Our blog entry for the week is a case that we have blogged on before. It asks the question of whether a claim of morbid obesity requires an underlying physical impairment or mental impairment or is just the claim of morbid obesity as a scientific standard is sufficient by itself. As we discussed previously, here, a Court of Appeals in Texas had held that morbid obesity by itself was sufficient to be able to claim protection under the Texas Commission on Human Rights Act (TCHRA). We also blogged here where the Washington Supreme Court reached the same conclusion. The Texas case was appealed to the Supreme Court of Texas (Texas actually has two Supreme Courts-one for civil cases and one for criminal cases). The Supreme Court of Texas winds up deciding that the trend of cases at the federal level where morbid obesity claims require an underlying physical or mental impairment is the correct way to go. The decision was 7-2 with two Justices concurring and two Justices dissenting. As a preliminary matter, Texas does waive sovereign immunity in cases like this, but the waiver depends upon essentially getting by, for lack of a better word, a summary judgment motion first, i.e. having to show that a genuine issue of material fact exists. As usual, the case is divided into categories and they are: Facts; Justice Hecht majority opinion; Justice Blacklock concurring opinion; Justice Boyd dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts:

The facts of this case are quite egregious and can be found in great detail in the opinion, here. Basically, you have a medical resident that weighed over 400 pounds. The program where she was doing a residency at did not appreciate that. She had a particular problem with the person who ran the residency program, an interim director. At one point, the interim director actually went into the University legal counsel’s office to figure out whether she could terminate the resident because of the plaintiff’s weight. The lawyer for the school said that she could not terminate based upon that reason because it would be discrimination. After hearing that, she repeated to the attorney that she believed that the resident was not performing well because of her weight and that she needed to find another reason to terminate her from the program. The University did not take steps to protect the information from when the program director consulted legal counsel when it was revealed what the nature of that conversation was at the program director’s deposition. She filed a claim with the Texas Workforce Commission and the EEOC and then upon receiving a right to sue letter brought suit. Her claim was that she was dismissed as a result of her morbid obesity. However, she never claimed either in her complaint or in her deposition any underlying physical or mental impairment associated with the morbid obesity. She also originally brought both an actual disability claim and a regarded as claim. However, on appeal, she abandoned the actual disability claim and proceeded only under the regarded as claim.

I

Justice Hecht Majority Opinion

1. In 1993, the Texas legislature amended the TCHRA to bring it into compliance with the ADA. That enactment modified the definition of disability contained in the TCHRA to conform with the ADA definition.
2. The definition of disability under the ADA at the time the TCHRA was amended is essentially the same as it is today. Both definitions call for a physical or mental impairment.
3. At the time the TCHRA was amended, the final implementing federal regulations defined an impairment as, “any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.” It can be presumed that the Texas legislature was aware of its regulatory interpretation and was accepting of that meaning of impairment when it adopted the ADA definition of disability.
4. Since the TCHRA express purpose is to provide for the execution of the policies embodied in title I of the ADA and its subsequent amendments, the interpretation of the definition of disability is guided by both federal court decisions interpreting the ADA and the federal administrative regulations regarding the ADA.
5. The federal regulatory definition of impairment today is not that much different from the definition in 1993. Today, per 29 C.F.R. §1630.2(h),an impairment is, “any physiological disorder or condition, cosmetic disparagement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.”
6. The plain language of both the 1993 and the current definition of impairment in the final implementing regulations require a physiological disorder or condition in order to find an impairment.
7. Weight, even when it is outside the normal range, is not a physiological disorder or condition, rather it is a physical characteristic. The mere physical characteristic does not, without more, equal a physiological disorder. So, a plaintiff has to be able to point to a physiological disorder or condition causing one’s weight in order to show an impairment.
8. The parties appear to agree that obesity is not an impairment absent evidence of an underlying physiological disorder or condition. So, it would make no sense to require an underlying physiological disorder or condition for morbid obesity but not for obesity.
9. The United States Court of Appeals for the Sixth, Seventh, and Eighth Circuits have all concluded that the plain language of the EEOC regulation compels the conclusion that morbid obesity must stem from a physiological disorder or condition in order to qualify as an impairment for regarded as claims.
10. The Second Circuit has held that a physiological disorder is required to show impairment based upon the regulatory definition in a case involving obesity and not morbid obesity.
11. The federal decisions are of great help in understanding what constitutes a disability qualifying impairment since there have been so few cases in Texas involving morbid obesity. In a footnote, the Texas Supreme Court noted that there’ve only been three reported morbid obesity cases in the last 30 years in Texas.
12. Whether obesity is a disorder in the medical community doesn’t say much with respect to whether morbid obesity qualifies as an impairment under the Texas Labor Code.
13. In a footnote, the Texas Supreme Court says that the ADA is an antidiscrimination statute and not a public health statute. Therefore, Congress’s desires as it relates to the ADA do not necessarily align with those of the medical community.
14. Reading the regulation as a whole and looking at dictionaries, reveals that a physiological disorder or condition means an abnormal bodily function or state. However, the accumulation of fat cells is a normal bodily process, so asserting that one is overweight is insufficient by itself to show a physiological disorder or condition.
15. A person’s morbid obesity may be the result of that person’s normal natural response to the person’s lifestyle choices or eating habits. Therefore, a plaintiff would have to show that her body’s process of accumulating fat cells is somehow abnormal, i.e. the result of an underlying physiological disease or condition.
16. The EEOC interpretive guidance on title I of the ADA, 29 C.F.R. Pt. 1630, App. at 1630.2(h), here, also support that morbid obesity is not an impairment without an underlying physiological disorder or condition. That guidance states: “the definition of the term “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within “normal” range and (emphasis added by me), are not the result of a physiological disorder. The definition, likewise, does not include characteristic predisposition to illness or disease. Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments.”
17. A natural reading of the interpretive guidance is that weight is an impairment only if it falls outside the normal range and (emphasis in opinion), it occurs as a result of a physiological disorder. Both requirements have to be satisfied. This reading is further supported by the interpretive guidance reference to other conditions not being the result of a physiological disorder, such as pregnancy, not being considered an impairment by the EEOC.
18. It goes too far to say that any physical characteristic slightly outside the normal range would be a physical impairment in the absence of an underlying physiological cause. Such a reading would be inconsistent with the TCHRA text and purpose and would transform the regarded as claim into a catchall cause of action for discrimination based upon appearance, size, and any number of other things far removed from the reasons why the TCHRA was passed.
19. The plaintiff does not contend that there is evidence that her morbid obesity resulted from a physiological disorder or that such was the defendant’s perception. In fact, she said as much in her deposition.
20. The missing pieces are any evidence or inference that plaintiff’s coworkers regarded her obesity as being caused by health issues rather than causing health issues. The distinction matters.

