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Rethink Non-Competes to Keep Them Afloat During Injunctions: Texas Lawyer

November 25, 2014

Rethink Noncompetes

Alan Bush and Lee Winkelman are routine freelance contributors for Texas Lawyer.  Their latest article, “Rethink Non-Competes to Keep Them Afloat During Injunctions,” appeared in the September 9, 2014 issue.

Beyond the merits of a non-compete, there’s a lot more to securing an injunction.  Equitable elements can make or break an enforcement action.  Here’s what Alan and Lee had to say about it:

Like the Titanic, some noncompete agreements look unsinkable.  They’re enforceable and reasonable which makes a deadly duo.  But sometimes a company comes up empty-handed on a bid to enforce the noncompete with an emergency injunction.

Those disasters teach valuable lessons.  It’s tempting for enforcement counsel to lavish attention on the merits on the noncompete itself, only to lose track of the equities needed to get an injunction.  Here are four quick lessons to avoid wrecking before and in court…

Read the full article for more.  In it, Alan and Lee lay out some practical thoughts on:

  • Evidence that can help make a court more comfortable granting an emergency injunction;
  • Inevitable disclosure doctrine and its Texas-style version; and
  • How to handle employee departures with an eye toward keeping legal options open.

MC-SHRM: Three Things Effective HR Compliance Teams Do

October 10, 2014

Alan Bush often speaks at seminars for business leaders—such as line executives, finance executives, human resource professionals, CPA’s and lawyers.  You can hear him at the MC-SHRM general meeting on October 14.

Effective HR leaders think differently.  We’ll talk out three things that hit home:

  1. Live in the business world, not at the courthouse.
  2. Talk the law, but don’t be the law.
  3. Be Smoky the Bear, not a firefighter.

Hear it straight from a panel of local HR executives and in house lawyers.  Panelists include David Comeaux (McKesson – Lead Counsel, Employment Law), Stephanie John (Newfield Exploration – Legal Counsel and Compliance Officer) and Lee Ann Kendrick.  Alan Bush, principal of the Bush Law Firm, will moderate.

When: 8 – 9a

Where: Lone Star College


HR Southwest: Overtime Pay – Safe To Go In The Water?

August 27, 2014








HR Southwest – the largest regional HR conference in the United States – has tapped Alan Bush once again to speak on two topics.  This year, HR Southwest asked Alan to talk on “Overtime Pay: Safe To Go In The Water.” Here are the details:

Don’t swim with a cut – it calls sharks.  That’s also true in HR.  Which of your standard HR documents could be Exhibit A in a big, fat FLSA overtime pay collective action?  Self-audit principles help.  Then go a step further and launch policies to knock out collective actions before they begin.

When: Oct. 7 at 8:15 – 9:30a

Where: Fort Worth Convention Center


Alan has previously talked for HR Southwest on these topics:

HR Southwest: Investigations On The Record (Strictly)

August 27, 2014








HR Southwest – the largest regional HR conference in the United States – has tapped Alan Bush once again to speak on two topics.  This year, HR Southwest asked Alan to talk on “Investigations On The Record (Strictly).” Here are the details:

The fruit of an investigation is helpful only if it gets respect in court.  Witnesses sometimes crawfish on their story, and judges can toss out evidence.  Both can be devastating.  How HR handles witnesses and evidence in an investigation can make or break the defense.  Sounds like CSI?  It is.  Let’s talk it out.

When: Oct. 6 at 4:30 – 5:30p

Where: Fort Worth Convention Center


Alan has previously talked for HR Southwest on these topics:

Texas Lawyer: Learn From DOL’s Audits in the Oil Patch

August 7, 2014

Wookboots not Wingtips

Texas Lawyer has signed up Alan Bush and Lee Winkelman as freelance contributors. Their latest article, “Learn From the DOL’s Audits in the Oil Patch,” appeared in Out of Order section on June 9, 2014.

