Dallas Bar Association
HEADNOTES |
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Focus | Entertainment, Art & Sports Law
March 2022 Volume 47 Number 3
2022 Fellows Justinian Award Recipient: Hon. Karen Gren Scholer BY SAKINA RASHEED FOSTER
Quentin Brogdon, Sarah Rogers, Rob Crain, John Spillane
Crain Brogdon Rogers Contributes to a New EAJ Campaign Record BY MICHELLE ALDEN
As the Dallas community contends with the Omicron variant, the Dallas Volunteer Attorney Program (DVAP) was fortunate to receive the support of Crain Brogdon Rogers LLP with a $25,000 donation. This makes an impressive total of $288,705 from Rob Crain and his previous and current firms, including a $50,000 pledge to the DVAP Endowment, the Justice Forever Fund. Crain Brogdon Rogers, LLP is a team of lawyers and professionals focusing on serious personal injury and wrongful death cases of all types. Though their practice is concentrated in North Texas, the firm handles cases throughout the country. Why do the accomplished attorneys of Crain Brogdon Rogers support equal access to justice? “There are many competing opportunities for all of us to contribute our money and our time to worthwhile causes, but DVAP stands head and shoulders above most of them. I have never second-guessed our firm’s contributions to this worthy cause. I know to a certainty that those contributions are making a real difference in real people’s lives,” said Quentin Brogdon. The justice gap in Dallas County remains daunting. In a country based on justice for all and access to our court system, over 25 percent of Dallas County residents live near the poverty level, and 42 percent have a slim hope of affording an attorney. With annual poverty incomes of $34,687 for a family of four, justice is a luxury for low and moderateincome families. Last year was another unusual year for our community. DVAP continued to con-
duct virtual legal clinics every Thursday and a virtual veteran’s clinic the first Friday of each month, along with periodic specialized wills, driver’s license restoration, and eviction clinics. The most publicized legal issues during the pandemic have been those in the landlord-tenant realm, as eviction rates have soared despite the imposition of eviction moratoriums. DVAP was able to assist “Sharon” with her landlord-tenant matter. Sharon recently had a baby, and the air conditioning in her family’s rental home went out, forcing them to check into a hotel. The rental house was also plagued with mold and plumbing issues. Sharon continued paying rent for nine months while she and her family could not live in the house due to the uninhabitable conditions. The property management company notified her that they were terminating her 30-day lease, as the owner planned to sell the house to his son. During this time, the management continued to string Sharon along, finally crediting two months’ rent and returning her security deposit. However, she was still out for seven months of rent. She was diligent and followed up with emails and texts before seeking help from DVAP. Sharon’s case was placed with volunteer attorney Shalanda Smith. Shalanda filed suit under the DTPA in District Court, followed by a motion to compel discovery. At last, defense counsel provided a monetary settlement. “I personally experienced bad situations with landlords during the time I was assisting Sharon. I fought for her, just like I fought for myself. I saw myself in her. continued on page 10
Trailblazer. It is a word we use to describe someone who forges a new path through uncharted territory to help others find their way. The Honorable Karen Gren Scholer, this year’s recipient of the Dallas Bar Foundation’s (DBF) prestigious Fellows Justinian Award, embodies every aspect of this word. The Fellows Justinian Award is awarded to an attorney who has achieved and consistently demonstrated the highest levels of professional excellence in a substantive area of the law. Recipients are recognized for making extraordinary contributions through their professional achievements in an area of the law. Judge Scholer’s impeccable professional reputation, commitment to legal excellence and fortitude are a perfect reflection of these ideals espoused by the Fellows Justinian Award. As Judge Scholer has been known to say, being “the first” helps break down barriers for other people and what they think they can do in their own lives. Fittingly, Judge Scholer’s professional excellence is marked by the many “firsts” she has accomplished during her career. Judge Scholer was the first Asian American elected official in the City of Dallas when she was elected as state district judge for the 95th Judicial District, where she resided from 2001 to 2008. Now, as the sitting judge of the U.S. District Court for the Northern District of Texas, Judge Scholer is the first Asian woman to become an Article III judge in a court within the Fifth Circuit. As detailed in the book chapter dedicated to Judge Scholer in The First Fifteen: How Asian American Women Became Federal Judges by Susan Oki Mollway, this is especially impressive given that women did not enter the federal judiciary until less than a century ago and that, as of 2019, Asian women made up roughly 4 percent of women sitting Article III judges. And, as the Texas Lawyer noted in 2019, Karen Gren Scholer’s decade-long journey to become the first Asian-American federal district judge in Texas is evidence of her exceptional qualifications and the universal respect she has earned from her colleagues throughout her career. In another important “first,”
Judge Karen Gren Scholer
Judge Karen Gren Scholer is the first Asian American to receive the esteemed Fellows Justinian Award. Some may say that Judge Scholer was destined to be a trailblazer. She is the daughter of a Japanese mother, who is a college graduate, a rare and impressive accomplishment for a woman in 1940s Japan. Her father was an American World War II veteran, son of Polish immigrants and the first in his family to attend college. Judge Scholer was the first on her father’s side of the family to complete college, which she did when she graduated from Rice University before going on to obtain her J.D. from Cornell Law School. Judge Scholer then went on to private practice focusing on business litigation, complex tort litigation, and alternative dispute resolution at Strasburger & Price (now Clark Hill), Andrews Kurth (now Hunton Andrews Kurth), Jones Day, and Carter Arnett (then Carter Scholer). As a further testament to Judge Scholer’s trailblazing career, she was a partner at each of these firms at a time when women of color partners made up only 1.5 percent to 3 percent of lawyers at firms (per a Berkeley Law 2020 Diversity Report). Judge Scholer’s commitment to legal excellence is also illustrated by her willingness to use her extraordinary advocacy skills and brilliant legal mind to serve on the judiciary. As Mollway notes, when Judge Scholer was urged by others to pursue a state judgeship, she said they were telling her what was already in continued on page 22
Inside 6
Name Image and Likeness Compensation for Student Athletes
14 NFT Museums in the Metaverse 16 Homeowners Insurance and the Iconic Dust Jacket 23 Super Bowl Settlement: St. Louis vs. Rams Relocation
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2 He a d n o t e s l D a l l a s B a r A s s o ciation
March 2022
Programs and meetings are presented Virtually, Hybrid, or In-Person. Check the DBA Online Calendar (www.dallasbar.org) for the most up-to-date information. Programs in green are Virtual Only programs.
Calendar March Events
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
WOMEN’S HISTORY MONTH
March is Women’s History Month. For additional resources on Women’s History Month, visit the ABA’s website at https://bit.ly/2Yf9pbJ. To find out more about the Dallas Women Lawyers Association, go to dallaswomenlawyers.org/. For more on the DBA’s Diversity Initiatives, log on to www.dallasbar.org.
Noon
Noon
Corporate Counsel Section “Creating a Legal Department Culture of Diversity, Equity, and Inclusion,” Chasity Henry, Debra Hunter Johnson, Mandy Price, and moderator Jill Louis. (MCLE 1.00, Ethics 0.50)**Qualifies as 2022 DBA DEI challenge CLE. Virtual only
Tort & Insurance Practice Section “Litigation Research with Westlaw,” Stacie Crowson and Melissa Taylor. (MCLE 1.00)* Virtual only Morris Harrell Professionalism Committee. Virtual only
Noon
Public Forum Committee “Restoring Hope: Moving Forward in Reconciliation,” Rabbi Andrew Paley, Imam Azhar Subedar, and Pastor Bob Roberts. Co-sponsored by the Public Forum Committee and Faith Forward Dallas. Virtual only
Noon
Tax Law Section “Tribune Media Company v. Commissioner,” Richard Lipton. (MCLE 1.00)* In Person only
TUESDAY, MARCH 8
Solo & Small Firm Section “‘Fit’ to Admit? What You Need to Know About New Sources of Digital Evidence,” John Browning. (MCLE 1.00)* Virtual only Allied Bars Equality Committee. Virtual only Public Forum Committee. Virtual only
Home Project Committee
TUESDAY, MARCH 15 Noon
Noon
Energy Law Section Topic Not Yet Available
Health Law Section “Intersection Between Healthcare and Cannabis,” Richard Cheng and Krisit Harbord. (MCLE 1.00)* Virtual Only Law in the School & Community Committee. Virtual only
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.
Judiciary Committee. Virtual only
Summer Law Intern Program Committee. Virtual only
THURSDAY, MARCH 17
Friday Clinic “Cryptocurrency 101,” Adam Zarazibski. (MCLE 1.00)* Virtual only
REGISTERnow Dallas Bar Association 30th Annual
Golf Tournament
Noon
Noon
Appellate Law Section “SCOTUS Goes Back to School: A Look at the Supreme Court’s Student Speech Rulings from Tinker to Mahanoy Area School District,” Chad Baruch. (MCLE 1.00)*
Relaunch Program 4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.
