Not Too Late

For many claims, it’s not too late. The qualification criteria can be a little complicated and tricky; yet, there is a lot of explanatory information online. A lawyer is not required, certainly for the obvious and relatively simple claims. However, the more complicated and sizeable the claim, the more confusing the 1,000 plus page settlement agreement seems to read, and the greater the risk that a claim may be challenged and require additional supporting documentation.

Class Action Lawsuits

On April 18, 2012 BP and Plaintiffs’ Steering Committee of the class action lawsuits entered into the Economic and Property Damage Class Action Settlement Agreement. The BP settlement approved last December was designed to rehabilitate businesses all over the Gulf Coast after the economic devastation of the BP Deepwater Horizon oil spill. As of March 31, 2013, BP paid almost Nine Billion Dollars on individual and business claims made both before and after the United States District Court for the Eastern District of Louisiana approved the settlement agreement in December 2012. Even though BP attempted to block oil spill claim payments which it argued were more expansive than what was intended, the federal judge rejected BP’s claims. Large financial payments are waiting for many businesses, and lots of them don’t even know about it.

FAQs

Tilting the Scales in Your Favor 

This is one of the most complicated settlements in history. The larger and the more complicated your claim, the more important it is to confirm the claims process with an expert. Equally as importantly, we encourage potential claimants to file their claim well prior to the April 2014 claims deadline.  There has been much conversation about the size of the available settlement pool, the contractual limitations imposed by the settlement agreement and the implications if funds run short. Filing accurately and early may prove critical.

If you have any questions, please feel free to contact us at Looper Reed.  We are experienced in mass tort litigation and have teamed up with attorneys on the BP class action Plaintiffs’ Steering Committee. Our team worked closely with the accountants processing the settlement and responsible for creating the templates and criteria to evaluate the claims.

No.  Online retailers have long been able to offer their customers tax free shopping because they do not maintain a physical presence (e.g. employees, warehouses, offices) within the state where the order was placed.  The State of Texas will look to whether some “nexus” or relationship exists between the business and the state.  Because KaBloom.com’s Texas customers may return or exchange purchases at Florist Gump in Texas or have other claims issues handled there, KaBloom is treated as having corporate representatives or affiliates within Texas (a “physical presence”) and must collect Texas sales tax.

Tilting the Scales in Your Favor

Make sure to consult a tax attorney or CPA if you have a “sales” relationship with any entity outside of Texas to make sure that the proper procedures are followed for collecting, reporting and paying state and county sales taxes. Rose’s penalties and interest for not collecting sales tax will be at least 9.25% if paid in 30 days and at least 14.25% if not paid within 30 days.   

The Future of the Taxing of Internet Based Stores

Susan Combs, the Texas Comptroller of Public Accounts says Texas loses roughly $600 million a year from untaxed online sales.  Taxation of internet sales is certain to gain increasing scrutiny from taxing authorities.  Brick and mortar stores have long complained that online retailers have an unfair competitive advantage because of their ability to offer tax free purchases.  States initially turned a blind eye to taxing of online sales and yielded to the complaints of online retailers about the complexity of collecting sales tax in 9,600 jurisdictions. Increasingly, states have become interested in this revenue source to augment shrinking state coffers with some of the hundreds of billions of dollars that Americans spend each year on on-line purchases.  Recently, Amazon.com agreed to start charging sales tax in a number of states including Texas.  The online giant, that had long opposed the requirement that online retailers collect sales tax, believes the issue should be decided at the federal level and has thrown its support behind the Marketplace Fairness Act which seeks to allow states to collect taxes from out-of-state businesses.  While other online retailers, such as ebay and Overstock, oppose the legislation, it appears as though the age of tax free clicks is coming to an end.

Yes.  As an at-will employee in Texas, Brewed Awakening can fire Blunt for any non-discriminatory reason including violation of the company’s stated policies prohibiting the use of marijuana.  Although some states prohibit termination based upon an employee’s lawful off-duty activities, Texas is not one of them.  Even if Blunt were to claim that she smoked pot for “medical reasons,” any use of marijuana is illegal under federal law and smoking marijuana is not recognized as a reasonable accommodation under the Americans with Disabilities Act.  While some states have made discrimination against medical marijuana users illegal, Texas, again, is not one of them. 

