Her parents are involved in the horse industry and her mother, younger sister and husband are horse trainers. “I have lived on or near the family horse farm almost my entire life,” she said, “first as a child in Ohio, then when I moved to Georgia, where I attended the University of Georgia and was on the equestrian team. Our team was the first SEC varsity equestrian program, and we won the first NCAA National Equestrian Title. I then moved to Texas and kept up my passion while attending law school.”
She enjoys sharing her interest with her colleagues. “They tease me mercilessly for the funny clothes I have to wear for competitions,” she said. “However, I get a lot of support from my co-workers. They show up at local events to cheer, laugh or cajole when they can.” Ms. Clinton, who has won more than 30 national horse show titles in the United States and Canada, also finds time to volunteer in the community. She is Co-Vice Chair of the DBA Publications Committee and former Co-Chair of the Summer Law Intern Committee. She is also active in the Dallas Association of Young Lawyers and Attorneys Serving the Community, where she is Co-Chair of the SponsorVIP Silent Auction. With all that activity, we can be sure that no hour of this lawyer’s life is wasted! HN Veteran marketing consultant Mary Louise Hopson writes the occasional column “The Business of Law” for Headnotes. She can be reached at mlhops@sbcglobal.net.
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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 ss ociation
In the News
February 2010
February
FROM THE DAIS
Florentino A. Ramirez of Ramirez & Associates, P.C. presented a paper and spoke on “Commercial Agents Obligations Pertaining to Principals’ Intellectual Property and Confidential Information Under U.S. Law,” to the Legal Working Group of the International Union of Commercial Agents and Brokers in Solihull, England. Jeffrey Drummond with Jackson Walker L.L.P. spoke at the Lorman Education Services Medical Records teleconference on “Medical Records Releases, Retention and Confidentiality Requirements.” Paul Watler of the firm spoke at the Law Seminar’s International 18th Annual Seattle Conference on Current Developments in Technology Law in Seattle, Washington. He presented “Key Recent Technology Law Cases,” co-authored by Mr. Watler and JW attorney Jeremy Brown.
KUDOS
Chief Justice Carolyn Wright was awarded the coveted Leadership Award from the National Association of Women Lawyers (NAWL). Florentino Ramirez, of Ramirez & Associates, P.C. has been elected a Member of the American Law Institute. Kimberly Wilson of Hermes Sargent Bates L.L.P. has been named partner. David L. Horan and Mark C. Howland with Jones Day have been named partners. Michael K. Hurst of Gruber Hurst Johansen & Hail, has been re-elected to the Board of Directors for South Texas College of Law in Houston.
ON THE MOVE
M. James Benes has joined Jenkins | Babb, LLP serving as Of Counsel. Christina Masso and Craig Ongley have joined Kane Russell Coleman & Logan PC. Darin Klemchuk and Kelly Kubasta have formed a partnership of Klemchuck Kubasta LLP, located at 8150 N. Central Expwy., Suite 1150, Dallas, TX 75206, (214) 367-6000. Katherine Bandy, Bhaveeni Parmar and Roxana Sullivan have joined the firm as associates. Thomas Lillard, Robert Wise and Andrew Szygenda have formed the firm of Lillard Wise Szygenda PLLC located in Sterling Plaza at 5949 Sherry Lane, Suite 1255, Dallas, TX 75225. David R. Dotson has joined Munsch Hardt Kopf & Harr, P.C. as an Associate in the Business Litigation group. Nathan T. Anderson and Michelle May O’Neil have formed the firm of O’Neil Anderson and relocated the office to Two Lincoln Center, 5420 LBJ Freeway, Suite 500, Dallas, TX 75240. Bridgette S. Phillips and Chrissy R. Tefera have formed Phillips & Tefera, PLLC. The firm is located at 1205 Hall Johnson Road, Suite 4, Colleyville, TX 76034. Jacob M. Borchers has joined Sandbote, Waggoner & Zopolsky, P.C. as an Associate. Bryan Haynes and David McLane have joined the law firm of Scheef & Stone, L.L.P. Jessica A. Henson has joined Sessions Fishman Nathan & Israel LLP.
Todd C. Meier has joined Shackelford, Melton & McKinley, LLP as Of Counsel.
Matthew C. Acosta has joined Jackson Walker L.L.P. as Associate.
Rachel R. Womack has joined Stroz Friedberg as vice-president of the Dallas office.
John J. Roberts has joined The Bassett Firm as a new Associate.
Kevin J. Muenster has joined Taber Estes Thorne & Carr PLLC as an Associate and Melanie Kemp Okon has joined as a Partner.
Isabel Andrade Crosby has joined Fisher & Phillips LLP as an Associate.
