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Journal Record awards Phillips Murrah law firm top Reader Rankings honors

PM Reader Rankings attendees 2019

Phillips Murrah attorneys and executive leaders attend The Journal Record’s Reader Rankings Gala where the Firm won in five categories.

Phillips Murrah is proud to announce our Firm received top honors in five of The Journal Record’s Reader Rankings categories.

“It’s an honor to be recognized in our community for the challenging work our attorneys do every day,” Marketing Director Dave Rhea said.

Phillips Murrah received awards for Best Civil Litigation Firm, Best Family Law Firm, Best Intellectual Property Firm, Best Malpractice Firm and Best Overall Leadership at Reader Rankings Gala on June 20.

“We take pride in providing exceptional legal services while striving to provide a positive, balanced atmosphere for our attorneys and staff,” said Thomas G. Wolfe, Phillips Murrah President and Managing Partner.

The Reader Rankings program recognizes and celebrates the achievements of Oklahoma businesses and entrepreneurs.

Journal Record readers nominate and vote for the best businesses and organizations across a wide variety of categories encompassing the areas of construction and design, entertainment, finance/accounting, general business, health care, higher education, hospitality, legal services, real estate and information technology.

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

Hasenfratz inducted into American College of Real Estate Lawyers

Sally Hasenfrats

Sally Hasenfratz is a Director in the firm. She is a veteran real estate and transactional attorney with over 25 years of experience.

Phillips Murrah is proud to announce Director and Shareholder Sally A. Hasenfratz has been elected as a Fellow of the American College of Real Estate Lawyers.

Admission to ACREL is by invitation only, following a rigorous screening process and significant peer review. Members are elected based on recognition locally and nationally as a distinguished real estate practitioner, high standards of professional and ethical conduct, and contributions within both the legal and non-legal communities to the improvement of the practice of commercial real estate law.

Sally is the leader of the Firm’s Real Estate Practice Group, where she focuses her practice on the acquisition, development, leasing and financing of all types of commercial real estate. She is a co-founder and past president of CREW-OKC, Inc., which is the local chapter CREW Network, a global organization formed to transform the commercial real estate by advancing women in the industry.

Sally has receive a number of other honors such as being named in Chambers USA Guide to America’s Leading Lawyers in Real Estate, The Best Lawyers in America (real estate, construction, land use and commercial transactions), and Super Lawyers (real estate, top 25 women lawyers in Oklahoma, top 50 lawyers in Oklahoma).

She brings to her transactional practice an LL.M. degree in taxation, which allows her to strategize with her clients from a broad view of their projects, helping them to plan, structure and execute each piece of the deal to maximize business objectives.

For more information about ACREL, visit their website here.

Director Melissa Gardner featured in article about forced pooling in Oklahoma

Phillips Murrah Director Melissa Gardner is featured in an article published on June 3 at Oklahoma oil and gas industry online resource, Oklahoma Minerals, by founder, Gib Knight. The article, titled “Oklahoma Forced Pooling,” references a Q&A Gardner published in the Oklahoman in August 2017, titled “Forced pooling in mineral land leasing has upsides, downsides.”

From the Oklahoma Minerals article:

Melissa Gardner portrait

Melissa Gardner

Back in August of 2017, Paula Burkes with NewsOK interviewed Melissa R. Gardner who is a Director and attorney at Phillips Murrah P.C., and practices in the Energy & Natural Resources Practice Group. That interview provided some insight into the drawbacks and benefits of Forced Pooling. Here is an excerpt from that interview:

Q: What are the pros and cons of leasing versus being made subject to a forced pooling order?

A: If you choose to sign a lease, you will have the ability to negotiate more of the specifics of the usage of your minerals. You are in a position to get the oil and gas companies to agree to some conditions and special provisions. If you are subject to a forced pooling (as managed by the Oklahoma Corporation Commission), you’re not in a position to negotiate these details.

Second, you can negotiate bonus and royalty costs. If you are subject to a forced pooling order, you’re given three options, being a combination of the prevailing prices in the surrounding areas, with no option to negotiate those prices. In the alternative, if you allow yourself to be subject to the OCC forced pooling order, the applicant is given a shorter time within which it has to commence operations. The average lease is valid for three to five years, whereas the average pooling order is valid for six months to a year, both of which extend after production has been initiated. This keeps your minerals under contract for a shorter period of time.

Additionally, the minerals only are forced pooled as to certain, limited geological formations. If a well is drilled and producing from those zones, your minerals are still open and unleased as to other, non-pooled zones. In the alternative, most leases cover all depths or, at a minimum, from the surface to a certain depth below the surface. Finally, forced pooling orders expire at the end of production. If a producing well is drilled during the first year of a five-year lease and only produces for two years, the lease remains valid, and your minerals remain unmarketable for re-lease, for an additional three years.

To find out more about how forced pooling affects you or your business, you may contact Melissa Gardner by visiting her Attorney Profile here.

Maule to present at nonprofit business seminar

Byrona Maule

Byrona J. Maule is a Director and litigation attorney as well as a member of the Firm’s Labor & Employment and Healthcare practice groups.

Byrona J. Maule, Director and member in the Firm’s Labor and Employment Practice Group, will give a presentation on the current state of human resources on June 4 at a Nonprofit Accounting and Finance Seminar hosted by Arledge & Associates, P.C.

Accounting and finance professionals are invited to attend the seminar which is tailored to address tax and accounting issues specific to the nonprofit sector.

The seminar will cover a wide range of topics including audits, tax law changes and Financial Accounting Standards Board updates. Sessions will also cover employment law issues for nonprofits, donor relations matters and online marketing.

Byrona represents executives and companies in a wide range of business and litigation matters with a strong emphasis on employment matters, ensuring their compliance before various state and federal regulatory boards.

For more information about the seminar, click here.

NewsOK Q&A: Federal income tax challenges for medical marijuana businesses in Oklahoma

Jessica Cory web

Jessica N. Cory represents businesses and individuals in a wide range of transactional matters, with an emphasis on tax planning.

In this article, Oklahoma City Attorney Jessica N. Cory explores the conflict between federal and state law as it pertains to medical marijuana businesses.

What is the primary federal tax issue for Oklahoma medical marijuana businesses?

Jessica Cory, attorney with Phillips Murrah law firm answers: The primary tax issue for Oklahoma medical marijuana businesses stems from the conflicting treatment of the marijuana industry under federal and state law. Although the approval of State Question 788 last summer legalized the use, growth and sale of medical marijuana for state purposes, marijuana remains an illegal drug under the federal Controlled Substances Act. Special tax provisions apply to penalize anything deemed illegal drug trafficking under federal law, including licensed medical marijuana businesses.

What are the specific federal tax burdens a medical marijuana business will face?

Internal Revenue Code Section 280E represents the biggest tax challenge for medical marijuana businesses. Generally, the Internal Revenue Code allows a taxpayer to take a deduction for all “ordinary and necessary” business expenses paid or incurred during the taxable year. Congress has created an exception to this rule in certain instances, however.

One such exception is Code Section 280E, which prohibits a taxpayer engaged in the business of “trafficking in controlled substances” from taking a deduction for ordinary business expenses. Because the federal Controlled Substances Act defines marijuana as a Schedule I drug, Code Section 280E severely limits the types of deductions available to a medical marijuana business.

Although Code Section 280E prevents a marijuana business from taking normal business deductions, it does not bar a business from offsetting its gross receipts with its cost of goods sold (“COGS”). This means a business can at least reduce its potential taxable income by its direct costs of production. However, the Internal Revenue Code has issued guidance strictly limiting the types of costs a taxpayer engaging in a marijuana business can allocate to COGS, to prevent an end-run around Code Section 280E.

