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Coronavirus Legal News Briefing — April 27, 2020

Coronavirus Legal News Briefing — May 5, 2020

Originally published by Amy Starnes.

Editor’s Note: The State Bar of Texas is providing this collection of important links, blog posts, and media stories to keep its members and the public informed of the latest news and resources related to the novel coronavirus outbreak and its impact on the legal community.

Important links

State Bar of Texas Coronavirus Legal Resources Page — Texasbar.com/coronavirus

State Bar of Texas Coronavirus Public Resources Page — Texasbar.com/COVIDHelp

Texas Lawyers’ Assistance Program Well-being Resources page — Texasbar.com/remote-well-being

Law firms are seeing major slowdown in business because of COVID-19, data shows — The shock to the global economy stemming from the COVID-19 pandemic has produced a 40% drop in the number of new legal matters being opened each week in the U.S. compared to late February. — ABA Journal

Covid-19 spurs demand for contract lawyers, recruiters say — Temporary contract attorneys and paralegals are in demand at corporate and government legal departments and law firms. — Bloomberg Law

Pay cuts, layoffs, and more: How law firms are managing the pandemic — A firm-by-firm guide to how law firms are protecting their bottom lines from the economic fallout of the coronavirus. (Subscription required) — Texas Lawyer

Nearly 800 COVID-19 lawsuits have been filed, according to law firm’s tracker — Wondering what kind of lawsuits are being filed in connection with the COVID-19 pandemic? A lawsuit tracker has the answer. — ABA Journal

Divorce cases expected to increase as shelter in place orders lifted in Texas — The expected increase in divorce filings is based on trends in other countries after stay at home orders were relaxed. — The Gilmer Mirror

May 15 hearing set for Texas vote-by-mail arguments — U.S. District Judge Fred Biery has ordered a hearing on expanding vote-by-mail to all Texas voters in advance of the July 14 Democratic Party runoff election, due to fears of coronavirus transmission should in-person voting be required. — Rivard Report

Commentary: What Dallas lawyer who nursed New York coronavirus victims wants you to know about heroes and this disease — “I watched more people in my first shift die of coronavirus than I’ve ever seen die from the flu,” Jim Mullen says from his self-quarantine. — The Dallas Morning News

Supreme Court arguments a tech success, but format strangles usual give-and-take — The U.S. Supreme Court made history Monday. The coronavirus lockdown forced the typically cautious court to hear arguments for the first time via telephone, and to stream the arguments live for the public to hear. — NPR

At least 15 states grant lawsuit protection to long-term care facilities during pandemic — The American Health Care Association is leading a lobbying effort to protect nursing homes and long-term care facilities from legal liability during the COVID-19 pandemic. — ABA Journal

Commentary: How the government will help families affected by COVID-19 — Recently, the Families First Coronavirus Response Act was passed to provide financial assistance. (Subscription required) — Texas Lawyer

Gold’s Gym files for bankruptcy due to coronavirus pandemic (video) — Gold’s Gym, which has operated for more than 50 years, filed for Chapter 11 protection Monday. Clothing retailer J.Crew also announced that it has filed for bankruptcy. — CNN

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To keep up on the latest legal news from around the state, sign up for the State Bar of Texas’ Daily News Briefing by clicking here.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Coronavirus Legal News Briefing — April 27, 2020

Coronavirus Legal News Briefing — April 30, 2020

Originally published by Amy Starnes.

Editor’s Note: The State Bar of Texas is providing this collection of important links, blog posts, and media stories to keep its members and the public informed of the latest news and resources related to the novel coronavirus outbreak and its impact on the legal community.

Important links

State Bar of Texas Coronavirus Legal Resources Page — Texasbar.com/coronavirus

State Bar of Texas Coronavirus Public Resources Page — Texasbar.com/COVIDHelp

Texas Lawyers’ Assistance Program Well-being Resources page — Texasbar.com/remote-well-being

Texas AG helped donor fight virus lockout — Records reviewed by The Associated Press show that an exclusive group of Texans stood to benefit when Attorney General Ken Paxton urged a small Colorado county to reverse a public health order during the coronavirus outbreak. — The Associated Press

Texas voters sue over age restrictions for mail-in ballots — Citing the threats of the coronavirus, six Texas voters filed suit in federal court Wednesday challenging restrictions that limit age eligibility for voting by mail to those 65 and older. — The Texas Tribune

Many law firms that applied for paycheck protection loans are still waiting; Texas lawyer sues — One Houston lawyer was so frustrated by delays that he filed would-be class action lawsuits against three banks on behalf of himself and other clients. — ABA Journal

