About WDFloyd

Dave Floyd is an attorney, real estate broker, and trivia host in Austin, Texas. He works with the Foskitt Law Office and is an owner of Floyd Real Estate. He was a candidate for Austin City Council in 2014 and lives in the Zilker Neighborhood.

Monday, March 18, 2013

FTC releases report on the increased use of mobile payments - ACC Newsstand - Powered by Lexology

Read this to learn more about risks associated with paying from your mobile phone:

FTC releases report on the increased use of mobile payments - ACC Newsstand - Powered by Lexology

Startups - deferred payment models for legal fees - ACC Newsstand - Powered by Lexology

Startups - deferred payment models for legal fees - ACC Newsstand - Powered by Lexology

Can covered entities utilize text messaging and text paging without violating HIPAA? - ACC Newsstand - Powered by Lexology

Can covered entities utilize text messaging and text paging without violating HIPAA? - ACC Newsstand - Powered by Lexology

What the new HIPAA rules say about health information technology for users, developers and investors - ACC Newsstand - Powered by Lexology

What the new HIPAA rules say about health information technology for users, developers and investors - ACC Newsstand - Powered by Lexology

New procedure for evaluating and managing environmental risks for SBA loans - ACC Newsstand - Powered by Lexology

New procedure for evaluating and managing environmental risks for SBA loans - ACC Newsstand - Powered by Lexology

Wednesday, March 13, 2013

Morton’s support moves misconduct bill forward

From the Austin American-Statesman, this is about Senate Bill 825 currently going through the Texas Legislature:


Morton’s support moves misconduct bill forward

Social media update: When "The Harlem Shake" Goes Too Far

When The Harlem Shake is a Bad Idea


Apparently, some customers and employees have chosen to do "The Harlem Shake" in workplaces such as airplanes and mines:

Social media update: are your employees doing “The Harlem Shake”? - ACC Newsstand - Powered by Lexology





As the article notes, the mine employees in Australia probably regret having made a video of their performance.  In the case of airplanes, it appears that ground vs air is a good distinction to make when planning your flash mob.  Flight crews dancing while the plane is at the gate may be seen as cheeky and fun, while the FAA may view in flight performances (see above) as a risk for things turning dark and tragic.

I like fun and hilarity as much as the next guy, but the shenanigans of Southwest Airlines employees are much more appropriate while flying through the stratosphere than a plane full of passengers gyrating to dance music.

Tuesday, March 12, 2013

Data security bills pass House of Representatives; Senate future uncertain - ACC Newsstand - Powered by Lexology

In December, the U.S. House of Representatives passed the Data Accountability and Trust Act (H.R. 2221).   Then in February, the House passed The Cybersecurity Enhancement Act (H.R. 4061).  Both these bills underscore the concern for cybersecurity at the Federal level.   Read more about the outlook for these bills here:


Data security bills pass House of Representatives; Senate future uncertain - ACC Newsstand - Powered by Lexology

No habla arbitration: an arbitration agreement, to be enforceable with an employee who only reads Spanish, must be in Spanish - ACC Newsstand - Powered by Lexology

In Delfingen US-Texas, LP v. Valenzuela a Texas appellate court struck down an otherwise excellent arbitration agreement because the employer failed to provide a copy of the arbitration agreement in Spanish to an employee who could read only in Spanish.  Read more here:


No habla arbitration: an arbitration agreement, to be enforceable with an employee who only reads Spanish, must be in Spanish - ACC Newsstand - Powered by Lexology

CFPB issues new requirements for employers regarding credit checks - ACC Newsstand - Powered by Lexology

The Consumer Financial Protection  Bureau (CFPB) recently issued new forms that employers must begin using (they were effective January 1, 2013) when performing background credit checks on current employees and job applicants.  Read more about this and the Fair Credit Reporting Act (FRCA) at: 


CFPB issues new requirements for employers regarding credit checks - ACC Newsstand - Powered by Lexology

