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New York will seek to question top Exxon Mobil Corp. executives under oath as part of a probe into the accuracy of the company’s statements about climate change after discovering an email alias used by former Chief Executive Officer Rex Tillerson, according to a Bloomberg report.

“Tillerson, now U.S. Secretary of State, used the name Wayne Tracker for his secondary internal email account at Exxon, created for sending the most sensitive messages to and from company board members, including communications about the risks associated with climate change, New York Attorney General Eric Schneiderman said Monday,” writes reporter Erik Larson.

Carl Barnes, a former corporate general counsel who’s a lawyer at Morse, Barnes-Brown & Pendleton PC, told Larson that someone in Exxon’s general counsel’s office knew or should have known about the alias account.

Read the Bloomberg article.

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Employees of Monsanto ghostwrote scientific reports that U.S. regulators relied on to determine that a chemical in its Roundup weed killer does not cause cancer, farmers and others suing the company claimed in court filings, according to a Reuters report.

Monsanto is involved in a mass litigation in federal court in San Francisco claiming the company failed to warn that exposure to Roundup could cause non-Hodgkin’s lymphoma, a type of cancer, writes Reuters’ Brendan Pierson.

“Plaintiffs claim that Monsanto’s toxicology manager ghostwrote parts of a scientific report in 2013 that was published under the names of several academic scientists, and his boss ghostwrote parts of another in 2000,” Pierson reports.

Read the Reuters article.

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ABC News moved closer to a jury trial in South Dakota after a judge there moved along a lawsuit alleging that the network defamed Beef Products Inc. in its coverage of a meat product called lean, finely textured beef, which critics have dubbed “pink slime,” reports The Hollywood Reporter.

“BPI claims $1.9 billion in damage with the possibility the amount could be tripled if the plaintiff can prove ABC News knowingly lied about the safety of a food product,” writes reporter Eriq Gardner. “The plaintiff has previously scored wins in keeping the case in a state court and then prevailing against First Amendment arguments on a motion to dismiss.”

A jury “could determine that there is clear and convincing evidence that ABC Broadcasting and [reporter Jim] Avila were reckless,” the judge ruled.

The judge provided ABC News, a unit of Disney, with one piece of good news: the court dismissed claims against anchor Diane Sawyer, Gardner reports.

Read the Hollywood Reporter article.

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By Christopher Barnett
Scott & Scott LLP

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Oracle maintains what I consider to be the most aggressive audit program of any major software publisher. Its licensing rules can be extremely difficult to understand, and they frequently are not clearly stated in the applicable license agreements. Moreover, Oracle’s License Management Services (LMS) team typically is unforgiving when it comes time to apply those rules, and it often uses Oracle’s ambiguous license terms and confusingly constructed contracts to prepare audit findings that can cause heart palpitations for business owners.

Companies that have been audited by Oracle can (and sometimes do) attest to its distinctiveness in this regard. Among other publishers, Microsoft is similarly inflexible in the application of its license rules, but those rules generally are more clearly stated and accessible for software asset management teams. Conversely, IBM’s licensing rules can be even more byzantine than Oracle’s, but my experience is that it often is more willing to work toward a fairer compromise when an audited company can point to mitigating factors that resulted in audit shortfalls. In contrast, Oracle really does seem to be unique in insisting on rigid and uncompromising application of unreasonably complex licensing rules and metrics.

Oracle’s audit practice also is noteworthy for the fact that it usually conducts all of its audit in-house, through LMS. By contrast, Microsoft, IBM and many other publishers often work with officially impartial, third-party accounting firms, such as Deloitte, KPMG, PwC and E&Y, to conduct their reviews. Participation of such external fact-finders typically affords a better opportunity to provide meaningful clarification and comment before the publishers receive the audit findings.

