Texas Lawyer Blog

Gag order issued in R. Allen Stanford criminal case

Acting sua sponte, Senior U.S. District Judge David Hittner today issued a gag order in the criminal case against R. Allen Stanford and three other former executives of Stanford Financial Group of Houston. Hittner wrote that prohibiting public comment from the defendants, their attorneys, prosecutors and all others associated with the case is the “least restrictive measure to preserve a fair trial.” There is “substantial likelihood that extrajudicial commentary by trial participants might taint the jury pool and might undermine a fair trial,” Hittner wrote in the six-page order. Beginning today, the prosecutors and their staff; the alleged victims and all other designated or potential witnesses; the defendants and their attorneys and staff; and the defendants’ agents, including publicity agents, “shall not give, authorize, or permit any extrajudicial statement to any person associated with any public communications media relating to the trial, the parties, the witnesses, or the issues in this case” that could potentially interfere with a fair trial and that is not public record. Stanford’s criminal trial is set to begin Jan. 24, 2011, and the three other former SFG executives who also face criminal charges will go to trial later. The defendants have pleaded not guilty to fraud and conspiracy charges related to an alleged conspiracy to defraud investors who bought about $7 billion in certificates of deposit sold through Stanford International Bank Ltd.

--  Brenda Sapino Jeffreys

Fordham law student drops suit against State Bar of Texas over lawyers’ e-mail addresses

Marni von Wilpert, a student at Fordham University School of Law, has filed a notice of nonsuit in her litigation against the State Bar of Texas over e-mail addresses of the Bar’s members. On Aug. 14, von Wilpert, who worked this summer as a law clerk at the Texas Civil Rights Project in Austin, filed suit in a state district court in Travis County against the State Bar and its executive director, Michelle Hunter, after Bar officials declined von Wilpert’s request that the Bar provide her the e-mail addresses of Texas lawyers. In the suit, von Wilpert v. State Bar of Texas, et al., filed in a state district court in Austin, von Wilpert sought a declaratory judgment that the Bar officials violated the Texas Public Information Act by not releasing the e-mail addresses. She also sought injunctive relief to require them to release that information. However, State Bar officials voluntarily released the information to von Wilpert on Aug. 16. Joe Crews, von Wilpert’s attorney and owner of the Crews Law Firm in Austin, says that yesterday he received notification from the district court that the notice of nonsuit is filed in the court. Crews says the case has been resolved. Don Jones, the State Bar’s legal counsel, says, “I’m happy we got it resolved amicably.” But that is not the end of the story. After receiving additional requests for Bar members’ e-mail addresses, Hunter sent a letter to Texas Attorney General Greg Abbott on Sept. 3. In the letter, Hunter requested a determination by the AG that Texas Government Code §552.1176 excepts from disclosure certain personal information about lawyers that the Bar maintains. Among other things, Hunter is requesting a determination from the AG that the Bar is required to withhold pertinent information relating to those attorneys who have chosen to keep such information private. “The AG ruling request is still pending,” Jones says.
-- Mary Alice Robbins

Eastern District of Texas judge “enhances” award in patent infringement suit to more than $53 million

In a Sept. 27 order, Chief U.S. District Judge David Folsom of the Eastern District of Texas, doubled the $26.6 million that a Marshall jury awarded in damages to Plano-based DataTreasury Corp. at the conclusion of a March trial in a patent infringement suit. That jury found that defendants U.S. Bank and Viewpointe Archive Services jointly infringed on DataTreasury’s two patents covering technology used to process checks and that the infringement was willful. But, as noted in Folsom’s order on DataTreasury’s request for enhanced damages, the judge limited the $53.2 million damages award to U.S. Bank. “Because the jury only found direction and control by U.S. Bank, only U.S. Bank is liable for this enhancement,” Folsom wrote in the order in DataTreasury Corp. v. Wells Fargo & Co., et al. Nix, Patterson & Roach partner Nelson Roach of Daingerfield, DataTreasury’s attorney, says he was not surprised by Folsom’s decision to double the award against U.S. Bank. “I thought we had real good evidence on enhanced damages,” Roach says. Haynes and Boone partner Phillip Philbin of Dallas, Viewpointe’s attorney, says his client is pleased with Folsom’s decisions on its liability, which the judge detailed in a separate order also issued Sept. 27. Philbin says Viewpointe archives images, including check images, for clients. “The judge found Viewpointe was the servant and therefore the activities of U.S. Bank could not be the basis of infringement by Viewpointe. Therefore Viewpointe did not infringe,“ Philbin says. “If Viewpointe is not an infringer, Viewpointe cannot be a willful infringer.” Philbin also says there is no legal basis for joint and several liability in this case. However, Folsom’s decisions were bad news for U.S. Bank. Teri Charest, spokeswoman for U.S. Bank, writes in an e-mail: “We are disappointed with the court’s recent rulings, but remain confident that U.S. Bank did not infringe the patents at issue and that the patents will ultimately be held invalid. U.S. Bank will pursue all avenues to protect its rights and will appeal.”
-- Mary Alice Robbins