II

Justice Blacklock Concurring Opinion

1. Excessive weight is a physical characteristic and not a disability.
2. Excessive weight may be a symptom of an underlying physiological impairment, in which case it is the underlying physiological impairment and not the weight itself that qualifies as a disability triggering the employment protections of the Texas Labor Code.
3. Whether obesity is considered an impairment, disability, disorder, condition, or anything else by the medical community in 2023, says nothing about whether obesity qualifies as a disability or impairment under the Texas Labor Code enacted in 1993.
4. The Labor Code is a legal text and therefore, the meaning of the words in that statute must be the same today as it was in 1993 when the provisions were enacted. Mentioning Justice Scalia, statutory terms mean what they are conveyed to reasonable people at the time they were written.
5. There is no shortage of evidence from the time of the statute’s enactment and shortly thereafter, including from federal cases interpreting the same language, that obesity was regarded as a physical characteristic and not a disability in the absence of an underlying physiological disorder.
6. The Court needs to be wary about adopting federal case law when it comes to interpreting Texas statutes because it is entirely possible that Texans prefer to go in a different way based upon the wording of their own legislation. That is, federal sources of law should not become controlling authority and should only be used as guidance when appropriate.
7. Extending the Texas Labor Code to the obese would have substantial social and economic consequences. After all, that might render 50% of the population disabled by 2030. On a matter of such vast economic and political significance, the Court should expect the legislature to speak clearly, which is not the case here.

