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Trial by Agreement: Steve Susman’s Ideas to Improve Civil Litigation Multidistrict Litigation: Practice Tips for Consolidated Pretrial Proceedings The Impact of the Russia-Ukraine Conflict on International Shipping and Supply Chain Management Mapping Potential Investment Treaty Claims nch Against Russia

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THE HOUSTON

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Volume 60 – Number 1

July/August 2022

Christopher V. Popov 2022-2023 President Houston Bar Association

Eric B. Williams II A 2022 National Jurist Law Student of the Year

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contents July/August 2022

Volume 60 Number 1

FEATURES

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16

by Agreement: Steve 10 Trial Susman’s Ideas to Improve Civil Litigation

By Johnny W. Carter

Litigation: 13 Multidistrict Practice Tips for Consolidated Pretrial Proceedings

By The Hon. Kristen B. Hawkins and The Hon. Sylvia A. Matthews

Impact of the Russia16 The Ukraine Conflict on International Shipping and Supply Chain Management

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26

By Mark Murrah and Jose Trevino

Potential Investment 20 Mapping Treaty Claims Against Russia

By M. Imad Khan

Diversity Awards 26 HBA Given to Firms, Individuals for Excellence in DEI

V. Popov Takes 28 Christopher Helm as HBA President

The Houston Lawyer

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32

30 Award Winners Interview with HBA 32 AnPresident Christopher V. Popov

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, www.thehoustonlawyer.com, e-mail: leo@quantumsur. com. Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2022. All rights reserved.

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contents July/August 2022

Volume 60 Number 1

departments

34

35

Message 6 President’s Why Be an HBA Member?

By Christopher V. Popov

the Editor 8 From Through the Lens of a

Young Lawyer

By Brooksie Bonvillain Boutet Lawyer Spotlight 34 Young Kelly Hanen Profile in professionalism 35 ASusan L. Bickley Partner, Blank Rome LLP

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THE RECORD 36 OFF Travis Torrence:

Leading Houston, Authentically and Unapologetically

By Nikki Morris

Spotlight 37 Section Looking Ahead with the HBA Antitrust

Trade

Antitrust & Trade Regulation Section

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Spotlight 38 Committee Senior Lawyers Committee:

2021-2022 Highlights

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By John W. Kelly, Jr.

trends 40 legal Buc-ee’s Protects Its Trademarks

by Taking Another Bite Out of Its Competition

By Jennifer Smith

reviews 42 Media Trial: A Guide from Start to Finish Reviewed by Carly Milner

Buying and Selling Art and Collectibles: A Legal Guide

Reviewed by Carl J. Gustafson

The Houston Lawyer

44 Litigation MarketPlace

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July/August 2022

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Making an Impact Vinson & Elkins congratulates Partner Chris Popov on his election as 2022-23 President of the Houston Bar Association.

We proudly suppor t our distinguished colleague for continuing the HBA’s mission to serve the needs of Houston-area lawyers to enhance the legal profession.

Vinson & Elkins LLP Attorneys at Law Austin Dallas Dubai Houston London Los Angeles New York Richmond Riyadh San Francisco Tokyo Washington velaw.com

president’s message

By Christopher V. Popov Vinson & Elkins LLP

T

Why Be an HBA Member?

The Houston Lawyer

that one builds trust and authentic connection with other he HBA president is frequently asked why one professionals. That is how business is won, and how careers should join the HBA. It’s a simple question that has are built. Cold calls and sales pitches have their place, but lots of good answers depending upon where you are it’s much easier to chase business from someone whom you in your career, the type of training you need, and built a relationship with before you needed something from how you like to engage with your community. But them. It’s far easier to convince someone of your work ethic there is one answer that I believe applies to all practicing and leadership style if they’ve already seen you lead. And lawyers—there is no better organization for a lawyer seeking I believe that it’s easier to earn credibility with to build a professional network in Houston. a judge if she has seen you act credibly before In 21 years of practice, I’ve learned one very imshowing up in her courtroom as an advocate. portant lesson about growth in the profession: People hire lawyers whom they know, like, and believe With over The law is an intensely personal profession, and can get the job done. Of course, being an excellent 10,000 mem- most wise and successful lawyers know to inlawyer is a necessary component to long term sucbers, including vest in personal relationships.

This is not to say that the HBA is only about cess. But excellence isn’t enough. Like many lawprivate practinetworking. Our organization is far more than yers, I’ve competed for and won my share of awards tioners, judges, that. We change lives through pro bono service. and recognitions from ranking services. Profesgovernment We impact our community through service projsional recognition is a source of pride for me and for attorneys, ects. We teach our children about civics, and we most lawyers I know, but it’s rare client who hires a lawyer based solely off a Chambers ranking or Super and in-house educate the bench and bar on developments in Lawyers list. It is the rare promotion or lateral move counsel, the the law. We promote professionalism in our lethat is driven solely off of star power. In my experiHBA is the gal community. Indeed, when we talk about the HBA’s mission, we tend to focus on these activience, business opportunities most frequently arise largest profes- ties and the good they do for the people who are through personal relationships or trusted referrals. sional legal on the receiving end of this charity and fellowThose relationships are built and earned from a lifeorganization in ship. And members who have leaned into these time of authentic, quality human connection.

So how can the HBA help you build your proHouston.” projects tend to stay involved with our organization because it feels good to do good. Once you fessional network? The answer should be obvious. get involved in the bar, the altruistic reasons for leaning in With over 10,000 members, including private practitioners, will become obvious. judges, government attorneys, and in-house counsel, the This message, however, is directed to those who still need HBA is the largest professional legal organization in Housconvincing. I am not ashamed to say that I first got involved ton. And for smart and engaged attorneys, membership in with the bar for the self-motivated reason of building my the HBA is about more than adding your name to our memnetwork and raising my profile among lawyers in my combership rolls. Almost every day, there is an opportunity for munity. I suspect that many who have dedicated time and authentic engagement with lawyers from around this great treasure to our cause would say the same. But over time, my city. Whether it be a section-hosted CLE luncheon, a comreasons for staying involved and throwing myself into the munity service event organized by one of our many commitwork of the bar have evolved into a more symbiotic relationtees, a pro bono opportunity sourced through the Houston ship between myself and the bar and Houston.

Volunteer Lawyers or the Dispute Resolution Center, an athMy hope for this bar year is that we will attract the next letic event like our Fun Run or Golf Tournament, or a charigeneration of leaders of the Houston legal community. We table social gathering like the Harvest Celebration, there are hope you come in recognition of the good that it can do for hundreds of opportunities to engage with members of the you and your career. And we hope you stay out of appreciabar through the HBA. tion for the good that we do for Houston.

It is through opportunities and engagements like these 6

July/August 2022

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July/August 2022

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from the editor

By Brooksie Bonvillain Boutet Shipley Snell Montgomery LLP

Associate Editors

Anna M. Archer U.S. District Court

Elizabeth Furlow Malpass Baker Botts

Ryan Kent Harris County District Attorney’s Office

Carly Milner Foglar Brar O’Neil & Gray

The Houston Lawyer

Nikki Morris BakerHostetler

Andrew Pearce BoyarMiller

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Through the Lens of a Young Lawyer

W

elcome to Volume 60 of The Houston Russia-Ukraine conflict was top of mind, so we have Lawyer. brought you two articles on related investment and I am honored to serve as the magasupply chain concerns. We also have a pair of pieces zine’s editor in chief for the 2022– offering advice on how to litigate more effectively 2023 bar year. If you were unable to and the best approach to multidistrict litigation. tell from my name, I am just a girl from South LouiThank you to Carly Milner for serving as guest edisiana who headed west following my time at Louisitor of this first issue. ana State University and Law Center. The move was Through the next five issues, we will focus on the bridged by a clerkship for the Honorable Timothy E. overall theme of “Elevated Civil Discourse” in partKelley of the 19th Judicial District Court of East Banership with the HBA Board of Directors and Presiton Rouge Parish, where I confirmed that dent Chris Popov. The magazine has I did in fact want to develop a litigation historically been a medium for this goal, practice thanks to his careful mentorship providing an outlet for our membership and attention to his clerks’ professional When to discuss legal issues and current events, development. After starting with a plainand will continue to serve as a means to we began tiff’s personal injury firm in Houston, accomplishing that objective in the year I transitioned to my current practice of planning our ahead. This concept will be highlighted commercial litigation and personal injury general issue, in detail in our September/October issue defense. on media and the law. Another theme the RussiaThe Houston Lawyer editorial board of the year is “Attorney Wellness”—not was one of my first introductions to the Ukraine conflict just physical health, but overall wellbeHouston Bar Association as a very young was top of mind, ing. We will be weaving this content in lawyer who was still new to town. I recall throughout the volume, with a special so we have walking into the HBA conference room issue on attorney wellness in January/ and selecting a seat next to much more brought you February. senior lawyers who seemed to know the I would like to thank and acknowledge two articles ropes of both the practice and the board. those board members who are serving on related as associate editors this year: Elizabeth After getting up the courage to offer some ideas of my own, I found myself hosting investment and Furlow Malpass – Articles; Andrew the first season of the magazine’s comsupply chain Pearce – Legal Trends; Carly Milner – panion podcast—Behind the Lines—and Committee and Section Spotlight; Nikki concerns.” Morris – Off the Record; and Ryan Kent soon after took on this current role.

The connections I have made and men– Media Reviews, and the past two editorship I have received from my fellow board memtors in chief, Anietie Akpan and Anna Archer, for bers have proven to be invaluable. So, it is a goal of their continuing commitment as leaders on the edimine to show other young lawyers how the HBA can torial board. Anna has also continued the podcast’s add value to their practices and professional relationdevelopment as the associate editor and host of Beships as well. You will see a regular Young Lawyer hind the Lines, which is now in season three. And, Spotlight to highlight this topic in each issue, and I of course, we could not bring this publication to our am most excited to have several new board members readers without our managing editor Maggie Martin who fall into the young lawyer category, too. of the HBA. When we began planning our general issue, the Thank you for reading The Houston Lawyer.

‘‘

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BOARD OF DIRECTORS President

Secretary

President-Elect

Treasurer

First Vice President

Immediate Past President

Christopher V. Popov

Daniella Landers

Diana Gomez

David Harrell

Greg Ulmer

Jennifer A. Hasley

Second Vice President

Greg Moore

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By Johnny W. Carter

Trial by Agreement:

Steve Susman’s Ideas to Improve Civil Litigation

S

teve Susman was one of the all-time great trial lawyers.

He was brilliant, of course, and he worked very hard.

But it was not his brilliance or his hard work that made him such a special lawyer. It was that he was having so much fun.

For many of us, there are days—sometimes years—when “practicing law” is about the farthest thing from fun. Lawyers spend a lot of time fighting, often over stuff that does not really matter that much. The results are stress, overwork, and a lack of professional fulfillment.

Steve understood this. And over the last couple of decades Steve Susman (1941-2020) of his life, he put a lot of thought into how to make the practice of law better. Better for the clients. Better for jurors. Better for lawyers.

Steve pursued a number of projects designed to improve the practice of law.

For example, he founded the Civil Jury Project at New York University to study, advocate for, and develop ideas for improving the civil jury trial. Steve understood that a vibrant, efficient civil jury system is a cornerstone of American liberty. And he believed that lawyering is simply more fun and more fulfilling when cases are managed from the outset with the goal of getting them quickly and efficiently in front of a jury.

