Shackelford, Bowen, McKinley & Norton, LLP https://shackelford.law Law Firm - Dallas, Nashville, Fort Worth & Austin Fri, 17 Sep 2021 20:43:48 +0000 en-US hourly 1 https://wordpress.org/?v=5.8 10 Shackelford Litigators Were Selected To Be Recognized on The Best Lawyers in America List https://shackelford.law/news/10-shackelford-litigators-were-selected-to-be-recognized-on-the-best-lawyers-in-america-list/ https://shackelford.law/news/10-shackelford-litigators-were-selected-to-be-recognized-on-the-best-lawyers-in-america-list/#respond Fri, 17 Sep 2021 20:41:08 +0000 https://shackelford.law/?p=3508 We are proud to announce that 10 Shackelford litigators were selected to be recognized on The Best Lawyers in America© list. These nominees include: Jay Bowen, Hilary Borow, Talmage Boston, Jay Brown, David Elrod, Martha Hardwick Hofmeister, Mark McQuality, Josh Northam, Steven Pawlowski, and Worthy Walker.

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We are proud to announce that 10 Shackelford litigators were selected to be recognized on The Best Lawyers in America© list. These nominees include: Jay Bowen, Hilary Borow, Talmage Boston, Jay Brown, David Elrod, Martha Hardwick Hofmeister, Mark McQuality, Josh Northam, Steven Pawlowski, and Worthy Walker.

The Best Lawyers in America list is formed by peer review and acknowledges the top legal talent in the country.  The list was established over 30 years ago and is known as the “oldest and most respected peer-review publication in the legal profession.”

Best Lawyers in America chosen Shackelford Attorneys including Jay Bowen Hilary Borow Talmage Boston Jay Brown David Elrod Martha hardwick Hofmesiter Mark McQuality Josh Northam Steven Pawlowski Worth Walker

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Cost Escalation: COVID Aftershocks Rocking the Contractor World https://shackelford.law/news/cost-escalation-covid-aftershocks-rocking-the-contractor-world/ Tue, 03 Aug 2021 16:53:49 +0000 https://shackelford.law/?p=3491 Construction contracts, like other contracts, create a set of obligations and allocate risk between parties. Typically, the allocated risks are known and fall within a foreseeable range.

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By Bryan M. Kelly and Matthew L. Motes | August 2021 | Dallas Bar Association, Headnotes, 22


Construction contracts, like other contracts, create a set of obligations and allocate risk between parties. Typically, the allocated risks are known and fall within a foreseeable range. For example, a steel supplier may bid a job accepting the risk that steel prices could fluctuate plus or minus 5–10 percent, decreasing or increasing its ultimate profit margin. But life is full of surprises, like the occasional world-changing pandemic. And currently, sharply inflated materials prices, especially prices for lumber, are plaguing the construction industry.

Diligent contractors routinely include contract provisions such as a traditional force majeure clause, which allocates the risk of loss if performance becomes impossible or impracticable, especially as a result of an event or effect that the parties could not have anticipated or controlled. However, relief under force majeure is limited to events or effects that can be neither anticipated nor controlled, like uncontrollable acts of nature (i.e., floods) and people (i.e., war). The recent hurricanes might fall under force majeure for performance required in the affected areas. But increased prices due to COVID-19 in 2021 generally do not—price increases can be anticipated and controlled. And even if a force-majeure-type clause provides some relief, it might not provide for cost escalation, as illustrated by the Federal Circuit Court of Appeals in a recent case denying cost escalation due to complications created by an Ebola outbreak.

Further undermining the concept of force majeure and non-contractual protection is Texas’s treatment of impossibility and impracticability defenses (used interchangeably in this state), which can arise upon the occurrence of an event the non-occurrence of which was a basic assumption of a contract. Texas partially recognizes the concept but carves out economic impracticability as not a recognized defense. Indeed, to argue that stable material prices are a “basic assumption” of a contract is difficult when industry professionals know that material prices fluctuate daily and are sensitive to a variety of variables, including supply, demand, tariffs, regulations, availability, labor, and, as it turns out, pandemics.

