The Texas Journal of Business Law (Archive)

A Confidentiality Agreement (also sometimes referred to as an Non-Disclosure Agreement) is typically the first stage for the due diligence process in a transaction. These agreements can effectively act as a standstill agreement and can take many different approaches including disclaiming reliance or being non-binding. Letters of Intent are an intermediate step between NDAs and definitive binding agreements. The Texas Supreme Court’s opinion in Energy Transfer Partners, L.P. v. Enterprise Products Partners, L.P. makes clear that Texas embraces the principles of freedom of contract among sophisticated businesses, and that they can trust that their legal documents will be enforced as written. This means that in Texas companies can rely on conditions precedent to avoid an unintended partnership or joint venture, and those conditions precedent can be set forth in a confidentiality agreement, letter of intent or other preliminary agreement. This article includes a seller oriented confidentiality agreement and letter of intent.

The Court concluded that Cadence breached the wire transfer agreement by using provisional credit funds and failing to transfer funds from a “collected balance,” using Elizondo’s construction of the term. Therefore, the breach entitled Elizondo to offset Cadence’s chargeback by the amount of overdrawn funds as a matter of law.

The Court in Northland Industries v Kouba held that that the Buyer only assumed liabilities expressed in the Agreement. The record reflects no evidence to support that the Buyer agreed to assume the Seller’s implied warranty of merchantability. Thus, the Buyer will not be liable for beach of the implied warranty of merchantability because the Agreement failed to show that the Buyer agreed to take on such liability.

In examining the evolution of oil and gas leases and related energy industry agreements in the recorded public records, it is interesting to observe when certain clauses begin to appear and how they develop with the passage of time as additional agreements are drafted. These modifications almost always emerge to address concerns that were not apparent to the parties during the early days of the particular industry, but eventually became problematic as basic forms were applied in practice. In this context, necessity remains the mother of invention. In the same manner, it is anticipated that solar lease drafting practices will evolve to address lessons learned by landowners and lessees as a result of the first wave of widespread solar development in Texas. In the meantime, attorneys that represent landowners must anticipate potential problems by employing a creative approach that considers various hypothetical scenarios and outcomes for each unique client and tract of land. This requires a high degree of situational awareness and attention to detail, in addition to a base knowledge of how solar power is generated, stored, transported and marketed.

The ACA now goes down a new road that would seem to belong in a theme park somewhere on Mr. Toad's Wild Ride. If in this game of Hold ‘Em the Texas court's invalidation of the ACA holds, it's anyone's guess as to where this whole thing lands. And even if Texas is reversed, the decision may invigorate serious political discussion regarding how best to go forward, particularly while the case is still winding its way through the courts.

This is the entire issue in a single PDF document.

This is the entire issue of the Journal in one (PDF) document.

There are a number of instances in which an inventor may have his or her own prior art cited against them, either during prosecution of a patent application or during enforcement of an issued patent. The inventor himself likely will not tell the patent attorney about such prior art. Therefore, the diligent attorney will want to raise the issue with the client at the time the application is being drafted or filed.

Statutory developments beginning in the 1990s have impacted the analysis of fiduciary duties in the Texas business organizations context. The duties of general partners are now defined by statutory provisions that delineate the duties without referring to them as “fiduciary” duties and specifically provide that partners shall not be held to the standard of a trustee. Whether limited partners in a limited partnership have fiduciary duties is not well-settled, but the Texas Business Organizations Code (BOC) clarifies that a limited partner does not owe the duties of a general partner solely by reason of being a limited partner. While the fiduciary duties of directors are still principally defined by common law, various provisions of the corporate statutes are relevant to the application of fiduciary-duty concepts in the corporate context. Because limited liability companies (LLCs) are a relatively recent phenomenon and the Texas LLC statutes do not specify duties of managers and members, there is some uncertainty with regard to the duties in this area, but the LLC statutes allude to or imply the existence of duties, and managers in a manager-managed LLC and members in a member-managed LLC should expect to be held to fiduciary duties similar to the duties of corporate directors or general partners. In each type of entity, the governing documents may vary (at least to some extent) the duties and liabilities of managerial or governing persons. The power to define duties, eliminate liability, and provide for indemnification is addressed somewhat differently in the statutes governing the various forms of business entities.

In Energy Transfer Partners, L.P. v. Enter. Prods. Partners, L.P., the Supreme Court of Texas recently affirmed a decision of the Court of Appeals for the Fifth District of Texas, in which the Court of Appeals held Texas law permits parties to conclusively agree that certain contractual conditions must be satisfied before a partnership can form.

In Shannon Med Ctr v Triad Holdings III, LLC. ____S.W.3d ____, No. 14-18-00638-CV, 2019 WL 6606406 (Tex. App. -- Houston (14th Dist)), the Court of Appeals, citing Texas Business Organizations Code (Secs 152.206 and 152.002(b)(3)), held that while a partnership agreement may authorize contracts between a partnership and partners or their affiliates, but a partner entering into those contracts must still comply with the duty of care charged by statute.

