Jaywalking laws have a history of less than a century in the United States.^[1] The term “jaywalking” itself is defined differently across jurisdictions,  frequently covering scenarios in which a pedestrian’s actions may not seem illegal. For example, in California, stepping into the crosswalk after the countdown has begun is an infraction, even if there is enough time to cross the road. But changed on January 1, 2018:^[2] Governor Jerry Brown recently signed Assembly Bill No. 390,^[3] which makes it legal to enter the crosswalk after the countdown signal has begun.^[4] The bill was introduced by Assembly member Miguel Santiago and was passed by the California State Assembly and Senate unanimously despite the California Highway Patrol’s opposition.^[5]

Previously, California Vehicle Code §21456(b) did not allow pedestrians to cross the roadway when either a flashing or steady “DON’T WALK” or “WAIT” symbol was showing.^[6] This means that when a pedestrian sees a “DON’T WALK” symbol coupled with a countdown signal, she should avoid crossing the street even when there would be enough time to do it.^[7] Not surprisingly, many pedestrians did not know about this law, and some learned about it the hard way—when they were cited for jaywalking.^[8] The penalty for jaywalking in California can reach up to $250.^[9] Fortunately for pedestrians, the recent amendments will reduce the situations in which they can be cited for jaywalking; studies have shown that when there is a countdown, pedestrians are more likely to start crossing the road than when there is a flashing symbol without a countdown.^[10]

AB 390 amends Veh. C. §21456(b) by distinguishing flashing and steady crossing symbols, further differentiating between the flashing symbols themselves. In particular, if the “DON’T WALK” or “WAIT” symbols are flashing, pedestrians can enter the crosswalk provided that there is also a countdown signal indicating the time left for crossing.^[11] Meanwhile, the same flashing symbols without a countdown have the same effect as steady ones—pedestrians cannot legally cross the roadway when these symbols are displayed.^[12] Thus, this change allows those who can adequately judge their ability to cross the road to avoid citations, while still targeting the ones who step into the street under the risk of seeing the steady hand symbol after a couple of seconds.

In Texas, the law on ”pedestrian control signals” is less nuanced. Texas Transportation Code §552.002 simply states that a “pedestrian may not start to cross a roadway in the direction of a “DON’T WALK” signal or a “WAIT” signal.”^[13]

Sec. 552.002.  PEDESTRIAN RIGHT-OF-WAY IF CONTROL SIGNAL PRESENT.

(a)  A pedestrian control signal displaying “Walk,” “Don’t Walk,” or “Wait” applies to a pedestrian as provided by this section.

(b)  A pedestrian facing a “Walk” signal may proceed across a roadway in the direction of the signal, and the operator of a vehicle shall yield the right-of-way to the pedestrian.

(c)  A pedestrian may not start to cross a roadway in the direction of a “Don’t Walk” signal or a “Wait” signal.  A pedestrian who has partially crossed while the “Walk” signal is displayed shall proceed to a sidewalk or safety island while the “Don’t Walk” signal or “Wait” signal is displayed.^[14]

Thus, the law does not differentiate between steady and flashing signals or mention the countdown signal. Consequently, in Texas, as in California as of 2017, crossing the roadway is not legal unless the pedestrian is facing a walk signal. Considering that there have been complaints about police issuing jaywalking citations in Texas,^[15] the relevant Transportation Code sections may be amended in a future legislative session.

[1] Aidan Lewis, Jaywalking: How the Car Industry Outlawed Crossing the Road, BBC, Feb. 12, 2014.

[2] Doug Smith, Jaywalk No More: New Law Ends Penalty for Crossing Street During Signal Countdown, Los Angeles Times, Oct. 5, 2017.

[3] Assem. Bill No. 390 (2017-2018 Reg. Sess).

[4] Id.

[5] James W Jakobs, New California Law Means No More Jaywalking Tickets During Countdown, ABC 30, Oct. 3, 2017.

[6] Cal. Veh. Code § 21456(b).

