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Mandatory Arbitration as a Condition of Employment Avoiding Pitfalls When Crafting Effective Social Media Strategies Generative AI and Its Workplace Implications Recognizing the Diamond, Ruby, and Sapphire Sponsors of the 74th Annual Harvest nch Celebration

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THE HOUSTON

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Volume 61 – Number 2

Employment Law

September/October 2023

Industry-Focused Legal and Advocacy Strategies

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contents September/October 2023

Volume 61 Number 2

FEATURES

12

16

Arbitration as a 12 Mandatory Condition of Employment

By Stanley Santire

AI and Its Workplace 16 Generative Implications

By Nandini Sane

for the End: Provisions 18 Preparing Affecting the Termination of the

Executive Employment Agreement to Consider

By Dennis Herlong, Drew Barber and Katie Banks

18

24

Pitfalls When Crafting 24 Avoiding Effective Social Media Policies

By Raymond L. Panneton

Pro Bono Excellence: 26 Celebrating Recognizing the Diamond, Ruby, and Sapphire Sponsors of the 74th Annual Harvest Celebration

Annual Harvest Celebration 30 74th Underwriters

The Houston Lawyer

30

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., 2023. All rights reserved.

2 September/October 2023

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contents September/October 2023

Volume 61 Number 2

departments Message 6 President’s Hispanic Identity and

6

32

Representation in Houston and the Law

By Diana Gomez

the Editor 10 From What We Do All Day

By Liz Malpass

Giving Back 32 Lawyers El Centro de Corazón: Serving

the Heart of Houston’s Hispanic Community

By Maggie Martin

33

34

In The Family 33 Law The Briones Family THE RECORD 34 OFF Zachary Caballero: A Pathway

Paved by the Power of Prose

By Anietie Akpan

in professionalism 35 ATheProfile Honorable Michael Gomez Judge, 129th Civil District Court

Spotlight 36 committee Special Olympics Committee: A

Longstanding Commitment to Increasing Engagement

By Brad Rapp

Spotlight 37 Section Labor & Employment Law Section:

35

37

Connecting Lawyers and Preparing the Next Generation

By Nehal Anand

reviews 38 Media Star Wars and Conflict Resolution: There

are Alternatives to Fighting

Reviewed by The Honorable Josefina M. Rendón

The Legal Singularity: How Artificial Intelligence Can Make Law Radically Better Reviewed by David T. Lopez

trends 39 legal EEOC Issues New Guidelines on

Visual Disability in the Workplace

The Houston Lawyer

By David T. Lopez

Fifth Circuit Broadens Potential Discrimination Claims Under Title VII

By E. Phileda Tennant and Ashley Plunk

42 Litigation MarketPlace 4 September/October 2023

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September/October 2023

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president’s message

By Diana Gomez Chamberlain Hrdlicka

Hispanic Identity and Representation in Houston and the Law

The Houston Lawyer

I

write this message as we approach National Hispanic Heritage Month, observed September 15 to October 15, to celebrate the arts and culture, history, achievements, and contributions of Hispanic Americans. It’s a celebration of identity and representation. And where better to celebrate than right here in Houston, Texas, one of the most diverse cities in the country. Our diversity not only enriches our lives in Houston, but also our legal profession, fostering different perspectives and enabling us as lawyers and judges to help better promote access to justice and administer the rule of law.

According to the U.S. Census, Hispanics make up 44.6% of our population in Harris County,1 and according to a 2021-2022 State Bar of Texas attorney statistical profile, Hispanics make up only 9% of active Harris County attorney members of the State Bar of Texas.2 These numbers underscore the importance of ensuring we encourage Houston to support programs and resources that empower diverse communities to become lawyers or serve in the law in some capacity. For the Houston Bar Association, a part of that work is creating closer bonds with Houston’s affinity bars, including the Hispanic Bar Association of Houston, the Mexican American Bar Association of Houston, the Houston Lawyers Association, the Asian American Bar Association, the South Asian Bar Association of Houston, and many others.

Additionally, the HBA is committed to continuing our efforts to expose diverse talented young minds to potential careers in the law, including through the HBA’s Communities in Schools Committee, which works with high school students who attend at-risk schools with summer internships.

6 September/October 2023

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Our members also help to educate school-aged children about the rule of law through our Constitution Day, Law Week, and Teach Texas programs.

In Harris County, we are fortunate to have significant diversity in our judiciary. This month, I invite you to join me in supporting our judiciary. Our judges are limited in their ability to respond to criticism, and we are in a unique position to educate the public and encourage public confidence in our judicial system.

In this issue of The Houston Lawyer, you’ll find stories celebrating Hispanic representation here in Houston. For this issue’s Law in the Family spotlight, Harris County Commissioner Lesley Briones and her husband, Adán, reflect on their careers in law.

For this issue’s Lawyers Giving Back profile, El Centro de Corazón, a nonprofit healthcare organization serving Houston’s Hispanic community in the East End, shares how HBA members can get involved in giving back. Additionally, we have one of our longest-serving civil district court judges, Judge Michael Gomez of the 129th Civil District Court, sharing his perspective from the bench for this issue’s Profile in Professionalism.

Thank you for supporting the Houston Bar Association and its work to support all Houstonians in a path to a legal career. If you’re not a member yet, I invite you to join me in this work by becoming a member today.

Endnotes 1. U.S. Census Bureau, QuickFacts Harris County, Texas (July 1, 2022), available at https:// www.census.gov/quickfacts/fact/table/harriscountytexas/PST045222.

