Cain & Skarnulis Announces Hiring of Associate

Cain & Skarnulis PLLC has announced the hiring of Zach Bowman as an associate at the firm.

Bowman, previously of Ikard Wynn, will focus his practice on commercial litigation and appeals.

Prior to entering private practice, Bowman was a Briefing Attorney for Justice Paul Green of the Supreme Court of Texas. Bowman received his undergraduate degree from the University of Texas at Austin, then attended law school and graduated from South Texas College of Law.

Loewy Law Firm Announces New Scholarship

The Loewy Law Firm has introduced an annual $1,000 essay-based scholarship to benefit an aspiring law student who will, according to Loewy Law Firm’s founder, Adam Loewy “…apply civil law to right injustice.”

To be eligible to apply for the Passion for Civil Rights Scholarship, applicants must either be accepted to or currently enrolled in an accredited law school within the United States. The committee will also consider a student currently attending a college or university within the United States with the intention to go on to law school.AdamLoewy-12

All applicants must maintain a minimum 3.2 GPA as evidenced by official transcripts. In addition, the essay submittal must address the applicant’s opinion as to (1) the use of civil law to implement justice and check governmental power and how the effectiveness of that application compares to that of criminal prosecution or (2) which civil rights cases should have received national media attention but did not addressing the media’s focus on only certain cases and whether or not that focus harms government-to-citizen relationships.

Loewy Law Firm’s founder, Adam Loewy, is known in the Austin community to actively support numerous charities and non-profits. By offering this scholarship, Loewy wants to further the “…aspirations of any future lawyer who shares our passion for balance and equity.”

The selection committee looks forward to reading the essays and awarding the scholarship to a high-achieving, passionate future legal scholar who holds dear and seeks to forward he belief in “…justice for all.”

Graves Dougherty Hearon & Moody Adds Associate to Firm

Graves Dougherty Hearon & Moody has announced that Kimberly Tesarek has joined the firm as an associate.

Tesarek focuses her practice on a wide variety of general corporate and transactional matters, primarily in the context of entity formation, venture capital financing, public and private offerings, securities compliance, mergers and acquisitions and corporate governance. She has assisted with preferred and common stock financings, bridge financings, mergers and acquisitions, asset sales, initial public offerings and public company filings and matters.

Tesarek, a Harvard Law School grad, was previously an associate at Andrews Kurth LLP in Austin.

Winstead Announces Winners of the 2015 Scholarships Targeting Diverse Candidates, Including One at UT

Winstead PC has announced three recipients of the 2015 Winstead Juris Doctor Scholarships, a program designed to benefit outstanding first-year ethnically diverse law students. Among the scholarship recipients is Kirsten Johansson from the University of Texas (UT) School of Law.

The Winstead Juris Doctor Scholarship assists exceptional first-year ethnically diverse law students at UH, UT and SMU. The scholarship selection process begins with submission of a written application, a 500 word personal statement, a transcript of first-semester grades, and the candidate’s resume. In addition to a cash award, each winner is offered a position in Winstead’s Summer Associate Program.  This is the eighth year of Winstead’s Juris Doctor Scholarship program.

A unique feature of Winstead’s scholarship award is a $1,500 grant presented to each winner’s student interest group of choice. In the case of this year’s winners, Winstead will present $1,500 to the Hispanic Law Students Association at UH on behalf of Yee-Trejo; the Chicano Hispanic Law Students Association at UT on behalf of Johansson; and the Hispanic Law Students Association at SMU on behalf of Torres.

Decisions Raise Bar on Waiver of Arbitration Agreements under Texas Law

(Editor’s Note: Lawrence D. Smith, a San Antonio lawyer with Ogletree Deakins, recently wrote the following blog post on Texas Law)

While employers may enter into arbitration agreements with employees relatively easily, ensuring the enforcement of arbitration agreements can be a different matter. For this reason, employers are rightfully cautious to avoid taking any steps in litigation that a trial court might consider to be a waiver of their right to enforce an arbitration agreement with a current or former employee. Two recent decisions from the Fifth Circuit Court of Appeals and the Supreme Court of Texas serve as a reminder that under Texas law it is difficult for employers to waive arbitration agreements, even when an employer may have waited more than a year to compel arbitration.

