May 2023 DBA Headnotes

HEADNOTES

Crain Brogdon: Champions of Justice for All

BY MICHELLE ALDEN

The Dallas Volunteer Attorney Program (DVAP) is very fortunate again this year to receive the support of Crain Brogdon, LLP, with a $25,500 donation. This makes an impressive total of $327,205 from Rob Crain and his previous and current firms, along with a $50,000 pledge to the DVAP Endowment, the Justice Forever Fund. Crain Brogdon, LLP is a team of lawyers and professionals focusing on serious personal injury and wrongful death cases of all types. Though their practice is concentrated in North Texas, the firm handles cases throughout the country.

Why do the accomplished attorneys of Crain Brogdon support equal access to justice? “Justice for one can only happen when there is justice available to all. DVAP opens the courthouse doors to those who often need it most but do not have the means. We are proud to be a small part of our legal community’s most important collective endeavor, supporting DVAP,” said Rob Crain.

2022 was a year of transition for our community. DVAP continued to conduct virtual legal clinics every Thursday and a virtual veteran’s clinic the first Friday of each month, along with periodic specialized wills, driver’s license restoration, and eviction clinics. DVAP also restarted various in-person legal clinics, including those in South Dallas, West Dallas, and at the VA Hospital. The combination of virtual and in-person clinics provides a variety of choices to applicants and volunteers alike so that everyone can choose the most convenient option for themselves.

The largest area of need for DVAP clients continues to be family law. In one such case, “Barbara” came to DVAP seeking help with a custody matter. Barbara and her ex-husband’s divorce decree named them joint conservators of their son, with her ex as

primary conservator. However, the decree did not outline a visitation schedule. Initially, the father agreed to allow visitation every other weekend but gradually stopped letting Barbara see their son. She sought assistance with modifying the decree. DVAP volunteer attorney Brian Morrow accepted the case and filed suit to modify. The ex-husband filed an answer and continued to deny Barbara access to their son. Brian set the case for trial. The ex-husband failed to appear, and the judge granted her standard visitation. Barbara was relieved and grateful to be able to spend time with her precious son again.

Each case placed with a volunteer attorney by DVAP can lead to life-changing results—one more parent with access to their children, one more veteran with access to benefits earned, one more grandparent able to adopt a child whose parents are absent, or one more person who is able to finally secure employment due to an old criminal charge being expunged.

“There are many opportunities for lawyers to give time and money to worthwhile causes, but DVAP stands head and shoulders above the rest. I have never second-guessed Crain Brogdon’s contributions to this worthy cause. I know to a certainty that our DVAP contributions are making a real difference in real peoples’ lives,” said Quentin Brogdon

DVAP is a joint pro bono program of the DBA and Legal Aid of NorthWest Texas. The program is the only one of its kind in Texas and brings together the volunteer resources of a major metropolitan bar association with the legal aid expertise of the largest and oldest civil legal aid program in North Texas. For more information, or to donate, visit www. dallasvolunteerattorneyprogram.org. HN

Michelle Alden is the Director of the Dallas Volunteer Attorney Program. She can be reached at aldenm@lanwt.org.

Bar None XXXV Presents Where The Law Dads Sing!

BY MICHELLE ALDEN

Join the cast and crew of Bar None

June 14-17 as they present Bar None

XXXV: Where the Law Dads Sing!

This is the 35th year for the Bar None variety show and it promises to be the best show yet. Watch Dallas area lawyers and judges sing, dance, and make you laugh so hard your sides hurt.

As much as the cast and crew love performing and making people laugh, their real motivation is to support the Sarah T. Hughes Diversity Scholarship program.

The scholarship program was established in honor of U.S. District Judge Sarah T. Hughes, a former trustee of the Dallas Bar Foundation, who devoted herself to improving the rights of women and minorities. The Hughes Scholarship provides tuition and fees for deserving minority students each year. Students at SMU Dedman School of Law, UNT Dallas College of Law, and Texas A&M School of Law are eligible to apply for the scholarship.

The Dallas Bar Foundation takes its responsibility for finding deserving recipients seriously. If you have ever met a Hughes Scholar, you know how

impressive these students are. Support them by coming to Bar None. Thousands of volunteer hours go into putting on such a large production each year. The hours come from lawyers all over the metroplex including 35-year-veteran Director Martha Hardwick Hofmeister and Producer Tom Mighell, as well as the choreographers, script writers, committee members, actors, and numerous behind-the-scenes staff. All of these Bar Noners share a passion for making a difference in the lives of the Scholars, our legal community and, for a few hours, the audience members. Show your support for the Dallas legal community and the Hughes Scholars by heading to the Greer Garson Theatre on the SMU Campus June 14-17.

To purchase tickets, visit www.barnoneshow.com, or contact Elizabeth Philipp at (214) 220-7487 or ephilipp@dallas bar.org for sponsorship and ticket information.

Michelle Alden is the Director of the Dallas Volunteer Attorney Program and a Member of the Marketing Committee of the Bar None Production Company. She can be reached at aldenm@lanwt.org.

Rob Crain, left, and Quentin Brogdon, right

Programs and meetings are presented Virtually, Hybrid, or In-Person. Check the DBA Online Calendar (www.dallasbar.org) for the most up-to-date information. Programs in green are Virtual Only programs.

Calendar May Events

ASIAN AMERICAN & PACIFIC ISLANDER HERITAGE MONTH

May is Asian American & Pacific Islander Heritage Month. For additional Heritage resources, visit the ABA’s website at https://bit.ly/3lPPCdG. To find out more about the Dallas Asian American Bar Association, visit www.daaba.org. For more on the DBA’s Diversity Initiatives, log on to www.dallasbar.org

WEDNESDAY WORKSHOPS

MAY 3 Noon “How to Prevent a Grievance and What to Do If One Is Filed,” Bob Bennet.

MONDAY, MAY 1

Noon Tax Law Section

“Federal Tax Update,” Prof. Bruce McGovern. (MCLE 1.00)* In person only

TUESDAY, MAY 2

Noon Corporate Counsel Section

“Bankruptcy 101: What In-House Counsel

Should Know About Creditors’ and Debtors’ Rights,” James Billingsley, Carl Moore, and Rachael Smiley. (MCLE 1.00)*

Tort & Insurance Practice Section

“The Corporate Representative Deposition: Preparation, Privilege, and Practice Tips,” Natalie DuBose and David Taubenfeld. (MCLE 1.00)* In person only

Morris Harrell Professionalism Committee. In person only

DWLA Board of Directors 6:00 p.m. DAYL Board of Directors

WEDNESDAY, MAY 3

Noon Wednesday Workshop “How to Prevent a Grievance and What to Do If One Is Filed,” Bob Bennet. (MCLE 1.00)* Virtual only

Employee Benefits & Executive Compensation Law Section “Welfare Plan Update,” Kelly Pointer. (MCLE 1.00)* Virtual only

Solo & Small Firm Section “Employment Law: What You (and Your Clients) Need to Know About Hiring, Firing, and Everything in Between,” Jennifer Spencer. (MCLE 1.00)*

Allied Bars Equality Committee. Virtual only 4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.

THURSDAY, MAY 4

Noon Construction Law Section

“Evaluating Damages in Construction

Cases: What is Recoverable, How Much is Recoverable, and How Experts are Used in the Analysis,” Alex Bell. (MCLE 1.00)* In person only

Peer Assistance Committee

“Defending Jan. 6 Clients on Sedition Charges in D.C.: Dallas Attorneys Share Their Experiences and The Toll They Took,” Lee Bright, Phillip Linder, and moderator Terry Bentley Hill. (Ethics 1.00)* In person only

Criminal Justice Committee. Virtual only

FRIDAY, MAY 5

No DBA events scheduled

MONDAY, MAY 8

Noon

Real Property Law Section “The Texas Supreme Court’s Recent Impact Upon Commercial Landlords,” James Pikl. (MCLE 1.00)*

Golf Tournament Committee. Virtual only Peer Assistance Committee. In person only

TUESDAY, MAY 9

Noon

Business Litigation Section Topic Not Yet Available

Immigration Law Section Topic Not Yet Available

Mergers & Acquisitions Section “Decentralized Organizations DO Matter,” Mike Laussade and Dana Nguyen. (MCLE 1.00)* Virtual only Courthouse Committee. Virtual only Home Project Committee. In person only

5:30 p.m. Allied Bars Equality Committee Movie Night “Till,” the true story of Mamie Till-Mobley’s relentless pursuit of justice for her 14-yearold son. RSVP at dallasbar.org.

6:00 p.m. Dallas LGBT Bar Association Board Meeting

WEDNESDAY, MAY 10

Noon Bankruptcy & Commercial Law Section

“13 Things to Know About Chapter 13,” Carey Ebert, Gwendolyn Hunt, and Theda Page. (MCLE 1.00)* In person only

Family Law Section

“Practicing with the 255th District Court, and Case Law Update,” Hon Vonda Bailey, Hon. Jean Lee and Chris Meuse. (MCLE 1.00)* In person only

Bench Bar Conference Committee

Public Forum Committee. Virtual only

Summer Law Intern Program Committee

4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.

5:00 p.m. Real Property Law Spring Social At the Arts District Mansion. RSVP to kbattista@munsch.com.

THURSDAY, MAY 11

Noon Legal History Discussion Group

“Lawyers, Legislators, Justices and the Turn to Slavery in Seventeenth Century Virginia,” Prof. Alan Tully. (MCLE 1.00)* In person only

CLE Committee. Virtual only

Publications Committee. Virtual only

5:30 p.m. Online Annual Evening Ethics Fest Free for DBA members. (Ethics 3.00)* Register at dallasbar.org. Sponsored by the Legal Ethics Committee. Virtual only

FRIDAY, MAY 12

Noon Government Law Section

Topic Not Yet Available

Trial Skills Section

“Advice from the State Court Bench: Improving Your Oral and Written Advocacy,” Julie Pettit. (MCLE 1.00)*

DAABA’s AAPI Month Luncheon

More information at daaba.org.

SUNDAY, MAY 14

10:30 a.m. Mother’s Day Brunch at Arts District Mansion

Adults: $49.95, Children 6-12: $15. RSVP culinairesales@dallasbar.org or (214) 220-7404.

MONDAY, MAY 15

Noon Allied Bars Equality Committee

“DEI Movie Discussion CLE: ‘Till’,” Opal Lee, Hon. Renee Toliver, and moderator Ashley Wright. (DEI CLE 1.00)* Virtual only

Labor & Employment Law Section

Topic Not Yet Available

TUESDAY, MAY 16

Law Day Luncheon Keynote speaker Vitalii Tarasiuk, Consul General of Ukraine to the Southwest. (MCLE 1.00)* Tickets $65; Tables $650. Register dallasbar.org.

International Law Section

Topic Not Yet Available. Virtual only

Community Involvement Committee. Virtual

WEDNESDAY, MAY 17

Wednesday Workshop

“Where No Man Has Gone Before: An Introduction to Space Law,” Howard Chang. (MCLE 1.00)* Virtual only

Energy Law Section

“Recent Energy Transactions and Deal Trends,” Jason Schumacher. (MCLE 1.00)* In person only

Health Law Section

“Arbitration and Mediation Trends in a Post-COVID World,” Lisbeth Bulmash. (MCLE 1.00, Ethics 0.25)*

Pro Bono Activities Committee. In person only

4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.

THURSDAY, MAY 18

Noon Appellate Law Section “Insider Briefing Tips from 5th Court of Appeals Staff Attorneys,” Hilaree Casada, Greg Lensing, Susan Motley, and moderator Hon. Amanda Reichek. (MCLE 1.00)* In person only

4:00 p.m. DBA Board Meeting

FRIDAY, MAY 19

No DBA events scheduled

MONDAY, MAY 22

Noon Science & Technology Law Section

Topic Not Yet Available

Securities Section

Topic Not Yet Available

TUESDAY, MAY 23

11:30 a.m. Allied Bars Equality Committee “The Four Letter Word: Equipping Lawyers in the Fight Against Hate,” Tiffany Burks, Philip Clark, Nicole Dana, Wilson Chu, and moderator CeCe Cox. (Ethics 1.00)* Cost: $15. Register at dallasbar.org. Presented by The Khalid Jabara Foundation, AJC Dallas, ADL Texoma, and the Dallas Holocaust and Human Rights Museum. In person only at the Dallas Holocaust & Human Rights Museum.

