The new Association of Women Lawyers of the Eastern District of Texas (WLED) was established with the first general order of 2017 issued by Eastern District Chief Judge Ron Clark in recognition of “the large number of outstanding female lawyers who practice in the Eastern District and the contribution they have made and continue to make to the district.”

WLED, an affiliate of the Eastern District of Texas Bar Association, will provide mentoring and networking opportunities for women lawyers practicing in the Eastern District.

Judge Clark appointed Elizabeth “Beth” Forrest from the Plano, Texas, office of Siebman, Burg, Phillips & Smith, LLP, as Chairperson for the WLED Organizational Committee. Amanda Abraham of The Roth Law Firm in Marshall, Texas, has been named Secretary/Treasurer, and Evelyn Chen, in-house counsel at Ericsson in Plano, has been named Vice Chairperson.

Eastern District Judge Marcia Crone of Beaumont, Texas; Eastern District Chief Bankruptcy Judge Brenda Rhoades of Plano; and Eastern District Magistrate Judges Caroline Craven of Texarkana, Texas; Nicole Mitchell of Tyler, Texas; Christine Nowak of Sherman, Texas; and Kimberly Priest Johnson of Plano will serve as the inaugural judicial liaisons to WLED.

“WLED’s goal is to provide a continuing forum where the many experienced women attorneys and judges in the Eastern District can provide advice and moral support to all our members, especially younger trial attorneys,” says Ms. Forrest. “Their insights and our shared experiences will help us develop our careers and assume the mantle of lead trial counsel in an increasingly competitive legal market.”

Membership in WLED is open to anyone who is committed to the group’s ethics and goals and who works toward the success of women trial attorneys, including fostering a deep bench of talented women lawyers as lead counsel in the Eastern District of Texas.

For more information on WLED and to learn how to become a member, contact Ms. Forrest at elizabethforrest@siebman.com.

Legal Aid of Northwest Texas will present the 17th Annual Women’s Advocacy Awards on Wednesday, May 10, 2017, at Arlington Hall at Lee Park, 3333 Turtle Creek Blvd. in Dallas.

The 6-9 p.m. event will include a cocktail reception, a raffle and a silent auction.

Honorees will include AT&T with the Business Leadership Award; Girls Embracing Mothers with the Nonprofit Leadership Award and Barry F. McNeil Louise Raggio Women’s Legal Advocate Award; and Jones Day with the Champion of Justice Award.

Tickets can be reserved on the LANWT’s website.

Theranos Inc. investors accused the company of threatening to file for bankruptcy protection if they don’t agree to give up their rights to sue the firm over its flawed blood-testing business, reports Bloomberg Law.

Reporters Jef Feeley and Caroline Chen write that officials of Partner Investments LP and two other funds, which invested more than $96 million in Theranos preferred shares, said a lawyer representing the privately held medical-testing company suggested it would seek Chapter 11 protection if the investors won’t abandon their lawsuit and accept more equity instead.

Theranos officials have disputed the investors’ claims, saying they discussed the exchange offer with investors before the suit was filed.

“Having said it will no longer sell tests to consumers after running into trouble with U.S. regulators, Theranos and Chief Executive Officer Elizabeth Holmes are fighting for the company’s life,” according to Bloomberg. “It’s facing multiple suits by investors who claim they were misled about the technology and want their money back, and it is refocusing on research.”

Read the Bloomberg article.

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On April 18, 2017, U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt announced that the EPA will convene a proceeding for reconsideration of certain elements of the 2016 rule establishing methane emissions standards for the oil and gas industry, reports Bracewell’s Energy Legal Blog.

Authors Whit Swift and Brittany Pemberton write that the Methane Rule applies to oil and gas facilities for which construction, modification, or reconstruction started after September 18, 2015.

“In particular, EPA will reconsider elements of the fugitive emissions monitoring and repair requirements of 40 C.F.R. § 60.5397a, including the inclusion of low-production wells, and the NSPS Subpart OOOOa provisions relating to approvals for an alternative means of compliance,” they explain.

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Michael I. Goldberg, the SEC appointed receiver in charge of the Jay Peak Resort and Burke Mountain Hotel in Vermont, reached a settlement agreement with Raymond James that will significantly benefit the defrauded investors and creditors of the receivership estate, according to a news release from Akerman LLP.

Under the terms of the settlement, which must be approved by the U.S. District Court for the Southern District of Florida, Raymond James will pay $150 million to the receivership estate and the funds will be used to satisfy the claims of numerous investors and creditors while at the same time allowing the receiver to complete construction of the Jay Peak Resort. The settlement was achieved exactly one year from the date the case began.