THURSDAY, MARCH 24 Noon
Noon
Friday Clinic “Balancing Your Law Practice With Physical and Mental Wellness,” Richard Cheng, Al Ellis, Heather Gram-Chavez, and Dan Garrigan, moderator. (Ethics 1.00)* Co-sponsored by the CLE & Peer Assistance Committees. Virtual only
Criminal Law Section “Wrongful Convictions and Prosecutorial Responsibility,” Richard Miles and Dallas DA John Creuzot. (Ethics 1.00)* Environmental Law Section “Pesticides and FIFRA,” Jamie Huffman. (Ethics 1.00)* Virtual only Intellectual Property Law Section “An Introduction to the Copyright Claims Board,” Whitney Levandusky. (MCLE 1.00)* Virtual Only Minority Participation Committee. Virtual only
3:30 p.m. DBA Board of Directors
FRIDAY, MARCH 25 No DBA Events Scheduled
MONDAY, MARCH 28 Noon
Science & Technology Law Section “Cyber Security Protection in IT Contracts – in a Hurry,” Charles Hosch and Russell “Russ” Pearlman. (MCLE 1.00)* Virtual Only Securities Section “Navigating the Waters: The SEC’s Focus on ESG,” Scott Mascianica and Eric Werner. (MCLE 1.00)* Virtual only Golf Tournament Committee. Virtual only
TUESDAY, MARCH 29 Noon
DVAP Wills CLE “Do’s & Don’ts in Drafting Wills and POAs,” Brandy Baxter-Thompson. (MCLE 1.00)* Virtual Only
FRIDAY, MARCH 18
Collaborative Law Section Topic Not Yet Available
Entertainment, Art & Sports Law Section Topic Not Yet Available
Pro Bono Activities Committee. Virtual only
Bench Bar Conference Committee. Virtual only
Probate, Trusts & Estates Law Section “The Power to Appoint and Disappoint: Anatomy of Powers of Appointment,” Gene Wolf. (MCLE 1.00)*
WEDNESDAY, MARCH 23
Entertainment Committee. Virtual only
Family Law Section “Texas HIPAA Guide for Lawyers,” Sarah Darnell and Katie Lewis. (Ethics 1.00)* Virtual only
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contac mmejia@dallasbar.org.
Noon
Community Involvement Committee. Virtual only
Criminal Justice Committee. Virtual only
FRIDAY, MARCH 4
TUESDAY, MARCH 22
Antitrust & Trade Regulation Section Topic Not Yet Available
WEDNESDAY, MARCH 16
Labor & Employment Law Section “2022 Disability Discrimination Update,” Brian East. (MCLE 1.00)* Senior Lawyers Committee
International Law Section “Ethical Considerations in International Arbitration,” TJ Auner and Andrew Melsheimer. (Ethics 1.00)* Virtual only
Bankruptcy & Commercial Law Section Topic Not Yet Available
THURSDAY, MARCH 3
Noon
Peer Assistance Committee
WEDNESDAY, MARCH 9
Noon
Noon
Alternative Dispute Resolution Section “Top 10 Things Mediators Need to Know About Bankruptcy,” Frances Smith. (MCLE 1.00)* Real Property Law Section “Property Owners’ Association (HOA) Law Legislative Update,” Kate Kilanowski. (MCLE 1.00)*
Legal Ethics Committee. Virtual Only
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.
Noon
Noon
Immigration Law Section Topic Not Yet Available Courthouse/Library Committee. Virtual only
MONDAY, MARCH 21
MONDAY, MARCH 14
Business Litigation Section “Winning at Persuasion: The Art and Science of Public Speaking at Hearings and Trials,” Shane Read. (MCLE 1.00, Ethics 0.50)*
Employee Benefits & Executive Compensation Law Section “Debrief on 2022 Joint TE/GE Council Meeting,” Kelly Pointer and Scott Thompson. (MCLE 1.00)* Virtual only
Government Law Section Topic Not Yet Available Trial Skills Section Topic Not Yet Available
MONDAY, MARCH 7
Noon
WEDNESDAY, MARCH 2 Noon
CLE Committee
“Balancing Your Law Practice With Physical and Mental Wellness,” Richard Cheng, Al Ellis, Heather Gram-Chavez, and Dan Garrigan, moderator. (Ethics 1.00)*. Co-sponsored by the CLE & Peer Assistance Committees. Virtual only
TUESDAY, MARCH 1
Allied Bars Equality Committee “Movie in Review: The Hate U Give,” John McShane and SaKinna Thomas. (Ethics 1.00)* *Qualifies as 2022 DBA DEI challenge CLE. Virtual Only
FRIDAY, MARCH 11
“Cryptocurrency 101,” Adam Zarazibski. (MCLE 1.00)* Virtual only
MARCH 18 Noon
Noon
Publications Committee. Virtual Only
FRIDAY CLINICS
MARCH 4
THURSDAY, MARCH 10
Allied Bars Equality Committee “DEI Book Club—To Kill a Mockingbird—CLE and Book Discussion,” Talmage Boston, Prof. Cheryl Wattley, and John Kane. (Ethics 1.00)* *Qualifies as 2022 DBA DEI challenge CLE. Virtual only
WEDNESDAY, MARCH 30 No DBA Events Scheduled
THURSDAY, MARCH 31 Noon
DBA CSF Board of Directors
Benefiting Access to Justice
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If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Alicia Hernandez at (214) 220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.
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D al l as Bar A ssoci ati on l Headnotes 3
4 He a d n o t e s l D a l l a s B a r A s s o ciation
March 2022
President’s Column
Headnotes
A Celebration of Women BY KRISI KASTL
“One child, one teacher, one pen and one book can change the world.” —Malala Yousafzai
President. She became the first female president of both the Dallas Bar Association in 1985 and the Texas Bar Association in 1992. Miers was Former President George Bush’s lawyer. While he was governor in 1995, she took on the gargantuan task of cleaning up the Texas Lottery. Bush recognized her talent. When he became President, Miers served first as the White House Staff Secretary before becoming the Deputy Chief of Staff. She went on to replace Alberto Gonzales as counsel to then-President Bush. Miers’ legendary dedication was evident in her long work hours. In 1998 the National Law Journal named her one of the Top 50 Most Influential Lawyers. Her work has garnered
March is one of my favorite months for many reasons. It is the month that welcomes Spring. It is the month where I celebrate the birth of my husband, Sean, as well as the birth of our first nephew Joey and niece Ainsley. In my college days, I could look forward to the pleasure of pressing pause on academic rigors with a week of respite. Through the years, I have come to value March as a celebration of women. What started as a single day, blossomed into a month and I am proud to recognize the outstanding trailblazers who came before me. Accomplishment does not always mean acknowledgment. Virginia Woolf famously said; “For most of history, anonymous was a woman.” In 1978, The Education Task Force in Sonoma County California decided to honor those who had long stood in the shadows by revering women everywhere on the week of March 8. The movement caught fire and by 1980 President Jimmy Carter issued the first Presidential Proclamation declaring a National Women’s History Week. In 1987, the celebration extended to the entire month of March. This leads me to today. I want to keep the commemoration going all year long. This will be the first of nine articles highlighting prior female presidents of the Dallas Bar. We will also look ahead to how we can grow and support each other as an organization by getting Back into (Left to right): Harriet Miers, Sally Crawford, Krisi Kastl, Rhonda Hunter the Groove in 2022. Here are the nine women who came before me: recognition from The Dallas Women Lawyers Association, 1985 - Harriet E. Miers the Anti-Defamation League, and the Dallas Association of 1997 - Molly Steele Young Lawyers. In 2005 she was nominated to serve on the 1998 - Elizabeth Lang-Miers Supreme Court. When Former President Bush nominated 2002 - Nancy A. Thomas her, he noted that her mother was her primary inspiration. 2004 - Rhonda Hunter My mother is my foundation. She had big aspirations for 2007 - Beverly Godbey me in the teaching field. She even dreamed of me becom2009 - Christina Melton Crain ing the president of the University of Texas at El Paso. Life 2013 - Sally L. Crawford had other plans. I remember crying to her over the phone in 2019 - Laura Benitez Geisler I am honored to be the Dallas Bar Associations’ 10th my firm’s infancy. I had lost a case. She reminded me of the female president since its inception in 1873. The lineage drive I had to help people. At that moment I realized I had of women who paved the way for my tenure is outstanding. picked the right career. I have highlighted only a fraction of Miers’ many accomI began this article with a quote from Nobel Peace Prize laureate, Malala Yousafzai. Malala’s diligence for inclusion plishments. I could fill this page with accolades. She exempliis echoed in the DBA. I am delighted that the start of my fies hard work, determination, and public service. Her mantra tenure as president is perfectly timed with Women’s History is echoed in the outstanding work the DBA embodies. Month and an opportunity to recognize the innovators in our association who were the “firsts” in their field. Harriet Miers was selected to be the first female President of the Dallas Bar Association in 1985. She is proud I was deeply touched by the support of my esteemed to be Dallas-born and bred. Miers attended Hillcrest High colleagues at my inauguration. I genuinely look forward to School in 1963. After her graduation, she entered South- reconnecting and supporting each other in the year ahead ern Methodist University intending to become a teacher. and embracing the association’s diversity. I want us to celHer family faced tough financial times and this sacred call ebrate this season of renewal by turning our attention to the was challenged. Her father suffered a debilitating stroke and exciting events that are coming in April. Miers was so inspired by the lawyer who helped organize her The DBA will once again offer a way to support access family’s finances that her trajectory changed. She graduated to justice with our annual Golf Tournament on April 28. I with a bachelor’s degree in Mathematics. After graduation, am also eagerly anticipating our Law Day Presentation celeshe attended Law School and graduated with a Juris Doctor brating the 50th Anniversary of Title Nine. We are honored degree in 1970. to have the CEO of the Dallas Mavericks Cynthia (Cynt) I was born the following year. Like Harriet, I contem- Marshall as our keynote speaker. Ms. Marshall cultivated a plated becoming a teacher, but life had other plans. My fam- life full of firsts, including being the first African American ily also faced economic hardships that shaped how I viewed CEO in the history of the National Basketball Association. where life would take me. I love being a lawyer now because As we emerge from the challenges of the past few years, it fulfills the teacher part of my aspirations. Being on the I am motivated to get back into the groove of all the DBA high school debate team cultivated my appreciation for a has to offer. I look forward to collaborating and celebrating good argument. with you as we learn from our past to build a better future Miers was a pioneer in the legal field. She was the first together. I urge you to keep a watchful eye on the website woman hired by the Dallas Law firm Locke Purnell Boren for in-person programming and join us at the Arts District Laney and Neely (now Locke Lord) and later became its Mansion to get back into the groove in 2022. HN