Small Business Administration temporarily limits stimulus loans to small lenders — The Small Business Administration briefly closed applications for emergency small business loans to all but the nation’s smallest lenders on Wednesday. — UPI

Tips for minimizing law firm liability during COVID-19 — As with any significant upheaval, this sudden and radical transformation of the legal profession creates new risk management challenges for law firms. (Subscription required) — Law360

Big Business wants immunity from Covid-19 lawsuits — At issue is how to balance protecting businesses from lawsuits, while enabling justice for customers and workers who in a time of rapidly rising unemployment may not have the option of leaving their jobs for something safer. — The Associated Press

Texas Supreme Court approves July Bar Exam, sets alternative September testing date — The Texas bar examination set for July will continue as scheduled, but an additional testing date also will be offered in September. — Texas Bar Blog

McLennan County judges, court officials prepare for return of jury trials — As Texas and county officials prepare to resume more work under whatever the new normal will look like, judges are realizing McLennan County courtrooms were not built with social distancing in mind. — Waco Tribune-Herald

Supreme Court to begin live oral arguments; here’s how it works — For the first time in its history, the U.S. Supreme Court will hear oral arguments by telephone conference. All nine justices and counsel will participate remotely starting Monday, May 5. — Court TV

COVID-19: Are your constitutional rights quarantined too? — The leading case about restrictions during public health emergencies is the U.S. Supreme Court’s 1905 decision in Jacobson v. Massachusetts. — Tilting the Scales blog

Shared custody in the time of COVID-19: A Q&A with Susan Myres — Houston attorney Susan Myres, president of the AAML, discusses shared custody and the challenges divorced/separated parents face during the time of COVID-19. (Subscription required) — Texas Lawyer

Working from home does not excuse employers from safety responsibility — It is imperative that all employers who employ home workers understand that they still have an obligation to keep all workers safe and they also must keep their Workers’ Compensation insurance in force. — Workplace Safety blog

How opening businesses again will impact your unemployment. Q&A with Texas Workforce Commission (video) — BoShould you go back to work if you fear getting sick? Here are 17 questions we asked the man in charge of Texas unemployment benefits. — KVUE – Austin

Federal government sued for denying stimulus checks to Americans married to undocumented immigrants — The Mexican American Legal Defense and Educational Fund, is alleging that a provision in the $2.2 trillion stimulus package known as the CARES Act that denies the benefit to mixed-status families in unconstitutional. — The Texas Tribune

Judge affirms White House plan to suspend visas for child migrants — A U.S. district judge in Oregon declined late Wednesday to block a White House plan to suspend immigration visas for children of permanent migrant residents due to the coronavirus crisis. — UPI

While volunteering in a NYC pop-up hospital, this Texas law grad learned he had passed the bar — For three weeks, John Kiraly, a May 2019 graduate of the University of North Texas Dallas College of Law, has volunteered with a Florida-based private humanitarian company, Comprehensive Health Services. (Subscription required) — Texas Lawyer

Google zooms in on Zoom with a freebie — Google on Tuesday made its business videoconferencing service free to all users, ramping up competition for Zoom as people flock online to stay connected during the pandemic. — Agence France-Presse

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To keep up on the latest legal news from around the state, sign up for the State Bar of Texas’ Daily News Briefing by clicking here.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Coronavirus Legal News Briefing — April 27, 2020

Coronavirus Legal News Briefing — April 27, 2020

Originally published by Amy Starnes.

Editor’s Note: The State Bar of Texas is providing this collection of important links, blog posts, and media stories to keep its members and the public informed of the latest news and resources related to the novel coronavirus outbreak and its impact on the legal community.

Important links

State Bar of Texas Coronavirus Legal Resources Page — Texasbar.com/coronavirus

State Bar of Texas Coronavirus Public Resources Page — Texasbar.com/COVIDHelp

Texas Lawyers’ Assistance Program Well-being Resources page — Texasbar.com/remote-well-being

Reopening Texas: A Q&A with David Coale — Dallas attorney David Coale recently discussed who has the authority to decide when Texas businesses reopen. (Subscription required) — Texas Lawyer

Texas courts zoom forward with virtual hearings — One month after the rollout of the first virtual courtroom in Texas held via Zoom, more than 8,500 separate proceedings have been held remotely. — Courthouse News Service

Meet next batch of Texas lawyers who will get new kind of swearing-in experience — Because of the COVID-19 pandemic, most individuals who passed the February 2020 Texas Bar Examination and are eligible to be sworn in will do so remotely. (Subscription required) — Texas Lawyer

The coronavirus will change the legal industry’s approach to remote work—but how? — Some hope the strain of juggling bosses, clients, Zoom meetings and family will at least lead to positive changes when the current emergency comes to an end. — Law.com