[7] Jakobs, New California Law Means No More Jaywalking Tickets During Countdown.

[8] L.A.’s Over-the-Line Crackdown on Jaywalking, Los Angeles Times, Dec. 18, 2013.

[9] Jakobs, New California Law Means No More Jaywalking Tickets During Countdown.

[10] See L.A.’s Over-the-Line Crackdown on Jaywalking.

[11] AB 390.

[12] Id.

[13] Tex. Transp. Code §552.002.

[14] Id.

[15] See, e.g., Ken Kalthoff, Dallas Jaywalking Crackdown Draws Complaints, NBC 5, May 29, 2013.

As 2018 nears, have you taken stock of all of the 2017 legislative changes affecting Texas business law? With helpful legislative summaries and sections-affected charts, let O’Connor’s be your guide to the 85th Legislature’s impact on the Texas Business Organizations Code and the Texas Business & Commerce Code.

O’Connor’s Texas Business Organizations Code Plus 2017-2018  is the complete guide to Texas business organizations—it includes the entire Business Organizations Code, selected Business & Commerce Code sections, the Texas Securities Act, and related statutes, annotated with quotations from controlling cases. This edition includes recent amendments to key statutory provisions, such as:

• Entity names
• Service of process on LLCs
• Enforceability of LLC and LP agreements
• Examination of books and records
• Public-benefit corporations
• Ratification of corporate acts

The new edition also includes the updated Texas Administrative Code title 7, part 7 (governing securities), old versions of statutes that may still govern some litigation (such as the Texas Business Corporation Act), and cross-references to organizational forms that must be filed with the Texas Secretary of State.

O’Connor’s Texas Business & Commerce Code Plus 2017-2018  contains a wide-ranging set of laws governing everything from sales contracts to identity theft. The latest edition has every statutory amendment passed in the recent legislative session, including laws on the following topics:

• Construction contracts
• Credit and debit cards
• Deceptive trade practices
• Music piracy
• Real property foreclosure sales
• Sexually oriented businesses
• And much more.

The 2017-2018 editions of O’Connor’s Texas Business Organizations Code Plus and O’Connor’s Texas Business & Commerce Code Plus are now in stock—visit our online store to order your copy!

WerbeFabrik / Pixabay

The high court in Massachusetts may soon weigh in on issues of substance abuse and the criminal-justice system.

In 2016, Julie Eldred was put on probation for theft.  Conditions of her probation included remaining drug-free and submitting to random drug tests.  Eldred, who says she “was in the midst of active addiction” and “was actively using,” tested positive for the opioid fentanyl only 12 days later. She was sent to jail and released after ten days when her lawyer found her a treatment center.

Eldred’s lawyer, Lisa Newman-Polk, has appealed the case to the Supreme Judicial Court of Massachusetts, arguing in part that by ordering Eldred to remain drug-free, the conditions of Eldred’s probation have violated her constitutional right not to be punished for a status offense.

Newman-Polk makes the argument that courts should consider new understandings about addiction based on scientific research. “An order to be drug-free is an order that a person with a substance use disorder needs to be in remission or cured of addiction. It’s not practical or reasonable, in view of what we know about the brain science and what we know about addiction[.]”

Those opposing Eldred’s case argue that addiction should not be classified as a brain disease and that a probation condition like “remaining drug-free” can help addicts recover. According to Massachusetts’ Assistant Attorney General Maria Granik, “[t]aking away the ability to impose the condition and to have those consequences and that aspect of accountability available when sentencing someone with substance use disorder can actually have a negative impact[.]”

Some are concerned with what a decision favorable to Eldred might mean. They fear that addiction and compulsion defenses would be “easy to raise and hard to adjudicate.”

Regardless of the decision made in this case, this issue may be addressed by legislation. Former Surgeon General Vivek Murthy suggested that we need to look at addiction “[n]ot as a moral failing, but as a chronic illness that must be treated with skill, urgency and compassion.” Further, the surgeon general’s 2016 report called on federal, state, local, and tribal governments to “implement criminal justice reforms to transition to a less punitive and more health-focused approach” because “[l]ess punitive, health-focused initiatives can have a critical impact on long-term outcomes.”

