THL_NovDec21

U.S. Patent Law in Outer Space CFIUS Review of Foreign Investment in the U.S. Aerospace Industry The Evolving Taxonomy and Legal Treatment of Space Explorers The Value of Space Mining: From the Perspective of a Legal Adit Splash and Crash: Satellite Liability and Insurance

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THE HOUSTON

inside...

Volume 59 – Number 3

November/December 2021

Space Law

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contents November/December 2021

Volume 59 Number 3

FEATURES

10

12

A. Hasley and Mindy 3 Jennifer Davidson Tributes to Tara Shockley

10 U.S. Patent Law in Outer Space

By Theodore U. Ro

We Have a Problem: 12 Houston, CFIUS Review of Foreign

Investment in the U.S. Aerospace Industry

By Lana Muranovic and Orga Cadet

Evolving Taxonomy and Legal 16 The Treatment of Space Explorers

By Alyssa “Megan” Sieffert

16

20

Value of Space Mining: 20 The From the Perspective of a Legal Adit

By Charles Lee Mudd Jr.

and Crash: Satellite 24 Splash Liability and Insurance

By Benjamin L. S. Ritz

Aerospace Resources 28 Local and Organizations

By Koby Wilbanks

Law, The Exhibit: 30 Space A Constellation of Resources from

24

32

the Harris County Robert W. Hainsworth Law Library

By Heather Holmes

Your Vote from 32 Casting Outer Space

By Anna Archer

Harvest Celebration 34 72nd Raises over $900,000 in Underwriting for HVL Cover

The Houston Lawyer

Mural Artist: Anat Ronen Photographer: Morris Malakoff Mini Murals is a project of UP Art Studio, a Houston, TX design house that facilitates large-scale art and design projects across the United States.

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: QuantumSUR, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 100, 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., 2021. All rights reserved.

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thehoustonlawyer.com

TRIBUTES TO TARA SHOCKLEY

I

By Jennifer A. Hasley, 2021-2022 HOUSTON BAR ASSOCIATION PRESIDENT

Tara has a special talent with words and has used this skill along t is hard to imagine an HBA without Tara Shockley there to guide with her diplomacy and persuasion to inspire interest and participaus through the many difficult issues that arise within our orgation in the HBA, craft speeches for the board of nization and the legal community. Her dedirectors, and communicate important messagcision to retire after 41 years with the HBA es. We will be eternally grateful for her professeemed like an impossibility. The news was sionalism, charming eloquence, leadership at particularly jolting to me as I was about to bethe HBA including her oversight of The Houston gin my year as bar president, knowing the imLawyer editorial board, and influence over all portance of her historical knowledge, balanced the communications that have connected meminput, and gentle guidance to a successful HBA. bers throughout the years. Tara’s commitment Many HBA lawyers, including me, have known and contributions to the HBA have been an inTara for the entirety of their careers and HBA tegral part of our success and continuity. membership. Tara joined the HBA team on NoShe has given her heart and soul to her work, vember 15, 1980, under the leadership of Presi- Jennifer A. Hasley with Tara Shockley and she will forever remain in our hearts with much gratitude. dent James B. Sales with Otway Denny acting as editor-in-chief of The Houston Lawyer magazine.

Not surprisingly, Tara made quite an initial impression, and soon Jennifer A. Hasley is a partner at Hasley Scarano, L.L.P. where she no one could imagine the HBA without Tara and her unconditional represents attorneys in legal malpractice and grievance matters. She dedication, grace, and congeniality. Tara has been involved in evis certified in civil trial law and serves on the executive committee of ery aspect of the HBA with direct oversight of HBA award-winning the Garland Walker Inn of Court. She is the current President of the projects, member and special events, and community activities.

Houston Bar Association.

T

By Mindy DAVIDSON, EXECUTIVE DIRECTOR OF THE HOUSTON BAR ASSOCIATION

his magazine, like all those before it, contains a wealth of arwith the Bar. She was a founding member of the LGBTQ+ Comticles about Professionalism - to promote a society of respect mittee and has nurtured and supported the Gender Fairness Comtowards our clients, to our community, mittee, the Historical Committee, the Law and and to each other. It is my sincere privithe Media Committee, Judicial Polls Commitlege now to write about a true Professional - my tee, the Bench Bar Pro Bono Awards Committreasured and trusted colleague, HBA Associate tee and Membership Committee, as well as the Executive Director Tara Shockley. recently formed Military & Veterans CommitAt each mention of Tara’s retirement there is tee through each and every one of their proa palpable intake of breath as the receiver of the grams and initiatives. She is a beautiful writer news tries to comprehend the enormous void and can express what someone else wants to to be left after Tara’s highly successful career in say before they have even fully formulated charge of all aspects of the HBA’s voluminous their own thoughts. In addition, she is a foundcommunications activities for more than 40 Mindy Davidson with Tara Shockley ing champion of the Veteran’s Legal Initiative years. Receivers comprise members of HBA committees, members and passionate about serving those who have so selflessly served. of the press and media, members of the boards of directors and staff Through all this, as the consummate Professional, Tara never lets of the Houston Bar Association, Houston Bar Foundation, Houston a call, email, question or request go unanswered. I am personally Volunteer Lawyers, Houston Lawyer Referral Service, and the Disamazed at how she graciously manages all that is put before her. pute Resolution Center, those who have volunteered across numerEarlier this year, at our Annual Dinner, Tara was awarded the Tara ous veterans’ legal clinics near and far, The Houston Lawyer editorial Shockley Award for Exemplary Service and Dedication to the HBA. board, newspapers, and publishers, just to name a few. Next for the She has been all that and a true professional role model to HBA staff receiver comes a slow smile as the receiver remembers an instance, and our members, alike. More importantly, I am proud to claim Tara or many, of interaction with Tara’s kind, gentle and, at the same time as my friend. With gratitude to a true Professional, Congratulations, tenacious, approach to providing whatever that individual needed My Friend. or wanted at the time—at all times with the mission of the Houston Bar Association to serve its members and the Houston community Mindy Davidson is the Executive Director and a proud memfirmly at heart. ber of the Houston Bar Association. Prior to joining the HBA in Tara pioneered our website and the vast resources within. She has February of 2019, she practiced employee benefits and executive been Managing Editor of The Houston Lawyer for her entire tenure compensation law in Houston for over 30 years. thehoustonlawyer.com

November/December 2021

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contents November/December 2021

Volume 59 Number 3

departments

38

40

Message 6 President’s New Year, New You, New Normal

By Jennifer A. Hasley

the Editor 8 From Exploring the Unknown

By Anietie Akpan

SPOTLIGHT 38 VETERAN • The Honorable Marc Carter

By Jennifer R. Jenkins

• Mickey Moon

By Kristen Lee

Spotlight 40 Section Facilitating Changes During

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42

the Pandemic

By E. Phileda Tennant

Profile in professionalism 41 AChristopher V. Popov Partner, Vinson & Elkins LLP President-elect, Houston Bar Association

in professionalism: 42 ALawProfile in the Family • The Boyce Family • The Reeder Family

THE RECORD 46 OFF John Ransom: Ready for Takeoff

By Nikki Morris

46

51

Spotlight 47 Committee HBA County Law Library

Committee: Library Rededicated as Harris County Robert W. Hainsworth Law Library

By Maria Lowry

trends 48 legal An Epic Ruling: The Epic Games

v. Apple Verdict Deals Apple a Big-Little Victory

By Nicolette J. Zulli and Cameron J. Asby

and 36 Past Present Editors-

The Houston Lawyer

In-Chief Tribute to Tara Shockley

The Fifth Circuit Realigns Itself with the Supreme Court in Sanchez v. Smart Fabricators

By Melissa Vest

reviews 51 Media Eric Berger’s Liftoff and His

Account of the Early Days of Elon Musk’s SpaceX Reviewed by Avi Moshenberg

52 Litigation MarketPlace 4 November/December 2021

thehoustonlawyer.com

president’s message

By Jennifer A. Hasley Hasley Scarano, L.L.P.

The Houston Lawyer

I

New Year, New You, New Normal

a mask, there is a feeling of renewal and rejuvenation that t is that time of year for celebration, reflection and maybe comes from seeing people again. Fear not if you missed the a few resolutions. After days, weeks, and months of our Annual Dinner, the LGBTQ+ Halloween Mask-erade Party, personal and professional worlds being defined by a 5-letthe Lawyers for a Beautiful Houston (L4BH) park clean-up, ter word, COVID, there is no better time to look at the the Family Law and Probate Bench Bar Conference, the Milichanges we would like to make and how we can best purtary & Veterans Committee meet and greet, the wildly sucsue them. cessful Harvest Celebration, or any of the holiday outreach Where do you start? First, ask yourself the following quesefforts–there is still so much more to come. tion: What is one thing you could do to improve The HBA website has a calendar of upcomyour law practice? Most people approach this ing events and we look forward to seeing you question by focusing on the day-to-day office soon. procedures and general practice rituals. AnothWhere do you start?

Every member should join at least one er approach is to look at how you can improve your professional profile and development. How First, ask yourself section. Section programs feature first-rate can you accomplish both objectives? Be an active the following speakers and focus on new developments in specific practice areas. For simple practice member of the HBA. question: What is tips, ways to address complex legal issues, or Known for discreetly defending attorneys in disciplinary and professional liability cases, I am one thing you could advice about how to approach a case pendoften called by distraught and concerned lawyers do to improve your ing in a particular court, your colleagues are a tremendous resource and will openly share seeking guidance about a “hypothetical” queslaw practice?” their expertise at a section lunch or social tion, a very real problem, or an ethical crisis. gathering. While some members will be your While I appreciate the calls, am happy to help, competitors, they are also a source of referrals. and welcome new business, not every ethical issue requires Volunteering is good for the soul. There are many ways to my billable services. However, talking through an issue with volunteer through the HBA. You can volunteer to give a speech a colleague who is listening, objective, and able to explore soat one of the weekly seminars sponsored by the Continuing lutions, can lead to a positive outcome for both the attorney Legal Education Committee. You can volunteer to take a pro and client. There is no better way to find a colleague who is bono case through the Houston Volunteer Lawyers. You can knowledgeable and willing to listen than through active HBA sign up for an hour or afternoon of rewarding “work” that involvement. may involve reading to a young group of students, picking up When I talk to law students and lawyers about legal ethics a hammer to build a Habitat for Humanity home, packaging and professional development, my first recommendation is to meals at the Houston Food Bank, or encouraging an athlete join a professional organization. The Houston Bar Association to cross the finish line at a Special Olympics race. No matter offers so many opportunities and resources for lawyers at evyour interest or passion, there is a project that will be as reery stage of their practice. warding for you as it is for the people you help.

There are still six months in the 2021-22 membership cycle, What is the new normal? If there is such a thing as a normal so use it. Take advantage of the incredible educational proday in the practice of law, no one seems to be sure what norgrams, show up for a networking event, and volunteer for mal means today, or even tomorrow. The HBA has maintained a community outreach project. After being in isolation, deits connections with members through virtual platforms and veloping phobias about contact with animate and inanimate carefully planned events because we recognize the imporobjects, and wondering if there was a smile or sneer under

6 November/December 2021

‘‘

thehoustonlawyer.com

tance of collaborative learning and shared information. The young, hard-working associate’s dream of one day making partner and having a corner office is being redefined by the flexibility and freedom of working from anywhere with a cell signal. Traditional hard-wired machines have been replaced by digital apps and communication platforms that provide geographically unconstrained access to information and visual interfaces when participants opt to use the camera feature, although some do so without discretion.

The best way to keep up with change is to be a part of it. HBA members can learn from each other about what works best for your practice area and firm size.

The world is changing, but our dedication to professionalism in the practice of law should not. Whether you are one of the many HBA members who is already engaged, or if you are looking for a new normal, there is room for you to grow with the HBA. One thing that has not changed—we remain “Stronger Together!”

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November/December 2021

7

from the editor

By Anietie Akpan METRO

Associate Editors

Anna M. Archer U.S. District Court

Brooksie Bonvillain Boutet Shipley Snell Montgomery

Kimberly Chojnacki Baker Donelson

Elizabeth Furlow Baker Botts

The Houston Lawyer

Carly Milner Foglar Brar O’Neil Gray

Andrew Pearce BoyarMiller

T

Exploring the Unknown

here’s nothing quite like finding that special slice of pop culture that you connect with on a visceral level. This connection can manifest in a variety of ways: whether identifying with a particular character or finding community among other fans of the latest craze, pop culture often serves as a life raft on which we can stay afloat while braving the storm of life’s everyday stress.

I often wonder if this was the case for my father, whose first connection with American pop culture was with the TV show Star Trek as a teenager who immigrated to this country in the 1970s. He shared an attic apartment with several other wide-eyed young immigrants, who, like my father, hailed from tropical countries with red-clayed roads and balmy winds. Once a week, they would huddle around the humble TV set in the common room downstairs, and watch reruns of Star Trek: The Original Series, finding escapism in the adventures of the Enterprise team: Spock— stoic and intelligent—represented the significance of logic and reason; the chisel-jawed Captain Kirk symbolized a romanticized image of American masculinity. But the underpinning connection of my father and his friends to this show was much deeper than the glittering tales of galactic adventures they watched each week. The parallels between their migrant experience and that of the cosmic conquerors on television were incredibly powerful. Many of them were the first in their families to leave their communities, boldly going where no man had gone before. Mirroring their journeys of crossing oceans to explore a new world, the Enterprise also navigated galaxies full of unknown wonders.

And that is the essence of Space: exploring the unknown.

Just as Space has unquestionably undergone significant changes over the past few decades, so has the legal landscape governing Space: The privatization of space exploration (led by billionaires who have disrupted a market long dominated by government contractors) has forced legal scholars re-evaluate the enforceability of current space treaties. Commercial space travel (which has become synonymous with celebrity space travel)1 has—pardon the pun—skyrocketed, challenging our perception of who we call an “astronaut.” The 2019 case of Anne McClain, who was accused by her estranged wife of accessing her bank account while on a mission aboard the International Space Station, was allegedly the first crime committed in space (which brought up novel issues of extra-terrestrial law).

8 November/December 2021

thehoustonlawyer.com

In this issue, we have curated a series of articles that address the legal, technical and governmental infrastructures shaping the ever-evolving arena of space activities: from a regulatory overview of the evolving classification of astronauts, to insurance coverage of damage caused by space debris, to celebrating the historic space law exhibit at the Harris County Robert W. Hainsworth Law Library, we hope you enjoy this issue which truly captures how space is the next legal frontier. And in continuing with our Veteran Spotlight Series, this issue will feature the Honorable Marc Carter (Schaffer, Carter, Kennedy & Mays), founder of the first veterans’ treatment court in the State of Texas, and Mickey Moon (CenterPoint Energy), who reflects on his service as a young Army private in the 1980s. A big thanks to Avi Moshenberg and Michael Wynne for serving as guest editors for this issue!

Finally, on behalf of The Houston Lawyer and the Houston Bar Association, I dedicate this issue to the brilliant Tara Shockley who will be retiring after tirelessly serving this publication, the bar association and legal community for over forty years. She is the embodiment of a true servantleader who has enriched our lives in innumerable ways. In this issue—the final issue she has worked on after serving as Managing Editor for four decades—you will find several tributes from members of our profession sharing their reflections of working with Tara, as well as their congratulations and warm wishes as she begins the next exciting chapter of her life.

Tara, you are a titan! We are all better human beings for having you in our lives. There could never be enough words to tell you the difference you have made!

Stay safe, be kind to one another, and as always, thank you for reading The Houston Lawyer.

And in the words of the great Commander Spock: live long and prosper. *Vulcan salute*.

Endnotes

1. Natalie Colarossi, Michael Strahan Latest Celeb Slated for Space Trip: Which Noted Stars Are Next, NEWSWEEK (Nov. 23, 2021, 2:55 PM), https://www.newsweek.com/michael-strahan-latest-celeb-slated-spacetrip-which-noted-stars-are-next-1652616.

Editor’s Note In the July/August issue’s Section Spotlight, “Advocating for Juveniles Through COVID-19,” Judge Dena Fisher was identified as the founder of the Juvenile and Children’s Advocacy Project (JCAP), based at the University of Houston. The program’s founders were UH Professors Katya Dow and David Dow. Judge Fisher oversees the program’s Juvenile Representation Clinic, while Katya Dow continues to run JCAP.

BOARD OF DIRECTORS President

Secretary

President-Elect

Treasurer

First Vice President

Past President

Jennifer A. Hasley

Greg Moore

Chris Popov

Diana Gomez

Daniella Landers

Bill Kroger

Second Vice President

David Harrell

DIRECTORS (2020-2022)

Kaylan Dunn Robert Painter

Collin Cox Pamela Medina

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Managing Editors

Tara Shockley and Maggie Martin

HBA office staff Executive Director.......................... Mindy G. Davidson Controller ....................................... Angela Crenwelge Director, Marketing and Communications .......................... Maggie Martin Director of Education................. Ashley G. Steininger Education Assistant.................. Christina Treviño Receptionist and Education Assistant ..................... Alli Hessel Director of Projects................... Bonnie Simmons Projects Assistant and HR Coordinator........................ Amanda McLeroy Director of Membership and Technology Services................. Ron Riojas Membership Assistant .............. Ashleigh Keith Database Assistant .................. Leo Skelly

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By Theodore U. Ro

U.S. Patent Law in Outer Space

F

or decades, commentators and scholars have predicted that a new era of outer space activities was imminently upon us.

This optimistic perspective has generally failed to materialize.

However, a recent confluence of technological development, economic factors, the discovery of large amounts of water ice on the Moon, and governmental policies has established the requisite foundation for a commercial space revolution. According to the Space Foundation, a space advocacy nonprofit organization, the total money spent on outer space activities in 2020 was $447 billion worldwide, with 80% of that figure involving commercial—versus governmental—space activities.1 Moreover, there is a substantial amount of untapped economic potential in outer space activities, including space tourism and the mining of asteroids, and it is likely that investment in these fields will continue to grow.2 As these and other activities in outer space depend upon technology, patent attorneys stand to benefit from this emerging industrial sector.

But as is often the case, technology has moved faster than the law. This phenomenon certainly applies to patent law. But does patent law even apply in outer space? Answering this fundamental question requires an examination of international space law.

International governance of outer space activities began with the seminal instrument of international space law, the 1967 Outer Space Treaty (“OST”).3 The OST lays out a framework of high-level principles for international governance of outer space activities, and additional treaties have since elaborated on these principles. Notwith10 November/December 2021

standing these agreements, many legal gaps remain. Therefore, it is often left to individual signatory nations to fill in these gaps.

One of these gaps is associated with the fact that many nations’ domestic laws are based on strict, traditional notions of territorial jurisdiction. Courts in the United States have generally gravitated toward strict, traditional notions of territorial jurisdiction when interpreting U.S. patent law.4 These notions are supported by the definition of “United States” in U.S. patent law to mean the United States of America, its territories, and its possessions.5 Yet under the OST, nations are prohibited from establishing a territorial claim to any area of outer space based on the Res Communis Principle (the “Principle of NonAppropriation”).6 Stated otherwise, the United States, or any other nation, cannot lay a territorial claim to any area of outer space—for example, the moon, Mars, or even a solitary asteroid. Thus, upon first blush, applying U.S. patent law in outer space is seemingly impossible because no traditional claim of territorial sovereignty can be established in outer space.

thehoustonlawyer.com

However, the OST embraces the principle of national jurisdiction for objects launched into outer space.7 This principle provides a means for a nation’s patent laws to be extended into outer space. Article VIII of the OST established the National Jurisdiction Principle (the “Registration Principle”) wherein it states, inter alia: “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.”8 The National Jurisdiction Principle is further elaborated in the 1976 Registration Convention.9 The net effect of the National Jurisdiction Principle is that the domestic laws and regulations of a nation on whose registry an object (e.g., a “space object”) launched into outer space (e.g., a “State of Registry or Registration”) can apply in outer space. U.S. patent attorneys should be familiar with the basis of this principle because it is effectively synonymous with the “floating island principle” (the “Law of the Flag Doctrine”) associated with U.S. flagged ships and aircraft.10 Based on the National Jurisdiction Principle, it naturally follows that a nation’s patent laws can extend into outer space. However, irrespective of whether a nation has ratified the OST, before a domestic court can recognize an extraterritorial expansion of a nation’s laws, the domestic court generally requires an established exception. Outer space certainly represents an exception to traditional territorial boundaries.