Best practices for Texas lawyers negotiating over email — Texas lawyers should be acutely aware of legal developments in our state applying the familiar themes of contract law—such as offer and acceptance—to this digital landscape. (Subscription required) — Texas Lawyer

Calls spiked — then dropped. Domestic abuse survivors, at home with abusers during the pandemic, may be unable to get help. — Advocates worry that survivors are struggling to seek help because they’re stuck with their abusers at home due to stay-at-home orders. — The Texas Tribune

SXSW sued over no-refund policy after cancellation — The company that puts on Austin’s internationally acclaimed South by Southwest festival is being sued over its no-refund policy, after the annual event was canceled this year because of the coronavirus pandemic. — Austin American-Statesman

Couple married on Zoom and officiated by district judge — Judge David Stith marries couples online as a result of coronavirus. — Corpus Christi Caller Times

Coronavirus has not stopped many cash-strapped courts from seeking fines and fees — Many courts are continuing to collect fines and fees, even as millions of Americans find themselves out of a job and less able to pay up. — The Marshall Project

Judge tells feds to abide by 20-year deal on release of detained immigrant kids — A federal judge in Los Angeles said Friday the risk of Covid-19 spreading in immigrant detention facilities requires the government to adhere to a longstanding settlement requiring prompt release of immigrant youth from custody. — Courthouse News Service

What the CARES Act means for your student loans (audio) — Part of the CARES Act includes automatic suspension of principal and interest payments on federally held student loans through Sept. 30, 2020. — NPR

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To keep up on the latest legal news from around the state, sign up for the State Bar of Texas’ Daily News Briefing by clicking here.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Alternatives to Legal Separation in New Jersey

Alternatives to Legal Separation in New Jersey

Legal separation in New Jersey doesn’t really exist. If you want to separate from your spouse, you can do so, and you don’t need an agreement to do that; but if you have children and you want to leave the marital home, you cannot take the children with you unless you have your spouse’s consent or permission from the court.

The post Alternatives to Legal Separation in New Jersey appeared first on Divorce Magazine.

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Preventive Legal Care: Relatively Simple Things Make Large Differences in Legal Costs

Preventive Legal Care: Relatively Simple Things Make Large Differences in Legal Costs

Originally published by Nacol Law Firm – Dallas TX.

A commentary by Dallas Attorney Mark Nacol,
of the Nacol Law Firm PC.

*In our current state of a national emergency in the United States, we feel that this blog rings true for all individuals and families as we enter into a serious unknown territory in your lives.  

During the last 30 years of general practice in a number of civil areas, I have had the opportunity to observe repetitive mistakes and decisions made by clients in regard to whether or not preventive legal care is cost-worthy.

Most prudent people do not think twice about having their teeth cleaned, becoming vaccinated for the flu or other childhood illnesses, going to their doctor if they are dizzy, having speech problems or other symptoms of stroke diagnosed or changing the oil in their automobile.

The average person clearly acknowledges the flu shot is definitely preferable to two weeks in bed.  Basic dental hygiene trumps a root canal every time.  A blood thinner medication is far preferable to paralysis or brain damage, and early detection of cancer or other invasive diseases, may significantly improve prognosis for recovery.

On the other hand, when it comes to the ordinary individual’s legal needs, I have noted throughout the years and continue to note a juvenile and somewhat cavalier attitude.  The result is denial and refusal to consider relatively small fees required to bring preventive legal care into play.

Depending on the size and nature of a man, woman or a couple’s estate, probate planning in the form of wills, durable powers of attorney, medical directives, medical authorizations, medical powers of attorney, testamentary and/or intervivos (living) trusts can avoid future attorney’s fees from 50 to 100 times the amount required for preventive care.  Probate and/or litigation without a will in a large estate, disability, dementia, Alzheimer disease or other medical issues requiring guardianship and/or extraordinary legal procedures vastly exceed the basic costs of preventive care.  The cost of fixing the legal problem after the event is extraordinary versus the simple matter of preventive legal care in the first place.  Fees ranging from $500 to $5,000, depending on the complexity of the estate or matter, at first blush might appear large but may frequently be increased by 2 to 3 zeros in complicated, complex litigation that can last for years.

Marital prenuptial agreements are emotionally delicate, but may be a useful and significant tool to provide creditor protection throughout a marriage and reduce the cost of dissolving a marriage, an unfortunate circumstance, by thousands and thousands of dollars.

A properly prepared and executed contract for the purchase and sale of land or for the purchase and sale of a business when accomplished before the transaction is essential in fixing the rights of the parties, establishing enforceability of their promises and the cost necessary to force compliance with those promises.  Time after time, I find a client who comes into my office and looks at me with dog eyes and says, “Can you help me in this business transaction?  I’ve already signed the contract.”  My response, of course, is “Yes, it is my pleasure.  But, it is going to be far more expensive now than if you had simply prophylactically entered into an enforceable agreement prior to the conduct you allege is fraudulent or the subject of a breach at this time.”