Given those facts, business and IT leaders of companies that have invested in any quantity of Oracle software products need to pay special attention to their usage of those products, and they also need to be mindful of what to expect when Oracle eventually pulls their number eventually for an audit by LMS. Here are some of the most important audit risks to keep in mind when using Oracle products:

Tread Carefully When Virtualizing – Oracle’s requirements when using its products in virtualized environments can be daunting, depending on the hardware where the Oracle solutions are to be deployed. Oracle allows its licensees to us “Hard Partitioning” to limit the number of software licenses required for a server or a cluster of servers. However, while Hard Partitioning may mean different things to different IT administrators, it means a set of specific requirements for Oracle, all of which must be carefully controlled in order to avoid unpleasant licensing surprises. In particular, Oracle does not recognize any VMware technology as a satisfactory “Hard Partitioning” technology, even though VMware is a recognized market leader for virtualization solutions.

Here are the requirements set forth in Oracle’s current Partitioning Policy:

1. You must use Oracle-approved technologies to hard-partition your servers. Those technologies currently include the following:
   • Physical Domains (also known as PDomains, Dynamic Domains, or Dynamic System Domains),
   • IBM’s LPAR (adds DLPAR with AIX 5.2),
   • IBM’s Micro-Partitions (capped partitions only),
   • vPar,
   • nPar,
   • Integrity Virtual Machine (capped partitions only),
   • Secure Resource Partitions (capped partitions only),
   • Fujitsu’s PPAR,
   • Solaris Zones (also known as Solaris Containers, capped Zones/Containers only) (provided additional requirements are satisfied), and
   • Oracle VM Server (provided additional requirements are satisfied)
2. If the software is to be deployed on certain Oracle Engineered Systems, then the licensee needs to use Oracle VM Server and Oracle Enterprise Manager (OEM) to set up and report on “Trusted Partitions” where the software will be running. OEM can be deployed in either “Connected” or “Disconnected” mode: in the former, OEM reports on software usage directly to My Oracle Support, while in the latter the licensee is required to generate quarterly usage reports and to retain those reports for at least two years.
3. In every case where an Oracle technology is to be used as a Hard Partitioning technology, it is necessary to follow Oracle’s technical instructions for the use of that technology:
   • Oracle Solaris Zones
   • Oracle VM Server for x86
   • Oracle VM Server for SPARC

Failure to adhere to Oracle’s requirements can result in the virtualized environment being licensed for installed Oracle products based on all physical cores used to support the infrastructure, even if there is only one VM running the product on a single host in a virtualization cluster. Never mind the fact that this effective prohibition on the use of VMware with Oracle products may not be mentioned anywhere in the applicable license agreements or in any document incorporated in those agreements. In effect, LMS merely applies the assumption that since VMware makes it so easy for VMs to migrate to other hosts, the processors on those hosts must be licensed for the Oracle software.

Know What is Installed and Running – Another favorite tactic is to surprise customers with licensing fees associated with product options that the company never actually used. Many Oracle products – such as its ubiquitous Database software – are deployed from installation files that include a catalog of added-cost options and packs. Those options sometimes inadvertently may be enabled during the installation process or at some point thereafter and then turned off without ever having been used. However, the software’s usage logs record the enabling of the options, and that log data often is among the information demanded by LMS during an audit. If LMS determines that the options were enabled at any time – even if only once, seven years or more before the audit data were collected – it is common for those options to be included among the audit findings.

Companies using Oracle Database products therefore are well-advised to work with knowledgeable consultants when setting up their systems, to ensure that only those product features licensed and intended to be used are enabled on the company’s computers. To the extent that Oracle products have been running in the environment for some time, it may be worthwhile to undertake an initiative to confirm what is currently enabled and what the logging date say about the options that may have been enabled in the past.

Know How to Scan – Finally, Oracle audits also are noteworthy for the limited set of tools that LMS will accept as sources of audit data. The auditors’ first choice is always a set of proprietary LMS scripts and other tools that it will make available to the company at the outset of the review. However, those tools do not generate outputs in a format that is easy for anyone other than Oracle to review, so companies that use them may not know what they are telling LMS about the environment. We typically do not recommend that our clients share any deployment information with any auditor without first reviewing that information internally for accuracy and completeness.

Fortunately, LMS also accepts outputs from a limited number of third-party tool providers, as follows:

• Easytrust
• Flexera Software
• Hewlett Packard Enterprise
• iQuate
• Lime Software
• Nova Ratio

However, the tools published by those vendors typically are not free for larger organizations to use. Furthermore, even though they may gather information that LMS is willing to accept, they may not gather all of the information that LMS says it requires to complete an audit.

