Texas Lawyer Blog

Subpoenas quashed in suit against Cisco, Patent Troll Tracker

Two groups of prospective witnesses in a defamation suit a Texas lawyer filed against the Patent Troll Tracker blogger and his former employer, Cisco Systems Inc., won a temporary reprieve today from subpoenas ordering them to testify at the trial. On Feb. 27, U.S. District Judge Richard Schell of the Eastern District of Texas signed an order in Eric M. Albritton v. Cisco Systems Inc., et al. that moves the final pretrial conference in the suit from March 2 to April 24. Schell  also noted in the order that he will schedule the date and location of the trial at that pretrial hearing, so he granted motions to quash subpoenas filed by two groups of prospective witnesses. “No further trial subpoenas shall issue until after the final pretrial conference,” Schell wrote. On Feb. 26, U.S. District Clerk David Maland of the Eastern District of Texas and seven employees of his office filed a motion to quash trial subpoenas issued by plaintiff Albritton and defendants Cisco and Richard Frenkel, the blogger, on several grounds, including that they would be “unduly burdened” to have to testify at the trial and they already gave depositions in November 2008.  In addition, a group of four intellectual property partners and a legal assistant at Baker Botts had sought to quash plaintiff subpoenas requiring them to appear at the federal courthouse in Tyler on March 2, because it would be too “burdensome” and because the plaintiff had an opportunity to take their deposition testimony. In his complaint, Albritton, of the Albritton Law Firm in Longview, alleges Frenkel published statements on the Internet claiming that Albritton had conspired with the "Clerk of the U.S. District Court for the Eastern District of Texas" to "alter documents to try to manufacture subject matter jurisdiction where none existed." The defendants deny the allegations.

-- Brenda Sapino Jeffreys

MCCA awards corporate legal departments, firm

Last night at  the Westin City Center hotel in Dallas, the Minority Corporate Counsel Association bestowed honors on two corporate legal departments and one private law firm for their commitment to diversity. American Airlines and Coca-Cola received the Employer of Choice award for their success in creating and maintaining inclusive corporate legal departments. American Airlines was recognized for its continued diversity in the face of turmoil in the airline industry. Gary Kennedy, general counsel for American Airlines, accepted the award for his legal department. Coca-Cola’s legal division has participated in Street Law’s Corporate Legal Diversity Pipeline for four years and since 2005 the number of women, minorities and women/minority managers have increased by double percentage points. Geoffrey Kelly, general counsel for Coca-Cola, accepted the award for his legal department. And for the second year in a row, Vinson & Elkins won the Thomas L. Sager award for its diversity efforts. In 2008, female attorneys made up 46 percent of the firm's incoming class while 28 percent were minorities. As of December 2008, 21 percent of V&E’s associates in the southwest region are minorities while 55 percent of their associates are women. Barron Wallace, a partner in the Houston office of V&E, accepted the award for the firm.

-- John Council

Ron Kirk has a date

It's official. Ron Kirk, a partner in the Dallas office of Vinson & Elkins, is scheduled to appear before the Senate Finance Committee on March 5 as President Barack Obama's nominee for U.S. trade representative. The hearing is scheduled for 3 p.m. So far the only witness scheduled is Kirk, a former Dallas mayor and an unsucessful Democratic candidate for the U.S. Senate in 2002. Assuming he has paid his taxes, we are willing to step out on a limb here and predict that his nomination will be sent to the full Senate for a confirmation vote shortly after the hearing.
-- Miriam Rozen

Courthouse field trip

Shook, Hardy & Bacon associate Nancy Leverett and 10 other Houton lawyers spent several hours on Feb. 25 at the Harris County Civil Courthouse introducing 40 junior high school students to the practice of law. The students from Houston’s Michael E. DeBakey High School for Health Professions watched a trial and then were coached by the lawyers to participate in a mock trial held in one of the courthouse’s empty courtrooms. “It’s amazingly fun,” says Leverett, who is one of the committee chairs of the Houston Young Lawyers Association Tomorrow’s Attorneys Pipeline Program (TAPP.) The two other committee chairs are Laura Coe, senior counsel at Chamberlain Hrdlicka White Williams & Martin, and LaMonika D. Hurst, legal and compliance manager for Houston’s Geokinetics Inc. Leverett taught high school English at inner-city schools for 11 years before becoming a lawyer. She founded TAPP in 2007 to encourage diverse students to consider legal careers. “When I became a lawyer, it became a natural extension of my two lives,” she says. Leverett says TAPP is always looking for volunteers. She says she keeps a supply of TAPP promotional materials in her purse “to whip them out and encourage people to participate.”

