Posts

Phillips Murrah sponsors Positive Tomorrows at 2020 Cork & Canvas

Positive Tomorrows’ hosted its annual Cork & Canvas event, sponsored by Phillips Murrah and Director Nikki Jones Edwards, via virtual livestream on Sept. 17.

The event was originally scheduled for April 16 but was rescheduled and repurposed as an online auction event due to COVID-19. This change created an opportunity for Positive Tomorrow to air videos from supporting sponsors during the event.

Watch Phillips Murrah’s sponsor video below:

Nikki has supported Positive Tomorrows in various roles, serving as the Past President, volunteer, and four-term board member. She recently commemorated 20 years of service for the organization.

Positive Tomorrows is Oklahoma’s only elementary school specifically serving homeless children and their families and prides itself on educating at-risk children by dedicating attention to their unique educational and social service needs.

Learn more about Positive Tomorrows here.

Read more about Phillips Murrah’s support of Positive Tomorrows below:

Phillips Murrah welcomes two new attorneys to litigation team

Phillips Murrah is proud to welcome Natalie M. Jester and Laurie L. Schweinle to our Firm’s Litigation Practice Group as associate attorneys.

Attorney Laurie L. Schweinle and Natalie M. Jester

Laurie L. Schweinle and Natalie M. Jester

Natalie and Laurie represent individuals and both privately-held and public companies in a wide range of civil litigation matters.

Natalie attended the University of Oklahoma College of Law where she earned the American Jurisprudence Award for Professional Responsibility, Litigation Skills, and the Criminal Defense Clinic. She served as the Staff Editor on the Oklahoma Law Review and was on the Dean’s Honor Roll.

Prior to law school, Natalie was an Officer in the U.S. Navy. She now lives in Oklahoma City with her husband and two dogs.

Laurie attended the Oklahoma City University School of Law where she earned multiple CALI Awards for Excellence and was on the Dean’s List and Faculty Honor Roll. She served as a Staff Editor on the Law Review and received the Oklahoma Bar Association’s Outstanding Senior Law Student Award for OCU. She was also a member of the Phi Delta Phi Honor Society.

Laurie was raised in the Holdenville, Oklahoma area and received a Bachelor’s Degree from East Central University in Ada, Oklahoma. Prior to law school, Laurie worked for the Council on Law Enforcement Education and Training as the Executive Assistant, Public Information Officer, and Legislative Liaison.

Voth accepted into LOKC’s Signature Class 39

Attorney Lauren S. Voth has been accepted into Leadership Oklahoma City’s next Signature Class.

Attorney Lauren Symcox Voth

“Usually, the Signature LOKC program is a 10-month program with classes each month that focus on different community issues,” Voth said. “This year will be a little different and LOKC Class 39’s start date will be deferred to Fall 2021, however, we will have virtual meetings and get to attend alumni events throughout this year.”

The Signature Program is comprised of a two-day opening retreat and one-day-a-month programs for accepted individuals familiar with volunteer programs to network and increase their impact on their organizations and their community. Applicants are typically senior executives, business owners, and high-level directors and managers across industries and business types regionally.

“I am excited that we are in this unique position to spend a year getting to know one another and then another year learning and exploring Oklahoma City’s community issues, diversity, and resources,” Voth said.

To learn more about the Signature Program and other Leadership Oklahoma City programs, visit their website here.

Force majeure clauses and COVID-19

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on September 17, 2020.


By Phillips Murrah Attorney Kendra M. Norman

Kendra Norman Web

Kendra M. Norman represents individuals and businesses in a broad range of transactional matters.

Force majeure clauses are common clauses in contracts that allocate risk between parties and release a party from liability or obligations during unforeseeable or unpredictable events that are out of the party’s reasonable control.

These events can generally be referred to as acts of God or can be specifically listed in the agreement, often including events like war, strikes, riots or government actions. However, it should be noted that there is not a specific set of events that come under the definition of “acts of God” – this often depends on the context of the contract and the jurisdiction.

Force majeure clauses are ever-evolving and the language used has been influenced by events around us. Before 9/11, most force majeure clauses didn’t include terrorism as a force majeure event. This spurred litigation between parties regarding whether terrorism was an act of God that should be covered by the force majeure clause to excuse performance. Now, terrorism and terrorist attacks are often specifically set forth in force majeure clauses.

The conversation about force majeure clauses now revolves around whether the COVID-19 pandemic qualifies as an act of God and how this will affect contracts. As always, this depends on the type of contract, the language set forth in the contract, the context of the contract, the intent of the parties, and the governing law of the contract. Therefore, this determination is highly fact-specific and depends on several factors.

It is possible that COVID-19 could be considered an act of God in some contracts, or it could fall under force majeure clauses that contain specific references to disasters, national emergencies, government regulations or generally acts beyond the control of the parties. With the extraordinary potential consequences from COVID-19 yet to be determined, businesses should begin ascertaining whether their material contracts contain force majeure provisions and how such provisions may affect their rights and responsibilities going forward. However, given the widespread impact of COVID-19, it is possible that parties may be more likely to negotiate amendments to agreements that have been impacted by COVID-19 rather than forcing parties to rely on and litigate force majeure clauses.

Nevertheless, going forward, those entering into contracts should consider whether adding more specific terms such as epidemic, pandemic or infectious disease as force majeure events will be advantageous for them in the future.

Kendra Norman is an attorney with the law firm of Phillips Murrah.


facebook iconPlease follow us on FACEBOOK!

Gardner to present ethics CLE for in-house corporate counsel

Director Melissa R. Gardner will give a Continuing Legal Education presentation virtually for Association of Corporate Counsel on Sept. 9.

Melissa Gardner is a Director who practices in the Energy & Natural Resources Practice Group. She represents both privately-owned and public companies in a wide variety of oil and gas matters, with a strong emphasis on oil and gas title examination.

ACC is a global association that aims to be an educational resource and networking platform for in-house counsel in corporations, associations and other organizations.

“Phillips Murrah is happy to sponsor the Oklahoma Chapter of the ACC and to partner with OK ACC in serving the business interests of our in-house counterparts,” Director Joshua L. Edwards said.

Gardner’s presentation is a refresher for a full spectrum of ethics issues in-house counsel manage on a daily basis.

“In my experience, continuing legal education for ethics is incredibly important because you are often on your own when making these decisions,” she said. “Plus, your relationships working with your clients on a day-to-day basis make some of the more difficult ethics calls more complicated than they would be if there was an arm’s length relationship.”

Gardner will cover Oklahoma’s Rules of Professional Conduct and address eight common ethics issues, exploring practical scenarios and ways to address each.

“Putting on programs like this allows us to support OK ACC’s mission of providing continuing education opportunities to its members,” Edwards said.

To learn more about ACC and this CLE, visit their website here.

Phillips Murrah voted 2020 Reader’s Choice Best Local Law Firm

The Oklahoman newspaper’s readers named Phillips Murrah law firm a winner of Readers’ Choice Awards in two categories for 2020.

Phillips Murrah P.C. was voted Best Local Law Firm, and Director Elizabeth K. Brown was chosen as Best Business Attorney.

Remaining nominees from the Firm were voted into the Top 3 of their respective categories:

Readers of The Oklahoman chose nominees in May and voted on winners in June.

The winners were recognized at the Readers’ Choice event on Aug. 27.

PM attorneys create “practical” guide to commercial real estate leasing

Phillips Murrah attorneys merged their expertise to curate a commercial real estate leasing legal guide for Thomson Reuters’ Practical Law resource.

Thomson Reuters Practical Law provides guidance across many practice areas with hundreds of editors monitoring each subject to make day-to-day updates as legal viewpoints shift. Directors Sally A. Hasenfratz and Joshua L. Edwards and Attorneys Jennifer Ivester Berry and Erica K. Halley contributed to organizing the August 5, 2020 update for Real Estate Leasing for Oklahoma.

“I enjoyed spending time taking an earnest look at the various layers of my real estate and leasing practice to create a user-friendly roadmap on the basics in the Oklahoma market,” Halley said. “Q&As like this and similar materials made available by Thompson Reuters are great resources for out-of-state attorneys and, particularly, local attorneys who may be handling a matter outside of their usual field.”

thomson reuters practical law

Read more on Phillips Murrah’s Real Estate Leasing guide for Oklahoma from Thomson Reuters here.

Cooper elected 2021 OCBA Vice President

Oklahoma County Bar Association members voted to elect Cody J. Cooper, Phillips Murrah Director, as Vice President for 2021.

Cody Cooper online photo

Cody Cooper is a Director in the Intellectual Property Practice Group and represents individuals and companies in a wide range of intellectual property matters, including patent, trademark and copyright matters. His practice also includes commercial litigation.

“I enjoy being involved in the Oklahoma County Bar because it provides me an opportunity to be directly involved with Oklahoma County’s legal community and provides me an excellent opportunity to meet and work with colleagues that I wouldn’t otherwise have an opportunity to work with,” he said. “I have the chance to work directly with our county judges, law schools and practitioners throughout the county to further the work of the bar and provide a positive community impact.”

Cooper is currently serving his term on OCBA’s Board of Directors, a role he assumed in 2019 and will serve in until his term as Vice President begins in August 2021.

OCBA members also elected Judge Don Andrews as President, Shanda McKenney as President-Elect, Benjamin Grubb as Law Library Trustee, and Ed Blau, Judge Heather Coyle, Katherine Mazaheri-Franze, Drew Mildren, Amy Pierce, and Judge Susan Stallings as members of the 2023 Board of Directors.

