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NewsOK Q&A: Laws allow for various contingencies in dealing with bankrupt companies

From NewsOK / by Paula Burkes
Published: April 18, 2017
Click to see full story – Laws allow for various contingencies in dealing with bankrupt companies

Click to see Gretchen Latham’s attorney profile

Gretchen M. Latham’s practice focuses on representing creditors in foreclosure, bankruptcy, collection and replevin cases. She offers these services to her clients on a statewide basis as well as in all three Bankruptcy and Federal Court Districts in Oklahoma.

Q: Can a lender still do business with a bankrupt company?

A: Most generally, yes. When a business files for bankruptcy, the type of case is most commonly a Chapter 11 case. In a Chapter 11, it’s possible for the company to remain in possession of its assets, including equipment and inventory, and continue to do business. This includes interacting with vendors and lenders on a regular basis. As a creditor, the safeguard in place for repayment of any loan made to a company operating under a Chapter 11 is that post-petition debts are given priority as an administrative claim. This helps to eliminate some of the risk, and provide assurances of repayment. However, if the type of case filed is a Chapter 7, the company will no longer be operating its business and all of its assets are scheduled for liquidation.

Q: Can goods that are shipped to a Chapter 11 debtor be recovered?

A: The Bankruptcy Code does allow for reclamation of recently shipped goods, pursuant to 11 U.S.C. Section 546. There’s a somewhat tight timeline for exercising the right of reclamation, which must be precipitated by making demand.

Q: How can I get paid by a Chapter 11 debtor?

A: An option for making a payment claim, which is not unique to a Chapter 11 case, is for a creditor to file a proof of claim. The proof of claim will set forth the balance due and payment terms. The deadline to get a claim on file will vary from court to court, and the required form is typically provided with notice of the filing. Payment on a proof of claim can take a while, so be prepared to wait for the case to come to completion.

 

NewsOK Q&A: FBI warns against doctors, dentists using ‘anonymous mode’ computer servers

From NewsOK / by Paula Burkes
Published: April 12, 2017
Click to see full story – FBI warns against doctors, dentists using ‘anonymous mode’ computer servers

Click to see Mary Holloway Richard’s attorney profile

Mary Richard is recognized as one of pioneers in health care law in Oklahoma. She has represented institutional and non-institutional providers of health services, as well as patients and their families.

Q: What attention has the FBI recently given to protect Protected Health Information (“PHI”) from cyber criminals?

A: Under a “Private Industry Notification” dated March 22, the FBI’s Cyber Division has provided guidance that’s applicable specifically to medical and dental providers and focuses on protection of sensitive, identifiable health information.

Q: What does the notice specifically recommend?

A: The notification recommends these health care providers request that their IT services personnel take steps to further secure the information from cyber threats by checking networks for File Transfer Protocol (“FTP”) servers running in anonymous mode. FTPs routinely are used to transport information between network hosts. This is the case, for example, when a covered entity such as a hospital or group practice transfers information to a business associate, such as a billing company or a third-party payer, for the purpose of submitting claims for services provided.

Q: What does “anonymous mode” mean and what threat does it represent?

A: “Anonymous mode” refers to the situation where an FTP server can be structured to permit users who are anonymous, doesn’t require a password to enter, and accepts common user names such as “anonymous” or “FTP.” The danger is that, in such circumstances, sensitive patient information stored on a server could be accessed with little or no security.

Q: Why does the FBI guidance focus specifically on health care?

A: Research conducted at the University of Michigan in 2015 resulted in a finding that more than one million FTP servers would allow such access. According to the FBI, some computer security researchers seek servers in anonymous mode as part of legitimate research, but others make such connections to facilitate nefarious activities such as launching cyber attacks, hacking, blackmailing, harassing and intimidating business owners. It’s the FBI’s purpose issuing this new guidance to both make health care business aware of the risks represented in their IT systems and to shore up weaknesses that pose cyber security risks. In addition to the precautions urged in the notice, the FBI has previously urged companies to buy and implement ransomware defense software.

Q: Should additional actions be taken by medical and dental health care entities to provide additional protections against cyber crime?

A: The FBI encourages medical and dental health care entities to report suspicious or criminal activity to the local FBI field office (locate via www.fbi.gov/contact-us/field) or the FBI’s 24/7 Cyber Watch, CyWatch 855-292-3937 or CyWatch@ic.fbi.gov. Submitted reports must include available information regarding the date, time, location, type of activity, number of people and type of equipment used for the activity, the name and contact person for the entity submitting the report. Victim complaints can be filed with the internet Crime Complaint Center at www.ic3.gov.

