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contents ON THE COVER 6 Angélica Jiménez: A Journey of Service
By Natalie Wilson
FEATURES 9 Trademark Applications Worth Talking About
By Nick Guinn
13 Infamous Will Disputes
By Harry L. Munsinger, J.D., Ph.D.
22 Charles Manson Fifty Years Later Part III: The Trial
By Mark J. Phillips and Aryn Z. Phillips
6 Judge Angélica Jiménez photographed for San Antonio Lawyer by Adrian Garcia, Onward Group
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18 S an Antonio Black Lawyers Association: Rooted in Struggle, Support, and Success
27 Fourth Court Update
By Doris White
By Justice Beth Watkins
28 Federal Court Update
By Soledad Valenciano, Melanie Fry, and Charles Carter
May–June 2021
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Angélica Jiménez: A JOURNEY OF SERVICE By Natalie Wilson
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Angélica Jiménez photographed for San Antonio Lawyer at the San Pedro Creek Culture Park by Adrian Garcia, Onward Group.
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ngélica Jiménez’s ascension to the 408th District Court was the fulfillment of a life-long ambition. She first knew in elementary school that she wanted to become a judge. Angélica was cast as Rosa Parks’ attorney in a school play based on the life of Rosa Parks. When the young actors discussed the various roles, young Angélica realized that the judge was the person with the most power to effect change in the scenario. This school play was Angélica’s first exposure to the legal profession. She grew up in Eagle Pass, where her father owned a bakery. Her mother stayed home with Angélica and her brother, Luis, until Angélica was in elementary school. Angélica’s mom then went back to school and became a Licensed Vocational Nurse. Both parents instilled in Angélica the belief that education was the key to improving their own lives and the lives of those around them. Nevertheless, Angélica did not have a straight path to achieving her ultimate goal. After earning her undergraduate degree in Spanish Literature and History, Angélica married Javier Espinoza. They met as undergraduates at the University of Texas at Austin, working on a student-led outreach project called Helping Everyone Reach Opportunity and Education (HEROE), which was dedicated to mentoring and tutoring high school students in low-income areas. Javier’s career goals also included the law, but the couple could not afford to attend law school at
the same time. Javier hit the books first, while Angélica pursued a career in corporate finance, and they started their family. By 2007, Javier’s legal career was thriving, so Angélica enrolled at St. Mary’s University School of Law, where she excelled and graduated in 2010. Following graduation, Angélica’s career path turned in a dramatically different direction from her banking days. After working at a small firm, she opened the firm of Figueroa & Jiménez with Laura Figueroa. Angélica focused on Family Law matters, while Figueroa practiced Immigration Law. While in private practice, Angélica’s best days were always adoption days. She was thrilled and energized by the joyous culmination of the hope, love, and hard work that went into forming forever families. In less happy circumstances, Angélica approached her cases with a particular end goal. She focused not just on the hearing or trial, but on the bond that her clients would have with their children once they had grown up. She always counseled clients to make decisions that would solidify and enhance their relationships with their children by preserving a sense of love, safety, and stability, in spite of the disruption of a divorce. Figueroa and Jiménez enjoyed practicing law together, but both had aspirations of judicial service, although they thought it would take some time for those goals to come to fruition. As it turns out, both women took the bench much sooner than they anticipated. When Judge Larry Noll announced that he was retiring, Angélica felt that it was the right time to throw her hat into the ring. She entered a crowded Democratic primary, with five serious contenders. Despite the competition, the primary contest was remarkably positive. Angélica recalls that the primary did not feel like a rivalry; the candidates all knew each other and trusted that they all wanted to serve the community in the best way possible. The candidates focused on their own strengths and on building support without engaging in the negative campaigning one might expect from such a crowded field. Entering such a packed race, Angélica knew that she would have to work incredibly hard to stand out and gain name recognition. She focused a lot of her energy on meeting non-lawyers because she was already very active in the bar. At the beginning, she was terrified of block-walking and having to make her pitch to strangers. That turned out to be her favorite part of the campaign, however. She recalls those long days fondly, recounting that it was a fun and energizing experience, even when she literally walked holes in the
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1. Judge Jiménez with her predecessor on the 408th District Court, Judge Larry Noll. 2. Judge Antonio Arteaga caught Judge Jiménez working late … on her own birthday! 3. Adoption Days were Judge Jiménez’s favorite days as a lawyer, and that has not changed since she took the bench. 4. Judge Jiménez was sworn in by two trailblazing Latina Judges—Alma Lopez, former Chief Judge of the Fourth Court of Appeals, and Rebeca Martinez, the current Chief Judge of the Fourth Court of Appeals.
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5. Judge Jiménez surrounded by her family at her swearing in. From left to right: daughter Yessica, son Luis Javier, Judge Jiménez, daughter Dulce, and husband Javier Espinoza. 6. Judge Jiménez with her proud parents, who instilled in her a love of learning and an unparalleled work ethic. 7. Judge Jiménez swearing in new lawyers at St. Mary’s University School of Law.
Photos courtesy of Angélica Jiménez.
soles of her shoes. In the conversations she had with complete strangers, Angélica realized what a small community San Antonio is and how closely we are connected. The hard work paid off, and Angélica was elected to the 408th District Court in November 2016. Shortly thereafter, her former law partner became an Immigration Judge. Angélica was sworn in on January 1, 2017, and got right to work handling a busy docket. Although she was prepared for hard work, she quickly learned that being a judge was even more work and more stress than she had anticipated. But it was also a lot more gratifying than she had ever imagined. The camaraderie of the judges helped with the learning curve, and she deeply appreciates the willingness of the judges to assist each other. Like all Civil Bexar County District Judges, most of the cases Angélica hears are family cases. She still approaches them with the goal of preserving healthy family dynamics and encourages litigants and advocates to reach as many consensual decisions as possible. Of course, adoption days are still the best days, and Angélica really enjoys being a part of those occasions. Angélica was up for re-election in 2020.
The public health restrictions imposed to combat the COVID-19 pandemic prevented her from traditional campaign activities for most of the election cycle. She was fortunate in that she did not have opponents in either the primary or general elections. The pandemic did not wreak havoc with her re-election campaign, but it certainly affected how she operated on a daily basis. When courts were initially shut down in March 2020, it was assumed they would reopen in a few weeks or possibly a few months. Angélica was already on the Central Jury Bailiff Committee and the Civil Jury Assignment Committee, so she was a natural appointment to the committee formed to determine how to hold virtual hearings or deal with the courts’ expected case backlog. As it became clear that the shutdown would continue for a significant period, the policies, procedures, and resources to conduct court business remotely became essential. The hard work of the judges, court staff, and attorneys paid off. In short order, the Bench and the Bar grew accustomed—even adept—at using technology for remote hearings. In December 2020, Angélica presided over the first virtual civil jury trial that went
to verdict in Bexar County. Some jurors were initially uncomfortable with the technology, but after about half a day and some one-onone remote training, everyone was ready to proceed. Angélica’s face lights up like a proud parent when she discusses the commitment of those jurors and their openness to serving remotely. By necessity, the pandemic spurred an enormous change in the way we practice law, and even as we return to “normal,” Angélica notes that many of those changes were positive. The jurors who participated in the remote trial reported that they felt better able to assess the evidence and witnesses because they could see everything up close, instead of from across the room. Virtual hearings have also decreased fees and expenses for clients. She notes that, after Hurricane Harvey, courts along the Gulf Coast were adversely affected for months, creating a significant backlog. Those effects might have been alleviated by employing remote proceedings, had we known then what we know now. Although it will be up to the Supreme Court of Texas or the legislature to continue authorizing remote proceedings generally or in limited circumstances, Angélica thinks that we have learned valuable lessons and skills that May–June 2021
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Mexico has long been a favorite travel destination for Judge Jiménez and her family. They enjoy live Mariachi performances, great food, and the vibrant art scene. Judge Jiménez and her husband, Javier, are proud that their children have grown into engaged and politically active young adults. One of their favorite trips was to New York City, where the whole family caught Hamilton on Broadway.
Photos courtesy of Angélica Jiménez.
could make the justice system more resilient in future emergencies. In addition to her regular duties, in 2019, Angélica (with Judge Rosie Alvarado), took over the judicial function of the PEARLS Court, which was started by former Judge Renée Yanta in 2015. “PEARLS” is an acronym for Preparation, Esteem, Achievement, Resiliency, Learning, Strength, and Stamina and was borne out of Judge Yanta’s frustration over the fact that the judicial system was failing children in the foster system. The alumnae of the PEARLS Court have wonderful support from mentors and case workers, giving them a greater chance of academic success and bright futures. Angélica’s connection to the young women in the PEARLS Court is deeply personal. Many of the young women served by the PEARLS Court are the same age as her children were when she started with the PEARLS Court. In many ways, the work of the PEARLS Court is similar to the mission of the HEROE program that Angélica cofounded as an undergraduate. Angélica and Javier have three children together—Luis Javier, Dulce, and Yessica. Angélica and Javier are mostly enjoying the transition to empty nesting—their children are driven, excited, and passionate about their
futures. The family enjoys traveling together, recently spending time in Europe and Mexico. Angélica and Javier travel to Mexico frequently and are avid art collectors. They have many beautiful pieces, but Angélica’s favorite is a piece depicting Freda Kahlo that the couple purchased on one of their first trips to Tlquepaque, Guadalajara. It evokes memories of their stay in the town, which they loved, and represents to Angélica the sacrifices that she and Javier made to build their life together. Angélica is thoroughly embracing this season of her life. She has fulfilled her childhood dream of becoming a judge. Her children are thriving and launching into the world. She and Javier are enjoying the fruits of many years of labor. But mostly, she is grateful to have an opportunity to serve the people of Bexar County. Natalie Wilson is a Shareholder at Langley & Banack, Inc. She leads the firm’s Cybersecurity, Data Protection and Privacy practice group and is Board Certified in Business Bankruptcy Law by the Texas Board of Legal Specialization.
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TRADEMARK APPLICATIONS WORTH TALKING ABOUT By Nick Guinn Article graphic illustrations courtesy of Nick Guinn
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bout half a million trademark applications are filed at the United States Patent and Trademark Office (“USPTO”) each year. Those applications are reviewed by more than six hundred trademark examining attorneys, who issue certificates of registration for more than fifty percent of the applications.1 This article cannot address each of those applications or registrations—nor should it. However, hidden among the troves of filings each year are a few trademark applications worth talking about. These examples show how exacting the application process can be, shed light on how familiar companies distinguish themselves from their competitors, offer a glimpse into the myriad legal considerations that accompany celebrity status, and reflect tensions between state and federal law in evolving markets.
Trade Dress Most people are aware that names, logos, taglines, or a combination thereof can be trademarked. However, product design and packaging, sounds, scents, etc. may also be registered as “trade dress.” Applications to register such “trade dress” present unique issues that do not necessarily arise with names and logos. Reg. No. 5,467,089 for the Play-Doh Scent. Hasbro, Inc. owns a registration for a scent mark described as a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough. This scent is recognizable as Play-Doh, even if most consumers could not identify the individual scent components.
