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Firm selects Employee of the Month for July 2019

Bradley Burt

Bradley Burt, Legal Secretary, is Phillips Murrah’s Employee of the Month for July 2019.

“Phillips Murrah is a fantastic place to work, and it’s a privilege to be surrounded by such amazing people,” he said. “I try to learn and grow in my field each day, and Phillips Murrah fosters a really positive environment for that.

“To be selected as Employee of the Month in a workplace like this is an honor.”

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

“We are very lucky to have Bradley as a member of the team,” Director Joshua L. Edwards said. “He is extremely bright and motivated—willing to help out wherever needed and able to handle whatever is thrown his way.”

The Firm recently began making a donation to the winner’s charity of choice, and Bradley chose World Literacy Foundation.

“Reading is really special to me, and I believe it is important for every person to have the opportunity to learn to read,” Bradley said. “Especially in areas with broken education systems, the ability to read is a crucial tool for self-learning.”

To learn more about World Literacy Foundation, click here.


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

 

Phillips Murrah awarded for continued construction law service

A. Michelle Campney, Phillips Murrah Construction Law Attorney, accepts ASA-OK's Service Provider of the Year award on behalf of the Firm.

A. Michelle Campney, Phillips Murrah Construction Law Attorney, accepts ASA-OK’s Service Provider of the Year award on behalf of the Firm.

Phillips Murrah law firm has been recognized once again for its commitment to construction law in Oklahoma.

The American Subcontractors Association of Oklahoma awarded the Firm with the 2018 Service Provider of the Year award at their annual Awards Gala on June 8 at Grand Casino Resort in Shawnee.

“This is the second time that the Firm has won this award,” said David A. Walls, Phillips Murrah Construction Law Attorney. “The award recognizes the Firm’s efforts and time spent conducting education seminars for the members of ASA-OK on various topics important to the construction industry, such as good business practices, legal developments in construction law and business structure.”

ASA-OK is the primary industry trade group representing subcontractors in the construction industry in Oklahoma and is the state chapter of the national ASA organization.

“ASA-OK members choose the top Service Provider from a group of 19 member companies, and Phillips Murrah received the most votes,” said Tami Hasselwander, ASA-OK Executive Director. “ASA-OK’s membership voted for the company they believe demonstrates knowledge and expertise of our industry and who has supported our organization by providing consulting advice and educational training to our members.”

A. Michelle Campney, Phillips Murrah Construction Law Attorney, accepted the award on behalf of the Firm and gave a presentation to the association’s members.

“Michelle and I have led several seminars and group discussions during the last year for this group, which is the largest subcontractor and supplier construction organization in Oklahoma,” Walls said. “This is a part of our broad construction practice, which also includes representing general contractors, developers and insurance companies who underwrite construction companies.”

Attorneys in Phillips Murrah’s Construction Law Practice Group have more than 20 years experience in the industry and represent and advise clients in every stage of the construction process. Learn more about our Construction Law representation here.

Phillips Murrah partners with KOSU and area Food Banks to help feed hungry children

KOSU logo, Regional Food Bank logo, Community Food Bank of Eastern Oklahoma logoOklahoma’s children are back in school, but not every school kid has reliable access to a sufficient quantity of affordable, nutritious food.

In Oklahoma, one in four children struggle with the detrimental effects of food insecurity. Phillips Murrah set out to be a part of the solution by helping feed hungry school children in our state.

With this aim in mind, Phillips Murrah is proud to announce our Challenge Grant partnership with KOSU Radio, the Regional Food Bank of Oklahoma and the Community Food Bank of Eastern Oklahoma.

With each pledge during KOSU’s Fall 2017 Member Drive on-air fundraiser, Phillips Murrah will donate the cost of a weekend food backpack for a hungry child to the Food Banks serving Oklahoma City and Tulsa, to be distributed by the Regional Food Bank of Oklahoma and the Community Food Bank of Eastern Oklahoma.

“Our Firm is very active in the community, especially with regards to helping children,” said Dave Rhea, Marketing Director at Phillips Murrah. “I’m also well aware of how hard Station Director Kelly Burley works to position KOSU as a leader in supporting education. We are excited for this opportunity to get involved with the Food Banks’ mission to fight the devastating effects of childhood hunger while also supporting the important work of public radio.”

If you would like to support this Phillips Murrah Challenge Grant, starting Wednesday, Sept. 13, call 855-808-5678 or pledge at KOSU.org.

Oklahoma law firm Phillips Murrah community outreach photo. David Rhea, Marketing Director

During the recent KOSU Fall Drive, Phillips Murrah donated $5000 toward weekend backpacks full of nutritious food for Oklahoma children in need. The Regionsal Food Bank of Oklahoma and Community Food Bank of Eastern Oklahoma will distribute the backpacks throughout the year through their Food for Kids programs. Pictures above from left: KOSU Station Director Kelly Burley, Phillips Murrah Marketing Director Dave Rhea, RFBO Director of Development Lisa Pitsiri and CFBEO Donor Relations Manager Ken Bacon.

Russell Westbrook has his own room at the Hawkins’ house

Brenda Hawkins Westbrook Fan

Click the photo to see Jenni Carlson’s story about Brenda Hawkins.

Russel Westbrook has his own room at the home of Phillips Murrah Director Terry Hawkins, who leads the Firm’s Public Finance Practice.

From the story in the Sunday Oklahoman:

There’s no bigger Russ fanatic.

(Brenda Hawkins) has replicas of every jersey the Thunder superstar has worn. She has copies of dozens of magazine covers he’s graced, including one from, of all things, a rural electric cooperative. She has bobbleheads and fatheads, paintings and posters.

Standing in “The Russell Room” in her Mesta Park home, she admits her love is extreme.

This past Sunday (2/19/17), The Oklahoman ran an excellent story about Terry’s wife, Brenda, who is a avid admirer of Westbrook and collector of all kinds of Westbrook-related memorabilia.

The touching account, written by sports columnist Jenni Carlson, explains the context of Brenda’s collection and admiration of the Oklahoma City Thunder’s star player. It is a story of strength and overcoming.

Rather than stepping on the fine prose of Ms. Carlson, HERE is a link to the story. It is worth the read!

 

Roth: We need more energy markets, not fewer

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on January 30, 2017.


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

We need more energy markets, not fewer

Oklahoma’s energy blessings far exceed our own state’s needs and demand, which is why we have long sought markets beyond our borders.

We typically export our state’s largest commodities, especially natural gas, and we have become optimistic about global markets opening up to help take some of the massive over-supply that the American shale renaissance has helped create. A fight with our neighbors in Mexico is not good for Oklahoma, our economy or the promise of moving past the current recession that has gripped our state.

Since 2009 to now, U.S. pipeline exports of natural gas everywhere have doubled and almost all of that growth has been from exports from the U.S. to Mexico. In fact, since 2015, Mexico accounts for more than one-half of all U.S. exports of natural gas. Daily average pipeline exports now exceed 3.5 billion cubic feet per day, which is 85 percent above the previous five-year-period average, according to the U.S. Energy Information Administration.

Much of Mexico’s growth in natural gas consumption has been attributed to the growth in Mexico’s domestic electricity demand and the fact that Mexico, like the United States, has been choosing cleaner-burning natural gas for its power plants. Northern Mexico is particularly growing and the demand is expected to continue. In fact, Mexico announced in 2015 a five-year plan to significantly increase its pipeline infrastructure with 12 new pipelines over 3,200 miles, to allow for greater importation of American natural gas for its energy needs. As of today, contracts have been awarded on seven of the 12 pipelines, including a 2.6-billion-cubic-feet-per-day capacity pipe from southern Texas to Mexican states along the Gulf of Mexico.

We should want these markets to grow and we should want this infrastructure to access the massive supply available here in America. Those two things can directly benefit Oklahoma and the many producers who call Oklahoma home, regardless of where they produce.

This month USA Today ran an article that described how “six of the eight top oil-pumping states hit recession,” and the article quoted S&P saying about Oklahoma, “even modest economic softness could have prolonged negative effects.”