In Richmont Holdings, Inc., et al. v. Superior Recharge Systems, L.L.C., No. 13-0907 (December 19, 2014), the Supreme Court of Texas evaluated whether a party to an arbitration agreement that had initiated a lawsuit had waived the right to enforce that arbitration agreement. Richmont Holdings had entered into an agreement to purchase assets from Superior Recharge Systems and Jon Blake. The asset purchase agreement contained a covenant not to compete and an arbitration clause. Superior and Blake subsequently sued Richmont in the district court in Denton County, Texas for fraud, breach of contract and a declaration, that the covenant not to compete contained in the asset purchase agreement was unenforceable. Richmont subsequently initiated a separate suit to enforce the covenant not to compete and to transfer venue from Denton County. In the first suit, Richmont Holdings had served requests for disclosures upon Superior Recharge Systems and Blake, had failed to respond to the discovery from Superior and Blake, and had been sanctioned $5,000 for that failure. No trial date had been set in either lawsuit, and none of these proceedings made any reference to the arbitration clause. Nineteen months after being sued, Richmont Holdings moved to compel arbitration.

The state Court of Appeals found that Richmont Holdings had waived the arbitration agreement. The Supreme Court of Texas noted that a party waives an arbitration clause by substantially invoking the judicial process to the other party’s detriment or prejudice, but further observed that due to the strong presumption against waiver of arbitration, the burden to establish such waiver is a high one. In determining whether a waiver has occurred, and whether a party has substantially invoked the judicial process, a court must evaluate the totality of circumstances; key factors include (1) the reason for delay in moving to enforce an arbitration agreement, (2) the amount of discovery conducted by the movant, and (3) whether the movant sought disposition on the merits. The Supreme Court of Texas observed that merely filing a suit does not waive arbitration.  The court also observed that seeking a transfer of venue does not waive arbitration. Richmont Holdings had only engaged in minimal discovery and, in fact, had refused to answer discovery. While Richmont Holdings’s argument as to why it had waited 19 months to seek arbitration was not plausible, the Supreme Court of Texas noted that mere delay was not enough for waiver. The court concluded that the circumstances of the case as a whole did not constitute a substantial invocation of the judicial process.

In a case with similar issues, Pacheco v. PCM Construction Services, L.L.C., the Fifth Circuit Court of Appeals evaluated whether an employer’s delay in seeking arbitration and otherwise engaging in legal proceedings constituted a waiver of arbitration. On October 12, 2012, former employees of PCM Construction Services filed suit against PCM under the Fair Labor Standards Act (FLSA) seeking unpaid overtime compensation and other relief. PCM answered the complaint on November 2, 2012, but in the answer did not mention the existence of an arbitration provision applicable to the employees. On March 7, 2013, PCM filed a motion to dismiss claims against the individual defendants in the case. The plaintiffs amended their complaint on March 20, 2013, adding additional plaintiffs. On March 27, 2013, PCM filed an amended answer and also filed a second motion to dismiss on the same grounds as the first. On March 28, 2013, the plaintiffs moved for conditional class certification. On April 11, 2013, the parties filed a joint status report, but still did not raise the arbitration issue. On November 14, 2013, PCM filed a motion to compel arbitration.

The trial court granted the motion to compel arbitration, noting that the previous motions filed by PCM had not been lengthy and were mostly defensive. The trial court also observed that the plaintiffs had not incurred fees that they would have otherwise not incurred in arbitration proceedings.