As one of his ideas for revitalizing the civil jury system, Steve advocated for opposing counsel to reach agreements at the outset of every case to make litigation easier, more focused, and more economical. Ten years ago, Steve asked me to co-author an article in the ABA’s Litigation Journal, setting out suggestions for some of these pretrial agreements.

The article, Better Litigating Through Pretrial Agreements,1 walked through and explained the benefits of 20 different pretrial agreements: 1. Discovery disputes will be resolved with a phone call between lead counsel.

2. Depositions will be scheduled by agreement and limited in number and length.

3. There will be no objections at depositions, except to assert a privilege or adjourn the deposition because the questioner is improperly harassing the witness.

4. The parties will share the same court reporter and videographer.

5. Papers will be served by email on all counsel.

6. Documents will be produced on a rolling basis.

7. Each side will pick five custodians from the other side for production of electronically stored information, with the parties agreeing that only documents containing a lawyer’s name can be withheld, and only then if they are actually privileged.

8. Production of a privileged document does not waive the privilege

as to other privileged documents, and documents can be snapped back as soon as it is discovered that they were produced and without any need to show that the production was inadvertent.

9. Each side may select up to 20 documents from the other side’s privilege log for in camera inspection by the court.

10. The parties will produce electronically stored information in native, searchable form.

11. The parties will put a 48-hour limit on protective order negotiations and, failing agreement, each side will submit its proposal to the court without argument so that the court can pick its preferred version.

12. Exhibits will be numbered sequentially, so that each exhibit will have only one number that is carried through trial.

13. The parties will share the expense of imaging deposition exhibits.

14. Neither side will be entitled to discovery of expert communications with counsel or of draft expert reports.

15. A party will not depose the other side’s experts unless it establishes, through a motion filed with the court, that an expert’s report does not comply with the requirements of Federal Rule of Civil Procedure 26.

16. The parties will agree on a briefing schedule and page limits for all pretrial motions.

17. Demonstrative exhibits need only be shown to the other side before use at trial, and do not need to be listed in the pretrial order.

18. The parties will agree on a jury questionnaire.

19. The parties will ask the court to allow the jurors to ask questions and keep notes.

20. The parties will provide the jurors with an agreed-upon notebook

containing a cast of characters, a list of witnesses, a neutral timeline, a glossary of special terms that will be heard at trial, any crucial or dispositive documents, and any other information that the parties agree will help the jurors follow the trial and deliberate in a reasonable, informed way.

In subsequent articles and speeches, Steve advocated for additional agreements to improve the jury trial process: 21. The parties should agree to equal time limits for each side at trial.

22. Jurors should be allowed to ask questions during trial.

23. Counsel should be allowed to offer interim argument during the course of trial.

24. The parties should agree that the court will provide the jury with preliminary substantive instructions before trial.

25. The parties should explore

whether to suggest that jurors be allowed to discuss evidence before the conclusion of trial.2 Steve offered many arguments for entering into these pretrial agreements, and those arguments had five broad themes: Pretrial agreements make litigation more efficient. Lawyers should think hard at the outset of a case about what they will need to fulfill the ultimate objective—winning at trial. These agreements are intended to deter collateral discovery disputes that cost time and money and do not make any difference in the outcome of the case.

Pretrial agreements make lawyers better advocates. With fewer depositions, discovery disputes, gamesmanship, and objections, lawyers can focus on winning at trial.

Pretrial agreements put the case in the hands of lead counsel. Significant time and effort can be wasted when ju-

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nior lawyers manage cases without significant involvement from lead counsel.

Less experienced lawyers sometimes cannot resist the urge to fight every battle. Lead counsel bring the perspective of experience, understanding what does and does not matter.

Jury trials should facilitate the jurors learning and understanding the facts.

Jurors are hindered from doing a good job by arbitrary and out-of-date rules, such as proscriptions on notetaking and interim argument, and by how lawyers sometimes try cases, with long days filled with repetitive presentations of evidence. The parties should agree, ahead of time, to a few ground rules that will result in a more compelling trial presentation by both sides.

We should all want the jury trial system to succeed. These agreements are intended to decrease the cost of civil jury trials while improving the results. These are goals that all trial lawyers should support. There has been a multi-decade

war on the jury trial, through procedural rules intended to encourage disposition on the pleadings and summary judgment, judges who view their main role to be encouraging settlement, and expansion of the use of the unreviewable and expensive process of mandatory arbitration.

Many lawyers at my firm propose some or all of these pretrial agreements at the outset of their cases. I recently canvassed my colleagues about their experience with these agreements, and I heard three things in response.

First, the rules are slowly moving toward approaches like those reflected in Steve’s pretrial agreements. For example, over the last several years, the Federal Rules of Civil Procedure and the rules in many states, including Texas, have moved toward non-discoverability of draft expert reports and liberal rights to snap back inadvertently produced privileged documents.

Second, opposing counsel often are

reluctant to agree to anything at the start of a case. This represents an understandable fear of the unknown—what if I agree to something now that disadvantages my client down the road?

But Steve drafted the agreements to be neutral as between the parties, and he often stressed how important it is for both plaintiffs and defendants to have an efficient discovery process leading to a well-presented, effective jury trial. The best we can do as lawyers is to advocate for these agreements and hope that opposing counsel will see the light.

Third, the feedback has been positive when the parties reach these agreements at the beginning of the case. My colleagues report that these agreements have improved the litigation process and been satisfactory to both plaintiffs and defendants in their cases.

My most satisfying days in the practice of law are spent cross-examining adverse witnesses, presenting the direct examinations of my witnesses, and generally doing things in court. My least satisfying days are spent fighting over protective orders, writing discovery letters, and drafting responses to pointless motions. Steve understood this dynamic well. He believed that civil litigation should be fun and interesting, and that the legal practice has been made less professionally satisfying by the decline of the civil jury trial and the rise of unnecessary pretrial disputes. His pretrial agreements are a meaningful contribution toward fixing these problems and improving the civil trial practice.

Johnny W. Carter is a partner with Susman Godfrey L.L.P. in Houston.

Endnotes 26. 38 LITIGATION 22 (2011).

27. See Stephen D. Susman & Thomas M. Melsheimer, Trial by Agreement: How Trial Lawyers Hold the Key to Improving Jury Trials in Civil Cases, VOIR DIRE, Fall/Winter 2013, at 16.

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By The Hon. Kristen B. Hawkins and The Hon. Sylvia A. Matthews

Multidistrict Litigation:

Practice Tips for Consolidated Pretrial Proceedings

I

n 2003, Texas passed legislation to create the Judicial Panel on Multidistrict Litigation (MDL Panel) and to allow the MDL Panel to transfer related civil actions for consolidated or coordinated pretrial proceedings to a pretrial court.1 The MDL procedure serves as “a tool for promoting convenience to witnesses and parties along with judicial efficiency.”2 Rule 13 of the Texas Rules of Judicial Administration governs the MDL procedure.

To grant a transfer, as a threshold matter, the MDL Panel must find that the cases are “related”—that is, that they involve one or more

common questions of fact.3 If the cases satisfy that threshold question, the MDL Panel then considers whether transfer would be convenient for the parties and witnesses, and would promote the just and efficient conduct of the cases.

Since its creation, and as of this writing, the MDL Panel has received 120 motions to transfer.4 In 2021, the MDL Panel considered 13 motions to transfer. The MDL Panel granted all of them and assigned seven to Harris County pretrial courts.

All told, Harris County currently has about 22 MDL proceedings pending. This article will address tips for those engaged in the MDL practice.6 Tip 1: Do Not Request a Particular Judge or County in the Rule 13 Motion The MDL Panel disfavors a party requesting the appointment of a specific judge to preside as pretrial judge or transfer to a particular county—even if all the parties agree.7 According to the MDL Panel, “Rule 13 is not meant to be a venue-changing or judge-selecting procedure.”8 The MDL Panel may assign “any active district judge, or any former or retired district or appellate judge who is approved by the Chief Justice of the Supreme Court of Texas.”9 The MDL Panel is not likely to appoint a judge that a party requests, even by agreement.

Tip 2: Know Your Case To successfully navigate an MDL, the parties should familiarize themselves with the various categories of plaintiffs and defendants in a given proceeding and the number of parties in each category. For example, in an MDL dealing with a chemical release and chemical explosion, the parties should know the number of plaintiffs alleging wrongful death, the number of plaintiffs alleging severe injuries (such as traumatic brain injuries, orthopedic injuries, burn injuries, etc.), and the number of plaintiffs alleging minor injuries. Plaintiffs may also work for different employers or contractors or be residents in the area. Defendants may be manufacturers, the premises owners, or contractors. Knowing all of this informathehoustonlawyer.com

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tion will assist in developing a discovery and deposition schedule and, later, help determine which cases would be appropriate for a bellwether trial.

Tip 3: Be Organized—or Have Someone on the Team Who Is An MDL proceeding inherently involves multiple cases, multiple plaintiffs, and sometimes multiple defendants. Being organized and detail-oriented helps to track the progress and management of the MDL and to address specific needs the pretrial court may have.

Tip 4: Prepare a Case Management Order The case management order (CMO) governs how the litigation will proceed and should cover “all matters pertinent to the conduct of the litigation.”10 The CMO should be tailored to the specific issues in each case and cover topics such as issuing protective orders, appointing liaison counsel, exchanging documents, establishing document depositories, scheduling depositions, scheduling dispositive motions, and other matters that will allow for the just and efficient pretrial proceedings. The parties should confer about the CMO and reach as many agreements as possible before presenting a proposed CMO to the pretrial court.

Tip 5: Propose Appropriate Liaison Counsel Liaison counsel will be the attorneys ap-

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pointed by the pretrial court to appear at all hearings and speak on behalf of their sides of the case. Liaison counsel are responsible for disseminating information and notices to all plaintiff or all defense counsel, and the position can be very document- and time-intensive. When proposing liaison counsel, the parties should consider who the stakeholders are and be mindful about which firms have the bandwidth to take on the position. The parties should also consider whether diversity among liaison counsel is appropriate.

Tip 6: Prepare for the Initial Hearing Rule 13 provides that the pretrial court should conduct an initial hearing “at the earliest practical date.”11 To prepare for the initial hearing, counsel should review Rule 13 and be prepared to discuss the matters listed in Rule 13.6(c) and to advise the pretrial court of any particular issues that may exist. Counsel for plaintiffs and defendants should meet separately in advance of the hearing to coordinate their responses. If possible, counsel should confer with each other and prepare an agenda of topics that the parties would like to cover at the initial hearing. Counsel should be sure to contact the pretrial court to determine if the court has any specific procedures that may apply.

Tip 7: Tag-in Cases Selectively Rule 13 defines a tag-along case as “a case related to cases in an MDL transfer order but not itself the subject of an initial MDL motion or order.”12 When the MDL Panel grants a motion to transfer, the order will usually state that the cases subject to the motion are transferred along with those that may be tagged-in later.