Noon Probate, Trusts & Estate Law Section “Judge’s Panel – Dallas County Probate Courts,” Hon. Julia Malveaux, Hon. Margaret Jones-Johnson, and Hon. Ingrid Warren. (MCLE 1.00)* In person only

WEDNESDAY, MAY 24

Noon

Collaborative Law Section

Topic Not Yet Available

Antitrust & Trade/EASL Sections “FORE! Understanding the PGA v. Live Tour Antitrust Lawsuit,” Ruben Alan Garcia, Danielle Hare, and Tom York. (MCLE 1.00)* In person only

4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.

THURSDAY, MAY 25

11:30 a.m. DBA Golf Tournament Registration opens at 11:30 a.m. Shotgun start at1:30. Benefits Entrepreneurs in Community Lawyering. Cowboys Golf Club, Grapevine. Register dallasbar.org.

Noon Criminal Law Section “Preserving Error for Appeal,” James Whalen. (MCLE 1.00)*

Environmental Law Section

Topic Not Yet Available

Intellectual Property Law Section “Demystifying IP Litigation at the International Trade Commission,” Reginal Lucas. (MCLE 1.00)*

Minority Participation Committee. Virtual only

FRIDAY, MAY 26

No DBA Events Scheduled

MONDAY, MAY 29

DBA offices closed in observance of Memorial Day

TUESDAY, MAY 30

Noon

Intellectual Property Young Lawyers

Topic Not Yet Available

WEDNESDAY, MAY 31

Noon DBA CSF Board of Directors Meeting 4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact mmejia@dallasbar.org.

President’s Column

The Month of May has Something for Everybody

BY CHERYL CAMIN MURRAY

May is a wonderful time of year. According to The Old Farmer’s Almanac , the month of May’s name was based on the Roman goddess Maia, an earth goddess who oversaw the growth of plants. May also stems from the word “maiores,” which is Latin for elders. The elders were celebrated during this time of year.

At the Dallas Bar Association this year, we will use the month of May to celebrate the law, Portugal, mothers, and golf, as well as honor our military service members. Before I go into detail regarding these May events, I would like to mention the recent celebrations of Judges that were hosted at the Arts District Mansion and the collaboration by firm managing partners.

Judicial Investitures

Over the past four months, the DBA hosted investitures for Judges Maria Aceves , LaDeitra Adkins , Veretta Frazier , Monique J. Huff , Dianne Jones , Julia Malveaux , Marilynn Mayse , Nancy Mulder , Sandre Streete , Nicole Taylor , and Dominique Torres Williams , as well as Justices Maricela Moore Breedlove and Nancy Kennedy . It was truly an honor to witness these inspirational and memorable events with their colleagues, friends, and family members. The DBA is very fortunate to have such a talented and devoted judiciary, who serve on DBA Committees, the Board of Directors, and as leaders in the Dallas community. A big thank you to our DBA Executive Director, Alicia Hernandez , and Executive Assistant, Liz Hayden for their extremely hard work in coordinating these successful celebrations.

Managing Partner Roundtable

On April 4 the DBA Law Firm Engagement and Promotion Committee sponsored a Managing Partner Roundtable breakfast program. Local managing partners of mid- to large-law firms were invited to this forum to discuss the biggest challenges they are confronting in their firms and with their lawyers, and share their ideas and solutions. The goal is for the DBA to develop action items to help these firm leaders have solutions for improving their organizations and the careers for their attorneys.

Portugal Excursion

Enough about the past, let’s focus on the exciting events to come in the future. On May 3 the Dallas Bar Association is organizing a trip to Portugal for DBA members and their guests to explore Lisbon and Northern Portugal’s rich cultural delights, diverse wines, and vibrant culinary scenes. This immersive program will provide an opportunity for the travelers to engage with local scholars, international lawyers, musicians, and artists offering poignant commentary on the Portuguese and EU legal and political systems— while receiving CLE credit. In addition, we will learn about U.S.-Portuguese relations, art, history, architecture, and religion. I look forward to providing you with an update in the future on this wonderful international voyage to the heart of Portugal.

Mother’s Day Brunch

The DBA Mother’s Day Brunch will be held on May 14. Culinaire does an amazing job of creating a beautiful display of delicious cuisine for the entire family to enjoy at the Arts District Mansion. There are flowers, music, and balloons. It is an elegant event that you do not want to miss. Please make your reservations early before it sells out. You may do so by calling 214-220-7404 or emailing Culinaire at culinairesales@dallasbar.org.

Law Day

A couple of days later, on May 16, the DBA will host its’ annual Law Day event at noon at the Arts District Mansion. Each year the DBA celebrates the importance of law and its impact on our nation and communities by hosting this luncheon. The student winners of our Law Day essay, photo, and poster contests are recognized at this event. We are very honored to have Vitalii Tarasiuk , Consul General of Ukraine to the Southwest , as our keynote speaker this year. We are planning a fireside discussion with the Consulate General and will cover the current challenges with enforcing the rule of law in Ukraine. We anticipate this will be an extremely impactful and unforgettable program that you will not want to miss. Please mark your calendars and join us. Tickets are available at dallasbar.org.

Headnotes

The

purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.

OFFICERS

President: Cheryl Camin Murray

President-Elect: Bill Mateja

First Vice President: Vicki D. Blanton

Second Vice President: Jonathan Childers

Secretary-Treasurer: Kandace Walter

Immediate Past President: Krisi Kastl

Directors: Katie Anderson, Alison Ashmore (President, Dallas Women Lawyers Association), Lauren Black, Callie Butcher (President, Dallas LGBT Bar Association), Rob Cañas, Stephanie G. Culpepper (Vice Chair), Rocio Garcia Espinoza, Hilda Galvan, Carla Verena Green (President, Dallas Hispanic Bar Association), Amber Hamilton Gregg (President, J.L. Turner Legal Association), Hon. Martin Hoffman, Nicole Muñoz Huschka (President, Dallas Association of Young Lawyers), Andy Jones, Jennifer King, Derek Mergele-Rust, Hon. Audrey Moorehead, Timothy Newman, Hon. Erin Nowell, Sarah Rogers (Chair), Janet Landry Smith (President, Dallas Asian American Bar Association), and Drew Spaniol

Advisory Directors: Stephanie Almeter (PresidentElect, Dallas Women Lawyers Association), Kristine Cruz (President-Elect, Dallas Asian American Bar Association), Trerod Hall (President-Elect, J.L. Turner Legal Association), Haleigh Jones (President-Elect, Dallas Association of Young Lawyers), Edward Loya Jr. (President-Elect, Dallas Hispanic Bar Association), and Elissa Wev (President-Elect, Dallas LGBT Bar Association)

Delegates, American Bar Association: Rhonda Hunter, Mark Sales

Directors, State Bar of Texas: Chad Baruch, Mary Scott, Paul Stafford, Robert Tobey, Aaron Tobin

HEADNOTES

Executive Director/Executive Editor: Alicia Hernandez

Communications/Media Director & Headnotes

Editor: Jessica D. Smith

In the News: Judi Smalling

Display Advertising: Annette Planey, Jessica Smith

PUBLICATIONS COMMITTEE

Co-Chairs: Elisaveta (Leiza) Dolghih and Ted Huffman

Co-Vice-Chairs: Gracen Daniel and John Koetter

DBA & DBF STAFF

Executive Director: Alicia Hernandez

Accounting Assistant: Jessie Smith

Communications/Media Director: Jessica D. Smith

Controller: Sherri Evans

Events Director: Rhonda Thornton

Executive Assistant: Elizabeth Hayden

(i) different generations, different work styles and motivations; (ii) return to work policies and procedures; and (iii) the rise in mental health issues and its impact on firms and corporate legal departments. There was excellent participation and dialogue from these managing partners, and that was due in large part to the wonderful Committee Co-Chairs Vicki Blanton , Senior Legal Counsel at AT&T, Hilda Galvan , Partner-in-Charge of the Dallas office of Jones Day, and former Justice Doug Lang , Senior Counsel at Thompson Coburn LLP, who moderated the discussions. If you are a managing partner, and you missed this program, then don’t fret. We will be planning a follow-up roundtable in a few months to prioritize the firm challenges and formulate solutions.

Topics discussed at this program included

Golf Tournament

The DBA Annual Golf Tournament will be taking place on May 25 at Cowboys Golf Club in Grapevine. The Tournament’s proceeds benefit Entrepreneurs in Community Lawyering (ECL). ECL is the DBA’s 501(c)(3) incubator program, which provides resources and mentoring to attorneys seeking to serve clients of modest means, which in turn furthers access to justice. This is an excellent way to have a great time, network, burn calories, and raise money for a great cause. We welcome golfers at all levels from Mini Golfers to those at the Masters.

Memorial Day

May 29 is Memorial Day, which is a day of honoring our veterans and remembering those American fallen heroes, who will never be forgotten. We cannot thank enough the men and women who bravely served, and those who continue to serve, our country in the United States Armed Forces.

Secret Strategies to Lessen Stress and Improve Success

I should also mention a program that is coming up on June 2. The DBA Professional Personal Parity Program Committee will be hosting its first event entitled Secret Strategies to Lessen Stress and Improve Success . This program will be from noon to 5:00 p.m. at the Arts District Mansion, and will be followed by a happy hour immediately after the program. We are thrilled that Tara Antonipillai, the founder of Cultivate, will be serving as our instructor to teach us skills for stress management, resilience, job satisfaction, better communication, and self-awareness. We appreciate this Committee’s dynamic co-chairs Lauren Black , the Deputy Administrator at the Dallas County District Attorney’s Office, and Jennifer King , a Partner at Kershaw Anderson King, PLLC, for their hard work in organizing this program.

There is something for everyone in the month of May. I look forward to seeing you this month at the Arts District Mansion, on the golf course and/or in Portugal. Cheryl

Executive Director, DBF: Elizabeth Philipp

LRS Director: Biridiana Avina

LRS Interviewer: Giovanna Alvarado

LRS Program Assistant: Marcela Mejia

Legal Education Coordinator: Viridiana Rodriguez

Director of Marketing: Mary Ellen Johnson

Membership Director: Shawna Bush

Publications Coordinator: Judi Smalling

Receptionist/CLE Coordinator: Araceli Rodriguez

Staff Assistant: Yedenia Hinojos

Texas High School Mock Trial & Law Related

Education Director: Melissa Garcia

DALLAS VOLUNTEER ATTORNEY PROGRAM

Director: Michelle Alden

Managing Attorney: Holly Griffin

Mentor Attorneys: Kristen Salas, Katherine Saldana

Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Carolyn Johnson, Suzanne Matthews, Andrew Musquiz, Alicia Perkins, Lorena Santillan

Program Assistant: Laci Payton

Community Engagement Coordinator: Marísela Martin

Secretary: Charnese Garrett

Copyright Dallas Bar Association 2023. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher.

Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 800 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association.

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How Do You Solve a Problem Like Subpoenas?

BY TOM MILLS AND KRYSTAL LAPORTE

Subpoenas are often viewed through the lens of civil litigation. However, subpoenas are a valuable tool for defense attorneys to not only secure critical testimony at trial, but also obtain material and relevant discovery.

There are two common types of subpoenas: the subpoena ad testificandum and the subpoena  duces tecum. A subpoena ad testificandum, more commonly referred to only as a “subpoena,” orders a person to come and testify.

The subpoena  duces tecum is a subpoena where the individual is ordered to come and bring items such as documents or recordings. A  subpoena duces tecum may require the witness to testify as well, either to authenticate the documents to allow their use as evidence or to testify about the facts of the case. When a defense attorney applies for documents using a subpoena duces tecum, it is usually a good practice to include a standard business records affidavit along with the sub-

poena, setting forth the documents the lawyer wishes to receive.

Subpoena Best Practices

For witnesses within Dallas County, a subpoena in a criminal case may be applied for under art. 24.03 of the Texas Code of Criminal Procedure. If the witness resides in another Texas county, Article 24.16 entitles the State or defense to a subpoena for an out-of-county witness in felonies and misdemeanors punishable by confinement. A subpoena must include:

• The specific person, people, or organization being called to testify/bring documents;

• The date that their presence or records are required;

• The items to be produced or inspected, either by individual item or by category, describing each item and category with reasonable particularity, and, if applicable, describing the desired testing and sampling with sufficient specificity to inform the nonparty of the means,

manner, and procedure for testing or sampling;

• The specific Court in which the matter is pending; and

• Any proceeding where the person/people will have to testify.