On appeal, the Fifth Circuit observed that a party waives its right to arbitration by substantially invoking the judicial process to the detriment or prejudice of the other party. The Fifth Circuit recognized the strong presumption under Texas law against finding a waiver of arbitration and that the party claiming waiver has a heavy burden. The Fifth Circuit noted that the facts of the case did not reflect that PCM had substantially invoked the judicial process. In order to do so, the court reasoned, the party seeking arbitration must have taken acts in the lawsuit sufficient to demonstrate a desire to resolve the dispute through litigation rather than arbitration. The court held that a waiver had not occurred because PCM’s actions had been relatively limited. The only motions filed by PCM had been brief in length and confined to a single issue—whether two individual employees qualified as employers under the FLSA. Further, while the plaintiffs had served discovery, PCM had not responded and, importantly, had not propounded its own discovery requests prior to moving to compel arbitration—a fact the Fifth Circuit had considered relevant to the waiver issue in prior cases. The court concluded by noting that the limited scope of PCM’s actions were insufficient to overcome the strong presumption against finding a waiver of arbitration and held that PCM did not substantially invoke the judicial process.

Key Takeaways

These decisions remind employers that Texas law makes it difficult to waive the right to arbitrate and that employees will have a difficult time overcoming the strong presumption against waiver. As illustrated by these cases, even delays of a year, filing motions, and filing a lawsuit will not necessarily constitute a waiver. However, employers should not take the waiver issue lightly and should ensure that the right to have a lawsuit compelled to arbitration is asserted as soon as possible in a lawsuit. Having implemented an arbitration system with their employees, it would be a shame for employers to inadvertently take steps waiving arbitration.

Why Everything You’Ve Heard About Women and Negotiation Might Be Wrong

(Editor’s Note: Fascinating article released by the University of Florida yesterday)

University of Florida student Samantha Miller was listening to a lecture on a commonly held trope about negotiation — that women are bad at it — but the conventional wisdom didn’t fit with her experience at all.

“I always ask what I feel I’m deserving of,” she said. “I had an idea that women in my generation were similar.”

So Miller, an undergraduate business major, approached UF associate professor Yellowlees Douglas, suggesting they replicate a 2008 study often cited to show that women avoid negotiating or lowball salary requests. Their findings, published in the peer-reviewed International Journal of Business Administration in March, upend the assumption that men are inherently better negotiators.

Miller and Douglas discovered that women who had experience with successful negotiation were superior negotiators to men, even when they rated themselves as only average negotiators.

“The results were a near inversion of the previous study,” Douglas says.

The researchers concluded that women who avoided negotiation or negotiated poorly were likely influenced by a lack of experience — not by anything inherent in their gender.

In the study, 25 MBA students completed a survey and were asked to name the amount they would receive on a Starbucks card for participating. Douglas and Miller were surprised to see that women, on average, asked for amounts twice as large as those requested by men, and every woman who participated asked for a reward. Of the three highest amounts requested, two came from women.

“The women who negotiated well were likely recalling instances when they negotiated high-paying jobs or competitive bids,” Douglas said.

Because men are more likely than women to have held high-paying jobs, they are more likely to have previous successful negotiations to draw on, which could explain why previous studies showed women to be less skilled at negotiating. But landing a high-paying job isn’t the only way to practice negotiation, Douglas says: College career-services offices could add mock negotiations to mock interviews to give new grads experience to draw on, and job applicants — male or female — can take time to reflect on their previous successes before heading into a negotiation.

“I hope people shut up about gender and talk about the framework that informs gender bias — the forces that work on us subconsciously and affect men and women alike,” Douglas said.

Miller wants to repeat the study with a larger sample size, but hopes her initial findings will introduce a new understanding of gender and negotiation.

“I think it’s very telling of a new generation of empowered women.”

Powers Honors Lawyers with Presidential Citations

University of Texas at Austin President Bill Powers will recognize six esteemed leaders from law, business and public service with Presidential Citations this week, marking his final tribute as president to some of the university’s biggest supporters.Pres.-Bill-Powers-200x300

“The six individuals we honor this year have given of themselves to The University of Texas like very few others,” Powers said. “They are among the true elite of UT supporters, and it is my privilege to honor them with this award.”

