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Andrews Myers Monthly Law Alert

AM MONTHLY LAW ALERT
February 2017


CAN YOU DISCIPLINE EMPLOYEES FOR POLITICAL PROTESTS?
By C. Elaine Howard

In recent weeks, a number of political protests have received substantial news coverage, including the recent “Day without Immigrants,” in which a number of employees refused to go to work.  Although most people associate the National Labor Relations Act (“NLRA”) with union activity, the NLRA also provides some rights to employees who engage in political activity to try to improve their employment situation, even when the acts appear to be just political rather than job related.

In general, the NLRA may provide protections to employees who express concern through the political process in matters that could directly affect their job opportunities and job security.  For example, an employee who writes a letter to Congress on his own time complaining about immigration policy because it impacts the terms of his employment is likely protected from being disciplined for writing the letter.  However, what if the employee does this on company time?  What if the employee calls in sick to participate in an immigration related protest? Read more...


TIME IS RUNNING OUT! LIMITATIONS MAY START PRIOR TO PROJECT'S SUBSTANTIAL COMPLETION.
By Katy Baird

Project owners are often not aware of construction defects until the point of substantial completion has been reached or beyond. This scenario has created a common misconception, among owners and contractors alike, that the statute of limitations for defect claims cannot begin to run until after substantial completion is achieved on the project; however, this is not a defined rule under Texas law. Rather, the statutes of limitations for construction defect claims in Texas are largely based in common law.  The statute of limitations begins to run when the claimant discovers or should have discovered through reasonable diligence that a defect was present and incurred an injury as a result. Using this definition, on a project with multiple trades completing their respective scopes of work at various times throughout the project schedule, it is entirely possible for the owner to be put on notice that a potential defect has arisen with regard to an individual trade’s work prior to substantial completion of the entire project. At the time the owner is aware of the defect and suffers damages regarding the same, the countdown for the limitations period begins whether the project is substantially complete or not.  Read more...


THE FIFTH CIRCUIT CONTINUES TO ERODE THE CONSTRUCTION TRUST FUND STATUTE IN THE MATTER OF MONOCO
By Lisa Norman

The Firth Circuit has once again found in favor of a bankrupt general contractor who was alleged to have misapplied construction trust funds.  The bankrupt general contractor at issue was Buildings by Monoco (“BBM”).  BBM had a contract with a project owner, TAG Investments (“TAG”).  TAG paid progress payments to BBM of $1.8 million.  As a condition to receiving those payments, BBM was required to certify that all project subcontractors and suppliers had been paid.  Despite these certifications by BBM, TAG began receiving lien notices from subcontractors and suppliers claiming they had not been paid by BBM.  TAG then discovered that BBM had only paid $1.6 million to its subcontractors and suppliers, leaving $200,000 unaccounted for. 

TAG terminated its contract with BBM, and then BBM and its principle, Adam Monoco (“Monoco”), filed for bankruptcy.  TAG filed an adversary proceeding seeking a determination from the bankruptcy court that the $200,000 debt at issue could not be discharged by Monoco because he violated the Texas Construction Trust Fund Act (“Trust Fund Act”) when he failed to pay the subcontractors and suppliers.  The Trust Fund Act holds a trustee (including individual officers) liable when he intentionally or knowingly with an intent to defraud, retains, uses, disperses, or diverts trust funds without first paying obligations to the beneficiaries of the trust.  In this case, the subcontractors and suppliers were the beneficiaries of the trust funds paid by TAG to BBM. Read more...


BLOCKCHAIN: WHAT ARE THE BLOCKS, WHY ARE THEY CHAINED TOGETHER, AND WHY DO I NEED TO KNOW?
By Susan George

Opinions among those in the technology industry still vary as to whether Bitcoin (or another cryptocurrency) might become widely used in the future.  However, from the perspective of someone outside of that industry, Bitcoin seems to have gone the way of the Segway: a novel concept that one sees around but that never caught fire for everyday use.  People still walk on foot and people still prefer cash.  So how is Bitcoin currently relevant outside of the Bitcoin industry and Bitcoin transactions?  

The answer is the “distributed ledger” or “blockchain” technology that is its foundation.  The idea behind Bitcoin is facilitating person-to-person transactions where cryptography takes the place of a trusted intermediary such as a bank or clearinghouse.  

The foundational technology thus has far reaching implications for financial institutes and many are involved in blockchain consortiums and recent patent filings.  At the 2017 Goldman Sachs Technology and Internet Conference in San Francisco, Ripple CEO Brad Garlinghouse forecasted 2017 as the year that blockchain hype meets reality. Read more...

ANDREWS MYERS FORMS WOMEN LAWYERS GROUP
Meeting monthly for networking, lunch and learns and the sharing of best practices are:
Back Row: Linda Emery, Elaine Howard, Lisa Norman, Susan George, Lauren Scroggs.  Front Row: Kristi Belt, Katy Baird.  Not pictured: Stephanie Cook  
 
MARCH HAPPENINGS
  • Tim Ross recognized as Life Fellow of the Texas Bar Foundation
  • 3/3 Carson Fisk presents "Contractual Limitations of Liability: Enforcement and Practical Tips," 30th Annual Construction Law Conference, State Bar of Texas
  • 3/3 Ben Westcott presents "Legislative Affairs," 30th Annual Construction Law Conference, State Bar of Texas
  • 3/8 Bart Turner and Mike Cortez conduct "EPC Contracting Agreement Best Practices," Live Webinar, Lorman Education Services
  • 3/22 Tony Stergio presents "Big Changes at OSHA Under the New Administration," ABC Houston Chapter
  • 3/23-24 Elaine Howard presents "Drafting to Avoid Committing Fraud: The Battle Over Representations and Reliance," Advanced Real Estate Drafting CLE, State Bar of Texas
  • 3/24 Tony Stergio and Lauren Scroggs are Guest Judges for AGC Houston BBQ Cook-Off
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