We already know that our state budget and economy are in peril because of the massive downturn in oil and gas commodity prices, which have led to serious drops in tax revenues. It is suggested that the 2018 budget will be off another 12.6 percent less spending capacity from even this year’s reduced budget.

Now is not the time to play political games with a neighbor and customer that accounts for such significant growth in our ability to export American and Oklahoma energies. Our economy and our national security are both better served by growing foreign markets for American goods.

Or as President Ronald Reagan said on May 16, 1987: “We should be trying to foster the growth of two-way trade, not trying to put up roadblocks, to open foreign markets, not close our own.”

Let’s throw that idea up against the proverbial “wall” and see what sticks today.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Phillips Murrah announces 35 attorneys named to 2017 Best Lawyers list

Phillips Murrah is proud to announce that 35 of our attorneys have been named to the 2017 Best Lawyers® list and seven of our attorneys are recognized as Best Lawyers – Lawyer of the Year in Oklahoma City.

2017 Best Lawyers – Lawyers of the Year

Douglas A. Branch – Venture Capital Law

Michael D. Carter – Workers’ Compensation Law – Employers

Shannon K. Emmons – Employment Law – Individuals

Sally A. Hasenfratz – Construction Law

Fred A. Leibrock – Litigation – Antitrust

G. Calvin Sharpe – Medical Malpractice Law – Defendants

Thomas G. Wolfe – Product Liability Litigation – Defendants

2017 Best Lawyers

Jennifer Ivester Berry – Commercial Transactions / UCC Law; Real Estate Law

Douglas A. Branch – Securities / Capital Markets Law; Venture Capital Law

Elizabeth K. Brown – Litigation – Trusts and Estates; Litigation and Controversy – Tax; Tax Law; Trusts and Estates

Michael D. Carter – Workers’ Compensation Law – Employers

Bobby Dolatabadi – Mergers and Acquisitions Law

Marc Edwards – Administrative / Regulatory Law; Commercial Litigation; Government Relations Practice

Nicholle Jones Edwards – Family Law

Stephen W. Elliott – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law; Commercial Litigation; Litigation – Bankruptcy

Shannon K. Emmons – Commercial Litigation; Employment Law – Individuals

Juston R. Givens – Commercial Litigation

Sally A. Hasenfratz – Commercial Transactions / UCC Law; Construction Law; Land Use and Zoning Law; Real Estate Law

John D. Hastie – Litigation – Real Estate; Real Estate Law

Terry L. Hawkins – Public Finance Law

Heather L. Hintz – Commercial Litigation

Timothy D. Kline – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law; Litigation – Bankruptcy

Fred A. Leibrock – Commercial Litigation; Insurance Law; Litigation – Antitrust; Litigation – ERISA; Litigation – Real Estate

Candace Williams Lisle – Commercial Litigation

Mark Lovelace – Banking and Finance Law; Business Organizations (including LLCs and Partnerships)

Melvin R. McVay, Jr. – Commercial Litigation; Litigation – Banking and Finance; Litigation – Bankruptcy; Litigation – Real Estate

Andrew S. Mildren – Administrative / Regulatory Law; Government Relations Practice

Jennifer L. Miller – Commercial Litigation

Cindy H. Murray – Real Estate Law

Robert O. O’Bannon – Tax Law

Martin G. Ozinga – Commercial Litigation

Donald A. Pape – Banking and Finance Law

Michael R. Perri – Commercial Litigation; Energy Law; Natural Resources Law; Oil and Gas Law

William S. Price – Government Relations Practice

Dawn M. Rahme – Litigation and Controversy – Tax; Tax Law; Trusts and Estates

Jim A. Roth – Energy Law; Environmental Law; Government Relations Practice; Natural Resources Law

G. Calvin Sharpe – Medical Malpractice Law – Defendants; Personal Injury Litigation – Defendants

Robert N. Sheets – Commercial Litigation; Litigation – Land Use and Zoning; Litigation – Real Estate

Ellen K. Spiropoulos – Litigation – Trusts and Estates; Litigation and Controversy – Tax; Tax Law; Trusts and Estates

Lyndon W. Whitmire – Commercial Litigation; Product Liability Litigation – Defendants

Thomas G. Wolfe – Bet-the-Company Litigation; Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation – Defendants

Raymond E. Zschiesche – Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation – Defendants

‘Prequalifying’ Primes Pays Off for Subcontractors

By David A. Walls & A. Michelle Campney.

From The Contractor’s Compass, an educational journal of the Foundation of the American Subcontractors Association.

Published Q2 2012 – originally posted Jun 18, 2012

IN THIS ARTICLE . . .

  • Research primes’ reputations.
  • Research project liens and litigation records.
  • Investigate financial strength of prime and project financing.

Imagine that you need to fill a high-level position in your business. This position is one that will have a visible and immediate effect on your bottom line. Perhaps it is your chief estimator, COO or head of sales. Because you need this person right away, you decide not to ask any applicants for a resume or do any kind of background check. You are going to hire solely on the basis of the fact that you really need to fill the position. Sound crazy?

It is. Yet, many businesses follow this same plan when submitting bids or soliciting work from owners, developers and prime contractors — all of whom will affect their business to at least the same extent as the aforementioned employees. This is likely traceable to the difficult economic environment for the construction industry. When work is scarce, it is hard to be too picky about work. Regardless, there are some basic steps any subcontractor can and should take to assess, or “prequalify,” a prime contractor before taking on any new project.

Reputation

A great deal of information can and should be learned about a prime contractor’s business reputation before bidding a new project. This is especially true if the subcontractor has not worked for the prime contractor previously, or the project is in a state where the subcontractor has not previously worked. The Internet, and particularly social networking sites, can be a wealth of information about a prime contractor. Many businesses will list their projects and customers on their Web sites, and a few quick phone calls can provide valuable information regarding how those projects turned out. Many Web sites will also list the trade groups that a prime contractor belongs to, and these can be verified and investigated. This same type of reputation investigation should be done for the project owner and the project architect. Remember that much information can be discovered simply be speaking to other subcontractors. Questions that should be asked include:

  • What type of work is the prime contractor known for in the industry?
  • What current or recently completed projects has the prime contractor done?
  • What subcontract agreement does the prime contractor use, and can it be negotiated?
  • Can a copy of the subcontract be obtained in advance of bidding?
  • Will the prime contractor work with the subcontractors when the inevitable project challenges arise?

[Editor’s note: ASA-chapter Business Practice Interchanges are a great forum for getting objective information about prospective customers.]

Project Liens and Legal Filings

Subcontractors also should do a thorough background check on the public legal records pertaining to a prospective prime contractor partner. Many states and counties make these records available on the Internet, but at a minimum they can be checked via a quick trip to the office of the records clerk.

Typically, county records can be checked to determine if subcontractors and suppliers have filed liens on projects involving the prospective prime contractor. If a foreclosure action has resulted from the lien, it may mean that, for some reason, payment issues were serious and difficult to resolve. It is important to keep in mind that liens can be filed even when a project is going smoothly, but their existence likely warrants further inquiry.

Subcontractors can check court filings to see if the prime contractor has been involved in litigation, and if so, the nature of the lawsuits that have been filed. Unfortunately, today’s society is litigious, so the mere existence of litigation does not, in and of itself, reveal much about any business. But a large volume of litigation, or a large volume relative to the number of projects undertaken, may warrant further investigation. Moreover, lawsuit records will show the names of other businesses that can be contacted to obtain additional information.

