Attorney: Will Austin Come Crawling Back To Uber And Lyft?

Attorney Anne Milligan of Fisher and Phillips recently wrote a blog post about the controversy over Austin and the ride-sharing services:

“”The sharing economy has become so entrenched in our vocabulary and culture, it’s hard to remember when exactly the romance began. For Uber, the story started on a ‘snowy Paris evening in 2008‘ when two tech dudes had trouble convincing a chauffeur de taxi to rescue them from the elements. And thusly the biggest of the ride-sharing giants was born in 2009. Way back when, it wasn’t 50 Shades of late-model Nissan Sentra—it was all black Lincoln Town Cars, all day long.

“But as with any real-life romance, eventually the fanciness fades and the five-star dinners and flowers fade to Endless Apps™ and Netflix. With Uber and Lyft, there were growing pains, competing desires, and unexpected twists—passionate arguments for and against the companies, from cities, cab unions, and people who were just sick of getting stuck in the snow.

“Much like John Cusack’s character in 1989’s classic Say Anything…, Uber and Lyft showed up with a boombox and a whole bunch of independent contractors, even in cities where they were explicitly banned, hoping to woo the cities over to giving them a permanent place in the heart of the city.

“Austin was one such city. After being locked in a regulatory battle with the city over whether it would even be allowed to operate in city limits, ride-sharing service Uber announced in June 2014 that it was showing up, and it wasn’t leaving until the City came outside to talk about its feelings. Flash forward to December 2015, and it looked like Austin was ready to say yes to the proverbial dress—with one hefty condition. All drivers would have to undergo a fingerprint-based criminal background check. For Uber and Lyft, that was the relationship equivalent of being asked to lose fifty pounds and quit smoking. And with that, the two car sharing platforms packed their bags, knowing that one day—Austin would know what they missed out on.

“In the months that followed, news outlets touted the micro-ride share companies that filtered into the mix, a seemingly perfect pairing to the City’s microbreweries and burgeoning micro-apartment fix. Austin was blasting that new relationship all over the (social) media, and news outlets looked to cities like Austin as evidence that there was “life after Uber. And it’s pretty good.” One sharing economy expert even said that “It’s a really helpful place where we’ve been able to hit the hold button on Uber and Lyft and say — what else is possible? What else might happen?” (read: I’m really happy about this breakup, I can really grow as a person, you know?)

“Times change; people change; cities change. Austin’s micro-Uber alternatives faced their first, big test at this year’s SxSW (an annual ten day conference/festival that the really cool people claim isn’t cool anymore, but that still draws 72,000 registrants and artists each year). It doesn’t take a gambling man to say that the micro-Ubers of Austin weren’t ready to take on the once-a-year burden of most of the population of Asheville, North Carolina (population 88,512) or Bloomington, Indiana (population 84,067), just like it doesn’t take much analysis to safely say that the ultimate result of Austin’s rejection of Uber and Lyft was a literal meltdown.

“Enough time has passed now, and Austin doesn’t have to keep doing wrong to prove that it was right a year ago. One of the many great things about Austin—whose downtown ZIP code has the most bars per capita than any other ZIP code in the country—is that its citizens are equally committed to a cold, cheap PBR as they are a local microbrew. Lyft, Uber, and the City’s unique micro ride-sharing companies can exist amongst each other. This author hopes Austin will give John Cusack another chance.”

Austin Young Lawyers Association Holds 3rd Annual Runway for Justice

The Austin Young Lawyers Association Foundation is sponsoring a fashion show to benefit the Women’s Resource Fair, which provides food, clothing, medical care, hygiene care, childcare and job assistance to over 300 low-income women in Travis County.

The 3rd Annual Runway for Justice will be held on Thursday, March 23, at 800 Congress Ave.  Austin, from 6:00 – 9:30 p.m. and will showcase men and women lawyers modeling casual, business and evening looks.  Champagne, cocktails and hors d’oeuvres will be served, and all guests will receive a SWAG bag. Claude Ducloux and Karen Burgess will emcee the event.

Clothes by: Estilo Boutique, Z Couture, Wally’s Menswear.

Accessories by: Ruby & Violet, Embellish Boutique, and Jackie Padilla of Stella and Dot.

