Not All Real Estate Agents Are Bound By Fiduciary Duty

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If you’re thinking of buying a house, it’s easy to assume the real estate agent or agency you’re working with has your best interests at heart. Whether you’re buying or selling, it’s hard to imagine that these entities would only think of themselves, right?

Recently, Consumer Federation of America (CFA) posed a national survey question to a group of adults who were asked whether or not they assume realty agents are required to represent the best interests of the home buyer or seller with whom they are working. Around 50 percent answered yes, and 16 percent said, “yes, almost always.” Leaving two-thirds of consumers in the survey with roughly the same impression.

A new report from CFA found that in fact, “real estate agents often are not required by law to represent the interests of buyers or sellers.” Meaning that clients of these agents can fall prey to poor transactions or self-dealing, as real estate agents are not legally obligated with a fiduciary duty to their clients.

The author of the report and immediate past executive director of CFA, Stephen Brobeck, says the vast majority of consumers don’t understand the varying types of representation by realty agents. He says the key question they need to ask before agreeing to work with any agent is: Will you be representing us exclusively throughout the transaction and have a fiduciary duty to us?

“The holy grail is to capture the entire commission,” says Brobeck. “The listing agent might say to the seller, we’ve got a hot buyer for your house.”

Common forms of representation examined in the CFA study:

  • Single agent: The agent works solely for the client and has a fiduciary responsibility to the client.
  • Subagent: The agent works with the buyer but has a fiduciary duty to the seller.
  • Transactional agent: The agent works with both the buyer and seller to facilitate a sale but has no fiduciary responsibility to either party.
  • Dual agency: An arrangement whereby “the agent somehow is expected to represent the interests of both the seller and the buyer in a home purchase.”

Breach of Fiduciary Duty Attorneys

The attorneys at Feldman & Feldman handle allegations of breach of fiduciary duty very carefully. We understand these claims often involve delicate situations, so we work efficiently to protect your interests while exploring all options for resolution. If you have been accused of breaching your fiduciary duty or if you believe your fiduciary’s actions constitute a breach, contact us today to schedule a consultation.

Texas Dram Shop Law and Overserving Patrons

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Drinking and driving is illegal, but in Texas, so is overserving patrons. The Dram Shop Act in the Texas Alcoholic Beverage Code holds establishments such as restaurants, bars, and nightclubs liable for selling alcohol to patrons that are obviously intoxicated. Harris County District Attorney Kim Ogg has stated the county is cracking down on offenders, having recently charged five bar employees for overserving a man who left the bar and was later involved in a fatal drunk driving accident.

Employees of the bar Servi-Car El 3 served 19-year old Erick Hernandez over a dozen drinks during the six hours he was at their bar. The bartenders failed to card Hernandez to check his age, an act that would have saved a life by preventing the subsequent fatal drunk driving accident. The bar only had a beer and wine license, but bartenders were seen on video serving Hernandez tequila shots, with some joining in and taking shots of their own. Just three minutes after Hernandez left the bar, he drove the wrong way down College Avenue and struck a car with a young mother, her one-year-old son, and the baby’s grandmothers. The young mother died at the scene of the accident.

Texas Dram Shop Law

While the bartenders that overserved Erick Hernandez will face criminal charges, Texas Dram Shop law also allows victims to seek compensation through a civil lawsuit. When filing a civil lawsuit, the plaintiff must prove the intoxicated individual was intoxicated to the extent that they presented a danger to themselves or others. Individuals injured in drunk driving accidents can seek compensation through the Texas Dram Shop law to help cover the costs of emergency medical treatment, property damage, lost wages, lost earning capacity, and pain and suffering, among other damages.

Texas Dram Shop Law Attorneys

Restaurants, bars, and nightclubs have no right to recklessly endanger the lives of the public by overserving patrons. If you or someone you love was injured in a drunk driving accident, the Texas Dram Shop law attorneys at Feldman & Feldman can investigate your case and help you obtain compensation. Contact us today to schedule an appointment with one of our experienced attorneys.