Financial Status

A subcontractor should attempt to determine the financial liquidity of the prime contractor. Examining Uniform Commercial Code filings against the prime contractor in the county clerk’s office may provide some information in this regard. If there are many filings, most of the prime contractor’s assets may be encumbered for financing. It is even more important to investigate the financial status of the owner and the project. If the project is not fully funded, there is a real possibility the project will terminate and payment in full on the subcontract will not be made. Is the project financed with public, private or a combination of public and private funding? Publicly financed projects need scrutiny, as government agencies struggle with tight or reduced, and sometimes forecasted, funding. For example, some public projects may be funded in phases and have only partial appropriations before work commences. If the project is privately financed, the project likely has to meet requirements of the financial institution. A project financed by a public-private partnership may have project financing in place, but could lack payment assurances for subcontractors, as liens cannot be filed on public property and a payment bond may not be required. The subcontractor also should scrutinize the financial health of the industry of which the owner/ developer is a part, such as oil and gas, technology, or health care.

10 Commandments of Getting Paid

“Prequalifying” the prime contractor will help ensure that the project goes smoothly and that the subcontractor will receive full payment in a timely fashion. Follow these 10 commandments of getting paid:

 

  1. Know your customer.
  2. Know your lien rights.
  3. Know your bond rights.
  4. Calendar all deadlines to file claims.
  5. Deal with payment issues immediately.
  6. Get change orders and extra work in writing.
  7. Obtain the legal description for the property or project.
  8. Understand your backcharge rights.
  9. Know what happens if you don’t get paid.
  10. Know whether the contract has an arbitration clause or venue provision.

Taking the time up-front to protect your company will save you time and money in the end.

David A. Walls and Michelle Campney are attorneys with Phillips Murrah P.C., Oklahoma City, Okla. Walls can be reached at (405) 235-4100 or dawalls@phillipsmurrah .com. Campney can be reached at (405) 235- 4100 or amcampney@phillipsmurrah.com.


Read original article HERE.

Related Link: The Foundation of the American Subcontractors Association (FASA)

Jim Roth: Focusing on the meaning of the holidays

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on Dec. 7, 2015.


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

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

Focusing on the meaning of the holidays

During this holiday season with parties, travel and the mad dash to purchase (and afford) gifts for those loved ones in our lives, it’s often too easy to focus on the wrapping rather than the meaning of the season.

To a variety of faiths, this time of year has significant historical meaning:

  • Christmas by Christians – It is believed that ancient Christians took over Saturnalia, an ancient Roman Pagan seven-day festival of Saturn that started on Dec. 17, and used it to commemorate the birth of Jesus Christ, although evidence within the Bible (Luke, etc.) suggests His birth during a warmer month like October when the shepherds were still in their fields keeping watch over their flocks.
  • Winter solstice is celebrated by some Native Americans and aboriginals in the rest of the world.
  • Hanukkah (aka Festival of Lights) by Jews – This eight-day/night Jewish holiday begins on the 25th day of Kislev, which can occur in very late November or during December and commemorates the redirection of the Holy Temple in Jerusalem at the time of the Maccabean Revolt against the Seleucid Empire.
  • Bohdi Day by Buddhists – recalling the day that Buddha attained enlightenment as Dec. 8.
  • Id al-Fitr or Ashura (aka Feast of Sacrifice) by Muslims – Whether Sunni or Shiite, this holiday commemorates events significant to Muhammad and typically involves fasting.

So as we rush around, too often engaged in the commercialization of the “season,” a few ideas come to mind about how we all can slow down, catch our breath and actually engage in a few ways that any deity would want for us and the world around you.

While some gifts are practical items, such as those socks and T-shirts many have come to expect each year, most gifts are really intended as gestures of love, kindness and thoughtfulness. So although many kids prefer those shiny new toys, consider giving your adult loved ones a gift of service or an experience instead of a store-bought item. Be creative and show your thoughtfulness by giving of yourself rather than your credit.

This can be done in many ways beyond material goods. Consider a homemade edible gift that showcases a family recipe to share or plants some bulbs in their yard for gifts this coming spring. Look for a family heirloom around your home that would be meaningful to share and pay it forward to the next generation. You can also offer a charitable contribution to an organization that may symbolize what’s most important to you this time of year, such as Heifer International, which helps impoverished families feed themselves, earn income and care for their environment.

Likewise, many food banks and food pantries are in ever-increasing need for help as the plight of hunger is felt by many people, including many children here in America.

So whether you choose to celebrate one of the seasonal holidays or are simply looking for ways to bring more meaning to your gift-giving, please join me in thinking of ways to demonstrate thoughtfulness to your loved ones and to the world around us; the real reason for the season.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Phillips Murrah recognized as a Top Workplace by The Oklahoman

Top Workplaces finalOn Sunday, The Oklahoman Newspaper published their annual list of Oklahoma’s Top Workplaces. Phillips Murrah takes pride in our healthy, positive workplace, and the Firm is honored to be on the 2015 list.

“We are excited to be recognized as having one of Oklahoma’s Top Workplaces,” said Phillips Murrah President and Managing Partner, Tom Wolfe. “We do a lot of serious, complex work at our Firm, and we strive to make sure to provide a positive, balanced atmosphere for our attorneys and staff.”

Phillips Murrah is the only Law Firm on the Oklahoma’s Top Workplaces list.

To learn more about the workplace culture at Phillips Murrah, visit our Careers pagehttps://phillipsmurrah.com/careers.

NEWSOK: HOW THE TOP WORKPLACES WERE DETERMINED

This is excerpted from an article written by Doug Claffey, CEO of WorkplaceDynamics:

To create the 2015 Top Workplaces list, The Oklahoman partnered with Philadelphia-based WorkplaceDynamics, a research firm that specializes in employee surveys and workplace improvement.

Read more about the methodology here. Below is a quick rundown of how surveys were presented:
Top Workplaces paper

The employee survey included 22 questions measuring seven different factors. Three My Job factors measured how employees feel about their day-to-day job:

My Work: training, work/life balance

My Manager: cares about concerns, helps employees to learn and grow

My Pay & Benefits: Three OrgHealth factors measured whether or not employees are working together toward a common goal:

Direction: where the company is headed, its values, and its leaders

Execution: how the company will get to where it wants to go

Connection: feeling appreciated and work is meaningful

Lastly, the survey measures Engagement, which includes retention, motivation, and referral.

rowing pic from Top Workplaces

From The Oklahoman 2015 Top Workplaces special section published Dec. 6, 2015. (from left:) Marketing Director Dave Rhea, Legal Secretary Deena Baker, Billing Specialist Monica Ball, Director Jennifer L. Miller and Director Jason Kreth compete in the Corporate Regatta at the Oklahoma Regatta Festival on Oct. 2, 2015.

Phillips Murrah announces 35 attorneys named to 2016 Best Lawyers list

Best Lawyers

Phillips Murrah is proud to announce that 35 of our attorneys have been named to the 2016 Best Lawyers® list and three of our attorneys are recognized in The Best Lawyers in America© 2016 in Oklahoma City.

 

The Best Lawyers in America 2016

Stephen W. Elliott – Litigation – Bankruptcy

Sally A. Hasenfratz – Land Use and Zoning Law

Donald A. Pape – Banking and Finance Law

 

2016 Best Lawyers

Jennifer Ivester Berry – Commercial Transactions / UCC Law; Real Estate Law

Douglas A. Branch – Securities / Capital Markets Law; Venture Capital Law

Elizabeth K. Brown – Litigation – Trusts and Estates; Litigation and Controversy – Tax; Tax Law; Trusts and Estates

Michael D. Carter – Workers’ Compensation Law – Employers

Bobby Dolatabadi – Mergers and Acquisitions Law

Marc Edwards – Administrative / Regulatory Law; Commercial Litigation; Government Relations Practice

Nicholle Jones Edwards – Family Law

Thomas Elder Jr. – Commercial Litigation

Stephen W. Elliott – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law; Commercial Litigation; Litigation – Bankruptcy

Shannon K. Emmons – Commercial Litigation; Employment Law – Individuals

Juston R. Givens – Commercial Litigation

Sally A. Hasenfratz – Commercial Transactions / UCC Law; Construction Law; Land Use and Zoning Law; Real Estate Law

John D. Hastie – Litigation – Real Estate; Real Estate Law

Terry L. Hawkins – Public Finance Law

Heather L. Hintz – Commercial Litigation

Timothy D. Kline – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law; Litigation – Bankruptcy