When Hasbro attempted to register the scent, the examining attorney argued that incorporating a scent into a toy modeling compound is a non-distinctive feature and fails to serve as a trademark. The examining attorney argued that the act of adding a scent to a toy modeling compound is simply an incidental feature and does not distinguish the product. Hasbro submitted a container of PlayDoh modeling compound to the USPTO as its specimen for the application. The company noted that a competing product is available in six scents (watermelon, orange, banana, lime, pear, and pineapple), which is completely distinct from the combined vanilla cherry and salted wheat-based dough scent of Play-Doh. Hasbro emphasized that there is no overlap between Play-Doh’s scent and the scents of its close competitors. In support of its position that the Play-Doh scent is distinctive, not merely incidental, Hasbro submitted the declaration of Greg Lombardo, its Vice President of the Global Branch Strategy and Marketing Division for Play-Doh and Play School. Lombardo’s declaration was devoted, in part, to establishing the widespread sales of Play-Doh and also to identifying a number of articles and other references describing and discussing the unique and distinctive scent of Play-Doh. The articles written by end users of Play-Doh attested to the undoubtedly distinctive and source-identifying nature of the applied-for scent mark that is the PlayDoh scent. In other words, Hasbro showed that end users could identify Play-Doh by its
vanilla cherry and salted wheat-based dough smell. Hasbro also offered an unsolicited reader survey conducted in 2017 by the World Intellectual Property Review, which found that the majority of its readers (70%) believe that the Play-Doh scent mark application should be granted registration due to its acquired distinctiveness. Using these independent sources had the intended effect. Hasbro’s response, relying heavily on the evidence of how consumers actually experience Play-Doh’s signature scent, overcame the initial rejection, and its scent mark registered on May 15, 2018. Reg. No. 3,137,914 for the Crown Royal Bag. Crown Royal Canadian Whisky has a distinctive, cut-glass bottle, but the most well-known aspect of its packaging is the deep purple bag with gold tassels that surrounds the bottle. When Crown Royal attempted to register its famous purple bag, the application was initially refused as merely functional and merely ornamental. The examining attorney argued that the mark was functional because the fact that the bag is made of soft, insulating, velvet fabric in a pouch shape with a drawstring handle, makes it functional for packaging bottled spirits, and it served simultaneously as an ornamental protector and carrier for such goods. The examining attorney argued that the mark could be registrable, but product packaging is not inherently distinctive and, therefore, cannot be registered on the Principal Register without a showing of acquired distinctiveness under Section 2(f ) of the Lanham Act. Crown Royal responded succinctly and with little evidence. That initial response was insufficient to overcome the refusal. In the second refusal, the examining attorney dismissed articles calling the purple bag “iconic.” Such description was “not a compliment to a little cloth purple bag” but rather “a tribute to a long-lived, successful advertising campaign.” The examining attorney noted that the bag was “one of many similar pouches with double drawstring closures” that been rendered “distinctive” only “because of the marketing minds who made it so.” Office Action dated Oct. 3, 2005. Crown Royal responded again and, this time, submitted several exhibits demonstrating the expenditures and nature of Crown Royal’s advertising. For instance, Crown Royal spent more than $300 million in advertising over the course of five years. Many of those advertisements focused exclusively on the purple May–June 2021
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bag. Between 2000 and 2005, nearly 200 million purple bags were distributed by Crown Royal throughout the United States. The evidence that the purple bag represented the brand even when separated from the actual product made a difference: the examining attorney withdrew the refusals, and the mark registered. Reg. No. 4,618,936 for a Verizon Retail Store Scent. Verizon applied to register a flowery-musk ambient scent. Initially, the application was refused for failing to function as a service mark. The examining attorney attached evidence from several sources showing that stores commonly use scents to create ambiance, such that the scent of any particular service provider would not distinguish it from any other. Verizon identified several examples of scents, sounds, and colors that various retailers use to distinguish themselves in their stores. Verizon asserted that the flowerymusk scent was a proprietary blend that was created to, and does in fact, distinguish Verizon’s unique retail stores from other communication and consumer electronics retailers. Verizon supported this assertion with a declaration from the firm’s chief experience officer responsible for designing several of Verizon’s stores. Similar to the scent of Play-Doh, Verizon adequately demonstrated that the scent of its stores was not accidental or incidental. Rather, that particular scent was designed to distinguish or identify Verizon stores from other service providers. Even though Verizon did not have the same level of proof that the scent was recognizable to consumers in the same way that the scent of Play-Doh was, the evidence of Verizon’s intent and efforts to create a unique and distinctive scent were sufficient to overcome the refusal. The application registered several months later, and the registration remains on the Supplemental Register.
Reg. No. 4,903,968 for the LEGO Minifigure. LEGO applied to protect its LEGO Minifigure, which may seem like a no-brainer to anyone familiar with the (typically) yellow-faced, square-bodied figurines. Surprisingly, the application was initially rejected based on non-distinctive product design. The office action also required a substitute drawing. With respect to the drawing, the examining attorney objected that the description of the mark states that the mark is a three-dimensional configuration, yet the drawing was two-dimensional. For context, LEGO submitted the “Original Drawing” shown below. ORIGINAL
The second objection was easy to remedy. LEGO corrected the drawing issue by submitting an “Amended Drawing” as shown in the table above. As for the distinctiveness issue, LEGO responded concisely and offered substantial evidence in support of its application. LEGO submitted a declaration, with attached Exhibits A through P, showing “huge sales (over a billion dollars), over a long period, extensive advertising and extensive unsolicited media coverage, together with substantially exclusive use.” Response to Office Action dated Oct. 26, 2015. The evidence in support consisted of screenshots from LEGO movies; mail order catalogs; images of various characters built from the common LEGO Minifigure; LEGO kits
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showing the Minifigure; and written history/ articles discussing the Minifigure. This evidence was accepted, and the application ultimately registered.
Celebrities and Trademarks in the News Some applications are interesting simply because the people filing them are interesting. In some instances, that is enough for a unique refusal. In recent decades, with the rise of the internet and social media, celebrities have capitalized on their influence by expanding their income streams into products and even brands. Those ventures can generate intellectual property issues that demonstrate the challenges of protecting a brand that has become a household name. Serial Nos. 85/526,099 and 86/883,293 for BLUE IVY CARTER. BGK Trademark Holdings, LLC (“BGK”) filed Application Serial No. 85/526,099 (the “‘099 Application”) for BLUE IVY CARTER. For reference, Blue Ivy Carter is the daughter of entertainers, Beyoncé Giselle Knowles and Shawn Carter (a/k/a Jay-Z). Blue Ivy Carter was born January 7, 2012. The ‘099 Application was filed on January 26, 2012, on an intent-to-use basis. The application indicated the mark would be used in connection with numerous goods and services, including the following: fragrances, cosmetics, skin care products, key chains and key rings, DVDs, CDs, and audio and visual sound recordings featuring musical performances, musical sound recordings, baby carriages, baby strollers, fine and costume jewelry, clocks and watches, books, photographs, posters, baby books, stickers, bags (namely, tote bags, beach bags, handbags, diaper bags), small leather goods (namely, leather cases, leather bags and wallets, leather purses), baby bouncers, baby changing mats, baby changing tables, high chairs for babies, playpens for babies, drink ware (mugs, glasses, cups, bottles), hair combs, baby bathtubs, baby bedding, bundle bags, swaddling blankets, crib bumpers, fitted crib sheets, crib skirts, crib blankets, baby blankets, clothing for adults, infants, and toddlers, playing cards, balls (basketballs, baseballs, footballs, kick balls, rubber balls), baby toys, baby teething rings, baby swings, product merchandising, online retail store service, marketing, promotion and advertising for recording and performing artists, providing online video games, dance events by a recording artist, multimedia production services, live musical performances, production of motion picture films, fan clubs.2
The USPTO initially denied registration on several bases, including “false connection.” More specifically, the USPTO concluded that because the infant Blue Ivy Carter was already famous by virtue of her parentage, goods and services bearing the BLUE IVY CARTER mark would create “a presumption, though incorrect,” that such goods or services were “connected with the child through the control of her parents” when, in actuality, the mark would be used or licensed by BGK. Eventually, the ‘099 Application was allowed in 2013 and several Intent to Use Extensions were requested. Each extension required the applications to state a bona fide intent to use the registered mark, but that additional time was required to actually put it into use. BGK Trademark Holdings, LLC apparently did not put the mark into use and the ‘099 Application was abandoned on February 22, 2016. Shortly before the abandonment, however, BGK filed a second, nearly identical application for the mark BLUE IVY CARTER (the “‘293 Application”). The ‘293 Application received a similar office action initially denying registration, which BGK overcame. Allowance aside, the ‘293 Application was the subject of an opposition proceeding noticed by Veronica Morales d/b/a Blue Ivy. See Blue Ivy v. BGK Trademark Holdings, LLC, Cancellation No. 91234467 (TTAB 2017). Morales is an entertainment and event planning firm focused on designing weddings and other events. Morales founded Blue Ivy in 2009. Ms. Morales, a Harvard graduate, was featured in Condé Nast magazine as one of the Top 25 Wedding Planners in the world. Morales asserted several grounds for opposition: lack of bona fide intent to use; likelihood of confusion; and fraud on the USPTO. The proceeding was terminated in September 2020, when the Trademark Trial and Appeal Board ruled in favor of BGK. The lack of bona fide intent argument might have had some teeth. The Notice of Opposition cited a Vanity Fair article, wherein Jay-Z explained that he and Beyonce were trying to protect their daughter from exploitation: “It wasn’t for us to do anything; as you see, we haven’t done anything.… [I]t’s a child, and it bothers me when there’s no [boundaries]. … For somebody to say, This person had a kid—I’m gonna make a f***in’ stroller with that kid’s name. It’s, like, where’s the humanity?” Notices of Opposition at ¶ 20 (emphasis added; expletives redacted). After the ‘293 Application was approved, Morales continued to operate her event planning business under the name Blue Ivy. To date, BGK has apparently not licensed BLUE IVY
CARTER for any goods and services. Thus, it appears that the kerfuffle over the registration ended up being a tempest in a teapot. Serial No. 88/579,771 for TACO TUESDAY. LBJ Trademarks, LLC filed Application Serial No. 88/579,771 for the mark TACO TUESDAY on August 15, 2019. The application identified several goods and services, including social media; search engine marketing; inquiry marketing; internet marketing; mobile marketing; blogging and other forms of passive, sharable or viral communications channels; podcasting services, providing a website featuring nondownloadable videos and social media posts in the field of sports, entertainment, current events and popular culture; and downloadable audio/visual works. The application was filed on an intentto-use basis and later refused for failing to function as a trademark. The examining attorney argued that “Taco Tuesday” is a commonplace term, message, or expression widely used by a variety of sources that merely conveys an ordinary, familiar, wellrecognized concept or sentiment. Namely, the wording “Taco Tuesday” is a “widely used message” used by various parties to express enthusiasm for tacos, by promoting and celebrating them on a dedicated weekday.
Interestingly, each of the articles and exhibits cited by the examining attorney concerned restaurants, bars, or events where tacos were being served on a Tuesday. By contrast, LeBron James—the owner of LBJ Trademarks, LLC—produced and uploaded several “Taco Tuesday” videos on YouTube during the summer of 2019. To the extent the subject trademarks identify videos, entertainment, and the like, those goods and services could be registrable. The examining attorney may have been correct that “Taco Tuesday” was a commonplace term for restaurants and bars, but that was not the use intended by LBJ Trademarks, LLC. The application was ultimately abandoned, however, because LBJ Trademarks, LLC did not respond to the office action. Serial No. 88/571,984 for THE. Can one of the most common words in the English language be trademarked? Surprisingly, more than one application has been filed attempting to register a humble artice: “The.” The Ohio State University filed Application Serial No. 88/571,984 for the mark THE. The ‘984 Application identified the following goods in class 25: Clothing— namely, t-shirts, baseball caps and hats. The USPTO entered an office action, raising two issues: a prior-filed application advisory and a
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On March 11, 2020, Ohio State responded to the office action with a lengthy history of Ohio State and its athletic programs and brief legal argument as to why “THE” functions as a trademark. In short, the official name of the school is The Ohio State University and athletes, students, and alumni often emphasize “The” to demonstrate school spirit. Ohio State’s response requested a suspension during the pendency of the application filed by Marc Jacobs Trademarks.