Hair and makeup for models by Ritual Salon and Tiffany Taylor.

Onsite makeup for attendees by Blast Blowdry Bar.

Tickets to Runway for Justice are $60 per person. Purchase tickets at www.ayla.org.

Members of the media are invited to attend. Please contact Debbie Kelly, Debbie@austinbar.org, to arrange for a press pass.

Runway for Justice helps fund the Women’s Resource Fair which provides the following services:

·       Medical services, including mammograms, pap smears, well women exams and wellness visits

·       Confidential legal assistance with family law, child custody, domestic violence and protective orders, criminal cases, immigration, estate planning and consumer issues

·       Mental health services

·       Social services and shelter referrals

·       Job skills, education and employment counseling

·       Debt and credit counseling

·       Clothing closet and haircuts

One woman, molested as a child and placed into foster care by Child Protective Services, put herself through school to be a private investigator while working several jobs.  After being laid off and abandoned by her husband, she and her son became homeless.  Her life changed after attending the Women’s Resource Fair. “I peeked into the main room of service providers, where a woman from Dress for Success was talking about jobs and interviews. I wondered, “Where is Dress for Success?” Maybe there I will find help, and indeed I did. Dress for Success outfitted me in interview suiting, which I wore out of the boutique. From there, I drove to downtown Austin and knocked on the doors of many attorneys to offer my Private Investigative Services. Without a business card or a website, I became an entrepreneur overnight.  Four years later, I am one of 40 private investigators in Texas who own their own firm.”

Managing Partners Forum Set for Thursday

The next meeting of the Austin Managing Partners Forum (MPF) will take place on March 23, 2017 at Graves Dougherty Hearon & Moody from 5 p.m. to 6:30 p.m. 

This event is being billed as “the perfect opportunity to network with a diverse group of Austin’s law firm managing partners and discuss issues you regularly face.”

Brenda Barnes, Managing Principal of B2 Management & Consulting will moderate a panel of your esteemed colleagues talking about something that’s always on the mind of Managing Partners: Succession Planning.  You’ll hear from Joe Basham of Allensworth & Porter, Steve Wood of Thompson Coe, and Ed McHorse of Graves Dougherty. They’ll talk about their experiences with succession planning within their respective firms and offer insights that you can consider for your own firm.

If you are a Managing Partner and you would like to register, visit:

http://r20.rs6.net/tn.jsp?f=001_Q_FwFosGW1BbKA35EHVCS3iHtMDCN7gGQGqnUjzSLx06vw18U38d6W0JM8qL_Mr9Zzu8s1lRI9H7hAEsCPXQbcULpiCTp1igKH-_TK-UHey8TibjPekaGyk9u6_eF8d-_hADxiC_Xau1pdQw29U3ZxJ5Brr8BclTEZ7yFVnXpOJf1e05Li9QrNSNOqg5QBs6kG5S4BrnyRHLu1A-gLjg3maS06C7hu-tYos4YbnqMH3Z9FqcHUotGpWZFe8IfBgxNBWvqQlNud5z8iqPu6lJA==&c=mnNtX0p4tMHSXpWjLqQjY9oU70NAnAZW2h1PbaOlghLyEolLj85wPw==&ch=dnLNueT8sMwHkT81IgJlmpWm6JLZR19oaQ5F38oWEUV67lvU3lm5qw==

Please direct any questions to Clare Chachere at cchachere@slackdavis.com

 

Texas Campground Not Liable for Wind, Rain and Rising Rivers

“By James H. Moss (Rec-law@recreation-law.com)

Campground on river sued when river rose, flooding the campground and washing plaintiff’s downstream.

Walker v. UME, Inc. d/b/a Camp Huaco Springs, 2016 Tex. App. LEXIS 5934

State: Texas, Court of Appeals of Texas, Third District, Austin

Plaintiff Claims: negligence, premises liability, and gross negligence

Defendant Defenses: No Duty and Texas Recreational Use Statute

Holding: For the defendants

Facts

Two couples took their RV’s to the defendant’s campground for the weekend. The first day the plaintiffs took a canoe trip past the campground and took some cave tours. It was not raining when they went to bed. Around 6:00 AM, the surviving plaintiff woke up to a rainstorm and their RV’s floating.