Tilting the Scales In Your Favor

With Colorado and Washington both legalizing marijuana, “pot tourism” will become more popular.  Inevitably, “pot tourism” will create problems for employees returning to work after enjoying everything that these progressive states have to offer.  Companies intending to drug test their employees must implement clear policies and procedures.  Any drug testing policy should define what is considered to be a violation, which employees are subject to testing and the disciplinary actions which may result from violation.  Courts consistently uphold pre-employment drug tests as a condition of employment.  Post-employment drug testing can include random testing, post-accident testing, reasonable suspicion testing, and mandatory testing (e.g. the Department of Transportation requires testing for long-haul truck drivers).  While there are almost no restrictions on drug testing which may be required by private companies, government employers are more restricted as courts have held that government employees should be safe from unreasonable search and seizures.  HR departments should be aware that the results of drug tests are considered medical records and therefore must be kept confidential and separate from other personnel records.

Probably, yes. The Texas Property Code expressly provides that a realtor is not required to disclose or release information related to whether a death by natural causes, suicide or accident unrelated to the condition of the property occurred on the property. Murder is not covered by this “no duty” rule. Since a murder on the property might be considered a material fact that a buyer would want to know in deciding whether to purchase, it’s probably prudent for sellers to disclose this fact.

What Not To Disclose?

It is a discriminatory practice in violation of the Texas Real Estate Commission’s Canons of Professional Ethics and Conduct for a real estate licensee to inquire about, respond to or facilitate inquiries about race, color religion, sex, national origin, ancestry, familial status or handicap. You can’t talk about AIDS, HIV-related illnesses or HIV infection related to the property, any occupant or owner, either.

What MUST Be Disclosed?

Physical stigmas arise when some negative or detrimental physical or environmental condition exists that may affect the health or safety of the occupants or the value of the property, whether direct or indirect. An obvious property condition would be houses in an area subject to sinkholes, like central Florida where an occupant was killed when his house collapsed. More indirectly, health-related problems whether real or imagined, can impact property marketability or value, like the asbestos scare or perhaps if the house is Haunted! The Seller’s knowledge of active termites and damage, flooding, toxic wastes, previous fires, landfill, settling, soil movement, fault lines and manufacture or sale of methamphetamine, must all be revealed in a Seller’s Disclosure of Property Condition. If the seller fails to provide the notice required by the statute, the purchaser may terminate the contract for any reason within seven days after receiving the notice.

Tilting the Scales in Your Favor. 

If you own or intend to purchase real property, consider the following:

• GOOGLE the property address and ask questions about prior usages and property circumstances, and know that your buyer or seller is likely to do the same;
• In Texas carefully review and complete the Seller’s Disclosure of Property Condition for residential sales, knowing that if you are the buyer there may be more to the disclosure list than meets the eye, and if a commercial transaction, consider the same questions and responses;
• Even if there are no disclosed property conditions or physical stigmas, separately investigate if there may be and, if so, try to determine whether the stigma is based on rumor or fact;
• If it’s a fact, consider how material it is to the transaction—how sensational was the event, how long ago did the event occur, would it likely impact the purchase price or resale value;
• Discuss the physical stigma, its accuracy, perceived impact and likely consequences with your broker to evaluate the impact upon the value of the property and / or the risk of legal liability and responsibility;
• Generally speaking, more informative disclosures are better. Doing so, in writing, reduces the likelihood that a subsequent lawsuit will be successful and, therefore reduces the risk that a contingency fee lawyer will be interested in taking the case.

Lawsuits stemming from nondisclosure of a property’s problems were ranked by real estate brokers in the National Association of Realtors 2011 Legal Scan as among their “top three current and future issues.” It is almost certain that neighbors will later inform buyers about deaths and other physical stigmas related to the property. Whether the physical stigma may be a death involving or any other stigma not specifically covered by a duty to disclose, sellers may choose to voluntarily disclose information about all stigmas to avoid contract termination or worse yet, subsequent litigation.

SEE ALSO:

• Duty to Disclose that  House for Sale is Haunted

LIGHTER SIDE

Texas Independence Day Ammo & Gun Sales Tax Waiver
HB 1533 (Leach)
This bill establishes Texas Independence Day (March 2) as a tax-free holiday, exempting individuals’ purchase of firearms and hunting supplies in the State of Texas from sales taxes. Exempt eligible items include the following:

• Shotguns, rifles, pistols, revolvers, and other handguns
• Gun cleaning supplies, gun cases, gun safes and optics
• Ammunition
• Archery equipment
• Hunting stands, blinds and decoys.