Once a case has been tagged into an MDL proceed-

ing, the case remains unless the pretrial court grants a timely motion to remand.13 A motion to remand may be filed to challenge whether the tag-along procedure was appropriately invoked. The pretrial court decides motions to remand using the same standards that the MDL Panel uses to decide a Rule 13 motion to transfer.14 Tip 8: Be Mindful of Which Court Has Authority “After notice of transfer is filed in the trial court, the trial court must take no further action in the case except for good cause stated in the order... and after conferring with the pretrial court.”15 The pretrial court is authorized to decide all pretrial matters in all related cases transferred to the court.16 Counsel for plaintiffs and defendants should be mindful of the responsibilities that each court must handle, and advise trial courts that litigation is stayed until the MDL pretrial court has decided all pretrial matters. When a case is remanded for trial, the rulings of the pretrial court are binding unless the trial court receives written concurrence from the pretrial court. The only exception pertains to the admissibility of evidence at trial because of changed circumstances.17 Tip 9: Select Trial Cases Strategically According to Rule 13.7, the pretrial court may remand for trial one or more cases, or portions of cases. If requested, the pretrial court will consider how many cases can be consolidated for trial without causing juror confusion and prejudice to the parties.

In some instances, a bellwether trial may be appropriate. Bellwether trials are cases that are selected to be remanded and tried ahead of other cases in an MDL and usually involve cases that are representative of the other pending cases. A bellwether trial verdict can provide information to both plaintiff and defense counsel regarding potential liability and damages, which may lead to the resolution of additional cases. When deciding on a bellwether trial, the pretrial court will likely conduct a balancing test and weigh various factors to ensure that the

case is representative of the other cases in the MDL. Tip 10: Adhere to Trial Settings The pretrial court sets cases for trial in conjunction with the trial court. Rule 13.6(d) provides that the pretrial court and the trial court must confer and cooperate to set the case on the trial court’s docket. Once a case is set for trial, motions for continuance and resets are not favored. In fact, the “trial court must not continue or postpone a trial setting without the concurrence of the pretrial court.”18

In re Wendland Well Cases Litig., No. 20-0286 (Tex. M.D.L. Panel April 7, 2021) (“The Panel denies the request for the assignment of the Jointly Requested Judge because we have repeatedly indicated we disfavor parties recommending that we transfer to a particular county or judge.”).

8. In re Digitek® Litig., 387 S.W.3d at 118.

9. TEX. R. JUD. ADMIN. 13.6(a). The assignment is not subject to objection under Chapter 74 of the Government Code. Id. 10. TEX. R. JUD. ADMIN. 13.6(c).

11. Id. 12. See TEX. R. JUD. ADMIN. 13.2(g).

13. In re Wellington Ins. Co. Hailstorm Litig., 427 S.W.3d at 582.

14. Id. at 584.

15. TEX. R. JUD. ADMIN. 13.5(b). Although a party files a notice of transfer, the trial court may not be aware of the notice and may generate orders, such as docket control orders or trial settings. When this happens, notify the trial court’s coordinator that the case has been transferred to an MDL and request that the trial court’s order be set aside.

16. TEX. R. JUD. ADMIN. 13.6(b).

17. TEX. R. JUD. ADMIN. 13.8(b), (c).

18. TEX. R. JUD. ADMIN. 13.6(d). See also In re Texas Windstorm Ins. Ass’n Hurricanes Rita and Humberto Litig., 339 S.W.3d. 401, 404–05 (Tex. M.D.L. Panel 2009) (“A remanded case is not to be given an ordinary trial setting; when a trial date is set and a case remanded, the trial judge cannot continue or reset the case without the pretrial judge’s consent.”).

The Hon. Kristen B. Hawkins was elected judge of the 11th District Court in 2016.

She currently presides over two MDLs, In re Astroworld Litigation and In re KMCO Litigation.

The Hon. Sylvia A. Matthews is a visiting judge, mediator, and arbitrator. As a visiting judge, she currently presides over five active MDLs, including In re Winter Storm Uri Litigation.

Endnotes 1. TEX. GOV. CODE § 74.161–.164.

2. In re Digitek® Litig., 387 S.W.3d 115, 118 (Tex. M. D.L. Panel 2009).

3. TEX. R. JUD. ADMIN. 13.2(f); In re Wellington Ins. Co. Hailstorm Litig., 427 S.W.3d 581, 582–83 (Tex. M.D.L. Panel 2014).

4. See the “Multi-District Litigation Panel” tab at www. txcourts.gov for a list of “Available Cases” in which a motion to transfer has been filed.

5. The authors would like to thank Natalie Kirk, Anwar Chagollan, and Tim Almohamad, interns for the 190th District Court, for their assistance in creating the graphic 6. This article will not address issues specific to asbestos- or silica-related injuries.

7. See Designation of Pretrial Court and Appointment of Pretrial Judge Order at 1, n.1, In re Astroworld Litig., No. 21-1033 (Tex. M.D.L. Panel Feb. 14, 2022) (“[W]e have repeatedly stated that we disfavor requests that we appoint specific judges requested by the parties.”) (citing In re Farmers Ins. Co. Hurricane Harvey Litig., No. 18-0547, 2018 Tex. LEXIS 737, at *1 (Tex. M.D.L. Panel July 27, 2018) (other citations omitted)). See also Order Granting Reinstatement, Motion to Transfer and Request to Lift Stay at 1,

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By Mark Murrah and Jose Trevino 1

The Impact of the Russia-Ukraine Conflict on International Shipping and Supply Chain Management

O

ne cannot talk about international shipping and supply chain management without contextualizing these topics in a “before and after COVID-19” discussion. The spread of COVID-19 had tremendous impacts on the world economy. Over the span of the last several years, the global economy faced (and, to an extent, recovered from) scarcity of raw materials and finished goods, increased delivery times resulting from port terminals, railways, other logistics infrastructures operating at less-thanoptimal capacity, and human capital shortages derived from ill workers or from containment measures implement-

ed to counter the spread of the virus.

Then, the Russia-Ukraine conflict began. The world economy suddenly faced setbacks again that curtail its continued recovery from COVID-19. No one can know the conflict’s ultimate impact on the global economy. Quite frankly, only time will tell because we have yet to see the outcome of the conflict, assess the damage to the economies of the warring nations, and determine to what extent goods formerly produced by these countries are replaced with production of similar goods by other nations.

As of now, as with all wars, the likely outcome is not promising. Take Russia, for example. According to the Observatory of Economic Complexity, Russia’s economy in 2020 was the world’s 11thstrongest economy when measured by gross domestic product (GDP), 13th by total exports, and 21st by total imports—but 70th when measured on a per capita basis.2 More importantly, Russia remains a significant producer of petroleum, third in the world behind only the United States and Saudi Arabia in 2020.3 According to the European Council, in 2020, Russia provided 29% of total crude oil and 43% of natural gas (plus 54% of solid fossil fuel, such as coal) imports into the European Union (EU).4 And crude oil and natural gas revenue comprised approximately 43%, on average, of the Russian government’s total annual revenue between 2011 and 2020.5 The United States has fared better than the EU because it is less reliant on Russia for oil and natural gas. For example, in 2021, Russian imports accounted for only 8% of U.S. petroleum imports.6 While no accurate data is available to validate the percentage of gas imported from Russia into the U.S., the U.S.’s status as a net gas producer makes it likely that reliance on Russian gas imports is immaterial.

Regardless of the extent of the U.S.’s reliance on Russia for energy sources, when two of the world’s most important economies—the U.S. and the EU—impose economic sanctions that result in the diminished availability of energy

supplies, there must be timely planning behind the decision. As it turns out, the U.S. and the EU appear to have imposed sanctions as a knee-jerk reaction without planning for the potential long-term effects, which are now playing out on the world stage.

So, now that the U.S. and the EU have restricted imports of Russian oil and gas, what happens next? A little over five months have gone by since the onset of the Russia-Ukraine conflict. In short, since there is no humanly possible way to substitute such a large supply of fuel in such a short period of time, both economies have seen a significant rise in energy prices. Indeed, since February, Europe’s natural gas price benchmark (called the Dutch front month gas prices) has risen by 176%,7 and the U.S.’s natural gas price benchmark (called the Henry Hub gas prices) has increased 35%.8 From a supply chain perspective, rising energy prices have a negative impact that affects the whole system. It costs more to manufacture goods and to deliver those goods to consumers. While manufacturers and other participants in the supply chain might absorb the cost increase temporarily, eventually these cost increases will be passed to the consumers, who will watch as their purchasing power erodes, along with their confidence in the economic climate. The consumer impact will in turn affect manufacturers.

Manufacturers with excess inventories accumulated in a high-cost environment will be forced to eliminate these surpluses by liquidating inventories at clearance prices. Under these conditions, manufacturers essentially fall into the worst investing maxim there is: “buy high, sell low.”

Thus, it is likely that, in the short term, trying to anticipate when the economic activity will decelerate, manufacturers will aim to reduce their inventory buildup by maintaining a lean, just-in-time inventory. This will accentuate the scarcity of goods that has prevailed since the outbreak of COVID-19, thus exacerbat-

ing the high price, scarce availability of pact of late shipments and failed service goods environment that may lead to an agreements by inserting force majeure economic downturn. provisions9 into their supply chain agreeThe rise in price of even a ments. It would come as no few commodities can wreak surprise if many businesses havoc on the economy. Curimplement a similar strategy tailing the supply of other in response to the recent ecoFrom a supply significant commodities nomic instability caused by chain perspective, the Russia-Ukraine conflict, exported by Russia and rising energy prices whereby increased focus on Ukraine, such as precious have a negative risk allocation becomes the and industrial metals and cereals, among other comimpact that affects norm. modities—whether caused As the Russia-Ukraine conthe whole system. It because it is no longer posflict has negatively impacted costs more to manusible to produce said goods, supply chain management, facture goods and to the goods are banned from it has also had a deleterious deliver those goods being supplied due to ecoeffect on international shipto consumers.” ping. Cargo ships run on dienomic sanctions, or the infrastructure utilized to supply sel fuel. Consignors are subthose goods has been destroyed—will ject to the adverse effects that are caused only magnify the adverse effects to the by rising energy prices. However, unlike global economy that are caused by rising other participants in the supply chain prices of goods and services. of goods, shipping companies are safeAt the height of the COVID-19 crisis, guarded from having to absorb cost inmany businesses avoided the full imcreases instead of passing the costs onto

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the customers. Supply chain disruptions related to the outbreak of COVID-19 forced many retailers to order goods to build up their inventories many months in advance. Certain accounts indicate that incoming ships have months-long wait times at harbors before they are scheduled to disembark. Consequently, many businesses have enabled shipping companies to negotiate better terms and rates for themselves.

If the Russia-Ukraine conflict is prolonged, it is likely that a slight increase in available shipping vessels formerly retained for transport of these countries’ goods might occur. This increase would thereby create a downward price pressure for consignors. In response to the conflict, American businesses may begin to evoke reshoring or near-shoring strategies to terminate preexisting trade agreements with Russian-owned businesses and to launch new, domestic means of manufacturing. Whether the newfound domestic investments in

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manufacturing capacities take place in North America or elsewhere, U.S. businesses should look to retain legal counsel who can advise them on the risks of operating and managing the transition process.

Mark Murrah is founding and managing partner of Murrah & Killough, PLLC.

Jose Trevino is an attorney licensed in Mexico who heads Murrah & Killough, PLLC’s Monterrey office.

Endnotes

1. The authors would like to thank Luis Civallero, a law clerk at Murrah & Killough, PLLC studying history at Hendrix College; David Kurp, a law clerk at Murrah & Killough, PLLC studying political science at Rice University; and Jack Murrah, a rising senior at St.

2.

3.

4.

5.

6.

7.

8.

9.

John’s School studying economics, for their assistance in researching and developing this article.

