Dallas Bar Association
HEADNOTES Focus Computer/Intellectual Property Law
February 2016 Volume 41 Number 2
Campaign Raises $1 Million for Equal Access to Justice BY ALICIA HERNANDEZ
The 2016 Equal Access to Justice Campaign raised $1,025,309, and during the campaign, the Dallas Bar Association has highlighted major donors to the Campaign and the importance of legal aid to the poor. Reasons for doing pro bono are many. Some simply feel blessed and want to pay it forward. Others want the opportunity to gain experience and get into the courtroom. And most want to preserve the rule of law through access to our justice system. Whatever the reason, volunteer attorneys provide valuable services to clients every day in the amount of over $2.25 million in donated legal services through DVAP every year and over $1 million in actualized benefits to DVAP clients. To donors, volunteers, and staff working in the program, these statistics mean we are doing well and push us to do even more. What it means to our pro bono clients is more personal. For many of them, it ensures they have a safe place to lay their heads. This is certainly what it meant for “Mr. Lewis” and his disabled grandson. At 87 years old, Mr. Lewis sought pro bono assistance for damage caused to his real property after his disabled grandson’s car was repossessed from his home. The repossession severely damaged gas pipes on his property, and the City of Dallas condemned Mr. Lewis’ home and cut off
Focus
his gas service because of the damage. Mr. Lewis and his grandson were without gas to cook, keep warm, and bathe. Mr. Lewis and his grandson, who both walk with canes, used two propane tanks within Mr. Lewis’ home in place of gas. Mr. Lewis filed his lawsuit pro se in small claims court against the car dealership and the repossession company. Neither defendant answered, and Mr. Lewis obtained a default judgment against both companies in which both defendants were held jointly and severally liable. The car dealership appealed to Dallas County Court at Law Number 5, and Mr. Lewis won the appeal when the dealership failed to appear at trial. The dealership then filed a Motion for New Trial. Mr. Lewis applied for help with the Motion for New Trial from the Dallas Volunteer Attorney Program, and volunteer attorneys Kendall Hayden and Alissa Christopher, of Cozen O’Connor, took the case. They received his case on October 27, 2015, with the Motion for New Trial hearing was set for October 30. Kendall, Alissa, and Mr. Lewis appeared at the hearing along with the dealership, repossession company, and lawyer for the dealership. The court denied the dealership’s motion for new trial, and Mr. Lewis was pleased and especially proud of his representation when the owner of the dealer-
ship asked if he could retain Cozen as his counsel moving forward. The car dealership called Cozen within an hour after the hearing and advised that the bond money for the judgment was in place and requested Cozen’s representation on a different legal matter. Kendall and Alissa were able to release the money, and Mr. Lewis was able to repair his home. It is definitely a good ending to a story that could have had a much different result. “Working with [Mr. Lewis] to help him recover funds to repair damage to his property was rewarding in so many ways,” said Alissa. “As lawyers, we sometimes forget that the things we do every day (i.e., filing motions, appearing in court) can be the tools that resolve what is a significant problem for someone. Also, I learned something new—how to release a cash bond that had been paid into the court’s registry. It was a win-win!” “I am beyond thrilled we were able to secure a victory for Mr. Lewis,” added Kendall. “Although crippled, and facing difficulty with his mobility, he accompanied us to court for both appearances. Watching his smile when the court ruled in our favor was heartwarming. After the hearing concluded, the other side requested our firm represent them in two separate cases, which was both a compliment and a surprise. I am glad Mr. Lewis and his family began 2016 with money in their pocket that they rightfully deserved.”
Mr. Lewis’ story is just one example of the many clients that DVAP’s volunteers help every year—all made possible by donors to the Equal Access to Justice Campaign and the lawyers who represent pro bono clients. Many clients show their thanks through nice feedback about their attorneys. Here are a few examples of the appreciation they have for their volunteer attorneys. Liz Boydston’s client said “the attorney assigned to my case is a great person, professional, plus very smart….you saved my grandson’s life.” Ashlie Alaman’s client reported that “Ms. Alaman was the BEST. Thank you so much for your help.” Mike Warren’s client said “He was like an angel to me and my son. God bless him!” Connie Thomas’ client said “She kept me informed every step of the way and was very professional through the whole process! She rocks!” Jonathan Rosamond’s client wanted the defendant in his case know that “you can’t use people.” He got what he wanted and said “thank you very much!” Thank you to all DVAP’s generous donors HN and volunteers! Alicia Hernandez is the director of the Dallas Volunteer Attorney Program and the DBA director of community services. She can be reached at ahernandez@dallasbar.org.
Computer/Intellectual Property Law
To Covenant or to License, That is the Question BY NIKY BUKOVCAN
Patent law, like copyright and trademark law, grants inventors the right to prevent others from making, using, or selling the inventor’s invention or discovery for a limited time. This is akin to the right a landowner has to the exclusive enjoyment of his or her land. The right to exclude others is one of the most essential sticks in the bundle of rights that are commonly associated with property— whether that be real or intellectual property. When a patent holder (patentee) grants a licensor a non-exclusive license, or what is sometimes referred to as a “bare license,” the patentee in essence is only granting a right to freedom from suit, while reserving the right to grant similar licenses to others. This is, of course, different than an exclusive license, which is not discussed here. As a patentee’s right is only an exclusionary one and not an affirmative property right, he or she can only grant freedom from suit when another makes, uses, or sells his or her patented invention—despite what a license may purport to convey. That is because the patentee cannot convey what the patentee does not have. This principle is deeply rooted in prec-
edent, such as De Forest Radio v. U.S., 273 U.S. 236 (1927) and TransCore v. Electronic Transaction Consultants, 563 F.3d 1272 (Fed. Cir. 2009), that unambiguously defines a non-exclusive license as nothing more than a covenant not to sue. It follows, therefore, that a covenant not to sue (CNS) is the same as a non-exclusive license. The difference is only one of form, not substance. The scope of the authorization granted by a CNS turns on the specific language of its instrument. In TransCore, the Federal Circuit found that an agreement stating that the patentee “agrees and covenants not to bring any demand, claim, lawsuit, or action against [defendant] for future infringement” is “without apparent restriction or limitation” and “authorizes all acts that would otherwise be infringement: making, using, offering for sale, selling or importing.” Significantly, the court noted that the patentee could have limited the scope of the covenant by authorizing only the “making” or “using” of the patented invention. 563 F.3d at 1276. The scope of a CNS is important as it may be used to divest the court of subject matter jurisdiction and shield not only the alleged infringer from suit but also the intellectual property owner. For example,
in Already v. Nike, the Supreme Court used the MedImmune standard to hold that when a trademark owner entered into an unconditional CNS with respect to the alleged infringer’s past, present, and future acts, the CNS was deemed to have resolved the actual controversy between the parties such that the court no longer had Article III jurisdiction to hear a declaratory judgement action regarding the validity or enforceability of the trademark. 133 S.Ct. 721 (2013). Under the same standard, however, the Federal Circuit has found that a CNS was insufficient to dispense of a controversy between the parties because it failed to cover the alleged infringer’s future acts. A release for past and present infringement will not suffice. Additionally, a CNS granted postverdict has also been found to have no effect as the controversy is deemed to have been resolved by the jury, not the covenant. The ramifications of a CNS extend to other areas of law as well: • Patent Exhaustion: A CNS has been found to exhaust a patent owner’s right to assert infringement against downstream customers. • Implied Licenses to Other Patents: The doctrine of legal estoppel applies
to prevent a patentee from bringing suit under a later acquired patent if that later acquired patent is necessary to practice the invention that is subject to a CNS. • Successors in Interest: Patents that are assigned or otherwise transferred to a third party are subject to the original grantor’s CNS. However, the CNS is not imputed to the third party’s other patents. The above is consistent with federal appellate decisions. Lower courts applying state contract law, however, have produced mixed results. A recent case, Meso v. Roche, attempted to challenge a state court’s failure to recognize a CNS as a license. The Supreme Court did not take up the case, perhaps because of the actual facts of Meso or perhaps because federal authority is clear enough. Regardless, to avoid unpredictable results in state and district courts, prudent practitioners should draft agreements with both a license and a covenant provision. Although redundant, perhaps then the parties’ intent will be interpreted correctly. HN One can only hope anyway. Niky Bukovcan is an associate at Buether Joe & Carpenter, LLC. She can be reached at niky. bukovcan@bjciplaw.com.
Inside 5 D & O Liability in the Age of the Data Breach Don’t miss your opportunity to advertise
10 Inaugural of Jerry Alexander
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13 Google Wins Major Copyright Battle against Authors 15 Hot Topics in Cloud Contracts
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2 He a d n o t e s l D a l l a s B a r A s s o ciation
February 2016
Calendar February Events FRIDAY CLINICS
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs. Christian Lawyers Fellowship
Noon
FEBRUARY 5-BELO Noon
“Legal Malpractice Update,” Robert Tobey. (Ethics 1.00)*
FRIDAY, FEBRUARY 12
FEBRUARY 12-NORTH DALLAS** Noon
Cancelled
Noon
FEBRUARY 19-BELO Noon
“Legal Writing: Lessons from the Best Seller List,” Chad Baruch. (MCLE 1.00)*
Friday Clinic—North Dallas** Cancelled
MONDAY, FEBRUARY 1
MONDAY, FEBRUARY 8
Trial Skills Section “Enforcing and Avoiding Arbitration Clauses Under Texas Law,” Scott McElhaney. (MCLE 1.00)*
Noon
Noon
DAYL Freedom Run Committee
Tax Law Section Topic Not Yet Available
TUESDAY, FEBRUARY 2 Noon
Noon
Labor & Employment Law Section “Fantasy Football in the Workplace: Team Building Activity vs. Drain on Productivity?” Arlene Switzer Steinfield. (MCLE 1.00)*
TUESDAY, FEBRUARY 9
WEDNESDAY, FEBRUARY 3 Employee Benefits & Executive Compensation Section “Executive Compensation Developments – 2015 Year in Review,” Eric Winwood. (MCLE 1.00)*
Business Litigation Section “Reasonable Certainty in Damages Calculations and the New AICPA Practice Aid,” Charles Armstrong, David Genender and Larry Kanter. (MCLE 1.00)*
6:00 p.m. Dallas Hispanic Bar Association
Noon
Mergers & Acquisitions Section “Dealmakers’ Roundtable,”Jesse Bomer, Jed Johnson and Mark Johnson. (MCLE 1.00)*
Noon
Securities Section “SEC Priorities and the Application of Common Sense,” Shamoil T. Shipchandler. (MCLE 1.00)* Golf Tournament Committee
TUESDAY, FEBRUARY 23 Noon
TUESDAY, FEBRUARY 16
American Immigration Lawyers Association
WEDNESDAY, FEBRUARY 24 Noon
DAYL Elder Law Committee
Juvenile Justice Committee Public Forum Committee
WEDNESDAY, FEBRUARY 10
DAYL Judiciary Committee 5:30 p.m. Bankruptcy & Commercial Law Section “The Nth Degree: Recent Developments on the Application of Bankruptcy Code section 365(n) to the Rejection of Trademark Licensing Agreements,” Jason Binford. (MCLE 1.00)*
Noon
Bench Bar Committee
THURSDAY, FEBRUARY 4
Summer Law Intern Program Committee
Noon
Dallas Women Lawyers Association
Construction Law Section “From Guns to Drones – Things We Never Thought We Would See On Jobsites – And What To Know About Them,” Patrick “Gene” Blanton. (MCLE 1.00)*
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
Judiciary Committee
THURSDAY, FEBRUARY 11
Lawyer Referral Service Committee
Noon
Law Day Committee Library Committee Pro Bono Activities Committee Non-Profit Law Study Group 5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
Government Law Section “Lessons in Litigation: The Use of Conviction Records in Hiring Under Title VII,” Nicholas D. Palmer. (MCLE 1.00)*
THURSDAY, FEBRUARY 18
FRIDAY, FEBRUARY 5
CLE Committee
Noon
Noon
Criminal Justice Committee
St. Thomas More Society
Friday Clinic-Belo “Legal Malpractice Update,” Robert Tobey. (Ethics 1.00)*
Publications Committee
Play Golf & Support Pro Bono Save the date for the 24th Annual Pro Bono Golf Classic, benefitting the Dallas Volunteer Attorney Program.