The Akerman release continues:

The Jay Peak case involves the largest fraud in the history of the federal EB-5 Immigrant Investor Visa Program. Raymond James allegedly assisted Ariel Quiros, owner of Q Resorts and William Stenger, president and CEO of Jay Peak, a Vermont ski resort owner by Q Resorts, in stealing and misusing millions of dollars raised from hundreds of investors. Raymond James vehemently denied any liability whatsoever. Since July 2016, Goldberg and Raymond James have been engaged in good faith, arm’s-length settlement negotiations. Upon court approval, the settlement will resolve all claims brought against Raymond James and bar any future claims that may arise from the activities associated with the Jay Peak Resort and Burke Mountain Hotel.

Goldberg said, “This settlement would not have been possible without Raymond James stepping up to the plate from the very beginning of this case in an effort to do the right thing. At all times throughout our negotiations, Raymond James acted professionally and honorably in a good faith effort to resolve the litigation. The way Raymond James approached this case is a benchmark for how other firms in a similar situation should handle such a case. I want to further thank my counsel, Jeffrey Schneider of Levine Kellogg and lead class counsel, Harley Tropin and Tucker Ronzetti of the Kozyak Tropin firm for their tireless work in helping me resolve this case and benefitting hundreds of investors and creditors. Finally, I want to thank the officials at the SEC and the State of Vermont for their unwavering commitment to protecting the defrauded investors and creditors since the very beginning of the case and helping us structure a settlement that is in the best interest of the receivership estate and the investors. The SEC’s investigation and lawsuit was the catalyst for this settlement.”

The settlement amount will be utilized as follows:

• $15.3 million will be used to satisfy the promissory notes payable to the investors of Jay Peak Hotel Suites L.P.
• $5.1 million will benefit Jay Peak Hotel Suites Phase II L.P., Jay Peak Penthouse Suites L.P., Jay Peak Golf and Mountain Suites L.P., Jay Peak Lodge and Townhouses L.P., Jay Peak Hotel Suites Stateside L.P. and Q Burke Mountain Hotel and Conference Center, L.P. by satisfying past due trade debt on the Jay Peak Resort and the Burke Mountain Hotel.
• $19.6 million will be used to complete the construction of the Stateside Phase VI project of which up to $2.2 million will be used to satisfy existing contractor liens.
• $67 million will be used to return the $500,000 principal investment each investor made in the Jay Peak Biomedical Research Park L.P.
• $6.6 million will be used to satisfy contractor claims against the Q Burke Phase VIII project and to repay other debt on the Burke Mountain Hotel.
• $10 million will be posted in a separate interest-bearing escrow account and be used if needed to repay up to twenty Q Burke Phase VIII Investors who may not be eligible to apply for permanent residency through the United States Citizenship and Immigration Services’ EB-5 Immigrant Investor Program.
• $1 million will be used to refund the $500,000 investment of two investors in the Q Burke phase VIII whose I-526 petitions were denied prior to the date of the SEC Action.
• $25 million will be set aside to pay the fees of class counsel and other attorneys who brought suits on behalf of individual victims.

Goldberg is co-chair of the Fraud & Recovery Practice Group at top 100 U.S. law firm Akerman LLP. The case of Jay Peak is the largest EB-5 fraud scheme in U.S. history and the $150 million settlement represents the largest recovery of EB-5 investor losses.

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In his Petes’ Take blog for  Porzio, Bromberg & Newman,  Peter J. Gallagher describes a New Jersey case in which a court ruled that a clear arbitration provision, negotiated by a sophisticated party while represented by counsel, is enforceable.

In Columbus Circle NJ LLC v. Island Construction Co., LLC, the appellate court held that the arbitration provision in the AIA contract used in this case satisfied the requirements to explain to the signer the possible consequences of giving up the right to adjudication in a court of law, Gallagher explains.

“By its terms, the provision required plaintiff to choose between arbitration and ‘litigation in a court of competent jurisdiction,’ therefore, when plaintiff chose ‘arbitration,’ it did so ‘with full knowledge that arbitration [was] a substitute for the right to have [its] claim adjudicated in court.’ Moreover, the Appellate Division noted that neither the LLC nor its sole member was ‘an average member of the public,'” according to Gallagher.

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For the past two years, there’s been a new player in the world of employee whistleblower enforcement, writes Evan Gibbs for Above the Law.

In 2015, the Securities and Exchange Commission issued its first administrative order finding that a company violated SEC rules based on language in an employment agreement.