III

Justice Boyd Dissenting Opinion

1. Nothing in the Texas Labor Code imposes an underlying physiological disorder or condition requirement or otherwise limits the term disability to physical or mental impairment resulting from any particular cause.
2. With the amendments to the ADA, Congress amended the ADA to expressly reject the Supreme Court of the United States inappropriately high level of limitation necessary to obtain coverage under the ADA and to reinstate a broad view of the ADA’s applicability.
3. With the amendments to the ADA, Congress amended the ADA to expressly require courts to construe the term disability in favor of broad coverage to individuals to the maximum extent permitted by the ADA’s terms.
4. Congress expressly conveyed its intent that the question of whether an individual’s impairment as a disability under the ADA should not demand extensive analysis. Instead, the focus should be on whether covered entities complied with their ADA obligations.
5. The Texas Labor Code likewise requires that the term disability be construed in favor of broad coverage of individuals and to the maximum extent allowed.
6. In a regarded as claim, the plaintiff must show that the defendant regarded her as having more than a minor impairment that is expected to last less than six months, but she does not have to show that the defendant regarded her as having an impairment that limited the major life activity.
7. The Texas Labor Code does not define the term impairment. When looking at dictionaries, dictionary to find an impairment as simply a diminishment, deterioration, or loss of function or ability.
8. Under the plain meaning, and impairment is simply a loss, reduction, or limitation of function or ability. To qualify as a disability, the impairment must be mental or physical and must substantially limit a major life activity. However, nothing about the definition requires that the limitation be caused by an underlying physiological disorder or any other particular cause or source.
9. Neither the parties nor the majority points to any other statute using the term impairment in a way suggesting anything other than its common, ordinary meaning, much less say that loss or limitation in function qualifies as an impairment only if it results from a particular cause.
10. When the legislature intended to limit a statutory reference to impairments to those resulting from a particular cause, it consistently and expressly includes that limitation within the statute, such as for workers compensation purposes and for purposes of deciding whether a judge is fit to serve.
11. In a footnote, Justice Blacklock says that the common ordinary meaning of impairment has not changed since 1993.
12. No prior decision of the Texas Supreme Court has ever required that this particular statute requires the claimant’s physical loss or limitation to result from any particular cause.
13. Other sections of the Texas Labor Code indicate that an impairment is simply a condition limiting claimant’s function. Further, two other provisions appear to use the term limitation interchangeably with the term impairment.
14. The Texas Labor Code expressly compels court to construe the term broadly without imposing any unexpressed requirements.
15. In a footnote, Justice Blacklock says that the majority concerns about social and economic consequences of a contrary decision are misplaced. In particular, the majority forgets about how a major life activity must be substantially limited. Further, if the legislature makes a policy choice to define the term disability more broadly than wise, a court is not at liberty to veto that choice.
16. Most people suing for discrimination based upon disability will go with the actual disability prong. Thus, they will have to show a substantial limitation in at least one major life activity. Further, for those opting for the regarded as claim, the plaintiff would have to show that the disability was more than minor. Therefore, plaintiffs cannot rely on the fact that they are obese or morbidly obese. Instead, they have to demonstrate that the obesity is about physical limitations that are substantial or are perceived to be more than just minor.
17. 21.105 of the Texas Labor Code says that the provision referring to disability discrimination applies only to discrimination because of her on the basis of a physical or mental condition that does not impair an individual’s ability to reasonably perform a job. So, an employer does have the ability to terminate an employee because of impairment if the person cannot reasonably perform her job. Therefore, this particular section actually reduces the number of people who can sue when that disability impairs their performance.
18. Federal law provides no clear guidance and is conflicting at best with respect to whether a morbid obesity claim requires an underlying physiological impairment.
19. 29 C.F.R. §1630.2(h)(1) defines an impairment as a physiological disorder or condition affecting one or more body systems. The Texas Workforce Commission has adopted a rule defining impairment in the same way, though that rule only applies to provisions addressing housing discrimination and fair housing requirements as opposed to employment discrimination. Morbid obesity is undoubtedly such a physiological condition.
20. The regulations define disability in terms of limiting mental and physical conditions and not in terms of underlying mental or physical processes.
21. The statute requires an impairment and not just the condition.
22. The EEOC regulation talking about physical characteristics could easily be read as if the “and,” is actually an, or.”
23. All the federal courts within the Fifth Circuit (which is Texas), have declined to impose an underlying physiological disorder requirement for weight related disability claims.
24. The evidence clearly establishes that the University perceived the plaintiff not only being morbidly obese but also being physically impaired as a result of her obesity. In fact, the University doesn’t dispute that, rather they just say that they didn’t perceive an underlying physiological disorder. Whether they perceive an underlying physiological disorder is irrelevant.
25. While there were certainly numerous concerns with the plaintiff’s performance, the plaintiff only has to show that the impermissible concerns were a motivating factor for the adverse actions even if other factors also motivated those actions. Plenty of direct evidence exists to show that disability was a motivating factor in the termination.