Back in the Groove in 2022
Published by: DALLAS BAR ASSOCIATION
2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. OFFICERS President: Krisi Kastl President-Elect: Cheryl Camin Murray First Vice President: Bill Mateja Second Vice President: Vicki D. Blanton Secretary-Treasurer: Liz Cedillo-Pereira Immediate Past President: Aaron Z. Tobin Directors: Lauren Black, Rob Cañas, Jonathan Childers (Chair), Stephanie G. Culpepper, Rocio Garcia Espinoza, Hon. Dennise Garcia, Ashlei Gradney (President, J.L. Turner Legal Association), Hon. Martin Hoffman, Andrew Jee, Andy Jones (President, Dallas Association of Young Lawyers), Jennifer King, Jonathan Koh (President, Dallas Asian American Bar Association), Elsa Manzanares (President, Dallas Hispanic Bar Association), Hon. Audrey Moorehead, Timothy Newman, Marisa O’Sullivan (President, Dallas Women Lawyers Association), Kelly Rentzel, Sarah Rogers (Vice Chair), Drew Spaniol, and Amy M. Stewart Advisory Directors: Alison Ashmore (President-Elect, Dallas Women Lawyers Association), Carla Green (President-Elect, Dallas Hispanic Bar Association), Amber Hamilton Gregg (President-Elect, J.L. Turner Legal Association), Nadia Haghighatian (President, Dallas LGBT Bar Association), Nicole Munoz Huschka (President-Elect, Dallas Association of Young Lawyers), and Janet Smith (President-Elect, Dallas Asian American Bar Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Chad Baruch, Rebekah Brooker, Michael K. Hurst, Mary Scott, Robert Tobey HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Display Advertising: Annette Planey, Jessica Smith PUBLICATIONS COMMITTEE Co-Chairs: James Deets and Joshua Smeltzer Vice-Chairs: Elisaveta (Leiza) Dolghih and Ted Huffman Members: Logan Adcock, Benjamin Agree, David Brickman, Catherine Bright Haws, Ian Brown, Srinivasan Chakravarthi, Gracen Daniel, Lindsay Drennan, Alexander Farr, Dawn Fowler, Neil Issar, Beth Johnson, Andrew Jones, Alexandra Jones, Krisi Kastl, Jon Kettles, Brian King, Jared Knight, John Koetter, Alan Lightfoot, Margaret Lyle, Derek McKee, Majed Nachawati, D. Mason Parham, Keith Pillers, David Ritter, Carl Roberts, Sarah Rogers, John Shipp, Jared Slade, Sarah Spires, Jay Spring, Sarah-Michelle Stearns, Scott Stolley, Robert Tarleton, Paul Tipton, Anastasia Triantafillis, Pryce Tucker, Kathleen Turton, Peter Vogel, Benton Williams, Jason Winford DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Jessie Smith CLE Coordinator: Viridiana Rodriguez Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Elizabeth Hayden Executive Director, DBF: Elizabeth Philipp LRS Director: Biridiana Avina LRS Interviewer: Giovanna Alvarado LRS Program Assistant: Marcela Mejia Marketing Coordinator: Mary Ellen Johnson Membership Director: Shawna Bush Publications Coordinator: Judi Smalling Receptionist: Araceli Rodriguez Staff Assistant: Yedenia Hinojos Texas High School Mock Trial & Law Related Education Director: Melissa Garcia DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Managing Attorney: Holly Griffin Mentor Attorneys: Kristen Salas, Katherine Saldana Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Carolyn Johnson, Suzanne Matthews, Andrew Musquiz, Alicia Perkins Community Engagement Coordinator: Marísela Martin Program Assistant: Laci Payton Secretary: Charnese Garrett Copyright Dallas Bar Association 2022. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 800 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
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D al l as Bar A ssoci ati on l Headnotes 5
6 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
March 2022
Entertainment, Art & Sports Law
Name Image and Likeness Compensation for Student Athletes BY JUSTIN JONES
On July 1, 2021, Senate Bill 1385 took effect, amending the Education Code to allow student athletes at Texas institutions to be compensated for their name, image, and likeness (NIL). SB 1385 amends Subchapter Z, Chapter 51 of the Education Code by adding Section 51.9246 Compensation and Professional Representation of Student Athletes Participating in Intercollegiate Athletic Programs. As such, the Education Code now provides that a university in Texas cannot prevent a student athlete from earning compensation for the use of their name, image, and likeness when they are not engaged in official team activities. While framed in the negative, student athletes can now earn compensation generated from their names, images, and likenesses. The new law creates a framework for approval of NIL contracts, prohibits recruiting relating to NIL, and creates a Financial Literacy and Life Skills Workshop. Of particular interest to the bar, a school cannot prevent an athlete from obtaining representation, including representation by an attorney.
NIL Contract Approval and Limitations
The Education Code now provides a framework for proposed NIL contracts. Proposed NIL deals are contrasted with the school’s “Institutional contracts” (sponsorship contracts between the school or its representative and another party “governing the use of the institution’s trademarks in connection with athletics”) and any “Team contract,” which is defined as a contract
between a student athlete and a school that requires a student athlete’s compliance with its terms as a condition of participation in the school’s athletic programs. First, before entering into a NIL contract, the athlete must disclose the proposed NIL contract to the school. Further, there are limitations to the terms, the way the compensation is provided, and duration of the NIL contract. More specifically, the student athlete is prohibited from an NIL contract that conflicts with: (1) a Team contract; (2) an Institutional contract; (3) an athletic department policy; or (4) the institution’s Honor Code. Moreover, the compensation cannot be provided: (1) in exchange for athletic performance or attendance at the institution; (2) by the institution itself; or (3) in exchange for institution property (or while using intellectual or other property owned by the institution). In addition, the NIL contract cannot endorse alcohol, tobacco, e-cigarettes/nicotine delivery, anabolic steroids, sports betting, casino gambling, a firearm the athlete cannot legally purchase, or a sexually oriented business. Some argue that these restrictions go too far in limiting the topics of NIL contracts. The duration of the NIL contract cannot extend beyond the student athlete’s participation in the intercollegiate athletic program. While this safeguards the student athlete from bargaining away their individual NIL rights for a longer time, critics argue the time restriction infringes on the student’s ability to maximize their compensation when they may have the most leverage while playing as a student athlete (compared to after their eligibility expires). Others counter that for athletes that may turn professional, the limitation prevents
exploitation as negotiating leverage could later increase.
Framework for a Conflicting Contract
If the institution identifies a provision of the NIL contract that conflicts with a Team contract, an Institutional contract, an athletic department policy, or Honor Code, the institution must promptly disclose the conflict to the student athlete or student athlete’s representative. Thereafter, the athlete or athlete’s representative must resolve the conflict within 10 days. Some argue the framework is inequitable. For example, an athlete’s NIL contract could be rejected if an institution’s preexisting contract conflicts with the proposed NIL contract. For example, a proposed NIL contract between an athlete and an athletic beverage company could be theoretically rejected if the school already has a contract with a competing beverage company.
Recruiting
From a recruiting standpoint, the school cannot provide or solicit a prospective student athlete in relation to NIL. Furthermore, an individual, corporate entity, or other organization is prohibited from entering into an arrangement with a pros-
pect relating to NIL prior to enrollment. Similarly, such individuals and organizations cannot use inducements of future NIL compensation to recruit a prospect.
Financial Literacy and Life Skills Workshop
Under the law, institutions must require that student athletes attend a Financial Literacy and Life Skills Workshop at the beginning of their first and third academic years. The workshop must include information on financial aid, debt management, time management, budgeting, and academic resources available to the student athlete. Additionally, each of the current prohibitions in the Texas Occupations Code Section 2051.351 relating to Athlete Agents remain unchanged. Bill analysis posits that the new law will not change the amateur nature of college athletics and will instead recognize the changing landscape of college athletics. Critics argue that NIL will challenge the amateurism distinction. Others worry that NIL could lead to inequities between teammates and further delineate large and small school collegiate athletics. At any rate, the new law opens NIL possibilities for student athletes. HN
Justin Jones is a Senior Associate at Fee, Smith, Sharp & Vitullo LLP. He can be reached at jjones@feesmith.com.