OBSERVATORY OF ECONOMIC COMPLEXITY, Russia, https://oec.world/en/profile/country/rus. (last visited Aug. 8, 2022).

U.S. ENERGY INFORMATION ADMINISTRATION, Russia Analysis (Dec. 13, 2021) https://www.eia.gov/ international/analysis/country/RUS. EUROSTAT, From where do we import energy?, https:// ec.europa.eu/eurostat/cache/infographs/energy/bloc2c.html (last visited Aug. 8, 2022).

U.S. ENERGY INFORMATION ADMINISTRATION, Russia Analysis (Dec. 13, 2021) https://www.eia.gov/ international/analysis/country/RUS. U.S. ENERGY INFORMATION ADMINISTRATION, Today in Energy: The United States imports more petroleum products than crude oil from Russia (Mar. 22, 2022), https://www.eia.gov/todayinenergy/detail. php?id=51738. (“Petroleum products are obtained from the processing of crude oil . . ., natural gas, and other hydrocarbon compounds. Petroleum products include unfinished oils, liquified petroleum gases,” gasolines, fuel oils, and other products. U.S. ENERGY INFORMATION ADMINISTRATION, Petroleum & Other Liquids Definitions, Sources and Explanatory Notes, https://www.eia.gov/dnav/pet/TblDefs/pet_move_ impcus_tbldef2.asp (last visited Aug. 8, 2022).

ICE, Dutch TTF Gas Futures, https://www.theice. com/products/27996665/Dutch-TTF-Gas-Futures/ data?marketId=5419234&span=2 (last visited Aug. 8, 2022). The increase calculations were performed by the author.

U.S. ENERGY INFORMATION ADMINISTRATION, NaturalGasWeeklyUpdate, https://www.eia.gov/natural gas/weekly/ (last visited Aug. 8, 2022). The increase calculations were performed by the author.

Force majeure provisions are meant to reduce the risk of loss stemming from unforeseen events.

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By M. Imad Khan

Mapping Potential Investment Treaty Claims Against Russia

T

he Russian Federation’s (“Russia”) invasion of Ukraine has resulted in investment-specific measures across the globe with Western nations imposing sanctions against Russia, and Russia responding with its own economic measures. These include export bans on various types of goods produced by foreign companies in Russia.1 The Russian government is also taking steps toward nationalizing foreign assets of companies that have left the country since the invasion of Ukraine and

proposing the transfer of such foreign businesses to the state development bank, VEB.2 Moreover, the Russian government has imposed currency transfer restrictions and new requirements to obtain its approval for certain types of transactions involving foreigners from “unfriendly” countries.

The Russian government’s rulemaking sovereignty is nonetheless limited

by Russia’s international obligations to promote and protect foreign investors and their foreign investments. These treaties not only provide substantive protections to foreign investors and investments, but they also provide a process through which foreign nationals may enforce their investment treaty rights against Russia for compensation.

Russia is party to over 60 investment treaties, according to the United Nations Conference on Trade and Development’s Investment Policy Hub.3 Its recent measures target foreign investors and investments that are associated with several countries with which Russia has an investment treaty. Notably, although Russia and the United States signed an investment treaty in 1992, it is not in force, and therefore cannot be invoked.

This article provides an overview of investment treaties and their protections, as well as implications for foreign investors in Russia whose investment treaty rights may have been violated by Russia’s recent economic measures.

Investment Treaties and Their Protections Investment treaties are agreements between countries that govern a state’s treatment of foreign investments made by individuals or companies from another country. There are two types of investment treaties: bilateral investment treaties (between two states) and multilateral investment treaties (among several countries). These treaties may be standalone instruments (e.g., the 1994 United States-Ukraine Treaty Concern-

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ing the Encouragement and Reciprocal Protection of Investment) or form part of free trade agreements (e.g., the 2020 United States-Mexico-Canada Agreement). There are roughly 3,000 investment treaties currently in force.

Most investment treaties have substantive provisions that provide the various standards of protections to foreign investors and their investments in host states. The most common standards of investment protection include: • Prohibition against illegal expropriation or taking of private property, which may include measures that would affect foreign investors’ basic rights to exercise authority or control over their foreign capital or investment. Notably, the taking of alien property is legal and legitimate where certain conditions are fulfilled. Legal expropriation requires that it was in the public interest and that prompt and adequate compensation was paid,4 though some treaties also require legal expropriation measures to be non-discriminatory, non-arbitrary, and conducted with due process.5 • Non-discrimination based on nationality (i.e., national treatment protection), which typically requires the host state to treat foreign investors and/or investments at least as well as the state treats investors from its own jurisdiction.

This, therefore, promotes the position of the foreign investor to the level accorded to domestic nationals.6 • Most-favored-nation protection, which requires the host state to treat foreign investors or investments of one contracting party at least as favorably as foreign investors or investments of a third state that is not party to the underlying investment agreement.7 • Guarantee to freely transfer funds without restrictions into and out of the host state to maintain 22

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the country of which they are nationals) operations. has an investment treaty with Russia.

• Full protection and security, They must also confirm the temporal which applies to physical protecscope of the investment agreement (i.e., tion of assets and requires that whether the investment agreement aphost states preserve the public plies to an investment established prior order and ensure security by acting to the agreement’s entry into force or with due diligence and using their whether its application is limited to inpolice powers to avoid physical vestments established afdamage or injury. ter the investment agree• Fair and equitable ment came into force). treatment to ensure that a host state does The Russian The subject matter scope is also important, and not affect basic exgovernment’s this is determined by how pectations taken into account by a foreign rulemaking the treaty defines “invesinvestor when making sovereignty is tor” and “investment” to ascertain which forms the investment, and to nonetheless of economic activities by ensure the state acts consistently, free from limited by foreign nationals are covambiguity, and with Russia’s ered by the investment treaty. total transparency in international Second, if the applicarelation to the foreign ble investment treaty covinvestor. obligations to promote and pro- ers the scope of a foreign investor’s foreign investAn important provision tect foreign invesment, due regard must of any investment treaty is its dispute settlement protors and be given to substantive vision, which enables a their foreign protections in that applicable treaty. Not every foreign investor to bring a investments.” treaty will have the subclaim against the host state stantive protections outfor violation of any of the lined above. And different treaties with enumerated substantive standards of the same sovereign may yield different protection. Several investment treaties results. For example, the Russia-Singarefer such disputes to the World Bank pore investment treaty provides for fair Group’s International Centre for Settleand equitable treatment, rule against ment of Investment Disputes or under unlawful expropriation, free transfer arbitration rules of the United National of payments, etc.8 However, it does not Commission on International Trade Law (“UNCITRAL”). contain national treatment or mostfavored-nation clauses. By contrast, Legal and Practical Considerations of the Russia-UAE investment treaty does Commencing Investment Claims include national treatment and mostBringing an investment treaty claim favored-nation clauses, among othagainst any sovereign, including Russia, ers.9 Different government measures requires important legal considerations give rise to different claims under the that are grounded in the existence, apsubstantive protections provided by inplicability, and contents of investment vestment treaties, with some measures treaties. First and foremost, foreign insimultaneously giving rise to multiple vestors in Russia who have been harmed claims under various investment proby recent economic measures must contections. firm that their state of nationality (i.e., The third legal consideration pertains

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to the investment treaty’s dispute resolution mechanism, which will be provided in the applicable treaty. The provision may require sending a formal notice of dispute to the state and/or engaging in negotiations before commencing a suit.

The Russia-Iran investment treaty, for example, requires that if a dispute cannot be settled within six months from the date of written notification of the dispute, only then can a foreign investor submit the dispute to a “competent court of the State,” initiate ICSID arbitration, or initiate ad hoc arbitration under the UNCITRAL arbitration rules.10 There are also practical considerations that must be taken into account. For example, in recent history, Russia has refused to participate in international arbitrations and litigations against the state. The absence of Russia before the International Court of Justice in the claim brought by Ukraine is just one recent example. It may well be the case that Russia refuses to participate in future investment treaty arbitrations altogether. That,

however, does not mean that the arbitration will not proceed. An arbitral tribunal with proper jurisdiction is still empowered to adjudicate the dispute and render an arbitral award even if Russia chooses not to participate.

In that scenario, if the tribunal renders an arbitral award against Russia, it is unlikely that Russia will voluntarily comply.

It is well-documented and reported that Russia has been resisting paying Yukos the $50 billion awarded in compensation through investment arbitration, which may be indicative of Russia’s future conduct to comply. This, however, should not be discouraging because international arbitration law provides for enforcement of arbitral awards. Russia is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). Therefore, an award against Russia can be enforced in any of the approximately 169 states that have ratified the New York Convention, and Russian assets in that state may be used to monetize the award. Recent re-

ports confirm that over $300 billion dollars’ worth of Russian assets from Russia’s central bank have been frozen by the United States and its allies.11 These frozen assets may be targeted by arbitral award creditors to monetize awards against the Russian Federation, as long as those assets are commercial in nature and not subject to sovereign immunity protections under the applicable law.

M. Imad Khan is an international disputes lawyer at Winston & Strawn LLP.

Endnotes

1. Russia hits back at Western sanctions with export bans, BBC NEWS (Mar. 10, 2022), https://www.bbc. com/news/business-60689279.

2. Russia Lays Groundwork for Nationalizing Foreign Companies Amid Fallout From Ukraine War, RADIO FREE EUROPE RADIO LIBERTY (Mar. 10, 2022), https://www.rferl.org/a/russia-nationalize-foreigncompanies/31746695.html.

3. INVESTMENT POLICY HUB, https://investmentpolicy.unct ad.org /inter nat ional-inve st mentagreements/countries/175/russian-federation (last

visited Jul. 24, 2022).

4. MALCOLM N. SHAW, INTERNATIONAL LAW 573 (1997).

5. AUGUST REINISCH, STANDARDS OF INVESTMENT PROTECTION 171, 173–175 (2008).

6. See Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Case No. ARB/05/8, 367–368 (Sept. 11, 2007) (discussing that the effect of the national treatment clause of investment treaties is to bar discrimination against foreign nationals investing in the host state).

7. See Ickale Insaat Limited Sirketi v. Turkmenistan, ICSID Case No. ARB/10/24, 328 (Mar. 8, 2016) (finding that the “the legal effect of the MFN clause, properly interpreted, is to prohibit discriminatory treatment of investments of investors of a State party (the home State) in the territory of the other State (the host State) when compared with the treatment accorded by the host State to investments of investors of any third State”).

8. Agreement Between the Government of the Republic of Singapore and the Government of the Russian Federation on the Promotion and Reciprocal Protection of Investments dated September 27, 2010.

9. Agreement Between the Government of the United Arab Emirates and the Government of the Russian Federal on the Promotion and Reciprocal Protection of Investments dated 2010.

10. Agreement Between the Government of the Russian Federation and the Government of the Islamic Republic of Iran on Promotion and Reciprocal Protection of Investments dated December 23, 2015.

11. DOJ says the U.S. and allies have frozen $30 billion of Russian elites’ assets, $300 billion of Moscow bank funds, CNBC (Jun. 29, 2022), https://www. cnbc.com/2022/06/29/doj-says-allies-have-frozen30-billion-of-russian-oligarch-assets.html.

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HBA Diversity Awards Given to Firms, Individuals for Excellence in DEI

T

he Houston Bar Association presented its second annual Diversity Awards to recognize outstanding law firms and individuals for their diversity, equity, and inclusion efforts within the legal profession and greater Houston community.