The examples above may be extended into almost every area of the law.  Why in the world would anyone want to market an invention, a well known mark of their business or trade, a manuscript or other written document without first having protected those items through trademarks, patents, copyrights or, at the very least, non-disclosure agreements?  A common complaint echoed throughout the years has been the significant cost of the judicial system and the financial burden of enforcing one’s right in the courts of law of the state or federal government.  With a bit of foresight and ingenuity and the help of an ethical, competent attorney, and the willingness to spend a smaller sum of money, many of the problems, disappointments and disenfranchisement with the judicial system may be bypassed altogether.

In closing, I am reminded of the classical advertisement by Mr. Goodwrench.  “Pay me now or pay me later.”  Preventative maintenance of the most important legal aspects of your life are as important as preventive maintenance of your car.  Have you priced a new engine versus a can of oil lately?

*In thinking about the current National Medical Emergency, now is the time to think about your loved ones and family.  In the case of illness or death, will they be protected or have to experience multiple problems with an old will or, more seriously, no will at all on your estate.  Be proactive and review your legal documents now to help alleviate difficult probate situations.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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legal rights for women during divorce

11 Legal Rights for Women During Divorce

legal rights for women during divorce

 

If you are going through a divorce, or are about to go through a divorce, you have many important legal rights. The Constitution, the U.S. Supreme Court, as well as the laws of many states, guarantee you a number of rights and protections.

Your ex-spouse may try to “run you through the wringer.” However, you have legal rights, which can prevent him from doing that. Some of the many legal rights, which frequently arise in divorce cases, include:

11 Legal Rights for Women During Divorce

The right to notice and opportunity for a hearing 

The Fourteenth Amendment to the Constitution says that no state can deprive you of life, liberty, or property without due process of law. The Supreme Court has held that this means that, before a court takes any action against you, the court has to notify you, and the court has to give you an opportunity to present your argument in court. Thus, a court cannot grant your ex-spouse a divorce, or make any ruling regarding custody, visitation, property division, or alimony, without first notifying you and giving you an opportunity to respond.

The right to a neutral decision-maker

The Supreme Court has also held that the “due process” clause guarantees you the right to a judge who is neutral. Thus, if you have a judge who is biased (for example, is your ex-spouse’s relative or friend) then you have the right to ask that the judge recuse himself from your case.

The right to file your divorce petition for free, if you can’t afford the filing fee

Most states require you to pay a filing fee when you file your divorce petition. But, in Boddie v. Connecticut, the Supreme Court ruled that the state cannot deny you the right to a divorce if you can’t afford to pay the filing fee. So, if you want to file for divorce and can’t afford to pay the fee, ask the court clerk for a “pauper’s affidavit” which will allow you to file for free.

The right to remarry someone of another race

In Palmore v. Sidoti, the mother, who was white, divorced her husband, and obtained custody of their three-year-old daughter. The mother then remarried an African-American. The trial court then changed custody of the child to the father; the trial court held that, because of the “social consequences of interracial marriage,” it was not in the child’s best interests to grow up in a household with a stepfather of a different race.

The Supreme Court reversed the trial court. The Supreme Court ruled that the trial court could not take the race of the stepparent into consideration when awarding custody. The mother had the constitutional right to marry anyone regardless of race. So, it the mother married interracially, the trial court could not penalize the mother for her marriage, by removing the child from her custody.

The right to custody of your children if your ex-spouse dies

The Supreme Court has stated that, if your ex-spouse dies, the state must return your children to you, unless a court rules that you are an unfit parent. A court cannot rule that you are an unfit parent unless the court first gives you notice and a hearing.

In many states, you cannot be denied custody simply because you are a woman

In much of the nineteenth century, the husband was considered the “head and master” of the household, and the husband would automatically obtain custody of the children when the parties divorced. Then, in the late nineteenth century, many states changed their laws and created the “tender years doctrine,” which held that courts were to prefer the mother in child custody cases.

Since the 1970s, many states have passed laws stating that the predominant consideration in custody cases is the “best interests of the child,” and that a court may not prefer to award custody to either parent because of the gender of that parent. The Supreme Court, however, has not yet ruled on this issue, and the laws vary from state to state. It would be wise to consult an experienced family attorney to see what the law in your state says on this issue.

If a third-party, who is not a parent, seeks visitation with your child, the court must give your decision “special weight.”

