University of Texas’ Use of Race in Student Admissions Survives Another Legal Hurdle

By Jennifer A. Smith, of Franczek Radelet PC

The U.S. Court of Appeals for the Fifth Circuit decided recently that the University of Texas’s consideration of race as a factor among many factors for college and university admissions is legally permissible in Fisher v. University of Texas at Austin. This follows the U.S. Supreme Court’s decision last year in this case that required the University of Texas to show a compelling government interest for its use of race in admissions along with demonstrating that the admissions policy was narrowly tailored to that compelling interest. The University met this hurdle by persuading the Court of Appeals that its use of race for only a small percentage of applicants was necessary to complement the state’s race-neutral policy of accepting the top ten percent of graduates from every Texas high school.

The Court of Appeals explained that “[t]he sad truth is that the Top Ten Percent Plan gains diversity from a fundamental weakness in the Texas secondary education system. The de facto segregation of schools in Texas enables the Top Ten Percent Plan to increase minorities in the mix, while ignoring contributions to diversity beyond race.” For those limited seats not filled by the Top Ten Percent Plan, the University uses race as one factor in a holistic review aimed at selecting students missed by the Top Ten Percent Plan, such as those with special talents or experiences, including the experience of being a minority that attended an “integrated school with better educational resources.”

The Court rejected the plaintiff’s argument that the University should not be able to use race because the Top Ten Percent Plan already ensures a critical mass of minority students. The Court explained that “[r]ace is relevant to minority and non-minority,” for example race is significant “when candidates have flourished as a minority in their school—whether they are white or black.” The Court found that race is appropriately among the factors that the University may use to search for students with a range of skills, experiences, and performances.

News sources report that the lawyers challenging the University’s use of race in student admissions have vowed to appeal, so this decision is not likely to be the final word on this issue. Nonetheless, it does show that an institution can prevail in defending the use of race in student admissions even after last year’s Supreme Court decision; a decision that raised serious questions about the viability of any consideration of race in higher education admissions. Still, in making admission decisions colleges and universities should keep in mind that the Supreme Court very well might again revisit this issue if Fisher is appealed, and institutions of higher learner should remain mindful of the significant hurdles associated with demonstrating that a policy is narrowly tailored to support a compelling interest, as laid out in the Supreme Court’s original Fisher decision.

Slack & Davis Attorney Writes about Unmanned Aerial Systems (or Drones) and Aviation Law

The Austin-based law firm of Slack & Davis and its aviation attorney Ladd Sanger recently published an article about unmanned aerial systems (UAS) and potential legal issues associated with them in Texas Lawyer. This article appeared in the July 14, 2014, edition.ladd sanger

In the article, Sanger writes how “sophisticated unmanned aerial systems have become economically feasible for use by companies and individuals in many commercial and recreational applications,” but that the FAA Modernization and Reform Act of 2012 … “effectively grounded commercial or business use of UAS.”

Currently, “the FAA must authorize commercial use of UAS on a case-by-case basis,” according to Sanger. “To date, the FAA has only authorized one operation in the Arctic. Furthermore, the FAA is pursuing those that violate the de facto UAS commercial use ban.”

Sanger focuses on air crash litigation and products liability matters. He is an FAA-licensed commercial airplane pilot with instrument and multi-engine ratings. He also is a licensed helicopter pilot. During his career, Sanger has litigated many airline, military and general aviation crash cases. He also has worked for a general aviation affiliate of American Airlines, where he gained a broad background in the corporate and commercial aviation industries.

To see the full article, visit

Procopio, Cory, Hargreaves & Savitch Announce New Hire

Procopio, Cory, Hargreaves & Savitch LLP, a national law firm with offices in Austin, has announced the hire of Adriana Reyes as a foreign exchange lawyer.

Prior to joining the firm, Reyes was an associate with Baker & McKenzie in Mexico, where she advised international companies doing business in cross-border legal issues.

Procopio, Cory, Hargreaves & Savitch (, a business law firm, has more than 140 attorneys in San Diego, Del Mar, Silicon Valley, Austin and Phoenix.