Thursday, April 28, 2016 at Brookhaven Country Club TREAT YOUR CLIENTS TO A GAME OF GOLF! Registration includes a sleeve of golf balls, goody bag, lunch, on-course beverages, post-tournament reception and awards dinner. The tournament is a 4-person scramble format—limited to the first 128 golfers. Plus, we have first-rate team awards for 16 teams, a raffle and other fun contests and games! Check-in and practice range open at 10 a.m. and shotgun start is at 1:00 p.m. A reception and awards dinner will follow the tournament at approximately 5:00 p.m.
For more information on sponsorships, contact Rhonda Thornton at rthornton@dallasbar.org.
DAYL Equal Access to Justice Committee
Energy Law Section “The Complete Professional: Effective Interaction with Courts, Colleagues, and Staff,” Michael Maslanka. (Ethics 1.00)*
DAYL Foundation Board Meeting DVAP New Lawyers Luncheon. For more information, contact reed-brownc@lanwt.org.
Health Law Section “The False Claims Act: an Update on Key Settlements and Decisions,” Jeremy Kernodle and Sean McKenna. (MCLE 1.00)*
11:30 a.m. House Committee Walk Through
Sports & Entertainment Law Section “The New Federal Equity Crowdfunding Law,” John Cones. (MCLE 1.00)* DAYL Assisting Lawyers in Transition Program
WEDNESDAY, FEBRUARY 17
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group
Noon
Probate, Trusts & Estates Law Section “Practices and Procedures in Dallas County Probate Courts,” Judges of Dallas County Probate Courts. (MCLE 1.00)*
DAYL Lawyers Promoting Diversity Committee
Franchise & Distribution Law Section “Presentations on Issues Affecting Franchising from Local Area Law Students.” (MCLE 1.00)* International Law Section “International Petroleum Transactions: The Basics,” J. Richard Gallagher. (MCLE 1.00)*
5:30 p.m. Transition to Law Practice Committee “Introduction to the Transition to Practice Program.” (MCLE 1.00)* 6:00 p.m. Home Project Committee
Computer Law Section “Killer Robots, Driverless Cars and Amazon Drones: The Legal and Societal Implications of Increased Machine Autonomy,” Prof. Chris Jenks. (MCLE 1.00)*
Dallas Bar Foundation Board Meeting
Legal Ethics Committee Solo & Small Firm Section “Common Malpractice Traps and Ways to Avoid Them,” Robert L. Tobey. (Ethics 1.00)*
Antitrust & Trade Regulation Section “2015 in the Rearview Mirror,” Ken Carroll. (MCLE 1.00)*
Friday Clinic-Belo “Legal Writing: Lessons from the Best Seller List,” Chad Baruch. (MCLE 1.00)*
MONDAY, FEBRUARY 22
MONDAY, FEBRUARY 15
Peer Assistance Committee
Noon
6:00 p.m. DAYL Board of Directors Meeting
Alternative Dispute Resolution Section “There’s No Such Thing as an Off-Year - The 2016 Legislative Agenda,” Mike Amis. (MCLE 1.00)* Real Property Law Section “Case Law Update,” David A. Weatherbie. (MCLE 1.00)*
Corporate Counsel Section “Hot Topics in Employment Law,” Ed Berbarie, Rob Friedman and Steve Rahhal. (MCLE 1.00)* Tort & Insurance Practice Section “Contractual Liability for Conflicts of Interest and the Latest on Reservation and Assignment of Rights,” Craig Reese. (MCLE 1.00)*
Noon
FRIDAY, FEBRUARY 19
6:00 p.m. J.L. Turner Legal Association
Municipal Justice Bar Association
THURSDAY, FEBRUARY 25 9:00 a.m. 2015 Jeff Coen Family Law Nuts & Bolts Video CLE MCLE 6.00, Ethics 2.00. Sponsored by DVAP and the DBA Family Law Section. To register, contact reed-brownc@lanwt.org. Noon
Criminal Law Section “Avoiding Pitfalls when Defending Doctors, Nurses or Health Care Professionals Charged With Criminal Offenses,” Deborah Goodall. (MCLE 1.00)* Environmental Law Section “Update on the City of Dallas’ Trinity River Project and Related Environmental Considerations,” Susan Alvarez. (MCLE 1.00)*
Appellate Law Section “Practice Pointers and Pitfalls: Permissive Interlocutory Appeals,” Diana Faust and Michelle Robberson. (MCLE 1.00)*
DAYL CLE Committee
Minority Participation Committee
DAYL PAC CLE
Christian Legal Society DAYL Animal Welfare Committee
FRIDAY, FEBRUARY 26
DAYL Lunch & Learn CLE
Noon
Dallas Gay & Lesbian Bar Association 5:30 p.m. Labor & Employment Law Section Seminar “Labor & Employment Law Section Annual Judicial Perspectives Panel,” Hon. David Godbey, Hon. Bonnie Goldstein, Hon. Martin Hoffman and Hon. Paul Stickney. (MCLE 1.00)*
Intellectual Property Law Section “Alice in Wonderland: Amending Section 101 to Get Out of the Rabbit Hole,” Russ Emerson, Marc Hubbard, Toni Nguyen and Prof. David Taylor. (MCLE 1.00)*
MONDAY, FEBRUARY 29 Noon
DAYL Solo & Small Firm Committee
DBA Member Reminder All members who have not yet renewed for 2016 will be dropped on March 4, 2016! Renew TODAY in order to continue receiving all your member benefits.
Thank you for your support of the Dallas Bar Association!
Debru Fe c e mb a rye r 2200115 6
D al l as Bar A ssoci ati on l Headnotes 3
4 He a d n o t e s l D a l l a s B a r A s s o ciation
February 2016
President's Column
Headnotes Published by: DALLAS BAR ASSOCIATION
Becoming Closer & More Cohesive BY JERRY C. ALEXANDER
Inaugural Address given on January 16, 2016 This is a great profession, and we are all privileged to be a part of it. I could not get to an evening like the one tonight without the legal profession. Without my parents efforts and this wonderful profession, and four great lawyers Sam Passman, Shannon Jones, Jr., and Grier and Louise Raggio, who helped me early on, my story, as mundane as it is, is simply impossible. You can succeed in this profession regardless of where your parents started. The Dallas Bar Association is an organization where you can transform that success into significance. The mission of the Dallas Bar Association is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. Here is how the Dallas Bar Association is going to continue to fulfill that mission in 2016. First, to promote good relations among the attorneys this year, we are going to become closer and more cohesive and focus on issues that affect all of us. We do not have to be the same, but we all have to be together. The Dallas Bar Association has over 11,000 members. Of those, 34 percent are women, 66 percent are men, 30 percent are over the age of 60 (the new 45), and 27 percent are under 35. There are five generations of lawyers in the DBA, from millennials to pre-boomers. The membership is comprised of every race, color, national origin, religion, sex, sexual orientation, age, and disability. DBA members represent every type of practice area and every practice platform from big firm to small firm. This is a diverse bar association. We need to recognize and celebrate these differences, and we do. But we also have to focus on our commonality. The commonality that we are all lawyers. So what is our Commonality? What do we really have in common? Everything! Remember we all had to graduate from a college with grades high enough to get into a law school. We had to graduate from law school. We had to pass the bar examination. We had to raise our right hand, and we all took the same oath. If you just start counting we have all already spent a substantial amount of our time on this Earth preparing to be a lawyer or being lawyers. We must trust each other as colleagues and treat each other with respect as attorneys in our dealings. And we must look out for each other for the profession and for the public at large. If we do not look out for each other and our profession, no one else will. We do not have to be the same, but we all have to be together. We face two immediate challenges together this year. 1. The State Bar of Texas will undergo the Sunset Review this year. Frank Stevenson, a former President of this Association has the privilege of leading the State Bar of Texas in its dealing with legislature over the legislative review for the Sunset process. The Dallas Bar Association has pledged its full support for him in this endeavor and if he calls on any of you, please help him in any way he asks. 2. Second is an image problem that we have as a profession with the public. People do not understand what we do and have no concept of the good works we do. I think it is time we started taking credit for the good things we do in the community. I am going to work with our members to try to make the great things this association and our members do better known to the general public, and do a couple of things that may add to that patina. With your permission, this year I will be an unabashed cheerleader for lawyers in general and especially for this association. We also need to promote the best relations among the judges and the lawyers. Sometimes we are forgetful that judges are lawyers too. They had to do all the same things the rest of us had to do to become a lawyer and took the same oath we did, and then they took another oath that is very similar to the oath we took as lawyers, to become a Judge. While they have unique roles they fully understand and support the work we all do. There are a lot of judges here tonight. We thank you for your service.
Patent Rules
I especially want to thank all the Federal District Judges and notably three of their members—Judge Godbey, Judge
Lynn, and Judge Kincaid—for reworking and establishing the patent rules in the Northern District of Texas to encourage more filings here. They invited more work for themselves, well knowing they would not get paid one cent more for the extra work. It helps the corporate patent holders here and the individuals who have patents that need enforcing here, but it obviously also helps the attorneys who are members of this Association and of the Bar of the Northern District of Texas. And, we are proud that one of our own, Hope Shimabuku, has been appointed the Director of the Texas Regional USPT office. The immediate future, 2016, and the years following, are bright for the Dallas Bar Association.
Lawyers Continuing Legal Education: Each year the Dallas Bar Association provides over 400 CLE programs (mostly free) to members. This year we are adding a special new seminar that we hope to make an annual or bi-annual event. On January 29 please plan to come to the Belo to attend the greatest legal seminar you have ever seen. For the first time ever it is going to involve the faculties of all three area law schools and additionally, some of the best practitioners we have in North Texas. The seminar will be a review of the recent developments in all of the most utilized areas of the law and you can get a full seven hours of CLE credit done in a day. Athletic Director: Further helping lawyers in our organization, this year we have hired an athletic director for the Dallas Bar Association. He works for the same salary I get and his byline is going to be in Headnotes every month. His name is Ken Raggio. Ken is a distinguished member of the Dallas Bar Association, a family lawyer, and literally a World Class Athlete. In 2014 he finished third for his age division in the 800 meter run in the world. His first column has already appeared in Headnotes, and it says start doing some exercise now. You will live longer, and you will live better.