Federalism and Evolving Markets: Trademarking Cannabis refusal under Sections 1, 2 and 45 for failing to function as a trademark. The prior-filed application advisory is based on an application (i.e., the “‘806 Application”) for THE as filed by Marc Jacobs Trademarks, LLC. An office action issued, arguing that the mark on the drawing and the specimen differed and that the mark failed to function as a trademark. The office action argued that the ‘806 mark “as used on the specimen of record, does not function as a trademark to indicate the source of applicant’s goods and to identify and distinguish them from others.” The office action continued: “The applied-for mark, as shown on the specimen, does not function as a trademark because it appears differently on the specimen and is thus not in use in the form shown in the application.” For reference, Marc Jacobs Trademarks submitted the specimen pictured above. Similarly, as for Ohio State’s merely ornamental refusal, the office action argued that the applied-for mark, as used on the specimen of record, is merely a decorative or ornamental feature of Ohio State’s clothing and, thus, does not function as a trademark to indicate the source of Ohio State’s clothing and to identify and distinguish Ohio State’s clothing from others. Ohio State submitted the following specimen (and the like):
These types of specimens rarely suffice for apparel. Ohio State could have avoided the merely ornamental ground for refusal by using “THE” on a label or tag or distinguishing these products as part of the “THE” product line in the product description. 12 San Antonio Lawyer | sabar.org
As of this writing, there are significant changes occurring across the United States with respect to state laws and the treatment of marijuana. Trademark law and policy are not immune from such changes. For an application to register, the mark must be used in commerce on, or in connection with, all the goods and services listed in the application. Trademark Manual of Examining Procedure (“TMEP”) § 901. The power of the federal government to register marks comes from the commerce clause of the Constitution. TMEP § 901.01. Section 1 of the Trademark Act, 15 U.S.C. § 1051, permits applications for registration of “a trademark used in commerce” (15 U.S.C. § 1051(a)) or of a trademark that a person has a bona fide intention to use in commerce (15 U.S.C. § 1051(b)). Id. Section 45 of the Trademark Act, 15 U.S.C. § 1127, defines “commerce” as “all commerce which may lawfully be regulated by Congress.” The “use in commerce” requirement has become relevant for applicants identifying cannabis—or similar goods/services—in their application. For example, the Controlled Substances Act (CSA), 21 U.S.C. §§ 801– 971, states that marijuana is a controlled substance under federal law, regardless of state law. The USPTO will refuse registration of marks for drug paraphernalia under the CSA. Nevertheless, the 2018 Farm Bill and corresponding amendments to the CSA acknowledge that hemp (no more than 0.3% THC) is no longer a controlled substance under the CSA. With that in mind, Examination Guide 1-19 (issued May 2, 2019) indicates: • CSA will not bar applications for hemp products filed on or after December 20, 2018; • Applications filed prior to December 20, 2018, may request that the examining attorney amend the filing date; • Use of hemp in foods or supplements may violate Federal Food Drug and Cosmetics Act (FDCA); and
Hundreds of thousands of trademark applications are filed at the USPTO every year. • For services involving cultivation or production of hemp, the examining attorney will inquire as to the applicant’s authorization. For an example of a successfully registered mark in this industry space, consult Reg. No. 5,928,259 for HI BIO. The application was filed on October 17, 2018—although the official date was amended to December 20, 2018. The application’s goods contain the appropriate qualification: “Cosmetic preparations, namely, oils, lotions, masks, and rollerball bottles sold filled with essential oils for temples and comprised of hemp containing less than 0.3 percent delta-9 tetrahydrocannabinol (THC) on a dry weight basis.” (emphasis added.) As more states legalize marijuana and as federal law and policy continue to evolve, intellectual property rights in the cannabis industry will bear watching.
Conclusion Hundreds of thousands of trademark applications are filed at the USPTO every year. Although many of the applications are scrutinized and refused due to issues a practitioner or interested observer should familiarize themselves with (e.g., likelihood of confusion; descriptiveness), few of the applications individually warrant discussion. However, the noteworthy applications and rejections offer an interesting glimpse into the American marketplace and the goods and services that are a part of our everyday lives. Nick Guinn is a Registered Patent Attorney at Gunn Lee & Cave, PC. He earned his JD from St. Mary’s University School of Law and his Bachelor of Science in Chemical Engineering from the University of Texas. ENDNOTES Hope Shimabuku, Overview of the USPTO [PowerPoint Slides] (received Dec. 4, 2019). 2 BGK Trademark Holdings, LLC identified significantly more goods and services, which collectively spanned more than a dozen international classes of goods and services and incurred sizable filing fees at the USPTO. 1
Infamous Will Disputes By Harry L. Munsinger, J.D., Ph.D.
E
ven though famous people generally leave substantial estates when they die, family members often feel slighted by the will or trust and decide to fight for a larger share of the family assets. Even children who receive generous trust funds prior to their parents’ deaths sometimes feel cheated by their parents’ wills and sue the family for additional funds. Will disputes support the old adage: “There is never enough money to make people happy.” And fights over an inheritance often bring out the worst in people. Estate of J. Seward Johnson.1 J. Seward Johnson, Sr. was a son of one of the founders of Johnson & Johnson. The battle over his estate was finally settled in 1986, after years of expensive litigation. The single issue was whether Johnson was mentally competent when he signed a will on April 14, 1983. In that will, Johnson left the bulk of his considerable estate to his much younger second wife Barbara Johnson, his former maid. Under the terms of the will, Barbara Johnson would receive approximately $8 million as executor of the Johnson estate, plus an annual fee of $900,000 for life. Johnson’s children alleged that he was disoriented and not competent to draft his last will and testament when he signed it in 1983. At trial, the children’s attorneys presented thirty-seven witnesses, including nurses and employees, who testified that the elderly Johnson did not understand what he was doing when he signed his last will. In rebuttal, attorneys for Mrs. Johnson presented thirty-eight witnesses, who claimed he was alert and mentally competent until he died at age 87 from prostate cancer. Before the judge announced his verdict, he sent the parties out to try to settle their dispute. In the settlement they negotiated, Mrs. Johnson received over $300 million of the considerable estate derived from the Johnson & Johnson pharmaceutical fortune. Mr. Johnson’s six children received $42 million to divide among themselves. An oceanographic institute founded by Mr. Johnson was awarded $20 million, and Mrs. Johnson agreed to pay $10 million in attorney’s fees to the children. Johnson’s son, J. Seward Johnson, Jr., was awarded approximately $7 million in lieu of an executor’s fee. The IRS received approximately $80 million in
estate taxes. The Johnson children were already wealthy, having received around $450 million in trusts and other gifts over the years, but they still sued Barbara Johnson, claiming she had taken advantage of her husband’s incompetence. Estate of H. L. Hunt.2 H. L. Hunt’s son and grandson settled their longrunning dispute over the eldest Hunt’s estate—with both sides claiming victory, although the terms of the settlement are confidential. The dispute began shortly after Margaret Hunt Hill, the mother of Al Hunt, Jr., died in 2007. Al Hunt, Jr. had gifted his share of Margaret’s trust to his three children, but when Al Hunt, III asked for an accounting of the trust, his father got so angry that he disinherited his son. Al Hunt, III sued his father, sisters, aunts, and a cousin, accusing them of stealing money from the estate and conspiring to evade taxes. After numerous lawsuits, a federal judge finally ordered both sides to try to settle their dispute, which they did. After settlement, all litigation was dismissed. Although both sides claimed victory, the attorneys involved said the settlement was fair and neither side won—which usually means they split the difference in their demands. Estate of Brooke Astor.3 Brooke Astor was a socialite and philanthropist, whose third husband was a descendent of America’s first millionaire, John Jacob Astor. A long-running feud over Brooke Astor’s estate ended in 2012 with a settlement. The agreement created the Brooke Astor Fund for New York City Education and gave the fund $30 million. Additional millions were earmarked to maintain Central Park, city playgrounds, Prospect Park, and several cultural institutions in New York City. The most significant item in the settlement was the smaller inheritance of Ms. Astor’s son, Anthony D. Marshall. His portion of the estate was decreased from from $31 million to $14.5 million because he had been convicted of stealing money from his mother, for which Mr. Marshall and the attorney who planned Ms. Astor’s estate were sentenced to three years in prison. They both remain free on bail pending appeal of the criminal convictions. The settlement is binding and will not change, no matter what happens in the criminal appeal. May–June 2021
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Bill wanted to take the company public so there would be a ready market for his shares, but Charles opposed the whole idea because he did not want the government regulating his business. In 1980, Bill declared war on Charles and David by distributing a private letter to the shareholders of Koch Industries, asking to take the company public and complaining about Charles’ handling of the business. The board meeting was tense with the airing of this dispute. Charles considered firing Bill, but instead he asked Bill if he was interested in selling his stock. Bill said, “No.” After Thanksgiving in 1980, Bill and Frederick called a board meeting to discuss a change of management at Koch Industries, and they solicited other shareholders to oust Charles as CEO. David called Frederick and asked him if he planned to fire Charles, and he said, “Yes.” David then called Bill and asked if they intended to fire Charles, and Bill denied it. Since David already knew their plans from talking with Frederick, he called Bill a liar and said he was no longer David’s brother. The outcome of the vote to oust Charles as CEO hinged on four percent of Koch Industries stock held by one of J. Howard Marshall II’s sons. J. Howard felt loyal to Charles and David because of his relationship with their father Fred, so he bought the stock from his son to protect Charles. After Bill’s revolt fell apart, the Koch board called a special meeting to debate Bill’s fate at Koch Industries. Following lengthy discussion, the board voted to oust Bill from the company by a significant majority, so David was able to abstain. Charles wanted loyalty from the members of his company and decided he needed a divorce from his brother Bill. Charles engaged Morgan Stanley and Lehman Brothers to value the company so that he could buy out Bill and any other shareholder who wanted to sell. The bankers estimated Koch Industries was worth approximately $160 per share. Bill said that was way too low. He hired Goldman Sachs and Bain & Company to produce another valuation of the company and filed litigation against Koch Industries, alleging mismanagement of the business. Charles and David filed a countersuit, claiming defamation because of an unflattering story placed in Fortune magazine by Bill. Ultimately. Charles raised the offer for Koch Industries shares to $200, and Bill accepted. The buyout gave Bill over $470 million, but he still felt cheated. Two years later, Bill and Frederick filed another suit against Koch Industries, claiming Charles had hidden assets during the settlement negotiations. Later, Bill and Frederick named their mother as another defendant in the litigation, possibly triggering a stroke. Bill’s lawyer subpoenaed her for a deposition, anyway. The dispute was about a clause their mother had put in her will, demanding that Bill dismiss his suit against Charles and David or be disinherited. After his mother died, Bill challenged her will, alleging that Charles and David had unduly influenced her to place the clause in the will. However, Bill lost his suit DOMESTICALLY AND INTERNATIONALLY against his mother’s will and was faced with the choice of either dismissing his suit against Charles and David or losing his considerable www.KelmarGlobal.com inheritance from his mother. License # C-05785 Bill hired private detectives to spy on Charles and David and dig up dirt on them that he could use in court. To protect
Estate of Fred Koch.4 Fred Koch was a college boxer and fierce competitor who made a fortune in oil refining and founded Koch Industries. He raised his sons Frederick, Charles, David, and Bill to be competitive. When the Koch brothers became adults, their father bequeathed his business to them. Charles and David ran the business and grew it into the second largest privately owned company in America. While Charles and David were managing the family business, Bill became a collector of expensive homes and fine wines, a playboy, and a skilled yachtsman who won the America’s Cup in 1991. Frederick and Bill enjoyed their father’s money, while Charles and David worked hard managing Koch Industries, earning billions over the years, while Bill earned much less. Bill was jealous of Charles and David’s success, and he became so emotionally volatile that his parents took him to see a psychologist. The psychologist told Bill’s parents that the cause of his volatile emotions was competition with Charles and estrangement from the family. David and Charles were athletic and confident, while Bill felt isolated, left out, and angry. Bill was asked to join Koch Industries in 1974, but he always felt like an outsider around Charles and David. On Christmas Day 1979, Bill asked his mother about the disposition of her estate. Charles told Bill to leave his mother out of the family arguments, but Bill then attacked Charles, saying he was running Koch Industries like a dictator. Later, Bill alleged that Koch Industries has a reputation for “screwing over its partners.” Bill was also concerned that the company was running into trouble with government regulators and resented the money Charles diverted to libertarian political causes. Most important, Bill was short of cash—all his assets were tied up in the family business, and there was no public market for his stock. If Bill had wanted to sell his shares, it would have had to have been at a steep discount.