Therefore, it is a wise practice for companies using Oracle products to consider engaging and periodically working with a knowledgeable, third-party Oracle licensing consultant as a necessary cost of business for using Oracle’s products. Many consultants have experience working within LMS, and they typically can provide insights regarding the best tools and methodologies for staying on top of how many Oracle products require licensing within an environment.

The National Association of Corporate Directors will present a complimentary webinar on reassessing the evaluation process on evaluations on director performance. The event will be Thursday, March 23, at 2 p.m. EDT.

“Given the increased emphasis on director performance, board evaluations have become commonplace in the boardroom over the last few years,” NACD says on its website. “The benefits of the evaluation are clear, including improving performance around identified opportunities, reviewing board composition relative to strategy, and communicating board effectiveness more effectively to shareholders. It is important, however, to periodically reassess the evaluation process to incorporate new leading practices and prevent complacency.”

Presenters will discuss how other boards:

• Align their evaluation process with the company’s strategy
• Incorporate peer-to-peer reviews
• Keep board members engaged in the evaluation process

Register for the webinar.

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All companies are susceptible to claims based on workplace violence, writes Natalie Lynch of Lynch Law Firm in Austin. Due to deeply-rooted legal principles, employers can be held liable for the acts of their employees, even when such acts are intentional and not within the scope of employment. Workplace violence can take on many forms, making it essential for employers and HR professionals to know how to identify it and prevent it.

In an article posted on her website, she covers topics such as defining workplace violence, effects of workplace violence, risk factors.

She also offers some suggestions to prevent violence in the workplace, including: implement an anti-workplace violence program, encourage reporting, assess the worksite, provide safety training, provide communication devices, maintain work vehicles, and consider security.

Read the article.

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A Texas woman is suing a railroad and a bus company for the death of her father who was killed when a freight train slammed into the tour bus carrying him and other senior citizens, according to a post on the website of Androvett Legal Media & Marketing.

Kenneth Hoffman, 82, and three other people died in the March 7 accident in Biloxi, Mississippi. The bus was headed from a Bastrop, Texas, senior center to Boomtown Casino in Biloxi. The charter bus got stuck at a train crossing known to be hazardous for long vehicles and marked with a warning sign.

The lawsuit was filed March 10 in Dallas County State District Court on behalf of Hoffman’s daughter Kimberly Chapman of Lockhart, Texas. Defendants include Echo Tours and Charters and CSX Transportation Inc. among others. Representing Chapman is Houston lawyer Larry Wilson of Lanier Law Firm, one of the country’s premiere personal injury firms. Wilson, who specializes in transportation accidents, says:

“This tragedy should have never happened. It’s horrifying that a charter bus would ignore a warning sign and get high-centered on the tracks. CSX could have implemented policies relating to speed and procedures that greatly reduced the risk of a catastrophe like this.”

The case is Kimberly Kay Chapman v. Echo Tours and Charters, LT DBA Echo Transportation; TBL Group Inc.; Diamond Tours Inc. and CSX Transportation, Inc., Case DC-17-02924, filed in Dallas County District Court.

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Above the Law is reporting on another big layoff of BigLaw staff, asking the question: Has the Great Associate Pay Raise of 2016 ushered in the Not-So-Great Staff Layoffs of 2017?

David Lat writes that “approximately 60 staffers at Dentons were informed that [March 10] would be the last day at the firm. We heard from a number of the affected individuals, and some of them speculated that the layoffs were caused in part by the need to trim expenses in the wake of increased costs for associate compensation.”

Lat’s reporting found that the cuts appear to be centered on support staff. Also, bonuses and raises expected for remaining staff on April 1 will be delayed.

Read the Above the Law article.

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Only months after the Environmental Protection Agency first contacted thousands of oil and gas companies demanding detailed information regarding methane releases from gas production facilities and related equipment, it has announced that the companies are “no longer required to respond,” reports Akin Gump in its AG Deal Diary.

in 2016 the EPA announced that it planned to send requests for information to approximately 15,000 oil and gas companies involved in onshore production, gathering and boosting, gas processing, transmission, storage and liquefied natural gas import/export. The agency wanted the information to “help the agency determine how best to address methane emissions from the oil and gas industry, including through rulemaking to reduce emissions.”

