Multidistrict
Christopher V. Popov 2022-2023 President Houston Bar Association
Litigation: Practice Tips for Consolidated Pretrial Proceedings The Impact of the Russia-Ukraine Conflict on International Shipping and Supply Chain MappingManagementPotential Investment Treaty Claims Against Russia THEHOUSTON
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Trial
by Agreement: Steve Susman’s Ideas to Improve Civil Litigation
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By Johnny W. Carter
Multidistrict Litigation: Practice Tips for Consolidated Pretrial Proceedings
The Impact of the RussiaUkraine Conflict on International Shipping and Supply Chain Management
Mapping Potential Investment Treaty Claims Against Russia By M. iMad Khan
The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, www.thehoustonlawyer.com, e-mail: leo@quantumsur. com. Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2022. All rights reserved.
Christopher V. Popov Takes Helm as HBA President
Award Winners
By the hon Kristen B. haWKins and the hon. sylvia a. MattheWs
Trial by Agreement: Steve Susman’s Ideas to Improve Civil Litigation
HBA Diversity Awards Given to Firms, Individuals for Excellence in DEI
An Interview with HBA President Christopher V. Popov
lhhetoustonawyer contents July/august 2022 volume 60 number 1 FeAtURes 32301028201613162010 263228 26 2 July/august 2022 thehoustonlawyer.com
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Buying and Selling Art and Collectibles: A Legal Guide reviewed by Carl J. gustaFson MarKetPlaCe
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President’s Message Why Be an HBA Member?
legal trends
a ProFile in ProFessionalisM SUSAN L. BICKLEY Partner, Blank rome llP
CoMMittee sPotlight Senior Lawyers Committee: 2021-2022 Highlights
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contents July/august 2022 depARtments 86 volume 60 number 1 40443837363534 lhhetoustonawyer 42 38 42 36 3534 37 An T i T ru ST Tr A dE 4 July/august 2022 thehoustonlawyer.com
oFF the reCord travis torrenCe: Leading Houston, Authentically and Unapologetically By niKKi Morris
Media revieWs
By BrooKsie Bonvillain Boutet
Vinson & Elkins congratulates Partner Chris Popov on his election as 2022-23 President of the Houston Bar Association.
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We proudly support our distinguished colleague for continuing the HBA’s mission to serve the needs of Houston-area lawyers to enhance the legal profession.
Making an Impact
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president’s message
With over 10,000 mem bers, tioners,privateincludingpracti-judges,governmentattorneys,andin-housecounsel,theHBAisthelargestprofessionallegalorganizationinHouston.
By Christopher V. p opo V Vinson & elkins LLp
‘‘
that one builds trust and authentic connection with other professionals. That is how business is won, and how careers are built. Cold calls and sales pitches have their place, but it’s much easier to chase business from someone whom you built a relationship with before you needed something from them. It’s far easier to convince someone of your work ethic and leadership style if they’ve already seen you lead. And I believe that it’s easier to earn credibility with a judge if she has seen you act credibly before showing up in her courtroom as an advocate. The law is an intensely personal profession, and most wise and successful lawyers know to in vest in personal relationships.
It is through opportunities and engagements like these
My hope for this bar year is that we will attract the next generation of leaders of the Houston legal community. We hope you come in recognition of the good that it can do for you and your career. And we hope you stay out of apprecia tion for the good that we do for Houston.
So how can the HBA help you build your pro fessional network? The answer should be obvious. With over 10,000 members, including private practitioners, judges, government attorneys, and in-house counsel, the HBA is the largest professional legal organization in Hous ton. And for smart and engaged attorneys, membership in the HBA is about more than adding your name to our mem bership rolls. Almost every day, there is an opportunity for authentic engagement with lawyers from around this great city. Whether it be a section-hosted CLE luncheon, a com munity service event organized by one of our many commit tees, a pro bono opportunity sourced through the Houston Volunteer Lawyers or the Dispute Resolution Center, an ath letic event like our Fun Run or Golf Tournament, or a chari table social gathering like the Harvest Celebration, there are hundreds of opportunities to engage with members of the bar through the HBA.
This is not to say that the HBA is only about networking. Our organization is far more than that. We change lives through pro bono service. We impact our community through service proj ects. We teach our children about civics, and we educate the bench and bar on developments in the law. We promote professionalism in our le gal community. Indeed, when we talk about the HBA’s mission, we tend to focus on these activi ties and the good they do for the people who are on the receiving end of this charity and fellow ship. And members who have leaned into these projects tend to stay involved with our organiza tion because it feels good to do good. Once you get involved in the bar, the altruistic reasons for leaning in will become obvious.
This message, however, is directed to those who still need convincing. I am not ashamed to say that I first got involved with the bar for the self-motivated reason of building my network and raising my profile among lawyers in my com munity. I suspect that many who have dedicated time and treasure to our cause would say the same. But over time, my reasons for staying involved and throwing myself into the work of the bar have evolved into a more symbiotic relation ship between myself and the bar and Houston.
lhhetoustonawyer
Why Be an HBA Member?
” 6 July/august 2022 thehoustonlawyer.com
he HBA president is frequently asked why one should join the HBA. It’s a simple question that has lots of good answers depending upon where you are in your career, the type of training you need, and how you like to engage with your community. But there is one answer that I believe applies to all practicing lawyers—there is no better organization for a lawyer seeking to build a professional network in Houston.
In 21 years of practice, I’ve learned one very im portant lesson about growth in the profession: Peo ple hire lawyers whom they know, like, and believe can get the job done. Of course, being an excellent lawyer is a necessary component to long term suc cess. But excellence isn’t enough. Like many law yers, I’ve competed for and won my share of awards and recognitions from ranking services. Profes sional recognition is a source of pride for me and for most lawyers I know, but it’s rare client who hires a lawyer based solely off a Chambers ranking or Super Lawyers list. It is the rare promotion or lateral move that is driven solely off of star power. In my experi ence, business opportunities most frequently arise through personal relationships or trusted referrals. Those relationships are built and earned from a life time of authentic, quality human connection.
thehoustonlawyer.com July/august 2022 7
from the editor
Ryan Kent Harris OfficeDistrictCountyAttorney’s
Andrew Pearce BoyarMiller
‘‘
I am honored to serve as the maga zine’s editor in chief for the 2022–2023 bar year. If you were unable to tell from my name, I am just a girl from South Loui siana who headed west following my time at Louisi ana State University and Law Center. The move was bridged by a clerkship for the Honorable Timothy E. Kelley of the 19th Judicial District Court of East Ba ton Rouge Parish, where I confirmed that I did in fact want to develop a litigation practice thanks to his careful mentorship and attention to his clerks’ professional development. After starting with a plain tiff’s personal injury firm in Houston, I transitioned to my current practice of commercial litigation and personal injury defense.
Nikki Morris BakerHostetler
The connections I have made and men torship I have received from my fellow board mem bers have proven to be invaluable. So, it is a goal of mine to show other young lawyers how the HBA can add value to their practices and professional relation ships as well. You will see a regular Young Lawyer Spotlight to highlight this topic in each issue, and I am most excited to have several new board members who fall into the young lawyer category, too.
Elizabeth Furlow Malpass Baker Botts
Russia-Ukraine conflict was top of mind, so we have brought you two articles on related investment and supply chain concerns. We also have a pair of pieces offering advice on how to litigate more effectively and the best approach to multidistrict litigation. Thank you to Carly Milner for serving as guest edi tor of this first issue.
Through the next five issues, we will focus on the overall theme of “Elevated Civil Discourse” in part nership with the HBA Board of Directors and Presi dent Chris Popov. The magazine has historically been a medium for this goal, providing an outlet for our membership to discuss legal issues and current events, and will continue to serve as a means to accomplishing that objective in the year ahead. This concept will be highlighted in detail in our September/October issue on media and the law. Another theme of the year is “Attorney Wellness”—not just physical health, but overall wellbe ing. We will be weaving this content in throughout the volume, with a special issue on attorney wellness in January/ February.Iwould like to thank and acknowledge those board members who are serving as associate editors this year: Elizabeth Furlow Malpass – Articles; Andrew Pearce – Legal Trends; Carly Milner –Committee and Section Spotlight; Nikki Morris – Off the Record; and Ryan Kent – Media Reviews, and the past two edi tors in chief, Anietie Akpan and Anna Archer, for their continuing commitment as leaders on the edi torial board. Anna has also continued the podcast’s development as the associate editor and host of Be hind the Lines, which is now in season three. And, of course, we could not bring this publication to our readers without our managing editor Maggie Martin of the ThankHBA.you for reading The Houston Lawyer
Through the Lens of a Young Lawyer
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eassoCiateditors
The Houston Lawyer editorial board was one of my first introductions to the Houston Bar Association as a very young lawyer who was still new to town. I recall walking into the HBA conference room and selecting a seat next to much more senior lawyers who seemed to know the ropes of both the practice and the board. After getting up the courage to offer some ideas of my own, I found myself hosting the first season of the magazine’s com panion podcast— Behind the Lines—and soon after took on this current role.
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When we began planning our general issue, the
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When we wasUkrainegeneralplanningbeganourissue,theRussia-conflicttopofmind,sowehavebroughtyoutwoarticlesonrelatedinvestmentandsupplychainconcerns.
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4. The parties will share the same court reporter and videographer.
6. Documents will be produced on a rolling basis.
By Johnny W. Carter
As one of his ideas for revitalizing the civil jury system, Steve advocated for opposing counsel to reach agreements at the outset of every case to make litiga tion easier, more focused, and more eco nomical. Ten years ago, Steve asked me to co-author an article in the ABA’s Liti gation Journal, setting out suggestions for some of these pretrial agreements. The article, Better Litigating Through Pre trial Agreements,1 walked through and explained the benefits of 20 different pretrial agreements:
Steve Susman’s Ideas to Improve Civil Litigation
3. There will be no objections at depositions, except to assert a privilege or adjourn the deposition because the questioner is improp erly harassing the witness.
Steve pursued a number of proj ects designed to improve the practicelaw.of
7. Each side will pick five custodians from the other side for production of electronically stored informa tion, with the parties agreeing that only documents containing a lawyer’s name can be withheld, and only then if they are actually privileged.
For example, he founded the Civil Jury Project at New York University to study, advocate for, and develop ideas for im proving the civil jury trial. Steve under stood that a vibrant, efficient civil jury system is a cornerstone of American liberty. And he believed that lawyering is simply more fun and more fulfilling when cases are managed from the out set with the goal of getting them quickly and efficiently in front of a jury.
teve Susman was one of the all-time great trial lawyers. He was brilliant, of course, and he worked very hard. But it was not his brilliance or his hard work that made him such a special lawyer. It was that he was having so much fun.
Trial by agreemenT:
8. Production of a privileged docu ment does not waive the privilege
1. Discovery disputes will be re solved with a phone call between lead counsel.
2. Depositions will be scheduled by agreement and limited in number and length.
5. Papers will be served by email on all counsel.
S
Steve understood this. And over the last couple of decades of his life, he put a lot of thought into how to make the practice of law better. Better for the clients. Better for jurors. Better for lawyers.
For many of us, there are days—sometimes years—when “practicing law” is about the farthest thing from fun. Law yers spend a lot of time fighting, often over stuff that does not re ally matter that much. The re sults are stress, overwork, and a lack of professional fulfillment.
Steve Susman (1941-2020)
14. Neither side will be entitled to discovery of expert communica tions with counsel or of draft expert reports.
In subsequent articles and speeches, Steve advocated for additional agree ments to improve the jury trial process:
23. Counsel should be allowed to of fer interim argument during the course of trial.
17. Demonstrative exhibits need only be shown to the other side before use at trial, and do not need to be listed in the pretrial order.
