Texas Lawyer Blog

Morning docket

Judge: BP contract shielded Transocean in spill (Associated Press)

Legal Aid Group Fights County for Unpaid Services (Texas Tribune)

Galveston judge fined $7,500 in malpractice lawsuit fight (Houston Chronicle)

More Bloodletting at Legal Services (The Blog of Legal Times)

State Court Funding Woes a Nationwide Problem, Panel Says (New York Law Journal)

-- Angela Morris

CCA grants habeas to prisoner who had been sentenced to 60 years in prison

“The case won’t be dismissed. I can tell you that,” says Amarillo District Attorney Randall Sims about the prosecution of Ernest Lopez II. Sims’ response follows a Jan. 25 Texas Court of Criminal Appeals decision in Ex Parte Ernest Lopez II granting Lopez’s application for writ of habeas corpus. In 2005, the 7th Court of Appeals in Amarillo upheld Lopez’s conviction in Potter County’s 181st District Court for aggravated sexual assault of a child and sentence of 60 years in prison, according to the per curiam opinion. The CCA noted that Lopez had alleged in his habeas application, among other things, that “his trial counsel provided ineffective assistance for failing to call medical expertsat the guilt or innocence stage of the trial to counter the testimony of the State’s medical experts that the physical evidence was indicative of sexual assault.” The CCA granted relief, based on the trial court’s determination “that trial counsel was deficient as alleged and that the deficient representation prejudiced Applicant” and recommendation that the CCA grant relief. The CCA ruling set aside Lopez’s conviction and sentencing and remanded him to the custody of Potter County to answer to the indictment. Asked if he expects to retry Lopez, Sims says that a decision about how to proceed will be made later and that the decision-making process is “fluid.” Heather Kirkwood, a Seattle solo who started representing Lopez after he lost his appeal to the 7th Court, welcomed the win for her client. She says the case “highlights some of the deficiencies in child abuse litigation. I think we should all recognize these are difficult cases with changing science."

-- Miriam Rozen

Morning docket

Rounding Up the 10 Biggest IP Litigation Wins of 2011 (Corporate Counsel)

U.S. Supreme Court Won't Hear Strip Club Fee Case (The Texas Tribune)

iPad Apps to Boost Productivity at Your Law Practice (Law Technology News)

May Lawyers Offer Groupon Deals? New York Ethics Opinion Allows It, with Caveats (ABA Journal)

Ex-Stanford employees testify of early suspicions (Houston Chronicle)

District attorney giving HPD $475,000 for breath-test units (Houston Chronicle)

State's witness concedes point in hearing on Texas districts (Fort Worth Star-Telegram)

The Legal Aftershocks of Fukushima (The Asian Lawyer)

Consumer Group: Supreme Court Favors Businesses (Texas Tribune)

Republic passes homestead law, sets aside land for education (Texas Day by Day)

-- Angela Morris

Copyright, trade secret suit filed over ballet reality show

Viewers may not be glued to televised tutu battles quite yet. But a complaint filed Jan. 23 in Dallas federal court alleges that two proposals have hit the market, each for a reality show about a ballet company putting together a performance. Aaron Davidson, a partner in the Dallas office of Baker Botts, represents John Harris Masterson in John Harris Masterson v. Lisa Jenkins et al. Masterson alleges in his complaint that he conceived of such a show, focusing on dancers and choreographers in the Texas Ballet Theater in Dallas, with a working title of "Starting Pointe." Masterson further alleges that the defendants — his former co-producers, Lisa Jenkins and Dallas-based Dreamfly Productions — are using his trade secrets and confidential information to try and market their own “extremely similar” proposed reality show, with the working title of "En Pointe." In his complaint, Masterson makes copyright infringement, trade secret misappropriation and breach of contract claims and seeks an injunction to stop Jenkins and Dreamfly from marketing "En Pointe." Jenkins, the president and CEO of Dreamfly, did not return a call to her office seeking comment. No answer has been filed in the case. Davidson says another Baker Botts partner introduced him to his client. “I don’t pretend to be part of the ballet world,” says Davidson, although he notes his daughters take dance lessons. Davidson says that he understands Dreamfly is working with a different ballet company than TBT.