Community In the community, we are going to continue the excellent Mock Trial Program and other programs in the schools that help thousands of kids across Texas learn about our system of justice. And, we are going to continue to support DVAP and provide much needed legal services to the poor. This is very, very important work. With 30 percent of the population of Dallas County at or so near the poverty line that they cannot afford an attorney, this program gives them access and the guarantee that they will be treated equally when they seek justice from our Courts. We cannot fulfill our oath and expect our community to respect the law and our profession if a third of the population of this community are denied meaningful access to its institutions of justice. And this year is the 25th year the Dallas Bar Association has sponsored a Habitat for Humanity house. I mentioned I was going to do a couple of things to add to our patina. We are going to build another house this year under our regular program and we are going to build an additional house in celebration of the 25th year. We have already received a generous commitment from AT&T to fund the second house. And, the second new project to add to our patina will benefit attorneys, attorney judges, and the community. I am very excited about this project and you will see the tangible results of it next year (hopefully). It deals with the entrance to the George Allen Courthouse from the underground parking. It is not in good shape. Along with the Courthouse Committee, we are going to fix that entranceway into the Courthouse. Private funds (not Bar Association funds) have been raised to paint a mural on the walls of that entry way. Booker T. Washington students will paint one of the murals as a six week project.
Closing In closing, this is a deeply humbling experience. I can only say that I will do my best to be a good president for this bar association and to represent it as best I can in the coming year. Remember, we are all attorneys at law and get to practice the greatest profession ever and get to be members of the greatest bar association ever. We are blessed. I thank everyone for coming.
HN
2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.
OFFICERS President: Jerry C. Alexander President-Elect: Rob D. Crain First Vice President: Michael K. Hurst Second Vice President: Laura Benitez Geisler Secretary-Treasurer: Sakina Rasheed Foster Immediate Past President: Bradley C. Weber Directors: A. Shonn Brown, Hon. Rob Cañas, Jonathan Childers, Dawn Estes, Rocio Cristina Garcia (President, Dallas Hispanic Bar Association), Stephanie Gause (President, Dallas Association of Young Lawyers), Hon. Martin Hoffman, Krisi Kastl, Bill Mateja, Karen McCloud, Kate Morris, Cheryl Camin Murray, Emmanuel Obi (President, J.L. Turner Legal Association), Monika Sanford (President, Dallas Asian American Bar Association), Diane M. Sumoski, Robert L. Tobey (Chair), Aaron Tobin (Vice Chair) and Victor D. Vital Advisory Directors: Christopher Kang (President-Elect, Dallas Asian American Bar Association), Angelina LaPenotiere (President-Elect, Dallas Hispanic Bar Association), Tramaine Scott (President-Elect, J.L. Turner Legal Association), and Paul Simon (President-Elect, Dallas Association of Young Lawyers) Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Wm. Frank Carroll, Leon Carter, John Jansonius, Florentino A. Ramirez and Scott Stolley
HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Josh Garza Display Advertising: Deni Ackerman, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Meghan Hausler and Keith Pillers Vice-Chairs: Alexander Farr and Carl Roberts Members: Timothy Ackermann, Logan Adock, Jerry C. Alexander, Wes Alost, Jason Bloom, Andrew Botts, Charles Coleman, Shannon Conway, Jess Davis, James Deets, Leiza Dolghih, Dawn Fowler, Susan Halpern, Jeremy Hawpe, Mary Louise Hopson, Lindsay Hedrick, Brad Jackson, Andrew Jones, Kristi Kautz, Amanda Kelley, Michelle Koledi, Kevin Koron-ka, Susan Kravick, Lawrence Maxwell, R. Sean McDonald, Tyler Mendez, Terah Moxley, Jessica Nathan, Eugene Ol-shevskyy, Kirk Pittard, Laura Anne Pohli, Charles Price, Kathy Roux, Jared Slade, Thad Spalding, Shana Stein, John Stevenson, Scott Stolley, Amy Stowe, Ashely Swenson, Michael Tristan, Pryce Tucker, Peter Vogel, Suzanne Westerheim, Yuki Whitmire DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Director: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Avina, Marcela Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Membership Director: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Briesha Taylor Program Assistant: Patsy Quinn Secretary: Ellie Pope Copyright Dallas Bar Association 2016. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publica-tion. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not nec-essarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
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D al l as Bar A ssoci ati on l Headnotes 5
Computer/Intellectual Property Law
D & O Liability in the Age of the Data Breach BY SCOTT BREEDLOVE AND NICKOU OSKOUI
Your phone rings. It is your CEO telling you that U.S. Secret Service agents have called for a meeting with company leaders to brief you on cyber espionage targeting your company. At the meeting, you learn that the Secret Service has been following the digital trail of a sophisticated cyber-crime group and has discovered that the hackers have been in your company’s computer network for at least six months. Cybersecurity consultants will need to help you investigate whether the bad guys got your intellectual property, sensitive financial data, confidential business plans, or customers’ personal information. Statistical analysis will assess the possibility of trading in the company’s shares based on such insider information. Then you wake up. It was one of those frustratingly realistic dreams, but you are relieved that it was just a dream. Still, you wonder whether your company is ready for the inevitable reallife cyber-attack and how it will respond. As you consider the company’s position, also ask yourself this question: Are you and the other company leaders well positioned to avoid personal liability stemming from a cybersecurity breach? Few officers or directors are experts in cybersecurity, but they may still be ultimately responsible for supervising it or managing it.
The Problem of Data Breaches
There are numerous methods by which “hackers” can gain access to restricted parts of a company’s computer network, where they may linger for months or years without detection. (It is often the Secret Service or FBI that reveals the breach to the hacked
company.) The 2013 Target hackers allegedly used a phishing email to get into the computer system of an HVAC contractor and stole its credentials for accessing the vendor portion of Target’s network. Once inside that portion, the hackers were able to exploit Target’s alleged lack of network segmentation and pivot to more sensitive, and restricted, portions of the network, including Target’s point-of-sale systems. From there, over several days the hackers exfiltrated many millions of customers’ payment card information.
Shareholder Derivative Suits
In a shareholder derivative lawsuit, shareholders may sue a corporate director or officer on behalf of the company. While state laws vary, the “business judgment rule” generally protects officers and directors from personal civil liability for corporate decisions by creating a strong presumption that the board acted properly, provided that they acted on an informed basis, in good faith, and in the honest belief that the action taken was in the best interests of the company. Data-breach derivative suits began in earnest in 2014 with suits related to the Target and Wyndham incidents. Target shareholders alleged directors and officers breached their fiduciary duties by allowing inadequate internal controls over the company’s cybersecurity policies, concealing the full scope of the data breach, and wasting company assets. This litigation remains pending in Minnesota federal court as the Target board’s special litigation committee continues its own investigation. In the Wyndham case, a shareholder alleged Wyndham’s board and upper executives harmed the company, breached their fiduciary duty, wasted corporate assets, and
unjustly enriched themselves by failing to implement appropriate internal controls. As an example, the complaint alleged that Wyndham failed to employ firewalls and used servers running on an obsolete and unsupported operating system. The New Jersey federal court dismissed the complaint, concluding that the plaintiff lacked standing to sue as the board’s decision not to have Wyndham pursue the claims itself was protected by the business judgment rule. More recently, in September 2015 a Home Depot shareholder sued twelve directors and officers in the Northern District of Georgia, alleging they failed to ensure Home Depot took reasonable measures to protect its customers’ information. The complaint claims the leaders’ complacency left a vulnerable system allowing hackers to siphon customer data for almost five months without detection.
The Take-Away
The most obvious take-away for business leaders is to take cybersecurity seriously, make informed decisions, and document appropriately. The National Association of Corporate Directors has published a handbook
called “Cyber-Risk Oversight.” It recommends five key principles for directors: 1) approach cybersecurity as an enterprisewide risk management issue, not just an IT issue; 2) understand the legal implications of cybersecurity risks as they relate to the company’s specific circumstances; 3) have access to cybersecurity expertise and regularly discuss cybersecurity issues; 4) set the expectation that management will establish an enterprise-wide cyber-risk management framework with adequate staffing and budget; and 5) discuss with management which risks to avoid, accept, mitigate, or transfer through insurance, as well as specific plans associated with each approach. An enterprise-wide cyber-risk plan should include periodic comprehensive risk assessments, ideally incorporating the use of outside counsel and information security consultants. For mapping out a strategy to defend, detect, and respond to cyber-attacks, consider referring to the widely-respected NIST Framework and/ or the ISO 27001 or another cybersecuHN rity standard. Scott Breedlove is a partner, and Nickou Oskoui is a senior associate at Vinson & Elkins. They can be reached at sbreedlove@ velaw.com and noskoui@velaw.com, respectively.
Professionalism Tip I will respect the rulings of the Court. –Excerpt from the Texas Lawyers Creed
Find the complete Creed online at http://txbf.org/texas-lawyers-creed/.
6 He a d n o t e s l D a l l a s B a r A s s o ciation
February 2016
DBA Athletic Director
Elected to Serve: From Couch Potato to Ironman BY KENNETH G. RAGGIO
McKinney Mayor (and DBA member) Brian Loughmiller and Collin County Judge John Roach are elected officials who also have participated in an Ironman triathlon together. But their ways of getting there are decidedly different. While skiing with his family in New Mexico at Christmas in 2009, Judge Roach, 45, found himself short of breath and unable to help his young children put on their skis or keep up with the family. He decided that if he did not do something to change his lifestyle, he might not be there for his children. Right then he started going to the gym. In the beginning, he could only do five minutes on an elliptical trainer. Slowly, he built up his time, and since then he has become a fixture at the gym. While working out one day, he was told about sprint triathlons. He warmed to the challenge and decided to work toward that goal. He added swimming to his workout regime. And then he added bicycling. By the fall of 2010 he participated in a full Ironman triathlon. An Ironman is a 2.4-mile swim, a 112-mile bike ride, followed by a 26.2mile marathon run. Just competing— and even better, finishing—is a MAJOR accomplishment. Judge Roach is proud of the example he is setting for his children,
and these events are now a family occasion. The whole family cheers him on at his triathlons, and he and his wife, Plano attorney Laura Roach, ran the New York Marathon a couple years ago, running side-by-side the entire way. Judge Roach has lost 80 pounds, and like many of us still struggles to stay on a good eating regime and to continue to “walk the walk.� Together Judge Roach and Mr. Loughmiller did the 2011 Ironman in Tempe, Arizona, which was a culmination of their competition and the routines that carried them through months of training. Both men agree that sometimes it is a struggle to fit exercise into their daily schedule, as both their family demands and the demands of their jobs can make it a challenge. But both praise the legion of benefits that exercise gives them. Mr. Loughmiller, 55, describes his exercise routine as being key in helping him reduce stress and improving his the ability to control his emotions when performing official duties, such as holding a nationally televised press conference, or his day job as a divorce attorney. When he is biking, running, or swimming, there is no phone, no press, and no court. He finds it an excellent way to let his mind and body recharge. Mr. Loughmiller started running after law school and ran his first marathon in 1994. He has run 10 marathons and has
Brian Loughmiller and Judge John Roach
competed in triathlons—from sprints to minis, up to full Ironmans. Mr. Loughmiller, like Judge Roach, enjoys the challenge of a future event competition to help motivate him. He reports that training for an Ironman is a combination of scientific training and nutrition. He has triathlons upcoming in April and in September. In addition to these events, Mr. Loughmiller’s goal includes improving his performance in the competitions; his last Ironman was 30 minutes faster than his
first one four years ago. Proof of the concept that the book Younger Next Year explains. Get the book. Read the book. (For more information on the book, see the January Headnotes column.) Email me at kenneth@raggiolaw.com suggestions for other lawyers HN to feature. Kenneth G. Raggio is a partner at Raggio & Raggio, P.L.L.C. and can be reached at kenneth@raggiolaw.com.
