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Potts: How to determine whether to hold or terminate an oil and gas lease

Morgen Potts Attorney

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

When a landowner leases property to an energy company, the lease agreement typically contains a held-by-production provision, also known as a habendum clause. In Oklahoma, habendum clauses in oil and gas leases establish that after the primary lease term has ended, the lease shall remain in force as long as the land is capable of producing a minimum amount of oil or gas. But how do courts decide whether to hold or end such a lease?

Habendum clauses typically describe the lease term as, “from the date hereof and as long thereafter as oil or gas … is produced from said land.” When the term “produced” is used in a “thereafter” provision of the habendum clause, it has been determined by courts to mean production in “paying quantities.”

However, “paying quantities” is not determined by a specific dollar amount. Rather, it is defined as an amount of production sufficient to yield a profit to the lessee beyond lifting expenses, which include costs of operating the pumps, gross production taxes and electricity.

To determine whether a lease is commercially producing and, therefore, may be held by production, there are four factors that courts take into account: the accounting period, revenue during that period, expenses during that period, and equitable considerations.

The accounting period chosen for any production analysis varies and is determined by examining facts and circumstances specific to the lease. Accounting periods can make or break a case when trying to ascertain whether there was production in paying quantities. Thus, to reflect the production status, it is crucial to determine a sufficient amount of time that would provide information that would allow a “reasonable and prudent operator” to decide whether to continue or cease operation.

For example, in Hoyt v. Continental Oil Co., the accounting period was 14 months. In Smith v. Marshall Oil Corp., the accounting period was 35 months.

Once an accounting period is established, all revenue generated by the lease during that period is considered. Next, lifting expenses are considered and compared against revenue to see which is greater. However, this consideration does not include overriding royalties, overhead, and depreciation.

Lastly, if the lease is unprofitable, the court will examine any equitable considerations to determine if any justify maintaining the lease. These considerations are very specific to the circumstances of the lease that may affect profitability, which could include market conditions, changes in public policy, pipeline access, and conflict resolution activity.

If, after examining all factors, it is determined that the lease is returning a profit over lifting expenses, the lease will not be vulnerable to termination and shall be allowed to continue beyond the primary lease term.

Morgen D. Potts is an attorney with Phillips Murrah in the Energy and Natural Resources Practice Group.

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 pagehttps://phillipsmurrah.com/careers.

Gavel to Gavel: Who should define the terms of an oil and gas lease?

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on May 30, 2019.


Molly Tipton

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

By Phillips Murrah Attorney Molly E. Tipton

Whose job is it to determine which expenses can be deducted from royalty payments under the terms of an oil and gas lease? Is it the lessee or the operator? People argue both positions and all parties desire clarity in who bears this burden.

Unfortunately, there are many interpretations of the differing forms of deductions language in leases, and the courts have not had the opportunity to make a decision. Many operators have recently requested input from the lessee on royalty valuation, but some lessees may balk at this idea because current practice typically provides that the operator cuts the checks.

Pursuant to 52 O.S. § 570.8(A), a working interest owner in a gas well shall furnish to the operator the name, address, royalty interest, taxpayer identification number, and payment status of royalty interest owners for whom they hold a lease. While this language does not place the burden on the working interest owner to tell the operator how royalty proceeds should be valued under the terms of the lease, it is understandable that an operator wishes for input from the lessee, as they are a party to the lease.

However, when an operator asks a lessee to determine how royalty proceeds should be valued under the terms of the lease, the lessee may fear liability to the royalty interest owner in the event that the operator is paying the royalty contrary to how the lessor interprets the terms of the lease.

The lessee should take comfort in the language in 52 O.S. § 570.9(D), which states that any working interest owner that pays or causes to be paid royalty proceeds for gas production in accordance with the Production Revenue Standards Act valued according to the terms of such working interest owner’s lease shall be relieved of all liability to the royalty interest owners for any further payment of proceeds from such production.

The valuation of royalties will affect both the royalty owner and the lessee, and without any guidance from the courts, there is no definitive answer as to who should define the exact terms of the lease. One can understand why neither the operator, nor the lessee, wants the burden of defining the lease terms, as they affect royalty deductions. Only time will tell whose job it is after all.

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.

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.

Director Nikki Edwards quoted by Journal Record on divorce settlements

Nicholle Jones Edwards

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

A change in tax deductions regarding alimony has lead to an influx of clients looking to expedite their divorces.

Nikki Edwards, Phillips Murrah Director and Family Law Attorney, was quoted in a Journal Record article addressing the circumstances agreeing with Ron Little, McAfee & Taft Family Law Attorney.

Phillips Murrah Family Practice Law Director Nikki Edwards said she’s seeing the same issues from her clients as Little. She has clients who are trying to get the agreement finalized in a few weeks, while others are willing to push it into 2019.

“It was a surprising change because it’s been well-settled for many years,” she said. “The impact will be to restructure the settlement negotiations.”

She said from a practitioner’s standpoint, the change gets back to why alimony was created, which is predicated on one’s ability to pay versus one’s need.

“(The new law) will take out the thoughts of paying more because of the tax benefit,” she said. “It takes out the incentives for both sides.”

Read the full article by The Journal Record here.

Phillips Murrah’s legal team welcomes labor and employment attorney

Lauren Barghols Hanna

Lauren Barghols Hanna

Phillips Murrah law firm is proud to welcome Lauren Barghols Hanna to our downtown Oklahoma City office.

The Firm welcomed Lauren to the Firm’s Labor and Employment Practice Group as an Of Counsel attorney.

As a part of her employment practice, Lauren counsels and represents management in all phases of the employment relationship, including litigation matters involving discrimination, retaliation, harassment and wrongful discharge claims, whistleblower claims, claims related to employment agreements and theft of trade secrets, and other disputes arising from the workplace.