To learn more about OCBA, visit their website here.

Does COVID-19 constitute a material adverse effect?

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on August 6, 2020.


By Phillips Murrah Attorney Travis E. Harrison

Travis Harrison

Travis E. Harrison is a transactional attorney who represents individuals and both privately-held and public companies in a wide range of transactional matters.

In addition to a vast human toll, COVID-19 has wreaked havoc on businesses, markets and supply chains. With infections still spreading, businesses have suffered cash and liquidity constraints and anticipate such suffering to continue.

The pandemic also presents unique risks to parties in acquisition agreements, such as risks concerning the financial viability of the target company. Parties often address these risks by including material adverse effects, or MAE, clauses.

Generally speaking, an MAE is an event, circumstance, change or effect that presents a material threat to the business of the target company. MAE clauses account for this possibility and allocate risk among the parties.

Such clauses are frequently used as conditions to closing and qualifiers to the seller’s representations. If the target company suffers an MAE as defined in the agreement, the clause allows the buyer to unilaterally terminate the deal without being considered in breach of contract. The seller can qualify representations made about the condition of the target company, making it more difficult for a buyer to assert a breach. Also, exclusions to the definition of an MAE are identified, such as industrywide market conditions.

One increasingly common issue is whether COVID-19 constitutes an MAE. The following questions may help determine the answer and assist parties in the negotiation stages:

  • Are there MAE exclusions such as epidemics, pandemics and natural disasters?
  • Has COVID-19 resulted in unique issues for the target company that are disproportionate to other companies in the same industry?
  • Is the buyer obligated to use certain efforts to close the deal notwithstanding events that affect the financial condition of the target company?
  • What other limitations apply to an MAE? For example, can events only occurring after executing the agreement qualify as an MAE?
  • Have the parties contractually shifted the burden to the seller to prove that an MAE has not occurred?

While these questions may provide guidance on the issue, establishing whether an MAE has occurred is a highly fact-intensive issue that depends on the unique circumstances involved and the specific language used in the acquisition agreement. It should also be noted that buyers have faced a significant burden in court to show that any event meets the criteria of an MAE. As more parties litigate the issue, the courts will play an important role in establishing precedent that will shape how parties negotiate acquisition agreements.

Travis E. Harrison is an attorney with the law firm of Phillips Murrah.

GIP names Jim Roth as new board member

Global Innovation Platform has named Jim Roth, Phillips Murrah Director, as a board member.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

“Jim has extensive depth and insights regarding energy policy, trends and opportunities and will add tremendous value to the governance of GIP,” said David Swank, CEO of GIP. “I had the great pleasure of working with Jim while he served as Oklahoma Corporation Commissioner and found Jim to be very innovative, forward thinking and pragmatic about where we need to be going in the energy and built environment space.”

Roth is a member of the Phillips Murrah Law Firm’s Energy & Natural Resources Practice Group and chair of the Clean Energy Practice Group. He represents individuals, publicly-owned companies and privately-owned companies in a range of business, energy and environmental issues, as well as a variety of public policy and regulatory matters.

He served as an Oklahoma Corporation Commissioner, by appointment of Governor Brad Henry. Prior to that appointment, Roth was elected to consecutive four-year terms as Oklahoma County Commissioner. He is a member of the Oklahoma, Kansas, and American Bar Associations and is a past president of the National Association of Civil County Attorneys.

Additionally, in 2018, Jim began serving as the dean of the Oklahoma City University School of Law, his alma mater. He enjoys bringing leadership and innovation to preparing tomorrow’s lawyers for the legal profession. Roth is an alumnus of OCU Law, earning his Juris Doctor degree in 1994. He also holds graduate certificates from Harvard University’s Kennedy School of Government, the United States Air War College’s National Security Forum at Maxwell Air Force Base, and the Institute of Public Utilities at Michigan State University.

“Jim’s vast experience within the energy sector will be highly beneficial to our shareholders,” said Jordan Harper, GIP board chair. “Jim is an individual who brings out the best of others and organizations. I appreciate his ability to generate ideas and build solutions that are meaningful to clients and society in general.”

GIP is an IoT (Internet of Things) and digital data company located in Stillwater, Okla. The company provides technology solutions that make infrastructure and facilities smarter and intuitive. GIP’s primary clients include the utility, commercial, industrial, agriculture and residential sectors. Learn more about GIP at globalinnovationplatform.com.

405 Magazine selects Phillips Murrah for 2020 Oklahoma Top Attorneys

Phillips Murrah is honored to have 13 attorneys selected as Oklahoma Top Attorneys for 2020 by 405 Magazine. Attorneys are selected for the list by an online peer-voting and research process facilitated by DataJoe Research across various practice areas.

For more information on each listed attorney, visit their profile by clicking on their portrait or contact information below:

Oklahoma Top Attorney for Banking and Financial Law:

. Mark Lovelace Oklahoma Top Attorney Banking and Financial Law

J. Mark Lovelace, Director
405.552.2404
jmlovelace@phillipsmurrah.com

 

Donald A. Pape Oklahoma Top Attorney Banking and Financial Law

Donald A. Pape, Of Counsel
405.364.3346
dapape@phillipsmurrah.com


Oklahoma Top Attorney for Business Law:

Robert O. O'Bannon Oklahoma Top Attorney Business Law

Robert O. O’Bannon, Director
405.552.2483
roobannon@phillipsmurrah.com


Oklahoma Top Attorney for Civil Law Transactional:

A. Michelle Campney Oklahoma Top Attorney Civil Law Transactional

A. Michelle Campney, Of Counsel
405.552.2487
amcampney@phillipsmurrah.com


Oklahoma Top Attorney for Commercial Litigation:

Thomas G. Wolfe Oklahoma Top Attorney Commercial Litigation

Thomas G. Wolfe, Director
405.552.2401
tgwolfe@phillipsmurrah.com


Oklahoma Top Attorney for Health Care Law:

Mary Holloway Richard Oklahoma Top Attorney Health Care Law

Mary Holloway Richard, Of Counsel
405.552.2403
mhrichard@phillipsmurrah.com


Oklahoma Top Attorney for Intellectual Property Rights:

Martin G. Ozinga Oklahoma Top Attorney Intellectual Property Rights

Martin G. Ozinga, Of Counsel
405.606.4721
mgozinga@phillipsmurrah.com


Oklahoma Top Attorney for Labor and Employment:

Byrona J. Maule Oklahoma Top Attorney Labor and Employment

Byrona J. Maule, Director
405.552.2453
bjmaule@phillipsmurrah.com


Oklahoma Top Attorney for Land Use – Environment:

Jim A. Roth Oklahoma Top Attorney Land Use Environment

Jim A. Roth, Director
405.552.2417
jaroth@phillipsmurrah.com


Oklahoma Top Attorney for Medical Malpractice Defense:

G. Calvin Sharpe Oklahoma Top Attorney Medical Malpractice Defense

G. Calvin Sharpe, Director
405.552.2413
gcsharpe@phillipsmurrah.com


Oklahoma Top Attorney for Oil and Gas:

Elizabeth K Brown Oklahoma Top Attorney Oil and Gas

Elizabeth K. Brown, Director
405.552.2423
ekbrown@phillipsmurrah.com


Oklahoma Top Attorney for Real Estate:

Sally A. Hasenfratz Oklahoma Top Attorney Real Estate

Sally A. Hasenfratz, Director
405.552.2431
sahasenfratz@phillipsmurrah.com


Oklahoma Top Attorney for Tax Law:

Robert O. O'Bannon Oklahoma Top Attorney Business Law

Robert O. O’Bannon, Director
405.552.2483
roobannon@phillipsmurrah.com

 

Dawn M. Rahme Oklahoma Top Attorney Tax Law

Dawn M. Rahme, Director
405.606.4770
dmrahme@phillipsmurrah.com

 

View the full list of attorneys here:

Phillips Murrah sponsors OU Law’s 2020 Best Brief Award

Eight first-year law students at the University of Oklahoma received awards for their prowess in writing legal briefs through Phillips Murrah’s ongoing sponsorship of the Best Brief Award.

OU law best brief 2020

Three recipients of OU Law’s 2020 Best Brief Award: Jordan Stroh, Jen Mook, and Trae Havens

“We appreciate Phillips Murrah for their unwavering support for the OU College of Law,” said Interim Dean Katheleen Guzman.  “The Phillips Murrah Best Brief Awards illustrate their commitment to helping us fulfill our mission:  educating the next great generation of lawyers and leaders to serve our community.

“That our students continue to excel in the classroom and the courtroom is directly attributable to extraordinary partners like Phillips Murrah, and we are truly grateful.”

$500 First Place and $250 Second Place prizes were awarded to students in each of the four sections of the 1L Class.

“I’m beyond grateful to this firm for the award money they gifted me and for recognizing me for my writing skills I have developed through my time thus far at OU Law,” said Jordan Stroh, First Place recipient.

Though awards are typically given during an awards luncheon, this year’s ceremony was hosted via a Zoom video conference on April 16.

“I am so appreciative of winning the Phillips Murrah Best Brief Writing Award during my first year of law school,” said Jen Mook, Second Place recipient. “Being a strong legal advocate requires many skills; however, none may be as useful as effective persuasive writing.

”I am grateful that Phillips Murrah recognizes this by awarding students for our writing efforts early in our law schools careers.”