 

NewsOK Q&A: Data on your personal phone may be available to your employer

From NewsOK / by Paula Burkes
Published: July 19, 2016
Click to see full story – Data on your personal phone may be available to your employer

Click to see Kathy Terry’s attorney profile

The emphasis of Kathryn D. Terry’s litigation practice is in the areas of insurance coverage, labor and employment law and civil rights defense.

Q: What are personal electronic devices and why do they matter?

A: The use of personal electronic devices (PEDs) in the workplace is commonplace, but it’s not without risk for both the employer and the employee. If not managed properly, employers risk the dissemination of their confidential information and employees, perhaps rightly, have privacy concerns.

Q: What can an employer do to protect its business information?

A: Employers need a written PED, or bring your own device policy, signed by employees. Your policy should address several matters: the employer’s information always belongs to the employer; upon termination, it must be deleted immediately in the presence of the employer’s representative; all communications that go through the employer’s server are fair game for the employer and the employee has no expectation of privacy in those communications; only approved websites can be accessed via the employer’s server and accessing an unapproved website may result in severing of the server access and/or deletion of data, even the employee’s personal data, from the phone electronically; and the company always should have access to/be informed of the employee’s password for connectivity between the company server and the PED.

Q: So personal data, including contact lists, phone numbers and pictures, can be deleted from the employee’s own phone? 

A: Yes, though this area is evolving almost daily nationwide. There are lots of different federal laws and statutes in every state, including common law, which could be implicated. Please consult an attorney before charging ahead. Large companies are moving toward policies that give advance notice to an employee that upon termination if he/she fails to cooperate in the deletion of company information, the company can and will wipe all data from the phone (or other PED) and return it to factory settings. Most of the recent case law out there comes down in favor of the employer and rejects claims by employees under various federal laws, like the Electronic Communications Privacy Act or the Computer Fraud and Abuse Act.

Q: Don’t employees have a right to privacy in their own communications, on their own phones?

A: So far, there’s no case out there that has found an employer can’t, under any circumstances, search a PED for data. Courts looking at whether a private employer has overstepped by searching PED communications do emphasize privacy concerns and they recognize each case is fact specific. But, typically, if that data is coming through a company server, the company can take a look. We recommend the employer narrow any such search to work related/topic specific communications.

Q: Are the rules the same for government employers?

A: Not really. Governments have to worry about the Fourth Amendment, unreasonable searches and seizures, and more often than private employers, union contracts. So far, most court and administrative rulings favor the government employer who searches a PED, but those cases get close factual scrutiny. Also, in the case of public employees (elected officials included), the Freedom of Information Act and, here in Oklahoma, the Open Records Act, are applicable. Work-related communications, even on a PED, are public records. If a government employer needs to search for and retrieve communications that are work related from a PED, that search is going to be permissible.

Q: What about quality of life and working after hours?

A: If your employees aren’t overtime exempt, after-hours texting and emailing should be included in the employees’ time records, and they should be paid for it, even if it results in overtime pay at a higher rate. Employers concerned about the increased wage expenditures should consider limiting PEDs use to only overtime-exempt employees. If this isn’t possible, a policy should be written and adhered to that results in very limited after-hours communications, and includes clear guidelines on how to account for the time and resulting compensation when those communications do occur.

Q: Do we have to reimburse employees if they use PEDs for work?

A: In some states, the answer is yes. Here in Oklahoma, we don’t have a bright line rule requiring reimbursement for an employee who uses a PED to conduct work-related tasks. However, many Oklahoma employers are moving toward reimbursement, or partial reimbursement at minimum.

Q: What about litigation holds on electronic data that may be discoverable?

A: If you’ve ever had to produce electronic data during the course of a lawsuit, you know that can be very burdensome. You also know that if you’re on notice of a potential claim against your company, you will need to be sure the company has policies and practices in place that work to preserve potentially discoverable documents, communications and data. Certainly, if your company’s employees are communicating and working on PEDs, there needs to be a process in place designed to reasonably capture and preserve that information, communication and data that may be stored or saved to PEDs, as opposed to a company network server.

Director quoted as source in article on Oklahoma Supreme Court case

Heather L. Hintz primarily represents banks, commercial entities and municipalities in litigation in state and federal courts with an emphasis on protecting hard-fought rulings throughout the appeals process.