Now the EPA has announced: ““EPA has withdrawn the 2016 information request for the oil and gas industry, effective immediately. If you received a letter requiring you to fill out a survey, you are no longer required to respond.”

Akin Gump’s David H. Quigley, Christine B. LaFollette and Charles L. Franklin wrote the article.

Read the article.

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Buchalter announces the addition of new shareholder J. David Hitchcock to its Los Angeles office. Hitchcock joins Buchalter’s Real Estate practice from his previous role as partner at Kennerly Lamishaw & Rossi, LLP.

Hitchcock works in real estate acquisitions and dispositions, leasing, loan workouts and restructurings, loan sales, secured real estate finance, joint ventures, and general real estate matters. He has represented clients in cases involving private equity funds, real estate developers, core and value-add real estate owners/operators, public school districts, as well as publicly traded REITs.

Hitchcock received his B.A. with honors from the University of Chicago in 1993. He earned his J.D. from the University of Southern California Gould School of Law where he was Order of the Coif and Articles Editor for the University of Southern California Law Review.

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Akerman LLP announced the the addition of partners Allison Nelson and Lori Albert and associates William Garehime and Kelly Adams from Fennemore Craig to the firm’s Real Estate Practice Group.

In a release, the firm said:

“Growing client needs across the real estate and construction sector continue to drive the expansion of our practice,” said Richard Bezold, chair of Akerman’s Real Estate Practice Group, which is ranked sixth by Law360 among the largest teams of real estate lawyers in the United States. “Allison leads a highly skilled team who operate at the intersection of the real estate and healthcare economies. These lawyers add important depth to our national and local capabilities as shifting federal and state policy agendas produce new opportunities and challenges for our clients.”

“We are thrilled to welcome Allison and her team to the Denver office, where we have diverse practices in the financial services, real estate, healthcare and life sciences sectors,” said Justin Balser, Akerman’s Denver office managing partner. “Their deep experience in complex transactions and compliance investigations will provide immediate value to our clients in Denver and nationwide.”

Nelson focuses her national practice on the representation of public and private healthcare systems in complex real estate transactions and joint-ventures, and in mergers and acquisitions. She partners with clients to construct and improve legal, business, and compliance systems to manage their U.S. healthcare real estate portfolios and navigate through real estate compliance investigations by the U.S. Office of Inspector General. Nelson also regularly represents commercial developers in refinancing and acquisition of Colorado properties.

Prior to Fennemore Craig, Nelson was the chair of the real estate transactions practice group at Polsinelli where she served as lead real estate counsel in the $1.2 billion acquisition of a five-campus hospital system in Houston, Texas.

Albert represents national healthcare organizations, as well as Fortune 500 companies, developers, and investors in acquisition, disposition, and financing transactions involving all types of real estate. She has negotiated numerous leases, subleases, and other lease-related transactions for healthcare providers, and ensures such arrangements are compliant with the Stark Law, Anti-kickback Statute, and other federal and state healthcare regulations. In the community, Albert serves on the Denver Metro Chamber of Commerce Infrastructure Committee.

Real estate associates Garehime and Adams also principally focus their practice on healthcare real estate transactions. As a group, Nelson, Albert, Garehime and Adams are responsible for closing more than 500 healthcare leasing, development and acquisition projects annually across the United States.

Denver marks the latest growth for the firm’s Real Estate Practice Group. Akerman previously welcomed a real estate and land use team in Los Angeles led by partner Ellen Berkowitz from Gresham Savage; real estate litigation partner Michael Weiss from Lewis Brisbois in Los Angeles, hospitality litigation partner Joshua Bernstein from Pryor Cashman in New York and real estate transactional partner Thomas Diorio from Nixon Peabody in New York.

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Dykema Cox Smith announced the addition of IP lawyerVan Lindberg to its Intellectual Property group in the firm’s San Antonio office. Lindberg will be focusing his practice on the intersection of technology and law.