Texas executive convicted of hacking former employer’s computer network - ACC Newsstand - Powered by Lexology

A federal jury in the Northern District of Texas has convicted Michael Musacchio, a former logistics company executive, of violating the federal Computer Fraud and Abuse Act.   Read more about cyber crime at:

Texas executive convicted of hacking former employer’s computer network - ACC Newsstand - Powered by Lexology

Texas' Strict Copper Theft Laws Result of Serious Metal Theft Problem



I recently reposted an article from The Texas Tribune about Texas House Bill 544, which if passed would alter the laws on copper theft so that the theft of a de minimus amount (such as the amount of copper found in a penny) would not lead to a state jail felony conviction.  In order to put the issue of copper theft in perspective (and explain why such a severe law was passed in 2011) I'm reprinting an article about copper theft presenting a significant business risk.  This article appeared on the Prism Risk Management Blog back in September:



Copper Theft Presents Significant Risks to Businesses




Theft of copper and other metals has long plagued businesses and homeowners, and the problem has gotten worse in recent years. The price of copper has significantly increased over the past decade, making it a tempting target for thieves. Copper thieves can cause extensive damage in the act of extracting copper wiring or piping, often vastly greater than the value of the copper itself. New state laws and city ordinances attempt to prevent any benefits that may come from copper theft, and businesses and homeowners can take steps to protect themselves from the most egregious acts of theft.

A Growing Problem


Thieves usually steal copper and other metals in order to sell it to scrap metal dealers or recyclers. Copper is frequently visible and relatively easy to steal. According to the enterprise security industry journal Security, the price of copper nearly doubled between 2005 and 2008. Many law enforcement officials, according to Security, claim that methamphetamine addicts account for a large number of copper thefts around the country. It has become a major liability for many businesses, costing them millions of dollars per year in both losses of material and the cost of repairing damage caused by thieves. Theft of copper wiring may also pose a risk to public safety. The FBI reported that residents of Jackson, Mississippi did not receive adequate warning of oncoming tornadoes in April 2008 because thieves had recently stripped copper wire from five of the town’s tornado warning sirens.

In the Austin, Texas area, thieves have stolen copper wire from commercial air conditioning units. A single A/C unit can reportedly yield $50-100 worth of copper, while its removal can cause tens of thousands of dollars in damage. Austin police arrested a man earlier this year for stealing copper tubing from several restaurants. Thieves have even stolen submersible pump wires from homes along Lake Travis, an act that requires the thieves to approach by boat.

Preventing and Deterring Copper Theft


State lawmakers in Texas passed a law in 2011 that makes any theft of copper a state jail felony. An ordinance passed by the Austin City Council in 2010 requires recyclers to have a license from the city and to keep records of their transactions. It also prohibits temporary recycling locations in an attempt to deprive copper thieves of a market.

Businesses and homeowners can protect themselves from many acts of theft with some precautions. Security recommends that businesses and utilities that use copper supplies, such as construction firms, carefully schedule deliveries of copper materials as close as possible to the time they are needed. This would prevent a build-up of surplus copper at a work site. For property and business owners, concealing copper wiring and tubing may deter many would-be thieves.

Some electric utilities and businesses are using new technologies to assist in the identification and recovery of copper. An electric cooperative in east Texas started using “Data-Dots,” a form of nanotechnology sprayed onto copper wiring. Each “dot” contains information about the wiring’s rightful owner and location, and is visible under black light. Notices posted in areas where copper wiring and tubing has Data-Dot protection will hopefully deter thieves.


+Dave Floyd  is the CEO & General Counsel of +Prism Risk Management, LLC  He is currently in the process of opening a law practice specializing in business, insurance, and cyber law.  

Monday, March 11, 2013

Should You File a Reply to a Summary Judgment in Travis County?

Texas Rule of Civil Procedure 166a does not require the filing of a reply when faced with a response to a Motion for Summary Judgment; however, should you file one anyway when appearing in Travis County District Court?  Hint: don't be a slacker.