She also works with employers in crafting appropriate employment policies and procedures, employee handbooks, non-disclosure/non-solicitation agreements, and employee severance agreements and releases.

Lauren’s practice in the area of water rights frequently involves the representation of landowners in obtaining groundwater and streamwater permits for irrigation, oil and gas industry production, and other beneficial uses.

Lauren is a contributing author to the Oklahoma Employment Law Letter and has been interviewed by The Oklahoman, served as a guest legal columnist for The Journal Record business newspaper, and spoken at seminars on a variety of employment-related topics. She also authored the Oklahoma chapter of the LexisNexis Waters and Water Rights treatise.

Lauren’s achievements have earned her inclusion in The Best Lawyers in America (employment law—management; labor and employment litigation) and Oklahoma Super Lawyers.

In addition to her legal practice at the firm, she serves as a volunteer attorney for Oklahoma Lawyers for Children, a nonprofit organization that uses the time, talent, and resources of pro bono lawyers to represent and assist children in various matters, including parental termination jury trials before the Oklahoma County District Court (Juvenile Division).

In 2014, the Oklahoma CASA Association honored Lauren with its “Attorney of the Year” award for her work with OLFC. Lauren and her family also work with the Tinker Air Force Base Home Away From Home Program, welcoming Airmen serving their first tour into their family for holiday meals, birthday celebrations, summer cookouts, and other activities to create community and mentorship for young enlisted airmen.

Born and raised in Oklahoma, Lauren lives in Edmond with her husband Adam and her two children. Her hobbies include rowing, camping, and OU sports.

Lawyers know everything – almost

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on October 25, 2018.


Dave Rhea

Dave Rhea is the Marketing Director for Phillips Murrah law firm.

By Phillips Murrah Marketing Director Dave Rhea

What is brand affinity? What is SEO? Many attorneys admittedly don’t know much marketing jargon. Historically speaking, marketing is a relatively new addition to the legal industry. Only 41 years ago, the U.S. Supreme Court recognized lawyers’ right to advertise.

From what I understand – as a non-attorney working in a large law firm – law schools don’t offer many, if any, classes about marketing methods. Thus, these activities can seem as impractical to lawyers as dancing does to steelworkers.

However, in today’s digital landscape, it’s reasonable for attorneys to consider adopting a marketing mindset. Technology, coupled with the growing inclination of law firms to onboard marketing professionals, allows attorneys to easily demonstrate their expertise to a much wider audience while sacrificing fewer billable hours.

What can attorneys do to develop more business in the digital age? There are numerous ways to leverage new media to effectively enhance one’s visibility and reputation in the community, but for this column I would like to concentrate on one such activity, in particular.

The biggest bang for the non-billable hour is thought-leadership authorship. Writing short-form articles on a consistent basis for publication on the firm’s website, or blogging, is an easy way to position oneself as an industry leader. Such articles can have a long shelf life and are versatile in how they can be disseminated. This activity also allows for exposure outside of the attorneys’ usual circles of influence while building a body of work that increases their digital footprint, which allows the attorney-authors and their firms to be found more easily on Internet search engines.

Savvy, marketing-minded author-lawyers can also use such articles to heighten awareness and demonstrate excellent customer service to their clients and prospects. Using direct outreach via one-to-one email, these attorneys can show proactive attention and demonstrate knowledge of the targets’ industries, thereby harnessing a proven way to nurture relationships and win new business.

Old-school rainmakers with existing books of business and established reputations may not view blogging as a beneficial use of their time. However, many of these key influencers still understand the benefit of developing a marketing-mindset culture within their firms and go the extra mile to promote buy-in from junior partners and associates.

Dave Rhea is marketing director at the law firm of Phillips Murrah in Oklahoma City.

Phillips Murrah rowing team wins gold in 2018 Oklahoma Regatta Festival

Law & Oarder, Phillips Murrah's rowing team, gets ready to compete in the 2018 Oklahoma Regatta Festival.

Law & Oarder, Phillips Murrah’s rowing team, gets ready to compete in the 2018 Oklahoma Regatta Festival.

Phillips Murrah’s rowing team Law & Oarder ended the Fall 2018 season on top and scored gold medals in the annual regatta competition.

The team competed on Sept. 28 at the 2018 Oklahoma Regatta Festival held at the OKC Boathouse District and achieved a 500-meter run of 2:05:39.

“Another great season, and I think the main thing we learned as a team is to never underestimate your competition,” said Deena Baker, Legal Assistant and Law & Oarder team captain. “Regardless, a gold medal and trophy for the team it was!”

In all nine seasons the Firm’s rowing team has competed, team members consisted of both attorneys and staff members.

“The team worked really hard all season,” said Bradley Burt, Legal Assistant. “We had some changes in the seating configuration as well as multiple rained out practices, but the team overcame a lot of adversity and practiced indoors even when it was not necessary allowing us to perform to the best of our abilities.”

“I am ecstatic that competing to the best of our abilities led us to the gold medal.”

The team will resume practice in the Spring for the Stars & Stripes Festival in June 2019.


Journal Record and Oklahoman Best Places to Work of 2017

Phillips Murrah has been recognized as one of the Best Places to Work in Oklahoma in 2017 by The Journal Record and an Oklahoma Top Work Place by The Oklahoman/Energage three years in a row. Our Firm strives to recognize and reward our employees for excellence.

Firm selects Employee of the Month for September 2018

Tifany Manning

Tifany Manning

Tifany Manning, Legal Assistant, is Phillips Murrah’s Employee of the Month for September 2018.

“Wow, it’s such a privilege to be chosen as Employee of the Month,” she said. “My bosses and co-worker’s are the BEST around!  I love my job and thankful I get to work for such a great firm.”

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

“It has been a pleasure and honor to work with Tifany,” Director Jennifer L. Miller said. “No matter the task, Tifany always has a positive and professional attitude. Her work ethic and dedication to excellence is immeasurable.

