Forum speakers addressed timely topics such as renewable energy policy and technical advances in solar energy production.  In his keynote address, Steven Chu, U.S. Secretary of Energy, called on Congress to extend tax credits to help bolster the renewable energy industries.  An exposition was also held so that developers and manufacturers involved in solar power generation could showcase their products and services.

The members of Underwood’s Renewable Energy Practice Group feel that it is important to maintain a working knowledge of different renewable technologies.  This is especially true in light of the ever-changing developments in wind energy.  The Panhandle area is well suited for wind energy, but other opportunities for local renewable energy production should not be discounted.

On Sunday, May 6, 2012, the All Rise America National Relay for Recovery passed through Amarillo, Texas during its cross-country tour. All Rise America is part of the National Association of Drug Court Professionals and is designed to support the push by several jurisdictions to help fight drug use amongst citizens by offering individuals that have been charged with drug-related crimes the opportunity to avoid jail time and get their lives back on the right track. The program offers a plan that involves the court system and local law enforcement and allows individuals to get treatment to help solve their drug problem instead of merely serving time in jail.

The All Rise America National Relay for Recovery is a cross-country relay, spanning from Santa Ana, California to Washington, D.C., in which participants in the relay carry the All Rise Gavel across the country to raise awareness about the drug court program. Local District Judge John Board, of the 181^st District Court, hosted the All Rise America travelers for a cookout at Tripp’s Harley Davidson on May 6, 2012. Underwood lawyers Slater Elza and Matt Sherwood cooked lunch for the travelers, which consisted of drug court graduates, drug court professionals, veterans, and concerned citizens.

For more information about drug courts or about All Rise America, please visit www.nadcp.org.

On Saturday April 5, 2012, several Underwood lawyers volunteered their time to help with the Amarillo Area Bar Association Spring Institute Seminar.  The Underwood attorneys arrived early and prepared a large breakfast for the Seminar attendees.  The picture below includes Hon. James T. Campbell, along with several of the Underwood attorneys from the event.

May you beat your ex-spouse, file bankruptcy, and discharge the punitive damage judgment resulting from the personal injury claim?  Short answer:  No. 

In In re Larsen, 2012 U. S. App. LEXIS 7793 (7th Cir. 2012), the court described the factual background as follows:

The defendant in this adversary proceeding in bankruptcy, David Larsen, attempted to murder his ex-wife, Teri Jendusa-Nicolai. He was convicted of state and federal crimes and sentenced to life in prison. Although his attempt had failed, he had inflicted severe injuries that resulted in her suffering a miscarriage and the amputation of all her toes; for after beating her with a baseball bat he had sealed her in a garbage can filled with snow and left it (and therefore her) in an unheated storage facility, causing severe frostbite. In a tort suit that she brought together with her present husband and her two daughters, a Wisconsin state court awarded  [*2] her a $3.4 million judgment against Larsen for battery, false imprisonment, and intentional infliction of emotional distress, and her husband and daughters $300,000 for loss of consortium.

After the state court judgment (and presumably, the criminal conviction), the debtor filed for Chapter 7 relief.  The ex-wife filed an adversary proceeding seeking to have her judgment found nondischargeable under 11 U.S.C. § 523(a)(6), which provides that debts “for willful and malicious injury by the debtor to another entity or to the property of another entity” are nondischargeable.

Collateral estoppel (issue preclusion) precluded the debtor from challenging the findings from the state court judgment, and not surprisingly, the Seventh Circuit affirmed the bankruptcy court’s ruling that the judgment resulting from the physical injuries caused by the debtor were nondischargeable.

The opinion is not all that notable for its outcome, but it is authored by Justice Richard Posner, who has long been considered an influential jurist.  Posner examined two things of interest in the opinion:

Punitive Damages:  First, the debtor challenged the applicability of a nondischargeablity finding to the punitive damage portion of the state court judgment.  Posner made quick work of this, noting that “punitive damages are a debt owed by a tort-feasor to his victim, and in this case they are a debt consequent upon a willful and malicious injury.”  Id., citing Fischer v. Scarborough, 171 F.3d 638, 644-45 (8th Cir. 1999). 

Similarly, the court found awards for loss of consortium also nondischargeable, noting that although derivative in nature, they derived from the intentionally caused injury.

Willful and Malicious Injury in other Circuits: Second, Judge Posner compared the various definitions that had been given by other Courts of Appeals to the phrase “willful and malicious injury.”  For example, most familiar to readers in the Fifth Circuit is the concept that “willful and malicious injury” equates to “either an objective substantial certainty of harm or a subjective motive to cause harm.”  Miller v. J.D. Abrams, Inc., 156 F.3d 598, 606 (5th Cir. 1998).

The court noted that other circuits had developed definitions that differ to a certain degree, but after exploring examples from other circuits, Judge Posner concluded as follows:

But whatever the semantic confusion, we imagine that all courts would agree that a willful and malicious injury, precluding discharge in bankruptcy of the debt created by the injury, is one that the injurer inflicted knowing he had no legal justification and either desiring to inflict the injury or knowing it was highly likely to result from his act.

Noting that many courts repeat the mantra that the purpose of bankruptcy is to provide relief for “honest debtors,” Posner observed that the purpose of bankruptcy is actually twofold – that is, to grant the honest debtor a fresh start and “to minimize creditors’ losses from defaults.”    

The Court concluded that the entire state court damage award was nondischargeable.