NEW LAWYERS! Learn More About the Transition to Law Practice Program All new lawyers interested in having an experienced mentor to guide them in the practice of law should contact ahernandez@dallasbar.org for more information. Don’t Miss Out on This Valuable Opportunity! www.dallasbar.org/transitiontolawprogram
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D al l as Bar A ssoci ati on l Headnotes 7
Johnston Tobey Baruch goes viral in 2015 More challenges lie ahead this year Johnston Tobey Baruch ended 2015 by filing a “gone-viral” brief in the U.S. Supreme Court representing what the New York Times termed “a glittering array of hip hop stars.” Rolling Stone called our brief “a crash course in hip hop” for the Court. We just saw it as our defense of the First Amendment. We continued our service to the profession during 2015. Besides continuing his outstanding career as a trial lawyer, Randy Johnston joined the adjunct faculty of UNT Law School, teaching professional responsibility. Robert Tobey was reelected to the DBA Board, while Coyt Johnston served as Co-Vice Chair of Bench Bar. Chad Baruch received the Gene Cavin Award from the State Bar for lifetime contributions to CLE, and served as Chair of the Texas Bar College. 2015 was filled with client successes. Robert obtained a federal trial
RANDY JOHNSTON
ROBERT TOBEY
CHAD BARUCH
COYT JOHNSTON
verdict of more than $1 million for a law firm seeking to collect fees. The firm successfully defended two preeminent law firms in separate lawsuits, obtaining summary judgments in both cases, and Randy filed suit in Indiana on behalf of the retired Navy SEAL who wrote the international bestseller No Easy Day. In the appellate arena, we won reversal of a summary judgment for one client and a jury verdict for another in El Paso, reversal of a JNOV and reinstatement of the client’s favorable jury verdict in Tyler, and—with Chad serving as Special Prosecutor— reversal and reinstatement of criminal indictments in State of Texas v. Albert G. Hill, III in Dallas. Chad argued two cases before the Supreme Court of Texas, and continued to advise the family of the victim in the case that inspired the movie Bernie. It was a great year for Johnston Tobey Baruch, and hopefully for you. Looking forward, please consider our firm for your litigation and appellate needs in 2016.
The firm is located at 3308 Oak Grove Avenue in the Uptown section of Dallas. To schedule a consultation, call Michelle Spear at 214.741.6260 or email info@jtlaw.com.
8 He a d n o t e s l D a l l a s B a r A s s o ciation
February 2016
DBA Board Elects Chair and Vice Chair STAFF REPORT
At its January Organizational Meeting, the Dallas Bar Association Board of Directors elected Robert Tobey Chair of the Board and Aaron Tobin ViceChair of the Board for 2016. Mr. Tobey, of Johnston Tobey Baruch, is a graduate of the University of Texas School of Law. He was elected to the DBA Board of Directors in 2012. Mr. Tobey has chaired the Judiciary Committee, CLE Committee, Trial Skills Section, and Bench Bar Conference Committee. He is a past Co-Chair of the Campaign for Equal Access to Justice, and is Board Advisor to the Labor & Employment Law Section, Trial Skills Section, and the Courthouse Committee. Mr. Tobey serves on the DBA Community Service Fund Board and is a Life Fellow of the Dallas Bar Foundation. Mr. Tobin, of Anderson Tobin, PLLC is a 2000 graduate of the SMU Dedman School of Law. He has been active in the Dallas Bar for many years. He currently chairs the Finance Committee and has chaired the Media Relations Committee, Public Forum Committee, and the Bench Bar Conference Committee. He Co-Chaired the Professionalism Committee and served as Co-Chair of the 2012-2013 Campaign for Equal Access to Justice. Mr. Tobey is Board Advisor to the Business Litigation Section and Securities Section. He also serves on the DBA Community Service Fund Board and is a Fellow of the Dallas Bar Foundation. He joined the DBA Board of Directors in 2012. The Board also appointed Hon. Rob Cañas, of County Criminal Court No. 10, to serve a one-year judicial at-large
Robert Tobey
Aaron Tobin
position. Judge Cañas is a graduate of Texas Tech University School of Law. He is Board Advisor to the Memorial & History Committee and International Law Section. Filling a two-year at-large director position is Kathryne Morris. Ms. Morris, a 2008 graduate of SMU Dedman School of Law, is an Associate at Strasburger & Price, LLP, where her practice focuses on commercial litigation and intellectual property. She is past Co-Chair of the Professionalism Committee and chairs the Transition to Law Practice Program. She is Board Advisor to the Legal Ethics Committee and Franchise & Distribution Law Section. The 2016 board also includes: President Jerry Alexander; PresidentElect Rob Crain; First Vice President Michael Hurst; Second Vice President Laura Benitez Geisler; Secretary-Treasurer Sakina Rasheed Foster; Immediate Past President Brad Weber; and
Hon. Robert Cañas
Directors Wes Alost, Shonn Brown, Jonathan Childers, Dawn Estes, Rocío Cristina García, Stephanie Gause, Hon. Martin Hoffman, Krisi Kastl,
Kathryne Morris
Bill Mateja, Karen McCloud, Cheryl Camin Murray, Emmanuel Obi, Monika Sanford, Diane Sumoski and VicHN tor Vital.
Last chance for a new directory photo! There are two upcoming photo sessions available to have your photo updated for the 2016 DBA Directory.
i Wednesday, March 9: 9 a.m. to 3 p.m. at Belo i Friday, March 11: 11 a.m. to 1:30 p.m. at the
North Dallas Clinic (5420 LBJ Frwy, Ste. 240)
It’s FREE and only takes 5 minutes! No reservation necessary. Photos may also be purchased for personal use. If you have questions please contact Judi Smalling at jsmalling@dallasbar.org or (214) 220-7452.
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D al l as Bar A ssoci ati on l Headnotes 9
STRENGTH THROUGH LEADERSHIP ţ eXec ¥k U cea)% e :k% Fc { aece:Fc: Be )BkX%) x kk Donald E. Godwin, and the shareholders, ±ƋƋŅųĹåƼŸ ±ĹÚ ŸƋ±ý Ņü :k% Fc { Ø are proud to announce R. Alan York ±Ÿ a±Ĺ±čĜĹč ʱųåĘŅĬÚåų ±ĹÚ ĘĜåü kŞåų±ƋĜĹč kþÏåų Ņü ƋĘå 8ĜųĵØ åƻޱĹÚĜĹč ĘĜŸ ÏƚųųåĹƋ ųåŸŞŅĹŸĜÆĜĬĜƋĜåŸ ±Ÿ {ųåŸĜÚåĹƋţ Ņ±ųÚ åųƋĜĀåÚ ĜĹ ĜƴĜĬ eŞŞåĬĬ±Ƌå X±Ƶ ÆƼ ƋĘå åƻ±Ÿ Ņ±ųÚ Ņü Xåč±Ĭ ŞåÏĜ±ĬĜDŽ±ƋĜŅĹØ eĬ±ĹűŸ ÚåϱÚåŸ Ņü åƻŞåųĜåĹÏå ĜĹ ƋĘå Ĭåč±Ĭ ±ųåĹ±Ø ŞųŅƴåĹ Ĭå±ÚåųŸĘĜŞ ±ÆĜĬĜƋĜåŸØ ŞųŅü域ĜŅűĬĜŸĵØ ±ĹÚ ÏŅĵĵĜƋĵåĹƋ ƋŅ ĘĜŸ ÏĬĜåĹƋŸ ÏŅĵÆĜĹå ƋŅ ĵ±ĩå ĘĜĵ ƚĹĜŧƚåĬƼ ŧƚ±ĬĜĀåÚ üŅų ƋĘĜŸ ŞŅŸĜƋĜŅĹţ :k% Fc { ĜŸ ŞųĜƴĜĬåčåÚ ƋŅ ʱƴå eĬ±Ĺ Ĭå±ÚĜĹč Ņƚų 8ĜųĵØ ĜĹ ÆŅƋĘ %±ĬĬ±Ÿ ±ĹÚ BŅƚŸƋŅĹØ ƋŅƵ±ųÚ growth and continued success.
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10 H e a d n o t e s l D a l l a s B a r A s s ociation
February 2016
The Inaugural of Jerry C. Alexander The Inaugural of Jerry C. Alexander, DBA’s 107th President, was held January 16, 2016. It was an elegant evening, with stylishly dressed guests, a silent and live auction and a casino party and dancing. Each year, the Inaugural is the culmination of the Campaign for Equal Access to Justice. This year, an amount of $1,025,039 was raised for the Dallas Volunteer Attorney Program. Congratulations to this year’s Ticket to Drive Raffle winner: Donald Robinson, who will take home a 2016 Mercedes Benz and runner up Shanna Nugent, winner of the New Orleans Jazz & Dining Package.
THANK YOU PASSMAN & JONES for underwriting the Inaugural Casino Party! y
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Dal l as Bar A ssoci ati on l Headnotes 11
PRESIDENT’S COUNCIL ($30,000) Connatser Family Law Crain Lewis Brogdon, LLP
CHAIRMAN’S COUNCIL ($25,000)
Anonymous Honorable Deborah G. Hankinson Payne Mitchell Law Group
DIAMOND ($15,000)
Jerry C. Alexander AT&T Services, Inc.
PLATINUM ($10,000)
Akin Gump Strauss Hauer & Feld LLP Andrews Kurth LLP Anonymous Baker Botts LLP Corporate Counsel Section Deans & Lyons, LLP
GOLD ($5,000)
Dear Citizens of Dallas: The Equal Access to Justice Campaign is an annual fundraising drive EHQH¿WWLQJ WKH 'DOODV 9ROXQWHHU $WWRUQH\ 3URJUDP 7KH 'DOODV 9ROXQWHHU Attorney Program, or DVAP, is a free, civil legal aid program of the Dallas Bar Association and Legal Aid of NorthWest Texas. Through DVAP, over 3,000 volunteers donate their time and legal skills to help low-income people in Dallas resolve their legal problems. Those who have bravely served our country, innocent children, the elderly, and the disabled are some of the many people DVAP helps every day. The support of our donors is more important now than ever. Over 600,000 people in Dallas County already qualify for DVAP’s help, while the number of peple living in poverty continues to grow. Please join us in thanking our generous donors for their support of access to justice for all.
Jerry C. Alexander 2016 DBA President
Brad Weber DBA Immediate Past President
William Mateja Campaign Co-Chair
Victor Vital Campaign Co-Chair
Visit a Clinic & Apply for Legal Help •
East Dallas Legal Clinic Grace United Methodist Church, 4105 Junius St. at Haskell 1st and 3rd Thursdays of each month - 5:00 p.m.
•
South Dallas Legal Clinic MLK Jr. Center, 2922 Martin Luther King Blvd., Room 122 1st, 2nd and 4th Tuesdays of each month - 5:00 p.m.
•
West Dallas Legal Clinic West Dallas Multi-Purpose Center, 2828 Fish Trap Rd. 2nd and 4th Thursdays of each month - 5:00 p.m.
•
Garland Legal Clinic Salvation Army, 457 W. Avenue D. (Garland) 3rd Thursday of each month - 5:00 p.m.
•
Friendship West Baptist Church Legal Clinic 2020 West Wheatland Rd. 3rd Wednesday of each month - 5:30 p.m.