19. The parties will ask the court to allow the jurors to ask questions and keep notes.
21. The parties should agree to equal time limits for each side at trial.
containing a cast of characters, a list of witnesses, a neutral time line, a glossary of special terms that will be heard at trial, any crucial or dispositive documents, and any other information that the parties agree will help the jurors follow the trial and deliberate in a reasonable, informed way.
10. The parties will produce electroni cally stored information in native, searchable form.
22. Jurors should be allowed to ask questions during trial.
11. The parties will put a 48-hour limit on protective order negotia tions and, failing agreement, each side will submit its proposal to the court without argument so that the court can pick its preferred version.
20. The parties will provide the jurors with an agreed-upon notebook
13. The parties will share the expense of imaging deposition exhibits.
as to other privileged documents, and documents can be snapped back as soon as it is discovered that they were produced and without any need to show that the production was inadvertent.
9. Each side may select up to 20 documents from the other side’s privilege log for in camera inspec tion by the court.
24. The parties should agree that the court will provide the jury with preliminary substantive instruc tions before trial.
25. The parties should explore
12. Exhibits will be numbered se quentially, so that each exhibit will have only one number that is carried through trial.
15. A party will not depose the other side’s experts unless it establishes, through a motion filed with the court, that an expert’s report does not comply with the requirements of Federal Rule of Civil Procedure 26.
Steve offered many arguments for en tering into these pretrial agreements, and those arguments had five broad themes:
Pretrial agreements make lawyers bet ter advocates. With fewer depositions, discovery disputes, gamesmanship, and objections, lawyers can focus on win ning at trial.
Pretrial agreements put the case in the hands of lead counsel. Significant time and effort can be wasted when ju
whether to suggest that jurors be allowed to discuss evidence before the conclusion of trial.2
18. The parties will agree on a jury questionnaire.
thehoustonlawyer.com July/august 2022 11
16. The parties will agree on a brief ing schedule and page limits for all pretrial motions.
Pretrial agreements make litigation more efficient. Lawyers should think hard at the outset of a case about what they will need to fulfill the ultimate ob jective—winning at trial. These agree ments are intended to deter collateral discovery disputes that cost time and money and do not make any difference in the outcome of the case.
endnotes
some or all of these pretrial agreements at the outset of their cases. I recently canvassed my colleagues about their ex perience with these agreements, and I heard three things in response.
My most satisfying days in the prac tice of law are spent cross-examining adverse witnesses, presenting the direct examinations of my witnesses, and gen erally doing things in court. My least satisfying days are spent fighting over protective orders, writing discovery let ters, and drafting responses to pointless motions. Steve understood this dynamic well. He believed that civil litigation should be fun and interesting, and that the legal practice has been made less professionally satisfying by the decline of the civil jury trial and the rise of un necessary pretrial disputes. His pretrial agreements are a meaningful contribu tion toward fixing these problems and improving the civil trial practice
Jury trials should facilitate the jurors learning and understanding the facts Jurors are hindered from doing a good job by arbitrary and out-of-date rules, such as proscriptions on notetaking and interim argument, and by how lawyers sometimes try cases, with long days filled with repetitive presentations of ev idence. The parties should agree, ahead of time, to a few ground rules that will result in a more compelling trial presen tation by both sides.
reluctant to agree to anything at the start of a case. This represents an under standable fear of the unknown—what if I agree to something now that dis advantages my client down the road? But Steve drafted the agreements to be neutral as between the parties, and he often stressed how important it is for both plaintiffs and defendants to have an efficient discovery process leading to a well-presented, effective jury trial. The best we can do as lawyers is to advocate for these agreements and hope that op posing counsel will see the light.
26. 38 LITIGATION 22 (2011).
27. See Stephen D. Susman & Thomas M. Melsheimer, Trial by Agreement: How Trial Lawyers Hold the Key to Improving Jury Trials in Civil Cases, VOIR DIRE, Fall/Winter 2013, at 16.
war on the jury trial, through proce dural rules intended to encourage dis position on the pleadings and summary judgment, judges who view their main role to be encouraging settlement, and expansion of the use of the unreview able and expensive process of manda toryManyarbitration.lawyers at my firm propose
12 July/august 2022 thehoustonlawyer.com
Second, opposing counsel often are
nior lawyers manage cases without sig nificant involvement from lead counsel. Less experienced lawyers sometimes cannot resist the urge to fight every bat tle. Lead counsel bring the perspective of experience, understanding what does and does not matter.
We should all want the jury trial sys tem to succeed. These agreements are in tended to decrease the cost of civil jury trials while improving the results. These are goals that all trial lawyers should support. There has been a multi-decade
Johnny W. Carter is a partner with Sus man Godfrey L.L.P. in Houston.
First, the rules are slowly moving to ward approaches like those reflected in Steve’s pretrial agreements. For ex ample, over the last several years, the Federal Rules of Civil Procedure and the rules in many states, including Texas, have moved toward non-discoverability of draft expert reports and liberal rights to snap back inadvertently produced privileged documents.
Third, the feedback has been posi tive when the parties reach these agree ments at the beginning of the case. My colleagues report that these agreements have improved the litigation process and been satisfactory to both plaintiffs and defendants in their cases.
mulTidisTricT liTigaTion:
All told, Harris County currently has about 22 MDL proceedings pending. This article will address tips for those engaged in the MDL practice.6
The MDL Panel disfavors a party request ing the appointment of a specific judge to preside as pretrial judge or transfer to a particular county—even if all the parties agree.7 According to the MDL Panel, “Rule 13 is not meant to be a venue-changing or judge-selecting procedure.”8 The MDL Pan el may assign “any active district judge, or any former or retired district or appellate judge who is approved by the Chief Justice of the Supreme Court of Texas.”9 The MDL Panel is not likely to appoint a judge that a party requests, even by agreement.
Since its creation, and as of this writing, the MDL Panel has received 120 motions to transfer.4 In 2021, the MDL Panel consid ered 13 motions to transfer. The MDL Panel granted all of them and assigned seven to Harris County pretrial courts.
To successfully navigate an MDL, the par ties should familiarize themselves with the various categories of plaintiffs and defen dants in a given proceeding and the num ber of parties in each category. For example, in an MDL dealing with a chemical release and chemical explosion, the parties should know the number of plaintiffs alleging wrongful death, the number of plaintiffs alleging severe injuries (such as traumatic brain injuries, orthopedic injuries, burn injuries, etc.), and the number of plaintiffs alleging minor injuries. Plaintiffs may also work for different employers or contractors or be residents in the area. Defendants may be manufacturers, the premises owners, or contractors. Knowing all of this informa
By the hon. Kristen B. haWKins and the hon. sylvia a. MattheWs
n 2003, Texas passed legislation to create the Judicial Panel on Multidis trict Litigation (MDL Panel) and to allow the MDL Panel to transfer re lated civil actions for consolidated or coordinated pretrial proceedings to a pretrial court.1 The MDL procedure serves as “a tool for promoting convenience to wit nesses and parties along with judicial effi ciency.”2 Rule 13 of the Texas Rules of arethatmustMDLmatter,atransfer,Toprocedure.thetionAdministraJudicialgovernsMDLgrantaasthresholdthePanelfindthecases“relat
Tip 2: Know Your Case
I
ed”—that is, that they involve one or more
common questions of fact.3 If the cases sat isfy that threshold question, the MDL Panel then considers whether transfer would be convenient for the parties and witnesses, and would promote the just and efficient conduct of the cases.
thehoustonlawyer.com July/august 2022 13
Tip 1: do not request a Particular Judge or County in the rule 13 Motion
Practice Tips for ConsolidatedPretrialProceedings
pointed by the pretrial court to appear at all hearings and speak on behalf of their sides of the case. Liaison counsel are responsible for disseminating information and notices to all plaintiff or all defense counsel, and the position can be very document- and time-intensive. When proposing liaison counsel, the parties should consider who the stakeholders are and be mindful about which firms have the bandwidth to take on the position. The parties should also con sider whether diversity among liaison coun sel is appropriate.
According to Rule 13.7, the pretrial court may remand for trial one or more cases, or portions of cases. If requested, the pretrial court will consider how many cases can be consolidated for trial without causing ju ror confusion and prejudice to the parties. In some instances, a bellwether trial may be appropriate. Bellwether trials are cases that are selected to be remanded and tried ahead of other cases in an MDL and usually involve cases that are representative of the other pending cases. A bellwether trial ver dict can provide information to both plain tiff and defense counsel regarding potential liability and damages, which may lead to the resolution of additional cases. When deciding on a bellwether trial, the pretrial court will likely conduct a balancing test and weigh various factors to ensure that the
An MDL proceeding inherently involves multiple cases, multiple plaintiffs, and sometimes multiple defendants. Being orga nized and detail-oriented helps to track the progress and management of the MDL and to address specific needs the pretrial court may have.
Liaison counsel will be the attorneys ap
The case management order (CMO) gov erns how the litigation will proceed and should cover “all matters pertinent to the conduct of the litigation.”10 The CMO should be tailored to the specific issues in each case and cover topics such as issuing protective orders, appointing liaison coun sel, exchanging documents, establishing document depositories, scheduling depo sitions, scheduling dispositive motions, and other matters that will allow for the just and efficient pretrial proceedings. The parties should confer about the CMO and reach as many agreements as possible be fore presenting a proposed CMO to the pretrial court.
Tip 6: Prepare for the initial Hearing
Tip 3: Be Organized—or Have Someone on the Team Who is
ing, the case remains unless the pretrial court grants a timely motion to remand.13 A motion to remand may be filed to chal lenge whether the tag-along procedure was appropriately invoked. The pretrial court decides motions to remand using the same standards that the MDL Panel uses to de cide a Rule 13 motion to transfer.14
Tip 4: Prepare a Case Management Order
Tip 5: Propose Appropriate Liaison Counsel
tion will assist in developing a discovery and deposition schedule and, later, help de termine which cases would be appropriate for a bellwether trial.
Tip 8: Be Mindful of Which Court Has Authority
Rule 13 defines a tag-along case as “a case related to cases in an MDL transfer order but not itself the subject of an initial MDL motion or or der.”12 When the MDL Panel grants a motion to trans fer, the order will usually state that the cases subject to the motion are transferred along with those that may be tagged-in later. Once a case has been tagged into an MDL proceed
“After notice of transfer is filed in the trial court, the trial court must take no further action in the case except for good cause stated in the order... and after conferring with the pretrial court.”15 The pretrial court is authorized to decide all pretrial matters in all related cases transferred to the court.16 Counsel for plaintiffs and de fendants should be mindful of the respon sibilities that each court must handle, and advise trial courts that litigation is stayed until the MDL pretrial court has decided all pretrial matters. When a case is re manded for trial, the rulings of the pretrial court are binding unless the trial court re ceives written concurrence from the pre trial court. The only exception pertains to the admissibility of evidence at trial be cause of changed circumstances.17
14 July/august 2022 thehoustonlawyer.com
Tip 7: Tag-in Cases Selectively
Rule 13 provides that the pretrial court should conduct an initial hearing “at the earliest practical date.”11 To prepare for the initial hearing, counsel should review Rule 13 and be prepared to discuss the matters listed in Rule 13.6(c) and to advise the pre trial court of any particular issues that may exist. Counsel for plaintiffs and defendants should meet separately in advance of the hearing to coordinate their responses. If possible, counsel should confer with each other and prepare an agenda of topics that the parties would like to cover at the initial hearing. Counsel should be sure to contact the pretrial court to determine if the court has any specific procedures that may apply.
Tip 9: Select Trial Cases Strategically
1. TEX. GOV. CODE § 74.161–.164.
4. See the “Multi-District Litigation Panel” tab at www. txcourts.gov for a list of “Available Cases” in which a motion to transfer has been filed.