Contract Disputes Are The Most Common Cause Of Construction Litigation

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With any construction project, there are dozens of moving parts. If just one part fails, the rest of the project can be thrown off schedule. Construction litigation can be extremely costly and time consuming, making it difficult for projects to reach completion. The most common cause of construction litigation is contract disputes, which echoes the importance of drafting thorough and specific contracts with the help of experienced construction lawyers.

According to the 2018 Global Construction Disputes Report, contract disputes are the leading cause of legal issues for the construction industry, including contractual errors and omissions, poor contract administration and contractual misunderstandings. You might think a small omission wouldn’t have a huge impact on a project, but you’d be wrong. On average, construction contract disputes take 18 months to resolve. This means projects can be slowed down dramatically by even the smallest contract issue.

Construction contracts are a common cause of disputes, because unlike other types of contracts, they are often written in real time. Every little change needs to be documented in a change order to prevent confusion; however, there are many small details that can have huge implications. This means any time there is a contract dispute, the parties involved need to immediately contact an experienced construction lawyer. The right lawyer can help resolve issues before they drag out into an 18 month long ordeal.

Start With A Solid Foundation

The best way to protect yourself from litigation is to work with an experienced contract attorney; however, not just any contract attorney will do. The construction industry is extremely nuanced, and even attorneys with the best intensions can make costly mistakes. When looking for an attorney to help you with construction contracts, you must select an attorney with prior experience in the construction industry. You will need someone with industry knowledge to protect your best interests.

Know Where To Turn To When Litigation Arises

To prevent construction disputes from getting out of hand and delaying projects, you need to know where to turn to when litigation arises. Construction litigation can be incredibly complex, and you should only turn to attorneys with a successful track record. At Feldman & Feldman, our experienced construction lawyers are well versed on matters relating to the construction industry. We have helped draft solid contracts that prevent litigation and assisted clients when disputes threatened their projects.

Houston Construction Lawyers

If you are facing any type of construction law dispute, don’t wait to contact Feldman & Feldman today. We can analyze your case and explain your legal options. Call us today to schedule an appointment.

Litigation Appeals Are About To Change

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Anyone facing litigation should prepare for big impending changes. While we don’t often think of elections as forces for change in our court systems and legal processes, the reality is that the significant election of new Democratic judges in Harris County and other Texas counties this year is going to change litigation appeals.

Unlike other states, Texas elects its judges. Voters decide whom they want presiding over their courtrooms, and this has huge implications. This past election, there were twenty Democratic judges elected to seats on the state courts of appeals in Austin, Dallas, and Houston. According to legal experts, this “blue wave” is going to change business litigation across the state.

While we think of judges as impartial and thus by virtue apolitical, each individual judge has his or her own interpretation of the law. Democratic judges share similar views in the interpretation of the law, including issues related to when to enforce arbitration clauses, when a case should be dismissed before trial, and how much deference to give trial judges and juries when reviewing large-dollar plaintiff’s verdicts.

The Republican judges that previously controlled many of the Texas appellate courts were largely pro-business and pro-arbitration. This made it more difficult for plaintiffs to pursue effective resolution to a legal issue both in and out of court. Additionally, Republican judges tend to oppose large jury verdicts. But all of that is about to change.

Plaintiffs pursuing employment litigation, products liability, or medical malpractice lawsuits will no longer face the same legal hurdles. This will help victims of negligence and unfair business practices obtain the justice they deserve. The impacts of the Texas appellate court bench changes will not occur overnight. But regardless, moving forward pursuing litigation will require an experienced trial and appellate lawyer familiar with every complicated facet of the law and the legal leanings of appeals judges.

Experienced Trial and Appellate Lawyers

Feldman & Feldman is a legal team comprised of fierce trial lawyers and knowledgeable appellate lawyers. This makes us uniquely qualified to handle our cases from start to finish. We can deliver big wins in the courtroom and defend those wins on appeal, if necessary. If you would like to schedule a consultation with one of our dedicated attorneys, contact us today for a free consultation to see how we can help.

Health Insurance Giant Slammed With $25 Million Verdict For Bad Faith Denial

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Insurance is typically a good thing. Policyholders can pay a small premium and receive financial compensation if they end up filing a claim. Without insurance, many people would be unable to pay for car repairs after an accident, a new roof after a storm, or necessary medical treatment. Unfortunately, insurance companies are first and foremost a business, and they sometimes put their own financial interests above their contractual obligations to policyholders.