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Will disputes support the old adage: “There is never enough money to make people happy.” And fights over an inheritance often bring out the worst in people. themselves, Charles and David hired other private detectives to spy on Bill. During the court fight over Bill’s suit against Koch Industries, Bill’s sordid personal life came out in open court. One salacious tale involved a suit to evict a former Ford model from his apartment in Boston. It turned out that Bill was having sexual relations with two other women while he was having an affair with the Ford model. A few months after Bill won an eviction of the Ford model from his Boston apartment, another love interest announced she was pregnant with Bill’s child and moved into his Palm Beach mansion. Bill’s suit against Koch Industries was scheduled for trial in April 1998. At trial, Charles’ legal team described the lawsuit as a case of sibling rivalry gone wild, and a continuation of a family feud that should have been settled way back in 1983. On the first day of trial, Bill’s attorneys called David to the stand. When asked why he had abstained during the vote to oust Bill from Koch Industries, David said he still cared about his twin brother and did not want to sever family ties, so he had abstained. David said that Bill had done some terrible things to the family, and that he did not want him to act that way because he loved Bill. Frederick took the stand next and said he was not really involved in Koch Industries because he had charitable activities and was not interested in the oil business or the family businesses at all. His testimony was brief and of no consequence. When Charles took the stand, he was modest and unassuming. When asked about his job, Charles testified that he worked for Koch Industries, rather than claiming he was the company CEO. Charles denied that his father had taught the boys that litigation was the way to settle disputes, testifying instead that his father had told him, “Never sue.” Although the trial was hard on all the brothers, it was especially difficult for Charles. Bill was called to the stand during the defense case, and he suffered from a cold during most of his seven days of testimony. Bill described Charles as a dictator, but when Charles’ attorney took Bill on crossexamination, he destroyed Bill’s credibility by highlighting his efforts to get money from the family, even if it meant breaking up the company and destroying family ties. Bill testified that he was conflicted about the business—on the one hand, he was attached to the business, but on the other, he wanted the best price he could get for his shares. Bill admitted that greed had won. The jury found that Charles was guilty of misrepresentation, but that it was not material, so he and David had won because there were no damages. Although Charles had concealed some information during the settlement, it was trivial. Charles and David were relieved,
while Bill claimed the verdict was “a moral victory.” Bill and Frederick took their appeals all the way to the United States Supreme Court, which refused to hear the case. Estate of Leona Helmsley.5 When Leona Helmsley died in 2007, at the age of eighty-seven, few tears were shed. Her obituaries highlighted mistreatment of employees, disdain for “little people,” and her time in prison for tax fraud. She was labeled the “queen of mean” by the New York papers. Although Mrs. Helmsley created several generous charitable trusts in her will, the item that caught the public’s attention was a $12 million bequest for care of her dog. The animal was so pampered that its meals were prepared by a hotel chef and fed to the dog by maids. The Helmsley estate, valued at over $5 billion, consisted of prime New York real estate. Leona was a successful New York real estate broker when she met Harry Helmsley, who fell in love with her and left his wife. The couple lived a royal lifestyle, but even with all her money, Mrs. Helmsley was miserly with contractors and refused to pay taxes to New York City. Her contractor sued for payment of renovations to her Connecticut home, and even after she was forced to pay, she insisted that the invoices be charged to Helmsley Hotels so that she could get a tax deduction. The contractor was so angry that he sent the false invoices to a reporter, who exposed how Mrs. Helmsley did business. The Manhattan District Attorney promptly indicted her for tax evasion. At trial, one of her maids testified that Mrs. Helmsley had said, “Only little people pay taxes.” Mrs. Helmsley was sentenced to four years in prison, but she served only eighteen months before being released. She was survived by four grandchildren and a brother. Approximately 99% of her fortune went to the Leona M. and Harry B. Helmsley Charitable Trust. Although the trust would do good work in New York after Mrs. Helmsley’s death, the $12 million bequest to her dog
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captured most of the headlines in New York papers. Her grandson Craig Panzirer and her granddaughter Meegan Panzirer were given nothing, while grandchildren David and Walter each received $5 million. Her brother Alvin received $5 million in cash and a charitable trust that paid five percent annually to him. Mrs. Helmsley established a $3 million trust to maintain the Helmsley Mausoleum. Because Mrs. Hemsley’s will disinherited two grandchildren, left $12 million to care for a dog, and did not identify the purpose of the giant charitable trust she established, litigation was almost certain. However, rather than spend years fighting in court, the parties wisely negotiated a settlement of their dispute. The agreement was approved by Surrogate Judge Renee Roth on April 20, 2008. The settlement gave the two disinherited grandchildren $6 million to be divided between them, while other bequests were reduced a proportionate amount. The court ordered the $12 million bequest to care for Mrs. Helmsley’s dog reduced to $2 million and gave the balance of the $12 million to the charitable trust, which continues to benefit New York City. Estate of J. Howard Marshall II.6 J. Howard Marshall II made a fortune investing in Koch Industries and married a much younger woman, Anna Nicole Smith, a/k/a Vicki Lynn Marshall, late in life. The combination of vast wealth, a younger wife, and step-children created twenty years of litigation, two appeals to the United States Supreme Court, and millions of dollars in attorney’s fees as the family fought over J. Howard’s estate. The dispute even created a Constitutional precedent when Chief Justice John Roberts wrote, in Stern v. Marshall,7 that a federal statute granting bankruptcy courts the authority to decide remotely connected claims based on state law was unconstitutional. After years of litigation, a Texas appellate court wrote the final chapter in this salacious estate fight— ruling that Anna Nicole Smith was not a beneficiary of J. Howard Marshall II’s will, thereby confirming a 2001 jury finding, reached after
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If there’s any lesson to be learned from these infamous will disputes, perhaps it is that greed rarely pays. a long trial involving hundreds of documents and hours of testimony. Estate of B.B. King.8 Fifteen women claimed that legendary blues guitarist B.B. King had fathered their children, and he never denied any of the allegations. When he died in 2015, King left a legal mess, pitting his many families against each other and his estate administrator in a fight over his estate. The dispute was about two wills and trusts signed in 2007 and 2014. The earlier will and trust granted generous allowances to several of King’s children, while the 2014 will and trust did not include any grants to the children and appointed LaVerne Toney as administrator of King’s estate. King loved his families and paid for their support while he lived, but the support stopped when he died. The children claimed they received nothing after their father’s death, and they wanted to get their fair share. They also claimed that King’s estate administrator, Toney, had poisoned him, although an investigation found no evidence to support the allegation of poisoning. Toney sued the children for defamation. The dispute split the family, with some trying to bring peace and others filing suits for their “fair” share of the King estate. Several of King’s children sued Toney, alleging that she had been taking money from King’s estate for her own benefit. The suit also claimed she had neglected King’s medical care during his declining years. These claims resulted in an investigation by the Las Vegas Police Department, which found no evidence supporting any of the children’s allegations. Toney’s attorneys found a birth certificate, which showed that Karen Williams—the leader of the family group that filed suit against Toney for defrauding King’s estate—was not even biologically related to King. King’s personal physician and dentist also filed affidavits with the court, stating that he was always well cared for by Toney. Toney admitted that there had been a theft of property from King’s estate, but testified that King had told her not to file a police report because he thought members of his own family might be responsible for the theft. Aside from the allegations of murder and theft, which seem to have been resolved, the King family also asked for an accounting of the estate. The King children split into two factions fighting with Toney over the estate. Toney said she was trying to carry out the terms of King’s last wishes, but the children disagreed. They claimed the 2014 trust, which is the one Toney was following, was flawed because it was drafted when King was blind and suffering from cognitive decline. The children wanted the earlier trust upheld because they claimed their father was competent at the time it was drafted. The probate court reviewed the 2007 and 2014 wills and trusts and confirmed LaVerne Toney, his longtime business manager, as administrator of B.B. King’s estate. The complicated family dynamics all but ensured conflict over King’s estate. As the saga gained press coverage, more women came forward claiming King was the father of their children. Just before he died, King said to ignore any of these claims because he “wasn’t taking no more kids on.” Toney is using B.B. King’s estate to support and expand King’s musical legacy. Sumner Redstone Estate.9 Sumner Redstone was a billionaire who grew his family’s drive-in theatre business into a media empire, including Viacom and CBS, before dying at the age of 97. However, the suits over his assets began even before he died. In 2015, Redstone’s former girlfriend Manuela Herzer was ejected from his mansion and written out of Redstone’s will. In an attempt
to restore her position as Redstone’s primary caretaker, Herzer filed suit, exposing to the world his failing health and salacious details about his dating habits and emotional history. Shari Redstone, Sumner’s estranged daughter, took over management of her father’s personal and business affairs, after it was revealed that Redstone was incompetent. Herzer claimed that Shari was improperly taking control of the family businesses and demanded that Redstone be examined by independent physicians. The physicians’ findings caused Sumner Redstone to be removed from managing his businesses. The details of Redstone’s poor health also triggered shareholder suits and board room fights. In 2016, Shari Redstone gained control of Viacom, and CBS promptly sued the Redstone family, attempting to take voting control of Viacom. That suit was dismissed when the CEO of CBS was accused of sexual harassment and lost his job. In 2016, Shari Redstone sued two of her father’s former girlfriends, claiming elder abuse. The family alleged his former girlfriends had conspired to isolate Sumner from his family and steal money from his companies. The suit stated that Redstone had lavished gifts of more than $150 million on the former girlfriends. In the end, after years of wrangling, the former girlfriends ended up with next to nothing. After more than two years of litigation and seven separate suits, Herzer and the Redstone family finally settled their dispute over his estate. In the agreement, Herzer agreed to pay the Redstone family $3.25 million reimbursement for gifts from Redstone. The settlement was reached shortly before trial, and it represented a significant loss for Herzer, who had rejected an offer of $30 million from the Redstone family two years earlier. If there’s any lesson to be learned from these infamous will disputes, perhaps it is that greed rarely pays. Harry Munsinger recently concluded a long practice that focused on Collaborative Divorces, Estate Planning, and Probate matters. Harry holds a Ph.D. in psychology from the University of Oregon and a J.D. from Duke University School of Law, where he was a member of the Duke Law Journal.
Daniel Fisher, Court Ruling Likely Ends Anna Nichole Smith Estate’s Fight for Marshall Family Millions, Forbes (July 14, 2015). 7 Stern vs. Marshall, 564 U.S. 462 (2011). 8 Scott Johnson, B.B. King’s Estate War: 15 Kids, 15 Moms and a “Totally Haywire” Fight, Hollywood Reporter (May 26, 2016). 9 Meg James, Sumner Redstone and Family Settle Legal Dispute with his Ex-companion Manuela Herzer, Los Angeles Times (January 8, 2019). 6
ENDNOTES Frank J. Prial, Accord Reached on Johnson Will, New York Times (June 3,1986). 2 Settlement ends Dallas legal feud between H. L. Hunt heirs, The Dallas Morning News (May 6, 2010). 3 John Eligon, Settlement in Battle Over Astor Estate is Reached, New York Times (March 28, 2012). 4 Daniel Schulman, Koch vs. Koch: The Brutal Battle That Tore Apart America’s Most Powerful Family, Mother Jones (May 20, 2014). 5 Ronald P. Colicchio, Lessons from The Leona Helmsley Estate, http://www.newjerseyprobatelitigation.com/ lessons-from-the-leona-helmsley-estate/ (June 9, 2015). 1
The Association of Attorney-Mediators (AAM) San Antonio Chapter Experienced, having conducted more than 25,000 mediations since 1989 with more than 850 years’ experience practicing law Committed to the mediation process and devoted to the ethical practice of law Covered by the AAM Member Insurance Group Policy, an arbitrator and mediator professional liability insurance Areas of Practice Appellate Bankruptcy Business/Commercial Civil Rights Condemnation Construction Consumer Education Employment & Labor Entertainment Family Farm & Ranch Health Care Insurance Intellectual Property International Medical Oil & Gas Personal Injury Professional Liability Real Estate Securities Taxation Title Insurance Wills, Trusts & Estates
For more information, contact the local San Antonio Chapter. www.attorney-mediators.org/SanAntonioChapter Gary Javore - gary@jcjclaw.com
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J.K. Leonard 210.731.6358 jkleonard@namanhowell.com
Thomas Smith 210.227.7565 smith@tjsmithlaw.com
Leslie Byrd 210.229.3460 leslie.byrd@bracewell.com
Daniel Kustoff 210.614.9444 dkustoff@salegal.com
John Specia 210.734.7092 jspecia@pg-law.com
Allan DuBois 210.227.3106 akd@akduboislaw.com
Jamie Patterson 210.828.2058 jamie@braychappell.com
Phylis Speedlin 210.554.5594 pspeedlin@dykema.com
Aric J. Garza 210.225.2961 aric@sabusinessattorney.com
~ Diego Pena 817.575.9854 diego@thepenalawgroup.com
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Charles Hanor 210.829.2002 chanor@hanor.com
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William Towns 210.819.7453 bill.towns@townsadr.com
Danielle Hargrove 210.313.8811 dlh@hargroveadr.com
Edward Pina 210.614.6400 epina@arielhouse.com
James Upton 361.884.0616 jupton@umhlaw.com
Gary Javore 210.733.6235 gjavore@sbcglobal.net
Richard Reed 210.451.6920 rreed@coatsrose.com
Brittany Weil 361.548.2611 brittanymweil@gmail.com
Andrew Koch 210.598.0714 andrew@aklandm.com
Wade Shelton 210.349.0515 wshelton@shelton-valadez.com
May–June 2021
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bar business
San Antonio Black Lawyers Association: Rooted in Struggle, Support, and Success By Doris White
From Left: Clarence Williams’ funeral program; Harry Bellinger’s funeral program; Clarence and Gloria McGowan on their wedding day; and Hattie Briscoe in court. Photo credits: Funeral program for Judge Clarence Williams, August 31, 1996 and funeral program for Harry Bellinger, July 20, 1991, both courtesy of the San Antonio Public Library in partnership with The Portal to Texas History, a digital repository hosted by the University of North Texas Libraries. Clarence and Gloria McGowan pictured in the September/October 2009 San Antonio Lawyer. Hattie Briscoe pictured (left) in the January/February 2012 San Antonio Lawyer. Photo of Hattie Briscoe on the next page is courtesy of UTSA.
