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  • Jan 7, 2014Ann Badmus, Lawline faculty
    Author(s): Ann Badmus

    Lawline.com faculty

    Attorneys:
     • Ann Badmus

    Practice Areas:
     • Immigration


  • Jan 7, 2014Ann Badmus, Newsletter Contributor
    Author(s): Ann Badmus

    Ezinearticles.com contributor

    Attorneys:
     • Ann Badmus

    Practice Areas:
     • Immigration


  • Jan 7, 2014Ann Badmus, Newsletter Contributor
    Author(s): Ann Badmus

    JDSupra.com contributor

    Attorneys:
     • Ann Badmus

    Practice Areas:
     • Immigration


  • Jan 7, 2014Ann Badmus, Author of Immigration Prescription: The Practical Guide to Immigration for Foreign Born Physicians
    Author(s): Ann Badmus

    Author, Immigration Prescription:  The Practical Guide to Immigration for Foreign Born Physicians

    Attorneys:
     • Ann Badmus

    Practice Areas:
     • Immigration


  • Jan 7, 2014Ann Badmus, Guest Columnist
    Author(s): Ann Badmus

    Guest Columnist, Asian Beat newspaper

    Attorneys:
     • Ann Badmus

    Practice Areas:
     • Immigration

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News

  • Jan 20, 2015Oil and Gas Litigation: Protection for Mineral Interest Owners

    Oil and Gas Litigation:  Protection for Mineral Interest Owners Chapter 95 of the Texas Civil Practice and Remedies Code protects a property owner, from claims arising from personal injury, death, or property damage to an owner, contractor, or subcontractor or an employee of a contractor or subcontractor; and (2) which claim arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates or modifies the improvement.  TEX. CIV. PRAC. & REM. CODE §95.002. Because the owner of mineral interests is considered a  “property owner” within the meaning of the statute and the activities of facilitating the construction or performance of an oil, gas or other well is considered construction, renovation or modification of an improvement (Painter v. Momentum Energy Corp.,  271 S.W.3d 388, 397-400 (Tex. App. – El Paso 2008, pet. denied)), this statute has become an especially valuable defense to owners of mineral interests.  When Chapter 95 applies, it is the exclusive remedy for a party suffering personal injury, death or property damage during drilling operations as a result of some condition on the property.  To recover against an owner, a plaintiff must prove that (1) the property owner exercised or retained actual control over the work; and (2) the property owner knew of the danger but failed to adequately warn.  As the statute is framed in the conjunctive, the evidence must show that the property owner retained control over the manner of the work and that the property owner had actual knowledge of the danger.  Proving one without the other is not sufficient to meet the burdens imposed by Chapter 95.  Typically, the owner or operator subcontracts out the various services provided by the those working on the well. With the protections afforded by Chapter 95, the owner is better protected against claims. When well-chosen subcontractors are armed with the tools to timely and effectively do their jobs, Chapter 95 helps to alleviate everyone’s safety concerns. 

    Attorneys:
     • Kyle Hejl

    Practice Areas:
     • Oil, Oil Field, and Gas


  • Jan 20, 2015New Value An Often-Overlooked Preference Defense

    New Value – An Often-Overlooked Preference Defense This article is the second in a continuing series on defenses to preference claims.  Below is the hypothetical fact pattern we will be using throughout the series.  Future articles on preference defenses will be highlighted in subsequent Cowles & Thompson newsletters. The facts:  You are owed a substantial sum of money – one million dollars -- on a pre-existing obligation.  But the debtor is having nascent financial issues.  Although he was paying like clockwork – 30 days net -- he still owes $800,000 and has paid you nothing for the last 60 days.  You demand payment in full.  And that’s what you get: payment in full.  Satisfied he is good for the monies owed, you perform additional services and now he owes you another $600,000.  Two months later, the debtor having paid nothing on the subsequent invoices, you receive a notice advising you that he’s filed chapter 7.  Two years later, the chapter 7 trustee says that you received a preference and demands that you pay back, in ten days, the $800,000 that you had previously received two years earlier.  So now you’re potentially out $1.4 million.  Assuming the debtor is not paying his creditors in full, under the facts above, you’ve received a preference.  The question now is whether you have a valid defense. The preference provisions of the Bankruptcy Code provide, with certain exceptions, that transfers made by a debtor to a creditor on a pre-existing obligation within 90 days of the bankruptcy filing are preferential.  As such, they can be recovered.  Among the defenses available to creditors who have received such transfers is the new value defense.  That defense generally provides that the trustee may not recover a transfer to the extent the creditor gave new value to the debtor after the debtor received the alleged preference payment.  Thus, three requirements for such a defense is that the creditor must first have received the initial transfer that is recoverable as a preference.  Second, the creditor must subsequently advance new value to the debtor on an unsecured basis.  Third, the debtor must not have paid that advance of new value; generally, payment of the subsequent new value is the death knell for the new value defense. But assume the debtor receives an order from the court after filing bankruptcy authorizing the payment to you as a critical vendor.  The amounts due are paid and you are made whole.  However, the chapter 7 trustee offers you a case called In re Kiwi International Air, Inc., 344 F.3d 311 (3d Cir. 2003) (see footnote 1 below) which says that the court has to account for material events occurring after the bankruptcy in performing a preference analysis.  Do you still get to keep your new value defense even though you’ve been paid? In a case of first impression, the Third Circuit Court of Appeals said yes.(see footnote 2 below)  Relying “on the context and policy of the [Bankruptcy] Code, rather than [its] specific language,” the Third Circuit held that one of the policies of the Code is to ‘treat fairly a creditor” who provides new value.  The policy of equality of distribution among creditors of the debtor was not enacted so as “to ensure equitable treatment of creditors but rather is intended to encourage creditors to deal with troubled businesses.”  Thus, “a critical vendor who provided new value during the preference period need not be treated the same as” one who didn’t.  Where the bankruptcy court issued an order authorizing the post-petition payment, it would impair the Code’s policies to undermine that order.  While Kiwi advises that post-petition events may influence a preference analysis, it is the context and policy of the Bankruptcy Code which must first be considered.  It is that policy and context which will determine how much influence such post-petition events will have. __________________________ 1.  The author of this article was involved in the Kiwi appeal to the Third Circuit Court of Appeals. 2.  In re Friedman’s (Friedman’s Liquidating Trust v. Roth Staffing Companies LP), No. 13-1712 (3d Cir., Dec. 24, 2013).