Undeterred by the hardships it would cause, COVID-19 skyrocketed lumber prices in the past year. As of July 2, 2021, the national average cost of lumber per thousand board foot was $756.70, down from a high in May 2021 of $1,686.00. Compare this price to $351.00 last June. In one year, lumber prices increased almost five-fold.

And, these price increases are negatively affecting all parties. Owners with new projects must scale back designs or square footage. Subcontractors and suppliers must absorb overages to perform for the contract price or walk away from the project, breaching those contracts. If the subcontractors walk away, and the general contractor has not negotiated relief or allocated sufficient allowances and contingencies, then the general contractor can be left holding the bag.

So, if boiler-plate contractual provisions and common-law defenses will not protect parties to a construction contract, what will? Try a cost escalation provision. Such provision can be used up and down the contract chain.

A typical cost-escalation provision states that if material costs increase by more than a certain percentage due to events beyond a contractor’s control, then the owner and contractor shall execute a change order for at least a portion of the increase. The question then becomes, “what is beyond a contractor or subcontractor’s control?” The contractor and its subcontractor must take reasonable steps to mitigate against substantial cost increases. One of the best methods is to lock in material prices, even for future contracts, early and often. Subcontractors should work with their suppliers and the general contractor to pre-purchase materials, eliminating future variability. This approach is particularly viable when the owner is willing to provide funding for project materials up front. And doing so can be in the owner’s best interest: it reduces (i) the owner’s risk under the cost-escalation provision; (ii) the likelihood that suppliers or subcontractors walk out on the job; and (iii) the chance that the general contractor becomes disgruntled as its entire margin is consumed by the lumber mill.

Cost escalation and supply-chain interruptions will be part of the market for years to come. The best approach to minimize risk and build the best project possible is to negotiate specific contract provisions with all construction parties. HN

Bryan M. Kelly is an Associate at Shackelford, Bowen, McKinley & Norton, and can be reached at bkelly@shackelford.law. Matthew L. Motes is a Partner at the firm, and can be reached at mmotes@shackelford.law.



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Can A Collection Facility Or Testing Lab Be Sued For Negligently Conducting Drug Testing? In Texas They Can. https://shackelford.law/news-aviation/can-a-collection-facility-or-testing-lab-be-sued-for-negligently-conducting-drug-testing-in-texas-they-can/ Fri, 09 Jul 2021 13:49:33 +0000 https://shackelford.law/?p=3482 The post Can A Collection Facility Or Testing Lab Be Sued For Negligently Conducting Drug Testing? In Texas They Can. appeared first on Shackelford, Bowen, McKinley & Norton, LLP.

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What happens when a drug testing collection facility or lab makes a mistake in conducting required drug testing?  Well, in certain limited circumstances the mistake could afford a defense to regulatory actions against the employee based upon what would otherwise be a positive test.
However, in most other circumstances the employee would suffer the regulatory consequences of a positive test (e.g. revocation of certificates, referral to a substance abuse professional (“SAP”), rehabilitation, etc.).  And the employee could lose his or her job.
But what if the employee knows that the positive test was incorrect (he or she did not use the substance for which the employee tested positive)?  Unfortunately, from a regulatory perspective the employee has little recourse.  However, at least in Texas, the employee may be able to sue the collection facility and/or testing lab for any negligence that resulted in the incorrect, positive test result.

The Court of Appeals Case

A recent case in the Texas Court of Appeals addressed this situation.  In Mendez v. Hous. Harris Area Safety Council, Inc., the employee submitted to a random drug test that returned a positive test result for cocaine.  Disagreeing with that result, the employee submitted to two additional tests which were both negative for cocaine.
The employee was initially terminated, but after receiving the negative test results the employer rescinded the termination.   However, the employee was still required to meet with the SAP and comply with any required rehabilitation before he could return to work.
Believing that the original collection facility and testing lab had made mistakes causing the incorrect positive result, the employee sued both.  The trial court dismissed the employee’s negligence claims holding that neither the collection facility nor the testing lab owed the employee a duty of care. In the absence of a duty of care, neither could be liable for negligence.
The Texas Court of Appeals disagreed.  It held that:

when an individual is required, as a condition of employment, to submit to drug testing, the law recognizes a duty to use reasonable care in collecting and processing biological samples between third-party collection and testing agencies and the employees they test.