In 1975, the lack of an established ex-

‘‘

Outer space certainly represents an exception to traditional territorial boundaries.”

ception was addressed in the U.S. Patent and Trademark Office Board of Appeals.11 The Board considered a rejection of claims based on processing oxygen from lunar surface materials. The patent application’s specification described use of the claimed process to occur on the Moon. The patent examiner’s rejection was partially based on an argument that U.S. patent law does not extend to inventions whose “process is to be carried out outside the United States.”12 The Board rejected the patent examiner’s argument by citing Article VIII of the OST, thereby demonstrating its prioritization of international space law over U.S. patent law.

Fifteen years later, Congress validated the Board’s decision through the codification of Title 35, Section 105 of the United States Code—Inventions in outer space— which explicitly extended U.S. patent law into outer space. Arguably, the act recognized the obligations of the United States under Article VIII of the OST to retain jurisdiction and control over a space object and over any personnel thereof with respect to U.S. patent law: “Any invention made, used or sold in outer space on a space object or component thereof under the jurisdiction or control of the United States shall be considered to be made, used or sold within the United States for the purposes of [U.S. patent laws].”14 Thus, for example, an invention conceived of, or first reduced to practice on, a U.S.-registered spacecraft (whereby registration takes place under the OST and Registration Convention) is deemed to have been made in the U.S. For purposes of U.S. patent law, then, a space object registered by the United States effectively is U.S. territory (even if the object ultimately winds up in a galaxy far, far away).

Of course, the legal analysis is much easier when a space object is formally registered. If an object is registered in the United States, the federal government retains both jurisdiction and control over the object through the OST.15 However, what if a space object is registered in a country other than the United States, but is operationally controlled from the United States? 35 U.S.C. § 105(a) accounts for this scenario through one of

its three exceptions to the general rule that U.S. patent law applies if a space object or component thereof is under the jurisdiction or control of the United States.16 Specifically, if a space object is carried on the registry of a country other than the United States, U.S. patent law does not apply to the space object or component thereof.17 Assuming none of these exceptions apply and an invention is made, used, or sold in outer space on a space object or component thereof under the jurisdiction or control of the United States, then it follows that U.S. patent law applies to the space object and components thereof. Stated otherwise, the following four combinations are possible for U.S. patent law to apply absent actual registration of a space object: 1. a space object is under the jurisdiction of the United States; 2. a space object is under the control of the United States; 3. a component of a space object is under the jurisdiction of the United States; or 4. a component of a space object is under the control of the United States.

Thus, the operative terms and words for the application of U.S. patent law in outer space are (1) space object or a component of a space object, (2) of the United States, (3) jurisdiction, and (4) control. Until clear definitions of these operative terms and words are established in the context of Section 105, the meaning of these terms and words is ripe for discussion, debate, litigation and possibly, legislation. Stated otherwise, there exists a high likelihood that future patent infringement litigation will center on one or more of these operative words.

As activities in outer space continue to increase, it is reasonable to conclude that patented inventions and patent infringement assertions will follow outer space activities into the “final frontier.” The United States is unique in that it has codified the expansion of U.S. patent law in outer space. However, there are many open issues regarding the interpretation, and, ultimately, the application of 35 U.S.C. § 105. Only time will tell how these open issues will be judicially addressed.

Such an environment offers new opportu-

nities for patent attorneys to voyage into the unknown areas of international space law and U.S. patent law, while clarifying U.S. patent law on Earth with respect to activities in outer space.

Theodore (Ted) Ro is NASA’s Office of the General Counsel-Johnson Space Center Chief Counsel. Mr. Ro primarily practices in IP law, including patent prosecution and patent licensing.

Endnotes

1. The Space Foundation’s Space Report Reveals Five Years of Growth for the Global Space Economy — $447 Billion + Counting, SATNEWS DAILY (July 15, 2021), https://news.satnews. com/2021/07/15/the-space-foundations-space-reportreveals-five-years-of-growth-for-the-global-space-economy447-billion-counting.

2. See e.g., Jim Edwards, Goldman Sachs: Space Mining for Platinum Is ‘More Realistic than Perceived’, BUS. INSIDER (Apr. 6, 2017), http://www.businessinsider.com/goldman-sachsspace-mining-asteroid-platinum-2017-4 (noting that such an asteroid “would crater the global price of platinum”).

3. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 18 U.S.T. 2410 (entered into force Oct. 10, 1967) [hereinafter “OST”].

4. See Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518 (1972); see also Brown v. Duchesne, 60 U.S. 183, 198–99 (1856) (supporting the notion of strict territorial jurisdiction regarding the application of U.S. patent law).

5. 35 U.S.C. § 100(c) (2018); see also id. at § 271(a) (broadly providing that infringement of a patent occurs “within the United States” or when one without authority “imports into the United States any patented invention during the term of the patent”).

6. See OST art. II. 7. See Art. VIII, OST. 8. See Art. VIII, first sentence, OST. 9. Convention on Registration of Objects Launched into Outer Space, Nov. 12, 1974, RES 3235 (XXIX) 10. See Gardiner v. Howe, 2 Cliff. 462, 9 F.Cas 1157 (C.C.D. Mass.

1865) (No. 5219), and M-I Drilling Fluids UK Ltd. v. Dynamic Air Inc., No. 14-4857, 99 F.3d 969 (D. Minn. Apr. 10, 2015) (establishing and upholding the notion of a floating island principle, respectively).

11. See Ex Parte McKay, 200 U.S.P.Q. 324 (P.T.O. Bd. App. 1975).

12. Id at 365.

13. 35 U.S.C. § 105 (2018).

14. Id. § 105(a); see also S. REP. No. 101-266 (1990), reprinted in 36 U.S.C.C.A.N. 4058, 4061 (stating that “under article VIII [of the OST], states retain jurisdiction and control over objects launched into outer space, and personnel aboard such objects”).

15. S. REP. No. 101-266 (1990), reprinted in 36 U.S.C.C.A.N. 4058, 4061–62.

16. The three exceptions are (1) if a space object or component thereof is under the jurisdiction or control of the United States but there is an international agreement to which the United States is a party that specifically identifies and otherwise provides that jurisdiction or control shall reside with another country; (2) if a space object or component thereof is carried on the registry of a foreign state; and (3) if a space object or component thereof is carried on the registry of a foreign state but an international agreement between the United States and the foreign state specifically provides that U.S. patent law applies. 35 U.S.C. § 105(a).

17. Id. (declaring that U.S. patent law does not apply “with respect to any space object or component thereof that is carried on the registry of a foreign state in accordance to the Convention on Registration of Objects Launched into Outer Space.”)

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By Lana Muranovic and Orga Cadet

Houston, We Have a Problem:

CFIUS Review of Foreign Investment in the U.S. Aerospace Industry

W

hen foreign persons, including entities, contemplate buying or investing in a U.S. business, it is not only prudent, but oftentimes necessary, to consider whether the contemplated transaction falls within the purview of the Committee on Foreign Investment in the United States (“CFIUS”). This is especially true in the aerospace industry, on which CFIUS reviews have had a particularly notable impact in recent years.

Composition of CFIUS

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I. Background and Review Process a. CFIUS’s Jurisdiction CFIUS is a federal interagency committee of the U.S. government comprised of nine cabinet-level Executive Branch agencies and offices, as well as various other non-voting offices with national security responsibilities. CFIUS has broad authority to evaluate foreign investments and thehoustonlawyer.com

whether they pose a risk to U.S. national security. If CFIUS deems that a transaction poses a risk to U.S. national security, CFIUS may, in worst case scenarios, recommend to the President to block or unwind the investment. CFIUS has the authority to review covered (1) control transactions, (2) investments, and (3) real estate transactions.

1. Covered Control Transaction A covered control transaction is a transaction that could result in “control” over a “U.S. business” by a “foreign person.”

• “Control”1 is defined broadly as the power—whether or not exercised— to directly or indirectly determine, direct, or decide important matters related to the U.S. business.

• A “U.S. business”2 is any entity engaged in interstate commerce in the United States.

• A “foreign person”3 can be a foreign national, foreign government, or foreign entity, including a partnership, corporation, trust, or other entity organized abroad.

In the context of a merger, acquisition, or other investment involving a foreign interest, these broad regulatory definitions require careful analysis to determine whether a CFIUS review is warranted or likely.

2. Covered Investment CFIUS can review certain non-controlling investments in U.S. businesses. A “covered investment”4 is a direct or indirect investment by a foreign person (other than an excepted investor) that affords the foreign person these rights with respect to a “TID U.S. business [:]” • access to any material nonpublic technical information in the possession of the TID U.S. business; • membership or observer rights on, or the right to nominate an individual to a position on, the board of directors or equivalent governing body of the TID U.S. business; or • any involvement, other than through voting of shares, in substantive decision making of the TID U.S. business regarding certain matters related to

critical technologies, critical infrastructure, or sensitive personal data of U.S. citizens.

Importantly, a “TID U.S. business”5 is one that: • produces, designs, tests, manufactures, fabricates, or develops one or more “critical technologies;”6 • performs certain functions specified in the regulations with respect to covered investment “critical infrastructure;”7 or • maintains or collects, directly or indirectly, “sensitive personal data”8 of U.S. citizens.

3. Covered Real Estate CFIUS regulations extend CFIUS’s jurisdiction to all purchases, leases (including subleases), or concessions involving “covered real estate” in which a foreign person (other than an excepted investor) acquires any three of these four property rights (even if “shared concurrently” with another party): • the right to physical access; • the right to exclude others from physical access; • the right to improve or develop the property; and • the right to attach structures or objects to the property.

Although the definition of “covered real estate transaction” does not automatically include mortgages or other lending transactions, it could cover such transactions if there is “a significant possibility,” because of “imminent or actual default or other condition,” that the lending transaction could result in a foreign person gaining three of the four property rights described above. “Covered real estate” consists of two broad categories: 1) real estate located within, or that will function as part of, a covered port; or 2) real estate located within a certain distance of a military installation or other government facility that is sensitive for national security reasons.9 b. Mandatory vs. Voluntary Filing Parties to a covered transaction involving a TID U.S. business must submit a mandatory filing at least thirty days prior to the completion date of the transaction. A

transaction is covered if (a) a foreign government owns 49% or more of a foreign entity that, in turn, is acquiring 25% or more of a TID U.S. business, or (b) the TID U.S. business performs specified functions (production, design, testing, manufacturing, fabrication, or development) related to critical technologies and would require U.S. government authorization to export or transfer such critical technology to a foreign person involved in the transaction.

If a mandatory filing is not submitted, the parties to the transaction could be subject to a civil penalty not to exceed $250,000 or the value of the transaction, whichever is greater.10 Even if a mandatory CFIUS filing is not required, a voluntary CFIUS filing may be advisable. Submitting a voluntary filing could assure the parties that CFIUS would not review the transaction after closing (i.e., a “safe harbor” from such a later review). Without such a safe harbor, CFIUS could later restrict the transaction, such as requiring divestment by the foreign party.

If a given transaction arguably is within the scope of CFIUS jurisdiction, parties normally will file if they perceive a significant level of CFIUS-related risk associated with the target or the foreign investor.

Many factors inform the parties’ evaluation of the nature and extent of such risk, including (but not limited to) the likely impact of the proposed transaction on national defense requirements; the foreign investor’s nationality and the extent of the investor’s ownership by foreign governments; the target’s involvement in—and ties to—national security-related activity and “critical infrastructure” in the United States; and, the proximity of the target’s assets to sensitive U.S. government locations, such as military installations (which may be known or unknown to the target). c. Review Process and Timeline Whereas mandatory CFIUS filings must be a “declaration,” voluntary CFIUS filings may be either a “declaration” or a “notice.”

Declarations generally involve a shorter filing, no filing fee, and, in the best case scenario, a faster CFIUS review process if CFIUS grants a safe harbor for the transaction. Parties should budget at least two months for a CFIUS declaration process.

At the end of a declaration process, CFIUS could inform the parties that it (a) concluded all action (i.e., is granting a “safe harbor”); (b) is unable to conclude action and is inviting the parties to file a voluntary notice; (c) is unable to conclude action and requests that the parties file a notice; or (d) is unable to conclude action and is selfinitiating a notice review process.

II. Potential and Realized Effect on the U.S. Aerospace Industry Voluntary notices generally involve a more detailed filing, a filing fee up to $300,000, and a longer review/investigation process lasting three to six months. CFIUS notice reviews result in either a safe harbor or a presidential determination, which could result in suspension or prohibition of the transaction.

While companies (particularly startups) in the aerospace industry typically require a great deal of capital, they should be weary of the potential consequences of receiving such capital from foreign investors. They should also be concerned about merging with, or being acquired by, foreign entities. Such companies should consider structuring foreign investments to avoid CFIUS review by being selective about foreign acquirers and preventing them from acquiring board seats, access to nonpublic technical information, or other rights (i.e., “passive investments”).

In 2019, Cloud Constellation, a U.S. company creating a space-based network and cloud data storage service, reportedly walked away from a $100 million investment from a Chinese entity in part because CFIUS identified concerns about the investment.11 The investment was likely a covered investment, highlighting the risk to space industry startups considering foreign capital.

A recent and noteworthy example of a covered control transaction is the acquisition of Momentus Inc. (“Momentus”), a U.S. commercial space company offering in-space transportation and infrastructure services.

While the acquirer, Stable Road Acquisition Corp., is also a U.S. entity, CFIUS reportedly reviewed “the [historical acquisition of interests in and] foreign ownership and control of Momentus by Mikhail Kokorich, Momentus’ co-founder and former Chief Executive Officer, and Lev Khasis, Momentus’ co-founder and former director, and their associated entities.”12 Momentus purports to move com-

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mercial satellites between orbits by using a water-based plasma propulsion system that the Biden Administration is reportedly concerned will fall into the hands of the Russian government, which the Russian government could use to tail and destroy U.S. satellites and make its own satellites less detectable.13 Mr. Kokorich resigned from his post as CEO and a member of the company’s board in January 2021 “in an effort to expedite the resolution of U.S. government national security and foreign ownership concerns surrounding the Company.”14 Ultimately, on June 9, 2021, Momentus “announced that it ha[d] finalized and signed a National Security Agreement (“NSA”) with the Department of Defense and Department of the Treasury as lead agencies on behalf of [CFIUS].”15 “As part of the NSA, Momentus will be required to implement increased security measures, hire key positions to provide additional oversight, and appoint a CFIUS-approved director to its board of directors to oversee compliance with the NSA’s stipulations.”

Parties to foreign investment in the U.S. should therefore strongly consider notifying CFIUS of a contemplated transaction. Doing so could avoid a surprise CFIUS review years after the transaction closes. U.S. businesses should also conduct thorough due diligence on the backgrounds of potential foreign investors or acquirers, including their other investments and acquisitions (to the extent known or discoverable), to assess the level of risk that CFIUS would find national security concerns related to the contemplated investment or acquisition.

Some companies in the space industry have cleared the CFIUS review process without significant changes to the merger or acquisition. For instance, on May 26, 2021, Kymeta Corporation announced that CFIUS approved a $30 million investment into the satellite connectivity company by a South Korean company.16 In 2020, CFIUS approved a Japanese company’s acquisition of Spaceflight Inc., a U.S.-based satellite rideshare launch provider.17 CFIUS also approved, in the same year, a Swedish company’s deal to acquire SpaceQuest Ltd., a U.S. spacecraft components and engineering company.18 While details regarding these deals do not clearly demonstrate why CFIUS found no unresolved national security concerns, these 14 November/December 2021

cases demonstrate that U.S. companies in the aerospace industry can successfully navigate the CFIUS process with appropriate diligence and planning, among other factors.

The aforementioned examples illustrate the very real effect that the CFIUS review process can have on U.S. aerospace companies, as well as the importance of assessing whether a review is mandatory or advisable early in the investment or deal process, and if so, of coordinating the different parties, including outside counsel, to make an effective and timely filing.

Lana Muranovic is co-leader of BakerHostetler’s Aerospace and Defense Industry team, counsels U.S. and foreign companies regarding a wide scope of international trade matters. She has extensive experience related to U.S. import and export controls, economic sanctions and embargo programs, anti-bribery laws and regulations, and laws and regulations governing foreign investment in the United States, and her practice has consistently placed her in front of a variety of federal agencies and committees, including the U.S. Committee on Foreign Investment in the United States (CFIUS).

Orga Cadet’s international practice focuses on the intersection of trade, technology, and national security. Drawing from a background in international relations and government negotiations, he helps educate clients on complex trade and national security statutes and regulations, including in the context of CFIUS reviews, export controls, and sanctions.

Endnotes 1.

2.

3.

4.

5.

6.

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31 C.F.R. § 800.208.

Id. § 800.252.

Id. § 800.224.

Id. § 800.211.

Id.§ 800.248.

The term critical technologies means the following: a. Defense articles or defense services included on the United States Munitions List (“USML”) set forth in the International Traffic in Arms Regulations (“ITAR”) (22 C.F.R. parts 120—130); b. Items included on the Commerce Control List (CCL) set forth in Supplement No. 1 to part 774 of the Export Administration Regulations (EAR) (15 C.F.R. parts 730—774), and controlled – c. Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or d. For reasons relating to regional stability or surreptitious listening; e. Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 C.F.R. part 810 (relating to assistance to foreign atomic energy activities);

f. Nuclear facilities, equipment, and material covered by 10 C.F.R. part 110 (relating to export and import of nuclear equipment and material); g. Select agents and toxins covered by 7 C.F.R. part 331, 9 C.F.R. part 121, or 42 C.F.R. part 73; and h. Emerging and foundational technologies controlled under section 1758 of the Export Control Reform Act of 2018 (50 U.S.C. 4817). i. Id. § 800.215.

7. “The term critical infrastructure means, in the context of a particular covered control transaction, systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems or assets would have a debilitating impact on national security.” Id. § 800.214.

8. Id. § 800.241. The term sensitive personal data includes, among other things, both identifiable data and genetic information. The ten categories of identifiable data that constitute sensitive personal data are: 1. Financial data that could be used to analyze or determine an individual’s financial distress or hardship; 2. The set of data in a consumer report, as defined under 15 U.S.C. § 1681a, unless such data is obtained from a consumer reporting agency for one or more purposes identified in 15 U.S.C. § 1681b(a) and such data is not substantially similar to the full contents of a consumer file as defined under 15 U.S.C. § 1681a; 3. The set of data in an application for health insurance, long-term care insurance, professional liability insurance, mortgage insurance, or life insurance; 4. Data relating to the physical, mental, or psychological health condition of an individual; 5. Non-public electronic communications, including email, messaging, or chat communications, between or among users of a U.S. business’s products or services if a primary purpose of such product or service is to facilitate third-party user communications; 6. Geolocation data collected using positioning systems, cell phone towers, or Wi-Fi access points such as via a mobile application, vehicle GPS, other onboard mapping tool, or wearable electronic device; 7. Biometric enrollment data including facial, voice, retina/ iris, and palm/fingerprint templates; 8. Data stored and processed for generating a state or federal government identification card; 9. Data concerning U.S. Government personnel security clearance status; and 10. The set of data in an application for a U.S. Government personnel security clearance or an application for employment in a position of public trust.

9. See id. § 802.211.

10. Id. § 800.901.

11. Caleb Henry, Why Cloud Constellation Turned Down $100 Million, SPACENEWS (Nov. 29, 2019), https://spacenews. com/why-cloud-constellation-turned-down-100-million.

12. Summary of Status and Recent Developments with Respect to the Momentus Business Combination, SEC Proxy Statement, Amendment No. 1 to Schedule 14A (Apr. 7, 2021).

13. See Jack Detsch, Russian-Founded Space Start-Up Faces National Security Pressure, FOREIGN POLICY (May 12, 2021, 5:15 PM), https://foreignpolicy.com/2021/05/12/ russia-space-momentus-biden-spacs.

14. Momentus Names Dawn Harms Interim CEO, BUSINESS WIRE (Jan. 25, 2021, 7:00 AM), https://www.businesswire. com/news/home/20210125005265/en/Momentus-NamesDawn-Harms-Interim-CEO. 15. Press Release, U.S. Sec. and Exch. Comm’n, Momentus Finalizes and Signs National Security Agreement (June 9, 2020) (on file with author).

16. Press Release, Kymeta, Hanwha Systems $30M Investment Into Kymeta Corp. Approved by CFIUS (May 26, 2021) (on file with author).

17. Jodi Sorenson, Spaceflight Inc. Acquisition Finalized, SPACEFLIGHT (June 12, 2020), https://spaceflight.com/spaceflight-inc-acquisition-finalized.

18. Press Release, AAC Clyde Space, AAC Clyde Space Completes Acquisition of U.S. Spacequest (Dec. 30, 2020) (on file with author).

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By Alyssa “Megan” Sieffert

The Evolving Taxonomy and Legal Treatment of Space Explorers “To confine our attention to terrestrial matters would be to limit the human spirit.”