Make Sure the Judge Won’t Declare Your Will Invalid

By Brad Wiewel, of the Wiewel Law Firm

Creating a last will and testament is a smart way to make sure that your loved ones receive your assets with a minimum of fuss and effort after your death. But all too often, people go to great pains to write a will and put other estate-planning documents in place, only to have a court invalidate them. To avoid those common mistakes, you have to know which pitfalls to look out for. Here are some of the key factors to consider to make sure a judge won’t declare your will invalid.

You Must Have Unbiased Witnesses When You Sign Your Will. For a will to be valid in most situations, you need to sign the will in the presence of witnesses. Those witnesses will have the responsibility of testifying in court that the person making the will acknowledged that he or she was signing a last will and testament. These witnesses possibly could be called to say whether the person signing the will appeared to have the mental capacity to sign a will and that the person was not under any sort of pressure that would qualify as undue influence in court.

The Motley Fool article titled“3 Reasons Your Will Won’t Hold Up in Court”stresses that it is important that the witnesses are not receiving assets from the estate—this could look like a conflict of interest and lead a court to choose not to accept that person as a qualifying witness. Without witnesses, it can be difficult or impossible to convince a judge that a proposed will is valid—especially if some of the family and heirs contest the will’s validity.

If You Disinherit Family Members Without Being Clear. This is an area that really requires you to consult with an estate planning attorney. The law typically is in favor of treating family members equally. Thus, if you want to give your daughter more than your son or leave him out entirely, you must be extremely clear about your intentions while not giving that individual cause to dispute the will. The Motley Fooladvises that you at least acknowledge the existence of all of your natural heirs, including your spouse, children, or other family members who would be in line to receive your assets under state law if you died without a will. You can then say that the will intentionally makes no provisions for that individual to receive any assets. That is not to say that the person you leave out of the will could put up a fight in court, but it improves the chances that a will contest will not destroy your planning.

If You Are Determined Not To Have The Mental Capacity To Sign A Will. One way people can contest a will is if the individual signing the will did not have the necessary mental capacity to execute an estate planning document. In other words, when you sign a will you have to understand what assets you own, your closest family members, that you are leaving the property to your designated beneficiaries after you pass, and your overall plan of who will be the recipient of parts of your overall estate. It is important to understand that even if you have a form of mental illness, you can still execute a valid will as long as you meet these requirements.

Courts have the authority to review your will for validity; however, if you adhere to these three ideas, you will have a better chance of having your wishes respected after your death.

Reference: The Motley Fool (June 28, 2014) “3 Reasons Your Will Won’t Hold Up in Court”

Waller Ranked Fifth Largest U.S. Healthcare Law Firm

Waller, which opened an Austin office almost two years ago, was ranked the nation’s fifth largest healthcare law firm for 2014 by Modern Healthcare. Waller was ranked the ninth largest U.S. healthcare firm in 2013 by the magazine and has consistently been among the country’s ten largest healthcare law firms since 2005.

“With nearly 50 years of experience in the industry, Waller has become synonymous with healthcare law, and that’s a commitment we keep with our clients,” said Ken Marlow, chair of Waller’s Healthcare Department.

“In the last 18 months we’ve grown our healthcare regulatory and compliance team by nearly two-thirds, and earlier this year we opened a new office in Memphis that expanded our depth and experience in the pharmaceutical and medical device sectors. As the needs of our clients evolve, we are constantly adding talented and experienced attorneys in our four offices across the country.”

Metcalfe Wolff Stuart & Williams Hires New Associate

Metcalfe Wolff Stuart & Williams LLP has announced the hire of Melisa Leal as an associate.

Leal joins a firm with legal expertise in a wide spectrum of real estate law, including entitlements, mixed-use retail, office, industrial, multifamily and single family projects.

She will focus her practice on special districts, including public improvement districts and municipal utility districts.

Leal is a graduate of the University of Texas and previously worked for McGinnis Lochridge & Kilgore and Andrews Kurth.