The Court went on to observe that it was not deciding whether the employee had alleged sufficient facts regarding an actual failure or capability of producing a false result on the part of the collection facility or the testing lab. The employee would still need to allege facts sufficient to create a genuine issue of material fact as to breach, causation, or damages.
Thus, the Court remanded the case back to the trial court where those issues will be decided.

Conclusion

The takeaway from this case is that in Texas (and some other states), an employee subject to drug testing may be able to sue the collection facility and/or testing lab for negligence.  However, it is important to keep in mind that the employee will still need to prove how the collection facility and/or testing lab failed to use reasonable care in collecting and processing the employee’s sample.
That is, the employee will need to present evidence showing exactly what was done incorrectly and how that error resulted in the incorrect test result.  Potentially a high burden that will require expert testimony. But at least the aggrieved employee will have that opportunity.

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Tips For Responding To FAA’s Office Of Aerospace Medicine https://shackelford.law/news-aviation/tips-for-responding-to-faas-office-of-aerospace-medicine/ Fri, 04 Jun 2021 13:59:46 +0000 https://shackelford.law/?p=3464 The post Tips For Responding To FAA’s Office Of Aerospace Medicine appeared first on Shackelford, Bowen, McKinley & Norton, LLP.

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As you may know, the process for obtaining a special issuance medical certificate, or renewal of a special issuance, can be daunting. Depending on the condition, or set of conditions, an airman may be able to provide the AME with the necessary information to be submit in connection with an application. Alternatively, the airman may need to submit information directly to the FAA’s Office of Aerospace Medicine in response to a specific request.
The FAA’s new Federal Air Surgeon, Susan Northrop, MD, recently provided some tips for both airmen and AMEs when submitting information to the FAA.  Here are some of those tips for airmen along with my own recommendations:
  • First, do your homework. Review the FAA’s Guide for Aviation Medical Examiners  on-line before you submit your application.  For most conditions the AME guide will identify not only how the FAA will treat the condition, but also what information it will require in order to issue a medical certificate.
  • Second, if you are going to submit information directly to the FAA make sure you read everything before you send the information to the FAA. If you see something in the records that could raise other flags for the FAA you will then have the opportunity to proactively address the issue rather than having to respond to a follow up request from the FAA. For example, if the records reveal something that should have been disclosed on prior applications but wasn’t, determine what additional information may be necessary to address the non-disclosure. You should then submit that additional information to the FAA.  This will help avoid the delays of back-and-forth correspondence with the FAA.
  • Third, make sure every page is legible, contains at least your name and a date. Any letters from treatment providers need to have an actual signature from the provider.  However, clinical notes and records do not require signatures. If you have the information in PDF format, you may also want to use a header or footer, if possible, in which you include your name, PI #, and App ID # (you will find the latter two on any correspondence you receive from the FAA).  That way if any pages get separated before your package is scanned into the FAA’s Document Imaging Workflow System the FAA will know to which file they belong.
  • Fourth, make sure you provide the FAA with each item requested.  A partial submission will only result in further delay as the FAA sends a follow up letter repeating its request for any missing items. A complete package will ensure that the FAA can proceed with its review of your application.
  • Fifth, include your correct contact information, including phone number, so the FAA can contact you if needed.
  • Sixth, if you are unable to obtain the requested information within the time allotted (usually 30 or 60 days), request an extension. You can do so by contacting the Airman Medical Certification Division or your Regional Flight Surgeon’s office. In most instances the FAA will grant a limited extension.
  • Finally, when you send information, use a delivery method that provides you with tracking information and proof of delivery. And  keep a copy of everything you send to and receive from the FAA. It isn’t unheard of for a package to be misdelivered or for the FAA to misplace it once received.  If you have copies it will be easy enough to re-send if necessary.
Following these tips will not guaranty that the FAA approves a medical application and issues you a medical certificate. However, these steps will minimize unnecessary delays and the time required for the FAA to review, process, and make a decision regarding your application.
If you have questions regarding the medical application process or need assistance in responding to FAA requests for information, please feel free to contact me. I’m happy to assist.