Awards are given to top appellate briefs following judging from the 1L Moot Court Competition.

“I’m incredibly grateful for Phillips Murrah and their dedication to lifting up the next generation of legal professionals,” said Trae Havens, First Place recipient. “It’s a unique honor to receive the Phillips Murrah Best Brief Writing Award!

“I’m working hard to improve my legal research and writing skills, always taking inspiration from the amazing attorneys at Phillips Murrah.”

Read More: Phillips Murrah sponsors 2019 Best Brief Award

CARES Act and independent contractors – How businesses can mitigate risk related to CARES Act unemployment claims

By Phillips Murrah Attorney Martin J. Lopez III 

Below is an expanded version of a Gavel to Gavel column that appeared in The Journal Record on May 14, 2019.

attorney Martin J Lopez III

Martin J. Lopez III is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

Businesses should identify and mitigate risk related to CARES Act independent contractor unemployment claims

In response to the COVID-19 national emergency, Congress has taken the extraordinary measure to allow independent contractors, gig-workers, and self-employed individuals access to unemployment insurance benefits for which they are generally ineligible. This article is geared towards businesses that regularly use independent contractors who may file claims for unemployment insurance benefits—discussing the risks involved and how businesses can mitigate those risks.

Background Regarding Relevant CARES Act Provisions

On March 27, 2020 President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). Among other provisions, the CARES Act significantly expands the availability of unemployment insurance benefits to include workers affected by the COVID-19 national public health emergency who would not otherwise qualify for such benefits—including independent contractors. This increased accessibility to unemployment insurance benefits theoretically provides an avenue for a state unemployment agency to find an independent contractor applicant to be an employee. Such a finding introduces the risk of the state unemployment agency assessing unpaid employment and payroll taxes for those a business previously treated as independent contractors. Tangentially, such a finding could serve to establish or bolster independent contractors’ claims in wage and hour litigation.

To qualify as a “covered individual” under the Pandemic Unemployment Assistance (“PUA”) provisions of the CARES Act, a self-employed individual must self-certify that she is self-employed, is seeking part-time employment, and does not have sufficient work history or otherwise would not qualify for unemployment benefits under another state unemployment program. Further, the self-employed individual must certify that she is otherwise able to work and is available for work within the meaning of applicable state law, but is “unemployed, partially unemployed or unable or unavailable to work” because of one of the following COVID-19 related reasons:

  • The individual has been diagnosed with COVID-19 and is seeking a medical diagnosis;
  • A member of the individual’s household has been diagnosed with COVID-19;
  • The individual is providing care for a family member or member of the individual’s household who has been diagnosed with COVID-19;
  • A child or other person in the household for which the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and such school or facility care is required for the individual to work;
  • The individual is unable to reach the place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency;
  • The individual is unable to reach the place of employment because the individual has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The individual was scheduled to commence employment and does not have a job as a direct result of the COVID-19 public health emergency;
  • The individual has become the breadwinner or major support for a household has died as a direct result of COVID-19;
  • The individual has to quit his or her job as a direct result of the COVID-19 public health emergency;
  • The individual’s place of employment is closed as a direct result of the COVID-19 public health emergency.

If the individual meets the above criterion, she is a “covered individual” and is eligible for unemployment assistance authorized by the PUA provisions of the CARES Act. Such assistance was available beginning January 27, 2020 and provides for up to thirty-nine (39) weeks of unemployment benefits extending through December 31, 2020. Covered individuals’ unemployment benefits are calculated state-by-state, according to each state’s conventional unemployment compensation system. In addition, under the PUA provisions of the CARES Act, covered individuals may receive an additional $600 for each week of unemployment until July 31, 2020.

What Businesses Can Do to Protect Themselves

To counteract the risks discussed above, I recommend a business implement the following best practices when responding to a claim of unemployment by an independent contractor:

  • respond proactively to unemployment claim notices for independent contractors;
  • state clearly in the response that the relevant individual-claimants were independent contractors and not employees of the business;
  • affirmatively state that each independent contractor claimant was an independent contractor to whom the business occasionally (or routinely) provided work, but that it is unable to provide the same volume (or any) work to the individual at present because of the COVID-19 national emergency;
  • specify in the response that the individual’s eligibility for unemployment benefits must be entirely predicated on the PUA provisions of the CARES Act allowing for independent contractor participation in the program; and
  • provide the claimant’s independent contractor agreement to the state unemployment agency.

In providing this information and documentation to the state unemployment agency, the business will be able to demonstrate its independent contractor relationship with the individual. Together with the fact that these individuals’ eligibility to receive unemployment income rests exclusively on relevant CARES Act provisions, the business should be well-positioned to avoid the typical risks that can result from a successful unemployment claim by an independent contractor.

Martin J. Lopez III is an attorney at the law firm of Phillips Murrah.

Edwards named OCU Law’s Distinguished Practitioner for Fall semester

Nicholle Jones Edwards attorneyt

Nicholle Jones Edwards’ practice focuses on family law, labor law and general civil litigation. Her family law practice includes litigation, complex custody issues and valuation issues.

Oklahoma City University School of Law recently named Director Nikki Edwards the Distinguished Practitioner in Residence for the upcoming Fall semester.

“The role of Distinguished Practitioner in Residence is an exciting opportunity to interact with the students in a meaningful, interactive way, as opposed to a lecture format,” Edwards said. “I’m most looking forward to being able to play a small role in the exciting futures of our future lawyers.”

Edwards will be the third person and first female to hold the position, Jim Roth, OCU School of Law Dean and Phillips Murrah Director said.

“We at OCU School of Law are thrilled to host Nikki Edwards as our Distinguished Practitioner in Residence for the upcoming Academic Year ‘20-‘21 where she will lead our lucky students through a Litigation Practicum covering all issues from A to Z,” Roth said. “As our first female lawyer in this role, it’s an extra special way to highlight not only her wonderful skills, but to bring attention to the under-representation of women in litigation practices.

“We have tremendous faith that Nikki will educate and inspire men and women to become great practitioners for their clients and the profession.”

Highlighting the Firm’s focus on gender equity in law firm leadership, Edwards hopes her role can bring more visibility to women in the legal field.

“I am honored to be the first female to serve as Distinguished Practitioner In Residence,” Edwards said. “Today more than 50 percent of law students are women, yet a very small percentage of trial lawyers are female.

“I would love my students to realize that women can be strong, effective, trial lawyers, and the courtroom is not only a place for men. A big part of my life’s work is supporting other women as a mentor, friend and colleague. As a shareholder of Phillips Murrah P.C., our firm has a much larger percentage of female shareholders than the state and national average, which is something I am very proud of. I think the future should and will have more female litigators, and that is why being chosen by Dean Roth and OCU Law for this position is such a high honor.”

Enrollment for the course is now open. Learn more at OCU School of Law’s website.

“I hope students learn to love the practice of law and not just the substantive case law found in various subjects,” she said. “A significant takeaway will be that as lawyers in litigation we have the ability to really change lives and that the students realize how important our representation is to our clients, the public and the judiciary.

“Importantly, litigation and trial work can be extremely exhilarating and exciting, but also very frightening for new lawyers, so I hope each student feels a basic comfort level with the process at the conclusion of the class.”

Click here to learn more about Nikki’s practice.

Firm selects Employee of the Month for March 2020

donna anderson eotm

Donna Anderson

Donna Anderson, Legal Assistant, is Phillips Murrah’s Employee of the Month for March 2020.

“It is an honor to be nominated as Employee of the Month,” Donna said. “I am extremely grateful and blessed to be a part of this loving work family!”

The Employee of the Month is selected anonymously by Phillips Murrah staff on merits of teamwork and overall contributions to the Firm.

“Donna is more than just a legal assistant to me, she feels like family,” Attorney Molly E. Tipton said. “She is reliable, diligent, positive and very smart.”

The Firm makes a donation to the winner’s charity of choice, and Donna chose National Kidney Foundation.

To learn more about National Kidney Foundation, click here.

 

Read more: Firm selects Employee of the Month for February 2020


Phillips Murrah has been recognized as an Oklahoma Top Work Place by The Oklahoman/Energage five years in a row. Our Firm strives to recognize and reward our employees for excellence.

facebook icon

Follow our coverage on FACEBOOK

Firm selects Employee of the Month for February 2020

eotm Abby Tompkins

Abby Tompkins

Abby Tompkins, Legal Assistant, is Phillips Murrah’s Employee of the Month for February 2020.

“It is a privilege to work with such a great group of people and for them to recognize me as Employee of the Month is an honor,” Abby said.

The Employee of the Month is selected anonymously by Phillips Murrah staff on merits of teamwork and overall contributions to the Firm.

“I am thrilled that Abby was recognized as Employee of the Month,” Director Sally A. Hasenfratz said. “Those who work with her closely know that she is a hard worker, she has her head in the game and helps spot issues, she has a keen willingness to learn new things and she is poised and great with clients. A well-deserved honor!”

The Firm recently began making a donation to the winner’s charity of choice, and Abby chose Focus on Home.

To learn more about Focus on Home, click here.


Phillips Murrah has been recognized as an Oklahoma Top Work Place by The Oklahoman/Energage five years in a row. Our Firm strives to recognize and reward our employees for excellence.

 
facebook icon

Follow our coverage on FACEBOOK

Medicare Reimbursement Actions by the Government: Relief for Providers?

This article was originally published in the American Bar Association’s Health eSource newsletter in February 2020.


