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To mark Memorial Day, let us recall two area San Antonio heroes. They were both friends of mine. They both died in war zones back in 2005 and 2006 when I was deployed myself.

SSGT Clinton Newman was a fine soldier. He was a bright young man in the 321st Civil Affairs Brigade during my brief time with the 321st here in San Antonio. One of the nice things about being in your hometown unit is that I actually ran into a member of my unit at a movie. I ran into SSGT Newman when he was at a movie with his girl and I was with mine. He was one of the few 321st soldiers still here back in late 2003 and early 2004, while most of the unit was deployed. See a biographical sketch to learn more about someone who would have been a fine citizen of San Antonio and was already an excellent soldier.

I served with Albert E. Smart way back in the 2/141 Infantry Battalion in Corpus Christi. We were young company commanders together. Albert was gung-ho and always smiling. Years later, I was quite surprised to see him in the 321st CA Brigade here in San Antonio. He deployed in 2005 and passed away in Kuwait on the way to Afghanistan. It was such a shock that someone so young, in such good physical shape would pass away from an illness. I think Heaven is in much better physical shape now that Albert is there. And, I expect there are a great many more smiles among its citizens. See a memorial here to learn more about my buddy, Albert.

SPC Vincent Ibarria, 21 years old, died in Afghanistan recently. SPC Ibarria was assigned to the 10th Mountain Division. He died in a vehicle rollover accident. SPC Ibarria joined the Army in 2017. He was described as a soldier who always volunteered. He believed firmly in the motto, “Choose the harder right over the easier wrong.”

He liked soccer and track and field. His buddies said he also liked boxing and golf. SPC Ibarria’s awards include the National Defense Service Medal, the Global War on Terrorism Service Medal, the Afghanistan Campaign Medal with Campaign Star, the Army Achievement Medal and the Army Service Ribbon. See San Antonio Express News report here.

Judge Fred Biery is a wonderful asset to the San Antonio legal community. Recently, he demonstrated again why he is the right judge at the right time. One of the costliest and most time-consuming lawsuits in recent memory is the House Canary v. Quicken Loans, Inc., No. SA-18-CV-0519 (W.D. Tex. 8/14/2018) lawsuit. A few months ago, a Bexar County jury awarded $700 million to the tech startup, House Canary. The lawsuit stems from a subsidiary of Quicken Loans which had asked House Canary to develop software. The subsidiary sued for fraud and breach of contract. Quicken Loans lost in one of the largest jury verdicts in Bexar County ever. See San Antonio Business Journal report here.

Quicken Loans then filed a related lawsuit in federal court. House Canary moved to dismiss or to transfer the suit to Michigan. At issue are jurisdiction, venue, and opposition to injunctive relief, all the normal requisites for time-consuming and expensive litigation. Judge Biery often speaks to the increased cost of lawsuits. His father and uncle were well known trial lawyers in San Antonio. Judge Biery is qualified to speak to the increased litigation costs in today’s society.

So, he called for a status conference, likely anticipating yet another drawn out legal battle. He wanted the parties to act in a civil manner. He expects zealous advocacy, he said, but no “elementary school behavior.” He expects the parties to produce all information requested in discovery. Lay the cards on the table, he ordered. The Court observed, and the respective lawyers surely know, that all would be revealed anyway if the case is appealed and then remanded. It would be more efficient to first produce what you have.

He asked the parties (i.e. the respective lawyers) to avoid “shrill” pleadings. He warned them that he has in past lawsuits ordered opposing lawyers who violated his rules to sit in timeout in the rotunda of the courthouse. He ordered another set of lawyers to kiss each other on the lips in front of the Alamo with cameras present. He discussed indirectly the change in litigation in San Antonio. Once the city was home to some 300 lawyers, all of whom, knew each other. They did not need court orders, because once they reached an agreement, they would abide by that agreement. He seemed then to point the finger at “Yankee” lawyers, that is lawyers moving into the state from the north and western regions of the country. He helped to make his point by including a map of Texas with arrows pointing at the state boundaries from Oklahoma and New Mexico, indicating migration from those states and beyond. He reminded us of a saying by Hobart Huson, a former San Antonio lawyer and historian, “Texans, you are guarding the wrong river.”

The Judge is certainly correct that us lawyers are more litigious than our predecessors. But, perhaps, if we start guarding the right river, we can find a balance. See Judge Biery’s order here.