-- Jeanne Graham

Judge lifts gag order in Kent case

Three days after U.S. District Judge Samuel Kent of the Southern District of Texas pleaded guilty to a charge of obstruction of justice, the federal judge presiding over Kent’s case dissolved a highly restrictive gag order in the case. The gag order had been in effect since September 2008, when U.S. District Judge Roger Vinson of the Northern District of Florida imposed it sua sponte to shield the jury from potentially prejudicial statements. On Feb. 23, at Kent’s plea hearing, Vinson extended the gag order until he sentences Kent in May. But today, Vinson lifted the order because “it now appears that some of those who are entitled to privacy under the evidentiary rules do not seek or desire continued privacy protection, and those who do desire continued privacy protection do not need or require any further protection by way of this court’s order.” Vinson wrote that he is “reasonably confident” he has the ability to consider the evidence and issues dispassionately at sentencing, so any statements to the media will not affect Kent’s sentencing. Kent’s guilty plea to the obstruction charge averted a trial on five sex abuse charges against him. In a Factual Basis for Plea, Kent admitted to engaging in nonconsensual sexual contact, without their permission, with two women who worked for him when he was a judge in Galveston. Rusty Hardin, of Rusty Hardin & Associates in Houston, who represents Cathy McBroom, Kent’s former case manager, was on an airplane and not immediately available for comment. Houston lawyer Terry Yates, who represents the other woman, Donna Wilkerson, who was Kent’s secretary, says he's pleased Vinson lifted the gag order. Wilkerson is undecided if she will make public statements before Kent's sentencing, Yates says. "It was very traumatic for her and she wants to think about it." In the order today, Vinson wrote that he extended the gag order on Monday even though no jury would hear Kent’s case over concern that media reports “might lead to public dissemination and a discussion of matters that had been filed under seal to protect the privacy rights of a number of individuals.”

-- Brenda Sapino Jeffreys 

 

Ron Kirk nomination hearing may start next week

The blog Senatus is reporting that former Dallas Mayor Ron Kirk, a partner in the Dallas office of Vinson & Elkins, could appear as early as next week before the Senate Finance Committee for his nomination hearing. President Barack Obama nominated Kirk as U.S. trade representative, a Cabinet-level position, nearly two months ago. Initially, Kirk had been preparing for a nomination hearing in January but then came the derailment of one-time Health and Human Services Secretary nominee Tom Daschle and then the passage of the economic stimulus legislation. So the Finance Committee members were a little too busy to hear from Kirk, who was in Dallas this week. He declines to comment.

-- Miriam Rozen

Capacity in question in insurance benefits suit

When the U.S. Postal Service delivered the contents of a damaged envelope to Irma Johnson last December, she was shocked to see a $1,579,399 check from an insurance company made out to her late husband’s employer. As Johnson alleges in a suit she filed in state district court in Harris County on Feb. 23, the check made out to Amegy Bank NA of Houston referenced Daniel L. Johnson, her husband who died in August 2008, nearly seven years after the bank fired him. Johnson alleges in a so-called “dead peasant” petition that the bank fraudulently induced her late husband in 2001 to sign papers allowing it to take out an insurance policy on his life that would provide him with supplemental life insurance coverage of $150,000. A dead peasant insurance policy is a policy on an employee’s life that is payable to the employer. Johnson alleges in Irma Johnson v. Amegy Bank that because her husband had undergone treatment for a malignant brain tumor, and the bank asked him to sign forms consenting to the insurance when he was still recovering from two brain operations, he did not have the “necessary capacity” to make agreements. She seeks a declaratory judgment that she is entitled to all or part of the insurance benefits paid to Amegy because of her husband’s death. Johnson’s attorney, Michael Myers, a partner in McClanahan Myers Espey in Houston, says the bank “took advantage” of Daniel Johnson. P. Allen Port, executive vice president and general counsel of Amegy Bank, declines comment on the allegations in the petition. “I’m still trying to figure out what the facts are,” Port says.