T
he history of San Antonio Black Lawyers Association (SABLA) is rooted in the experiences of the African American men and women who served our legal profession in Texas courts that were far from diverse. Indeed, the earliest Black1 attorneys here faced segregated courtrooms, separate public accommodations, and a closed professional cohort, as they sought to become productive practitioners in this former Confederate state. Much praise is due our evolved legal system, where Black citizens now inhabit numerous spaces in today’s courthouses—from judicial chambers and prosecution and defense tables to clerks’ offices, and every place inside. Yet, to accurately assess the impact of SABLA on our profession and our community, it may be important to briefly consider those Black pioneering lawyers who courageously fought to remove barriers from local courthouses so that all might gain entry.
Oliver W. Johnson, Sr. Oliver W. Johnson, Sr., born in San Antonio during the latter years of the 19th century, was an early Black lawyer in the city. In 1920, he was licensed to practice law in
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Texas and did so for more than half a century. Reportedly a general practitioner, he confined his work to the local area. According to one source, he maintained an office on the West Side, adjacent to the Missouri Pacific Railroad Station in an established Black neighborhood. The archives of the San Antonio Register (the newspaper published by Black journalists and catering to the African American community) reveal that Attorney Johnson was involved in two cases that garnered much publicity, both involving litigation between Black Baptist church leadership and disgruntled congregants. In 1947-48, Johnson won a temporary injunction on behalf of a churchgoer who also filed a defamation action against his pastor, seeking $10,000. Although the 57th District Court (Judge C.K. Quin) granted the injunction, Judge Delos Finch of the 73rd District Court dismissed the action.2 In the summer of 1955, Johnson represented a similarly unhappy Baptist plaintiff who sought to prevent a minister from entering church premises, but Judge Quin dissolved the temporary injunction and dismissed the case. (In a bit of classic irony, the Register ran the article about the 1955 case on the same page as another piece announcing the
defendant’s appearance as guest speaker at a school graduation!)3 Perhaps Attorney Johnson’s signature contribution to our professional community occurred on Saturday, September 8, 1956, when he was admitted to membership in the San Antonio Bar Association (SABA). In writing about the first Black lawyer to gain such admission, the Register noted, “Negro lawyers have practiced here for more than half a century, but none, prior to Johnson, ever applied for membership.” Johnson claimed his interest in the formerly all-white SABA grew out of a television appearance as a grand juror, where others asked him why he did not belong to the organization. He later earned recommendations of SABA members Al M. Heck and Herman A. Knopp, joining the group during the tenure of SABA President Michael J. Kaine.4 The 88th Annual Meeting of the State Bar of Texas honored Mr. Johnson with a certificate saluting more than fifty years of service to the local community and to our profession. He was also active with the Masons, Tom Lodge #100 for many decades. Ill health led to the veteran attorney’s retirement in the 1970s. After a lengthy illness, Oliver W. Johnson, Sr. died on Christmas Eve 1979.5
Harry Middleton Bellinger Born in 1919 to a well-known local family, Harry Middleton Bellinger attended Wheatley High School and went on to graduate from Wiley College, a historically Black college in Marshall, Texas (Class of 1938). The ambitious young man relocated to Pennsylvania, where he earned an MBA degree (Wharton School of Business 1941) and a CPA license. In 1942, he entered the University of Pennsylvania School of Law, graduating in 1945, and then he returned to Texas. The State of Texas licensed him to practice law in 1945. Attorney Bellinger established his legal practice in the Alamo City during the 1940s, gaining a reputation for civil rights activism and using the legal system to seek redress for Jim Crow policies. As legal counsel for the local NAACP chapter, Bellinger served as lead counsel in the case that attacked Plessy v. Ferguson’s “separate but equal” doctrine in the context of state-funded institutions of higher education in Texas. See Sweatt v. Painter, 339 U.S. 629 (1950). In 1951, he filed for injunctive relief to integrate San Antonio Independent School District and San Antonio Community College. He also teamed with Maury Maverick, future jurist Carlos Cadena, and others in 1953 to challenge segregated boxing matches as a denial of Fourteenth Amendment rights and a violation of the Federal Civil Rights Act.6 A fearless advocate for equal rights, Harry Middleton Bellinger was a prominent figure in African American legal circles. He was also active in Omega Psi Phi Fraternity, Inc. Attorney Bellinger maintained his practice until his death on July 17, 1991.7
As fate would have it, a series of unfortunate job disappointments in the school system led to her employment as a civil servant at Kelly Air Force Base and then to her matriculation at St. Mary’s University School of Law in 1951 for evening courses. Her experience during law school reflected the inequities and biases of life faced by countless African Americans in the 1950s South: her presence was minimized, and her academic success devalued. In January 1956, Briscoe, then 40, was the only Black law student and one of two women to be conferred a Juris Doctorate. Although she was among the top of her class, her achievement was never recognized during the graduation program. Indeed, the law school waited until 1993 to acknowledge her status as first Black graduate. She was admitted to the Texas Bar in April 1956. The job market for local Black attorneys was rather bleak during segregation. Thus, Briscoe took the familiar route of opening a solo practice at 1416 East Commerce Street, where she handled criminal cases before switching to Probate and Family Law litigation. In one murder case, in 1959, she received national attention in Jet Magazine when she
was hired as a special prosecutor by the widow of an unarmed Black veteran who was killed by a police officer. But no amount of publicity could mitigate the distracting and disturbing “micro-aggressions” Briscoe encountered as a Black woman attorney: a judge deliberately delaying Briscoe’s case until the end of the day’s court docket, despite her early arrival; male attorneys refusing to return a woman lawyer’s telephone calls; using the white women’s bathroom in Richmond, Texas, because the courthouse did not have one for Black women. In 1963, Attorney Briscoe was admitted to practice before the Veterans Administration. In 1964, she was invited to join the National Association of Defense Lawyers in Criminal Cases and licensed to practice in the United States District Court, Western District of Texas. A member of SABLA, she enjoyed affiliation with Texas Criminal Bar Association, American Bar Association, National Association of Defense Lawyers Criminal Cases, National Association of Black Women Attorneys, San Antonio Women’s Association, and SABA. She was also a member of Delta Sigma Theta Sorority.
Hattie Ruth Elam Briscoe Hattie Ruth Elam Briscoe was born in 1916 in Shreveport, Louisiana, and grew up in Marshall, Texas. She attended Wiley College there, earning a Bachelor’s degree in education (1937). Marriage brought the young teacher to San Antonio in 1941, where her barber husband owned Briscoe Beauty Salon on Pine Street. In 1945, the enterprising young woman was licensed in cosmetology and was hired to teach that subject at Phyllis Wheatley High School in San Antonio. She also completed a Master’s degree at Prairie View A&M College in 1951.
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bar business Hattie Elam Briscoe, Esquire, died here on October 17, 2002. For more than two decades, she was the sole Black woman attorney in Bexar County. Attorney Briscoe willingly blazed the trail alone, journeying the distance on behalf of the countless Black women lawyers whom she knew would come after.8
Clarence Williams A native of Kenedy, Texas (Karnes County), Attorney Clarence Williams, born in 1927, came to San Antonio as a child. In 1949, he earned a Bachelor’s degree at Prairie View A&M College before heading north to complete a two-year stint as Sergeant First Class with the military police force at Camp McCoy in Wisconsin. Later, Williams returned to Texas and enrolled in Texas Southern University Law School (now Thurgood Marshall School of Law) and married before graduating among the Class of 1956. The couple joined his parents later that year on the automobile trip to Austin to witness his State Bar swearing-in ceremony. Williams sought to build his own practice here, stoutly meeting challenges faced by most African American professionals. To finance his law practice, the newly licensed lawyer waited tables and then signed on for the evening shift at the Post Office. By 1958, he had saved sufficient funds, yet he faced another hurdle—where to establish his practice? The determined Williams met with countless rejections from prospective landlords until he stopped to chat with a group of Black custodians on a downtown sidewalk. They told him of potential office space in the building where they worked, and Williams acted on their tip, becoming the first Black lawyer with a downtown office (the Oppenheimer Bank Building on Commerce Street; when that building was closed, he relocated across the street to the Aztec Building). And he continued as a postal clerk, putting in a full day at the office before beginning the late shift. The tenacity that made Williams a successful lawyer also imbued his civic activism. In 1966, he made a bid for SAISD’s Board of Trustees. Despite losing the election, Williams and other Black voters went on to challenge the voter districting scheme in place during 1966. Their federal complaint alleged that Bexar County Black voters were effectively disenfranchised. Subsequent redistricting led to the election of Black candidates to state office. In 1990, after retiring from the Post Office, Williams also vied for several judicial 20 San Antonio Lawyer | sabar.org
positions, becoming the second African American elected Bexar County Justice of the Peace, Precinct 4. Ill health necessitated his retirement from the Justice Court in 1996. Throughout his career, Attorney Williams always championed SABLA and was among those who organized the group. He worked tirelessly to enhance the professional visibility of Black attorneys. Young lawyers were frequently mentored through affiliation with his practice. Years ago, Williams invited then-NAACP litigator Thurgood Marshall to meet with local Black lawyers at a luncheon in his home. (His mother-in-law supervised the special occasion because his wife had to teach and missed meeting the famed NAACP litigator!) Williams was a member of the State and Federal Bars of Texas, the bar of the United States Court of Appeals for the Fifth Circuit, the San Antonio Bar Association, the City Board of Adjustment, and the City Tax Board of Equalization. He gave back to his community through service to numerous organizations, including the Davis-Scott YMCA Board of Directors, Ella Austin Community Center, NAACP, and American Legion (Alamo Post #2). He also belonged to the American Postal Workers Union. Clarence Williams, Esquire, died in August 1996.9
Clarence Roy McGowan Born in 1921, Attorney Clarence Roy McGowan came of age in Bryan, Texas, during the Jim Crow era. He entered Prairie View A&M College, graduating in 1943 with teacher training. He also traveled to Iowa to earn two Master’s degrees in science by virtue of a Texas policy that paid the out-of-state tuition of Black students who were barred from white schools here and could not find similar courses at segregated Black schools. In 1945, he relocated to San Antonio to accept a position in SAISD. By 1958, McGowan had climbed the ladder from mathematics teacher to guidance counselor and then principal. The busy teacher also worked at St. Philip’s College as an adjunct mathematics professor. McGowan started law school at St. Mary’s University in 1958, as the first Black male student to matriculate there. He took evening classes during the week, spending weekends studying with a classmate at a local white lawyer’s office. In 1963, he became the first Black man to graduate from that law school. The new lawyer was soon admitted to the Texas Bar and then to all other State, District
and Federal District Courts and the Supreme Court of Texas. The diligent and well-respected attorney practiced law for the next forty-two years until his retirement in 2005. During his career, he honed his craft while handling criminal, oil and gas, real estate, and probate cases. McGowan also accepted civil rights cases from across the nation as a legal representative for the NAACP. Ever the intrepid activist, he also was a member of “Blockbusters,” a group of Blacks who purchased homes in white neighborhoods after the 1964 court decision prohibiting race-based restrictions in real estate transactions. When one white person sold a home to Blockbusters, a black family could move into the neighborhood. In October 1974, City Council appointed him to Municipal Court as Night Magistrate— the first African American on that bench. In 1975, McGowan launched an unsuccessful bid for City Council, a campaign endorsed by the Good Government League. He later was elected Bexar County Justice of the Peace, Precinct 4. Perhaps Attorney McGowan’s legacy has been best secured by his role in SABLA’s formation. During the ’60s and ’70s, our city was home to a growing number of Black lawyers who worked and lived in a sprawling urban area with no professional organization dedicated to meeting their specific needs—not even a Black American Law Students Association chapter. In 1978, while acutely aware of the dearth of African American representation in politics and community affairs, and with a proven track record for mobilizing people, McGowan engaged colleagues in preliminary discussions about, and planning for, the formation of a bar association addressing the unique needs and interests of Black lawyers. Elected Temporary Chair initially, he was eventually elected President of SABLA. Throughout his term of office, the zealous advocate promoted SABLA, networked successfully on its behalf, and encouraged members to apply for judicial and staff vacancies in the courthouse. Even in retirement, Attorney McGowan willingly shared his knowledge and expertise with SABLA to enhance the bar association’s efficacy. McGowan held lifetime memberships in the NAACP, National Bar Association, and Omega Psi Phi Fraternity. He also affiliated with SABA, Sigma Pi Phi, and Phi Beta Kappa and garnered numerous awards from various groups. Clarence Roy McGowan, Esquire, died here on August 17, 2018.10
Today, SABLA’s aims continue to reflect the values of its members and the broader community: eliminating injustices in the legal sphere and elsewhere; ensuring that the public has access to the best legal representation our city can offer; providing professional development opportunities.