IV

Thoughts/Takeaways

1. Texas and Oklahoma are the only two States with a highest court for civil matters and another one for criminal matters.
2. It will be interesting to see how this opinion affects the courts in the Fifth Circuit when they deal with obesity centered claims.
3. The federal courts are indeed all over the place with respect to whether morbid obesity requires an underlying physiological or mental condition. For example, we discussed here how the state of Washington has decided that it does not. So, be sure to check your particular federal or state jurisdiction when dealing with obesity claims.
4. The amendments to the ADA made it such that it shouldn’t be too much of a stretch to find a physical or mental impairment that substantially limits a major life activity when a person is morbidly obese. That is, you may not even have to allege morbid obesity to find coverage under the ADA actual disability prong where a person is morbidly obese. So, I would not give up easily, if I am on the plaintiff side, in pursuing an actual disability claim when representing a client with morbid obesity.
5. The reason morbid obesity gets so confusing is that unlike other disabilities the physical or mental impairment isn’t obvious. For example, a deaf ,Deaf, or hard of hearing person clearly has a physical impairment, i.e. hearing loss. They also are substantially limited in the major life activity of communicating with others. Most other disabilities are such that the physical or mental impairment is fairly obvious. Morbid obesity and obesity in general is an exception to that.
6. Jurisdictions, though it is not necessarily a trend, around the country are enacting laws or ordinances protecting people who are obese from discrimination.
7. In another life, I litigated over a missing comma. Here, I could foresee litigation over whether the EEOC interpretive guidance “and,” really means “and,” and not, “or.” Of course, it is in an EEOC interpretive guidance and is not necessarily entitled to much deference per Kisor, which we discussed here.
8. The policy concern that the concurrence has about obesity in Texas is not without justification. For example, the What’s Cooking America website says that Texans are estimated to eat 800,000 orders of chicken fried steak every day. That said, you don’t have to read much to see how obesity is becoming an issue throughout America.
9. The dissenting opinion does a nice job of laying out the arguments of why morbid obesity should not require an underlying physiological or mental condition.
10. Interesting perspective from the dissenting opinion talking about the distinction between impairment and conditions. The dissent also talks about the distinction between limiting mental and physical conditions v. underlying mental or physical processes, which is interesting as well.
11. The advantage to the regarded as prong is that you don’t have to show a substantial limitation on a major life activity. All you have to do is show a physical or mental impairment. On the other hand, the regarded as prong has its disadvantages. First, at least with respect to the ADA, it doesn’t apply to an impairment that is both transitory and minor (the transitory part did not appear in this case). Second, it does not allow for reasonable accommodations.
12. I am licensed in Texas. That said, the vast majority of my practice is federal based rather than state based. Since I am licensed in Texas, I could do some legal research into what does §21.105 of the Texas labor Code actually mean. That section states: “Sec. 21.105. DISCRIMINATION BASED ON DISABILITY. A provision in this subchapter or Subchapter B referring to discrimination because of disability or on the basis of disability applies only to discrimination because of or on the basis of a physical or mental condition that does not impair an individual’s ability to reasonably perform a job.” The question I have about the statutory section is what does “reasonably perform a job,” mean? That is, it would seem to suggest that it must mean whether a person could perform the job with or without reasonable accommodations. If it does not mean that, then this Texas statute goes way below the ADA in terms of its coverage because the ADA also contains the qualified requirement, i.e. whether the person can do the essential functions of the job with or without reasonable accommodations. If I get a chance, I will do that research. I will be surprised if there is not a reasonable accommodation requirement baked into the statutory provision. It wouldn’t make sense otherwise for there not to be, but you never know.
13. If question of morbid obesity as a disability goes to the Supreme Court, my guess is that this configuration of the United States Supreme Court would hold that morbid obesity requires an underlying physiological or mental impairment. Again, the workaround to that is it shouldn’t be terribly difficult to find mental or physical impairments that substantially limit a major life activity when a person is morbidly obese besides the morbid obesity.
14. The concurrence requiring the legislature to speak clearly when huge policy implications are involved reminds me of the United States Supreme Court decision invoking the major question doctrine, which we discussed here.

To do this, attorneys need to identify special evidence and determine who is liable. Assigning liability can be complex, as multiple parties may be found responsible for the accident. Here, we take a look at who is potentially liable for truck accidents.

Parties Who Could Be Held Responsible for Truck Accidents

Texas is an at-fault state, which means whoever caused the accident is held responsible. The at-fault party must compensate truck accident victims for expenses incurred from the accident, such as medical bills and vehicle repairs.

Most often, truck drivers are liable for truck accidents. However, there may be other responsible parties, such as:

• The trucking company
• The manufacturer of the truck or truck parts
• The truck loading company
• Government entities responsible for road maintenance and upkeep
• Truck maintenance crews

How Is Liability Determined in Truck Accident Cases?

Investigations

When it comes to the investigation of a truck accident, there are many different people involved. Law enforcement, such as a police officer or state trooper, will conduct their own investigation. The trucking company may also conduct its own investigation, and its insurance providers.

This is where it can get tricky. While insurance companies use police findings to determine who is financially responsible, they may find ways to deny the claims of accident victims. That’s why it’s so important to have an experienced truck accident attorney who can help present evidence that supports your case.

Proving Negligence

Negligence plays a crucial role in determining liability for a truck accident. Negligence refers to dangerous and irresponsible behaviors that put others at risk on the road. Determining negligence involves a complex evaluation of many different factors.

There are a variety of negligent driving behaviors, such as driving while intoxicated, running through stop signs or texting while driving. A truck driver may be found guilty of negligent driving behavior, but other parties can be held responsible as well.

For example, a trucking company could be held liable if it can be demonstrated that they didn’t properly maintain the truck. Or, the vehicle manufacturer could be financially responsible if there was a defect in the truck’s design.

