The Best Lawyers in America has named 13 attorneys from Beaumont, Texas-based Provost Umphrey Law Firm, L.L.P., among the country’s best, including firm partner D’Juana Parks, who was named the city’s top lawyer for plaintiffs’ personal injury cases.

Provost Umphrey has represented people in cases involving serious personal injuries, wrongful death and unfair business practices for more than 40 years, the firm said in a release. Their clients include victims of toxic exposure, dangerous pharmaceutical drugs, defective products, unsafe workplaces, runaway 18-wheeler accidents, unfair payment schemes and many others.

In addition to Parks, Provost Umphrey partners Bryan O. Blevins Jr., Edward Fisher, Joe J. Fisher II, James E. Payne and David P. Wilson were named among the country’s best in their respective practice areas.

The firm’s release continues:

Firm attorneys Aaryn K. Giblin and Colin D. Moore earned selection based on their work in plaintiffs’ product liability litigation. Fellow firm attorney Christopher T. Kirchmer was named to the exclusive guide for his representation of plaintiffs in mass tort litigation, class actions, and personal injury and product liability litigation. Matthew C. Matheny earned high marks for his work on behalf of plaintiffs in mass tort litigation, class actions and personal injury litigation. Darren L. Brown was recognized for his work for plaintiffs in personal injury and product liability litigation. J. Keith Hyde earned a spot based on his work for plaintiffs in personal injury cases.

Firm founder Walter Umphrey also was named to Best Lawyers, marking the 25^th year he has earned the prestigious honor. The 2017 Provost Umphrey honorees, including every equity partner in the firm, represent a combined 60 years of Best Lawyers recognition for excellence and success.

Best Lawyers is widely recognized as one of the leading guides to the U.S. legal profession by ranking the nation’s leading lawyers in various practice areas based on exhaustive peer-review surveys submitted by tens of thousands of the top attorneys from across the country. 

By Christopher Barnett
Scott & Scott LLP

On July 28, Oracle announced that it had entered into an agreement to acquire NetSuite for approximately $9.3 billion. NetSuite was founded in 1998 and is one of the very first, enterprise-level, cloud-services providers, delivering various, hosted enterprise resource planning (ERP), customer relationship management (CRM), e-commerce and professional services automation (PSA) solutions to its customers.

Oracle and NetSuite have a long relationship, though that relationship in the past may not have been apparent to NetSuite’s customers. Early in its history, NetSuite received $125 million in initial financial backing from Oracle founder Larry Ellison, and the Ellison family owned nearly half of NetSuite’s common stock as of 2014. NetSuite also traditionally has been based on an infrastructure that is reliant on Oracle Database.

However, with Oracle now set to formally acquire the company, NetSuite’s customers soon may notice some pretty significant changes, at least on the purchasing and contracting side. Oracle sells its existing cloud services generally subject either to its standard-form Cloud Services Agreement (CSA) or to a cloud-services schedule to its standard-form Master Agreement (OMA). Both the CSA and the OMA contain terms that are notoriously pro-Oracle in many important respects, including confidentiality protections, limitations of liability and audits. By contrast, NetSuite’s current Terms of Service document takes a more balanced approach, including:

• Identifying all electronic data or information submitted to and stored in the NetSuite service as “Confidential Information,” subject to the agreement’s non-disclosure provisions.
• Excluding indemnification obligations from the agreement’s limitation of liability and subjecting confidentiality claims to double the monetary liability cap applied to other kinds of claims.
• No audit rights in favor of NetSuite.

Once NetSuite’s formal assimilation into Oracle’s cloud services business is complete, we would expect to see Oracle insist on applying the standard-form CSA or OMA to new or extended NetSuite service orders.

Current NetSuite customers therefore should work closely with their legal counsel to scrutinize the terms of their current NetSuite agreements in advance of any new or renewal NetSuite orders. Those efforts will better equip them to seek appropriate amendments to the CSA or the OMA in the event that Oracle refuses to process the orders under the legacy agreements. In addition, companies that may be considering getting started with NetSuite in the future may want to consider saving a copy of the current NetSuite Terms of Service (available publicly with other, service-specific terms at the above link), so that they can remain mindful of the terms that have historically applied to NetSuite’s offerings.