“Tifany is a valuable member of the Phillips Murrah team and the award is very much deserved.”

Starting this month, the Firm will begin making a donation to the winner’s charity of choice.

“I chose Cavett Kids Foundation as my charity,” Manning said. “Cavett Kids strives to help kids with severe and life threatening illnesses have some normalcy by attending camps, of which they have six different ones, and just be a kid doing kid things.

“I have volunteered several times and learn something from these sweet kiddos every time. I love their mission, their values and their motto.”

Phillips Murrah attorneys volunteer each year with the foundation’s Camp Cavett send-off.

To learn more about Cavett Kids Foundation and how you can get involved, visit their website here.


Journal Record and Oklahoman Best Places to Work of 2017

Phillips Murrah has been recognized as one of the Best Places to Work in Oklahoma in 2017 by The Journal Record and an Oklahoma Top Work Place by The Oklahoman/Energage three years in a row. Our Firm strives to recognize and reward our employees for excellence.

Firm selects Employee of the Month for August 2018

Deena Baker

Deena Baker

Deena Baker, Legal Assistant, is Phillips Murrah’s Employee of the Month for August 2018.

“It is once again an honor to be recognized as employee of the month,” she said. “My co-workers and bosses are the best a person could ask for!

“It’s a great privilege to be part of such a wonderful firm and awesome team!”

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

“Deena works until the job is done right, regardless of what the clock says, which is a function of her strong work ethic,” Director Juston R. Givens said. “The value Deena brings to my practice and the work she does for the Phillips Murrah team is truly immeasurable.”


Journal Record and Oklahoman Best Places to Work of 2017

Phillips Murrah has been recognized as one of the Best Places to Work in Oklahoma in 2017 by The Journal Record and an Oklahoma Top Work Place by The Oklahoman/Energage three years in a row. Our Firm strives to recognize and reward our employees for excellence.

Avoid a clawback

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on September 13, 2018.


Clayton Ketter

Clayton D. Ketter is a Director and a litigator whose practice involves a wide range of business litigation in both federal and state court, including extensive experience in financial restructurings and bankruptcy matters.

By Phillips Murrah Director Clayton D. Ketter

A business owner learns that one of her customers has filed for bankruptcy. She rushes to check her books and breathes a sigh of relief after seeing that the customer paid all of their outstanding invoices just days before going bankrupt. Unbeknownst to the business owner, those payments may have to be paid back to the bankruptcy estate as a preference.

One of the principal policies underlying bankruptcy law is fairness to creditors, which attempts to ensure that similarly situated creditors are treated equally. To promote this goal, creditors in a bankruptcy are placed into classes, with members of each class sharing proportionally in distributions of a bankrupt debtor’s assets.

This policy can be hampered when a debtor pays a preferred creditor immediately before a bankruptcy, to the detriment of other creditors. To ensure that a debtor’s limited money does not disappear to creditors favored by the debtor, the Bankruptcy Code allows a bankruptcy trustee to claw back such payments.

A payment is considered a preference if it meets five criteria: It is made to a creditor; for a debt owed prior to the payment being made; while the debtor was insolvent; during either 90 days before the bankruptcy filing for ordinary creditors or one year for insiders of the debtor; which allowed the creditor to receive more than it would have received in distributions from the bankruptcy estate.

If a payment is a preference, it must be paid back to the trustee unless a valid defense can be established.

Several defenses are available to creditors, including for substantially contemporaneous exchanges. Typically, point-of-sale transactions and those that involve cash on delivery will meet this defense. Another common defense exists for payments made in the ordinary course of business, which analyzes the typical transactions between the parties and in the relevant industry. If it is common for a debtor to pay invoices within 60 days of delivery, for example, those payments may meet the ordinary course defense.

Businesses can take steps to shield payments received from financially troubled customers from being subject to preference liability. The most effective means is to require prepayment, COD, or point-of-sale transactions only. Businesses can also strategically apply payments to invoices in a manner designed to fit within preference defenses.

To recover a preference, the bankruptcy trustee must commence a lawsuit within the bankruptcy case, typically preceded by a demand letter. Any business that receives such a letter should consult with bankruptcy counsel to determine whether they have valid defenses to the claim. Consulting with a bankruptcy attorney is also advisable prior to entering into sizable business transactions with a financially troubled company to attempt to eliminate preference risk. Doing so can help reduce the risk that a business gets embroiled in a bankruptcy, and worse, has to repay money that it was owed.

Clayton D. Ketter is a litigation attorney at Phillips Murrah P.C. who specializes in financial restructuring.

Firm selects Employee of the Month for July 2018

Nanette Morris

Nanette Morris

Nanette Morris, Paralegal, is Phillips Murrah’s Employee of the Month for July 2018.

“I’ve worked for Phillips Murrah for almost 19 years, and I can’t think of anywhere else I’d want to work,” Morris said. “The work is challenging and fun, and – even better – I get to work with so many smart and talented people.

“I really do love my job!”

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

“Nanette has been with the firm for over eighteen years and is a highly skilled legal assistant,” Director Elizabeth K. Brown said. “She plays an integral role in our transactional and estate planning department.

“With her positive and professional demeanor, she works well even under the most stressful situations in  the practice of law. She is smart, hard-working and dependable and always a pleasure to work with. She definitely deserves this honor.”


Journal Record and Oklahoman Best Places to Work of 2017

Phillips Murrah has been recognized as one of the Best Places to Work in Oklahoma in 2017 by The Journal Record and an Oklahoma Top Work Place by The Oklahoman/Energage three years in a row. Our Firm strives to recognize and reward our employees for excellence.

Firm selects Employee of the Month for June 2018

Tess Bromme

Tess Bromme

Tess Bromme, Billing Coordinator, is Phillips Murrah’s Employee of the Month for June 2018.