A subpoena must be served by a sheriff or constable of the State of Texas, or any person who is not a party to the case (including the attorney) and is 18 years of age or older. A subpoena must be served by delivering a copy to the witness and tendering to that person any fees required by law. If the witness is a party and is represented by an attorney of record in the proceeding, the subpoena may be served on that attorney.

The Texas Code of Criminal Procedure Article authorizes Texas attorneys to subpoena out-of-state witnesses for state trials under the “Uniform Act to Secure Attendance of Witnesses from Without State.” Subpoenaing an out-of-state witness requires filing an application with the Texas court in which the matter is proceeding, obtaining a certificate from the Court to affirm the witness’s necessary presence, and filing that certificate in the state or county in which the witness resides. A judge of the state where the witness resides will then issue the subpoena commanding the witness to appear in Texas.

Less Than Best Practices

A subpoena must not:

1. Be issued through improper service

• A subpoena is considered “served” by:

Ŋ Reading the subpoena in the hearing of the witness;

Ŋ Delivering a copy of the subpoena to the witness;

Ŋ Electronically transmitting a copy of the subpoena, acknowledgment of receipt requested, to the last known electronic address of the witness; or

Ŋ Mailing a copy of the subpoena by certified mail, return receipt requested, to the last known address of the witness.

• An attorney may not serve the manager or CEO at a witness’s place of employment in lieu of serving the witness themself. Nor may the attorney serve in-house counsel to compel the testimony of multiple employees. Only an agent or attorney authorized to accept service in lieu of the witness may be served on their behalf.

2. Include a request that is too broad or vague:

• A subpoena is not to be used as a discovery weapon, but as an aid to discovery based upon a showing of materiality and relevance.

3. Request privileged or confidential material:

• Certain communications are considered privileged, including communications between a spouse, attorney, therapist, or priest.

4. Require the witness to incriminate themselves:

• The ABA Criminal Justice Standards state that Defense counsel should not call a witness in the presence of the jury when counsel knows the witness will claim a valid privilege not to testify. An attorney may not threaten to call a witness for the purpose of invoking their Fifth Amendment privilege in the presence of the jury. The process of serving a subpoena requires precision and attentiveness. Before sending your next subpoena in a criminal trial, it is vital to understand the procedural and ethical obligations that defense attorneys may face when doing so. HN

Tom Mills, of Tom Mills Criminal Law, PLLC, can be reached at tmills@tmcriminallaw.com. Krystal LaPorte, Attorney at Law, can be reached at krystallaportelaw@gmail.com.

Bob

2022-2023 Super Lawyers Texas Rising Stars Honorees

No more than 2.5 percent of attorneys in the state are selected. They can be found here at Connatser Family Law.

SARA BARNETT

But That’s My Name: Trademarking Law Firm Names

BY CHAS CARTER AND MICHAEL BARBEE

In 2021, after almost 80 percent of Texas Bar members voted to amend Rule 7.01 of the Texas Disciplinary Rules of Professional Conduct, Texas became the last state to allow trade names for law firms. Now, instead of stringing together surnames, law firms operating in Texas can use trade names so long as they are not “false or misleading.” This change allows firms to choose a name that describes their primary practice area, the size of the firm, or is memorable in some other way. But it also presents new challenges, like how to protect the distinctive identity, reputation, and goodwill of the firm.

The obvious benefit of trade names to law firms is their increased ability to tailor branding and marketing. For example, LawHQ—the Salt Lake City-based law firm behind litigation efforts to strike down trade name prohibitions (including Texas’s) as unconstitutional in 2020—is much easier to remember than its founding partner’s surname, Alvord. This does not necessarily benefit a firm’s reputation in the legal community; rather, it benefits a firm’s ability to memorably identify

itself for potential clients.

Allowing law firms to employ trade names endorses (or at least acknowledges) a shift from tying a firm’s identity and reputation of individual lawyers with their names on the door to a more abstract idea of a law firm as a business. This shift raises an important legal and business concern for law firms: how do you protect your firm’s brand and reputation now that firms nationwide can practice under trade names? While there is not a comprehensive protection scheme or federal registry for trade names like there is for trademarks, trade names can be trademarked if the name constitutes a sufficiently distinctive mark.

The biggest unknown for law firms attempting to protect a trade name arises when the trade name also uses a surname. Trade names do not necessarily replace a firm name consisting of one or more attorney surnames. The current version of the rule keeps the prior version’s allowance for retired and deceased attorneys (including predecessor firms) in the firm’s name. Approving the use of trade names does not eliminate the importance of using an attorney sur-

Conference of the Professions

name for reputational purposes in the firm’s name. Indeed, a firm may choose to include one or more of its attorneys’ surnames within its trade name or have an entirely separate trade name without any surnames for marketing and advertising purposes.

Law firms considering a trade name, however, need to carefully consider the name if the firm wants to secure trademark protection for that name. Creative trade names that avoid generic terms and descriptions are more distinctive and are more likely to receive trademark protection. But what about firms that want to keep the reputation and goodwill of a surname and also take advantage of the now-relaxed naming rules?

If Jane Doe and Jill Smith, for example, previously practiced intellectual property law together as “The Law Offices of Doe & Smith,” but now want to use a trade name, perhaps they would rather use “Doe & Smith IP Law” than something like “The IP Gals.” Even if the firm can secure a trademark on the entire trade name, the individual components of something like “Doe & Smith IP Law” are merely descriptive and the distinctiveness that affords trademark protection will likely only apply to the whole trade name.

Using attorney surnames in a trade name can be a great way to better market a law firm while retaining reputational goodwill, but that does not mean the distinctive nature of the entire name transfers to parts of the name. Personal

names can only be afforded trademark protection as a “descriptive” trademark—requiring both distinctiveness and secondary meaning. For a personal name to acquire secondary meaning, the name must be synonymous with the business bearing that name to the public. Stated differently, a personal name by itself can only be trademarked if the name alone would make a member of the public think of the business rather than the person when he or she hears the name.

So, what happens if the figurative firm secures a trademark on “Doe & Smith IP Law,” but Jack Doe and John Smith practice employment law as “Doe & Smith Employment Law,” and they each want to use the same shortened permutation of their common surnames as a domain name? While the entire trade names may be protected, shortened versions for things like domain names are not likely to be protected. Even if both firms were able to secure a trademark on their respective full trade names, neither of them would be able to claim entitlement to something like “DoeSmithLaw” based on the trademarked trade name. In short, firms considering trade names should carefully weigh how they can protect a name before building a reputation behind it. HN

Chas Carter is an Associate at Griffith Barbee PLLC. He can be reached at chas.carter@griffithbarbee.com. Michael Barbee is a Partner at the firm and can be reached at michael.barbee@ griffithbarbee.com.

New Implications of the FTC’s Health Breach Notification Rule

BY OLIVIA ADENDORFF AND RACHAEL A. REZABEK

On February 1, 2023, in a first-of-itskind enforcement action, the Federal Trade Commission (FTC) filed a complaint in the Northern District of California alleging that GoodRx, a company offering free prescription coupons and prescription price comparison information, violated the agency’s Health Breach Notification Rule (HBNR or Rule) by sharing consumers’ health-related browsing information with third parties without first seeking affirmative express consent. GoodRx did not admit any wrongdoing, and the parties settled the matter through a consent order filed concurrently with the complaint. The FTC’s

shares browsing information with advertising platforms and other vendors through tracking and pixel technologies.

The HBNR went into effect in 2009. The plain text of the Rule requires specific types of entities, such as “personal health records vendors,” to notify consumers and the FTC following a “breach of security” involving unsecured health information. Failure to notify can result in significant civil penalties of up to $50,120 per violation. The Rule was historically understood to narrowly apply to instances of theft or misappropriation of consumer medical records. Consistent with that understanding, the FTC never enforced the HBNR prior to the GoodRx action, and few companies reported breaches under the Rule.

term “health information” was generally understood to be limited to (i) medical and prescription records, such as those generated by a doctor’s office or pharmacy, or (ii) medical data provided by an individual about his or her own health. GoodRx expands the definition of “health information” to include certain types of data that reveal whether an individual has accessed health-related information online. For example, certain types of browsing information alone may be “health information” in the FTC’s eyes.

Second, the FTC now takes the position that disclosure of such “health information” to third parties without first obtaining affirmative express consent is tantamount to a “breach of security” under the Rule. Many (if not most) companies disclose their sharing of “health information” through their privacy policies, including the companies’ use of pixels and trackers on their webpages or mobile applications. With the GoodRx settlement, the FTC signals that disclosure via privacy policy is insufficient to share “health information” unless the third party is bound by strict confidentiality and use restrictions.

Third, the FTC signals that it may treat any entity that has the right to use a company’s consumer data for its own purposes as a “third party” instead of a service provider. In brief, with exception detailed in the GoodRx vendors as a“third party” unless there are contractual provisions in place limiting ven dors’ use of consumer data only enumerated contractual purposes. If a vendor reserves rights to use a company’s consumer data for its own business purposes (such as for research and development, advertising, or optimizing its own services), as many major

advertising platforms do, the FTC will view that vendor as a “third party.”

Considering the GoodRx action, there are certain steps that companies should consider taking before sharing health information with third parties:

• Determine if HBNR Applies Assess whether the HBNR applies to the business, products, and services of the company.

• Review Pixels and Trackers—After GoodRx, the use of digital advertising and analytics technologies by businesses that collect health-related data will be subject to heightened scrutiny. This enforcement action makes clear that businesses that collect health-related personal data from individuals online or via mobile apps need to understand what cookies, pixels, and other tracking scripts and code they are using, what data these tools collect and transmit, and with whom the data is shared.

• Review Vendor Contracts—Companies should consider reviewing vendor contracts to ensure that all vendors that receive “health information” as broadly defined by the FTC are subject to confidentiality and use restrictions.

The authors note that the GoodRx action is a settlement, and thus reflects the FTC’s view of the law, as opposed to settled precedent. However, the FTC will ;

thus, companies should carefully consider the recommendations above to avoid

Focus Antitrust & Trade/Bankruptcy Law

Bankruptcies in the Crypto Industry

BY ROBERT P. FRANKE, ANDREW G. EDSON, AND AUDREY L. HORNISHER

Eight struggling crypto companies filed bankruptcy petitions in a span of six months. This article provides a brief overview of the financial crisis in the crypto industry that triggered a domino effect of bankruptcy filings and unique issues presented in those unprecedented cases.

The Crypto Crisis of 2022

The first set of bankruptcy cases resulted from the collapse of the Terra and Luna coins in May 2022. Three Arrows Capital, a high-profile crypto hedge fund, was the first to file for bankruptcy in July 2022. Within two weeks of this initial filing, crypto lenders Voyager Digital and Celsius Network also filed for bankruptcy. Three Arrows and Celsius both cited the failure of the Terra and Luna coins as a primary reason for their bankruptcy filings. Voyager cited the bankruptcy filing of Three Arrows as a trigger for its bankruptcy. The final filing in the first set of

bankruptcy cases was Core Scientific, a mining platform that cited Celsius’s bankruptcy as a primary reason for its filing. Voyager’s bankruptcy plan was approved on March 7, 2023; the first to successfully emerge from bankruptcy.

The second set of bankruptcy cases stemmed from the infamous and highlypublicized failure of FTX, a cryptocurrency exchange, in November 2022. A primary cause of the FTX bankruptcy filing was the crash of the FTX.US token due to the lack of liquidity and mismanagement of funds. Due to the incestuous nature of financing in the crypto industry, the filing of FTX resulted in a ripple effect that led Alameda Research (a crypto hedge fund and subsidiary of FTX), BlockFi (a crypto lender), and Genesis Global Capital (a crypto lender) to file for bankruptcy shortly thereafter.

Concerns in Crypto Bankruptcies

In addition to the massive losses customers may face when a crypto company files for bankruptcy, crypto bankruptcies impact investors in other ways.

Client Development—Speak at a DBA Program

Interested in sharing your legal knowledge and expertise with your colleagues?

The CLE Committee is looking for speakers and hot topics for the new Wednesday Workshop programs it holds throughout the year. Please submit a short bio, title, and 2-3 sentence description of your presentation to Yedenia Hinojos at yhinojos@dallasbar. org. Submissions will be discussed at monthly CLE Committee meetings.