Status: Bill Filed

Exemption from US Law for Firearms, Accessories and Ammunition Made in Texas
HB 872 (Laubenberg)
This bill exempts the intrastate manufacture of a firearm, a firearm accessory, or ammunition from federal regulation if manufactured in Texas. The Legislature of the State of Texas declares that a firearm, a firearm accessory, or ammunition manufactured in Texas, as described by Chapter 2003, Business & Commerce Code, as added by this Act, that remains within the borders of Texas: (1) has not traveled in interstate commerce; and (2) is not subject to federal law or federal regulation, including registration, under the authority of the United States Congress to regulate interstate commerce.
Status: Referred to Committee / Awating Hearing

Mandated A&M – Texas nonconference football game
HB 778 (Guillen)
This legislation would require UT and Texas A&M to play a nonconference, regular-season football game against one another every year. If either school refuses to play in the football game, the school will be prohibited from awarding to any student an athletic scholarship for the following year.
Status: Referred to Committee / Awating Hearing

Limited Full Contact Football Practice
HB 887 (Lucio)
This bill would prohibit a high school or middle school football team from holding more than one full-contact practice per week.
Status: Referred to Committee / Awating Hearing

Expanded Liquor Sale Hours
HB 421 & SB 236 (Thompson, S.)
Would expand the hours of liquor sales to include Sundays 12:00 pm-10:00 pm, and expanding hours on Monday through Saturday to 9:00 am-10:00 pm. Current law only allows for sale Monday through Saturday 10:00 am – 9:00 pm. The effect is one would be able to buy liquor on any day except for New Year’s Day, Thanksgiving, and Christmas. The bill would also allow wholesalers to sell to retailers on any day except for Christmas day.
Status: Referred to Committee / Awating Hearing

Smoking Banned in Public Places
SB 86 (Ellis)
Smoking would be banned from any public place, place of employment, or in a seating area of an outdoor event. The exceptions would be a private residence, hotels or motels (no more than 20% of rooms may be designated as smoking, and all on the same floor must be contiguous, and smoke may not enter a non-smoking area),nursing homes or long-term care facilities, tobacco shops, tobacco bar in operation by May 15th, 2013, private clubs not employing any employees, outdoor area of a restaurant or bar, outdoor porch not accessible to the public, tobacco product manufacturing site. A business owner may completely ban smoking on their premises.
Status: Referred to Committee / Awating Hearing

HEAVIER SIDE 

Too Much Social Media Information!?
HB 318 (Giddings)
An employer would commit an offense if it requires or requests that an employee or job applicant disclose a user name or password for accessing their personal account, including a personal e-mail or a social networking website or profile. Right now, the employee, if asked, can merely deny the request.
Status: Referred to Committee / Awating Hearing

DNT TXT N DRIVE
HB 63 (Craddick)
The “Texting While Driving” legislation proposes that a person may not read, compose or send any “text based” communication from a “handheld wireless device” while operating a motor vehicle. Defenses to prosecution include, among others, using a cell phone to read, select or enter a telephone number to make a call, using a cell phone in conjunction with hands free talking technology and using a cell phone to navigate using GPS.
Status: Favorable Vote from Transportation Committee / Awaring House Floor Debate

Goodbye Franchise Tax?
HB 607(Turner, E.S.) and its Senate companion SB 179 (Paxton)
Would phase out the franchise tax by reducing it by 25% each year between 2014 and 2017. The legislation maintains the $1 million exemption throughout the phase out to protect small business owners and removes the $50 penalty for failure to file a franchise tax report by entities that do not owe a tax.
Status: Referred to Committee / Awating Hearing

Suing the Lone Star
HB 586 (Workman)
Proposes that a state agency that enters into a contract waives sovereign immunity for breach of an express or implied provision. In other words, the state can be sued and money damages can be awarded.  This topic has gained recent attention when former Texas Tech football coach Mike Leach discovered that he could not recover on a suit against the state for the alleged wrongful termination of his employment contract. 
Status: Referred to Committee / Awating Hearing

Land Grab
HB 476 (Kolkhorst)
Proposes significant revisions to the eminent domain authority of governmental entities, providing increased protections and options for the property owners including ensuring that condemned land is used for public purposes and that landowners are fairly compensated.
Status: Referred to Committee / Awating Hearing

Last month we concluded that Pall Adium is probably not liable to his customers. If a business owner’s employees are injured, however, what then?

Employees Assaulted by Third Party?

Like visiting patrons, Pall’s employees have an unlikely claim against a business owner for violent acts in the workplace committed by a non-employee unless there is a “special relationship” between the employer and either the perpetrator or those who are injured. In short, should Pall have reasonably known of the danger? If Pall knew of a threat to the safety of his workers and patrons and knows either of a particular assailant or victim (employee), rather than just a mere general threat, he may be responsible for failing to warn the victim or otherwise to take reasonable protective measures.