“I am beyond thankful to call Phillips Murrah my place of work and to be recognized in this way is a fantastic honor,” Bromme said.

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

“Tess is a valued member of the Accounting Department and her contributions help to make the Firm run efficiently,” Controller Stephanie Oseland said. “She is a hardworking and positive person, and it is a pleasure to work with her. She deserves this honor.”


Journal Record and Oklahoman Best Places to Work of 2017

Phillips Murrah has been recognized as one of the Best Places to Work in Oklahoma in 2017 by The Journal Record and an Oklahoma Top Work Place by The Oklahoman/Energage three years in a row. Our Firm strives to recognize and reward our employees for excellence.

Monkey’s business?

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on June 21, 2018.


Cody 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.

By Phillips Murrah Attorney Cody J. Cooper

In 2011, a nature photographer in an Indonesian nature reserve left his camera unattended in the forest. A 7-year-old crested macaque monkey named Naruto, perhaps in an effort to increase its Instagram followers, decided to take several selfies using the camera. The photographer then, in 2014, published the monkey’s photographs in a book for sale online.

People for the Ethical Treatment of Animals sued as next friend of Naruto seeking to enforce Naruto’s copyrights to the photographs and to recover profits from the sale of the book.

The question became whether Naruto had statutory standing to claim copyright infringement on what became referred to as Monkey Selfies. According to the 9th Circuit Court of Appeals, the answer is no.

Humans, unlike monkeys, have a constitutional right to protect their works and inventions under Clause 8 of Section 8 contained within Article I of the Constitution, and those rights are further set out in the United States Copyright Act. These rights include the right to use, distribute, sell, duplicate, display and create derivative works. These rights are most commonly associated with books, magazines, plays, paintings and photographs, but can also apply to things like architecture and even graffiti.

The 9th Circuit, in Naruto, et al., v. Slater, et al., No. 16-15469 (9th Cir. April 23, 2018) affirmed the trial court’s ruling that, despite the fact that the monkey had standing under Article III of the U.S. Constitution, Naruto did not have standing under the Copyright Act to bring the lawsuit. In other words, monkeys (or any other animal) cannot bring copyright infringement claims because the Copyright Act does not expressly authorize it. So, Naruto’s case was dismissed.

Citing Cetacean Cmty. v. Bush, 386 F.3d 1169, 1175 (9th Cir. 2004) as precedent, the 9th Circuit Court of Appeals held that “if an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing. If the statute does not so plainly state, then animals do not have statutory standing.”

If Naruto teaches nothing else, it should be to remember that if you see your pet attempting to take a selfie with an abandoned camera, be sure to take the picture yourself, in case it becomes famous. Someone will be making money on it, and it might as well be you.

Cody J. Cooper is a patent attorney with the Oklahoma City law firm of Phillips Murrah.

Firm selects Employee of the Month for May 2018

Tyler Sullivan

Tyler Sullivan

Tyler Sullivan, Administrative Assistant, is Phillips Murrah’s Employee of the Month for May 2018.

“I have the privilege of working with an incredible group of people, and I feel so honored that they chose to recognize me as Employee of the Month,” Sullivan said.

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

“Tyler started with our Firm in an entry level position, and has proven that she is capable of much more,” Executive Director Michelle Munda said. “She was recently promoted, and she continues to grow at our Firm.

“We are happy that she works here with us and look forward to more advancement for her!”


Journal Record and Oklahoman Best Places to Work of 2017

Phillips Murrah has been recognized as one of the Best Places to Work in Oklahoma in 2017 by The Journal Record and an Oklahoma Top Work Place by The Oklahoman/Energage three years in a row. Our Firm strives to recognize and reward our employees for excellence.

Roth: An open letter of thanks

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on June 4, 2018.


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

Roth: An open letter of thanks

Occasionally in life our journeys come full circle in a way that allows for reflection and gratitude, such as this, my last recurring column in this newspaper.

As a 13-year-old I was a paper boy for my hometown’s Wednesday and Friday Johnson County Sun newspaper. I would come home from school, find the large bundles on my doorstep, set about folding them and placing them inside the large canvas side bag and ride my bike while throwing the papers onto the lawns of the subscribing homeowners, often until dusk. In the rain the papers got a plastic bag, otherwise green rubber bands bound the tri-folded news. And then once a month I would walk the neighborhood knocking doors to collect the $2 per subscriber. I much preferred the time on my bike rather than the time chasing money. That hasn’t changed.

What has changed for me personally is that for the past nine years I have had the privilege to share a weekly column on the inside of a newspaper and a really good paper at that. The Journal Record is Oklahoma’s oldest business publication and since 1903 scores of hardworking reporters, designers, editors, printers and staff have consistently created an award-winning daily general business and legal publication. It’s been an honor to be an occasional columnist among those hard-working folks.

What has changed for the industry since 1903 is monumental. Gone are the Norman Rockwell-esque newspaper routes across America, replaced in part by online subscribers and clicks to drive readers’ interest and revenue. Color, font size, specialty sections and even the size of headlines compared to the size of news stories have all changed. But one thing hopefully has remained true: Americans need real and accurate news to not only sustain, but to improve, the greatest experiment in human governance, this American adventure of ours. And we need to actually read it for it to matter.

Joseph Pulitzer famously said: “What a newspaper needs in its news, in its headlines, and on its editorial page is terseness, humor, descriptive power, satire, originality, good literary style, clever condensation and accuracy, accuracy, accuracy!” And although he is best known for the Pulitzer Prizes created from his endowment of Columbia University, he is less known, ironically, for the use of “yellow journalism” (along with his chief rival William Randolph Hearst) to appeal to broader masses through lesser researched, or less accurate “news.”

