WHAT IS A RETAINER AGREEMENT?

A retainer agreement is a legal contract between a law firm (or attorney) and the client by which the client agrees to hire the law firm for particular legal services.  The retainer agreement provides a detailed description of the parties to the agreement, the scope of legal services to be performed, the rules and manner in which those services will be performed, and a recitation of the agreed-upon fee arrangement between the parties.  Generally speaking, the law firm will require the client to review the agreement, sign the agreement if there are no changes to be made, and return the executed agreement along with a retainer fee (or deposit) to the law firm before any legal services are performed on a particular matter.

Authored by: Scott A. Meyer and John Sokatch

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Chalker Flores, LLP provides business, corporate, litigation and intellectual property legal services to individuals, inventors, entrepreneurs, start-ups, spin-offs, universities, research institutes, and small to large public and private companies and businesses.  Founded by Dr. Edwin Flores and Daniel Chalker, additional partners include Scott Meyer, Chainey Singleton and Tom Jacks.  The lawyers of Chalker Flores, LLP provide big-firm expertise with boutique service and pricing.

If you would like more information about Chalker Flores, LLP, or to schedule an appointment please contact us 214-445-4040 or info@chalkerflores.com.  Please follow us on Twitter at @chalkerflores.

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Websites’ Terms of Use Agreement Traps

In response to the steady increase in online shopping and cyber-transactions, several website owners have resorted to implementing more precarious measures to increase website activity while still protecting the website’s legal interests.  Generally, “Terms and Conditions” of use for the website are accepted by forcing the user to manually click an “I Agree” or “Accept” button—a method termed in the industry as “Clickwrap” agreements.  This method of acceptance has been highly criticized for the manner in which it seemingly misleads consumers into accepting terms of which they are not fully aware.

More recently, however, many online shoppers have been forced to deal with a newer form of terms acceptance known as “Browsewrap” agreements.  Unlike the more readily-apparent “Clickwrap” agreements, “Browsewrap” agreements allow website owners to indiscreetly cache the content of such agreements somewhere on the website, which then become accessible only by clicking on the hidden hyperlink.

These “Browsewrap” agreements recently came under heavy judicial scrutiny when the online shopping website Zappos.com attempted to compel arbitration in a lawsuit with several customers whose online accounts had been hacked.  See In re Zappos.com, Inc., Customer Data Security Breach Litigation, Civ. No. 3:12-cv-00352-RCJ-VPC (D. Nev. Sept. 27, 2012).  Zappos.com’s “Disputes” section, which was buried within the site’s “Browsewrap” agreement, permitted Zappos to compel arbitration in the event a dispute arose between the website and the purchaser.

Despite the broad and liberal federal policy favoring arbitration, the District Court of Nevada maintained that “arbitration is a ‘matter of contract,’ and no party may be required to submit to arbitration [in] ‘any dispute which he has not agreed so to submit.’”  Id. (quoting Howsam v. Dean Witter Reynolders, Inc., 537 U.S. 79, 79 (2002).

In finding for the plaintiffs, the court struck down the arbitration provision because (1) the purchasers were never prompted to accept those terms and conditions, and (2) the provision permitted Zappos to unilaterally change the terms, thereby rendering the contract illusory.  The court’s ruling reinforced the notion that, notwithstanding the increased popularity of buying and selling on the Internet, such paradigmatic shift may not overcome even the basic principles of contractual formation (i.e., offer, acceptance, meeting of the minds, and consideration).  As such, the Zappos.com opinion appears to have essentially negated the enforceability of “Browsewrap” agreements, barring evidence that the user actually possessed constructive knowledge of their existence and terms of use.

Authored by: Scott A. Meyer and John Sokatch.

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Chalker Flores, LLP provides intellectual property, business, corporate and litigation legal services of the highest quality.  Founded by Dr. Edwin Flores and Daniel Chalker, additional partners include Scott Meyer, Chainey Singleton and Tom Jacks.  The lawyers of Chalker Flores, LLP provide big-firm expertise with boutique service and pricing.  Clients include individual inventors, start-ups, spin-offs, major national universities, research institutes and medium to large corporations.