SABLA OFFICERS 2021-2022
SABLA BOARD OF DIRECTORS
PRESIDENT Tiffany Miller
Sade Bogart
PRESIDENT-ELECT Artessia “Tess” House
Denise Hairston
VICE PRESIDENT Courtney Hilliard
Jeff Akins Edith Brown Honorable Yolanda Huff Doris White
SECRETARY Gamuchirai Hativagone TREASURER Danica McKinney
SABLA’s Legacy Today, SABLA’s aims continue to reflect the values of its members and the broader community: eliminating injustices in the legal sphere and elsewhere; ensuring that the public has access to the best legal representation our city can offer; providing professional development opportunities. As an organization, we echo the beliefs of the late Dr. Martin Luther King Jr.: “Injustice anywhere, is a threat to justice everywhere.” SABLA hosts monthly CLE opportunities for attorneys, generally held on the third Wednesday of the month. The CLE speakers have varied backgrounds, ranging from criminal law to civil and administrative law. We proudly partner with St. Mary’s Law School in preparing students to practice law locally. Additionally, our bar association participates in the annual MLK March locally and stages outreach events throughout the year that cater to the communities we serve. Recently, SABLA offered a virtual Wills Clinic and a Mayoral Candidate Forum to the general public. In our spare time, we volunteer with Habitat for Humanity and San Antonio Food Bank. Law students, paralegals, and attorneys of all backgrounds are encouraged to become SABLA members. Contact us by email at sanantonioblacklawyers@gmail.com or on Facebook. San Antonio Black Lawyers Association emerged forty-three years ago in response to a fundamental need of its members:
IMMEDIATE PAST PRESIDENT Bridgett Clay
professional support for attorneys with a unique history of exclusion from the halls of justice. The men and women who formed our group knew intimately the joys and burdens faced by African American lawyers. They labored to transform restricted courthouses into bastions of equality and to render our esteemed profession more reflective of every lawyer administered the oath. SABLA honors their herculean efforts by continuing to sustain the burgeoning community of African American attorneys. With hope and pride, we look forward to the many productive decades ahead. Doris Helene White, Esquire—native San Antonian, Boston University School of Law (1982) alumnus, and SABLA Board Member—is a retired Assistant Attorney General for the Commonwealth of Massachusetts, who thrived on civil jury trials in state and federal courts. The sixth-generation Texan is delighted to be home again after a thirty-year hiatus and enjoys sharing the history of the Eastside community that nurtured her.
ENDNOTES The terms “Black” and “African American” are used interchangeably herein as a nod to popular speech. However, this writer firmly believes that the former term is a more inclusive descriptor of an individual with DNA from the African continent without regard to nationality. 2 San Antonio Register (San Antonio, Tex.), Vol. 18, No. 48, Ed. 1 Friday, December 17, 1948. 3 San Antonio Register (San Antonio, Tex.), Vol. 25, No. 27, Ed. 1 Friday, August 12, 1955. 4 San Antonio Register (San Antonio, Tex.), Vol. 26, No. 31, Ed. 1 Friday, September 14, 1956. 5 San Antonio Register (San Antonio, Tex.), Vol. 48, No. 38, Ed. 1 Thursday, December 27, 1979. 6 The Bout, Cary Clack, February 19, 2020. 7 Funeral Program for Harry Middleton Bellinger, July 20, 1991. 8 Texas Historical Association, Handbook of Texas; University of Texas-San Antonio Libraries, Special Collections. 9 Funeral Program, Judge Clarence Williams (1996); Interviews, Jerelyne Castleberry Williams (Jan.-Feb. 2021). 10 Funeral Program, Clarence Roy McGowan (2018); Tribute Archives, Meadowlawn Memorial Park (undated). 1
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Charles Manson Fifty Years Later Part III: The Trial By Mark J. Phillips and Aryn Z. Phillips
2020 marked a half century since the sensational trial of Charles Manson for the Tate/LaBianca murders, and the passage of time has not diminished the place the trial and murders occupy in the American psyche. The following is the third of a three-part series reflecting on the Manson murders, the ensuing investigation, and the historic trial.
22 San Antonio Lawyer | sabar.org
T
he trial of Charles Manson, Linda Atkins, Patricia Krenwinkel, and Leslie Van Houten on seven counts of murder began on June 15, 1970, at the Hall of Justice in downtown Los Angeles. Jury selection took five weeks. Prosecutor Vincent Bugliosi began his opening statement on July 24th. In it, he summarized the events that had taken place at the Tate and LaBianca residences, gave a history of the Family, and portrayed Manson as its undisputed leader to whom everyone deferred. He briefly described Helter Skelter and Manson’s general philosophies on life. He stressed that Manson had ordered the murders, but that Atkins, Krenwinkel and Van Houten had been willing participants in them, as evidenced by the excessive brutality with which the murders were committed.1 The defense opted to hold its opening statement until after the prosecution had completed its case, so the prosecution began presenting evidence. Over the next twenty-two weeks, Bugliosi called eighty witnesses and introduced 320 exhibits. The star witness was former Family member Linda Kasabian. She testified for a total of seventeen days and gave a detailed account of life with the Family at Spahn Ranch. She made it clear that Manson was in charge and dictated much of daily life, claiming at one point that “the girls worshiped him, just would die to do anything for him.” She spoke at length about Manson’s feelings on race, his belief in Helter Skelter, and his obsession with the Beatles, and she gave a very precise account of the two nights of murder. Her testimony was truthful, detailed, and consistent, and she sobbed openly when describing the murders and when shown pictures of the victims’ bodies.2 Other witnesses included Family members and neighbors of the victims; Roman Polanski’s maid who first discovered the carnage; caretaker William Garretson; cellmates Virginia Graham and Ronnie
Over the next twenty-two weeks, Bugliosi called eighty witnesses and introduced 320 exhibits. The star witness was former Family member Linda Kasabian. She testified for a total of seventeen days and gave a detailed account of life with the Family at Spahn Ranch. She made it clear that Manson was in charge and dictated much of daily life, claiming at one point that “the girls worshiped him, just would die to do anything for him.”
Howard, to whom Atkins had boasted of the murders while in Sybil Brand; eleven-year-old Steven Weiss, who found the discarded gun in his backyard; representatives from the medical examiner-coroner’s office and various branches of law enforcement. Testimony also came from several people who had at one time known or been part of the Family, including Straight Satan Danny DeCarlo, former Family member Dianne Lake, and Barbara Hoyt, a Family member who testified despite an attempt by the Family to silence her by feeding her an LSD-laced hamburger. With the help of these witnesses, Bugliosi matched the knives and guns used at the crime scenes to those at Spahn Ranch, connected the bloody clothes found on the hillside to the defendants, verified the fingerprints found at the Tate residence as belonging to Watson and Krenwinkel, and established the whereabouts of the defendants on that fateful August weekend, all of which corroborated Kasabian’s testimony. Finally, on Monday, November 13th, the prosecution rested.3 To the astonishment of all present, attorneys for the defense rested immediately, declining to call any witnesses or present any evidence. Atkins, Krenwinkel, and Van Houten instantly stood, shouting that they should be allowed to testify. Judge Older called a conference of the defense attorneys and was advised that they had rested because they feared that their clients, if called to the witness stand, would take full responsibility for the murders in order to save Manson. Judge Older ruled, however, that an accused has a right to testify, and that the three would be allowed to take the stand. Before they were given the opportunity, though, Manson insisted on speaking himself. Older allowed him to make a statement but removed the jury before allowing him to do so. Manson gave a rambling, incoherent, two-hour speech, highlights of which included the claims that “these children that come at you with knives, they are your children. You taught them. I didn’t teach them. I just tried to help them stand up.” He also insisted, “I may have implied on several occasions to several different people that I may have been Jesus Christ, but I haven’t decided yet what I am or who I am.” When asked by Older if he wanted to repeat his statement in front of the jury, Manson declined. Returning to the defense table, he told the girls that they no longer had to testify, and they immediately stopped clamoring to do so. With that, the defense again rested.4 After a brief suspension, followed by closing arguments and jury instruction, the jury retired to deliberate on January 15, 1971. After nine days, it returned to announce that it had found Manson, Atkins, Krenwenkel, and Van Houten guilty on all counts.5 The guilty verdict was followed by the penalty phase of the trial. After another eight weeks of testimony, the jury deliberated again
and reemerged on March 29th to sentence all four defendants to death. They were immediately taken to prison to await their fates.6 In addition to being then the longest criminal trial in American history, the Manson trial was also one of the strangest. Family members held vigil outside the courthouse for the duration of the trial, waiting, as one young woman phrased it, for their “father to get out of jail.”7 They passed out flyers and shouted at passersby. Manson behaved bizarrely the entire time. On the first day, he arrived at the courthouse having carved an “X” into his forehead, and his followers outside explained that he had “X’d himself from your world” (he later turned the X into a swastika).8 He constantly interrupted witnesses and made wild outbursts to the judge, jury, and spectators, making proclamations like “you’re going to destruction, that’s where you’re going” and “it’s your judgment day, not mine.” He also threatened people, claiming that he “had a little system of [his] own” and that someone should cut Older’s head off. Manson once lunged at Older, brandishing a sharpened pencil, and another time he threw paper clips at Older. As the evidence accumulated and a guilty verdict seemed imminent, Manson tried to smuggle a hacksaw blade into his cell and attempted to bribe a bailiff to help him escape. Older constantly had him removed from the courtroom and placed in a side room where he could hear but not interrupt the proceedings. The girls were equally outrageous. They made protestations, and on one occasion stood up together and started chanting in Latin. Atkins once tried to grab a knife off the evidence table. Another time she kicked a deputy in the leg and grabbed notes from the prosecution table, tearing them in half. They also copied Manson’s actions. When they saw the X carved on his forehead, they did the same to theirs. During the penalty phase, Manson shaved his head and the girls followed suit. When he was removed from the courtroom, they often were not far behind.9 It was clear to all involved that the Family had no reservations about using violence or following through on the threats they made. Bugliosi
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One day during testimony, Manson turned to a bailiff and told him that he was “going to have Bugliosi and the judge killed.” In response, Bugliosi had an intercom system installed in his home that would instantly connect him to the nearest police station and had a bodyguard accompany him for the remainder of the trial.