Phillips Murrah Director Heather Hintz defended her stance on Oklahoma State Question 777 in an article published on NewsOK.com on Wednesday.

Read Hintz’s comments from the article below:

Attorneys for opponents of the ballot measure have filed an accelerated appeal in the case, in hopes the Oklahoma Supreme Court will take up the matter before a deadline in late August for the Oklahoma Election Board to print the November ballot, said Heather Hintz, an attorney for plaintiffs in the case.

“We are asking the Supreme Court to retain the appeal because it’s a matter of public importance that has widespread public impact,” Hintz said.

The plaintiffs have challenged the constitutionality of State Question 777 on several grounds, and argue that the measure is so blatantly unconstitutional that it would be a waste of state resources and misleading to voters, Hintz said.

“There is a strong Oklahoma policy that something that is facially unconstitutional should not go to the ballot because it’s a waste of resources and it misleads voters,” she said.

Read more at NewsOK.com.

NewsOK Q&A: High court’s tie in assault affirms tribe’s self-determination right

From NewsOK / by Paula Burkes
Published: June 30, 2016
Click to see full story – High court’s tie in assault affirms tribe’s self-determination right

Click to see G. Calvin Sharpe’s attorney profile

G. Calvin Sharpe has 30 of years of experience in Oklahoma courtrooms, representing a diverse list of business clients in matters relating to medical malpractice, medical devices, products liability, insurance and commercial litigation.

Q: Generally speaking, what was the Dollar General case about, originally?

A: In the original case, there was a Dollar General store operating within the Reservation of the Mississippi Band of Choctaw Indians. A 13-year-old boy, a tribal member, was working at the store as a part of a youth opportunity program. In 2005, a suit was brought by the boy’s parents that alleged that the boy was sexually assaulted by the store’s nontribal manager in the summer of 2003. In the binding contract with the tribe to operate on tribal land, Dollar General agreed to tribal court civil jurisdiction, so the case went to a tribal court. The Choctaw courts denied a motion to dismiss the case due to lack of jurisdiction citing a 1981 Supreme Court Case, Montana v. United States, which held that a “tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members.” Dollar General subsequently sued in federal court to clarify the terminology, “other means.” (Dollar General Corp. v. Mississippi Band of Choctaw Indians)

Q: The Supreme Court decision was tied, 4-to-4, which means that the lower court decision of the U.S. Court of Appeals for the Fifth Circuit is upheld. What was that Fifth Circuit’s upheld decision?

A: At the heart of this decision is the question of whether tribal courts have the right to exercise civil authority over people who are operating within tribe’s jurisdiction, but who aren’t tribal members. In the federal case subsequent to the tribal rulings in Choctaw courts, Dollar General petitioned for certiorari, which means they asked a higher court to review the determination of a lower court. In the judgment of the U.S. Court of Appeals for the Fifth Circuit, Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members.

Q: How has this Supreme Court ruling, essentially allowing the lower court decision to stay, changed the nature of tribal jurisdictional authority?

A: In the decision of the appeal to the Supreme Court of the United States of America, the high court was deadlocked, which allows the decision of the U.S. Court of the Appeals for the Fifth Circuit to stand. The judgment is affirmed by an equally divided court, (which) allows the case to proceed to resolution in tribal court without further appeals regarding authority. However, there’s the likelihood that, in a similar case, the Supreme Court would grant another certiorari when the Senate confirms a replacement for Justice Scalia.

Q: Why is this viewed as a success for tribal sovereignty and tribal governmental authority?

A: Thursday’s Supreme Court ruling served as a significant win in the fight for native tribal court authority. The Supreme Court tie affirms native groups’ right to self-determination. This allows federally recognized tribes to continue developing their own governmental bodies.

 

Levelland Productions puts OKC at top of Oklahoma music scene

levelland logoLevelland Productions got a lot of good press last week with their actions that are propelling the Oklahoma City music scene.

“It’s been exciting to see these guys get to this point,” said Phillips Murrah Director Juston R. Givens. “They’ve put in a lot of hard work and it’s fun to watch that come to fruition.”

For background, we mentioned Levelland in March as they broke ground on The Criterion, a premier live music venue that will allow A-list bands to come to Bricktown rather than playing at the various, road-trip-distance, edge-of-the-metro casino venues. Or in Tulsa, (which I’ll mention in a bit).