“In the first and only case of 2017, the SEC fined another company $340,000 because its standard severance agreement previously contained a provision in which employees waived recovery of incentive payments from the SEC,” Gibbs writes. “The company received the six-figure fine despite having removed the offending provision on its own in March 2016 as part of the company’s regular review process prior to being contacted by the SEC.third parties unless compelled to do so by law and after notice to the company.”

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Partners at the law firm Chadbourne & Parke, in an unusual public gesture, voted on Thursday to expel from its ranks a female partner who filed a gender discrimination and pay inequity lawsuit against the firm last year, according to a New York Times report.

Campbell argued her case before the partners of the firm, but in a poll of the partnership conducted by telephone, she cast the only vote against expulsion. About 70 partners voted to expel her from the firm, Chadbourne said in a statement.

“On Monday, a federal district judge in Manhattan rebuffed her effort to block the vote, which her lawyers argued was retaliation for her lawsuit, which seeks $100 million and claims that the firm paid female partners less than their male counterparts and denied them advancement opportunities,” reports Elizabeth Olson. “Two other female partners have joined the lawsuit since it was filed in August in Federal District Court in Manhattan.”

Read the NYT article.

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The widow of a partner at the Reed Smith law firm won a $3 million verdict Thursday in a lawsuit against a pharmaceutical company that she blamed for her husband’s suicide, reports The Chicago Tribune.

“Wendy Dolin’s husband, Stewart, stepped in front of a CTA Blue Line train in the Loop on July 15, 2010. He had been taking paroxetine, a drug for depression and anxiety, and his widow claimed in her lawsuit that GlaxoSmithKline failed to warn her husband’s doctor of the drug’s increased risk of suicidal behavior, leading to his death,” writes reporter Grace Wong.

GlaxoSmithKline’s defense was that Dolin was taking a generic version of Paxil, manufactured by another company. But the judge hearing the case released the maker of the generic, saying it had no control of the drug’s label.

Read the Tribune article.

The Alabama Supreme Court has upheld the decision that removed Roy Moore from his position as chief justice, reports AL.com.

Moore was suspended over his administrative order against the issuance of marriage licenses to same-sex couples.

Reporter Kent Faulk writes that Moore can’t appeal the ruling to the federal courts because there are no federal issues at stake.

“Moore also said he would reveal early next week for any plans he may have to run for the U.S. Senate seat now held by former Alabama Attorney General Luther Strange, who was appointed to replace Jeff Sessions who is now U.S. Attorney General,” according to Faulk.

Read the AL.com article.

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A post by Liskow & Lewis on the website of JD Supra discusses a breach of contract case involving the overlay of intellectual property and contract law.

In the case, Luv n’ care, Ltd, a global leader in the design and sale of baby products, filed suit against its former distributor, Groupo Rimar, a.k.a. Suavinex, S.A., for breach of Suavinex’s contractual obligation not to copy any of Luv n’ care’s product designs.

“In defense, Suavinex asserted that the pertinent contract provisions were unenforceable illegal restraints of trade, that patent law precluded Luv n’ care from obtaining patent-like protections over unpatented products offered for public sale, and that the parties’ contract protected only confidential, proprietary designs in which Luv n’ care had a ‘protectable interest,'” according to the post.

The Fifth Circuit rejected Suavinex’s argument that patent law precluded Luv n’ care from protecting unpatented designs available in the public domain.

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By Keli Johnson Swan
Scott & Scott LLP

BSA| The Software Alliance (the “BSA”) is an organization that acts on behalf of software publishers to enforce copyrights. The membership of the organization may undergo changes, which can impact an existing software audit if a member leaves during the course of the audit and the BSA no longer has power of attorney to enforce the copyrights.

The BSA has lost of a few members recently, including Parametric Technology Corporation (“PTC”), Minitab, and TechSmith Corporation. Some publishers choose to enforce their own copyrights, while others elect to engage competing organizations such as the Software & Information Industry Association (“SIIA”) or Software Compliance Group. Recently, the BSA also gained new members, including DataStax, Salesforce, Splunk, and Workday.

The changes to the BSA’s membership may affect the scope of the audit, and a company targeted by the BSA should take the following steps to mitigate its exposure.

1. Review the publishers identified in the initial audit letter

The BSA’s initial audit letter will identify the specific BSA members participating in that particular audit. Although subsequent correspondence will often request the audit include all BSA members listed on its web site, the scope of the audit is limited to the members identified. This is particularly important because the BSA members must choose to participate in each audit. Otherwise an audit target may not be able to obtain a release of liability for potentially infringing software published by the non-participating BSA member.