•
Triangle Neighborhood Clinic St. Phillip’s Community Center, 1600 Pennsylvania Ave. 3rd Tuesday of each month - 5:00 p.m.
•
Veterans Legal Clinic (for Veterans and their families) Veteran’s Resource Center, 4900 S. Lancaster Rd. 1st Friday of each month - 1:30 p.m.
Anderson Tobin PLLC Barnes & Thornburg LLP Business Litigation Section Carrington, Coleman, Sloman & Blumenthal, L.L.P. Dallas Association of Young Bankruptcy Lawyers Dallas Association of Young Lawyers Dentons US LLLP DuBose Law Firm Energy Future Holdings Legal Department Laura Benitez Geisler Godwin PC Greenberg Traurig, LLP Hartline Dacus Barger Dreyer LLP Al G. Hill, Jr. Husch Blackwell Brian Loncar The Mike & Barbara Lynn Philanthropic Fund McKool Smith Probate, Trusts & Estates Section Real Property Section Lewis Sifford Jaime & Margaret Spellings Squire Patton Boggs Texas Lawyer The Harold Simmons Foundation Jeff Tillotson Robert L. Tobey Victor & DeNette Vital Joel & Terilyn Winful
SILVER ($2,500)
Roger Bivans & Sarah Donch Bracewell & Giuliani LLP Nina Cortell Criminal Law Section Energy Law Section Haseena J. Enu Farrow-Gillespie & Heath LLP Fluor Corporation Kara E. Gehan Gibson Dunn & Crutcher LLP Tim Goss Hon. Mark Greenberg Robert A. Gwinn & Marianne S. Gwinn Family Foundation Hunton & Williams Mark Johansen K&L Gates John & Lacy Lawrence Mary Kay Inc. Mergers & Acquisitions Section Dan Micciche Robert T. Mowrey Reese Gordon Marketos LLP Sayles Werbner Securities Section Daniel Sheehan Smith Hargrave Law Nancy and John Solana Advised Fund of The Dallas Foundation Frank E. Stevenson II Strasburger & Price Tax Section Trial Skills Section Patricia J. Villareal Peter S. Vogel & Marguerite H. Burtis Robb Voyles Waters, Kraus & Paul, LLP Wick Phillips Winstead PC Amy K. Witherite
BRONZE ($1,500)
Kim J. Askew Anonymous Baker & McKenzie LLP Bankruptcy & Commercial Law Section Van H. & Tracey W. Beckwith
PLATINUM ($10,000)
Dykema Cox Smith Exxon Mobil Corporation Fish & Richardson W. Gary Fowler Gardere Wynne Sewell LLP The Hartnett Law Firm Haynes and Boone, LLP Jackson Walker LLP Jones Day KASTL LAW, PC Kirkland & Ellis KoonsFuller Locke Lord Mike McKool, Jr. Norton Rose Fulbright Sidley Austin LLP Texas LawBook Thompson & Knight Foundation Vinson & Elkins LLP
BRONZE (CONT)
Ted Brizzolara William D. Cobb, Jr. Robert Cohan James E. Coleman, Jr. Diane P. Couchman Cowles & Thompson Jim E. Cowles Crockett, McBride & Associates at Merrill Lynch Wealth Management Tim Durst John Eichman (PSOR\HH %HQH¿WV ([HFXWLYH Compensation Section Cheryl A. Engelmann Honorable Royal Furgeson & Marcellene Malouf Beverly K. Goulet Guida, Slavich & Flores David C. Haley Holland & Knight LLP J. Mark Hollingsworth J.L. Turner Legal Association Foundation Ralph S. Janvey Honorable Robert W. Jordan Kessler Collins Michael A. Krywucki Lewis LeClair Jeffrey S. Levinger Jason S. Lewis William B. Mateja McCall Parkhurst & Horton, LLP Reverend Andy McCarthy & Samara Klilne Joey Messina E. Lee Morris Munsch Hardt Kopf & Harr, P.C. Jeff & Annette Patterson Beth Petronio Eric & Melanie Pinker C. Jeffrey Price Brent & Betty Rosenthal Chris & Therese Rourk Sedgwick LLP Jason L. Sanders Solo & Small Firm Section Joe Stalcup Ross W. Stoddard III Texas A&M School of Law Thompson Coe Tort & Insurance Practice Section Jeffrey M. Trinklein Verizon Enterprise Solutions
SPONSORS ($1,000)
Charla Aldous Alexander Dubose Jefferson & Townsend LLP Wes & Amy Alost Appellate Law Section Mike Baggett Jack Balagia BVA Group Barry Barnett Darren Barnett Lisa A. Blue Baron Mark W. Bayer James Bell Bell Nunnally & Martin LLP Bloom Strategic Consulting Michael Boone Talmage Boston Monica Lira Bravo Honorable Mary Brown Shonn & Clarence Brown Joseph F. Bruegger Richard Capshaw Jonathan Childers Deb & Scott Coldwell Tom Connop Construction Law Section Victor Corpuz Trey Cox Gayla Campbell Crain
SPONSORS (CONT)
Sally L. Crawford Dallas Asian American Bar Association Dallas Hispanic Bar Association Dallas Women Lawyers Association James A. Donohoe Estes Okon Thorne & Carr PLLC Family Law Section Honorable King Fifer Friedman & Feiger Kevin & Sharla Fuller Paul R. Genender Gibson Dunn & Crutcher Jim Girards Don Glendenning Beverly Godbey Goranson Bain, PLLC Health Law Section Sally Hartman Denis & Elise Healy Randall K. Hulme Michael K. Hurst Intellectual Property Section Kathleen E. Irvin Michael L. Jones Darrell Jordan Honorable Jim Jordan Michael Kaufman Kathleen Kearney Dan & Bonnie Keene Larry & Joan Kelly Kilgore & Kilgore PLLC Jill A. Kotvis Lackey Hershman, LLP Tom Leatherbury George & Robyn Lee Neel & Lynn Lemon Robert E. Luxen Ted B. Lyon Elizabeth Mack Jacob B. Marshall John H. Martin Charles W. Matthews, Jr. Mr. & Mrs. David R. McAtee, II Karen McCloud Kelly McClure P. Mike McCullough, Jr. John H. McDowell Harriet E. Miers Millennium Settlements Retta A. Miller Honorable Ken Molberg James N. Mueller Jon Mureen Honorable Mary Murphy Maureen Murry Terry & Joan Oxford Palter Stokley Sims PLLC Emily A. Parker The Pettit Law Firm Joseph Pevsner Will & Ellen Pryor Susan Rainey Florentino A. Ramirez Robert Ruckman John Salazar Mary L. Scott Shackelford, Melton, McKinley & Norton LLP Shamoun & Norman LLP Sorrels Udashen & Anton Pam St. John Paul K. Stafford Richard G. Stewart, Jr. & Sandra J. Stewart Robert J. Stokes Dena Stroh Super Lawyers Susman Godfrey Karin Torgerson Windle Turley Karen Blakely Turner Phillip C. Umphres Honorable Mark Whittington Donors as of January 13, 2016
To donate to the campaign, visit www.dvapcampaign.org. To learn more about DVAP, visit www.dallasvolunteerattorneyprogram.org. For more information, contact Alicia Hernandez at ahernandez@dallasbar.org or (214) 220-7499.
12 H e a d n o t e s l D a l l a s B a r A s s o ciation
February 2016
Emeritus MCLE Exemption Status Removed Reprinted with permission of the Texas Bar Journal The Supreme Court issued an order dated August 28, 2015, that amends Article XII of the State Bar Rules to remove the MCLE exemption for emeritus attorneys. Beginning June 1, 2016, emeritus members (members who are 70 years of age or older) must comply with MCLE requirements. How will you be affected? Continue reading to find out about compliance years, why the rule changed, and what to do if you are retired. For more information regarding emeritus exemption status, go to texasbar.com/mcle/ emeritus. Why was the MCLE exemption for emeritus attorneys removed? The recommendation to remove the MCLE emeritus exemption came from the State Bar Task Force on Aging Lawyer Issues. The MCLE emeritus exemption was removed to ensure that all active practicing attorneys remain cur-
rent in the law. The recommendation was approved by the State Bar MCLE Committee and then by the State Bar Board of Directors and the Supreme Court of Texas. When does the MCLE requirement for emeritus attorneys become effective? The MCLE requirement applies to compliance years starting on or after June 1, 2016. Previously exempt attorneys may claim credit for CLE completed within 12 months immediately preceding the first compliance year beginning on or after June 1, 2016, provided that these CLE hours have not been used for compliance in a prior year (see chart below). What if I am retired or no longer practice law? Attorneys who no longer practice law may claim MCLE Non-Practicing Status or Inactive Membership Status. To be eligible for either status as an option for MCLE compliance, an attorney must be non-practicing or inactive during the
entire MCLE compliance year. Members who practice law at the beginning of a compliance year and later change to inactivate status are not eligible for an exemption but may defer their MCLE requirements. To request Inactive Membership Status, contact the Membership Department at membership@texasbar. com or (800) 204-2222, ext. 1383. To request MCLE Non-Practicing Sta-
tus, contact the MCLE De-partment at mcle@texasbar.com or (800) 204-2222, ext. 1806. Please refer to the chart below to determine your first MCLE compliance year. CLE credit hours completed between these dates may be used toward your first MCLE requirement of 15 hours, including 3 hours of ethics/professional HN responsibility.
Wondering What’s for Lunch? Join the Belo Mansion mailing list to receive the daily lunch menu.
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Focus
D al l as Bar A ssoci ati on l Headnotes 13
Computer/Intellectual Property Law
Google Wins Major Copyright Battle Against Authors BY MICHELLE JACOBS
After a 10-year battle in court, the U.S. Court of Appeals for the Second Circuit ruled that Google, Inc. does not infringe the copyrights of authors through its Google Books project and Google Library Project. Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015). Through these projects, Google makes and retains digital copies of more than 20 million books submitted to it by major libraries, allows the libraries that submit a book to download and retain a digital copy, and allows the public to search the texts of the digitally copied books for specific words and to see snippets of text containing those words. Google was sued in the United States District Court for the Southern District of New York by authors who claimed that Google infringed the copyrights in their books. The district court granted summary judgment in Google’s favor, finding that Google’s use of the authors’ books satisfies the “fair use” defense under 17 U.S.C. § 107 and therefore does not infringe the plaintiffs’ copyrights. The plaintiffs appealed this ruling, and the Second Circuit affirmed. Fair use is a doctrine that allows the public to use copyrighted materials without the permission of the copyright holder in certain circumstances. A significant factor in the Second Circuit’s finding of fair use was its determination that Google’s use of the plaintiffs’ books constitutes a “transformative” use—or, in other words, a use that adds something new, with a different purpose or character. Google Books’ search feature allows users to identify books that contain a certain word and those that do not. It
also provides statistical information about the frequency of word use over centuries. In finding that the search feature provides a transformative use, the court observed that the search feature provides information about the plaintiffs’ books that is not available from the books themselves. This conclusion about Google Books’ search feature was consistent with the Second Circuit’s earlier ruling that the fair-use doctrine allowed libraries to provide a searchable database of books, under the specific facts of that case. See Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014). But Google expanded the HathiTrust holding in at least two important ways. First, unlike the database in HathiTrust, Google’s searchable database makes available to the public “snippets” of text containing the searchedfor words. The Second Circuit found that Google’s snippet feature actually enhances the transformative use of the search feature because it allows users to determine if the searched-for word is used in a context that is of interest to the user. Thus, the limited disclosure of text to the public actually supported a finding of fair use. The court’s opinion makes clear, though, that the amount of text revealed through the snippet feature is important. The court pointed out that only a limited portion of any given work was accessible to the public through Google’s snippet feature, and that the snippet feature would not provide a meaningful substitute for the authors’ books. Second, unlike the defendant in HathiTrust, Google is a for-profit entity. Google does not receive any direct rev-
enues from its Google Books project, but the plaintiffs argued that Google indirectly profits from the Google Books project by seeking to establish its dominance of the Internet search market. The Second Circuit rejected the plaintiffs’ argument that Google’s commercial motivation weighed against a finding of fair use, in part because Google’s use of the plaintiffs’ works through the Google Books project was highly transformative and did not provide a significant substitute for the plaintiffs’ works. The Second Circuit therefore concluded that Google’s search and snippet features satisfy the fair use defense. It also found that Google does not infringe
the plaintiffs’ copyrights by providing copies of books to the libraries that provided those books to Google, because Google’s arrangements with those libraries require them to use the copies in a manner consistent with copyright law. In this day of digitization, the Google decision provides important insight into the types of search tools that will be permitted under copyright law, especially when those tools disclose portions of the authors’ works and are offered by forHN profit entities. Michelle Jacobs is an associate at Haynes and Boone, LLP and can be reached at michelle.jacobs@haynesboone.com.