Case law supports this narrower interpretation of COGS for the marijuana industry, including prohibiting resellers of marijuana from including any indirect costs — costs other than the price paid for inventory plus any transportation or other necessary acquisition costs — in COGS.

Is there anything marijuana business owners can do to minimize their federal tax burden?

Yes, a tax professional can help marijuana businesses develop strategies for minimizing the impact of Code Section 280E. For example, a tax adviser can help a business differentiate between COGS and business deductions to take full advantage of the COGS offset allowed under federal law. In addition, a tax professional may be able to help a company structure its business to separate out its different activities to avoid having Code Section 280E apply too broadly. It is also essential for marijuana businesses to keep careful records, particularly if the business also engages in additional activities unrelated to growing, processing or selling marijuana.

Has there been any effort in Congress to fix the disparity in treatment under federal and state law?

Members of Congress have repeatedly introduced legislation to exempt marijuana businesses lawfully operating under state law from the parameters of Section 280E. For example, the Strengthening the Tenth Amendment through Entrusting States (“STATES”) Act, which would amend the Controlled Substances Act to protect people operating within the bounds of state cannabis laws, was recently reintroduced. Unfortunately, despite bipartisan support and the backing of several 2020 presidential candidates, the odds are not in favor of passage at this time.

Jessica Cory is an attorney with Phillips Murrah law firm.

Kim Beight Kelly joins Phillips Murrah Dallas office

Kim Kelly Web

Kim B. Kelly

OKLAHOMA CITY (May 13, 2019) – Phillips Murrah P.C. is pleased to announce that Kim Beight Kelly has joined the Firm in its Dallas-based office as an Associate attorney. Kim is a civil litigator who represents individuals and corporations in both federal and state courts. She brings the number of Phillips Murrah attorneys serving the Texas market to fourteen.

Kim is a goal-oriented litigator who advocates for clients through every stage of litigation, from pre-suit negotiations through final resolution. Kim works closely with clients to identify strategic objectives and manage risk at each critical juncture over the life of a lawsuit. She is experienced in defending clients of all sizes in both state and federal courts.

Kim has experience defending major corporations, insurance companies, and small businesses in a wide variety of cases, including product liability, insurance coverage and bad faith litigation, dealership liability, personal injury and wrongful death, and business contract disputes.

Kim is a member of the Texas Bar Association, the Dallas Bar Association, and the Dallas Association of Young Lawyers.

Prior to joining Phillips Murrah, Kim practiced at a law firm in Dallas.


CONTACT:

Phillips Murrah – Dallas Office:
3710 Rawlins Street, Suite 1420
Dallas, Texas 75219

Main: (214) 238-2525
Fax: (214) 434-1370

 

Phillips Murrah law firm names new Director and Shareholder

Cindy Murray Web

Cindy Hastie Murray

OKLAHOMA CITY (May 8, 2019) – Phillips Murrah proudly announces the promotion of Cindy Hastie Murray to a Director and Shareholder for the Firm. Murray’s selection brings the Firm’s total number of Directors to 40.

Cindy is a member of the Firm’s Real Estate Practice Group. She represents individuals as well as privately-held and public companies in a wide range of commercial real estate matters, including purchasing and selling commercial real estate and assisting both landlords and tenants in leasing matters.

“After having been Of Counsel with Phillips Murrah, practicing with my dad in the Norman office for many years, I am absolutely thrilled to have the opportunity to join the many fine attorneys in the Oklahoma City office and look forward to collaborating with them on a daily basis,” Cindy said.

While still in law school, Cindy co-authored The ABC’s of the UCC: Related and Supplementary Consumer Law, ABA 1999 with Professor Frederick H. Miller. She also clerked for the late Justice Marian P. Opala at the Oklahoma Supreme Court in 1999.

Born in Arlington Heights, Illinois, and raised in Oklahoma City and Edmond, Cindy lives in Norman with her family.

Director to present employment law lecture for SMU School of Law

Janet Hendrick

Janet Hendrick is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach.

Janet A. Hendrick, an employment attorney and Director in Phillips Murrah’s Dallas office, will share her insight and expertise with students of Southern Methodist University’s Dedman School of Law later this month.

Hendrick will present on key labor and employment matters for businesses as part of the law school’s Business Law Boot Camp on May 30, 2019.

“I will be teaching the Boot Camp students, who have finished their first or second year at SMU Law School, about labor and employment laws from a business perspective, with the goal of teaching them the different sources and implications of our country’s workplace laws,” she said. “As a SMU Dedman School of Law alum, I am delighted to have this opportunity to share my experience and insight from my years of practicing in this area.”

The Boot Camp is intended to introduce vocabulary, concepts and skills needed to effectively understand how business works so students are able to communicate with and advise business clients, including as regulatory and litigation counsel, according to the law school’s website.

NewsOK Q&A: #MeToo movement reaches merger transactions

Erica K. Halley

Erica K. Halley represents individuals and businesses in a broad range of transactional matters.

In this article, Oklahoma City Attorney Erica K. Halley discusses the “#MeToo” movement and the Weinstein Clause as they relate to requirements in buying and selling companies.

What is the #MeToo movement and how did it start?

In October 2017, The New York Times published an article detailing decades of sexual misconduct by film producer Harvey Weinstein. The scandal ultimately left Weinstein disgraced, his film studio bankrupt and victims of sexual harassment and assault emboldened. The #MeToo movement ensued, wherein victims tweeted (or otherwise went public with) their experiences, which highlighted the prevalence of such misconduct in the workplace. As a result, the chickens have come home to roost for many predators in power. This means, among many other things, companies must adapt and prepare for the potential PR and legal nightmare that necessarily follows misconduct allegations against employees, particularly those having influence over compensation, promotions/demotions and workplace culture. One way we see the #MeToo movement in the doldrums of corporate paperwork is through what is becoming known as the “Weinstein Clause” in merger and acquisition agreements.

What is a Weinstein Clause?

When a company is sold or merged, the selling company is typically required to make a litany of representations to the buyer concerning the status of the selling company. A Weinstein Clause is a representation made by the selling company where the seller promises that none of the selling company’s employees is the subject of allegations of sexual misconduct. In its broadest form, a seller represents that no allegations of sexual harassment or misconduct have been made to the company against any individual in his or her capacity as an employee of the company or any of its affiliates. Usually, if a seller makes a false representation, the buyer can sue the seller for all damages resulting from the breach.

How do sellers negotiate Weinstein Clauses in M&A transactions?

Just like any representation in an M&A (merger and acquisition) transaction, sellers will try to limit the scope of the representation by adding knowledge qualifiers (ex: to the seller’s knowledge, there are no sexual harassment or misconduct allegations), defining or reducing the look-back period (ex: the seller represents that there have been no allegations in the past five years) and minimizing the number or type of employees subject to such allegations (ex: the seller represents that there have been no allegations against executive level employees). In addition, the lawyers on both sides will probably spend time negotiating the definitions of “sexual harassment” and/or “sexual misconduct,” as such terms are open to interpretation and, therefore, ambiguity. After the representation itself is determined, if the seller is aware of any such allegations, the seller will try to negotiate an exception to the representation and describe the allegations on a schedule attached to the agreement. In this case, the seller is essentially saying, “except for that one time, which buyer is going to overlook, there have been no allegations of sexual harassment/misconduct.”

Why should people care?

The Weinstein Clause itself will probably not have a noticeable impact on the viability or essential terms of M&A transactions. And most people will probably never lose sleep over how broadly or narrowly any Weinstein Clause is negotiated. However, everyone is affected by companies (some more directly than others), and most companies are led by individuals who have power and influence over other employees. The emergence of the Weinstein Clause is indicative of a broader social change. The Weinstein Clause provides evidence that sexual harassment and misconduct by such individuals is not tolerated, safe and respectful company cultures matter, and victims of sexual harassment and misconduct ought to be protected.