T

–Stephen Hawking

he United States’ mission to achieve a slew of firsts in commercial human spaceflight has ignited. Whether it’s the first of a nation, firstborn in a family, first of a profession, first to reach a specific goal, first to fly on a particular mission, or, if it’s just the first time for one particular individual to step onto the launch platform, slip into a crew vehicle, buckle in, and experience the rush of spaceflight, adventurers from all parts of the country are searching for seats on the next flight to space. To help explorers take the first step in their next adventure, a number of regulations have been passed to increase access to space through the commercialization of launch activities. As new individuals

16 November/December 2021

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are given access to space, whether that’s adults who were previously impeded in their path to the stars or newly inspired youths seeking to rouse a new generation, one question lingering in many minds is “what will we call these explorers?” Framing out protections for folks who are participating in this mission to commercialize space exploration and operations, the U.S. has started to define roles aboard crew vehicles based on an individual’s responsibilities and the government’s involvement in that person’s flight. As discussed below, explorers of all backgrounds and with all futures open to them are invited to consider whether to pursue employment with the government or commercial entities and whether to take on the training required to take flight.

U.S. Regulatory Framework Above the Kármán Line (sixty-two miles above the ground), the international community applies the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (also known as the “Outer Space Treaty” or “OST”) for the governance of human spaceflight activities.1 The OST then delegates individual rulemaking and jurisdiction to the “launching state” for each vehicle carrying passengers.2 For the U.S., regulations for private space explorers are promulgated by the Department of Transportation’s Federal Aviation Administration (“FAA”). The FAA is responsible for issuing licenses to commercial companies for launches and reentries through which spaceflight participants and potential astronauts reach orbit. Any licensed launch or reentry is then subject to regulations protecting spaceflight participants.3 Lawmakers have avoided overregulation of human spaceflight, stemming from the Commercial Space Launch Amendments Act of 2004 (P.L. 108-492), by mandating a “learning period” for companies to establish safety standards for future spaceflight participants or

astronauts. However, participant classification (which ties to liability and informed consent requirements) has come into sharper focus with recent launches

by Blue Origin, Virgin Galactic, and Space Exploration Technologies Corp. (“SpaceX”).

ISS Missions and Governance As noted by the Congressional Research Service in 2020, “there are currently no federal rules related to suborbital operations or to the operation of privately owned space stations and private vehicles in space.”4 Where Congress constrains the authority of each executive agency very narrowly—as recently affirmed following a COVID-related residential eviction ban from the Centers for Disease Control and Prevention (“CDC”)5 —after launch, one may ask “what happens to spaceflight participants?” At present, all space adventurers utilize terrestrially based launch vehicles and are subject to the OST, plus FAA regulations if launching from U.S. soil or aboard a U.S. launch vehicle. Thus, for companies operating between the stratosphere and the low mesosphere, rules are clear and well defined by FAA requirements. However, for operations in the exosphere, there are no clearly defined rules for participation in low Earth orbit. Specifically, the ISS (the only continuously occupied human vehicle orbiting the Earth providing access to the U.S.) flies at an average altitude of 248 miles above Earth. The Intergovernmental Agreement among Canada, European Space Agency Member States, Japan, the Russian Federation, and the U.S. concerning cooperation on the International Space Station (“Intergovernmental Agreement”) first sets out the operating conditions for international partners to access and utilize the ISS.6 As of September 2021, only explorers flying as an above-described international partner could access the ISS. However, NASA aims to encourage broader participation of Americans in space exploration by enabling private astronaut missions (“PAMs”) to the ISS to facilitate the com-

mercialization of low Earth orbit by U.S. companies (see NID 8600.121: “Use of International Space Station for Commercial and Marketing Activities”). PAMs must use U.S. transportation vehicles that meet NASA’s ISS-visiting vehicle requirements. In 2021, NASA announced the opportunity for up to two PAMs per year (not to exceed thirty days each), dependent on ISS availability. NASA, based on its requirements under the Intergovernmental Agreement, is responsible for

managing the mission opportunities and integrated requirements for all U.S. Onorbit Segment (“USOS”) partners and vehicle traffic to the ISS. But NASA missions always take precedence.

While NASA does not have regulatory authority, through its obligations to its international partners under the Intergovernmental Agreement, NASA imposes requirements on private astronauts accessing the ISS, such as crosswaivers required by the Intergovern-

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mental Agreement, insurance (including coverage for liability, damage to federal government property, third party claims, loss of any property or injury or death of any person on the ISS, and private astronaut life insurance), indemnifications, informed consents, and assumptions of risk.7 And in the continued efforts to spur access and equality in each of the international partners’ participation in maintaining a continuous human presence in low Earth orbit, each partner involved in the ISS is required to sign the crew code of conduct (which requires each ISS crewmember to promote harmonious and cohesive relationships among each other).

As part of a unique arrangement offering private companies access to the orbiting laboratory, Axiom Space will fly the first fully commercial mission to the ISS, with an announced launch date of February 21, 2022. Once docked, the Axiom astronauts are scheduled to spend eight days aboard the ISS. While the explorers may be considered spaceflight participants while in flight and on orbit, the framework and agreements supporting these explorers’ names them private astronauts, which is important because these terms have different legal meanings.

FAA Classifications and Requirements Under the purview of the FAA, space explorers can be spaceflight participants, crewmembers, or government or international astronauts.8 The majority of explorers to this point would be classified as government or international astronauts, which are, respectively, either (i) U.S. government employees acting in the course of their employment or (ii) “designated under Article 11 of the International Space Station Intergovernmental Agreement, by a partner to that agreement other than the U.S., as qualified to serve as an International Space Station crewmember.”9 Government astronauts must then be designated by NASA under (the fortunately or unfortunately numbered) Title 51, which vaguely states that “the Administration shall designate a government astronaut in 18 November/December 2021

accordance with requirements prescribed by [NASA].”10 If an explorer is neither a crewmember nor an astronaut, then the explorer is a spaceflight participant.

services contract, capturing commercial terms; (b) informed consent forms compliant with the FAA’s and State of Texas’ informed consent regulations; and (c) a Blue Origin waiver of claims, waiving Spaceflight Participants the right to bring claims A spaceflight participant is against anyone involved “an individual, who is not in the flight for any losses crew or a government astrothe spaceflight participant A spaceflight naut, carried within a launch incurs, and an assumpparticipant is ‘an tion of risk for all responvehicle or reentry vehicle.”11 individual, who is sibility for any losses susEach spaceflight participant must be informed in writing not crew or a gov- tained by the spaceflight 14 about the risks of the launch Similarly, ernment astronaut, participant. and reentry, including the participants in Virgin carried within a Galactic’s recent fundraissafety record of the launch or launch vehicle or ing campaign (operated reentry vehicle type.12 This informed consent must inreentry vehicle.’ by Omaze), were noticlude: (1) each known hazard Each spaceflight fied of the requirement and risk that could result in participant must be to sign conditions of cara serious injury, death, disriage, a reciprocal waiver informed in writ- of claims, and informed ability, or total or partial ing about the risks consent documents to loss of physical and mental function; (2) that there are of the launch and participate in any flights unknown hazards; and (3) reentry, including won. SpaceX’s sweepdeath, serious injury, or total the safety record of stakes for participation or partial loss of physical or in the Inspiration4 misthe launch or reentry sion also required the mental function may result vehicle type.” signature of releases, nonfrom the flight. For example, the only launch vehicle prodisclosure agreements, vider that can carry participants to the informed consent agreements, waivers, ISS is the Crew Dragon by SpaceX. The export control agreements, and other informed consent waiver for flight particisimilar agreements related to disclosure pants would detail the successful Demoof information and participation in a 2, Crew-1, Crew-2, and Inspiration4 mishigh-risk activity as required by the sponsions. The informed consent may further sor, launch services provider, and the U.S. include such incidents as the Falcon 9 government for participation in their orlaunch on June 28, 2015, from Launch bital flight.

Complex 40 on Cape Canaveral Air Force Station in Florida, where a liquid oxygen Crewmembers tank struck and ruptured the tank dome, As employees or contractors of launch likely resulting from a liberated composvehicle licensees, crewmembers are reite overwrapped pressure vessel within quired to fulfill particular medical and the oxygen tank.13 training requirements before donning Spaceflight participants will likely be their pressure suits and stepping inside required to sign and adhere to unique the vehicle.15 First, each crewmember agreements formulated by each mission trains for his or her role, including abort provider. For example, as part of Blue Oriscenarios and emergency operations.16 gin’s auction of a seat aboard a New ShepaSecond, each crewmember must demonrd, Blue Origin’s publicly released terms strate an ability to withstand conditions required that potential participants sign: such as high acceleration or deceleration, (a) a nondisclosure agreement and launch microgravity, and vibration, while safely

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performing his or her duties so that the vehicle will not harm the public.17 Third, crewmembers with safety-critical roles must possess and carry an FAA secondclass airman medical certificate.18 Additional requirements apply for pilots and remote operators of launch vehicles.19 Second-class airman medical certificates can only be issued by an Aviation Medical Examiner (“AME”).20 AMEs are physicians who can medically certify pilots, but only upon appointment by local FAA Regional Flight Surgeons after completing the required training and meeting continuing medical education requirements. Some examples of major medical requirements for a second-class airman medical certificate include: (a) visual acuity of at least 20/20 and 20/40; (b) normal fields of vision; (c) ability to hear an average conversational voice; (d) no disease condition that manifests by vertigo; (e) no history of psychosis, bipolar disorder, substance dependence, and substance abuse within the prior two years; (e) no history of epilepsy or seizure disorder; (f) no history of myocardial infarction or coronary heart disease; and (g) no history of diabetes requiring insulin for control.21 A major caveat to this rule is that the Federal Air Surgeon may elect to grant a person who doesn’t meet the second-class airman requirements an Authorization for Special Issuance of a Medical Certificate for a specified period. Such authorization can be granted only if the person satisfactorily demonstrates that his or her duties can be performed without endangering public safety.

Astronaut Wings For those who make an extraordinary contribution to space exploration or provide a beneficial service to commercial human spaceflight that merits special recognition, some may earn their astronaut wings from the FAA.22 Individuals who earn their wings through such contributions may be required to satisfy additional requirements. However, crewmembers will earn their wings after (a) flying fifty miles above the surface of the

Earth and (b) demonstrating activities during flight that were essential to public safety or contributing to human spaceflight safety. For vehicles such as Virgin Galactic’s WhiteKnightTwo (which separates from SpaceShipTwo and climbs to space from 50,000 feet) and Blue Origin’s New Shepard (which launches vertically from its launch pad in West Texas), their crewmembers may be entitled to obtain their wings for carrying spaceflight participants and their vehicle operators to the requisite heights.23 On December 10, 2021, however, the FAA announced that it would no longer award astronaut wings to future spaceflight participants and crewmembers.

Conclusion As we have, and will continue to watch, brave men and women launch into the sky and try to reach orbit, the ISS, the Moon, and other planetary bodies, the legal protections surrounding these explorers will continue to expand and define roles, responsibilities, and associated liability. While some may seek to participate in space travel in a more robust way, thus earning their wings or crewmember status (by FAA standards), others may choose to be passengers who are along to watch the Earth fall away and understand more about the cosmos. Still more may take the leap, undertake the training, and experience the marvels of becoming a private astronaut for the opportunity to visit the ISS for up to thirty days. Regardless of the path that any particular explorer takes, the opportunity to be one of only 553 humans (as of September 2021) who have been to space will bring with it new challenges and shape the rules and regulations that apply as humanity continues its outward exploration and expansion of the human spirit.

Here’s to hoping that whether the U.S. sticks with traditional labels such as “astronaut” or “crewmember,” the principles of equality and justice that enabled the innovation to get here will continue to be available to all interested in this extraordinary journey.

Alyssa (“Megan”) Sieffert supports Axiom Space in building humanity’s next home in space as the company’s Contracts & Operations Attorney.

Megan previously served the aerospace community as an attorney-advisor for NASA’s Office of Inspector General after graduating from Pepperdine University School of Law and the University of Southern California.

Endnotes 1. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967).

2. Convention on Registration of Objects Launched into Outer Space, opened for signature Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15 (entered into force Sept.

15, 1976).

3. 51 U.S.C. § 50904(d) (2018).

4. ALYSSA K. KING, CONG. RESEARCH SERV., R46500, THE FUTURE OF SPACE TOURISM 5 (2020).

5. Tiger Lily, LLC v. HUD, 992 F.3d 518 (6th Cir. 2021).

6. Alyssa Megan Sieffert, The International Space Station: Where Humanity’s Incredible Feats Require Immense Worldwide Collaboration, THE YOUNG LAWYER (Aug. 2020), https://www.americanbar.org/groups/young_ lawyers/publications/tyl/topics/space-law/the-international-space-station-where-humanitys-incrediblefeats-require-immense-worldwide-collaboration/.

7. The specific requirements for each PAM provider are uniquely negotiated; however, these were the proposals issued in the June 20, 2020, solicitation from NASA for the “Private Astronaut Mission Liability Framework.” Private Astronaut Mission Liability Framework, NASA (June 20, 2020), https://sam.gov/opp/ad4bfe9315004a4cbfe4cc0716431ce9/view.

8. Id. at (2), (4)–(5), and (20).

9. Id. at (4)–(5).

10. 51 U.S.C. § 20113(n) (2018).

11. 51 U.S.C. § 50902 (2018).

12. 14 C.F.R. § 460.45(a) (2021).

13. NASA Releases Summary of SpaceX Cargo Mission Accident, NASA (Mar. 12, 2018), https://www.nasa.gov/feature/ nasa-releases-summary-of-spacex-cargo-missionaccident.

14. See generally Blue Origin Astronaut Experience Auction Official Terms & Conditions, BLUE ORIGINS, https:// www.blueorigin.com/astronaut-experience-auctionterms-and-conditions (last visited Dec. 5, 2021).

15. Human Spaceflight Requirements for Crew and Spaceflight Participants, 71 Fed. Reg. 75615 (Dec. 15, 2006) (to be codified at 14 C.F.R. pts. 401, 415, 431, 435, 440 and 460).

16. 14 C.F.R. § 460.5(a) (2021).

17. Id. at (b).

18. Id. at (e).

19. Id. at 5(c)–(d).

20. 14 C.F.R. § 67.4(b) (2021).

21. See Guide for Aviation Medical Examiners, FED. AVIATION ADMIN., https://www.faa.gov/about/office_org/ headquarters_offices/avs/offices/aam/ame/guide/standards/ (last visited Dec. 5, 2021).

22. FAA Commercial Space Astronaut Wings Program, FAA Order No. 8800.2 (July 20, 2021).

23. On December 10, 2021, however, the FAA announced that it would no longer award astronaut wings to future spaceflight participants and crewmembers.

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By Charles Lee Mudd Jr.

The Value of Space Mining:

From the Perspective of a Legal Adit

H

ollywood has a history of dramatizing the potential of asteroids or meteors impacting Earth.1 However, the recent launch of the National Aeronautics and Space Administration’s (“NASA”) Double Asteroid Redirection Test2 spacecraft—whose mission is to divert the path of asteroids from impacting Earth— demonstrates that cosmic collisions aren’t just used as film plot lines. While rare, asteroid impacts are possible.

In addition to studying asteroids within the parameters of “planetary defense,” there also exists a segment of the space sector with ambitions to reach asteroids and other celestial bodies for purposes of extracting resources, also known as “space mining.” Extracting celestial resources for private commercial gain, however, creates a conflict between certain national laws and United Nations space treaties. This article seeks to drill through some of the relevant issues for purposes of assessing the viability of commercial space mining.

United Nations Space Treaties There are five United Nations treaties directly related to space activities: 1. the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space (“Outer Space Treaty”), 2. the Agreement on the Rescue of Astro20 November/December 2021

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nauts, the Return of Astronauts and the Return of Objects launched into Outer Space (“Rescue Agreement”), 3. the Convention on International Liability for Damage Caused by Space Debris (“Liability Convention”), 4. the Convention on Registration of Objects Launched into Outer Space (“Registration Convention”), and 5. the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (“Moon Agreement”).3 While most countries around the world have ratified or signed the Outer Space Treaty, only twenty-two have either ratified or signed the Moon Agreement, which entered into force nearly four decades ago in 1984.4 The Moon Agreement expands the legal principles contained within Article II of the Outer Space Treaty which provides: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”5 This makes clear that a state that has ratified, signed, or otherwise formally agreed to the Outer Space Treaty may not claim national ownership of celestial bodies.6 However, though some may argue otherwise, Article II leaves unclear whether it encompasses resources extracted from such celestial bodies. In other words, while a nation may not appropriate the moon itself, Article II does not explicitly prohibit a nation from appropriating moon rocks it returns to Earth, for example. In contrast, Article 11 of the Moon Agreement does clearly prohibit the appropriation of any resource obtained from the moon: The moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement... Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non- governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of

the moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the moon or any areas thereof.7 As such, a nation that ratifies, signs, or otherwise agrees to the Moon Agreement may not claim private ownership over any resource extracted or obtained from the moon.

This applies to the nations and any private person (natural or legal) under the jurisdiction of such nations.8 Interestingly, Article 11 focuses only the appropriation of resources from the moon.

Article 1, however, applies the principles of Article 11 to other celestial bodies, noting that the provisions of the treaty relating to the moon “shall also apply to other celestial bodies within the solar system, other than the Earth, except insofar as specific legal norms enter into force with respect to any of these celestial bodies.”9 Moreover, given Section 3 of Article 1 states that the Moon Agreement applies to any celestial body found in any location other than on the surface of Earth,10 the Agreement would by all accounts

encompass any natural object in space.

Of course, the Moon Agreement applies only to the twenty-two nations that have ratified, signed, or otherwise agreed to it.11 Notably, most countries have not agreed to the Moon Agreement, including China, Russia, Japan, Luxembourg, United Arab Emirates, and the United States. In fact, the latter four of these countries enacted laws which controvert the Moon Agreement.

National Space Resource Laws For the last decade, the commercial space sector within the U.S. has undergone significant growth. During this time, the federal government has enacted laws to facilitate this growth, notably the U.S. Commercial Space Launch Competitiveness Act in 2015 (“2015 Space Competitiveness Act”).12 Among its provisions, the 2015 Space Competitiveness Act expressly addresses space resource exploration and utilization (Section 51303, “Asteroid resource and space resource rights”), noting that: A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter

shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.13 Thus, a natural or legal citizen of the U.S.14 may own any asteroid resource or space resource the citizen obtains.15 Although § 51303 states that such ownership must be consistent with the international obligations of the U.S., if the Outer Space Treaty is presumed not to encompass resources extracted from celestial bodies, and given the U.S. has not adopted the Moon Agreement, there currently exist no international obligations of the U.S. contrary to the purpose and intent of § 51303.

In 2017, Luxembourg followed suit and adopted a law on the exploration and use of space resources, namely, providing that “[s] pace resources are capable of being owned.”16 However, any person wishing to explore or use space resources must obtain written permission from the Luxembourg government.17 In 2019, the United Arab Emirates (“UAE”)

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adopted a similar law allowing for ownership of space objects.18 Most recently, Japan enacted a space resource law.19 Like Luxembourg and the UAE, Japan’s new law allows for ownership of space resources subject to permit requirements. As the United States Library of Congress explains: The act defines “space resources” as water, minerals, and other natural resources that exist in outer space, including on the moon and other celestial bodies... a person needs to obtain a permit in order to pursue space resources extraction activities.

The application for the permit is combined with a permit for launching an artificial satellite... In addition to... satellite launchrocket design and the flight path of the satellite, an applicant for the space resources extraction permit must attach a business activity plan [which] must include the purpose of the proposed space resources exploration and exploitation activity; the term, location, method, and other details of the activity;20 Thus, as of 2021, four countries have enacted laws that specifically contradict the Moon Agreement’s prohibition on private ownership of resources obtained from celestial bodies.

Possession Remains Nine Tenths of the Law Although the U.S. now allows for ownership of space resources, there are still significant obstacles for interested parties. To begin with, a person must physically obtain the space resource to claim ownership of it.

Although there are many forums that claim you can “buy a star” without physical acquisition,21 one simply cannot claim or obtain legal ownership of a celestial body. Indeed, the Outer Space Treaty prohibits any of its adopting nations (and their citizens) from doing so.22 Consequently, any person would be limited to ownership of resources on such celestial bodies. However, principles of U.S. common law dictate that possession must exist for ownership to be claimed.

The two most applicable common law principles involve the “law of salvage” and “law of finds.” With respect to the former, 22 November/December 2021

the “law of salvage” applies to property over which some ownership still exists, and an express determination of abandonment has not and cannot be made. Given the current context involves resources for which ownership has not previously existed, the law of salvage does not apply.