In R&M Mixed Beverage Consultants, Inc. v Safe Harbor Benefits, Inc. 578 S.W.3d 218 (Tex.App. - El Paso 2019, no pet.), the Court of Appeals cites the Texas Supreme Court for the proposition that there must be evidence that one of the corporations was using the other for purpose of perpetrating actual fraud for the defendant's direct personal benefit. The Court found that the record showed no evidence of actual fraud and therefore the parent would not be liable for the subsidiary's action.

In South Dakota v. Wayfair, Inc., the U.S. Supreme Court overruled its prior decisions in Quill and Bella Hess to allow a state to collect sales tax on internet sales even though the vendor has no “brick and mortar” store, warehouse or other physical presence in the state. Texas has been losing an estimated $1.1 billion a year in tax collections from the old physical-presence requirement. Texas needs to exploit the new rule now. So do other states. The money would be well spent for the highest-priority state needs. The revenue would also just come from actually collecting tax from people who are supposed to be paying tax already, but don’t. In-state Texas merchants who have been withholding sales tax will love the new level-playing field.

This article seeks to articulate a distinct view of federal securities law as it is increasingly used in non-traditional enforcement actions commenced to punish corporate bad behavior. This paper argues that these non-traditional enforcement mechanisms should be viewed with skepticism. This skepticism should not be misinterpreted as cynicism, as the author believes that these non-traditional enforcement actions are beneficial vehicles to accomplish the admirable governmental objective of “punishing people who do bad things.” However, the author recognizes that such use of securities law does not fall into a category of clearly defined criminal law and carries a significant risk of abuse. The author also recognizes the “admirable governmental objective” may be thwarted when it comes to private companies. Finally, the author is uneasy with the societal values conveyed when the government sanctions corporate misbehavior in the name of protecting shareholders from deception.

The going private transaction has been popular in the past and will likely continue in popularity, given the number of startup “exits.” In the alternative, companies could continue to remain private, as venture capital funding and mega-rounds give companies a way to operate privately and their founders to retain control. Traditional rationales were centered around public speculation and filing or disclosure requirements. I suggest that new rationales include control by founder/CEOs, although it is hard to be sure. In the future, there could be new trends, less founder-centric companies, and more rationales for remaining, or going, private.

This is a synchronization license for a copyrighted work. This is document 6 of 6 of Creating the Sounds of Our Lives.

An example of a license to a motion picture. This is document 5 of 6 of Creating the Sound of Our Lives.

This form is to create a licensing account with HFA for the manufacture and distribution of CDs, Audio Cassettes, LP s, DPD’s, Ringtones etc. within the U.S. If you are interested in licensing music represented by HFA, please contact Newmedia@harryfox.com and describe your proposed digital use. This is document 4 of 6 of Creating the Sounds of Our Lives.

This is a sample license agreement for a composition of music. This is document 3 of 6 of Creating the Sound of Our Lives.

This document includes the actual rate schedule and operating policies of ASCAP. This document is part 2 of 6 of Creating the Sound of Our Lives.

A Practical Overview of Music Licensing is presented by Buck McKinney. This article and the accompanying session address fundamental concepts involved in music licensing, several common music licensing scenarios, and practical tips for locating rights owners and administrators. This is document 1 of 6.

Kenneth Geisler II: Current securities law is ill-equipped to deal with computer hackers. He says unlike the typical defendants in insider trading cases, hackers owe no fiduciary duty to shareholders. He argues the SEC has relied on a novel theory of liability that treats hacking and trading as a form of deception.

Texas Uniform Trade Secrets Act (TUTSA) was signed into law in 2013. Prior to this enactment, Texas did not codify a central law governing trade secrets. TUTSA applies to the misappropriation of a trade secret made on or after the effective date (September 1, 2013) of this Act. Since 2013, further amendments have been made to expand and clarify TULSA’s definitions as well as rules, in an effort to provide greater protection against misappropriation claims. This article provides a detailed examination of TUTSA, by discussing trade secret definitions; eligibility requirements for trade secret information; elements of a trade-secret misappropriation claim; remedies under TUTSA and statute of limitation for TUTSA claims.

International investment law was born in a day and age when investors located in powerful and wealthy developed countries were looking for protection against expropriation and other arbitrary interference with their investments by undemocratic and unaccountable governments in developing countries. Bilateral and multilateral investment protection treaties were drafted by the developed countries to give rights and remedies to their investors.

It has been highly anticipated that changes to Texas Business Entity Laws were to be adopted. In 2019, the Texas Legislature approved numerous amendments to the Texas Business Organization and the Texas Business and Commerce. The new pieces of legislation apply to: Limited Liability Companies, Partnerships, Non-profit Corporations and For-profit Corporations. This article provides a detailed explanation of all amendments that were established.