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14 H e a d n o t e s l D a l l a s B a r A s s ociation
Column
February 2016
Ethics
The Unauthorized Practice of Law and Arbitration BY MARY SCOTT
It is now common for many lawyers to have a multijurisdictional practice, but it can lead to ethical problems for lawyers who do not exercise caution. Every jurisdiction prohibits the “unauthorized practice of law” and has its own rules, policies, and laws defining the unauthorized practice of law. This prohibition applies to both non-lawyers and lawyers who “practice law” in jurisdictions where they are not licensed to practice. Private arbitration, because of its non-judicial nature, is a practice area where lawyers may not expect to confront jurisdiction-specific rules on the unauthorized practice of law. The American Bar Association attempted to address the myriad rules and laws relating to a lawyer’s participation in cross-border arbitrations with ABA Model Rule 5.5. Under the Model Rule, a lawyer may represent a client in an arbitration in a “foreign” jurisdiction if the lawyer has
not been disbarred or suspended, the lawyer’s “services arise out of or are reasonably related to the lawyer’s practice” in the lawyer’s home jurisdiction, and the services provided do not require a pro hac vice admission. See ABA Model Rule 5.5(c)(3). While many jurisdictions have adopted some version of Model Rule 5.5, the differences between a state-adopted rule and Model Rule 5.5 can be significant. A lawyer who has accepted representation of a client for an arbitration in a foreign jurisdiction should first familiarize himself with the ethics rules and opinions in the foreign jurisdiction applicable to the unauthorized practice of law. Violating a foreign jurisdiction’s rules on the unauthorized practice of law could in some cases also be a violation of the Texas Disciplinary Rules of Professional Conduct. Texas Disciplinary Rule 5.05(a) prohibits law practice that violates the regulation of the legal profession in another jurisdiction. Some modified versions of Model Rule
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5.5 require a lawyer to take certain steps before representing a client in an arbitration outside the lawyer’s licensed jurisdiction. For example, some states require the lawyer to file a certification form (California); file a verified statement containing specific information plus pay a fee (Florida); obtain pro hac vice admission under certain circumstances, including court-annexed arbitrations (Illinois); pay a fee and file a certification about professional liability insurance (Oregon); or apply for special admission in a circuit court (Maryland). A handful of states, including Texas, have not adopted any version of Model Rule 5.5 or any rule akin to it. The lack of a rule on cross-border arbitration practice complicates the analysis and may require lawyers to take a harder look at cases and ethics opinions in those states. A finding that a lawyer failed to abide by a jurisdiction’s rules on the unauthorized practice of law may lead to a number of negative consequences. The lawyer may be subject to sanctions, including disgorgement or denial of fees; a disciplinary charge in both the lawyer’s licensed jurisdiction and the foreign jurisdiction; an injunction prohibiting further participation in arbi-
trations without a law license in the foreign jurisdiction; contempt of court; and, in some states (e.g., Florida and Virginia), criminal charges. If a lawyer has to litigate whether he engaged in the unauthorized practice of law, possible defenses include preemption under the Federal Arbitration Act and the strong public policies in most jurisdictions that favor private arbitration, which may trump the unauthorized practice of law rules. There are a limited number of cases that address the effect of a court finding that a lawyer engaged in the unauthorized practice of law. At least two cases have held that such a finding does not affect the validity of an arbitration award. See, e.g., Colmer, Ltd. v. Fremantlemedia N. Am., Inc., 801 N.E.2d 1017 (Ill. Ct. App. 2003); Gerowitz v. Noll, 2003 WL 1711279 (Cal. App. March 8, 2003) (unpublished). Forewarned is forearmed. Take the time to research the foreign jurisdiction’s ethics rules and laws on the unauthorized practice of law. Know where you stand. A few simple steps may alleviate future HN problems. Mary Scott is a member of Spencer Scott pllc and can be reached at mscott@spencerscottlaw.com.
DVAP’s Finest Dustin Mauck
Dustin Mauck practices intellectual property law at RegitzMauck PLLC, which recently opened its doors in 2015. He is the current chair of the Veterans Outreach Subcommittee of the DBA Pro Bono Activities Committee, which has a primary objective of promoting the Veterans Legal Clinic. Since the clinic’s inception six years ago, Dallas attorneys have counseled thousands of veterans and their families. On the first Friday of almost every month, you will find Dustin at the clinic assisting our local veterans with their legal issues. Dustin has accepted various cases for representation through the clinic, including impending foreclosures, divorces, child support cases, business disputes, and consumer cases. He believes that “this is a great way to give back to our veterans and their families, who have sacrificed so much for our freedom and the judicial system that we practice within.” Dustin encourages Dallas attorneys to attend a Veterans Legal Clinic on the first Friday afternoon of each month at the Veterans Resource Center. Please contact Dustin if you would like to join the Veterans Network. Thank you for all you do, Dustin!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
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Fe bru a ry 2 0 1 6
Focus
D al l as Bar A ssoci ati on l Headnotes 15
Computer/Intellectual Property Law
Hot Topics in Cloud Contracts BY ROBERT SCOTT
The enterprise software industry is undergoing one of the most significant transformations in its brief history. The battle for cloud supremacy among major software publishers has potentially significant implications for lawyers that represent both service providers and end users. While IT and business professionals can be easily convinced of the benefits of moving from on-premises software deployments to cloud based solutions, security, legal, and risk management professionals must take the lead in making sure that adoption of cloud software solutions makes good business sense. The legal issues in cloud contracts are different than traditional software licensing. Here is a list of key issues to look for when reviewing cloud contracts.
License Grant
A good cloud contract has a clearly written license grant that identifies the scope of the software license being granted. The key is to make sure that the grant covers all existing and anticipated use cases. Lawyers should review the specific grant language with their clients after discussing all potential use cases. Use cases involving sub-contractors, consultants, vendors, and customers are often overlooked. A grant to the customer and
its affiliates may not be acceptable to a client that needs to provide access to non-affiliate joint venture partners. Any use outside the license grant may give rise to copyright infringement liability so it is very important to discuss these issues with the client.
Implementation and Service Level Descriptions
Cloud contracts generally involve a bundled solution including hardware, software, and services. It is important for lawyers to work closely with clients to make sure that all known operational risks are covered.
Confidential Information
Confidentiality clauses were mostly non-substantive boilerplate in on-premises software licenses, but they take on added significance in cloud contracts. Customers contemplating storing confidential information need to ensure that providers are going to appropriately safeguard that information and agree not to misuse it or disclose it to third parties. Because the definition of confidential information is often carried through to other important risk-balancing provisions in a cloud contract, lawyers should carefully review language to make sure that the client is adequately protected.
USPTO Director Sworn In
Hope Shimabuku, director of the Texas Regional U.S. Patent and Trademark Office, is sworn in by USPTO director Michelle K. Lee. Photo credit: Jeff Isaacs/USPTO
IP Ownership
In on-premises software licenses, intellectual property provisions were generally not difficult to negotiate. Ownership of intellectual property in cloud contracts is more hotly contested. Vendors want to own all of the rights to enhancements to the software, including those commissioned and paid for by the client. The client’s lawyer should request that the client owns everything that it owned prior to entering into the contract, plus all enhancements the client commissions.
Compliance with Laws
Another frequently overlooked provision in cloud contracts is the compliance with laws section. It usually requires the client to be responsible for compliance with all laws related to its industry. If the customer is in a regulated industry, such as healthcare or financial services, federal regulations require service providers to agree to be bound to those regulations. Provisions that do the exact opposite are therefore problematic.
Insurance Provisions
Given the security and business continuity risks in cloud contracts, many clients will require service providers to carry professional liability insurance to cover claims arising out of or related to the service. Lawyers should include language in the agreement specifying the exact nature of the coverage that is required. General liability coverage for personal industry and property damage is not sufficient. Covered claims should include data breach, data loss, regulatory responses,
and consumer-oriented claims. Coverage limits should be set so that they are reasonable in light of potential claims scenarios.
Indemnity
Historically, indemnity for third-party infringement claims related to ownership of the software was the extent of what was offered by vendors. In cloud contracts, third-party IP claims continue to be a key indemnity issue. Indemnification for third-party claims related to data disclosure or data loss are equally, if not more, important. Lawyers for end users should work to make the provider’s indemnification obligations align with the indemnity being offered in the professional liability insurance. It makes no sense to require the provider to carry insurance if your indemnity provision is not at least as broad as the indemnity obligation that has been transferred through insurance.
Limitations of Liability
Most cloud contracts limit the provider’s liability in some way to the revenue that customer pays. Provider agreements will frequently read, “. . . in any event Provider’s liability shall be limited to the amounts paid by Customer in the six months preceding the incident giving rise to a claim.” Lawyers for end users need to carefully explain and negotiate the limitation of liability, taking advantage of insurance coverHN age whenever possible.
Robert J. Scott is Managing Partner of Scott & Scott, LLP. He may be reached at rjscott@scottandscottllp.com
16 H e a d n o t e s l D a l l a s B a r A s s ociation
February 2016
Perils and Pitfalls of Do-It-Yourself IP BY KIRBY DRAKE
You have probably heard or seen advertisements about services, such as Invent Help or LegalZoom, that purport to enable a person to engage in “do-ityourself IP” and generate their own legal documents at a low cost. There are a number of pitfalls when using such services, particularly in securing patent or trademark protection.
Patents
There is an old commercial where a man is sitting at the table with a butter knife and a surgeon on the phone is telling him how to perform surgery. The man asks: “Shouldn’t you be doing this?” A wise question for sure! Preparing a patent application on your own is a lot like doing
surgery on yourself. You are going to make mistakes, it is not a good idea, and only in the most extreme circumstances should it be attempted. Provisional Applications – One misconception is that filing a provisional application provides full patent protection, when it only saves a place in line at the Patent Office. If the provisional application is not converted to a non-provisional application within one year, the provisional application will expire, the invention will not be “patent pending,” and it will be difficult to gain patent protection. An inventor who attempts patent applications without proper guidance may not understand and comply with these requirements, which could lead to the loss of potential protection. Improperly Written Applications – An improperly written application can be
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almost as bad as having never filed an application. If the invention is only described at a high level, the application may not contain the helpful details allowing the the Patent Office to distinguish the new invention from existing patents during its examination of the application. No new matter can be added without filing an entirely new application, thereby possibly losing the benefit of the early filing date. Also, it can be unwise for an inventor to draft claims as they may end up being overly broad or narrow in scope.