Involved in a Truck Accident? Get Legal Help Today

There are many things to take care of after a truck accident, especially your health. It’s critical to obtain sound legal counsel as quickly as possible so you can focus on healing.

At Ted B. Lyon & Associates, our experienced truck accident attorneys understand the complex challenges of truck accidents. Our Dallas team knows how to identify valid evidence and can help you get the compensation you deserve. To get started, request a free initial consultation by calling us at 800-TedLyon or sending us a message.

The post Who Is Liable for Commercial Truck Accidents in Texas? appeared first on Ted B. Lyon & Associates.

Critics of the administrative state celebrated the ruling as an important limit on agency power; others questioned whether “originalism” was fairly applied to an agency and a set of statutes that did not exist in 1792.

On June 30 of this year, the Supreme Court granted review of Jarkesy, which will be a fascinating addition to the next term of that court:

The post Mr. Jarkesy goes to Washington. appeared first on 600 Camp.

What is a Revocable Living Trust?

Consider a revocable living trust to be an open box which you can control. You get to purchase, sell, use, or give away your assets. You can change the terms or revoke the trust as long as you have mental capacity. You are not only the one who sets up the trust, but generally the one who establishes the trust is also the trustee and beneficiary of the trust. As a result of the retained control, it is generally tax-neutral (however do not transfer your retirement account into the trust during lifetime).

Best Candidates for a Revocable Living Trust:

1. Probate Avoidance (avoid court) –

Some prefer to not have to go through the probate process that is needed if assets are to be transferred according to the will of the decedent. Sometimes it is easy to probate, and sometimes it is not. There are numerous examples when probate becomes more difficult and costly (i.e., the original will cannot be located, a witness fails to sign or a notary fails to properly complete that the testator and witnesses swore that the will was signed in the presence of the testator and witnesses before the notary, capacity of the testator or undue influence over the testator could be asserted, inadequate powers given to the testators, etc.). If one has a living trust that is properly funded, then the requirements of the probate are avoided.

2. Quicker Representative Authority –

If someone wants a representative to be able to act without delay, then a trust is advantageous. If the decedent had a will, then the executor or administrator would only have authority after a court hearing and the order is signed and after letters testamentary or letters of administration are issued – which often takes months. A trust gives the trustee the ability to pay debts or bills quickly, manage assets without delay and often settle the estate quicker.

3. Privacy –

When a will is probated, it is a matter of public record. If an inventory of the assets that pass by the will of the decedent is filed, then it is also a matter of public record. A trust is private. For those who don’t want others to know their beneficiaries or assets of the estate, then a trust is preferable.

4. Real Estate Owned in More Than One State –

If one owns real estate in more than one state, then it is usually best to consider a trust. If one has a will, then it would be probated in Texas and an ancillary probate would be required in the other state where the real estate is located adding to costs (attorney’s fees, court costs, filing fees, etc. in more than one state).

5. Management Continuity at Death or Disability During Life –

A will becomes effective after it is probated. Thus, if one has a will and nothing else (i.e., financial and medical powers of attorney) and that individual becomes disabled, then a court ordered guardianship may be needed. A revocable living trust is effective immediately. So, if the one who establishes a trust becomes disabled, the trust provides what happens if a trustee becomes disabled without a court order. Even if one has a power of attorney (which terminates at death of the principal), sometimes such a document is not recognized by others. Furthermore, if you own real estate, the original of the power of attorney should be recorded in the county where the property is located (otherwise the agent could not sell or mortgage the property). Also guardianship supersedes the power of attorney. If one has a business, management continuity without delay (due to disability or death) is often needed and thus a trust is often a better choice than a will and a power of attorney.

6. Total Costs Savings –

Although a will is less expensive to prepare, when you add the cost of probate to the cost of preparing a will the total cost is generally less than the cost for trust preparation. However, if one has many real estate properties or notes secured by real estate, this would add to the cost of the trust since those assets should be transferred to the trust to avoid probate.

7. Concern Over Will Contest –

Although trusts can be contested, it is generally easier to contest a will due to the probate laws.

Everyone’s situation is different. Sometimes it is best to have a will. Sometimes it is best to have an irrevocable trust. Those concerned with the preceding issues could consider a revocable living trust. However, it is best to discuss with a professional before any decision is made.

If interested in learning more about this article or other estate planning, Medicaid and public benefits planning, probate, etc., attend one of our free upcoming Estate Planning Essentials workshops by clicking here or calling 214-720-0102. We make it simple to attend and it is without obligation.