Recent Decision in Lance Armstrong False Claims Act Case Raises New Timelines Arguments

By Peter F. Garvin III, J. Andrew Jackson , Grant H. Willis, Meghan E. Greenfield and Alexander M. Yabroff, of Jones Day

For several years now, litigants have wrestled with three questions: (i) does the Wartime Suspension of Limitations Act (“WLSA”) apply to civil False Claims Act (“FCA”) actions, (ii) do the 2009 Fraud Enforcement and Recovery Act (“FERA”) amendments to the FCA apply to FCA “claims” pending as of the effective date of the FERA or to FCA actions pending as of that date, and (iii) to what extent and under what circumstances can third parties be held liable under the FCA for claims asserted by others? The U.S. District Court for the District of Columbia recently issued a significant decision addressing these questions in the context of resolving a motion to dismiss in a whistleblower suit brought against Lance Armstrong.

The FCA action was brought by Armstrong’s former teammate Floyd Landis, and the government later intervened. The complaints allege that Armstrong and his cycling team defrauded the government of $42 million in sponsorship monies by engaging in doping that was prohibited by the United States Postal Service (“USPS”) sponsorship agreements of Armstrong’s team. Armstrong and his co-defendants moved to dismiss the complaint on the basis that they involved events beyond the FCA’s general six-year statute of limitations.

The decision first addressed whether the WSLA tolled the FCA’s statute of limitations. The WSLA amended Title 18 of the US Code to provide that when Congress has authorized the use of military force, “any statute of limitations applicable to any offense involving fraud or attempted fraud against the United States or any agency thereof …” is suspended until five years after the termination of hostilities. The relator argued that the WSLA tolled the statute of limitations for conduct occurring more than six years before the FCA complaint was filed.

In a departure from many recent rulings in other cases broadly interpreting the scope of the WSLA, the court held that because the WSLA’s tolling provision applies only to “fraud” cases, it is not applicable to a suit under the FCA. The court relied heavily on the United States Supreme Court’s decision in United States v. Grainger, 346 U.S. 235, 242 (1953), in concluding that this provision of the WSLA cannot toll the statute of limitations for FCA cases.[1] Grainger held that a WSLA provision suspending statutes of limitations for offenses involving fraud applied only to claims in which fraud is an “essential ingredient.” Because the 1986 amendments to the FCA provide that a defendant may be liable even if he did not have a specific intent to defraud the government, the court reasoned that “fraud” is not an essential ingredient of an FCA offense and, accordingly, that FCA claims cannot be tolled by this provision of the WSLA.

The court distinguished the Fourth Circuit’s recent decision in United States ex rel. Carter v. Halliburton Co., 710 F.3d 171 (4th Cir. 2013), which held that the WSLA applied to civil FCA claims, noting that Carter did not consider the WSLA’s specific intent requirement. Although plaintiffs bringing FCA suits may still attempt to rely on the WSLA’s other tolling provisions for offenses committed in connection with the property of the United States and in connection with war efforts, Landis nevertheless represents an important precedent for FCA defendants seeking to limit the scope of the WSLA and its potential for indefinite tolling because of long-lasting authorizations for use of military force around the world. On July 1, 2014, the Supreme Court granted a petition for certiorari in the Carter case. A decision clarifying the interplay between the WSLA and FCA is expected within the next year.

Landis also addressed the effect of the 2009 FERA amendment to the FCA’s false statements provision, 31 U.S.C. § 3729(a)(1)(B), and concluded that it applied to plaintiffs’ FCA lawsuits for false statements that were pending in May 2009. The court reasoned that when enacting this provision of FERA, Congress specified that it “shall take effect as if enacted on June 7, 2008, and apply to all claims under the False Claims Act … that are pending on or after that date….” There is an open and hotly debated question whether the statutory language—”all claims under the False Claims act”— refers to only “claims” as that term is defined in the FCA (essentially demands for payment) or refers more broadly to any and all civil actions or legal claims pending under section 3729(a)(1)(B).