2. State Bar of Texas Department of Research and Analysis, Harris County: Attorney Statistical Profile (2021-22), available at https://www.texasbar.com/AM/Template. cfm?Section=Home&Template=/CM/ContentDisplay.cfm&ContentID=57950.

BOARD OF DIRECTORS President

Secretary

President-Elect

Treasurer

First Vice President

Immediate Past President

Diana Gomez

Collin Cox

David Harrell

Daniella Landers

Kaylan Dunn

Christopher V. Popov

Second Vice President

Greg Ulmer

DIRECTORS (2023-2025) Carter Dugan Jeff Oldham

Greg Moore Colin Pogge

DIRECTORS (2022-2024) Keri Brown Samantha Torres

Robert Painter

DIRECTORS (2023-2024) Seepan V. Parseghian

editorial staff Editor in Chief

Liz Malpass Associate Editors

Anna M. Archer Nikki Morris Andrew Pearce

Sydney Huber Bateman Lane Morrison Braden Riley

Editorial Board

Anietie Akpan Nicholas Beekhuizen Hon. Kyle Carter Teresa Hudson Harrison Long Dave Louie Raymond Panneton Hon. Josefina Rendón Kyle Steingreaber Mark Yablon

Jaclyn Barbosa Natasha Breaux Dasha K. Hodge Kristen Lee David T. Lopez Eli Medina Ciara Perritano Jennifer Smith Rachael Thompson

Managing Editor

Maggie Martin

HBA office staff Executive Director.................... Mindy G. Davidson Associate Executive Director....... Ashley G. Steininger Receptionist and Membership Assistant............... Fabiola Garcia Controller ............................... Sarah Kole Director, Marketing and Communications ..................... Maggie Martin Communications Specialist........ Briana Ramirez Education Coordinator ................. Alli Hessel Director, Projects and Events...... Bonnie Simmons Projects and Events Assistant..... Reagan Crittenden Director, Membership and Technology Services................. Ron Riojas

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Baker Botts has a long tradition of giving back to the communities in which we live and work. We encourage our lawyers to participate in pro bono, charitable and other community activities because, quite simply, it’s the right thing to do. Our lawyers are actively involved with more than 150 local charities and donate thousands of hours in pro bono legal services each year.

We proudly sponsor the 74th Annual Harvest Celebration benefiting Houston Volunteer Lawyers, and are honored to be part of its continued growth and success.

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I

What We Do All Day

n high school I somehow stumbled across historian Studs Terkel’s 1974 nonfiction book, Working, a collection of interviews with an aptly named subtitle: People Talk About What They Do All Day and How They Feel About What They Do. The book contains over 100 interviews with a wide range of individuals, all primarily identified not by their names, but by their jobs, which include, among many others: a washroom attendant, a spot-welder, two stockbrokers, a pharmacist, a jazz musician, an airline reservationist, a factory mechanic, and, of course, a lawyer.

At the time, I didn’t know much about working.

My only encounter with it was my summer job as an ice cream server at Cold Stone Creamery, where I learned the nuances of the “chop, chop, fold, fold” technique and the complexities of managing a cash register. Terkel’s Working was the perfect introduction to the many parallel lives around me, as well as the possibilities (and pitfalls) that lay ahead. More than anything else, the collection was a fascinating study in meaning: what did people think about the job that occupied the vast majority of their waking hours, and how did it shape who they were?

When I started law school, my eyes quickly opened to the fact that I was beginning a career with a subject matter threading through almost all other working lives, whether in small or significant ways. I did not know, at the time, that much of that intersection was the product of relatively recent legal changes, nearly all of which occurred during my grandparents’ lifetimes. Over the last century, labor and employment law has expanded tremendously. The Fair Labor Standards Act was enacted in 1938, OSHA in 1970, and many of the legal protections against discrimination with which we are so familiar today only as recently as the 1960s and 70s.

This year’s HBA president, Diana Gomez, specializes in labor and employment law. In honor of her particular choice of work-in-waking-hours, The Houston Lawyer has focused this issue and its companion podcast episode on labor and employment law and its recent developments. The topics covered

10 September/October 2023

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in this issue show that the rate of change in this area continues to keep pace with the past.

The subjects covered are also about as wide-ranging as the jobs in Working. Two articles discuss evolving liability issues associated with our ever-changing world: one about the transformative power of generative AI in the workplace, including its benefits and risks, and the other about striking the right balance in employee social media policies. The issue also includes articles about best practices for executive employment agreements and the changing legal landscape associated with workplace mandatory arbitration agreements.

We would be remiss not to cover a number of significant legal opinions recently issued in the labor and employment arena. An analysis of the Fifth Circuit’s Hamilton opinion interpreting what can be considered actionable disparate treatment is included in these pages. Anna Archer has also produced a fascinating podcast episode covering two other significant opinions handed down from our highest court. The episode includes discussion of the Court’s affirmative action decisions and their consequences for schools, law firms, and businesses. Anna also interviews my colleague, Christopher Tutunjian, about his work on the legal team that argued Groff, a religious accommodation case, in front of the Court this spring. I know you will enjoy this informative content.

Sydney Huber Bateman of Horne Rota Moos and Harrison Long of the Office of the Harris County Attorney are the guest editors of this issue. They have dedicated significant time and effort to guide these articles to publication. Thank you for your hard work.

On a separate note, we always strive to provide informative content for our readers and invite your feedback. The Houston Lawyer Readership Survey is available through October at hba.org/thehoustonlawyer.

A general HBA membership survey will also be available soon.

Thank you for reading The Houston Lawyer. Until next time, in the fitting words of Garrison Keillor, “Be well, do good work, and keep in touch.”