The Criterion is set to change the way we experience music in OKC with a world-class, dedicated-music venue comparable to what one would expect at a Hard Rock Live. Or a House of Blues (owned by Live Nation, which I’ll mention in a bit.).

Last week, Levelland announced a 15-year agreement to operate the iconic Tower Theater, an historic theater situated on 23rd Street between Hudson and Walker. This agreement will make Tower Theatre into a roughly a 1000-capacity music venue and an upscale cocktail bar.

Please see these great stories by OKC historian/contemporarian, Steve Lackmeyer, for the details:
Tower Theater in Uptown bought by local developers with history of success
Tower Theater signs long-term deal to host live music

On the heels of that announcement came word that Levelland Productions is teaming up with Live Nation for booking talent into The Criterion. The word on the street is that this move will put Oklahoma City on the map as the state’s music capitol.

From the NewsOK article, Live Nation Is Coming to Bricktown (It’s a Big Deal), Lackmeyer wrote:

“Live Nation is the big dog in the concert industry, and if there is any entity out there can smash apart the status quo of Oklahoma City taking a back seat to Tulsa when it comes to live music and not lose out other major acts to the casinos, it is Live Nation.”

Here is Lackmeyer’s full story about the The Criterion / Live Nation partnership.

 

Director and bankruptcy leader Tim Kline featured in The Oklahoman Q&A

kline paper

Click to see this on NewsOK.com

Although Phillips Murrah Director Tim Kline will recoil at the use of this descriptor, I (Marketing Director, Dave Rhea) am going to be so bold and reckless as to say he is legendary. As I listened to him review some of the highlights of his personal history, I felt like I was in the room with a great Oklahoma oral historian.

I found myself thinking on a couple of occasions, “too bad Tim doesn’t have a radio show.” But I guess he’s a little busy being one of the state’s preeminent bankruptcy attorneys. Oh well, I think he could have given Paul Harvey a run for him money.

Business reporter Paula Burkes, from The Oklahoman, was kind enough to stop by the firm recently to talk to Tim for one of the newspaper’s Executive Q&A features. It published Sunday, April 12 and gave people a glimpse into the storied life of a lawyer who has been practicing bankruptcy law since those infamous Penn Square days:


 

The morning of the 1982 Penn Square Bank collapse, Phillips Murrah Director Tim Kline — then a young general litigation attorney — was asked by his firm to call on Oklahoma City oilman Carl Swan, who was a director of the bank.

“It was the Monday following the July 4th weekend, and I was supposed to be off,” said Kline, who remembers he wasn’t too happy about the assignment.

In their meeting, Kline asked Swan if the bank was OK and Swan, in his notorious gruff manner, reported that it was; that the Federal Deposit Insurance Corporation agreed to capitalize millions more and give the bank more time, he said.

But when Kline arrived home and flipped on his TV, he learned the FDIC had pulled the plug on Penn Square Bank.

The infamous bankruptcy is what sparked a nearly 33-year career in bankruptcy law for Kline, whose late father and former Assistant U.S. Attorney David A. Kline Jr. served 14 years as a bankruptcy judge.

At the time of the collapse, Kline was helping his dad teach a bankruptcy law course at Oklahoma City University — largely on the 1978 Bankruptcy Reform Act, which the senior Kline had helped promote.

Tim Kline never intended to go into bankruptcy law but, following the oil bust, circumstances unfolded that way, he said. With so much demand for bankruptcy work, his dad left the bench and they formed Kline & Kline in February 1983, where they worked together for more than 25 years.

Kline in 2011 joined Phillips Murrah, where he continues to specialize in bankruptcy law.

From his offices on the 13th floor of the Corporate Tower, Kline, 65, sat down recently to talk about his life and career. This is an edited transcript:

Q: Tell us about your roots.

A: Of course, my father was an attorney and my mother was a homemaker. I’m the middle child of their three children. My brother is six years older and my sister is eight years younger. My father used to joke that he managed to raise three only children. But we were, and still are, close. In fact, we three and our mother, 94, all live within walking distance from one another on several hundred acres we bought in 1981 in the Jones Public Schools District in eastern Oklahoma County, 10 miles east of I-35, where we have dogs, chickens and horses. My brother-in-law raises cattle. When I was a bachelor, my home was like an overgrown cabin. But since Alyssa and I married, we’ve reinvented it three times. It’s three-storied and our second story overlooks a lake.

Q: Where did you go to school?