Today, my car radio presets for satellite news scroll through CNN, MSNBC, Fox News, CNBC and the BBC. When those five prove frustratingly weak, biased or more ads than substance, the sixth preset is the comedy station for a much-needed break from it all. But we can’t take too many breaks from it all, or the hot air and yellow journalism risk replacing the importance of accuracy, fair reporting, deep thinking and the power of sunshine for our society.

So Thank You. Thank you to you readers for your interest in this publication and the importance of good journalism from these full-time professionals at The Journal Record. Thank you to those of you in journalism and news today who actually strive to be accurate, who know being balanced is more than a slogan and it requires genuine effort, and to those of you working long hours to provide today’s 24/7 news appetite, but who know that no matter how late the story, the truth is always timely.

I am grateful for you. And I am grateful for the chance to have shared energy and environmental ideas and observations for Oklahoma and beyond these past years, in a publication that strives every day to deliver the truth. Thank you.

Jim Roth has been appointed to serve as the new dean of the Oklahoma City University School of Law beginning July 1, and as an alum of OCU Law, will be enjoying that life’s full-circle opportunity of service.

Business websites under legal pressure

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on May 10, 2018.


Kathryn Terry

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

By Phillips Murrah Director Kathryn D. Terry

The Americans with Disabilities Act prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations, communications, and access to government programs and services.

The third section of ADA, Title III, addresses places of public accommodation, such as retailers, hospitals and state agencies. Under these rules, and in general, places of business are obligated to provide access to physical locations in the form of wheelchair ramps, signs that feature braille, and other means by which patronage of businesses is made possible for disabled persons.

Currently, similar attention is being focused on websites, as many businesses offer information and opportunities and conduct commerce via their website. Lawsuits are being brought claiming that these websites should be fully usable for persons with disabilities, just like brick-and-mortar locations.

To address Title III compliance, the World Wide Web Consortium developed an evolving set of standardized guidelines for improving accessibility to website content. The most recent, widely accepted version is called Web Content Accessibility Guidelines 2.0 AA, commonly referred to as WCAG 2.0 AA, which recommend, among many suggestions, text alternatives to graphics for visual disabilities, and captions to audio for those with hearing impairments.

Within the past few years, growing exponentially in 2017, lawsuits on behalf of disabled persons have been filed claiming website-related violations of ADA Title III. Recently, the lawsuits have been coming in waves, with online retailers being the first obvious targets, followed by online financial institutions, such as banks and credit unions, both large and small.

While there are no laws mandating WCAG 2.0 AA compliance at this time, the absence of any regulatory requirement does not shield businesses from ADA liability under Title III. Most businesses that have more than 15 full-time employees are subject to the ADA, and even if a business has less than 15, Oklahoma’s state law still applies.

However, in Oklahoma, there is a new statute that requires prior notice and an opportunity to cure the website issues in advance of any litigation under state law only. Businesses should consider this statute carefully if they receive a demand or lawsuit.

Many businesses are smartly getting ahead of this issue by reviewing their websites to identify potential accessibility barriers and implementing WCAG 2.0 AA guidelines as part of regular IT upgrades.

Kathryn D. Terry is a director at the law firm of Phillips Murrah.

Firm selects Employee of the Month for April 2018

Penny Stansberry

Penny Stansberry

Penny Stansberry, Paralegal, is Phillips Murrah’s Employee of the Month for April 2018.

“I’m humbled by the recognition by my co-workers, and since we help each other a lot working here, I’d prefer to call them my friends,” Stansberry said. “I’ve been with Phillips Murrah and its predecessors a long time and that it feels like a family to me is the biggest reason I’ve been here so long.”

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

“I’ve had the pleasure of working with Penny for more than 30 years between different firms and am glad we’ve made Phillips Murrah ‘home,’ ” Thomas G. Wolfe, Firm President and Managing Partner, said. “She is cheerful, reliable, and a vital part of the Firm.”


Journal Record and Oklahoman Best Places to Work of 2017

Phillips Murrah has been recognized as one of the Best Places to Work in Oklahoma in 2017 by The Journal Record and an Oklahoma Top Work Place by The Oklahoman/Energage three years in a row. Our Firm strives to recognize and reward our employees for excellence.

Firm selects Employee of the Month for March 2018

Maribeth Mills, Paralegal, is Phillips Murrah’s Employee of the Month for March 2018.

“It is such a compliment to be recognized by an amazing team of co-workers,” Mills said.

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

“I’m very proud to work with Maribeth on a daily basis,” Director Clayton D. Ketter said. “Her work ethic and dedication are of the highest caliber, as is her expertise in many areas of the law. The award is very much deserved.”


Journal Record and Oklahoman Best Places to Work of 2017

Phillips Murrah has been recognized as one of the Best Places to Work in Oklahoma in 2017 by The Journal Record and an Oklahoma Top Work Place by The Oklahoman/Energage three years in a row. Our Firm strives to recognize and reward our employees for excellence.

Roth: A quote to remember this spring

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on April 2, 2018.


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

Roth: A quote to remember this spring

It is officially spring. At least here in the Northern Hemisphere. In Oklahoma we’ve lost an hour of sleep but some of us enjoy the earlier sunrise and later sunset the longer days offer.

We Oklahomans know that with spring come tornado season and our obsessive assessment of the weather. Lucky for us, we have the National Weather Center in Norman, with some of the foremost scientists in the field doing their best to evaluate our crazy weather and warn us when necessary. The center is a sub-organization of the National Weather Service, a branch of the National Oceanic and Atmospheric Administration.

The Climate Prediction Center, also a part of NWS, forecasts future weather conditions relative to what is normal, as opposed to daily weather forecasts that aim to predict things like high and low temperatures and rainfall potential. Each year in March, the Climate Prediction Center releases its Spring Outlook report. This year, the report predicts moderate flooding, warmer-than normal temperatures, and persistent drought that will affect more than one-fourth of the country from California through Oklahoma and the Great Plains.