Bad faith insurance denials in the healthcare industry are all too common, and patients pay the price; however, an Oklahoma court is making an example of insurance companies who wrongly deny claims. Jurors in Oklahoma awarded $25.5 million to the estate of a patient whose health insurance claim was wrongfully denied by health insurance giant Aetna.

In 2014, Orrana Cunningham was diagnosed with Stage 4 Nasopharyngeal Cancer. As devastating as the news was, Orrana and her husband felt fortunate to have health insurance that would allow them to pursue treatment. Her doctors recommended proton beam therapy. Proton beam therapy has been used for decades to target specific tumors because it increases the effectiveness of treatment and comes with fewer side effects than other types of treatment.

The Cunninghams sought coverage under their Aetna health plan, but the company and its in-house medical directors denied the claim. The company claimed proton beam therapy was “experimental or investigational” and therefore excluded from coverage. To call this type of treatment experimental is quite a reach. Proton beam therapy is not only approved by the U.S. Food and Drug Administration (FDA), but it is also a covered treatment under Medicare. The Cunninghams believe Aetna denied the claim for financial reasons, saving the insurer from paying out on expensive claims. They also pointed out Aetna’s in-house medical directors receive profit-based bonuses, exposing them to bias.

Unfortunately, Mrs. Cunningham passed away in May 2015 from complications related to her treatment; however, her struggle was not in vain. The massive $25 million verdict sends a strong message to health insurers: bad faith denials will not be tolerated and insurance companies that operate in bad faith will pay a heavy price.

Bad Faith Insurance Denials

Policyholders that pay their premiums deserve full coverage under their policies. If you or someone you love has received a bad faith insurance denial, contact Feldman & Feldman today to protect your rights and pursue rightful compensation.

Feldman & Feldman Give Back This Holiday Season

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Feldman & Feldman is happy to announce the viral success of its charity campaign benefitting the Animal Justice League. The entire legal team at Feldman & Feldman is honored to serve the Houston community, and we are proud to show our appreciation by giving back to a cause we care about. We will are donating money for every post reaction and share we received on our Animal Justice League related Facebook posts. By engaging with the post, users showed their support for this amazing charity. For every post reaction, Feldman & Feldman donated $1 and for every post share, we donated $3, up to a total of $1,000, which we were able to hit within 48 hours of launching our holiday charity campaign.

What Is The Animal Justice League?

The Animal Justice League (AJL) is a 501(c)3 tax exempt dog and cat rescue organization with a focus on Oak Forest and surrounding neighborhoods of Houston, Texas. Feldman & Feldman is particularly excited to work with AJL because the organization is solely run by dedicated volunteers. The organization operates with the help of over 400 animal loving volunteers to collect donations, foster, and adopt deserving animals.

The AJL has been extremely successful in helping animals in the Houston area. Their Trap-Neuter-Return (TNR) program has spay/neutered 885 animals since its inception in June 2014 and participated in Big Fix, which is an effort by multiple nonprofits and government agencies to provide spay and neuter services to Houston area animals. AJL has also microchipped 88 animals, transported over 200 animals, and has had over 400 adoptions. To learn more about the Animal Justice League, how you can help them, or check out their adoptable pets, visit their website.

Show Your Support For AJL Online

Helping Feldman & Feldman support AJL during the holiday season is really easy. Follow or visit our Facebook page to engage with our posts and help AJL improve the lives of Houston pets.

Beer Companies Pabst and MillerCoors Go To Court Over Partnership Dispute

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Many individuals and businesses choose to create partnerships. Partnerships can help grow a business, combine resources, and bring together intelligent minds. As beneficial as partnerships can be, there can also be partnership disputes. Partnership disputes are common with businesses of all sizes, and some of the country’s largest beer companies are heading to court over one such dispute.

Pabst and MillerCoors have had a pretty close relationship. Since 1999, MillerCoors has been brewing all of the Pabst beer brands, which include Lone Star, Pabst Blue Ribbon, Old Style, and Natty Boh. This is called contract brewing and it allows small beer companies to meet demand by outsourcing the brewing process to larger companies with the technology and capacity to do so. The current partnership agreement is scheduled to end in 2020, but allows for two five-year contract extensions.

