The 2019 Texas legislature enacted a new Property Code Section 5.152 to protect mineral and royalty owners from a certain species of fraudulent transactions perpetrated on trusting and/or naïve and/or out of state mineral owners, reports Charles Sartain in Gray Reed’s Energy & the Law blog.

The change is meant to address a scam in which someone “fronting for a company with a name similar to a reputable operator, would approach the owner with an oil and gas ‘lease’ of minerals or royalty that were already subject to an existing lease. Except that the lease was actually the sale of the mineral or royalty interest at a bargain price.”

The article lists the changes addressed by the new section.

Read the article.

D.C. Toedt III, writing in the On Contracts blog, offers some lessons for drafting representations and warranties in contracts.

He discusses a hypothetical case that involved the sale of a car, showing how the case could turn out differently, depending on whether the seller represented — or warranted — that the car was in good condition.

“If your client is being asked to represent and warrant some fact, then consider whether the client should only represent the fact, or whether the client should only warrant the fact,” Toedt writes in one of his drafting lessons.

Read the article.

In a vote that will flip the makeup of the New York-based appeals court, the Senate on Thursday confirmed a controversial White House lawyer to a seat on the Second Circuit, reports Courthouse News Service.

The vote means that a majority of the 13 judges on the Second Circuit have been appointed by Republican presidents. Menashi is the fifth judge President Donald Trump has appointed to the court and the fourth this year alone, according to Courthouse News’ Tim Ryan.

Menashi’s dodging of questions during his confirmation hearing before the Senate Judiciary Committee, along with his position in the Trump administration and his controversial writings, stirred controversy in the Senate.

Senate Minority Leader Chuck Schumer had harsh words for Menashi’s nomination: “My Republican colleagues, in my view, rubber-stamped too many of these extreme, unqualified nominees – nominees, in Mr. Menashi’s case, who are almost craven.”

Read the Courthouse News article.

Jurors in Ward County, Texas, came back with a $1.9m verdict against Go Rhino Trucking, LLC.

The verdict was obtained by East Texas trial attorneys Stafford Davis and Shane McGuire, on behalf of their clients, Larry and Marjorie Young, the lawyers said in a release.

The plaintiffs’ lawyers aid that, in June of 2017, while travelling eastbound on I-20, the Youngs were struck from behind by a cement truck just as they entered Monahans, Texas.

During trial, it was revealed that Go Rhino failed to conduct pre-accident drug testing on the driver, and routinely violated federal regulations regarding post-accident drug testing of drivers, the lawyers said. It was further revealed that Go Rhino repeatedly violated its own safety policies.

The jury awarded the Youngs a total of $1,908,968.50, which included an award of $1.4m in punitive damages for gross negligence. The verdict was unanimous.

The Supreme Court on Tuesday appeared likely to side with the Trump administration in its effort to end a program that lets nearly 700,000 young, undocumented immigrants live and work in the USA without fear of deportation, according to a USA Today report.

Several conservative justices noted the Department of Homeland Security laid out several reasons for its decision to rescind the Deferred Action for Childhood Arrivals, or DACA, program.

The court’s four liberal justices argued that the decision to end DACA should rise or fall on the administration’s tenuous claim that it was illegal.

“Chief Justice John Roberts looked to be the key vote, as he was in June when he voted with the court’s four liberal justices to strike down the Trump administration’s effort to add a citizenship question to the 2020 census,” USA Today‘s Richard Wolf writes.

Read the USA Today article.

Image by Gage Skidmore

After a weekslong search to find a lawyer who would represent Rudolph W. Giuliani, President Trump’s personal lawyer finally found a legal team to represent him in the criminal investigation into his activities related to Ukraine, reports The New York Times.

Although Giuliani has a wide range of close associates, “at least four prominent attorneys declined for various reasons, according to people familiar with the matter. They included Mary Jo White, who also once led the United States attorney’s office for the Southern District, as well as Theodore V. Wells Jr., a trial lawyer at Paul, Weiss, according to people familiar with those discussions,” the Times reports.

He announced he will be represented by three lawyers, including his longtime friend, Robert J. Costello. Giuliani and Costello crossed paths last year during the investigation of another Trump associate, Michael D. Cohen.

Read the NY Times article.

In a matter of days, President Trump will ask the Supreme Court to rule on his bold claim that he is absolutely immune from criminal investigation while he remains in office, writes Adam Liptak for The New York Times.

The new case, concerning an investigation by Manhattan prosecutors into hush-money payments to two women who said they had affairs with Trump, will be the Supreme Court’s first chance to consider the president’s arguments that he is beyond the reach of the justice system.