Another timely release for the erratic weather season was a new study that links warming Arctic temps to colder weather, again. The study was published in the peer-reviewed journal Nature Communications. Peer review is one indicator of reliable research. A peer-reviewed publication requires the author to offer strong evidence for the conclusions set forth. Other scientists in that field read the work and provide feedback as to whether they regard it as sufficiently high quality to publish. The process is somewhat analogous to a Daubert hearing for legal evidence. These methodologies are not perfect, but they provide an opportunity for scrutiny, and scrutiny can reveal the weakness in an idea, thus allowing it to be improved or rejected.

Increasingly, climate-related science is subject to intense scrutiny, at times more Draconian than Daubert. Despite this, scientists persevere, and this study reveals results similar to those that have preceded it in earlier studies. Generally, that climate change is not fake news; specifically, this study revealed a nexus between warming temperatures in the Arctic and an increase in severe winter weather in the eastern U.S., and did so more extensively than previous studies. While the scientists duke this out, one concept that has been continually proven is that greenhouse gases are warming the planet, and the Arctic is warming more quickly than other locations. Since science and our ability to understand the things around us is always improving, I pose, at the very least, that we remain open-minded to repeatedly demonstrated research.

The author Robert Pirsig is quoted as saying something really provocative about dogma. “You are never dedicated to something you have complete confidence in. No one is fanatically shouting that the sun is going to rise tomorrow. They know it’s going to rise tomorrow. When people are fanatically dedicated to political or religious faiths or any other kinds of dogmas or goals, it’s always because their dogmas are in doubt.”

In other words, loud people on the subject of climate change are probably less secure about their beliefs (and the evidence to support it) than those that more quietly rely on established, peer-tested science. So as the raucous Oklahoma spring season begins, especially as Easter coincides with the change between March and April, it might be a good time to read up on the Climate Prediction Center’s recent study and then see for yourself what climate unfolds.

Oh, and one more favorite quote to remember: Science doesn’t care if we believe it or not, it just is.

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.

The ins and outs of impeachment

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on March 29, 2018.


Mark E. Hornbeek

Mark E. Hornbeek represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

By Phillips Murrah Attorney Mark E. Hornbeek

It has been a Stormy few months for the current administration. With the headlines full of names like Robert Mueller, James Comey and Vladimir Putin, there has been plenty of speculation surrounding the possibility of impeachment. Talking heads love to throw the term around, but how does impeachment work?

The Constitution doesn’t give much guidance into the impeachment process. The ability to bring impeachment charges against the president, the vice president or a public officer is given to the House of Representatives, which investigates public officials and then puts each impeachment charge to a simple majority vote. Afterward, the Senate has the ability to convict the accused by conducting a trial with a requirement of a two-thirds vote to remove the accused from office.

There are three grounds for impeachment, two of which are self-explanatory: bribery and treason. The third, high crimes and misdemeanors, is more akin to “covfefe,” in that it could mean practically anything. The framers chose this term in an attempt to clarify an earlier draft of the Constitution, which used the word “maladministration.” Perhaps there should have been a third draft for further explanation, as public officials have been impeached and convicted for offenses as diverse as perjury, tax evasion and even drunkenness. That last one seems particularly spiteful.

Simple incompetence generally doesn’t qualify as an impeachable offense, but even so, Congress has wide latitude to determine who deserves impeachment, and both parties have been accused of using the device as a political weapon.

Historically, a whopping 60 impeachment proceedings have been initiated by the House, but few have been successful. To date, only two presidents have been impeached by the House of Representatives. In 1868, Andrew Johnson was impeached for violating federal law, followed 130 years later by Bill Clinton’s impeachment for obstruction of justice and perjury. Neither was convicted by the Senate.

Surprisingly, the worst perpetrators of high crimes and misdemeanors appear to be federal judges. A total of eight judges have been impeached by the House and convicted by the Senate. Three more judges have been impeached but, not liking their chances, resigned before the Senate could hold a vote.

If America does, indeed, have to endure another impeachment, Semisonic’s Closing Time would make an appropriate theme song for the proceedings: “You don’t have to go home, but you can’t stay here.”

Mark E. Hornbeek is a litigation attorney at the law firm of Phillips Murrah in Oklahoma City.

Firm selects Employee of the Month for February 2018

Jack Thach

Jack Thach, Office Clerk, is Phillips Murrah’s Employee of the Month for February 2018.

“I’m blessed to be able to work with such a great group of people, and it is a real honor to win this award,” Thach said.

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

“Jack is dependable and always willing to pitch in or help with things outside his primary duty assignments,” David Carter, Lead Office Clerk, said.


Journal Record and Oklahoman Best Places to Work of 2017

Phillips Murrah has been recognized as one of the Best Places to Work in Oklahoma in 2017 by The Journal Record and an Oklahoma Top Work Place by The Oklahoman/Energage three years in a row. Our Firm strives to recognize and reward our employees for excellence.

Roth: Tariffs affecting American energy?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on March 19, 2018.


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

Tariffs affecting American energy?

The threat of President Trump’s tariffs have again managed to bring together groups sometimes at odds with one another, when they attempted to dissuade the administration from imposing new tariffs.

Everyone from the American Petroleum Institute to the American Wind Energy Association and Solar Energy Industries Association, to congressional Republicans, to the broader stock market had negative reactions to the news of a 25-percent tariff on most steel imports and a 10-percent tariff on most aluminum.

Those on one end of that spectrum say the move could set off a trade war, while the other end poses that at the very least the result of tariffs could contradict the stated goals of an “America First” economic plan. World leaders everywhere in between denounce the move as damaging to international trade and nonconforming with World Trade Organization rules. We’ll see what they do.