Negotiations regarding potential extensions have not gone so well. Pabst is alleging MillerCoors wants to stop brewing for them so they can take a better position in the market for themselves. Without MillerCoors, Pabst will face extreme hardship. There is only one beer company other than MillerCoors that is big enough to brew all of Pabst’s products and that’s Anheuser-Busch, but Anheuser-Busch does not do contract brewing. MillerCoors claims it does not have the capacity to continue to brew for Pabst and is not required to do so after the contract expiration in 2020.

The partnership dispute boils down to the inability of the companies to agree on how the contract extension should be negotiated. MillerCoors believes it has sole discretion to determine whether or not it will continue brewing for Pabst. Pabst, on the other hand, believes the companies are obligated to work “in good faith” to find a solution if Pabst wants to extend the agreement.

Luckily for Pabst, the companies were able to come to an agreement and settle out court. The trial had finished and had gone to jury deliberation, but a settlement saved Pabst from demise and preserved the partnership. While this may be considered a success, the reality is that the litigation has likely been costly for both companies and has generated a lot of negative press.

What Businesses Can Learn From Pabst and MillerCoors

An important lesson can be learned from the partnership dispute between Pabst and MillerCoors. Any business entering into a contract needs the document to be specific and thorough. The fact that the companies wound up disputing how negotiations should be handled indicates the contract was not sufficiently clear with regard to this process. Only by working with experienced contract attorneys can businesses ensure they are protected from future disputes.

Experienced Houston Contract Lawyers

Regardless of the size of your company, you can greatly benefit from utilizing an experienced contract attorney. The Houston contract lawyers at Feldman & Feldman have extensive experience drafting, reviewing, and litigating a variety of contract matters. Call us today to request a consultation.

Fiduciary Duty Could Change With New SEC Rules

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A fiduciary duty is the highest duty imposed by law, and while there are many types of fiduciary relationships, the definition is very broad. Generally speaking, a fiduciary duty exists between a fiduciary and a trustee. The fiduciary is expected to act in the best interest of the trustee. This relationship applies to lawyers and clients, doctors and patients, and legal guardians and their wards. However, these are all very different relationships, so a one size fits all approach to the handling of a fiduciary duty can often lead to litigation. But, the definition of fiduciary duty could see some changes in the near future when it’s applied to brokers and investors.

The Securities and Exchange Commission (SEC) has been under pressure to address whether or not a fiduciary duty exists between brokers and financial managers and their clients. In April of this year, the SEC released a proposal to “address retail investor confusion about the relationships that they have with investment professionals.” Under the proposal, a broker-dealer making recommendations to retail customers would have a duty to act in the customer’s best interests. However, the proposal carefully referred to this as a “care obligation” rather than a fiduciary duty. While the proposal took steps to more clearly define the relationship between brokers and investors, the Investor Advisory Committee (IAC) of the SEC had several strong recommendations.

Fast-forward seven months, and the IAC voted to adapt the SEC’s proposed standards to include a more fiduciary-focused set of standards. The committee voted that the proposal should explicitly state the relationship between a broker and a client is a fiduciary one. The SEC will move forward with revising its proposal, but it is not yet clear exactly how the relationship will be defined. The SEC has expressed interest in defining the relationship in such a way that it can remain flexible.

Broker-Investor Relationships

Although the broker-investor relationship may see a more specific definition in the months and years to come, it is absolutely clear brokers do owe a duty of care to investors. Brokers should operate in good faith and without self-dealing. When people trust brokers with their financial assets, they deserve to have their best interests protected.

Fiduciary Duty Attorneys

If you believe your broker or other financial advisor has breached his or her fiduciary duty, do not wait to call Feldman & Feldman today. Our fiduciary duty attorneys are experienced trial lawyers and litigators that can help you hold fiduciaries accountable for financial losses they cause and other applicable damages.

Types of Employment Discrimination

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Workplaces can be extremely tense environments. While these environments can be shaped into more positive atmospheres, tense work environments are usually the basis of employment litigation. Many people think employment discrimination is just discriminating based on the color of someone’s skin, but there are many types of employment discrimination that create hostile work environments, prevent growth of hardworking employees, and lead to extensive litigation.