Liptak explains the Supreme Court’s options: Announce next month whether it will hear the case and to rule by June, or simply deny review, leaving in place the appeals court ruling and effectively requiring Trump’s accountants to turn over his tax returns.

Read the  NY Times article.

A federal judge dismissed a lawsuit against former special counsel Robert Mueller, rejecting a conspiracy theorist’s claim that Mueller pressured him to commit perjury during the investigation into Russian interference in the 2016 election, according to a Courthouse News report.

Jerome Corsi alleged that Mueller violated the Federal Rules of Criminal Procedure by leaking grand jury information about him to the media to pressure him into giving false testimony.

Courthouse News’ Jack Rodgers quotes the ruling: “The article explicitly references Mueller’s ‘case,’ indicating that the information relates to his investigation and not to the grand jury’s investigation. Moreover, the article does not attribute any information to Mueller or anyone else associated with the grand jury investigation.”

Read the Courthouse News article.

The Senate Judiciary Committee Thursday approved and sent to the full Senate for consideration the nomination of Sarah Pitlyk — rated unqualified by the American Bar Association — to the U.S. District Court for the Eastern District of Missouri, reports Blomberg Law.

Three other federal district court nominees also advanced, but action on two controversial appeals court picks was again deferred.

The ABA’s Standing Committee on the Federal Judiciary in September rated Pitlyk as not qualified for the lifetime appointment, saying she lacks the requisite courtroom experience to serve as a trial judge.

“The disagreement boiled over Oct. 30 when the committee clashed over the role of the ABA Standing Committee after it issued a harsh assessment of Lawrence VanDyke, who also received an unqualified rating for a seat on the U.S. Appeals Court for the Ninth Circuit,” writes Bloomberg’s Madison Alder.

Read the Bloomberg Law article.

The Houston Chronicle reports that an appeals court justice serving Southeast Texas continues to sit on the bench as she suffers from Alzheimer’s disease, all while facing familial discord over the control of her $8 million estate, court records show.

The Chronicle‘s Samantha Ketterer explains:

“Her sons launched an effort this month to become her legal guardians, alleging that Justice Laura Carter Higley, 72, is continuing with her daily routine in a manner contrary to the path of her failing cognitive health. That includes driving herself to work downtown and serving in her capacity on the First Court of Appeals based in Houston, said sons Garrett C. Higley and Robert Carter Higley.”

Documents filed in probate court indicate that she received an official diagnosis of Alzheimer’s disease in October.

Read the Houston Chronicle article.

DLA Piper, fighting a sexual-assault claim against a former partner, filed a response to the accusation Tuesday, saying the lawyer who filed the complaint orchestrated a “flirtation” to advance her career, reports Bloomberg News.

DLA and former partner Louis Lehot parted ways after his colleague Vanina Guerrero accused the star Silicon Valley lawyer of sexually assaulting her.

The firm said it conducted an “impartial investigation” of the matter.

“Ms. Guerrero was a willing participant in a lengthy emotional flirtation with Mr. Lehot that she orchestrated to advance her career,” DLA Piper said in a letter to the U.S. Equal Employment Opportunity Commission, citing Guerrero’s emails.

Read the Bloomberg Law article.

Jones Day’s “hypercentralized,” subjective decision-making process places final control over pay, promotion, and other significant decisions “unchecked in the hands of one man,” six female former lawyers told the U.S. District Court for the District of Columbia.

That man is managing partner Stephen J. Brogan, claim Nilab Tolton and the five other lead plaintiffs. They filed a supplemental memorandum Oct. 24  opposing Jones Day’s motion for partial judgment on the pleadings in their proposed class action, filed in April, according to a Bloomberg Law article.

Brogan backs his “totalitarian grip” on Jones Day with a “no whining policy” under which women aren’t allowed to raise sex-based inequities, they say.

Read the Bloomberg Law article.

The nation’s three top drug distributors and a major drugmaker reached a $260 million settlement with two Ohio counties Monday over the deadly havoc wreaked by opioids, striking a deal just hours before they were set to face a jury at the start of the first federal trial over the crisis, reports CBS News.

“The settlement means the closely watched trial will not move forward now,” according to CBS News. “The trial involved only two counties — Cleveland’s Cuyahoga County and Akron’s Summit County — but was seen as an important test case that could gauge the strength of the opposing sides’ arguments and prod them toward a nationwide settlement that ultimately would involve billions of dollars.”

Read the CBS News article.