In Troxel v. Granville, the Supreme Court held that parents have a “fundamental right … to make decisions concerning the care, custody, and control of their children.” Troxel held that a consequence of this right is, if someone other than a parent seeks visitation with a child, the court must give the parent’s decision “special weight.” This holding often comes into play when grandparents seek visitation.

This does not mean, however, that a court may never award visitation to a non-parent. The Supreme Court did not specify exactly how much weight a trial court must give to a parent’s decision; the Court said, “We do not, and need not, define today the precise scope of the parental due process right in the visitation context.” However, Troxel makes clear that a court may not award visitation to a non-parent simply because the court believes visitation would be in the child’s best interests.

The right to have your case heard in a state with which you have some contact

In general, you must have some contact with a state, in order for a court of that state to have jurisdiction to hear your case. The state in which your case may be heard depends in part on the issues being adjudicated.

Granting of a divorce – which state may hear the case?

A court may grant a divorce decree if either spouse resides in the state where the petition is filed. Thus, if your husband files a divorce petition in his state of residence, the court may grant him a divorce decree even if you have no connection with the state. See Williams v. North Carolina. However, the court may not adjudicate financial issues, or custody issues, unless you have some type of contact with the state.

Adjudication of financial issues – which state may hear the case?

The Supreme Court has held that, in a divorce case, a court may not adjudicate financial issues (for example property division and alimony) unless the defendant has “minimum contacts” with the state. In Kulko v. Superior Court, the father, who lived in New York, bought his daughter a one-way plane ticket to California, where the girl’s mother lived. The mother then filed a motion in a California court. In the motion, Mother asked the California court to modify Father’s financial obligations which had been entered in the original divorce decree.

Father’s only connection with California was that he had bought his daughter a one-way plane ticket to go there. The Supreme Court held that Father’s buying his daughter an airline ticket to California was not enough to give a California court jurisdiction to rule on financial issues related to the divorce. In the Supreme Court’s view, Father did not have minimum contacts with California.

The Supreme Court has not precisely defined “minimum contacts”, and the law on minimum contacts is highly complex and takes up the space of many law school lectures and textbooks. However, other Supreme Court cases have said that in order to have minimum contacts with a state, a person must have “purposefully avail[ed] [her]self of the privilege of conducting activities within the forum State,” and “the defendant’s conduct and connection with the forum State [must be] such that he should reasonably anticipate being haled into court there.”

So, in order for a court to have jurisdiction to rule on financial issues in your divorce case, you must have purposefully availed yourself of conducting activities with the state, and your conduct and connection with the state must be such that you should reasonably anticipate being haled into court there. (The Supreme Court has also held that, if you do not have “minimum contacts” with a state, a court of that state may still hear financial issues in your divorce case, if you are served with the summons when you are present in the state.)

Adjudication of child custody and visitation – which state may hear the case?

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs the venue for child custody decisions. The UCCJEA is state law, not federal law, but, because all fifty states have adopted the UCCJEA, then your rights under the UCCJEA are similar anywhere in the country. The UCCJEA is highly complex, and cannot be fully discussed here. However, to sum it up, the UCCJEA says that a court may not make a child custody determination unless at least one of the following is true:

  • The state is the child’s home state on the date the case was filed or was the child’s home state less than six months before the case was filed, but a parent or person acting as a parent continues to live in the state; or
  • No other state has jurisdiction, or a court of the child’s home state has declined to exercise jurisdiction, and
  1. The child and the child’s parents, or the child and at least one parent or person acting as a parent, have a significant connection with the state other than physical presence, and
  2. Substantial evidence is available in the state concerning the child’s care, protection, training, and personal relationships.
  • All courts of states having jurisdiction have declined to exercise jurisdiction; or
  • No court of any other state has jurisdiction under the above criteria; or
  • An emergency exists.

Also, if any court has made a child custody determination, that court has “continuing, exclusive jurisdiction” over any future cases involving custody of the child. “Continuing, exclusive jurisdiction” means that no other court may modify or change the child’s custody decree unless a court determines that the child, the child’s parents, and any person acting as a parent do not currently reside in the state.

NOTE: The above description only scratches the surface of the UCCJEA. There are other provisions of the UCCJEA that may allow, or not allow, to hear your particular case. If you have further questions about the UCCJEA, consult an attorney.

Know Your Rights and Protect Them!

If you are in the process of a divorce, and you believe that a court has violated any of your rights mentioned in this article, speak up and assert your rights. Your ex-husband may want to trample on you, but courts and legislatures have determined that you have the constitutional right not to be trampled on.

The post 11 Legal Rights for Women During Divorce appeared first on Divorced Moms.

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Just in Time For Summer: The Freeze-Out Merger, A Legal Option Available to SOME Majority Owners of Privately-Held Texas Companies

Originally published by Winstead.