John G. Browning, Ryan Cole and Edward Vishnevetsky have joined Thompson, Coe, Cousins & Irons, L.L.P. Matthew P. Harper has joined Thompson & Knight’s Intellectual Property practice. Linda Wilkins has launched her law practice located at 8080 North Central Expy., Suite 1400, Dallas, TX 75206, phone: (214) 292-4282. Thomas D. Graber has McGlinchey Stafford PLLC.
joined
James J. Doyle III has opened Doyle Law, 4054 Mckinney Ave., Suite 310, Dallas, TX 75204, phone: (214) 522-6200. Katherine M. Anand has joined Taber Estes Thorne & Carr PLLC as an Associate Danica L. Mathes has joined Bell Nunnally & Martin LLP as Of Counsel. Andrew J. Anderson is pleased to announce the relocation of Anderson Legal Group, P.C., to 5209 Heritage Avenue, Building 2, Suite 200, in Colleyville, TX 76034, phone (817) 424-3405.
Financial Assistance Needed in Haiti Much financial assistance is needed for the victims of the earthquake in Haiti. There are many ways to give. See www.whitehouse.gov for more information
Or give through the Red Cross: To send a $10 donation through the Red Cross, text ‘Haiti’ to 90999, log on to www.redcross.org or call 1-800-REDCROSS.
Thank you for your generosity.
Investiture of Justice Carolyn Wright
(Above, Left) DBA President Ike Vanden Eykel, Chief Justice Carolyn Wright and Retired Chief Justice Linda Thomas. (Above, Right) Justice Wright is sworn in by Texas Supreme Court Chief Justice Wallace B. Jefferson, as Dr. Jeremiah Booker, Senior Pastor, Hamilton Park United Methodist Church looks on. (Left) Numerous members of the local, state and Texas Supreme Court were in attendance to show their support at Justice Wright’s Investiture January 4, 2010.
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Classifieds
Dal l as Bar A ssoci ati on l Headnotes 15
February
Office Space
Office Space Available: 6060 N. Central. Seeking attorney with portable practice to sublease office (13.5’ x 14.5’). Conference room, high speed internet access, fax, copier, kitchen, free parking, possibility of referrals. Contact Rob @ 214.528.6040. Two offices available for rent in our historic West End building with a secretarial area available as well. Each of the two offices rent at $650 each and the secretarial area would be an additional $500. The two offices can rent individually or as a package. Contact Craig Miley at 214692-8800 or craig@mileybrown.com. DALLAS OFFICE SPACE. Bilingual receptionist, Conference Room, Kitchen, etc. Location is convenient to all Dallas Court and Traffic arteries. Please call 214696-9253 for a tour. Plano Class “A” Office Space in Legacy Bank Plaza (Preston and Legacy). Beautiful space: professionally decorated; lots of art work; Lobby Concierge in attendance during business hours. Lots of accessible visitor parking. Space can include access to conference rooms, library, kitchen, computer network, internet, phone service, and copiers. Secure underground tenant garage parking with reserved and unreserved. Executive offices and support staff space available. Email jody.johnson@ aj-familylaw.com (972-608-4300). Walnut Glen Tower (Walnut Hill/Central) Beautiful, new, spacious offices in Class A building with views of downtown over lake with fountains. Lobby with glass elevators, 18-story atrium, waterfall, trees and true outdoors feeling indoors. Practice in a relaxed yet professional 4-lawyer environment which includes administrative stations, conference room, kitchen, copier, phone system, DSL, reserved garage parking, on-site restaurant and other amenities. Why not have quality of life while you practice? Please call (214) 750-1600 for details. Hidden in the shadow of CityPlace. For Lease ±3,000 ft. second floor, 4225 Office Parkway, two blocks east of Central, one block north of Haskell. Recently remodeled. $12.75 full serve + 40% electric. Some covered parking, nice reception, conference and kitchen. 972-367-6540 or 972 367-6527 or pbogner@stoneeagle. com.
Executive suites. All amenities bundled at one reasonable rate including conference, kitchen, high-speed Internet, T-1 phone rates, internet fax, receptionist, 24/7 HVAC, 24/7 access, etc. Beautiful garden building in Richardson directly at the DART stop near 75 Central and Spring Valley. Current tenant roster is largely attorneys. 972367-6540 or 972-367-6527. pbogner@ stoneeagle.com. High-rise views at low-rise rates. Panoramic views from 63rd floor. Class-A downtown space close to courthouse, AV-rated law firm. Access to large conference room, library, kitchen. Secretarial, clerical, reception available. Two offices available with very nice secretarial stations. Negotiable. Call Kay 214761-6463. Northpark/Central Expwy—Law firm has two offices for sublease in Class A building. Best views in town overlooking downtown and Park Cities. Great location with excellent finish out, elevator exposure and easy access to/from Central Expwy. Includes use of large conference room, secretarial space and kitchen. High-speed DSL, telephones, copier/ scanner and on-site storage also available. Call 214-292-4202. Uptown at the Quadrangle. Business Litigation law firm located at the Quadrangle has available office and secretarial area. Includes use of conference rooms, copier, file cabinets, internet, phone, fax and covered parking. Call (214) 4683022. North Dallas—Spring Valley & Toll Road: North Dallas law firm has 3 offices and 1 work station for lease. 12th floor of the Centura Building. Granite floors and wood paneling. Full service. Attorneys practice commercial litigation and real estate. Contact Amy Fryar at afryar@lawyerstitleusa.com or Sam Carter at Scarter@ carter-holmes.com. Office Space near old downtown Plano and Collin Creek Mall. One block East of Central Expressway (75). Prime first floor location, 2 offices available. Sizes available: 244 sq. ft and 179 sq. ft. Practice in a relaxed yet professional environment which includes conference rooms, kitchen, DSL and reception area. Lots of accessible visitor parking. Call 972-4222424 for details.