Award winners are Linda L. Addison, a prominent lawyer and corporate adviser; Ricardo H. Hinojosa, chief judge of the Southern District of Texas; James C. Langdon Jr., international legal expert; Michael W. Perrin, attorney and civic leader; Martha E. Smiley, attorney and former member of the University of Texas System Board of Regents; Robert L. “Bobby” Stillwell, immediate past UT System regent and former director of Mesa Petroleum.

Powers will present the Presidential Citations along with other major university awards in a ceremony Thursday, April 16, as one of his final acts as president before leaving in June after serving a nine-year tenure.

The university created the citations in 1979 to recognize the extraordinary contributions of individuals who personify the university’s commitment to transforming lives. The citations salute those whose service exemplifies the values shared by the university community and who have helped the institution to achieve its mission.

About the 2015 Presidential Citation recipients:

  • Addison, working from Houston and New York, is managing partner of the Norton Rose Fulbright law firm’s U.S. practice and chair of the U.S. Management Committee. Addison advises CEOs, corporate boards and general counsel on risk assessment, litigation avoidance and resolution, corporate governance and ethics. She has been named among the “50 Most Powerful Women in New York” and the “50 Most Influential Women Lawyers in America.” A UT Distinguished Alumna, Addison earned degrees in Plan II and law. She was the first female managing editor of the Texas Law Review, is a trustee of the UT Law School Foundation, and is co-founder and president of the Center for Women in Law.
  • Chief Judge Hinojosa in McAllen was appointed in 1983 to the U.S. District Court for the Southern District of Texas and has served since 2009 as the chief judge of the district. A native of Rio Grande City, he earned a bachelor’s degree in government at UT Austin and a law degree from Harvard University. A past president of the Texas Exes, Hinojosa also received the group’s Distinguished Alumnus Award. He served on the university’s presidential search committees in 1997 and 2005 and, more recently, served on the search committees for athletics director and head football coach.
  • Langdon splits his time between Washington, Texas and Moscow as a senior executive partner at the law firm Akin Gump Strauss Hauer & Feld, with a bachelor of business administration and law degree from UT Austin. He has spent most of his career working on energy law around the world and has held federal positions with organizations such as the Department of Energy, the Department of the Treasury, the Cost of Living Council, the President’s Foreign Intelligence Advisory Board and the President’s Intelligence Oversight Board. He has served on the Governing Committee of UT Austin’s Strauss Center for International Security and Law.
  • Houston’s Perrin earned a bachelor of arts in mathematics and a law degree from UT Austin, where he was a Longhorn football letterman during the late 1960s. He is owner of Michael W. Perrin PLLC and is a member of numerous professional organizations including the American College of Trial Lawyers, the International Academy of Trial Lawyers, the International Society of Barristers and the American Board of Trial Advocates. Perrin was appointed by the UT System Board of Regents to the Council for Intercollegiate Athletics for Women and also led fundraising campaigns at the law school for the Charles Alan Wright Chair in Federal Courts and “The Texas Campaign: An Investment in Students.”
  • In Austin, Smiley is a counsel to the law firm Enoch Kever and has extensive experience in public utility law, having earned her bachelor’s from Baylor University and her law degree from UT Austin. Founder of Grande Communications, Smiley also has a long history of community service that includes membership on the UT Board of Regents and on the boards of SafePlace Foundation, the Greater Austin Chamber of Commerce and the Austin Area Research Organization. At UT Austin, she is a founding member of the Center for Women in Law, serves on the Advisory Board of the Lozano Long Institute for Latin American Studies and was a recent president of the Longhorn Foundation.
  • Bobby Stillwell is a retired partner of the Houston law firm Baker Botts and an immediate past UT System regent who chaired four committees and served on the board of the University of Texas Investment Management Company during his tenure. With an undergraduate and law degree from UT Austin, he joined with T. Boone Pickens as an original director of Mesa Petroleum in 1964, continuing his directorship until 2001. As a trustee of the T. Boone Pickens Foundation, Stillwell helped direct $700 million in educational, scientific and health care gifts to nonprofit organizations.

Contract Dispute between Texas and Oklahoma State Festers

Like their sometimes bitter rivalry on the football field, there is little give between the University of Texas (UT) and Oklahoma State University (OSU) when it comes to the Joe Wickline litigation.