A: In elementary school, I was a Mayfair Chipmunk. We lived near 50th and May when Mayfair was a brand-new neighborhood. In the sixth- and seventh-grades, I attended Casady, after my brother was recruited there to play baseball. Once he graduated and went to OU on a baseball scholarship — and I lost my ride to school — I transferred to Putnam City, where I graduated. Growing up, I played baseball, football and basketball, but my siblings were far better athletes. My sister went to OCU on a tennis scholarship. I was into politics. At 7, I remember sitting up and crying when Adlai Stevenson lost; in 1960, I got to hear JFK speak in the municipal auditorium; and before I could vote, I was the Ward 1 campaign chairman for Eugene McCarthy. I also enjoyed speech, debate and plays. My favorite role was the lead my sophomore year in “Look Heavenward Angel.”

Q: What were some of your first jobs and first cars?

A: As a youth, I worked at the municipal ball park. My sophomore year in high school, I threw the first papers of the now-defunct Oklahoma Journal. By the summer of my senior year, I graduated to writing obits and writing some Friday night football stories. My freshman year of college, I was awarded a scholarship to UCO. My father told me if I took it, he’d get me a car, though it wasn’t a very nice car. It was a used light blue Ford Fairlane. When I was a junior, and doing well in school at OU, he bought me a purple Plymouth Road Runner.

Q: Did you always plan on being an attorney?

A: There was a time I considered becoming a philosophy teacher. At OU, I studied under the legendary J. Clayton Feaver and considered getting a Ph.D. in philosophy. I’d earned a graduate minor in it, along with a bachelor’s and master’s in polisci. But instead, I wound up taking the law school entrance exam. I like the problem solving in law, and helping people where they have a practical need. During law school, I interned with the U.S. Attorneys office and worked at the Redlands Racket Club and OKC Tennis Center. I got to play tennis with Colin Robertson. Before my father and I opened our own firm, I clerked for over three years for U.S. federal judge Luther Bohanon. He liked having me in the courtroom with him, so I got to see a lot of good lawyers at work in big trials. I worked the next three years for the firm of Jimmy Linn, a west Texas litigator who was a heavy hitter on the national level.

Q: What do you like about practicing bankruptcy law?

A: My work is really about avoiding bankruptcy as such. Whether I represent the debtor, creditor or a trustee, I try to bring together parties who are in financial stress and help them clarify what common interests are involved and how to maximize financial recovery. My goal is to do the most for the most people in the most efficient manner possible. Of course, like in all things in life, it takes two to tango. Sometimes, people aren’t cooperative and we have to go to a Plan B scenario and invoke legal remedies and be as confrontational as necessary. I’m as nice as the other side will allow.

Q: How did you meet your wife?

A: Alyssa is a native Canadian. We met at Christmastime 1976, when I went to British Columbia to visit relatives and friends, but then she was only a punk teenager. Her family and I kept in touch over the years and in the summer of ’85, she called to say she and her folks were going to Seattle and would I like to meet them there. She was 23; I was 36. I spent a couple days in Seattle, but had to fly back to Albuquerque for a big case. Three weeks later, I flew to British Columbia, where we wed and spent our honeymoon. She was shocked that it was 100 degrees in Oklahoma City, when our flight arrived home at 11 p.m. on Sept. 1. The next morning, she joked about getting an annulment. But this August, we will have been married 30 years. Alyssa earned an education degree at UCO and taught elementary school, before she had our daughters whom she home schools. After the girls were born, Alyssa’s parents moved to Oklahoma City. We’ve lost her mother, but her father lives in a retirement community. He’s 94 and was over for Easter.

You can view the whole story here: http://newsok.com/executive-qa-penn-square-bank-collapse-sparks-counselors-career-in-bankruptcy-law/article/5409410

 

In the news: Phillips Murrah President quoted in NewsOK clean energy article

Tom Wolfe is a trial attorney and commercial litigator whose practice is focused on complex business cases including product liability, oil and gas, mass tort and class action defense. Tom is also the president and managing partner at Phillips Murrah.

Tom Wolfe is a trial attorney and commercial litigator whose practice is focused on complex business cases including product liability, oil and gas, mass tort and class action defense. Tom is also the president and managing partner at Phillips Murrah.

Phillips Murrah President and Director, Tom Wolfe, is quoted in The Oklahoman regarding the Kingfisher wind project.