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September/October 2023

11

By Stanley Santire

Mandatory Arbitration as a Condition of Employment

“‘W

hen I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’”1 So what are we to make of a set of terms between employer and employee that is referred to as a contract, yet is actually a mandate? When arbitration is mandated by an employer to an employee or a job applicant, the law treats the phrase arbitration agreement as an oxymoron.

Consequently, a mandatory workplace arbitration document is better characterized as more of a mandate than an agreement.

In AT&T Mobility, the U.S. Supreme Court asserted that, in the context of arbitration, the prohibition on contracts of adhesion “are long past.”2 In In Re Halliburton, the Texas Supreme Court stated it more bluntly: “an employer may make precisely such a ‘take it or leave it’ offer to its at-will employees.”3 A Brief History Texas has two sources of arbitration law: federal and state. The Federal Arbitration Act (“FAA”) was passed in 1925.4 For the next 66 years, it was assumed to not apply to the workplace.5 This changed in 1991 when the U.S. Supreme Court dec i d e d Gilmer v.

Interstate/ Johnson Lane Corp. where, with a

few exceptions, the Court extended the FAA to cover most employees of businesses engaged in interstate commerce, announcing, “it is by now clear that statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA.” 6 At a state level, Texas adopted the Texas Arbitration Act (“TAA”) in 1965, which was later substantially amended in 1997 and codified as Chapter 171 in the Civil Practice & Remedies Code.

The distinction between the FAA and the TAA is critical in the employer’s choice of law for an arbitration agreement. While the FAA can apply to any transaction involving interstate commerce, the TAA can be more broadly applied. As the Texas Supreme Court explained, “Texas law recognizes and protects a broad freedom of contract” and there is “nothing in the TAA at odds with this policy.” 7 For example, under the TAA, the arbitration agreement can provide for judicial review of the arbitrator’s power. By specifying the ways in which an arbitral award can be vacated, the amended TAA reduces the grounds on which to seek vacatur. Most significantly, a manifest disregard of the law by an arbitrator is not such a ground.8 Conversely, it is unclear if manifest disregard may support vacatur under the FAA. In Hall Street, the U.S. Supreme Court questioned—but did not resolve— the use of manifest disregard as a basis for vacating an arbitration award.9 The Supreme Court’s lack of clarity created a split in the circuit courts. At present, the Fifth, Eighth, and Eleventh circuits all hold that manifest disregard by an arbitrator is not basis for vacatur.10 On the other hand, the Second, Fourth, Seventh, Ninth, and Tenth circuits have held that manifest disregard can be a basis for vacatur.11 Is the Agreement Real?

Although typically drafted and mandated by an employer, an arbitration agreement is characterized by courts as a contract—a promise by each party to resolve a dispute through arbitration rather than litigation.

If the promise by one party to arbitrate can be unilaterally withdrawn, the agreement is illusory. As the Texas Supreme Court said in the J.M. Davidson case, “if a party retains the unilateral, unrestricted right to

terminate the arbitration agreement, it is illusory.”12 In other words, if one party can unilaterally modify or terminate the agreement to arbitrate, it is not a real agreement.

Sometimes whether an agreement to arbitrate is real is not easy to determine because the arbitration provision is rolled into an employment policy that has language such as: “may be modified, revoked, changed or deleted … at any time or without notice.” In another Texas case, In Re Whataburger Rest., an employee challenged this exact language, arguing that the mandatory arbitration provision was illusory.13 However, courts dealing with an agreement act on the dictum that “the devil is in the details.”14 Significantly, the arbitration provision in Whataburger included language that the employer would not modify or revoke the agreement to arbitrate.15 Because of this language, the Texas Supreme Court found that regardless of the malleability of the rest of the policy, the mandatory arbitration obligation was not illusory.16 Employee Assent An employee’s signature on an arbitration agreement is clear evidence of assent, regardless of failed memories.17 But what if the employee denies having assented via an electronic signature? The Texas Supreme Court provided guidance on this issue in Aerotek vs. Boyd.18 In the trial court, the employees prevailed on their sworn declaration claims that they had not seen, signed, or been presented with the signed arbitration agreement.

This was affirmed by the appellate court but reversed by the Texas Supreme Court.

Based on the Texas Uniform Electronic Transactions Act (“TUETA”),19 the 8 to 1 majority found insufficient the employees’ simple sworn declarations in which they claimed that the electronic signatures were not theirs. The court reasoned that the employees admitted to completing the computer hiring application and electronically signing all but one of the documents—the arbitration agreement.20 The employees offered no other evidence to support their assertion that they did not sign the arbitration agreements Aerotek introduced into evidence. Aside from workplace electronically signed arbitra-

tion agreements evidenced by a computer click versus a classical signature, Aerotek established ground rules for e-commerce contracts.

Employer Assent As the drafter of a mandatory arbitration agreement, proof of the employer’s assent may seem like a forgone conclusion. In fact, the employer’s signature may not even be needed. In Brock Services, the employee claimed the arbitration agreement was not binding because it was not signed by the employer.21 However, as the First Court of Appeals explained, “Texas law recognizes that a contract signed by only one party can be effective as long as the other party demonstrates acceptance of its acts, conduct, or acquiescence in the terms of the contract.”

Limits: Sexual Harassment and Unconscionability Under Texas law, any attempt to show that an arbitration agreement is unconscionable is typically doomed to failure.