Fred A. Leibrock – Commercial Litigation; Insurance Law; Litigation – Antitrust; Litigation – ERISA; Litigation – Real Estate

Candace Williams Lisle – Commercial Litigation

Mark Lovelace – Banking and Finance Law; Business Organizations (including LLCs and Partnerships)

Melvin R. McVay, Jr. – Commercial Litigation; Litigation – Banking and Finance; Litigation – Bankruptcy; Litigation – Real Estate

Andrew S. Mildren – Administrative / Regulatory Law; Government Relations Practice

Jennifer L. Miller – Commercial Litigation

Cindy H. Murray – Real Estate Law

Robert O. O’Bannon – Tax Law

Martin G. Ozinga – Commercial Litigation

Donald A. Pape – Banking and Finance Law

Michael R. Perri – Commercial Litigation; Energy Law; Natural Resources Law; Oil and Gas Law

William S. Price – Government Relations Practice

Dawn M. Rahme – Litigation and Controversy – Tax; Tax Law; Trusts and Estates

Jim A. Roth – Energy Law; Environmental Law; Government Relations Practice; Natural Resources Law

G. Calvin Sharpe – Medical Malpractice Law – Defendants; Personal Injury Litigation – Defendants

Robert N. Sheets – Commercial Litigation; Litigation – Land Use and Zoning; Litigation – Real Estate

Lyndon W. Whitmire – Commercial Litigation; Product Liability Litigation – Defendants

Thomas G. Wolfe – Bet-the-Company Litigation; Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation – Defendants

Raymond E. Zschiesche – Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation – Defendants

 

 

Roth: Ex-Im Bank must have its life span extended

Jim Roth’s Friday column, Earth Business, appears in The Journal Record.
Originally published in The Journal Record on July 17, 2015.
View Jim Roth’s attorney profile here.


Jim Roth is a Director, Chair of the firm’s Clean Energy Practice and a former Oklahoma Corporation Commissioner.

Ex-Im Bank must have its life span extended

The hotly contested Export-Import Bank of the United States has been in existence since 1934 by executive order, was made a separate agency by Congress in 1945 and exists to finance and insure foreign purchases of American goods for customers unable or unwilling to accept credit risk.

This seemingly sleepy entity has been in the news lately due to its upcoming potential death. Its most recent three-year charter lapsed as of July 1 because of Congress’ inaction and unwillingness to reauthorize. Today, the bank cannot engage in new business and can only manage its existing loan and business portfolio.

The Ex-Im Bank has been a dividing political issue since its conception. Created to help the U.S. increase exports and create more jobs here, it has been hugely successful in those objectives.

The Ex-Im Bank currently helps 129 Oklahoma companies with global exports of nearly $1 billion in total export value, $938 million in total insured shipments, guaranteed credits or disbursed loan amounts and $815 million in total authorizations. This enormous economic infusion has created thousands of Oklahoma jobs creating products, machines and services.

The U.S. Import-Export Bank, like most Ex-Im banks around the world, focuses in financing private-sector exports and has helped create or maintain many thousands of jobs all across America. Its recent years have seen more focus toward energy and manufacturing products, thus creating a growing political divide in Washington along the way.

Today, those most concerned about the potential death of the bank have been the alternative energy sectors, which have used the bank more recently to finance some of their green energy ventures. Yet just a few years ago, the bank was heavily criticized for “being on a fossil-fuel binge” for supporting liquid gas projects for Exxon-Mobil in Papua New Guinea and a coal plant in India with ties to Wisconsin business interests.

Meanwhile, growing antagonism today about the bank seems to be coming from lobbyists in the fossil-fuel sector and conservative groups representing American banks that don’t want the competition for lending.

And to stray away from any specific sector of the U.S. economy to the larger picture, it is clear what the importance of the Ex-Im Bank is to the U.S. economy. The future of American exports and job creation seems bleak without the institution because this is the U.S. Ex-Im Bank, while many other countries have their own banks that finance exports and they have bidding wars in highly contested export markets.

What this means is that if the U.S. Ex-Im bank did truly die on June 30, the U.S. export market is likely to shrink exponentially without financing. This loss of financing may hurt small businesses worse, those who rely on the bank for their overseas transactions. In fact, significant percentages of the bank’s finances go to small businesses with 164,000 jobs created in 2014 alone. So the facts are pretty clear that without the U.S. Export-Import Bank American businesses and jobs are at stake. Surely Congress must understand that?

It is critical that our country support the U.S. Ex-Im bank for its importance to American businesses, both large and small, in places like Oklahoma and beyond.

We cannot let party politics affect our financial future negatively. If U.S. industry wants a better future for markets overseas, the U.S. Ex-Im Bank must have its life span extended.

And oh by the way, the best part is that it won’t cost taxpayers a thing. When do we ever get that good of a trade?

Bankruptcy issues from the creditor perspective

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on July 16, 2015.


Gretchen M. Latham’s practice focuses on representing creditors in foreclosure, bankruptcy, collection and replevin cases.

Gretchen M. Latham’s practice focuses on representing creditors in foreclosure, bankruptcy, collection and replevin cases.

By Phillips Murrah attorney, Gretchen Latham

During a bankruptcy case, we often hear about the debtor perspective. Whether due to unfavorable market conditions or poor planning, the result is financial hardship that inhibits a borrower from completing a loan agreement.

On the other side is the creditor, a lender that supplied funding and would like to recover as much of the investment as possible. Legal issues from the creditor perspective differ from that of the debtor. Some typical creditor-related issues include:

Standing to lift a stay

When a bankruptcy is filed, the debtor gets the benefit of an automatic stay preventing collections activities by the creditor. To enforce a security interest, the creditor can request to lift the stay.

More frequently, given recent rulings by the Oklahoma Supreme Court in foreclosure matters, debtors challenge the creditor’s right to even enforce the security interest. Thus, the result is the debtor seeks the stay to remain in place. Creative debtor attorneys are now making an attempt to use the state Supreme Court’s reasoning in bankruptcy court as well.

Timely execution of the statement of intention

There is some case law holding when debtors fail to timely perform their stated intent, the stay is lifted. When this happens, it is appropriate for a lender to file for relief from the stay and cite these cases as legal authority for the request.

Appropriate value for vehicles in a Chapter 13

A Chapter 13 “reorganizes” debt and allows the debtor to make one monthly payment to a trustee, who then disburses payment to the creditors. When a vehicle loan is involved, lenders are seeing frequent attempts to cram down the vehicle’s value in order to pay less. A savvy creditor will know how and when to object to this type of plan treatment.

Adequate protection payments in a Chapter 13

Often, it takes months for a Chapter 13 plan to confirm. For the creditor, this presents the problem of not receiving payment on their loan for a significant amount of time. The remedy is to seek an order of adequate protection, which will direct the trustee to make a pro rata payment to the creditor pending confirmation of the plan.

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.

 

Attorney Monica Ybarra featured in The Journal Record

Monica thumb

Monica Y. Ybarra is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of commercial litigation matters.

Phillips Murrah attorney Monica Y. Ybarra was featured in an article in The Journal Record titled, “Raising the bar: Law firm success includes developing talent, not just hiring the best.”

The article is about hiring practices within law firms:

OKLAHOMA CITY – Cultivating excellence at a law firm goes beyond hiring smart talent. Experts said developing legal leaders is about recruiting and molding well-rounded attorneys.

“The most successful firms that I’ve seen have exposed their associates to a variety of different aspects within the firm,” said Patrick Fuller, a former legal consultant. “It’s having a strong on-boarding process that incorporates the new attorney into the firm on a variety of different matters.”

The portion that features Monica is below:

Attorney Monica Ybarra, who was hired a year ago at Phillips Murrah, said she was drawn to the firm because of its size and culture.

“As a brand-new person coming out of law school who doesn’t know anything, that’s very attractive to me because I feel like I can learn from experts who know what they are doing,” Ybarra said.