Probably not. County judges and their commissioners courts are empowered to issue burn bans when faced with droughts, like those of the past several years. Even though it may seem like fireworks would fall under a county’s burn ban, the state burn ban statute does not mention fireworks. The only way counties can ban fireworks is by declaring a local disaster, which requires authorization from the governor. In unincorporated areas, county commissioners can issue a fireworks ban, but even in that case, they will not prohibit all fireworks or fireworks shows – only “skyrockets with sticks” (bottle rockets) and “missiles with fins.” That means sparklers are fair game!

A Refresher on the Top Texas Fireworks Laws

1. Fireworks Sales. Only permitted June 24th – July 4th and December 20th – January 1st. Plus optional:
   • Texas Independence Day (February 25th – March 2nd)
   • San Jacinto Day (April 16th – 21st)
   • Cinco de Mayo (May 1st – 5th if within 100 miles of the Texas/Mexico border)
   • Memorial Day (Wednesday before through Memorial Day)
2. Where can fireworks be shot?
   • NOT within 100 feet of places where flammable liquids, flammable compressed gasses or fireworks are sold or stored … seems reasonable!
   • NOT from or towards motor vehicles, including boats … despite what you see in the movies.
   • NOT in a public roadway, public property, park, lake or U.S. Corps of Engineer Property … hate to set a lake on fire.
   • NOT bought or sold if less than 16 years old … some might argue should be closer to 26 years old.
   • NOT within 600 feet of a church, hospital, day-care center or school … tough on the surgeons, I imagine!
   • NOT within city limits or, in some cities, even possessing fireworks in the city is prohibited. Some cities have hefty fines approaching $2,000 for selling, igniting or possessing fireworks within city limits … country clubs and their hired experts have special permits.
   • ONLY on your own property in unincorporated areas where fireworks are legal or with the owner’s written permission … mailboxes are also a no-no as to both their owner and the postman!
3. LIABLE? Yes. Just satisfying these laws does not protect an ill-fated fire started by shooting fireworks. If intentional, you may be charged with arson. If accidental, you may be subject to a fine and the all damages to the injured property owner… seriously dampens your holiday weekends!
4. Sobering Thought? You have to be sober to buy fireworks. So, don’t get lit before your fireworks celebration starts!

Tilting the Scales in Your Favor

As always, use good judgment when using fireworks, particularly if your area is under a burn ban. Today, of the 254 counties in the state, the Texas A&M Forest Service lists 57 counties that have burn bans, including Bexar (San Antonio) and El Paso counties.

Here’s a list of fireworks shows in DFW this holiday weekend. Have a great (and safe) Independence Day!

The post Amount-in-controvery and insurance-coverage claims appeared first on 600 Camp.

As Texas’s Attorney General, Greg Abbott famously quipped: “I go into the office in the morning. I sue Barack Obama, and then I go home.” In a recent interview, I suggest that these opinions are a yellow light for that approach to public-law litigation; Mark Stern makes a similar point in more colorful language for Slate. Time will tell whether that traffic signal is heeded.

The post More sitting, less standing? appeared first on 600 Camp.

“Ticket argues that CEATS forfeited the bad-faith argument by failing to assert it in the district court. While it is true that we tend not to entertain arguments that a party asserts for the first time on appeal, ‘an argument is not [forfeit]ed on appeal if the argument on the issue before the district court was sufficient to permit the district court to rule on it.’ Here, CEATS told the district court that a discovery violation ‘must be committed willfully or in bad faith for the court to award the severest remedies available under Rule 37(b).’ CEATS also argued that it did not violate the Protective Order willfully or in bad faith, because the ‘communications … were clearly inadvertent.’ That argument was enough to put the district court on notice that CEATS opposed any definition of ‘bad faith’ that includes inadvertent conduct.”

CEATS, Inc. v. TicketNetwork, Inc., No. 21-40705 (June 19, 2023) (citations and footnotes omitted). (This analysis has an interesting analog in the recent case of United Natural Foods, Inc. v. NLRB, where the majority and dissent disputed whether a particular issue was raised for purposes of the “party presentation” principle).

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Privacy, Technology and Perspective

Texas Data Privacy and Security Act.  Let’s consider the Texas Data Privacy and Security Act (“TDPSA”), which has just been signed into law.  A link to the text of the TDPSA follows:

https://capitol.texas.gov/tlodocs/88R/billtext/pdf/HB00004F.pdf#navpanes=0

We’ll offer this summary:

Who is required to comply?