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D al l as Bar A ssoci ati on l Headnotes 7
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8 He a d n o t e s l D a l l a s B a r A s s o ciation
Focus
March 2022
Entertainment, Art & Sports Law
Antiquities Dealers Made Subject to the Bank Secrecy Act worth at least $10 billion a year are the subject of illegal transactions. The rise in criminal activity in antiquities and art transactions has sparked global concern around the ability to use these markets for money laundering, illicit trafficking, and terrorist funding. To combat these criminal activities, many nations have passed new regulations aiming to discover the identities of buyers and sellers in antiquities and art transactions. The United States recently joined the global efforts to battle illegal activity in the antiquities and art markets. New regulations within the Anti-Money Laundering Act of 2020 (AMLA) require antiquities dealers to comply with certain provisions of the 1970 Bank Secrecy Act (BSA). Section 6110(a) of the AMLA expands the definition of “financial institutions” regulated under the BSA to include those “engaged in the trade of antiquities, including an advisor, consultant, or any other person who engages as a business in the solicitation or the sale of antiquities.” Fur-
BY ANDREA PEREZ
The antiquities and art markets are known to have a culture shrouded by secrecy and anonymity. Movies and television often portray the art world as shadowy and mysterious, such as 2020’s Tenet, which features a thrilling scene inside a Swiss freeport. There is some truth in the fiction, however. Art transactions are often organized through intermediaries and shell companies to protect identities from the public. Auction houses, art advisors, freeports, and dealers assisting collectors must also guard collectors’ confidences in order to maintain their reputations. Typically, these privacy efforts are due to security concerns related to possessing expensive and rare items. Whatever the motivation, anonymity and privacy in the antiquities and arts markets have long been manipulated to allow criminal activity to go unnoticed and undocumented. Illegal transactions in these markets have increased in the last decade, and UNESCO estimates art and antiquities
Spanish for Lawyers 2022 Summer Session: April 5 - June 7 Held online via Google Meet/Video conference.
thermore, AMLA directed the Financial Crime Enforcement Network (FinCEN) to draft proposed regulations pertaining to the trade of antiquities by December 27, 2021. As it currently stands, Section 6610 of the AMLA does not clearly specify who it will apply to, what compliance activities will be required, or what types of antiquities transactions will be regulated. Unfortunately, FinCEN missed the deadline for issuing proposed regulations and the deadline has been shifted from December 27, 2021 to June 2022. While we wait for the proposed regulations, FinCEN has issued a notice (FIN-2021-NTC2) under the BSA to existing financial institutions specifically relating to antiquities and art transactions. The notice warns financial institutions that have existing BSA obligations to be aware of illicit activity associated with the trade in antiquities and art, and that such activity may involve their institutions. Furthermore, existing financial institutions with obligations under the BSA are now required to provide Suspicious Activity Reports (SARs) to help identify money laundering and other crimes related to trade in antiquities and art prior to the release of the proposed regulations. FinCEN also requested that the public provide comments related to a number of questions about the applicability and mechanics of these regulations. Until FinCEN provides additional guidance, “art dealers” are excluded from the
expanded definition of “financial institutions” under the AMLA. It is safe to assume that art dealers who also sell antiquities will fall within FinCEN’s jurisdiction and will be included in the proposed regulations. Furthering the current state of confusion, however, the AMLA does define “antiquities.” The proposed regulations will hopefully provide clarity regarding what falls into the classification of “antiquities” versus “art”; currently, what is or is not an antiquity is subject to extremely broad interpretations. The AMLA additionally hints to the fact that art dealers will be soon classified as a financial institution under the BSA, since investigations are underway to determine the amount and impact of illicit activity in the exchange of art. Badly needed change is coming— eventually. Though the regulations in the United States are not yet issued, it is clear there will soon be more oversight concerning art and antiquities transactions, both in the U.S. and abroad. I am hopeful that the new regulations will protect the markets from abuse by criminals, while respecting the inherently private nature of these transactions. This is all very promising news for the art market, though it may mean that Hollywood will need to come up with a new occupation for their sophisticated international crime lords. HN Andrea Perez is a Partner at Carrington, Coleman, Sloman & Blumenthal LLP and may be reached at aperez@ccsb.com.
Learn how to read, write, and speak Spanish at an adult continuing education level, with emphasis on legal terminology at the intermediate and advanced levels.
Register online at www.dallasbar.org/spanishforlawyers
MARTIN
MERRITT
Health Law and Healthcare Litigation
“I highly recommend Martin As Co-Counsel in Healthcare Litigation Cases.” --Brad Jackson/ Commercial Litigator, Dallas •
Healthcare Trials/Hearings
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Analysis of Illegal “kickback” contracts
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Enforceability of 15.50 Non-Competes
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Insurance “Clawbacks”
•
FBI, OIG, CMS Investigations
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Medical License Revocations
Martin Merritt Chair, DBA Health Law (2021) Ex. Dir. Texas Health Lawyers Association Martin@MartinMerritt.com Dir. (214) 952.1279 Martin Merritt is your co-counsel in healthcare litigation cases. If one side has an experienced health lawyer in their firm and you do not, you can level the playing field by associating Martin Merritt as co-counsel. You keep the client. Hourly and flat monthly rates available. Martin can try the case, prepare and argue hearings, or simply serve as health law analyst. You stay in control of the case and keep the client. Experienced. Over 30 years, in Texas and nationally, Martin Merritt litigates cases against the FBI, DEA, OIG, CMS, AUSA, TMB, Tex. OAG, Tex. Med. Bd, Pharm. Bd., TXDSHS, Civil False Claims Act Subpoenas and lawsuits, civil investigative demands, arbitration, criminal and other administrative actions. He has a proven track record applying this knowledge to win victories for business litigators. (D Mag. Best 2018, 2020)
DBA Home Project: Volunteers & Sponsors Needed The DBA Home Project is in need of volunteers and sponsors, both individual and firms/organizations.
Sponsorship Levels: $750 donation = send 2 volunteers (Bronze Level Sponsor) $1,500 donation = send 5 volunteers (Silver Level Sponsor) $3,500 donation = send 12 volunteers (Gold Level Sponsor) $7,000 donation = send 20-25 volunteers (Platinum Level Sponsor) For more information email arodriguez@dallasbar.org or go to www.facebook.com/DBAHomeProject
REASONS TO HIRE A HIGH SCHOOL INTERN FOR THE SUMMER Catch up on filing Help making copies Help clean/organize ignored spaces Front desk relief Research assistance Give a student work experience for their college resume Much more! Interested? Contact Melissa Garcia at mgarcia@dallasbar.org
M a rc h 2 0 2 2
D al l as Bar A ssoci ati on l Headnotes 9
10 H e a d n o t e s l D a l l a s B a r A s s ociation
Focus
March 2022
Entertainment, Art & Sports Law
Tax Residence of Foreign Entertainers & Athletes BY BEATE ERWIN
Foreign entertainers and athletes have been on the IRS’s radar for many years. Most recently, a campaign was launched by the IRS Large Business and International Division addressing noncompliance or partial compliance by withholding agents acting on behalf of international performers. The reason for the IRS’s heightened scrutiny is that this group of individuals comprise high-income, highmobility taxpayers. Combined with their residence in a low or no-tax jurisdiction, this could result in tax leakage. The starting point for determining U.S. federal income tax is tax residency. This includes a set of rules under U.S. domestic law overlaid by an income tax treaty. With a top marginal federal income tax rate of 37 percent a tax basis that encompasses income beyond U.S. sources the difference in status can result in significantly different tax liabilities. Individuals who are not U.S. citizens are treated as residents for federal income tax purposes if they are “lawful permanent residents” at some time during the taxable year (“green card holder”) or meet a “substantial presence test” (SPT) for the year. A non-citizen individual who is not
a resident under these tests is classified as a nonresident alien individual (NRAI). In case the foreign performers are not U.S. citizens and have not applied for a green card, tax residency in the U.S. will not be triggered if days spent in the U.S. are carefully monitored. An individual satisfies the SPT if he or she is physically present in the U.S. for at least 31 days in the current year and 183 days or more during the current and preceding 2 calendar years as determined under a special look-back formula. Certain days of an alien’s presence in the U.S. are excluded: Days on which an individual is (i) present in the U.S. as an “exempt individual,” (i.e., a professional athlete temporarily present in the U.S. to compete in certain charitable sports events); (ii) prevented from leaving the U.S. because of a medical condition that arose while present in the U.S.; (iii) in transit between two points outside the United States; and (iv) a regular commuter residing in Canada or Mexico. However, the days to practice for an event, to perform promotional or other activities related to an event, or to travel between events cannot be excluded. The IRS issued Revenue Procedure 2020-20 to provide an exception for certain NRAIs remaining in the U.S. due to COVID-19-related travel restrictions.
Accordingly, an eligible NRAI could claim a COVID-19 medical condition travel exception (COVID-19 Exception) for a period of up to 60 consecutive days starting between February 1, 2020 and April 1, 2020, inclusive (COVID-19 Period). NRAIs who had developed a medical condition could still qualify for relief from the SPT’s day count rules under the medical condition exception. This provision may afford greater day count relief than the 60-day individual COVID-19 Period. Exclusions will apply to subsequent periods under the look-back rule of the SPT. A performer who meets the substantial presence test could still be treated as NRAI if he meets the “closer connection” exception (physical presence in the U.S. for less than 183 days in the current year (including the COVID-19 Period) and a “tax home” in another country). For foreign performers with a tax home in another country having an income tax treaty with the U.S., the treaty must be consulted to determine tax residency. For foreign performers the Entertainer/Sportsmen treaty articles generally provide narrower treaty benefits than those typically provided under the Permanent Establishment and Independent/ Dependent Personal Services articles.
In broad terms, depending on whether income is considered active or passive, tax will be collected by means of filing an income tax return or through withholding. However, remittance of withholding tax by organizers to the IRS on behalf of foreign performers relating to their U.S. performances will not be deemed sufficient. In this regard, foreign performers must still file an annual income tax return with the IRS. To do so, they must obtain an individual taxpayer identification number (ITIN). An ITIN does not provide eligibility to work in the U.S. or to claim Social Security benefits. A major obstacle is that either the original passport or a copy certified by the issuing agency must be attached to the application. While the first is typically not feasible, the latter is not possible in various countries. As an alternative, foreign performers can use Certifying Acceptance Agents (CAAs) to verify the accuracy of information and submit the application on their behalf. HN Beate Erwin is Partner at Erwin Law Firm and is a Certified Acceptance Agent under the Internal Revenue Service Acceptance Agent Program. She is the author of Bloomberg BNA Tax Management Portfolio, 6442-1st T.M., Taxation of Foreign Entertainers and Sportsmen. She can be reached at beate@ erwintaxlaw.com.