NewsOK: Kingfisher wind project pauses some construction as Texas oil company questions locations

by Paul Monies, Published: March 25, 2015

KINGFISHER — Apex Clean Energy has agreed to pause construction on part of its Kingfisher wind farm until more details can be shared with a Texas oil company concerned about the project affecting one of its top areas of exploration.

Newfield Exploration Mid-Continent Inc. pulled its request for an emergency temporary restraining order after attorneys for the company worked out a 15-day “stand-down” with Apex attorneys Tuesday afternoon at the Kingfisher County Courthouse.

(Later in story)

Tom Wolfe, an attorney with the Phillips Murrah law firm who represented Apex, said the 15-day stand-down covered five of the sections where Newfield was concerned about its oil and gas infrastructure being affected by underground electricity collection cables, lines needed to connect the turbines.

In return for the stand-down, Wolfe said Newfield agreed to drop its claim that Apex didn’t provide adequate notice of construction plans under a 2011 state law requiring notice to owners of mineral rights of new wind or solar projects.

Read the full story here on newsok.com.

Eminent domain raises questions when used on behalf of the private sector

Jennifer Berry Photo

Jennifer Ivester Berry is an attorney with a solid reputation in guiding real estate transactions with a focus on development, financing and energy. She represents individuals, and privately-held and public companies in connection with a wide range of commercial real property matters.

Q&A from NewsOK: Phillips Murrah attorney Jennifer Ivester Berry discusses the what, when, how and why of eminent domain.

View Jennifer Ivester Berry’s attorney profile page here.

By Paula Burkes – Published: March 25, 2015
View the article at NewsOK.com here.

Q: What is eminent domain?

A: Eminent domain, condemnation, taking power — these words sound ominous and forceful, as if the party on the receiving end has no choice but to succumb to the directive of the imposing party and give up something for nothing. However, stop for a moment and remember that with most constitutionally created powers come some series of checks and balances. Eminent domain, in its most simplistic form, is the power to acquire private property for a public use, provided that the property owner receives just compensation. Some of the most recognizable uses of the eminent domain power are for the establishment of roadways, hospitals, railroads and utilities. In more recent years, the use of eminent domain for purposes of economic development has sparked a public policy debate that will no doubt continue for years to come.

Q: When can eminent domain be used?

A: The power of eminent domain originates from the state’s constitution, and the Oklahoma Legislature enacts statutes that set out the manner, purpose and through whom such power may be exercised — a system of checks and balances. For example, municipalities are granted a general power of condemnation under the state statutes, so long as the taking is for a public use and the property owner is adequately compensated. There are certain circumstances and uses that the Legislature has identified as being for the benefit of the public and thus created specific statutes covering them, for example, the removal of dilapidated buildings, the improvement of water and sewer systems, and urban renewal. The Legislature also conferred the power of eminent domain on utility companies, public enterprises and common carriers. Private individuals or companies also may utilize the power of eminent domain for agricultural, mining and sanitary purposes, as well as for establishing private roadways where access in an issue.

Q: How does eminent domain work?

A: The party seeking to condemn property will usually have attempted to negotiate with the landowner to acquire the property. That said, if a municipality or utility company is dealing with numerous parcels of land with countless owners, using the condemnation proceeding can simplify the process and avoid negotiations that may or may not be successful. Once the condemnation proceeding is filed, the court appoints three individuals (commissioners) who will examine, evaluate and inspect the property. The commissioners are instructed to return an award to the court that reflects the fair market value of the property taken, as well as any injury to any part of the property not taken. The award is payable to the landowner even if the landowner owner contests the award. If, as a result of a contest, a jury finds the fair market value of the property to be an amount in excess of 10 percent of the commissioners’ award, the landowner may be entitled to reasonable attorneys and expert fees.

Q: Why do we need eminent domain?

A: Using eminent domain to obtain property for roadways and utilities is rarely a source of contention, even if ultimate ownership of such property is by a private party. The more controversial issue is whether the government can use its eminent domain power to aid a private party. The U.S. Supreme Court has blessed the use of eminent domain as a governmental incentive for economic development. However, numerous states, including Oklahoma, have taken a more narrow view and require that the use of eminent domain power for economic development must involve the removal, elimination or prevention of blight. Proponents of this power, whether the broader or more narrow application of it, argue that without it being available as an incentive for private development, economic development would be stifled significantly. Others, however, feel that failure to value individual property rights actually dissuades potential residents and business from moving into a community and as such cripples any potential for economic growth. One thing is clear, eminent domain will continue to be used for economic development and as such continue to be a debatable issue in the private sector.