Section 541.002 of the TDPSA provides that the law will apply to any person (inside or outside of Texas) that:

• –      conducts business in Texas or produces a product or service consumed by Texas residents;

• –       processes or engages in the sale of personal data; and

• –       is not a small business defined by the U.S. Small Business Administration (SBA) (though Section 541.107 does require small businesses to receive consent from consumers before selling consumers’ sensitive data). The SBA’s Office of Advocacy generally defines a small business as “an independent business having fewer than 500 employees,” and the SBA also has industry-level small business size standards used in government programs and contracting. A link to the current SBA’s Office of Advocacy guidance follows:

• https://advocacy.sba.gov/wp-content/uploads/2023/03/Frequently-Asked-Questions-About-Small-Business-March-2023-508c.pdf

Relevant definitions: Section 541.001 of the TDPSA contains the definitions.  Under subsection (19), “personal data” is “any information, including sensitive data, that is linked or reasonably linkable to an identified or identifiable individual.  The term includes pseudonymous data when the data is used by a controller or processor in conjunction with additional information that reasonably links the data to an identified or identifiable individual.  The term does not include deidentified data or publicly available information.” Under subsection (8), “controllers” are individuals or other persons that, alone or jointly with others, determine the purpose and means of processing personal data.  Under subsection (22), an organization “processes” (or is a processor of) personal data if it collects, uses, stores, discloses, analyzes, deletes, or modifies such data.  With several exceptions, under subsection (28), an organization engages in the “sale of personal data” if it shares, discloses, or transfers such data for monetary or other valuable consideration to a third party.

Who is exempted?

The TDPSA exempts certain organizations. Exempted entities, which don’t have to comply, include:

• –       nonprofit organizations,

• –       state agencies,

• –       political subdivisions,

• –       financial institutions subject to the Gramm-Leach-Bliley Act (“GLBA”),

• –       covered entities or business associates governed by the Health Insurance Portability and Accountability Act (“HIPAA”),

• –       institutions of higher education, and

• –       electric utilities.

What information is exempted?:

The TDPSA, which generally covers “personal data,” exempts certain information from its scope.  Exempted information includes:

• –       employee/applicant personal data to the extent the data is collected within the context of employment or recruitment and several other related types of data,

• –       Protected Health Information under HIPAA, health records, patient identifying information, and

• –       personal data regulated by other federal laws, including the Fair Credit Reporting Act (“FCRA”), the Driver’s Privacy Protection Act (DPPA), the Family Educational Rights and Privacy Act (“FERPA”), and the Farm Credit Act.

New Consumer Rights for Texas Residents:

Section 541.051 of the TDPSA gives consumers the following personal data rights concerning their personal data:

• –       Right to have a controller confirm whether it is processing a consumer’s personal data;

• –       Right to correct inaccuracies in the personal data;

• –       Right to delete personal data;

• –       Right to access,

• –       Right to portability, and

• –       Right to opt out of sales, targeted advertising, and certain profiling activities.

What Obligations Do Controllers Have?:

Under TDPSA, controllers have certain obligations related to their collection and processing of “personal data.” These obligations include:

• –       Data minimization – Section 541.101(a)(1) – Limiting the collection of personal data to what is adequate, relevant and reasonably necessary for the purpose they’ve disclosed to consumers in their privacy notices.

• –      Data Security – Section 541.101(a)(2) – Establishing, implementing, and maintaining reasonable administrative, technical, and physical data security practices, which should be appropriate for the amount and native of the data they have.

• –       Purpose limitation – Section 541.101(b)(1) – Not processing personal data for purposes they’ve disclosed to consumers in their privacy notices, absent consent;

• –       Non-discrimination – Section 541.101(b)(2)-(3) – Not processing personal data in violation of state and federal laws that prohibit unlawful discrimination against consumers and may not discriminate against consumers for exercising any of their rights under the TDPSA.

• –      Consent to process sensitive data – Section 541.101(b)(4) – Obtaining consent from consumers to process sensitive data and children’s data, if not processed in accordance with the Children’s Online Privacy Protection Act (“COPPA”). “Sensitive data” includes:

  • + personal data revealing racial or ethnic origin, religious beliefs, mental or physical health diagnosis, or citizenship or immigration status;

  • + genetic or biometric data that is processed for the purpose of uniquely identifying an individual (the term, “biometric data” includes a fingerprint, voiceprint, eye retina or iris, or other unique biological pattern or characteristic that is used to identify a specific individual. The term does not include a physical or digital photograph or data generated from a physical or digital photograph, a video or audio recording or data generated from a video or audio recording, or information collected, used, or stored for health care treatment, payment, or operations under HIPAA).

  • + personal data collected from a known child (younger than 13 years of age); or

  • + precise geolocation data (within a radius of 1,750 feet and not connected to a utility).

• –       Privacy Notice – Section 541.101(a) – Providing consumers with a reasonably accessible and clear privacy notice that includes: (1) the categories of personal data and sensitive data processed by the controller, (2) the purposes for processing personal data, (3) how consumers may exercise their rights, (4) the categories of personal data shared with third parties, (5) the categories of third parties with whom the controller shares personal data, and (6) a description of the methods for submitting requests to exercise consumer rights under the TDPSA.