Trademarks
Having a good trademark can distinguish a business’ products and/or services from those provided by competitors. It can be critical to a business’ success to secure/maintain trademark protection, but there are a myriad of pitfalls when cutting corners. 1. Failure to Adequately Clear Trademark – Due diligence is critical to reasonably confirm that the trademark is capable of being protected and enforceable to avoid filing an application on a mark that is not protectable or may infringe another mark. Having an attorney assist with evaluating a mark prior to filing is perhaps one of the most effective financial investments, as it can help to avoid major legal/business costs later, such as avoiding a rebranding campaign. 2. Failure to Accurately Identify Goods/ Services Associated with Trademark – An applicant must be accurate and honest in including only goods and/ or services that the applicant has used or has an intent to use in commerce. If the mark registers for goods and/or services not actually being associated with the mark, this may constitute fraud and could lead to nullification of the registration. Trademark attorneys
are trained to scrub the description of goods and/or services to minimize the likelihood of fraud or potential unenforceability. Taking time to confirm the use or potential for use of each item identified in the description may ensure the survival of the registration. 3. Failure to Adhere to “Less is More” Principle - Many applicants mistakenly file for protection on the most detailed version of their trademark (i.e., full color logo with business name and slogan). However, protecting the most detailed version (without separately protecting other aspects, such as the logo or the slogan alone) can dramatically limit the breadth of the registration. This may affect enforcement because an applicant would have to show the competitor used a confusingly similar name and logo and slogan. In contrast, by protecting the business name alone, it may be easier to show a confusingly similar commercial impression, even if the competitor utilized a drastically different logo with the name. 4. Failure to Complete/Maintain Trademark Registration – Applicants may not understand requirements to actually secure trademark registration. If the Trademark Office rejects the application and the applicant fails to timely or properly respond, the application would be abandoned. Also, a registration never expires unless the owner fails to renew the trademark every 10 years and file periodic statements to demonstrate continuous use in commerce. Failure to renew can prove costly, as a new application may need to be filed, thereby unnecessarily restarting the HN application process. Kirby Drake is a partner at Klemchuk LLP and can be reached at kirby.drake@klemchuk.com.
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Fe bru a ry 2 0 1 6
Focus
D al l as Bar A ssoci ati on l Headnotes 17
Computer/Intellectual Property Law
TTAB Decisions of Interest in the Wake of the Craft Beer Boom BY CHARLES IRVIN
It is obvious to anyone paying attention at local restaurants, bars, and grocery stores that craft beer is booming. In September of 2015, the Craft Brewers Association of America announced that the number of breweries in the U.S. had surpassed the 4,000 mark. This is quite a jump from the reported 1,400 domestic breweries operating in 2005. Part and parcel with the rising number of new breweries is an increase in craft beer related federal trademark registrations and associated litigation. Recent Trademark Trial and Appeal Board (TTAB) cases of note concerning craft beer include non-precedential decisions on immoral or scandalous refusals made under section 2(a), and what goods are related for section 2(d) purposes. Two recent TTAB decisions show the Board’s reluctance to find craft beer marks immoral or scandalous under section 2(a) absent obvious vulgarity. The Board determines vulgarity in light of contemporary attitudes and the context of the marketplace in which the goods identified in the application are offered. The marks at issue in both cases used the term “nut” in a manner that could be suggestive of the male anatomy. In In Re Left Nut Brewing Company, the Board reversed a refusal to register the mark LEFT NUT BREWING COMPANY. In doing so, the Board cited evidence presented by the examin-
ing attorney of both vulgar and non-vulgar usages of the term “left nut”, including former U.S. Senator Alan Simpson’s use of the phrase. In In Re Engine 15 Brewing Co., LLC, the Board reversed a refusal to register the mark NUT SACK DOUBLE BROWN ALE. The Board stated that the adult consuming public who purchase beer would not likely find the Nut Sack Double Brown Ale mark to be immoral or scandalous, and even those who do would still recognize it as an attempt at humor. In both of the above cases, the Board considered multiple third-party registrations of similarly suggestive marks as evidence against a finding of vulgarity. As craft beer consumers continue to grow desensitized to somewhat crude beer names and more marks of this type are successfully registered, it will likely become more difficult for an examining attorney to avoid reversal on appeal of section 2(a) refusals. Attorneys advising brewers should also take note of what goods the Board has recently found related to craft beer for section 2(d) purposes. Though there is no per se rule that all alcoholic beverages are related goods, the TTAB has fairly consistently held them related in cases decided over the last decade. In addition to alcoholic beverages, the Board has found all beverages related on multiple occasions. As more craft breweries offer root beer and other non-alcoholic sodas, the relatedness of non-alcoholic beverages to craft beers
is likely to increase over time. Recent market penetration of hard sodas like “Not Your Father’s Root Beer” will also increase the likelihood that craft beer and non-alcoholic beverages will generally be found related for 2(d) purposes. In a recently filed opposition proceeding, E&J Gallo Winery v. Conscious Cultures LLC, E&J Gallo alleged that Applicant Conscious Cultures’ mark BAREFOOT BUCHA for kombucha tea is likely to cause confusion with their registered BAREFOOT mark for wine. This case presents another opportunity for the TTAB to decide if alcoholic and non-alcoholic beverages are related goods. Further complicating the matter is the very active debate between kombucha producers and the Alcohol and Tobacco Tax and Trade Bureau on whether or not kombucha tea should be regulated as an alcoholic beverage. While a finding that all beverages are related goods may not surprise some, a recent TTAB decision held jams and jellies to be related goods to
craft beer for section 2(d) purposes. In Allagash Brewing Co. v. Cathie A. Pelletier, the Board held jams and jellies to be related goods to craft beer mainly due to the evidence presented that craft breweries often offer both beers and food products under the same marks. While the Board did indicate that the craft beers at issue in the case were sufficiently commercially related to jams and jellies, the Judges would not go so far as to say that all beer would be similarly treated. Despite the non-precedential nature of the Allagash case, an attorney running a trademark clearance search on behalf of a brewer should include foodrelated marks in their search. The other big takeaway from these recent cases is that though a mark may be offensive to some, a brewer willing to fight has a good chance at successfully registering their mark absent blatant vulgarity. HN Cheers! Charles Irvin is in-house counsel for BuzzBallz, LLC, and can be reached at charles.a.irvin@gmail.com.
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Patents l Trademarks l Copyrights l Intellectual Property
We are a boutique law firm specializing in Intellectual Property Law and handling IP due-diligence and target portfolio review during acquisitions, design-around analysis in coordination with in-house technical personnel, infringement, patentability and validity studies. We pride ourselves on our availability to meet client needs as they arise and our ability to provide expert representation without overstaffing a file. We consider it our job to assist in-house counsel with the myriad of IP problems that arise, in a timely and cost-effective manner. Our clients often use us for “ox in the ditch” problems that require creativity in addition to IP expertise. Our responsiveness and stability have enabled us to establish lasting relationships with our client base-ranging from Fortune 100® companies to start-ups. 7557 Rambler Road, Suite 630 l Dallas, TX 75231 Toll Free: 877.220.2889 l Tel: 214.220.0444
18 H e a d n o t e s l D a l l a s B a r A s s ociation
In the News
February 2016
February
FROM THE DAIS
Brian L. Webb, of The Webb Family Law Firm, served on the faculty of the Advanced Mediation Training program presented by the American Academy of Matrimonial Lawyers at their annual meeting in Chicago. Scott P. Stolley, of Cherry Petersen Landry Albert LLP, moderated a judicial panel on “Preserving Error” at the University of Texas, School of Law’s 20th Annual Insurance Law Institute. David Moseley, of Glast Phillips & Murray, spoke on “Nuts and Bolts of Drafting Management Agreements” at the State Bar of Texas Hospitality Industry conference in Dallas.
KUDOS
Yesenia Cárdenas, of Bowman and Brooke LLP, has been named Partner. Mark M. Sloan, of Thompson & Knight LLP, has been named Managing Partner. Rafael Anchia, of Haynes and Boone, LLP, received the “La Luz” Award given by the Dallas Hispanic Bar Association. Kervyn B. Altaffer, Jr., of Law Office of Kervyn B. Altaffer Jr., was awarded the 2015 Kristi Couvillon Pro Bono Award at the Texas Civil Rights Project 25th Anniversary Bill of Rights Dinner.
P. Long, of Squire Patton Boggs, as President; Quentin Brogdon, of Crain Lewis Brogdon, as Vice-President; Richard A. Capshaw, of Capshaw & Associates, as Treasurer; and James W. Grau, of Grau Law Group, as Membership Chair. Monty Ward, of Weil, Gotshal & Manges LLP, has been elected Partner. Dawn E. Fowler, of Dawn E. Fowler, P.C., received the 2015 Ken Fuller Pro Bono Award from the Family Law Section of the State Bar of Texas; earlier this year, she was named the 2015 Serjeant for the Annette Stewart American Inns of Court. Leane K. Capps, of Polsinelli PC, has been elected Chair of The Council of Appellate Lawyers. Jeffrey B. Simon, of Simon Greenstone Panatier Bartlett, PC, has been elected 2016 President of the Texas Trial Lawyers Association. A. Shonn Brown, of Gruber Hurst Elrod Johansen Hail Shank LLP, received the Emerging Leader Award for Distinguished Alumni from SMU Dedman School of Law. Starlett Carter and Robert S. Velevis, of Sidley Austin LLP, have been promoted to Counsel and Partner, respectively. Brian Mair and Benjamin Nise, of Slater & Matsil, LLP, have been promoted to Partner.
Chief Justice Carolyn Wright, of the Fifth District Court of Appeals, Jim Cowles of Cowles & Thompson, P.C., and Windle Turley, of Turley Law Firm, were honored by The Patrick E. Higginbotham Inn of Court as recipients of the Texas Giant™ in the Law award.
Janet A. Hendrick, of Fisher & Phillips LLP, has been elected Partner.
The Dallas Chapter of the American Board of Trial Advocates (ABOTA) elected the following officers for 2015-2016: David
Lisa A. Songy, of Tollefson Bradley Mitchell & Melendi, LLP, has been named Partner.
Kelly E. Kleist, of Conley Rosenberg Mendez & Brenneise, LLP, has become a Shareholder.
Stephen Ratliff, of Holland & Knight LLP, has been promoted to Partner. Dave Wishnew, of Gruber Hurst Elrod Johansen Hail Shank LLP, has been promoted to Partner.