Crain Brogdon Rogers Contributes to a New EAJ Campaign Record CONTINUED FROM PAGE 1
That’s why I do pro bono work. God has blessed me with the opportunity to use my training to help, so it’s truly my
pleasure to do so,” said Shalanda. Each case placed with a volunteer attorney by DVAP can lead to lifechanging results—one more parent with access to their children, one more
DAMAGES Personal injury Wrongful termination Intellectual property Commercial damages/lost profits
veteran with access to benefits earned, one more grandparent able to adopt a child whose parents are absent, or one more person who is able to finally secure employment due to an old criminal charge being expunged. Last year, DVAP placed 772 cases with volunteer attorneys for full representation. This number does not include all those who received advice and brief services through DVAP clinics and in DVAP’s pro se assisted divorce programs. “Justice for all only exists if all are afforded its access. DVAP opens the courthouse doors for those frequently shut out. We are proud to be part of the collective effort of lawyers opening doors,” said Rob Crain. Crain Brogdon Rogers LLP’s generous gift to the EAJ Campaign contributed to a record amount raised, despite the ongoing pandemic, bringing the
total for this year to $1,317,581. The commitment of Dallas attorneys and the DBA to the Equal Access to Justice Campaign is impressive. Since 1997, the DBA and Legal Aid have joined forces to raise money for the program, with Dallas lawyers donating over $18 million. DVAP is a joint pro bono program of the DBA and Legal Aid of NorthWest Texas. The program is the only one of its kind in Texas and brings together the volunteer resources of a major metropolitan bar association with the legal aid expertise of the largest and oldest civil legal aid program in North Texas. For more information, or to donate, visit www.dallasvolunteer attorneyprogram.org. HN Michelle Alden is the Director of the Dallas Volunteer Attorney Program. She can be reached at aldenm@lanwt.org.
Business valuations
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214.665.9456
DBA Home Project: Volunteers Needed The DBA Home Project is in need of volunteers – both individual and firms/organizations. For more information, go to https://www.facebook.com/DBAHomeProject/
SAVE THE DATE! Online Annual Evening Ethics Fest Thursday, May 12, 2022 5:30 – 8:30 p.m. Ethics 3.00 DALLAS • FORT WORTH • HOUSTON • ATLANTA
For more information contact Marcela Mejia at (214) 220-7410 or mmejia@dallasbar.org.
WWW. TH OMAS R ON EY L L C . C O M
Sponsored by the DBA Legal Ethics Committee
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D al l as Bar A ssoci ati on l Headnotes 11
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12 He a d n o t e s l D a l l a s B a r A s s ociation
Focus
March 2022
Entertainment, Art & Sports Law
Representing International Performers During the Pandemic BY KEITH GRIFFIN
Three years ago, for the March 2019 issue of Headnotes, I wrote an article entitled “Negotiating Contracts for Globally Traveling Performers.” The concluding paragraph began with “Finally, all contracts should include the usual clauses regarding force majeure…” Exactly one year later, in March of 2020, all of us in the performing arts industry were completely blindsided by the global pandemic, and those “usual clauses” quickly became the overriding issue in every one of our existing performance contracts. Some chronology: One of our firm’s American clients was under contract to perform in Sweden on March 16 and 17, 2020. Because we had been hearing disturbing rumors about the spread of the COVID virus in Europe, we emailed the presenter for some assurance that the performance was still going to take place. On February 27, we received an email that the tour was still on. On March 2, we received a second email stating that there were no restrictions in Sweden and the show was still taking place. But on March 7, the presenter sent an emergency email to advise that the shows
had now been cancelled. This same client is a principal dancer with a major national dance company in New York. On the morning of March 11, 2020, four days after cancellation of the productions in Sweden, we received an email from the dance company advising that its tour to Duke University, scheduled for March 26, was being cancelled by the university. In the afternoon of that same day, we received a second email from the company stating that the one-week tour to Abu Dhabi scheduled for April was being cancelled by the hosts because of COVID. In this email, the company invoked force majeure for the first time, saying that as a result, the dancers would not be paid for that week. And in the evening of that same day, the company sent out a third email that the tour to Chicago for March 16 was being cancelled by the hosts; and once again the company invoked force majeure and a cancellation of payments to the dancers. (A side note: All dancers with major dance companies are under individual, one-year contracts with that company—approved by the American Guild of Musical Artists (AGMA), —which call for the dancer to be paid a weekly salary.)
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So, within a five-day period of time, our client had four performance tours cancelled (two in the United States, one to Sweden and one to Abu Dhabi) resulting in a major reduction of income. Our firm took the position at this time that the dance company could not legally invoke force majeure under the circumstances, because the contracts between the company and the dancers were for one year, and not on a tour-by-tour basis. Therefore, we argued, even though the tour had been cancelled by, say, Chicago, the dancers’ contract with the company itself required that they still be paid their weekly salary. The company could not unilaterally refuse to pay the dancers because of a reduction in the company’s income. On the evening of March 11, we conveyed our position to the national AGMA office. But our argument quickly became moot because, on the afternoon of the following day, Governor Cuomo ordered that all of New York’s theaters, including those at Lincoln Center, be shut down. Immediately, force majeure overrode every performing arts contract. With equal immediacy, our performer clients were without income and, perhaps more importantly, without an outlet to express their art. And so, they became creative, most often with the use of various streaming internet platforms. (As an example, in a PBS doc-
umentary in May 2021, Twyla Tharp choreographed a new piece between our client and another dancer using Zoom, while the three of them were in their own respective living rooms.) At this point, the work of the attorney shifted toward advising clients on such issues as the copyrights of various creations, the right to use other copyrighted material in those creations, agreements among the artists concerning responsibility for expenses of these creations, and the proportionate distribution of income earned, if any. Toward the end of 2021, many venues around the world began to carefully reopen. Some of them have had restrictions on the number of audience members. Others require that audiences present proof of vaccination prior to entry. Still others require the on-stage performers to be vaccinated and frequently tested. Additionally, virtually every country now has different regulations regarding vaccinations and COVID testing prior to entry, and it has become the responsibility of the attorney to monitor these regulations and assure that the clients have complied, so they can travel and perform once again. The last two years have indeed been a challenge, and have also provided an unanticipated education, to the performers and to their attorneys alike. HN Keith Griffin is an attorney at The Griffin Firm, and can be reached at keithgrififn@griffinlegal.com.
Allied Bars Equality Committee
2022 DEI Book Club – Book 1: Harper Lee’s To Kill a Mockingbird Accompanying Virtual CLE & Book Discussion Tuesday, March 29, 2022 at Noon with Talmage Boston, Prof. Cheryl Wattley, and John Kane MCLE: 1.00 DEI Ethics (pending) The DEI Book Club strives to utilize the power of influential novels, writings, discussions, and speakers to initiate and mobilize conversations addressing social and racial injustices affecting our society today. Scan to view reading list and sign up to participate. Participants will receive access to additional suggested readings and invitations to participate in quarterly CLE discussions. All levels of participation are welcome!
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Hire
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D al l as Bar A ssoci ati on l Headnotes 13
WISDOM. EXPERIENCE. INNOVATION. For nearly a century, SMU Dedman School of Law-trained lawyers have been your respected colleagues, opposing counsel, managing partners, hiring partners, mediators, judges, appellate justices, district attorneys, U.S. attorneys, and more. We have an unparalleled track record of success, producing leaders and attorneys all over the world.