A decision in Eldred’s case is expected by spring.

angrysibarit / Pixabay

Most people are aware of the risks of distracted driving, and over the last decade most states have adopted laws specifically designed to combat the risks of texting while operating a vehicle.^[1] But what about the risks of distracted walking?

Data shows that pedestrian fatalities are on the rise with over 5,900 pedestrian deaths occurring in 2016.^[2] It’s probable that the use of smartphones while walking is at least partly responsible for that increase.^[3] Between 2000 and 2011, an estimated 11,101 injuries were attributed to distracted walking involving cell phones.^[4] While this number includes accidents resulting from distracted walking in the home, a significant number of the injuries occurred in urban areas where distracted walking can cause pedestrians to “trip, cross roads unsafely or walk into motionless objects such as street signs, doors or walls.”^[5] As common sense might suggest, allowing yourself to get distracted while walking is clearly a risky business. But is this an area where local or state governments are likely to step in and try to protect us from ourselves by adopting laws similar to those prohibiting texting and driving? Possibly. At least ten states have debated enacting legislation to combat distracted walking, and as of October 2017, at least one major U.S. city prohibits it.^[6]

Honolulu is thought to be the first major U.S. city to implement an ordinance that allows police to issue a fine for distracted walking.^[7] The ordinance, which went into effect October 25, 2017, states that “[n]o pedestrian shall cross a street or highway while viewing a mobile electronic device.”^[8] The only affirmative defense for a violation of the ordinance is that the pedestrian was using the mobile device to make an emergency call to 911. Fines range from $15 to $35 for a first offense, $35 to $75 for a second offense, and $75 to $99 for subsequent offenses.^[9] In justifying the new ordinance, the city’s mayor, Kirk Caldwell, explained that Honolulu has more pedestrians hit in crosswalks than almost any other U.S. city.^[10] Critics of the ordinance claim that it infringes on personal freedom and suggest that enhancing education for citizens on the responsible use of electronics is a better alternative to overreaching government regulation.^[11]

While Honolulu may be the first major U.S. city to implement a fine for distracted walking, other cities both in the U.S. and internationally are recognizing that distracted walking as a problem and looking for innovative ways to alleviate the risks.  Hayward, California, installed signs reminding pedestrians to cross the road safely and update Facebook later.^[12] The German city of Augsburg placed traffic signals in the ground near certain intersections to catch the attention of phone-using pedestrians. London experimented with padded lampposts.^[13]

It is not yet clear whether other U.S. cities hoping to combat distracted walking are likely to follow Honolulu’s example or turn to other innovative measures. As most states have already adopted laws to decrease distracted driving, however, it seems possible that some states may also adopt laws that target distracted walking.

Texas does not yet prohibit texting while walking, but see O’Connor’s Texas Crimes & Consequences for a discussion of new Texas Transportation Code §545.4251, which prohibits certain uses of mobile devices while driving.

[1] See Insurance Institute for Highway Safety, Distracted Driving.

[2] National Safety Council, Taking Steps to Avoid Injury While Walking.

[3] See id.; Tanya Mohn, Reading This While Walking? In Honolulu, It Could Cost You, New York Times, Oct. 23, 2017.

[4] National Safety Council, Distracted Walking Injuries on the Rise; 52 Percent Occur at Home.

[5] See id.

[6] Mohn, Reading This While Walking? In Honolulu, It Could Cost You.

[7] See Bill Chappell, Honolulu’s ‘Distracted Walking’ Law Takes Effect, Targeting Phone Users, NPR, Oct. 25, 2017; Mohn, Reading This While Walking? In Honolulu, It Could Cost You.

[8] Honolulu, Haw., Rev. Ordinances §15-24.23.

[9] Id.