ON THE MOVE
Christopher J. Volkmer has joined Graebel Moving & Storage as General Counsel. Raymond Urbanik has joined law firm Barnes & Thornburg LLP as Of Counsel. Katherine Elrich has joined Cobb Martinez Woodward PLLC. Judge Marilea Lewis and Lon Loveless have joined Orsinger, Nelson, Downing & Anderson, LLP as Of Counsel and Partner, respectively. Daniel Baucum has joined Munsch Hardt Kopf & Harr, P.C. as a Shareholder. Aaron S. Turner has joined Schiff Har-
din LLP as Counsel. Sadie A. Horner has joined The Bassett Firm as Associate. Christopher M. Lowry has joined Saunders, Walsh & Beard as Associate. Crystal Vogt has joined Brown Fox PLLC as a Senior Associate. Melinda Balli has joined Kimley-Horn and Associates, Inc. as Chief Litigation Counsel. James L. Deem, Paulo Flores, and Jeffrey A. Ford have joined Peckar & Abramson, P.C. as Partners. Timothy D. Matheny has joined the firm as Managing Partner and Christopher A. Scifres has joined as Associate. News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org
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Fe bru a ry 2 0 1 6
Classifieds
D al l as Bar A ssoci ati on l Headnotes 19
February
EXPERT WITNESS
Economic Damages Experts – HSNO is the Forensics Firm. The Dallas office of HSNO has five CPA testifying experts who specialize in the calculation of economic damages in areas such as commercial lost profits, personal lost earnings, business valuations, property damage, insurance litigation, intellectual properties, commercial litigation, contract disputes, bankruptcy, and fraud. HSNO is qualified in most industries including, but not limited to, energy (offshore and onshore), manufacturing, hospitality, service, insurance, transportation, entertainment, product liability, construction and construction. HSNO has 17 U.S. offices and offices in London and Mexico. Contact Peter Hagen or Karl Weisheit at (972) 980-5060 or HSNO.com. Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 2229494. dlopez@pulmanlaw.com. Economic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, business valuation, credit damage and divorce matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 6659458 or Houston (713) 513-7113. troney@ thomasroneyllc.com. "We Count."
OFFICE SPACE
North Dallas - Lincoln Centre. Law firm located at Lincoln Centre has one partner size office and cubicle available. Located at LBJ and the Tollway; two conference rooms; break room/kitchen; copier; Email: dallasipfirm@gmail.com for more information. McKinney Avenue Furnished Single Office with secretarial space available if needed within small real estate law firm located at 4054 McKinney Avenue. Shared conference and break room, furniture, copier, fax, DSL & phone equipment are available if needed. No long term commitment and a monthly rate of $850.00. Call (214) 520-0600. Galleria Tower – Law firm has a window office available immediately, in a newly renovated space. Amenities include: access to law library, large and small conference rooms, kitchen, copy room, high speed color copier, phone, phone service, internet, and file room. Free garage parking and 24/7 access. For additional information, please call Diana at (972) 9344110 or Diana@travislaw.com. Excellent Oak Lawn location, 2501 Oak Lawn, 3rd floor. 2 offices available for rent. Interior; 15’ x 11’ 2” and exterior; 15’ x 9’ 8”. Interior $1,000.00 a month. Exterior window office $1,250.00 a month. Rent includes, phones, internet, copies, secure underground parking, access to a conference room and kitchen. Email charles@waterburylawpc.com or call (214) 630-4554. Ready To Practice Law "Like A Boss”? No Law Firm Required. Independent
business attorneys and litigators need a professional, secure place to work, meet clients, and network - NOT just another executive suite, sublease, home office or coffee shop. VENUE is a “working clubhouse” built BY attorneys, exclusively FOR attorneys. Occupying two top floors in a landmark downtown building, VENUE provides the resources, training and support attorneys need to launch their firms and accelerate their practices. In addition to workspaces and offices, VENUE members will have access to: 30+ hours CLE & management/development training annually, exclusive networking & social events, and an elite network of 100+ local partner-level peers. VENUE is the “Practice of Law Made Perfect.” For info or to schedule a tour: www.attorneyvenue.com. Uptown Dallas. 1200 square foot four office suite with conference room and reception area in well maintained small office building one block from Crescent with high ceilings, wood floors, large windows and other amenities. Contact Owner @ (214) 855-0127 or jackcirwin@ earthlink.net. Austin - 816 Congress Avenue — Sublease law firm space; approximately 1845 RSF to 4125 RSF. Class A building with security. Two blocks from, and outstanding views of, Capitol. Fitness center with lockers and showers. Parking available. Sublease space or executive-suite arrangement (e.g., telecom, fax, copier, furnished office(s)). (512) 474-1492 or email: AustinCongressAveSubLeaseSpace@gmail.com. North Dallas/Farmers Branch - Law firm has several offices for lease. $400/month. Includes use of furniture, internet, fax, parking, conference rooms, and kitchen. Convenient location. No lease required. Please contact Ilene Smoger at (972) 2435297 or ilene@texasinjurylaw.com. For lease Heart of Bishop Arts in Dallas: Historic building 2 floor brick gem about 2300 sf. Former 4 plex apartment building with parking! Perfect for small firm. Walk to great eating and drinking in Bishop Arts. Short drive to Courthouse. New trolley from downtown! 301 W 8th St. For details Mark Mordecai (972) 5232031; email: mark@sqft.net. North Dallas AV Rated law firm has 3 attorney offices for lease with covered parking. We provide reception, telephones, internet service, conference rooms and copier/fax machine. Available January 1, 2016, $2500.00 per month per office. For additional information please send e-mail to Biott@legaladministrator.net. North Dallas - LBJ Freeway. Law Firm – North Dallas - For Lease: Professional office space, 7616 LBJ Freeway, offers conference room, receptionist, internet service, lobby kitchen, parking. Available 12.15.2015. Email Amy at arobinson@ englishpllc.com or (214) 528-4300. Turtle Creek Blvd-Upscale law firm has class A office space available with highend decor. Located at 3811 Turtle Creek, high floor, Office is 240 sq. ft., and rents for $1600.00 a month. Garage Parking, gym, and access to conference room available. Please inquire to Heather at hwoodard@baronandblue.com. Walnut Glen Tower (Walnut Hill/Central). Great Deal! Terrific offices in Class A building near Northpark with views of downtown over lake with fountains. Convenient access to DART station. Prized, central location wherever you need to go in the Metroplex. Do business in a relaxed yet professional environment which includes administrative stations, conference room, kitchen, copier,
phones, reserved garage parking, on-site restaurant and other amenities. A larger executive office and/or smaller offices/flex space for as little as $500/month. Why not have a professional location for your business and quality of life at work? Please call (214) 750-1600 for details.
POSITIONS AVAILABLE
Attorney – Medical Malpractice Defense. Thiebaud Remington Thornton Bailey LLP, a law firm specializing in medical malpractice defense and healthcare law, is seeking to hire an attorney with 3-5 years’ insurance defense experience. Medical malpractice defense experience helpful. Send your resume to Christine Santosuosso, Adm. Mgr., Thiebaud Remington Thornton Bailey, 4849 Greenville Ave., Suite 1150, Dallas, TX 75206 or e-mail to: csantosuosso@trtblaw.com or fax to (214) 754-0999. Legal Nurse Consultant. Thiebaud Remington Thornton Bailey LLP, a law firm specializing in medical malpractice defense and healthcare law, is seeking to hire a Legal Nurse Consultant with 5 years of clinical nursing experience. LNC experience, LNC certification or healthcare risk management experience preferred but not required. This is an inhouse position. Please send your resume to: C. Santosuosso, Adm. Mgr.; Thiebaud Remington Thornton Bailey LLP; 4849 Greenville Ave., Ste. 1150; Dallas, TX 75206 or fax to: (214) 754-0999. Are you a Solo or Small Firm Lawyer looking to make life easier? Tired of practicing law and struggling to manage your business? We can help. Emmert & Parvin, LLP is a new firm seeking the addition of an attorney with established practices in family law and commercial litigation. Our compensation formula requires no billable hours, allows you to set your own schedule, work from anywhere and we handle all firm administration. Dynamic environment, beautiful downtown offices and excellent client service. Contact Chris Parvin at chris@emmertparvin.com for more information. Need 3-5 years' experience business litigation associate in downtown Dallas firm. Requirements: excellent academics, strong personality, prior experience in courtroom and taking depositions. Writing sample required. Resumes to employment@GodwinLaw.com. Civil Litigation Attorney. Business litigation firm in Turtle Creek seeks attorney with 5-10 years civil litigation experience. Strong academic record and writing skills required. Salary negotiable. Send cover letter and resume in confidence to oaklawnfirm@aol.com. Business/Commercial Litigation & Family Law Attorney. Downtown Dallas law firm seeks an attorney for its Collin County office with 2-3 years’ experience in business/commercial litigation and family law. Candidate should have 1st or 2nd chair experience in trial, Motions for Summary Judgment, and other typical civil litigation motions. Must also have experience in taking and defending depositions. Compensation negotiable. Please send resume to Dallaslawfirmjobs@gmail.com. Attorney – Family Law. Genesis Women’s Shelter and Support seeks staff attorney who has solo practice experience addressing a wide variety of services while working on cases involving family violence. Must have minimum of 3 years direct family law experience including divorce, protective orders, and custody. Spanish speaking preferred. Send resume, references, and salary requirements by email to resume@genesisshelter.org.
Legal Assistant - Small firm handling Estate Planning, Probate, Corporate, and Family Law. Duties include e-filing, trial prep, calendaring, drafting documents, and purchasing. Prior firm experience or training preferred. Good grammar, punctuation, and phone skills required. Send resume to dallegalasst@gmail.com. Legal Aid of NorthWest Texas (“LANWT”) currently has various openings throughout its firm at various locations. We are a Section 501(c)(3) nonprofit Texas Corporation. LANWT provides free civil legal services to eligible low-income residents in 114 Texas Counties. If you are interested in joining a great team that offers you the opportunity to rapidly develop litigation skills in court, a generous health benefits package, and the ability to be of service to others, we encourage you to visit LANWT’s career site at www.lanwt.org. Experienced Office Manager. Fast growing, uptown Dallas boutique law firm with a sophisticated corporate and real estate transactional practice seeks experienced office manager with a minimum of 5 years law firm (or equivalent) work. The successful candidate will have experience scaling up and managing the entire back office operation of a law firm (or equivalent professional services organization) capable of supporting 15-20+ attorneys. Thorough knowledge of accounting principles as well as Windows 8, Microsoft Office, and QuickBooks is required. Must have strong interpersonal skills, the ability to manage subordinates and vendors, and the ability to develop and accomplish growth appropriate initiatives independently. $60,000-$95,000 base salary (plus excellent benefits) commensurate with experience. Please send cover letter and resume, both in PDF format, to eroyse@ exallwood.com with a copy to hexall@ exallwood.com.
SERVICES
Credentialed Forensic Genealogist & Attorney – hire an experienced attorney and credentialed forensic genealogist to ethically find next of kin and missing heirs for intestacy, probate, guardianship, property issues, and more. Reasonable hourly rate. See www.ProfessionalAncestryResearch.com. Wanda Smith, (972) 836-9091. Energy Acquisition(s): I buy any size royalty(ies), mineral(s), working interest(s) and try to reach (and pay) the sellers asking price. I am a licensed attorney and have been making oil and gas purchases for 35 +/- years. E-mail to bleitch@prodigy.net or call Brenda at 1-800760-9890 or (214) 720-9890 for a friendly and quick analysis and response. Trial Preparation Stress Relief: Licensed litigation attorney (20 years) available for hourly projects: court appearances, trial preparation, drafting pleadings/discovery/ motions, attending depositions, mediations. Large firm and complex litigation experience, first and second chair trials and arbitrations, law review. (972) 665-9834. Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high end watches. Consignment terms available @ 10-20 % over cash. For consultation and offers please call J. Patrick (214) 739-0089. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org.
20 H e a d n o t e s l D a l l a s B a r A s s ociation
February 2016