The RV’s floated down the river. One plaintiff did not survive. The surviving plaintiffs sued the campground, campgrounds alleged owner and several employees. The plaintiff’s claims were based on alleging negligence, premise’s liability, and gross negligence. Overall, their claims were based on numerous claims that the campground had a duty to warn them of the flood.

“Appellants asserted that appellees knew that the campground was prone to flooding and failed: to warn appellants of that fact; to warn of the approaching storm; to prepare a plan for flood awareness, communication, and evacuation; to have and use speakers or sirens to warn of flooding; to employ someone to monitor the weather and warn and evacuate guests; to have an employee on site during severe weather; and to make reasonable modifications, have emergency communications, or educate guests about severe-weather risks.”

The defendants filed numerous motions for summary judgment arguing they were protected by the Texas Recreational Use Statute, and they owed no duty to the plaintiffs. The trial court dismissed the plaintiff’s claims without comment. The appeal followed.

Analysis: making sense of the law based on these facts.

The appellate court started its analysis by stating the trial court was right and there was no duty owed to the plaintiffs.

“Even if we assume that the recreational use statute does not apply, we hold, as a matter of law, that appellees did not owe the Walkers and Johnsons a duty to warn of or ensure against rising river waters.”

Texas Premises Liability Act requires landowners with liability for actual or constructive notice of a condition that poses an unreasonable risk of harm and did nothing to reduce or eliminate the risk.

“When an injured invitee asserts a premises-liability claim, she must show that the owner or occupier had actual or constructive knowledge about a condition that posed an unreasonable risk of harm and did not exercise reasonable care to reduce or eliminate the risk and that such failure proximately caused her injury.”

Rain swollen rivers were described by the court as a condition that came to the land, rather than a condition on the land. Even so, in Texas, rain, mud and ice are natural conditions that do not create an unreasonable risk of harm.

“Regardless of that fact, Texas courts have consistently held as a matter of law that naturally occurring or accumulating conditions such as rain, mud, and ice do not create conditions posing an unreasonable risk of harm.

“The basis for those rulings is that rain, dirt, and mud are naturally occurring conditions beyond a landowner’s control. (“rain is beyond the control of landowners” and “accidents involving naturally accumulating mud and dirt are bound to happen, regardless of the precautions taken by landowners”). Requiring a landowner to protect an invitee from precipitation or other acts of nature would place an enormous burden on the landowner.”

Additionally, the court held the plaintiffs were aware of the issues because they could see the river from their campground and had canoed past the campground earlier in the day.

“Further, an invitee is or should be ‘at least as aware’ as the landowner of visible conditions that have ‘accumulated naturally outdoors’ and thus ‘will often be in a better position to take immediate pre-cautions against injury.'”

Landowners in Texas cannot be insurers of people on the land for those acts which the landowner has no control, those things we used to call “acts of God.”

“Texas courts have repeatedly observed that a landowner ‘is not an insurer’ of an invitee’s safety and generally ‘has no duty to warn of hazards that are open and obvious or known to the invitee.’ Texas courts ‘have held in various contexts that flooding due to heavy rains is an open and obvious hazard.’ [T]he owner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake.”

A landowner can be guilty of gross negligence by creating a condition that a recreational user would not reasonably expect to encounter. However, there was no gross negligence nor negligence because the harm was not created by the landowner.

“We see no useful distinction to be drawn between ice and mud, which are natural conditions caused by rain and freezing temperatures, and rising river waters, caused by a natural weather event over which appellees could exercise no control. The June 2010 flood was not a condition inherent in or on the land in question. Instead, the flooding was a condition that came to the campground as the adjacent river, the same river that made the land an attractive place to camp, rose due to heavy rains.”

The court then summed up its ruling.

“We hold that as a matter of law appellees had no duty to warn the Walkers and Johnsons of the possibility that the river, they were camping beside might rise in the event of heavy rain, posing a risk to the campground.

“Because appellees did not owe a duty to warn of or attempt to make the campground safe against flooding of the adjacent river due to torrential rain, the trial court properly granted summary judgment in their favor. We affirm the trial court’s orders.”

So Now What?

This is a good ruling. Acts of God have always been outside the control, by their definition and act, of man. Consequently, you should not be able to hold someone liable for such an act.