[10] Chappell, Honolulu’s ‘Distracted Walking’ Law Takes Effect, Targeting Phone Users.

[11] See Eric M. Johnson, Honolulu Targets ‘Smartphone Zombies’ with Crosswalk Ban, Reuters, July 28, 2017.

[12] Mohn, Reading This While Walking? In Honolulu, It Could Cost You.

[13] See Johnson, Honolulu Targets ‘Smartphone Zombies’ with Crosswalk Ban.

The 85th Legislature made over 200 changes to the Texas Estates Code this year! O’Connor’s Texas Estates Code Plus has been updated with all of these legislative changes (including changes from the called session). The title features legislative analysis and a quick-reference chart identifying all amended and enacted sections. Here are just some of the key topics affected by the recent legislation:

• Administration of estates
• Multiple-party accounts
• Beneficiary designations for motor vehicles
• Safekeeping and custody of wills
• Will modification and reformation
• Durable powers of attorney
• Guardianship proceedings
• Supported decision-making agreements
• Fiduciary access to digital assets
• Trusts
• And much more!

This year’s edition is also updated with new annotations from the latest key court opinions, and the charts and timetables have been extensively updated with legislation. Besides the annotated Estates Code, the book also includes the annotated Trust Code and select provisions from a dozen other codes—all updated with 2017 legislation.

O’Connor’s Texas Estates Codes Plus 2017-2018  is now available to order—visit our online store to get your copy!

TheDigitalWay / Pixabay

During the 2017 legislative session, the Texas Legislature enacted new Texas Transportation Code §545.4251, which seeks to improve the safety of the state’s roads by prohibiting certain uses of wireless devices while driving.^[1]

The Ban

Under the new law, it is an offense to use a “portable wireless communication device to read, write, or send an electronic message while operating a motor vehicle unless the vehicle is stopped.”^[2] An electronic message is defined as data read or entered into a wireless device for the purpose of communicating with another person.^[3] This definition encompasses texting and e-mailing, and it likely also includes the use of popular communication applications such as Facebook, Facebook Messenger, and Twitter.^[4] Engaging in a banned use of a wireless device is a misdemeanor offense punishable by a fine ranging from $25 to $99 for a first offense and $100 to $200 for subsequent offenses.^[5]

Limitations on Scope

In addition to establishing the above ban, §545.4251 also contains a few key limitations. First, it is not an offense to engage in an otherwise banned use of a wireless device if the vehicle is stopped.^[6] Second, a peace officer stopping a vehicle for an alleged violation of the statute is not authorized to take possession of or inspect the driver’s wireless device unless doing so is authorized under the Texas Code of Criminal Procedure, the Texas Penal Code, or another law.^[7] Finally, a banned use can be prosecuted only if it is (1) committed in the presence of a peace officer, (2) committed within view of a peace officer, or (3) established by other evidence.^[8]

Affirmative Defenses

Section 545.4251(c) lists a number of affirmative defenses available in a prosecution for violation of the statute. A driver can assert that rather than using the wireless device to communicate with another person, she was using it for navigation or to play music.^[9] If the driver was using the wireless device to communicate with others, she still has an affirmative defense if she was using the device (1) in conjunction with a hands-free device, (2) to report illegal activity, (3) to request emergency assistance, (4) to operate an application that shares traffic information with others, or (5) to read an electronic message that she reasonably believed was related to an emergency.^[10]

A Few Practical Tips

• Be aware that while §545.4251 primarily targets texting and e-mailing while driving, other communicative uses of wireless devices also fall within the scope of the statute.
• Be prepared to be pulled over if using your wireless device while driving. Even if using your wireless device for a permitted purpose, it will often be difficult for peace officers to determine that purpose at a distance.
• Check for local ordinances that impose additional restrictions on the use of wireless devices while driving.^[11] Governor Abbott had hoped for broader legislation that would preempt the local ordinances, but no such bill was passed during the Legislature’s special session.
• Pick up a copy of O’Connor’s Texas Crimes & Consequences for a breakdown of the elements and penalties under §545.4251.