Oklahoma Opioid Decision by Phillips Murrah healthcare attorney Mary Holloway

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.

By Mary Holloway Richard, Phillips Murrah, and
Anna Stewart Whites, Attorney at Law, Frankfort, KY

The tension between the government’s need to ensure appropriate use of Medicare funds and the need of providers to receive reasonable compensation for services to Medicare beneficiaries is an ongoing issue.  Providers are subject to demands for repayment or recoupment of compensation paid to providers based upon claims filed.  Providers are also pressed to keep up with the continually developing arsenal of vast data mining, increasingly restrictive federal reimbursement policies, and oversight tools, including a plethora of audit options available to the Department of Health and Human Services (HHS) and Centers for Medicare & Medicaid Services (CMS) programs that can lead to penalties and mandatory exclusion.  Locating the applicable guidance — statutes, regulations, guidelines, reimbursement policies — can be challenging, with the information upon which CMS actions are based sometimes emanating from data gathered across the country, which allows for identification of trends to be pursued by the regulators.

The focus of this article is to explore the tools available to counsel for providers seeking to place appropriate limits on CMS in connection with statutory and regulatory limits on HHS rulemaking authority as interpreted by recent case law.

Proper Rulemaking as a Limit to Regulatory Authority

Providers who have received payment under the CMS fee schedules may, even years later (1) be faced with demands by CMS for repayment of amounts received due to an after-the-fact reduction in the fees payable to the provider, or (2) experience a downward adjustment in payments.1  These changes by CMS, both prospective and retrospective, are frequently transmitted via electronic manuals or by local or national coverage determinations (LCDs or NCDs).

Providers argue that the retrospective changes by fiat can be likened to ex post facto laws penalizing the provider for actions occurring before the regulation, policy or change in interpretation of the law existed.  When a government entity or agency determines that such a change is necessary, and when those changes are substantive or can adversely impact providers or patients, an opportunity for all affected parties to comment is advisable to support wise decision-making within the government’s scope of authority, and to facilitate smooth transitions within the industry.2  The existing structured rulemaking process offers providers and other interested parties the opportunity to comment on the proposed change prior to its implementation, thereby facilitating the avoidance of bad rulemaking or rulemaking with unintended consequences.

The Rulemaking Process:  An Overview

The rulemaking process is formal and includes the notice-and-comment period so that public awareness and input are parts of the making of any enforceable regulatory change.3  Under the Social Security Act, a notice-and-comment period is required for a “rule, requirement or statement of policy” that establishes or changes a “substantive legal standard governing the scope of benefits, the payment for services, or the eligibility of individuals, entities, or organizations to furnish or receive services or benefits.”4 This requirement is stricter than the more common notice-and-comment requirements of the Administrative Procedures Act (APA). The APA employs different nomenclature and holds that no notice-and-comment period is required where the change is merely an “interpretive rule” or “general statement of policy.”  That exception had been relied upon by agencies to change rules via policy manual updates or internal regulatory interpretations.5

Informal rulemaking under the APA requires development of a proposed rule and a published notice of the proposed rule or changes to an existing rule.  Following that, there is a comment period of at least 30 days.  Members of the public, including but not limited to those impacted by the change, have the opportunity to comment on the proposal. Codification of the final rule may take place only after the comment period has passed and the agency has made any final revisions to the rule.6 Typically, rule and regulation changes have a future, rather than retroactive, effective date.  Where the change to a law or regulation is “substantive,” formal rulemaking under the APA requires an additional opportunity for an agency hearing on the proposal before it can be made effective.

Historically, providers faced with recoupment demands from a federal payor had little choice but to accede to the payor’s demands within a specified, limited timeframe.  Providers could argue against such recoupment or denial, but such arguments in reality were limited to proving that the recoupment demand was in error.. The provider was thus placed in a defensive posture and required to operate from the premise that the recoupment request was correct, but for an obvious calculation or medical necessity oversight by the payor during its review.8

From the agency perspective, however, rulemaking takes significant time and effort and can be administratively debilitating.  It requires publication of the proposed changes, a lengthy comment period (often as much as several months long), opportunity for live comments as well as written comments, and then an analysis of the comments by the agency and publication of the agency’s responses to the comments.  If the comments result in an amendment to the policy, the rulemaking process may have to begin again to allow comment on those amendments newly proposed or on the resolution of issues raised during the comment period.  Because of the complexity of that rulemaking, agencies may choose to draft minor changes instead, and implement those via an announcement to providers/patients, thereby eliminating any delay in implementation or any requirement that those affected be allowed to speak.  Implementing minor changes is a necessary way to keep policies and regulations current, and is an acceptable part of the agency’s process.  Over time, however, there may be a blurring of the applicable procedures, where an agency implements a substantive change informally for an item that required the complete rulemaking process, particularly under the Medicare Act.  Providers have begun to pay more attention to the correct application of the rulemaking process and to challenge agencies ignoring required rulemaking.

Judicial Interpretation of Rulemaking Requirements Related to Healthcare

In Clarian Health West, LLC v. Hargan,9 the Court required adherence to the rulemaking process before a recoupment of payments could be enforced.  Under Part A of the Medicare program, hospitals are compensated prospectively based on the estimated likely cost of patient care.10 The hospitals may also receive supplemental or “outlier” payments.11 The regulatory changes enacted by HHS in 2003, which included notice-and-comment rule making, altered the way such “outlier payments” are calculated.12  The Court found that an agency decision is arbitrary and unenforceable as such where the agency “has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”13

Two recent cases, Azar v. Allina Health Services14 and Polansky v. Executive Health Resources, Inc.,15 have provided validation for that argument, finding that absent the required rulemaking process and an opportunity for providers to comment on and be aware of the effect of the changes to the law, recoupment of funds properly paid exceeds CMS authority.

Provider Litigation to Enforce Rulemaking

In Azar v. Allina Health Services, the United States Supreme Court held that the decision to retroactively reduce Medicare disproportionate share hospital (DSH) payments according to a newly revised formula and practice must be vacated due to HHS’s failure to provide an opportunity for notice and comment in the context of revised payment rules.16 The DSH payment is calculated based upon a Medicare Fraction which establishes a proportion of low income patients provided services at the hospital for a certain time period and is the basis for the hospital’s final reimbursement adjustments.

By way of explanation, a DSH payment is a sum awarded a hospital pursuant to 42 C.F.R. 412.106.  Under Section 1886(d) (5) (F) of the Medicare Act, hospital DSH payments are calculated by the formula:

  • DSH Patient Percent = (Medicare SSI Days / Total Medicare Days) + (Medicaid, Non-Medicare Days / Total Patient Days)17

A new CMS rate calculation affected the way the applicable payments were made, and was therefore considered by the Court to be a ‟substantive legal standard” under the Medicare Act requiring notice-and-comment rulemaking prior to enforcement.18  The Court found that HHS had promulgated a retroactive Medicare rate calculation methodology and that this was not a change that could be enacted without opportunity for comment and discussion.As explained by the Court of Appeals for the D.C. Circuit, in 2004 HHS decreed that Medicare Part C patients would now be included in DSH calculations along with patients entitled to Medicare Part A benefits, and this change would have been applied prospectively for all Medicare Fraction calculations from 2005 onward. However, this change was successfully challenged and vacated by the D.C. Circuit.19 In response, in 2013 HHS promulgated the same rule to be applied prospectively from 2014. This left fiscal year 2012 at issue, and in 2014 HHS posted the Medicare Fraction on the CMS website, including Part C patients and Part A patients.20

CMS clarified that the 2012 determination that Medicare Part C days would be included in the calculations, thereby lowering the DSH calculation by including Medicare Advantage subscribers who generally represented higher income, resulting in a reduction of the DSH payments to hospitals.21

The proposed change underwent notice and comment in 2013 and eventually was adopted as a valid way to calculate those payments prospectively, beginning in 2014.  Rather than simply implementing the changed standard from 2014 onward, CMS looked back at earlier years and claimed that the change should apply retroactively.  There was no notice and comment period in 2012 on that change.  Following the changes, CMS used this ability to look back and demanded recoupment from provider hospitals, applying the changed law or interpretation of the law retroactively to 2012.

A group of  hospitals  challenged the changes made without notice and the opportunity to comment and sought to stop the recoupment, which represented billions of dollars.22  They argued that absent such timely rulemaking procedures, the change should not apply to years prior to 2014. HHS’s response was that it was not required to hold a notice-and-comment period for the new rule, since it was only advising the public on an existing interpretation of the law.  HHS relied on the less stringent standards of the APA23 to permit the recoupment.

The DC Circuit Court ruled in favor of HHS, and the hospitals appealed to the United States Court of Appeals for the District of Columbia, which reversed the lower court ruling and held that the new payment schedule amounted to a “statement of policy” that required the notice-and-comment period specified by the Social Security Act.24

The Supreme Court, quoting the Social Security Act, held that “[n]o rule, requirement, or other statement of policy (other than an NCD) that establishes or changes a substantive legal standard governing the scope of benefits, the payment for services, or the eligibility of individuals, entities, or organizations to furnish or receive services or benefits under this title shall take effect unless it is promulgated by the Secretary by regulation.…”25 “Substantive rules” refer to the Supreme Court phrase “substantive legal standard” as encompassing more than just the “substantive rules” that already require notice and comment under the APA.26 The Supreme Court noted in particular that the many manuals that provide guidance to participants in the Medicare program might contain substantive legal standards that require notice and comment, and that its decision applied broadly across those fields.27

The Allina ruling established that substantive changes to the law should not be applied retroactively to time periods in which there has been no rulemaking process.  Providers faced with any retroactive application of a change in the law that occurred after a payment to the provider which was valid at the time of payment could now claim that absent rulemaking at that time, the change should only be prospectively applied.