Confidentiality: One lure of investing in cryptocurrency is the private nature of the transactions. But the FTX bankruptcy brought the issue of confidentiality to center stage when a group of international customers argued that irreparable harm would result from the disclosure of their identities in the schedules and service lists that are required to be filed in the case and public record. The United States Justice Department opposed the redaction of customers’ identities and argued that transparency was necessary for the bankruptcy process. The FTX bankruptcy court ruled that customer information may remain confidential for three months, at which time the court will reevaluate the situation. The FTX ruling runs contrary to the ruling of the Celsius court that ordered the disclosure of certain customer information. An ancillary implication that a bankruptcy court has not thoroughly analyzed is the potential ramification of releasing the names of customers that reside in the EU or another country with more restrictive privacy policies that would be breached with the disclosure.

Automatic Stay: While the purpose of the automatic stay in bankruptcies is to maintain the status quo, its impact in crypto bankruptcies can be devastating due to its potential to block access to customers’ accounts and freeze transactions. Crypto wallets provided by companies like Voyager, Celsius, BlockFi, and Genesis may be used by its customers in a synonymous manner as a bank account to hold funds and conduct transactions. Once the bankruptcy petition is filed, the automatic

stay prevents customers from accessing their accounts until the bankruptcy court determines, typically after a hearing, that the accounts are not the estate’s property or the customer is granted relief from the automatic stay. This process often takes weeks or months to resolve during which time the customers are prohibited from accessing their funds.

Property of the Estate: A primary concern of crypto customers is ownership of accounts, which both the Celsius and BlockFi cases have addressed. In Celsius, the bankruptcy court determined that the funds were the debtor’s property based on a clickwrap clause that specifically designated the ownership interest to Celsius. Alternatively, the BlockFi debtors admitted that customers, per the contract terms, owned certain accounts. The BlockFi court has yet to issue a ruling on the estate’s property but has approved a process for institutional loan accounts. The results in the Celsius and BlockFi cases indicate that contractual terms should control in the absence of government regulations.

Crypto bankruptcies until recently were unprecedented in the bankruptcy context. As precedent is established, bankruptcy courts have come to varying results when addressing issues facing the customers of the crypto debtor. The landscape of crypto cases should become clearer as these bankruptcies evolve. HN

Robert P. Franke, Andrew G. Edson, and Audrey L. Hornisher are bankruptcy attorneys at Clark Hill PLC, and can be reached at bfranke@clarkhill.com, aedson@clarkhill.com, and ahornisher@clarkhill.com, respectively.

highly recommend Martin As Co-Counsel in Healthcare Litigation Cases.”

--Brad Jackson/ Commercial Litigator, Dallas

• Healthcare Trials/Hearings

Analysis of Illegal “kickback” contracts

• Enforceability of 15.50 Non-Competes

Insurance “Clawbacks”

• FBI, OIG, CMS Investigations

Medical License Revocations

Martin Merritt

Chair, DBA Health Law (2021)

President, Texas Health Lawyers Association

Martin@MartinMerritt.com

Dir. (214) 952.1279

Martin Merritt is your co-counsel in healthcare litigation cases. If one side has an experienced health lawyer in their firm and you do not, you can level the playing field by associating Martin Merritt as co-counsel.

You keep the client. Hourly and flat monthly rates available. Martin can try the case, prepare and argue hearings, or simply serve as health law analyst. You stay in control of the case and keep the client.

Experienced. Over 30 years, in Texas and nationally, Martin Merritt litigates cases against the FBI, DEA, OIG, CMS, AUSA, TMB, Tex. OAG, Tex. Med. Bd, Pharm. Bd., TXDSHS, Civil False Claims Act Subpoenas and lawsuits, civil investigative demands, arbitration, criminal and other administrative actions. He has a proven track record applying this knowledge to win victories for business litigators.

(D Mag. Best 2018, 2020, 2022, 2023)

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Pictured left to right: Partners Carla M. Calabrese and Lee Budner

MENTAL HEALTH AWARENESS

STOP and Find Calm: A Mindfulness Technique for Attorneys

BY DARRIN PFANNENSTIEL

As an attorney-turned-therapist, I understand the constant demands and pressure that come with working in the legal profession. Most of my therapy clients are attorneys or other professionals in high stress/high pressure jobs who come to me for help with problems caused by workplace stress and anxiety.

Of the people I treat, attorneys are the ones most often juggling multiple tasks, dealing with difficult clients, and facing high-stress situations. This can lead to

TLAP Services

l Confidential Services

l 24-hour hotline and crisis counseling

l Peer contact and support

l Referral to resources including lawyer support groups

l Stress management education

feelings of overwhelming stress and anxiety, which can have a negative impact on mental and physical health. However, there is a simple and effective technique that can help attorneys manage stress and find calm during chaos: the STOP technique.

The STOP technique is a mindfulness practice that involves pausing, taking a breath, and bringing awareness to the present moment. It is based on research and is a simple yet powerful tool that can help attorneys manage stress and improve overall wellbeing. Here are the steps to practice it:

l Custom CLE program

l Confidentiality and immunity protections under Texas Health and Safety Code, Chapter 467

l Consultation and compliance services relating to TDRPC, Rule 803 “Reporting Professional Misconduct”

3 Mistakes Law Firms Make Dealing with Attorney Addiction

• Failing to have a plan

• Not offering help early on

• Not planning for a return

Read the full article online at www.law360.com/articles/1143110/3-mistakes-law-firmsmake-dealing-with-attorney-addiction

Ten Tips for Tipping the Balance

Daily positive reading. (Daily Word, Don’t Sweat the Small Stuff, Courage to Change and many others).

Listen to Buddha and practice the presence

If you are depressed, you are living in the past

If you are anxious, you are living in the future with your fears

Live in the now and be happy where you are and who you are

Attitude of Gratitude

Develop boundaries, digitally detox and disconnect at a time certain. Spend time with family, friends, and your dog (or cat or goldfish).

Physical fitness activity, no matter how small.

Meditation and mindfulness. Breathe deeply. Go outside, experience nature, and relax for 5 to 10 minutes.

When angered by a client, opposing counsel, a judge, family, friends or others, remember the three C’s: I did not cause it; I cannot control it; I cannot cure it.

Read something besides the law: Action-packed fast read novels, books of inspiration, or anything that keeps your attention.

Let go and let _ (you fill in the blank).

BONUS TIP: Watch an action-packed movie with lots of mindless action. Not your cup of tea? Just go to the movies. You will not think about the law for the entire two hours and you will usually leave the movie relaxed, with a smile on your face.

S – Stop

The first step is to simply stop what you are doing. This could mean taking a moment to pause, stepping away from a situation, or even closing your eyes. It can be for just one minute.

T – Take a Breath

The next step is to take a deep breath, filling your lungs with air, and then slowly exhaling. Focusing on the breath will help calm the body and bring attention to the present moment.

O – Observe

The third step is to observe your thoughts, emotions, and sensations without judgment. Simply notice what is happening within your mind and body, but do not try to change anything.

P – Proceed

The final step is to proceed with the

task at hand or to make a deliberate choice about how to respond to the situation. This step involves bringing awareness and intention to your actions, rather than reacting impulsively.

By incorporating this technique into daily routines, attorneys can cultivate mindfulness while at work, reduce stress, and improve overall well-being. The STOP technique is a simple and accessible tool that can be practiced anywhere, at any time, and can have a profound impact on mental and physical health. So, the next time you are feeling stressed or overwhelmed, take a few moments to practice the STOP technique—it may just be the tool you need to find calm and approach your work with greater clarity and focus. HN Darrin Pfannenstiel is an attorney-turned-therapist and anxiety specialist in Dallas. He can be reached at darrin. personal@gmail.com.

Top Ten Inspirational Books

The Four Agreements: A Practical Guide – Don Miguel Ruiz

Hope For the Flowers – Trina Paulus

The Giving Tree – Shel Silverstein

Don’t Sweat the Small Stuff – Richard Carlson

Courage to Change - Al-Anon Family Group

The Man in The Ditch – Mike Bassett

Same Kind of Different As Me – Denver Moore, Lynn Vincent, Ron Hall

Tattoos On the Heart: The Power of Boundless Compassion – Great Boyle

Way of The Peaceful Warrior – Dan Millman

The Boy, The Mole, The Fox, and The Horse – Charlie Mackery

Submitted by Al Ellis, Sommerman, McCaffity, Quesada & Geisler, L.L.P. Need Help?

Texas Lawyers’ Assistance Program…………...(800) 343-8527

Alcoholics Anonymous…………………………...(214) 887-6699

Narcotics Anonymous…………………………….(972) 699-9306

Al Anon…………………………………………..…..(214) 363-0461

Mental Health Assoc…………………………….…(214) 828-4192

Crisis Hotline………………………………………..1-800-SUICIDE

Suicide Crisis Ctr SMU.…………………………...(214) 828-1000

Metrocare Services………………………………...(214) 743-1200

988 offers 24/7 access to trained crisis counselors who can help people experiencing mental health-related distress. That could be:

Thoughts of suicide

Mental health or substance use crisis, or Any other kind of emotional distress

People can call or text 988 or chat 988lifeline.org for themselves or if they are worried about a loved one who may need crisis support.

Consistency v. Complacency – Introspection is Key

BY SHANA STEIN FAULHABER

To be consistent means to do or act in the same manner or fashion regularly or repeatedly over time. Maybe you have heard the expression…Jack of all trades, master of none. Conventional wisdom would have us believe that to get really good at something, we need to cultivate laser focus and devote ourselves wholly to the task. Certainly, there is some merit to that. But like bass prodigy Victor Wooten said, we only master technique to gain the ability to throw it away, so we then become free to jam.

Many experts there have said that to truly master a skill, we need to devote 10 years or 10,000 hours of practice to development of that skill.

Yes. It is no doubt important that whatever we are doing, we put the work in. But to what end? Eventually, even when we really love what we are doing, we will reach a point of diminishing returns, in my experience. Take, for example, my yoga practice. I started practicing yoga during my first year of law school. It was kind of casual for the first several years. But then I started my criminal defense solo law practice in 2008. Simultaneously, my yoga practice skyrocketed to the point that I was on my mat every single day, and by 2009, I had enrolled in a yoga teacher training

program to “deepen my practice.”

My inspiration was on fire and I was putting in all the hours. And I got pretty darn good at a lot of different things. I could bust out complex arm balances and inversions, put myself into intricate pretzel like shapes, and wax spiritual philosophy with the other talking yoga heads. It was exciting and fresh and interesting…until it wasn’t.

By 2018, I had taught thousands of classes, sometimes upwards of 15-20 times a week. Little by little, unwittingly, complacency had crept in, and my teaching began suffering. Inspiration became replaced with canned grins and expressions. Groovy, well-thought-out playlists became replaced by whatever pre-made playlist happened to cross my path. And even my personal practice began to take a dive. What’s more? All the stretching that had once helped me grow had now left me feeling destabilized and painful in my joints.

So, I backed off. I went off and explored fresher seas. Including Pilates. And all sorts of other things. After a decade of teaching yoga all over Dallas, I gave it up completely. I do not think I fully appreciated until very recently what had been taking place all those years ago. Consistency had turned into complacency. To be a master, it is not enough to simply do the same thing

over and over. Without our constant intent, introspection, and continual commitment to learning, the practices that were yesterday’s best friend can become today’s worst enemy.

During the pandemic, I decided to start a closed Facebook community for licensed Texas attorneys called “Texas Lawyers Wellness.” It felt like a way that I could be of service to our community at large and I just decided to go for it. I had no idea at the time that this would serve as the impetus that would lead me back to my yoga mat as a teacher. But ultimately that is exactly what happened.

This past Fall I organized a Wellness Retreat for our group and led meditation. It felt so good to be back in that place and now several months later, I am once again teaching yoga weekly at a new studio off Oak Lawn and have organized our lawyer’s wellness retreat

again for this Fall. As I move back into this role, I have set a strong resolve not to again let complacency take hold.

Of the upmost importance is that we stay in gratitude. Once gratitude fades it is easy to start taking our blessings for granted and subsequently failing to give our best. Also, rest is just as important as doing our tasks. We must take breaks! Finally, it is equally important to maintain what in yoga we refer to as a “beginner’s mind.” When we think we know it all, we are toast. I will never forget the parting words on the last day of class from my professional responsibility teacher in law school.

He said: It is my sincere desire that you will forever remain a student of the law. And that is my hope for y’all as well. HN Shana Stein Faulhaber is a criminal defense attorney, certified mediator, and registered yoga teacher. She can be reached at shana@faulhaberfirm.com.