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Salesmanship Club makes millions for kids’ nonprofit as AT&T Byron Nelson moves north to McKinney https://shackelford.law/news/salesmanship-club-makes-millions-for-kids-nonprofit-as-att-byron-nelson-moves-north-to-mckinney/ Tue, 01 Jun 2021 22:43:32 +0000 https://shackelford.law/?p=3456 The golf tournament’s party atmosphere returned this May after a devastating experience at Trinity Forest.

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By ,  writer at the Dallas Morning News

Mike McKinley, president of the Salesmanship Club of Dallas, is practically giddy about how the AT&T Byron Nelson turned out.

The Nelson — which relocated to the TPC Craig Ranch in McKinney after two disastrous years at Trinity Forest in southern Dallas and a pandemic-canceled tournament in 2020 — earned enthusiastic high-fives from fans, players, the PGA Tour and the media.

Not even a deluge on the tournament’s final day could dampen the party atmosphere as thousands of fans enjoyed professional golf almost the way it used to be — maybe even better.

View full article here.

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Illegal Charter https://shackelford.law/news/illegal-charter/ Thu, 20 May 2021 22:34:15 +0000 https://shackelford.law/?p=3445 Footballer Emiliano Sala and his pilot died two years ago when an illegal charter flight crashed into the sea. How common is illegal charter and what can be done to combat the global problem?

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By Yves Le Marquand | Corporate Jet Investor


Tributes to Emiliano Sala were laid at Cardiff City Stadium in the days after the fatal crash.

 

“I am aboard a plane that seems like it is falling to pieces”

Footballer Emiliano Sala and his pilot died two years ago when an illegal charter flight crashed into the sea. How common is illegal charter and what can be done to combat the global problem?

You can hear the fear in the young football star’s words. It was one of Emiliano Sala’s last messages. More than two years have passed since the PA-46 Piper Malibu piloted by David Ibbotson carrying the Argentine Sala to his new career at Cardiff City Football Club plunged into the English Channel killing both men. But the industry appears little closer to remedying grey or illegal charter – neither in the UK nor worldwide.

Some facts are beyond dispute. The final report from the UK government’s Air Accidents Information Branch (AAIB), published in March 2020, concluded neither Ibbotson nor the Piper Malibu, N264DB, held the correct licensing to operate commercial flights. It also said that Sala would have been “deeply unconscious” due to carbon monoxide poisoning at the point of impact. The report contains safety recommendations concerning: the fitting of carbon monoxide (CO) detectors; additional in-service inspections of exhaust systems; and the maintenance of flight crew licensing records.

In October 2020, the UK Civil Aviation Authority (CAA) confirmed its intention to prosecute David Henderson. He is a British pilot who was allegedly replaced by Ibbotson on the day of the flight, in connection with the plane crash.

Crispin Orr, chief inspector of air accidents at the UK Air Accidents Investigation Branch (AAIB), was clear in his condemnation of illegal charter: “The chartering of aircraft that are not licensed for commercial transport – so called ‘grey charter’ is putting lives at risk. We welcome the Civil Aviation Authority’s efforts to stop this practice through their ‘Legal to Fly’ campaign and other interventions.” An independent transport review, commissioned by the UK government, will probe the problem of illegal charter.

But the problem is not confined to the UK. Most countries around the world have long grappled with the threat.

In the US, David Norton, aviation attorney, with Shackelford, Bowen, McKinley and Norton, based in Dallas Texas, said illegal charter is a growing problem. “It’s always been an issue under our rules because they are not as crystal clear as it should be,” Norton told Corporate Jet Investor. “But I think the feeling over here is that it started really to kick off with the Great Recession in 2008. Where a lot of people had airplanes to commute around, they were paying a lot of money for them and they were looking for ways to offload that cost.”

Norton said the issue of illegal charter has been around for “forever”. He recalled: “I wrote an article that talked about improper ownership under our US rules, which are slightly different than the UK rules under certain ownership structures. I wrote that article back in 2002, because it was so prevalent back then, and I still get clients who call me because of that article. So, it’s been a problem for forever. Part of it is all the civil aviation organisations can barely keep up with the scheduled airlines, let alone people flying airplanes, especially here in the US where it’s so spread out.”