 

Published: 5/7/19; by Paula Burkes
Original article: https://newsok.com/article/5630647/metoo-movement-reaches-merger-transactions

Schovanec: Oklahoma Supreme Court ruling on noneconomic damages could have profound impact

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.

On Tuesday, the Oklahoma Supreme Court ruled Oklahoma’s statutory cap on noneconomic damages violates the Oklahoma Constitution because it singles out for different treatment less than the entire class of similarly situated persons who may sue to recover for bodily injury.

In plain terms, the court found the statute is a “special law” that limits a living plaintiff’s right to recover noneconomic damages to no more than $350,000 and cannot be reconciled with the provision of the Oklahoma Constitution that expressly forbids any statutory damages limitation for injuries resulting in death.

Oklahoma’s statutory cap provides that in any civil action arising from claimed bodily injury, the trier of fact may award a plaintiff for noneconomic loss no more than $350,000, regardless of the number of parties against whom the action is brought or the number of actions brought—unless the claimed bodily injury is the result of more than mere negligence (i.e. reckless disregard for the rights of others, gross negligence, fraud, intentional injury, or malice).

The statute defines noneconomic damages as “nonpecuniary harm that arises from a bodily injury that is the subject of a civil action” and includes damages for, among other things, pain and suffering, loss of consortium, companionship, mental anguish, etc.

In Beason v. I.E. Miller Services, Incorporated, an employee was injured while operating a crane in his employment with I.E. Miller Services. As a result of his injuries, the employee underwent two amputations on parts of his arm. The employee and his wife sued I.E. Miller in a personal injury action. The matter went to trial in Oklahoma County and the jury awarded the employee and his wife a combined total of $15 million – $6 million of which was allocated as noneconomic damages. Applying the statutory cap, the district court reduced the jury verdict to $9.7 million, as the noneconomic damages to plaintiffs was lowered to $700,000, or $350,000 per person. On appeal to the Oklahoma Supreme Court, plaintiffs challenged the damages cap.

The Oklahoma Supreme Court held the statutory damages cap is unconstitutional for one reason: the statue purports to limit recovery for pain and suffering in cases where the plaintiff survives the injury-causing event, while persons who die from the injury-causing event face no such limitation under Oklahoma Constitution Article 23, section 7 (“The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation . . . . ”).

The court explained that “[b]y forbidding limits on recovery for injuries resulting in death, the people have left it to juries to determine the amount of compensation for pain and suffering in such cases, and no good reason exists for the Legislature to provide a different rule for the same detriment simply because the victim survives the harm-causing event.”

Moving forward, the court noted that if the people of Oklahoma believe the jury system and judicial review are no longer effective in deciding compensation in private personal injury cases, then constitutional amendment is the proper way to make such a change, “not a special law.”

The impact of the Oklahoma Supreme Court’s decision in Beason is profound.

Now, after Beason, with the statutory damages cap removed, an unemployed, catastrophically injured plaintiff, and a defendant, may be looking at a substantially different recovery and exposure.  Consequently, and somewhat counter-intuitively, because the risk of large verdicts just went up, cases may settle earlier because of the uncertainty associated with leaving a damages calculation up to a jury.

Ashley M. Schovanec is a litigation attorney with the law firm of Phillips Murrah.

Phillips Murrah sponsors OU Law’s 2019 Best Brief Award

Best Brief Award Winners

Attorneys Ashley M. Schovanec and Erika K. Halley presented the Best Brief award to winners in the 1L Class.

The University of Oklahoma’s Competitions and Clinic Awards Luncheon offered first-year law students the chance to compete and show how their studies have paid off on April 18.

“We celebrated the hard work our students have put into our competitions and clinic programs,” said Camal Pennington, Director of Annual Giving at OU College of Law.

Attorneys Erica K. Halley and Ashley M. Schovanec presented the $5,000 Best Brief Award sponsored by Phillips Murrah law firm. The Firm also sponsored the award in 2018. 

“The First Place award is granted to one student from each of the four sections in the 1L Class for best written brief,” Pennington said. “$500 is awarded to each of the First Place winners.

“Phillips Murrah also grants a $250 award to the second place brief for each section.”

OU Law competition teams traveled all over the U.S., from New York City and Albuquerque to Dallas and Washington, D.C. to Denver, San Diego, and Chicago, he said.

“Faculty members, alumni and outside attorneys helped coach these teams,” Pennington said. “For two consecutive years, OU Law has been ranked in the Top 5 in the country for our competitions program.

“OU Law competition teams have won four national championships in the last two years including the 2019 Federal Bar Association Moot Court National Championship.”

Halley and Schovanec are OU College of Law alumni. Halley represents individuals and businesses in a broad range of transactional matters, and Schovanec is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

Click here to learn more about the OU College of Law.

NewsOK Q&A: Medical practice support can be costly to suppliers, others

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.

In this article, Oklahoma City Healthcare Attorney Mary Holloway Richard discusses the “Anti-Kickback Statute” and potential, federal violations of the statute as it relates to providers in the healthcare industry.

What is the authority for the federal government to oversee providers’ relationships with durable medical equipment (DME) and device suppliers and drug companies, such as educational programs that would seem to benefit the patient? How active is that oversight?

The Anti-Kickback Statute (AKS) prohibits remuneration to induce referrals or use of products reimbursement by Medicare, Medicaid or other federal healthcare programs. The federal government, through its investigators and prosecutors, pursue civil remedies including fines for remuneration considered as kickbacks. Remuneration may be cash of in-kind contributions. Under the AKS both civil and criminal charges may result from an investigation by the federal government. Federal policy is designed to prevent relationships that purportedly “lead to excessive or unnecessary treatment,” drive up health care costs and inhibit free market competition. The kickback prohibition applies to all sources of referrals, even patients. For example, where the Medicare and Medicaid programs require patients to pay copays for services, you generally are required to collect that money from your patients. Routinely waiving these copays could implicate the AKS and you may not advertise that you will forgive copayments. However, providers are free to waive a copayment if the provider makes an individual determination that the patient cannot afford to pay or if reasonable collection efforts fail. In addition, providing free or discounted services to uninsured people is not prohibited. The beneficiary inducement statute (42 U.S.C. § 1320a-7a (a) (5)) also imposes civil monetary penalties on physicians who offer remuneration to Medicare and Medicaid beneficiaries to influence them to use their services.

Is the federal government even active in investigating and prosecuting under the AKS?

Yes. The Office of the Inspector General, counsel for the Department of Health and Human Services (HHS), estimated in 2018 that for every $1 spent on investigating health care fraud, $4 is recouped. The government has investigated, prosecuted and settled claims with many types of providers and continues to do so. The government does not need to prove patient harm or financial loss to the programs to show that a physician violated the AKS. A physician can be guilty of violating the AKS even if the physician actually rendered a medically necessary service. Taking money or gifts from drug or device companies or DME suppliers is not justified by arguing that providers would have prescribed that drug or ordered that wheelchair even without a kickback. An example of unlawful activities comes from the Covidien case. A supplier of vein ablation products in California and Florida, Covidien recently settled its claims with the federal government that it offered or provided free to medical practices, or at discounted rates, practice development assistance, lunch-and-learns, dinners with physicians, and market development support, such as vein screening activities designed to recruit new patients to the practices — all provided free of charge or at discounted rates. This virtually uncompensated support, according to the Department of Justice, was designed to induce the use of certain items or services, leading to excessive and unnecessary treatments and driving up health care costs for everyone.

Are there any clear guidelines for physicians and other providers?