14 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
March 2022
Entertainment, Art & Sports Law
NFT Museums in the Metaverse BY MARK RASMUSSEN, ROGELIO REYES, AND JUAN ANTONIO SOLIS
In March 2021, American digital artist Beeple’s non-fungible token (NFT)— Everydays: the First 5000 Days—sold at the auction house Christie’s for $69 million. This was a seminal moment for NFTs. From multi-million-dollar art house auctions to concerts and gaming experiences, NFTs have captured the attention of consumers far and wide. Their prevalence in the emerging metaverse, a network of 3D virtual worlds, presents a unique set of challenges for attorneys to better assist their clients and protect their artwork. So, what are NFTs? In general terms, NFTs are created using computer code and recorded on a blockchain ledger to prove ownership and authenticity of an asset. NFTs are encoded with unique identifiers and
metadata. NFTs can be linked to any asset, whether digital or physical. Common digital examples include drawings, art, animated GIFs, songs, or digital clothing items for a metaverse avatar. An NFT can be associated with a one-of-a-kind item, like a painting, or be part of a limited-edition collection, like prints or photographs. One main advantage of an NFT is that the blockchain keeps track of the underlying asset’s ownership. NFTs are “minted,” or created using smart contracts and typically sold through NFT marketplaces. They can then be resold and traded between collectors using cryptocurrency or fiat currency. The advantages of owning NFTs range from their scarcity as assets, their ease of transaction, to their ability to offer artists greater control over their work. The creator of an NFT determines the underlying asset that is linked to the NFT
DBA/DAYL Moms in Law Being a working mom can be challenging. Being a working lawyer mom can be a different ballgame with its own unique challenges. Moms in Law is a no pressure, no commitment, informal, fun, support group for lawyer moms. If you would like to join the email listserv, email Christine Leatherberry at cpleatherberry@gmail.com. Our upcoming Moms in Law lunches are: • Thursday, March 3, 11:45 a.m. at True Food Kitchen in Preston Center – RSVP to Christine at cpleatherberry@gmail.com • Friday, April 22, noon at Ziziki’s in North Dallas at Preston and Forest – RSVP to Rebecca at rfitzgib@gmail.com
and must ensure that the necessary rights in the underlying asset are obtained. For example, for NFTs linked to digital art, the NFT creator needs to ensure he or she has the necessary intellectual property rights in the underlying asset to mint the NFT. The creator then can decide what rights to grant an NFT buyer. Terms of use vary for NFTs, but most do not grant the buyer the copyright to the underlying work and NFT buyers are often restricted from using the NFT for commercial gain. This is akin to purchasing a painting from a gallery. A buyer may own the painting and decorate their home with it, but the buyer typically will not obtain copyright in the work. Similar to physical paintings, NFTs can be displayed at museums. Metaverse galleries and other online galleries display NFTs. The Museum of Crypto Art (MoC△), for example, plans to fill the corners of the metaverse with artwork NFTs. MoC△ has created exhibition spaces that can easily be replicated elsewhere in the metaverse by other companies and groups. Its stated aim is to resolve the question of “what is art?” and “who decides?” through a multi-stakeholder decentralized platform of art curation and exhibition. This curation of digital art assists in connecting artists and collectors without the need of art’s traditional sales system. NFTs have additional benefits for digital artists. For example, regarding the recurring issue of users being able to freely copy, download, and redistribute digital art, NFTs provide two solutions: (1) they introduce a dimension of authenticity with certified ownership; and (2) they provide proof of scarcity, as each digital artwork will only
have one or, at most, a finite number of owners. Buyers do not need a trusted gallery owner or art historian to certify the artwork’s authenticity; the blockchain itself acts as an authenticated provenance—tracking the ownership changes of the work from the author to the subsequent owners. Additionally, artists can code NFT contracts to contain features that automatically pay them royalties even after the initial sale, thus ensuring fair compensation if the value of their NFT increases with time. For lawyers interested in NFTs, there are numerous important legal issues to consider when advising clients. In addition to advising clients on intellectual property rights, lawyers can help clients address regulatory compliance and commercial contracting issues. Depending on the business activities associated with the NFT, clients will need to consider whether and to what extent various financial regulations apply. Lawyers should be prepared to anticipate how the traditional areas of general commercial law, financial regulation, and intellectual property rights may be applied to this unique digital environment. NFTs have enormous potential and open up new revenue streams for artists and companies that so far have focused exclusively on physical products. The legal industry must monitor this asset class as it evolves, markets develop, and the law and regulations catch up. HN Mark W. Rasmussen is a Partner at Jones Day and can be reached at mrasmussen@jonesday.com. Rogelio Reyes and Juan Antonio Solis are Associates at the firm and can be reached at rreyes@jonesday.com and jsolis@jonesday.com, respectively.
Bar None Auditions Tuesday, April 5, 5:30-7:00 p.m. at the Arts District Mansion All who audition will be cast. The Bar None show benefits the Sarah T. Hughes Diversity Scholarships. If you have been in the show before, you do not need to audition again.
www.barnoneshow.com
ECL Attorney Spotlight CHASSIDY J. GUIDRY
Chassidy J. Guidry, ECL class of 2021-2022 Practice areas- Estate Planning, Business Planning and Probate Chassidy’s passion for helping her community led her to leave a career as a government attorney to launch The Law Office of Chassidy J. Guidry, PLLC where she provides affordable flat fee services and flexible hours. Chassidy takes pride in building connection and relationships with her clients and community. “I want to bring trust in the legal system for everyday people,” Chassidy said. “I want people to feel confident, empowered and comfortable with seeking a lawyer to assist them with their needs.” Chassidy participated in community service while in college at Prairie View A & M University and she was a member of the Public Interest Law Society in law school at LSU. Chassidy regularly provides Pro-Bono probate and guardianship services through the Dallas Volunteer Attorney Program (DVAP), and she is an invited speaker to caregiver communities where she speaks on the importance of estate planning. As an entrepreneur with a desire for serving others, Chassidy helps parents, grandparents, young professionals, and first-generation business owners think about their careers, assets and businesses through generational lenses to properly plan for their future.
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D al l as Bar A ssoci ati on l Headnotes 15
B I G F I R M TA L E N T M E E T S
EMOTIONALLY INTELLIGENT LAWYERING
Meet our newest partner Lee Budner. . . Lee possesses a rare
background in business litigation and experience in the
combination of intellect, drive, and strategic vision coupled
courtroom allow him to effectively handle the most complex
with emotional intelligence—traits that enable him to expertly
property cases. He practices in Dallas and all neighboring
handle family law matters with focus and finesse. From high-
counties, and has litigated family law disputes all the way to
net-worth divorces to cases involving sensitive child issues,
the Texas Supreme Court.
you can count on Lee to successfully guide you through the significant challenges that accompany divorce. Lee’s
®
Why choose Lee? Because he goes the extra mile to protect what you value most.
Both Carla Calabrese and Dawn Budner are named among D Magazine’s Best Lawyers in Dallas and as Best Lawyers in America (Family Law). Carla is also named among the Best in America for Collaborative Law. Dawn has been named a Woman Leader in the Law by American Lawyer, and Calabrese Budner LLP was named among the Best Law Firms in America. Pictured Far Right: Partners Carla Calabrese and Dawn Budner
Emotionally Intelligent Divorce ® because your FAMILY MATTERS ® PARK CITIES | PRESTON HOLLOW | DALLAS | COLLIN
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16 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
March 2022
Entertainment, Art & Sports Law
Homeowners Insurance and the Iconic Dust Jacket BY JAMIE K. BAKER
In Texas, the most common—and affordable—homeowner’s insurance policy offers “Named Peril” coverage subject to contractual terms, conditions, and exclusions. Only specific causes of loss are listed as a “Named Peril.” If a claim involves a type of loss that is outside the enumerated list of perils, coverage is not triggered. For homeowners who seek greater coverage and are willing to pay a higher premium price, certain insurers sell deluxe homeowner’s policies with “All-Risk” coverage. As the name suggests, this type of policy provides much broader coverage than is available under a “Named Peril” policy. With respect to high dollar art and collectibles kept in the home, an “All-Risk” deluxe policy is often preferred by insureds. The benefits of “All-Risk” coverage are exemplified by a 2015 case in which a Texas homeowner made a claim on his deluxe homeowner’s policy for the
theft of a first edition, first printing of The Great Gatsby from the insured’s home. The stolen book was unique in that it contained a personal inscription by the author F. Scott Fitzgerald to the insured’s father, who may have been the model for one of the book’s main characters, Tom Buchanan. The theft was discovered only after the insured was notified by a friend that the insured’s book was posted for sale on a book seller’s website. By this time, the book was in California, somehow having been identified by a junk hauler as valuable and brought to the attention of a renowned auction house in Los Angeles. The book was included in an active auction catalogue when the chain of possession was discovered. Litigation ensued in California and the book itself was ultimately returned to the insured in Texas, but without the dust jacket. While the book itself was of great value to the insured both as a collector’s item and for its sentimental value, it was the dust jacket that
NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/lawyerreferralservice or call (214) 220-7444.
Evening An
wit h
James A. Baker, III
61st U.S. Secretary of State Honorary Chair, Baker Institute for Public Policy at Rice University
April 12, 2022
became a focal point for purposes of the insurer’s valuation of the claim. As the insurer grappled with coverage issues raised by the lost dust jacket, which had its own inherent value, counsel was called upon to assist. Indeed, dust jackets are often treated in the rare and collectible book industry as uniquely valuable items, separate and apart from the books they protect. After considerable evaluation, coverage counsel, with the help of experts retained by the insurer, estimated the range of value for the lost dust jacket to be $95,000 to $378,000. Because the book was insured under an “All-Risk” homeowner’s policy, liability limits were tendered on the dust jacket portion of the theft claim. Homeowners and insurers may not realize that iconic dust jackets can be significant works of art. In general, a dust jacket protects the enclosed book from damage. This is particularly important in the context of a collectible edition. But a dust jacket may also serve other functions. Some say it “provides the first interpretation of the book.” In this regard, a dust jacket may be collectible based on its artistic styling when it is reflective of the time in which the book was published, such as during the Art Deco period. Peter Harrington London, purveyors of rare books, first editions, maps and prints from the 15th to 20th centu-
ries, recently offered a curated selection of iconic dust jacket art ranging in price from approximately $2,500 to $125,000. The book titles included such luminary works of literature as To the Lighthouse (1927) by Virginia Woolf, One Hundred Years of Solitude (1970) by Gabriel Garcia Marquez, Casino Royale (1953) by Ian Fleming, The Spy Who Loved Me (1962) by Ian Fleming, The Secret of Father Brown (1927) by G.K. Chesterton, The Basement Room and other stories (1935) by Graham Greene, Red Harvest (1929) by Dashiell Hammett, Farewell My Lovely (1940) by Raymond Chandler, and Metropolis (1926) by Thea von Harbou. Again, the offerings were directed not at the books themselves, but only at their decorative paper dust jackets. The insurance claim for the missing Great Gatsby dust jacket turned out well. The coverage issues would have been approached differently if the insured’s policy had been a standard “Named Peril” homeowner’s insurance policy, which generally address art and collectible losses in a very limited manner. With a deluxe homeowner’s insurance policy in place, the insurer handling this theft claim was able to accept coverage and retain counsel and experts to assess and advise on the unusual valuation issues presented. HN Jamie K. Baker is Of Counsel with Thompson Coe. She can be reached at jbaker@thompsoncoe.com.