For example, illiteracy of a party, stand-

ing alone, does not make an agreement unconscionable.22 The burden of showing that cost to the employee presents an issue of unconscionability is significant. In Houston AN U.S. v. Shattenkirk, the Texas Supreme Court reversed both the jury’s finding and affirmation by the court of appeals that alleged excessive arbitration costs made an arbitration agreement unconscionable.23 Basic to the reasoning was that the court found the impact to the employee to be speculative without more specific evidence that the employee “will be saddled with prohibitive costs.” According to the court, “will be” means “specific evidence that a party will actually be charged excessive arbitration fees.”24 Up until March 3, 2022, a mandatory arbitration agreement could cover an employee’s complaint of sexual harassment or assault under Texas law. For example, in response to a dispute involving the employee’s claim of sexual assault by a supervisor, a court found that the employee “has not identified any substantive right or remedy she would be unable to assert

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in arbitration.”25 In March 2022, however, this changed. President Biden signed H.R. 4445, titled “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (“Act”).26 The Act amended the FAA, prohibiting enforcement of a mandatory workplace arbitration provision that extends to disputes involving “a nonconsensual sexual act or sexual conduct.” Furthermore, per the Act, (1) claimants have the option to void mandatory arbitration of such claims, (2) claimants can invalidate a waiver of the right to litigate it in joint, class, or collective cases, and (3) a court—rather than an arbitrator—will determine applicability of such agreements, the validity of such agreements, and classaction waivers.27 Except for a few federal district courts, such as the Southern District of New York, we do not yet have court guidance on how this statute will be interpreted.28 Despite the high burden of Texas law, there are limited circumstances in which a workplace arbitration agreement can be found unconscionable. Consider In re Turner Brothers Trucking case, where the employees who presented the employee with the documents, including the arbitration agreement, did not themselves understand it, the employee had no one to explain it and did not understand it, and testing by a psychologist showed he was functionally illiterate and had a reading disorder.29 The court found the agreement to be unconscionable under these rare circumstances. A court can also find a particular part of an arbitration agreement unconscionable, such as a provision precluding remedies under the Workers’ Compensation Act.30 Yet, even then, that court went on to find the arbitration agreement otherwise enforceable based on a severability clause.

EEOC vs. Mandatory Arbitration Agreements Although an employee may be confined to arbitration by an arbitration agreement, the EEOC is not similarly restrained. To be sure, an arbitration agreement does not bar the EEOC from pursuing victim-specific relief on behalf of an employee.31 Consequently, while a mandatory arbitration agreement might bar an employee from fil14 September/October 2023

ing a lawsuit, the employee can file a complaint with the EEOC, which in turn can file a lawsuit against the employer.

The FAIR Act: A Potential New Limit The U.S. House of Representatives has attempted to address mandatory arbitration with the now twice-passed Force Arbitration Injustice Repeal (“FAIR”) Act.32 If signed into law, the FAIR Act would have prohibited forced arbitration of an employment, consumer, or civil rights claim against a corporation. However, it has twice failed in the Senate. The possible future of this proposal must be given serious consideration. If enacted, it will be utilized by employment lawyers whose clients want to avoid arbitration.

Interlocutory Appeal Though not an employment dispute, the most recent U.S. Supreme Court arbitration case is relevant. On June 23, 2023, the Court held that litigation of an arbitration agreement in a federal district court is automatically stayed when a party appeals the denial of a motion to compel arbitration.33 This settles a split in the circuit courts, in which the Fifth Circuit previously held that an appeal did not trigger a mandatory general stay.

Conclusion Considering the trends in employer-mandated arbitration, three apparent realities emerge from the cases cited in this article.

First, courts treat employer-imposed arbitration clauses as contracts and they are, therefore, called agreements. Second, even if the arbitration clauses are mandatory and imposed by one party (an employer) on another (the employee), courts will uphold these clauses as a legitimate “take or leave it” condition of employment.34 According to the U.S. Supreme Court, this exemplifies that the days of being struck down as contracts of adhesion are “long past.”35 Third, attorneys, mediators, and arbitrators in the arbitration process have codes of ethics, which guide and restrain their conduct.

Yet, there are no guidelines that apply to employers and their lawyers who design the arbitration agreements that impose the process on employees.36 Perhaps the push for the FAIR Act is the result.

thehoustonlawyer.com

After serving as a line officer with the United States Navy, Stanley Santire graduated from the University of Texas School of Law. With extensive experience as lead counsel in trials and appeals, he mediates and arbitrates business disputes, primarily construction and employment matters.

Endnotes

1. LEWIS CARROL, THROUGH THE LOOKING GLASS, Ch. 6 (1872).

2. AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 347 (2011).

3. In re Halliburton Co., 80 S.W.3d 566, 572 (Tex. 2002).

4. 9 U.S.C. Ch. 1.

5. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967).

6. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991).

7. Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84, 95–96 (Tex. 2011).

8. Hoskins v. Hoskins, 497 S.W.3d 490, 494 (Tex. 2016).

9. Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 585 (2008).

10. Citigroup Global Markets, Inc. v. Bacon, 562 F.3d 349, 350, 358 (5th Cir. 2009).

11. Esther Loh, Manifest Disregard: A Legitimate Ground for Vacating International Awards Rendered in the U.S., The Am. Rev. of Int’l Arb. (Oct. 2020).