Employees Assaulted by Another Employee?

More often than not, the workplace assailant is an employee or former employee who believes he/she was wronged by the employer. More than just having a responsibility to protect employees when he knows of a “problem employee,” Pall also has a duty in the hiring and retention of his employees. For example, Pall could be liable for failing to investigate an employee’s background before hiring or if he fails to fire after having reason to suspect that the employee might commit a violent act. In addition to OSHA/MOSHA federal standards to maintain a safe workplace, Pall has a similar duty at common law to provide a safe workplace for his employees, to warn his employees about any lurking dangers and to impose and enforce reasonable rules to govern his employees’ conduct.

Tilting the Scales in Your Favor 

Warning Signs. Even without specific knowledge of a disgruntled employee or the threat of an assailant, Pall Adium should be aware of suspicious, tell-tale behavior like:

• unexplained increases in absenteeism
• repeated violations of company policies
• behavior bordering on paranoia
• depression and withdrawal
• overreaction to changes in procedure
• verbal abuse or threats to co-workers
• frequent, vague physical complaints
• explosive outbursts of rage without provocation

Reasonable Precautions

If not already a part of his HR policies, Pall should consider establishing (and including in an employee handbook) policies and procedures to address pre-employment screening, performance evaluations and a progressive disciplinary process. As a result of a Texas law that became effective September 2011, Texas employers should amend their workplace violence policies to permit employees to store legally owned guns in their vehicles while they are at work.

Good News! Workers Compensation Insurance.

Generally speaking, employees injured on a jobsite covered by workers compensation insurance may only recover from that insurance (and not from their employer) injuries and lost wages, even when the injury is caused by criminal assault.

SEE ALSO:

• “Have Gun, Will Travel? – Owner’s Liability to Customers for Violent Acts”
• “Piece Be with You – Texas Concealed Handgun Laws”
• “Spending Opening Weekend of Dove Season with Dick Cheney and Friends – Liability for Hunting Accidents.”

Probably.  Had he carefully followed the provisions of the Texas Uniform Parentage Act, as a “donor” Seaman would not be considered the parent and would not be liable for child support.  Not using a licensed physician could prove problematic for Seaman.  The statute defines a donor as an individual who provides eggs or sperm to a licensed physician for assisted reproduction.  Assisted reproduction is also a defined term meaning causing pregnancy not by sexual intercourse and including: (1) intrauterine insemination; (2) donation of eggs; (3) donation of embryos; (4) in vitro fertilization and (5) introcytoplasmic sperm injection.  Besides not using a licensed physician, the couple did not get pregnant using any of these methods. Accordingly, Seaman risks a court declaring that he is not protected by the statute and that he is responsible for child support.

Tilting the Scales in Your Favor

To avoid future child support liability (among other liabilities), sperm donations in Texas should be made through a doctor, sperm bank or clinic. This is to achieve clear-cut, black-and-white cases of sperm donation and, thus, determination of paternity, thereby reducing misunderstandings about child support obligations, parental rights and fraud against the state.

NOTE: Texas was the first state to enact the Uniform Parentage Act which can be found in the Texas Family Code. Other states may not have addressed the legal issues presented by modern medical technology. Under other states’ laws, like Kansas, the attorneys’ general office may have broader latitude to claim child support liability.

As an example and keeping in the tone of this month’s postings on gun control, as the federal government moves forward on its plans to tighten gun restrictions, Texas lawmakers are proposing legislation to expand gun rights in the state. The latest proposal is HB 700, a so-called “open carry” bill filed last week by State Rep. George Lavender, R-Texarkana, to allow individuals with concealed handgun licenses to carry weapons in plain view on a belt or shoulder holster. Similar legislation failed last session. Other recent proposed policy changes include allowing concealed handguns on college campuses, and arming and training school officials, including teachers.

More summaries to come as we continue through this legislative session.

Attendees at the midnight showing of the remake of the movie “Paladin – the Gentleman Black Knight” were ambushed at the Orpheum Theater. According to news reports the accused bought a ticket and sat in the audience. He waited until after the movie started and then stepped out where he donned riot gear and re-entered the theater, tossed two gas canisters and began shooting into the crowd.  Subsequent investigation suggested insufficient security for anticipated crowds and a lack of alarm system controls on the emergency exit. Is the business owner liable to its customers who were injured in the shooting?