HHS has published guidelines for providers, such as “A Roadmap for New Physicians-Avoiding Medicare and Medicaid Fraud and Abuse,” which I routinely provide to new physicians, advanced-practice nurses and other providers. Failure to follow the guidelines can be costly. For example, the outcome of the Covidien investigation was a civil settlement agreement for violation of the AKS in the amount of $17,477,947, with additional payments in excess of $2 million by the company to the states of California and Florida for claims paid by their Medicaid programs.

How are violations of the AKS usually discovered?

Violations of the AKS are often discovered through “qui tam” actions brought by employees of the practice group or those with knowledge of its practices known as “whistleblowers” or “relators.” To avoid vulnerability to qui tam actions providers are advised to adopt and implement robust compliance policies, including training providers and other personnel regarding behavior that may constitute risk under a federal regulatory analysis. It is also advisable to have operating agreements of the practice’s legal entity and written agreements reviewed by counsel in order to shift legal liability where possible.

 

Published: 4/19/19; by Paula Burkes
Original article: https://newsok.com/article/5629122/medical-practice-support-can-be-costly-to-suppliers-others

Gavel to Gavel: Gender parity and the rise of women in the boardroom

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on April 18, 2019.


Kendra Norman Web

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

By Phillips Murrah Attorney Kendra M. Norman

It should come as no shock that, although women make up just over half of the U.S. population, they are underrepresented in corporate executive management, as well as in the boardrooms of public companies in the U.S. This is often due to stereotypes that characterize female leaders as abrasive, aggressive and emotional. This disparate societal perception rewards certain characteristics in men while condemning them in women, which damages women striving for leadership roles.

A 2016 Catalyst report found that in the U.S., women made up only 21.2% of the S&P 500 board seats.

A recent push for diversity on corporate boards of directors may change the gender lines of corporate culture. For example, California is the first state to statutorily require female representation on boards of directors.

In 2018, roughly 25% of California-based companies had no female directors on their board. In October, Gov. Jerry Brown signed a law requiring all public companies having principal executive offices in the state to have at least one woman on the board by the end of 2019. By the end of 2021, any California public company with five directors must have a minimum of two female directors, and those with six or more directors must include at least three women. The law imposes a $100,000 fine for a first-time violation and a $300,000 fine for subsequent violations.

California follows several European countries, including Germany, France, Norway, and Sweden, which have implemented quotas and fines to increase female representation in the boardroom. Additionally, shareholder advisory firms such as Institutional Shareholder Services and Glass, Lewis & Co. are now using gender diversity as a factor for shareholder vote recommendations.

While a government-mandated requirement may not be the ultimate solution, it could accelerate the achievement of gender parity.

Such a change in gender representation is likely to benefit companies, as gender and culture diversity results in diverse perspectives, which is likely to improve a company’s performance. It will also create less gender discrimination in recruitment, promotion, and retention.

While Oklahoma continuously ranks in the bottom of states for women when it comes to the income gap, workplace environment, education, and health, Oklahoma ranks 20th with respect to the executive positions gap, according to a recent 2018 WalletHub study. While there is much room for improvement, there may be hope for Oklahoma in achieving executive gender parity.

Firm selects Employee of the Month for March 2019

Timi Mitchell, Legal Assistant, is Phillips Murrah’s Employee of the Month for March 2019.

“I am very honored to be Employee of the Month,” Timi said. “I think we have a great team atmosphere at our firm, and am blessed to be a small part of it.”

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

“Timi is the perfect example of an Employee of the Month,” Director Lyndon W. Whitmire said. “She works incredibly hard, and always with a smile on her face. She is always ready to help others.”

The Firm recently began making a donation to the winner’s charity of choice, and Timi chose the Oklahoma Lung Cancer Initiative in honor of her father who recently passed away due to lung cancer.

To learn more about the Oklahoma Lung Cancer Initiative, 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.

NewsOK Q&A: Doing business by email can cause legal concerns

A. Michelle Campney

As a litigation attorney, A. Michelle Campney represents companies in a wide range of business litigation matters with an emphasis on the construction industry.

In this article, Oklahoma City Attorney A. Michelle Campney discusses email practices that could be considered in legal matters.

What are the general legal concerns regarding conducting business through email?

It is estimated that there will be almost 3 billion email users by the end of this year, with an average of 128 business emails sent and received per person, per day. Often, only passively mentioned in employee handbooks and with little to no training during onboarding, employers and employees adopt varied practices for email use. The sheer volume of emails creates logistical problems for businesses (e.g., server space, data protection), but it can also create legal issues when exchanges can bind companies or reveal confidential, privileged or personal information.

How can emails bind someone until they actually sign an agreement?

Does the party you are working with know that you require hard copy agreement with handwritten signatures? If not, and if the email contains all the material terms and the facts, and circumstances surrounding that show that you were conducting the transaction electronically, then you could have an enforceable agreement under the Oklahoma Uniform Electronic Transactions Act (“UETA”).

But no one actually signed the agreement, so how can it be enforceable?

Not all agreements have to be signed to be enforceable, and specifically under the UETA, a signature only need be “attributable to a person if it was the act of the person.” Furthermore, an electronic signature under the act is “determined from the context and surrounding circumstances at the time of its creation, execution, or adoption … .” While Oklahoma does not have any case law on the issue, a Texas court found a simple “Thank you, Clyde” typed above the signature block was sufficient for a signature. Parks v. Seybold (Tex. App.—Dallas, 2015). Additionally, some courts (including those in Texas) broadly interpret the signature requirement to include an automatically generated signature block.

What are other potential concerns for email?

Let’s say that your company is involved in litigation regarding a contractual dispute. Most attorneys ask that all communications, including email communications, regarding the issue be turned over during the discovery process. While the communication may not ultimately be admissible in court, if there are emails between employees discussing the dispute and the surrounding facts and circumstances, those will generally have to be turned over to the other side. Additionally, if certain individuals are involved then you may have to turn over all emails regarding that person. Thus, if any mentions of any disciplinary action regarding that person or even your own personal feelings about the person are on email those may have to be turned over. While the emails may not ultimately impact your case, they could embarrass your company.

Are there any practices or policies that would help alleviate the concerns surrounding email?

While policies and procedures will be specific to each type of business and its standard practices, at the most basic level, having a robust email use policy will set a good foundation and, if properly drafted, help educate your employees on what to do and not to do. One important thing to remember is that email will only continue to grow as a means of communication. Setting good groundwork for how it is to be used in your company may help prevent issues down the road.

 

Published: 4/11/19; by Paula Burkes
Original article: https://newsok.com/article/5628396/doing-business-by-email-can-cause-legal-concerns

Blocks for Bucks: End-of-season check presentation to Thunder Cares for over $20,000!

Blocks for Bucks image(April 9, 2019) – Tonight is the final home game of the regular season, and that means it’s time, once again, to tally up the blocks and present a giant check (literally!)

Phillips Murrah Directors present Blocks for Bucks check.

Directors from Phillips Murrah present our Blocks for Bucks donation to Thunder Cares.

Just before tip-off at tonight’s Oklahoma City Thunder game against the Houston Rockets, Phillips Murrah Directors G. Calvin Sharpe, Nikki Edwards and Marc Edwards will participate in the check presentation ceremony at mid-court. The amount is for $20,600, which reflects the amount our Firm has donated thus far in the 2018-2019 regular season, prior to tonight’s action. For the final tally, blocks from tonight’s game will be added to the final amount, which will go directly to the Thunder Cares Foundation.

“Our Firm likes being involved in the Oklahoma City community, and The Thunder Cares Foundation is a great way for us to do that,” said G. Calvin, whose litigation practice focuses mainly on matters involving medical malpractice, products liability and insurance.