If you would like more information about Chalker Flores, LLP, or to schedule an appointment please contact us 214-866-0001.  Please follow us on Twitter at @chalkerflores.

New Rule Proposals for Expedited Lawsuits in Texas

In 2011, the Texas Legislature passed HB 274 which, in part, mandated that the Texas Supreme Court promulgate rules for expedited actions.  The intent behind HB 274’s mandate was to facilitate more efficient and speedier resolutions of lawsuits involving disputed amounts of $100,000 or less.

The following highlights of the proposed rules regarding expedited actions will be available for comment through February 1, 2013, and will take final effect on March 1, 2013:

Tex. R. Civ. P. 169 (new)

  • Would mandate the “expedited actions process” to apply in all causes of action where the claimant seeks monetary relief of $100,000 or less (excludes lawsuits seeking non-monetary relief).
  • Would cap the amount recoverable under the expedited actions process to $100,000.
  • Would allow removal from the expedited actions process only with “good cause” or upon filing of an amended or supplemental pleading seeking relief (i) other than monetary relief or (ii) in excess of the $100,000 limit.
  • Would limit the entire trial process (i.e., jury selection, opening statements, presentation of evidence, direct and cross-examination of witnesses, and closing arguments) to a total of 5 hours.
  • Would preclude the court from ordering parties to engage in alternative dispute resolution (such as mediation), unless the parties previously consented to such a process by agreement or contract.
  • Would prohibit challenges to expert testimony unless requested by the party sponsoring the expert.

Tex. R. Civ. P. 190.2 (amended)

  • Discovery period would run from time the suit was filed until 180 days after the first discovery request is served on a party.
  • Would restrict the total time for examination and cross-examination of witnesses in oral depositions to 6 hours.  Time could be increased to 10 hours on agreement by the parties.
  • Would limit written discovery to 15 requests for interrogatories, 15 requests for production, and 15 requests for admissions.
  • Would permit a party to submit additional disclosure requests of all documents, electronic information, and tangible items that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.  Such additional requests would not count against a party’s requests for production.

Authored by: Scott A. Meyer and John Sokatch.

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Chalker Flores, LLP provides intellectual property, business, corporate and litigation legal services of the highest quality.  Founded by Dr. Edwin Flores and Daniel Chalker, additional partners include Scott Meyer, Chainey Singleton and Tom Jacks.  The lawyers of Chalker Flores, LLP provide big-firm expertise with boutique service and pricing.  Clients include individual inventors, start-ups, spin-offs, major national universities, research institutes and medium to large corporations.

If you would like more information about Chalker Flores, LLP, or to schedule an appointment please contact us 214-445-4021.  Please follow us on Twitter at @chalkerflores.

Dallas Litigation Attorney Thomas G. Jacks AV Rated By Martindale-Hubbell® Peer Review Ratings™

The law firm of Chalker Flores, LLP is pleased to announce that one of its partners, Thomas G. Jacks, has been honored by Martindale-Hubbell with the prestigious AV® Preeminent rating.  The highest honor offered by Martindale-Hubbell, the preeminent rating is designed to acknowledge both ethics and quality of work in the legal field.

The Martindale-Hubbell® Peer Review Ratings™ are an objective indicator of a lawyer’s high ethical standards and professional ability. To achieve the AV Preeminent rating, a lawyer must receive a top rating in five categories from attorney peers.  The categories include the attorney’s legal knowledge, analytical abilities, judgment, communication ability and legal experience.  Mr. Jacks was ranked and succeeded in receiving a rating of the highest level of professional excellence.

Mr. Jacks focuses his practice on patent, trademark, copyright, and business litigation matters. His experience also includes prosecuting and defending commercial general liability claims related to construction, farm, motor vehicle, and premises liability matters.  He is licensed in Colorado, Mississippi and Texas.