University of Texas President Bill Powers' latest e-mail to the UT community

Here's the latest e-mail sent to the University of Texas community from UT President (and former UT law dean) Bill Powers: "I am grateful to our campus community for the way it responded to the emergency that took place at Perry-Castañeda Library this morning.  The University Police Department and the Austin Police Department responded quickly and professionally. Law enforcement teams from multiple agencies worked together to ensure that the entire campus was safe. I want to thank our faculty, staff, and students for their cooperation and vigilance. Our emergency communications system reached thousands of members of the University community promptly and helped keep the campus informed. I extend my sympathy to the family, friends, and classmates of the young student who took his life. In the days ahead we will attempt to understand his actions and to learn from this tragedy. We invite those who would like counseling services to contact the Counseling and Mental Health Center (for students) or the Employee Assistance Program (for staff and faculty). I know that this has been a stressful experience for everyone on the campus. I appreciate the cooperation we received from students, faculty, staff, and their families in responding to this difficult situation."

-- Colleen B. McGushin

U.S. District Judge T. John Ward of the Eastern District in Marshall announces post-bench plans

The last time we checked in with U.S. District Judge T. John Ward of Marshall, the undisputed king of the Eastern District of Texas’ patent docket, he told us he planned to take senior status as of Oct. 1, 2011, but hadn't "made any decisions." But this week Ward says he plans to send a letter to President Barack Obama announcing that he will retire from the bench as of that date. “I’m going to hang out my shingle with Johnny’s firm,” Ward says. “Not every time do you have an opportunity to practice with your son. So I decided I wouldn’t wait.” Johnny Ward, of Longview’s Ward & Smith, says he can’t wait to practice with his dad. “I’ve never worked with him and I never thought it would be a situation where he would be coming to my firm versus me coming to his firm,” Johnny Ward says. While they’re still sorting out the particulars of the arrangement, Johnny Ward says one thing is certain about having his dad -- who has a national reputation as an intellectual property litigation expert -- join his law firm. “He’s skeptical about how much business he’ll bring in,” Johnny Ward says. “And I told him it’s going to be his choice as to what he wants to work on.”
-- John Council

Despite University of Texas shooting, John Lott gun rights lecture will go on

I just got an e-mail from Robert Butler, executive director of the Libertarian Party of Texas, promoting tonight's speech by John Lott, author of the book “More Guns, Less Crime.” The discussion originally was to be held at the UT law school, but it has moved off campus. One of the lecture's original sponsors, the law school’s Federalist Society, tweeted earlier today that Lott’s talk on campus had been canceled, but Butler says other sponsors, including the Libertarian Longhorns and the UT Students for Concealed Carry on Campus, decided the speech should go on. “We think that it's even more relevant that students and teachers need to protect themselves on campus. All the statistics that John Lott has show that people who are able to protect themselves deter crime,’’ Butler says. The speech will be at 6 p.m. at Brave New Books, 1904 Guadalupe St., Austin.

– John Council

University of Texas law professor encounters campus gunman

Today was not a typical morning for Randall B. Wilhite, an adjunct professor at the University of Texas School of Law. Wilhite, a shareholder in Houston’s Fullenweider Wilhite, says he was driving to the law school from the AT&T Conference Center, UT’s  on-campus hotel, when he heard “a loud burst of noise” that sounded like gunshots. Wilhite says that when he pulled up to a stop sign, a man armed with what appeared to be an assault rifle and wearing a dress suit, white shirt, dark tie and a ski mask, ran in front of his car. “He fired three shots to my left, definitely not at me,” says Wilhite, who recalls seeing the dirt pop up where the bullets hit the ground. “At that point, I realized it was a serious problem.” Wilhite says the man did not try to shoot students who were scrambling for cover nearby but kept running toward the interior of the UT campus. “He just kept running to my right and went out of my vision,” Wilhite says. Wilhite says that he returned to the on-campus hotel and asked a valet to call UT campus police to report the incident. After that, he drove to the law school and reported to the dean’s office and his class that a shooter was on campus. What followed, Wilhite says, was about 30 telephone calls from news media. That included CNN, for which Wilhite did a live interview from his cell phone, he says. Wilhite, who teaches a class on marital property, has a theory about the gunman who shot himself in the Perry-Castañeda Library: “I think the guy was just suicidal and wanted to go out in a flash.” At a press conference aired on Fox News 7, Austin Police Chief Art Acevedo confirmed that the shooter, who took his own life, used an AK-47. At about noon today, the school sent an e-mail to students that said: "All buildings north of the East Mall have been released from lock down. At this time, everyone is free to leave the building. All Law School offices are closing at this time. The library will remain open with a skeleton staff. Classes are cancelled for the rest of the day. The law school will return to normal operating hours tomorrow morning at 8am."