Here’s what Alan and Lee had to say about the lessons that companies in all industries can learn from the DOL’s dive into the oil patch:

There’s a new player in the oil patch: the U.S. Department of Labor. Although few folks are taking a hard look at this development, everyone should. Even in-house counsel who work outside the energy industry can learn from the industry’s new experience with the DOL.


Back in December 2012, the DOL’s wage-and-hour enforcement arm issued a mostly unnoticed press release about the latest “multiyear enforcement initiative.” It targets companies that handle pieces of the fracking process in the Marcellus Shale. Then, the DOL audits started.


The past 18 months have taught some hard lessons. Decades-old pay structures have come under DOL fire. Counsel have learned how to respond to an audit. And the first-strike lawsuit against the DOL has earned a place in defense counsel’s toolbox. Let’s take a peek at each of these items in turn…

Read the full article for more. In it, Alan and Lee lay out some practical thoughts on:

  • Hot-button pay practices that can draw unwanted DOL attention;
  • How to work with the DOL during an audit; and
  • Preemptive lawsuits to challenge an overly-aggressive DOL enforcement position on the company’s terms.

For quite some time, Alan has been talking for in-house counsel and other business leaders about the energy industry’s recent brush with the DOL. He has spoken for HR Southwest, the Energy Law Symposium produced by the Texas A&M Law Review and The Woodlands Chamber’s Annual Employment Law Update.

Alan has even spent a day on an oil rig, then written for Texas Lawyer about what it teaches lawyers. That article can be found here.

CPE by the Sea: Upcoming Speaking Gig

May 28, 2014

galveston conv ctr

CPE by the Sea | Texas CPA Society

Forward HR Intelligence: Get There First

June 12 – 13, 2014

Alan Bush and Lee Winkelman will talk at the Galveston Island Convention Center about “Forward HR Intelligence”:

An employer can think like the other side.  Expose how plaintiff’s lawyers, government enforcers or competitors can exploit weak spots in HR systems created recently by courts and regulators.  Then fix it. We’ll talk it out – all the way from whistleblower claim ambush, to non-compete agreements, to the juiciest overtime lawsuit trends.  Hear it straight from an ex-plaintiff’s lawyer, turned 100% company man.

When: June 12 at 2:20 – 4p

Where: Galveston Island Convention Center


Forum Selection Clauses and BBQ: Texas Lawyer

March 18, 2014

Make Forum Selections like BBQ image

Alan Bush is a routine a freelance contributor for Texas Lawyer. His latest article, “Make Forum Selection Like Barbeque,” appeared in the March 17, 2014 issue. Lee Winkelman, of counsel with the firm, jumped aboard as co-author.

Thanks to a recent SCOTUS decision, companies now have a strong hand to pick where employee disputes will be litigated. Forum selection clauses in employment agreements and arbitration policies have real teeth.

Here’s what Alan and Lee had to say about it:

Everybody wants their pick of forum to settle disputes.  Why else would lawyers go toe-to-toe about it at the courthouse?  But duking it out with an unhappy current or former employee is kind of like having a meal.  The cooking always tastes better at home.  Barbeque and lawsuits: They’re both better in your own backyard.

Disputes with an employee-turned-plaintiff are no exception.  Last December in Atlantic Marine Construction Co. v. U.S. District Court for the Western District of Texas, the U.S. Supreme Court dealt a better hand to companies seeking to enforce a forum selection clause if an employee comes after them in court.

In-house counsel now have a choice.  Break out a streamlined employment dispute resolution process, like arbitration or jury waivers, with a forum selection provision?  Or tread the path to the employee’s chosen courthouse to pick a jury?

Read the full article for more.  In it, Alan and Lee lay out some practical thoughts on:

  • Employment agreements, like a jury waiver or non-compete, that contain a forum selection clause;
  • Arbitration policies that mandate a set forum; and
  • When forum selection clauses are worth the effort.

Previously, Alan and Morgan have written about using streamlined dispute resolution methods – like arbitration policies and jury waivers – to control defense costs.  That Texas Lawyer article can be found here.


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