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Chalker Flores, LLP provides intellectual property, business, corporate and litigation legal services of the highest quality.  Founded by Dr. Edwin Flores and Daniel Chalker, additional partners include Scott Meyer, Chainey Singleton and Tom Jacks.  The lawyers of Chalker Flores, LLP provide big-firm expertise with boutique service and pricing.  Clients include individual inventors, start-ups, spin-offs, major national universities, research institutes and medium to large corporations.

If you would like more information about Chalker Flores, LLP, or to schedule an appointment please contact Eileen Cortez at 214-445-4026.

Copyright Violation Alert Process for Internet Subscribers

In December of 1999, several record companies filed a complaint for contributory and vicarious copyright infringement against, Napster, Inc., for illegal activities perpetuated by Napster’s online Peer-to-Peer (“P2P”) filing-sharing network program.  Since the filing of that lawsuit, the Recording Industry Association of America (“RIAA”) reports that music sales in the United States have dropped nearly 53%, due in large part to illegal downloads of copyrighted works on these P2P programs.

In response to this ongoing problem, the Center for Copyright Information (“CCI”), a collaborative partnership between U.S. content creators in the music and movie industries and various Internet Service Providers (“ISPs”), has promulgated a new system, the Copyright Alert System (“CAS”), that it hopes will be implemented by U.S. ISPs to curtail future instances of online infringement.  CCI reports that this system will be similar to credit card fraud alerts whereby the ISPs will send letters and educational information to those individuals suspected of illegally downloading copyrighted material through the use of the ISP networks.

By way of example, CCI’s website provides the following proposed system in response to a notification from a copyright owner of alleged infringing activities by an ISP subscriber:

  • First Alert: ISP will send an online alert to the subscriber, such as an email, which notifies the subscriber of possible misuse or involvement with infringing activities.  The email will also provide educational information to avoid future infringement and legal means to obtain copyrighted materials.
  • Second Alert: ISP will send a similar notification to that of the First Alert, reinforcing protective measures and alternative means to legally obtain material.
  • Third Alert: ISP will send similar notification to the two previous instances, but will also require subscriber to confirm, through pop-up notice or landing page, receipt of this notification.
  • Fourth Alert: ISP will send similar notification to the Third Alert, again requiring confirmation of receipt.
  • Fifth Alert: ISP will take steps outlined in its published policies and alerts to stop further infringement by the subscriber, including reduction of Internet speeds, redirection to a landing page until the subscriber contacts the ISP to discuss alleged infringement, or any other measure necessary to stop further infringement.
  • Sixth Alert: ISP will implement similar procedures to those taken with Fifth Alert, but CCI believes it would be unlikely for anyone to get to this point after receiving multiple notifications.

In addition to the above system, an ISP subscriber could request an independent review by the American Arbitration Association (“AAA”) if he or she believes the infringing activities were not of his or her own doing.  Likewise, CAS would not require any ISP to terminate the subscriber’s account, including other services such as telephone, email, security or health services.

While the extent to which the CAS procedures and similar measures will actually curb online infringing activities remains unknown, such efforts by those partnered with CCI will likely prove to be an important step in mitigating the instances of future illegal downloads and ultimately protect the innovative spirit of those availing themselves of U.S. copyright laws.

Center for Copyright Information, Copyright Alert System (CAS), http://www.copyrightinformation.org/alerts (last visited November 16, 2012).

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Chalker Flores, LLP provides intellectual property, business, corporate and litigation legal services of the highest quality.  Founded by Dr. Edwin Flores and Daniel Chalker, additional partners include Scott Meyer, Chainey Singleton and Tom Jacks.  The lawyers of Chalker Flores, LLP provide big-firm expertise with boutique service and pricing.  Clients include individual inventors, start-ups, spin-offs, major national universities, research institutes and medium to large corporations.