• –      Posting a Notice Alerting of the Sale of Sensitive Data – Sections 541.101(b) and (c) – Posting a particular notice if the controller engages in the sale of sensitive data or the sale of biometric personal data.

• –       Disclosing the Sale of Personal Data / Processing for Targeted Advertising – Section 541.103 – Clearly and conspicuously disclosing such sale and the method by which a consumer may exercise the right to opt out.

• –       Data Protection Assessments – Section 541.105 – Conducting and documenting a data protection assessment concerning the following types of processing activities: (1) targeted advertising; (2) sale of personal data; (3) profiling that presents a reasonably foreseeable risk of unfair or deceptive treatment or unlawful disparate impact, financial, physical or reputational injury, intrusion upon seclusion or private affairs and concern, or other substantial injury; (4) processing of sensitive data and (5) any processing activities involving personal data that present a heightened risk of
  harm to consumers.

• –       Responding to consumer requests – Under Section 541.052(b), controllers must respond within 45 days of receipt of a consumer request, which may be extended for an additional 45 days when “reasonably necessary,” so long as the controller notifies the consumer of the extension within the initial 45-day period.

• –      Consumer right to appeal – Under Section 541.053, controllers must establish a process for consumers to appeal the refusal to take action on a request, make that appeals process “conspicuously available,” and respond within 60 days of receipt of an appeal.

• See also Contracting Requirements, below.

What Obligations Do Processors Have?:

A “Processor” is a person that processes personal data on behalf of a controller. Under TDPSA, processors have this obligation:

• –     Instructions and Assistance – Section 541.104(a) – Adhering to the controller’s instructions for processing personal data and assisting the controller in meeting its obligations, including responding to consumer requests, securing personal data, and providing necessary information for data protection assessments.

Contracting Requirements:

 Like many other privacy laws, Section 541.104(b) of the TDPSA requires a contract between a controller and a processor governing the processor’s data processing procedures.  The contract must include the following: (1) clear instructions for processing data; (2) the nature and purpose of processing; (3) the type of data subject to processing; (4) the duration of the processing; (5) the rights and obligations of both parties; and (6) obligations on the processor to:

• –       Ensure that each person processing personal data is subject to a duty of confidentiality;

• –       Delete or return all personal data to the controller, at the controller’s discretion, at the end of the provision of services, unless retention is required by law;

• –       Make available to the controller upon request all information in the processor’s possession necessary to demonstrate the processor’s TDPSA compliance;

• –       Cooperate with reasonable assessments by the controller or the controller’s designated assessor; and

• –       Enter into a written contract with any subcontractor to meet the requirements of the processor with respect to personal data.

Enforcement
Unlike under the CCPA, as amended by CPRA, which contains a limited private right of action for data breaches, there is no private right of action under the TDPRA. The Texas Attorney General will have exclusive authority to enforce the TDPSA, subject to
its 30-day cure period (Section 541.154). If the controller or processor fails to cure violations of the statute, the Texas Attorney General may bring an action and seek an injunction to restrain any violations, with civil penalties of up to $7,500 for each violation.

Effective Date:

Most of the TDPSA will take effect on July 1, 2024, though its provision under subsection 541.055(e) related to opt-out mechanisms on websites won’t take effect until January 1, 2025.

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Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.

CEATS won at trial, and while its claim for attorneys fees was pending, obtained an order allowing it to see a list of Ticket’s website affiliates. That order restricted access to certain designated in-house representatives.

CEATS’s CEO, who was not supposed to see the list, then sent Ticket’s CEO a settlement demand–attaching the list. After significant proceedings, the district court awarded (1) a 30-month injunction against any dealings with the companies on the list and (2) $500,000 against CEATS, its CEO, and two litigation consultants.

The Fifth Circuit, inter alia:

• Vacated the award against the individuals: “The Individuals did not receive notice that monetary sanctions were pending against them, and they did not receive a pre-deprivation opportunity to defend themselves at a hearing. By the time the district court heard their response, it had already decided against them. That was an abuse of discretion.”
• Vacated the injunction: “We also agree with CEATS that the district court did not make the bad-faith finding that is a prerequisite to litigation-ending sanctions under [Fed. R. Civ. P.] 37(b). Instead, the district court found that CEATS acted recklessly, and then it equated recklessness with bad faith. We have rejected that equivalence.”
• Vacated the fee award: “[T]here was a significant disparity between the rates that the first court approved when it awarded attorney fees to CEATS (at an earlier stage of litigation) versus the rates that it approved when it awarded attorney fees to Ticket (as part of the sanction against CEATS).”

CEATS, Inc. v. TicketNetwork, Inc., No. 21-40705 (June 19, 2023). The Court aptly summarized: “We AFFIRM in (small) part, VACATE in (large) part, and REMAND for further proceedings.”

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