Gardere Wynne Sewell LLP has received the highest composite score of all reporting firms in the 2015 Law Firm Diversity Report Card, issued by the Austin Minority Bar Associations and the Travis County Women Lawyers Association, the firm has announced. For the third consecutive year, the firm also earned an “A” grade for its exceptional diversity recruitment, hiring and retention efforts.

“Diversity in the workplace, generally, results in a stronger organization,” says firm Chair Holland N. O’Neil. “A stronger organization just makes good business sense. We applaud all the firms who received high marks on the report card. This is an important barometer to Gardere, and we intend to strive to do even better in future years.”

The firm’s release continues:

The report card is issued annually by the Hispanic Bar Association of Austin, the Austin Black Lawyers Association, the Austin Asian American Bar Association, the South Asian Bar Association of Austin and the Austin LGBT Bar Association. For the first time, the bar associations have partnered with the Travis County Women Lawyers Association to include data on the hiring, retention and promotion of women at major law firms in the Austin area.

This year, the Diversity Report Card Committee requested information from 28 of the largest law firms in Austin, of which 24 submitted responses. These 24 firms were then evaluated and provided a grade based on their percentage of minority attorneys and partners. The committee also factored in data on attorneys who are openly lesbian, gay, bisexual or transgender. In addition, grading is weighted in favor of law firms that have larger numbers of minority partners to reflect the importance in developing, promoting and retaining those attorneys. Only 11 of the 24 firms that responded received an “A” grade on the report card. The committee issued a separate report on the number of women associates, non-equity partners and partners at each of the 24 firms.

Gardere was proud to sponsor the DRCC’s 2015 Law Firm Report Card Reception on Tuesday, Aug. 9 in the firm’s Austin office. More information about the Austin Law Firm Diversity Report Card and access to the full results can be viewed at: http://www.hispanicbaraustin.com/hbaa-committees/law-firm-diversity.html.

Houston trial law boutique Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C., or AZA, once again is being recognized as one of Texas’ top commercial litigation firms after earning a spot in the 2016 edition of Chambers USA: America’s Leading Lawyers for Business.

In addition to being ranked as a top Texas firm, AZA partners Joseph Ahmad, Demetrios Anaipakos, John Zavitsanos and Todd Mensing received individual recognition from Chambers USA.

In the firm’s Chambers USA profile, AZA lawyers are described as, “Robust litigation specialists with a fast-growing reputation as a feared opponent for established national firms. Especially strong experience in representing clients in the technology and energy arenas.”

Published by London-based Chambers and Partners, Chambers USA is known worldwide for its thorough guides to the legal profession.

Read more about the announcement.

A federal appeals panel in Chicago has tossed out a settlement intended to end a shareholder class action brought over the Walgreens Boots Alliance merger, saying the lawsuit and related settlement did nothing more than contribute a quick $370,000 payment to the plaintiffs’ lawyers, reports the Cook County Record.

“The type of class action illustrated by this case — the class action that yields fees for class counsel and nothing for the class — is no better than a racket,” wrote Judge Richard Posner in the unanimous decision. “It must end. No class action settlement that yields zero benefits for the class should be approved, and a class action that seeks only worthless benefits for the class should be dismissed out of hand.”

The firms representing the plaintiffs were Pomerantz LLP, of Chicago and New York; DiTomasso Lubin P.C., of Oakbrook Terrace; Friedman Oster PLLC, of New York; Law Office of Alfred G. Yates Jr. P.C., of Pittsburgh; and Levi & Korsinsky LLP, of New York, reports Jonathan Bilyk.

Read the article.

Fitch, Even, Tabin & Flannery LLP will present a free webinar, “European Patent Filing Strategies: Choosing the Appropriate Option,” presented by Rudy I. Kratz and Tony Wray. The webinar will take place on Tuesday, August 30, 2016, at 9 am PDT / 10 am MDT / 11 am CDT / 12 noon EDT.