Owner Liability Issues to Customers

Probably not the customers (employees – a different story – will be addressed next month). While a business owners must take reasonable steps to protect visitors coming onto the property or people coming to do business in their store, for victims successfully to recover compensation they must show that past violent incidents reasonably caused the mass shooting at that particular theatre to be foreseeable. The Orpheum responded to its patrons’ lawsuits seeking a dismissal and argued, “It would be patently unfair, and legally unsound, to impose on the Orpheum… the duty and burden to have foreseen and prevented the criminal equivalent of a meteor falling from the sky.” There was no history of similar events to argue a pattern. There was no communication of a threat. The theater would likely be successful in arguing it could not have reasonably foreseen that a deranged gunman would shoot up the theater because it is no more at risk for a mass shooting than any other venue hosting a large crowd of people. Hiring armed security guards over and above the presence of routine local law enforcement patrols is not an ordinary and customary procedure for suburban movie theaters in relatively low-risk areas.

A pattern of criminal problems, such as repeated robberies at the business or assaults in the parking lot, are generally required for courts to hold businesses liable for a crime on their premises.

Tilting the Scales in Your Favor

Insurance. Up to forty percent of businesses affected by a natural or human-caused disaster never reopen. If this happened at your business, could your business survive? Evaluate your commercial property and business interruption policies as well as reputational and crisis management coverage. For most businesses, the brunt of the insurance response will likely fall under commercial general liability coverage because there is no exclusion for random acts of violence or mass events. You may wish, however, to consider public liability insurance. Because of their high-severity and low-frequency nature, insurance for public liability occurrences is designed to protect from incidents on the premises those public venues and other businesses that frequently bring large crowds – a shooting, a structure collapse, an explosion, a terrorist act. Talk to your insurance agent, and review your existing general liability insurance policies.

Reasonable Precautions. The Department of Homeland Security created a checklist of measures recommended to create a business preparedness program. Generally, those measures are summarized as organize, develop and administer a preparedness program, identify the hazards and assess the risks. Then, implement the plan and address the emergency response, crisis communications, employee assistance and training. Annually test and evaluate the plan using a variety of exercises and scenarios.

SEE ALSO:

• Piece Be With You: CHL at the Workplace
• Liability for Hunting Accidents 

Sam Colt lives in Dallas and is a gun enthusiast.  As a result of a rash of car jackings in his neighborhood, Colt regularly carries a Glock 9mm in his vehicle for self-protection, although he does not have a concealed handgun license.  Driving to his local bank last week, Colt tosses his gun into the passenger seat so that he has easy access to it in the event of an emergency and to dissuade any anyone with bad intent.  Unfortunately, Colt gets stopped for speeding and the officer sees the gun.  Is Colt in trouble?  

Carrying a Gun in the Car

Yes.  Pursuant to the 2009 Texas Motorist Protection Act, Colt does not need a concealed handgun license to carry a handgun in his car.  However, the weapon must be concealed and Colt may not otherwise be:  (1) engaged in committing a crime; (2) prohibited from carrying a weapon; or (3) a member of a gang.  Colt’s violation would be classified as a Class A misdemeanor (the most serious level of misdemeanor) and would be punishable by a fine of $4,000 or less and/or jail time up to a year.  Interestingly, if Colt instead chose to carry a rifle/shotgun in his car, that weapon need not be concealed.

Where Concealled Carry is Prohibited

Now, assume for the moment that Colt has a concealed handgun license.  Could he bring his concealed weapon into his local bank?  Probably.  While the Texas Penal Code specifies many places that one cannot bring a concealed handgun, a bank is not one of them unless the bank has elected to post a sign forbidding concealed carry on the premises.  Types of places where concealed carry is prohibited include, among others:

• Schools or on school buses;
• Polling places;
• Courts and court offices;
• Locations where high school, college or professional sporting events are taking place;
• Nursing homes;
• Amusement parks;
• Places of worship;
• Government meetings;
• Anywhere alcohol is sold if 51% or more of their revenue is from the sale of alcohol;
• Secured airport areas;
• Within 1,000 feet of the premises of an execution on the day of execution; and
• Businesses posting signs prohibiting handguns on their premises based on criminal trespass laws.

Tilting the Scales in Your Favor

The best rule of thumb for those who do not have a concealed handgun license is to always transport your gun in its case in the back of your car.  If you are keeping the gun in your car for safety reasons, then store it in the glove box or under your car seat. 

SEE ALSO:

• Piece Be With You: CHL at the Workplace
• Liability for Hunting Accidents