-- Miriam Rozen

Morning docket

Decision on pet's value is appealed (Fort Worth Star-Telegram)

Family court judge arrested, faces DWI charge (Fort Worth Star-Telegram)

Harris County to sue over mortgage fees (Houston Chronicle)

21 firms offer ideas for planned civil courthouse downtown (Austin American-Statesman)

Juror arrested for trying to enter Fort Worth courthouse with loaded gun (Fort Worth Star-Telegram)

HPD to introduce new technology to replace BAT vans (abc13.com) 

February hearing set in Morton case (Austin American-Statesman's Austin Legal blog)

Redistricting trial continues with more experts (Associated Press)

Supreme Court, Legal Issues Stay Out of the Spotlight at State of the Union (The Blog of LegalTimes)

-- Angela Morris
 

In opening statement, federal prosecutor claims R. Allen Stanford treated investors' money like “his own personal piggybank”

Federal prosecutor Gregg Costa told jurors in R. Allen Stanford’s criminal trial that the evidence the government will present at trial will focus on three things – “lying, stealing and bribery.”

In a 41-minute opening statement this afternoon, Costa, an assistant U.S. attorney in the Southern District of Texas, told the panel of 15 jurors the government will show Stanford told “lie after lie after lie” to investors who purchased certificates of deposit from Stanford International Bank Ltd. (SIB) and treated their money like “his own personal piggybank.”

Stanford, former chairman of Houston’s Stanford Financial Group (SFG), faces 14 criminal charges in connection with an alleged conspiracy to defraud investors who bought about $7 billion in certificates of deposit sold through SIB. He has pleaded not guilty to the charges. Senior U.S. District Judge David Hittner seated the jury of 15, including three alternates, this afternoon.

Costa told the jury Stanford lied when he told investors the CDs were liquid, their money was invested globally and, in a strategy to minimize risk, the money was not loaned to borrowers who might default. Costa said billions of the $7 billion people invested in the CDs is “simply gone” and Stanford used more than $2 billion of it to “fund his own pet businesses.” Costa said anyone with knowledge of “basic elementary school math” will be able to understand that Stanford “simply made up” an $8 billion valuation of his company.

Defense attorney Robert Scardino gave jurors a very different view of the case during his 35-minute opening statement. Scardino told jurors that Costa wove a persuasive tale, but it wasn’t based on facts.

Scardino, a partner in Scardino & Fazel of Houston, told jurors that Stanford was a “very clever and resourceful businessman . . . who became a billionaire.” Stanford “did pay every penny owed to the depositors for 22 years,” Scardino said, and it wasn’t until the U.S. Securities and Exchange Commission put Stanford’s companies into receivership in 2009 that investors couldn’t get their money back.

Scardino told jurors that James Davis, the former chief financial officer at SFG who will testify at Stanford’s trial, is a self-admitted “liar” yet prosecutors will rely on his testimony. After pleading guilty in August 2009 to three criminal charges in connection with the collapse of SIB, Davis admitted he did wrong while working for Stanford.

Scardino told the jury that Davis was the key financial officer at SFG and Stanford, in contrast, was “kind of an absentee CEO -- a visionary” who relied on advice from accountants.

Stanford's trial is expected to last about six weeks.

-- Brenda Sapino Jeffreys

Federal judge conditionally certifies class of former paralegals who allege FLSA overtime-pay violations

In a Jan. 19 order, U.S. District Judge Keith Ellison of Houston has conditionally certified a class in Sherri L. Davis, et al. v. Mostyn Law Firm PC. The order comes in connection with a complaint filed by a former paralegal at the Mostyn Law Firm in Houston over allegedly unpaid overtime pay.

The class includes “all of Defendant’s current and former salaried paralegal employees who worked more than forty (40) hours in a workweek but were not paid one and one-half times their regular rate of pay at any time starting August 3, 2008 to present,” Ellison wrote in the order.

As Texas Lawyer reported last year, Sherri L. Davis, a former paralegal at the Mostyn Law Firm in Houston, filed a complaint in federal court in August 2011, alleging the firm failed to pay her and others at an overtime rate when the firm “required and/or permitted” her and others to work more than 40 hours a week. She alleges that was in violation of the Fair Labor Standards Act (FLSA).

After Davis filed the complaint in the Southern District of Texas, Carlos Alvarado, another former paralegal at the firm, filed a notice of consent to become a party plaintiff. Ellison also found in his Memorandum and Order that “Plaintiffs have shown a reasonable basis” that others will join the suit.

Plaintiffs’ lawyer Alex Mabry, of the Mabry Law Firm in Houston, says Ellison made the right decision. “It’s a major hurdle in an FLSA collective action,” Mabry says.