The “law of finds” principle applies where a shipwreck has clearly been abandoned by (a) express indication, (b) the length of time, or (c) other facts and no owner comes forth.

Limited to this context, the “law of finds” may seem inapplicable at first. However, before its application to shipwrecks and contents, it appears the “law of finds” applied to items in the oceans over which no ownership could be claimed, such as whales. As such, the latter application of the “law of finds” would be relevant where no one owns any celestial body or, specifically, an asteroid. But the law of finds does require acquisition or efforts to physically control the property in question. Specifically: Personalty, on being abandoned, ceases to be the property of any person, and thenceforth is no man’s property, unless and until it is reduced to possession with intent to acquire title to, or ownership of, it. It may, accordingly, be appropriated by anyone, if it has not been reclaimed by the former owner, and ownership of it vests, by operation of law, in the person first lawfully appropriating it and reducing it to possession with intention to become its owner, provided... the taking is fair.23 Essentially, one would need to physically appropriate the extracts from the asteroid and “reduce[] it to possession with intention to become its owner.”24 One cannot discover an exotic mineral on a distant celestial body from afar through spectroscopy and claim ownership to the physical resources that might exist therein.25 For a person to claim ownership of space resources, they must reach the celestial body at issue and extract the space resources.

Although the foregoing may perhaps be disappointing for ambitious space prospectors, they should not be too disheartened, for recent scientific and technological achievements demonstrate the viability of space re-

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source mining and extraction. Through the Hayabusa mission, for example, Japan first successfully returned asteroid samples in 2010.26 More recently, Hayabusa2 returned samples from the asteroid 162173 Ryugu in 2020.27 And the OSIRIS-REx mission of the U.S. reached the asteroid Bennu in 2018, extracted a sample, and will return it to Earth in 2023.28 Mining Mars Given the foregoing principles apply to all celestial bodies, they necessarily apply to Mars, one of the most exotic locations within our solar system. With the U.S. planning a return to the moon in this decade to establish the lunar-orbit space station Gateway, and eventually to establish lunar base camps, the U.S. could very well begin mining resources from the moon in the not-so-distant future. This has seemingly laid the foundation for commercial actors to facilitate the development of a sustainable space resource economy. Indeed, NASA has encouraged this by inviting companies to submit proposals on how and when lunar regolith, for example, could be extracted and returned to Earth (even offering payment to said companies who successfully do so).29 Though a bit further in the future, government and private missions to Mars could similarly extract resources that can be privately owned and fuel a Martian space resource economy.30 With the Mars 2020 Perseverance mission and its intent to return sample tubes from Mars to Earth, the evolution of this endeavor has already begun.31 Conclusion Until recently, a thriving space economy with public and private interests mining space resources seemed relegated to science fiction.

However, despite the Moon Agreement, the U.S. and a few other nations enacted laws allowing for private ownership of space resources. By doing so, they eliminate legal obstacles to, and provide an economic incentive for, the commercial sector extracting space resources, returning them to Earth, and fueling the space economy. Although the law may require possession of space resources to claim ownership, recent developments make this less fiction than fact. With both Japan

and the U.S. successfully extracting resources from asteroids, and the Perseverance rover extracting samples to eventually be returned from Mars, scientific and technical obstacles will be overcome. And so, space mining will certainly become viable and facilitate its own segment of the space economy in the future.

With this said, it becomes paramount that the international community agree to more detailed parameters related to space and its resources. In particular, governmental bodies must (a) ensure that any endeavors on the moon, Mars, or other celestial bodies comply with established measures for planetary protection; (b) continue to protect orbital environments by mitigating space debris; (c) develop principles governing the communities that will develop and expand on space stations; and, (d) recognize, protect, and exercise space activities with due regard for the interests of all space actors consistent with Article IX of the Outer Space Treaty.

Charles Lee Mudd Jr. is the Principal Attorney and Owner of Mudd Law, focuses his practice of more than twenty years on Internet and space law, and holds memberships in the International Institute of Space Law, the European Centre for Space Law, American Astronomical Society, ITechLaw, and AIAA. Over the last few years, Charles has participated in SATCON 1 & 2, Dark & Quiet Skies Conferences 1 & 2, and other United Nations conferences on matters of space law and policy.

9. Moon Agreement, art. I. 10. Id. 11. Interestingly, Australia, Austria, Belgium, France, India, Kuwait, Netherlands, Saudi Arabia, and Turkey, to name some, have agreed to the Moon Agreement. UNOOSA, Status on International Agreements Relating to Activities in Outer Space as at 1 January 2021 (May 31, 2021).

12. U.S. Commercial Space Launch Competitiveness Act, P.L. 114-90, 129 Stat. 704 (November 25, 2015).

13. 51 U.S.C. § 51302.

14. Under the 2015 Space Competitiveness Act, “citizen” is defined as an “individual who is a citizen of the United States,” “entity organized or existing under the laws of the United States” or any of its states, or a foreign entity with the controlling interest being either of the first two categories. 51 U.S.C. §§ 50902, 51301(3).

15. Under the 2015 Space Competitiveness Act, an “asteroid resource” means any space resource found on or within a single asteroid. Id. § 51301(1). The Act defines “space resource” as “an abiotic resource in situ in outer space,” which includes water and minerals. Id. § 51301(2). Abiotic refers to something physical, non-biological, and devoid of life. “In situ” means existing in its original place.

16. Loi du 20 juillet 2017 sur l’exploration et l’utilisation des ressources de l’espace, art. 1er [Law of July 20th 2017 on the Exploration and Use of Space Resources, art. 1] (Fr.); see Law of July 20th 2017 on the Exploration and Use of Space Resources, LUXEMBOURG SPACE AGENCY, https://space-agency.public.lu/en/agency/legal-framework/law_space_resources_english_translation.html (last visited Dec. 10, 2021), for English translation.

17. Id. art. 2. Of course, the absence of an explicit requirement in the 2015 Space Competitiveness Act to obtain authorization should not be construed to suggest authorization for space activities would not be required from the U.S. government.

While permission to obtain and own an asteroid or space resource may not be expressly required, the U.S. does require licenses for launch of space vehicles and other space activities occurring within its jurisdiction and/or by its citizens.

18. On the Regulation of the Space Sector, ch. 3, art. 18 (Fed L.

No. 12), Dec. 12, 2019 (U.A.E.).

19. Promotion of Business Activities Related to the Exploration and Development of Space Resources Act (No. 83) of to be enacted Dec. 23, 2021 (Japan); see Japan: Space Resources Act Enacted, U.S. LIBRARY OF CONG., https://www.loc. gov/item/global-legal-monitor/2021-09-15/japan-spaceresources-act-enacted/ (last visited Dec. 10, 2021).

20. Id..

21. E.g., Buy a Star in the Sky, COSMONOVA, https://cosmonova. org/ (last visited Dec. 10, 2021).

22. OST, art. IV. 23. Wiggins v. 1100 Tons More or Less of Italian Marble, 186 F. Supp. 452, 456 (E.D. Va. 1960). Interestingly, the Wiggins case involved rights of various parties who intended to obtain the shipwreck contents, some of whom failed to make sufficient efforts to pursue acquisition and “abandoned” their rights to “law of finds.”

24. Id..

25. Cf., id.

26. Michael Banks, Japan’s Hayabusa 2 Mission Returns Asteroid Sample to Earth, PHYSICSWORLD (Dec. 8, 2020), https:// physicsworld.com/a/japans-hayabusa-2-mission-returnsasteroid-sample-to-earth/ 27. Id..

28. OSIRIS-Rex, NASA, https://www.nasa.gov/osiris-rex (last visited Dec. 10, 2021).

29. REQUEST FOR QUOTATION, PURCHASE OF LUNAR REGOLITH AND/OR ROCK MATERIALS FROM CONTRACTOR, NASA (2020), available at https://www.hba.org/ docDownload/1871526.

30. See Mars (Nat’l Geographic television broadcast 2016–2018) to watch a dramatized exploration of the potential mining conflicts between the government and private sectors, The Expanse (SyFy television broadcast 2015–present) for a perspective on a more further developed space economy and political arena some centuries in the future, and SUAREZ DANIEL, DELTA-V (2019), for a perspective on mining in the nearer future.

31. 2020 Mission Perseverance Rover, NASA SCIENCE MARS, https://mars.nasa.gov/mars2020/ (last visited Dec. 10, 2021).

Endnotes 1. See e.g., ASTEROID (ITN Studios 2021); DON’T LOOK UP (Hyberobject Industries 2021) (noting two recent film releases within this “planetary protection” genre).

2. Double Asteroid Redirection Test, NASA, https://www.nasa. gov/planetarydefense/dart (last visited Dec. 10, 2021).

3. Space Law Treaties and Principles, UNITED NATIONS: OFFICE FOR OUTER SPACE AFFAIRS, https://www.unoosa. org/oosa/en/ourwork/spacelaw/treaties.html (last visited Dec. 10, 2021).

4. Id. 5. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 18 U.S.T. 2410 (entered into force Oct. 10, 1967) [hereinafter “OST”]. A significant number of countries ratified or signed the Rescue Agreement, Liability Convention, and the Registration Convention, though less than the Outer Space Treaty.

6. Where a national government has not agreed to a treaty, it will not be bound by the treaty’s terms. With respect to the phrasing “Moon and other celestial bodies,” any reference in the article solely to celestial bodies necessarily includes the Moon.

7. UNOOSA, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Res. 34/68, opened for signature Dec. 18, 1979 (entered into force July 11, 1984) [hereinafter “Moon Agreement”].

8. Moon Agreement, art. XIV; OST, art. VII.

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By Benjamin L. S. Ritz

Splash and Crash:

Satellite Liability and Insurance I. Introduction In the movie Gravity, Sandra Bullock plays an astronaut upgrading the Hubble Space Telescope when high-speed space debris strikes her space shuttle and the Hubble. Examples of space debris include “dead satellites, discarded equipment, spent rocket boosters, fragments from collisions and explosions, and paint chips.”1 This debris was created when the Russians blew up their defunct spy satellite. While the movie is science fiction, space debris is science fact.

On January 11, 2007, China blew up their weather satellite, Fengyun-1C, with an anti-satellite missile weapon, creating over 3,027 pieces of tracked debris. Even the smallest object in space can travel at orbital velocity, which is 17,000 miles per hour at the altitude of the International Space Station. The following day, NASA fired thrusters on its TERRA satellite to avoid a potential collision.2 Now, with mega-constellations of cube-satellites (“CubeSats”) being launched by private and governmental entities, like SpaceX, governments, businesses, and insurers continue to manage the risks of two satellite-related catastrophes: satellites in decaying orbits plummeting to Earth and satellites colliding into one another. At the same time, governments are easing licensing schemes to allow more CubeSats into orbit.

The majority of satellites are either in low or geosynchronous orbit (“LEO” or “GEO”). Debris small enough and in low enough orbit (200 km) will burn up in the atmosphere or fall to Earth; debris in the mid-range orbit (800 km) will remain for centuries; and debris in geosynchronous orbit (36,000 km) can persist forever. Approaches to the debris problem involve tracking, growth mitigation, risk management, and removal.4 This article will provide a brief overview of risk management for the satellite international liability regime before focusing on U.S. licensing requirements and third-party liability and thirdparty liability insurance. Next, the article will discuss the three phases of a satellite’s life—ground, launch, and in-orbit—in the context of first-party insurance.

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II. International and U.S. National Regime A. Nations are absolutely liable for falling debris and “at fault” for in-orbit collisions.

Jurisdiction for disputes in space is ad hoc, with a variety of treaties, conventions, and bilateral agreements governing relations between space-faring nations. The well-accepted legal principles in the international space law legal regime are as follows: national supervision of governmental and non-governmental entities (the Outer Space Treaty, art. VI5), a liability regime (the Outer Space Treaty, art. VII, and the Liability Convention6), a requirement to register space objects nationally and with the U.N. (the Registration Convention, arts. II and III7), and a requirement to return space objects (the Outer Space Treaty, art. VIII and Rescue Agreement, art. V8).

The Outer Space Treaty, art. VII, and Liability Convention, art. I, hold a state liable for damage caused by a space object if the launch occurred in, or was procured by, the launching state. The Liability Convention, art. II, provides that the launching state is “absolutely” liable for damage caused by space objects on Earth or to aircraft in flight. In outer space, liability is determined by “fault,” which is undefined by Liability Convention, art. III. “Fault” may require a minimum of negligence because the Liability Convention, art.

VI, exonerates absolute liability if the launching state establishes that the damage resulted from gross negligence by the claiming state. Articles IV and V provide for joint and several liability of multiple launching states. And the Liability Convention, art. XII, sets out the measure of damages as what it would take to restore the harmed party to a condition that would have existed had the damage not occurred.

The Liability Convention, art. IX, states that any damage claim must be presented to the launching state through diplomatic channels within one year of the date of the damages or identification of the responsible party. If they cannot reach a mutual resolution, then a claims commission (essentially, an arbitration panel) is constituted of one member chosen by each state and a chairman chosen jointly by both parties under the Liability Convention, art. XV. Private citizens cannot directly use the Liability Convention to recover for damages, though they might be able to sue under domestic tort laws.9 The Liability Convention has been invoked once. On September 18, 1977, the Russian Cosmos 954 did not boost into a nuclear-safe orbit. Instead, its orbit decayed until it reentered the atmosphere, falling into northwest Canada. While the Soviet Union initially

claimed that the satellite burned up on reentry, a U.S.—Canadian investigation team recovered 12 large pieces, 10 of which were radioactive. Canada brought a Liability Convention claim against the Soviet Union for $6 million in cleanup costs and future damages. They settled for $3 million in 1981.10 B. The U.S. minimizes risks while stimulating industry.

The United States provides guidelines for licensing, risk calculations, cross-waivers of liability, and third-party liability insurance requirements to minimize risks. In response to an on-orbit malfunction of a Westar 6 and a Palapa B2 satellites’ payload assist modules, the Indonesian government sued the manufacturer and won a large settlement.11 Observing this, in 1984, the U.S. enacted the Commercial Space Launch Act (“CSLA”).12 The FAA requires a license for all commercial launches and reentry within the borders of the United States, or for launches conducted abroad by a U.S. entity.13 The FAA issues a license when it is convinced that the launch will not jeopardize public health and safety, property, U.S. national security or foreign policy interests, or the international obligations of the United States. These reviews include the policy review, the payload review, a financial responsibility determination, and an environmental review. NOAA and the FCC will also likely need to license the satellite.

As to risk mitigation, Part 440 of the CSLA requires the FAA to determine the maximum probable loss from covered claims by a third party. A licensee is not required to obtain insurance of more than $500,000,000 for third-party claims; $100,000,000 for government claims; or the maximum liability insurance available on the world market at reasonable cost for both third-party claims and government claims if the amount is less than those amounts.

The licensee can either obtain third-party liability insurance or demonstrate financial responsibility.14 The government is allowed, subject to congressional appropriations, to pay successful third-party claims in excess of the licensee’s insurance up to U.S.

$1.5 billion adjusted for inflation.15 Each licensee must also comply with a complex reciprocal waiver of claims requirement.

These cross-waivers essentially eliminate the operator’s own loss, including the loss of its employees, and waive claims against other parties to the space project.16 Part 460 requires similar waivers for the space crew and spaceflight participants. There is no direct regulation of on-orbit operations.17 Other nations vary on whether they impose liability only on the launch operator, only on the ground, or at all stages, including in-orbit.18 Generally, third-party space liability insurance provides indemnification for all sums that the insured shall become legally obligated to pay for bodily injury and/or property damage to third parties arising out of the ground, launch, and in-orbit operations of the spacecraft.19 Perils often include launch vehicle contamination, spent rocket parts returning to Earth or remaining in orbit as a collision risk, or damage caused by colliding satellites.20 The list of insureds is broad and includes launch-

ing states. Coverage periods are from 12 months to three years. The policy is usually occurrence-based, meaning that it covers losses during the policy period. And because of the cross-waiver requirement, the insurance provides no coverage for liabilities between the participants in a space project.21 Section 440.13 also provides a few standard conditions of each insurance policy: (1) insolvency does not relieve an insured of its obligations; (2) policy limits apply separately to each occurrence; (3) the policy shall have no deductible unless the deductible is placed in escrow; (4) the policy cannot be invalidated by an act of the insured; (5) exclusions must be specified; (6) the policy shall be primary without right of contribution; (7) all provisions save policy limits are severable; (8) each policy must be placed with a reputable insurer licensed in, or subject to, the jurisdiction of the United States; and (9) the policy must include a waiver of subrogation rights against any insured or additional insured, except to claims from willful misconduct.22 Because the risk is low and the claims are

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few, premium rates are low.23 Recently, the FCC promulgated new rules to streamline processes for a small satellite. The rules reduce the application costs to $30,000 with shorter review periods and a one-year grace period to post a surety bond. This streamlined process is limited to fewer than ten non-geostationary orbit satellites that will be in-orbit no more than six years.24 Also, on October 20, 2021, new FCC rules went into effect requiring greater specificity on collision risks, safety measures, tracking and data sharing, and casualty risk assessments. The FCC considered, but delayed, the adoption of several proposed rules on debris mitigation, indemnification by private satellite operators, and surety bonds for post-mission disposal.

Notably, the new rules would have altered collision risk from a single satellite in a constellation to an aggregate probability.

Also, NASA recently published a CubeSat guide providing best practices and specifications of different types of CubeSats at www.nasa.gov/content/cubesat-launch-initiative-resources. Violations of best practices and licensing requirements could be a basis for wrongful conduct allegations.25 III. First-Party Space Insurance Space insurance has a high severity of loss with a limited number of launches per year and a high technical underwriting requirement. Large sums often require multiple underwriters or a syndicated risk. Two of the major factors in determining any insurance premium is the satellite’s cost, any new technology, the cost of the launching vehicle, and the historical performance of the launch vehicle or satellite.26 The first ground and liability policy was issued in 1965 to Early Bird’s IntelSat. From about 2001 to 2012, premiums were at comparatively high levels and more than claims.

2019 and 2020 claims were significant, wiping out most premiums. For example, a Sirius XM-7 satellite, insured for $225 million, failed when the market income was approximately $452 million, causing AIG to withdraw in November.27 Many operators choose to self-insure by holding reserves, making redundant systems, or, in the case 26 November/December 2021

tions; • Personal accident insurance for astronauts; • Developing space m insurance; and • Developing cyberrelated insurance for CubeSats.

Note that some insurers will offer packages that SXM-7, built by Maxar Technologies for SiriusXM, is seen here in Maxar’s cover multiple phases. For manufacturing facility in Palo Alto, Calif. Image credit: Maxar Technologies example, AXA XL has ofof constellations, launching extra satellites fered a policy for small satellites that proto compensate for this market volatility. vides coverage from the ground through launch.

A. Types of First-Party Space Insurance

Other forms of insurance include: • Launch risk guarantees covering only the launch portion and delays; • Satellite operations loss of revenue insurance for partial or total failure during the launch or operation period; • Manufacturer incentive payment insurance to cover the manufacturer if the satellite does not meet specifica-

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B. Key Terms The following are key terms in insurance agreements.

Loss: The concepts of partial loss, constructive total loss, and total loss are the most complicated and specific portions of the satellite’s definitions. This loss is tied to the degree that the satellite does not perform to its technical specifications and im-

pairs its intended purpose. The parties will calculate the loss ratio on the specific satellite technology, including the number of redundant transponders, onboard electrical power, fuel reserves, and designed life period. A total loss covers the explosion of the launch vehicle, satellite, or an inescapable improper orbit. If the satellite experiences a 75% to 90% reduction in capability, it will be a constructive total loss allowing full indemnification and transfer of the right of salvage to the insurer. A partial loss is a loss below the threshold for the constructive total loss. A partial loss will partially indemnify a loss to the degree of capacity or lifetime lost by the satellite.30 The insured has the burden of proof for loss.31 Misrepresentation: If the insured fails to provide materially accurate information, it cannot recover for the loss. This provision reflects the fact that the loss and other definitions must be manuscripted around that satellite’s specifications. The definition of “material” may require the insurer to show that it would not have issued the exact same policy.32 Material Changes: This provision requires the insured to keep the insurer up to date on changes to the satellite’s technology or the insured may be unable to recover for the related loss. To lock in rates, an operator may procure a policy up to two years ahead of the satellite launch. This test is objective.33 For example, a change of the launching rockets can increase liability, allowing an insurer to decline coverage.34 Due Diligence: Unlike policies that cover the insured for its negligence, due diligence requires the satellite company to exercise care. The satellite is a high-value asset that the insurer cannot constantly inspect, and once launched, cannot repair.35 Other special policy terms include fuel life and power margins, the intended “commercial communications” purpose, subrogation, salvage, named insured’s duties (with sunset clause), a premium payment requirement of 30-days prior to launch for launch insurance, and provisions related to import/export controls.36 IV. Conclusion Space was governed by an international

treaty that originally provided for liability between nation-states. Only nations could reach space. But technology matured, and the United States limited liability between parties on the same space project while requiring minimum insurance based upon estimated risks. At the other end, the general insurance market modified business insurance to cover a business’ own risks pre-launch, during launch, and in-orbit.