began getting hang-up phone calls at home, even after he changed his unlisted phone number. He was often followed by Family members when he left the courthouse. One day during testimony, Manson turned to a bailiff and told him that he was “going to have Bugliosi and the judge killed.” In response, Bugliosi had an intercom system installed in his home that would instantly connect him to the nearest police station and had a bodyguard accompany him for the remainder of the trial.10 Judge Older had a driver-bodyguard and twenty-four-hour security at his home and wore a revolver under his robes.11 As it turned out, they may have been right to take precautions. Ronald Hughes, Van Houten’s lawyer, had been particularly opposed to letting her take the stand. She had only been present at the LaBianca residence, so she was only charged with two counts of murder rather than seven, and she thus had the most to lose if she sacrificed herself for Manson. After the defense rested, Older granted a ten-day recess in which the attorneys were to prepare their closing arguments. Hughes reportedly planned to use this time to go camping and work on his argument from Sespe Creek in Los Padres National Forest, just outside of Los Angeles. When the trial resumed, Hughes had vanished. No one could locate him or had seen or heard from him within the past few days. When he failed to appear again the next day, Older assigned Van Houten’s defense to another attorney, Maxwell Keith, and granted his request for a three-week extension so that he could familiarize himself with the case before closing arguments began. Many, including attorney Fitzgerald, speculated that Hughes was dead. Weeks later, Hughes’ body was found in Sespe Creek. Unfortunately, determining a cause of death was impossible because his body had been submerged underwater for so long.12 Since there was no evidence of foul play, there was no investigation. However, one of the Family members allegedly said later that “Hughes was the first of the retaliation murders.”13 The trial of Manson, Atkins, Krenwinkel, and Van Houten was among the most ardently followed and highly publicized trials of all time, and there were several reasons for this widespread interest. First, it fed off the fascination many Americans had with hippie life and counterculture, from the drugs to the communal living to the kinds of people who partook in them. It also allowed those who were antagonistic towards this lifestyle to voice their concerns and apprehension. Although Manson never claimed to be a hippie, nor did he espouse much of the hippie creed, which preached peace over violence, many identified him as one. Critics felt that the murders were the dark consequence of going against established and mainstream living. 24 San Antonio Lawyer | sabar.org
Deputy District Attorney Vincent Bugliosi arrives at a Los Angeles courtroom, to present the opening argument in the trial of Charles Manson and three others for the slayings of actress Sharon Tate and six others in Los Angeles. Photo by Wally Fong, July 24, 1970, AP/Shutterstock. Photo, page 22: Charles Manson in a Santa Monica, California courtroom 1970. Photo credit: PictureLux/The Hollywood Archive/Alamy.
Second, the case exuded celebrity. At every turn there was a nationally identifiable name—Polanski and Tate to be sure, but also the Beach Boys, Doris Day, and Candace Bergen. While incarcerated, Atkins had boasted that the Family had a death list that included Elizabeth Taylor, Richard Burton, Tom Jones, Steve McQueen, and Frank Sinatra. More, the crimes perpetrated by Manson and his followers were some of the scariest in recent memory, perhaps in the last century. They were gruesome and excessive, the victims killed within the supposed safety of their own homes and chosen at random. Seemingly anyone could be next. The Family members, both those standing trial and those holding vigil out on the street, were odd and creepy. They had vacant expressions, spouted nonsense to passersby, and seemed to have no remorse for what had happened. Atkins, Krenwinkel, and Van Houten often smiled, sang, laughed, and joked with reporters and spectators when led in and out of trial.14 They were so young and innocent looking, yet capable of such violence and terror. Even with defendants imprisoned, there were countless other Family members out on the streets, apparently capable of the same callous, unfeeling violence and constantly being quoted as saying things like “there’s a revolution coming, very soon,” and “you are next, all of you.”15 Americans were terrified. On top of everything else, there was Manson, a terrifying character who apparently could warp the minds of America’s youth and convince them to kill for him. So afraid were people of Manson that the case is usually referred to as “the Manson case” rather than “the Tate case” or “the LaBianca case” or any other victim, as most cases are. The press capitalized on this widespread fascination. The story was simply everywhere. Coverage surpassed that of all previous murder cases, other than the Lindbergh kidnapping and the assassination of President Kennedy, and had begun instantly.16 Having monitored police scanners, reporters were already gathered outside the Tate residence when the first
police cars arrived, shouting questions as officers came and went; “Is Sharon dead?” “Were they murdered?” The first Associated Press story went out before the names of the victims were even known.17 With little concrete information, reporters published stories brimming with rumors and untruths. Some claimed that Sharon Tate’s baby had been cut out of her abdomen. Others claimed that the towel thrown over Jay Sebring’s face was a Ku Klux Klan hood.18 One investigator made the mistake of saying to a reporter that the killings “seemed ritualistic” and the story that ran in the Los Angeles Times was headlined “Ritualistic Slayings: Sharon Tate, Four Others Murdered.”19 Papers published long, detailed accounts of the victims’ lives, noting Roman Polanski’s penchant for violence in his movies.20 Often, the implication was that these celebrities, with their high living and noconsequence attitudes, had brought their deaths upon themselves. The LaBianca killings got similar coverage, capturing headlines and television banners on Monday morning. “Second Ritual Killings Here,” cried page one of the August 11 Los Angeles Times.21 When Manson and his Family were identified as suspects months later, the press was reinflamed. The LAPD held a press conference on December 1st to announce the issuance of arrest warrants for Watson, Krenwinkel, and Kasabian, and over two hundred reporters representing publications and news stations from all over the world were in attendance.22 Afterwards, coverage focused mostly on Manson and his strange followers: their customs, their lifestyle, their history. No detail, if strange and shocking enough, was irrelevant. The press was so ubiquitous that it often beat out investigators when trying to get a story. It was a reporter, attempting to identify the unknown victim in the white Rambler at the Tate residence, who wrote down the car’s license plate number, checked it at the DMV, and traced it to Steven Parent. Similarly, it was a news camera crew, trying to recreate the events of that night for its viewers, that found the bloody clothes on the hillside. The gun was identified when young Steven Weiss’s father heard about the gun as described in the Los Angeles Times and realized that it matched the one his son had found in the backyard.23 Knowing that the publicity would continue at this level throughout the trial, the jury was immediately sequestered and remained so for the duration of the trial. At 225 days, it was longer than any jury had been sequestered before.24 The case snagged newspaper headlines nationwide on the first day and every day in which there was dramatic or noteworthy testimony. Some stories were accurate. Others were rumor-filled. In early August, President Nixon, commenting on the case, declared Manson guilty, and his statement was so widely published that the windows of the bus that shuttled the jury back and forth from the courthouse to their hotel had to be blacked out to keep them from seeing the headlines of papers on display at newsstands and being read on the streets.25 After being sentenced to death, Charles Manson was sent to the state prison at San Quentin to await execution. Family members attempted to free him, engaging in a gun battle with police as part of a scheme to hijack a commercial airplane and kill a passenger every hour until he was released. They were unsuccessful, but two of his followers, including original Family member Mary Brunner, were convicted and sent to prison.26 In prison, Manson remained as outrageous as he had been at his trial, a consistent disciplinary problem, acting up and threatening staff. He never apologized or showed remorse. He continued to give interviews that shocked and frightened. In 1988, he told journalist Geraldo Rivera, “I’m going to kill as many of you as I can. I’m going to pile you up to the sky.” But, on February 18, 1972, the California Supreme Court outlawed the death penalty in People v. Anderson, finding capital punishment “impermissibly cruel.” This decision worked retroactively, commuting all upcoming executions to life in prison and Manson escaped execution.27
He was transferred to several different facilities before being sent to Corcoran State Prison in 1989, where remained until his death in 2017. The same Supreme Court decision that spared Manson spared Atkins, Krenwinkel, and Van Houten. All three were transferred to the California Institute for Women at Frontera, where they have remained. Van Houten appealed for and received a new trial in 1976 in light of the mid-trial disappearance of her attorney, Ronald Hughes, but was convicted again. All three women have renounced Manson and expressed deep remorse over what they have done. They have been exemplary prisoners at Frontera, taking their hearings seriously, but none of them received parole.28 Atkins died of brain cancer in 2009 at age 61.29 Krenwinkel and Van Houten are still alive. After being granted immunity, Kasabian returned to New Hampshire, where she took on an assumed name and disappeared. She spent years living in hiding until 2009, when a documentary film crew found her living poverty-stricken in a trailer park.30 Tex Watson was finally extradited and tried separately. He was convicted of all counts on October 12, 1971, and sentenced to death but, like the others, his sentence was commuted to life in prison.31 He is serving out his sentence at Mule Creek State Prison, where he has been ordained as a minister, claiming to have experienced a religious awakening.32 While Manson continued to attract twisted admirers even from his cell, the Family dissipated. As the Manson saga came to an end, though, America’s obsession with it did not. There is something about the case that continues to captivate. Bugliosi’s book on the trial sold seven million copies and was dramatized for television in both 1976 and 2004. When it aired, the 1976 version was the most watched made-for-television movie in history.33 A 1994 ABC special on the case received the highest ratings ever garnered for a network magazine show debut.34 More than any
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other murderer, Charles Manson has become part of our cultural consciousness, a reference that everyone recognizes and understands whether or not they were alive to experience his trial. As one journalist writing on the 40th anniversary of the murders phrased it, Manson “remains a household name synonymous with evil, hatred, even the devil.”35 Mark J. Phillips is a shareholder at the law offices of Lewitt Hackman in Encino, California. Aryn Z. Phillips is a graduate of the Harvard School of Public Health and holds a Ph. D. in Public Health from UC Berkeley. They are the co-authors of Trials of the Century (Prometheus 2016). ENDNOTES Vincent Bugliosi, Helter Skelter (New York: W. W. Norton, 1974), 410-14. 2 Id. at 420-39. 1
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Id. at 412-503. Bradley Steffens and Craig Staples, The Trial of Charles
Id. at 430. Id. at 607. 27 Steffens, 91. 28 Steffens, 92 29 Elaine Woo, “Susan Atkins Dies at 61; Imprisoned Charles Manson Follower,” The Los Angeles Times 26 Sep. 2009: online. 30 Robin McKie, “Charles Manson Follower Ends Her Silence 40 Years After Night of Slaughter,” The Observer, 1 Aug. 2009: online. 31 Bugliosi, 604. 32 David Lohr, “Charles ‘Tex’ Watson: No Parole 42 Years After Manson ‘Family’ Killings,” The Huffington Post, 17 Nov. 2011, TheHuffingtonPost. com Inc., 3 Jan. 2014, http://www.huffingtonpost. com/2011/11/17/charles-tex-watson-parole-manson-killings_n_1097760.html 33 Morrison, np; International Movie Database 34 Bugliosi, 638. 35 Sarah Netter, “Charles Manson Reign of Terror: 40 Years Later,” ABCNews, 7 Aug. 2009, ABC News Network, 9 Jan. 2014, http://abcnews.go.com/ Blotter/MansonMurders/charles-manson-murdersshock-40-years/story?id=8266725&singlePage=true
3
25
4
26
Manson: California Cult Murders (San Diego: Lucent Books, 2002), 78-82. 5 Id. at 87. 6 Id. at 89-90. 7 Bugliosi, 448. 8 Id. at 412. 9 Bugliosi, 485, 521, Steffens, 84-85. 10 Bugliosi, 473-74. 11 Id. at 404, 487. 12 Steffens, 82-84. 13 Bugliosi, 624 14 Steffens, 62. 15 Bugliosi, 540. 16 Id. at 45. 17 Id. at 34-37. 18 Id. at 46. 19 Dial Torgerson, “’Ritualistic Slayings’: Sharon Tate, Four Others Murdered,” The Los Angeles Times 10 Aug. 1969: 1. 20 Bugliosi, 54. 21 Torgerson 22 Bugliosi, 220. 23 Id. at 49, 266-68. 24 Id. at 403, 59.