Norton has been practicing aviation law for three decades, he pointed to the ebb and flow of illegal charter’s prominence in the limelight. The efforts against illegal charter were ratcheted up in 2001 to 2002, according to Norton, after a Gulfstream aircraft, too heavy for flight, attempted take-off at Teterboro, New Jersey. The jet veered off the runway, across the highway and crashed into a hangar. While everyone in the plane survived, the crash killed a passing motorist and “in a big way” caught the attention of the FAA.

 

Read the full article on Corporate Jet Investor

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COVID Vaccines In Aviation: What Pilots And Employers Need to Know https://shackelford.law/news-aviation/covid-vaccines-in-aviation-what-pilots-and-employers-need-to-know/ Fri, 14 May 2021 14:39:31 +0000 https://shackelford.law/?p=3440 The post COVID Vaccines In Aviation: What Pilots And Employers Need to Know appeared first on Shackelford, Bowen, McKinley & Norton, LLP.

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With the ever-changing landscape of COVID’s impact on the world and the now readily available vaccinations for the virus, many pilots (and their employers) have questions.  I thought I would take a moment to address a couple of the questions I have received.
What Is The FAA’s Position On Vaccines?
The FAA does not have a position on whether an airman should or should not be vaccinated.  However, the FAA does take a position on what happens if an airman is vaccinated. Specifically, it is concerned about the potential side effects an airman could suffer after receiving a vaccination.  As a result, the FAA’s Federal Air Surgeon has stated that FAA medical certificate holders may not act as pilot in command, or in any other capacity as a required flightcrew member, for 48 hours after each dose a COVID vaccine.
However, an airman may do the following during the 48-hour post-vaccination period:
  1. Provide/receive flight simulator or aviation training device instruction, including ground instruction or operational training not involving flight operations;
  2. Perform office duty/administrative tasks;
  3. Dead-head/jump-seat; and
  4. Engage in distance learning.
Airmen who receive vaccinations are also reminded that they must also still comply with 14 CFR § 61.53(a)’s prohibition on operations during medical deficiency.  This means that an airman who experiences side effects after the 48-hour period has elapsed, may not act as pilot in command, or in any other capacity as a required flightcrew member until after the airman is no longer suffering from those side-effects.
May An Employer Require Its Employees To Be Vaccinated?
The short answer is “yes.”  Both the Equal Employment Opportunity Commission and the Occupational Safety and Health Administration have stated that an employer may require its employees to be vaccinated.  However, implementation of a mandatory vaccination policy or program must also comply with other regulations.
For example, such a policy or program must comply with the Americans with Disabilities Act (“ADA”).  Aviation employers need to carefully craft their vaccination mandates to ensure they do not discriminate against employees with disabilities.  This means if an employee has a disability that prevents the employee from taking the vaccination, he or she may be entitled to an exemption or other reasonable accommodation under the ADA
Similarly, if an employee has a sincerely held religious belief, practice, or observance that prevents the employee from being vaccinated, under Title VII of the Civil Rights Act (“Title VII”) he or she may be entitled to a reasonable religious accommodation.  In either case, whether under the ADA or Title VII, aviation employers face multiple requirements to successfully implement a vaccine mandate.  Employers and their affected employees need to work together to implement accommodations that protect the rights of both and also comply with applicable law.
Conclusions
Airmen who choose to be vaccinated need to be aware of, and comply with, both the FAA’s 48-hour rule as well as FAR 61.53.  And before an aviation employer requires its employees to receive COVID vaccinations, the employer should carefully evaluate the implications, risks, and consequences of such a policy or program.  If you have questions about airmen and/or aviation employer rights and responsibilities in connection with COVID vaccinations, please contact us and we would be happy to assist.

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Time to Get a Lawyer? Aviation Legal Issues – InTheHangar Ep 129 Feat. Greg Reigel https://shackelford.law/news/time-to-get-a-lawyer-aviation-legal-issues-inthehangar-ep-129-feat-greg-reigel/ Wed, 05 May 2021 17:25:15 +0000 https://shackelford.law/?p=3406 Ever get the dreaded "standby to copy number" directive from ATC? Or do you need to set up a plane partnership? Christy (@PilotChristy) and Dan (@TakingOffDan) speak to aviation attorney Greg Reigel

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Ever get the dreaded “standby to copy number” directive from ATC? Or do you need to set up a plane partnership? Christy (@PilotChristy) and Dan (@TakingOffDan) speak to aviation attorney Greg Reigel from https://www.shackelford.law about both enforcement and entities. What does a lawyer think of Christy’s discovery of her Wong Warrior being flown inverted? Should she dox the guy? Greg weighs in and also on the Vegas Bravo Buster.