Ybarra said she believes it’s important to work in an environment where she is able to learn from experts about many types of law and where she feels comfortable asking questions.

“Here I feel like everyone just works together as a team,” she said. “It wasn’t like that in other firms where I worked at.”

Ybarra said guidance from her supervising attorney has helped her progress and gain experience in her areas of interest.

Click here to see the entire article at JournalRecord.com.

In the face of industry uncertainty, proactively protect assets and family wealth

This article was published in OIPA Wellhead, a publication produced by Oklahoma Independent Petroleum Association and distributed to its membership.

Worried about the future? Take a proactive look at asset protection planning, family wealth preservation trusts

By Elizabeth K. Brown and Mike McDonald

brown-elizabeth-portrait

Liz Brown is a director at Phillips Murrah, P.C., where she has practiced for most of her legal career. Liz is primarily a tax and transactional lawyer with a special emphasis in the energy industry.

For those of us who lived in Oklahoma during the 1980s, it may feel a little like deja vu all over again.

While the Oklahoma economy is more diversified than it was in the 1980s, our State’s overall well-being is still tied heavily to the health of the oil and gas industry.

As a whole, our industry is much stronger and more financially sound than it was in the 1980s. But, if oil prices remain where they are now, or drop lower, difficult times may be ahead for all Oklahomans, but especially for energy producers and service companies.

Those of us who are concerned about the potential impact of this recent downturn and want to take steps to minimize any resulting financial hardship should take a serious look at asset protection planning.

Asset protection planning typically incorporates a wide range of techniques accepted under Oklahoma and bankruptcy law to shield assets from the claims of creditors.

The key to a solid asset protection plan is to establish the plan before a financial crisis is on the horizon, since transfers made with the intent to hinder, delay or defraud creditors or when the transferor is insolvent can be attacked and possibly invalidated. One of the asset protection planning tools available under Oklahoma law is the Family Wealth Preservation Trust, created under the Oklahoma Family Wealth Preservation Trust Act passed in 2004. This unique but little known Oklahoma law permits a person to transfer Oklahoma assets to a revocable “Preservation Trust” and protect those assets from claims of that person’s creditors.

To qualify as a Preservation Trust, the trust must meet the following requirements:

  • The Trust must be established by an individual (the “Grantor”);
  • The Trust must have as a trustee or co-trustee an Oklahoma bank or trust company — one that is chartered under Oklahoma law or is a nationally chartered bank or trust company that has a place of business at a physical location in Oklahoma;
  • The beneficiaries may only be certain “qualified beneficiaries” — the grantor’s spouse, the lineal ancestors and descendants of the Grantor or of the Grantor’s spouse, qualified charities and trusts for the sole benefit of qualified beneficiaries (note that the Grantor is not eligible to be a beneficiary);
  • A majority in value of the assets of the Preservation Trust must consist of “Oklahoma assets” — stocks, bonds, and ownership interests in Oklahoma-based companies, bonds issued by the state of Oklahoma or an Oklahoma governmental agency, accounts maintained with an Oklahoma-based bank, and real estate and mineral interests located in Oklahoma; and
  • The Trust Agreement must provide that the income produced by its assets is subject to Oklahoma income tax.

Until last year, there was a $1 million cap on contributions to a Preservation Trust. Effective Nov. 1, 2014, however, the Oklahoma legislature lifted the cap so that the Act now exempts all trust assets held in a Preservation Trust from attachment or execution to satisfy a judgment against the Grantor. This recent amendment eliminating the cap makes the Preservation Trust a much more attractive asset protection planning tool since now all assets in a Preservation Trust, regardless of value, are protected from claims of the Grantor’s creditors.

The most unique feature of the Preservation Trust is that the trust agreement can provide that the Preservation Trust can be revoked or amended by the Grantor at any time. This power of revocation or amendment allows the Grantor to retain ultimate control over the assets transferred to the Preservation Trust. Until the Act was passed, Oklahoma law did not allow a Grantor of a trust to set up a revocable trust and protect the assets in trust from the claims of the Grantor’s creditors. As a result, creditors could easily reach assets held in a revocable trust to satisfy their claims against the Grantor. Now, however, as long as the assets are held in the Preservation Trust, those assets are not subject to the claims of the Grantor’s creditors even though the Grantor has the power to revoke the Preservation Trust at any time.

Many energy companies that are owned and operated by Oklahoma producers are “Oklahoma-based companies” and thus suitable assets for transfer to a Preservation Trust. An Oklahoma-based company is a corporation, limited liability company, limited partnership, limited liability partnership or other legal entity formed or qualified to do business in Oklahoma that has its principal place of business in Oklahoma. The most problematic part of the Act seems to be the requirement that an Oklahoma bank or trust company serve as trustee or co-trustee of the Preservation Trust, since the fees of the corporate trustee increase the associated costs.

A typical asset protection plan for an Oklahoma oil and gas producer could, for example, involve the Grantor setting up a Preservation Trust and transferring equity interests in the Grantor’s Oklahoma-based business to the Preservation Trust. Alternatively, the Grantor could set up a new limited liability company (“Newco”) funded with Oklahoma marketable securities or deposit accounts, then transfer a part or all of the membership interests in Newco to the Preservation Trust. By doing so, the Newco membership interest owned by the Preservation Trust would be protected from the claims of the Grantor’s creditors.

If the Preservation Trust is set up in accordance with the Act (and subject to the provisions of the Uniform Fraudulent Transfer Act under which creditors, in certain instances, can attack asset transfers), any assets that are held in the Preservation Trust, including the stock or other equity interests in the Oklahoma based business, will not be subject to the claims of the Grantor’s creditors so long as a majority in value of the assets are Oklahoma assets. Even if the Preservation Trust owns some assets that are not Oklahoma assets, those assets also would still be protected as long as the majority in value of the assets in the Preservation Trust are Oklahoma assets.

In our industry, we have certainly weathered economic storms before and no doubt we will weather this one as well. While we are all hopeful that oil prices will recover in the short term, none of us have a crystal ball. Therefore, it is smart to consider taking some defensive moves now, including developing an asset protection plan possibly with a Preservation Trust. If you set up a Preservation Trust and the worst-case scenario develops, the assets in the Preservation Trust will be protected from the claims of your creditors. On the other hand, if and when the skies clear and commodity prices rebound, you can simply revoke the Preservation Trust and go back to business as usual.

Ask yourself…what do you have to lose?

About the authors:

Elizabeth K. Brown is a shareholder in the law firm of Phillips Murrah, P.C. She is also CEO of The Gloria Corporation, an independent oil producer based out of Ada, and a member of the Board of Directors of the Oklahoma Independent Petroleum Association and the National Stripper Well Association.

Mike McDonald, owner of Triad Energy in Oklahoma City, has served as chairman of the OIPA and president of the Domestic Energy Producers Alliance. He holds a juris doctor from the University of Mississippi and a master of laws degree from New York University.

 

Director Bob Sheets featured in article about nursing home arbitration

Robert N. Sheets is a commercial litigator, director and one of the firm’s founders. He represents construction and energy industry clients in a broad range of real estate, land use and business litigation matters.

Robert N. Sheets is a commercial litigator, director and one of the firm’s founders. He represents construction and energy industry clients in a broad range of real estate, land use and business litigation matters.

Phillips Murrah Director Bob Sheets featured in the media as a source in a story by Oklahoma Watch investigative journalist, M. Scott Carter.

The story, titled “Price of Admission to Nursing Homes: No Lawsuits,” is about nursing homes in Oklahoma that require arbitration agreements as part of the admission process.

From the article:

Oklahoma City attorney Robert Sheets, who specializes in business litigation, said arbitration agreements prevent most appeals from going to courts and can prove less expensive for both parties.

“The idea is to have a method of resolving disputes that is not as formal as the court and not as expensive,” he said. “The theory is there won’t be as much discovery, which can be more expensive, and once an arbitrator makes a decision, it’s usually final. There is no appeal.”