And if we are careful with the new satellite constellations, we will avoid the situation Gravity, where a shrapnel field wreaked havoc every ninety minutes.

Benjamin L. S. Ritz is an associate at Thompson Coe where he handles complex commercial insurance litigation and appeals.

He enjoys volunteering, creating CLE programs, and spending time with his son.

Endnotes

1. MATTHEW J. KLEIMAN ET AL., THE LAWS OF SPACEFLIGHT: A GUIDEBOOK FOR NEW SPACE LAWYERS 215–16 (2012).

2. BRIAN WEEDEN, 2007 CHINESE ANTI-SATELLITE TEST FACT SHEET, SECURE WORLD FOUNDATION, availableathttps://swfound.org/media/9550/chinese_asat_ fact_sheet_updated_2012.pdf.

3. Alexander William Salter, Space Debris: A Law and Economic Analysis of the Orbital Commons, 19 STAN. TECH. L. REV. 221, 225–26 (2016).

4. Alexander William Salter, Space Debris: A Law and Economic Analysis of the Orbital Commons, 19 STAN. TECH. L. REV. 221, 225–26 (2016).

5. “Outer Space Treaty” or Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967). Article VI provides: “State Parties to the treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities.”

6. OST, art. VII (holding the launching state liable for loss of or damage to property). The “Liability Convention” or Convention on International Liability for Damage Caused

by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187.

7. The “Registration Convention” or Convention on Registration of Objects Launched into Outer Space, Sept. 15, 1976, 28 U.S.T. 695, 1023 U.N.T.S. 15.

8. OST, art. VIII (ownership of space objects is not affected by their presence in outer space or their return to Earth, and space objects must be returned to the state of registry). The “Rescue Agreement,” or Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Apr. 22, 1968, 672 U.N.T.S. 119, requires a counterparty to take practicable steps to recover and return a space object to the launching authority.

9. See PHILLIP CHRYSTAL ET AL., SPACE DEBRIS: ON COLLISION COURSE FOR INSURERS?, SWISS RE 25 (2011), (exploring the propriety of a Liability Convention claim under California state tort law).

10. MATTHEW J. KLEIMAN, THE LITTLE BOOK OF SPACE LAW 123–25 (2013).

11. VICTORIA A. SAMSON ET AL., CAN THE SPACE IN-

SURANCE INDUSTRY HELP INCENTIVIZE THE RESPONSIBLE USE OF SPACE?, 69TH INT’L ASTRONAUTICAL CONG. 4 (2018), available at https://swfound.org/ media/206275/iac-2018_manuscript_e342.pdf.

12. The Commercial Space Launch Act, 51 U.S.C. Ch. 509.

13. Title14, Part 413 of the Code of Federal Regulations establishes license application procedures, and other parts describe the different procedures for each type of space activity.

14. 14 C.F.R. §§ 400.7, 400.9.

15. Id. § 400.19.

16. Id. § 400.17.

17. The Space Act of 1958, which established NASA, also permits NASA to provide liability insurance for any user of a space vehicle to compensate third-party liability or to indemnity a space vehicle user. The indemnification may not extend to the user’s actual negligence or willful misconduct. 42 U.S.C. § 2458b.

18. See INSURING SPACE ACTIVITIES, AON RISK SOLUTIONS 10 (2016), available at http://threecountrytrustedbroker.com/media/Insuring_Space_Activities_whitepaper.pdf; Jeanne Suchodolski, J.D., L.L.M., An Overview and Comparison of Aviation and Space Insurance, 14 J. BUS. & TECH. L. 469, 488 tbl.4 (2019).

19. AON ISB SPACE INSURANCE FUNDAMENTALS, AON INTERNATIONAL SPACE BROKERS 55 (2018), available at https://www.inst-aero-spatial.org/wp-content/ uploads/2018-Space-Insurance-Training-IAS-PART-1.pdf.

20. INSURING SPACE ACTIVITIES at 11.

21. AON ISB SPACE INSURANCE FUNDAMENTALS at 55.

22. 14 C.F.R. § 400.13.

23. INSURING SPACE ACTIVITIES at 11.

24. 47 C.F.R. parts 1, 25.

25. See CHRYSTAL, supra note 9 at 26–27 (exploring whether international debris mitigation and FCC licensing requirements could substantiate wrongful conduct by the tortfeasor).

26. AON ISB SPACE INSURANCE FUNDAMENTALS at 92–93.

27. APSCC, Space Insurance and Risk Management, YOUTUBE (May 24, 2021, 7:54), https://youtu.be/rXyObR0eEe4.

28. AON ISB SPACE INSURANCE FUNDAMENTALS at 45–48; INSURING SPACE ACTIVITIES at 6–10; BOB WHEARTY, INTRO TO SPACE INSURANCE: FIRST PARTY, MARSH & MCLENNAN COMPANIES 10–22 (2015), available at https://d2cax41o7ahm5l.cloudfront.net/cs/ speaker-pdfs/robert-p-whearty-marsh-space-projectsusa. pdf; Jeanne Suchodolski, An Overview and Comparison of Aviation and Space Insurance, 14 J. BUS. & TECH. L. 469, 478 (2019).

29. CHRISTOPHER T.W. KUNSTADTER, SPACE INSURANCE AND COLLISION RISK, AXA XL 9 (2021), available athttps://indico.esa.int/event/370/contributions/5933/attachments/4143/6164/Space%20Insurance%20Update%20 AXA%20XL%20MASTER%20210304.pdf.

30. INSURING SPACE ACTIVITIES at 8.

31. Pamela L. Meredith, Space Insurance Law—with A Special Focus on Satellite Launch and In-Orbit Policies, 21 THE AIR & SPACE LAWYER 4, 13, 14–15 (2008); see also Certain Underwriters at Lloyd’s, London v. Boeing Co., 385 Ill. App. 3d 23, 40–42, 895 N.E.2d 940, 955–57 (2008) (holding that a reinsurer who had assumed the duties of a direct insurer to defend the insured against the loss of a telecommunications satellite where reinsurers admitted satellite did not meet performance requirements).

32. Pamela L. Meredith, Space Insurance Law—with A Special Focus on Satellite Launch and In-Orbit Policies, 21 THE AIR & SPACE LAWYER 4, 13, 14–15 (2008).

33. Id. 34. Commonwealth Ins. Co. v. Thomas A. Greene & Co., Inc., 709 F. Supp. 86, 87 (S.D.N.Y. 1989); see generally Hughes Commc’ns Galaxy, Inc. v. U.S., 271 F.3d 1060, 1071 (Fed. Cir. 2001) (noting how Plaintiff recovered additional insurance costs after being informed by NASA that it would not be permitted to launch its satellites in the aftermath of the 1986 Challenger disaster).

35. Pamela L. Meredith, Space Insurance Law—with A Special Focus on Satellite Launch and In-Orbit Policies, 21 THE AIR & SPACE LAWYER 4, 13, 14–15 (2008).

36. WHEARTY, supra note 28 at 27.

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By Koby Wilbanks

Local Aerospace Resources and Organizations

A

erospace is a driving force for innovation and an integral part of Houston’s economy.

When many think of aerospace, they default to “space,” but aerospace includes all sections of aviation and space flight ecosystems—from companies in the aerospace industry to those that provide the services and products within it. This includes local machine shops, government contractors supporting NASA, private companies launching satellites, airports, commercial spaceflight, and everything in between.

Similar to medical device companies or bio-pharma research, aerospace inhabits the unique crossroads of innovation and regulation that creates complex legal needs touching on many areas of law, ranging from intellectual property to government procurement to compliance.

A major resource for those interested in aerospace are local chambers of commerce or economic development councils.

Two of the largest groups in Houston are the Greater Houston Partnership (“GHP”) and the Bay Area Houston Economic Partnership (“BAHEP”). The GHP is Houston’s largest chamber of commerce, and it focuses on economic development. Of particular interest is GHP’s Aerospace and Aviation Committee,1 which provides a plethora of data on local aerospace companies and related statistics. For example, GHP’s website states Houston has over 500 aerospace manufacturing companies, including 10 28 November/December 2021

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of the 50 largest aerospace manufacturing companies in the United States. The BAHEP, whose focus is attracting, retaining, and expanding locally relevant industries (with a large focus on aerospace), is located in Clear Lake across from NASA’s Johnson Space Center.2 BAHEP excels at creating local partnerships that answer the needs of the local community. One notable example of these partnerships is that with the group Citizens for Space Exploration, which promotes awareness and support of NASA and America’s Space Exploration Program, including an annual trip to Washington D.C. to educate our congressmen and congresswomen on the topic.

Attorneys interested in aerospace should also research the plethora of smaller specialized organizations in the area. As Houston’s innovation ecosystem grows, the momentum allows industry-specific aggregators, incubators, and accelerators to grow as well. For example, TexSpace is a local non-profit organization focused on creating a community of local aerospace companies and enthusiasts and utilizing that shared infrastructure to reduce barriers to entry.3 Houston even has a venture capital fund focused solely on space called Space Fund.4 Houston is also home to the Houston Spaceport, which is owned and managed by the Houston Airport System and located at Ellington Airport. Only eight states have spaceports in the United States, with Houston’s spaceport being the first urban commercial spaceport in the world.5 The Houston Spaceport will not only allow horizontal takeoff of commercial spaceflight, it is also an innovation hub housing major aerospace companies. For these reasons, Houston is a frequent host of the annual SpaceCom Conference, which focuses on commercial space technology (the 2022 conference will be in Florida).6 Although the Houston Bar Association does not have a local section devoted to aerospace, the American Bar Association (“ABA”) has a very active Aviation and Space Law Section that provides updates on trends and regulatory actions.7 Much of the law surrounding space and the upcoming boom in commercial space flight is either unclear or not yet written. This is an exciting group to join if you are in-

terested in monitoring developments in a rapidly changing area of law. The ABA also has a Public Contract Law Section, which is essential for understanding government contract procurement and mergers and acquisitions among government contracting companies.8 Aerospace is an important part of the Houston ecosystem and the recent boom in commercial aerospace has led to a parallel increase in organizations and events.

However, the aerospace ecosystem is still a loose network of organizations and events without a central organizational hub, and it can be difficult to sort through all the options. Hopefully, this resource list will help attorneys interested in aerospace navigate the niche industry and get involved with the community.

Koby Wilbanks is an attorney who provides fractional general counsel services to companies, with a focus on manufacturing, industrial, and aerospace companies. Koby is also on the board of TexSpace, a space innovation hub whose objectives include removing barriers for space innovation and promoting growth for aerospace companies.

Endnotes

1. Aerospace & Aviation, GREATER HOUSTON PARTNERSHIP, www.houston.org/why-houston/industries/aerospace-aviation (last visited Nov. 28, 2021).

2. Committees and Initiatives, BAY AREA HOUSTON ECON. PARTNERSHIP, https://bayareahouston.com/committeesand-initiatives/ (last visited Nov. 28, 2021).

3. Growing the Space Economy in Houston, Texas, TEXSPACE, https://www.texspace.org/ (last visited Nov. 28, 2021).

4. SPACEFUND, https://spacefund.com/.

5. Welcome to the World’s First Truly Urban Commercial Spaceport, HOUSTON SPACEPORT, https://www.fly2houston.

com/spaceport (last visited Nov. 28, 2021); see Spaceports

by State, FED. AVIATION ADMIN. (last visited Nov. 28, 2021).

6. Off-Planet, For the Planet: Advancing Space Technology to Better the Planet and Mankind, SPACECOM, https://spacecomexpo.com/ (last visited Nov. 28, 2021).

7. Aviation and Space Law, ABA, https://www.americanbar. org/groups/tort_trial_insurance_practice/committees/ aviation-space-law/ (last visited Nov. 28, 2021).

8. Section of Public Contract Law, ABA, https://www.americanbar.org/groups/public_contract_law/ (last visited Nov. 28, 2021).

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November/December 2021

29

By Heather Holmes

Space Law, The Exhibit:

A Constellation of Resources from the Harris County Robert W. Hainsworth Law Library

T

he National Aeronautics and Space Act of 1958 declared that all activities in space should be “devoted to peaceful purposes for the benefit of all mankind.”

With that grand pronouncement, NASA was born, and the United States officially entered the space race. Nearly sixty years later, the Harris County Robert W. Hainsworth Law Library set out to commemorate the laws and regulations that have guided our journey into space. Our Space Law exhibit, which has grown from a small display of print documents to a digital exhibit open to all, captures the legal history that helped turn Houston into Space City.

The Launch The Harris County Law Library celebrated its centennial anniversary on October 1, 2015. A reception held in the library featured several capsule exhibits arranged throughout the stacks. The gallery of fifteen small displays showcased some of the Law Library’s hidden treasures, and The Law of NASA exhibit was one of the patrons’ favorite features. The exhibit included several foundational legal documents, from the National Aeronautics and Space Act of 1958, which established NASA, to Title 14 of the Code of Federal Regulations, which contains detailed regulations for agency operations down to the permitted uses of the agency’s logo. To add local flavor, we also included the 30 November/December 2021

Texas Administrative Code section that governs how astronauts vote in Texas elections while in orbit.

Among the items in the exhibit, an important artifact stood out. The NASA Aeronautics Dictionary, originally published in 1959, holds a special place in the intellectual framework that allowed the United States space program to proceed at such a brisk pace. As described in the preface, the dictionary was “intended to stabilize rather than standardize the language” used by participants in the burgeoning space program, including both professionals and nonprofessionals. Certainly, the Space City attorneys who used the dictionary when it was first added to the Law Library’s collection could appreciate the wordsmithing employed in support of one of humankind’s greatest endeavors—journeying to the cosmos.

The Journey To mark the 50th anniversary of the Apollo

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11 Moon Landing in 2019, we reprised the exhibit and developed a companion digital exhibit, bringing our celebration of outer space into cyberspace. The expanded exhibit looked beyond Texas and the United States to the rest of the globe. To capture the role of the international community in advancing equality, good will, adventure, and cooperation in all space pursuits, we included an important UN treaty.

The Outer Space Treaty, a multilateral agreement that was signed by more than 100 countries, established the governance of state activities in the exploration and use of outer space. It was first proposed by the United Nations Committee on the Peaceful Uses of Outer Space in August of 1966.

Several of the signatories’ official signatures were included in the display case and can be seen in the online digital exhibit.

At the suggestion of our then-intern Keith Lacy, we also added a novelty item that reflected the whimsy and excitement of travel beyond our small planetary abode.

A poster selected from the Jet Propulsion Laboratory’s Visions of the Future online gallery rounded out the exhibit, providing not only visual appeal but a bit of fun.

With bold graphics and bright swirls of color, the posters in the JPL collection depict, quite presciently, the

age of commercial space travel. Our exhibit allowed room to showcase only one of these striking prints, but all of the high-resolution graphics in the gallery can be downloaded for free at NASA’s Cal Tech JPL website: www. jpl.nasa.gov/galleries/visions-of-the-future.

DAMAGES Personal injury Wrongful termination Intellectual property Commercial damages/lost profits Business valuations

The Landing Many changes have taken place at NASA and in the field of space travel in general over the last several years. The inevitable growth of commercial space flight and privately funded space exploration projects, such as Blue Origin, SpaceX, and Virgin Galactic, will bring about a global evolution in the laws, regulations, and international agreements that govern outer space. The Law Library will continue to provide resources to support your space law research and to guide your exploration of the justice system, if not the solar system. Visit the Law Library’s online Space Law exhibit at www.harriscounty lawlibrary.org/the-law-of-space.

Heather Holmes is an Assistant Law Librarian at the Harris County Robert W. Hainsworth Law Library.

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31

By Anna Archer

Casting Your Vote from Outer Space

T

he future is now, and as options for space tourism begin to soar, we can imagine a day when ordinary people will be able to travel around the globe instead of, for instance, a trip to the Maldives. Of course, while you theoretically could leave your cell phone at home and completely unplug in the Maldives, in reality (as we all know), you are not completely out of this world. In space, you literally are.

Your out-of-office message that you have “limited access to emails” would actually be true. Being effectively unreachable by your boss, colleagues, and clients likely does not, however, prohibit you from exercising your

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November/December 2021

right to vote.

Under 1 Texas Administrative Code § 81.35, a “person” who is “on a space flight during the early-voting period and on election day” may vote. The person must complete a Federal Post Card Application, which is the form required for absentee voting. Under the statute, NASA charged with determining how to transmit and receive the secret ballots, and NASA does have procedures in place under which astronauts have voted in space. NASA’s procedures require the county clerk to provide a secure electronic ballot, which Mission Control uplinks to the voting astronaut. The county clerk also sends an email to the astronaut

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with specific credentials that the astronaut needs in order to vote and cast a secure ballot. After the astronaut uses their credentials to complete the ballot, it is downlinked and eventually delivered to the county clerk by email. Only the clerk can open the ballot.

While this procedure has only been used by astronauts, the statute does not expressly limit voting from space to astronauts. So, some day, maybe, you will be casting your vote from infinity and beyond.

Anna Archer is an Associate Editor for The Houston Lawyer, and host of Behind the Lines: The Houston Lawyer Podcast.

Endnotes

1. See NAT’L AERONAUTICS & SPACE ADMIN., ASTRONAUTS TO VOTE IN SPACE (Sep. 29, 2020, updated Oct. 23, 2020), www.nasa.gov/feature/astronauts-to-vote-in-space.

72nd Harvest Celebration

Thank you, Houston legal community, for your incredible generosity. Because of your support, the 2021 Harvest Celebration raised more than ever before to fund pro bono legal services through Houston Volunteer Lawyers and serve the civil legal needs of the Greater Houston Area. For more information, visit hba.org.

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Bronze Sponsors Jim Adler & Associates Akerman LLP Arnold & Porter LLP Baker Wotring LLP Berg & Androphy Sapphire Sponsors Susan Bickley & Bob Scott BakerHostetler LLP Bissinger, Oshman & Williams LLP CenterPoint Energy, Inc. Bradley Arant Boult Cummings LLP Chamberlain Hrdlicka The Buck Family Fund Haynes and Boone, LLP Burford Perry, LLP Hicks Thomas LLP Cokinos | Young King & Spalding LLP Laura Dale & Associates, P.C. HBA Litigation Section Mindy & Joshua Davidson LyondellBasell Industries Dobrowski Larkin & Stafford Winston & Strawn LLP Emma Doineau Duane Morris LLP Gold Sponsors Energy Transfer Beck Redden LLP Fayez Sarofim Blank Rome LLP HBA Labor & Employment Law Section HBA Federal Practice Section Polly & Stephen Fohn Latham & Watkins LLP Frost Bank Yetter Coleman LLP Frost Brown Todd LLC Kerry Galvin Silver Sponsors Germer PLLC Abraham, Watkins, Nichols, Agosto, Jeff Paine/Brandon Holcomb – Aziz & Stogner Goldman Sachs Benny Agosto, Jr. & Nikki Agosto Akin Gump Strauss Hauer & Feld LLP Gray Reed Hagans Montgomery Hagans HBA Alternative Dispute David & Tammie Harrell Resolution Section Jim & Susan Hart Jane & Doug Bland Hogan Lovells US LLP Conoco Phillips Holland & Knight Dentons US LLP Holmes, Diggs & Sadler LLP Michael Donaldson/EOG Hillary Holmes & Matthew Archer Resources, Inc. Houston Lawyer Referral Service, Inc. HBA Family Law Section Husch Blackwell LLP Foley & Lardner LLP Jackson Walker Gibbs & Bruns LLP Jenkins and Kamin, LLP Gibson, Dunn & Crutcher LLP Jones Day Tom & Debbie Godbold Kane Russell Coleman Logan PC Halliburton Monica Karuturi & JAMS Kumaran Sathyamoorthy Kirkland & Ellis LLP Kellogg, Brown & Root McKool Smith LLP Liberty Litigation Support, LLC Morgan Lewis & Bockius LLP Ruby Sponsors Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing, P.C. (AZA) Chevron Corporation

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72nd Harvest Celebration Raises over $900,000 in Underwriting for HVL Thanks to the generosity of the Houston legal community, the 72nd Harvest Celebration raised over $900,000 in underwriting for the first time. The Harvest Celebration returned in person this year to River Oaks Country Club, with over 1,100 members and guests attending.