16. TEX. R. JUD. ADMIN. 13.6(b).
case is representative of the other cases in the MDL.
18. TEX. R. JUD. ADMIN. 13.6(d). See also In re Texas Windstorm Ins. Ass’n Hurricanes Rita and Humberto Litig., 339 S.W.3d. 401, 404–05 (Tex. M.D.L. Panel 2009) (“A remanded case is not to be given an ordi nary trial setting; when a trial date is set and a case remanded, the trial judge cannot continue or reset the case without the pretrial judge’s consent.”).
2. In re Digitek® Litig., 387 S.W.3d 115, 118 (Tex. M. D.L. Panel 2009).
9. TEX. R. JUD. ADMIN. 13.6(a). The assignment is not subject to objection under Chapter 74 of the Government Code. Id
5. The authors would like to thank Natalie Kirk, An war Chagollan, and Tim Almohamad, interns for the 190th District Court, for their assistance in cre ating the graphic
The Hon. Kristen B. Hawkins was elected judge of the 11th District Court in 2016. She currently presides over two MDLs, In re Astroworld Litigation and In re KMCO Litigation
11. Id
14. Id. at 584.
12. See TEX. R. JUD. ADMIN. 13.2(g).
Tip 10: Adhere to Trial Settings
8. In re Digitek® Litig., 387 S.W.3d at 118.
3. TEX. R. JUD. ADMIN. 13.2(f); I n re Wellington Ins. Co. Hailstorm Litig., 427 S.W.3d 581, 582–83 (Tex. M.D.L. Panel 2014).
endnotes
In re Wendland Well Cases Litig., No. 20-0286 (Tex. M.D.L. Panel April 7, 2021) (“The Panel denies the request for the assignment of the Jointly Requested Judge because we have repeatedly indicated we dis favor parties recommending that we transfer to a particular county or judge.”).
The Hon. Sylvia A. Matthews is a visit ing judge, mediator, and arbitrator. As a visiting judge, she currently presides over five active MDLs, including In re Winter Storm Uri Litigation
10. TEX. R. JUD. ADMIN. 13.6(c).
13. In re Wellington Ins. Co. Hailstorm Litig., 427 S.W.3d at 582.
thehoustonlawyer.com July/august 2022 15
7. See Designation of Pretrial Court and Appointment of Pretrial Judge Order at 1, n.1, In re Astroworld Litig., No. 21-1033 (Tex. M.D.L. Panel Feb. 14, 2022) (“[W]e have repeatedly stated that we disfavor re quests that we appoint specific judges requested by the parties.”) (citing In re Farmers Ins. Co. Hurricane Harvey Litig., No. 18-0547, 2018 Tex. LEXIS 737, at *1 (Tex. M.D.L. Panel July 27, 2018) (other citations omitted)). See also Order Granting Reinstatement, Motion to Transfer and Request to Lift Stay at 1,
15. TEX. R. JUD. ADMIN. 13.5(b). Although a party files a notice of transfer, the trial court may not be aware of the notice and may generate orders, such as docket control orders or trial settings. When this happens, notify the trial court’s coordinator that the case has been transferred to an MDL and re quest that the trial court’s order be set aside.
17. TEX. R. JUD. ADMIN. 13.8(b), (c).
6. This article will not address issues specific to asbes tos- or silica-related injuries.
The pretrial court sets cases for trial in con junction with the trial court. Rule 13.6(d) provides that the pretrial court and the trial court must confer and cooperate to set the case on the trial court’s docket. Once a case is set for trial, motions for continuance and resets are not favored. In fact, the “trial court must not continue or postpone a trial setting without the concurrence of the pre trial court.”18
Regardless of the extent of the U.S.’s reliance on Russia for energy sources, when two of the world’s most important economies—the U.S. and the EU—im pose economic sanctions that result in the diminished availability of energy
As of now, as with all wars, the likely outcome is not promising. Take Russia, for example. According to the Observa tory of Economic Complexity, Russia’s economy in 2020 was the world’s 11thstrongest economy when measured by gross domestic product (GDP), 13th by total exports, and 21st by total im ports—but 70th when measured on a per capita basis.2 More importantly, Russia remains a significant producer of petro leum, third in the world behind only the United States and Saudi Arabia in 2020.3
ed to counter the spread of the virus. Then, the Russia-Ukraine conflict be gan. The world economy suddenly faced setbacks again that curtail its continued recovery from COVID-19. No one can know the conflict’s ultimate impact on the global economy. Quite frankly, only time will tell because we have yet to see the outcome of the conflict, assess the damage to the economies of the warring nations, and determine to what extent goods formerly produced by these coun tries are replaced with production of similar goods by other nations.
The Impact of Russia-UkrainetheConflictonInternationalShippingandSupplyChainManagement
By MarK Murrah and Jose trevino 1
ne cannot talk about in ternational shipping and supply chain manage ment without contextu alizing these topics in a “before and after CO VID-19” discussion. The spread of CO VID-19 had tremendous impacts on the world economy. Over the span of the last several years, the global economy faced (and, to an extent, recovered from) scar city of raw materials and finished goods, increased delivery times resulting from port terminals, railways, other logistics infrastructures operating at less-thanoptimal capacity, and human capital shortages derived from ill workers or from containment measures implement
O
According to the European Council, in 2020, Russia provided 29% of total crude oil and 43% of natural gas (plus 54% of solid fossil fuel, such as coal) imports into the European Union (EU).4 And crude oil and natural gas revenue com prised approximately 43%, on average, of the Russian government’s total annual revenue between 2011 and 2020.5 The United States has fared better than the EU because it is less reliant on Russia for oil and natural gas. For example, in 2021, Russian imports accounted for only 8% of U.S. petroleum imports.6 While no accurate data is available to validate the percentage of gas imported from Russia into the U.S., the U.S.’s status as a net gas producer makes it likely that reliance on Russian gas imports is immaterial.
ing the high price, scarce availability of goods environment that may lead to an economic downturn.
So, now that the U.S. and the EU have restricted imports of Russian oil and gas, what happens next? A little over five months have gone by since the on set of the Russia-Ukraine conflict. In short, since there is no humanly possible way to substitute such a large supply of fuel in such a short period of time, both economies have seen a significant rise in energy prices. Indeed, since February, Europe’s natural gas price benchmark (called the Dutch front month gas prices) has risen by 176%,7 and the U.S.’s natural gas price benchmark (called the Henry Hub gas prices) has increased 35%.8
At the height of the COVID-19 crisis, many businesses avoided the full im
From a supply chain perspective, ris ing energy prices have a negative impact that affects the whole system. It costs more to manufacture goods and to de liver those goods to consumers. While manufacturers and other participants in the supply chain might absorb the cost increase temporarily, eventually these cost increases will be passed to the con sumers, who will watch as their pur chasing power erodes, along with their confidence in the economic climate. The consumer impact will in turn affect man ufacturers.Manufacturers with excess inventories accumulated in a high-cost environment will be forced to eliminate these surplus es by liquidating inventories at clearance prices. Under these conditions, manu facturers essentially fall into the worst investing maxim there is: “buy high, sell low.”Thus, it is likely that, in the short term, trying to anticipate when the economic activity will decelerate, manufacturers will aim to reduce their inventory build up by maintaining a lean, just-in-time inventory. This will accentuate the scar city of goods that has prevailed since the outbreak of COVID-19, thus exacerbat
The rise in price of even a few commodities can wreak havoc on the economy. Cur tailing the supply of other significant commodities exported by Russia and Ukraine, such as precious and industrial metals and cereals, among other com modities—whether caused because it is no longer pos sible to produce said goods, the goods are banned from being supplied due to eco nomic sanctions, or the in frastructure utilized to supply those goods has been destroyed—will only magnify the adverse effects to the global economy that are caused by rising prices of goods and services.
supplies, there must be timely planning behind the decision. As it turns out, the U.S. and the EU appear to have imposed sanctions as a knee-jerk reaction without planning for the potential long-term ef fects, which are now playing out on the world stage.
‘‘
thehoustonlawyer.com July/august 2022 17
From a supply chain perspective, rising energy prices have a negative impact that affects the whole system. It costs more to manufacture goods and to deliver those goods to consumers.”
pact of late shipments and failed service agreements by inserting force majeure provisions9 into their supply chain agree ments. It would come as no surprise if many businesses implement a similar strategy in response to the recent eco nomic instability caused by the Russia-Ukraine conflict, whereby increased focus on risk allocation becomes the norm.Asthe Russia-Ukraine con flict has negatively impacted supply chain management, it has also had a deleterious effect on international ship ping. Cargo ships run on die sel fuel. Consignors are sub ject to the adverse effects that are caused by rising energy prices. However, unlike other participants in the supply chain of goods, shipping companies are safe guarded from having to absorb cost in creases instead of passing the costs onto
3. U.S. ENERGY INFORMATION ADMINISTRATION, Russia Analysis (Dec. 13, 2021) international/analysis/country/RUS.https://www.eia.gov/
manufacturing capacities take place in North America or elsewhere, U.S. busi nesses should look to retain legal coun sel who can advise them on the risks of operating and managing the transition process.
8. U.S. ENERGY INFORMATION ADMINISTRATION, NaturalGasWeeklyUpdate, https://www.eia.gov/natural gas/weekly/ (last visited Aug. 8, 2022). The increase calculations were performed by the author.
7. ICE, Dutch TTF Gas Futures, the2022).data?marketId=5419234&span=2com/products/27996665/Dutch-TTF-Gas-Futures/https://www.theice.(lastvisitedAug.8,Theincreasecalculationswereperformedbyauthor.
Mark Murrah is founding and manag ing partner of Murrah & Killough, PLLC.
5. U.S. ENERGY INFORMATION ADMINISTRATION, Russia Analysis (Dec. 13, 2021) international/analysis/country/RUS.https://www.eia.gov/
the customers. Supply chain disruptions related to the outbreak of COVID-19 forced many retailers to order goods to build up their inventories many months in advance. Certain accounts indicate that incoming ships have months-long wait times at harbors before they are scheduled to disembark. Consequently, many businesses have enabled shipping companies to negotiate better terms and rates for themselves.
6. U.S. ENERGY INFORMATION ADMINISTRATION, Today in Energy: The United States imports more pe troleum products than crude oil from Russia (Mar. 22, 2022), MATIONfuelunfinishedhydrocarbonthephp?id=51738.https://www.eia.gov/todayinenergy/detail.(“Petroleumproductsareobtainedfromprocessingofcrudeoil...,naturalgas,andothercompounds.Petroleumproductsincludeoils,liquifiedpetroleumgases,”gasolines,oils,andotherproducts.U.S.ENERGYINFORADMINISTRATION,
9. Force majeure provisions are meant to reduce the risk of loss stemming from unforeseen events.
1. The authors would like to thank Luis Civallero, a law clerk at Murrah & Killough, PLLC studying history at Hendrix College; David Kurp, a law clerk at Mur rah & Killough, PLLC studying political science at Rice University; and Jack Murrah, a rising senior at St.
If the Russia-Ukraine conflict is pro longed, it is likely that a slight increase in available shipping vessels formerly retained for transport of these coun tries’ goods might occur. This increase would thereby create a downward price pressure for consignors. In response to the conflict, American businesses may begin to evoke reshoring or near-shor ing strategies to terminate preexisting trade agreements with Russian-owned businesses and to launch new, domes tic means of manufacturing. Whether the newfound domestic investments in
John’s School studying economics, for their assistance in researching and developing this article.
4. EUROSTAT, From where do we import energy?, 2c.htmlec.europa.eu/eurostat/cache/infographs/energy/bloc-https://(lastvisitedAug.8,2022).