[1] See H.B. 62, 85th Leg., R.S., eff. Sept. 1, 2017.

[2] Tex. Transp. Code §545.4251(b); see also id. §545.425(a)(2) (defining “wireless communication device”).

[3] Id. §545.4251(a)(1).

[4] See Joel Eisenbaum, New Texting While Driving Ban Full of Loopholes, Click2Houston, Sept. 7, 2017; Texas DOT, Cell Phone Ordinances.

[5] Tex. Transp. Code §545.4251(b), (e).

[6] Id. §545.4251(b).

[7] Id. §545.4251(i).

[8] Id. §545.4251(b).

[9] Id. §545.4251(c).

[10] Id.; see also id. §545.425(a)(1) (defining “hands-free device”). The statute contains additional exceptions and affirmative defenses for uses affiliated with a limited number of occupational duties. See id. §545.4251(c)(5), (d).

[11] See Texas DOT, Cell Phone Ordinances.

herbert2512 / Pixabay

We reported in March 2016 that a U.S. district court held that a monkey cannot own the copyright to his selfies. People for Ethical Treatment of Animals (PETA) appealed the district court’s decision, and the court of appeals heard oral arguments in July. But now, the years-long legal battle has come to an end.

A brief flashback—the monkey selfie saga began in 2011 in Indonesia when a monkey named Naruto grabbed a camera that belonged to wildlife photographer David J. Slater. Naruto took selfies with Slater’s camera, which gave rise to a novel lawsuit by PETA. PETA asked the court to recognize Naruto as the owner of the copyright for the pictures. As mentioned above, the court declined to recognize the monkey as the copyright owner. (For more on the lawsuit and its development, see our previous posts – Can Anyone Own a Monkey Selfie? and Monkey Cannot Own Selfie Copyright).

The Settlement

On September 11, 2017, Slater and PETA announced in a joint statement that they had reached a settlement of the lawsuit.^[1]

Slater and PETA announced their agreement “that this case raises important, cutting-edge issues about expanding legal rights for non-human animals, a goal that they both support, and they will continue their respective work to achieve this goal.” The deal involved Slater donating 25 percent of all future revenue from the monkey selfie to charities that protect the welfare and habitat of Naruto and his friends. Additionally, PETA and Slater asked the U.S. court of appeals to dismiss PETA’s appeal of the case and vacate the district court’s ruling that the monkey cannot own the copyright.

How Much?

So exactly how much would Slater be donating? Slater’s attorney declined to comment on the settlement, and PETA’s general counsel did not know how much Slater had profited from the monkey selfie in the past.^[2] However, a notice on Slater’s website announced that he would be donating 10% of proceeds from signed prints of the photo to a monkey conservation project in Sulawesi.^[3]

Interestingly, Slater said in a July 2017 interview that he was in financial trouble despite the famous selfie.^[4] According to the interview, Slater made just enough money to cover the cost of the trip to Indonesia from the selfie. Beyond that, he was broke to the point that he could not afford to travel from the UK to San Francisco to attend the appeals hearing or replace his broken camera equipment—he was even thinking about becoming a dog walker.

[1] PETA Statement: ‘Monkey Selfie’ Case Settled, People for Ethical Treatment of Animals, Sept. 11, 2017.

[2] Matthew Haag, Who Owns a Monkey Selfie? Settlement Should Leave Him Smiling, New York Times, Sept. 11, 2017.

[3] Jason Slotkin, ‘Monkey Selfie’ Lawsuit Ends With Settlement Between PETA, Photographer, NPR, Sept. 12, 2017.

[4] Julia Carrie Wong, Monkey Selfie Photographer Says He’s Broke: ‘I’m Thinking of Dog Walking,’ The Guardian, July 12, 2017.