“Our hearts are filled with gratitude for the generosity of the underwriters who made this year’s Harvest Celebration an overwhelming success,” said HBA President Jennifer Hasley.

One hundred percent of net proceeds benefit Houston Volunteer Lawyers to support pro bono legal services for low-income people in the Greater Houston Area. Please see pages 33 for our 2021 Harvest Celebration donors.

Photos by Deborah Wallace, Barfield Photography

Greg Hasley and HBA President Jennifer Hasley

Stephen Fohn and HBF Chair Polly Fohn

The Hon. Michael Gomez and HBA Treasurer Diana Gomez

Roy Varner and HBA Auxiliary President Dominique Varner

Susan Bickley, immediate past chair of the Houston Bar Foundation, and Robert Scott

Bill Kroger, immediate past president of the HBA, and Elizabeth Kroger

Annsley Popov and HBA President-elect Chris Popov

State Bar of Texas President-elect Laura Gibson and Bill Ogden

Houston Young Lawyers Association President Alvin Adjei and Sunny Flowers

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Former HBA President Scott Rozzell, Karen Rozzell, Texas Supreme Court Justice Jane Bland and Doug Bland

Military & Veterans Committee Chair Rick Houghton and HBF Director Krisina Zuniga

Beth Proctor, former HBA President Tommy Proctor, and Emmie Proctor

Houston Volunteer Lawyers Chair Keri Brown and HBA Director Yvonne Ho

Thurgood Marshall School of Law Dean Joan Bullock and Phillip Miller

Former HBA President Benny Agosto, Jr. and South Texas College of Law Dean Michael Barry

Alexis Summers, Jessica Summers, Michael Wynne and Carmen Roe

John Eddie Williams and Sheridan Williams

Michael Archer and HBF Director Anna Archer thehoustonlawyer.com

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TRIBUTES TO TARA SHOCKLEY PAST AND PRESENT EDITORS-IN-CHIEF

Otway B. Denny, Jr., 1980 Editor-in-Chief, It is my understanding that Tara Shockley is retiring after over 41 years with the HBA. Tara Shockley has been a wonderful employee and has provided valuable service to the Houston Bar Association throughout the years. The Bar, and the community, are better off because of her work and service over the years.

I had the pleasure (or luck) of being the Editor-in-Chief when Tara was first hired. I believe that was in 1980. That year I had been asked by Jim Sales, the HBA President, to be the Editor-in-Chief of The Houston Lawyer. The idea was to change the format and concept of the magazine. In the past, the magazine had been smaller and we thought it would be good to expand both the size and focus of the magazine to better reflect the HBA. With that in mind, we began a search for someone to lead these expansive initiatives and decided to hire Tara.

She had a journalism background and we thought she was the right person for the job. She has not only met, but exceeded, our expectations.

The Houston Lawyer has become the premier bar publication for local bar associations. Like the HBA, it is the gold standard for bar publications. Tara deserves a lot of the credit for this. She has gotten many people, including me, over the years to meet deadlines for articles.

No small task, especially dealing with busy lawyers!

Over the years, her role at the HBA has expanded and grown. She has taken on each job or responsibility and done it very well. The HBA has been incredibly fortunate over the years. The staff has been very loyal and capable. People 36 November/December 2021

like Tara, Kay Sim, Lucy Fraga Fisher Cain, and others have been instrumental in making the HBA the premier bar association in the country. Volunteers will come and go, but the staff has remained consistent and excellent. No one exemplifies that any better than Tara.

I was lucky to be the person in the position to hire her in 1980. A decision which I have always felt has been a very good one for the HBA. In closing, my wish is that Tara enjoys her retirement and looks back in pride over her years with the HBA. I know that we do.

Otway B. Denny, Jr. is a retired attorney who practiced trial law at Fulbright & Jaworski (now Norton Rose Fulbright) for forty-five years. He served as Editor-inChief of The Houston Lawyer in 1980, and President of Houston Bar Association during the 1992-1993 bar year Patrice Pujol, 2004-2005 Editor-in-Chief Working with Tara was a joy. When I became EIC, I had been associate editor for a couple of years. But being EIC was much more intense. Understanding that I was new, Tara was so supportive, kind, and patient, which made the transition so much easier. She also has a wicked sense of humor, which is a necessity when you’re scrambling to put together issues.

I look back at my time working with Tara with much fondness and gratitude.

Kerri Brown, 2012-2013 Editor-in-Chief If you want something done right, find Tara. An amazing managing editor with boundless ideas and enthusiasm for

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the project, Tara was the bedrock of The Houston Lawyer. She didn’t stop there; for whatever project you worked on that needed a touch of magic (or media exposure), Tara was the go-to person for the task. I am honored to call her a friend.

Robert Painter, 2013-2015 Editor-in-Chief I was editorin-chief for two bar years, 2013– 2014 and 2014–2015.

When I was a newly-minted second lieutenant in the U.S. Army, a sergeant first class was assigned to work with me. He had almost two decades of experience and respectfully offered advice and mentorship on the decisions I needed to make to get things done. When I think of Tara Shockley, that sergeant comes to mind.

She was the thread of institutional perspective and know-how that weaved through different editorial boards. She made us all look good and helped us to get things done.

Angela L. Dixon, 2015-2016 Editor-in-Chief When I became editorin-chief, I was confident that I would maintain the high standards of the role because I knew Tara would be there to guide me with any questions or concerns that may come up. She was always so pleasant and supportive of the

TRIBUTES TO TARA SHOCKLEY PAST AND PRESENT EDITORS-IN-CHIEF

board members even in the times she had to nudge us for our columns. She was our constant and knowledgeable managing editor, and it was a pleasure to work with her. Tara, wishing you a happy and joyful retirement season!

Jill Yaziji, 2016-2017 Editor-in-Chief Tara is truly one-of-a-kind person whose humility and grace made it easy to be editor-in-chief of The Houston Lawyer. She worked tirelessly to help the editor-in-chief and never sought out credit. I remember Tara sometimes volunteering to write an article if we could not get an author in time. Her article would be so substantive that you’d think she had been long planning writing it. Thank you, Tara, for a fun and memorable experience!

Farrah Martinez, 2017-2018 Editor-in-Chief Tara’s leadership carried the editorial board when we faced historical devastation as Hurricane Harvey upended the lives of so many Houstonians, including members of the editorial board, and wreaked havoc on the legal community. Tara’s strength and calming presence allowed us to recenter the board’s focus and mission by highlighting raw accounts of community members, valuable resources, volunteer opportunities and, most importantly, reminding all of us to keep moving forward with grace and kindness. I hope retirement is everything her heart desires because she deserves it.

Polly Fohn, 2017-2018 Editor-in-Chief Tara is a model leader. She can steer a room to consensus with gentle observation and firm guidance. She never seeks credit for her hard work and yet immediately accepts full responsibility for the shortfalls of others. She is often the quietest, but also the most respected, voice at the table, speaking only when necessary and listening intently to others.

Taunya Painter, 2019-2020 Editor-in-Chief Tara was the diplomat. Editors of THL would come and go, as well as Board Chairs of the HBA, but she was always able to manage the many personality types with grace. She let creativity flourish, while keeping everyone on track and a magazine published. Honestly, once she leaves this post, she really should consider the U.S. Diplomatic Corps. She would be phenomenal!

Anna Archer, 2020-2021 Editor-in-Chief I was selected to be editorin-chief of The Houston Lawyer for the 2020-2021 bar year. That was the year of COVID-19, George Floyd, and Winter Storm Uri. It was a tumultuous bar year, and Tara was always the voice of reason, looking out for the

best interests of the HBA and making sure we all stayed on track. She has laid an amazing foundation for this publication, and I know it will continue to reflect her character and grace for years to come. Thank you so much, Tara, for serving this publication and being such an inspiration to me and all of the lawyers who have served on The Houston Lawyer Editorial Board.

Anietie Akpan, 2021-2022 Editor-in-Chief When I think of Tara in her position as Managing Editor for The Houston Lawyer, I think of a great ambassador: someone who operates with a quiet strength and diplomacy, making sure everyone knows that their voice and ideas were worthy of being amplified. During these continuing unprecedented times, she has led our editorial board with that same diplomatic grace, keeping all of us encouraged and maintaining the creative vision of the publication. I don’t know what we would do without her! As a first-gen attorney and first-gen American, I have admittedly struggled with self-doubt and feelings of inadequacy while navigating my career. But Tara was one of the first people to make me feel like I deserved to have a seat at the table, just like anyone else. She is truly an institution of our great profession, and I am honored to call her my friend and a member of my proverbial village.

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VETERAN SPOTLIGHT

The Honorable Marc Carter

“Try to be a force for good. Ask yourself—how can I contribute?

How can I matter? You matter when you can help someone else.”

-Hon. Marc Carter

By Jennifer R. Jenkins

produced accountability and exceptional leadership skills, which resulted in Judge Carter being awarded the Army Commendation Medal.

His commission also showed him that purpose and leadership efore the Honorable Marc Carter was a prosecutor, the are two guideposts which cement soldiers across all branches and appointed judge of the 228th Criminal District Court in backgrounds. Purpose is so prevailing, so rudimentary, so powerful Harris County, a Regent for Texas Southern University, for service members, that many veterans continue to abide by the or a criminal defense attorney, he was a soldier. Judge mantra to “never leave a soldier behind.” It was this sense of shared Carter was born in Germany and raised in Texas. He and purpose and love for his brothers and sisters in arms that propelled his two brothers grew up Judge Carter in 2008 to lobby to create the first veterans’ treatment watching their father wear court in Texas. Created in 2009 as one of four veteran courts in the the Army uniform while country and now present in eleven counties in Texas, the Harris rearing his sons in a life County Veterans’ Treatment Court Program is Judge Carter’s proudanchored in service, purest accomplishment of his storied and distinguished career. pose, and education.

One example of the impact of the Veterans’ Court Program is The elder Carter wore the story of Sergeant Marty Gonzalez. Sgt. Gonzalez was a decohis Army uniform in the rated Marine who fought valiantly in Fallujah in close-quarter comsegregated South akin to a bat which killed several of his squad superhero wearing an im- In 1987, Capt. Marc Carter gives the members in a single day. A hero who Commander of European Forces a penetrable cloak. Carter had earned two Bronze Stars and was briefing on his intelligence operations. fought valiantly in Vietawarded three Purple Hearts, Sgt. Gonnam, was awarded the Bronze Star, and rose to the zalez also became a defendant in the rank of Lieutenant Colonel before his disability 228th District Court, where the Veterforced early military retirement. After he retired, ans’ Court Program was established.1 Judge Carter, through understanding he returned to graduate school where he earned and compassion gained during his own a Ph.D. in psychology. He used his degree and service, had the ability to empathize leadership skills to start a nonprofit that assisted with this great warrior and understood and empowered disabled citizens in Texas. As the The Hon. Marc Carter his physical as well as mental injury. elder Carter’s Army uniform slowly changed the In a system which increasingly inperceptions of African Americans in the South, carcerates veterans or labels them as while providing economic stability and distinction addicts, the Veterans’ Treatment Court for his family, it also indoctrinated his three sons Program creates a path to rehabilitation on the fundamental principles of purpose, virtue, and healing. It reconnects veterans with and service. purpose and leadership, works to treat Judge Carter joined the United States Army after the root causes of addiction and depresparticipating in the Army ROTC program at The Judge Carter’s father receives sion, and incentivizes veterans with University of Texas at Austin. His military career a Bronze Star in Vietnam. expungements, dismissals, or reduced charges for successful comwould span seven years, dispatching him from Arizona to Califorpletion. The program requires hard work and commitment from nia and then to Germany. Judge Carter excelled as a military intelveterans and is a collaboration between criminal justice courts and ligence officer and achieved the rank of captain. At the height of veteran healthcare. These courts continue to grow in number and his commission, he commanded more than 250 soldiers, managed provide life-changing services for veterans throughout numerous millions of dollars in United States assets, and ran a perpetual intelTexas counties. ligence operation in Germany protecting the country and our EuroFrom his birth in Germany, to his education in Austin, and then pean allies against threats from the then Soviet Union. back to Germany where he would later meet his wife and start a Judge Carter’s commission, which began in 1981, exposed him family, wherever Judge Carter journeys, his path is guided by serto analytics, surveillance, and management, while providing him vice, rooted in love, and dedicated to improving the lives of his felwith an astute sense of purpose. Guiding and directing soldiers

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VETERAN SPOTLIGHT low veterans and servicemembers. As attorneys, we must be willing to use our skillsets to fight for veterans who fight on our behalf without ever knowing us. We would all be well-served by adopting Judge Carter’s passionate mantra that people can absolutely be helped, want to be helped, and are always capable of being better.

Jennifer R. Jenkins is a criminal defense attorney who owns and manages her own law practice. She is licensed in both state and federal

court, and she also practices civil defense. Service is a priority for the Law Office of Jennifer R. Jenkins; she has received the State Bar’s Pro Bono Award every year she has been in practice.

Endnotes

1. David Taylor, Hundreds Mourn “Hero to Many” at Funeral of Sgt. Marty Gonzalez, Decorated U.S. Marine and Veteran’s Court Advocate, HOUS. CHRON., Dec. 12, 2020, https://www. houstonchronicle.com/neighborhood/champions-klein/news/article/Hundreds-mournhero-to-many-at-funeral-of-15796573.php..

Mickey Moon “In my own mind, being a good dad and having been a good soldier are the two proudest accomplishments in my life.”

-Mickey Moon

By Kristen Lee

Despite earning his law degree and beginning his law practice, Mickey wasn’t quite ready to hang up his Army service uniform for good. The attacks on September 11, 2001, called upon his sense of duty and drew him back into military serong before Mickey Moon was an assistant general vice. He was commissioned as a JAG officer, where he providcounsel at CenterPoint Energy, he was a 19-year-old ed legal assistance to soldiers and their civilian dependents. kid from Irving who wanted to fight the Soviets. He Mickey was awarded another Army Achievement Medal in was young and full that role and served as a JAG officer until 2008, when of energy, so he enhe received his honorable discharge at the rank of listed as a private in the Unitcaptain. ed States Army in 1983.

Now, with 27 years of legal practice under his belt, the “It was the height of the father of two reflects on his time as an active-duty solCold War when I enlisted,” dier and reservist with great pride. But it is important Mickey shared. “I thought to Mickey that the public becomes more aware about war with the Soviets was inveterans and the obstacles evitable, and I wanted to fight returning soldiers face; them and help us win it when namely, the high suicide it came.” rates among veterans who As an infantryman, Mickey Mickey in Germany in 1988 served in Iraq and Afghanbecame a squad leader and eventually achieved the rank istan. (For information on of sergeant. He was awarded three Army Achievement recognizing the warning Medals and one Army Commendation Medal during his signs of a veteran in crisis five years of active duty. Before returning to civilian life and how to find help, visit in 1988, he had been stationed in Korea, Fort Stewart, www.mentalhealth.va.gov/ Georgia, and Germany. suicide_prevention.)

Stateside, he channeled his energy into his education.

Recognizing the chalHe started with a bachelor’s degree in political science Mickey Moon today lenging experiences of his from the University of Texas at Arlington, and then went on fellow veterans is just one example of how Mickey carries his to pursue his law degree at the University of Tulsa College of military service with him. It isn’t something he left in Korea Law. During the course of his legal studies, Mickey served as during his youth, it’s something he carries with pride every the managing editor of the Energy Law Journal – a precursor day: “It means everything to me. In my own mind, being a to his work in the energy sector. good dad and having been a good soldier are the two proudest Mickey credits his military experience for helping to pave accomplishments in my life.” the way for his academic and professional success: “Attention to detail and being prepared were hammered into us and beKristen Lee is a Senior Policy Advisor for Harris County came habits,” he said. “I continued those habits throughout Commissioner Adrian Garcia, and an editorial board member my legal career.” for The Houston Lawyer.

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SECTION spotlight

HBA Bankruptcy Section:

Facilitating Changes During the Pandemic

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The Houston Lawyer

By E. Phileda Tennant

espite the COVID-19 pandemic—or perhaps because of it—the Bankruptcy Section of the Houston Bar Association has had unique and significant opportunity to influence and inform their (someday) post-COVID-19 practice before the United States Bankruptcy Court for the Southern District of Texas.

The current chair of the Bankruptcy Section is Cristina Rodriguez,1 an attorney at Keeling Law Firm. Coming into her Chairmanship during the pandemic, Rodriguez says her dual goals were to inform local practitioners of changes in the practice and the local federal judiciary of the needs of practitioners. The Section is wellplaced to be that liaison, with a wide and diverse membership of almost 200 bankruptcy practitioners in the Houston area, representing both consumers and businesses—and creditors and debtors alike—before bankruptcy courts.

It will come as no surprise that federal bankruptcy courts, like all others during the pandemic, have had to adopt new ways of giving parties their day in court. However, the Southern District of Texas Bankruptcy Court may be a frontrunner in recognizing the benefits of those “new ways” and making them permanent. The Bankruptcy Section played an important role in that transition.

For example, after the local bar experienced the advances of remote hearings, the Bankruptcy Court issued a Post-COVID Reopening Plan (General Order 2021-5) giving parties the option, in many instances, to participate in either remote (virtual), in-person, or hybrid appearances at hearings. The Bankruptcy Section coordinated with the federal judiciary to provide the opinions of the Bar on these hearings and set up a CLE presentation where the judges and members of the Bar could discuss the changes.

Similarly, the Bankruptcy Section had an active dialogue 40 November/December 2021

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with the federal judiciary regarding mortgage forbearances. The CARES Act allowed debtors affected by COVID-19 to request forbearances. The judges listened to the needs of the Bar and issued General Order 2021-4. Some of the advantages of that Order, according to Rodriguez, are that it provided clear instructions on how to incorporate forbearances in a Chapter 13 bankruptcy and even provided a path to add missed payments to the end of a debtor’s mortgage note.

In addition to facilitating procedural changes, the Bankruptcy Section also serves as a watchdog for legislative changes relevant to its members. For example, provisions of the CARES Act that made temporary changes to the Bankruptcy Code are anticipated to sunset in 2022, and around the country, eviction moratorium provisions are in flux. The Bankruptcy Section is planning Continuing Legal Education programs to help its members stay on top of these legislative changes.

Above all, the Bankruptcy Section wishes to thank the judges of the Bankruptcy Court for the Southern District of Texas for their responsiveness and accommodations during a unique two years of practice, and their welcome reception of creative resolutions to unprecedented issues for the Bar. Rodriguez says she looks forward to the opportunity to serve the local Bar in the year to come.

E. Phileda Tennant is a senior associate at Vinson & Elkins LLP in the Employment, Labor and OSHA Section. She is a member of The Houston Lawyer editorial board.

Endnotes

1. Cristina Rodriguez is a bilingual associate at the Keeling Law Firm. Rodriguez is board certified in consumer bankruptcy law by the Texas Board of Legal Specialization. She focuses on representing individuals and small businesses in reorganizations and liquidations through bankruptcy.

A Profile

in pro f e s s i o n a l i s m

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Christopher V. Popov, Partner, Vinson & Elkins LLP President-elect, Houston Bar Association

egrettably, some of the most seductive measures of success in the law have nothing to do with professionalism. Legal publications rank firms on their profits-per-partner, not on their reputations for loyalty or civility. The LSAT tests our mastery of logic games; it doesn’t score our propensity for honesty or decency. And let’s face it, jerks can make Law Review.

But imagine a legal system in which money and academic achievement were our only lodestars. Would clients share their most sensitive problems with us if they didn’t believe that we would hold them in confidence? Would the people entrust us with matters of life and death if trial were just a cut-throat economic enterprise? Would the public adhere to a system of laws that was administered by hucksters and reality TV stars? It is hard to imagine that Americans would tolerate a legal system that was not grounded in professionalism.

The rights we enjoy as members of the profession were conditionally bestowed upon us by the people. With the right to practice law comes the responsibility to practice with courtesy, candor, and cooperation—concepts that are enshrined in the Texas Lawyer’s Creed. These concepts of professionalism are about far more than maintaining polite courtrooms and board rooms; they are foundational to the American legal system as we know it.

Judge William Bauer, who was instrumental in the adoption of the federal rules of professional conduct, stated, “If people lose faith in lawyers and judges, they’ve lost faith in America.” I agree with that sentiment. We leaders of the bench and bar owe it to the citizens we serve to deliver on the promise of professionalism—a legal system run by men and women who are committed to practicing with fairness, decency, and good manners.