Petroleum & Other Liquids Definitions, Sources and Explanatory Notes impcus_tbldef2.asphttps://www.eia.gov/dnav/pet/TblDefs/pet_move_,(lastvisitedAug.8,2022).
Jose Trevino is an attorney licensed in Mexico who heads Murrah & Killough, PLLC’s Monterrey office.
endnotes
2. OBSERVATORY OF ECONOMIC COMPLEXITY, Russia, https://oec.world/en/profile/country/rus. (last visited Aug. 8, 2022).
18 July/august 2022 thehoustonlawyer.com
thehoustonlawyer.com July/august 2022 19
Investment treaties are agreements be tween countries that govern a state’s treatment of foreign investments made by individuals or companies from an other country. There are two types of investment treaties: bilateral invest ment treaties (between two states) and multilateral investment treaties (among several countries). These treaties may be standalone instruments (e.g., the 1994 United States-Ukraine Treaty Concern he
T
InvestmentMappingPotentialTreatyClaimsAgainstRussia
The Russian government’s rulemak ing sovereignty is nonetheless limited by Russia’s international obligations to promote and protect foreign investors and their foreign investments. These treaties not only provide substantive protections to foreign investors and investments, but they also provide a process through which foreign nation als may enforce their investment treaty rights against Russia for compensation. Russia is party to over 60 investment treaties, according to the United Na tions Conference on Trade and Devel opment’s Investment Policy Hub.3 Its recent measures target foreign inves tors and investments that are associated with several countries with which Rus sia has an investment treaty. Notably, although Russia and the United States signed an investment treaty in 1992, it is not in force, and therefore cannot be invoked.Thisarticle provides an overview of investment treaties and their protec tions, as well as implications for foreign investors in Russia whose investment treaty rights may have been violated by Russia’s recent economic measures.
By M. iMad Khan
clude export bans on vari ous types of goods produced by foreign companies in Russia.1 The Rus sian government is also taking steps toward nationalizing foreign assets of companies that have left the coun try since the invasion of Ukraine and
investment Treaties and Their Protections
investment-specificresultedUkraineinvasion(“Russia”)Federation’sRussianofhasinmeasuresacrosstheglobewithWesternnationsimposingsanctionsagainstRussia,andRussiarespondingwithitsowneconomicmeasures.Thesein
proposing the transfer of such foreign businesses to the state development bank, VEB.2 Moreover, the Russian government has imposed currency transfer restrictions and new require ments to obtain its approval for certain types of transactions involving foreign ers from “unfriendly” countries.
thehoustonlawyer.com July/august 2022 21
• Prohibition against illegal expro priation or taking of private prop erty, which may include measures that would affect foreign investors’ basic rights to exercise authority or control over their foreign capital or investment. Notably, the tak ing of alien property is legal and legitimate where certain conditions are fulfilled. Legal expropriation requires that it was in the pub lic interest and that prompt and adequate compensation was paid,4 though some treaties also require legal expropriation measures to be non-discriminatory, non-arbitrary, and conducted with due process.5
• Non-discrimination based on nationality (i.e., national treat ment protection), which typically requires the host state to treat for eign investors and/or investments at least as well as the state treats investors from its own jurisdiction. This, therefore, promotes the posi tion of the foreign investor to the level accorded to domestic nationals.6
Legal and Practical Considerations of Commencing investment Claims
The subject matter scope is also important, and this is determined by how the treaty defines “inves tor” and “investment” to ascertain which forms of economic activities by foreign nationals are cov ered by the investment treaty.Second, if the applica ble investment treaty cov ers the scope of a foreign investor’s foreign invest ment, due regard must be given to substantive protections in that ap plicable treaty. Not every treaty will have the sub stantive protections out lined above. And different treaties with the same sovereign may yield different results. For example, the Russia-Singa pore investment treaty provides for fair and equitable treatment, rule against unlawful expropriation, free transfer of payments, etc.8 However, it does not contain national treatment or mostfavored-nation clauses. By contrast, the Russia-UAE investment treaty does include national treatment and mostfavored-nation clauses, among oth ers.9 Different government measures give rise to different claims under the substantive protections provided by in vestment treaties, with some measures simultaneously giving rise to multiple claims under various investment pro tections.Thethird legal consideration pertains
• Most-favored-nation protection, which requires the host state to treat foreign investors or invest ments of one contracting party at least as favorably as foreign inves tors or investments of a third state that is not party to the underlying investment agreement.7
of any investment treaty is its dispute settlement pro vision, which enables a foreign investor to bring a claim against the host state for violation of any of the enumerated substantive standards of protection. Several investment treaties refer such disputes to the World Bank Group’s International Centre for Settle ment of Investment Disputes or under arbitration rules of the United National Commission on International Trade Law (“UNCITRAL”).
‘‘ The tectpromotesovereigntygovernment’sRussianrulemakingisnonethelesslimitedbyRussia’sinternationalobligationstoandpro-foreigninvestorsandtheirforeigninvestments. ”
the country of which they are nationals) has an investment treaty with Russia. They must also confirm the temporal scope of the investment agreement (i.e., whether the investment agreement ap plies to an investment established prior to the agreement’s entry into force or whether its application is limited to in vestments established af ter the investment agree ment came into force).
• Full protection and security, which applies to physical protec tion of assets and requires that host states preserve the public order and ensure security by acting with due diligence and using their police powers to avoid physical damage or injury.
22 July/august 2022 thehoustonlawyer.com
ing the Encouragement and Reciprocal Protection of Investment) or form part of free trade agreements (e.g., the 2020 United States-Mexico-Canada Agree ment). There are roughly 3,000 invest ment treaties currently in force. Most investment treaties have sub stantive provisions that provide the var ious standards of protections to foreign investors and their investments in host states. The most common standards of investment protection include:
Bringing an investment treaty claim against any sovereign, including Russia, requires important legal considerations that are grounded in the existence, ap plicability, and contents of investment treaties. First and foremost, foreign in vestors in Russia who have been harmed by recent economic measures must con firm that their state of nationality (i.e.,
• Guarantee to freely transfer funds without restrictions into and out of the host state to maintain operations.
• Fair and Aninvestor.relationtotalambiguity,consistently,ensuretheinvestoraccountpectationsnotthattreatmentequitabletoensureahoststatedoesaffectbasicextakenintobyaforeignwhenmakinginvestment,andtothestateactsfreefromandwithtransparencyintotheforeignimportantprovision
thehoustonlawyer.com July/august 2022 23
FIND OUT MORE: TLIE.ORG or (512)RISK-TAKING480-9074 CAN BE FUN... …BUT NOT WHEN IT’S A MALPRACTICE CLAIM. Real Estate Litigation Claim* • Lawyer sued for error in service of process • Damages of up to $1,000,000 alleged • TLIE settled claim for $2,500 INSURED BY TLIE Total (deductible)out-of-pocket = $1,000 IF NOT DefenseINSUREDcosts $35,000 Settlement + $2,500 Total out-of-pocket = $37,500 * Based on actual claim handled by TLIE. 24 July/august 2022 thehoustonlawyer.com
to the investment treaty’s dispute resolu tion mechanism, which will be provided in the applicable treaty. The provision may require sending a formal notice of dispute to the state and/or engaging in negotiations before commencing a suit. The Russia-Iran investment treaty, for example, requires that if a dispute can not be settled within six months from the date of written notification of the dispute, only then can a foreign investor submit the dispute to a “competent court of the State,” initiate ICSID arbitration, or initi ate ad hoc arbitration under the UNCIT RAL arbitration rules.10
In that scenario, if the tribunal renders an arbitral award against Russia, it is un likely that Russia will voluntarily comply. It is well-documented and reported that Russia has been resisting paying Yukos the $50 billion awarded in compensation through investment arbitration, which may be indicative of Russia’s future con duct to comply. This, however, should not be discouraging because international arbitration law provides for enforcement of arbitral awards. Russia is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). Therefore, an award against Russia can be enforced in any of the approximately 169 states that have ratified the New York Convention, and Russian assets in that state may be used to monetize the award. Recent re
There are also practical considerations that must be taken into account. For example, in recent history, Russia has refused to participate in international arbitrations and litigations against the state. The absence of Russia before the In ternational Court of Justice in the claim brought by Ukraine is just one recent ex ample. It may well be the case that Rus sia refuses to participate in future invest ment treaty arbitrations altogether. That,
however, does not mean that the arbitra tion will not proceed. An arbitral tribunal with proper jurisdiction is still empow ered to adjudicate the dispute and render an arbitral award even if Russia chooses not to participate.
2. Russia Lays Groundwork for Nationalizing Foreign Companies Amid Fallout From Ukraine War, RADIO FREE EUROPE RADIO LIBERTY (Mar. 10, companies/31746695.html.https://www.rferl.org/a/russia-nationalize-foreign-2022),
11. DOJ says the U.S. and allies have frozen $30 bil lion of Russian elites’ assets, $300 billion of Moscow bank funds, CNBC (Jun. 29, 2022), 30-billion-of-russian-oligarch-assets.html.cnbc.com/2022/06/29/doj-says-allies-have-frozen-https://www.
ports confirm that over $300 billion dol lars’ worth of Russian assets from Rus sia’s central bank have been frozen by the United States and its allies.11 These frozen assets may be targeted by arbitral award creditors to monetize awards against the Russian Federation, as long as those as sets are commercial in nature and not subject to sovereign immunity protec tions under the applicable law.
3. INVESTMENT POLICY HUB, agreements/countries/175/russian-federationpolicy.unctad.org/international-investment-https://investment(last
6. See Parkerings-Compagniet AS v. Republic of Lithu ania, ICSID Case No. ARB/05/8, 367–368 (Sept. 11, 2007) (discussing that the effect of the national treatment clause of investment treaties is to bar discrimination against foreign nationals investing in the host state).
endnotes
1. Russia hits back at Western sanctions with export bans, BBC NEWS (Mar. 10, 2022), https://www.bbc. com/news/business-60689279.
8. Agreement Between the Government of the Repub lic of Singapore and the Government of the Russian Federation on the Promotion and Reciprocal Pro tection of Investments dated September 27, 2010.
10. Agreement Between the Government of the Russian Federation and the Government of the Islamic Re public of Iran on Promotion and Reciprocal Protec tion of Investments dated December 23, 2015.
4. MALCOLM N. SHAW, INTERNATIONAL LAW 573 (1997).
5. AUGUST REINISCH, STANDARDS OF INVEST MENT PROTECTION 171, 173–175 (2008).
M. Imad Khan is an international disputes lawyer at Winston & Strawn LLP.
Personalinjury Wrongfultermination Intellectualproperty Commercialdamages/lostprofits Businessvaluations Whenyouneedanumber callournumber 281.846.6132 DAMAGES WWW.THOMASRONEYLLC.COM thehoustonlawyer.com July/august 2022 25
9. Agreement Between the Government of the United Arab Emirates and the Government of the Russian Federal on the Promotion and Reciprocal Protection of Investments dated 2010.
visited Jul. 24, 2022).
7. See Ickale Insaat Limited Sirketi v. Turkmenistan, IC SID Case No. ARB/10/24, 328 (Mar. 8, 2016) (find ing that the “the legal effect of the MFN clause, properly interpreted, is to prohibit discriminatory treatment of investments of investors of a State par ty (the home State) in the territory of the other State (the host State) when compared with the treatment accorded by the host State to investments of inves tors of any third State”).
roland garcia, shareholder with greenberg Traurig, llP, poses with 2021-2022 Hba diversity, equity & inclusion committee co-chair Jacquelyn rex.
thehoustonlawyer.com July/august 2022 27
roland garcia, shareholder with greenberg Traurig, llP, poses with other firm members.