“We are huge Thunder fans and take great pride in partnering with Thunder Cares and all they do in the community,” said Marc, who represents both private business and public entities in a broad range of litigation with an emphasis on public utility, public pension, governmental and administrative laws.

This is the second year that Phillips Murrah has partnered with the OKC Thunder with the Blocks for Bucks campaign. The check presentation from the 2017-2018 season can be seen here.

What is Blocks for Bucks?

Russell Westbrook Phillips Murrah

Russell Westbrook on @okcthunder Instagram with Phillips Murrah logo.

Attorneys and staff at Phillips Murrah are huge Thunder fans, and to recognize our home team’s accomplishments in blocking shots, the Firm is donating $100 to Thunder Cares for each blocked shot that the Thunder forces at home games during the regular season.

Blocks for Bucks began in November of 2017, when Phillips Murrah initiated our partnership with the Thunder organization. Helping to improve the community is at the heart of of our Firm’s mission, and the prospect of achieving that through the Thunder Cares Foundation with such an exciting and entertaining campaign was irresistible.

“Phillips Murrah is proud to partner with the Thunder Cares Foundation,” said Phillips Murrah President and Managing Partner, Thomas G. Wolfe. “The Thunder has done so much in Oklahoma. We’re glad to join in their efforts.”

As the Thunder team racked up blocks throughout the season, video highlights were posted at the Blocks for Bucks page on the Thunder’s website, along with a blocks counter and a running donation amount tally.

“Working with the Thunder is an absolute pleasure,” said Phillips Murrah Marketing Director, Dave Rhea. “Being able to support Thunder Cares with this blocks campaign allows us to give back to the community while also driving home the point that, at the end of the day, we’re also huge Thunder fans!”

The Thunder Cares Foundation helps support the team’s community outreach projects, including Thunder-themed basketball courts in parks, schools and community centers across Oklahoma, as well as learning labs and activity rooms at organizations like the Boys and Girls Club of Oklahoma County, City Rescue Mission, and Positive Tomorrows, a school that serves homeless children in Oklahoma City. In celebration of the Thunder’s 10th season, the Thunder Cares Foundation is funding a matching grant through

Phillips Murrah looks forward to continuing to partner with the Oklahoma City Thunder and The Thunder Cares Foundation in the years to come.

Lopez: A bitter pill – medical malpractice liability for new resident physicians

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.

Medical school residency match day. It’s a chaotic, stressful revelation at which fourth-year medical students find out where they will spend the next few years of their lives as residents – newly minted physicians becoming experts in their respective fields.

While becoming a resident physician is undoubtedly an exciting next step in the process, it inherently comes with daunting new realities – a plethora of health care regulatory compliance issues, constantly developing reimbursement requirements, and medical malpractice liability. This short article focuses on minimizing the risk of negligence-based malpractice lawsuits.

While no practicing physician is immune from being sued, common-sense measures have proven effective in avoiding malpractice claims. And, although a resident physician’s liability is generally covered by the residency program, there remains ample reason to mitigate liability risk – notably, to avoid the stress, time, and hassle that comes with litigation.

Most obviously, physicians should provide the best medical care to their patients they possibly can. Lawsuits for medical malpractice involve determining whether the physician has met the standard of care owed to the patient; if she provided the best care she could have, she has positioned herself well from the outset.

Essential to providing a high level of care to the patient is communication about that care to the patient. Medical malpractice lawsuits often involve allegations of poor communication that may be rooted in a failure to convey respect, inadequate listening skills, and the use of technical medical jargon rather than patient-friendly language.

In a fast-paced environment with numerous patients to attend to, it’s understandably easy to use verbal medical shortcuts for efficiency’s sake; however, using patient-friendly language creates a stronger connection with patients, makes for well-informed patients, and may also manage patient expectations about treatment, diagnosis, and prognosis.

When a patient is dissatisfied, the physician should carefully listen and try to understand the basis for the concern or frustration and engage in meaningful dialogue about the issue. By making this concerted effort to proactively communicate and resolve issues, physicians affirm their commitments both to the patients and to a quality practice where people are treated with respect.

Another important aspect of mitigating liability risk is thorough detailed documentation in the medical record. Careful documentation is the foundation for quality and coordinated patient care, defending malpractice claims, and even for reimbursement issues by government programs – such as Medicare and Medicaid – and commercial insurers.

Proper documentation should include, but certainly isn’t limited to: details of discussions with patients, the physician’s thought and decision-making processes, results of laboratory tests and other ancillary services, proposed courses of treatment (including the impact of doing nothing), the bases for any physician recommendations, and communication of alternatives to the patient. In so carefully documenting, the physician establishes medical necessity for her services and creates admissible evidence in the event litigation arises out of the treatment.

While it may create extra work for physicians, taking the steps outlined in this article offers the benefits of more meaningful communication with patients, increases patient satisfaction, facilitates coordinated care with other providers on the patient’s behalf, and reduces the risk of malpractice lawsuit liability. Establishing these habits early in a medical career will undoubtedly offer great long-term rewards.

Martin J. Lopez III is a litigation attorney with the Oklahoma City law firm of Phillips Murrah.

OCU Law names Ybarra 2019 Outstanding Young Alumna

Monica Ybarra Web

Monica Y. Ybarra is a litigation attorney whose practice focuses on representing individuals and companies in wide range of commercial litigation matters. She also practices in the area of family law, including litigation, custody issues and valuation issues.

Monica Y. Ybarra, Family Law attorney and Oklahoma City University School of Law Class of 2014 alumna, will be honored as Outstanding Young Alumna at the OCU Law Awards Dinner.

“These awards were created in the late 1990s to honor individuals, alumni and non-alumni, in the legal community who have exemplified themselves as champions of the legal profession, established themselves as a community advocate, and supported the endeavors of OCU Law,” said Ally Rodriguez, Director of Alumni Relations at OCU Law. “To be a recipient of an award demonstrates their commitment to excellence in their career and we hope this shines a light on their good works.”

The 2019 OCU Law Awards Dinner will be hosted at 6 PM on April 6 at OCU School of Law.

“Working with Monica, both as a Phillips Murrah team member and now in our mutual roles for our alma mater OCU School of Law, is a real gift,” said Jim Roth, Phillips Murrah Director and OCU Law Dean. “Monica wonderfully embodies the exceptional brain and heart you want in a colleague, a leader and a friend.”

This year’s awards are especially important as they signify the first major event of the OCU Law Alumni Association after being re-established in the fall of 2018 under the direction of Dean Jim Roth, she said.

“As a classmate of Monica’s and a member of the OCU Law Class of 2014, it is an honor to be able to work with her as the Chair of the OCU Law Alumni Association,” Rodriguez said. “Monica brings an excitement to her work and motivates those around her.

“As the 2019 recipient of the Outstanding Young Alumna Award, Monica has exemplified significant achievements in the practice of law since graduation, and is a wonderful representation of the hard work and servant leadership mentality that OCU Law instills.”

Ybarra joined the university’s Alumni Association in September 2018 to oversee development and progress of the organization and was elected Chair by the Board of Directors soon after.

“Dean Roth’s vision to reestablish the OCU Law Alumni Association was one of his top priorities upon assuming his role as the new Dean,” Ybarra said. “He brought together a group of interested alums to serve on the Board of Directors and they elected me as Chair at our inaugural meeting.

“So, I’ve hit the ground running in that role since day one.”

This first year has been focused on getting the word out about the Alumni Association, building partnerships with community businesses for the rewards program, setting goals and bringing the Association’s vision into focus, she said.

“OCU Law has produced some very dynamic leaders and so many of our alums are doing great things all over the world, so it is incredibly humbling to receive this award,” Ybarra said. “I am overwhelmed with gratitude to be recognized in this way.