A number of patent filing strategies are available in Europe. Patent applications may be filed at the European Patent Office (EPO) and at national patent offices such as the UK Intellectual Property Office (UKIPO) and the German Patent and Trade Mark Office (DPMA). Utility model applications are another form of intellectual property protection that can be pursued in certain countries. Each option has its advantages and disadvantages, and some approaches may be more appropriate in certain circumstances based on cost and other concerns. Recent developments may also have an impact on which filing strategy makes the most sense.

The webinar will address the following topics:
• Summary of filing considerations at the EPO, UKIPO, and DPMA
• Advantages and disadvantages of specific filing strategies
• Effect of the UK vote to leave the European Union and the status of the Unitary Patent

CLE credit has been approved for California and Illinois and is pending in Nebraska. Other states may also award CLE credit upon attendee request.

Following the live event, a recording of the webinar will be available to view for one year at fitcheven.com.

Register for the webinar.

HR Daily Advisor will present a complimentary webinar discussing what the overtime changes mandated by the U.S. Department of Labor FLSA mean for employers and recommend strategies for meeting these new challenges.

The event, sponsored by Kronos, will be Thursday, August 25, beginning at 2 p.m. EDT.

The overtime changes will extend overtime pay protections to more than four million American workers, HR Daily Advisor says on its website. The implications are enormous, affecting everything from job classifications and time tracking to compensation and compliance policies.

Register for the webinar.

The Council of State Governments has posted a two-part series of on-demand webinars exploring the status of nuclear waste management in the United States, with a focus on how the lack of a disposal facility affects electricity customers, the communities that are home to nuclear power plants, and the utilities that own and operate the plants.

Both parts of the series are available on the Council’s website. Part one is here.

The Nuclear Waste Policy Act of 1982 established a national program for the safe, permanent disposal of highly radioactive waste. In 2002, Congress approved a site at Nevada’s Yucca Mountain; however, that project was stalled and defunded in 2010. Consequently, there currently is no disposal facility in the United States for spent fuel rods from 99 operating commercial nuclear reactors across the country.

Watch the on-demand webinars.

Lance Koonce, writing on Medium.com, discusses the meaning of “smart” contracts, saying, “Before we can decide whether smart contracts are going to bring significant change to business and law, we first need to make sure we’re all talking about the same thing.”

“It does seem that everyone is talking about smart contracts. People tend to line up on one side or the other: Either smart contracts are going to have a revolutionary impact on business, or they are doomed to fail,” Koonce writes.

He contends that in some situations a smart contract really just a transaction, and in others it’s more like a legal contract.

“One way to view these two different categories of smart contracts is just to see them along a scale, from existing legal contracts, to legal contracts that are partially reduced to code, to transactional terms completed reduced to code. Which type we chose will depend on a variety of factors, and in particular on balancing the need for efficiency and speed with the need to cover all contingencies,” he explains.

Read the article.

Bloomberg Law takes a look at prospects for the U.S. Supreme Court if Hillary Clinton is elected president, considering that she may have have the opportunity to offer one or more nominations to seats on the court.

“A left-leaning court with at least one appointment from potential President Hillary Clinton would mean a big shift in areas of the law such as voting rights and gun control, but panelists making predictions at the American Bar Association annual meeting doubted the new court would overturn major precedents,” reports Kimberly Strawbridge Robinson.

She writes that professors on the panel believe the new court is unlikely to outright overrule some of the court’s more controversial precedents. But while the new court is unlikely to overrule precedent on cases involving voters’ rights, handgun regulation, and campaign finance, there still is plenty of room for a new majority to make substantive changes.

Read the article.

The Wall Street Journal and Bloomberg Law are reporting that eight large U.S. banks are forming a new group to share information in the fight against cyber attacks.

The new cyber sharing group — which comes after thousands of banks formed a group earlier — will include Goldman Sachs, Morgan Stanley, Bank of America, J.P. Morgan Chase, State Street, Bank of New York Mellon, Wells Fargo and Citigroup.

“The financial-services industry ranked third in number of cyberattacks last year, after health care and manufacturing, according to a U.S. cybersecurity report released by IBM Corp. in May. Two years ago, J.P. Morgan, the largest U.S. bank by assets, was targeted by cybercriminals in a breach that exposed names, addresses and other information of 76 million customer households, although no money was taken,” The Journal reported.