Ken bullock, member-in-charge of the Houston office of Frost brown Todd llc, poses with 2021-2022 Hba diversity, equity & inclusion committee co-chair Jacquelyn rex.
The HBA Diversity Awards were created in 2019 by HBA President Benny Agosto, Jr. (2019-2020) to recognize outstanding achievements and dedication by law offices, legal departments, and individuals in the areas of diversity, equity, and inclusion in the legal profession. Recipients are chosen by a committee made up of representatives from the HBA’s Gender Fairness Committee; Diversity, Equity and Inclusion Committee; and LGBTQ+ Committee. The awards were presented during the HBA’s 24th Annual Summer Associate Luncheon held July 21 in downtown Houston.. The above article is an HBA press release.
needed to advocate for the underrepresented and underprivileged. By receiving this award, I hope to serve as an example to attorneys on how we can push for diversity and become more inclusive in our work.”
attorney marcus esther, The law office of marcus esther, Pllc, poses with his award and Jaquelyn rex with smyser Kaplan & Veselka, l.l.P., a co-chair of the 2021-2022 Hba diversity, equity & inclusion committee.
Hasley with husband greg Hasley and daughter Katie.
The event included a presentation of the President’s Awards, given to outstanding committees, sections, and individuals to celebrate their accom plishments over the past year. The HBA also presented the Justice Ruby Kless Sondock Award, recognizing outstanding achievement and leader ship for women in the law, and the Justice Eugene A. Cook Professionalism Award, the association’s highest award for professionalism.
Shauna Johnson Clark
Popov with Hba executive director mindy davidson.Popov presents Hasley with the president’s plaque.
Photography by Deborah Wallace, Barfield Photography
Christopher V. Popov Takes Helm as HBA President
Christopher V. Popov of Vinson & Elkins took office as the 2022-2023 Houston Bar Association president at the HBA Annual Dinner on May 19 at River Oaks Country Club. He succeeds Jennifer A. Hasley of Hasley Scarano, L.L.P.
Popov with (l to r) son Preston, stan eggers, lee eggers, daughter Palmer, brother george Popov, wife annsely, meredith marshall, and ben marshall.
28 July/august 2022 thehoustonlawyer.com
2021-2022 Hba President Jennifer a. Hasley (right) presents the gavel to new Hba President christopher V. Popov.
roland garcia, former Hba president (2001-2002) and shareholder with greenberg Traurig, llP, with wife Karen garcia.
Hba emeritus member Fred Hagans with son William of Hagans montgomery Hagans.
thehoustonlawyer.com July/august 2022 29
Houston bar Foundation chair christian garza with Houston Volunteer lawyers executive director anne chandler.
Hasley poses with chief Justice Tracy christopher of the Fourteenth court of appeals, who was awarded this year’s Justice ruby Kless sondock award.
Hasley with the Hon. Keith P. ellison, united states district court, southern district of Texas; and bridget Vick, Hunton andrews Kurth llP.
Hasley with Judge edith H. Jones, former chief Judge of the united states court of appeals for the Fifth circuit and this year’s recipient of the Justice eugene a. cook Professionalism award.
2020-2021 Hba President bill Kroger (right) and wife elizabeth m. Kroger with university of Houston law center dean leonard baynes.
Former Houston bar association President Kelly Frels (1994-1995) with wife, carmela, former Houston bar association auxiliary President (1996-1997).
alistair b. dawson, former Hba president (2017-2018) and partner with beck redden llP; the Hon. rabeea collier, 113th district court; and the Hon. beau miller, presiding judge of the 190th Judicial district court.
(l to r) roy Varner; dominique Varner, Hughes Watters askanase; adalgisa marshall; and mike marshall.
Hba secretary daniella landers, Womble bond dickinson (us) llP, and lucy Forbes, state bar of Texas director of district 4, Place 4.
Jennifer A. Hasley presented special awards to outstanding individuals in the Houston legal community.
SEniOr LAWYErS
R.P.WilliamBrochsteinCantrellDavidChildressMurryCohen“Skip”CorneliusRalphCoselliJ.CalCourtneyWillDickeyGeraldDroughtRussellDucoff
BEnCH BAr COnfErEnCE COMMiTTEE
30 July/august 2022 thehoustonlawyer.com
Chaired by Rachel Reese, founder and executive attorney of R. Reese and Associates
W. Robins Brice
Erin Juvenal Jennings, Hunton Andrews Kurth LLP
Kaylan Dunn, Hunton Andrews Kurth LLP
Jennifer A. Hasley presented the 20212022 President’s Awards to outstanding committee chairs and sections.
LGBTQ+ COMMiTTEE
The housTon Lawyer EdiTOriAL BOArd
Deanna Willson, Locke Lord LLP
Michael Reeder, Cadwell Clonts Reeder & Thomas LLP
MiLiTArY & VETErAnS COMMiTTEE
COMMiTTEE
Justice April L. Farris, First Court of Hon.AppealsKelli Johnson, Harris County Administrative Judge - Criminal Division and Judge of the 178th Criminal District Court
HBA APPELLATE PrACTiCE SECTiOn Chaired by James Marrow, Wright Close & Barger, LL
Randy Clark, Attorney at Law Jonny Havens, Allen & Havens LLP
Hon. Jason Cox, Administrative Judge and Harris County Probate Court No. 3 Hon. Angela Graves-Harrington, Harris County Administrative JudgeFamily Division and Judge of the 264th District Court
Ryan Kinder, Bradley Arant Boult Cummings LLP
Richard Fink, Baker McKenzie LLP
Richard NormanEdgarKennethMithoffMorrisDonNelsonNorwoodJackO’NeillJohnPavlasMichaelPerrinBrucePowersRadfordRobertRowlandWilliamRuckerLupeSalinasStanleySantireRobertScardinoGeorgeSchilterRalphShepherd
DannyJeffreyPatrickJosephRichardRolandMichaelShortSilvaSledgeJerrySmithGeorgeSnellJamesSpringSteeleIrvingSternStevensDavidStevensTimmonsTompkinsEllisTudzinVanWinkle
Anietie Akpan, Metropolitan Transit Authority of Harris County, Texas (METRO)
President’s awards
OuTSTAndinG SErViCE Dominique Varner, Hughes Watters Askanase LLP
John Kelly, Jr., AttorneyHon.MediatorSarah Springer, Springer Law Firm
Gladys GordonMichaelHarrisonGoffneyGreggFredHagansJamesHenryHilliardDavidHurleyLeeJosephRolandKempJohnKendallRobertLevineGeraldLinderDouglasLyonsMarcumIICharlesMcCleesHughMcCulleyLarryMeyer
fun run COMMiTTEE
Fred Bosse
Hon. Julie Countiss, First Court of SeepanAppealsParseghian, Beck Redden, LLP
EXEMPLArY SErViCE TO THE LEGAL PrOfESSiOn And COMMuniTY
Jeffrey McPhaul, Locke Lord LLP
Rusty Hardin, Rusty Hardin & TiffanyAssociatesLarsen, Harris County District Attorney’s Office
HABiTAT fOr HuMAniTY COMMiTTEE
Hon. Keith P. Ellison, United States District Court, Southern District of Texas
Amber Morrison, R. Reese & NicoletteAssociatesZulli, Duane Morris LLP
President’s s pecial r ecognition awards
HBA OiL, GAS & MinErAL LAW SECTiOn (now Energy Law Section)
HBA LiTiGATiOn SECTiOn Chaired by Bridget Vick, Hunton Andrews Kurth LLP
50-Year Lawyers
Ken Krock, Rapp & Krock, PC
Hon. Beau Miller, Harris County Civil Administrative Judge and Judge of the 190th District Court Hon. Daryl Moore, AZA Law Hon. Kim Ogg, Harris County District Attorney
Rick Houghton, Smyser Kaplan & Veselka, L.L.P.
C. Thomas Behrman
PrOfESSiOnALiSM COMMiTTEE
James
Robert Bramlette
Tara McElhiney, Morgan, Lewis & Bockius LLP
The H ba would like to recognize our 50-year lawyers
Amy Allen, Gray Reed
Stephen
Terrance Baggott
GOLf TOurnAMEnT COMMiTTEE
Visit www.crowe.com/disclosure for more information about Crowe LLP, its subsidiaries, and Crowe Global. © 2022 Crowe LLP. MBV2300-001F Texas Globalvalues.reach. This year, the teams at Houston-based firm Briggs & Veselka and its subsidiary, Pathway Forensics, joined Crowe LLP, a public accounting, consulting, and technology firm with offices around the world. Crowe offers a variety of services and solutions for legal departments and law firms. • Forensic accounting and litigation support • Business valuation • Family law forensic accounting • Digital forensics and incident response services • Legal management consulting Explore more on crowe.com. thehoustonlawyer.com July/august 2022 31
are you involved with other profes sional or community organizations?
Christopher V. Popov discusses the importance of family, civic engagement, and promoting access to justice.
what are your areas of specialty and what firms have you worked with in your legal career?
what do you think is the role of the organized bar in society today?
32 July/august 2022 thehoustonlawyer.com
For fitness, I play tennis, run the Rice trail, do yoga, and on occasion, I lift weights. I am a big music fan—both live and recorded—and I love discovering new artists. I am passionate about cook ing, gardening, and pleasure reading, although I do less of things these days than I would like to admit. My favorite podcasts include Milk Street Radio and All Songs Considered. And I cherish fam ily time. For me, family time has involved lots of cheering for my kids at soccer fields and track stadiums, weekend din ners at home, and memorable family vacations ever year.
what are some of your hobbies and Chris:interests?
Chris: I am a first-generation American; my dad immigrated from Sofia, Bul garia in the early 1970s, and he met my mother shortly thereafter. She is from a large German Catholic family in Wiscon sin. I have one older brother. My parents and my brother’s family all live in Baton Rouge.Imet
where were you born and where did you grow up?
Chris: Bar associations play a key role in preserving and elevating the profes sional identity of lawyers and of the legal system as a whole. The HBA’s mission statement says how we do that—we serve the needs of Houston-area lawyers and we enhance the legal profession by promoting professionalism, access to justice, the rule of law, equality, educa
Tell us about your family.
christopher V. Popov
where did you go to college and law Chris:school?
Chris: I am trial lawyer. Most of the cases I try involve commercial contracts, business torts, environmental incidents, or intellectual property matters. My first job out of law school was as a judicial clerk for Judge James L. Dennis on the Fifth Circuit Court of Appeals in New Orleans. As soon as my clerkship ended, I joined Vinson & Elkins, which has been my professional home for my entire career in private practice. I started my career with V&E in our Austin office. I moved to Houston in 2010.
what prompted you to pursue a career in law?
my wife, Annsley, while we were students at LSU, and we got married just before my third year of law school. We have two children. Our son, Preston, is a freshman at the University of Texas. And our daughter, Palmer, is a freshman at Episcopal High School here in Houston.
I got my undergraduate degree in economics from Louisiana State Univer sity. After graduating from LSU, I went to the University of Texas School of Law, and earned my JD in 2001.
Chris: I was born in Milwaukee, Wiscon sin. Not long after I was born, we made our way down to Baton Rouge, Louisiana, which is where I grew up.
become a lawyer. People started telling me that I would be good lawyer right around the time I started speaking in full sentences.Ilovestorytelling and argument. I love competition. I love people. And I’m motivated by principle. I supposed those things lined up in a way that drove me to the law.
Chris: I stay involved with the University of Texas School of Law in several ways. I am a director on the board of the Texas Law Review Association. I lead our firm’s annual fundraising efforts for the law school, and I have been involved with the Houston-area alumni group for sev eral years.