StockSnap / Pixabay

Changes to the Texas foster care system have recently been implemented after a federal judge declared that “Texas’s foster care system is broken.”^[1] After Hank Whitman, the Commissioner of the Texas Department of Family and Protective Services (DFPS), submitted a ten-point plan to improve child-welfare services, Governor Abbott signed into law four bills impacting DFPS and how the department works with endangered children.^[2] One of these bills, Senate Bill 11, makes numerous changes to the Texas foster-care system.

Senate Bill 11

Senate Bill 11 establishes community-based care programs in eight different regions in Texas by the end of 2019.^[3] Nonprofit or local government entities, or single-source continuum contractors, in these regions would be responsible for overseeing and managing cases and family-reunification support services within the foster care system instead of DFPS.^[4] DFPS must still develop a review process to assess contractors’ performance^[5] and create protocols for electronic transfers of data to contractors.^[6] The new law aims to provide more localized programs that would achieve many goals in relation to the foster care system, including improving safety, keeping children in their home communities, maintaining contact with family members and other important people, respecting culture, and reunifying families.^[7]

Additionally, S.B. 11 created a pilot program for contractors to develop and implement family-based safety services in two regions of the state that must achieve certain outcomes, such as a decrease in recidivism and an increase in protective factors.^[8] To establish these programs, grants are also provided for faith-based community collaborative programs.^[9]

Immediate Impact and Responses

The responses to S.B. 11 have been mixed. State officials have praised the bill for aiming to bring resources closer to communities and allow children in the foster-care system to stay closer to their home communities and remain near positive support systems such as family and friends.^[10] Community-based programs also allow for targeted local approaches, rather than trying to implement one plan across all of Texas.^[11] However, critics (including some state representatives) fear that contractors may not have the best interests of the foster children in mind and that the plan was too quickly pulled together.^[12] Furthermore, some child-welfare advocates fear that contractors will not be capable of taking on some of the more difficult aspects of placing children, such as finding homes for children with behavioral and mental-health issues.^[13] While critics have recognized the success of programs like ACH Child and Family Services, they fear that it will be difficult to replicate this level of success.^[14]

In September, state officials relinquished major foster care services in Bexar County and in multiple counties in the Abilene area, following the successful implementation of a state-piloted community-based foster care program in the Fort Worth area.^[15]

For the text of these legislative changes (and the other 500+ changes made to the Family Code alone), pick up your copy of O’Connor’s Texas Family Code Plus 2017-2018  today.

[1] M.D. v. Abbott, 152 F.Supp.3d 684, 828 (S.D.Tex.2015).

[2] Marissa Evans, Abbott Signs Bills Aimed at Addressing Crisis in Child Welfare System, Texas Tribune (May 31, 2017); see DFPS Commissioner Plans to Improve CPS, O’Connor’s Annotations (Aug. 29, 2016).

[3]  Tex. Fam. Code §264.157.

[4] Id. §§264.158, 264.161.

[5] Id. §§264.156, 264.162.

[6] Id. §264.159.

[7] Id. §264.151.

[8] Id. §264.169.

[9] Id. §264.2042.

[10] Vicki Spriggs & Anjuli Renold, Working to Make Texas Children Safer, The Eagle (Sept. 28, 2017); Angie Haflich, Texas Looks to Improve Troubled Foster Care System, HPPR (Sept. 7, 2017).

[11] Becky Fogel, A New Texas Law Will Create a More Private Foster Care System, Texas Standard (Sept. 6, 2017).

[12] Julie Chang, State to Hand Over Foster Care Services in Bexar County, Abilene Areas, My Statesman (Sept. 19, 2017).

[13] Evans, Abbott Signs Bills Aimed at Addressing Crisis in Child Welfare System.

[14] Fogel, A New Texas Law Will Create a More Private Foster Care System.

[15] Chang, State to Hand Over Foster Care Services in Bexar County, Abilene Areas.

