About WDFloyd

Dave Floyd is an attorney, real estate broker, real estate investor, and trivia host in Austin, Texas. He works with the Foskitt Law Office and is an owner of Floyd Real Estate. He lives in the Zilker Neighborhood, and is a graduate of the University of Texas at Austin and the Washington & Lee University School of Law.

Friday, April 12, 2013

Creative Fund Happy Hour- Tuesday

Austin Creative Fund members enjoy a performance at Aviary on South Lamar



The Creative Fund's next Happy Hour will be Tuesday (4/16) at Hi Hat Public House (2121 East 6th- 78702). There will be a special performance by Theatre en Block.

The addition of performances to Creative Fund Happy Hours has been a lot of fun.  Creative Fund membership chair +Hank Morris has taken the concept of adding in performances and delivered delightfully interesting results.  I've found that featuring performances at the happy hours has also added a layer of context and tangibility of The Creative Fund's mission to the organization's members.   I talked to Hank yesterday, and it sounds like Theatre en Block has something good in store for Tuesday.   If you are interested in getting involved with an arts organization which supports emerging artists and connects you to their work, swing by Hi Hat Public House at 6 on Tuesday.   Better yet, visit the Creative Fund Happy Hour's event page on Facebook and let them know you are coming.




The Creative Fund's Vision:


The Creative Fund's vision is to connect emerging Austin artists with patron resources, elevating works of art into larger venues with larger audiences.  Check out The Creative Fund's fact sheet for more information.


+Dave Floyd has been on the board of The Creative Fund since 2011.




Wednesday, April 10, 2013

Senators Talk, Without Voting, About Casinos in Texas








A proposed constitutional amendment to legalize casino gaming might see substantial changes before the Senate Committee on Business and Commerce votes on it.

For example, Senate Joint Resolution 64 as currently written would hurt charitable organizations that use bingo to raise funds, said Phil Sanderson, director of governmental relations for Texas Charity Advocates. State Sen. John Carona, R-Dallas, who authored the bill and chairs the committee, said during a committee hearing Wednesday that he is sensitive to those concerns.

“The state gets about $30 million per year from bingo. The bill is looking to help a horse racing industry in dire need,” Sanderson said, an effort he supports. “But it also needs to keep bingo in mind so nonprofits can continue earning money for their charitable causes.”

Texans spend about $3 billion to gamble in adjacent states every year, according to Let Texans Decide, which supports a statewide vote on legalizing casinos. And Carona, along with Texas horse racing industry leaders and gaming advocates, hopes to bring that money back to Texas.

Jason Velasco, a businessman from Round Rock, said he travels regularly to WinStar Casino in Oklahoma to play poker, a game he compared to chess.

“I’m always surprised and amazed that the majority of players I’m sitting with at WinStar are from Texas,” Velasco said. “I simply would like the opportunity to vote to have legalized poker games in Texas.”

Legislators have been trying to legalize gambling for many sessions. Sen. Rodney Ellis, D-Houston, has been working on the issue for two decades. The last major expansion of gaming was in 1991, when lawmakers and then voters approved the state lottery.  “I’m not a gambling man, but I have carried similar legislation since Ann Richards was in,” Ellis said.

This session, he filed SJR 6, another bill that would put a gambling amendment before Texas voters, and said he would work with Carona’s office to put together a good bill to send to the floor.

Carona said his bill is sensitive to Texans who may be ideologically opposed to gambling by limiting the number of total casinos in the state and by putting most of the details into the constitutional amendment itself — that means changes to the rules surrounding casinos would require another statewide vote.

But for some Texans, any amount of casino gambling is too much. Melinda Fredricks, the vice chairwoman of the Republican Party of Texas, doesn’t buy the idea that Republican legislators can support a statewide vote on gambling even if they oppose gambling itself. The Republican Party platform includes anti-gambling language.

“We see this as a veiled attempt to pass the buck,” Fredricks said. “The root issue is diametrically opposed to our core values.”

But Texans are already gambling, said Jack Pratt, head of the Texas Gaming Association. They’re doing it in other states, in the lottery, at race tracks, and illegally in 8-liner halls and online, he said.  “Two-thirds of adults have gone out of state and taken their Texas money to gamble,” Pratt said. “There seems to be a fear to let them have the vote.”

Many gambling advocates and opponents say the votes likely aren’t there to get the necessary two-thirds approval in each chamber to send the amendment to Texas voters. Carona himself acknowledged at a Monday press conference that it might not pass this session.

With many groups hoping to have their amendments and interests considered during revisions, the bill remains pending in the committee.

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/2013/04/10/groups-aim-get-their-interests-gambling-bill/.

Agenda Texas: Another Run at Gambling



+Dave Floyd has republished this from the Texas Tribune:





As Yogi Berra would say, it’s déjà vu all over again in the Legislature for supporters of casino gambling in Texas.

For the 27th session in a row (unofficial estimate), there’s a push to create casino gambling in Texas. The legislation has been labeled many things over the years: a quick source of new revenues in tight budgets, a way to bolster new investment in flush times, and now, a way to recapture money that is rightfully ours.

“According to a study released this month, Texans spend nearly $3 billion annually at gaming facilities in Oklahoma, Louisiana and New Mexico, helping to pay for their roads, their schools and their hospitals," said state Sen. John Carona, R-Dallas. "And it’s time that do something about that."
He's been working on casino legislation for the last few sessions, but his plan this year is much more comprehensive. In the past, gaming bills have either had the support of casinos or race tracks. But not both.