This may not be true for all situations, or in all states, but for Texas campground owners and landowners don’t need to worry about the rain.

Family of Bastrop Man Killed in Bus Crash Retains Law Firm

A Houston law firm is representing the family of Bastrop resident Kenneth Hoffman, one of four people killed earlier last week when the tour bus they were riding in was hit by a freight train in Biloxi, Mississippi.

According to authorities, the motor coach got stuck on the tracks while trying to clear a crossing marked as having a low-ground clearance. A CSX freight train crashed into the bus about 2:15 p.m. Tuesday, March 7.

Four passengers were killed and 41 others injured, eight of them critically.

“This tragedy should have never happened,” said Larry Wilson, an attorney with The Lanier Law Firm who specializes in railroad claims and trucking accidents. “It’s horrifying that a charter bus would ignore a warning sign and get high-centered on the tracks. It’s a risk that never should have taken place.”

Mr. Wilson said Lanier attorneys will review video from the train and records from previous accidents at the same location.

“CSX Transportation may very well bear some of the responsibility for the events at that crossing, as it was well known as one of the most dangerous crossings in the entire nation,” Mr. Wilson said. “CSX could have implemented policies relating to speed and procedures that greatly reduced the risk of a catastrophe like this. What actions could have been taken to avoid that collision? That is a question that we have to ask.”

Texas State Securities Board Release Cybersecurity Primer

The Texas State Securities Board has published resources to assist state-registered investment advisory firms and other registered professionals in developing and strengthening cybersecurity plans.

“Cyberattacks are on the rise, and their scope and complexity mean state-registered professionals should analyze the array of risks they face,” said Texas Securities Commissioner John Morgan.

The cybersecurity resources include planning guides from regulatory agencies and industry groups to help firms broadly identify the risks related to cybersecurity, protect firm networks, assess the risks of access to client information, and implement procedures regarding third-party vendors.

The most important factor is how every prong of a cybersecurity strategy ties together to help firms protect their ultimate constituency: their clients.

Besides general cyber-planners, the resources cover:

The ongoing process of risk assessment, both internally and with outside vendors, including protecting networks from rapidly escalating threats such as ransomware;

An incident response plan to help make more informed decisions during the stress of attack;

The use of encryption to protect underlying data even if there is a cybersecurity breach;

Anti-virus protection to identify viruses and malware;

Securing electronic mail to prevent cyber-criminals from taking over a client’s account;

Data backup and retrieval to mitigate the risk of theft of information or recovery from a disaster;

Cloud computing, which is accessing data over the Internet from remote servers;

Protecting a firm from disgruntled employees who may engage in cyber-sabotage;

Maintaining a secure website;

Considerations regarding the purchase of cyber-insurance.

Beyond a Reasonable Doubt? Study Reveals How Eyewitness Testimonies Go Wrong

Eyewitnesses identify more than 75,000 suspects each year in the United States and their testimonies are one of the most compelling and powerful forms of evidence for a jury. But, it’s not foolproof — just ask the 242 individuals who were mistakenly identified by eyewitnesses and served years in prison for crimes they did not commit until they were exonerated thanks to the introduction of DNA testing.

Research by psychologists at Florida Atlantic University gives new meaning to the notion of “guilt by association” and aims to test how memory in humans as well as police use of mugshots and subtle innuendo can contaminate eyewitness testimonies. Using a laboratory setting, they investigated the phenomenon of unconscious transference – when an eyewitness misidentifies a familiar but innocent person in a mugshot or lineup – and recently published their results in the journal Memory & Cognition.

Police departments currently use a number of methods to identify the culprit of a crime, including individual mugshots, an array of mugshots, composite sketches and lineups. Often, eyewitnesses are exposed to one or more of these procedures coupled with feedback from law enforcement.

“There are a number of ways that eyewitness testimony can be contaminated with misleading information and that’s why you have to treat memory like other forms of forensic evidence,” said Alan Kersten, Ph.D., co-author of the study and an associate professor of psychology in FAU’s Charles E. Schmidt College of Science. “If you handle it right you can often get useful information from it.”

