HALLOWEEN UPDATE: Two Halloweens ago Tx/Up! went trick & treatin’ and got nothing for treats but a bag full of restraining orders. Last Halloween we changed our strategy and dressed up as oil company executives and got a bag full of billions of dollars. This year, we are going to dress up as Dick Cheney so we can accidentally shoot all our competition.
DAVID CHAMBERLAIN HAS BEEN NAMED THIS YEAR’S TOP DEFENSE BAR LEADER IN THE NATION BY DRI AND A TEXAS SUPER LAWYER BY TEXAS MONTHLY MAGAZINE: At its annual meeting in San Francisco earlier this month, DRI bequeathed the Fred Sievert Award to David Chamberlain as The Outstanding Defense Bar Leader in the country. Chamberlain was President of the Texas Association of Defense Counsel in 2005 and was recently elected to serve as the Texas State Representative to DRI. DRI is the largest national association of defense lawyers in the United States.
Chamberlain was also named a 2006 Texas Super Lawyer this month by Texas Monthly Magazine and the Center for Law and Politics. Only 5% of Texas attorneys are selected as Texas Super Lawyers.
Sign Here: You Hereby Agree We May Kick Your Rear: Sandra Willis brought suit against Gary Willoughby and his self-defense company, “Willoughby’s Enterprise-Back Off” after she was injured in one of its self-defense classes. (Tx/Up! Note: The irony here is just too much for us). Willoughby moved for summary judgment contending that, not only was the risk of injury inherent in self-defense activity, but Sandra expressly released Willoughby from liability when she signed a pre-occurrence written release. (Tx/Up! Note: The pre-occurrence release read something like this: While teaching you to defend yourself, we may kick your rear…and you will like it). The court noted that the common law doctrine of assumed risk is no longer viable in Texas, yet assumed risk based upon contract remains alive and well. Thus, Sandra, having executed a pre-occurrence release and waiver of injury, effectively relieved Willoughby of the duty to protect her from foreseeable injury while instructing her in self-defense. Summary Judgment for Defendant Willoughby was affirmed. Willis v. Willoughby, No. 07-05-0190-CV (Tex. App.–Amarillo September 13, 2006).
TEXAS SUPREME COURT JUDGE CLEARED OF WRONGDOING: Texas Supreme Court Justice Nathan Hecht is a long time friend and colleague of Harriet Miers, a recent Bush nominee for an open seat on the United States Supreme Court. While Miers’ nomination was under consideration last fall by the United States Senate, Judge Hecht answered a number of questions from the media about his knowledge of Meyer’s qualifications for the job. As most long time friends would do, Hecht made favorable public comments about Miers to the media.
A complaint was filed against Hecht alleging that he improperly used the imprimatur of his office as a Texas Supreme Court Judge to endorse Miers for the job. Tx/Up! never really understood the basis of this complaint. It’s not like Hecht’s favorable comments helped Miers or anything. In any event, the State Commission on Judicial Conduct issued a public admonition of Hecht finding that he had violated the Texas Code of Judicial Conduct by publicly “endorsing” Miers. Specifically, the Commission found that Hecht violated the Code, which provides that “A judge shall not authorize the public use of his or her name endorsing another candidate for any public office”; and which further provides that “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others . . .”
Hecht appealed this admonition to “The Special Court” appointed to hear the appeal. Last Friday, “The Special Court” reversed the Commission and stated that the “authorization” provision of the Code did not prohibit “endorsing” but prohibited a judge from authorizing the public use of his name endorsing another candidate. The Court held that Hecht did not authorize the use of his name endorsing Miers for the job. The Court held that the Commission failed to meet its burden of proving Hecht violated the Code and dismissed the Commission’s public admonition. In Re Honorable Nathan Hecht, Texas Supreme Court Justice
THE SILENT AND THE DEAD: Former Enron CEO Ken Lay has been cleared of his federal criminal conviction because he died. The trial court sitting in Houston ruled that the conviction could not stand because Lay was unavailable to effectively assist his lawyers on appeal. Hmmmm… seems to us that he was also ineffective in assisting his lawyers at trial.
TEXAS SUPREME COURT CHANGES TEXAS EMPLOYMENT LAW: Back in 1994, The Texas Supreme Court in Light v. Centel Cellular Co., 883 S.W.2d 642 (Tex. 1994) considered the question of enforceability of covenants not to compete in the context of at-will employment agreements. In that case, the court held that, based the Texas Covenants Not to Compete Statute, non-compete clauses were never enforceable unless the employer also had a corresponding obligation at the time the agreement was made. Last week, the Court did an about-face, and held that such clauses are enforceable at the time the employer performs the promises it made in exchange for the covenant.
Kenneth Johnson was already employed with Alex Sheshunoff Management Services [ASM] when it presented him with an employment agreement reiterating the terms of Johnson’s at-will employment and adding a non-compete clause. Johnson signed the agreement as a condition of his continued employment with Sheshunoff. After the agreement was signed, Johnson was given confidential information and received additional training as promised under the agreement. Johnson also promised not to divulge confidential information, a covenant he presumably violated when he was hired by Sheshunoff’s primary competitor. Sheshunoff sued for breach of contract and for statutory violations. The lower appellate court held the clause unenforceable, stating that the contract was illusory. The lower court reasoned:
“At the heart of the parties’ dispute is whether ASM’s promise to provide special training and access to confidential information was illusory. Under section 15.50, the relevant inquiry is whether ASM’s promise was binding at the time that the agreement was made. . . . ASM’s promise to give Johnson access to training and confidential information in the future was illusory because ASM could have fired Johnson immediately after he signed the agreement and escaped its obligation to perform. . . . Thus, ASM’s acceptance of Johnson’s promise to maintain confidentiality by later providing confidential information created a unilateral contract but not an otherwise enforceable agreement at the time the agreement was made.”
The Texas Supreme Court reversed, and in the process changed the law. In enforcing the contract, the court held that a unilateral contract formed when the employer performs a promise can satisfy the requirements of the Covenants Not to Compete Act. While a covenant not to compete cannot be a stand-alone promise from the employee lacking any new obligation from the employer, it is enforceable when supported by the employer’s performance of its contractual obligations, even if the employer’s promises are illusory at the time the contract is signed. Alex Sheshunoff Mgt. Svcs. L.P. v. Kenneth Johnson (Tex. Oct 20, 2006).
Over 200 professionals attended our 11th ANNUAL ULTIMATE CLAIMS HANDLING SEMINAR earlier this month, reinforcing its position as one of the largest private client seminars of its kind in Texas. Said former US Congressman Tom Foley: “I wish I had attended this seminar before I sent those emails.” Mark your calendar to attend the 12th annual seminar next year on October 5, 2007 at the CityPlace Conference Center in Dallas, Texas.