For an elaboration on this, check out the latest Texas Lawyer article by +Sara Foskitt reprinted (with permission) on the Foskitt Law Office's Travis County focused Local Counsel Blog: To Reply or Not to Reply?   There Really Is No Question.

Disclaimer: +Dave Floyd is providing this for informative purposes only.   This should not be considered legal advice for any specific case or situation.  

Legal Liability for Failing to Include a Privacy Statement in a Mobile App

This article was originally posted on the Prism Risk Management blog in January:


Companies that do business online must navigate an increasingly complex legal landscape, as state governments pass legislation regarding consumer privacy rights and data security. California has one of the strictest privacy laws in the country, the California Online Privacy Protection Act (CalOPPA). The state’s attorney general recently filed the first lawsuit under the statute for failing to include adequate privacy protections. The case, California v. Delta Air Lines, Inc., No. CGC-12-526741 (Cal. Super. Ct., Dec. 6, 2012), alleges that Delta Air Lines violated CalOPPA by failing to include a privacy policy in its mobile application. While CalOPPA should only apply to companies that do business in California, federal statutes with similar provisions have nationwide reach.

California enacted CalOPPA in 2004. The law requires businesses that operate online services, including websites and mobile apps, to provide detailed information to consumers regarding what personal information the business collects, such as a user’s name and contact information. The business must post this privacy policy in a conspicuous location on the website, via a hyperlink, or, in the case of mobile apps, within the application. The policy must notify users of how the business uses their personal information and with whom it shares the information.

The lawsuit alleges that Delta’s mobile app, “Fly Delta,” does not have a privacy policy. The app is available for smartphones and other mobile devices, allowing users to check in to flights, check reservations, track luggage, and more. As such, users must input personal information including their Delta online account login. The state alleges that Delta does not have a privacy policy displayed in any of the locations the statute allows, such as on Delta’s website, in an “app store” where users can download the app, or within the app itself. The lawsuit seeks injunctive relief and a fine of $2,500 for each CalOPPA violation.

Although Delta is incorporated in Delaware and headquartered in Georgia, the state of California asserts jurisdiction over it because it maintains a presence at airports in at least thirteen California cities. CalOPPA only applies to users residing in the state, and Delta’s app is available for download to those users. The mere availability of an online service within a state does not, by itself, give a court jurisdiction over the business providing that service, but the growth of web-based services has also led to a growth in creative jurisdictional arguments. Delta’s physical presence in California may have made the issue simple in their case, but companies may face liability in unfamiliar jurisdictions for online-related laws in the future.

Most states do not have statutes comparable to CalOPPA. Texas, for example, has no statutes regulating the privacy of personal information online, except regarding government web sites. At the federal level, the Children’s Online Privacy Protection Act (COPPA) applies to businesses nationwide that collect personal information from children under the age of thirteen. The scope of the law may be narrower than California’s law, but its requirements are stricter, including notices to parents identifying the types of information gathered, and procedures to allow parents to review and remove information about their children. Recent amendments to COPPA expand its scope to include businesses that have “actual knowledge” that they collect personal information from children, and not just online services expressly directed at children.

Texas Lawmakers Urged to Protect Businesses That Hire Ex-Prisoners



Amid a broader legislative effort to help prisoners re-enter society after their sentences, lawmakers on Monday were urged to limit the legal liability of businesses that hire ex-prisoners.

House Bill 1188, by state Rep. Senfronia Thompson, D-Houston, would bar anyone who hires a former prisoner from being sued for “negligently hiring or failing to adequately supervise” the employee should he or she commit a crime while on the job.

"This allows these people to get back into the mainstream so they can become productive citizens," Thompson said at a House Judiciary Committee hearing.

While advocates for the bill say protections for employers will help former prisoners find jobs as they reintegrate into society, some took issue with the bill's exceptions, which exclude liability protection for companies that hire former sex offenders.