That split support had doomed the efforts. This time, Carona said, both groups are on board.
“Let me make clear that this legislation has very broad support," he said. "While not all stakeholder concerns are resolved in this bill, we have come a long way. And it is my hope that we’ll continue to work together to bring forward a bill that is best for Texas."

The senator said his legislation is still fluid — many changes could be made. So for now, there’s no price tag on how much money casino gambling would generate. But billions are expected from the three giant destination resort casinos and 18 other facilities that would be authorized under his resolution.

“Texans want this opportunity. Recent polling indicates that 80 percent of Texans say they ought to have a final say on this issue," Carona said. "And 78 percent of Republican primary voters are eager to vote in favor of this measure. I believe Texans can decide this issue for themselves, and I believe it’s high time we give them that chance.”

That poll Carona cites was commissioned by a group that supports expanded gambling. Other polls have shown support a bit lower.

But hey, if you want to pass something in the Legislature, you need to do one of two things: Show what problem the legislation would fix or, as casino supporters did this week, show an enemy that would be defeated by this bill. And according to casino supporters, we have met the enemy — and it is Oklahoma.

“In particular, we’re hemorrhaging money to Oklahoma," said John Montford of Let Texans Decide. "Not only do they recruit our best high school football players. They also snooker us each day by building their gaming empire on the backs of Texans."

Texas Association of Business President Bill Hammond was even less diplomatic when explaining what he sees as the benefits of casinos in Texas.

“Texans will no longer have to travel to third-world countries in order to game," Hammond joked. "It’s unfair and unconscionable that we are making these people travel to these third-world counties that surround Texas."

The state’s hatred of Oklahoma aside, there are still several roadblocks to casinos in Texas. Carona’s resolution needs a two-thirds vote in the House and Senate before it heads to the ballot as a constitutional amendment this November.

And on the Senate side, Jane Nelson, R-Flower Mound, has a history of threatening a filibuster over gaming legislation. As debates have neared in the past, she has even put tennis shoes on her desk on the Senate floor to let people know she’s ready to go if needed.

And, of course, if a resolution passes the House and Senate, then there’s the final statewide vote — a vote that will certainly include groups opposing casinos on moral grounds along with some backed by those neighboring states’ casinos that don’t want to lose business.

Carona’s Business and Commerce Committee will hear testimony Wednesday [April 10] morning on the proposed constitutional amendment that would create casinos.

Would you bet on casinos in Texas? Let us know at agendatexas@kut.org. And, of course, everyone’s a winner when you follow us on Twitter: @AgendaTexas.

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/2013/04/09/agenda-texas-another-run-casino-gambling/.

U.S. Supreme Court Raises Bar for Class Certification

Comcast Corporation, et al. v. Behrend

I don't work with Federal class action suits, but I did find the recent U.S. Supreme Court's Comcast Corporation, et al. v. Behrend (No. 11-864) decision to be interesting.  Thus, I've added links to a couple of articles on the following topics:



General Class Certification Implications


The first article looks at the Comcast decision's effect on the criteria for forming a class under Rule 23(b)(3):


Supreme Court raises bar for class certification - ACC Newsstand - Powered by Lexology


In particular, the SCOTUS' apparent conclusion that class certification is inappropriate in the absence of a methodology to calculate damages on a class-wide basis caught the attention of the author.  




Employment Law Implications


It is the above mentioned conclusion which the author of the following article counts as a huge win for employers in an employment law focused review of the Comcast decision:


United States Supreme Court delivers major win for employers - once again raising the bar for certifying class actions

It was this article which I found more relevant to my practice interests, as I have dealt with employment law issues as part of working with business and insurance law matters.



+Dave Floyd has been CEO & General Counsel of Prism Risk Management since 2010, and will soon open a practice dedicated to business, insurance, and cyber law issues.





Tuesday, April 2, 2013

Airport Wheelchair "Miracles" Occurring Regularly

Fines, public shaming, and revocation of airline ticket would be a good place to start with a physically fit person who fakes a disability in order to move to front of airport security lines.  Scumbags who do this sort thing are not only inherently disgusting, but also engage in behavior which will at some point impose additional burdens on people with real disabilities.


Airport wheelchair "miracles" occurring regularly - ACC Newsstand - Powered by Lexology

Protecting Trade Secrets with a Mobile Workforce and Telecommuters

Protecting trade secrets with a mobile workforce and telecommuters - ACC Newsstand - Powered by Lexology

The Basics: "Hacking," the Computer Fraud and Abuse Act, and You

The basics: "hacking," the Computer Fraud and Abuse Act, and you - ACC Newsstand - Powered by Lexology

Random Alcohol Testing Policy and the ADA

Random alcohol testing policy found job-related, consistent with business necessity, did not violate ADA - ACC Newsstand - Powered by Lexology

Credit Cards Security in the Cloud

The Payment Card Industry Security Standards Council recently issued cloud computing guidelines, as explained in this article:

Credit cards security in the cloud - new clarity? - ACC Newsstand - Powered by Lexology

You can download a copy of the cloud computing guidelines directly from the PCI site.

Electronic Transactions Association Releases Resources for Mobile Payment Solutions

Electronic Transactions Association releases resources for mobile payment solutions - ACC Newsstand - Powered by Lexology

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/.