    Attorneys:
     • Stephen Stapleton

    Practice Areas:
     • Bankruptcy and Creditors' Rights
     • Corporate and Business


  • Jan 20, 2015Texas State Contractors 5 Key Steps You Must Take To Get Ready for E-Verify

    Texas State Contractors – 5 Key Steps You Must Take To Get Ready for E-Verify On December 3, 2014,  Governor Rick Perry of Texas issued an executive order requiring all Texas state agencies and their contractors to use E-Verify, the federal government's electronic employment eligibility verification system.  This broad order could affect hundreds of companies and firms doing business with the state of Texas. If your Texas company comes under Governor Perry’s executive order or if you voluntarily plan to use E-Verify, here are a few key steps you should take if you are new to the system: Step 1: Choose and train staff who will administer the E-Verify checks. Any employee that uses E-Verify must be thoroughly trained and periodically re-trained in its procedures and policies. One wrong step can result in fines and penalties for the company, including back wages for employees who are fired because of misinterpretation of E-Verify results. Step 2: Know your legal obligations. The responsibilities of all employers that use E-Verify can be found in the Memorandum of Understanding (MOU). Read the MOU thoroughly! It lists 15 employer responsibilities that must be followed strictly. For example, participating employers must allow the DHS or SSA to come on-site and review their E-Verify-related and employment records. Step 3: Complete and maintain I-9 forms. The E-Verify program is not a substitute for long-established I-9 procedures. Employers must continue to follow I-9 rules for employment verification in addition to performing E-Verify screenings. Make sure your staff is thoroughly trained in I-9 procedures before using E-Verify. Step 4: Conduct an I-9 audit before enrolling in E-Verify. I-9 records have always been subject to government review or audit. But participating in E-Verify also gives DHS an additional reason to take a peek at I-9 records. To discover problems and avoid heavy fines and penalties, companies should conduct a private audit of its I-9 forms and procedures. A private I-9 audit can reveal a number of correctable errors and areas where additional staff training is needed. It will also expose systemic problems, such as the failure to keep required records, the failure to re-verify employment authorization, and the repetitive mistakes in completing I-9 forms. Indeed, more and more companies now demand that their contractors perform an internal I-9 audit of their own I-9 file. Step 5: Contact an immigration attorney. Because the use of E-Verify is not risk-proof and the immigration laws change frequently, cautious employers should contact an immigration attorney before using E-Verify. An attorney can help train your staff in both I-9 and E-Verify procedures and conduct an internal I-9 audit that will help you spot problems before the government does. The information provided in this article is intended to help you understand basic issues involved in the immigration process, and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. You should not act or rely upon the information in this article without first seeking the advice of an immigration attorney.