Analysts said many companies are reluctant to hire former offenders because of worries about lawsuits should the employee commit another crime while working. “There are a lot of companies that understand the redemption of the individual, but they don’t want to get sued,” said Jorge Renaud, a former inmate who now analyzes policy for the Texas Criminal Justice Coalition.

Sam Caldwell, a former inmate, said he has struggled to find work because of his 10-year sentence for sexual assault. He told lawmakers that companies considered hiring him but were worried he might face accusations. “It’s not the risk that I do something — it’s the risk that someone says I do something," he said.

The bill, which has the support of the Texas Trial Lawyers Association, includes an exception for employees whose original crimes are related to their current employment. If someone commits fraud, serves a prison sentence and is then hired to disburse funds, for instance, the employer can still be sued if the employee commits fraud again.

There are also exceptions for violent offenses and sexual crimes, which has stirred some opposition.
Mary Sue Molnar, the director of Texas Voices for Reason and Justice, said lawmakers often exclude sex offenders from bills related to prisoner re-entry because of a widespread notion that such offenders cannot be rehabilitated. “That’s the hardest myth to break,” she said. “It may look better" to exclude these offenders, she said, but “it doesn’t make communities safer.”

“Everyone should have a chance at re-entry,” she added.

Caldwell said he supports the bill even though it would not apply to him. "We want to get it passed," he said, adding that he would hope to expand the liability protection to include sex offenders in the future.
The bill comes amid a push to address issues related to helping prisoners re-enter society and find jobs after their release. This year, the Texas Association of Business, the state's largest business group, has for the first time gotten involved in criminal justice policy based on the idea that ex-offenders who successfully find jobs and do not return to prison contribute to a healthier business climate. A program at the Cleveland Unit in East Texas that trains prisoners to start their own businesses after release is expanding and recently partnered with Baylor University to offer business certificates.

“Studies have shown that vocational education reduce recidivism more than anything else you can do,” said Marc Levin, a policy analyst with the Texas Public Policy Foundation, a conservative think tank. “You get the most benefit if there's a connection to jobs available in the workforce.”

On the national level, the federal Equal Employment Opportunity Commission last year issued guidelines to prohibit employers from denying people jobs based solely on their criminal records, though employers can still run background checks. The Michigan Legislature is now considering a bill that would ban employers from asking on job applications about prior convictions.

Thompson has also filed House Bills 799 and 797, which would require the Windham School District — which runs classes within the Texas Department of Criminal Justice — to provide more information for prisoners on licensing restrictions they will face when they leave prison.

Texas Tribune donors or members may be quoted or mentioned in our stories, or may be the subject of them. For a complete list of contributors, click here.


This article originally appeared in The Texas Tribune at http://www.texastribune.org/2013/03/11/lawmakers-urged-limit-liability-employers-ex-priso/.

Final HIIPAA/HITECH rules: compliance actions for employee benefit plans - ACC Newsstand - Powered by Lexology

Final HIIPAA/HITECH rules: compliance actions for employee benefit plans - ACC Newsstand - Powered by Lexology

DOL expands FMLA coverage for military family leave - ACC Newsstand - Powered by Lexology

DOL expands FMLA coverage for military family leave - ACC Newsstand - Powered by Lexology

New FMLA poster must be up by March 8 - ACC Newsstand - Powered by Lexology

If you are reading this today, be sure you're in compliance with the FMLA:

New FMLA poster must be up by March 8 - ACC Newsstand - Powered by Lexology

Arriving to work on time might not be an essential job function under ADA - ACC Newsstand - Powered by Lexology

From a 2nd Circuit Court of Appeals decision:

Arriving to work on time might not be an essential job function under ADA - ACC Newsstand - Powered by Lexology

The antitrust implications of non-compete agreements - ACC Newsstand - Powered by Lexology

The antitrust implications of non-compete agreements - ACC Newsstand - Powered by Lexology

Cybersecurity: the next big wave in securities litigation? - ACC Newsstand - Powered by Lexology