“I hope that my role and involvement with OCU Law will continue to evolve to meet the needs of the law school. I enjoy helping with local and national recruiting, and certainly enjoy contributing to the law school experience of OCU Law students in any way that I can.”

To learn more about OCU Law and the Alumni Association, click here.

Firm selects Employee of the Month for February 2019

Lisa McAlister

Lisa McAlister, Paralegal, is Phillips Murrah’s Employee of the Month for February 2019.

“It gives me much encouragement to be recognized,” Lisa said. “I am very fortunate to work with such a great team of co-workers and friends.”

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

“Lisa is an exceptionally talented paralegal and a critical part of Phillips Murrah’s litigation practice,” Director Fred A. Leibrock said. “She brings a wealth of talent and experience to our cases. She has an outstanding work ethic and her work is always top notch.”

The Firm recently began making a donation to the winner’s charity of choice, and Lisa chose Jesus House.

“With such cold weather, this homeless shelter provides for more people who normally spend nights outdoors, to come inside to the warmth,” Lisa said.

To learn more about Jesus House, 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 celebrates International Women’s Day

Phillips Murrah Women Empowered

Today, March 8, 2019, is International Women’s Day. Phillips Murrah would like to take this opportunity to acknowledge the achievements and importance of women leaders in the workplace. The theme of this year’s IWD is gender balance, and Phillips Murrah is doing our part to help realize this important societal goal.

We are proud to have sponsored the OKC International Women’s Day Celebration last night, hosted by Oklahoma Women’s Coalition, held at Ponyboy. This event was the second annual celebration of International Women’s Day in Oklahoma City.

“57 attendees joined to network and learn more from women’s organizations, such as Oklahoma Women’s Coalition, YWCA, ReMerge of Oklahoma County, Sally’s List, the Metisse Group and more,” said Caroline Cotton, co-creator of the International Women’s Day OKC celebration.

Group photo from International Women's Day celebration.

From left: Caroline Cotton, Lacey Lett, Dawn Rahme, Melissa Gardner, Sam Newton and James Linhardt.

“For me, the importance stems from remembering that the pursuit of equality is an infinite process,” said Phillips Murrah attorney Sam Newton, who initiated the sponsorship. “As time passes, we tend to generalize our own lack of prejudice and declare the issue resolved. Yet, the reality isn’t that simple. Acknowledging the fact that inequality exists moves us forward. IWD serves that goal but is also a day to pause and remember the impact women, both well-known and not, have had on the world today.”

Phillips Murrah is proud to be leaders in the area of promoting women into positions of leadership and equity within our Firm. Our comparatively high percentage of women shareholders and executive leaders is a manifestation of our corporate culture, which celebrates talent, skill, character and collegiality.

All attorneys at Phillips Murrah are expected to meet high standards of professional ability and interpersonal intelligence. Additionally, our workplace expectation is that each attorney is able to thrive in his or her practice, unencumbered by underlying considerations about individual characteristics unrelated to the practice of law.

Liz Charles, Executive Director of Oklahoma Women's Coalition

Liz Charles, Executive Director of Oklahoma Women’s Coalition

Phillips Murrah’s high percentage number of women partners and leaders isn’t motivated by societal pressure. Rather, it has occurred in an authentic way due to our inclusive corporate culture, and can be seen as an accomplishment for everyone at the Firm.

“We didn’t have a structured push to reach any kind of percentage, we just foster a culture that genuinely gives women the opportunity and support to succeed,” said Phillips Murrah Director Melissa Gardner. “I believe that’s the most sustainable kind of change and the coolest part of our equality.”

Phillips Murrah is also a proud Sustaining Partner of the National Association of Women Lawyers (NAWL). We are pleased to be able to support NAWL’s mission, which is to provide leadership, a collective voice and essential resources to advance women in the legal profession, and to advocate for the equality of women under the law.

We are proud of the many strengths and advantages that women leaders bring to our Firm and to society in general, and we are happy to help celebrate this each day – and especially on International Women’s Day!

Gavel to Gavel: The uphill battle faced by creditors in bankruptcy

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on March 7, 2019.


Gretchen Latham Web

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

By Phillips Murrah Attorney Gretchen M. Latham

Bankruptcy is a debtor’s remedy, meaning many of the rules and regulations are more favorable to debtors than to creditors. To even the playing field a bit, Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act in 2005.

Several of its provisions were put in place to provide assurances to creditors that the system is fair and impartial. Of note, those that file must now undergo credit counseling both prior to filing and prior to receiving a bankruptcy discharge.

Also of significance are the changes to the Bankruptcy Code regarding what chapter of case a debtor is eligible to file. Prior to enactment of BAPCPA, many creditors were missing out on substantial payments because most debtors elected to file a Chapter 7 case, which acts as a total liquidation of debts, other than debts that are reaffirmed. The result was that most unsecured creditors were losing out on repayment of their entire outstanding balance.

With BAPCPA, debtors are no longer free to decide what type of case to file. Rather, a complex mathematical computation is performed prior to filing, and if the results show a debtor has funds available to repay a portion of their unsecured debt, that debtor may be required to file a Chapter 13 case.

Chapter 13 is similar to debt consolidation, in that the debtor proposes a plan of repayment to all creditors, to include paying back a percentage of unsecured debt. The result is that unsecured creditors, such as credit card companies and medical providers, receive some payment.

A creditor is also permitted to file an objection to the proposed repayment plan. The most common objections are to the interest rate and value of secured claims. There are other bases for objecting, including that plan is not feasible or that the case was filed as a delay tactic.

Aside from having a statutory basis for objecting, a creditor must also adhere to the Bankruptcy Court’s local rules when objecting to avoid the risk of an improperly filed objection.

While bankruptcy is still a very viable option for those with overwhelming debt, the arena is now viewed as being much more equal. Creditors have many tools at their disposal when a consumer files bankruptcy and should take full advantage of those tools to maximize repayment where possible.

NewsOK Q&A: Some qualifications necessary to conduct businesses in other states

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 this article, Oklahoma City Attorney Travis E. Harrison discusses practical legal issues related to out-of-state business practices.

When is a corporation, limited liability company or other registered legal entity “transacting business” in another jurisdiction?

A legal entity required to be registered under the laws of one state must be cognizant of whether its structure or business activities constitute “transacting business” in another state. For example, a corporation formed under the laws of Oklahoma might provide services or buy and sell real estate in Texas. If Texas law defines this activity as “transacting business,” then the corporation should take the required steps to qualify to do business in Texas — as the failure to do so may result in unforeseeable fines or other consequences. Each state establishes its own variations on what activities by a foreign (out-of-state) business constitute doing business in that state. As a practical matter, a business that has a strong presence or engages in successive transactions in another state is likely “transacting business” and will need to take the appropriate steps to qualify in that state.

What are the consequences of failing to qualify to do business in another state?

Similar to the issue of what activities constitute “transacting business” in another state, the ramifications for failing to qualify to do business are a creature of state statute and vary by jurisdiction. However, the most common legal consequences for failing to qualify are fines and the inability to utilize that state’s court system to bring a lawsuit. For example, assume the previously mentioned corporation formed under the laws of Oklahoma fails to qualify to do business in Texas even though it meets Texas’ criteria for “transacting business.” If the Oklahoma corporation files a breach of contract action in Texas, then its case may be dismissed because it failed to qualify to do business in Texas. This pitfall is especially problematic if the corporation is jurisdictionally restrained from bringing the lawsuit in Oklahoma because of other procedural issues.

How does a business qualify to do business in a state other than its state of formation?