Chris: One of the gifts of practicing law at a large firm like Vinson & Elkins is the opportunity to be mentored by so many brilliant lawyers with different tempera ments, talents, and convictions. A few of the many current and former V&E lawyers who have mentored me over the years include Bill Dawson, Walter Stuart, Jim Thompson, Pat Mizell, Harry Reason er, Don Wood, Marie Yeates, Gary Ewell, Tracey Davies, David Blanke, Mike Marin, Tom Leatherbury, and Jennifer Poppe.
who are your mentors?
An Interview with HBA PopovChristopherPresidentV.
Chris: There might have been a time in my life when I wanted to be an astronaut or a soldier or a police officer, but if so, I can’t remember it. As far back as I can recall, my professional goal had been to
and the Dispute Resolution Center. Of course, these organizations are not new, so we’re not creating them from scratch. It’s really more a matter of using the HBA’s platform, the reach we have to our membership, to raise the profile of these affiliated organizations and channel more people through them. That’s something that we’re measuring every day.
The answers to these rhetorical ques tions should drive us all towards some amount of civic involvement that goes beyond the billable hour, or the contingent fee, or the bottom line. Bar associations, like the HBA, play a key role in rounding out our civic engagement and professional fulfillment. And they help us build healthy, professional networks that go beyond our law firms and outside the narrow practice specialties that we develop over time.
Chris: We are focusing on driving mem ber engagement through three key initia tives. First, we are launching a President’s Speakers Series, which is going to bring legal luminaries and academics to Hous ton to discuss some of the biggest legal issues of the day. The goal is to promote civic engagement and to elevate the dis course over legal issues that dominate the headlines, yet tend to get superficial treat ment by mainstream media. This bar year, we will be featuring discussions on legal issues that emanate from recent Supreme Court decisions, including voting rights, abortion, gun rights, speech and online censorship, and the payment of amateur athletes through name, image, and like ness
Second,rights.we are working to promote wellness among the bench and bar. That work includes promoting access to sup port programs available to lawyers in cri sis. But it will also include subtle changes in ways we interact. For example, having nonalcoholic cocktails available at all bar events. And it will involve promoting the bar’s many service activities as a means of promoting connection and mental health. That will include, for example, encouraging members to participate in our Fun Run or our Golf Tournament, to volunteer at the Food Bank, or reading to school children during Law Week. That engagement is not only good for the com munity, but it’s also good for the lawyers who engage. It’s well documented that people who give their time to help others through community and organizational involve ment have greater selfesteem, less depres sion, and lower stress levels than those who don’t.Finally, we are go ing to be putting en ergy and resources intoaccesspromotingtojusticethroughouraffiliatedorganizations,includingtheHoustonVolunteerLawyers,theHoustonLaw
In addition to these outward-facing ini tiatives, the bar is working hard on some “back-office” initiatives that will serve the membership in the years to come. We recently hired a new deputy executive di rector of membership, whose sole job will be to grow the membership of the HBA and to enhance the quality of the member experience. We are in the process of re newing the HBA’s lease, with a focus on finding a physical space that will better serve our members’ needs and the work we do as an organization. And we are continuing to benchmark our workplace to ensure that we attract and retain the talent we need to deliver on our mission.
what areas will you focus on during your administration and why?
thehoustonlawyer.com July/august 2022 33
yer Referral Service,chris at his office
what do you see as the role of the president in the houston Bar Chris:association?
The good news is that we are returning to business as usual. Opportunities for fellowship, like our annual Harvest Celebration, are back in full force. Our sections are hosting in-person CLEs and meetings again. And our committees are back to hosting events, which will give you opportunities to reconnect with colleagues whom you haven’t seen in a while, and give you a chance to do some good for your community and your profession.
tion, and service.
Chris: Engage with your bar and en gage with your community. Two years of pandemic-driven isolation has hurt our community in so many ways. A new generation of lawyers was deprived of the mentorship that comes from being in the office and the courtroom and the board room, and from watching more experi enced lawyers in action. Isolation has in creased depression and substance abuse among lawyers and the community at large. And pandemic-related safety mea sures temporarily halted so many of the ways that we have historically supported our community, through engagement with our public schools, through pro bono ad vice and intake clinics, and through nonlegal community service projects.
This is important work. The private practice of law is hyper-focused on advancing our clients’ interests—as it should be. But if we spend our time ex clusively on representing clients who can afford to pay us, have we really achieved the goal of promoting access to justice? Are we ensuring that we live in a fair and just society? Who will educate and inspire the next generation of lawyers? Will we be happy and fulfilled professionals if we are disconnected from one another and our community as a whole?
what is your message to hBa members as we begin the 20222023 bar year?
The HBA is a massive organization that does more in a day than even our most dedicated members might imagine. No practicing attorney could possibly manage every aspect of the bar. Our best presidents have helped to unite the membership and to channel the energies of our professional staff towards some key initia tives. I see the president’s role as focusing the bar’s key metrics of organizational success, and driving us towards those
How about other involvement?community
Why did you join the HBA as a young lawyer?
Kelly: I’m currently reading Such a Fun Age by Kiley Reid as a part of the HYLA Book Club. Anyone who knows me also knows that I love true crime.
What’s one piece of advice for young lawyers?
Kelly: First, take care of yourself! Second, use your talents to help others. Take on a pro bono case, offer ad vice to a law student, join an HBA committee, or volunteer with a local nonprofit!
Young Lawyer Spotlight
Kelly: I graduated with honors from UT Law in 2016.
Kelly Hanen
Law school and graduation year
Kelly: This is something that can be so difficult, espe cially when you’re first starting out! But taking care of your physical and emotional health is so important. I love to run and find that it can be really meditative. I also enjoy traveling. Most recently, I was able to combine those two hobbies by running the Paris Marathon (along with my fiancé (Jeb) and Judge Hanks)! When I’m not traveling, I enjoy spending time with my friends, family, and my sweet rescue dog, Bruce. What’s the latest book you’ve read or podcast you’ve listened to?
What is your firm and practice area?
Kelly: For the past few years, I’ve been a co-chair of the Membership Committee and Professionalism Com mittee. This year, I have the honor to serve as an ex-officio member on the HBA Board of Directors.
34 July/august 2022 thehoustonlawyer.com
What are you involved in within the HBA?
What keeps you grounded outside of the practice?
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Kelly: Six.
Kelly: I joined the HBA as a young lawyer to be engaged in the community and to meet other attorneys.
Kelly: In addition to serving as the presi dent of the Houston Young LeaguememberCommittee.HoustonandonHoustonaAssociation,LawyersIammemberoftheCommitteeForeignRelationstheTexasLawSteeringIamaoftheJuniorofHouston,
Kelly standing in front of the Arc de Triomphe in Paris.
Kelly with her fiancé, Jeb, and rescue dog, Bruce.
volunteering at the Houston Area Women’s Center. I am also the co-chair of the Texas Law Class of 2016.
Kelly: I am a senior associate at Baker Botts L.L.P. in the litigation department. Years of practice
T
in p R o F ession A lism
thehoustonlawyer.com July/august 2022 35
he “rule of law” is a foundational principle of both our nation and, in my view, attorney professionalism.
The rule of law long has been recognized as a crucial mechanism by which stability is secured and the peaceful resolution of tensions and disputes occurs in a civil society. In the United States, we rely upon law to fulfill the promises of equality, freedom, and justice in our founding documents. The rule of law prevents the arbitrary exercise of power and is the means by which we strive to achieve equality and protect our citizens’ liberty. In contrast, disrespect for the rule of law threatens despo tism, authoritarianism, and disregard for our basic human rights and freedoms.
susan l. BiCKley Partner, Blank Rome LLP
In my opinion, professionalism is nothing less than the behavior required due to the important role lawyers occupy in our society. We serve not only as representatives of our clients, but as officers of the legal system. Not just “hired guns” who will do anything for a result, we have a special responsibility to embody professional standards which promote and advance the rule of law in our civil society, while zealously representing our clients. Being professional, therefore, means encouraging respect for the law and the administration of justice, and seeking to improve it so, as a nation, we move ever closer to achieving the ideals embodied in our Constitution.
A Profile
As lawyers, we justly should be both proud of, and humbled by, the fact that we are charged with the responsibility to implement and defend the rule of law in our communi ties and, indeed, we are its guardians.
Selection of the grand marshals is based on a robust nomination process through which individu als may be nominated based on their accomplish ments and contributions to Houston’s LGBTQ+ com munity. Once the nominees are submitted to Pride Houston, a committee of former grand marshals reviews the submissions for eligibility and develops the slate of finalists for each category. Travis said he is forever grateful to John Nechman—a former grand marshal and Houston attorney—who championed Travis’s nomination.Aquickreview of Travis’s background makes it easy to see why he was nominated. Travis was a founding member of his firm’s Diver sity Advisory Council when he was in private practice and currently serves as president of the board of directors of the National LGBTQ+ Bar Foundation. He is the past chair of the Houston Bar Foundation and a member of the board of directors of the Texas Access to Jus tice Foundation and the Alley Theatre, to name a few of the many organizations Travis has led or supported. Travis has also chaired numerous philanthropic events supporting the LGBTQ+ commu nity, including the World AIDS Day Luncheon, the Victory Fund Champagne Brunch, the Montrose Center’s Out For Good Gala, Dining Out for Life, the Camp For All Gala, and the Houston Boy choir
36 July/august 2022 thehoustonlawyer.com
By niKKi Morris
T
Shortly before the parade be gan, Travis described feeling joy and gratitude from being surrounded by over 50 of his family members, friends, col leagues—and of course his part ner, Heath—as they posed for a photo. Once they were off, Travis recalled the “throngs of people as far as the eye could see celebrating equity, inclusion, and equality for LGBTQ+ people,” including many of his Shell col leagues and fellow HBA members cheering him on.
If you want to get more involved in supporting your LGBTQ+ col leagues, Travis suggests starting with your organization’s LGBTQ+ employee resource group, attending their events, and volunteering to lead their activities.
Travis Torrence: Leading Houston, Authentically and Unapologetically
Nikki Morris is an associate at BakerHostetler. She is the Off the Record editor for The Houston Lawyer
legal community. “I was so amazed by how many of my fellow HBA members shared information about my campaign with their col leagues, friends, and family members.” The results were announced at the end of April, and the festival and parade were held in June.
OnceLuncheon.nominated, finalists are selected based on a community vote and efforts to fundraise scholarships for LGBTQ+ students. Travis was one of three finalists for his category, and while he actively cam paigned for the role, he also had a “secret weapon” in the Houston
LawyeroustonhThe
ravis Torrence, the global litigation bankruptcy & credit team lead at Shell USA, Inc., is not only an accomplished leader within the Houston legal community, a former champion of Dancing with the Houston Stars, and an honoree of Houston Busi ness Journal’s 40 Under 40. He has also received one of the highest honors bestowed by the Hous ton LGBTQ+ community—being named the 2022 Male-Identifying Grand Marshal of the Houston Pride LGBT+ Celebration®
Travis’ role as grand marshal is not limited to par ticipating in the festival and parade. It also includes attending other events throughout the year, includ ing the annual scholarship gala, and educating the public about the history of Houston’s LGBTQ+ com munity. As Travis explained, “For me, Pride is a chance to celebrate everyone’s ability to live and love authentically and unapologetically while also honoring the legacy of those who fought so hard for the rights we enjoy and those who we have lost along the way to HIV and AIDS.” However, there is still work to be done. Travis explained, “What we need now more than ever before are active and engaged allies who view allyship as a verb that requires consistent action. Allyship begins with educating yourself about the issues affecting the LGBTQ+ community. Real allies intervene when they see people being treated unfairly or systems that yield inequitable outcomes. Allyship involves creating safe spaces so that everyone can bring their true self to work.”