 

See the full Video here

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Drafting An Aircraft Mechanic Lien Statement https://shackelford.law/news-aviation/drafting-an-aircraft-mechanic-lien-statement/ Mon, 26 Apr 2021 22:08:18 +0000 https://shackelford.law/?p=3387 The post Drafting An Aircraft Mechanic Lien Statement appeared first on Shackelford, Bowen, McKinley & Norton, LLP.

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If you perform work, provide services, or furnish materials to an aircraft, you likely have the right to assert a lien against that aircraft.  A lien may also arise from a lien claimant’s storage of an aircraft.
Aircraft mechanic liens are governed by state law.  And each state is a little bit different.  However, most states require that a lien statement be filed with the Federal Aviation Administration (“FAA”) within a certain period of time.
What Does The FAA Require?
In order for the FAA to accept and record a lien statement, it must include the following:
  1. The state or the specific law under which the lien is being claimed;
  2. A description of the aircraft including manufacturer, model, serial number, and registration number;
  3. The amount of the claim;
  4. The date on which the last labor, services, or materials were furnished on/to the aircraft; and
  5. Signature of the claimant showing appropriate title of the individual signing the statement.
What Else Should Be Included?
In addition to meeting the FAA requirements, the lien claimant must also meet the applicable state requirements. For example, if the lien claimant is required to maintain possession of the aircraft, then the lien statement must address this information.
Alternatively, if the lien claimant is required to surrender possession of the aircraft, then the lien statement must provide this information. Also, if local law requires the lien statement to be verified (acknowledged before a notary public), that must be included as well.  The FAA will reject the lien statement if the required information or verification is missing.
Although not usually required, the lien statement may also include the date the work was authorized and who authorized the work. However, unless specific state law requires it, the FAA will not reject the lien statement if this information is not shown.
What Happens If The FAA Has Questions?
If the FAA receives a lien statement identifying a lien claimant who does not appear to be located or doing business in the state under whose law the lien is claimed and the aircraft is registered in different state, that could raise questions for the FAA. It will wonder whether/what work was performed on the aircraft in the state claimed.
In this case the FAA may request supporting documentation to establish the connection with the state claimed.  It may also ask the lien claimant to re-file the lien statement with attached invoices, a clarification statement, or other documentation reflecting work was performed on the aircraft in the state claimed.
Local Recording
In addition to filing with the FAA, some states also require a lien claimant to file their lien statements.  This could be with a county clerk, a clerk of courts, a register of deeds, or a county recorder.  In this situation, the lien statement filed with the FAA must include either the local file-stamp or certified copy confirming it was filed with the correct local office within the applicable time frame. Without this confirmation, the FAA will reject the lien statement.
Effect Of Filing With The FAA
It is important to understand that the FAA merely records aircraft lien statements submitted by lien claimants. As long as the lien statement contains the required information, the FAA will accept and record the lien statement. However, the FAA registry will not take any position regarding the validity or enforceability of the lien claim, nor does it get involved with any dispute between the aircraft owner and lien claimant.
Conclusion
Lien statements can be tricky.  Before you file, make sure you understand both the FAA and local requirements. And if you need help filing or enforcing an aircraft mechanic lien, please give me a call.

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So Google Beat Oracle at SCOTUS: What Does That Mean for My Software IP Strategy https://shackelford.law/news/so-google-beat-oracle-at-scotus-what-does-that-mean-for-my-software-ip-strategy/ Fri, 23 Apr 2021 16:41:55 +0000 https://shackelford.law/?p=3384 On April 5th, the U.S. Supreme Court handed Google a victory in its prolonged dispute with Oracle. Much has already been written about the merits of the decision, but the larger question is what to do about it?

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By David Lovell,  Partner at Shackelford, Bowen, McKinley & Norton, LLP

So Google Beat Oracle at SCOTUS: What Does That Mean for My Software IP Strategy

On April 5th, the U.S. Supreme Court handed Google a victory in its prolonged dispute with Oracle. The dispute relates to Google’s use of Oracle’s Java Standard Edition (SE) application programming interface (API) in its Android platform. Much has already been written about the merits of the decision, but the larger question is what to do about it?  Below are practical takeaways for software developers and technology companies.