Defense attorney William Stukenberg, an associate with Houston’s Meyer White, says the Mostyn Law Firm disagrees with the court’s decision and will vigorously defend the suit. “That conditional certification is just that; it simply allows the case to move forward with discovery,” Stukenberg says.

In the first amended complaint in Davis, filed in October 2011, the plaintiffs seek to recover their overtime pay, an equal amount in the form of liquidated damages and attorney’s fees.

-- Brenda Sapino Jeffreys

Morning docket

Judges Make a Rush Request for Redistricting Maps (The Texas Tribune)

Greg Abbott Sues Feds to Get Voter ID Implemented (The Texas Tribune)

Police violated 4th Amendment with GPS tracking, Court rules (The National Law Journal)

Personal Injury Firm's Referral Network Gives New Life to Old Business Model (The Recorder)

-- Angela Morris

State Bar of Texas seeks to strike intervenor from Bar’s suit against Texas attorney general over public-records decision

The State Bar of Texas wants a court to strike an intervenor from the Bar’s suit against Texas Attorney General Greg Abbott over his office’s decision that the Bar must release some records under the Texas Public Information Act (TPIA).

The Bar claims, among other things, that the plea in intervention asks the court for a declaratory judgment and “an advisory opinion on issues outside of the initial lawsuit,” and the TPIA doesn’t authorize the court to take those actions.

Julie Oliver, executive director of the Texas Coalition on Lawyer Accountability, requested the records in May 2011. The AG’s office decided on Aug. 12, 2011, that the Bar must release some of the records, but the Bar filed State Bar v. Abbott on Aug. 29, 2011, claiming the AG’s office “failed to apply the proper legal standard” in the open-records decision. Abbott denied all the allegations in the suit on Oct. 7, 2011.

Then Oliver filed a plea in intervention on Nov. 22, 2011, asking the court to uphold the AG’s opinion. She also alleged the State Bar had adopted a policy of not retaining or producing “email and text messages that concern official Bar business but that are sent using private email or text message accounts.” She asked the court to determine if the Bar was withholding such alleged messages, and, if it was, to issue a declaratory judgment that the Bar had to release them.

But the Bar claims in its Jan. 12 Plea to the Jurisdiction and Motion to Strike Plea in Interventionthat Oliver lacks standing to intervene in the suit because the Texas Coalition on Lawyer Accountability made the TPIA request, but Oliver filed the plea in intervention under her own name.

The Bar also argues it is “part of the judiciary” and it is “not subject to suit for declaratory judgment by a complainant under the TPIA.”

The Bar argues that Oliver states “a new policy has been adopted” but that “there is no such alleged policy.” Her “new request for information is an improper attempt to expand the scope of this TPIA lawsuit. This court lacks jurisdiction to render answers to questions that have not been asked prior to this appeal,” the Bar argues, continuing, “[T]he issues in Oliver’s intervention are not ripe and seek a purely advisory opinion from this Court.”

The Bar’s lawyer in the suit, Jennifer Riggs, president of and shareholder in Riggs Aleshire & Ray in Austin, and Oliver and her lawyer, Joe Crews, partner in Crews Law Firm in Austin, each didn’t return a telephone message seeking comment before deadline.

-- Angela Morris

5th Court of Appeals to the rescue

Paul Tyrelle Gatlin owes Dallas’ 5th Court of Appeals a big debt of gratitude. If someone at the court hadn’t had looked closely, his cocaine-possession conviction likely would remained unchallenged. According to the 5th Court’s Jan 19 decision in Gatlin v. Texas, “On appeal, appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California . . . [and] presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. . . . Counsel delivered a copy of the brief to appellant.” The 5th Court advised Gatlin of his right to file a pro se response, which Gatlin didn’t do. “After reviewing the record, we conclude there is at least one arguable issue,” wrote Justice Jim Moseley in a nunc pro tunc opinion joined by Justices Kerry FitzGerald and Martin Richter: “[A]n arguable issue exists as to the seven-year gap between the time the capias was issued and appellant’s arrest, and the expiration of the community service period between the seven-year gap.” The upshot of the decision for Gatlin? The 5th Court “grant[s] appellate counsel's motion to withdraw” and orders “the trial court to appoint new appellate counsel to represent appellant, investigate the record, and file a brief on the merits.”
--- John Council