Types of Employment Discrimination

Sadly, employment discrimination comes in many forms. The Texas Workforce Commission divides employment discrimination into nine different categories, including:

  • Age – Age discrimination can be against the very young or the very old. Regardless of someone’s age, they should be evaluated based on their skillset, not just a number.
  • Sex – Although women are commonly discriminated against because of their sex, anyone can be a victim of sexual harassment and/or discrimination.
  • Color – Workers are protected against discrimination based on the color of their skin during hiring, termination, promotion, compensation, or job training. Unfortunately, many employers violate this protection.
  • Race – While racial discrimination is similar to discrimination based on color, it provides additional protection against discrimination based on physical characteristics, cultural practices, and even medical conditions that predominately affect one race over others.
  • Nationality – Protection against nationality discrimination goes beyond where an individual was born; it also includes ancestry, culture, or linguistic characteristics common to a specific ethnic group.
  • Religion – Religious discrimination goes beyond intolerance of someone’s personal beliefs. This type of discrimination can include refusing to allow workers to observe religious holidays or refusing to accept an employee’s religious dress.
  • Disability – Many people with disabilities struggle to obtain jobs and pursue careers. Even when people with disabilities obtain work, their employers must make reasonable accommodations for them.
  • Emergency Evacuation – In times of natural disasters, people may need to evacuate their homes to safe locations. If this occurs, these workers are protected from termination and other types of employment discrimination.
  • Retaliation – Any employee that makes a complaint regarding discrimination is also protected from retaliation by his or her employer.

Employment Discrimination Attorneys

At Feldman & Feldman, we have helped many individuals and companies with employment discrimination matters. We understand that sometimes the best course of action isn’t in the courtroom, and our experienced negotiators can help bring a successful resolution without going to court. And, when the need arises, we can also aggressively fight for clients in civil trials and defend our victories on appeal.

If you believe you have been discriminated against, or if you are a business facing discrimination litigation, contact us today. We can explain your legal options and protect your best interests.

Are Ridesharing Services Safe For Women?

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Ridesharing services like Uber and Lyft have hit the transportation industry by storm. These convenient rides are popular all over the country, but many are wondering if these services do enough to protect women from violence. Several high profile cases, including one in Houston, have left many women with the impression that ridesharing services just aren’t safe for them.

Uber currently has over 750,00 drivers nationwide, which is impressive considering the company was only launched in 2009. During this time period, however, the number of alleged assaults has also skyrocketed. Dozens of assaults against women have been reported to Uber and Lyft in large cities like Chicago, Los Angeles, Philadelphia, St. Louis, Washington D.C., and Houston. In December 2014, two different women in Boston accused two different Uber drivers of assault on the same night alone. Later in the Spring of 2015, a woman was sexually assaulted by an Uber driver in Houston.

Fast forward to 2018, and not much has changed. Ridesharing drivers around the country are being arrested for assaults against female passengers. Some of these assaults occurred while victims were unconscious, while others are accused of kidnapping passengers.

Ridesharing services like Uber and Lyft do perform background checks on drivers, but many dangerous drivers seem to be slipping through the cracks. These companies rely on third party organizations to perform background checks on potential drivers, but they do not always research far enough into applicants’ criminal records. In addition, third party job application screening services only perform background checks covering the past seven years. This means drivers with felonies older than seven years can still drive for Uber or Lyft as long as a sufficient amount of time has passed.

Women Have Rights As Ridesharing Passengers

Ridesharing companies aren’t doing enough to protect female passengers from harm. No woman should be victimized just because she is getting ride home. Furthermore, ridesharing services are often touted as a safe alternative to driving while under the influence after a night out; but media coverage has made us well aware that passenger safety isn’t always a guarantee. These companies are reluctant to institute policies that would protect women, but that doesn’t mean female passengers are helpless. Victims of sexual assault during Uber or Lyft rides have a right to hold these companies accountable.

Getting Help After A Sexual Assault

At Feldman & Feldman, we understand the difficulties faced by sexual assault victims. We have successfully represented sexual assault victims in the past and there is no adversary too big for us to tackle. Contact us today to schedule an appointment with one of our dedicated attorneys.