2. Check Existing License Agreements for Audit Provisions

Once a company receives an audit request from the BSA and confirms the BSA members identified in the initial letter are active members of the BSA listed on its web site, it is important to check existing license agreements for audit rights. Some Microsoft license agreements contain specific audit provisions specifying notice requirements, a third-party auditor, and frequency of any software audits. Often these provisions can supersede the BSA’s requests for those particular products. Many companies request the BSA exclude any software that is bound by a specific audit rights provision in an existing license agreement from the scope of the BSA audit. This tactic often saves significant time and expense. However, Microsoft may opt to engage in an audit directly at a later date.

3. Obtain a release of liability for any non-compliant software

Some publishers are members of more than one third-party agency, and often a company receives more than one audit request governing the same time periods. In any event, if a company is paying to resolve a software audit, that company should get a release for the products in the scope of the audit.

The release of liability may be contingent on remediating any non-compliant software within a specific timeframe outlined in the settlement agreement. Software audits are complex, time-consuming, and burdensome. It is helpful to seek advice from an expert to navigate scoping and other legal issues.

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The bitter child custody trial pitting high-profile internet radio host Alex Jones against his ex-wife has begun in an Austin courtroom. Jones’ attorneys are arguing that the angry, volatile personality evident from his Infowars website and radio show is “performance art” and doesn’t reflect his fitness as a parent, according to a post on the website of Androvett Legal Media & Marketing.

“It’s going to be a fascinating tightrope for him to walk because the jury will have to decide who is the real Alex Jones,” says Austin-based Weisbart Springer Hayes attorney Geoff Weisbart, who is closely following the case. “He may be in a bit of a lose-lose situation because, if successful at trial, that defense could ultimately damage his credibility with his core audience. That’s obviously a risk he’s willing to take.”

Weisbart also notes the court of Judge Orlinda Naranjo is one of the few in the state that allows jurors to submit questions to the witnesses as a part of their testimony. “While the judge has made it clear that the focus is going to be on the best interests of the three children involved, it will be fascinating to see what questions the members of the jury have for Mr. Jones.”

Many construction lawyers who specialize in transactional work acknowledge that they do not spend much time considering or negotiating the arbitration clauses in construction contracts, points out
Patricia H. Thompson in a post on the website of JAMS.

She addresses the question: Should an arbitration clause be just a boilerplate provision, taken “off the shelf,” or should it be specifically negotiated and crafted for the particular construction project and to accommodate the parties’ requirements?

The post lists some of the major questions to consider, such as: Should arbitration be mandatory or permissive? Should there be one or three arbitrators, should they all be neutral, and should they have particular qualifications or professional expertise? Should the arbitrator’s power be broader or more limited than otherwise provided by relevant statutes or rules?

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Winston & Strawn LLP has added three more partners to its litigation team in the firm’s recently opened Dallas office.

In a news release, the firm said Geoffrey Harper, Michael Bittner, and Chad Walker, who join the firm from Fish & Richardson, work in complex commercial, business, and intellectual property litigation matters.

“These lawyers are among the best at what they do and therefore a great fit,” said Tom Fitzgerald, chairman of Winston & Strawn. “We’re committed to building an office that is second to none in Dallas, and this is additional proof of that.”

“I know and have worked with these lawyers for years and their continued presence on our team is good for all of us and wonderful news for our clients,” said Tom Melsheimer, who, along with Bryan Goolsby, will serve as managing partner of Winston & Strawn’s Dallas office. “Litigation can be a battle and that means you want and need the best people around you. And these lawyers are the best.”

The firm’s release continues:

Mr. Harper is a nationally recognized trial lawyer who has first chaired more than 25 trials and arbitrations to verdict. Having litigated in 26 states and 4 countries, Mr. Harper is frequently sought by plaintiffs and defendants to handle litigation in state and federal courts around the globe. He has represented clients in multiple billion and trillion dollar class actions and has achieved numerous multi-million dollar verdicts for clients. Mr. Harper has been recognized on Texas Super Lawyers and Texas Rising Stars lists, and has had several of his verdicts cited as some of the top trial victories of the year. His practice emphasizes complex commercial litigation, including contractual disputes, class actions, securities litigation, intellectual property disputes, employment disputes, arbitrations, and general commercial litigation.

Mr. Bittner’s practice is focused primarily on intellectual property disputes with an emphasis on patent litigation. He is responsible for leading the largest joint defense group ever (over 400 defendants) in the Eastern District of Texas. Mr. Bittner was named a Texas Rising Star in Intellectual Property Litigation by Super Lawyers magazine in 2015, 2016, and 2017.