The recipients of the 2022 HBA Diversity Awards are: Frost Brown Todd LLC; Shauna Johnson Clark Greenberg Traurig, LLP; Roland Garcia, shareholder with Greenberg Traurig, LLP; and Marcus Esther, The Law Office of Marcus Esther, PLLC. “We are truly honored to be recognized by the HBA for Frost Brown Todd’s commitment and actions to advance diversity, equity, and inclusion (DEI),” said Chris Johnson, chief diversity officer of Frost Brown Todd. “This award helps to affirm our progress on this long journey and serves as a reminder that there is always more work to do. Clear accountability will continue to guide our efforts every step of the way.”

“Since opening in Houston a few years back, we’ve been intentional about recruiting talent that reflects the vibrancy of our Houston community, which is among the most demographically diverse cities in the U.S.,” said Ken Bullock, Frost Brown Todd Houston member-in-charge.

Greenberg Traurig received two awards—both an organization award, as well as an individual award for Shareholder Roland Garcia, who promoted inclusion and diversity projects as president of the Houston Bar Association (2001-2002) and has continued to champion similar efforts through other organizations.

As a firm, Greenberg Traurig said it’s implemented several DEI initiatives, including its Diverse Law Student Recruitment Pilot Initiative in 2018 to develop meaningful and long-term relationships with diverse talent.

“From its inception, Greenberg Traurig has been at the forefront of implementing diversity, equity and inclusion, and our Houston office stands steadfast to these initiatives. Our strong commitment to a diverse profession and a more just society means we can make a true difference in the local and legal community,” said Shari L. Heyen, managing shareholder of Greenberg Traurig Houston. “It’s a great honor for our office to be recognized by the Houston Bar Association and we are immensely proud of Roland Garcia for his individual recognition. Roland’s work to advance diversity in all aspects of his life is both admirable and inspirational.”

Criminal defense attorney Marcus Esther’s DEI efforts include his work and leadership with several Houston organizations, including his service as vice president for the Houston Area Urban Young Professionals.

“I am honored to receive this award! Diversity, equity, and inclusion efforts are extremely important in the movement towards true justice. Passionate attorneys are 26

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needed to advocate for the underrepresented and underprivileged. By receiving this award, I hope to serve as an example to attorneys on how we can push for diversity and become more inclusive in our work.”

The HBA Diversity Awards were created in 2019 by HBA President Benny Agosto, Jr. (2019-2020) to recognize outstanding achievements and dedication by law offices, legal departments, and individuals in the areas of diversity, equity, and inclusion in the legal profession. Recipients are chosen by a committee made up of representatives from the HBA’s Gender Fairness Committee; Diversity, Equity and Inclusion Committee; and LGBTQ+ Committee. The awards were presented during the HBA’s 24th Annual Summer Associate Luncheon held July 21 in downtown Houston..

The above article is an HBA press release.

Attorney Marcus Esther, The Law Office of Marcus Esther, PLLC, poses with his award and Jaquelyn Rex with Smyser Kaplan & Veselka, L.L.P., a co-chair of the 2021-2022 HBA Diversity, Equity & Inclusion Committee.

Roland Garcia, shareholder with Greenberg Traurig, LLP, poses with 2021-2022 HBA Diversity, Equity & Inclusion Committee Co-chair Jacquelyn Rex.

Roland Garcia, shareholder with Greenberg Traurig, LLP, poses with other firm members.

Ken Bullock, member-in-charge of the Houston office of Frost Brown Todd LLC, poses with 2021-2022 HBA Diversity, Equity & Inclusion Committee Co-chair Jacquelyn Rex. thehoustonlawyer.com

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Christopher V. Popov Takes Helm as HBA President Christopher V. Popov of Vinson & Elkins took office as the 2022-2023 Houston Bar Association president at the HBA Annual Dinner on May 19 at River Oaks Country Club. He succeeds Jennifer A. Hasley of Hasley Scarano, L.L.P. The event included a presentation of the President’s Awards, given to outstanding committees, sections, and individuals to celebrate their accomplishments over the past year. The HBA also presented the Justice Ruby Shauna Johnson Clark Kless Sondock Award, recognizing outstanding achievement and leadership for women in the law, and the Justice Eugene A. Cook Professionalism Award, the association’s highest award for professionalism.

Photography by Deborah Wallace, Barfield Photography

2021-2022 HBA President Jennifer A. Hasley (right) presents the gavel to new HBA President Christopher V. Popov.

Hasley with husband Greg Hasley and daughter Katie.

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Popov with (L to R) son Preston, Stan Eggers, Lee Eggers, daughter Palmer, brother George Popov, wife Annsely, Meredith Marshall, and Ben Marshall.

Popov presents Hasley with the president’s plaque.

Popov with HBA Executive Director Mindy Davidson.

Hasley poses with Chief Justice Tracy Christopher of the Fourteenth Court of Appeals, who was awarded this year’s Justice Ruby Kless Sondock Award.

Hasley with Judge Edith H. Jones, former Chief Judge of the United States Court of Appeals for the Fifth Circuit and this year’s recipient of the Justice Eugene A. Cook Professionalism Award.

Hasley with the Hon. Keith P. Ellison, United States District Court, Southern District of Texas; and Bridget Vick, Hunton Andrews Kurth LLP.

2020-2021 HBA President Bill Kroger (right) and wife Elizabeth M. Kroger with University of Houston Law Center Dean Leonard Baynes.

(L to R) Roy Varner; Dominique Varner, Hughes Watters Askanase; Adalgisa Marshall; and Mike Marshall.

HBA Secretary Daniella Landers, Womble Bond Dickinson (US) LLP, and Lucy Forbes, State Bar of Texas director of District 4, Place 4.

Houston Bar Foundation Chair Christian Garza with Houston Volunteer Lawyers Executive Director Anne Chandler.

Former Houston Bar Association President Kelly Frels (1994-1995) with wife, Carmela, former Houston Bar Association Auxiliary President (1996-1997).

Roland Garcia, former HBA president (2001-2002) and shareholder with Greenberg Traurig, LLP, with wife Karen Garcia.

Alistair B. Dawson, former HBA president (2017-2018) and partner with Beck Redden LLP; the Hon. Rabeea Collier, 113th District Court; and the Hon. Beau Miller, presiding judge of the 190th Judicial District Court.

HBA Emeritus Member Fred Hagans with son William of Hagans Montgomery Hagans. thehoustonlawyer.com

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50-Year Lawyers The HBA would like to recognize our 50-year lawyers Terrance Baggott C. Thomas Behrman Fred Bosse Robert Bramlette W. Robins Brice Stephen Brochstein William Cantrell David Childress Murry Cohen R.P. “Skip” Cornelius Ralph Coselli J. Cal Courtney Will Dickey Gerald Drought Russell Ducoff

Gladys Goffney Harrison Gregg Fred Hagans James Henry Michael Hilliard David Hurley Lee Joseph Roland Kemp John Kendall Robert Levine Gerald Linder Douglas Lyons Gordon Marcum II Charles McClees Hugh McCulley Larry Meyer

Richard Mithoff Kenneth Morris Don Nelson Edgar Norwood Jack O’Neill John Pavlas Michael Perrin Bruce Powers Norman Radford Robert Rowland William Rucker Lupe Salinas Stanley Santire Robert Scardino George Schilter Ralph Shepherd

James Short Michael Silva Roland Sledge Jerry Smith George Snell James Spring Richard Steele Irving Stern Joseph Stevens David Stevens Patrick Timmons Jeffrey Tompkins Ellis Tudzin Danny Van Winkle

President’s Awards Jennifer A. Hasley presented the 20212022 President’s Awards to outstanding committee chairs and sections.

Bench Bar Conference Committee Justice April L. Farris, First Court of Appeals Hon. Kelli Johnson, Harris County Administrative Judge - Criminal Division and Judge of the 178th Criminal District Court Rusty Hardin, Rusty Hardin & Associates Tiffany Larsen, Harris County District Attorney’s Office Amy Allen, Gray Reed Hon. Jason Cox, Administrative Judge and Harris County Probate Court No. 3 Hon. Angela Graves-Harrington, Harris County Administrative Judge Family Division and Judge of the 264th District Court

Fun Run Committee Richard Fink, Baker McKenzie LLP Amber Morrison, R. Reese & Associates Nicolette Zulli, Duane Morris LLP Golf Tournament Committee Ryan Kinder, Bradley Arant Boult Cummings LLP Ken Krock, Rapp & Krock, PC Jeffrey McPhaul, Locke Lord LLP Habitat For Humanity Committee Kaylan Dunn, Hunton Andrews Kurth LLP Erin Juvenal Jennings, Hunton Andrews Kurth LLP Tara McElhiney, Morgan, Lewis & Bockius LLP Deanna Willson, Locke Lord LLP The Houston Lawyer Editorial Board Anietie Akpan, Metropolitan Transit Authority of Harris County, Texas (METRO)

LGBTQ+ Committee Hon. Beau Miller, Harris County Civil Administrative Judge and Judge of the 190th District Court Hon. Daryl Moore, AZA Law Hon. Kim Ogg, Harris County District Attorney Military & Veterans Committee Randy Clark, Attorney at Law Jonny Havens, Allen & Havens LLP Rick Houghton, Smyser Kaplan & Veselka, L.L.P. Professionalism Committee Hon. Julie Countiss, First Court of Appeals Seepan Parseghian, Beck Redden, LLP Michael Reeder, Cadwell Clonts Reeder & Thomas LLP

Senior Lawyers Committee John Kelly, Jr., AttorneyMediator Hon. Sarah Springer, Springer Law Firm HBA Appellate Practice Section Chaired by James Marrow, Wright Close & Barger, LL HBA Litigation Section Chaired by Bridget Vick, Hunton Andrews Kurth LLP HBA Oil, Gas & Mineral Law Section (Now Energy Law Section)

Chaired by Rachel Reese, founder and executive attorney of R. Reese and Associates

President’s Special Recognition Awards Jennifer A. Hasley presented special awards to outstanding individuals in the Houston legal community.

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Outstanding Service Dominique Varner, Hughes Watters Askanase LLP

Exemplary Service to the Legal Profession and Community Hon. Keith P. Ellison, United States District Court, Southern District of Texas

Texas values.

Global reach.

This year, the teams at Houston-based firm Briggs & Veselka and its subsidiary, Pathway Forensics, joined Crowe LLP, a public accounting, consulting, and technology firm with offices around the world.

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Explore more on crowe.com.

Visit www.crowe.com/disclosure for more information about Crowe LLP, its subsidiaries, and Crowe Global. © 2022 Crowe LLP. MBV2300-001F

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An Interview with HBA President Christopher V. Popov

Christopher

Christopher V. Popov discusses the importance of family, civic engagement, and promoting access to justice.

Where were you born and where did you grow up?

Chris: I was born in Milwaukee, Wisconsin. Not long after I was born, we made our way down to Baton Rouge, Louisiana, which is where I grew up.

Tell us about your family.

Chris: I am a first-generation American; my dad immigrated from Sofia, Bulgaria in the early 1970s, and he met my mother shortly thereafter. She is from a large German Catholic family in Wisconsin. I have one older brother. My parents and my brother’s family all live in Baton Rouge.

I met my wife, Annsley, while we were students at LSU, and we got married just before my third year of law school. We have two children. Our son, Preston, is a freshman at the University of Texas.