12. J.M. Davidson Inc. v. Webster,128 S.W.3d 223, 230 n.2 (Tex. 2003).

13. In re Whataburger Rests., 645 S.W.3d 188, 191 (Tex. 2022).

14. Lopez v. Sunstate Equip. Co., No. 05-21-00100-CV, at *14 (Tex. App. Aug. 29, 2022).

15. In re Whataburger Rests., 645 S.W.3d at 198.

16. Id. 17. APC Home Health Servs. v. Martinez, 600 S.W.3d 381 (Tex. App.—El Paso 2019, no pet.).

18. Aerotek Inc. v. Boyd, 624 S.W.3d 199 (Tex. 2021).

19. TEX. BUS. & COM. CODE Ch. 322.

20. Aerotek, 624 S.W.3d at 206.

21. Brock Servs., LLC v. Montelongo, No. 01-18-00923-CV, 2019 WL 3720624, at *4 (Tex. App.—Houston [1st. Dist.] Aug. 8, 2019, no pet.).

22. Readyone Indus., Inc. v. Lopez, 551 S.W.3d 305, 315 (Tex. App.— El Paso 2018, pet. denied) (citing Delfingen US-Texas, L.P. v.

Valenzuela, 407 S.W.3d 791, 801 (Tex. App.—El Paso 2013, no pet.)).

23. Houston AN USA, LLC v. Shattenkirk, 669 S.W.3d 392 (Tex. 2023).

24. Id. at 395 (citing In re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex. 2007) (citations omitted)).

25. Academic Partnerships, LLC v. Briseno, No. 05-21-00407-CV, 2022 WL 375436, at *4 (Tex. App.—Dallas Aug. 30, 2022).

26. Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, H.R. 4445, 117th Cong. (codified at 9 U.S.C.§§ 401–02).

27. 9 U.S.C. § 402.

28. Delo v. Paul Taylor Dance Foundation, Inc., No. 22-cv-9416, 2023 WL 4883337 (S.D.N.Y. Aug. 1, 2023); Johnson v. Everyrealm, Inc., No. 22-cv-6669, 2023 WL 2216173 (S.D.N.Y. Feb. 24, 2023); Yost v. Everyrealm, Inc., No. 22-Cv-6549, 2023 WL 2224450 (S.D.N.Y. Feb. 24, 2023).

29. In re Turner Bros. Trucking, 8 S.W.3d 370, 377 (Tex. App.—Texarkana 1999, orig. proceeding).

30. In re Poly-America, L.P., 262 S.W.3d 337, 351–53 (Tex. 2008).

31. EEOC v. Waffle House, Inc., 534 U.S. 279, 297 (2002).

32. FAIR Act, H.R. 1423 and S. 610, 116th Cong. (2019); Arbitration Fairness Act of 2017, H.R. 1374 and S. 2591, 115th Cong. (2017).

33. Coinbase, Inc. v. Bielski, 143 S. Ct. 1915, 1919 (2023).

34. In re Halliburton Co., supra, 80 S.W.3d at 572.

35. AT&T Mobility LLC, supra, 563 U.S. at 347.

36. Michael L. Russell, Employment Arbitration Agreements: The Case for Ethical Standards for Dispute Resolution System Designers, 21 Pepp. Disp. Resol. L.J., 173 (2021).

Local Solutions. Global Reach. thehoustonlawyer.com

September/October 2023

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By Nandini Sane

Generative AI and Its Workplace Implications

O

ne of the hottest issues this year has been the rapid advancement of generative AI, including tools such as ChatGPT, Microsoft Bing Chatbot, and Google Bard.

The increasing prevalence of these tools has required many employers to quickly assess the implications of generative AI in the workplace and address strategies for mitigating potential risks for the company.

Gener at ive AI refers to a type of artificial intelligence designed to create new content, such as images, text, music, and video. Unlike traditional AI systems that are typically focused on analyzing and interpreting existing data, generative AI models can generate new and original content based on patterns and examples learned from training data. The models are trained on large datasets to learn the underlying patterns and structures in the data, then they generate new samples resembling the input data.

Certainly, this technology can have countless benefits in the workplace, from increasing productivity and simplifying routine tasks to reducing costs. However, there are a number of potential risks associated with these tools that can lead to legal, ethical, or reputational consequences for an organization that uses them.

Given these issues, every organization should carefully evaluate how generative AI is currently being used in the workplace,

the organization’s priorities, and the organization’s level of risk tolerance before implementing policies that are consistent with those objectives.

Positive Implications of Generative AI One of the most exciting aspects of generative AI technology is the number of potential advantages it can have in the workplace. For example, generative AI can automate mundane and repetitive tasks, freeing up human resources for more complex and creative work. Further, AI-powered automation can streamline processes, optimize workflows, and reduce operational costs for businesses.

It can also improve resource allocation and enhance overall productivity. These AI tools may also be better able to analyze complex data, which can lead to better predictions, improved risk assessment, and enhanced business intelligence.

As with many new technologies, organizations that chose to embrace this technology early may gain a competitive advantage by optimizing business operations.

Negative Consequences of Generative AI Notwithstanding these potential benefits, use of generative AI in the workplace poses certain risks, including privacy concerns, inaccurate outputs, biases in algorithms, and misuse of AI technology.

For example, earlier this year, a federal judge sanctioned two attorneys with a $5,000 fine when they utilized ChatGPT to prepare a legal briefing, which contained fictitious case citations.1 On a larger scale, these types of errors are not only embarrassing and can negatively impact the reputation of an organization, but they can also be very costly.

It is critical that users of this technology do not blindly accept the information received, and instead verify that the output information is correct. Additionally, generative AI poses significant data privacy concerns. These tools primarily rely on user input to share with a variety of end users. Thus, if an employee were to share confidential and/or trade secret company

information or client information utilizing these tools, they may potentially be exposing this private information to the public. Once this information is leaked, it is virtually impossible to undo the damage. Employers who chose to permit generative AI in the workplace should have robust policies in place to safeguard the use of confidential information while using these tools.

