N. O. Smelz, owner of Smelz Rug and Carpet Cleaning, learns that Brite Bank has submitted a request for proposal to clean the carpets at their 15 branches in the DFW area. When Smelz reads the request he notices it includes a diversity provision that requires at least 10% of the total amount paid by Brite to go to a vendor, or a subcontractor, that is a minority-owned, woman-owned, veteran-owned, LGBT-owned, or disabled-owned business. Smelz is concerned because he doesn’t fall into any of those categories, and he doesn’t believe any of his long-time suppliers do either. But because his cleaning company has the best reputation around, Smelz submits his proposal anyway. Will Smelz get the contract?
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Would You Please Oversee the Company’s Environmental Cleanup Program? Oh Yeah, if it Fails, You’re Personally Liable
After setting up new locations in Texas, N. O. Smelz, owner of Smelz Rug Cleaning, obtained a hazardous waste permit from the Texas Commission on Environmental Quality for the disposal of the company’s cleaning chemicals after use. In addition to the permit, the TCEQ issued a compliance plan to Smelz. Because he was too busy managing the financial side of the company, N.O. delegated oversight and implementation of the compliance plan to Wright Handman. Compliance is running smoothly for about a year, but business is growing quickly and Handman doesn’t have time to train Rhule Brecker, a new carpet cleaning technician. In fact, Handman never trains Brecker. During Brecker’s second year on the job, Handman sees that Brecker is pouring the used cleaning chemicals into a storm drain on the street, which violates the compliance plan. Two weeks later, Smelz gets a notice from TCEQ that it believes Smelz is violating the compliance plan and that an investigation will be conducted. Brecker fesses up, and Handman also admits he didn’t train Brecker properly. TCEQ sues Smelz, Handman and Brecker for civil penalties of $50 per day for failing to properly implement the compliance plan. Are Handman and Brecker personally liable to the State?
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Should You Accept Customer Payments in Bitcoin?
After not meeting his 2017 sales goals, Ollie B. Celling knows he might get fired from Duncey’s Caps, Inc. if he doesn’t get his numbers up in 2018. Celling begins marketing Duncey’s through his personal Facebook, Instagram and Twitter accounts. Soon he thinks he’s hit a home run: a customer from Japan wants to buy 5,000 ballcaps for whatever Major League Baseball team Yu Darvish signs with for the 2018 season. There’s one catch – the customer wants to pay with a new cryptocurrency. Duncey’s contracts require payment in U.S. dollars. Celling goes to Jim Duncey, the owner of Duncey’s, and tells him that Duncey’s should change their contracts to start accepting cryptocurrency because “it’s the wave of the future.” Should Duncey agree?
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Sticking it to Your Employees During Flu Season
Frustrated with the high number of employees that did not show up for work in the fall and winter last year, Jim Duncey, the owner of Duncey’s Caps, Inc., issues a memo to all employees that they must provide proof that they got a flu vaccine shot by January 1, 2018 or they would be fired. Tommy Goinmyownway protests, saying that his religious beliefs prohibit him from getting vaccinations. New Year’s Day comes and Tommy is fired after he doesn’t provide the required proof. As he is escorted out of the plant Tommy threatens to sue Duncey’s for discrimination. Does he have a claim?
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Fight Night at Your Company Holiday Party
Jim Duncey, the owner of Duncey’s Caps, Inc., decides to hold an employee/significant other holiday party this year with live music and an open cash bar managed by a third-party bartending service. Each employee will get three drink tickets. Jim also hires private security for the party because he knows there’s bad blood between two of his employees, Jake Hammerhead and Tom Colecocken. As the party is winding down, Hammerhead grabs another drink from the bar, even though he’s clearly intoxicated. As he turns around he bumps into Colecocken and yells “Watch where you’re going!” Colecocken, who is also visibly intoxicated, turns and goes nose-to-nose with Hammerhead. At that point a crowd gathers around, and people start video recording. When Hammerhead refuses to back down, Colecoken throws a sucker punch, leaving Hammerhead knocked out on the floor.
