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Andrews Myers
We Mean Business in Texas
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Construction
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The Future of Smart Contracts
by Andy Harris  In recent years, construction industry leaders have been considering ways in which contract administration could be enhanced and streamlined. A potential solution comes in the form of smart contracts. Here in Austin, The University of Texas is actively seeking to develop and enhance capital project processes through its Construction Industry Institute (“CII”). Along with other industry leaders, the CII is considering how smart contracts may allow for more efficient and cost-effective capital projects.

What are Smart Contracts?
Simply put, a smart contract is a software program designed to utilize data inputs and verifications to ensure that the terms and conditions of a contract have been fulfilled. These smart contracts are typically cloud-based programs ... Read More
 
Supreme Court Examines When Liquidated Damages Are an Unenforceable Penalty
by Sara McEown The Texas Supreme Court recently considered an appeal challenging the enforceability of liquidated damages in a breach of contract dispute, and whether the liquidated damages were an impermissible “penalty.”  At issue was an early termination provision which resulted in over $700,000.00 in liquidated damages. The Court in Atrium Medical Center, LP v Houston Red LLC affirmed the lower court’s decision enforcing the liquidated damages provision holding that the plaintiff had not proved that the liquidated damages provision operated as a penalty.   Importantly, in its analysis the Texas Supreme Court confirmed that Texas is a “second look” jurisdiction with regard to enforcement of liquidated damages.

Traditionally, liquidated damages clauses must meet two elements: (1) damages or harm caused by the breach are difficult (or incapable) to estimate; and (2) the amount for liquidated damages is a reasonable projection of just compensation.  To determine whether these elements are met ... Read More
 
Litigation & Arbitration
Texas Supreme Court Requires Precise Language for Email Contracts
by Hunter Barrow  The Texas Supreme Court has issued a stark reminder that contact principles still govern when parties transact business over email. In Copano Energy, LLC v. Stanley D. Bujnoch, Life Estate, et al., the Court faced the question of whether a chain of emails was sufficient to establish an enforceable contract.

In 2011, the landowners entered into easement agreements with Copano for a 30-foot easement for a 24-inch pipeline. The pipeline was installed, and a year later a Copano representative contacted the landowners' lawyer about obtaining more easement to construct another pipeline. The parties then exchanged a series of emails about proposed terms. 

A month later, a different Copano representative emailed the lawyer and attached a proposal that ranged from $20 to $40 per foot under five different scenarios. The lawyer responded to the first representative, stating "[t]his is not our deal. What is going on?" ... Read More
Understanding Recovery of Attorneys' Fees
by Elaine Howard The general framework for the recovery of attorneys’ fees in civil litigation can be difficult to understand. It is common for clients to believe that if they prevail in the case, their attorneys’ fees will be paid by the other side. It is less common for clients to believe that if they lose, they may have to pay the other side’s attorneys’ fees (as well as their own).  Both of these can happen, but only in some circumstances. Being entitled to recover attorneys’ fees can make a significant difference in how the case is handled and ultimately settled. 

Many cases filed in this country are governed by the “American Rule,” meaning that each side bears its own attorneys’ fees and court costs unless a state or federal law or an agreement between the parties says otherwise. Further, even when a law allows the recovery of attorneys’ fees, there are often conditions on that recovery... Read More
Andrews Myers Presents / Andrews Myers präsentiert
Last week, Tony Stergio and Manny Schoenhuber joined forces to present "Challenging Employment Laws" to the German American Chamber of Commerce of the Southern U.S.  Manny's family hails from Germany and he provided the German translation on several topics.
Their presentation covered difficult HR issues often faced by business owners, as well as tactics for handling those issues. Topics included sexual harassment, misclassifying workers, overtime, family leave, joint employment and social security.
Employment
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Coronavirus: Key Issues for Employers 
by Tony Stergio  As the deadly new Coronavirus, recently named COVID-19, continues to spread, employers need to be prepared for the challenges this new health issue may bring to their workplace.
 