Depending on its use, generative AI may afford its user additional legal exposure. For example, there are certain risks associated with utilizing AI in an employer’s recruitment process and making layoffs or other personnel decisions, as these tools could unintentionally have discriminatory impacts on certain individuals based on protected characteristics.

Incorporating Generative AI Policies Regardless of where an organization stands, it is prudent for all employers to have a generative AI policy in place.

These policies may (1) prohibit the use of all generative AI in the workplace; (2) allow only some employees the ability to use generative AI; (3) allow employees the ability to use generative AI with prior permission; or (4) allow employees to cautiously use generative AI. Ultimately, how each organization chooses to tackle this issue will be unique. At a minimum, however, these policies should clearly communicate the extent, if at all, that employees are permitted to use generative AI tools, the responsibilities employees have for such use, and any consequences for violation of the policies.

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

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281.846.6132

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Nandini Sane is a member at Cozen O’Connor and is board certified in labor and employment law.

Endnotes

1. Sara Merken, New York lawyers sanctioned for using fake ChatGPT cases in legal brief, REUTERS (June 26, 2023) https://www. reuters.com/legal/new-york-lawyers-sanctioned-using-fakechatgpt-cases-legal-brief-2023-06-22/.

thehoustonlawyer.com

September/October 2023

17

W Provisions Affecting

By Dennis Herlong, Drew Barber and Katie Banks

Preparing for the End:

the Termination of the Executive Employment Agreement to Consider

hile most employees work on an “at-will” basis, this is often not the case for a company’s chief executive. Indeed, an empirical analysis of the 375 employment contracts for the chief executive officers of some of the largest public corporations in the country reveals that the parties to an executive employment agreement overwhelmingly contract around the default at-will standard.1 More than simply altering the at-will nature of the relationship, executive employment agreements often contain good cause or good reason provisions for termination or resignation which, in turn, can affect the amount of compensation owed to the executive at the conclusion of the relationship, as well as provisions regarding change in control of the company, unique bonus structures, renewal provisions, and restrictive covenants. While optimism is abundant at the outset of the executive’s employment, these clauses are frequently the source of litigation between the parties at the end of the relationship. Accordingly, companies and executives alike, as well as their respective attorneys, should appreciate the unique financial and legal implications presented by these clauses when the executive’s employment ends.

Good Cause and Good Reason Provisions A good cause or for cause provision typically allows the company to discharge the executive for good cause without penalty or payment of severance benefits under certain predefined circumstances. Another common aspect of a good cause termination provision requires the company to provide notice, often 30 days’ notice, that it intends to invoke the good cause provision and permit the executive to cure.

Given the complexities in satisfying termination for good cause, the majority of executive terminations do not implicate the good cause provision. In a typical executive contract, the executive frequently bargains for, or receives, additional financial benefits if their employment is terminated without good cause.

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 Angela Solice, Attorney at Law Archie Law PLLC Baker Botts L.L.P. BakerHostetler LLP Balch & Bingham LLP Beck Redden LLP Blank Rome LLP Bracewell LLP CenterPoint Energy, Inc. Chamberlain Hrdlicka Chevron USA Coane & Associates Dentons US LLP Elizabeth S. Pagel, PLLC Eversheds Sutherland US LLP Exxon Mobil Corporation Fleurinord Law PLLC Foley & Lardner LLP Frye and Benavidez, PLLC Fuqua & Associates, PC Gibbs & Bruns LLP Gibson, Dunn & Crutcher LLP Gray Reed Greenberg Traurig, LLP Halliburton Hasley Scarano, L.L.P. Haynes and Boone, LLP Hunton Andrews Kurth LLP Jackson Walker Jenkins & Kamin, LLP Jeremy Northum, Attorney at Law

King & Spalding LLP Kirkland & Ellis LLP Law Office of Cindi L. Rickman Law Office of Norma Levine Trusch Law Office of Robert E. Price Law Offices of Omonzusi Imobioh Limbaga Law Locke Lord LLP LyondellBasell Industries Martin R.G. Marasigan Law Offices McDowell & Hetherington LLP McGarvey PLLC Morgan, Lewis & Bockius LLP Norton Rose Fulbright O’Melveny & Myers LLP Painter Law Firm PLLC Reed Smith LLP Royston, Rayzor, Vickery & Williams, LLP Sanchez Law Firm Shell USA Shipley Snell Montgomery LLP Shortt & Nguyen, P.C. Sidley Austin LLP Sorrels Law Squire Patton Boggs The Ericksen Law Firm The Jurek Law Group, PLLC Travis Bryan Law Group, PLLC Vinson & Elkins LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs, & Goren, P.C. Winstead PC Winston & Strawn LLP Yetter Coleman LLP thehoustonlawyer.com

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Under such circumstances, the termination typically triggers the payment of the severance provisions within the agreement. These severance benefits are often conditioned upon the executive releasing any and all claims he or she may have against the company.