The implications of the tariffs could be vast, as higher prices on steel and aluminum pose a real threat to many American industries, where those materials are significant inputs, and whose markets rely on low prices from imported materials.

The tariffs could have an unintended detrimental effect on American jobs for industries such as cars and energy. It is the same concept with tariffs on solar cells and modules. True, solar tariffs are sure to make panels from China and elsewhere more expensive to import, but the price increase on equipment, and thus entire projects, could scare off potential solar customers. Fewer solar customers lead to lower demand; lower demand means less solar jobs. With tariffs on steel and aluminum, the ripple effects are even more wide-reaching.

As they say, “all roads lead to Rome.” While there are other means to this end, Trump opts to penalize imports in an attempt to protect or prop up industries at home. But the tariffs won’t affect everyone – an exemption for Canada and Mexico has been discussed if those countries are willing to renegotiate the North American Free Trade Agreement. Trump has been a frank and ardent opponent of the agreement. There is also a potential carve-out for U.S. parties who can demonstrate a demand for steel and aluminum that cannot be met domestically. Many folks across the energy industry want in on this exemption for obvious reasons, but the terms of the carve-out have yet to materialize.

Will the tariffs produce stronger steel and aluminum industries here at home, or will they cause trade wars worldwide? As per usual, we’ll have to wait and see, but for now most observers and energy industry participants suggest the effects will inflate their prices only nominally.

For now, we have the European Commission president’s pledge to slap tariffs on iconic U.S. exports, many from states described as Trump country, such as Midwestern wheat, Kentucky bourbon, blue jeans, and Harleys. Stay tuned.

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.

Roth: Electric vehicle market charging ahead

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on March 5, 2018.


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

Electric vehicle market charging ahead

Two million and counting. This was the title of the 2017 Electric Vehicle Outlook report by the International Energy Agency.

The market for electric vehicles continues to gain ground, although relatively speaking, it remains a small percentage of all U.S. auto sales. Still, every major car manufacturer has electrification plans, meaning their vehicles will operate using some amount of electric power.

Certain companies like Volvo are even vowing to cease building solely internal combustion engine vehicles. That is, the company does and will continue building hybrids, which by definition contain both gas and electric components. But like its competitors, Volvo will shift focus to all-electric vehicles, as sales for hybrids have declined, and EVs have become more ecological and economical.

The industry has evolved from the Prius-style gasoline-electric hybrid, to plug-in hybrids, to fully electric vehicles, sometimes called battery electric vehicles, and hydrogen cell vehicles. Toyota introduced the Prius to the U.S. in 2001 and still holds about 80 percent of the hybrid market.

If current trends continue, many predict this gasoline-electric-style hybrid will be obsolete before the combustion engine. Several causes support this notion. The shale revolution resulted in an influx of American oil and gas. An abundance of oil has made gas prices lower than 10 years ago when they peaked at $4.11 and the U.S. was primarily an importer of oil. This means consumers are at least slightly less concerned about gas prices, making a hybrid less appealing.

Next, an abundance of natural gas helped stabilize electricity prices, and making it more financially feasible to use electricity to charge a vehicle. Plus, the technology continues improving – batteries hold a charge longer and recharge quicker than ever. So, depending on consumer predilection, be it to save money on gas, to save the environment, or, simply to own the latest automobile technology, choices will likely include a battery electric vehicle or a gas vehicle, or, eventually as more fueling infrastructure is built, a hydrogen cell vehicle.

The U.S. is not the only country with growth in this industry – last year China led the way in the number of electrified cars on the road. Such a boon for battery electric vehicles will become an opportunity for the electric power sector.

Unlike many developing countries that lack consistent electricity for even basic needs, in the U.S. we enjoy such reliable electric power sources that many of us can elect to recharge electric vehicles overnight while we sleep. Or perhaps even using the electricity harnessed during the day via our rooftop solar panels at our places of work. Either way, the trend helps one imagine a future where your car is a large battery with four wheels that is ebbing and flowing electrons into an energy market and you are paying or being paid as the case may be.

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.

Avoiding construction contract litigation

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on February 15, 2018.


Samuel D. Newton is an attorney practicing in Oil and Gas, Construction, and Health Care Law.

By Phillips Murrah Attorney Samuel D. Newton

Oklahoma heavy civil and oil and gas construction will likely increase in the near term due to increased activity in the oil and gas fields and President Trump’s proposed $1.5 trillion investment in infrastructure.

Often seen as a heavily litigious industry, construction projects don’t have to end in litigation if contracts are carefully drafted and parties enforce the provisions during the course of the project. Here are some points to consider when drafting and/or reviewing.

Know your deadlines. Most construction contracts impose liquidated damages in the event of delay. While substantial/final completion is likely non-negotiable, (sub)contractors should raise, and try to draft around, any potential milestone concerns during negotiations to prevent the assessment of liquidated damages or exercise of the contract default provisions. Additionally, all parties need to be aware of the timeline for making claims or submitting change orders. Both are often waived under the contract if the proponent of the claim/change doesn’t submit the appropriate notice to the appropriate person in the requisite period of time.

Know the payment scheme. Payments are also often a litigious issue in construction. All parties should be aware of lien and, if applicable, bond claim rights, as they vary based on who the contracting entity is and where the project is located. Additionally, “pay if paid” and “pay when paid” clauses should not be confused. “Pay if paid” clauses shift the risk for nonpayment to lower tiers if payment is not received from higher tiers. “Pay when paid” generally only acts to give the (sub)contractor time to pay after it receives payment. Case law suggests that “pay if paid” clauses would need to be explicit to be enforceable in Oklahoma, though no cases directly examine the clause.

Know your contracting partners. Conduct due diligence to ensure that those you are contracting with – at each tier – have the skills and financial stability to complete the project. Consider including (or modifying) clauses that allow suspension and/or termination of the contract, if the representations and warranties you relied on when deciding to enter into the contract were untrue or grossly overstated.