Fourth Court Update
Notice of Appeal Deadlines in a Pandemic By Justice Beth Watkins
A
s I write this article, our lives have been disrupted by the Coronavirus pandemic for more than a year. Even for those fortunate enough to have escaped the worst of COVID-19, this virus has affected every aspect of our lives. That certainly holds true for the lawyers and litigants who have been operating under the Texas Supreme Court’s Emergency Orders (EOs) for the past fifteen months. The EOs extend many deadlines. The Fourth Court of Appeals sitting en banc recently split on the question of whether the EOs automatically extend notice of appeal deadlines. See Haddad v. Tri-Cnty. A/C & Heating, LLC, No. 04-20-00407-CV, 2020 WL 7753988 (Tex. App.—San Antonio Dec. 30, 2020). Without issuing an opinion, the majority denied en banc reconsideration requested by an appellant who claimed her notice of appeal deadline was extended by the EOs. EO 1 authorized courts, subject to constitutional limitations, to modify or suspend “any and all deadlines and procedures, whether prescribed by statute, rule, or order . . . .” First Emergency Order Regarding the COVID-19 State of Disaster, 596 S.W.3d 265 (Tex. 2020). This authority to modify deadlines prescribed by rule has since been extended to June 1, 2021. See Thirty-Sixth Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 21-9026. Rule 26.1 of the Texas Rules of Appellate Procedure sets the deadlines for notices of appeal. See Tex. R. App. P. 26.1. As a deadline prescribed by rule, EO 1 appeared to authorize appellate courts to extend notice of appeal deadlines that expired after the pandemic began. However, on April 1, 2020, the Texas Supreme Court issued EO 8, which automatically extended statutes of limitations and service deadlines in civil lawsuits. See Eighth Emergency Order Regarding the
COVID-19 State of Disaster, 597 S.W.3d 844 (Tex. 2020). Importantly, EO 8 expressly excepted notice of appeal deadlines from its automatic extension but explained that requests to extend notice of appeal deadlines “should be directed to the court involved and should be generously granted.” Id. The supreme court maintained this language through EO 21, which expired on September 15, 2020. As of the date of this writing, the supreme court has not renewed either the automatic extension or the instruction to “generously grant” extensions of notice of appeal deadlines. Since the expiration of EO 2 on September 15, 2020, can tardy attempted appellants extend notice of appeal deadlines? Not in any circumstances the Fourth Court of Appeals has reviewed as of the time of this writing. See In re L.R.S., No. 04-20-00507-CV, 2020 WL 7365444, at *1 (Tex. App.—San Antonio Dec. 16, 2020, no pet.)(notice of appeal deadline not extended by filing of motion for new trial in accelerated appeal); Bratton v. Holt Tx., Ltd., 04-20-00234-CV, 2020 WL 6048776, at *1 (Tex. App.—San Antonio Oct. 14, 2020, no pet.)(notice of appeal deadline not extended when appellant waited for ruling on motion for rehearing before filing notice of appeal); Arriola v. State, No. 04-20-00307-CR, 2020 WL 5215057, at *1 (Tex. App.—San Antonio Sept. 2, 2020, no pet.)(EOs did not extend notice of appeal deadline in criminal appeal). The Austin, Corpus Christi, and Fort Worth courts of appeals also follow this approach. See Porch v. Daimler Trucks N. Am., LLC, No. 03-20-00445-CV, 2020 WL 7063575, at *2 (Tex. App.—Austin Dec. 3, 2020, pet. filed)(relying on Texas Supreme Court precedent that the requirement of filing a timely notice of appeal is jurisdictional); Carrigan v. Edwards, No. 13-20-00093-CV, 2020 WL 6504418, at *2 (Tex. App.—Corpus Christi Nov. 5, 2020, no pet. h.)(“[T]he
But for now, at least in the Fourth Court’s district, notice of appeal deadlines are not automatically extended due to the Coronavirus pandemic.
pandemic conditions do not generate a blanket excuse which can be used to extend deadlines indefinitely, especially in the absence of any specific explanation for why such extensions are warranted.”); Jones v. White, No. 02-2000198-CV, 2020 WL 5666564, at *1 (Tex. App.—Fort Worth Sept. 24, 2020, no pet.) (“[T]he fact of the pandemic, standing alone, is not a reasonable explanation for a missed appellate deadline.”); Cantu v. Trevino, No. 13-20-00299-CV, 2020 WL 6073267, at *5 (Tex. App.—Corpus Christi Sept. 24, 2020, no pet.)(“[T]he supreme court’s emergency orders tolling deadlines explicitly do not apply to deadlines for perfecting appeal.”). The Texas Supreme Court has not yet reviewed this issue, so the final word on this topic may not be written. But for now, at least in the Fourth Court’s district, notice of appeal deadlines are not automatically extended due to the Coronavirus pandemic. Justice Beth Watkins practiced before federal and state appellate courts for sixteen years before her election in 2018. She is Board Certified in Civil Appellate Law.
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Federal Court Update
Western District of Texas Court Summaries By Soledad Valenciano, Melanie Fry, and Charles Carter
If you are aware of a Western District of Texas order that you believe would be of interest to the local bar and should be summarized in this column, please contact Soledad Valenciano (svalenciano@svtxlaw.com, 210-787-4654) or Melanie Fry (mfry@dykema.com, 210-554-5500) with the style and cause number of the case, and the entry date and docket number of the order.
Motion to Dismiss; Gray Market Trademark Infringement/ Dilution Nestle United States v. Ultra Distribuciones Mundiales S.A. De C.V., No. 5:20-CV-384DAE (Ezra, D., February 1, 2021). The plaintiffs, Nestle subsidiaries that sell Nestle products and own Nestle’s intellectual property in the United States, brought various trademark and business tort claims related to defendants’ sale of “gray market goods.” One defendant distributes Mexican products—including products manufactured by Nestle for sale only in Mexico—around the world, and the other defendant is its Texasbased subsidiary that imports and sells such products in Texas, California, and elsewhere in the United States. Pursuant to Fed. R. Civ. P. 12(b)(6), the defendants moved to dismiss plaintiffs’ claims for trademark infringement and false designation. The plaintiffs’ trademark infringement claims require proof that the products are materially different. The plaintiffs pointed to packaging differences between the Nestle products intended for sale in the United States and the Mexican Nestle products the defendants sell in the United States as a basis for the products being materially different. Even though the plaintiffs referenced FDA regulations to support their argument that the packaging of the products makes the products materially different, the court rejected the defendants’ argument that such claims amount to a private attempt to
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enforce those FDA regulations. The court also rejected the defendants’ argument that the plaintiffs failed to state a false designation of origin claim because the word “origin” is not limited to geographic origin for this Lanham Act claim.
Limitations; Due Diligence in Issuance and Service of Citation Perez v. Best Buy Stores, L.P., No. SA-20CV-00812-XR (Rodriguez, X., February 5, 2021). After sustaining an injury in the bathroom of a Best Buy, the plaintiff sued Best Buy in state court two days before the statute of limitations expired. Following removal of the case to federal court, Best Buy moved for summary judgment on limitations grounds because it was not served until six months after the limitations period had expired. The plaintiff’s counsel had attempted to serve Best Buy when timely filing the petition, but the state court clerk rejected the request for service, and counsel for the plaintiff did not notice the rejection. The court considered whether the plaintiff was diligent in effecting service, thereby causing the date of service to relate back to plaintiff’s timely filed petition. The plaintiff explained the gap between the filing of the petition in July and plaintiff’s counsel’s realization in October that an answer had not been filed by pointing to staffing changes. The court determined that a genuine issue of material fact precluded summary judgment as to whether the plaintiff was diligent in effecting
service because no prior case determined that such a gap was not diligent, and the plaintiff provided at least some justification for the delay.
Summary Judgment; Testimony Explaining Contradictory Evidence Espinoza v. Pompeo, No. SA-19-CV-01363XR (Rodriguez, X., February 25, 2021). The plaintiff moved for summary judgment on his 8 U.S.C. § 1503(a) claim for denial of rights and privileges as a national against the United States Department of State for its decision denying the plaintiff’s application for a passport. In doing so, the plaintiff bears the burden of proving, by a preponderance of the evidence, that he is an American citizen. The plaintiff argued that he is entitled to summary judgment because certain records and testimony—including a Texas birth certificate—demonstrate that there is no genuine issue of material fact as to his birthplace. However, the plaintiff also has a Mexican birth record, and the defendant noted contradictions between the Mexican and Texan birth records and related testimony. While not fatal to the plaintiff’s claim, the court concluded such discrepancies created a genuine issue of material fact precluding summary judgment.
Supplemental Jurisdiction McNair Custom Homes v. Hartt, No. SA20-CV-00435 (Pulliam, J., January 13, 2021). McNair Custom Homes sued defendants in state court for their use of designs, plans, and specifications for a residence. The defendants asserted counterclaims and removed the case to federal court. In response, McNair nonsuited certain claims and amended its pleadings, the result being an amended complaint asserting a claim for misappropriation of trade secrets, assisting or encouraging a tort, assisting or participating in a tort, and civil conspiracy. Although a federal court has jurisdiction over copyright claims under 28 U.S.C. § 1454(a), it may remand any other claims in the lawsuit over which it has only supplemental jurisdiction. See 28 U.S.C. §§ 1367, 1454(b). Here the amended complaint raised no copyright claim. Therefore, McNair urged the court not to exercise supplemental jurisdiction under 28 U.S.C. § 1454(d)(2). The defendants argued that their counterclaims, which sought a declaration that the parties were co-authors and co-owners of the copyrights in the house plans, required construction of the Copyright Act. The court agreed that the counterclaims were sufficient to confer removal jurisdiction under § 1454. A court has supplemental jurisdiction over claims that are “so related to claims in the action within such original jurisdiction that they form part of the same case or controversy.” Here, it was appropriate for the court to exercise supplemental jurisdiction over McNair’s claims because the parties’ competing claims derive from a common nucleus of operative fact.
Rule 26 Proportionality; Rule 45 Subpoenas on Non-Parties Marchlewicz v. Bros. Xpress, SA-19-CV00996-DAE (Chestney, E., February 4, 2021). Insurance carrier served a notice of intention to take deposition on written questions and subpoena duces tecum to the records custodians of three court reporting firms. Carrier sought portions of deposition transcripts of one Dr. Earle, taken by or attended by a certain law firm, as well as any firm generally, for the past four years. The court reporting firms objected. Rule 45 provides that a subpoena may be served on non-parties, but a court may consider the expense and inconvenience
caused by the subpoenas on the non-parties. While only one of the three court reporting firms provided evidence of undue burden, the court quashed the subpoena pursuant to Rule 26 on the basis that the requested discovery is not proportional to the needs of the case. The burden or expense of compelling third parties to produce this discovery outweighs its likely benefits. The insurance carrier’s argument that emails between a law firm and the doctor’s office were indicative of bias was insufficient to justify the burden imposed on the court reporting firms. To the extent the emails suggested bias, and because they were already in the possession of the insurance carrier, the carrier could use the emails to cross-examine the doctor on the issue of bias.
Soledad Valenciano practices commercial and real estate litigation with Spivey Valenciano, PLLC.
Melanie Fry practices commercial litigation and appellate law with Dykema Gossett PLLC.
Charles Carter practices commercial litigation with Dykema Gossett PLLC.
Removal/Remand; Improper Joinder Davidsmeyer v. Home Depot, USA, Inc., SA-20-CV-1419-XR (Rodriguez, X., February 26, 2021). The plaintiff claimed he was hit by a forklift driven by Mr. Halter, an employee of Home Depot. The plaintiff sued Halter and Home Depot in state court, and Home Depot removed the case to federal court, claiming Halter, a Texas citizen, was improperly joined. Home Depot claimed there was no way that Halter hit the plaintiff with a forklift because Halter was at another store that day. There are two ways to establish improper joinder, which is a narrow exception to the rule of complete diversity: (1) actual fraud in the pleading of jurisdictional facts; and (2) the plaintiff’s inability to establish a cause of action against the non-diverse party in state court. Accepting all well-pleaded facts as true, and focusing on the joinder and not the merits, the court found that the evidence submitted by the plaintiff (photos of an individual believed to be Halter driving a forklift at the location in question) is a fact question not properly considered on a motion to remand. The plaintiff claimed Halter had a duty to exercise the degree of care that a reasonably careful person would use, and that the plaintiff’s injuries were proximately caused by Halter’s negligent, careless, and reckless disregard of said duty by failing to maintain control of the forklift and failing to maintain as safe distance from the plaintiff. Thus, the plaintiff pled a claim supporting a plausible basis for recovery against Halter, and Halter was not fraudulently joined. The court granted the plaintiff’s motion to remand.
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