That doctrine was expanded in Polansky v. Executive Health Resources, Inc.,28 where the provider faced a False Claims Act (FCA) action based upon allegations that the provider’s billing was fraudulent for failure to comply with Medicare reimbursement guidelines. The provider argued that the Medicare criteria being applied had not gone through appropriate rulemaking prior to implementation.  The Court agreed, holding that Medicare reimbursement criteria must be established through notice-and-comment rulemaking to provide the basis for enforcement actions under the FCA. Because the reimbursement policy at issue had been established solely in the 1989 edition of the Medicare Hospital Manual and not via the rulemaking process including questions and comments, the court found that it “cannot withstand scrutiny under Allina’s interpretation of the Medicare Act.”29

The Court based its findings in part on Bowen v. Michigan Academy of Physicians,30 which held that a provider demanding administrative or judicial review of a recoupment of a Medicare Part B claim or payment must show that the matter is reviewable by challenging the method by which the claim was determined under 42 U.S.C.A. § 1395ff(b)(1)(C) (Supp.1990).  While courts may not “improperly impose on agencies an obligation beyond the `maximum procedural requirements’ specified by [statute or regulation],” the rulemaking standards must have applied to the creation of the statute or regulation.31  The District Court in Polansky relied upon the Allina decision to grant summary judgment in favor of the defendant, holding that the method by which a change is implemented may be challenged by an affected party where the agency failed to comply with the process required.32  The provider must show first that this is a matter to which the rulemaking standard applies, and secondly, that the method used by the agency was flawed in that it did not use the correct standard, before being allowed to attack the change or any related financial impact created by the change.33

The Allina and Polansky decisions establish an additional strategy for providers to defend enforcement actions that are part of a recoupment or recalculation, rather than attempting to prove that the government’s audit determinations or interpretations are in error. This, in effect, places the burden of defense back on CMS (or another governmental agency or payor) by requiring it to prove that the law or regulation was properly created in compliance with required rulemaking procedures.  Importantly, these decisions offer that, where providers did not have opportunity to comment on or object to implementation of a rule or regulation, they should not be found to have either had notice of it or be bound by its terms.

In response to Allina, the Department of Justice (DOJ) provided notice of DOJ policy in a memorandum to U.S. Attorneys from former Associate Attorney General Rachel Brand dated January 25, 2018. Known as the Brand Memo, it announced that “Department litigators may not use noncompliance with guidance documents as a basis for proving violations of applicable law in affirmative civil enforcement (ACE) cases.”34 The effect of the Brand Memo is to place agencies on notice that they may not rely upon sub-regulatory guidance to re-frame, expand, or enforce requirements established by statute or regulation.35  Specifically, the Brand Memo prohibits coercing regulated parties from taking or refraining from taking actions beyond the requirements of applicable statute or “lawful regulation.”36 The Brand Memo further pointedly provides that “the Department may not use its enforcement authority to effectively convert agency guidance documents into binding rules.”37

A new internal memorandum from HHS dated October 31, 2019 is instructive. That Memo says that it’s important for CMS to conform its guidance documents to the rulemaking obligations set forth in Allina.  For instance, HHS personnel are discouraged from basing enforcement actions on guidance documents, specifically the Internet-only manuals, that are not “closely tied to statutory or regulatory standards.”38  This Memo suggests to counsel for providers a few new tools when dealing with Medicare payment issues, including the limits of the impact of formerly formidable sub-regulatory or “non-regulatory” guidance, the amelioration of LCDs as the single basis for enforcement actions and judicial support for these limitations.

Conclusion

Recoupment and reimbursement demands, audits, exclusions, prosecutions and targeting by CMS, its contractors or other federal and state agencies are substantive, significant matters.  Adherence to the regulatory protections, including the notice and opportunity to provide input, allows all affected parties to have an understanding of the law or regulation and to be prepared for its impact.  The Allina case and its progeny are likely to benefit providers and patients alike as the country continues to grapple with healthcare reform.

  1. 42 U.S.C. § 1886(d)(5)(F); 42 C.F.R. § 412.106.
  2. See discussion below comparing the rulemaking requirements of the Medicare Act, 42 U.S.C. § 1395(h), which was passed as an amendment to the Social Security Act, 5 U.S.C. Chapter 5, §§ 551-559.
  3. See generally, https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf, “A Guide to the Rulemaking Process” (last accessed Jan. 24, 2020).
  4. 5 U.S.C. § 1395hh(a)(2)  (emphasis added).
  5. See, e.g., acus.gov/research-projects/agency-guidance-through-interpretive-rules, “Agency Guidance Through Interpretive Rules” (Administrative Conference of the United States) Adopted June 13, 2019 (last accessed Jan. 19, 2020).
  6. 5 U.S.C. §§ 551-559.
  7. 5 U.S.C. § 553.
  8. See, e.g., “Tricare Recoupment Steps Outline”(Guidance provided to Tricare Beneficiaries), https://tricare.mil/Resources/Recoupment?p=1 (last accessed Jan. 15, 2020).
  9. 878 F3d. 346 (D.C. Cir. 2017).
  10. 49 Fed. Reg. 234 (Jan. 3, 1984); 42 U.S.C. § 1395ww(d)(2), “Prospective Payment for Medicare Inpatient Hospital Services.”
  11. 42 U.S.C. § 1395ww(d)(5)(A)(ii); See also Dist. Hosp. Partners, L.P. v. Burwell, 786 F.3d 46,  49 (D.C. Cir. 2015).
  12. See Change in Methodology for Determining Payment for Extraordinarily High-Cost Cases (Cost Outliers) Under the Acute Care Hospital Inpatient and Long-Term Care Hospital Prospective Payment Systems Final Rule.  Fed. Reg. June 9, 2003 at 34493-515; https://www.ncbi.nlm.nih.gov/pubmed/12795306 (last accessed Dec. 27, 2019).
  13. See Hawaii Helicopter Operators Ass’n v. F.A.A, 51 F.3d 212, 214-15 (9th Cir.1995). See also n. 1 supra and accompanying text.
  14. 863 F.3d 937 (D.C. Cir. 2017), aff’d, 139 S.Ct. 1804 (2019).
  15. 2019 WL 5790061 (E.D. Pa. Nov. 5, 2019).
  16. 587 U.S. ___, 139 S.Ct. 1804 (2019), 42 U.S.C. §§ 1395 ww(d)(5)(k)(I); 42 C.F.R. § 412.106; cms.gov/Medicare/Medicare.Fee.For.Service.Payment /Acute InpatientPPS/dsh (last accessed Jan. 15, 2020).  See S.Ct. at 1309 quoting Petition for Cert; “So counting makes the fraction smaller and reduces hospitals’ payments considerably–by between $3 and $4 billion over a 9-year period, according to the government.”
  17. https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/AcuteInPatientPPS/dsh. Hospitals rely on DSH payments, as calculated annually, for a significant part of the yearly budget and income. The change in the method in which HHS was calculating those payments, applied retroactively, reduced the sum HHS found should have been paid each hospital in 2012 and 2013, resulting in a CMS demand for recoupment (paying back) of those funds to Medicare. There is an alternate special exception method for large urban hospitals that can demonstrate that more than 30 percent of their total net inpatient care revenues come from state and local governments for indigent care (other than Medicare or Medicaid). Because Medicaid monies are funds designated to serve a specific group in accordance with CMS payment guidelines, CMS is permitted up to 10 years to recoup funds which it believes were paid in error.
  18. Allina at 1810-1815.
  19. Allina Health Services v. Sebelius, 746 F.3d 1102, 1107-9 (D.C. Cir. 2014), as quoted in Allina Health Services v. Sebelius, 863 F.3d 937 (D.C. Ct.App. 2017).
  20. Allina at 1810.
  21. Part A Benefits refers to inpatient benefits (42 U.S.C. § 1395ww(9)(5)(F)(vi)(I). Part C Benefits refer to Medicare Advantage beneficiaries, who generally have more financial resources. Including Part C patients in the DSH calculation lowers hospital payments markedly. See Northeast Hospital Corp. v. Sebelius, 657 F.3d 1, 5 (D.C. Cir. 2011).
  22. See n. 17 and accompanying material.
  23. 42 U.S.C. Chapter 5, §§ 551 – 559. See Allina at 1813.  See also Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 95 (discussion of “interpretive rules” to which the APA notice and comment rulemaking requirements do not apply.)
  24. See Allina Health Servs. v. Price, 863 F.3d 937, 949 (D.C. 2017).
  25. 42 U.S.C. § 1395hh(a)(2) (emphasis added).
  26. See Allina Health, 139 S. Ct. at 1814.
  27. Id. At 1816.
  28. No. 12-4239, 2019 WL 5790061 (E.D. Pa. Nov. 5, 2019).
  29. Polansky at 7. See generally Allina at 1816. (discussion of CMS Provider Manual).
  30. 476 U.S. 667, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986).
  31. See Perez v. Mortg. Bankers Ass’n, 135 S.Ct. 1206, 191 L.Ed.2d 186 (2015).
  32. ___ F.Supp.3d___, 13 (2019); 2019 WL 579006 (at 12-13).
  33. Id. at 16.
  34. https://www.justice.gov/opa/press-release/file/1028756/download . See also Executive Order, https://www.whitehouse.gov/presidential-actions/executive-orders-promoting-rule-law-improved-agency-documents/.
  35. See Attorney General Memo on the Prohibition on Improper Guidance Documents, https://www.justice.gov/opa/press-release/file/1012271/download (last accessed Dec. 27, 2019).
  36. Brand Memo at Page 1.
  37. Id. at Page 2. The Brand Memo has been incorporated into the Justice Manual, the guidebook for DOJ attorneys. See https://www.justice.gov/jm/1-20000-limitation-use-guidance-documents-litigation (last accessed Dec. 27, 2019).
  38.  https://fcablog.sidley.com/wp-content/uploads/2019/11/1222000-1222453-allina-memo-cms.pdf.