AJEL / Pixabay

In August 2017, the Judicial Conference Committee on Rules of Practice and Procedure began accepting comments on a proposed amendment to Federal Rule of Evidence 807,^[1] the residual exception to the hearsay rule.^[2] Although the rule allows for judicial flexibility, it has also been criticized for granting courts too much discretion.^[3] In particular, the requirements for trustworthiness “equivalent” to other specific hearsay exceptions and the “particulars” for notice have led to inconsistent application of the rule and unnecessary disputes.

The Proposed Amendment

The amendment, consisting of four parts, seeks to promote uniform application of FRE 807 while limiting expansion of the rule and providing more certainty as to the notice requirements.

First, to limit the expansion of the rule’s applicability through case law, the proposed rule expressly requires the proponent to establish that the proffered statement is not covered by a specific hearsay exception under FRE 803 or 804.

Second, the proposed rule requires the court to find that the proffered statement is supported by “sufficient” guarantees of trustworthiness under the totality of the circumstances and any corroborating evidence rather than “equivalent circumstantial” guarantees of trustworthiness. According to the Committee, the “equivalent” standard was vague, leaving courts with a basis for comparison ranging from the least to most trustworthy of the specific hearsay exceptions.

Third, the Committee eliminated the requirement that admitting the evidence must best serve the “purposes of the rules and the interests of justice,” which it found unhelpful.

Fourth, the proposed rule modifies the notice requirements by specifying that reasonable written notice, which may be provided in electronic form, must include the substance of the statement and the declarant’s name. The proposed rule eliminates the existing requirement for “particulars” such as the addresses of declarants, who are often unavailable. This amendment is intended to avoid unnecessary disputes over whether sufficient notice has been given.

The proposed amendment expressly allows courts to admit evidence without prior notice for “good cause” shown. Under the existing rule, some courts have admitted evidence without prior notice for good cause—such as the last-minute discovery of evidence or unavailability of a witness—while others have disallowed the evidence altogether.

Texas eliminated the residual exception in both the Civil Rules and Criminal Rules after concluding that it would lead to the admission of unreliable evidence.^[4] The unified Texas Rules of Evidence do not include the residual exception.^[5]

The Committee is accepting comments for the proposed amendment to FRE 807 until February 15, 2018.^[6]

For the annotated Federal Rules of Evidence, see O’Connor’s Federal Rules * Civil Trials, and for extensive commentary on the Texas Rules of Evidence—including comparisons between the Texas Rules and the federal Rules—see the Texas Rules of Evidence Handbook.

[1] U.S. Courts, Preliminary Draft of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, and Criminal Procedure, the Federal Rules of Evidence, the Rules Governing Section 2254 Cases in the United States District Courts, and the Rules Governing Section 2255 Proceedings for the United States District Courts (2017), pp. 67-78.

[2] U.S. Courts, Proposed Amendments Published for Public Comment; Fed. R. Evid. 807.

[3] See Daniel J. Capra, Expanding (or Just Fixing) the Residual Exception to the Hearsay Rule, 85 Fordham L.Rev. 1577, 1580 (2017) (supporting expansion of FRE 807 to increase judicial flexibility, reducing pressure on courts to distort existing rules, and allowing the admissibility of reliable hearsay); Victor Gold, The Three Commandments of Amending the Federal Rules of Evidence, 85 Fordham L. Rev. 1615, 1623-24 (2017) (opposing expansion of FRE 807, which could lower trustworthiness of evidence, undermine the “near miss doctrine,” and favor government and businesses to the detriment of individual litigants); see also Jeremy W. Richter, Proposed Changes to Federal Rule of Evidence 807 (Aug. 14, 2017) (summarizing proposed changes).

[4] See Jeff Brown & Reece Rondon, Texas Rules of Evidence Handbook 776-77 (2017).

[5] Id.

[6] Proposed Amendments to the Federal Rules of Evidence, Regulations.gov.