Health authorities are still learning about transmissibility, severity, and other issues associated with COVID-19.  According to the CDC, the spread from person-to-person is most likely among close contacts (about 6 feet).  Person-to-person spread is thought to occur mainly via respiratory droplets produced when an infected person coughs or sneezes, similar to how influenza and other respiratory pathogens spread.  It is currently unknown if a person can get COVID-19 by touching a surface or object that has the virus on it and then touching his or her own mouth, nose, or eyes.
 
OSHA
While there is no specific OSHA standard covering COVID-19, workers have the right to working conditions that do not pose a risk of serious harm; and to receive information and training about workplace hazards. ... Read More
A New Form I-9 and Other Employment Hot Takes
by Andy Clark  Within the last month, U.S. Citizenship and Immigration Services issued a revised Form I-9 with minor changes. Employers must use the new form to confirm employees’ authorization to work in the United States beginning on April 30, 2020. The new form, which is labeled version 10/21/2019, is currently available on the USCIS website.

New Joint Employer Guidance: The United States Department of Labor (DOL) has published a new standard for determining whether two entities are “joint employers” of workers for purposes of liability under the Fair Labor Standards Act (FLSA). The new four-factor balancing test brings much needed clarity ... Read More
Corporate
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Corporate Pitfalls to Avoid
by Josh Harrison  Managing a business entity involves fewer formalities today than it may have in the past.  For example, keeping track of an embosser is no longer necessary and, depending on the type of entity, share certificates are likely not necessary. That is not to say, however, that there are no important formalities to still be observed. In my practice, more often than not, it's two formalities that are overlooked which cause the most issues: failure to file the entity’s tax filings and the failure to sign contracts properly.

Franchise Tax Filings.  An easy way to let entity status lapse is to miss annual franchise tax filings that need to be made with the Texas Comptroller of Public Accounts. Annual filings are generally necessary even if the entity never does business or generates enough income to owe any franchise taxes. Forgetting to make these filings can ultimately result in forfeiture of the entity’s charter, causing the entity to lapse ... Read More
 
 Takin' Care to Look for Sharks
Shareholder, Jason Walker, is kicking off cook-off season just like the rest of Houston. He is a six-year member of the Sharks R Us cooking team, known for being the only team made up entirely of lawyers. The team has been together over 30 years - formed after serving on the HLSR's legal advisory committee.
Jason hasn't taken the reins on the BBQ pit yet - but you can find him on fajita duty. Stick with what you know! If you need legal advice, or just a good slice of brisket, be on the lookout for the Sharks at the Houston Livestock Show and Rodeo World Championship Bar-B-Que Contest on Rodeo Drive this weekend.
Bankruptcy
Pre-Packaged Chapter 11 Bankruptcy Cases
by Lisa Norman Pre-packaged Chapter 11 bankruptcy cases, such as the recent bankruptcy filing by McDermott International in the Southern District of Texas, rely on the debtor obtaining plan support agreements (PSAs). PSAs provide a well-defined structure for the Chapter 11 case and lay out terms negotiated between the debtor and its key creditors, usually before the bankruptcy case is filed. Such terms include an agreement to vote for and support the proposed plan of reorganization, and to not assign claims unless the assignee agrees to also support the proposed plan.
 
When creditors agree to support the proposed plan of reorganization, it can significantly reduce the cost of the bankruptcy case and perhaps mostly importantly, allow the debtor to emerge from bankruptcy quicker and with a large portion of its debt eliminated ... Read More

 
Where can you find Andrews Myers this month?!
02.26 - ACRP Kick Off to Cook Off
02.27 - Andrews Myers & BKD Construction Seminar
02.27 - I-LinCP Deciphering Design + Build
02.27 - ULI Leadership Luncheon
03.03 - AGC Austin Membership Luncheon
03.04 - CREW Houston Network Luncheon
03.04 - SPONSOR : German American Chambers Stammtisch
03.05 - State Bar of Texas Conference - Construction Litigation Section
03.06 - ABC Houston Workforce Development Breakfast
03.11 - RECA March Mayoral Luncheon
03.18 - CFMA Houston Economic Update
03.27 - SPONSOR : AGC Houston BBQ Cook-Off
03.31 - ACRP Happy Hour
04.03 - SPONSOR : HBJ CRE Panel Breakfast
04.03 - SPONSOR : HCA Clay Shoot
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