Defending Jan. 6 Clients on Sedition Charges in D.C.

Dallas Attorneys Share Their Experiences and The Toll They Took

Speakers: Lee Bright, Phillip Linder, and Terry Bentley Hill (moderator)

Thursday, May 4, Noon at the Arts District Mansion | Ethics 1.00

Sponsored by the Peer Assistance Committee

Dallas Asian American Bar Association: A Close-Knit Community

In 1988, a small group of 15 Asian American Pacific Islander (AAPI) attorneys—seeing a gap in programming and advocacy geared towards AAPI attorneys and the AAPI community in Dallas—came together to establish the first Asian American bar association in Dallas. With the goals of fostering a sense of camaraderie among AAPI attorneys in Dallas/Fort Worth, and advocating for the interests of the AAPI community, these 15 individuals took their ideas and momentum and, thus began the Dallas Asian American Bar Association (DAABA). Thirty-five years later, the organization is still growing, recording 350-plus paid members. DABBA was established for the benefit of AAPI attorneys, law students, and other legal professionals in the DFW metroplex. Its core purposes focus on advocacy of AAPI attorney interests and promotion of its members’ professional growth and good standing. As of 2015, approximately 67 percent of the self-identified AAPI attorneys practicing in Dallas County were DAABA members—a testament to the hard work of DAABA members and leaders over the past 35 years.

DAABA is currently led by President Janet Landry Smith; President Elect Kristine Cruz; Treasurer Ashley Yen; Secretary Alen Samuel; Directors Marissa Boulanger, Eric Chen, Hanna Kim, Sophia Mai, Jacob George Mathew, and Vinita Tandon Singh; and Advisory Directors Jonathan Koh, Immediate Past President, and Jennifer Wang

Emerging from the more severe impacts and isolation caused by the COVID-19 pandemic, DAABA’s mission for 2023 centers on reinvigorating its membership. With plans to

strengthen its Mentorship Program, CLE programming, professional award nominations, and social events, DAABA has high hopes for in-person attendance throughout the year and the development of a pipeline for future organization membership and leadership. Additionally, plans are already underway for the Annual DAABA Awards Night to be held on October 5, 2023, at the new JW Marriott Hotel in Dallas featuring a fireside chat with HF Sinclair Executive Vice President and General Counsel Vaishali Bhatia

“I first became involved in DAABA when I served as the Law Student Liaison to the Board of Directors. In that role I learned about bar association involvement and leadership by attending DAABA Board meetings and volunteering with programs throughout the year, like the Annual Awards Night,” said DAABA President Janet Landry Smith, in-house counsel at Southwest

2023 Dallas Bar Association

DEI CLE Challenge

The DBA encourages its members to aspire to complete 3 hours of CLE training in the areas of diversity, inclusion, and equity each calendar year. The DBA will recognize members who complete and self-report their 3 hours of DEI CLE by December 31, 2023. Programs that qualify will be identified on the DBA’s online calendar.

Join the Challenge

to be recognized in the February 2024 Headnotes, in DBA Online, and receive your electronic DEI CLE Challenge badge.

Scan to learn more.

Airlines. “Looking back a decade later, I am so thankful for the support, guidance, and opportunities I have received over the years from the friends and mentors I met through this organization. My hope for the organization this year is to continue our legacy of advocating for the interests of the Dallas Asian American community and creating a platform for the professional growth of our members.”

A close-knit community, with founding members still actively involved, DAABA is a welcoming space for both the established attorney as well as those who are new to practice or new to DFW. DAABA serves as a space for its members to further their professional development goals—whether speaking on a panel, forging relationships through mentorship, connecting with others at a happy hour, or developing confidence in leadership capabilities.

Beyond the programs it hosts in the legal industry, DAABA also has a robust history of serving the greater DFW community. From creative programming during the COVID-19 pandemic such as “Cooking for a Cause”—a virtual, interactive, family-friendly cooking class benefiting Chetna DFW, to Halloween costume drives and Trunk-or-Treat events benefitting Mosaic Family Services, DAABA displays its efforts to not only serve its members, but also DFW.

To celebrate DAABA’s 35th Anniversary in 2023, the organization is hosting its inaugural AAPI Month Luncheon on May 12, 2023 at noon at the Arts District Mansion, with hopes to make the lunch an annual event. This year’s program will feature an incredible

Interesting Facts about DAABA

• What is the mission of your Bar?

To advocate for the interest of Asian American attorneys and promote the professional growth and good community standing of DAABA’s members.

• When was your Bar founded?

In 1988 with 15 attorneys.

• How many members do you have? Around 350

• Who can join?

DAABA membership is open to all.

• Current leadership?

Janet Landry Smith, President; Kristine Cruz, President-Elect; Ashley Yen, Treasurer; Alen Samuel, Secretary.

panel of past DAABA Presidents and early DAABA members discussing the founding of DAABA and how the Dallas landscape has changed in the past 35 years for AAPI lawyers, as well as the AAPI community. DAABA also collaborates with other organizations for joint events promoting AAPI interests and supporting the AAPI community. This year has included a Holi festival with SABA, and is set to include partnerships with the Asian Pacific Interest Section of the State Bar of Texas for its upcoming Conference in Austin and The Khalid Jabara Foundation for the upcoming CLE—The Four Letter Word: Equipping Lawyers in the Fight Against HATE, at the Dallas Holocaust & Human Rights Museum on May 23, 2023 at 11:30 a.m.

“I am grateful to DAABA for creating a community for many first-generation attorneys. I found invaluable mentorship and guidance from DAABA members who paved the way for the next generation,” said DAABA President-Elect Kristine Cruz, an Associate at Berry Appleman & Leiden LLP. “I was a 1L when I first became involved with DAABA through their mentorship program. The support I have since received from DAABA is unparalleled, I give a lot of credit to DAABA for all that I have been able to achieve thus far in my career. I hope that we can carry on DAABA’s legacy of community and support for its members.”

For more information, or to become involved in DAABA, visit www.daa ba.org. HN

Janet Landry Smith

Kristine Cruz

The DBA’s Home and the Beginning of Headnotes

BY JESSICA D. SMITH

In previous articles in this series, we have focused on lager spans of time. However, this month’s article is going to focus on three years short, but busy years.

For several years prior to the 1970s, discussion had focused on finding a permanent home for the Dallas Bar Association. One where members could gather, engage, and continue their legal education. In 1976, the DBA Board of Directors began to seriously discuss a move and finding a true home of their own for the growing membership. The leaders knew that if they could not accommodate meeting space for their quickly growing membership, those members would go elsewhere. And thus, serious discussion commenced on purchasing what was known then as the Belo Mansion.

As discussions continued, it was also noted that a better way to communicate with members was needed, not only to keep members engaged, but also informed about the DBA’s growing programs and relevant legal news. The association was printing a short Weekly Newsletter, but felt more was needed. That “more” debuted on January 24, 1977—and the first issue of the DBA’s monthly member newsletter, Headnotes, was created. DBA President Phil Burleson introduced the newsletter on the front page of Volume 1, Number 1, essentially writing the first President’s Column. Though it looked much different then—a small 12-page newsletter mailed out and addressed to the 3,000 members of the DBA using the newly purchased Addressograph—Headnotes goal was to include: “Legal articles and better communication of what the DBA is doing…and…that the DBA should furnish

as many benefits as possible to the member.”

While the look, length, and content of Headnotes has evolved over the years, that original goal has not. Headnotes continues to be one of the most popular member benefits—providing member news, relevant legal news, and notices of upcoming CLEs, Committee meetings, and more. It is a multiple award-winning publication that garners not only local and statewide awards, but also national awards. You can view current and archived issues of Headnotes online at www.dallasbar.org/Headnotes.

Deliberations continued regarding the purchasing of the Mansion, but discussion turned to action on September 15, 1977, when the DBA purchased the Mansion.

While there was a lot of support for this

Looking Back on the DBA

such as: “It’s just like every other decision made in this city; a few people get it in their minds that something would be good for everybody, so they do it. And the rest of us have to pay.” Other comments included that it would just be too costly for the association and surely would be the beginning of the end.

But past president Bob Thomas, who was instrumental in facilitating the purchase. disagreed and stated: “We were at a point where we had to move. It is just a matter of where. We had a chance to make a good deal, so we took it. Each step of the transaction was approved by the board of directors. We decided just to get going on the project and let the members vote with their money. If they don’t like the project, they don’t have to give to it.”

plan from DBA leaders and members, there were also those who were sure this plan was lunacy and that it would bankrupt the Bar.

In a 1970s article in the Dallas Times Herald, a headline read: “Bar association makes home in mortgage-covered mansion.” The article stated that “There are those among the bar’s 3,500 members who believe the $2.2 million born-again Belo Mansion will bring with it a new spirit of community involvement. But there are others who think, despite some money-saving maneuvers by the organization, this project is doomed to bankrupt the bar association.”

The article quotes several attorneys who at the time who were quite vocal about this being a terrible idea that would surely be the downfall of the DBA. Among comments

As history has shown us, the members did like the project, and by 1978 DBA members, foundations, and public-spirited citizens had contributed more than $1 million for the purchase and restoration of the Mansion, as well as surrounding tracts of land.

Thank goodness those members of the Board of Directors had the foresight and fortitude to proceed with their plan and purchase of the DBA’s home, now known as the Arts District Mansion, which is an anchor in the Dallas Arts District. Throughout the years of transformation and the changing landscape of downtown Dallas, the Mansion has remained not only one of the nation’s premier bar headquarters, but also a center of business, activity, and commerce in the City of Dallas.

More fundraising, hard work, and physical labor would come. But as of 1978, the Dallas Bar Association had its home. HN

Focus Antitrust & Trade/Bankruptcy Law

TABC is Emerging from COVID with “AIMS”

In March 2020, because of COVID, the sizable hospitality sector of the Texas economy (hotels, restaurants, and bars), especially restaurants and bars, encountered unanticipated restrictions on operations and patrons. Like most state agencies, the Texas Alcoholic Beverage Commission (TABC) became closed to the public and had to enable staff to work remotely. Remarkably, the Licensing Division of TABC was positioned to cope with the impact of COVID.

Created by the 44th Legislature in 1935 as the ‘Texas Liquor Control Board,’ it retained that title until 1970 when the 61st Legislature redesignated it as the ‘Texas Alcoholic Beverage Commission’ (TABC, herein, the Agency). The Agency’s

mission is to protect public health and safety through consistent, fair, and timely administration and enforcement of the Alcoholic Beverage Code. To fulfill this mission, the Agency regulates all aspects of the alcoholic beverage industry, including the manufacture, wholesale distribution, and retail sales of alcoholic beverages (beer, ale, wine, and distilled spirits). There are more than 50,000 licensed locations in Texas, and the Agency’s Business & Revenue Operations Divisions annually collect more than $300 million in taxes and fees, which aids the state’s financing of public schools, local governments, and human services.

The Agency’s Licensing Division (Licensing) investigates and processes the applications for licenses and permits that are required for the manufacture, wholesale distribution, and retail sale of alcoholic

beverages. Before COVID, Licensing required delivery of completed paper applications for licenses and permits on its authorized forms, which staff reviewed to ensure that each applicant met the qualifications to hold a license or permit. Licensing was first entirely paper-driven, requiring the physical handling and warehousing of files, and later relied on staff to digitize information from paper into a proprietary database.

Because district offices closed to the public during COVID, Licensing allowed applicants to email PDFs of applications or send paper originals by overnight mail to Agency Headquarters in Austin (HQ). Licensing staff at HQ had the monumental task of receiving the emailed PDFs and digitizing the paper applications, then assigning them to Licensing staff working remotely for review. COVID clearly highlighted the fact that information technology for all the Agency’s divisions was archaic. However, the Agency already had goals in its Strategic Plan for Fiscal Years 2019-2023 to modernize and transition to a secure online system, aptly named the “Alcohol Information Management System” (AIMS).

AIMS is a cloud-based online system that, in the future, will allow all of the Agency’s Divisions to maintain complete, accurate, and secure information. Licensing intends for AIMS to completely replace paper processing with the online filing of new applications, renewals, and changes to existing licenses and permits.

Licensing halted the filing of all new

applications for a period of six months prior to launching AIMS in September of 2021, but even then, parts of the program were still not functional, and not all Licensing data had been migrated to AIMS. Moreover, there was neither a well-trained customer support staff available nor an online Help Desk. Nevertheless, applicants used AIMS to file new and renewal applications, and the Agency was able to issue new and renewed licenses and permits to a recovering hospitality sector. Licensing staff continues to work remotely, and, to its credit, the Agency is making slow but steady progress with correcting the glitches in programming and errors in Licensing data. This past December, the Agency finally announced a phone number to call for help with using AIMS.

