Austin-Based FloSports Hires Paul Hurdlow as Senior Vice President – General Counsel

FloSports , the innovator in live digital sports and original content, announced the hire of Paul Hurdlow as Senior Vice President and General Counsel.

Hurdlow joins FloSports after serving in various regional and national leadership positions in DLA Piper’s emerging company practice, where he provided broad legal and strategic advice to growth companies in a range of industry sectors.

Hurdlow comes to FloSports with more than 30 years of experience, including 23 years at DLA Piper where he served as FloSports’ lead outside counsel for the past eight years. In addition to establishing the firm’s now-prominent office in Austin, Texas, Hurdlow founded DLA Piper NEST in 2014, an innovative program designed to serve the specific needs of early-stage, high-growth companies, from formation to funding and beyond. At DLA Piper, Hurdlow represented growing clients ranging from early-stage startups to publicly traded companies. He is highly experienced in private and public corporate finance and strategic transactions involving substantial intellectual property rights.

“ The sports media landscape is rapidly evolving and we need elite talent to help us capitalize on the opportunities most vital to our business ,” FloSports co-founder and CEO Martin Floreani said. “For several years, Paul and the team at DLA Piper have been an indispensable resource to us. We’re excited and honored to have him join our senior management team in a full-time capacity. He’s advised a lot of high growth clients during his distinguished career, and we expect him to be a huge asset for FloSports.”

“While working with FloSports, I’ve had the opportunity to develop a great relationship with the team and grow a passion for the business,” Hurdlow said. “Seeing the company’s growth, the evolving complexities of the industry, and the potential to lead a media transformation, I feel like this is an incredible opportunity I can’t pass up. Plus…sports!”

“I am deeply grateful for the opportunity to have worked with the outstanding team at DLA Piper. I could not have pursued this exciting venture with FloSports had my partners and colleagues at my firm not helped me realize my dream of building Austin’s leading emerging company practice. I look forward to cheering the firm’s continued success from the perspective of a valued client.”

Hurdlow is consistently recognized by industry sources and peers as a leading attorney in the venture capital, corporate, and merger and acquisitions areas. Outside of work, he is a passionate supporter of philanthropic and public benefit companies and foundations. Hurdlow co-founded the influential Austin Entrepreneurs Foundation in 1998, and continues to serve on its board of directors.

Austin Bar Issues Statement on the Proposed Elimination of Funding for the Legal Services Corporation

What follows is a statement from the Austin Bar about this recent development:

On March 6, 2017 the Trump Administration revealed a federal budget proposal that would eliminate funding for the Legal Services Corporation. The Austin Bar Association joins the American Bar Association and countless local and state bars from across the country in renouncing this proposed action.

The LSC ensures equal justice under the law by enabling access to the justice system for vulnerable citizens and provides the backbone for America’s civil legal-aid and pro bono system. According to the American Bar Association, the number of people qualifying for legal assistance has increased about 25% over the past decade, but funding is down 17.7% since 2010. Legal aid assists nearly 1.9 million Americans annually, including military and veterans, senior citizens, rural residents, women (nearly 70% of clients), and natural-disaster victims. Sadly, 50-80% of clients are turned away due to a lack of resources.

Texas has three LSC grantees: Texas RioGrande Legal Aid, Legal Aid of Northwest Texas, and Lone Star Legal Aid. Texas LSC grantees assisted over 131,000 Texans in 2017, including over 58,500 children. Approximately 6 million Texans, over 20% of the state’s population, are eligible for legal aid.The poverty population has increased by nearly 1.3 million people since 2000. The state currently receives $31,196,205 in federal funding from the LSC. This funding accounts for 54% of Texas’s total legal-aid dollars. Any reduction at the federal level will impact Texas more acutely than many other states.

Texas Supreme Court Chief Justice Nathan Hecht, in his address to the 85th Texas Legislature on February 1, 2017 said, “The justice system must be accessible to all. Justice only for those who can afford it is neither justice for all nor justice at all. The rule of law, so revered in this country, has no integrity if its promises and protections extend only to the well-to-do.”

Austin attorneys, along with attorneys from across Texas and the U.S., generously donate countless hours of time and services to pro bono clients, but pro bono work alone is a poor substitute for federal legal-aid funding. Access to the judicial system, the third branch of government and the bedrock of a free democracy, remains for all Americans–not just those who can afford to pay for an attorney–a fundamental right of American democracy.

The proposed elimination of all funding for the LSC is an affront to our democracy and to the legal system upon which it is based. The Austin Bar Association is proud to support the LSC and is deeply committed to serving the citizens of Austin and Central Texas to ensure equal access of justice for all.

Apple Named in Wrongful Death Lawsuit in Crash on I-35

FaceTime was cited in a lawsuit as a factor in the death of a 5-year-old girl in a car accident on I-35 in Texas. 

A California couple has filed a wrongful lawsuit against Apple alleging that the company’s failure to lockout its application FaceTime, from users operating vehicles, led to the death of their daughter.

The crash that resulted in the death of the 5-year-old girl happened on Christmas Eve, 2014. Her family’s vehicle was rear-ended by a 22-year-old man who was using FaceTime while driving. The crash injured the plaintiff, his wife and one daughter. Their second child, in the backseat of the car at the time of the collision, died as a result of her injuries. When police arrived at the scene of the fatal crash, FaceTime was still active on the young man’s iPhone.

“Here’s where Apple comes into the picture,” said lawyer Brooks Schuelke, an Austin personal injury not involved in this case. “In 2008, Apple designed technology to prevent a FaceTime user activating the app if the GPS indicated a vehicle was travelling at a certain speed.”

Court documents allege that Apple failed to implement a safer, alternative design that locked FaceTime users from the application while driving.

The technology to limit access to an application based on speed recorded by GPS, is widely used. For example, most cars with video display consoles do not allow the consoles to be changed or modified while the vehicle is in motion. “Which also begs the question why someone would drive and be using FaceTime while doing so. It is definitely distracted driving,” said Schuelke.

 

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.