1. The decision did not eliminate U.S. copyright protection for software. 

U.S. copyright protection for software is explicitly provided for by statute, with 17 U.S.C. § 101 addressing software in terms of a computer program.  A computer program is defined as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” Subject to certain limitations, original works of authorship that are fixed in a tangible medium of expression, including software, remain eligible for copyright. This decision avoids the question of copyrightability. It instead addresses whether Google’s copying was fair use.  As described in further detail below, the Court found that Google’s copying of specific portions of the Java SE API was fair use, thereby allowing Google to avoid what otherwise might be considered copyright infringement.

2. The copyright-limiting, fair-use aspects of the decision specifically relate to how functions are called in software libraries and APIs.  Other aspects of software copyrights are mostly unimpacted.

The Java SE API provided a programmer-facing interface for use by software developers.  Accordingly, the Java SE API provided an organized way to call a set of reusable software functions.  In its analysis, the Court separated the Java SE API into declaring code and implementing code.  As generally treated by the Court, the declaring code is the organized way in which the software functions are called or invoked. The implementing code, in contrast, is the code that performs the software functions when they are called.  Google had copied large portions of the Java SE API’s declaring code due to widespread developer familiarity with the code. However, Google had written its own implementing code. After a fact-intensive analysis using four statutory factors, the Court concluded that Google’s copying of the Java SE API’s declaring code was fair use and thus did not constitute copyright infringement.

Significantly, the Court makes it clear that implementing code likely would have been treated differently in its fact-intensive analysis. In other words, if Google had copied the implementing code of the Java SE API, it is unlikely that such copying would have been considered fair use. Other types of software code, whether source or object code, should be similarly unimpacted by the decision as long as such code is not analogous to declaring code in a programmer-facing interface.

3. Copyrights are still an important part of a comprehensive software intellectual property (IP) strategy.

As noted above, the Court’s decision is largely limited in scope to the copying of declaring code in a programmer-facing interface.  Since software copyrights have broader applicability than declaring code, copyrights can still provide protection against, for example, literal copying.  Additionally, the Court’s fair-use determination was, in part, dependent upon case-specific facts. Therefore, there may exist facts under which the copying of declaring code would not be considered fair use.

4. A comprehensive software IP strategy should diversify beyond copyrights. Consider and choose the right combination of IP tools.

Different types of intellectual property are appropriate for protecting different aspects of software. For example:

  • Design patents can protect graphical user interfaces, for example, subject to novelty, non-obviousness, and other statutory requirements.
  • Utility patents can protect software functionality, for example, subject to novelty, non-obviousness, and other statutory requirements.
  • Trademarks can protect an identifier of a source of software-related goods or services.
  • Trade-secret protection may be appropriate for information that has commercial value, so long as reasonable steps are taken to keep the information confidential.
  • Agreements may be used to protect confidentiality and to control, for example, how software is licensed and used.

5. An existing best practice remains important. Lessen the opportunity for software code to be copied. Limit disclosure and access.

Protect software code from disclosure to the extent feasible, for example, via nondisclosure or other agreements or by not disclosing at all.  In recognition that copyright protection for declaring code in programmer-facing interfaces may be thin, be strategic about the functions that are included in such interfaces.  Consider not including, or hiding in internal interfaces, strategic arrangements of functions that do not need to be exposed. If competitor copying of declaring code is of particular concern, consider other creative ways copying might be deterred or made ineffective.

6. Remember that software licenses, including open-source licenses, are based upon an underlying copyright.  Consider this decision as you craft your licensing strategy.

Whichever side of a license you may be on, consider the software code at issue. For example, as a prospective licensor, you may want to contractually limit a licensee’s ability to copy and use declaring code.  As a prospective licensee, if declaring code is involved, you may want to use the principles of the decision to negotiate a lower licensing cost. 

7. This decision is not a blanket license to freely copy software code.

As noted above, software code remains copyrightable.  Software code can also implicate numerous other types of IP.  Any decision to copy software code introduces substantial risk and requires appropriate due diligence.

 

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