Today, businesses in the hospitality sector face the same choice as before regarding obtaining a license or permit: either attempt to make an application on their own, use an unregulated licensing service, or engage a law firm to make an application as their representative. Except now, the Agency wants all applications filed using AIMS, and the reality is that AIMS is not “user-friendly.” The key to understanding how to use AIMS and respond to the issues that continue to arise is having had the experience of obtaining licenses and permits before AIMS when Licensing was still processing paper applications. HN

Joel D. Rich is Managing Member of Joel Rich Law, PLLC. He can be reached at joel@joelrichlaw.com.

Mid-Year Ethics Checkup: Keep an Eye on Technology & Prosper

BY JEANNE M. HUEY

2023 is well underway, and a mid-year review is a great opportunity to think about effective marketing and your use of technology in your practice to competently serve your clients.

Start with a review of your internet presence: If you are like most lawyers, you know that (1) clients check out every lawyer they consider hiring on the internet; and (2) internet search engines use mysterious algorithms to determine what the public sees about us. That means, to boost your presence on the internet and maximize its positive impact on your practice, you need to know what the internet says about you.

Are there reviews of your work left by someone whom you are certain was never a client? Most sites will remove these if you

rect information about your practice on internet sites that you do not control, having such information can result in a negative impression of your practice, as well as missed inquiries from potential clients.

If you locate negative reviews, you need to address them with care. Lawyers are limited by the duty of confidentiality (Rule 1.05) in responding to negative reviews. Texas Ethics Opinion 662 explains that a Texas lawyer may post a “proportional and restrained response” to a negative review if the lawyer takes care not to reveal any confidential information or violate any other disciplinary rule. The wise lawyer will use the response suggested in the Opinion if a response seems necessary. You can also offset negative ratings or reviews by asking clients to post positive ones. The disciplinary rules do not prohibit lawyers from encouraging cur-

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categories are promptly corrected. (Texas Ethics Opinion 685).

Finally, learn a bit about SEO (search engine optimization). SEO is a great way to market by enhancing your internet presence and moving your name towards the top of the list in response to client searches. You can improve your SEO just by frequently posting on and updating your website, blog, and social media sites. Commit to and calendar frequent updates and posts for the remainder of the year.

The internet is not the only technology that warrants your attention. The duty to stay abreast of changes in technology is explicitly set out in the comments to Texas disciplinary Rule 1.01 regarding competence. And there are numerous other disciplinary rules implicated in the competent use of technology: Rule 1.05 (Confidentiality) requires lawyers to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of information relating to the client’s representation; Rule 1.03 (Communication) requires us to communicate appropriately with clients both to keep them informed and to discuss how their objectives are to be accomplished.

Rule 5.03 (Responsibilities Regarding Non-Lawyer Assistants) Comment 2 admonishes that all Texas lawyers should have measures in place to ensure that the conduct of non-lawyers employed or retained by the firm or legal department is compatible with all the professional obligations of a lawyer. If you do not already have

written policies and procedures in place regarding technology, now is the time to put your practices in writing and undertake training in technology for everyone involved in your practice—training that should take place at least twice a year.

Now is also a good time to get ahead of the curve with respect to new dangers and developments in technology. Texas Ethics Opinion 648 concluded in 2015 that the use of unencrypted email did not violate a lawyer’s duty to keep client information confidential, but warned that as technology developed, this conclusion could change.

At its most basic, encryption is one of the fundamental building blocks of cybersecurity, where it is used to protect data from being stolen, changed, or compromised. Given the frequency of news reports and warnings from the American Bar Association about cybercriminals accessing or stealing client data, consider making encryption of certain kinds of information and communications a required part of your practice and confirm data stored in the cloud is secure.

Your internet presence and the technology necessary for your practice are constantly changing. Stay on top of both issues with a mid-year review of these key aspects of your practice and finish 2023 stronger than you started. HN

Jeanne M. Huey is Managing Partner at Hunt Huey PLLC and can be reached at jhuey@hunthuey.com.

DBA Allied Bars Equality Committee MOVIE IN REVIEW: “TILL”

Monday, May 15 | Noon | Via Zoom MCLE: 1.00 DEI Ethics

Speakers: Ms. Opal Lee

Hon. Renee Toliver, U.S. District Court Northern District moderated by Ashley Wright, Winston & Strawn LLP

BACKPACK DRIVE BACKPACK DRIVE

The DBA Community Involvement Committee is partnering with Community Partners of Dallas to provide backpacks filled with school supplies to abused and neglected children.

Bring donations to the Arts District Mansion June 19- 30 or scan the QR code to purchase from the Amazon wishlist.

Questions? Contact Lauren Green at lagreen@bradley.com

Scan to donate

Exceptions to the Automatic Stay Focus Antitrust & Trade/Bankruptcy Law

BY JASON T. RODRIGUEZ

Most attorneys are aware that when a bankruptcy case is filed, an extremely broad injunction automatically goes into effect protecting the debtor, the newly formed estate, and related property from all manner of collection by creditors. This injunction is known as the “automatic stay” and arises from section 362 of the Bankruptcy Code.

The automatic stay is immediately effective regardless of notice. In the Fifth Circuit, all actions taken in violation of the stay—regardless of notice—are voidable by the bankruptcy court. Moreover, a knowing or willful violation risks severe sanctions, penalties, and attorney’s fees.

However, there are exceptions to this powerful injunction for the skilled (and brave) attorney.

Depending on how you count, there are over 30 statutory exceptions to the automatic stay. This article will briefly touch on the ones you are most likely to encounter.

Most attorneys are aware that criminal matters are not affected by the automatic stay, though there is some case law

on the extent of that exception when the criminal proceeding is to recover a debt (think hot check). By the same token, the automatic stay will not stay Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) actions (e.g., hazardous site cleanup) by the federal government.

By far, the most common event occurs within consumer bankruptcy cases. If an individual files a second bankruptcy within a year, the automatic stay will terminate 30 days after filing. However, this can be (and usually is) extended by motion. Similarly, if an individual files a third bankruptcy within a year, the automatic stay will not go into effect upon filing. Again, the debtor can request by motion that the stay be imposed.

One of the exceptions that most surprises attorneys is that the Bankruptcy Code allows liens to be filed after the bankruptcy case is filed if state law permits the lien to be effective prior to the bankruptcy filing. This exception shows up commonly in oil and gas cases where the mechanics and materialman’s liens are allowed to relate back in time. The same section allows credi -

tors to maintain and continue their existing lien perfection, such as filing UCC3 continuations.

Landlords have powerful exceptions under the code. If a lease has ended by its contractual terms prior to the bankruptcy filing, the automatic stay will not prevent a landlord from obtaining possession of the debtor’s premises. Further, if a landlord has obtained an order of possession prior to the bankruptcy case being filed, the automatic stay will not prevent the eviction of the debtor-tenant.

The stay exceptions also contain some of the “safe harbor” provisions of the code, which allows counterparties to contracts dealing with mortgage securities to avoid the stay.

The code also excepts some legal actions related to domestic matters. For example, the stay does not prevent: a suit to determine paternity, a suit concerning domestic support obligations, a divorce (but not the division of assets of the bankruptcy estate), suits concerning domestic violence, a suit to collect domestic support from non-estate property, or withholding of wages for domestic support, among other things.

The automatic stay will not stop an audit of a taxpayer, nor demand for tax returns. The code also allows the IRS to impose post-bankruptcy tax liens in certain circumstances.

For the attorneys who are a little more adventurous, the code excepts an eviction if the debtor is using the premises for an illegal purpose or drug

use. Additionally, the bankruptcy code excepts from the stay any action against the debtor if it is not a proper debtor in bankruptcy.

Among the other various exceptions, the code excepts from the stay an action by HUD in certain circumstances to foreclosure on real property with five or more units, various SEC actions, a notice and presentment of a negotiable instrument, and the creation and enforcement of ad valorem liens.

Finally, the most recent addition to the statutory list of exceptions permits an amateur athletics body to replace its governing board notwithstanding the automatic stay. This exception was added in the wake of the Larry Nasser scandal.

The typical method of proceeding against a debtor after bankruptcy is by filing a motion for relief from the automatic stay. The elements for that requested relief are statutory and will usually require a hearing with evidence. Only then may a court enter an order permitting the action by lifting the automatic stay. The statutory exceptions, when properly used, will allow a party to bypass the bankruptcy court entirely. Like most aspects of the Bankruptcy Code, this privilege is balanced by a significant risk of downside if the creditor misjudges its rights and then becomes subject to swift and severe sanctions by the bankruptcy court.

Jason T. Rodriguez is a Shareholder at Higier Allen & Lautin, PC, and can be reached at jrodriguez@higierallen.com

What do people find at Mayer? Unsurpassed business law expertise. 110% dedication to client service. A team of over 100 stellar attorneys who are committed to one another’s success. And an entrepreneurial spirit that encourages each person to rise to their greatest heights.

We’re proud to announce the appointment of Melanie Cheairs and Lindsay Gorbach as the first non-founding equity partners of Mayer. Congratulations, Melanie and Lindsay. At Mayer, we make vision a reality.

LAW DAY 2023

Cornerstones of Democracy: Civics, Civility, and Collaboration

Each year, the American Bar Association sponsors Law Day, and regional bar associations, including the Dallas Bar Association, host various events, programs, and contests to commemorate the chosen theme. Law Day not only educates students and citizens about our government, but also the legal system itself. One of its main goals is to focus students’ attention on important constitutional principles.

As part of the DBA’s Law Day celebration, the association sponsors essay, art, and photography competitions for DFWarea students in grades K-12. Here are some of this year’s winning entries, which depicted the Law Day theme of “Cornerstones of Democracy: Civics, Civility, and Collaboration.” Not pictured is the winning essay, written by Andy Park, 8th grader at DeWitt Perry Middle School.

Dallas Bar Association

Community Involvement Committee

2023 PROJECTS

JUNE

Summer Santa

Donation drive benefiting Vogel Alcove which offers summer day camp for homeless children Amazon wish list will be provided with items including toys, swimsuits, towels, clothes, etc

JUNE

Backpack Drive

Donation drive benefiting Community Partners of Dallas Donate backpacks filled with school supplies for abused and neglected children

SEPT

Day of Service

Volunteer for service projects Past participating organizations included North Texas Food Bank, Salvation Army-Organic Gardening, and Habit for Humanity

OCT

Blood Drive

Blood donation drive with Carter BloodCare at multiple locations, including the Arts District Mansion

Sand Branch Food Drive

Food drive benefiting the Dallas County Sand Branch Community Items needed include canned and nonperishable food, and toiletries

Santa Brings a Suit

Donation drive benefiting Dallas Life Foundation Donate gently used business attire such as suits, pants, belts, purses, shirts & winter attire

DVAP’s Finest

JENAE WARD

Jenae Ward is an associate at Weil, Gotshal & Manges LLP. She also served as a Lend-a-Lawyer for two months in early 2023 at DVAP.

How did you first get involved in pro bono?

I first got involved with pro bono work while I was still in law school. As a member of the Law Students for Social Justice group at Vanderbilt Law School, I participated in and organized pro bono spring break trips where students worked at various non-profit, legal organizations under the supervision of licensed attorneys. Since becoming a licensed attorney, my commitment to pro bono work has continued, and my firm allows me to have a robust pro bono practice.

Describe your most compelling pro bono case.

While I have been involved in many interesting cases, generally the pro bono cases that are most compelling to me are the ones where I am helping an individual get or recover access to something that people usually take for granted, like recovering their driver’s license.

Why do you do pro bono?

Growing up, my parents instilled in me the values of giving back and servant leadership. As lawyers, we have a special set of skills, and doing pro bono work not only allows me to use my legal skills and gain invaluable experience, but it also allows me to serve my community and give back by helping those who would not otherwise be able to afford legal services.

What impact has pro bono service had on your career?

My pro bono work has allowed me to take on lead roles in cases early in my career and further develop my legal skills.

What is the most unexpected benefit you have received from doing pro bono? As a Dallas transplant, by doing pro bono work and being involved in various pro bono committees, I have been able to build a community and gain a network of like-minded individuals.

Pro Bono: It’s Like Billable Hours for Your Soul.