About the Authors

Mary Holloway Richard represents both institutional and non-institutional providers of health services. Her career has included work at hospitals, outpatient clinics, behavioral health facilities and rehabilitation facilities and clinics. She has significant experience in health services contracting, reimbursement audits and appeals, OIG investigations, and regulatory and corporate matters. She lectures and has written on numerous healthcare topics including nonprofit operations, telehealth and behavioral health law, confidentiality and criminal justice reform. She was the driving force behind the first Oklahoma Women’s Law Manual as well as a contributor and editor.  She is currently a member of the faculty of the Oklahoma City University School of Law teaching an introduction to Healthcare Law and Behavioral Health Law. She has been in the leadership of the Behavioral Health Task Force of the American Hospital Association since its inception and is currently Vice Chair. She is Chair of the Oklahoma Bar Association’s Health Law Section. She may be reached at mhrichard@phillipsmurrah.com.

Anna Whites is the owner of Anna Whites Law Office and a graduate of Centre College and the University of Kentucky College of Law.  Her practice concentrates on health law, with a focus on laboratories, rural hospitals and behavioral health.  She advises providers on reimbursement, compliance and transactional issues.  Ms. Whites works with the Kentucky State Legislature and advocates in Kentucky and nationally to advance policies on prompt payment, uniform provider credentialing, telehealth advances and laws providing broad coverage to vulnerable populations. She is the Co-Chair of the Rural Health Subcommittee of AHLA’s Behavioral Health Task Force and speaks and writes for HCCA, ABA and AHLA on behavioral and compliance health law topics. She may be reached at annawhites@aol.com.

Banks may be liable for negligent transfer of hacked accounts

This column was originally published in The Journal Record on March 9, 2020.


Justin G. Bates is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

By Justin G. Bates, Phillips Murrah Attorney

When asked by a reporter why he robs banks, notorious criminal “Slick Willie” Sutton replied, “Because that’s where the money is.” While banks still have the money, the nature of the crime has evolved with technology. Today’s modern bank robber is often armed with nothing more than a mouse and keyboard, and the preferred tools and techniques of their trade are phishing and malware.

Hackers infiltrate businesses and individuals alike, typically using “social engineering” tactics to gain trust and access to an employee’s email account, to cite a common example, and re-route money from the rightful owner’s bank account to their own. While there are stiff penalties for a criminal caught in the act, it may come as a surprise that a bank that authorizes a wire transfer to a hacker’s account could be liable to the rightful owner.

Article 4A of the Uniform Commercial Code was enacted in response to the growth of electronic funds transfers and the crime that evolved in its wake. Under Article 4A, a bank is liable to a customer for the full amount of a negligently processed wire received by a hacker, including interest.

In the most basic terms, a bank is liable to its customer for a negligent wire transfer when (1) the customer did not authorize the transfer and (2) the transfer cannot be enforced against the customer because either (a) the transfer was not authorized by an employee of the customer or (b) a third party (outside hacker) initiated the transfer. At first glance, this may seem to be a slam-dunk trigger for liability to an aggrieved customer. But banks can take proper steps to insulate themselves from any liability under Article 4A.

To avoid liability, the bank must first prove three things: First, that it and the customer had an “agreed security procedure,” which are steps put in place, to which both the bank and customer agree by contract, to verify that a payment order or communication is between the bank and the customer. This is most commonly accomplished in the customer and bank’s initial account agreement.

Second, the bank must prove that it complied with the agreed security procedure and that such procedure is “commercially reasonable.” In other words, the procedures are to be in line with that which someone familiar with the industry would regard as sufficient and realistic. Examples of what constitutes “commercially reasonable” are explored below.

Finally, the bank must prove that it not only followed the security procedure, but that it initiated the wire transfer in “good faith.” In other words, the bank must prove that it acted with honesty in fact and observance of reasonable commercial standards of fair dealing.

So how does a bank best avoid liability?

In practice, cases under Article 4A often hinge on whether the bank’s security procedure is commercially reasonable. In order to meet this threshold, a bank is expected to have better than single-factor identification. The wire transfer should require the customer to input at least two of the following: (1) something the customer knows, such as a password; (2) something the customer has, such as an IP address; or (3) something the customer is, such as a fingerprint or voice scan.

With cybercrime on the rise, it is crucial for any bank to both protect its customers and insulate itself from potential liability. Requiring multi-factor identification is no guarantee for a bank to avoid liability under Section 4A, but it is one relatively easy way for a bank to better protect itself and its customers.

Justin G. Bates is a civil litigation attorney at the law firm of Phillips Murrah in Oklahoma City.

Attorneys continue winning streak at annual OCBA Chili Cook-off

Phillips Murrah attorneys team up for OCBA’s annual chili cookoff

Another year, another recipe vying for a coveted trophy at the Oklahoma County Bar Association’s annual Chili Cook-off.

Phillips Murrah attorneys competed against local law firms in OCBA’s Young Lawyers Division on Feb. 28 at the Leadership Square Atrium in downtown Oklahoma City.

Representing Phillips Murrah were attorneys Cody J. CooperC. Eric DavisMark E. Hornbeek, Kara K. Laster, Martin J. Lopez III, Phoebe B. Mitchell, Ashley M. Schovanec, and Molly E. Tipton.

“I always love participating in the chili cook-off, not just because I am a very competitive person (and not a sore loser at all),” Tipton said. “I always find myself making new acquaintances that I look forward to seeing again in the court house or out and about!”

Attorney Phoebe Mitchell poses with her prize-winning chili and “Hottest Chili” trophy

The Firm’s team continued their winning streak, scoring the “Hottest Chili” prize with Mitchell’s recipe.

“The secret ingredient to my chili was definitely the spicy Mexican chocolate,” she said. “We had so much fun participating in the OCBA YLD chili cook-off. It is always great to come together and compete to raise money for a worthy cause like the Regional Food Bank.”

Phillips Murrah has had at least one team compete in the Chili Cook-Off each year since it first started more than ten years ago.

In 2019, the OCBA YLD named Phillips Murrah “Friend of the YLD” for the Firm’s consistent support of their charitable efforts.

To learn more about the YLD, visit OCBA’s website here.


See more: Phillips Murrah’s Commitment to the Community

facebook icon

Follow our coverage on FACEBOOK

Phillips Murrah Directors to team up with Animal Legal Defense Fund at OCU Law symposium

Heather Hintz

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.

Two Phillips Murrah Directors will participate in the upcoming “Animal Law Symposium: Oklahoma City,” supported by Animal Legal Defense Fund and Oklahoma City University School of Law.

“OCU Law is glad to partner with Animal Legal Defense Fund to host this symposium,” said Jim Roth, Phillips Murrah Director and OCU School of Law Dean. “With the launch of our Animal Law Program last fall through the generosity of the Kirkpatrick Foundation, our students have shown incredible interest in this growing area of law.

“The symposium will provide an important opportunity for students to connect with practitioners and learn more about the different aspects of Animal Law.”

The symposium will take place at Oklahoma City Law School on March 6 from 8:45 a.m. to 5 p.m. Roth will kick off the symposium with welcoming remarks. Heather L. Hintz, Phillips Murrah Director and Shareholder, will participate in the “Farmed Animals and the Law: Challenges and Opportunities for Change” panel set to begin at 1:45 p.m.

“Oklahoma is deeply rooted in agriculture and resource stewardship,” Hintz said. “A 2016 study published in the U.S. National Institutes of Health’s National Library of Medicine states that the general public has a high level of concern for animal welfare in food production, but lacks corresponding knowledge.

“The study further suggests that if provided information, the public may be encouraged to translate its concerns into market decisions that will improve farmed animal welfare. My studies prior to law school focused on how information leads to educated market decisions that can impact social change. I remain interested in that concept. I also agree with the philosopher Anne Conway (1631-1679) that every part of nature is in sympathetic harmony with every other, and if we harm one part, we harm the others, including ourselves.  I anticipate the Symposium will better enable participants to make informed decisions that can help improve farmed animal welfare and in turn, the welfare of us all.”

The day-long event is set to provide attendees insight from top voices within the animal law community, and the Oklahoma State Bar has approved the symposium for 7 CLE credits.

Learn more about the symposium and Animal Legal Defense Fund at their website here.

facebook icon

Follow our coverage on FACEBOOK

animal law symposium ocu law march 6

 

Gardner named to Journal Record’s 2020 Achievers Under 40

Melissa Gardner is a Director who practices in the Energy & Natural Resources Practice Group. She represents both privately-owned and public companies in a wide variety of oil and gas matters, with a strong emphasis on oil and gas title examination.