Mr. Walker’s practice emphasizes patent litigation, qui tam/whistleblower litigation, business litigation, and complex litigation. He has participated in numerous trials, including six where he served as lead trial counsel. Mr. Walker also has technical experience as a co-op engineer in the Software Engineering Group for Lockheed Martin Missiles and Fire Control, and a co-op engineer in the Systems Engineering Group. Mr. Walker was named a Texas Rising Star in Intellectual Property and Business Litigation for the years 2014-2016.

Winston & Strawn entered the Dallas market in February 2017 with an all-star team of 21 partners from eight different firms. Led by Managing Partners Bryan Goolsby and Tom Melsheimer, nearly 50 transactional lawyers and litigators now work in Winston & Strawn’s Dallas office.

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A large patent-holding company called Unwired Planet reached a settlement with Apple at 1 a.m. on Monday, just hours before a jury trial was set to start in San Francisco, reports Ars Technica.

“Unwired Planet is the patent-holding remains of early mobile company Openwave, which acquired several hundred U.S. patents from Ericsson in early 2013, with Ericsson getting 20 percent of any patent settlements. Later that year, Unwired Planet sued Apple,” explains reporter Joe Mullin.

Law360, which first reported the settlement, said that Unwired Planet was seeking $33 million in royalties.

Read the Ars Technica article.

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Fresh allegations this week of misconduct by Fox News host Bill O’Reilly have reduced the likelihood that he’ll return to the network, reports Bloomberg, and now the company has hired law firm Paul Weiss to investigate the claims.

“Pressure is rising on Rupert Murdoch’s 21st Century Fox Inc., the parent of the conservative-leaning news network, to make a decision on O’Reilly’s fate as advertisers flee his show. O’Reilly, the channel’s most popular host, pulls in tens of millions of dollars a year in ad revenue, “writes Anousha Sakoui. “The network has said he’ll return to his show April 24 after a previously scheduled vacation.”

Marc E. Kasowitz is the lawyer representing O’Reilly during his legal trouble.

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Above the Bar reported recently that Florida’s bar passage rate was an abysmal 57.7 percent for the February exam, but now they can report that another state has taken over the uncoveted distinction of having the worst exam results in the U.S.: Mississippi.

“Few things are certain in this life, but one of them is that Mississippi will find a way to be worse at everything,” writes Joe Patrice. “After Florida posted a 57.7 percent passage rate for the February exam, Mississippi pulled up and delivered a glorious 36 percent passage rate.”

Patrice puts much of the blame for falling passage rates on declining rates at schools across the country. “While many have begun the process of course correction — bringing in smaller, more credentialed classes — we’ve still got a few more years of this trend ahead of us,” he writes.

Read the Above the Law article.

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Bloomberg Big Law Business is convening leaders of corporate legal departments and law firms to address the diversity and inclusion challenge at a unique invitation-only event – the 4th Big Law Business Diversity Symposium.

The event will take place 8-10 a.m. Wednesday, May 10, 2017, at Bloomberg Government, 1101 K St NW, Suite 500, in Washington, DC 20005.

Request your invitation today to attend sessions such as:

Leading the Profession: Success Stories
Corporate legal departments see the most successful relationships when their goals and their law firm’s priorities are aligned. Hear how peers are approaching this effort and measuring success.

Inspiring Accountability: A Workshop
Big Law Business will facilitate a workshop on how to have the tough conversations on accountability for diversity and inclusion measures. Explore solutions to inspire leaders to create the incentives, models, and structures to increase diversity and stronger inclusion of ideas and skills in the profession.

Symposium Wrap-Up
Accountability measures that resonate: how the workshop results match back to traditional measurements of progress in the diversity of the legal profession.

The event is sponsored by Major, Lindsey & Africa and Quarles & Brady.

Request an invitation.

The National Association of Corporate Directors has published a guide that reviews the three main indicators of an effective partnership between the general counsel and the board. The guide is available for free downloading.

Those three indicators include:

• aligned role expectations
• open and direct communication
• enhanced dialogue on risk oversight

Over the past few years, the role of the general counsel has grown in both scope and stature, the NACD says on its website. Once seen purely as legal advisors, many general counsel now spend much of their time serving as strategic advisors, regularly providing strategic direction to the CEO and to the board of directors.

General counsel should recognize that directors’ expectations of them go beyond their traditional legal role and that their unique legal and ethical perspective strengthens their ability to help mitigate organizational risk.

Download the guide.