Executives should ensure they understand the circumstances in which their contract’s cause or good cause provision entitling them to additional benefits upon termination is invoked. Not every termination by the company without cause or for good cause will entitle the executive to the additional benefits bargained for. This principle is illustrated by a number of recent cases. In a 2023 opinion from the United States Court of Appeals for the First Circuit, the court rejected the executive’s argument that she was entitled to severance benefits when the company gave notice that it would not be exercising the automatic renewal provision in the executive’s employment contract.2 The court reasoned that because the company merely opted to not renew the employment agreement, the cause provision was not triggered and additional benefits were not owed on that basis.3 A United States Court for the Southern District of Texas likewise recently held that the cause provision of an executive’s contract was not triggered when the executive submitted a notice of resignation effective upon a date several weeks away and the company instead accepted the resignation effective immediately.4 The court held that the executive made the choice to leave the company and the fact that the company selected an earlier date did not change the executive’s resignation into a termination without cause.5 A good reason provision acts as a foil to the good cause or for cause provision. Generally, good reason provisions allow the executives to terminate their employment for contractually defined good reasons and receive the same benefit or severance payments as if the company terminated them without cause.

In contrast, an executive’s resignation 20 September/October 2023

notice, and the fact that the company without good reason typically means a “chose not to accept the opportunity to loss of severance benefits similar to that learn more details does not eliminate experienced by an executive terminated the fact it received written notice that for cause. Like good cause provisions, [the executive] believed Good Reason good reason provisions are often condiexisted.” The court also emphasized the tioned upon the executive’s obligation to parties were free to negotiate the nature notify the company of his or her intent and circumstances under which the exand provide the company the opportuecutive should have provided notice. As nity to cure. In many cases, severance evidenced here, most companies strongbenefits may only be claimed after the ly disfavor the claims of good reason by occurrence of both a change in control an executive and are much more likely of the company (discussed below) and to pay severance benefits when the comthe existence of good reason. These are pany has initiated the termination event. sometimes referred to as double triggers, meaning both conditions must occur beChange-in-Control Provisions fore the executive can resign and claim Change-in-control provisions are often severance benefits. included in top executive As the agreement should agreements. Recent case detail what constitutes good law regarding change-inreason, the parties may also control provisions advises want to detail what constiChange-in-control caution to both the execututes notice and the level of detail required. The Fourprovisions are tive and the company when drafting these provisions. teenth Court of Appeals often included Change-in-control provirecently upheld a jury verin top executive sions function as severance dict finding that an executive resigned with good reaagreements. contracts in the event of a merger or sale of the comson under the terms of his Recent case pany. It is the executive employment agreement.6 In that case, the executive prolaw regarding and the company who nevided a letter to the comchange-in-control gotiates this provision, but it is ultimately the buyer pany setting forth his intent provisions advises who will, at least initially, to resign and his reasons for doing so. In the letter, the caution to both the bear the consequences of such a clause. In negotiatexecutive identified various executive and the ing these clauses, therereasons for his resignation.

He noted, however, that the company when fore, the company lacks an listed reasons were not exdrafting these incentive to aggressively bargain for the terms that haustive, and that he would provisions.” may be most favorable to be willing to expand upon it. “In other words, the the reasons in a confidential change-in-control agreement’s terms ilsetting. The company failed to take the lustrate what a CEO employment agreeexecutive up on his offer to expand on ment might look like if CEO power was his reasons and did not consider the exunchecked by the board.”7 But often, a ecutive’s resignation to fall within the good reason provision of his agreement. buyer has no interest in replacing a chief On appeal, the company argued, among executive when it acquires a new comother things, that the executive failed to pany. In these cases, the allocation of provide reasonable notice detailing the who should ultimately bear the expense existence of good reason for the resigof the change-in-control provision is nation. The court disagreed, holding the resolved as part of the sale price as a letter provided the company reasonable shared expense, with the executive re-

thehoustonlawyer.com

‘‘

ceiving a portion of the severance from the seller and a retention bonus and/or other consideration in the new employment agreement with the buyer.

However, simply because a changein-control provision only comes into effect upon the sale of the company, the executive and the board are not immune to liability arising out of the effect of its provisions as demonstrated in a recent decision from Delaware. There, the court found two executives and the company’s board of directors were liable for breach of fiduciary duty where “[t]he plaintiffs proved that [the executives] breached their fiduciary duties as officers during the sale process because they pursued a transaction that would enable them to retire in 2016 with their full change-incontrol benefits and, under the influence of that conflict of interest, took actions that fell outside the range of reasonableness.”8 The court rejected the idea that the change-in-control severance payments do not create a conflict as a mat-

ter of law because they were the product of preexisting agreements disclosed prior to the transaction at issue. Notably, the court also found that the board had breached its duty of care by failing to provide sufficiently active and direct oversight of the sale process (namely, the executive’s self-interested actions). Thus, both the board and executive should draft the change-in-control provision such that it is not overly favorable, or it could possibly create a conflict of interest during a sale.

Bonus Payments and Stock Awards Both the executive and the company will want to ensure that any provisions regarding bonus payments or other benefits, such as stock awards, at the time of termination are drafted with care.

Litigation continually arises because one or both parties expected a bonus to be paid or forfeited upon the executive’s termination. The United States Court of Appeals for the Fifth Circuit recently ex-

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Indeed, Colorado has gone so far as to amined a case where the executive was criminalize violating the state’s restricterminated without cause months prior tive covenant statute.10 to when his restricted stock units were 9 set to vest. The executive Texas has yet to follow was entitled to the units on this trend. So why should a date if certain performance Texas executives and Texmetrics were met. The execuas employers care? With an Both the tive met the metrics but was increase in remote work, it executive and is becoming more common terminated without cause prior to the vesting date. Despite the company will for executives to reside outreceiving a favorable jury side of Texas. Executives want to ensure verdict that he was entitled and companies are typicalto the units, the Fifth Circuit that any provisions ly sophisticated parties, so reversed that decision, holdregarding bonus a simple choice-of-law proing that the executive was vision should remedy any payments or other questions about governing only entitled to the units if he was employed on the date benefits, such as law, right? Wrong. An incertain, and he was not. The creasing number of states stock awards, at court noted that only when have implemented statutes a party breaches a contract the time of termi- prohibiting the applicato prevent its counterparty nation are drafted tion of another state’s law from fulfilling a condition to restrictive covenants. with care.”