Lindberg was most recently Vice President of Intellectual Property at Rackspace, where he led Rackspace’s defense against patent trolls and worked to end patent law abuse. Lindberg also played a role in Rackspace’s relationships with open source communities, serving as Rackspace’s representative before the OpenStack Foundation, Linux Foundation, and on the advisory board for Docker, Inc. He also served as its Vice President of Technology, developing and leading a technical executive program for the most highly skilled tech employees across all business units and advising on the company’s technical strategy.

“I’m excited to join Dykema,” said Lindberg. “The firm impressed me with both the depth of its team as well as its devotion to client service.”

In a release, the firm said:

Lindberg was named as one of “America’s Top 12 Techiest Attorneys” by the American Bar Association in 2012, and is author of the book Intellectual Property and Open Source. He is a former Chairman and current General Counsel and Member of the Python Software Foundation Board of Directors.

“Van’s reputation and extensive background precede him,” said Dan Harkins, Office Managing Member of Dykema Cox Smith’s San Antonio office and member of the firm’s IP group. “We’re obviously thrilled that he’s joining us. His deep knowledge and experience in patent and technology transfer matters, combined with his highly technical experience in the world of open source software, will be of great benefit to not only our clients, but to the entire firm as well.”

Prior to his work with Rackspace, Lindberg was with Haynes and Boone, LLP, representing companies in high-stakes patent litigation and inter partes review proceedings. Lindberg received his J.D. and a B.S. in both Computer Engineering and History from Brigham Young University.

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A Travis County jury has returned a verdict against Chicago Title of Texas, LLC and other real estate-related businesses, finding they defrauded a young Danish woman of all proceeds from the sale of her $1.35 million condominium at the exclusive Residences at W Austin, according to a post on the website of Androvett Legal Media & Marketing.

The scheme involved a falsified power of attorney to execute contracts and closing documents in the sale of the condo, and a forgery in connection with a subsequent sale of a promissory note.

The Androvett post continues:

Mari-Louise Larsen, a Danish citizen, filed the breach of fiduciary duty and fraud claim in 2013 against her estranged husband, Andre Jones, an Austin-area resident, as well as Chicago Title and the other firms. Larsen, now 30, first met Jones in Austin’s Sixth Street entertainment district while visiting the area in 2007. After a long-distance courtship, the couple married in Denmark in 2009.

While in Denmark and waiting to move to Austin, Larsen testified she agreed to buy the luxury high-rise condo in Austin with funds from a family inheritance. However, Jones convinced her that Texas law required the names of both spouses to be on the title, despite the fact it was her separate property. Larsen and Jones later decided to divorce and sell the property. Jones then convinced Chicago Title’s contracted fee attorney, Wally Tingley, to use falsely notarized documents to close the sale without his wife’s knowledge. Jones pocketed all of the profits as the marriage deteriorated.

“This is a case of a con artist taking advantage of a wealthy young woman and actively working with others to violate the law and professional standards in the real estate industry,” said Larsen’s lawyer, Brian N. Hail of Gruber Elrod Johansen Hail Shank LLP in Dallas. “As acknowledged by Chicago Title and its fee attorney, this was one of the worst real estate transactions anyone has ever seen.”

Hail believes the jury’s finding that Chicago Title is responsible for the actions of its fee attorneys may have significant implications on future litigation involving the real estate industry.

“The jury finding that Chicago Title is vicariously liable for its fee attorney, due to the control it exerted throughout the entire transaction, may call into question the company’s entire business model of attempting to delegate closing and escrow responsibilities in the Texas market, and perhaps nationwide.”

In addition to Chicago Title and Jones, the Austin firm of Wally Tingley & Associates, P.C., and Austin-based JTREO, Inc. were found liable in the scheme.

Hail plans to file a proposed final judgment order of more than $3.7 million in Travis County’s 419th District Court. The order will be based on a request for all proceeds from the condo sale, in addition to pre-judgment interest and costs. Punitive damages were assessed against Jones in the amount of $2 million.

The case is Larsen v. Jones, et al., No. D-1-GN-13-004321. Ms. Larsen is represented by Brian N. Hail, Brian E. Mason, and Gaby Gutierrez Rawlings.