Travis Torrence
off the reCord
We also look forward to collaborating with other HBA sections this year to plan programs on issues where there is an over lapping interest between antitrust and a specific area of the law (includ ing on issues related to consumer protection, energy, entertainment and sports, mergers and acquisitions, and labor and employment). HBA members interested in joining the Antitrust & Trade Regulation Section should visit hba.org
AnTiTruST Tr AdE Enhance Your Practice Try the advantageHBA www.hba.org thehoustonlawyer.com July/august 2022 37
by brandon duKe
In addition to social gatherings, the section is planning CLE presentations in the fall and throughout the bar year for section members, along with private practitio ners, government law yers and officials, judges, economists, and other industry experts.
seCtion spotlight
T
he Antitrust & Trade Regulation Section is made up of a group of Houston-area lawyers who focus on antitrust regulation, litigation, and counseling, including federal criminal enforcement, merger re views, private party litigation, and state law trade regulation. The section has been active in the past by provid ing programs on current trends in antitrust law, with a focus on Texas and courts in the region.
Now that antitrust has become a hot issue over the last few years, both at the state and federal level, it has be come even more impor tant to stay up to date on these trends. The Fed eral Trade Commission and Department of Jus tice Antitrust Division are looking to become more active and take on a broader role in regu lating consolidation and competition in a range of industries. In addi tion, there is antitrust legislation sponsored by both parties currently being considered by Congress that would have a significant impact on federal and state enforcement. And in
Texas, the Office of the Attorney General has been an active enforcer in this area.
Looking Ahead with the HBA Antitrust & Trade Regulation Section
Brandon Duke is a commercial litigator at Winston & Strawn, LLP whose practice in cludes antitrust litigation and counseling. He is the immediate past chair of the HBA’s Antitrust & Trade Regulation Section.
here can you receive a first-class lunch at a first-class restaurant (Brennan’s), including turtle soup (an outstanding entrée), and a forbidding dessert, along with a great legal presentation that will get you at least one hour of CLE and maybe some ethics credit?
The Senior Lawyers Forum, of course. Under the leadership of myself and the Hon. Sarah Springer as co-chairs, 15 se nior lawyers designed programs and se lected speakers to accomplish 2021-2022 HBA President Jennifer A. Hasley’s goals of supporting the military and veterans and improving pro bono services to con sumers.Thecommittee asked all of the lun cheon attendees to volunteer to answer veterans legal questions at the VA clinic and to sign up for LegalLine to answer legal questions for the community.
LawyeroustonhThe 38 July/august 2022 thehoustonlawyer.com
John W. Kelly, Jr. is a 50-year lawyer, admitted to practice law in 1971, who practices as a mediator and an arbitrator. Kelly was the senior manager in the legal department of AT&T until he retired in 2006 as general counsel—Texas operations. Kelly has also served as an adjunct professor of law at the University of Houston Law Center, where he taught Trial Advocacy, as president of the Katy Bar Asso ciation, and as president of the Fort Bend County Bar Association.
John W. Kelly, Jr. and the Hon. Sarah Springer served as co-chairs of the 2021-2022 Senior Lawyers Committee and were recipients of the 2021-2022 President’s Award.
tion disputes involving well-known media personalities—in this instance, involving a professional athlete. Wice’s presentation, Are you Ready for Your Close Up? Ethical Dealings with the Media, did not disappoint. Wice has represented many high-profile defen dants in Harris County Criminal District Court, and he delved into Rule 3.07 of the Texas Rules of Disci plinary Conduct about trial publicity.
We also learned from Poland that, at initial enrollment, a ben eficiary must make the significant decision to elect Medigap/ Medicare Supplement Plan and a separate drug plan or a Medi care Advantage Plan. These and other Medicare considerations are reviewed in Poland’s presentation, which is available on the HBA’sSwitchingwebsite.gears, Brian Wice, a criminal defense attorney, media consultant, and legal expert in media exposure, gave a presenta tion on issues facing lawyers who are dealing with major litiga
Our first Senior Lawyers Forum host ed our popular legal Medicare expert, Bryn Poland. Poland’s presentation, Ten Things You Need to Know About Medicare, was geared toward individuals approaching 65 and older. Poland discussed several Medicare issues relevant to the attendees. For instance, each person turning 65 needs to decide whether to sign up for Part A or Part B. The answer is “yes” to Part A because there is no premium; Part B is more difficult. There are also issues as to when Medicare will pay for a beneficiary to stay at home. Sometimes, a beneficiary may qualify for personal care, but there are limits, and skilled nursing or home health care benefits can be terminated if a beneficiary’s condition is not improving.
by JoHn W. Kelly, Jr.
Finally, we hosted the State of Texas President’s Update by way of 2021-2022 State Bar President Sylvia Borunda Firth and her successor, Laura Gibson. These two powerhouses discussed the U.S. Supreme Court decision in McDonald v. Firth, which effectively ended the chal lenge to the mandatory bar structure in Texas. The case was remanded to the Fifth Circuit Court of Appeals, which required the Texas Bar to provide more detailed information as to budgeting, a legislative program in line with the ruling, and a new process with a neutral third party to resolve expenditure objections.Overall, we had a very successful year as the Senior Lawyers Committee.
Senior Lawyers Committee: 2021-2022 Highlights
W
Moving from criminal defense to the prosecution, we asked Harris County District Attorney Kim Ogg to address bond relief and other issues. She made strong arguments for more funding to increase the size of her staff.
Committee spotlight
endnotes
1. SENIOR LAWYERS COMMITTEE WEBPAGE https://www.hba.org/?pg=SeniorLawyers (last visited Aug. 5, 2022).
MAXXAM, Inc.
McDowellMartin,LittlerHoganGibbsCokinosBoyarMiller|Young&BrunsLLPLovellsUSLLPMendelsonP.C.Disiere,Jefferson&WisdomLLP&Hetherington
Jackson Lewis P.C. Jenkins & Kamin LLP
Horne Rota Moos LLP
Nathan Sommers Jacobs PC Ogletree Deakins Nash Smoak & Stewart, P.C.
Reynolds Frizzell LLP
Johnson DeLuca Kurisky & Gould, P.C. Jordan, Lynch & Cancienne PLLC
Vinson & Elkins LLP
Corporate Legal departments
Law School faculty South Texas College of Law Houston Thurgood Marshall School of Law University of Houston Law Center
Linebarger Goggan Blair & Sampson, LLP
Buck Keenan LLP
Ross Banks May Cron & Cavin PC
Givens & Johnston PLLC
Murrah & Killough, PLLC
Doyle Restrepo Harvin & Robbins LLP Ewing & Jones, PLLC
Plains All American Pipeline, L.P. Quantlab Financial, LLC Rice University
Kane Russell Coleman & Logan PC
TThe Houston bar association 100 club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools, and corporate legal departments with five or more attorneys have become members of the 100 club by enrolling 100 percent of their attorneys as members of the Hba.
Alvarez Stauffer Bremer PLLC
Liskow & Lewis
Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County, Texas Port of Houston Authority of Harris County, Texas 1st Court of Appeals
Pipkin Ferguson PLLC
Strong Pipkin Bissell & Ledyard LLP
Ajamie LLP
Law Feehan Adams LLP
Germer PLLC
CenterPoint Energy, Inc.
Phelps Dunbar LLP
West Mermis, PLLC
Ytterberg Deery Knull LLP
Crady, Jewett, McCulley & Houren, LLP
Susman Godfrey LLP Winstead PC
S & B Engineers and Constructors, Ltd.
firms of 100+ Attorneys Baker Botts L.L.P. Bracewell LLP
Stuart TauntonPCSnyder & Parish
KoonsFuller, PC
Sponsel Miller Greenberg PLLC
14th Court of Appeals
Taylor Book Allen & Morris Law Firm
Hughes, Watters & Askanase, L.L.P. Husch Blackwell LLP Irelan McDaniel, PLLC
Devlin Naylor & Turbyfill PLLC
Shipley Snell Montgomery LLP
Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP
Dobrowski, Larkin & Stafford, L.L.P.
McGinnis
Pillsbury Winthrop Shaw Pittman LLP
LLP
Weycer, Kaplan, Pulaski & Zuber, PC Williams Hart & Boundas, LLP
Zukowski, Bresenhan & Piazza L.L.P.
Government Agencies
firms of 5-24 Attorneys
Join the HBA 100 Club!
Dentons US LLP
Frank, Elmore, Lievens, Slaughter & Turet, FunderburkL.L.P.Funderburk
Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Page & Harding, L.L.P. Scott, Clawater & Houston, L.L.P.
Smith Murdaugh Little & Bonham LLP Sorrels SpencerLawFane LLP
Fizer Beck Webster Bentley & Scroggins Fogler, Brar, O’Neil & Gray LLP
EOG Resources, Inc.
thehoustonlawyer.com July/august 2022 39
Coats | Rose
firms of 25-49 Attorneys Adams and Reese LLP Andrews Myers, P.C. Beck Redden LLP
Abraham, Watkins, Nichols, Agosto, Aziz & Stogner
Peckar & Abramson, P.C.
Hagans Montgomery Hagans Henke, Williams & Boll, LLP
Christian Levine Law Group, LLC
Courtois, LLP
Thompson & Horton LLP Tindall England PC Tracey & Fox Law Firm
Shellist | Lazarz | Slobin LLP
Berg & BradleyAndrophyArantBoult
Yetter Coleman LLP
Norton Rose Fulbright US LLP Porter Hedges LLP
MorrisMehaffyWeberMcKoolMcGuireWoodsLochridgeLLPSmithPCLendaisHollrah & Snowden
Gordon Rees Scully & Mansukhani, LLP
Harris County Attorney’s Office
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Hunton Andrews Kurth LLP
De Lange Hudspeth McConnell & Tibbets LLP
Ramey, Chandler, Quinn & Zito, P.C. Rapp & Krock, PC
Kean | Miller LLP
firms of 50-99 Attorneys AZA Ahmad,LawZavitsanos, Anaipakos, Alavi & Mensing P.C. BakerHostetler LLP Brown Sims, P.C. Chamberlain Hrdlicka Greenberg Traurig, LLP Haynes and Boone, LLP Jackson Walker L.L.P. Morgan, Lewis & Bockius LLP
Royston, Rayzor, Vickery & Williams, L.L.P.
Kilpatrick Townsend & Stockton LLP
Paranjpe Mahadass Ruemke LLP
Shearman & Sterling LLP
Hirsch & Westheimer, P.C. Holm | Bambace LLP
Roach & Newton, L.L.P.
Cummings LLP
Shannon Martin Finkelstein Alvarado & Dunne, P.C.
Wilson Cribbs & Goren PC
Bush & Ramirez, PLLC
Rusty Hardin & Associates, P.C.
Wright Abshire, Attorneys, PC Wright Close & Barger, LLP
Locke Lord LLP
Fisher & Phillips LLP
prohibiting the use of the allegedly similar marks.
LawyeroustonhThe
endnotes
• Chick’s, a Bryan, Texas, business with a chicken mascot that Buc-ee’s claimed was confusingly similar to the Buc-ee’s mascot. The case, filed in 2013, was later settled out of court, according to an article in trade publication CSP.1
For centuries, trademarks have indicated the source of products or services, with implica tions for the product or service quality. In ad dition to protecting the source’s rights, trade mark law protects consumers, ensuring they purchase the goods and services they mean to Inpurchase.theU.S., trademarks originally rested on a common law basis that conveys some trademark protection just by using a name, logo, or other trademark in commerce. Suits to enforce these rights can be filed in state courts. Over time, states created trademark registry systems and granted expanded rights to registered marks.
40 July/august 2022 thehoustonlawyer.com
• On November 8, 2021, Bukys LLC filed a change of name to King Food Mart LLC.
Like Buc-ee’s, many mark owners regu larly monitor the marketplace for infringing or diluting marks and take action to preserve their marks.