The people are watching, and we serve at their pleasure. If we breach the promise of professionalism in our work, we risk losing our livelihoods. But more importantly, we risk losing the public’s trust in the institution that is the foundation of the American experiment.

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A Profile in Professionalism:

Law in the Family

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The Boyce Family

The Houston Lawyer

aria Wyckoff Boyce is a litigation partner at Hogan Lovells LLP, where she tries lawsuits for plaintiffs and defendants in courts throughout the country. Her most recent jury trial, in which she led an all-women trial team, resulted in a $152 million verdict for her client in March 2021. Maria is a member of the American Board of Trial Advocates, is Chambers-ranked in Commercial Litigation, and serves as a member of Senator John Cornyn’s and Senator Ted Cruz’s bipartisan Federal Judicial Evaluation Committee that interviews federal judicial candidates for district court and Fifth Circuit vacancies in Texas. Prior to joining Hogan Lovells, Maria was a partner at Baker Botts L.L.P., where she served as partner in charge of the Houston office and was elected to three terms on the firm’s executive committee.

Bill Boyce is a partner at Alexander Dubose & Jefferson LLP, Maria, Julia, Emily, and Bill Boyce where he focuses on civil appeals and serves as an arbitrator.

Bill has argued more than 60 cases in appellate courts throughout Texas and across the country, including the United States Supreme Court. He is a member of the Supreme Court Advisory Committee and vice chair of the Judicial Commission on Mental Health. He is a recipient of the Sam Cochran Criminal Justice Award from the National Alliance on Mental Illness. Bill served as a justice on the Fourteenth Court of Appeals from 2007 through 2018 and was recognized as appellate judge of the year by the Texas Association of Civil Trial and Appellate Specialists.

Before going on the bench, Bill was a partner at the firm then known as Fulbright & Jaworski LLP.

Maria and Bill: The “law” part of our lives together began when we started dating in 1987 during our second year of law school.

After we began practicing in Houston, we married in 1990. Our older daughter Emily was born in 1994, we became partners in our respective firms in 1997, and our younger daughter Julia was born in 1998.

Those busy early years were fulfilling and exhausting. We often joke that we don’t remember any music or television shows from the 1990s. We were able to make it work because we never have been tied to rigid parenting roles, and because we understand all too well the unpredictability of a lawyer’s schedule.

We each served as lead counsel for pediatrician visits, class 42 November/December 2021

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meetings, softball practice, and finding babysitters. Weeks-long trials out of town were always harder for the parent who was away—and may have led to unorthodox mealtime menus that our daughters still joke about today.

Emily now is a third-grade teacher at The Baldwin School in Philadelphia, and Julia is a first year student at The University of Texas School of Law. They always have been and will continue to be the light of our lives. Perhaps the dinner table discussions about trials and legal battles had an indirect impact; both are smart, thoughtful, fearless, intolerant of bullies, and ready to take on challenges. For Emily, the challenges included starting her teaching career at a charter school in the South Bronx. For Julia, the challenges included spending a year abroad studying in Ireland during the pandemic before beginning law school.

Our children got occasional glimpses of their parents in the courtroom, including nine-year-old Emily’s attendance at Bill’s argument in the United States Supreme Court. At one point Emily whispered to Maria, “Who is that old lady asking Dad all of those questions?” She was referring to Justice Ruth Bader Ginsburg.

We both have remarkable parents whose influence we feel every day. Maria’s father, Jim Wyckoff, is a 55-year lawyer and a true legend in the Houston legal community. Jim has been a constant source of encouragement, love, support, and humor in our lives to this day. He has sat in the gallery quietly cheering us on during many trials and oral arguments, sometimes in the same courts in which he practiced. Along with Maria’s late mother Fritzi, Jim instilled in our family an incredible “can do” attitude.

Lessons in perseverance and resilience also came from Bill’s parents. They were members of the Greatest Generation who came of age during the Great Depression and World War II. Peg and Bill Boyce built a post-war life that afforded unlimited opportunities to their son.

We are grateful to have been surrounded by lawyers and legal professionals who advised us, mentored us, and showed us what excellence looks like. Some are now retired; some are on the bench; some are still practicing; and some have been practicing for many fewer years than we have. By working with smart, dedicated professionals who take pride in their craft and profession, we learned so much as young lawyers. They still teach us today Continued on page 53

Equal Access Champions 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.

Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Akin Gump Strauss Hauer & Feld LLP Baker Botts L.L.P. BakerHostetler LLP Beck Redden LLP Blank Rome LLP Bracewell LLP Law Office of David Hsu Brogden and Associates Burford Perry, LLP CenterPoint Energy, Inc. Chamberlain Hrdlicka Chevron USA Dentons US LLP The Ericksen Law Firm Eversheds Sutherland US LLP Exxon Mobil Corporation Fleurinord Law PLLC Foley & Lardner LLP Frye and Benavidez, PLLC Fuqua & Associates, P.C. Gibbs & Bruns LLP Gibson, Dunn & Crutcher LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Halliburton Energy Hasley Scarano, L.L.P. Haynes and Boone, L.L.P. Hunton Andrews Kurth LLP Jackson Walker L.L.P. Jenkins & Kamin, L.L.P. The Jurek Law Group, PLLC Katine & Nechman L.L.P. Kean Miller LLP Law Firm of Min Gyu Kim PLLC King & Spalding LLP

Kirkland & Ellis LLP KoonsFuller, P.C. The LaFitte Law Group, PLLC Locke Lord LLP LyondellBasell Industries Martin R.G. Marasigan Law Offices Marathon Oil Company McDowell & Hetherington LLP McGarvey PLLC Medina Law Texas, PLLC Morgan, Lewis & Bockius LLP Norton Rose Fulbright US LLP Ogletree, Deakins, Nash, Smoak & Stewart P.C. Rita Pattni, Attorney at Law Porter Hedges LLP Law Office of Robert E. Price Rapp & Krock, PC Reed Smith LLP Royston, Rayzor, Vickery & Williams, LLP Sanchez Law Firm Shell Oil Company Shipley Snell Montgomery LLP Shortt & Nguyen, P.C. Sidley Austin LLP Angela Solice, Attorney at Law Sorrels Law Squire Patton Boggs Diane C. Treich, Attorney at Law Law Office of Norma Levine Trusch Vinson & Elkins LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Law Office of Cindi L. Wiggins, J.D. Wilson, Cribbs, & Goren, P.C. Winstead PC Winston & Strawn LLP Yetter Coleman LLP thehoustonlawyer.com

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A Profile in Professionalism:

Law in the Family

The Houston Lawyer

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The Reeder Family

tice that demands virtue from every member of the bar. When ike many two-lawyer marriages, the Reeder family can’t one lawyer lacks integrity, it shakes the confidence in the entire help but discuss the law at home. Below is a recreation system. We depend on collegiality and civility from all involved. of a conversation not unlike many conversations at the dinner table between Judge Lauren Reeder and Michael Michael: I’m reminded of how surprised I was when you went Reeder (the joyful exclamations of the young Reeder from civil practice to becoming a prosecutor. The prosecutors children have been omitted). and defense lawyers all seemed so cordial with each other. You As with the rest of the HBA family, integrity has been the cenexplained that they deal with each other every day on dozens of ter of Lauren and Michael’s careers, whether in civil practice, cases, so there was a need to stay level-headed. It seems in civil criminal practice, or on the bench. Prior to taking the bench in practice, we too easily get entrenched 2019, Judge Reeder was a civil litigawith our clients, where the opposing tor with an active pro bono practice, counsel become the bad guys in a conand later a prosecutor with the Harris stant battle.

County District Attorney’s office. She received the President’s Award for her Lauren: I see that repeatedly from work as co-chair for the 2021 Bench the bench. Lawyers submit briefs for Bar Conference and has received TROs and discovery disputes where the Harvard Law School Women’s it is clear that no one picked up the Law Association’s Shatter the Ceilphone and tried to work it out. Often ing Award for alumni excellence. Miat hearings, I simply ask the parties to chael Reeder is a co-chair of the HBA take 10 minutes to discuss the issues Professionalism Committee, and he outside. It’s in those civil conversacherishes his pro bono work with clitions, standing face to face, that lawents from organizations like Houston yers come to an agreement.

Volunteer Lawyers, RAICES, and Immigration Equality. Michael is a trial The Hon. Lauren Reeder and Michael Reeder with their Michael: That’s a great lesson for lawyer at a commercial and IP litiga- children in 2020. young lawyers, who are often asked to brief issues without also tion boutique, Cadwell Clonts & Reeder LLP. being the attorney in charge of arguing and resolving those disputes. I know there are mixed feelings about Zoom dockets, but Michael Reeder: Your honor, I saw your post online about swearthere’s something almost tactile about being in Court and making in new lawyers and how it is one of the best parts of your job. ing your argument from counsel’s table or the podium. You can feel the merits of your argument as you’re making it in real-time.

Judge Lauren Reeder: It is. You’ll remember that after I was elected, I began getting asked to do swearing-in ceremonies. As Lauren: That’s why I encourage clients and firms to let their part of the ceremony, I read the Texas Lawyer’s Oath to each young lawyers get up and argue at Court. It can put an entire individual lawyer. It’s a humbling and solemn oath, and I think dispute into perspective. But spoiler alert, I think many hearings lawyers should read it every year as a reminder of our sworn are going to remain on Zoom. duties—you support the Constitution; you honestly demean yourself in the practice of law; you have a duty to your clients; Michael: Speaking of perspective, it was early in my career and you must conduct yourself with integrity and civility when through my pro bono practice, where I felt the lawyer’s oath dealing not just with the court, but with all parties. truly hit home. It was the first time I represented individuals instead of a corporate client. My pro bono clients had real needs.

Michael: I remember our own swearing-in ceremonies. We were Sometimes it was big, like an asylum hearing, or sometimes surrounded by friends and family and colleagues. Prestigious small, like drafting a will. But I was that person’s lawyer, and judges read us the oath. It felt heavy and honorable. that duty can feel intimidating until you embrace it.

Continued on page 53 Lauren: The message was clear. We were entering into a prac44 November/December 2021

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Join the HBA 100 Club!

The 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. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Ajamie LLP Alvarez Stauffer Bremer PLLC Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Berg & Androphy Bradley Arant Boult Cummings LLP Buck Keenan LLP Bush & Ramirez, PLLC Christian Levine Law Group, LLC Coats | Rose Crady, Jewett, McCulley & Houren, LLP De Lange Hudspeth McConnell & Tibbets LLP Dentons US LLP Devlin Naylor & Turbyfill PLLC Dobrowski, Larkin & Stafford, L.L.P. Doyle Restrepo Harvin & Robbins LLP Ewing & Jones, PLLC Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins Fogler, Brar, O’Neil & Gray LLP Frank, Elmore, Lievens, Slaughter & Turet, L.L.P. Funderburk Funderburk Courtois, LLP Germer PLLC Givens & Johnston PLLC Gordon Rees Scully & Mansukhani Henke, Williams & Boll, LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Horne Rota Moos LLP Hughes, Watters & Askanase, L.L.P. Husch Blackwell LLP Irelan McDaniel, PLLC Jackson Lewis P.C. Jenkins & Kamin PC Johnson DeLuca Kurisky & Gould, P.C. Jordan, Lynch & Cancienne PLLC Kane Russell Coleman & Logan PC

Kean | Miller LLP Kilpatrick Townsend & Stockton LLP KoonsFuller, PC Law Feehan Adams LLP Linebarger Goggan Blair & Sampson, LLP Lorance Thompson, P.C. Liskow & Lewis McGinnis Lochridge McGuireWoods LLP McKool Smith MehaffyWeber PC Morris Lendais Hollrah & Snowden Murrah & Killough, PLLC Nathan Sommers Jacobs PC Ogletree Deakins Nash Smoak & Stewart, P.C. Paranjpe Mahadass Ruemke LLP Peckar & Abramson, P.C. Phelps Dunbar LLP Pillsbury Winthrop Shaw Pittman LLP Pipkin Ferguson PLLC Ramey, Chandler, Quinn & Zito, P.C. Rapp & Krock, PC Reynolds Frizzell LLP Roach & Newton, L.L.P. Ross Banks May Cron & Cavin PC Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Schirrmeister Diaz- Arrastia Brem LLP Schwartz, Page & Harding, L.L.P. Scott, Clawater & Houston, L.L.P. Shannon Martin Finkelstein Alvarado & Dunne, P.C. Shearman & Sterling LLP Shellist | Lazarz | Slobin LLP Shipley Snell Montgomery LLP Smith Murdaugh Little & Bonham LLP Sorrels Law Spencer Fane LLP Sponsel Miller Greenberg PLLC Strong Pipkin Bissell & Ledyard LLP

Stuart PC Taunton Snyder & Parish Taylor Book Allen & Morris Law Firm Thompson & Horton LLP Tindall England PC Tracey & Fox Law Firm Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP West Mermis, PLLC Weycer, Kaplan, Pulaski & Zuber, PC Williams Hart Boundas Easterby LLP Wilson Cribbs & Goren PC Wright Abshire, Attorneys, PC Wright Close & Barger, LLP Ytterberg Deery Knull LLP Zukowski, Bresenhan & Piazza L.L.P. Firms of 25-49 Attorneys Adams and Reese LLP Andrews Myers, P.C. Beck Redden LLP BoyarMiller Cokinos | Young Gibbs & Bruns LLP Hogan Lovells US LLP Littler Mendelson P.C. Martin, Disiere, Jefferson & Wisdom McDowell & Hetherington LLP Yetter Coleman LLP Firms of 50-99 Attorneys Ahmad, Zavitsanos, 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 Susman Godfrey LLP Winstead PC

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Firms of 100+ Attorneys Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Porter Hedges LLP Vinson & Elkins LLP Corporate Legal Departments CenterPoint Energy EOG Resources, Inc. MAXXAM, Inc. Plains All American Pipeline, L.P. Quantlab Financial, LLC Rice University S & B Engineers and Constructors, Ltd. Law School Faculty South Texas College of Law Houston Thurgood Marshall School of Law University of Houston Law Center

Government Agencies Harris County Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County, Texas 1st Court of Appeals 14th Court of Appeals

November/December 2021

45

OFF THE RECORD

John Ransom:

H

The Houston Lawyer

By Nikki Morris

Ready for Takeoff

ing, which allows you to fly the plane based on instruments alone ow would you like to settle a big case or finalize a huge and makes you a safer pilot. He also completes recurrent training deal and then jet off on vacation at a moment’s notice? annually and regularly practices emergency procedures.

This might be your reality if you have your private piOne of Ransom’s favorite co-pilots is his dog, Pippa. On Pippa’s lot’s license, like accomplished corporate and business first trip, she was safely secured in a zippered kennel, but the mislawyer, John Ransom. chievous little pup managed to wriggle her way out and wanted to Ransom, a shareholder with the firm Boyar Miller, has been a ride in Ransom’s lap—while he was flying the plane! Pippa is now licensed pilot since 1988. He began working towards his private a much more experienced co-pilot, knows exactly which plane is pilot’s license at David Wayne Hooks Memorial Airport by flying in hers, and has her preferred seat, to which she is safely secured with his spare time about once a week. His interest in aviation stems back a short leash. to sixth grade when his Ransom has also found great uncle took him on a way to connect his hoba trip from San Angelo to by to his law practice. He Austin. This first private advises clients who are flight left him fascinated, interested in buying and and later experiences in selling airplanes. He exhis career, such as riding plained that this hobby is co-pilot in a client’s plane a great way to meet new as they flew over Mont clients and new people Blanc between Paris and with a shared interest.

Florence, only added fuel Ransom has personal to the fire. Ransom has experience in this field now logged about 3,200 as he has been the proud hours of flight time and owner or partial owner obtained multi-engine John Ransom has been a licensed pilot Pippa, the family dog, who sometimes occupies the co-pilot’s seat. of several different airand instrument ratings. since 1988. craft over the years. He He has taken cross-councurrently flies a single-engine turbo try trips to Montana, California, prop, which can reach speeds of up and the Bahamas, and he has even to 300 knots at 26,000 feet. contemplated a trip to Cancun, but Overall, Ransom says that having admits that he is not quite ready to his private pilot’s license is very contraverse that much open water. venient, most of the time. Because Ransom’s experiences have not flying requires his full attention, it been all fun and games. He recalled provides a true disconnect from the an experience in 1990 when he was rigors of law practice. He does not fly flying back from San Angelo with his when he is not feeling well or in bad young children. At the time, avionics weather, but when the conditions was not as advanced and air traffic Ransom currently flies a single-engine turbo prop plane. are right, he can be in Taos, New Mexico, or southern Colorado in control was not as well-developed. He ended up on top of a thunabout two hours, which certainly seems convenient. derstorm, with lightening flashing and turbulence strong enough to cause him to bounce up to the top of the aircraft. His nine-year-old co-pilot was a bit frightened, but his six-year-old in the back seat— Nikki Morris is an associate attorney with the firm of in true six-year-old fashion—had a great time. Ransom’s advice for BakerHostetler and a member of the editorial board of new pilots is to continue their training to get their instrument ratThe Houston Lawyer.

46 November/December 2021

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Committee spotlight

HBA County Law Library Committee:

Library Rededicated as Harris County Robert W. Hainsworth Law Library

W

By Maria Lowry

hen you think of local agencies providing access to justice, you probably forget one of the busiest. The Harris County Robert W. Hainsworth Law Library is quietly answering questions, guiding pro se litigants to resources, and making legal research tools available to lawyers, law students, and the citizens of Harris County. About 70,000 people every year (in nonCOVID times) get help from the Law Library in person or over the phone, email, and chat.

Houston’s Law Library was formed in 1870 as one of the founding objectives of the Houston Bar Association.

In 1915 the Law Library gained a physical home in the top floor of the 1910 Courthouse. Since then, the Law Library has moved several more times before relocating to its current space on the ground floor of 1019 Congress, at the intersection of Congress and Fannin in downtown Houston. The HBA County Law Library Committee has had varying roles in the leadership of the Law Library over the 151 years of its existence and currently serves as its advisory board.

In addition to providing legal books and materials, the Harris County Robert W. Hainsworth Law Library is involved in a wide range of outreach programs. Two of these initiatives are the LawPod project and the video project for pro se litigants. LawPods are self-contained, private spaces where a person can access Zoom for a hearing. They are located in Harris County libraries and county buildings so that litigants can access the courts without having to travel to downtown Houston. Another Law Library program, the video project, aims to create video content to help pro se litigants learn what they need to know to handle their own simple family law cases. The videos will be available in English, Spanish, and Vietnamese, and will be a valuable complement to the written handbooks provided by the HBA. These initiatives will ensure that language, literacy, access to the internet, and distance are not barriers to justice.

The Law Library did go through a time when it was on the wrong side of history. Sadly, during the 1940s and 1950s, a single table

was available for use by attorneys of color, while far more space was available to white attorneys. Robert W. Hainsworth was an African American Houston native who attended Howard University for undergraduate school and law school. Mr. Hainsworth started the Houston Lawyer’s Association when black lawyers were not allowed to join the Houston Bar Association.

He fought for equal treatment at the ballot box and a host of other social justice causes. He also led the fight to desegregate the Law Library and other public buildings in Harris County.

Unfortunately, his legal battle was unsuccessful at the time. The United States Supreme Court denied his writ for certiorari in 1954, even though the Court had issued its decision in Brown v. Board of Education just a few months earlier. Nonetheless, the Law Library did eventually desegregate.

The Harris County Law Library is proud to take Robert W. Hainsworth’s name. It is a reminder and inspiration to all that we must continue to honor his work, share his story, and maintain open and equal access to information, government, and justice. HBA Law Library Committee Co-chair Justice Sarah Beth Landau calls it an opportunity to “right an historic wrong.” The Harris County Commissioner’s Court approved the resolution changing the name of the law library on February 9, 2021, and a formal rededication ceremony was held on December 16.

The Harris County Robert W. Hainsworth Law Library is a great asset to our legal community. No matter your practice area, the library has tools and materials that can make you a better lawyer. For nonlawyers, there are tools and information to help them learn about and navigate their legal issue. And best of all, those resources are free. Mariann Sears, Joe Lawson, and the rest of the Law Library staff are looking forward to your visit online at www. harriscountylawlibrary.org and in person.