Cybersecurity: the next big wave in securities litigation? - ACC Newsstand - Powered by Lexology

SEC v. Hackers: more cybersecurity enforcement on the horizon? - ACC Newsstand - Powered by Lexology

SEC v. Hackers: more cybersecurity enforcement on the horizon? - ACC Newsstand - Powered by Lexology

Friday, March 8, 2013

Executive Order on cybersecurity impacts Government contractors and other critical infrastructure entities - ACC Newsstand - Powered by Lexology

Executive Order on cybersecurity impacts Government contractors and other critical infrastructure entities - ACC Newsstand - Powered by Lexology

Who are my business associates, and why the HIPAA should I care? - ACC Newsstand - Powered by Lexology

Who are my business associates, and why the HIPAA should I care? - ACC Newsstand - Powered by Lexology

What CFOs need to know about health care reform - ACC Newsstand - Powered by Lexology

What CFOs need to know about health care reform - ACC Newsstand - Powered by Lexology

Risks of "internship" claims and liability still increasing - ACC Newsstand - Powered by Lexology

Risks of "internship" claims and liability still increasing - ACC Newsstand - Powered by Lexology

This is an issue I've posted about on the Prism Risk Management blog in the past.  I'll repost about it on this blog soon.  If you are planning to hire interns this summer, it is important that you keep in mind the elements which will activate your responsibilities to pay them according to the U.S. Department of Labor's interpretation of Federal employment laws.


Texas HB 2932 Aims to Regulate Self-Driving Cars



Texas Lawmaker Files Bill to Regulate Self-Driving Cars


Two weeks after Google showcased its self-driving car to local officials in Austin, a Texas lawmaker has filed a bill attempting to regulate the use of the futuristic technology.

State Rep. Giovanni Capriglione, R-Southlake, filed HB 2932 on Thursday to define “autonomous motor vehicle” and “autonomous technology” in the state’s transportation code. The bill would require that a licensed driver be held responsible for such a vehicle when it is in use, even if the car is operating without the driver inside it. It also directs the Texas Department of Transportation to set up rules for the use of such vehicles in the state, including minimum insurance requirements. Nevada approved similar laws last year, though that state requires a person in the driver's seat and passenger's seat of a self-driving car while it is in use.

Google demonstrated its self-driving car last month at the Texas Transportation Forum, a conference hosted by TxDOT. Company officials told The Texas Tribune they didn’t solicit permission or clearance from any state agencies before testing the car on public highways and streets in Texas because the state’s laws only refer to cars operated by drivers. The company drove the car in autopilot mode through parts of Texas to get it to the conference in Austin. Google employees then offered demonstrations of the car’s self-driving technology on I-35 to local and state officials.

Anthony Levandowski, project manager for Google’s self-driving car research, said at the conference that he hoped to have self-driving software on the market within five years. Company officials have said they are working with both state and federal regulators on updating driving regulations to address self-driving vehicles. 


Editor's Note: An earlier version of this story mischaracterized the proposed bill's requirements related to self-driving vehicles and licensed drivers.

Texas Tribune donors or members may be quoted or mentioned in our stories, or may be the subject of them. For a complete list of contributors, click here.


This article originally appeared in The Texas Tribune at http://www.texastribune.org/2013/03/07/texas-lawmaker-files-bill-regulate-self-driving-ca/.

Texas HB 544 Would Undo Law That Makes Theft of a Penny a Felony




Lawmaker Aims to Undo Law That Makes Penny Theft Felony


For the past year and a half, stealing a penny in Texas has been a felony under state law.

Lawmakers didn’t set out to target the smallest of small-time thieves, though. It happened inadvertently in 2011 when they passed a bill aimed at curbing the growing problem of metal theft. State Rep. Tim Kleinschmidt, R-Lexington, has filed a bill to correct the goof.