The 8th U.S. Circuit Court of Appeals issued an opinion reminding employers that they cannot contract out of the Worker Adjustment and Retraining Notification Act (WARN) obligations requiring employers to provide 60 days’ written notice to employees of a plant closing or mass layoff, according to a post on the website of Winston & Strawn LLP.

In Day v. Celadon Trucking Services, Inc., the circuit court held that the purchaser of a business, Celadon Trucking Services Inc., was responsible under the WARN Act for providing notice of a mass layoff to more than 400 employees, even though Celadon never hired or fired those employees, the sales agreement characterized the transaction as a sale of assets, and stated that the seller, Continental Express Inc., was solely responsible for providing the WARN notices.

Steve Sheinfeld and Jeffrey Salomon wrote the article.

Read the article.

With Donald Trump in the White House, pro-business groups see an opening for a series of bills moving through the House that would discourage class actions and generally make it harder to sue businesses, reports Bloomberg Businessweek.

One bill would restrict plaintiffs’ attorneys’ fees to a percentage of the amount actually distributed to the class, writes Paul Barrett. “That could effectively kill off suits that seek a change in corporate behavior and pay class members little or nothing in damages.”

Professor John Coffee Jr. of Columbia Law School wrote on his Blue Sky Blog that a proposed restriction barring plaintiffs’ firms from repeatedly representing the same client in class actions “seems either a death sentence for the large plaintiffs’ firm or the end of large public pension funds serving as lead plaintiff.”

Read the Bloomberg article.

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The owners of a Washington, D.C., wine bar have filed suit against President Trump and the Trump International Hotel, claiming that the hotel’s restaurants enjoy an illegal advantage in the city’s restaurant market because of their association with Trump.

The New York Times reports that the owners of  the popular Cork Wine Bar claim that their business has suffered as a result of that association.

Niraj Chokshi writes that the bar’s owners are not seeking monetary damages. “But the suit, filed in District of Columbia Superior Court, offers a few improbable ways to resolve the issue: The hotel can stop operating; Mr. Trump and his family can fully divest from the business; or Mr. Trump can resign from office,” according to the article.

Read the NYT article.

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A Miami defense lawyer’s pants burst into flames Wednesday afternoon as he began his closing arguments in front of a jury — in an arson case, reports The Miami Herald.

Stephen Gutierrez, who was arguing that his client’s car spontaneously combusted and was not intentionally set on fire, had been fiddling in his pocket as he was about to address jurors when smoke began billowing out his right pocket, reporter David Ovalle writes, quoting witnesses.

The report says Miami-Dade Circuit Judge Michael Hanzman, in the coming days, could decide to hold Gutierrez in contempt of court.

Read the Miami Herald story.

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In a recent client alert, Reed Smith offers tips for dealing with audit provisions involving payment of a license fee or royalty.

Audit provisions are commonly found in commercial contracts, write Carolyn E. Pepper and Matthew Y. Kane.

“They are often not the clauses which attract the most attention during contract negotiations. However, they are important clauses which warrant careful consideration,” according to the authors.

They then list 10 points that need to be considered when dealing with such clauses.

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Barry Moltz, writing in Nextiva’s blog, warns that too many small business owners gloss over important terms in contracts they sign.

This can cause a problem later in the relationship if they are not properly negotiated, Moltz writes. He discusses the areas that all companies should look for to protect themselves before signing any agreement.

The areas involve: dollars and timing of payments, non-competes, ownership of work, actual contracted parties, penalties if things go wrong, and liability and indemnity.

Read the article.

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Much Shelist, P.C. has published an article reviewing the three most commonly used payment mechanisms in construction contracts and the benefits and drawbacks of each.

David A. Eisenberg discusses at length the benefits and drawbacks of fixed price, or lump sum payments, which he calls “perhaps the simplest and most commonly used payment mechanism.” Then he examines cost-plus contracts, in which the owner agrees to pay the contractor for its actual costs incurred in performing the work, plus a predetermined fee.

Finally, the covers the guaranteed maximum price, in which the owner is responsible for paying the contractor’s costs up to a certain cap. It is essentially a cost-plus contract with a cap.

Read the article.