To refresh, Wickline was a highly prized offensive line coach at OSU. The university knew what that had in Wickline and therefore placed a clause in his contract that would be forbid him from making a lateral move to another college football program, unless he was willing to pay $600,000 penalty.

But if you believe OSU that is exactly what Wickline did when he took a job on Charlie Strong’s staff a little over a year ago. Wickline has claimed, however, that it wasn’t a lateral move and that he has play-calling duties, along with offensive coordinator Shawn Watson, in Austin, which would nullify the penalty.

Both sides have dug in and discovery has begun.

The Austin American Statesman has reported that Oklahoma State Athletic Director Mike Holder suggested in a deposition that calling the plays is a one-man job and that the claims of Wickline and other Texas coaches I so much subterfuge.

“I don’t know if it’s normal for an offensive coordinator to call every play, but I just   — in my mind — I believe that Shawn Watson fills that role at Texas, not Joe Wickline,” Holder purportedly said.

Head Coach Charlie Strong has claimed that Wickline oversee the running plays, while Watson calls the pass plays.

Wickline’s attorney Guy Clark, of Northcutt Law Firm of Ponca City, Oklahoma, is reportedly focusing on the lack of specificity in the contract, questioning the OSU AD about whether the contract states that Wickline must call all the plays.

Strong, who announced in a press conference 15 months ago after Watson was hired that he would be calling the plays, noted in his deposition that he did not know about the clause until Wickline should it to him in March of 2014.

Austin’s Own Aviation Law Expert, Mike Slack, Looks at Recent Crashes, What They Mean

(Editor’s Note: Mike Slack of Slack & Davis (www.slackdavis.com), a nationally recognized aviation law expert recently looked at the need to incorporate more modern technology in passenger jets.)

The recent crashes of Germanwings Flight 9525 and Malaysia Airlines Flight 370 are tragic, but germane illustrations of the perils of the reliance on flight data boxes and the need to incorporate advanced technology for forensic and safety purposes in modern aircraft. The data recorders from Malaysia 370 have never been found and the recorders from Germanwings 9525 were almost destroyed.

Technology has advanced sufficiently in favor of supplemental programmed real-time data streaming. Besides implementing systems to detect the circumstances when real-time data streaming is appropriate, such systems could be expanded to detect potential peril and can alert ground personnel so that remote intervention to restore aircraft control could be attempted. The airline industry and major airframe manufacturers are not taking the appropriate initiatives to develop and advance these technologies and they aren’t being encouraged to do so by regulators

From real-time data streaming to “tattletale” systems and remotely piloted intervention systems, I am an advocate for advanced safety features to better detect and avert a potential crash. I also see a need to utilize Global Positioning Satellite (GPS) data to track aircraft positions, especially in areas where radar services are limited or non-existent.

As a former aerospace engineer, I have devoted the last three decades of my life to improving air safety through precedent-setting cases and by advocating for changes by manufacturers and for improvements in the regulations promulgated by the Federal Aviation Administration. I encourage more discussion and action related to technology and aviation safety – and much-needed advancements.

Lloyd Gosselink Rochelle & Townsend Names New Associate

Lloyd Gosselink Rochelle & Townsend, P.C.has named James F. Parker, III as an associate in the firm’s ,litigation and employment law practice groups.

Parker’s practice focuses on defending clients in commercial and employment litigation in cases ranging from complex contract, antitrust, and real estate litigation to employment discrimination and ERISA disputes.JamesParkerHeadshot

Prior to joining Lloyd Gosselink, he represented clients in business litigation matters and employment law in both Dallas and San Antonio.

Parker received his J.D. from Southern Methodist University Dedman School of Law and his B.A. in Government from the University of Texas at Austin. He is a member of the State Bar of Texas and has been admitted to the U.S. District Courts for the Western, Northern, Southern, and Eastern Districts of Texas, the U.S. Court of Appeals for the Fifth Circuit, and the U.S. Court of Appeals, D.C. Circuit.