The Journal Record will honor Melissa Gardner, Phillips Murrah Director and Shareholder, and 44 others as part of its 17th class of Achievers Under 40.

The 45 honorees will be recognized at the Achievers Under 40 event on May 29 at the Embassy Suites Oklahoma City Downtown/Medical Center at 741 N. Phillips Ave.

“Young leaders in Oklahoma set the pace of progress in our state,” said Russell Ray, editor of The Journal Record. “Choosing the 45 honorees was difficult. Many of these honorees will undoubtedly be the chief architects of change in our state.”

The Journal Record’s 2020 Achievers Under 40 are:

  • Maurianna Adams, Progress OKC.
  • Cinthya Allen, University of Oklahoma.
  • Rob Allen, Sage Sotheby’s International Realty.
  • Laura Aufleger, OnCue.
  • Katy Battiest, One Gas Inc.
  • Merleyn Bell, Oklahoma House of Representatives.
  • Hailey Benton-Thomas, TBS Factoring Service LLC.
  • Carrie Blumert, Oklahoma County.
  • Mickey Dollens, Oklahoma House of Representatives and Energy Assist Foundation.
  • Andrea Durbin, MA+Architecture.
  • Lori Elms, The First State Bank.
  • Ryan Forsythe, Verizon.
  • Kelley Gann, Freestyle Creative.
  • Melissa Gardner, Phillips Murrah.
  • Aundria Goree, Oklahoma City-County Health Department.
  • Jonathan Gray, Enel North America.
  • Rachael Gruntmeir, The Black Scintilla.
  • Jordan Haygood, SSM Health – Oklahoma.
  • Alison Heasley, ADG P.C.
  • Carri Hicks, State of Oklahoma.
  • Marcus High, Mercy Hospital Ardmore.
  • Jonathan Hillman, BKD CPAs & Advisors.
  • Alex Kaiser, Simmons Bank.
  • Stephanie Keller, Eide Bailly.
  • Jake Krattiger, GableGotwals.
  • Jennifer Lepard, State Chamber Research Foundation.
  • Lisa McLarty, Mabrey Bank.
  • Autumn McMahon, Oklahoma Electric Cooperative.
  • Mark McMullen, Tulsa Community College.
  • Nikki Nice, City of Oklahoma City.
  • Travis Noland, Cherokee Nation.
  • Matthew Peacock, Peacock Design.
  • Melissa Phillips, AT&T.
  • Jonas Rabel, Integris Grove & Miami Hospital.
  • Brent Rempe, Allegiance Credit Union.
  • Diana Reynolds, Love’s Travel Stops & Country Stores.
  • Melanie Rughani, Crowe & Dunlevy.
  • Becky Samples, Oklahoma Farm Bureau Insurance.
  • James Sanchez, Regent Bank.
  • Trista Shomo, Manhattan Construction Co.
  • Brady Sidwell, Enid Brewing Co.
  • Clay Taylor, Oklahoma Lobby Group.
  • Vincent Venincasa, Edmond Regional Eye Associates.
  • Cornell Wesley, Fiscal Fundamentals Inc.
  • Jonna Whetsel, Network for Pets of Domestic Violence Victims.

Read more about the Achievers Under 40 event here.
facebook icon

Follow our coverage on FACEBOOK

Dealing with domestic violence in divorce proceedings

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on February 20, 2020.


Molly Tipton

Molly Tipton is an attorney in the Energy & Natural Resources Practice Group. She represents both privately-owned and public companies in a wide variety of oil and gas matters, with a strong emphasis on oil and gas title examination.

By Phillips Murrah Attorney Molly E. Tipton

Domestic violence. In the context of divorce proceedings, these notorious words too often either fly under the radar or are misunderstood and improperly handled. This highlights the importance of training for those who work in the legal system to recognize the signs of domestic violence, especially since it is a factor that may not present apparent evidence such as physical injuries.

At a recent Family Law lunch-and-learn, Oklahoma Court of Civil Appeals Judge Barbara Swinton presented on the topic of domestic violence. The first question raised was, “Can we please call it something else, like domestic terrorism or domestic abuse?”

This question raises an excellent point, as not all domestic violence is physical. Emotional abuse, for example, rises to the level of domestic violence and is a consideration at hearings on victim protection orders and divorce hearings. Think along the lines of stalking, such as placing a GPS tracking device in an ex-spouse’s vehicle. This activity could be considered domestic violence and can amount to one spouse being banned from visitation privileges with minor children.

Many of the judges across the state of Oklahoma already participate in domestic violence training. Attorneys can also receive similar training with the Oklahoma Guardian ad Litem Institute. As a result of proper training, attorneys and judges are able to properly recognize the signs and get those experiencing divorce the appropriate care and treatment they need.

This need for clarity about domestic violence also applies to clients, many of whom are unaware of the helpful and free services of Palomar, located in Midtown Oklahoma City, or of the YWCA. Both of these organizations offer victim services and resources and can provide an advocate to appear in the courtroom to protect victims of domestic violence.

Further, for attorneys representing perpetrators of domestic violence, those clients also benefit from help and guidance. For such persons, there are batterer’s intervention programs across the state that provide assessment and counseling services.

Family law attorneys often find themselves on both ends of the spectrum – sometimes representing a victim and other times a perpetrator. Therefore, it is vital to the safety, well-being and mental health of clients to be able to recognize signs of domestic violence. The better Oklahoma’s attorneys become at recognizing the signs of domestic violence – even those that are not physical in nature – the better we can help our clients and community.

Molly Tipton is a family law attorney at the law firm of Phillips Murrah in Oklahoma City.

Firm selects Employee of the Month for January 2020

Nancy Walker

Nancy Walker, Paralegal, is Phillips Murrah’s Employee of the Month for January 2020.

“It is truly an honor to be recognized by your peers, especially by such a great group of talented people with whom I have the privilege of working,” Nancy said. “I am continually challenged and enhanced by my experiences here each and every day, and am very lucky to be a part of such an incredible team!”

The Employee of the Month is selected anonymously by Phillips Murrah staff on merits of teamwork and overall contributions to the Firm.

“The Firm has been extremely lucky to have Nancy here since the very beginning,” Executive Director Michelle Munda said. “Her professionalism, vast experience and knowledge, and willingness to help others are invaluable.  Thank you Nancy!”

The Firm recently began making a donation to the winner’s charity of choice, and Nancy chose Tenaciously Teal.

“A few years back, I was challenged with the fight against Stage III colon cancer, and I found out quickly that I was not alone in my battle,” Nancy said. “In addition to the incredible support of friends and family, I became aware of a locally-operated organization by the unique name of Tenaciously Teal, founded by a courageous young woman who fought her own battle against cancer.

“This organization provides thoughtful care packages of personal items to cancer patients across the state of Oklahoma, as well as other types of support, based upon on the need. I know from personal experience that these care packages, which are given in a teal-colored drawstring bags, are not only practical but they also give an incredible message of hope, courage, and support. This is the worthwhile organization I choose to support.”

To learn more about Tenaciously Teal, click here.


Phillips Murrah has been recognized as an Oklahoma Top Work Place by The Oklahoman/Energage five years in a row. Our Firm strives to recognize and reward our employees for excellence.

facebook iconFollow our Firm on FACEBOOK

Phillips Murrah attorney gives sixth graders glimpse into lawyer life

Students and Attorney Kendra Norman at Canyon Ridge Career Fair

Sixth graders at Canyon Ridge Intermediate School ask Phillips Murrah Attorney Kendra Norman questions about her profession as part of a “career fair.”

Attorney Kendra M. Norman gave students at Canyon Ridge Intermediate School a rare peek into the legal field.

The school hosted a “Career Fair” on Jan. 24 to help expose 6th grade students to different career options.

“I want to educate these students on the education and other requirements needed to be an attorney, but also about the vast number of different kinds of attorneys and practice areas out there,” Norman said. “I hope to differentiate what I, and other attorneys, do on a daily basis from the portrayals these students may have seen on TV or the internet.

“I also want to let them know that my profession is attainable for them even though college and ultimately deciding what they want to do is far off in the future for them right now.”

Other featured professions were those of an engineer, physical therapist, home inspector, bounty hunter, and recruiter.

“The students were very kind and respectful, and they asked wonderful questions like what my favorite thing about my job is,” Norman said. “I had a wonderful time, and I’m so glad that I had this opportunity to share my experience with the students.”

For more information about Norman’s practice, click here.

Voth participates in Leadership OKC medical marijuana panel

attorney lauren voth and other leadership oklahoma city panelists

Attorney Lauren S. Voth with the other Leadership OKC panelists

Attorney Lauren S. Voth joined other panelists to discuss issues related to medical marijuana in Oklahoma.

St. Luke’s United Methodist Church hosted the Leadership Oklahoma City panel on Jan. 23. Voth rounded out the panel of industry leaders including:

  • David Lewis, Chief Operating Officer of Stability Growth
  • Stephen Prescott, MD, President of Oklahoma Medical Research Foundation
  • Scott Shaeffer, D.Ph., DABAT, Managing Director of Oklahoma Center for Poison and Drug Information

The panel was moderated by David Dishman, Business Writer for The Oklahoman newspaper.

To learn more about Leadership OKC and other upcoming events, visit their website here.

 

Director presents at Oklahoma Agricultural Aviation Association annual meeting

Patrick Hullum

Patrick Hullum is a Director and a litigation attorney who represents individuals and public and private companies in a wide range of complex litigation matters.