Kersten and collaborator Julie Earles, Ph.D., co-author and a professor of psychology in FAU’s Harriet L. Wilkes Honors College, were looking for answers to a key question involving eyewitness testimonies and mugshots: “Does presenting a picture along with a question like ‘is this the person who did it?’ create an association between those two things that could then cause an eyewitness to later falsely remember seeing that person doing that action?”

For the study, participants were broken into two age groups: a median age of around 19 years old and a median age of around 71 years old. Each participant was shown a series of snippet videos of actors doing simple actions and were then instructed to remember which person had performed each task. The researchers created 84 mugshots from these videos as well as a series of various scenarios of events. For each trial, study participants were shown two mugshots: one depicting an actor from one of the videos and the other depicting a new, random actor. Each mugshot was accompanied by a question about a particular action such as “which of these people did you see watering a plant?” After completing the mugshot trials, older adults and half of the younger adults were tested immediately for their recognition of the events they had seen, whereas the other younger adults returned about three weeks later.

Results from the study confirm what the researchers have long suspected – viewing a mugshot along with a question like “is this the person who did it?” can lead to the creation of a specific association between the person and the queried action.

They found that both younger and older participants were more likely to falsely recognize the test events if the actors appearing in those events also had appeared in the mugshots. However, the mechanisms underlying this effect were different for younger and older adults. With older adults, mugshot viewing led them to experience a feeling of familiarity when they saw the pictured actor performing a familiar action from one of the videos, even if it was a different action than the one that was suggested when they viewed the actor’s mugshot. This suggests that older adults recognized the familiar person but could not recall the source or reason for that familiarity. Younger adults, on the other hand, were more likely to falsely recognize a suspect if a mugshot of the actor was accompanied by a question about the action that the actor was now seen performing. This finding suggests that the young adults formed a specific association between the pictured actor and the queried action, causing them to later falsely recollect having seen that actor perform that action.

“False recollection is really troubling from a legal perspective because this type of memory leads an eyewitness to put a face to a context of a crime scene, incorrectly linking the two together and leading to the conclusion that this person committed the crime,” said Earles. “And to complicate matters even more, since it can take years for a case to appear before a jury, memory also can be altered with the passage of time.”

Kersten and Earles caution that this type of memory leads to a high level of confidence, especially in younger eyewitnesses, because they are convinced “beyond a reasonable doubt” that they saw the suspect committing the crime.

“Eyewitnesses remember the crime itself and remember seeing a familiar person before but they may incorrectly visualize these two pieces of information together,” said Kersten. “Because they are able to place the familiar person in the context of the crime scene, this may lead them to confidently assert that they saw the person commit the crime.”

This study was supported by a grant from the National Institute on Aging of the National Institutes of Health (grant number: AG23526).

Austin Jury Finds Danish Woman Was Defrauded in $1.35M Condo Sale

A Travis County jury has returned a verdict against Chicago Title of Texas, LLC, and other real estate-related businesses, finding they defrauded a young Danish woman of all proceeds from the sale of her $1.35 million condominium at the exclusive Residences at W Austin.

The scheme involved a falsified power of attorney to execute contracts and closing documents in the sale of the condo, and a forgery in connection with a subsequent sale of a promissory note.

Mari-Louise Larsen, a Danish citizen, filed the breach of fiduciary duty and fraud claim in 2013 against her estranged husband, Andre Jones, an Austin-area resident, as well as Chicago Title and the other firms. Ms. Larsen, now 30, first met Mr. Jones in Austin’s Sixth Street entertainment district while visiting the area in 2007. After a long-distance courtship, the couple married in Denmark in 2009.

While in Denmark and waiting to move to Austin, Ms. Larsen testified she agreed to buy the luxury high-rise condo in Austin with funds from a family inheritance. However, Mr. Jones convinced her that Texas law required the names of both spouses to be on the title, despite the fact it was her separate property. Ms. Larsen and Mr. Jones later decided to divorce and sell the property. Mr. Jones then convinced Chicago Title’s contracted fee attorney to use falsely notarized documents to close the sale without his wife’s knowledge. Mr. Jones pocketed all of the profits as the marriage deteriorated.