And our daughter, Palmer, is a freshman at Episcopal High School here in Houston.

Where did you go to college and law school?

Chris: I got my undergraduate degree in economics from Louisiana State University. After graduating from LSU, I went to the University of Texas School of Law, and earned my JD in 2001.

What prompted you to pursue a career in law?

Chris: There might have been a time in my life when I wanted to be an astronaut or a soldier or a police officer, but if so, I can’t remember it. As far back as I can recall, my professional goal had been to 32

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V. Popov

become a lawyer. People started telling me that I would be good lawyer right around the time I started speaking in full sentences.

I love storytelling and argument. I love competition. I love people. And I’m motivated by principle. I supposed those things lined up in a way that drove me to the law.

What are your areas of specialty and what firms have you worked with in your legal career?

Chris: I am trial lawyer. Most of the cases I try involve commercial contracts, business torts, environmental incidents, or intellectual property matters. My first job out of law school was as a judicial clerk for Judge James L. Dennis on the Fifth Circuit Court of Appeals in New Orleans. As soon as my clerkship ended, I joined Vinson & Elkins, which has been my professional home for my entire career in private practice. I started my career with V&E in our Austin office. I moved to Houston in 2010.

Who are your mentors?

Chris: One of the gifts of practicing law at a large firm like Vinson & Elkins is the opportunity to be mentored by so many brilliant lawyers with different temperaments, talents, and convictions. A few of the many current and former V&E lawyers who have mentored me over the years include Bill Dawson, Walter Stuart, Jim Thompson, Pat Mizell, Harry Reasoner, Don Wood, Marie Yeates, Gary Ewell, Tracey Davies, David Blanke, Mike Marin, Tom Leatherbury, and Jennifer Poppe.

What are some of your hobbies and interests?

Chris: For fitness, I play tennis, run the Rice trail, do yoga, and on occasion, I lift weights. I am a big music fan—both live and recorded—and I love discovering new artists. I am passionate about cooking, gardening, and pleasure reading, although I do less of things these days than I would like to admit. My favorite podcasts include Milk Street Radio and All Songs Considered. And I cherish family time. For me, family time has involved lots of cheering for my kids at soccer fields and track stadiums, weekend dinners at home, and memorable family vacations ever year.

Are you involved with other professional or community organizations?

Chris: I stay involved with the University of Texas School of Law in several ways.

I am a director on the board of the Texas Law Review Association. I lead our firm’s annual fundraising efforts for the law school, and I have been involved with the Houston-area alumni group for several years.

What do you think is the role of the organized bar in society today?

Chris: Bar associations play a key role in preserving and elevating the professional identity of lawyers and of the legal system as a whole. The HBA’s mission statement says how we do that—we serve the needs of Houston-area lawyers and we enhance the legal profession by promoting professionalism, access to justice, the rule of law, equality, educa-

tion, and service.

This is important work. The private practice of law is hyper-focused on advancing our clients’ interests—as it should be. But if we spend our time exclusively on representing clients who can afford to pay us, have we really achieved the goal of promoting access to justice?

Are we ensuring that we live in a fair and just society? Who will educate and inspire the next generation of lawyers? Will we be happy and fulfilled professionals if we are disconnected from one another and our community as a whole?

The answers to these rhetorical questions should drive us all towards some amount of civic involvement that goes beyond the billable hour, or the contingent fee, or the bottom line. Bar associations, like the HBA, play a key role in rounding out our civic engagement and professional fulfillment. And they help us build healthy, professional networks that go beyond our law firms and outside the narrow practice specialties that we develop over time.

What do you see as the role of the president in the Houston Bar Association?

Chris: The HBA is a massive organization that does more in a day than even our most dedicated members might imagine.

No practicing attorney could possibly manage every aspect of the bar. Our best presidents have helped to unite the membership and to channel the energies of our professional staff towards some key initiatives. I see the president’s role as focusing the bar’s key metrics of organizational success, and driving us towards those metrics.

Chris at

e

his offic

What areas will you focus on during your administration and why?

Chris: We are focusing on driving member engagement through three key initiatives. First, we are launching a President’s Speakers Series, which is going to bring legal luminaries and academics to Houston to discuss some of the biggest legal issues of the day. The goal is to promote civic engagement and to elevate the discourse over legal issues that dominate the headlines, yet tend to get superficial treatment by mainstream media. This bar year, we will be featuring discussions on legal issues that emanate from recent Supreme Court decisions, including voting rights, abortion, gun rights, speech and online censorship, and the payment of amateur athletes through name, image, and likeness rights.

Second, we are working to promote wellness among the bench and bar. That work includes promoting access to support programs available to lawyers in crisis. But it will also include subtle changes in ways we interact. For example, having nonalcoholic cocktails available at all bar events. And it will involve promoting the bar’s many service activities as a means of promoting connection and mental health. That will include, for example, encouraging members to participate in our Fun Run or our Golf Tournament, to volunteer at the Food Bank, or reading to school children during Law Week. That engagement is not only good for the community, but it’s also good for the lawyers who engage. It’s well documented that people who give their time to help others through community and organizational involvement have greater selfesteem, less depression, and lower stress levels than those who don’t.

Finally, we are going to be putting energy and resources into promoting access to justice through our affiliated organizations, including the Houston Volunteer Lawyers, the Houston Lawyer Referral Service,

and the Dispute Resolution Center. Of course, these organizations are not new, so we’re not creating them from scratch.

It’s really more a matter of using the HBA’s platform, the reach we have to our membership, to raise the profile of these affiliated organizations and channel more people through them. That’s something that we’re measuring every day.

In addition to these outward-facing initiatives, the bar is working hard on some “back-office” initiatives that will serve the membership in the years to come. We recently hired a new deputy executive director of membership, whose sole job will be to grow the membership of the HBA and to enhance the quality of the member experience. We are in the process of renewing the HBA’s lease, with a focus on finding a physical space that will better serve our members’ needs and the work we do as an organization. And we are continuing to benchmark our workplace to ensure that we attract and retain the talent we need to deliver on our mission.

What is your message to HBA members as we begin the 20222023 bar year?

Chris: Engage with your bar and engage with your community. Two years of pandemic-driven isolation has hurt our community in so many ways. A new generation of lawyers was deprived of the mentorship that comes from being in the office and the courtroom and the board room, and from watching more experienced lawyers in action. Isolation has increased depression and substance abuse among lawyers and the community at large. And pandemic-related safety measures temporarily halted so many of the ways that we have historically supported our community, through engagement with our public schools, through pro bono advice and intake clinics, and through nonlegal community service projects.

The good news is that we are returning to business as usual. Opportunities for fellowship, like our annual Harvest Celebration, are back in full force. Our sections are hosting in-person CLEs and meetings again. And our committees are back to hosting events, which will give you opportunities to reconnect with colleagues whom you haven’t seen in a while, and give you a chance to do some good for your community and your profession. thehoustonlawyer.com

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Young Lawyer Spotlight

Kelly Hanen

What is your firm and practice area?

Kelly: I am a senior associate at Baker Botts L.L.P. in the litigation department.

Years of practice Kelly: Six. Law school and graduation year Kelly: I graduated with honors from UT Law in 2016.

Why did you join the HBA as a young lawyer?

Kelly: I joined the HBA as a young lawyer to be engaged in the community and to meet other attorneys.

What are you involved in within the HBA? Kelly: For the past few years, I’ve been a co-chair of the Membership Committee and Professionalism Committee. This year, I have the honor to serve as an ex-officio member on the HBA Board of Directors.

Kelly with her fiancé, Jeb, and rescue dog, Bruce.

How about other community involvement?

Kelly: In addition to serving as the president of the Houston Young Lawyers Association, I am a member of the Houston Committee on Foreign Relations and the Texas Law Houston Steering Committee. I am a member of the Junior League of Houston,

volunteering at the Houston Area Women’s Center. I am also the co-chair of the Texas Law Class of 2016.

What keeps you grounded outside of the practice?

Kelly: This is something that can be so difficult, especially when you’re first starting out! But taking care of Kelly standing in front of the Arc de Triomphe in Paris. your physical and emotional health is so important. I love to run and find that it can be really meditative. I also enjoy traveling. Most recently, I was able to combine those two hobbies by running the Paris Marathon (along with my fiancé (Jeb) and Judge Hanks)! When I’m not traveling, I enjoy spending time with my friends, family, and my sweet rescue dog, Bruce.

The Houston Lawyer

What’s the latest book you’ve read or podcast you’ve listened to?

Kelly: I’m currently reading Such a Fun Age by Kiley Reid as a part of the HYLA Book Club. Anyone who knows me also knows that I love true crime.

What’s one piece of advice for young lawyers?

Kelly: First, take care of yourself! Second, use your talents to help others. Take on a pro bono case, offer advice to a law student, join an HBA committee, or volunteer with a local nonprofit!

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A Profile

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

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Susan L. Bickley Partner, Blank Rome LLP

he “rule of law” is a foundational principle of both our nation and, in my view, attorney professionalism.

The rule of law long has been recognized as a crucial mechanism by which stability is secured and the peaceful resolution of tensions and disputes occurs in a civil society. In the United States, we rely upon law to fulfill the promises of equality, freedom, and justice in our founding documents. The rule of law prevents the arbitrary exercise of power and is the means by which we strive to achieve equality and protect our citizens’ liberty. In contrast, disrespect for the rule of law threatens despotism, authoritarianism, and disregard for our basic human rights and freedoms.

As lawyers, we justly should be both proud of, and humbled by, the fact that we are charged with the responsibility to implement and defend the rule of law in our communities and, indeed, we are its guardians.

In my opinion, professionalism is nothing less than the behavior required due to the important role lawyers occupy in our society. We serve not only as representatives of our clients, but as officers of the legal system. Not just “hired guns” who will do anything for a result, we have a special responsibility to embody professional standards which promote and advance the rule of law in our civil society, while zealously representing our clients. Being professional, therefore, means encouraging respect for the law and the administration of justice, and seeking to improve it so, as a nation, we move ever closer to achieving the ideals embodied in our Constitution.

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OFF THE RECORD

Travis Torrence: Leading Houston, Authentically and Unapologetically

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The Houston Lawyer

By Nikki Morris

ravis Torrence, the global litigation bankruptcy & credit team lead at Shell USA, Inc., is not only an accomplished leader within the Houston legal community, a former champion of Dancing with the Houston Stars, and an honoree of Houston Business Journal’s 40 Under 40. He has also received one of the highest honors bestowed by the Houston LGBTQ+ community—being named the 2022 Male-Identifying Grand Marshal of the Houston Pride LGBT+ Celebration®.

Selection of the grand marshals is based on a robust nomination process through which individuals may be nominated based on their accomplishments and contributions to Houston’s LGBTQ+ community. Once the nominees are submitted to Pride Houston, a committee of former grand marshals reviews the submissions for eligibility and develops the slate of finalists for each category. Travis said he is forever grateful to John Nechman—a former Travis Torrence grand marshal and Houston attorney—who championed Travis’s nomination.

A quick review of Travis’s background makes it easy to see why he was nominated. Travis was a founding member of his firm’s Diversity Advisory Council when he was in private practice and currently serves as president of the board of directors of the National LGBTQ+ Bar Foundation. He is the past chair of the Houston Bar Foundation and a member of the board of directors of the Texas Access to Justice Foundation and the Alley Theatre, to name a few of the many organizations Travis has led or supported. Travis has also chaired numerous philanthropic events supporting the LGBTQ+ community, including the World AIDS Day Luncheon, the Victory Fund Champagne Brunch, the Montrose Center’s Out For Good Gala, Dining Out for Life, the Camp For All Gala, and the Houston Boychoir Luncheon.