Photo-Mix / Pixabay

Because consumers widely rely on online reviews for goods and services, small businesses have to be concerned about their online reputation.^[1] “Online reputation management” companies employ various techniques to rehabilitate a client’s online reputation, including responding to negative comments, pushing down the websites containing the negative reviews in search results, and even de-indexing (removing the website from search-engine results).^[2] But how much does online reputation cost? According to Solvera Group, Inc.—a self-proclaimed “reputation management” company—somewhere between $5,000 and $12,000.^[3] Solvera claimed that it could suppress negative reviews and comments by removing them from search-engine results.^[4]

Removing comments from the Internet is a difficult process because of First Amendment protections^[5] and the anonymity of many consumers,^[6] yet Solvera found an easier path. After potential clients contact Solvera to have negative comments about them suppressed, they are presented with several options.^[7] One strategy offered is removing the website from search-engine results.^[8] Once the client chooses that option, Solvera begins the quest for de-indexing. First, Solvera’s hired blogger in California allegedly would write a comment or review on the website to be de-indexed.^[9] Later, lawyers hired by Solvera would bring an action against an individual who claims to have written the defamatory review.^[10] Next, the defendant would come to an agreement with the plaintiff (which is not actually the client yet has a very similar name) and this agreement, signed by the judge, would allow Solvera to make Google de-index the review website.^[11]

As brilliant as the scheme might seem, the Texas Attorney General says it’s illegal.^[12] The Attorney General claims that Solvera violated the Texas Deceptive Trade Practices Act by abusing the legal system to deceive Harris County district-court judges with its defamation lawsuits.^[13] In particular, the Attorney General’s suit alleges that Solvera violated DTPA §17.46(a) and (b)—engaging in false, misleading, and deceptive acts and practices in the course of trade and commerce.^[14] The Attorney General seeks a permanent injunction and restoration of all the money and property taken by means of unlawful acts or practices.^[15]

One website where reviews were posted has also commenced an action against Solvera.^[16] Consumer Opinion LLC has filed a complaint in California, naming as defendants entities and individuals believed to have used schemes similar to Solvera’s, as well as the individuals who assisted them.^[17] This lawsuit was initially filed last year in a federal court, but the court lacked jurisdiction.^[18] Moreover, in a blog post published in March 2016 on the website run by Consumer Opinion LLC, the author identified a pattern in some de-indexing cases, alleging a potential abuse of the court system.^[19] The ability to identify the person who wrote the “defamatory” review and receive a fully executed affidavit from that person within days after filing the lawsuit seemed quite suspicious to the author.^[20]

For more on the DTPA, check out O’Connor’s Texas Causes of Action.

[1] Plaintiff’s Original Petition at 4, Texas v. Solvera Grp. Inc., No. 2017-56634 (Tex.Dist.Ct.2017) (8-24-17).

[2] Id. at 4-5.

[3] Id. at 6.

[4] Id.

[5] Eugene Volokh, Solvera Group, Accused by Texas AG of Masterminding Fake-Defendant Lawsuits, Now Being Sued By Consumer Opinion over California Lawsuits, Washington Post, Sept. 28, 2017.

[6] Dark Side of Online Reputation Management (ORM), Pissed Consumer, Mar. 17, 2016.

[7] Plaintiff’s Original Petition, at 6.

[8] Id.

[9] Id. at 7.

[10] Id. at 6-7.

[11] Id. at 8-9.

[12] AG Paxton Files Suit Against ‘Reputation Management’ Company, Attorney General of Texas, Sept. 11, 2017.

[13] Id.

[14] Plaintiff’s Original Petition, at 9-10.

[15] Id. at 10, 14.

[16] Volokh, Solvera Group Now Being Sued by Consumer Opinion over California Lawsuits.

[17] Complaint, Consumer Opinion LLC v. ZSC, Inc. et al. (Contra Costa Cty. Superior Ct.2017) (9-7-17).

[18] Eugene Volokh, Lawsuit Against Lawyers Who Allegedly Filed Improper Lawsuits Aimed at Getting Internet Criticism Deindexed by Google, Washington Post, Oct. 31, 2016.

[19] See Dark Side of Online Reputation Management (ORM).

[20] Id.