“This is a case of a con artist taking advantage of a wealthy young woman and actively working with others to violate the law and professional standards in the real estate industry,” said Ms. Larsen’s lawyer, Brian N. Hail of Gruber Elrod Johansen Hail Shank LLP in Dallas. “As acknowledged by Chicago Title and its fee attorney, this was one of the worst real estate transactions anyone has ever seen.” 

Mr. Hail believes the jury’s finding that Chicago Title is responsible for its fee attorney’s actions may have significant implications on future litigation involving the real estate industry. 

“The jury finding that Chicago Title is vicariously liable for its fee attorney, due to the control it exerted throughout the entire transaction, may call into question the company’s entire business model of attempting to delegate closing and escrow responsibilities in the Texas market, and perhaps nationwide.”

In addition to Chicago Title and Mr. Jones, an Austin law firm, and Austin-based JTREO, Inc. were found liable in the scheme.

Mr. Hail plans to file a proposed final judgment order of more than $3.7 million in Travis County’s 419th District Court. The order will be based on a request for all proceeds from the condo sale, in addition to pre-judgment interest and costs.  Punitive damages were assessed against Mr. Jones in the amount of $2 million.

The case is Larsen v. Jones, et al., No. D-1-GN-13-004321.  Ms. Larsen is represented by Brian N. Hail, Brian E. Mason, and Gaby Gutierrez Rawlings.

The following was taken from a press release funded by Gruber Elrod Johansen Hail Shank LLP.

Judge Allows False Claim Act Lawsuit Against Lance Armstrong to Continue

(The following is reprinted from Sports Litigation Alert, the nation’s leading sports law periodical with more than 3,000 articles and summaries in its searchable archive. To subscribe visit www.sportslitigationalert.com)

A federal judge from the District of Columbia has denied a bid by the attorneys of Lance Armstrong, the seven-time winner of the Tour de France, to have a lawsuit dismissed, which claims that Armstrong violated a federal law when he accepted money from the United States Postal Service (USPS) during his professional career, while all the while using performance-enhancing drugs.

The 2010 lawsuit was filed by one of his former competitors, Floyd Landis, pursuant to the False Claims Act.

Landis and the government claim that USPS paid $32.3 million to sponsor Armstrong’s team, and also paid Armstrong $17 million, while spending almost $40 million appearing as the main title sponsor on several of Armstrong’s teams. The government is seeking treble damages under the Act, meaning Armstrong could potentially be held liable for more than $100 million in damages. Landis stands to receive up to 25 percent of any damages awarded.

In his bid to have the claim dismissed, Armstrong attorney Elliot Peters wrote that “the undisputed evidence, developed over years of intensive discovery, establishes that the government’s damages claims cannot survive.” Additionally, in response to the government’s claim that the sponsorship of Armstrong’s teams was worthless, Peters cited reports commissioned by the USPS he claims establish that it received “at least $165 million in domestic and international media exposure as a result of the cycling team sponsorship between 2001 and 2004.”

While the court relented that Armstrong’s legal team made a “persuasive case,” he added that any decision on damages should be left to a jury.

“Giving Armstrong ‘credit’ for the benefits he delivered while using (performance-enhancing drugs) could be viewed as an unjust reward for having successfully concealed his doping for so long,” the judge wrote. “(But) disregarding any benefits USPS received from the sponsorship could bestow the government with an undeserved windfall. The same could be said of Landis, whose role in this entire affair some would view as less than pure.”

Peters is still convinced that his client will prevail, telling the media that “there is no actual evidence of any quantifiable financial harm (to the Postal Service). So, the government may now proceed to a trial that, as a practical matter, it cannot win.”

Dale Wainwright, Former Texas Supreme Court Justice, Joins Greenberg Traurig to Chair the Texas Appellate Practice Group

Former Texas State Supreme Court Justice Dale Wainwright has joined global law firm Greenberg Traurig, LLP as chair of its Texas Appellate Practice Group. He joins as a shareholder, moving from the Bracewell LLP Austin office where he was the managing partner.

At Greenberg Traurig, Wainwright will represent clients in complex disputes in state and federal trial and appellate courts. He will handle briefing and oral arguments, structure appeals and mandamus proceedings for success, and counsel clients on litigation strategy, error preservation at trial, jury charge preparation, post-verdict proceedings, and analysis of the trial record for appellate potential.