Maria Lowry is co-chair of the HBA County Law Library Committee, serves on many other volunteer projects in the Houston legal community, and practices family law and probate law at the Law Office of Maria Lowry, PLLC. She received her second HBA President’s Award in 2021. thehoustonlawyer.com

November/December 2021

47

LEGAL TRENDS

An Epic Ruling: The Epic Games v. Apple Verdict Deals Apple a Big-Little Victory

“S

By Nicolette J. Zulli and Cameron J. Asby

The Houston Lawyer

uccess is not illegal,” wrote U.S. District Judge Yvonne Gonzalez Rogers in handing down her decision on September 10, 2021 in the hotly charged, yearlong battle between Apple and Epic Games.1 “Apple enjoys considerable market share of over 55% and extraordinarily high profit margins, [but] these factors alone do not show antitrust conduct,” she wrote.2 However, the U.S. District Court for the Northern District of California held, “without information, consumers cannot have a full understanding of costs. Apple contractually enforces silence, in the form of anti-steering provisions, and gains an [unlawful] competitive advantage [in doing so].”

On principle, and in an attempt to garner a coalition against the tech giant, Epic Games is among the most prominent companies to challenge Apple’s control of its iPhone App Store. Apple has strict rules for its app store and requires all software developers to use its in-app payments system, which takes between 15% to 30% of each transaction— known as the “Apple Tax.”3 The Players Epic Games, Inc., the plaintiff, is an American video game and software developer. Epic operates Fortnite, one of the world’s largest games with over 350 million accounts and 2.5 billion friend connections.4 Apple Inc. is one of the most valuable companies in the world. Apple introduced its app store in 2008, and since that time, its in-app purchase (IAP) mechanism has offered customers extra content and features directly within a given app, available on all Apple platforms through the Apple App Store.5 Prior to this litigation, Apple’s app store rules forced developers who make software 48 November/December 2021

for iOS to follow its rules and use IAP, which charges a commission or transaction fee on every digital purchase.

The Battle With some exceptions, Apple essentially gets a 30% non-negotiable slice of each payment as commission.6 Likewise, the Google Play Store has a similar policy and fees.7 On August 13, 2020, Epic updated the Fortnite app on both the iOS and Android platforms, which allowed consumers to bypass Apple’s app store and pay Epic directly for in-app currency at a discount.8 This option allowed Epic to skirt Apple’s app store rules that demanded payments go through the app store payment system, paying a 30% fee in the process.9 In response, Apple pulled the game from the app store within hours of the update’s appearance for violating the app store guidelines.10 The same day, Epic Games filed an antitrust suit against Apple in the U.S. District Court for the Northern District of California in retaliation for pulling the game, alleging violations of federal and state antitrust laws, and California’s unfair competition law, based on Apple’s operation of its app store.11 “Broadly speaking,” the Court explained, “Epic Games claimed that Apple is an antitrust monopolist over (i) Apple’s own system of distributing apps on Apple’s own devices in the App Store and (ii) Apple’s own system of collecting payments and commissions of purchases made on Apple’s own devices in the App Store.”12 The aim of Epic’s lawsuit was to shed light on Apple’s alleged anti-competitive App Store policies and beg the question: do these policies illegally stifle competition and consumer choice?

The 16-day trial, with over 900 exhibits, took place in Oakland, California in May 2021 and included both company CEOs testifying in open court.13 A Partial Apple Victory On September 10, 2021, the Court handed down its much-anticipated 185-page order, deciding that while Apple is not considered a monopoly, and did not engage in anti-trust

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behavior on any of the ten counts, Apple’s conduct in enforcing anti-steering restrictions is anticompetitive.14 Apple won on nine of the ten counts against it, including a breach of contract allegation that stemmed from Epic deciding to enable alternative payments for its Fortnite players. Because it breached a legal contract with Apple, Epic will owe the company 30% of the $12 million it collected when it introduced an alternative payment system onto the iPhone version of Fortnite, the Court held. Judge Rogers further ruled that because Epic failed to prove that Apple is a monopolist, it owes Apple revenue commissions as back payment.

But perhaps most striking, Judge Gonzalez Rogers found that while marketplace owners such as Apple can set their own marketplace terms, Apple must end its “anti-steering” practices, which constitute an unreasonable restraint on competition and harm consumers due to “lack of information and transparency about policies which affect their ability to find cheaper prices, increased customer service, and options regarding their purchases.”15 In so holding, the Court permanently enjoined Apple from prohibiting developers from including external links or other calls to action that direct players to alternative payments. The injunction was set to go into effect on December 9.

On October 8, 2021, Apple filed a notice of appeal, asking for a stay on the injunction.16 If Apple wins the stay, which was scheduled to be decided by the appellate court in November, a rule change potentially allowing developers to circumvent app store fees of 15% to 30% may not take effect until appeals in the case have finished—a process that could take years.17 Epic Games has likewise filed an appeal of the ruling.

The End Game From a practical standpoint, the verdict has further implications for other antitrust suits and the gaming industry at large.

As Judge Gonzalez Rogers noted, “[b]oth Apple and third-party developers like Epic Games have symbiotically benefitted from the ever-increasing innovation and growth

LEGAL TRENDS

in the iOS ecosystem.”18 This case is a pivotal conflict between a platform owner and a powerful game company that could set the tone and rules of engagement and competition in an era filled with giant tech and game companies.19 Indeed, Congress has introduced legislation to rein in the tech giant’s strict app store policies. In February 2021, Epic Games filed an antitrust complaint against Apple in Europe, which tracks its U.S. case; the outcome is yet to be determined. Similarly, Epic sued Google over its control of the Play Store for Android phones, but that case has not yet gone to trial.

In fact, even before the Epic ruling came down, Apple began instituting major app store policy changes, allowing developers to email their users directly about non-Apple payment options to avoid paying Apple’s commissions.20 While Apple largely won the U.S. battle, it is unclear whether it will win the ongoing war.

Nicolette (“Nico”) J. Zulli is a trial lawyer in Duane Morris LLP’s Trial Practice and White-Collar Criminal Defense Practice Groups, with a practice focused on complex commercial litigation in the energy, insurance, and banking/finance industries.

She has experience in matters concerning complex breach of contract, business torts, bankruptcy, non-competition and nonsolicitation agreements, and trade secrets.

She is a member of The Houston Lawyer editorial board. Cameron J. Asby is a trial lawyer in Duane Morris LLP’s Trial Practice Group, with a practice focused on all phases of complex commercial, intellectual property and employment litigation. Asby represents clientele of varying sizes in state and federal trial courts throughout Texas and across the United States in matters routinely involving non-competition and non-solicitation agreements, trade secrets, unfair competition, franchisor/franchisee disputes, fraud, business torts, and complex breach of contract claims, among others.

Endnotes

1. Rule 52 Order After Trial on the Merits, Epic Games, Inc v.

Apple Inc., 493 F. Supp. 3d 817, No. 4:20-cv-05640 (N.D.

Cal. Sept. 11, 2021).

2. Id. 3. Kif Leswing, Apple Can No Longer Force Developers to Use Inapp Purchasing, Judge Rules in Epic Games Case, CNBC (Sept.

10, 2021, 4:04 PM), https://www.cnbc.com/2021/09/10/ epic-games-v-apple-judge-reaches-decision-.html.

4. About Epic Games, EPICGAMES, https://www.epicgames. com/site/en-US/about (last visited Oct. 25, 2021).

5. In-App Purchase, APPLE DEVELOPER, https://developer. apple.com/in-app-purchase/ (last visited Oct. 25, 2021).

6. Id. 7. Id. 8. Malcolm Owen, Epic Games vs. Apple Trial & Verdict – All You Need to Know, APPLEINSIDER (Sept. 11, 2021), https:// appleinsider.com/articles/20/08/23/apple-versus-epicgames-fortnite-app-store-saga----the-story-so-far.

9. Id. 10. Id. 11. Epic Games, Inc v. Apple Inc., 493 F. Supp. 3d 817, No. 4:20cv-05640 (N.D. Cal. Aug. 13, 2020).

12. Rule 52 Order After Trial on the Merits at 2, Epic Games, Inc v. Apple Inc., 493 F. Supp. 3d 817, No. 4:20-cv-05640-YGR (N.D. Cal. Sept. 10, 2021).

13. Leswing, supra note 3.

14. Rule 52 Order After Trial on the Merits, Epic Games, Inc v.

Apple Inc., 493 F. Supp. 3d 817, No. 4:20-cv-05640 (N.D. Cal. Sept. 10, 2021).

15. Id. 16. Notice of Appeal, Epic Games, Inc v. Apple Inc., 493 F. Supp.

3d 817, No. 4:20-cv-05640-TSH (N.D. Cal. Oct. 8, 2021).

17. Kif Leswing, Apple Files Appeal in Epic Games Case, Potentially Delaying App Store Changes for Years, CNBC (Oct. 8, 2021), https://www.cnbc.com/2021/10/08/apple-files-appealin-epic-games-case-that-could-delay-changes-.html.

18. Rule 52 Order After Trial on the Merits, Epic Games, Inc v.

Apple Inc., 493 F. Supp. 3d 817, No. 4:20-cv-05640 (N.D. Cal. Sept. 10, 2021).

19. Dean Takahashi, Epic Games Wins Injunction Favoring Alternative Payments in Antitrust Lawsuit Against Apple, VENTUREBEAT (Sept. 10, 2021, 9:51 AM), https://venturebeat. com/2021/09/10/epic-games-wins-injunction-favoringalternative-payments-in-antitrust-lawsuit-against-apple/.

20. Press Release, Apple, US Developers Agree to App Store Updates that Will Support Businesses and Maintain a Great Experience for Users (Aug. 26, 2021) (on file with author).

The Fifth Circuit Realigns Itself with the Supreme Court in Sanchez v.

Smart Fabricators

I

By Melissa Vest

n Sanchez v. Smart Fabricators of Texas, LLC, a three-judge panel was bound by Fifth Circuit precedent in its holding that Sanchez possessed seaman status under the Jones Act as an injured welder on a jackup oil rig. However, the panel questioned the precedent based on Supreme Court case law and recommended the Fifth Circuit conduct a re-hearing en banc to consider its precedent in comparison to the line of cases decided by

the Supreme Court.1 Gilbert Sanchez was employed as a welderfitter by Smart Fabricators. He worked on two different rigs while employed for a short time

by Smart Fabricators. The first drilling rig, owned by Enterprise Offshore Drilling, LLC, was jacked-up next to a dock—a few steps on a gangplank and Sanchez was on land at the end of each workday. Approximately 72% of Sanchez’s total work time with Smart Fabricators was on this rig. The second rig, also owned by Enterprise, was a jacked-up rig on the Outer Continental Shelf, and that is where the injury occurred. Sanchez was still aboard this rig when a tug began moving it to its new location, also on the Outer Continental Shelf. Sanchez was injured on this second rig when he tripped on a pipe welded to the deck of the drilling rig. Sanchez spent approximately 19% of his total work time with Smart Fabricators aboard this second rig.

Sanchez brought a negligence suit in state court against his employer and Enterprise under the Jones Act. The Jones Act generally prohibits the removal of a suit to federal court, but there is an option for a United States district court to conduct a summary judgment-type inquiry to determine whether the case should be remanded or whether it should be dismissed on summary judgment.

The United States District Court for the Southern District of Texas conducted such an inquiry and determined summary judgment was appropriate on the basis that Sanchez was not a seaman.

After the en banc re-hearing, the panel unanimously issued its decision, aligning Fifth Circuit jurisprudence with that of the Supreme Court related to what qualifies an employee seaman status. In prior Fifth Circuit cases, the court struggled with the Supreme Court’s two-part test issued in Chandris, Inc. v. Latsis, as to whether (a) the employee’s duties contribute to the function of the vessel or the accomplishment of its mission, and (b) the employee has a connection to a vessel (or identifiable fleet of vessels) in navigation that was substantial in both duration and nature.2 When considering the first prong of this test, the Fifth Circuit has traditionally relied on the simple question as to whether the employee does the ship’s work.3

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November/December 2021

49

LEGAL TRENDS

As to the second prong, the Fifth Circuit has often considered a connection that is substantial in duration and nature to include a worker who spends more than 30% of his time of employment onboard the rigs and subject to the “perils of the sea.”

The en banc Sanchez court determined whether a maritime worker is a seaman entitled to benefits under the Jones Act, noting that courts should not only consider whether the worker is subject to the perils of the sea but also the following questions: • Whether the worker’s allegiance is to the vessel or simply the shoreside employer?

• Whether the work is only sea-based or is a seagoing activity?

• Whether the worker’s tasks are limited to the performance of a discrete assignment and any connection to the vessel ends after the task is completed or whether the assignment includes sailing with the vessel from location to location?

In Sanchez the court determined that Sanchez’s allegiance was to his shoreside employer, his work was only sea based as it had no bearing on a seagoing activity, and it was a limited and discrete assignment; therefore, his connection with the vessel ended when the assignment was completed.

This opinion makes clear that whether an employee is a seaman is likely to turn on specific, fact-intensive inquiries regarding the employee’s scope of work and connection to the vessel. Additionally, the decision is not only important for workers in the oil and gas industry and companies that service and repair rigs, but also for rig and ship companies that need to consider the opinion when it comes to insurance and classification of employees.

The Houston Lawyer

Melissa Vest, an associate in the Houston office of Baker Donelson, concentrates her practice in commercial disputes, employment law, and financial services litigation.

Endnotes 1.

2.

3.

50 November/December 2021

thehoustonlawyer.com

Sanchez v. Smart Fabricators of Texas, LLC, 970 F.3d 550 (5th Cir. 2021).

Chandris, Inc. v. Latsis, 515 U.S. 347 (1995); see Naquin v.

Elevating Boats, L.L.C., 744 F.3d 927 (5th Cir. 2014); In re Endeavor Marine, 234 F.3d 287 (5th Cir. 2000).

Becker v. Tidewater, Inc., 335 F.3d 376, 386 (5th Cir. 2003).

Media Reviews

Eric Berger’s Liftoff and His Account of the Early Days of Elon Musk’s SpaceX

By Eric Berger HarperCollins Publishers, 2021 Reviewed by Avi Moshenberg

I

n keeping with this issue’s space theme, those looking for a new book to read should gravitate toward Liftoff, by Houston’s hometown hero, Eric Berger of Space City Weather.

In his first book, Berger tells the previously untold story of Elon Musk and the desperate early days that launched SpaceX. Liftoff beams readers back to when Musk founded SpaceX and assembled a team to launch its first rocket into space.

Until then the space industry had been dominated by titans like Boeing and Lockheed Martin and the success of a convention-bucking startup like SpaceX was dismissed as science fiction. Berger chronicles how SpaceX overcame failure after failure to turn the launch of its Falcon 1 rocket into reality—a years-long journey that transports readers from California to Texas to the tiny Pacific island of Kwajalein.

While many books have been written about SpaceX, what makes Liftoff so special is the unfettered access Elon Musk granted Eric Berger. Besides being Houston’s meteorologist, Berger has covered SpaceX and NASA for years as a space journalist. So, when he first proposed the idea for a book about SpaceX’s start to Elon Musk, Musk not only agreed but also insisted that Berger talk to all the players who helped propel SpaceX in those early years. Before Liftoff, Musk had never consented to telling the story in full, or to allow an author free rein inside SpaceX to

speak with employees about his company’s formative years. Musk met with Berger many times—inviting Berger to attend technical meetings on SpaceX’s latest projects. The result is an exciting account filled with neverbefore-told stories of SpaceX’s turbulent beginning.

Today SpaceX no longer needs any introduction because of the lessons the company learned and the achievements it accomplished in those tough early years. It’s easy to forget how crazy the idea of SpaceX was at the time—and how closely the company teetered on the brink of collapse. At one point, Elon Musk was advised to let either SpaceX die or his other baby, an electric-car company you may have heard of. Musk explained to Berger that it was a high-drama situation that was much better in recollection than at the time. Eric Berger’s Liftoff brings that highdrama situation to life and gives readers a taste of the extraordinary flightpath Elon Musk’s SpaceX has charted.

And that path is only beginning. As Berger writes, Elon Musk remains laserfocused on his goal of landing humans on Mars: “Yet at his core, Musk remains the same passionate, nerdy, driven person who founded SpaceX to make humans a multiplanetary species. He still speaks with the same earnestness about Mars. Only a goal that seemed preposterous in 2002 now merely seems audacious.”

Of course, space enthusiasts will delight in reading Liftoff—especially thanks to Eric Berger’s writing style, which makes a technical subject (literally rocket science) simple to digest and easy to enjoy. I certainly picked up this book for a good story about spaceflight. But what surprised me was how much I also enjoyed Liftoff as a lawyer.

In reading the book, in fact, I often found myself wondering what lessons other lawyers would take away. Would a lawyer thinking about leaving big law be inspired by those SpaceX employees who left their

comfortable jobs at major aerospace firms?

What lessons might lawyers starting their own firms look to in Elon Musk’s story of building an aerospace company from the ground? How could SpaceX’s failed rocket launches teach attorneys how to learn and rebound from devasting defeats? Could lawyers thinking of switching their practice areas be moved by Musk’s departure from PayPal to start a fledgling rocket company?

How might SpaceX’s mission of reinventing spaceflight embolden attorneys to challenge tired legal conventions? As with any good book, the takeaways come from what that the reader brings to the story.

I look forward to seeing where Musk’s story lands and where Berger’s next book takes us. In the meantime, countdown and enjoy Liftoff.

Avi Moshenberg is a senior commercial and employment litigator with McDowell Hetherington. He serves on the editorial board of The Houston Lawyer.

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November/December 2021

51

LITIGATION MARKETPLACE

Office Space

Position Available

HOUSTON/Greenway Plaza/West University area (Edloe St.) 1715 sq.ft. Garden entry. Quiet, elegant office. Current occupant, attorney, retiring. Contact attorney/landlord at lawtks2727@yahoo.com.

San Antonio/Hill Country AV Rated Nine Lawyer Estate Planning and Probate Law Firm seeking an associate lawyer with substantial probate experience (preferably 5 years or more) to head up the firm’s probate division. The well-established firm has an extensive list of clients and a strong referral base. The firm has a substantial Hill Country practice with a satellite office in Kerrville. The ideal candidate will be a self-starter with strong communication and organizational skills. He or she should be technically proficient in probate, trust law, with experience in real property law. The position offers competitive compensation commensurate with experience, retirement and health insurance benefits as well as reasonable billable hour requirements. This is an excellent opportunity for someone interested in living in a wonderful and growing part of Texas while advancing his or her career. Interested candidates should submit a resume to ggaedke@caglaw.net.

Heights area law office sharing 1 large, furnished office (approx 15x15) available January 1. Modern building with 24 hour security on North Loop near Shepherd with downtown views. Beautiful conference room with 60” TV/ Whiteboard, color copier/fax/ scanner available on network, internet, full featured VOIP phone system, Wi-Fi and wired internet, attached covered parking, room for your files. Kitchen in suite with microwave/pizza oven, coffee, soft drinks, water and snacks available. Contact Mike or Teri at 713-529-2020 for more information.

Austin, TX - We have 4,600 rentable square feet of office space WITH a HUGE RATE DISCOUNT AVAILABLE NOW! Across the street from the Capitol. NEW ADVANCED PURIFICATION AIR SYSTEM AND NEW LED LIGHTING. It has 9-10 private offices, open work areas, and a large shared kitchen. Garage parking and furniture are available too.

Contact Patrick; 915-373-0488 pfinnegan@texcon.org.

d true toHOUSTON our mission: MEMORIAL

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A Profile in Professionalism:

Law in the Family

The Boyce Family

From page 42

how to be better lawyers and better people.

They have taught us many lessons, including a crucial one—you will learn more about how to succeed in a legal organization from the people who do not have a law degree.

Bill’s service as a justice on the Fourteenth Court of Appeals from 2007-2018 was a particularly fulfilling time in our lives. Bill is grateful for his time on the bench, and this experience has carried over to his appellate and arbitration practice today.

We are thankful that the skills and experience we have gained as lawyers and on the bench have opened up opportunities to serve our community in ways we would not have anticipated. This is true of Bill’s service as part of the Texas Judicial Commission on Mental Health, which seeks to improve the administration of justice for persons with mental illness and intellectual and developmental disabilities. He also serves on the board of Breakthrough Houston, an organization that launched Emily on her teaching career. Maria is a member of the bipartisan Federal Judicial Evaluation Committee and has served as an officer and trustee of two major foundations of the Episcopal Diocese of Texas. She also has served on the board of trustees of St. John’s School and Connecticut College.

Our life in the law continues. We do not know where our paths will take us, but we do know that our experiences will lead us in the right direction together.

The Reeder Family

From page 44

Lauren: Pro bono should be a part of every lawyer’s practice. The Bar is an exclusive club that takes an expensive education and test to get in. But everyday people have issues that only a lawyer can effectively resolve. Those people shouldn’t be shut out from the Courts or legal advice because of money.

Michael: As we approach the end of the year, where we are coming out of a pandemic and getting back into the courtroom and our offices, it feels like a good time to recommit to our oath and values around professionalism. thehoustonlawyer.com

November/December 2021

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