-- Brenda Sapino Jeffreys

From Texas lawyer to Oscar fashion expert

If you caught last Sunday's Oscar Pre-Show on the E! Network, you may have seen a segment featuring an elegant woman in a black gown and sleek updo chatting about designer handbags. That woman was Sarah Davis, a former Texas lawyer. Not only is Davis a card-carrying member of the State Bar of Texas (albeit inactive) but she’s also the founder of Fashionphile.com, which bills itself as “America’s most trusted source for pre-owned authentic luxury handbags.” Davis says she got the opportunity to appear on TV through a PR friend. “I was totally nervous,” she says. “But it was also a total blast.” Things went so well, in fact, that the 60 seconds Davis was slated to get stretched to more than two-and-a-half minutes, she says. Working mostly on consignment, Davis’ company sells high-end handbags and other luxury accessories such as billfolds, shoes and steamer trunks through the company’s Web site, via eBay and also at its Beverly Hills showroom. Davis says she started the business in 1999 while a law student in Maryland, and success came quickly. “It was something no one was doing back then,” Davis says, and within six months of graduating she says she was able to pay off her law school loans – about $30,000 – with business profits. She and her husband moved to San Antonio after she earned her J.D. in 2001, and she started studying for the July 2001 Texas bar exam while juggling the fledgling business, a toddler and a newborn. Any chance she got, she’d shop for discounted designer bags at the various outlets in San Marcos to sell on eBay. “I was able to get some good stuff,” she recalls. Once she passed the bar, she considered looking for work at a law firm but decided to make a go of her business instead. “I thought, at this point I could try to go to work full time and I’d have to figure out some place for my kids to go, or I could do what I was doing and keep making good money,” she says. “I think I would have liked to practice, had I gotten into it, but I was already into this.” Today, Davis’ company has 12 employees and a roster of buyers and sellers that spans the globe. Last year, she says the company did $2 million in business, and 2009 is shaping up to be bigger than the Birkin bag. Thanks to the economy, Davis says “we’re getting more bags than ever because people need the money, but it’s not like people have lost their taste for luxury bags, they just want a better deal.”
-- Jenny B. Davis

Sentencing decision delayed for a year

Austin criminal-defense attorney Bruce P. Garrison must wait a year to learn his sentence for pleading guilty to possession of methamphetamine and three charges of tampering with a governmental record in connection with forging judges’ signatures on bonds for clients. On Feb. 20, at the conclusion of Garrison’s sentencing hearing, 299th District Judge Charlie Baird postponed his decision on the attorney’s sentence until Feb. 26, 2010. “That is unusual,” Travis County Assistant District Attorney Steven Brand says of the one-year delay in sentencing. Brand, lead prosecutor in State v. Garrison, says prosecutors had sought deferred adjudication on the second-degree felony charge of possession of methamphetamine with intent to deliver. Prosecutors also sought one-year sentences for each of the record tampering charges, with the sentences to be served concurrently, Brand says. He declines further comment because the case remains pending. Joshua D. Saegert, one of Garrison’s attorneys and a shareholder in Saegert & Cole in Austin, says he believes Baird is giving Garrison an opportunity to prove he can hold himself to a higher standard. “It’s not a pass by any stretch of the imagination,” Saegert says. Saegert says Garrison has been sober for 14 months and that Baird wants to make sure Garrison remains sober. Baird says, “We routinely reset cases for substantial periods of time, sometimes up to a year. I do that to see how serious individuals are in their recovery.” Baird says it is easy for someone who is awaiting sentencing to stay clean and sober. It is easier to determine if the individual is sincere about recovery if he continues to submit clean urine samples, attend AA meetings and stay out of trouble for a year, Baird says. Prior to Garrison’s sentencing hearing, Baird had not disclosed to attorneys on the case that Garrison made a $250 political contribution to him in 2005, according to the Jan. 17, 2006, report that Baird filed with the Texas Ethics Commission. “I had no recollection of that,” Baird says of Garrison’s contribution when contacted by Texas Lawyer. Baird notified Garrison’s defense attorneys and prosecutors of the contribution in a Feb. 24 e-mail. Garrison is no longer practicing law. Maureen Ray, special administrative counsel for the Office of Chief Disciplinary Counsel at the State Bar of Texas, says on Feb. 19 Garrison signed a motion to surrender his law license to the State Bar in lieu of discipline. The State Bar had suspended Garrison’s license indefinitely in January 2008.

-- Mary Alice Robbins

Supremes say "no" to In Re: Volkswagen

Today the U.S. Supreme Court denied a writ of certiorari in Singleton, et al. v. Volkswagen of America (a.k.a. In Re: Volkswagen), the long, hard-fought mandamus ruling by the 5th U.S. Circuit Court of Appeals that made it easier for the defense to transfer products liability suits out of the Eastern District of Texas. I thought the high court might grant cert, given the effect In Re: Volkswagen has had on plaintiffs' choice of venue in such cases. And I wasn’t the only one. On Feb. 6, ScotusBlog.com also listed the case as a “petition to watch.”

-- John Council