Federal employees have a wide range of options when they run into problems at work. One of those options is the Office of Special Counsel. OSC has the mandate to investigate fraud and violations of law. But they receive too many complaints and lack enough staff to investigate all those complaints. But, one San Antonio federal worker succeeded in attracting the attention of OSC. A Veterans Affairs worker named Jamie McBride complained about the process for transplants at the V.A. hospital.

He said veterans were being short-changed because they were being required to travel to distant V.A. hospitals in Houston and Nashville for heart, lung, liver and kidney transplants. Yet, when the veteran travels to these distant locales, they were actually being treated in non-VA hospitals. Mr. McBride pointed out that several San Antonio area hospitals performed these transplants. For unknown reasons, the V.A. refused to enter into contracts with those local hospitals.

After hearing the V.A.’s explanation, the OSC found Mr. McBride was correct. The V.A. imposed unreasonable eligibility criteria for persons seeking transplants under the Choice program. The OSC found that requiring families to re-locate to distant centers caused financial stress for those families. The V.A. argued that the local hospitals would not accept Medicare rates, which is a V.A. requirement. But,. Mr. McBride showed that some 50% of San Antonio hospitals would indeed accept medicare rates for those transplants.

The OSC agreed that the V.A. satisfied the requirements of the statute, but the V.A.’s actions were still unreasonable.

Mr. McBride submitted a complaint to the V.A. Inspector General’s office in 2013. Three years ago, the IG found in his favor. The worker then submitted a complaint to the Office of Special Counsel in Washington, D.C. See San Antonio Express-News report.

Yes, this is the first time I have experienced the OSC finding in favor of a local employee. Indeed, at least in my experience, they accept very few complaints for investigation.

Implicit bias is a concept acquiring some attention. The theory is that as human we have subconscious biases. I have written about the theory before. See my prior post here. The U.S. Supreme Court recognized the theory in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. 2517 (2015). The theory is we tend to filter out certain information based on subconscious biases.

The San Antonio Police Department apparently sees some value in the theory. They have asked Dr. Lorie Fridell, an expert on law enforcement and biases to provide the local law enforcement agency with training on how to deal with biases. In this day of police shootings, one has to consider the possibility that bias may play some role. Too many African-Americans and other minorities have reported being stopped by law enforcement for little or no reason.

The police union opposes the training, saying it starts from the standpoint of racial bias and that officers do not know what they are doing. See San Antonio Express News column by Brian Chasnoff. No, at least, not as I understand the concept. What implicit bias starts with is the standpoint that we are human, with human weaknesses.

Its an “open” secret in Texas jurisprudence: it does not matter what happens in the lower courts, an employer’s or large corporation’s best chance lies in the Texas Supreme Court. The Texas Supreme Court routinely overrules jury verdicts. See my prior post about the high court taking away jury verdicts here and here.

Gilbert Garcia of the San Antonio Express News acknowledges this reality when he talks about the city’s lawsuit against the police and firefighter unions. The city, no surprise here, is relying on appeals to win the lawsuit. See Mr. Garcia’s column here.

In the Nicholas v. SAWS case earlier this year, the Supreme Court actually changed law to reach its desired result. It changed the requirements for showing retaliation cases. Retaliation cases require that a person opposed discrimination in some way before retaliation could occur. Federal courts had required that a person “reasonably” believe his/her conduct opposed discrimination. The Texas Supreme Court added a new requirement that the opposition be tied to actual discrimination, not merely opposing conduct that could become discrimination. It is the difference between opposing possibly discriminatory conduct and actually discriminatory conduct. The higher court essentially chose to protect the latter and not the former.

In the Mission ISD v. Garcia case in 2012, the Texas Supreme Court imposed a new requirement, that a worker must be replaced by someone younger than 40 years old in an age discrimination case. The long-standing precedent in federal court had been that a person need only allege that the replacement worker was “substantially” younger, or that age was a factor in some way. The higher court’s new requirement is very simplistic – or result oriented.

So, sure, as the city seems to realize, the best trial tactic is to appeal.

San Antonio based restaurant China Sea, agreed to pay $504,577 to 82 former workers for minimum wage, overtime and record-keeping violations. China Sea used two sets of books, one real, one not so real. Some kitchen workers were paid a salary that did not equate to minimum wage. And some workers worked 60 hours per week, but their hours were not recorded. And, servers were not properly paid. The Department of Labor filed suit against the corporate owner, PCXAC LLC and WKHK Investment LLC, which own three China Sea restaurants. The suit originally sought over $1 million in damages on behalf of 164 workers.

