PACA

Employers too often assume that job titles, job descriptions or simply categorizing an employee as "salaried" automatically enables the employer to categorize an employee as exempt, thus avoiding overtime pay. This is NOT the case. The Fair Labor Standards Act (the "FLSA") and the U.S. Department of Labor (the "DOL") have very specific guidelines for classifying employees as exempt or non-exempt.

An employer who purchases employment practices liability insurance likely expects coverage for claims of unlawful employment practices. Unfortunately, the devil is in the details in terms of what types of claims are covered and what types of claims are not covered, as well who is responsible for the legal fees incurred on the part of the employer in defense of such claims.

As an employer, you do not want to hire a new employee only to find out shortly after the hire, that the employee had signed a non-compete agreement with his or her previous employer. The employee in that instance may have less value to your company and the hiring may in fact lead to your company being named in a lawsuit along with the employee where the employer seeks to enjoin or restrict that employee working for you or doing certain things as an employee for your company.

  • Appointed Special Counsel to collect preferences in a PACA bankruptcy matter.
  • Successfully defended the sole owner of a produce company against an action for personal liability under the Trust provisions of the Perishable Agriculture Commodities Act (PACA), including prevailing on an appeal of the judgment to the 5th Circuit Court of Appeals. The resulting judgment and affirmation by the Court of Appeals led to the Department of Agriculture changing the rules applicable to payment agreements under the PACA.
  • Obtained a favorable summary judgment in a PACA collections matter and successfully defended the judgment on appeal to the 5th Federal Circuit, resulting in the full recovery of the amount owed to the firm’s client.

While disputes are generally resolved through a trial (although in fact most disputes are resolved through a settlement after a lawsuit has been filed), many disputes may be resolved in a forum or proceeding that does not involve a court in any way. Two means to resolve disputes are mediation and arbitration.

Background. You work with, or are considering working with, various vendors, suppliers, partners or other third-parties to either bring more value to your customers or to expand the current level of services that you can deliver. You are sharing information with other businesses in evaluating various ventures. These, and many other scenarios, require you to reveal to a third party, and to possibly receive from a third-party, confidential information.

Texas corporations are creatures of state law, formed under the laws of Texas, referred to as the corporation's state of incorporation. A Texas formed corporation which confines its operations to Texas does not need to worry about the corporate laws of other states. 

But generally shareholders of corporations want them to grow and increase profitability. For this purpose, Texas corporations will oftentimes expand operations outside Texas. Outside of its state of incorporation, a Texas corporation is viewed as a "foreign" corporation.

Reality check: Odds are that at some point in time your company will be sued.  How long the case will be pending, how much will your company expend in legal fees to defend itself and what will be the final outcome are very difficult to predict. 

If your company is sued, IMMEDIATELY review the summons or citation (usually the top page of the complaint or petition that states the claims of the lawsuit) and CALENDAR the date on which a response/answer is due.  The number of days you have to respond will be prominently mentioned. 

The Perishable Agricultural Commodities Act ("PACA") promotes fair trading in the market for fresh and frozen fruit and vegetables.  It also provides methods for the enforcement of contracts and the recovery of funds to a seller in the industry.  Having a complete understanding of how to operate under PACA is essential to both enforce the unique powers of the law, and to avoid the sharp end of the stick that PACA provides to a seller of perishable agricultural commodities.  PDH provides legal counsel to clients subject to PACA, including growers, brokers, and retailers, and guides these cli

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