A Wichita attorney known as “The Bull” has admitted his involvement in cyber threats against his critics, and a federal court ordered him to pay more than $425,000, reports The Wichita Eagle.

Brad Pistotnik pleaded guilty to three misdemeanor counts of being an accessory after the fact to making an extortionate threat over the internet, according to the U.S. attorney. He must pay fines and restitution.

“In his plea, Pistotnik admitted that he paid David Dorsett for ‘reputation management services,’ writes the Eagle‘s Jason Tidd. “That service included Dorsett sending a flood of emails to Leagle, RipoffReport and Jaburg Wilk demanding that negative information be removed from their websites, prosecutors said. The emails threatened to target their advertisers.”

Read the Wichita Eagle article.

Litigation is a cost of business, but many savvy in-house counsel effectively manage that cost by including pre-dispute jury waivers in counterparty contracts, points out Bloomberg Law.

Jury waivers memorialize an agreement between contracting parties that fact-finding in disputes arising between them will be decided by judges, and not by juries, according to authors David L. Goldberg and Sean M. Akchin of Katten.

They discuss their five suggestions, under the headings Be Careful What You Wish For, Be Conspicuous, Be Specific, Don’t Be Greedy, and Don’t Be Tardy.

Read the article.

Bloomberg Law reports that law students from elite universities protested outside DLA Piper offices in three cities Oct. 10, calling on the firm to drop arbitration agreements from employee contracts.

“Demonstrators from Harvard, Columbia, NYU and Georgetown law schools handed out leaflets in New York, Washington, and Boston,” writes Bloomberg’s Stephanie Russell-Kraft. “They’re part of a student-led initiative leveraging their status as top Big Law recruits to fight what they says is ‘harassment and discrimination in the legal profession.’”

DLA Piper partner Vanina Guerrero, who claims she was sexually assaulted and retaliated against by a fellow partner, said she is unable to bring those claims in court because of a mandatory arbitration agreement.

Read the Bloomberg Law article.

The California Supreme Court invalidated a mandatory arbitration agreement involving a former employee’s wage claims, finding the agreement was both procedurally and substantively unconscionable, according to a Ford Harrison post by partner Frederick L. Warren.

“The Court found that the arbitration agreement’s execution involved a high degree of procedural unconscionability,” explained Warren. “The Court stated that ‘the agreement appears to have been drafted with an aim to thwart, rather than promote, understanding.'”

Read the article.

Justice Neil Gorsuch

The Supreme Court justices sounded closely split Tuesday and a bit uncertain over whether to make it illegal under federal law for companies and public agencies to fire employees solely because they are gay, lesbian or transgender, with Justice Neil M. Gorsuch likely the deciding vote, according to the Los Angeles Times.

Trump-appointee Gorsuch described the case as “really close…. Assume for the moment I’m with you on the textual evidence,” he told an ACLU lawyer representing a transgender woman who was fired from her job at a funeral home in Detroit.

“The four liberal justices, joined at times by Gorsuch, said they agreed that firing gay or transgender employees was discrimination based on sex as the law defined it,” writes the Times‘ David G. Savage. “But others, including most of the conservatives, said that Congress in 1964 did not mean to outlaw discrimination based on sexual orientation or gender identity.”

Read the  LA Times article.

Each of the thousands affected by the Las Vegas mass shooting ultimately will receive a share of a legal settlement announced last week, but experts caution that the shares will not be equal, according to a Las Vegas Review-Journal report.

The experts said the differences for the families of the 58 who died in the shooting will depend on factors such as the victim’s level of income, how long that person was expected to live and how many children that person had, explains the Review-Journal‘s Rachel Crosby.

For the more than 800 injured in the attack, the calculation will be even more complicated. And an undetermined number of the 22,000 in attendance at the event suffered mental trauma.

Read the Review-Journal article.

The Supreme Court could issue a number of blockbuster decisions on gay and transgender rights, immigration, abortion, guns and religion in its next term, which will begin on Monday.

New York Times reporter Adam Liptak writes that the rulings will arrive by June, in the midst of an already divisive presidential campaign.

“On Tuesday, the court will hear two hours of argument on the momentous question of whether a landmark federal civil rights law protects gay men, lesbians and transgender people from employment discrimination,” Liptak explains.

Later in the term, the court will consider the fate of nearly 800,000 “Dreamers,” hear an abortion case challenging a Louisiana law, possibly hear a case on the Second Amendment, and decide whether a state can exclude religious schools from a state scholarship program.

Read the  NY Times article.