Once nominated, finalists are selected based on a community vote and efforts to fundraise scholarships for LGBTQ+ students. Travis was one of three finalists for his category, and while he actively campaigned for the role, he also had a “secret weapon” in the Houston 36

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legal community. “I was so amazed by how many of my fellow HBA members shared information about my campaign with their colleagues, friends, and family members.” The results were announced at the end of April, and the festival and parade were held in June.

Shortly before the parade began, Travis described feeling joy and gratitude from being surrounded by over 50 of his family members, friends, colleagues—and of course his partner, Heath—as they posed for a photo. Once they were off, Travis recalled the “throngs of people as far as the eye could see celebrating equity, inclusion, and equality for LGBTQ+ people,” including many of his Shell colleagues and fellow HBA members cheering him on.

Travis’ role as grand marshal is not limited to participating in the festival and parade. It also includes attending other events throughout the year, including the annual scholarship gala, and educating the public about the history of Houston’s LGBTQ+ community. As Travis explained, “For me, Pride is a chance to celebrate everyone’s ability to live and love authentically and unapologetically while also honoring the legacy of those who fought so hard for the rights we enjoy and those who we have lost along the way to HIV and AIDS.” However, there is still work to be done. Travis explained, “What we need now more than ever before are active and engaged allies who view allyship as a verb that requires consistent action.

Allyship begins with educating yourself about the issues affecting the LGBTQ+ community. Real allies intervene when they see people being treated unfairly or systems that yield inequitable outcomes.

Allyship involves creating safe spaces so that everyone can bring their true self to work.”

If you want to get more involved in supporting your LGBTQ+ colleagues, Travis suggests starting with your organization’s LGBTQ+ employee resource group, attending their events, and volunteering to lead their activities.

Nikki Morris is an associate at BakerHostetler. She is the Off the Record editor for The Houston Lawyer.

SECTION spotlight

Looking Ahead with the HBA Antitrust & Trade Regulation Section

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By Brandon Duke

he Antitrust & Trade Regulation Section is made up of a group of Houston-area lawyers who focus on antitrust regulation, litigation, and counseling, including federal criminal enforcement, merger reviews, private party litigation, and state law trade regulation. The section has been active in the past by providing programs on current trends in antitrust law, with a focus on Texas and courts in the region.

Now that antitrust has become a hot issue over the last few years, both at the state and federal level, it has become even more important to stay up to date on these trends. The FedAntitrust eral Trade Commission and Department of Justice Antitrust Division are looking to become more active and take on a broader role in regulating consolidation and competition in a range of industries. In addition, there is antitrust legislation sponsored by both parties currently being considered by Congress that would have a significant impact on federal and state enforcement. And in

Texas, the Office of the Attorney General has been an active enforcer in this area.

In addition to social gatherings, the section is planning CLE presentations in the fall and throughout the bar year for section members, along with private practitioners, government lawyers and officials, judges, economists, and other industry experts.

We also look forward to collaborating with other HBA sections this year to plan programs on issues where there is an overlapping interest between antitrust and a specific area of the law (including on issues related to consumer protection, energy, entertainment Trade and sports, mergers and acquisitions, and labor and employment). HBA members interested in joining the Antitrust & Trade Regulation Section should visit hba.org.

Brandon Duke is a commercial litigator at Winston & Strawn, LLP whose practice includes antitrust litigation and counseling. He is the immediate past chair of the HBA’s Antitrust & Trade Regulation Section.

Enhance Your Practice

Try the HBA advantage

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Committee spotlight

W

Senior Lawyers Committee: 2021-2022 Highlights

The Houston Lawyer

By John W. Kelly, Jr.

here can you receive a first-class lunch at a first-class tion disputes involving well-known media personalities—in this restaurant (Brennan’s), including turtle soup (an instance, involving a professional athlete. Wice’s presentation, Are outstanding entrée), and a forbidding dessert, along you Ready for Your Close Up? Ethical Dealings with the Media, did with a great legal presentation that will get you at not disappoint. Wice has represented many high-profile defenleast one hour of CLE and maybe some ethics credit? dants in Harris County Criminal District Court, and he delved The Senior Lawyers Forum, of course. into Rule 3.07 of the Texas Rules of DisciUnder the leadership of myself and the plinary Conduct about trial publicity.

Hon. Sarah Springer as co-chairs, 15 seMoving from criminal defense to the nior lawyers designed programs and seprosecution, we asked Harris County lected speakers to accomplish 2021-2022 District Attorney Kim Ogg to address HBA President Jennifer A. Hasley’s goals bond relief and other issues. She made of supporting the military and veterans strong arguments for more funding to and improving pro bono services to conincrease the size of her staff. sumers.

Finally, we hosted the State of Texas The committee asked all of the lunPresident’s Update by way of 2021-2022 cheon attendees to volunteer to answer State Bar President Sylvia Borunda Firth veterans legal questions at the VA clinic and her successor, Laura Gibson. These and to sign up for LegalLine to answer two powerhouses discussed the U.S. legal questions for the community.

Supreme Court decision in McDonald v.

Our first Senior Lawyers Forum hostFirth, which effectively ended the chaled our popular legal Medicare expert, John W. Kelly, Jr. and the Hon. Sarah Springer served lenge to the mandatory bar structure in as co-chairs of the 2021-2022 Senior Lawyers Bryn Poland. Poland’s presentation, Ten Texas. The case was remanded to the Committee and were recipients of the 2021-2022 Things You Need to Know About Medicare, President’s Award.

Fifth Circuit Court of Appeals, which was geared toward individuals approaching 65 and older. Poland required the Texas Bar to provide more detailed information as discussed several Medicare issues relevant to the attendees. For to budgeting, a legislative program in line with the ruling, and instance, each person turning 65 needs to decide whether to sign a new process with a neutral third party to resolve expenditure up for Part A or Part B. The answer is “yes” to Part A because objections. there is no premium; Part B is more difficult. There are also issues Overall, we had a very successful year as the Senior Lawyers as to when Medicare will pay for a beneficiary to stay at home.

Committee.

Sometimes, a beneficiary may qualify for personal care, but there are limits, and skilled nursing or home health care benefits can John W. Kelly, Jr. is a 50-year lawyer, admitted to practice law in be terminated if a beneficiary’s condition is not improving.

1971, who practices as a mediator and an arbitrator. Kelly was the We also learned from Poland that, at initial enrollment, a bensenior manager in the legal department of AT&T until he retired in eficiary must make the significant decision to elect Medigap/ 2006 as general counsel—Texas operations. Kelly has also served as Medicare Supplement Plan and a separate drug plan or a Median adjunct professor of law at the University of Houston Law Center, care Advantage Plan. These and other Medicare considerations where he taught Trial Advocacy, as president of the Katy Bar Assoare reviewed in Poland’s presentation, which is available on the ciation, and as president of the Fort Bend County Bar Association.

HBA’s website.

Switching gears, Brian Wice, a criminal defense attorney, media Endnotes consultant, and legal expert in media exposure, gave a presenta1. SENIOR LAWYERS COMMITTEE WEBPAGE https://www.hba.org/?pg=SeniorLawyers (last visited Aug. 5, 2022). tion on issues facing lawyers who are dealing with major litiga-

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Join the HBA 100 Club!

TThe Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools, and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Ajamie LLP Alvarez Stauffer Bremer PLLC Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Berg & Androphy Bradley Arant Boult Cummings LLP Buck Keenan LLP Bush & Ramirez, PLLC Christian Levine Law Group, LLC Coats | Rose Crady, Jewett, McCulley & Houren, LLP De Lange Hudspeth McConnell & Tibbets LLP Dentons US LLP Devlin Naylor & Turbyfill PLLC Dobrowski, Larkin & Stafford, L.L.P. Doyle Restrepo Harvin & Robbins LLP Ewing & Jones, PLLC Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins Fogler, Brar, O’Neil & Gray LLP Frank, Elmore, Lievens, Slaughter & Turet, L.L.P. Funderburk Funderburk Courtois, LLP Germer PLLC Givens & Johnston PLLC Gordon Rees Scully & Mansukhani, LLP Hagans Montgomery Hagans Henke, Williams & Boll, LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Horne Rota Moos LLP Hughes, Watters & Askanase, L.L.P. Husch Blackwell LLP Irelan McDaniel, PLLC Jackson Lewis P.C. Jenkins & Kamin LLP Johnson DeLuca Kurisky & Gould, P.C. Jordan, Lynch & Cancienne PLLC

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

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

Susman Godfrey LLP Winstead PC Firms of 100+ Attorneys Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Porter Hedges LLP Vinson & Elkins LLP Corporate Legal Departments CenterPoint Energy, Inc. EOG Resources, Inc. MAXXAM, Inc. Plains All American Pipeline, L.P. Quantlab Financial, LLC Rice University S & B Engineers and Constructors, Ltd. Law School Faculty South Texas College of Law Houston Thurgood Marshall School of Law University of Houston Law Center Government Agencies Harris County Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County, Texas Port of Houston Authority of Harris County, Texas 1st Court of Appeals 14th Court of Appeals

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LEGAL TRENDS

Buc-ee’s Protects Its Trademarks by Taking Another Bite Out of Its Competition

I

By Jennifer Smith

The Houston Lawyer

f you live in Texas, you have certainly seen Buc-ee’s gas station signs along the interstate, some of them 125 miles or more before the exit to the advertised location.

The billboards feature a cartoon drawing of the chain’s mascot, a bucktoothed beaver, and the distinctive curly font.

As most road-trippers know, the Buc-ee’s locations are all huge, with rows and rows of gas pumps. The distinctive logo is rendered in red over the front doors, crowned with the mascot above. Inside, the bathrooms are spacious and famously clean, and there is freshly made food like barbecue and gourmet prepared foods like fudge.

Formed in 1985 in Lake Jackson, Texas, Buc-ee’s has been steadily expanding inside and outside of Texas, including in Alabama, Georgia, and Kentucky.

Bukys LLC In 2021, several news outlets reported that Buc-ee’s Ltd. had filed suit against a Sugar Land-based small gas station chain called Bukys LLC, which was formed in 2020.

Buc-ee’s complaint, filed in the U.S. District Court for the Southern District of Texas, alleged that Bukys advertising and names of goods and services used “infringing, confusingly similar, and diluting, and otherwise violating words and designs . . .” and could allow Bukys to receive the benefit of the goodwill built up by Buc-ee’s. Among the examples given in the complaint were the red Bukys logo in a “stylized form similar to Bucee’s marks.”

Buc-ee’s sued under the Texas Business and Commerce Code (Tex. Bus. & Com. Code § 16.103), the federal Trademark Act of 1946 (the Lanham Act), and federal and state common law, requesting an injunction 40

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prohibiting the use of the allegedly similar marks.

Trademarks For centuries, trademarks have indicated the source of products or services, with implications for the product or service quality. In addition to protecting the source’s rights, trademark law protects consumers, ensuring they purchase the goods and services they mean to purchase.

In the U.S., trademarks originally rested on a common law basis that conveys some trademark protection just by using a name, logo, or other trademark in commerce. Suits to enforce these rights can be filed in state courts. Over time, states created trademark registry systems and granted expanded rights to registered marks.