Read the article.

Gilead Sciences Inc. is entitled to receive the attorney fees it incurred related to hepatitis C patent litigation with drugmaker Merck & Co Inc., a U.S. district judge has ruled, reports Reuters.

“In June, Gilead was freed from paying up $200 million in damages for infringing two Merck patents related to Gilead’s blockbuster drugs Sovaldi and Harvoni, after a U.S. judge found a pattern of misconduct by Merck including lying under oath and other unethical practices,” writes Anya George Tharakan.

The court found that Giliead could receive relief from the cost of its legal fees in defending against the Merck challenge.

Read the story.

The operator of 12 hospitals and more than 200 other treatment centers in Chicago and central Illinois has agreed to the largest settlement to date with the Office for Civil Rights for multiple potential violations of the Health Insurance Portability and Accountability Act, reports Kelly A. Leahy of Shumaker, Loop & Kendrick.

The agreement will cost Advocate Health Care Network $5.5 million and force Advocate to adopt a multi-year corrective action plan that stemmed from three incidents reported to OCR in 2013.  The breaches involved Advocate’s medical group subsidiary, Advocate Medical Group, which employs more than 1,000 physicians. The incidents that cost Advocate involved data breaches involving unencrypted devices and unauthorized access to a network.

In the article, Leahy offers some suggestions for what covered entities and business associates can do to prevent costly fines and burdensome settlements.

Read the article.

NAVEX Global’s 2016 Ethics & Compliance Training Benchmark Report shows compliance professionals struggling with small budgets, growing numbers of learners and limited time to train.

The company offers the report for downloading at no charge.

NAVEX says this benchmarking data can be used to measure a company’s program against its peers, and come away with strategies to solve key training challenges.

The ethics and compliance training benchmark report:

• Helps you make data-based decisions about who, when and how much to train
• Pinpoints emerging training topics and strategies to watch
• Reveals common program gaps and offers real-world solutions for tackling them

Download the report.

In a rare case interpreting the Worker Adjustment and Retraining Notification Act “sale of business” exception, the 8th U.S. Circuit Court of Appeals recently held in Day v. Celadon Trucking Servs., Inc. that a buyer of a business remained liable under WARN to the seller’s employees to whom the buyer did not make offers of employment, despite provisions in the asset purchase agreemen that placed all WARN Act liability on the seller, according to Epstein Becker & Green.

In the firm’s Financial Services Employment Law blog, Marc A. Mandelman wrote that the case involved a typical asset purchase transaction between Continental Express, Inc. and Celadon. Plaintiffs were a class of 449 former Continental employees who were not offered jobs with Celadon after the purchase of Continental’s trucking business.

“The key takeaway of the Day case for parties to a corporate transaction is that WARN liabilities are governed by statute, and the implications of WARN obligations and the sale of business provision of WARN must be carefully evaluated,” according to Mandelman.

Read the article.

Corridor Company has posted an on-demand webinar recording describing the best practices for managing contractural obligations.

“Contract management has become an increasingly strategic initiative,” the company says on its website. “Key to its strategic nature is the management of the obligations contained within the contract. Whether it’s the deliverables due to your customer or those due to you, it’s vital that these obligations are properly tracked and managed. Failure to do so not only creates tremendous organizational risk, but also impacts compliance, profitability and overall customer satisfaction.”

In this session, Corridor Company CEO, Russ Edelman, discussed best practices for managing your contractual obligations. He examined general considerations as well as detailed options for managing these obligations within a contract management tool.

Topics included:

• The Key Steps of Obligation Tracking
• Proper Classifications
• Automation Considerations

Watch the on-demand webinar.

In late June, the District Court of Appeal of Florida, Fourth District, reiterated that in a breach of contract case, lost revenue alone is typically an improper measure of damages, accordingn to a report from Roetzel & Andress.

Thomas P. Wert described the case: In HCA Health Services of Florida, Inc. v. CyberKnife Center of the Treasure Coast, LLC, 2016 WL 3540956 (Fla. 4th DCA, June 29, 2016), CyberKnife entered into a contract with a hospital. Under the contract, CyberKnife was to provide equipment and the site to the hospital for radiosurgery treatments to patients for five years. The hospital agreed to pay CyberKnife $5,150 plus sales tax “per click” for each treatment. The contract also provided that “in no event shall either party be entitled to consequential or punitive damages.”