If you would like more information about Chalker Flores, LLP, or to schedule an appointment please contact Scott Meyer at smeyer@chalkerflores.com or 214-866-0001.  Please follow us on Twitter at @chalkerflores.

Music Industry Filing Lawsuits Against Bars and Restaurants for Copyright Infringement

Due to the ever-increasing advances and efficiency over the past few decades in the way we share various forms of information, several royalty collection agencies, such as Broadcast Music Incorporated (“BMI”) and American Society of Composers, Authors, and Publishers (“ASCAP”), have begun ratcheting up their efforts to protect the music industry from copyright infringement.  These efforts now, specifically, have focused upon several bars and restaurants that play music, albeit copyrighted material, as a way to provide a certain ambiance to their establishment and attract more business.

Generally speaking, bars and restaurants are expected to obtain performance licenses from these agencies which, in turn, permit them to play copyrighted works at their establishments for negotiated fees.  But with the recent uptick in karaoke nights, cover bands, hired DJs, and general free-play provided by bars and restaurants, the cost-benefit of cutting through the music industry’s red-tape when compared with the perceived low probability of getting caught has now led to several well-known and respected establishments receiving attorney letters and federal lawsuits due to their business oversight.

For example, just this past year, the Ninth Circuit denied the appeal of a judgment for nearly $200,000 in damages, attorneys’ fees, and costs against a Long-Beach, California restaurant, Roscoe’s House of Chicken and Waffles, for alleged copyright infringement of various John Coltrane numbers, among others, where Roscoe’s allowed these songs to be played for its patrons.

While many bars and restaurant owners may think the time and costs associated with obtaining these licenses is not a business savvy investment in the short-run, not changing their practices may eventually force owners to invest larger sums in the long-run for legal fees and costs in defending lawsuits against agencies like BMI and ASCAP.

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Chalker Flores, LLP provides intellectual property, business, corporate and litigation legal services of the highest quality.  Founded by Dr. Edwin Flores and Daniel Chalker, additional partners include Scott Meyer, Chainey Singleton and Tom Jacks.  The lawyers of Chalker Flores, LLP provide big-firm expertise with boutique service and pricing.  Clients include individual inventors, start-ups, spin-offs, major national universities, research institutes and medium to large corporations.

If you would like more information about Chalker Flores, LLP, or to schedule an appointment with one of the attorneys in Dallas or Fort Worth, please contact Tom Jacks at 214-866-0001 or email at tjacks@chalkerflores.com.  Please also follow us on Twitter @chalkerflores.

Dallas Trademark Attorneys, Chalker Flores, LLP, Prosecuted Several Trademarks in January, 2012

Oct 30, 2012 – In January of 2012, Dallas intellectual property, business, corporate and litigation law firm  Chalker Flores, LLP, successfully prosecuted several trademarks the United States on behalf of its clients. The newly registered trademarks include: SATISFI TEA®,U.S. Trademark Reg. No. 4,080,187; B&D LITHO® (Stylized), U.S. Trademark Reg. Nos. 4,082,312, 4,082,313 and 4,082,452; ATLAS TAG & LABEL®, U.S. Trademark Reg. No. 4,084,095; and RAILROAD CHAPLAINS® (RRC) (Logo), U.S. Trademark Reg. No. 4,082,727.

ABOUT CHALKER FLORES, LLP

Chalker Flores, LLP provides intellectual property, business, corporate and litigation legal services of the highest quality.  Founded by Dr. Edwin Flores and Daniel Chalker, additional partners include Scott Meyer, Chainey Singleton and Tom Jacks.  The lawyers of Chalker Flores, LLP provide big-firm expertise with boutique service and pricing.  Clients include individual inventors, start-ups, spin-offs, major national universities, research institutes and medium to large corporations.  If you would like more information about Chalker Flores, LLP, or to schedule an appointment please contact Cynthia Minchillo at cminchillo@chalkerflores.com or 214-445-4060.