Originally published on the Oklahoma Watch website, the article was picked up by both Oklahoma metro’s daily newspapers and by the Norman-based NPR station. See below for links:

Oklahoma Watch 
The Oklahoman
Tulsa World
KGOU/NPR

Oklahoma Watch is a non-profit corporation that generates original content that is distributed by media partners around the state and through the Oklahoma Watch website and social media accounts. They collaborate with other news outlet and focus on data-driven journalism and other enterprising reporting that complements coverage in other Oklahoma and regional media.

 

Affordable Care Act changes affect physicians

Gavel to Gavel, appears in The Journal Record.
Originally published in The Journal Record on Apr. 22, 2015.
View G. Calvin Sharpe’s attorney profile here.


GCS 300w_web

G. Calvin Sharpe is a trial attorney who represents a diverse list of business clients in matters relating to medical malpractice, medical devices, medical licensure boards,products liability, insurance and commercial litigation.

The Affordable Care Act brought fundamental changes to the American health care system.

One called evidenced-based care significantly affects how physicians are paid. I’ve represented many providers in malpractice actions and before professional licensure boards, but now I must also be as proficient in regulatory law.

The ACA’s value-based care replaces traditional fee for service. In the traditional model, a patient visit is followed by a bill paid by the patient or insurer, and providers are rewarded for a higher-volume practice. One of the stated goals of the ACA is to eliminate care and decision making that could be financially motivated.

The value-based pay-for-performance compensation model that reimburses physicians based upon achievement of measurable objectives or metrics is replacing that traditional model. Evidenced-based guidelines focus on outcomes and will seek to eliminate unnecessary procedures, and compensation will be based upon performance.

Examples would be patient readmission following hospital discharge and so-called never events, defined by the National Quality Form’s list of Serious Reportable Events as events that should never have happened.

Changes in evidenced-based care practice guidelines and how medical malpractice claims are brought generally attempt to measure a provider’s performance against a legal standard. This means the performance is evaluated according to that of a prudent professional in the same or similar circumstances.

Read the entire column here.

Possible summer effect on gas prices

Jim Roth’s Friday column, Earth Business, appears in The Journal Record.
Originally published in The Journal Record on Apr. 17, 2015.
View Jim Roth’s attorney profile here.


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

Most consumers have assumed for years that gasoline prices will increase in the summer. New research from the Center for Economic Analysis suggests that this perception is false, and that Midwestern gasoline prices do not tend to increase in the summertime when motorist hit the highways.

The center has studied weekly gas prices since 1995 to isolate summertime gasoline prices. They utilized data for two gasoline formulations, including the price of conventional regular unleaded and reformulated regular unleaded.

In the late summer of 2014 gasoline prices started to drop, and they kept dropping, to lows not seen since early 2009. Economists now expect these suppressed prices to remain through 2015.

Both AAA ad GasBuddy.com recently released statements saying the national average price for a gallon of gas is expected to be $2.35 from Memorial Day through Labor Day, during the summer driving season. The Energy Information Administration projection put summer gasoline prices at $2.45 per gallon.

The latest AAA Fuel Gauge Report indicated the national average price for regular unleaded gasoline has fallen for 24 of the past 30 days, after reaching a peak-to-date price for 2015 of $2.46 per gallon on March 7.

See the rest of the column here:

PM attorneys publish Oklahoma Product Liability Law article in Bar Journal

By Chris Pearson, Thomas G. Wolfe, Lyndon Whitmire and Cody J. Cooper

Bar Journal CoverThe Oklahoma Bar Association published an update to an article “An Overview of Oklahoma Product Liability Law” in the April 18, 2015 edition of the Oklahoma Bar Journal.

 

SCHOLARLY ARTICLE: An Overview of Oklahoma Product Liability Law

Any discussion of Oklahoma product liability law must start where Oklahoma product liability law started, with the Oklahoma Supreme Court’s 1974 opinion in Kirkland v. General Motors Corp.

In Kirkland, the plaintiff was driving her friend’s new Buick Opel on Interstate 44 in Tulsa County.

It was alleged that the driver’s seat back suddenly collapsed, leaving her unable to control the car. As a result, her vehicle hit the highway median and then struck an oncoming vehicle head-on.

Approximately one month after the accident, General Motors (GM) issued a recall letter to all owners of Buick Opels concerning the “seat back adjustment mechanism.”

…read the article excerpt here.

Phillips Murrah President and Director, Tom Wolfe co-authored the original article with former colleague, Chris Pearson, who is now a partner at the Law Firm of Germer, Beaman & Brown in Austin.

The first update, which garnered a 2003 Maurice Merrill Golden Quill Award from the Oklahoma Bar Association, featured Phillips Murrah Litigation Practice Group Leader and Director, Lyndon Whitmire and Ruth Anderson Gates, who is now senior in-house counsel at Nissan North America Inc.

The article, now in its second update, includes contributions from Phillips Murrah Associate Attorney, Cody Cooper.

See the full magazine here: http://www.okbar.org/Portals/13/PDF/OBJ/2015/OBJ2015Apr18_merged.pdf

In the news: Director Terry Hawkins hired to help with school finance projects

Terry L. Hawkins is a director of the firm and is chair of the Public Finance Practice Group where he has more than 33 years experience in municipal finance projects.

Terry L. Hawkins is a director of the firm and is chair of the Public Finance Practice Group where he has more than 33 years experience in municipal finance projects.

Phillips Murrah Director Terry Hawkins was featured in the Claremore Daily Progress newspaper in relation to $2.4 million in building bonds being issued to build and renovate schools and related projects.

In the story, “School board sets date for sale of building bonds,” reporter Mark Friedel wrote:

The $2.4 million in building bonds is part of the $42.645 million bond issue passed by school district voters in November 2007 for the construction of Catalayah Elementary and the new high school gymnasium, as well as Lantow Field additions and other renovations throughout the district.

The bonds will become due in the amount of $600,000 two years from their date and $600,000 annually each year following until paid.

Board members approved the employment of Terry L. Hawkins with Phillips Murrah P.C., of Oklahoma City, as bond counsel for the issuance of bonds.

You can see the whole story here: http://www.claremoreprogress.com/news/school-board-sets-date-for-sale-of-building-bonds/article_d853adf2-e382-11e4-a9fe-2f92207c5558.html

Resolution of the “sustainable growth rate” issue

By Mary Holloway Richard.  View her attorney profile here.


medicare

Senate Passes the bill repealing Medicare’s sustainable growth rate (“SGR”) formula just in time to avoid the looming cuts (21%) to physician payments.

(See HERE our ongoing coverage leading up to this.)

Congressional members are purportedly patting themselves on the back as the bill goes to the President who has given assurances that he will sign it.

In the past weeks we have discussed possible amendments, but none of the amendments are included in the final legislation approved by the Senate.  The bill extends the Children’s Health Insurance Program (“CHIP”) for two years.  The bill also provides physician incentives sure to impact both reimbursement and physician contracting include incentives to shift more patients to risk-based payment models.  For physicians who are successful in this effort, as interpreted by CMS, the reimbursement will increase in 2019.

Approximately one-third of the cost of this package is offset by financial cuts to providers and increased costs to wealthier Medicare patients.  The bill also includes additional funding for community health centers and a six-month delay in the enforcement of the payment policy for short inpatient stays known as the “two midnights” rule.

Mary Holloway Richard is recognized as one of the 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. She also has significant experience in representing providers in regulatory matters.

Phillips Murrah Director Jim Roth buzzes hair for St. Baldrick’s Foundation

Phillips Murrah Director Jim Roth

Phillips Murrah Director Jim Roth

Phillips Murrah Director Jim Roth went under the shears in Miami, Fla. on Saturday, April 11 to have his head shaved in support of St. Baldrick’s Foundation.

Jim set a personal goal of raising $2,000 from his friends, which he far exceeded. He dedicated his campaign to Fletcher Vines, a child who lost his battle to cancer.