Less than a year after the contract went into effect,  the hospital terminated the contract, citing federal regulations that would make “pay-per-click” agreements illegal beginning.

“Because CyberKnife failed to submit proof of lost profits at trial, it will collect nothing from the hospital even though the hospital terminated the contract almost two years before it actually could have under the contract,” Wert wrote.

Read the article.

National law firm Wilson Elser announces that John Benford has joined the firm’s Orlando office as of counsel. For more than 20 years, Benford has been practicing in Orlando-area offices of prominent national law firms, and most recently as the solo practitioner of Benford Law Firm, P.A.

Benford, a litigator, concentrates his practice in the area of commercial and business disputes, handling, among other matters, business torts, unfair competition, shareholder disputes, securities litigation, commercial real estate disputes, professional liability, breach of contract and insurance coverage.

Inn a release, the firm said Benford has practiced throughout the state of Florida, representing businesses of all sizes from a broad range of industries including the real estate, technology, manufacturing and aerospace sectors.

Benford has earned the AV® Preeminent™ rating by Martindale-Hubbell, 2003−2016. He has been selected for inclusion in Florida Super Lawyers, Business Litigation, 2011−2016 and has been named to Florida Trend’s Legal Elite, 2015−2016.

Benford is co-chair of the Orange County Bar Association Professionalism and Ethics Committee. He has received various awards for his pro bono service for helping members of Central Florida’s indigent community.

Benford graduated cum laude with a B.A. degree from Washington and Lee University (1987), cum laude with a M.B.A degree from the University of Miami (1991), and cum laude with his J.D. degree from University of Miami School of Law (1994). While in law school, he was a member of the University of Miami Business Law Review and received Book Awards for his Torts and Legal Writing.

For 50 years, police officers across the United States have been reciting the so-called Miranda warning to criminal suspects before they are detained.

Androvett Legal Media & Marketing reports that the largest legal association in the United States – the American Bar Association – is taking steps to ensure that the language in Miranda warnings is accurately translated for Spanish-speaking suspects who may not understand English. When the ABA meets this week in San Francisco for its annual convention, members will consider a proposal to adopt a uniform Spanish-language translation of the now-immortalized words from the U.S. Supreme Court’s 1966 Miranda v. Arizona ruling.

In its blog post, the Androvett firm quotes Dallas lawyer John Teakell, who represents white-collar and other criminal defendants:

“Miranda has stood the test of time and protects both defendants from self-incrimination and police officers from allegations of investigative misconduct,” says  “The ABA’s efforts to create a standard translation will go a long way toward extending these constitutional rights to everyone.”

Read the article.

Global finance firm Burford Capital announces the appointment of Craig Arnott as a managing director, effective immediately.

Arnott will be based in London and will have as his primary focus Burford’s litigation financing activities in the UK, continental Europe and the Asia − Pacific region.

In a release, the firm says Arnott has multijurisdictional experience in large, complex litigation from his work at some of the world’s leading firms. Currently a barrister in Sydney, Australia, he was formerly partner and Head of the Competition and Antitrust Law Group at Fried Frank Harris Shriver & Jacobson in London.

He previously practiced with Ashurst in London and with Cravath, Swaine & Moore in New York. As a Rhodes Scholar, Arnott attended Balliol College, the University of Oxford, where he earned both his BCL and D.Phil degrees. Before attending Oxford, he graduated from the University of Queensland with First Class Honours in both Law and History, with University Medals in both.

He replaces Nick Rowles-Davies (including as a director of Burford Capital PLC, Burford’s bond — issuing subsidiary), who resigned from Burford to pursue other interests.

Christopher Bogart, Burford’s chief executive officer, said: “We’re very pleased to welcome Craig to Burford. He brings over 20 years of commercial law experience in multiple legal jurisdictions that will assist us in meeting the increasingly global demands of our clients. Moreover, Craig has advised Burford on matters in Australia for some time, and has in the past practiced law with both Aviva Will and me.”