• Choke Canyon, a convenience store with an alligator mascot that Buc-ee’s claimed was an infringement on its own mascot, as well as the store con cept, was another target. A federal jury found in favor of Buc-ee’s in 2018.3
1. CSP, Buc-ee’s, Chicks Working on Settlement (May 30, 2013), news/buc-ees-chicks-working-settlement.https://www.cspdailynews.com/company-
3. Gabrielle Banks, Buc-ee’s wins federal court trademark fight against competitor Choke Canyon, HOUSTON CHRONICLE (May 22, 2018, 7:20 AM), gator-12934353.php.Buc-ee-s-beaver-trademark-texas-choke-canyon-chron.com/news/houston-texas/houston/article/https://www.
Bukys LLC
In its most recent lawsuit, negotiations be tween Buc-ee’s and Bukys LLC were not pub lic, but the following facts in public records imply that a settlement was reached:
Buc-ee’s Trademark Actions
Buc-ee’s has a longstanding record of seek ing to maintain protection of its marks, hav ing previously prevailed in various claims. These include:
In 1946, the Lanham Act (now codified at 15 USC § 1051) was passed. This legislation establishes causes of action for trademark infringement and trademark dilution. It also provides for injunctions and damages.
2. Heather Alexander, Beaver wars: Buc-ee’s takes on rival store in Beaver logo dispute, HOUSTON CHRONICLE (July 14, 2014, 3:48 PM), Texas-convenience-store-5625832.php.news/houston-texas/texas/article/Buc-ees-sues-rival-https://www.chron.com/
Trademarks
I
f you live in Texas, you have certainly seen Buc-ee’s gas station signs along the interstate, some of them 125 miles or more before the exit to the advertised location. The billboards feature a cartoon drawing of the chain’s mascot, a bucktoothed beaver, and the distinctive curly font.
• Frio Beaver, a Concan, Texas, grocery store with a beaver mascot gave rise to a similar claim. The case settled in 2014, according to a news article in CSP, and the competitor removed the signage and promotional materials depicting its beaver mascot.2
Buc-ee’s Protects Its Trademarks by Taking Another Bite Out of CompetitionIts
legal trends
By JenniFer sMith
Jennifer Smith is director of communication and associate corporate counsel at PPI Quality & Engineering, an oilfield services company. She has worked in the oilfield industry for more than 20 years.
Formed in 1985 in Lake Jackson, Texas, Buc-ee’s has been steadily expanding inside and outside of Texas, including in Alabama, Georgia, and Kentucky.
• On October 20, 2021, Buc-ee’s filed suit against Bukys LLC.
In 2021, several news outlets reported that Buc-ee’s Ltd. had filed suit against a Sugar Land-based small gas station chain called Bukys LLC, which was formed in 2020.
However, this system lacked certainty across states and, crucially, failed to establish protection required by U.S. treaties. Treaty requirements spurred federal trademark le gal initiatives, and several federal trademark law regimes were successively established be tween 1868 and the 1940s.
Trademark infringement means the use of an identical or confusingly similar trademark owned by another party. Trademark dilution means an unauthorized use of another’s fa mous trademark on products that do not compete with the products of the owner of the famous trademark but may lead the con sumer to assume that the owner of the trade mark owns the non-affiliated product or ser vice (blurring) or perceive unsavory associa tions with the mark (tarnishing).
As most road-trippers know, the Buc-ee’s locations are all huge, with rows and rows of gas pumps. The distinctive logo is rendered in red over the front doors, crowned with the mascot above. Inside, the bathrooms are spa cious and famously clean, and there is freshly made food like barbecue and gourmet pre pared foods like fudge.
Buc-ee’s complaint, filed in the U.S. Dis trict Court for the Southern District of Texas, alleged that Bukys advertising and names of goods and services used “infringing, confus ingly similar, and diluting, and otherwise violating words and designs . . .” and could allow Bukys to receive the benefit of the goodwill built up by Buc-ee’s. Among the ex amples given in the complaint were the red Bukys logo in a “stylized form similar to Bucee’sBuc-ee’smarks.”sued under the Texas Business and Commerce Code (Tex. Bus. & Com. Code § 16.103), the federal Trademark Act of 1946 (the Lanham Act), and federal and state common law, requesting an injunction
Today, although trademark owners may sue under state law, most trademark litiga tion is filed in federal courts under the provi sions of the Lanham Act.
• On January 5, 2022, Buc-ee’s dismissed the complaint without prejudice.
Under the Lanham Act, a mark may be con sidered “abandoned” and lose its protection if the owner by its act of omission or commis sion causes the mark to become the generic name for the goods or services. Popular ex amples of blurred trademarks include Kleen ex, Xerox, linoleum, zipper, and escalator.
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The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteers Lawyers.
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ATrial:Guide from Start to Finish
The one section of the book that I found to be less helpful was the first sec tion about the law on jurisdiction and venue (as opposed to prac tical and strategic consid erations on these issues).
n many respects, the sale of art and collectibles is like the sale of other goods. Article 2 of the Uniform Commercial Code governs these sales, and disputes arising out of these transactions follow familiar patterns for cases of breach of contract, breach of warranty, and fraud. However, as explored in Armen R. Vartian and Laura C. Tiemstra’s book Buying and Selling Art and Collectibles: A Legal Guide, unique issues emerge when the transaction involves, say, an original painting, rare coin, or signed baseball—issues that the uninitiated may miss when evaluating a sale or purchase.
By Mikal Watts and sawnie a. Mcentire Published by aBa Publishing reviewed by Carly Milner
LegalCollectibles:andAGuide
By armen r. vartian and laura C. tiemstra Published by aBa Publishing reviewed by Carl J. gustaFson
A
s I approached my first trial as a young lawyer, the gap between the theory and legal principles I had learned in law school and the actual practicalities of trial seemed overwhelming. I remember looking for resources about the nitty-gritty of trial practice so that I could at least seem knowledgeable to the partners and clients, but I could not find anything that explained in a detailed way what really happened at trial, how to prepare as well as possible, and why the experienced trial lawyers made the decisions they made. This book fills thatForgap.a young litigator, the advice in this book is invaluable. Mikal Watts, a plaintiff’s lawyer, and Sawnie McEntire, a de fense lawyer, explain each stage of trial from their respective vantage points. But they do not stop at the basic outline of a trial: they provide real-life, practical advice about every stage of trial. What are the real con siderations in selecting venue? What ac tually happens at the pretrial conference, and what battles should you fight? What do judges really think about your laun dry list of objections? How should you organize your exhibits, and why? What are strategies for organizing information during voir dire? The authors use their own war stories—both successes and failures—to illustrate these points. Even for experienced litigators, this
Carly Milner is a trial lawyer at Fogler, Brar, O’Neil & Gray LLP. She is also the Committee and Section Spotlight editor for The Houston Lawyer
I
Buying and Selling Art and Collectibles is divided into six parts—buying and sell ing through a dealer; buying and selling at auctions; buying and selling remotely; illegal items and cultural property; dis pute resolution; and tax issues—and each part is, in turn, divided into several short, easy-to-read chapters focused on well-de fined topics. Written for both practicing attorneys and lay collectors, the guide’s stated goal is to be an introductory text rather than an in-depth legal treatise. The authors succeed in this, but the book is likely to be more helpful to the serious
This topic is nearly impos sible to cover in a summary format, and—especially as the subject of the opening chapters—it seemed out of place with the rest of the book’s focus on reallife practice, rather than an analysis of statutes and case law. I also noticed a few instances in which the same advice popped up in multiple chapters, but the book’s structure allows the reader to dip in and out, reading just the chapters that are most relevant at the time, so this min imal repetition means that a reader will not miss critical points.
LawyeroustonhThe 42 July/august 2022 thehoustonlawyer.com
At 405 pages, this book may seem a bit daunting to those of us who already spend the majority of our workdays read ing and writing, but I found it interest ing, well-written, and an excellent use of time
book offers valuable and well-researched advice. For example, it contains a lengthy discussion of jury selection, including research-based, rather than stereotypical, predictors of juror attitudes. Similarly, the book analyzes trends in multidistrict litigation statistics to help lawyers decide whether an MDL is beneficial for their cli ent. The authors also provide a plethora of tips on trial presentation, such as ideas for types of demonstratives to use with expert witnesses. No matter how many cases you have tried, it never hurts to hear new ideas from other trial veterans. In addition, the dual plaintiff/defense perspective is unique and tremendously helpful for lawyers on both sides. It is easy to get tunnel vision about your own side of the “v” and miss strategic moves the other side may make.
Buying and Selling Art
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‘‘ Written for texttorneyspracticingbothat-andlaycollectors,theguide’sstatedgoalistobeanintroductoryratherthananin-depthlegaltreatise. ” thehoustonlawyer.com July/august 2022 43
thors’ stated goal and the breadth of their subject matter, but it nevertheless limits the book’s usefulness for a professional audience.Notwithstanding its greater usefulness for a lay audience, I still believe Buying
well as personal anecdotes from the au thors’ careers—for example, one author’s role in a test case before the Fourth Cir cuit regarding the Convention on Cul tural Property Implementation Act. The anecdotes made for entertaining reading, and anyone who enjoys a good (and wellwritten) litigation story will find Buying and Selling Art and Collectibles an en grossing, informative read
Carl J. Gustafson is an associate at Norton Rose Fulbright.
and Selling Art and Collect ibles offers much to an at torney new to this field. For instance, before read ing, I was vaguely aware of how high-value auctions are conducted, but Part Two filled in many of the gaps to this process that I had never considered. The book also is full of excel lent case illustrations for critical points of law, as
collector seeking to under stand the key legal issues surrounding a potential purchase or sale than to an attorney who may be ad vising a collector. For this latter audience, Buying and Selling Art and Collectibles provides only minimal as sistance with basic issue spotting.Forexample, in the first (and lengthiest) part of the book concerning transactions through a dealer, the authors walk the reader through basic legal principles most law yers will remember from their 1L con tracts class, with entire chapters devoted to the statute of frauds, statutes of limi tations, implicit and explicit warranties, and conveying proper title. The authors present these concepts in broad strokes, orienting a lay reader to the basic frame work of legal analysis. Where statutes or cases are cited—such as the treatment of the withisoffair,uation.individualevaluatingfocustorneypracticingtheglossesminimaldiscussionthetionprovision,entrusterSec2-403ofUCC—theisandovernuanceaatwouldonwhenansitTobethislevelanalysisconsistenttheau
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5300 Memorial Drive, Suite 270 Houston, TX 77007 (713) 496-1100 www.SorrelsLaw.com
A McAllen lawyer was struck by a Ford Expedition while walking in a crosswalk to the Hidalgo County courthouse on June 20, 2019. She suffered a compound fracture of the right tibia and fibula, as well as a fracture of her fifth metatarsal.
“It is a great privilege to be asked by another lawyer to represent them in any type of matter. And to work alongside them in a two-week trial, with 22 witnesses and over 100 exhibits was my honor,” said Randy Sorrels. Sorrels Law is ready to help lawyers across the state whether on their own case or helping with a client’s case.
$9.3 Million Hidalgo County VerdictWho Lawyers Call When They Are Injured
The lawyer (raised in McAllen and a graduate of Harvard University, Yale University, and SMU Dedman School of Law) and her husband (also a Harvard and SMU Dedman School of Law graduate) initially handled the case. After the third surgery, they asked Sorrels Law Partner, Randy Sorrels, to step in as lead trial counsel. Following two failed mediations, with pre trial offers totaling $375,000, a Hidalgo County jury returned a $9.3 million verdict in damages, finding the traffic engineer who designed the temporary traffic plan governing the crosswalk negligent, as well as the driver of the Expedition. They also found the plaintiff (25%) at fault.