By Zack Callarman and Mark Johnson

Our previous posts have stressed the critical importance of buy-sell agreements for both majority owners and minority investors in private companies (Read here). For majority owners, securing a buy-sell agreement avoids the potential of becoming “stuck” in business with a difficult co-owner without the ability to force a buyout of this minority investor’s ownership stake. For at least some majority owners of private Texas companies, however, another option exists. This option is commonly known as a “freeze-out,” “cash out” or “squeeze-out” merger.

What is a Freeze-Out/Squeeze-Out Merger?

A freeze-out/squeeze-out merger is a merger of two or more business entities that results in one or more of the equity holders of one of the pre-merger entities being cashed out as a result of the merger (i.e., not allowed to own equity in the post-merger surviving company).

Mergers are governed by state corporate law, and most states have several similar, but separate, merger statutes for corporations, LLC’s and other forms of business entities recognized under state law that govern mergers of those entities under various different circumstances. In that regard, it is worth noting that a “freeze-out/squeeze-out” merger is not a distinct type of merger governed by its own separate statute, but rather is a “characterization” given to a merger reflective of the purpose behind the merger, irrespective of the specific merger statute under which the merger is effectuated.

The Requisite Authorization and Approval for a Freeze-Out/Squeeze-Out Merger

Under state corporate law, mergers typically must be authorized and approved by both the equity holders and the directors of each of the entities participating in the merger. In the case of corporations, that means that typically both the directors and the shareholders must authorize and approve the merger, whereas in the case of LLC’s that means that typically the members and the managers must authorize and approve the merger. The actual level of that approval (i.e., unanimous consent vs. 2/3rds consent vs. majority consent) is governed by the applicable state merger statute together with the operative provisions of the entity’s organizational documents. By way of example, under Texas law, unless the entity’s governing documents provide otherwise, (i) the affirmative vote of at least two-thirds of the outstanding voting shares is required to authorize and approve a merger of a corporation, and (ii) the affirmative vote of the holders of at least a majority of the outstanding voting membership interests is required to authorize and approve a merger of an LLC.

So, the gating question for any individual or group wanting to possibly effectuate a freeze-out/squeeze-out merger is: Do you have the requisite vote under applicable law and under the entity’s governing documents to authorize and approve the merger?

The Fair Market Value Presumption
It is important to remember that while a freeze-out/squeeze-out merger may well enable the “majority” to force one or more minority holders out of the company, a freeze-out/squeeze-out merger does not entitle the majority to steal, or cheat the minority holders out of, their equity interests. The minority members who are being frozen or squeezed out should receive fair value for their interests. Otherwise, the majority proponents of the freeze-out/squeeze-out merger will likely be vulnerable to claims by the minority interest holders for oppression, breach of fiduciary duties, etc.

In the case of corporations, the “fair market value” presumption is governed by statute. In many (but not all) mergers involving corporations, under state corporate law, the effected shareholders, including any minority shareholders who will be frozen or squeezed out as a result of the merger, have statutory “dissenter’s rights” or “appraisal rights”. In short, a shareholder with “dissenter’s rights” or “appraisal rights” who objects to the amount that he is going to receive in exchange for his equity interests as a result of the merger is entitled to go to court and appeal the valuation. The court then has the power to revise the amount that the shareholder will receive based on its determination of fair market value.

Curiously, LLC statutes do not typically include dissenter’s rights provisions. However, given (i) the well–established fair market value presumption that exists in the context of corporate mergers, together with (ii) the strong “fiduciary duties” overlay that exists under statutory and common law with respect to the duties and obligations of members of LLC’s with respect to their fellow members, prudence dictates that the majority proponents of a freeze-out/squeeze-out merger make every effort to honor the fair market value presumption in any freeze-out/squeeze-out merger they effectuate.

Logistics of a Freeze-Out/Squeeze-Out Merger
So, assuming that the majority proponents of a freeze-out/squeeze-out merger have the requisite vote under applicable law and under the entity’s governing documents to authorize and approve the merger, how do they do it? The answer to that question will again depend in part on the form of the entities involved, the governing corporate statutes, and the organizational documents of the entities involved, but with those qualifications, the answer is pretty simple: The majority proponents form a new entity with whatever ownership and capital structure they desire, and then they merge the existing entity (i.e., the entity in which the soon-to-be frozen or squeezed out equity holders hold an interest) into the new entity. Under the terms of the merger agreement, among other things, the new entity will be the surviving entity, and the equity interests of the frozen or squeezed out minority interest holders will be redeemed for cash in an amount equal to the fair market value of the redeemed equity interests.