However, this system lacked certainty across states and, crucially, failed to establish protection required by U.S. treaties. Treaty requirements spurred federal trademark legal initiatives, and several federal trademark law regimes were successively established between 1868 and the 1940s.

In 1946, the Lanham Act (now codified at 15 USC § 1051) was passed. This legislation establishes causes of action for trademark infringement and trademark dilution. It also provides for injunctions and damages.

Trademark infringement means the use of an identical or confusingly similar trademark owned by another party. Trademark dilution means an unauthorized use of another’s famous trademark on products that do not compete with the products of the owner of the famous trademark but may lead the consumer to assume that the owner of the trademark owns the non-affiliated product or service (blurring) or perceive unsavory associations with the mark (tarnishing).

Today, although trademark owners may sue under state law, most trademark litigation is filed in federal courts under the provisions of the Lanham Act. Buc-ee’s Trademark Actions Under the Lanham Act, a mark may be considered “abandoned” and lose its protection if the owner by its act of omission or commission causes the mark to become the generic name for the goods or services. Popular examples of blurred trademarks include Kleenex, Xerox, linoleum, zipper, and escalator.

Buc-ee’s has a longstanding record of seeking to maintain protection of its marks, having previously prevailed in various claims.

These include: • Chick’s, a Bryan, Texas, business with a chicken mascot that Buc-ee’s claimed was confusingly similar to the Buc-ee’s mascot. The case, filed in 2013, was later settled out of court, according to an article in trade publication CSP.1 • Frio Beaver, a Concan, Texas, grocery store with a beaver mascot gave rise to a similar claim. The case settled in 2014, according to a news article in CSP, and the competitor removed the signage and promotional materials depicting its beaver mascot.2 • Choke Canyon, a convenience store with an alligator mascot that Buc-ee’s claimed was an infringement on its own mascot, as well as the store concept, was another target. A federal jury found in favor of Buc-ee’s in 2018.3 In its most recent lawsuit, negotiations between Buc-ee’s and Bukys LLC were not public, but the following facts in public records imply that a settlement was reached: • On October 20, 2021, Buc-ee’s filed suit against Bukys LLC. • On November 8, 2021, Bukys LLC filed a change of name to King Food Mart LLC. • On January 5, 2022, Buc-ee’s dismissed the complaint without prejudice.

Like Buc-ee’s, many mark owners regularly monitor the marketplace for infringing or diluting marks and take action to preserve their marks.

Jennifer Smith is director of communication and associate corporate counsel at PPI Quality & Engineering, an oilfield services company.

She has worked in the oilfield industry for more than 20 years.

Endnotes

1. CSP, Buc-ee’s, Chicks Working on Settlement (May 30, 2013), https://www.cspdailynews.com/companynews/buc-ees-chicks-working-settlement.

2. Heather Alexander, Beaver wars: Buc-ee’s takes on rival store in Beaver logo dispute, HOUSTON CHRONICLE (July 14, 2014, 3:48 PM), https://www.chron.com/ news/houston-texas/texas/article/Buc-ees-sues-rivalTexas-convenience-store-5625832.php.

3. Gabrielle Banks, Buc-ee’s wins federal court trademark fight against competitor Choke Canyon, HOUSTON CHRONICLE (May 22, 2018, 7:20 AM), https://www. chron.com/news/houston-texas/houston/article/ Buc-ee-s-beaver-trademark-texas-choke-canyongator-12934353.php.

Equal Access Champions The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteers Lawyers.

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

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

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Media Reviews

Trial: A Guide from Start to Finish

By Mikal Watts and Sawnie A. McEntire Published by ABA Publishing Reviewed by Carly Milner

The Houston Lawyer

A

s I approached my first trial as a young lawyer, the gap between the theory and legal principles I had learned in law school and the actual practicalities of trial seemed overwhelming. I remember looking for resources about the nitty-gritty of trial practice so that I could at least seem knowledgeable to the partners and clients, but I could not find anything that explained in a detailed way what really happened at trial, how to prepare as well as possible, and why the experienced trial lawyers made the decisions they made. This book fills that gap.

For a young litigator, the advice in this book is invaluable. Mikal Watts, a plaintiff’s lawyer, and Sawnie McEntire, a defense lawyer, explain each stage of trial from their respective vantage points.

But they do not stop at the basic outline of a trial: they provide real-life, practical advice about every stage of trial. What are the real considerations in selecting venue? What actually happens at the pretrial conference, and what battles should you fight? What do judges really think about your laundry list of objections? How should you organize your exhibits, and why? What are strategies for organizing information during voir dire? The authors use their own war stories—both successes and failures—to illustrate these points.

Even for experienced litigators, this

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book offers valuable and well-researched advice. For example, it contains a lengthy discussion of jury selection, including research-based, rather than stereotypical, predictors of juror attitudes. Similarly, the book analyzes trends in multidistrict litigation statistics to help lawyers decide whether an MDL is beneficial for their client. The authors also provide a plethora of tips on trial presentation, such as ideas for types of demonstratives to use with expert witnesses. No matter how many cases you have tried, it never hurts to hear new ideas from other trial veterans.

In addition, the dual plaintiff/defense perspective is unique and tremendously helpful for lawyers on both sides. It is easy to get tunnel vision about your own side of the “v” and miss strategic moves the other side may make.

The one section of the book that I found to be less helpful was the first section about the law on jurisdiction and venue (as opposed to practical and strategic considerations on these issues).

This topic is nearly impossible to cover in a summary format, and—especially as the subject of the opening chapters—it seemed out of place with the rest of the book’s focus on reallife practice, rather than an analysis of statutes and case law. I also noticed a few instances in which the same advice popped up in multiple chapters, but the book’s structure allows the reader to dip in and out, reading just the chapters that are most relevant at the time, so this minimal repetition means that a reader will not miss critical points.

At 405 pages, this book may seem a bit daunting to those of us who already spend the majority of our workdays reading and writing, but I found it interesting, well-written, and an excellent use of time.

Carly Milner is a trial lawyer at Fogler, Brar, O’Neil & Gray LLP. She is also the Committee and Section Spotlight editor for The Houston Lawyer.

Buying and Selling Art and Collectibles: A Legal Guide

By Armen R. Vartian and Laura C. Tiemstra Published by ABA Publishing Reviewed by Carl J. Gustafson

I

n many respects, the sale of art and collectibles is like the sale of other goods. Article 2 of the Uniform Commercial Code governs these sales, and disputes arising out of these transactions follow familiar patterns for cases of breach of contract, breach of warranty, and fraud. However, as explored in Armen R. Vartian and Laura C. Tiemstra’s book Buying and Selling Art and Collectibles: A Legal Guide, unique issues emerge when the transaction involves, say, an original painting, rare coin, or signed baseball—issues that the uninitiated may miss when evaluating a sale or purchase.

Buying and Selling Art and Collectibles is divided into six parts—buying and selling through a dealer; buying and selling at auctions; buying and selling remotely; illegal items and cultural property; dispute resolution; and tax issues—and each part is, in turn, divided into several short, easy-to-read chapters focused on well-defined topics. Written for both practicing attorneys and lay collectors, the guide’s stated goal is to be an introductory text rather than an in-depth legal treatise. The authors succeed in this, but the book is likely to be more helpful to the serious

Media Reviews

collector seeking to understand the key legal issues surrounding a potential purchase or sale than to an attorney who may be advising a collector. For this latter audience, Buying and Selling Art and Collectibles provides only minimal assistance with basic issue spotting.

For example, in the first (and lengthiest) part of the book concerning transactions through a dealer, the authors walk the reader through basic legal principles most lawyers will remember from their 1L contracts class, with entire chapters devoted to the statute of frauds, statutes of limitations, implicit and explicit warranties, and conveying proper title. The authors present these concepts in broad strokes, orienting a lay reader to the basic framework of legal analysis. Where statutes or cases are cited—such as the treatment of the entruster provision, Section 2-403 of the UCC—the Written for both discussion is practicing at- minimal and torneys and lay glosses over the nuance a collectors, the practicing atguide’s stated torney would focus on when goal is to be evaluating an an introductory individual sittext rather than uation. To be fair, this level an in-depth of analysis legal treatise.” is consistent with the authors’ stated goal and the breadth of their subject matter, but it nevertheless limits the book’s usefulness for a professional audience.

Notwithstanding its greater usefulness for a lay audience, I still believe Buying

and Selling Art and Collectibles offers much to an attorney new to this field.

For instance, before reading, I was vaguely aware of how high-value auctions are conducted, but Part Two filled in many of the gaps to this process that I had never considered. The book also is full of excellent case illustrations for critical points of law, as

well as personal anecdotes from the authors’ careers—for example, one author’s role in a test case before the Fourth Circuit regarding the Convention on Cultural Property Implementation Act. The anecdotes made for entertaining reading, and anyone who enjoys a good (and wellwritten) litigation story will find Buying and Selling Art and Collectibles an engrossing, informative read.

Carl J. Gustafson is an associate at Norton Rose Fulbright.

‘‘

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4 executive offices & secretarial space immediately available for lease. Beautiful, historic building located just 5 minutes north of downtown Houston in the Woodland Heights completely renovated in 2022. All new: wiring, internet cabling, HVAC, phone system, wi-fi, appliances, & kitchen. Refinished hard wood floors and new 12 person conference room with functionality for Zoom/remote meetings, hearings & depositions. Alarm/ camera security system. New covered and gated parking lot & landscaping. Shared receptionist.

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Houston Galleria Area One 10’ X 15’ and One 15’ X 15’ furnished office near San Felipe inside 610 Loop. Has access to a large conference room, library, telephones, internet, fax machine, copier, kitchen, and more. Staffed with a receptionist/office manager. Suite has 10 lawyers. Contact Jerry at 713-237-0222.

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The Houston Lawyer was honored to receive several Stars of Texas Bars Awards at the State Bar of Texas Annual Meeting, June 9-10, 2022 • Best Overall Newsletter • Feature/Human Interest Story • News Article • Series of Articles - Feature/

General Interest

$9.3 Million Hidalgo County Verdict Who Lawyers Call When They Are Injured A McAllen lawyer was struck by a Ford Expedition while walking in a crosswalk to the Hidalgo County courthouse on June 20, 2019. She suffered a compound fracture of the right tibia and fibula, as well as a fracture of her fifth metatarsal.

The lawyer (raised in McAllen and a graduate of Harvard University, Yale University, and SMU Dedman School of Law) and her husband (also a Harvard and SMU Dedman School of Law graduate) initially handled the case. After the third surgery, they asked Sorrels Law Partner, Randy Sorrels, to step in as lead trial counsel. Following two failed mediations, with pre-trial offers totaling $375,000, a Hidalgo County jury returned a $9.3 million verdict in damages, finding the traffic engineer who designed the temporary traffic plan governing the crosswalk negligent, as well as the driver of the Expedition. They also found the plaintiff (25%) at fault.

“It is a great privilege to be asked by another lawyer to represent them in any type of matter. And to work alongside them in a two-week trial, with 22 witnesses and over 100 exhibits was my honor,” said Randy Sorrels. Sorrels Law is ready to help lawyers across the state – whether on their own case or helping with a client’s case.

5300 Memorial Drive, Suite 270 Houston, TX 77007

(713) 496-1100

www.SorrelsLaw.com