In 2011, Gov. Rick Perry signed Senate Bill 694, which edited a line in the penal code focused on theft valued at less than $20,000. The law originally classified such theft as a state jail felony if at least 50 percent of the stolen item was made of certain metals, such as copper or aluminum. SB 694, authored by state Sen. Royce West, D-Dallas, struck out the 50 percent threshold, which allowed items of any value with even tiny amounts of copper to fall under the statute.

A penny is 2.5 percent copper, according to the U.S. Mint.

Prosecutors haven’t seized on the accidental felony as an excuse to start rounding up penny thieves, but the Texas District and County Attorneys Association has cited the law as an example of the unintended consequences of legislation. Though the potential penny felony has drawn more attention, prosecutors have joked they could also use the law to amp up the penalty for someone who steals a 12-pack of beer from a convenience store, said Shannon Edmonds, the group’s director of governmental relations.

“You could raise it to a felony by charging them with theft of aluminum,” Edmonds said.
Kleinschmidt, a lawyer who has handled some copper wire theft cases in the past, filed a bill this session to narrow the statute so that pennies and aluminum cans are no longer covered.

“It’s just a hole in the statute that needs to be fixed,” Kleinschmidt said.

Kleinschmidt’s bill, HB 544, would require that the enhanced penalties only apply to metal thefts worth $500 or more. He said the current law, with no minimum value for felony-grade metal thefts, is too broad and confusing.

“It just happened to strike a chord with me because I do that work,” Kleinschmidt said. “It’s just not fair.”

The Texas Association of Builders, along with various other business organizations and police departments, backed the original bill in 2011 as part of an effort to more aggressively pursue metal thieves, including those that took copper wiring. A spokeswoman for the association said it did not have a comment on Kleinschmidt’s bill.


Texas Tribune donors or members may be quoted or mentioned in our stories, or may be the subject of them. For a complete list of contributors, click here.

This article originally appeared in The Texas Tribune at http://www.texastribune.org/2013/03/06/lawmaker-hopes-narrow-law-covers-penny-theives/.

Monday, March 4, 2013

Amplify Austin! Donate to Habitat for Humanity by 7p Tomorrow!

I have embedded the form from the Amplify Austin page to support Austin Habitat for Humanity:


Insurance coverage for healthcare False Claims Act, Stark, and HIPAA/HITECH government investigations - ACC Newsstand - Powered by Lexology

Insurance coverage for healthcare False Claims Act, Stark, and HIPAA/HITECH government investigations - ACC Newsstand - Powered by Lexology

$20 million for cybersecurity - ACC Newsstand - Powered by Lexology

Dept of Energy plans to award $20 million for cybersecurity... - ACC Newsstand - Powered by Lexology

Bill to Allow a New and Not Fun Use for Social Media

It was nice to see +Sara Foskitt Twitter quoted in a March 1st posting in the Texas Lawyer regarding H.B. 1989 in the Texas Legislature which would allow substitute service of citation via social media networks.  The text of the bill reads as follows:


A BILL TO BE ENTITLED
AN ACT
relating to substituted service of citation through a social media website.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1.  Subchapter B, Chapter 17, Civil Practice and Remedies Code, is amended by adding Section 17.031 to read as follows:
Sec. 17.031.  SUBSTITUTED SERVICE THROUGH SOCIAL MEDIA WEBSITE.  (a)  If substituted service of citation is authorized under the Texas Rules of Civil Procedure, the court may prescribe as a method of service under those rules an electronic communication sent to the defendant through a social media website if the court finds that:(1)  the defendant maintains a social media page on that website;(2)  the profile on the social media page is the profile of the defendant;(3)  the defendant regularly accesses the social media page account; and(4)  the defendant could reasonably be expected to receive actual notice if the electronic communication were sent to the defendant's account.(b)  Notwithstanding Section 22.004, Government Code, the supreme court may not amend or adopt rules in conflict with this section.SECTION 2.  This Act takes effect September 1, 2013.
If you're interested in following this progress of this bill, then visit it's page at The Texas Legislature online and add it to your alert list.   You can follow the Foskitt Law Office via it's Twitter account.