The court, consistent with the decisions of several courts of appeal, but contrary to the decision of several district courts, including the majority of prior cases in the District of Columbia, held that the broader interpretation controlled and that the FERA amendments applied to any pending legal action instituted by the government “under the FCA.” The court reasoned that the effective date of this amendment—two days after the Supreme Court’s decision in Allison Engine Co., Inc. v. United States ex rel. Sanders, 553 U.S. 662 (2008)—made clear that Congress’s purpose was to overrule Allison Engine’s narrow interpretation of the FCA false statements provision for all cases pending at the time the decision was issued.

The court’s ruling also emphasized that plaintiffs face an increased burden in seeking to draw third parties within the scope of the FCA’s strictures. The court dismissed claims against Thomas Weisel, a founder and shareholder in Armstrong’s cycling company, because the relator had not alleged sufficient facts showing that Weisel “knowingly present[ed], or cause[d] to be presented” a false or fraudulent claim to the government. The court reasoned that neglecting to conduct investigations or urge future drug testing was not an “implied false certification” of compliance with the USPS sponsorship agreements because this inaction did not rise to the level of scienter that is required by the FCA. The court cautioned that adopting the relator’s position and applying a broader rule and assuming a corporate collective knowledge “threatens to cast too wide of a net around corporate officials for FCA liability.”

Similarly, the court held that the relator’s allegations that the corporate defendants played roles in Armstrong’s cycling company and had a close relationship with Armstrong did not satisfy Rule 9(b) and sufficiently allege a conspiracy to commit an FCA violation because “the relator must do more than draw inferences of a conspiracy to defraud the government based on Mr. Weisel being a shareholder and a corporate official at [the cycling company].”

Government contractors should pay special attention to the Armstrong case since it touches upon several critical open issues regarding the reach of the FCA and may serve as a guidepost for defendants and qui tam plaintiffs moving forward.

Austin Firm Sues Former Client over Negative Yelp Review

Grissom & Thompson has claimed in a June 24 lawsuit that a former client defamed the firm when he posted a negative Yelp review that was disparaging and “blatantly false,” with no basis in fact, according to an article in the ABA Journal.

The former client, according to the magazine, was Austin resident Joseph Browning.

Among other things, he wrote in his review “that this firm not only won’t help you—they intend to do you harm if they can’t extract enough money out of you in a manner which is expedient to them. They are disorganized, deceptive, manipulative and largely disrespected because they are selfish and incapable of showing empathy towards their clients.”

The law firm’s lawyer, Kirk Fulk, told the magazine that the suit “is not about the money. I would be shocked and amazed if [the firm’s name partners] even got their filing fees back from Mr. Browning. It’s purely a matter of principle and personality. They don’t want their names slandered.”

The full article can be viewed at

LMA Austin City Group To Host Coffee Meetup Tuesday Morning

The Austin City Group of the Legal Marketing Association will host one of it regular Coffee Meetups Tuesday morning, beginning at 7:30, at Halcyon at the corner of 4th Street and Lavaca.

Email Jessica Dobias at if you plan to attend.

For a list of other events in Texas, visit


Austin Bar’s Animal Law Section to Host 2014 Animal Well-Fair Event on July 16

The Animal Law Section of the Austin Bar Association will host its 2014 Animal Well-Fair event on July 16, from noon to 2 p.m., at the Community Room at Whole Foods at the Domain.

The event is free and open to the public. Participating organizations include Austin Animal Center, Austin Humane Society, Austin Pets Alive, Austin Wildlife Rescue, the Humane Society of the United States, and Emancipet.henry

The first hour of the Animal Well-Fair will be an information program with speakers from various Austin-area animal welfare organizations sharing how they assist animals in our community.

The second hour of the program will provide attendees the opportunity to mingle with representatives from the attending organizations to learn more about how they can get involved as a volunteer or donor to help Austin’s animals.

If you have any questions about specifics, please email Susan Salch at or Kelley Dwyer at