Conclusion

The freeze-out merger is a legal avenue that may not be widely known by majority owners of private companies, but it is used with some regularity in Texas and is rarely disallowed by the governance documents of most companies. There should be a note of caution for majority owners in deploying this technique, however, because if dissenter’s rights apply and are exercised by the minority investors in response, the freeze-out merger may result in a time-consuming and a costly appraisal process.

Zack Callarman (Associate) and Mark Johnson (Shareholder) are members of Winstead’s Corporate, Securities/Mergers & Acquisitions Practice Group.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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alcoholic ex

Alcoholic Ex? Practical and Legal Remedies For Protecting Your Children

 

alcoholic ex

 

Wash your hands. Eat your vegetables. Wear your bike helmet. Mothers direct much of their energy toward keeping their children safe and healthy. That’s why moms have such a hard time leaving their children in the care of someone else. It even can be hard for a mother to trust the other parent. And if the other parent has a problem with alcohol, a mother’s instincts are likely to be in full protective mode.

If your ex struggles with Alcohol Use Disorder (AUD), you may have wrestled with some or all of these questions: Can I legally cut off or restrict contact between my child and the father? If I can do so, should I? Is there a way to maintain contact but keep my children safe? What part can my children play in ensuring their own safety?

Every case is different, but generally, research shows that children benefit from contact with both parents, as long as they are emotionally stable and the two of them aren’t waging war with one other. Also, you may compromise your own legal position if you deny your ex court-ordered parenting time. But when AUD enters the picture, more serious concerns make an appearance, too.

Practical and Legal Remedies For Protecting Your Children From an Alcoholic Ex

Alcohol Use Disorder and Parenting Time

Generally speaking, alcohol use does not render a parent unworthy of parenting time. Courts usually consider drinking an issue only if there is proof, usually in the form of arrests or other legal records, that the parent drinks to excess. Even then, parents may be allowed contact with children, especially if they are enrolled in a treatment program.

A mother in the process of getting a divorce can try for restricted or supervised parenting time for the parent struggling with alcoholism. If the decree has already been decided, however, getting it altered can be a time-consuming process.

The practical outcome, in many cases, is that the mother is responsible for determining whether the father is using alcohol before or during his parenting time and for ascertaining whether his alcohol use affects his ability to care for his children.

It goes without saying that mothers can also struggle with alcoholism, but this article is specifically targeted toward moms whose ex-husbands have AUD.

Make Your Stance Known

Communication is still important even when your spouse becomes your ex-spouse. Your ex should not feel blindsided by any actions that you might feel are necessary. If your divorce decree is final and does not address the issue of your ex’s alcohol use, you need to let him know ahead of time how you will handle any alcohol-related crises that might occur.

It’s optimal if you and your ex can come up with such a plan together, but realistically that is not going to occur in most cases. If your ex-husband is in denial about his alcohol use, he may insist that he would never endanger his children. No matter what he says, you should make it clear that being intoxicated during his parenting time will not be tolerated.

Legal Remedies

If you are dealing with an ex-spouse whose abuse of alcohol is intractable, you may decide that gaining sole custody is your only workable solution. In order to have a chance of getting sole custody, you will have to present evidence that the father’s alcohol abuse puts his children in danger and that being in his care is not in the children’s best interests.

Parental rights are strong. Gathering and presenting evidence against an ex-husband is an uncomfortable role for many women, but without strong evidence, you have little chance of getting sole custody. You can hire a private investigator, but your input and testimony will probably be needed as well.

If what you are seeking is a modification of your original child custody decree, you will need to present evidence of a material change in circumstances. If your ex’s alcohol use was in evidence during the original divorce case, you will need to show evidence that his use has increased and that it is not in the best interests of your children for him to have physical custody at any time.

Some states have laws regulating how soon and how often you can request a modification of your court order. In order to file a request for modification outside of that time frame, you will need to show that your children are in physical danger or will suffer significant mental or emotional distress. The exact requirements and wording for requesting modifications vary from state to state.

A Practical Solution

A remote alcohol monitoring system, such as Soberlink, is another possible solution for you and your ex. This system combines a breathalyzer with wireless connectivity. The portable design and technology include facial recognition, tamper detection and real-time reporting. Soberlink proves sobriety with reliability to foster trust and peace of mind. The reliability of alcohol monitoring systems has been upheld in court.

Alcohol monitoring systems are quick to put into place and can reassure you about your ex’s sobriety when it matters most. Although the courts may mandate testing, you and your ex-husband could also work out an agreement requiring that he submit a test prior to and/or during parenting time. Using such a system could greatly increase your peace of mind while your children are out of your care.