Know your contract. Finally, don’t simply sign the contract and put it in a drawer. All parties should know the provisions and educate their employees about provisions relevant to their scope of work.

Samuel D. Newton practices construction and oil & gas law at Phillips Murrah P.C.

What’s in a name? Tremendous value

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on January 4, 2018.


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.

By Phillips Murrah Attorney Cody J. Cooper

The holiday season is coming to an end, and most people have opened their Xboxes and Legos, eaten some HoneyBaked Ham, braved the cold in their North Face jackets and thrown away holiday trash in Hefty trash bags.

With a glut of advertising during the holidays, the power of brand recognition is obvious, and successful companies recognize the influence their names have on consumer behavior. This makes protecting a company’s trademark, typically the company’s name, critical, especially as their market exposure and customer base grows.

The trademark associated with the goods and services of a company is commonly one of its most valuable assets. For example, the ubiquitous Coca-Cola Co., the fifth most valuable brand in 2017, has a market capitalization (total value of all outstanding stock) of $195 billion and the Coca-Cola name, alone, is worth $56.4 billion, which accounts for almost 30 percent of its value. To round out the top five corporate monikers, Apple takes the top spot with its name being worth $170 billion, followed by Google ($101.8B), Microsoft ($87B) and Facebook ($73.5B).

The same legal considerations of brand value for large companies applies equally for many smaller, growing companies and organizations. Because consumers instantly associate an entity’s name with its good or services, protecting the name with a trademark has tremendous value.

Generally, a business has common law rights to exclude others from using a trademark that is confusingly similar to its own trademark. The scope of this right greatly expands or contracts based on whether a trademark has been registered, and the level at which the mark is registered. There are two avenues to take when looking to protect a company’s trademark: file for a state trademark or a federal mark.

State trademarks are typically cheaper, faster and easier to obtain, yet they also afford far less protection. Conversely, federal marks have a more rigorous application process, cost more, and take longer, but they afford the greatest amount of protection since they provide protection throughout the United States and supersede state trademarks.

Smart company leaders spend significant time and money building the value of their company and brand, and they realize the importance of protecting the company’s most valuable consumer-facing asset by securing a trademark.

Cody J. Cooper is a patent attorney with the Oklahoma City law firm of Phillips Murrah.

Firm selects November Employee of the Month

Tommye Johnson

Tommye Johnson, Legal Nurse Consultant, is Phillips Murrah’s Employee of the Month for November 2017.

“I am truly humbled to receive the Employee of the Month recognition from my peers,” she said. “Exhibiting the qualities which earn this recognition requires being surrounded by great co-workers who bring out the best in you.

“I’m very fortunate to work with the most professional and caring people at Phillips Murrah.”

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

“Tommye is a consummate professional whose strong work ethic, expertise and wide breadth of experience have solidified her as an essential team member to the litigation group at Phillips Murrah,” Director Juston R. Givens said.


Phillips Murrah has been recognized as one of the Best Places to Work in Oklahoma in 2017 by The Journal Record and an Oklahoma Top Work Place by The Oklahoman/Energage two years in a row. Our Firm strives to recognize and reward our employees for excellence.

Why Weinstein’s creditors hired bankruptcy counsel

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on November 16, 2017.


Clayton D. Ketter is a Director and a litigator whose practice involves a wide range of business litigation in both federal and state court, including extensive experience in financial restructurings and bankruptcy matters.

By Phillips Murrah Director Clayton D. Ketter

Since the onslaught of sexual misconduct allegations against Hollywood producer Harvey Weinstein, his film studio, The Weinstein Company, has wasted no time in firing its founder. Yet, the namesake studio has been unable to distance itself from Mr. Weinstein’s bad press, and it is questionable how willing moviegoers will be to support anything associated with the toxic moniker. This has prompted speculation that a bankruptcy is looming.

While The Weinstein Company has not filed for bankruptcy, and denies any plans to do so, some of the company’s debtholders reportedly have already retained bankruptcy attorneys. Why? At first glance, it may seem odd for creditors to hire bankruptcy counsel before a filing is even initiated. However, there are strategic reasons as to why early retention makes sense.

Often, a company facing financial pressure will attempt, prior to filing, to work with its largest lenders to craft a strategy that is mutually beneficial to all parties. Cooperation among debtors and creditors increases the likelihood of a successful bankruptcy and can significantly reduce associated attorneys’ fees.

Even if the parties won’t work together, bankruptcy counsel can provide vital pre-bankruptcy assistance to a creditor. It is normal for the debtor to file a number of pleadings on the day the bankruptcy is commenced or shortly thereafter. These typically include mundane items such as authority to continue to use bank accounts, pay employees and employ legal professionals. However, it is also possible for significant relief to be requested as part of these first-day motions, including post-bankruptcy financing arrangements or even requests to liquidate assets. Having bankruptcy counsel at the ready and fully engaged allows a creditor to immediately respond to any such requests to ensure the creditor’s rights are protected.

Should The Weinstein Company file bankruptcy, it is likely to begin with a motion seeking to liquidate its highly portable assets, which include its film library, and movie and television development projects. Those assets could be acquired by a rival studio and washed of the Weinstein name, thereby increasing the potential value. The Weinstein Company’s significant creditors would want to ensure that they won’t get blindsided by a sudden bankruptcy filing and a first-day motion to sell. Their early retention of bankruptcy counsel will help prevent such a scenario from happening.

Clayton D. Ketter is a director and litigation attorney at Phillips Murrah P.C. who specializes in financial restructuring.

Firm Halloween Party raises funds for Harvest Food Drive

Phillips Murrah staff members were given the chance to test their creativity and help raise money for the Regional Food Bank of Oklahoma on Tuesday at the Firm’s annual Halloween Party.