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WHAT IS THE COST TO JOIN THE DBA 100 CLUB? IT’S FREE! HOW DO YOU JOIN? Firms, government agencies, and law schools with two or more lawyers as well as corporate legal departments can qualify if all of their Dallas office attorneys are DBA members. To join the 2022 DBA 100 Club, please submit a list of all lawyers in your Dallas office to Shawna Bush, sbush@dallasbar.org. Once approved, we will add your organization to the 2022 DBA 100 Club member recognition list!
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D al l as Bar A ssoci ati on l Headnotes 17
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18 H e a d n o t e s l D a l l a s B a r A s s o ciation
March 2022
Cryptocurrency Regulatory Issues and Current Events BY ISMAIL AMIN
The world of cryptocurrency regulation and issues is evolving at light speed. Among others, here are some of the most notable recent regulatory issues and events: • Against the ever-changing world of cryptocurrencies, Commodity Futures Trading Commission (CFT”) Chairman Rostin Behnam requested more authority and resources to appropriately regulate digitalasset commodities and cash markets during congressional hearings held on February 9, 2022. More particularly, the CFTC sought additional authority from Congress to foster rules designed to enhance transparency for currency offerors. At the federal level, both the CFTC and SEC regulate cryptocurrencies, with the CFTC treating them as commodities and the SEC treating them as securities. What was interesting about these congressional hearings was that CFTC (and often SEC) enforcement actions and civil complaints typically stem from consumer complaints or whistleblowers – evidencing a
lack of transparency into the cybercurrency marketplaces. This is particularly concerning given the rapid advent of Initial Coin Offerings (ICO) and Non-fungible Token offerings (NFTO) in the consumer marketplace. Cryptocurrency markets are volatile and there is no single uniform regulator. In fact, the current regulatory framework takes a “patchwork” approach where ICO and NFTO offerors are generally required (with a few exceptions) to register with the CFTC, the SEC and any related state-based agencies. However, voluntary compliance and registration has been challenging, with regulators constantly trying to keep up with multitudes of unregistered ICO and NFTO offerings. • On February 7, 2022, the Department of Justice (DOJ) filed US v. Lichtenstein, et. al., (USDC DC Case # 1:22-mj-00022), a criminal complaint, against the alleged orchestrators of a cyber attack resulting in the theft of over $4.5 billion worth of bitcoin. Among others, a seizure warrant allowed the
DOJ to seize approximately $3.629 billion worth of bitcoin stolen during an attack on the Bitfinex exchange in 2016. It was the largest seizure in DOJ history. The allegations emanate from the theft of almost 120,000 bitcoin (worth approximately $71 million at the time of the theft and worth $4.5 billion in today’s market). Interestingly, and according to the affidavit which accompanied the underlying complaint and seizure warrant, the defendants allegedly utilized complex money laundering techniques including “(1) using accounts set up with fictitious identities; (2) moving the stolen funds in a series of small amounts, totaling thousands of transactions, as opposed to moving the funds all at once or in larger chunks; (3) utilizing computer programs to automate transactions, a laundering technique that allows for many transactions to take place in a short period of time; (4) layering the stolen funds by depos-
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iting them into accounts at a variety of VCEs (Virtual Coin Exchanges) and darknet markets and then withdrawing the funds, which obfuscates the trail of the transaction history by breaking up the fund flow; (5) converting the BTC to forms of virtual currency, including anonymity-enhanced virtual currency in a practice known as ‘chain-hopping’…”. • The Defendants were charged with money laundering (18 U.S.C. Section 1956(h)) and Conspiracy to Defraud the US (18 U.S.C Section 371) and the case is pending before the United States District Court, District of Columbia. This case illustrates the cat and mouse game between the DOJ and criminals who attempt to utilize blockchainbased currencies in various money-laundering schemes. HN
MOVIE IN REVIEW: The Hate U Give Tuesday, March 10 | Noon | Via Zoom MCLE: 1.00 DEI Ethics (pending)
Speakers: John McShane, Cross McShane PLLC SaKinna Thomas, Thomas Hunter Legal Group Join us as we review The Hate U Give to discuss racism in the legal system and whether unconscious biases impact how lawyers interact with clients, colleagues, judges, and opposing counsel.
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What are you currently reading? The Code Breaker: Jennifer Doudna, Gene Editing and the Future of the Human Race by Walter Isaacson Fun fact about you: I am a nerdy basketball fan!
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D al l as Bar A ssoci ati on l Headnotes 19
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20 H e a d n o t e s l D a l l a s B a r A s s o ciation
March 2022
Introducing the 2022 Class of DBA WE LEAD program designed to address the challenges of high-performing women who have practiced law for 8 to 15 years. The purpose of DBA WE LEAD is to address the unique challenges facing women in the legal profession; to empower, educate and uplift women lawyers to take an already successful
law practice to new heights; and to prepare lawyers for active professional leadership within their law firm, the business community and the community at large. Since its inception, DBA WE LEAD has been supported by Mary Kay, Toyota, Vistra Energy, and AT&T. Corporate
sponsors host a half-day session on their campus and their executives often participate in panel discussions and otherwise interact with DBA WE LEAD class members. To find out more about DBA WE LEAD, contact Judi Smalling at jsmalling@dallasbar.org.
Rebecca Adams Lynn Pinker Hurst & Schwegmann
Chelsea Allen Atmos Energy
Marina Amendola Stanton LLP
Randa Barton Polsinelli PC
Katherine Britton Law Office of Katherine Britton
Kristin Brown The Law Office of Kristin R. Brown, PLLC
Andrea Chavarria The Chavarria Law Firm
Nikki Chriesman-Green Foster & Foster
Kristin Cope O’Melveny & Myers LLP
Sarah Cummings Stewart Reed Smith LLP
Mauri Hinterlong HEYCO Energy Group, Inc.
Katie Hull McGuireWoods LLP
Jenna Jabara Lira Bravo Law, PLLC
Alison Krieser Katten Muchin Rosenman LLP
Jennifer Longfellow Legal Hospice of Texas
Elizabeth McDonnell Hedrick Kring PLLC
Megan Nordyke Legal Aid of NorthWest Texas
Debrán O’Neil Carrington, Coleman, Sloman & Blumenthal, L.L.P.
Alissa Puckett Quilling, Selander, Lownds, Winslett & Moser, P.C.
Ayesha Rafi Rafi DeBose, PLLC
STAFF REPORT
Entering into its fifth year, the DBA WE LEAD: Women Empowered to Lead in the Legal Profession, is welcoming a new talented class of participants. DBA WE LEAD, which began in 2017, is a leadership
Meet this year’s participants:
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D al l as Bar A ssoci ati on l Headnotes 21
Leslie Richardson Thompson, Coe, Cousins & Iron LLP
Cristina Salazar Texas Muslim Women’s Foundation
Elizabeth Scott Akin, Gump, Strauss, Hauer & Feld, L.L.P.
Maeghan Whitehead Griffith Barbee PLLC
Taylor Wilson Steptoe & Johnson PLLC
Chandler Winslow GoransonBain Ausley PLLC
DBA WE LEAD (Women Empowered to Lead) is a leadership program designed to address the challenges of high-performing women who have practiced law for 8 to 15 years. For more information, contact Judi Smalling at jsmalling@dallasbar.org.
Saba Syed Bell Nunnally & Martin LLP
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22 H e a d n o t e s l D a l l a s B a r A s s o ciation
March 2022
In The News FROM THE DAIS
Richard G. Stewart, Jr., Past President of Higginbotham Inn of Court, was on a panel discussion with his brothers Judge Carl E. Stewart, U. S. Court of Appeals for the 5th Circuit, and James E. Stewart, Sr., District Attorney, Parish of Caddo Shreveport, Louisiana. The panel discussion was moderated by Terry Oxford, of Susman Godfrey LLP.
KUDOS
Sidley Austin L.L.P., have been promoted to partner. Marian Fielding, David Silva, and Shannon Thompson have been promoted to Counsel.
Chris Schwegmann, of Lynn Pinker Hurst & Schwegmann has been elected Managing Partner. Jervonne Newsome, of the firm, has been promoted to Partner.
John Gessner joined Carrington, Coleman, Sloman & Blumenthal, L.L.P. as Partner. Jordan Brownlow and Lara Albright Yost joined the firm as Associates.
Molly Carson, of McCall, Parkhurst & Horton L.L.P., has been promoted to Partner.
Lauren Smyth, of McGuire, Craddock & Strother, P.C., has been promoted to Shareholder.
Lawrence McFarland joined Bradley Arant Boult Cummings LLP as Counsel. Boyce Holleman joined the firm as Associate.
Ferrell M. Keel, Sidney Smith McClung, and Kelly Rubin, of Jones Day, have been promoted to Partner.
William Toles, of Munsch Hardt Kopf & Harr, P.C., has been elected President of The Dallas Chapter of the American Board of Trial Advocates (ABOTA). Brian Lauten has been elected PresidentElect/Secretary, Jeff Tillotson is Treasurer, and Andy Payne is Membership Chair.
Dan McGuire joined FisherBroyles, LLP as a Partner.
Brian Janson and Grant Schmidt, of Winston & Strawn LLP, have been elevated to Partner.
Raquel Alvarenga, Tiffany Ferris, Jennifer Kneick, and Alan Wang, of Haynes and Boone, LLP, have been promoted to Partner.
Scott Downing, of Orsinger, Nelson, Downing & Anderson L.L.P., has been named Managing Partner.
Tailim Song Law firm is now Song Whiddon, PLLC, with Jordan Whiddon becoming Named Partner at the firm.
Chris Carr and Stephen Higdon, of Lyons & Simmons, LLP, have been named Partner.