With the entire room stunned, Colecocken manages to walk out the door and get into his truck to drive home. At the very first traffic light, he crashes into three parked vehicles. Luckily no one is hurt. The police arrest him for DWI, but Colecocken gets bailed out once he sobers up.
The next day, Karl Bumler, another Duncey’s Caps employee, finds out that his wife posted her video of the fight on their joint UzeTube account. Bumler called his wife and told her to take it down, but it’s too late – the video had gone viral. On Monday morning Duncey calls Hammerhead, Colecocken and Bumler into his office and summarily fires all three. Can Duncey do that? Do Duncey, the bartending service, or the security service have any liability to the owners of the three parked cars?Continue Reading Fight Night at Your Company Holiday Party
Washed Away: What Rights Do You Have When Your Home is Flooded?
Co-authors: JP Vogel and Tim Fandrey
Bill Deron bought a 100-acre tract next to a creek outside the City of Houston. Deron planned to build a subdivision where some of the homes abut a creek. The other homes would sit about 15 feet higher than the creekside homes. Deron disclosed to the creekside buyers that they needed flood insurance. But he did not tell any other home buyers to purchase flood insurance. Hurricane Harvey dumped so much rain on the neighborhood that all of the homes in Deron’s neighborhood flooded. Homeowners soon learned that the entire neighborhood sat in a floodplain. Did Deron have a duty to disclose whether the development or any part thereof is in a floodplain or even do something more? What about the government entity who approves the development?
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Put Down Your Phone But Keep Your Sword in Your Hand
Co-author: Skyler Stuckey
After finishing his weekly rehearsal for an upcoming Robin Hood performance at his local theatre, Wiley Enferee walked into his local Mega-Mart at his wife’s behest to buy a gallon of milk. Not thinking, Wiley walked into the store still carrying his sword on his hip. Wiley quickly found the milk and paid in the self-checkout line, but not before concerned shoppers notified store employees, who quickly called the police. One store employee, Sam Aritan followed Wiley into the parking lot. Wiley left before the police arrived, but Sam jotted down his license plate and told officers which way Wiley went. Officers quickly found Wiley in his car, and noticed he was swerving and looking down. The officers pulled Wiley over and placed him under arrest. Wiley explained that the sword was just a prop and he’d forgotten to take it off. The officers let him go but wrote him a ticket for texting while driving. Wiley is upset that he ended up with a ticket when he was just minding his business. Should Wiley put up a legal fight?Continue Reading Put Down Your Phone But Keep Your Sword in Your Hand
Can I “Chip” Away at my Employees’ Privacy?
“Big” Bob Brothers is concerned that his company, Big Brothers Security Systems, is losing out on customers because his salesmen and installation teams are slacking when they are out of the office. Brothers reads a newspaper article about another company that is putting microchip implants containing radio-frequency identification tags (RFID) into his employees in order to make sure they aren’t doing “off the clock” stuff while on the clock. Brothers sends a memo to employees explaining that they will all be chipped the next month, and anyone refusing to chip will be terminated. Can Brothers “big brother” his employees like that?
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Some Quick Thoughts on Opening Statements, Closing Arguments and Jury Deliberations
This will likely be the last piece I write on last month’s trial. We are scheduled to start another trial in January 2018, with additional trials in April and May, and they may gin up some additional insights that I think are useful to pass along. Today I have some quick thoughts about opening statements and closing arguments, as well as jury deliberations.
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Why Videotaped Deposition Testimony can be More Powerful than Live Witnesses
Although our judicial system historically prefers live witness testimony over testimony of witnesses through a deposition, today’s technology allows even seasoned trial lawyers the ability to present witnesses through videotaped deposition testimony that can be even more effective than having the witness appear live. I know because I just finished a 3-week trial where 75% of the witnesses we called in our case appeared by videotaped deposition. The defense also called approximately 75% of their witnesses by deposition, The result: after a half-day of deliberations the jury found the defendants negligent and awarded our clients $217.7 million.
Federal courts and most state courts have rules that govern the use of deposition testimony at trial. The instances when parties may introduce deposition testimony are limited:
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