To volunteer or make a donation, call 214/748-1234, x2243.

Dominique McNeely, 2nd Grade, J. P. Starks Math, Science and Technology Vanguard; FirstPlace (K-2nd Poster Contest)

Jackelyn Quiroz, 8th Grade, H.W. Longfellow CEA; First-Place: (6th-8th Photography)

Don Liggins, 12th Grade, Cornerstone Crossroads Academy; First-Place: (9th-12th Photography)

Valerie Rodriguez, 8th Grade, H.W. Longfellow CEA; First-Place (6th-8th Poster Art)

Lakshmi Jinkala, 10th Grade, Judge Barefoot Sanders Law Magnet; FirstPlace (9th-12th Poster Art)

Rena Wu, 5th Grade, Robert B Sewell Elementary School; First-Place (3rd-5th Poster Art)

Focus Antitrust & Trade/Bankruptcy Law

Updates to the Small Business Reorganization Act

BY JEFFERY M. VETETO

The allures of eligibility for the new reorganization under Subchapter V of Chapter 11 are undeniable; it is faster, less expensive, and a significantly less onerous avenue for debtors to restructure. It even has the hallmark bonus of an unobstructed path for shareholders to retain their equity without paying new value—a prized occurrence. Despite its statutory title, the “Small Business Reorganization Act,” the scope of companies that are subject to the Act is much broader than the name would lead you to believe. Counsel for large businesses would be remiss not to explore whether distressed clients, their affiliates, subsidiaries, or portfolio companies are eligible.

Advantages of Subchapter V

Effective in February 2020, the Small Business Reorganization Act of 2019 (SBRA) enacted the new Subchapter V of Chapter 11 of the Bankruptcy Code, codified as 11 U.S.C. §§ 1181–95. The stated purpose of the SBRA was to use the new Subchapter V to streamline the reorganization and financial rehabilitation process for small business debtors. To facilitate this effort, Subchapter V provides notable benefits over traditional Chapter 11. Debtors do not pay quarterly fees to the United States Trustee based on disbursement. An unsecured creditors’ committee cannot be appointed without a specific court order. Debtors are not required to file a disclosure statement and they are the only party eligible to file a plan of reorganization. Such plan can be approved without any creditor support so long as it is “fair and equitable” and does not “discriminate unfairly” against any classes of

creditors. Each of these differences can result in substantial cost savings, often through a less obstructed route to plan confirmation.

That said, possibly the most attractive difference is the SBRA’s departure from the “Absolute Priority Rule.” In traditional Chapter 11, the Absolute Priority Rule prevents a creditor class from receiving payment or property until the more senior creditor claims are paid in full, unless otherwise consented to. Equity holders are last in priority and, by effect, cannot retain their old equity interests unless: (i) all creditors are paid in full; (ii) all creditor classes consent to the plan; or (iii) the equity holders contribute sufficient new value. Subchapter V removes the Absolute Priority Rule.

Subchapter V Eligibility

To qualify for Subchapter V, a debtor must be engaged in commercial or business activities and have less than $7.5 million of aggregate debt as of the petition date, not including: (i) contingent debts; (ii) unliquidated debts; and (iii) debts owed to affiliates or insiders. A debtor does not qualify if it is a member of a group of affiliated debtors whose aggregate debts collectively exceed the $7.5 million cap.

With this eligibility definition, there are notable openings for creative application. For example, a wholly-owned subsidiary of a privately held company could qualify even if it owes $100 million to its parent company. A similarly situated company could qualify despite large pending lawsuits against it. In either example, no debt of the parent company or any affiliate subsidiaries counts towards the cap so long as they do not also file bankruptcy.

A debtor cannot file under Subchapter

V if it is a company subject to the reporting requirements under sections 13 or 15(d) of the Securities Exchange Act of 1934 or an affiliate of a corporation subject to such requirements. But if the debtor’s and its affiliates’ stock are not publicly offered and registered with the SEC, then the aggregate debt requirement may be the only eligibility impediment.

Expansive Qualification

In many parent-subsidiary structured business ventures—both private and foreign public—and in other liabilitylimiting organizational structures, isolated downstream Subchapter V filings are not only possible but highly advantageous. Businesses in the transportation, logistics, hospitality, and technology sectors, of

other industries, may find Subchapter V filings especially useful. Early-stage private equity invested companies should also find eligibility in Subchapter V welcome, especially in consideration of the opportunity to preserve even a multi-series equity table. Much as it is in other aspects of bankruptcy, the available benefits to a Series LLC remain more elusive; but, logically, even a company with that structure could potentially qualify under Subchapter V.

With Subchapter V still being relatively new, creative approaches are worth testing given the significant advantages of qualification. It may have been intended as a small business law, but large business can share in the bounty of its benefits. HN Jeffery M. Veteto is an Associate at the Law Offices of Frank J. Wright, PLLC. He can be reached at jeff@fjwright.law.

Co-Sponsored by the Allied Bars Equality Committee

TUESDAY, MAY 23, 2023 | 11:30 AM - 1:00 PM

MCLE: 1.00 DEI ETHICS | FEE: $15 (includes box lunch & parking) Dallas Holocaust and Human Rights Museum

SPEAKERS INCLUDE:

Tiffany Burks, Varghese Summersett PLLC

Philip Clark, Dallas County District Attorney’s Office

Wilson Chu, McDermott Will & Emery, LLP

Nicole Dana, Assistant U.S. Attorney

Moderated by Cece Cox, Resource Center Dallas

SCAN TO REGISTER

Get Involved in the Dallas Bar Association!

The DBA has been busy over the last few months. We have hosted numerous Judicial Investitures, an Allied Bar Mixer, Coffee at the Courthouse, a New Member Reception, a Pickleball event, and a Mock Voir Dire for high school students! There is something for everyone, so come out and join us!

Attorney Spotlight

REBECCA M. ALCANTAR

With 30 years of litigation experience, Rebecca Alcantar brings a unique perspective to her family law litigation practice. Ms. Alcantar is a former partner in national and regional law firms with experience in commercial, business, construction, personal injury defense and family law. Her diverse litigation background highlights her attention to detail, strategic planning and practical solutions to complex problems.

As a special Fellow member of the 2022-2023 Entrepreneurs in Community Lawyering group (ECL), Ms. Alcantar focuses her passion for justice on giving back to the community.

“Pro bono work allows me to use my skills to help others and create positive change while building relationships with other professionals,” Ms. Alcantar said.

Through her new firm, Rebecca M. Alcantar Law, PLLC, Ms. Alcantar hopes to provide costefficient legal strategies that lead to resolving her family law clients’ needs.

Legal Fee Financing: What Is It and How to Offer It

BY HANNAH BRUNO

What if you could receive your total fee upfront at the beginning of an engagement while still allowing your clients to pay in installments? It sounds too good to be true, doesn’t it?

With legal fee financing, not only is it possible, you can start taking advantage of this modern payment option today.

What is Legal Fee Financing?

Fee financing (also known as fee funding) is an installment loan option that enables customers to purchase products or services while paying for them in smaller increments over time. By establishing a direct relationship with the merchant, the consumer can avoid using credit cards to cover the cost of the pur-

chase and eliminate the associated fees and interest charges.

Legal fee financing is one of several alternative payment methods offered through law firms. By easing the burden of large, one-time bills, law firms can make legal services more accessible to those who need them most.

Who Should Consider Legal Fee Funding?

Law firms that cater to first-time legal clients report cost as the primary deterrent for customers who decide not to retain legal counsel. With 63 percent of Americans living paycheck to paycheck and the average hourly rate for legal representation sitting at $275 across the country, law firms must utilize the best available tools to help potential clients afford services.

D B A H O M E P R O J E C T

o r m o r e i n f o r m a t i o n , l o g o n t o w w w f a c e b o o k c o m / D B A H o m e P r o j e c t o r c o n t a c t D a v i d F i s k ( d f i s k @ g h l a w - l l p c o m ) o r M i k e B i e l b y ( m b i e l b y @ v e l a w c o m ) M a k e c h e c k s p a y a b l e t o D a l l a s A r e a H a b i t a t f o r H u m a n i t y a n d m a i l t o : c / o A r a c e l i R o d r i g u e z D a l l a s B a r A s s o c i a t i o n , 2 1 0 1 R o s s A v e n u e , D a l l a s , T X 7 5 2 0 1

Why Should You Offer Legal Fee Financing Options?

There are several reasons why lawyers should consider offering legal fee financing.

1. Appeal to more prospects

Although traditional billing remains the primary choice for millions of consumers, legal fee funding solutions became popular during the pandemic. It is now a standard and expected payment option.

2. Improve cash flow

Fee funding also improves the consistency and reliability of your cash flow. Lawyers often hesitate to let clients pay over time because traditional payment plans can have a higher incidence of late and non-payments.

3. Offering financing for legal fees helps mitigate the risk of both.

Your firm receives the total requested amount upfront, and clients can split an invoice into multiple payments. If a client falls behind on installment loan payments or refuses to pay, your law firm is typically not responsible.

4. Get paid faster and spend less time trying to collect

The other significant benefit of legal fee financing is that it increases how quickly you collect your total fees. When it comes to traditional payment plans, giving clients the ability to make multiple smaller payments over time means, by definition, you receive smaller deposits. Allowing clients to use a legal fee financing option, on the other hand, means you can secure your total invoiced amount at the start of the engagement. By offering clients flexibility in payments, your firm’s lawyers can spend less time trying to collect unpaid legal fees.

5. Build stronger client relationships

Hiring a lawyer may be one of the most expensive decisions your client will ever make. When offering legal fee funding to your clients, you must clearly communicate their financial responsibility from the start. Set clear expectations as to what clients can expect to see on invoices, when they will receive them, and how they will be able to pay. This will spare them from unexpected bills and ensure that you receive timely payment for your work. Most importantly, these conversations start your relationship on the right foot. Offering legal fee financing and walking clients through what that means may keep current clients coming back and increase referrals.

Manage Your Law Firm’s Financing Options

Adopting an online payment solution enables you to offer flexible payment options such as credit, debit, eCheck, and in some cases, legal fee financing. The result is a stabilized cash flow, happier clients, and more time to focus on work that matters to you.

Beyond the benefits listed above, the advantages of fee funding ultimately serve both you and your clients. Your client gets help with legal fees and knows precisely how much they will owe with a set number of smaller payments scheduled over an established time frame. This is an increasingly attractive option for consumers during growing economic uncertainty.

To learn more about visit lawpay. com/dallasbar. HN

Hannah Bruno is a Senior Content Writer at LawPay.

Focus Antitrust & Trade/Bankruptcy Law

The FTC’s Looming Ban on Noncompetes

BY BRIAN JORGENSEN AND TOM YORK

Antitrust enforcement continues to be a high priority in the Biden administration. In its latest salvo, the Federal Trade Commission (FTC) has proposed an unprecedented rule banning most employer-employee noncompete clauses. The new rule will be a major departure from decades of precedent and would prohibit conduct that is currently lawful in Texas and 46 other states. While the new rule will not go into effect until later this year (and may be subject to constitutional challenges), businesses and their counsel should be prepared by taking steps now to minimize risk.

The FTC’s Rule Prohibiting Noncompetes

Under the FTC’s proposed rule, an employer would violate Section 5 of the FTC Act—which prohibits “unfair methods of competition”—if it (i) enters or attempts to enter into a prohibited noncompete clause with a worker; (ii) maintains an existing prohibited noncompete clause; or, under certain circumstances, (iii) represents that a worker is subject to a noncompete without a goodfaith belief that the noncompete is lawful.

As drafted, the proposed rule would apply broadly to almost all workers, including employees, independent contractors, externs, interns, volunteers, and apprentices. There is no exception for senior executives or employees with specialized skills or knowledge.

Once adopted, employers would be required within 180 days to inform each employee currently subject to a prohibited noncompete that the employer has rescinded it. If a company maintains existing noncom-

petes or enters into new noncompetes after the final rule goes into effect, the FTC may attempt to obtain an order requiring the company to comply with the rule. The FTC may also attempt to impose penalties of $46,517 per violation, per day, against the company.

While the FTC’s proposed rule contains some exceptions, they are very narrow and generally only exclude noncompetes imposed by state or local governments, between franchisors and franchisees, and between the buyer and seller of a business.