Phillips Murrah Director Patrick L. Hullum advised Oklahoma Agricultural Aviation Association members on legal issues related to aerial spray applicators at the 2020 OAAA Conference and Trade Show on Jan. 21 at the Embassy Suites in Norman, OK.

Aptly titled “How to Defend Yourself in Court,” Hullum’s presentation relayed steps individuals and businesses can take to protect themselves from claims of alleged “drift” from aerial spray.

Hullum spoke to OAAA members in 2019 on similar issues.

Phillips Murrah was a Platinum-level Sponsor at this year’s convention.

To learn more about the Oklahoma Agricultural Aviation Association, click here.

Court to interpret provisions of gaming compact

This column was originally published in The Journal Record on January 20, 2020.


Attorney Ashley Schovanec Web

Ashley M. Schovanec is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

By Phillips Murrah Attorney Ashley M. Schovanec

On Dec. 31, the Cherokee, Chickasaw and Choctaw nations filed suit against the governor, asking a federal judge to determine whether Oklahoma tribes have the right to continue gaming activities under the tribal-state gaming compact offered by the state of Oklahoma to the tribes in 2004.

What is the tribal-state gaming compact?

In 1988, Congress enacted the Indian Gaming Regulatory Act to create a framework for states and Indian tribes to cooperate in regulating on-reservation tribal gaming. The IGRA provides a tribal-state compact as the mechanism for facilitating the unusual relationship in which a tribe might affirmatively seek the extension of state jurisdiction and the application of state laws to activities conducted on Indian land. The tribal-state compact provides the state with the only lawful means for directly asserting any governmental interests related to tribal gaming activities.

Absent a negotiated compact between the tribes and the state, Class III gaming (casino games, slot machines and horse racing) is forbidden by the IGRA. While tribes are incentivized to negotiate compacts to gain permission to conduct Class III gaming, the state is incentivized to negotiate compacts to gain a share of the gaming revenue.

In 2004, Oklahoma and the tribes entered into a compact that would allow the tribes to conduct Class III gaming activity on Indian lands in exchange for the tribes’ disbursement of periodic revenue-share payments to the State. Part 15.A. of the compact sets forth the requirements that must be met for the compact to go into effect. Part 15.B. provides that the compact’s initial term will expire on Jan. 1, 2020, and “shall automatically renew” for successive 15-year terms on that same date, if at that time “organizational licensees” (e.g. horse race tracks and others) are authorized to conduct certain electronic gaming pursuant to any governmental action of the state or court order following the effective date of the compact. Part 15.C. states that the compact will remain in effect until either its term expires without renewal or it is terminated by mutual consent of the parties.

What is the central issue of the dispute?

The tribes are seeking a declaratory judgment on the single question of whether the compact was renewed on Jan. 1 for another 15-year term. The tribes argue the state has taken actions that satisfy Part 15.B.’s conditions for automatic renewal – through the actions of the Oklahoma Horse Racing Commission’s issuance of licenses for electronic gaming and the state’s enactment of changes in state-regulated electronic gaming. On the opposite side, Gov. Stitt believes that the requirements that allow for automatic renewal have not been met. Since the summer of 2019, Stitt has maintained the compact would expire Dec. 31, 2019, and gambling at tribal casinos would become illegal as of Jan. 1, 2020.

Why is this a high-stakes lawsuit?

The dispute between the state and the tribes is significant. In Fiscal 2018, 31 tribes operated 131 facilities offering Class III games and collected $2.3 billion in revenue, with approximately $139 million paid to the state. If Chief Federal Judge Timothy DeGiusti determines the compact was not renewed, the future of Class III gaming is unclear. While the tribes would absorb the brunt of a non-renewal declaration, those that conduct business with the tribes and gaming facility patrons would likely see substantial changes to the gaming landscape they once knew – whether it be an elimination of Class III gaming in Oklahoma or an alteration of the terms of the 2004 compact. Regardless of the outcome of the lawsuit, the court’s declaration will likely have a lasting effect upon the tribal-state relationship.

Ashley M. Schovanec is an attorney at the law firm of Phillips Murrah.

Firm selects Employee of the Month for December 2019

Kat Mach

Kat Mach, Legal Assistant, is Phillips Murrah’s Employee of the Month for December 2019.

“I find that a little bit of kindness and respect will get you so much further in the world,” Kat said. “It is really nice to have that noticed. Hopefully, we can start a movement in the world starting with just our Firm.”

The Employee of the Month is selected anonymously by Phillips Murrah staff on merits of teamwork and overall contributions to the Firm.

“Kat is smart, willing to help and has a great attitude,” Director Dawn M. Rahme said. “She keeps things running smoothly, and we are lucky to have her as part of our team!”

The Firm recently began making a donation to the winner’s charity of choice, and Kat chose METAvivor.

To learn more about METAvivor, click here.


Phillips Murrah has been recognized as an Oklahoma Top Work Place by The Oklahoman/Energage five years in a row. Our Firm strives to recognize and reward our employees for excellence.

 

Mindfulness in the legal profession

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on January 9, 2020.


Kendra Norman Web

Kendra M. Norman represents individuals and businesses in a broad range of transactional matters.

By Phillips Murrah Attorney Kendra M. Norman

Every morning, my Apple Watch vibrates on my wrist and tells me to start the Breathe app. My instinct is to ignore it, feeling like taking a few moments to just breathe is a waste of precious time that could be spent more productively – such as on contributing to my billable-hour requirement.

Despite this instinct, spending time on our mental health is far from wasted time. The legal industry is fact-focused, but when it comes to our own well-being, we’re very good at ignoring facts. We zealously represent our clients, but we often don’t advocate on our own behalf.

Generally, attorneys are driven pessimists and perfectionists in a difficult profession that puts us almost always on-call. We tend to romanticize stress and brag about how late we stay at the office and how often we work on weekends. Too often, we sacrifice our well-being as we scramble to meet unrealistic expectations of ourselves and others.

A recent American Bar Association/Hazelden Betty Ford study concluded that licensed, employed attorneys have alcohol issues and problems with anxiety and depression at a rate high above most other professions. There has also been a historical stigma in legal culture that discourages help-seeking behaviors, which tends to exacerbate feelings of isolation and increase emotional suffering.

The good news is that there is a recent-but-slow shift in attorney culture toward a greater focus on mental health and self-care, including mindfulness. In late 2018, the ABA launched a campaign to improve mental health, and over 90 law firms and corporate law departments agreed to follow a framework to improve our industry in this regard. Some law firms have even hired staff specifically devoted to addressing their employees’ mental health.

I’ve been trying to actively meditate for about a year now, and I don’t always find time to fit it in. However, if I’ve had a particularly challenging day or can’t get work off my mind, I reach for the meditation app on my phone to bring myself some peace of mind. Meditation helps me live in the present rather than ruminating about the past or the future.

In a profession that is mentally and emotionally challenging, healthy coping mechanisms like meditation, yoga, exercise, and even journaling can make a great difference. Remember – it’s not wasted time to take a few moments, close your eyes and just breathe.

Kendra M. Norman is an attorney at the law firm of Phillips Murrah.

Phillips Murrah law firm names newest Director, Shareholder

Cody J. Cooper

OKLAHOMA CITY (January 2, 2020) – Phillips Murrah proudly announces the promotion of Cody J. Cooper to a Director and Shareholder for the Firm. Cooper’s selection brings the Firm’s total number of Directors to 38.

Cody is a member of the Firm’s Intellectual Property and Commercial Litigation Practice Groups. His practice primarily concentrates on intellectual property, including patent prosecution and litigation, trademark and copyright matters, and commercial litigation in state and federal courts.

“I am honored and excited to transition from associate to director. I have spent my entire legal career at the Firm and I cannot imagine a better, more supporting place to develop as a person and attorney,” Cody said. “I am so proud to be associated with all of the individuals at the firm and look forward to continuing to help move the Firm forward and continue the sustained success it has had since its founding.

Cody graduated from the University of Oklahoma College of Law with Honors. While in law school, he served as the managing editor of the American Indian Law Review, Magister (President) of the legal honors fraternity Phi Delta Phi and was on the Dean’s Honor Roll. He was also a mentor on the Dean’s Leadership Council for incoming law students and earned the American Jurisprudence Award for Civil Procedure II. He was a semi-finalist at the University of West Virginia Energy Law Moot Court Competition.

Cody received his bachelor’s degree in Business Administration from the University of Oklahoma, majoring in Finance and Management Information Systems. He has a general science and engineering background, which qualified him to become registered before the United States Patent and Trademark Office as a practicing patent attorney. As an undergraduate student, he worked for a Fortune 100 company as a systems analyst intern in the business and technology group, working with a number of complex software suites that provided critical services to the business.

“Cody has proven himself to be a proactive and diligent attorney since joining the Firm straight from law school,” said Thomas G. Wolfe, President and Managing Partner. “His hard work and commitment to his legal practice are signs that he will make the Firm proud as our newest Director and Shareholder.”

Cody is actively involved in community and charitable organizations and has volunteered with a number of organizations including Camp Cavett, NewView Oklahoma, Salvation Army, various public schools throughout the Oklahoma City Metro and others.

Born and raised in Norman, Oklahoma, Cody now lives in Oklahoma City with his wife, daughter and two dogs. In his free time, he enjoys spending time with friends and family, playing sports and attending Oklahoma City Thunder and Sooner sporting events.