-- Mary Alice Robbins

Shots fired in University of Texas library

The University of Texas is closed today because of a shooting at its Perry-Castañeda Library. University of Texas School of Law students were sent an emergency text message at 8:47 a.m. this morning telling them to avoid coming on campus, says Laura Castro, a spokeswoman for the Austin law school. Those already on campus were notified to stay in the buildings until further notice, she says. A spokeswoman for the university, Rhonda Wheldon, said in a press conference aired on Fox 7 News that one male fired a weapon in the library before allegedly shooting and killing himself on the sixth floor of the library. There are no other reported injuries. Wheldon said the campus remains on alert because of reports of a second shooter. The Perry-Castañeda Library is located on the south side of the campus near the the McCombs School of Business. The law school is on the north side of the campus. UT law school professor George Dix says he's currently hunkered down in his office on campus and has been told by university officials that classes are canceled for the day. "They tell me I can’t go anywhere or teach any classes. I just have to sit here," Dix says. "They have told me to shut my door, but I’ve left it open so I know what’s going on. But I may just be foolhardy.” According to an online UT calendar of events, there was a lecture planned for this evening at the UT law school to be presented by Second Amendment scholar and author John Lott, who wrote the book "More Guns, Less Crime." According to the UT site, in his book Lott argues that crime rates drop when states allow citizens to carry concealed weapons. According to the website, the sponsors of tonight's lecture were the University of Texas School of Law Federalist Society, Students for Concealed Carry on Campus, Libertarian Longhorns and The Objectivism Society. However, the UT law school Federalist Society has tweeted, "In light of this morning’s events, John Lott's talk at the law school has been canceled." [Editor's note: The above blog has been updated.]

-- Jeanne Graham, Miriam Rozen and John Council

Plaintiff lawyer goes behind the camera to capture wintering butterflies

Dallas plaintiff lawyer Windle Turley is well-known for stinging defendants like a bee in trial courts. But one of his passions lies in the float of the butterfly: Specifically, where do all of those beautiful orange and black monarchs go during the winter? Turley found out, shot hundreds of photographs of them and has just published a 100-page coffee-table book called “The Amazing Monarch: The Secret Wintering Grounds of an Endangered Butterfly.” Few people knew where all the monarchs went until 1976, when biologists tracked them to a volcanic mountain range west of Mexico City. “And it’s still pretty remote, and not many folks from the United States go there,” Turley says. “And I thought it would be neat to go there and photograph them all in these unique bunches.” And that’s what Turley did, taking shots of the estimated 100 million butterflies that arrive in that part of Mexico on Oct. 31 and depart on March 17 and 18. They usually all arrive and depart on the same day, Turley says. “It’s one of the most phenomenal migrations in all of nature. Some of these monarchs will travel more than 4,000 miles in a crooked line from Ontario, Canada,” says Turley, who photographed the monarchs in 2005, 2006 and 2007. Turley will sign copies of his book at his law office, the Turley Law Firm, 6440 North Central Expressway, from 5:30 p.m. until 7:30 p.m. on Thursday, Sept. 30. Proceeds from the sale of his book are being donated to the Dallas Children’s Advocacy Center.
-- John Council

LUV is in the air and on the move, pending DOJ and AirTran shareholder approval

Today, Dallas-based Southwest Airlines announced plans to acquire Orlando, Fla.-based AirTran Airways. In the transaction, Southwest will pay AirTran shareholders approximately $1.4 billion in cash and stock, according to a Southwest press release. When Southwest takes on AirTran’s debts and leases, the deal will cost at total of roughly $3.4 billion. Madeleine Johnson, vice president and general counsel of Southwest, says she expects the proposed deal to close formally in early 2011. “We have two events that have to happen first,” says Johnson: AirTran shareholders and the U.S. Department of Justice’s Antitrust Division must sign off on the deal. Once AirTran shareholders and DOJ bless the deal, the two airlines will integrate operations. As a result of the deal, Southwest will have access — or in some cases, better access — to airports such as Washington, D.C.'s Ronald Reagan National Airport; Hartsfield-Jackson Atlanta International Airport, which is the largest domestic market Southwest does not currently serve; New York's LaGuardia Airport; Boston Logan International Airport; and Baltimore-Washington International Thurgood Marshall Airport. “We are not looking for downsizing; we are looking for growth opportunities,” says Johnson. “It’s very exciting.” Johnson is working on the deal with Southwest associate general counsel Mark Kneisley and Mark Shaw and senior attorney Marilyn Post. Lawyers with Houston-based Vinson & Elkins are helping Southwest on the deal, including Dallas partners Robert Kimball, Robert Little, Shane Tucker and David Peck, and associates Molly Sorg, Christina Tate, Casey Cox Fisk, Pete Vanderic and Andi Yorio; Austin partner Chris Schmitt and associate Milan Newby; and D.C. partner Neil Imus. At AirTran, general counsel Steven Rossum is working on the deal with help from retiring general counsel Richard P. Magurno, says James Morphy, a partner in New York ’s Sullivan & Cromwell. Sullivan & Cromwell lawyers assisting AirTran on the deal include Morphy, partners Brian Hamilton and Matt Friestedt, and associates Nina McIntyre, Benjamin Weber, Christina Young and Mike Snypes. Atlanta-based Smith Gambrell & Russell also is working on the deal for AirTran. The Smith Gambrell team includes partners Howard Turner, Timothy Elder, Nick Ivezaj, David Santi and Thomas Hong, and associate Jeff Hatchew.

-- Miriam Rozen