Cole Robinson and Jake Lewis, of Gray Reed & McGraw LLP, have been promoted to Partner. Kevin Davidson has been promoted to Counsel.
Karen Goldstein and Lauren G. Grau, of
Stuart Cochran has formed Cochran Law PLLC, located at 12720 Hillcrest Rd Ste 1045, Dallas, TX 75230-2079. The Law Offices of Theodore S. Lustig, P.C. has changed names and is now Law Offices of Lustig and Hyman, P. C.
Susan Hogan, Lauren Mitchell, Will Howison, and Keith Harden, of Munck Wilson Mandala, have been elected to Partner.
Barry Sorrels has formed Sorrels Ola located at 2619 Hibernia Street, Dallas, Texas 75204.
Adam Hyman, of Law Offices of Lustig and Hyman, P.C., has been promoted to Named Partner.
News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org.
2022 Fellows Justinian Award Winner: Judge Karen Gren Scholer CONTINUED FROM PAGE 1
her heart—a willingness to serve. Judge Scholer’s service goes beyond the courtroom. As anyone who knows her can attest, Judge Scholer is passionate about mentoring young lawyers and giving back as a way to recognize the support she received as she rose through the ranks in her legal career. In the words of E. Leon Carter, a principal of Carter Arnett, recipient of
the 2019 Dallas Bar Association’s Trial Lawyer of the Year and Judge Scholer’s former law partner, “Having appeared before Judge Scholer when she was on the state court bench and having been a partner with her for a number of years, I can truly say that Judge Scholer is the epitome of integrity, competence and patience, and she has the unique yet necessary ability to make sound, practical and impartial decisions in all matters that come before her. She is
DVAP’s Finest BRIELLE ROWE
Brielle Rowe is an associate at Akin Gump Strauss Hauer & Feld LLP.
truly an inspiration for our profession and a model jurist for our judiciary.” Judge Scholer’s contribution to the bar spans the local, state and national levels. She has served in leadership roles for the Dallas Bar Association, Dallas Bar Foundation, State Bar of Texas and the National Asian Pacific American Bar Association. In another trailblazing achievement, Judge Scholer created the Inspiring Women Luncheon & Seminar, the most popular and well-attended CLE program in DBA history—an event that celebrates women in the legal profession and consistently sells out within a matter of hours. Judge Scholer is also a past recipient of the National Asian Pacific American Bar Association Trailblazer Award, Dallas Women’s Lawyer Association Louise B. Raggio Award and the Dallas Asian American Bar Association Lifetime Achievement Award.
1. What types of cases have you accepted? Thus far I have done a number of estate planning cases which involve drafting a client’s will and ancillary power of attorney documents. I have also taken on some divorce cases. 2. Describe your most compelling pro bono case. I recently did an estate planning case for a veteran and former high school teacher and coach. When he was in my office signing the documents, he shared with me that he had just received bad news from his physician. There had been issues in probating his relative’s estate and he was so thankful that his family would not have to go through that same process. That conversation helped to put pro bono work into a more tangible context – the time I had spent drafting his estate planning documents and ensuring they were properly executed would help save precious hours of worrying about his family’s future. 3. Why do you do pro bono? I do pro bono because I was once in a situation where I needed pro bono assistance and I’ve experienced the relief and comfort of knowing that someone out there cares and wants to help. I strive to provide that same peace of mind with my pro bono work. 4. What impact has pro bono service had on your career? With the guidance and assistance of the DVAP mentoring attorneys, pro bono work has afforded me the opportunity to expand outside of my real estate practice. I’ve had the opportunity to file petitions and submit final orders that were accepted and signed by the court. 5. What is the most unexpected benefit you have received from doing pro bono? Being able to interact with the client one on one and address their concerns in a productive manner has been incredibly rewarding.
Judge Scholer lives in North Texas with her husband, Gunnar, and is the proud mother of three sons. It is with great pride and honor that the Dallas Bar Foundation presents the Honorable Karen Gren Scholer with this year’s Fellows Justinian Award. We can think of no better recipient than this barrier-breaker, inspiring lawyer—someone who is the “first” in many important ways, but ensures through her legacy that she will not be the last. For information about the Dallas Bar Foundation’s Annual Fellows Luncheon, please call Elizabeth Philipp at (214) -220-7487 or visit the website at www.dallasbarfoundation.org. HN Sakina Rasheed Foster is a Partner at Haynes and Boone, LLP. She is the immediate past Chair of the Fellows Committee of the Dallas Bar Foundation. She can be reached at sakina.foster@haynesboone.com.
Client Development— Speak at a DBA Program Interested in sharing your legal knowledge and expertise with your colleagues? The CLE Committee is looking for speakers and hot topics for the Friday Clinic programs it holds throughout the year. Please submit a short bio, title, and 2-3 sentence description of your presentation to yhinojos@ dallasbar.org. Submissions will be discussed at monthly CLE Committee meetings.
Texas HS Mock Trial Needs Volunteers! HOW YOU CAN HELP Coach a Team • • • •
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2022 Competitions: Sat, February 5th, Fri, March 4th - Sat, March 5th
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
Questions? Contact the State Coordinator at texashsmocktrial@dallasbar.org or call 214-220-7484 www.texashighschoolmocktrial.com
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D al l as Bar A ssoci ati on l Headnotes 23
Entertainment, Art & Sports Law
Super Bowl Settlement: St. Louis vs. Rams Relocation BY ALEX CAMPBELL
In November 2021, after a prolonged four-year legal battle, the NFL and the City of St. Louis settled their tumultuous legal battle. The case originated after St. Louis lived up to its namesake and served as the “Gateway to the West” when the NFL relocated the Rams franchise from St. Louis to Los Angeles. For the league, the move ended up costing more than just a higher cost of living and ramped up property taxes. Under the terms of the settlement, the NFL will pay the city $790 million, eliminating the need to proceed with the previously scheduled January 2022 trial. St. Louis’ suit claimed the NFL and the Rams franchise failed to abide by the League’s own relocation guidelines and procedures when the Rams submitted its application to relocate the team to Los Angeles before the NFL’s 2016 Owners Meeting. The suit claimed St. Louis incurred millions of dollars in damages from the franchise’s departure, including loss of revenue from ticket sales, hotels, and related tax revenues. Not only did St. Louis seek damages, but also sought a disgorgement of the $550 million relocation fee paid by the Rams to the other NFL franchises, and of a portion of the increase in valuation the Rams saw through the move. By its calculations, St. Louis sought an award of over a billion dollars at trial. Instead of proceeding to trial, the Parties agreed to settle just before the holiday season, which all sides seemed to have benefited from (including St. Louis’ attorneys, who were working under a contingent fee structure). While we will
not get to see a final ruling in this matter, over the course of the past four-plus years, the case was filled with noteworthy decisions that could set a game plan for other aggrieved cities that might wish to pursue similar claims against the NFL if and when franchises opt to relocate (consider, for example, Oakland and San Diego). First, one could say St. Louis had a significant home field advantage in the match when the Court denied the NFL’s Motion to Transfer Venue. With the suit originally filed in St. Louis Circuit Court, this ruling set the tone for the case by establishing that, should a settlement not be reached, the trier of fact would be a jury comprised entirely of St. Louis residents, the same ones aggrieved by the League’s transfer. Furthermore, and stop me if you have heard this one before, but discovery became a contentious issue in the matter. While numerous discovery motions were adjudicated throughout the case, one particularly sensitive discovery issue surrounded the depositions of key witnesses. St. Louis sought to depose several prominent NFL franchise owners, including the Rams’ Stan Kroenke, and Dallas’ own Jerry Jones, not once but twice. While both owners were deposed initially, St. Louis sought to have them deposed again, but this time wanted to record them on video to study the “game film” should the case proceed to trial. Not only would these depositions cover topics such as the League’s decision-making process in deciding to move the Rams to Los Angeles, but would also probe into each owner’s personal finances as St. Louis worked to develop its damage
model, including any punitive damages to which it may be entitled. Not only did St. Louis attempt to delve into these issues during discovery, but it inevitably would have addressed these same topics had the case gone to trial. In September 2021, the NFL threw a Hail Mary pass by seeking to dismiss the case through Summary Judgment. The Court batted down the League’s prayer of dismissing the case, drawing no interference call, seemingly making it destined for trial. One of the NFL’s main points of contention was that the relocation guidelines relied on by St. Louis were merely self-imposed, unilateral policies that could not be considered an enforceable contract under law. The Court took a different view of this document and found not only that the relocation guidelines constituted an enforceable contract, but further insinuated by its sum-
mary judgment denial that St. Louis was likely a third-party beneficiary of these guidelines. Despite its victories throughout the case, the representative of St. Louis ultimately found it best to take what the defense was offering them by agreeing to the terms of the settlement. Settling also avoided the proverbial “challenge flag” of an appeal after trial, which inevitably would have been thrown by the losing party, and kept this case under booth review by the Appellate Court for the foreseeable future. The Rams are not the first, and likely not the last, professional sports franchise to find a new home, and St. Louis made it closer to the goal line than its predecessors that had sought to challenge the NFL’s actions. HN Alex Campbell is an attorney at Ferguson Braswell Fraser Kubasta. He can be reached at acampbell@fbfk.law
Office Space, Position Wanted, Positions Available, Services
Classified Ads available Online Contact Judi Smalling jsmalling@dallasbar.org 214-220-7452 www.dallasbar.org
24 HHN_Succession-Table_Final.pdf eadnotes l D a l l a2:08:01 s BPMa r A s s o ciation 1 2/2/2022
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