    Attorneys:
     • Ann Badmus

    Practice Areas:
     • Immigration


  • Dec 17, 2014It's Good to be an "Innocent" Seller in Texas

    Enacted in 1993, Chapter 82 of the Texas Civil Practices and Remedies Code provides various benefits and protections to "innocent" sellers who are named as defendants in product liability suits.   Key Definitions   In order to take advantage of the provisions of Chapter 82, however, a seller must meet certain threshold definitions.  First, the action in which the seller is named as a defendant must have been filed "against a manufacturer or seller for recovery of damages arising out of personal injury, death, or property damage allegedly caused by a defective product whether the action is based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination of theories."  Section 82.001(2).  In other words, the suit must be based on an allegedly defective product.   Second, the "seller" must be "a person who is engaged in the business of distributing or otherwise placing, for any commercial purpose, in the stream of commerce for use or consumption a product or any component part thereof."  Id. at Section 82.001(3).   Third, the seller cannot be a "manufacturer," defined as "a person who is a designer, formulator, constructor, rebuilder, fabricator, producer, compounder, processor, or assembler of any product or any component part thereof and who places the product or any component part thereof in the stream of commerce."  Id. at Section 82.001(4).   Innocent Sellers   "Innocent" sellers are those that did not manufacture the product; did not participate in its design; did not alter or modify the product (where such alteration and/or modification allegedly caused the claimant's injuries, death, or property damage); did not install the product (where the installation allegedly caused the claimant's injuries, death, or property damage); did not exercise substantial control over the content of the product's warnings or instructions (that were inadequate and allegedly caused the claimant's injuries, death, or property damage); did not make any incorrect, express factual representations concerning the product that were relied upon by the claimant to his/her detriment; and did not have actual knowledge of the product's alleged injury-producing defect at the time the seller supplied the product to the claimant.  See id. at Section 82.003(a)(1-6).    Manufacturer's Duty to Indemnify Innocent Sellers   Once the seller establishes itself as "innocent," the product manufacturer must indemnify the innocent seller for its court costs, other reasonable litigation expenses, reasonable attorney's fees, and any other reasonable damages incurred.  Id. at Section 82.002(g).   The manufacturer's duty to indemnify innocent sellers applies without regard to how or when the products liability action is concluded and is in addition to any other obligation to indemnify established by law, contract, or otherwise.  See id. at Section 82.002(e).  The manufacturer may contest the seller's innocence but Texas appellate decisions interpreting Chapter 82 have held that a seller's right to indemnification arises: (1) whether or not the seller was in the chain of distribution; (2) whether or not the product manufacturer manufactured the subject product, as long as it manufactured  similar products; and (3) whether or not proof of a product defect was adduced.   Jonathan M. Spigel is a Shareholder with the Dallas office of Cowles & Thompson, P.C. He can be reached at jspigel@cowlesthompson.com.

    Attorneys:
     • Jonathan Spigel

    Practice Areas:
     • Corporate and Business


  • Dec 17, 2014New Year Resolutions

    This is the time of the year when we look back to assess whether we met our 2014 goals! We also make resolutions to accomplish new (or similar) goals in 2015.   As an immigration attorney, I suggest employers put I-9 compliance at the top of their New Year Resolutions List. However, before we get too busy reviewing what we did and what we did not do so well in 2014 and write down our resolutions for 2015, I invite you to take a few minutes to read the paradox of our time (below).  This is an essay that is often attributed to George Carlin, but was in fact written by Dr. Bob Moorehead, former pastor of Seattle's Overlake Christian Church.   The Paradox of Our Time   The paradox of our time in history is that we have taller buildings but shorter tempers, wider freeways, but narrower viewpoints. We spend more, but have less; we buy more, but enjoy less. We have bigger houses and smaller families, more conveniences, but less time. We have more degrees but less sense, more knowledge, but less judgment, more experts, yet more problems, more medicine, but less wellness.   We drink too much, smoke too much, spend too recklessly, laugh too little, drive too fast, get too angry, stay up too late, get up too tired, read too little, watch TV too much, and pray too seldom. We have multiplied our possessions, but reduced our values. We talk too much, love too seldom, and hate too often.   We've learned how to make a living, but not a life. We've added years to life not life to years. We've been all the way to the moon and back, but have trouble crossing the street to meet a new neighbor. We conquered outer space but not inner space.   We've done larger things, but not better things. We've cleaned up the air, but polluted the soul. We've conquered the atom, but not our prejudice. We write more, but learn less. We plan more, but accomplish less.   We've learned to rush, but not to wait. We build more computers to hold more information, to produce more copies than ever, but we communicate less and less.   These are the times of fast foods and slow digestion, big men and small character, steep profits and shallow relationships. These are the days of two incomes but more divorce, fancier houses, but broken homes.   These are days of quick trips, disposable diapers, throwaway morality, one night stands, overweight bodies, and pills that do everything from cheer, to quiet, to kill.   It is a time when there is much in the showroom window and nothing in the stockroom. A time when technology can bring this letter to you, and a time when you can choose either to share this insight, or to just hit delete.   Remember; spend some time with your loved ones, because they are not going to be around forever. Remember, say a kind word to someone who looks up to you in awe, because that little person soon will grow up and leave your side.   Remember to give a warm hug to the one next to you because that is the only treasure you can give with your heart and it doesn't cost a cent. Remember, to say, "I love you" to your partner and your loved ones, but most of all mean it. A kiss and an embrace will mend hurt when it comes from deep inside of you. Remember to hold hands and cherish the moment for someday that person will not be there again. Give time to love, give time to speak and give time to share the precious thoughts in your mind.   Happy Holidays!!! Angela M. Lopez

    Attorneys:
     • Angela Lopez

    Practice Areas:
     • Immigration

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