Jim said in a Facebook post:

“Thank You Generous Friends for your awesome help raising over $3200 for St. Baldrick’s Foundation’s efforts to cure childhood cancer. Because of you, I hit the barber today and did the Baldrick’s shave and you helped bring hope to children like my friend Fletcher and too many others! Thank you!”

Jim’s campaign has gone on to raise $3,705. Donations can still be made – click here to make a contribution to this worthy cause.

St. Baldrick’s works closely with leading pediatric oncologists to determine the most promising research to fund and create funding priorities to make the greatest impact for children with cancer. Read more on their website here.

(UPDATE) What does all of the talk in the media about the “SGR” mean for physicians?

By Mary Holloway Richard. View her attorney profile here.


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. She also has significant experience in representing providers in regulatory matters.

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. She also has significant experience in representing providers in regulatory matters.

(Updated 4/14/15)

What does all of the talk in the media about the “SGR” mean for physicians?

One of the important issues identified in the health care industry “crisis” and reform is the cost of providing services.  Focus has been on shifting payment from charges for visits and procedures to reimbursement according to certain metrics such as outcome and quality.  In addition, a ceiling on physician reimbursement has been much debated.  The Affordable Care Act (“ACA”) included the Medicare sustainable growth rate (“SGR”) formula for doing just that, although the SGR was actually created as part of the 1997 deficit reduction law designed to contain federal spending  by tying physician payments to an economic metric or growth target.

On Tuesday, March 24, 2015, Democrats and Republicans revealed the result of their negotiation and cooperation to offer an alternative to Medicare’s SGR formula.  The proposal calls for repeal of the SGR formula.  House Speaker John Boehner (R-OH) and Minority Leader Nancy Pelosi (D-CA) have arrived at this compromise to strengthen the financial picture for Medicare and to end the continuing threat of payment cuts to physicians.  According to the Association of American Medical Colleges, although medical school applications are up slightly since 2011, the United States faces a physician shortage of between 46,000 and 90,000 by 2015.  www.aamc.org/newsroom/aamcstat/,a=427828.  The economic incentives to the professional are an integral component in stabilizing the health care system in this country.  The House overwhelmingly approved the proposal on Thursday, March 26, 2015.

What does the SGR mean to physicians?  There is still great divergence between the Boehner (repeal Washington’s most famous gimmick) and Pelosi (Medicare payments for doctor services to seniors facilitating continuation of physician-patient relationship) perspectives.

What does the bipartisan proposal mean to physicians?  This will halt the cut that was to be implemented on April 1, 2015.  When the ACA was signed five years ago, that seemed like a long time away but was nonetheless worrisome.  It puts in place a 21.2% reduction in Medicare payments making it virtually impossible for many providers to support the operations of their practices or clinics.

This proposal is very similar to the one proposed in 2014 , and it includes a system of rewarding physicians based upon quality standards rather than output or number of services provided and fosters a focus on coordination of care, prevention and quality and key cost containment strategies.  All of these elements are part of a new accountability that is the cornerstone for allowing payment increases for doctors for the next five years during this period of transition.  In addition, if approved by the Senate, the bipartisan proposal would extend the Children’s Health Insurance Program (“CHIP”) with full funding through September 30, 2017.  It also provides for $7.2 billion funding for community health centers.  The cost of the House package is $200 billion

On Friday, March 27, 2015, the Senate adjourned without approving the Doc fix.  It apparently will take up the issue upon its return in mid-April.  In the meantime, CMS is poised to delay processing provider claims as of April 1, 2015, when the 21.2% cut was to go into effect.  However, CMS is warning that the cut will go into effect if the Senate fails to pass an SGR fix by April 15.  One complication may exist in the form of legislation introduced by a bipartisan Senate team, Senators Cardin (D-MD) and Collins (R-ME), to permanently repeal the caps on how much the program spends on rehabilitation therapy.  This unresolved issue may arise as an amendment to the legislation to be considered after the break and provides a reminder of how single issues or senators can ultimately frustrate the passage of legislation that has support from both parties.  Others in the Senate are critical that spending cuts will offset only a portion of the costs.  Conservatives have characterized this element of the plan as irresponsible.  The AARP is focused on increased costs to Medicare beneficiaries and will continue to lobby for changes to lower these costs.

Democrats may want amendments to extend the CHIP program four years, to remove the Hyde Amendment (abortion-related language), and to repeal the Medicare therapy cap.  Any amendments would, of course, send the legislation back through the House, and this appears to be an unattractive alternative to all concerned because of the remarkable support for this resolution from both parties.  A perhaps more significant complication is presented by the report issued last week by the Office of the Actuary of the Centers for Medicare and Medicaid Services (CMS) indicating that physician payments in which the 0.5% increases in Medicare payments over the next four years would come to a halt in 2020.  In that year a two-tiered system is phased in which is designed to encourage physicians to shift greater numbers of patients into risk-based models.  For physicians continuing to work within the traditional payment system, but who are scoring well on the quality metrics, remuneration will be awarded from a separate appropriation.  After 2024, the alternative payment track would increase annually by 0.75% which will be three times greater than the rates of other physicians. CMS is predicting that 2024 is the time when there will be a shortfall and payments will lag behind inflation.

On the one hand, Congress is fed up with required annual intervention for the past seventeen years to avoid scheduled cuts to physicians.  On the other hand, Congress is forced to rely on estimates to predict costs which places the federal government at risk of future payments not keeping up with the either the chosen formulae or with inflation.

(UPDATE) A look at the controversial Affordable Care Act on its fifth anniversary

By Mary Holloway Richard. View her attorney profile here.


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. She also has significant experience in representing providers in regulatory matters.

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. She also has significant experience in representing providers in regulatory matters.

(Updated 4/7/15)
President Obama has taken the occasion of the fifth anniversary of the signing of the Affordable Care Act (“ACA”) to characterize continued activities on the Hill to repeal it as renegade special interest activities. The ACA continues to be a subject of debate both in terms of its accomplishments—how many are newly covered and how much will be saved—and in terms of its public support.

While the Associated Press reported on March 23, 2015, that public support was down 5% since its passage, as one who daily writes and advises health care clients on matters related to the ACA, I can say with certainty that the depth and breadth of increased regulation spawned by the ACA are changing the nature of the system.

Those changes include responsive movement toward integrated health systems, mergers and affiliations; transition from quantity- to quality-based reimbursement; the relaxation of HIPAA standards in some respects and its tightening in others in the context of EHR transformation; and increased direct and indirect costs to employers as a result of new responsibilities.

Nearly fifty changes have been made to the ACA as of March 2, 2015, and this suggests a continuing need for providers, employers and business owners to remain informed and responsive to the moving regulatory compliance target.

On Monday, March 30 the Supreme Court rejected a new challenge to the Affordable Care Act (“ACA”)  that targeted the Independent Payment Advisory Board (“IPAB”), a 15-member government panel which has been characterized as a “death panel” because of its intended role in cutting Medicare costs.   The IPAB was to convene when the target growth rate for Medicare (3.03%) is exceeded.  However, the growth rate is 1.15% according to CMS, and so the administration has not nominated any panel members.  In declining to take up the case, the Supreme Court left undisturbed the 9th US Circuit Court of Appeals in San Francisco dismissal of the lawsuit. The proponents of the ACA are calling this a win.  Coons v. Lew, No. 14-525.   Certiorari was denied by the United States Supreme Court on March 30, 2015.

Firm supports Positive Tomorrows at Cork & Canvas event

Phillips Murrah Directors Marc and Nicholle Jones Edwards.

Phillips Murrah Directors Marc and Nicholle Jones Edwards.

Phillips Murrah sponsored Positive Tomorrows’ annual Cork & Canvas on Thursday, April 2 at the Oklahoma City Farmers’ Public Market.

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.

The event includes an evening of food, drinks, silent and live auctions featuring art by Positive Tomorrows’ students, and live entertainment, and typically attracts more than 500 philanthropic leaders from the community.

Learn more about Positive Tomorrows here.

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.