As mentioned above, a business should be cognizant of whether its operations in other states require it to qualify to do business in those states. Generally, a business qualifies by filing a certificate with information about the business and its good standing and paying the respective filing fee with the state’s secretary of state (or other designated office). Additionally, a business should ensure that it complies with the other state’s applicable tax requirements for foreign businesses. In Oklahoma, for example, a foreign corporation’s failure to pay annual franchise taxes may subject it to unnecessary penalties.

 

Published: 2/21/19; by Paula Burkes
Original article: https://newsok.com/article/5623523/some-qualifications-necessary-to-conduct-businesses-in-other-states

Firm selects Employee of the Month for January 2019

Curt Bauer

Curt Bauer

Curt Bauer, File Manager, is Phillips Murrah’s Employee of the Month for January 2019.

“It always feels great to be recognized by your peers as we all have the same ultimate goal: to serve our clients as well as we possibly can,” Curt said. “I love working here as we are making great strides toward becoming paperless, although we still have a ton of work to do.

“It is an honor to be one of the driving forces behind reducing our carbon footprint while still continuing to serve our clients just as well as we did when we used paper, if not even more efficiently. While it is sometimes a daunting project, and one that cannot be done overnight, it is very rewarding to see the money we spend on storage continuing to go down, while finding more and more efficient ways to use technology to everyone’s advantage. Computer documents are much easier to store, much easier to find, and cheaper to maintain.”

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

“Curt is one of the most conscientious people I have ever worked with and he will help in any situation,” said Michelle Munda, Executive Director. “When he’s asked to do anything, I can always be sure it’s done and done right!”

The Firm recently began making a donation to the winner’s charity of choice, and Curt chose the Epilepsy Foundation of Oklahoma.

“I am giving to them as I have had epilepsy my entire life,” Curt said. “I have been seizure free since 1984 due to the ‘experimental’ medication my neurologist put me on in 1982 that actually worked!”

To learn more about the Epilepsy Foundation of Oklahoma, 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.

Attorney Mary Holloway Richard authors update to AHLA publication

Mary Holloway

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

Mary Holloway Richard, Phillips Murrah Healthcare Law Attorney, lent her expertise to an update of the American Health Lawyers Association‘s Institutional Review Boards publication.

In preparing the third edition, the AHLA recognized the need to update the previous edition based upon changes in statutes and regulations and to incorporate new guidance reflecting expertise and current, in-depth experience with clinical research and IRB’s.

An important addition is the new chapter 17 “IRB Compliance and Internal Audits” authored by Richard.

Richard has recognized expertise in regulatory requirements and risk management in clinical research based upon involvement with both researchers and the IRB process for many years in the largest health system in the state.

The chapter brings to life a clinical research compliance plan by including the key elements and sample policies, procedures and other forms for use by researchers and research facilities, she said.

Richard advises clients regularly about FDA, HHS and OHRP requirements and lectures and writes on related topics, including regulatory requirements of the General Data Protection Regulation applicable in clinical research performed in the European Union.

For more information on the latest edition of the publication, click here.

Federal income tax challenges for medical marijuana businesses in Oklahoma

Attorney Jessica N. Cory

Jessica N. Cory advises clients regarding corporate and general business matters, including choice of entity, formation, tax-free reorganizations, acquisitions and dispositions, and tax planning.

By Phillips Murrah attorney Jessica N. Cory

On June 26, Oklahoma voters approved State Question 788, which legalizes the use, growth, and sale of marijuana in the state for medicinal purposes.  In addition to providing rules for individual use of medical marijuana, the approval of SQ 788 also created a number of opportunities for new related businesses, such as retailers or dispensaries, commercial growers and processors. However, although licensed medical marijuana businesses are now legal under Oklahoma state law, conflicting federal law creates a number of challenges for business owners, particularly with respect to federal income tax law.

Generally, the Internal Revenue Code allows a taxpayer to take a deduction for all “ordinary and necessary” business expenses paid or incurred during the taxable year.  Congress has created an exception to this rule in certain instances, however.  One such exception is Internal Revenue Code Section 280E, which prohibits a taxpayer engaged in the business of “trafficking in controlled substances” from taking a deduction for ordinary business expenses.  For purposes of this provision, a controlled substance is any Schedule I or Schedule II drug under the federal Controlled Substances Act, which includes marijuana.  Although taxpayers have argued that Code Section 280E should not apply to businesses operating legally under state law, courts have repeatedly rejected this argument, concluding that any business buying or selling marijuana regularly is subject to the restrictions of Code Section 280E until Congress chooses to amend the Internal Revenue Code.

Although Code Section 280E’s bar on deductions represents a significant obstacle for medical marijuana business owners, several exceptions help reduce the burden on these taxpayers.  For example, although a medical marijuana business cannot deduct expenses in the same way as other taxpayers, it is entitled to offset its gross receipts with its cost of goods sold (“COGS”), although the Internal Revenue Service has issued guidance strictly limiting what types of costs a taxpayer engaging in a marijuana business can allocate to COGS.  Caselaw supports this narrower interpretation of COGS, including prohibiting resellers of marijuana from including any indirect costs – costs other than the price paid for inventory plus any transportation or other necessary acquisition costs – in COGS.

Another important exception to Code Section 280E is the separate business rule recognized by the Tax Court in an early medical marijuana case.  Under this rule, although Section 280E may preclude a taxpayer from taking any deductions relating to its medical marijuana sales, it can still deduct its expenses for any separate, non-trafficking trade or business.  Accordingly, it is extremely important for a marijuana business to keep careful records of any other businesses it may also operate, unrelated to growing, processing, or selling marijuana.

Members of Congress have repeatedly introduced legislation to exempt marijuana businesses lawfully operating under state law from the parameters of Section 280E.  Until this type of legislation is enacted, however, federal tax law will remain a potential minefield for any unwary medical marijuana businesses.  It is therefore important for businesses opening under SQ 788 to seek out an experienced accountant or tax lawyer to discuss the best way to structure their business to comply with federal tax law while minimizing their tax burden.

NewsOK Q&A: Anyone can take part in utility rate cases

Eric Davis

Eric Davis is an attorney in the Firm’s Clean Energy Practice Group and the Government Relations and Compliance Practice Group. He represents clients in a range of regulatory and energy matters.

In this article, Oklahoma City Attorney C. Eric Davis discusses the process utility companies must go through to request rate increases and how different parties can participate.

Q: Oklahoma’s two largest electric utilities have rate cases ongoing at the Corporation Commission. How does the rate case process work?

A: In Oklahoma, investor-owned electric companies are “rate-regulated” by the Oklahoma Corporation Commission. Regulating the rates of investor-owned utilities is necessary based on their monopoly status, i.e., customers generally can’t choose among other competing utilities for the same service. As a result, companies like Oklahoma Gas and Electric Co. and Public Service of Oklahoma must seek approval from the three elected Corporation Commissioners before increasing rates. When a utility requests a rate increase, the resulting procedure is referred to as a “rate case.” A rate case is a formal, evidence-based, court-like process, open to the public. In a rate case, the commission determines the amount of revenue a company reasonably needs to operate, and then decides how best to allocate any increase (or decrease) among the company’s customers. This allocation process involves dividing customers into classes (such as residential, commercial, industrial, municipal, public schools), and even subclasses, and then, ideally, assigning rates across classes in an equitable manner.

Q: What types of issues exist in OG&E’s and PSO’s current rate cases?