Simultaneous FTC Enforcement Actions

The FTC released the proposed rule one day after it filed complaints against three companies and two individuals for imposing and enforcing anticompetitive employeremployee noncompetes. One complaint alleged that a security company used lawsuits to enforce noncompete clauses, which required low-wage security guards to pay a $100,000 penalty if violated. Other complaints challenged noncompetes that prohibited working for a competitor for at least one year after employment, including lowerlevel positions.

The companies and owners all settled with the FTC, which ordered the parties to stop using noncompete agreements, end enforcement of existing noncompetes, and notify affected employees that the noncompetes no longer restrict their employment options.

How to Respond to the FTC’s Actions

Businesses should consider whether and

how to react to the FTC’s rule and recent enforcement actions. To minimize risk, businesses should consider the following rules of thumb:

1. Tailor the geographic scope to the reasonable need for the noncompete. The noncompetes subject to the FTC’s recent enforcement actions covered North America in one action, and 100 miles in another. Both were large geographic areas.

2. Tailor the duration to the reasonable need to protect confidential information. If the company’s confidential information becomes stale quickly, consider a shorter noncompete. Alternatively, confidential information with a longer shelflife may justify a longer noncompete.

3. Tailor the scope to a legitimate need to protect the company or its confidential information. For example, it may not be necessary to prohibit an employee from working for a competitor if that employee will work in a competitor’s business unit that does not compete

against the company, or would not allow the employee to use the company’s confidential information.

4. Be reasonable and make judicious use of noncompetes. For example, consider whether noncompetes are actually necessary for all or most lowlevel employees.

5. Consider alternatives to noncompetes that involve less restrictive means, such as confidentiality agreements The FTC has expressed a favoring of alternatives by emphasizing that the legitimate objectives of noncompetes can be achieved through less restrictive means. Consider whether NDAs, customer non-solicit agreements, or similar agreements could protect the company’s interests. HN

DBA Home Project: Volunteers & Sponsors Needed

Brian Jorgensen and Tom York are Partners in Jones Day’s Dallas office. Camden Douglas, an Associate in Jones Day’s Dallas office, assisted with the preparation of this article. They can be reached at bmjorgensen@jonesday.com, tdyork@jonesday.com, and cdouglas@ jonesday.com, respectively.

In The News

FROM THE DAIS

Jeff Abrams, of Abrams Mediation, by invitation of the Israel Bar Association, presented advanced conflict resolution and mediation skills training workshops in Be’er Sheva, Haifa, and Tel Aviv.

KUDOS

Stephen Angelette, of Polsinelli, has been named chair-elect of the North Dallas Chamber of Commerce. He also serves NDCC as board chair for its Health Care Committee.

Quentin Brogdon, of Crain Brogdon LLP, has been awarded the 2023 Dan Rugeley Price Memorial Award by the Texas Bar Foundation.

Minoo Blaesche, Sara Harris, and Brian Merkley, of Jackson Walker, have been promoted to Partner.

Kathleen Cruz, of Burke Bogdanowicz PLLC, has been named Partner.

Drew Thomas, of Hartline Barger LLP, has been named Partner.

Al Ellis, of Sommerman, McCaffity, Quesada & Geisler, L.L.P., and David H. Segrest received the 2023 Texas Bar Foundation Outstanding 50 Year Lawyer Award.

John Browning, of Faulkner Law School, received the 2023 Texas Bar Foundation Outstanding Law Review Article Award.

Mark A. Shank, of Diamond McCarthy, LLP, received the 2023 Texas Bar Foundation Terry Lee Grantham Memorial Award.

Amber Hamilton Gregg, of Suzanne I. Calvert & Associates, was selected for The National Black Lawyers Top 100

ON THE MOVE

Jonathan Blum joined Holland & Knight as Partner.

Jo Beth Drake joined Ogletree, Deakins, Nash, Smoak & Stewart, P.C. as Of Counsel.

Ron Burnovski joined Clausen Miller’s new Dallas office as Partner.

David Gair joined Locke Lord as a Partner.

Kimberly Williams joined O’Melveny & Myers as Partner.

Jeff Patterson joined Bowman and Brooke, LLP as Partner; Courtney Kenisky and Alfredo Silva joined as associate and Of Counsel, respectively.

Don Hammett and Raleigh R. Johnston joined Alston & Bird LLP as Partners.

Andrew Bengtson and Michelle Brown joined Sheppard Mullin Richter & Hampton LLP as Partners.

Steven C. Metzger Law PLLC has relocated to 4709 W. Lovers Lane, Suite 200, Dallas, Texas 75209

News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org

DBA/DAYL Moms in Law

Being a working mom can be challenging. Being a working lawyer mom can be a different ballgame with its own unique challenges. Moms in Law is a no pressure, no commitment, informal, fun, support group for lawyer moms.

Join Moms in Law for lunch

Thursday, June 1, noon, at Ziziki’s (11661 Preston Rd., Ste. 309)

To RSVP, email Rebecca at rfitzgib@gmail.com.

Email cpleatherberry@gmail.com to join the Moms in Law email listserv.

REGISTERnow

Dallas Bar Association 31st Annual Golf Tournament

Benefiting Access to Justice

When: Thursday, May 25, 2023

Shotgun start at 1:30 PM

Where: Cowboys Golf Club 1600 Fairway Dr, Grapevine, TX

Cost: $255 per player

Sponsorships available!

The Pros and Cons of Judicial and Private Mediation

BY JUDGE HARLIN DEWAYNE “COOTER” HALE

I served as a bankruptcy judge in Dallas for almost 20 years, and I mediated many disputes for my colleagues, as they did for me. Other state and federal courts provide for judicial mediations or settlement conferences. After retirement, I joined JAMS and now mediate matters regularly as a private, paid mediator. Having experience both as a judicial and a private mediator has made me contemplate the difference between the two. They both have their positives and negatives.

Judicial Mediation

Parties and lawyers like to mediate with sitting judges for several reasons. First and foremost, it is free! “Free” is a word not used frequently in litigation, and it sounds so nice to clients. And the parties to the mediation should get some insight about their case from the mediator-judge. Most judges will not try to take the place of the presiding judge during the mediation, but during the day it is very tempting to answer the question, “Judge, what would you do?”

Clients seem to be more attentive during a mediation with a sitting judge. In my experience as a judicial mediator, the parties and lawyers posture less when a sitting judge is mediating. I never had a party walk out when I was a judge conducting the mediation. Lawyers know they must come back before the mediator who will next time be wearing a black robe, and they tend to behave themselves.

Judicial mediation also has some downsides.

First, most sitting judges are very busy, and finding time may be difficult. As dockets are planned weeks and months in advance, it is hard to pose an emergency mediation to a sitting judge.

Finding a place convenient to the judge, counsel, and the parties may prove to be a problem. The courthouse is not a great place to hold a mediation. A better mediation location is usually one of the law firms involved.

But that may prove to be a problem when the judge needs to be close to chambers. And for the judge there are always security concerns away from the courthouse.

Because of the court’s docket, getting ready for a judicial mediation may be challenging. It is hard enough to set aside one day for a mediation. But to have a good mediation one must prepare, which takes time in advance of the session.

Finally, not every judge is a good mediator. Judges generally call balls and strikes. Bringing people together is not their job; deciding complex issues is.

Private Mediation

I have now drifted into private mediation. It too has its pros and cons.

The primary negative of private mediation (and it hurts to say so) is the expense of the process. Most mediators charge an hourly rate for the whole day, which makes the process cost thousands of dollars.

On the positive side, most mediators have a great deal of training in problem solving. That is what they do. They were selected by their firms because of their reputations for fairness and their skills and successes as a neutral.

In the private mediation world, emergencies are usually not a problem. Unlike court, not every day is booked. So, you are likely to be able to see the mediator on short notice.

A big positive is the accessibility of a private mediator. It is usually easy to contact the mediator or the case manager to get a question answered or to get information to the mediator. Not so much for a sitting judge.

Conclusion

Both judicial and private mediations have their good and bad aspects. It is not one-size-fits-all. Hopefully, this short article will give you some food for thought as you consider with your client which way to go.

Judge Harlin DeWayne “Cooter” Hale (ret.) may be reached at hhale@jamsadr.com.

Focus Antitrust & Trade/Bankruptcy Law

Creditors’ Rights Against Officers and Directors

BY BILL SIEGEL

Directors of corporations or managers of limited liability companies (LLC) owe a fiduciary duty to the corporation or LLC. The enforceability of this duty depends on the company’s solvency.

Solvency, Rights, and Derivative Claims

When a company is  solvent, the fiduciary duties of officers, directors, and managers may be enforced by the company shareholders or members who bring a “derivative action” to sue on the company’s behalf. A shareholder or member may only launch or maintain a derivative proceeding if they held that status at the time of the act or omission, or obtained that status by operation of law through someone who held shareholder or member status at the time of the act or omission complained of. The shareholder or member must fairly and adequately represent the interests of the company in enforcing the rights of that entity.

Unlike direct claims, derivative claims are brought on behalf of the particular entity and not directly for the benefit of the particular shareholder or member. These rights arise from Texas Business Organizations Code sections 21.552 (regarding corporation shareholders) and 101.452 (regarding LLC members).

The rights of creditors of a solvent corporation or LLC arise under contract, fraudulent transfer law, bankruptcy law, and other creditors’ rights laws. When the company becomes insolvent, creditors’ rights often supersede shareholders and members. Indeed, creditors may bring breach of fidu-

ciary duty claims through derivative claims when the company is deemed insolvent. See Aurelius Capital Master, Ltd. v. Acosta (N.D. Tex. Jan. 28, 2014).

The Toys-R-Us Bankruptcy

The paradigm seems to change once bankruptcy is filed. Chapter 7 trustees or trusts created pursuant to a bankruptcy plan of reorganization can step into the shoes of shareholders and creditors and file claims against officers and directors for breaches of fiduciary duty.

The recent Toys-R-Us bankruptcy is instructive. Under the Bankruptcy Plan, a liquidation trust (the Trust) was created and became the successor-in-interest to the debtor and permitted to pursue claims against the debtor’s directors and officers.

The Trust filed suit against certain officers and directors for breach of fiduciary duties relating to the authorization of prepetition payment of (i) debtor-in-possession financing approved by the bankruptcy court, (ii) executive bonuses, and (iii) advisory fees.

After discovery, the defendant officers and directors moved for summary judgment to dismiss the Trust’s claims. The court granted the motion regarding the debtor-inpossession financing because that financing had been approved by order of the bank ruptcy court (the DIP Order). Notably, the DIP Order stated that the terms of the financing “were fair and reasonable…[and] reflect the DIP Loan Parties’ exercise of prudent business judgment consistent with their fiduciary duties.” Further, the DIP Order provided that its terms were “binding upon all parties in interest in these Chapter 11 cases, including…any…fiduciary appointed as a legal representative of any of the Debtors.”

The defendant officers and directors were less successful to dismiss claims related to their authorization of bonus payments. Prior to the bankruptcy petition filing, the defendant officers and directors approved retention bonuses to executives and managementlevel employees. After the bankruptcy filing, the bankruptcy court approved a reduction of the bonuses. Yet, the bankruptcy court denied this part of the summary judgment motion because the bonuses were paid prepetition and thus were not directly approved via a post-petition order. Further, the order that was entered approving the re-negotiated bonuses preserved the rights of the Committee of Unsecured Creditors to pursue claims against the defendant officers and directors. A fact issue also remained as to whether the officers and directors violated a fiduciary duty.

On the pre-petition advisory fees, the court also found that the evidence submitted by the Trust’s expert was sufficient to create a fact issue.

The Takeaway

Courts are likely to focus on the language of prior orders as controlling

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in later proceedings. In the Toys-R-Us bankruptcy, the language in the DIP Order protected the officers and directors. However, such post-petition orders will not protect officers and directors from pre-petition activities unless specifically addressed. A “comfort order” simply referring to such actions (e.g., the retention bonuses) is insufficient. When serving as an officer and director of a distressed entity likely to file bankruptcy, it makes sense to negotiate debtor-in-possession loans for approval post-petition by the bankruptcy court, and it is appropriate to negotiate retention bonuses—but not pay them until and unless approved by the bankruptcy court. Regarding advisory fees, it is troubling that the bankruptcy court’s ruling in the Toys-R-Us case supported a breach of fiduciary duty finding, as such fees are generally approved and paid pre-petition, and the retention of these advisors is approved by the bankruptcy court. HN Bill Siegel is a Shareholder at Cowles & Thompson, P.C. and can be reached at bsiegel@cowlesthompson.com.