The Role of Your Children

Most experts agree that children should not be put in the position of reporting to one parent about the other parent’s behavior. Still, once your children reach a certain age, they can be participants in ensuring their own safety. Here are some steps to consider:

  • Teach your child never to get in a vehicle with someone who has been drinking.
  • Give your children basic cell phones as soon as practical and be sure they know how to use them.
  • Be sure that your child knows your full name and physical address. Teach your children your phone number, even though it is stored on their phones. They may need to call from a different phone.
  • Designate one family member or friend as your first backup, to be called if a child cannot reach you.
  • Talk to your children about how to find “safe strangers” if they ever need help. Police officers and firefighters are the most obvious examples.
  • Occasionally role-play what they should do if they need help.
  • Consider counseling for children who seem troubled or who exhibit any of these 11 signs.

Other Considerations

Sharing your children with an ex with AUD is never easy, even when things are going well. You want your children to have the security of two parents who love them, but you may have trouble forgiving their other parent. You really need time away from your children, but you may find it hard to relax when they are gone. You feel that you should talk to your children about Alcohol Abuse, but you don’t want to portray their father as a bad parent.

There are no easy fixes for your situation, but it’s important to take care of yourself and get help and advice if you need it. Some people find direction and comfort in Al-Anon, an organization for friends and families of alcoholics that is based upon the 12-step approach of Alcoholics Anonymous.

Some hospitals, clinics, and churches also offer support groups for those affected by Alcohol Use Disorder. If you are uncomfortable with a group approach, consider one-on-one sessions with a spiritual leader or therapist.

While you are trying to work with your ex to keep him in your kids’ lives, don’t be naive. If you happen across any evidence that your ex-husband’s alcohol abuse is out of control, document it. Keep a record if he misses scheduled visits, shows up late, does not respond to phone calls or texts or otherwise fails to act in a responsible manner. This information could be helpful if you have to take legal steps to protect your children.

If you need legal advice, find an attorney. If you can’t afford a lawyer, use this list of resources for free legal help. If you or your children need counseling or therapy, this advice from Mental Health America may be useful.

The post Alcoholic Ex? Practical and Legal Remedies For Protecting Your Children appeared first on Divorced Moms.

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The Legal and Psychological Ramifications of Infidelity

The Legal and Psychological Ramifications of Infidelity

Infidelity can have some big impacts on marriage other than the obvious and sometimes more damaging than the loss of trust. The long-lasting psychological effects for either partner along with the legal ramifications that can occur during the divorce proceedings should make more spouses reluctant to have an affair, but as with many mistakes we make in life infidelity is the result of living too much in the moment at the expense of future consequences.

Legal Ramifications

All states are now no-fault divorce states. It used to be that a person seeking a divorce would have to prove that pretty extreme events had taken place like cruelty, imprisonment, and adultery to name a few. This type of law has been interpreted by some to be a force to make divorces harder to get as they were seen as a morally wrong thing to do and should be avoided unless completely necessary.

A no-fault ground for divorce worries some clients when it comes to alimony and property division topics. It can be beyond frustrating for many that a no-fault system means that adultery doesn’t have to be considered when it comes to the division of marital assets unless funds were used toward the affair. A lot of times it can depend on the judge that rules over the case.

Florida is an equitable distribution state, which means that many factors go into the decision of property division. If a husband can show that his wife spent money on hotels or gifts for their secret lover, the husband can get this money back.

Psychological damage

Finding out that your partner has been having an affair can be a heartbreaking experience and cause serious emotional and psychological problems. Not only is it overwhelming information to deal with, but it can also be the turning point in a relationship from “ignorance is bliss” to filing for divorce. MaritalHealing.org maintains that infidelity can cause something called acute distress disorder. This can include the following symptoms:

  • Detachment from reality
  • Sadness and despair
  • Intense feelings of rage, hatred and the need for revenge
  • Fear and anxiety
  • Low self-esteem

How detrimental to a person’s mental health is finding out that the person you trusted enough to share a life with has been hiding their true feelings and has essentially replaced you with some other person? Victims often ask themselves what that person has that they don’t, but the answers are never satisfying.

Most people may not realize that being unfaithful actually inflicts some psychological damage on themselves as well as their unsuspecting partner. NetDoctor.co.uk states that those who go down the path of adultery can suffer from intense guilt and depression as feel they are always hiding their true feelings and looking for an escape from their marriage problems.

Adultery is never a healthy experience.

Cheating can do more damage than just erase any trust between two people that used to be in love. It can have financial implications if the couple does decide to divorce and the judge is sympathetic toward the victim of infidelity. There are long-lasting emotional problems that occur as a result of both parties in a broken marriage. These can easily be avoided if a person can be honest and deal with the problems in a marriage instead of looking for short term satisfaction with an affair.

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