A: Primary drivers in any rate case include the utility’s operational costs, costs associated with plant investments, and the utility’s right to earn a fair profit. On the generation side, national trends evidence a shift toward renewable and natural gas resources, and conflicts abound concerning how utilities should deal with their existing fleets, including coal plants. In its current rate case, OG&E has requested about $54 million annually to recover the cost of retrofitting its Sooner coal plant to reduce air pollution. Meanwhile, historically low load growth and other market trends are causing electric utilities to reconsider the manner in which they obtain rate increases from the commission. In PSO’s ongoing rate case, the company is proposing a “performance-based rate plan,” in which its earnings would be subject to more frequent, annual reviews, allowing for periodic rate adjustments. Such annual reviews, while occurring with more regularity, would be structured differently and allow for less in-depth analysis than a traditional rate case. However, PSO has proposed a backstop, stating it would file a full-blown rate case after three years.

Q: Who may participate in rate cases?

A: Anyone can take part in a rate case, whether by emailing public comment to the commission, or formally intervening as a party. Formal parties have the right to issue discovery, present witnesses, and cross-examine witnesses of other parties, including the utility’s witnesses. Common parties include the commission’s staff, the attorney general, large industrial customers, AARP, and the Department of Defense. Intervening parties may aim to influence utility policies, or ensure the utility’s costs are reasonable. Parties also may advocate on behalf of particular customer classes during the rate design process, ensuring costs are fairly apportioned among customers.

 

Published: 2/6/19; by Paula Burkes
Original article: https://newsok.com/article/5622090/qa-by-c-eric-davis-anyone-can-take-part-in-utility-rate-cases

NewsOK Q&A: IP assignment agreement is key to invention ownership

Phillips Murrah Patent Attorney Cody J. Cooper

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

In this article, Oklahoma City Patent Attorney Cody J. Cooper discusses the rights inventors have when inventing under the employment of someone else.

Q: When an employee invents something during the course of his or her employment, who owns the invention?

A: The employee owns the invention. Inventors’ exclusive right to their inventions is specifically written into the United States Constitution and, as such, courts have generally interpreted ownership of inventions to favor individuals, except in very narrow circumstances.

Q: How can an employer assure ownership when an employee conceives of an invention on the job?

A: The employer must have employees sign an intellectual property (IP) assignment agreement. Because the general rule is that an inventor owns the rights, courts strictly interpret IP assignment agreements. Recent case law has instructed employers that how you draft the assignment agreement is equally as important as having an agreement in the first place. In fact, the Federal Circuit recently determined, in Advance Video Technologies LLC v. HTC Corporation Inc., that an IP assignment must include language saying the employee “assigns” — present tense, not future tense — their employer all IP rights. The small difference in language had a tremendous impact on the employer’s ability to sue another company for patent infringement.

Q: Should IP assignment agreements only be used by businesses in manufacturing, research or product development?

A: No. I would suggest any company consider having its employees sign an IP assignment agreement if the company expects employees to create work or inventions to which the company would expect to have rights and expects to protect it through application for apply for a trademark, patent, copyright or other appropriate protection to keep others from using it without permission.

Q: What are some other employer considerations regarding IP assignment agreements?

A: Make sure that your employees sign IP assignments before they begin working for you, and make sure that you consult an attorney on the drafting of the IP assignment to ensure that it complies with current law and effectively assigns the IP rights you are seeking to protect.

Q: What if an employer has employees who’ve already created inventions that the employer presumed the company owned but doesn’t have an IP assignment in place? Can the company enter into an IP assignment agreement retroactively?

A: If this is the case, the invention is owned by the employee, and the employer likely has no rights to the invention. Nevertheless, the employer and employee can still enter into a IP assignment agreement, but there must be some sort of consideration (exchange in value) passed between the parties. The law makes clear that it is not enough for the employer to say that the consideration the employee is receiving is that they get to keep their job — there must be something more passing to the employee for their assignment of their invention (i.e. money, stock, etc.).

 

Published: 1/30/19; by Paula Burkes
Original article: https://newsok.com/article/5621521/qa-with-cody-j-cooper-ip-assignment-agreement-is-key-to-invention-ownership

 

Phillips Murrah Blocks for Bucks campaign breaks $10K mark

Sign of the Times – The Nuts and Bolts of Raising Awareness

What’s in a name? For Phillips Murrah, our name represents over 30 years of dedication and partnership with our clients and our community. We are proud to announce our new exterior sign, which proudly hangs on OKC’s Corporate Tower, wherein our headquarters is located.

It’s no secret that Phillips Murrah has ramped up our effort to raise the profile of our Firm’s name and recognition of our logo, and our new Corporate Tower sign is a fine example of “pure branding.” However, it is important to also point out that “pure branding” has not been our recent promotional path.

Over the years, our Firm, as well as our individual attorneys and staff, has been very active in the community through dedicating time, energy and funding to many causes and organizations throughout Oklahoma City.  However, many of these efforts have flown under the radar regarding our position in the consciousness of the community. The fundamental motivation for these actions simply does not include praise or recognition.

However, from a branding standpoint, it is important to tie our innate philanthropic spirit, both as individuals and as a corporation, into a larger campaign designed to share who Phillips Murrah is and what we do outside of providing excellent representation for our clients. This is why many of our recent promotional campaigns are concerted efforts to achieve two goals: One, to raise awareness of our brand in the community, and two, to ensure that each of these campaigns demonstrate our commitment to the community.

For example, our partnership with the Oklahoma City Thunder, through our Blocks for Bucks campaign, directly benefits the Thunder Cares Foundation. For each shot blocked by our home team during home games, Phillips Murrah donates $100 to Thunder Cares, which helps fund the great work they do in the community. For the 2017-2018 season, Phillips Murrah donated a total of $17,000 to Thunder Cares. We are happy to say that we’re on our way to exceed that amount for the 2018-2019 NBA season.

Another example of this two-pronged strategy is our sponsorship of the Six Day Cellars tent at the 2018 Festival of the Arts. While helping provide a great area for leisure and refreshment to patrons of OKC’s annual art festival, we are also proud to help fund one of our city’s great non-profit organizations, Arts Council Oklahoma City. We are repeating our sponsorship of Six Day Cellars at the 2019 Festival of the Arts.

Through these and other campaigns, including with the StoryCorps Mobile Recording Booth, Regional Food Bank of Oklahoma and Cristo Rey, Phillips Murrah goes beyond “pure branding” to ensure that those who become more aware of our Firm’s name through our promotional efforts also understand that, while we are committed to the success of our clients, we are also committed to helping build a better community.

Phillips Murrah announces new Director, Shareholder for 2019

Director Zachary K. Bradt

Director Zachary K. Bradt

Phillips Murrah proudly announces the promotion of Zachary K. Bradt to a Director and Shareholder for the Firm. Zac’s selection brings the Firm’s total number of Directors to 37.

“I feel very honored and fortunate to be a part of the outstanding team at Phillips Murrah,” Zac said. “During my time here, the Firm has placed great emphasis on developing its Energy and Natural Resources practice to meet the ever-growing needs of our clients. I look forward to using this new role to facilitate further growth and continue providing services that help our clients succeed.”

In his practice, Zac has prepared numerous drilling title opinions, division order title opinions and acquisition title opinions, and conducted due diligence in the acquisition and divesture of oil and gas properties. His growing oil and gas transactional practice is focused around the preparation of various oil and gas agreements, instruments, and conveyances as well as the drafting of curative documentation to clarify record title for his clients.

“Since joining Phillips Murrah almost five years ago, Zac has shown considerable commitment to his clients and to improving and growing his practice at the Firm.” said Thomas G. Wolfe, President and Managing Partner. “We are confident Zac’s experience and success at the Firm will thrive in his position as Director and Shareholder.”

Born and raised in Oklahoma, Zac makes his home in Edmond, with his wife, Amy, and son, Jude. In his free time, he enjoys spending time with his family, watching sports, traveling, and golf.

He officially assumed his new role on Jan. 1, 2019.