The lawsuit was filed in 2012. The parties completed discovery and apparently agreed to a settlement after a mediation session. See Cause No. 12-CV-1210. See San Antonio Express News report.

Well, I guess it is going to snow this coming July, or at least in March. The EEOC has found in favor of an employee. They have found evidence of discrimination. Finding in favor of the employee may not be as rare as snow in July, but it does approach the rarity of snow in March. Two employees of the Animal Care Services for the City of San Antonio filed claims saying they were paid less than male workers who preformed the same work. 

Christine Peden and Jeanne Martinez filed claims based on the Equal Pay Act. The City responded that the salaries were based on a variety of factors. It said raises were limited to to 5% and that new hires would only receive minimum wage. But, later they admitted that on occasion, the City would make an exception. The City did make an exception for one male manager. The EEOC found that change in its response to amount to pretext. Even worse, the City disciplined the two women for discussing wages. They were counseled in writing for spreading "rumors, gossip" and helping create dissension. See San Antonio Express News report here (account required). 

The thing about wage issues is workers cannot know what others make without engaging in some form of "gossip." So, disciplining workers for engaging in such discussions is prohibited by a few statutes. It was exceedingly unwise for the manager to discipline them for discussing wage issues. 

Equal Pay Act claims are notoriously difficult. See one of my prior posts about the EPA here. But, it looks like the City made a difficult case much easier for these two women. 

Yes, these things really do happen. I just uttered those words a few days ago and then come this story about a local lawyer who asked a client to kill his former office manager. Paul Andrews, a San Antonio lawyer, wanted to kill his former office manager, according to a report in the San Antonio Express News. The former office manager, Maryann Uribe, is the main witness against him in a barratry lawsuit. Barratry refers to the crime of soliciting clients. The Texas legislature made barratry lawsuits economically attractive a few years ago by allowing some percentage of any recovery for the person bringing such a lawsuit. So, now barratry lawsuits are economically viable.

The lawsuit against Mr. Andrews is currently pending in Nueces County. Mr. Andrews has offices in Corpus Christi and in San Antonio. The lawsuit has been ongoing for three years now in a few different counties. 

Mr. Andrews, according to the report, offered a client a discount on his attorney fee for a case, if he would perform a favor for him. Mr. Andrews explained that this was the best way to pay the client without leaving a paper trail. Mr. Andrews indicated to the client that he would not mind if Ms. Uribe was run over by a car or killed. Mr. Andrews was recorded while affirming his desire to have Ms. Uribe killed. 

Yes, these things do happen. Those crazy episodes on Boston Legal – the ones I always described as so unrealistic – reflected more reality than I realized. 

If true, this lawyer deserves the award for the most moxie. According to a recent San Antonio Express News report, Andrew Toscano in effect represented both sides to a lawsuit. In a personal injury lawsuit, R.D. Galvan and Luciano Morin sued the Chili’s Restaurant chain after the two men were in an automobile wreck. The two had consumed alcoholic drinks at the restaurant shortly before a one-car accident. Mr. Galvan was supposedly represented by Michael De La Paz. He thought he was suing the restaurant. But, in reality Mr. Galvan had sued and then been counter-sued by his friend, Luciano Morin. 

The restaurant is in Pleasanton. Yet, the suit was filed some 150 miles away in Duval County, one of the places personal injury lawyers love to file suit. 

Mr. Toscano denies ever having represented Mr. Galvan. But, Mr. Galvan says he signed a contract hiring the Toscano law firm. Michael De La Paz shared office space with Mr. Toscano at the time. Mr. Galvan’s current lawyer believes Mr. Toscano and Mr. De La Paz cooked up this scheme to file the suit in Duval County and extract money from Chili’s and Mr. Galvan’s insurance company. Mr. Galvan’s new lawyer says the worst part was that representing Mr. Morin, Mr. Toscano claimed in legal pleadings that Mr. Galvan was driving the company truck. Yet, the police report and Mr. Galvan’s own statement said Mr. Morin was driving the truck. 

Eventually, Chili’s settled the claim that it had served the two men too much alcohol for $300,000. That money is now being held in the registry of the court and is being disputed. 

Yes, these things really do happen.