Since the 1980s, Texas and several other states prohibited merchants from imposing a surcharge for customers who paid with a credit card by passing an Anti-Surcharge law. That law said that “a seller may not impose a surcharge on a buyer who uses a credit card for an extension of credit instead of cash, a check, or a similar means of payment.” Conveniently for the state, the Anti-Surcharge Law didn’t apply to “a state agency, county, local governmental entity, or other governmental entity that accepts a credit card for the payment of fees, taxes, or other charges[.]” A “surcharge” is an amount above the sales price of an item often to cover the credit card processing fees charged by credit card companies. It was neither the customer nor the credit card company who was paying the price for credit card use; it was the merchant who chose to offer customers the convenience of credit card pay who bore the burden. Charging the same price for cash and credit meant that the merchant would make less profit on a credit card sale.

Those days may now be ending.

Recently, the U.S. District Court for the Western District of Texas issued an opinion in the Cook v. Paxton case which addressed the unfavorable-for-merchants surcharge law. In this case, a group of Texas merchants challenged the Texas Anti-Surcharge Law—Texas Business and Commerce Code § 604A.0021. The plaintiffs in Cook claimed that this law was unconstitutional—it violated their free-speech rights under the United States Constitution.

Wait, what? How is a surcharge speech?

Well, the Cook plaintiffs argued that as merchants, they would like to tell their customers that there is a surcharge if the customer pays with a credit card and that there is no additional charge if the customer pays with cash or a check. But more than anything, those plaintiffs wanted to tell customers that the surcharge is assessed because of the credit-card processing fees the credit card companies charge. The merchants in Cook didn’t want to charge their customers any more than the processing fee they paid on the purchase. But because of the Texas Anti-Surcharge Law, their lips were sealed. And that is how a surcharge involves protected speech.

And the Cook plaintiffs were not alone.

Merchants from other states launched free-speech challenges elsewhere. Similar anti-surcharge laws in California, New York, and Florida—along with the Texas Anti-Surcharge Law—fell under the scrutiny of the U.S. Supreme Court in the Expressions Hair Design v. Schneiderman case.

Guess what happened?

The U.S. Supreme Court held that these anti-surcharge laws were unconstitutional. The laws violated the merchants’ free-speech rights. The Supreme Court then remanded each individual case to the court where it was filed. Cook went back to the Western District of Texas.

In trying to save the law, the state of Texas argued that the greedy merchants would be deceiving customers by charging a surcharge in excess of the processing fees charged and pocketing the extra money. That, however, was never the intent of the Cook plaintiffs who rejected the claim that they wanted to charge more. The court threw out the state’s argument, noting that “A state may not justify a law on the grounds that consumers ‘would make bad decisions if given truthful information.’”

So, the Cook court followed the Supreme Court’s reasoning, handing a victory to Texas merchants. Concluding that the Texas Anti-Surcharge law neither advanced a substantial governmental interest nor was the minimum necessary to serve the state’s interest, the court granted summary judgment in favor of the merchants.

Should you start surcharging now?

Don’t jump the gun! Essential to the court’s ruling was that it was speech being protected, and that the amount the Cook plaintiffs wanted to charge didn’t exceed the actual processing fee the merchant was charged by the credit card companies. Keep these things in mind when making your business decisions regarding pricing and communications.

Also remember that the law is still “on the books” in a way—courts have declared that it is unconstitutional, but remember what Evelle J. Younger, California’s attorney general said in 1971, “An incompetent attorney can delay a trial for years or months. A competent attorney can delay one even longer.” In other words, the case isn’t over yet, so proceed with caution, although thanks to the efforts of the Cook merchants, their lawyers, and their counterparts in other states, things are looking positive for business.