[The district court’s opinion can be found at Larsen v. Jendusa-Nicolai, 442 B.R. 905, 2010 U.S. Dist. LEXIS 137662 (E.D. Wis., 2010).]

*Roger Cox, a shareholder with the Underwood Law Firm, is Board Certified in Business Bankruptcy Law (and formerly Board Certified in Commercial/Real Estate Law) by the Texas Board of Legal Specialization and a member of the American Bankruptcy Institute.  Mr. Cox is a co-author of Bankruptcy Road Map, published by the State Bar of Texas, and he most recently served on the faculty of the SBOT’s 2011 Advanced Business Bankruptcy Course. 

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.

1. Generally

Passed in 2008, GINA was passed by Congress to prohibit the use of genetic information in health insurance and employment. It is codified at 42 U.S.C.A. § 2000ff. The statute provides that it shall be an unlawful employment practice for an employer to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee; or to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee. 42 U.S.C.A. § 2000ff-1(a). GINA also limits the employer’s ability to request, require, or purchase genetic information of employees or family members of employees. 42 U.S.C.A. § 2000ff-1(b).

2. “Genetic Information”

The definition of “genetic information” in the statute does not just encompass genetic testing of individuals. “Genetic information” also includes “the manifestation of a disease or disorder in family members of such individual.” 42 U.S.C.A. § 2000ff(4)(a)(iii).

It is this final definition that can most often cause a problem for employers during the pre-employment screening process. It is easily possible for an employer to obtain information related to the medical history of an individual’s family inadvertently. A mere slip of the tongue by the individual during the interview process could divulge the information. A simple Google or Facebook search by the employer could turn up information about the medical history of an individual’s family member.

If an employer receives information that an individual’s family member(s) have suffered from a disease or disorder, the employer may not consider such information in making decisions regarding hiring, compensation, conditions of employment, employment terms, or privileges of employment. Although employers typically will not use this information, the mere fact that the employer received the information (even if unintentional) could give the applicant a sufficient ground to bring a discrimination claim under GINA. Although the employer could likely defend against such a claim, the employer will face the burden of attorneys’ fees and the negative publicity that surrounds any discrimination case.

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.

We congratulate Andrea Slater Gulley, one of the shareholders in Underwood, as she recently attended a Leadership Texas session in El Paso, where the focus was: “The Future of Bi-Nationalism: The possibilities, the realities, and the critical needs.”

During the session, Mrs. Gulley visited the Kay Bailey Hutchinson Desalination Plant (El Paso Water Utilities), and learned about El Paso’s aggressive and creative approaches to solving problems created by limited water supplies.  Mrs. Gulley also visited Fort Bliss, where she learned about various helicopters used by the Army and visited with soldiers.  (See the photograph)

Mrs. Gulley also toured the Centro de Salud Familiar La Fe, a center that focuses on the total wellness of its community.  La Fe began four decades ago, when a vision was born in El Paso’s Segundo Barrio, one of the nation’s most impoverished and marginalized communities.  Inspired by a hope for justice and a better future for their children, the founding members – brave, single working mothers who dared to dream – mobilized together to create an organization that would address the community’s health care needs and well-being.

Mrs. Gulley also learned about the El Paso Community Foundation, which was established in 1977 as a permanent endowment for the long term benefit of far West Texas, southern New Mexico and northern Chihuahua, Mexico. It serves as a charitable resource to donors, nonprofit organizations and the community at-large.  The Foundation awarded over $3.7 million to area nonprofit organizations in 2010, and has been instrumental in creating a healthier region.

We thank Mrs. Gulley on her dedication and commitment to both the Underwood Law Firm and Leadership Texas and are proud to have her as a member of our team.

A little-known move was made by the Texas legislature effective September 1, 2011, that may have done away with the need for a Notary Public in most circumstances.  Other than for taking an oath of office or another oath required to be taken before a specified official other than a Notary Public, an “unsworn declaration” can be used instead of a notary.  The form of the unsworn declaration is:

My name is _______________, my date of birth is __________, and my address is ____________________________ (including county and zip code).  I declare under penalty of perjury that the foregoing is true and correct.

Executed in __________ County, State of Texas, on the ______ day of ___________

__________________________________

                                                            Declarant

An alternate form is required if the person signing the document is an inmate.  See Section 132.001 of the Texas Civil Practice and Remedies Code for details of the new law.

As with any new law, it is yet to be seen exactly how this will work in practice.  If a notary is available, the best practice is to continue using a notary.  Among other reasons, it eliminates (or at least drastically limits) any question about who actually signed the document because the notary either had to have known the declarant personally or must have reviewed a valid photo ID.  But, if a notary is truly unavailable, this unsworn declaration may now take a notary’s place.

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.

Underwood’s efforts in the wind energy industry and our contacts continue to confirm the world-wide interest in the continuing development of the wind resources in the US and, particularly, the “wind corridor” running from the Texas Panhandle and South Plains to Canada.

Importantly, the trip so offered Alan and I the opportunity to meet with our Danish friends, which is always a pleasure.  As an added bonus, we made some new friends that were representing the State of Oklahoma at EWEA.

While EWEA is somewhat smaller than American version (AWEA) scheduled for early June, 2012 in Atlanta, however, we look forward to continuing our conversations with a number of the people and companies that were at EWEA and will be attending AWEA in a few weeks.

For more information on the conference, click here.