 

Wind gets caught in political volley

Jim Roth’s Friday column, Earth Business, appears in The Journal Record.
Originally published in The Journal Record on Feb. 13, 2015.
View Jim Roth’s attorney profile here.


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

Oklahoma’s cleanest and cheapest form of electricity comes from its own wind projects. Although our utilities don’t operate under a mandate, or what’s known as a renewable energy portfolio standard, like many states, we have a goal calling for 15-percent renewable energy by 2015. According to the Corporation Commission, our state enjoyed 18.42 percent of its energy from eligible renewable energy resources in 2013. That trend continues. With the American portfolio of renewable energy growing and utility portfolios further diversifying, wind energy produced 14 percent of American electricity in 2013 and early 2014. Turbine technology is improving; wind is more available to generate electricity than ever. We’re on the map as the sixth-largest state for wind power. The future of renewables here seems very promising.

Yet a few case studies address what can happen when political winds change and politicians begin to push policies choosing coal at the expense of wind development.

Investments in the Australian market for renewable energy face a very stark contrast from where the country was headed, due in large part to the changing political winds. The Australian Renewable Energy Target is a key policy established in 2001 designed to ensure that 20 percent of the country’s electricity comes from renewable resources by 2020. Since the RET legislation in 2001, pro-renewable energy activist groups across Australia have raised substantial investments and awareness for the benefits of renewable energy. However, the fate of Australia’s RET has been placed in jeopardy by political leaders.

Reports show that investment in large-scale renewable energy projects have plummeted over the past year. While investment in global renewable energy is up by 16 percent, Australian numbers have dropped by 88 percent. Australia Prime Minister Tony Abbott and his pro-coal agenda have created serious ambiguity in federal government’s position on renewable energy policy and investors are leery. Many investors and developers are considering either downscaling or leaving Australia altogether. The downward trajectory will undoubtedly continue for years to come. Many Australian developers are looking to invest in the United States and other global renewable energy markets. A spokesperson for General Electric, an investor in renewable energy projects in Australia, said future investment will only occur once investor confidence in the policy environment is restored.

This sounds good for America and perhaps for Oklahoma, but only if our state and country continue to welcome and nurture this growing industry. It’s arguable that similar anti-renewable efforts in some states may damage the overall contributions to America’s growing portfolio of renewable energy resources. A reversal of policies could have the same chill on investments, steering billions of dollars to neighboring states or regions, as is happening with Kansas.

In 2009, Kansas legislators passed an RPS requiring state utilities to capture 20 percent of their electricity from renewables. Legislative efforts and debates last year failed to repeal this law, but newly re-elected Gov. Sam Brownback is beginning to sound more like Abbott than a governor of a wind-rich state, with no coal industry to speak of. Recent legislation proposed by state Rep. Ken Corbet, R-Topeka, seeks to reduce the RPS to 10 percent in 2015 and repeal the RPS statute by July 1, 2016.

Let’s hope that Oklahoma’s political leaders don’t forsake our state’s clean energy promise by following the lead of Kansas or Australia, or even fostering an anti-investment environment such that our state faces the same loss or potential loss beginning to appear elsewhere. Stay tuned to this legislative session.

SCOTUS order to stay executions doesn’t change anything

shutterstock_lethal-injectionThe Supreme Court of the United States stay order blocking three pending executions in Oklahoma, handed down Jan. 28, doesn’t actually change anything, said Phillip Murrah Director and one of the firm’s founders, Robert N. Sheets.

While there is much interest and coverage of the motion, no decision has been made that will change how death sentences are carried out – other than a mandate to remain in place for the time being.

While the occurrence is quite interesting, it is simply an order to halt executions until the highest court of the land has a chance to hear arguments and make a decision.

From The Supreme Court of the United States on Jan 28, 2015: Application (14A796) granted by the Court. Respondents’ application for stays of execution of sentences of death presented to Justice Sotomayor and by her referred to the Court is granted and it is hereby ordered that petitioners’ executions using midazolam are stayed pending final disposition of this case.

Wednesday’s order doesn’t address the death penalty. The State of Oklahoma is still able to execute condemned prisoners by any other means previously deemed constitutional, Sheets noted. The Stay also doesn’t make a determination about the controversial decision to use the drug midazolam as lethal injection agent during the execution process. It doesn’t determine anything about constituent ingredients. It doesn’t address process or propriety. It doesn’t make any kind of judgment, one way or the other.

What happened here in Oklahoma is simple – Oklahoma attorney general Scott Pruitt asked earlier this week for the stay, according to a report by The Associated Press:

“Rather than stop the executions himself, Oklahoma Attorney General Scott Pruitt took the unusual step of asking the justices for a stay. Oklahoma wants the right to resume executions if it finds a different suitable drug.  Pruitt said in a statement: “It is important that we act in order to best serve the interests of the victims of these horrific crimes and the state’s obligation to ensure justice in each and every case. The families of the victims in these three cases have waited a combined 48 years for the sentences of these heinous crimes to be carried out.”

The United State Supreme Court, defense attorneys for the condemned inmates and the Oklahoma Attorney General agreed that the state should wait on these executions until final disposition of the case. The executions are put on hold until the Court can hear Richard E. Glossip v. Kevin J. Gross.  Richard Glossip was the next inmate scheduled to be put to death

SCOTUS scrutiny: The drug and how it is administered

The Supreme Court will hear Glossip v. Gross in April and issue a decision in the summer. The focus of the case is the drug, midazolam, and whether it causes pain and suffering in the inmate. The drug is part of a drug combination used in the state’s lethal injection process. Last year, Oklahoma received worldwide attention after an execution using the same drug when terribly wrong.

During the execution process, midazolam (Midazolam Hydrochloride) is administered to the inmate, first, as a sedative. That injection, according to The New York Times, “was to be followed by injections of vecuronium bromide, a paralyzing agent that stops breathing, and then potassium chloride, which stops the heart.”

Phillips Murrah attorney, Mary Holloway Richard, a pioneer in healthcare law who has practiced in the area of clinical research and regulatory law for many years, said that the drug, itself, isn’t necessarily the problem. Rather, how and under what conditions it’s administered could be more at issue.

“To eliminate some of the mystique, this is the drug commonly known, and used, as Versed,” she clarified. “This drug is used in many venues and even for many different types of patients, including pediatric patients.”

A significant issue is raised by the exact recipe of the drug combination and the amount of Versed used, she added. “I keep seeing that it must be titrated properly.”

In other words, the dosage amount and duration of administration is very important to successful effect. Oklahoma has a three-drug protocol.

Also implicated is the manner in which the drug is administered. After the Clayton Lockett execution problems, Oklahoma released a report identifying insufficient training of those administering the drug and communication between prison and support staff, as well as a lack of contingency planning on the part of the Department of Public Safety.  The report also points to difficulties in starting the IV in Mr. Lockett.

More info: http://www.deathpenaltyinfo.org/state-lethal-injection

 

Phillips Murrah announces new Directors for 2015

2015 Phillips Murrah new directors

From L: Nicholle Jones Edwards, Jennifer L. Miller, Jason M. Kreth and Candace Williams Lisle

Tom Wolfe, managing director at Oklahoma City law firm, Phillips Murrah, announced that attorneys Nicholle Jones Edwards, Jennifer L. Miller, Jason M. Kreth and Candace Williams Lisle have been elected by the firm’s shareholders as new directors. Their appointments were made effective January 1, 2015, bringing the total number of directors in the firm to 32.

Edwards’ law practice focuses on family law, general civil litigation and appellate matters. Her family law practice includes litigation, complex custody issues and valuation issues.

Miller practices in the firm’s Labor and Employment Practice Group representing both employers and employees in a variety of discrimination and employment disputes. Her practice also involves the representation of national and international corporations in intellectual property disputes.

Kreth is a commercial litigator who represents financial institutions, handling matters such as foreclosures, bankruptcy and lender liability litigation. He also represents clients in a range of real property disputes.

Lisle is a litigation attorney with an emphasis in the representation of financial institutions in mortgage and commercial loan litigation and lender liability.