North Dallas Tollway (Galleria area) office space. Hardwood floors and ornate mahogany paneled walls in common areas. One office (approx. 13.5 x 13.5) with built-in mahogany secretarial carrel (located in outer office area). Access to three conference rooms, copier, postage meter and two kitchens. Receptionist services available. Please call Kristi at 972-934-4100. Sublease opportunity in law office in Richardson. Two window offices, one interior office and one legal assistant area available. Office environment is quiet and friendly with new furnishings and updated technology. Receptionist, telephone system, internet, three conference rooms, two kitchens, free parking with 24 hour access to building. Please email Jennifer Som at Jennifer@baalegal.com or call 214-570-0700. Downtown AV rated law firm has a brand new window office with carol, use of conference room and kitchen at Republic Bank Center. Call Mark or Vicki at 214752-0400.
Position Available
Turtle Creek law firm seeks experienced business litigation attorney with minimum 3 years civil litigation experience, including first chair trial experience; compensation negotiable and competitive. Respond to Dallas Bar Association, Box 01-10B, 2101 Ross Ave., Dallas, TX 75201. North Dallas Boutique Commercial Litigation Firm seeking qualified Paralegal with a Paralegal Certificate from an ABA accredited institution and a minimum of 5 – 7 years of recent TEXAS litigation experience, minimum of preparing for and attending 5 jury trials, strong computer skills (Microsoft Proficient, Summation and Trial Director), billing software experience (Time Matters preferred), strong timekeeping skills, multi-task ability, large firm experience is a plus. Only candidates with these qualifications need apply to info@rineypalter.com. Please DO NOT respond if you do not have all of the qualifications. The Dallas office of Hunton & Williams LLP seeks two attorneys to join the Business Finance/Lending Services practice group as non-partnership track staff attorneys. We currently estimate that these positions will be needed for at least one year. Attorneys in these positions generally will be expected to
work in the office Monday through Friday during normal business hours. Benefits will be offered with these positions. Candidates must meet the following minimum criteria: (1) be graduates of American Bar Association accredited law schools with good academic credentials; (2) be licensed to practice law in Texas; (3) have two to five years of experience as an attorney that includes the closing of financing or other commercial transactions; (4) be self-sufficient and proficient in the creation and editing of documents in Microsoft Word; and (5) be fluent in English. Please apply online at http://www.huntoncareers.com/attorneys/openings/jobdetail.aspx?job=387 Partner-Level Commercial Litigator. Dallas real estate law boutique, consisting of transactional lawyers with large-law firm experience, is seeking a partner-level commercial litigator with real estate, creditor’s rights and/or bankruptcy experience. We are interested in candidates with a minimum of 8 years experience and a self-supporting book of portable business. Office sharing and other alternative arrangements may be considered. Please send your resume to dallasrealestatelaw@ yahoo.com. In-House Environmental Attorney. 3-6 year Environmental Counseling Attorney for Dallas-based Fortune 500 company. Real estate, transactional, and litigation experience also highly valued. Competitive benefit package. Respond to Dallas Bar Association, Box 02-10C, 2101 Ross Ave., Dallas, TX 75201.
Services
MEXICAN LAW EXPERT—Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues—forum non conveniens, Mexican claims/defenses, personal injury, moral damages, Mexican contract law. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez 210-222-9494 / dlopez@ pulmanlaw.com. FOREIGN LEGAL CONSULTANT NODGAR PIRANIAN Admitted to the practice of law in ARGENTINA 4925 Greenville Avenue, 2nd Floor, Dallas, Texas 75206, Email: nodgar.piranian@ charter.net , phone: 214-507-7025. CLASSIFIED ADVERTISING WORKS! For great results, call now to place your ad: (214) 220-7452
DBA Pro Bono Golf Classic Thursday, May 6, 2009 • The Golf Club of Dallas Promote your firm on the course! Entertain clients with a golf game, while helping a family in need. Proceeds benefit the Dallas Volunteer Attorney Program, providing free legal services to low-income residents. Contact Rhonda Thornton at rthornton@dallasbar.org for sponsorship and registration details.
Register Now for the State Bar of Texas Annual Meeting June 10-11 in Fort Worth The Omni Hotel For more information, visit http://www.texasbar.com/annualmeeting.
16 H e a d n o t e s l D a l l a s B a r A ss ociationâ€
February 2010