At this time, many modern organizations and companies are using the internet, social media and other forms of digital media to market their business. It is becoming ever more apparent that social media marketing can have a significant impact on the success, popularity, and growth of the business. Thus, social media accounts and social media marketing techniques have become an important part of the trade secrets of the business. Trade secrets contained in digital format include customer lists, business practices, price lists, scientific data, technical data, formulas, programs, codes, and financial data. In 2013, the State Legislature enacted the Texas Uniform Trade Secrets Act (TUTSA) to create a cause of action for the theft of trade secrets. The Defend Trade Secrets Act, passed in 2016, is the Federal version of TUTSA.  To expand upon the protections of digital accounts and secrets under TUTSA, the Texas House and Senate amended TUTSA under House Bill 1995, to offer clearer definitions and modernize the language of TUTSA. In recent years, there has been an uptick in the number of lawsuits that are filed against former employees for the alleged misappropriation of social media accounts which cause damage to the company’s reputation or bottom-line. Many of these lawsuits focus on the question of who has a superior right to the social media account. In all instances, businesses should install safeguards to ensure that the social media accounts are not solely controlled by one individual so that the company will have access to those sites upon termination of an employee. Safeguards include maintaining business emails linked to the social media accounts, retaining passwords, and crafting a social media policy which protects the company’s interests, outlines acceptable social media activities, and establishes ownership of accounts.

The information presented in this article should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Undue influence is a form of legal fraud that is often alleged in contests to a Will. It may exist without resort to false representations, but by a more subtle form of deceit or cunning, particularly where there was been an unconscionable advantage taken of a confidential relationship. See Pace v. McEwen, 574 S.W.2d 792, 800 (Tex.App.—El  Paso, 1978, re’hrng denied); 25 Tex.Jur.2d Fraud and Deceit, Secs. 4 and 8 (1961).

Generally, the establishment of the existence of an influence that was undue is based upon an inquiry as to the nature and type of relationship existing between the testator, the contestants, and the party accused of exerting such influence. The establishment of the exertion of such influence is generally predicated upon an inquiry as to the following:

1. Opportunities existing for the exertion of the type of influence;
2. Deception possessed or employed;
3. Existence of a fraudulent motive; and
4. Habitual subjection to the control of another.

Rothermel v. Duncan, 369 S.W.2d 917 (Tex. 1963)

The elements of undue influence include: (1) the decedent’s susceptibility to undue influence, (2) opportunity to exert such influence, (3) a disposition to do so for an improper purpose, and (4) a result clearly showing the effects of undue influence. 79 Am.Jur 2 Wills § 359, at 576-77 (2013). Grounds for undue influence that the contestant must prove:

1. The existence and exertion of an influence;
2. The effective operation of such influence so as to subvert or overpower the mind at the time of execution of the instrument;
3. The execution of an instrument which the maker would not have executed but for such influence.

Rothermel v. Duncan, 369 S.W.2d 917 (Tex. 1963)

The burden of proving undue influence is upon the party contesting the execution of a document. The contestant must introduce tangible and satisfactory proof of the existence of each element of undue influence. Scott v. Townsend, 106 Tex. 322, 166 S.W. 138.

The influence is not undue unless the free agency of the person is destroyed.  Influence that was or became undue may take the nature of, but is not limited to force, intimidation, duress excessive importunity or deception used in an effort to overcome or subvert the will of the maker. The courts of Texas treat the exertion of such influence in the execution of a dispositive instrument as a species of legal fraud. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963)

The exertion of influence that was or became undue is usually a subtle thing and by its very nature usually involves an extended course of dealings and circumstances. Thus, it is settled that the elements establishing undue influence may be proved by what is known as circumstantial, as well as by direct evidence. In the absence of direct evidence, all of the circumstances shown or established by the evidence should be considered; and even though none of the circumstances standing alone would be sufficient to show the elements of undue influence, if when considered together they produce a reasonable belief that an influence was exerted that subverted or overpowered the mind of the person, the evidence is sufficient to sustain the conclusion. Rothermel v. Duncan, 369 S.W.2d 917 (Tex. 1963).

The information presented in this article should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Internet privacy has become an important issue as more and more businesses move into the digital age and publish content online. Data that is collected by companies is becoming increasingly valuable and consumers should be more aware of how this information is being used and who is being given information. The Privacy Act passed in 1974 and was meant to protect individuals’ privacy rights and personal information. Other laws such as the Health Insurance Portability and Accountability Act (HIPAA) of 1996 and the Health Information Technology for Economic and Clinical Health Act of 2009 protects healthcare information from disclosure without proper consent. Understanding privacy laws can help website and business owners avoid complaints that the company has violated the rights of its users. One way that organizations can give the website user’s notice of how their information is used is to post the privacy policy in a conspicuous place on the website or to have the users sign an agreement upon accessing the site. The more transparency that a company give about what type of information will be collected, shared and how this information will be used, the less likely to violate any privacy rights of the consumer.

The information presented in this article should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.