For example, Colorado precedent does Texas law exlaw “governs the enforcecuse non-performance. Here, ability of a covenant not to compete for the company did not breach its contract a worker who, at the time of terminain deciding to terminate the executive tion of employment, primarily resided prior to the vesting date. Accordingly, and worked in Colorado.”11 California the executive forfeited any rights to the units. similarly prohibits the application of another state’s law for any employee “who Restrictive Covenants: Non-Competes primarily resides and works in Califorand Trade Secrets nia.”12 Massachusetts prohibits venue seMore than any other category of emlection clauses “if the employee is, and ployees, executives are entrusted with has been for at least 30 days immediately a company’s confidential business inpreceding his or her cessation of emformation. The executive’s knowledge ployment, a resident of or employed in of this information obviously survives Massachusetts at the time of his or her the end of the employment relationship. termination of employment.”13 There is In an effort to protect the value of this a similar trend with respect to choice of information even after the executive’s venue provisions that would require an termination, restrictive covenants, paremployee to adjudicate a dispute conticularly covenants not to compete, have cerning a non-compete agreement outlong been a hallmark of executive emside of that state. Choice of venue proviployment agreements. sions are void under Washington law if But there is growing skepticism and they require the adjudication of a nonhostility toward the enforcement of recompete outside of Washington and the strictive covenants across the United employee is “Washington-based.”14 It is States, both at the federal and state levimpossible to foresee where the execuels. A growing number of states have entive may ultimately “reside” at the conacted legislation that makes the enforceclusion of their employment relationment of non-competes more difficult ship, determining what state’s law may or have banned them in their entirety. apply to an executive’s non-compete is a

‘‘

22 September/October 2023

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difficult undertaking.

As a practical matter, the executive and the company may outline or clarify the executive’s obligations in a separation agreement. These clauses may be beneficial in avoiding litigation or future conflicts by expressly defining the parties’ respective rights and obligations and allow the executive to pursue a role that would not implicate the company’s protectable interests.

Conclusion Once termination of an executive’s employment is considered or has occurred, reviewing counsel often refer to a given agreement as “employer friendly” or “executive friendly.” Then, the die is cast, and both parties must decide the basis for settlement, or dispute based upon the written agreement. Counsel must advise their clients about the likely outcomes of the prospective employment agreement, what it delivers, and what it lacks before the agreement is signed. There is often pressure and urgency to enter agreements for various reasons, which operate to the detriment of the parties, that could have been avoided by an extra day, an extra meeting, and perhaps more negotiation. These variables exist with every new executive agreement.

Dennis Herlong has practiced law for 40 years. He has been board certified in civil trial law for 30 years.

He represents senior executives in litigation, arbitration, and contractual matters.

Drew Barber is an associate at Littler Mendelson P.C. His practice is devoted exclusively to representing companies in employment litigation and advising businesses on virtually every aspect of the employer-employee relationship.

Katie Banks focuses her practice on labor and employment law matters. She has argued hearings in both state and federal court, second chaired jury trials in both state and federal court, participated in arbitrations, and successfully argued numerous motions for summary judgment.

Endnotes

1. See Randall Thomas & Stewart J. Schwab, An Empirical Analysis of CEO Employment Contracts: What Do Top Executives Bargain For?, 63 WASH. & LEE L. REV. 231, 232 (2006).

2. Sullivan v. etectRx, Inc., 67 F.4th 487, 492-93 (1st Cir. 2023).

3. Id. 4. Herington v. Univar, Inc., 583 F. Supp. 3d 824, 835 (S.D. Tex. 2022).

5. Id. 6. EnVen Energy Corp. v. Dunwoody, No. 14-21-00699-CV, 2023 WL 2981800, at *11 (Tex. App.—Houston [14th Dist.] Apr. 18, 2023, pet. filed).

7. Thomas, supra note 1, at 234.

8. In re Columbia Pipeline Group, Merger Litig., No. 2018-0484JTL, 2023 WL 4307699, at *45 (Del. Ch. June 30, 2023) 9. Crane v. Rave Rest. Group, Inc., No. 21-40880, 2023 WL 3735567, at *2 (5th Cir. May 31, 2023).

10. Colo. Rev. Stat. § 8-2-113.

11. Colo. Rev. Stat. § 8-2-113(6).

12. Cal. Lab. Code § 925(a)-(b).

13. Mass. Gen. Laws ch. 149, § 24L(e).

14. Wash. Rev. Code § 49.62.050.

CenterPoint Energy is committed to service Through philanthropic giving and employee volunteerism, we are going beyond just delivering energy by serving as a catalyst to not only improve our stakeholders’ lives today, but also build a strong foundation for tomorrow.

That’s why we invest in initiatives that seek to advance equity and promote inclusion to help our communities thrive.

CenterPointEnergy.com/Community

©2023 CenterPoint Energy 230919-01

thehoustonlawyer.com

September/October 2023

23

By Raymond L. Panneton

Avoiding Pitfalls When Crafting Effective Social Media Policies “One cannot not communicate.”

E

– Paul Watzlawick

mployers constantly face issues with online communications, especially with the knowledge that once something gets posted online, it is almost impossible to remove. These issues become even more problematic when an employee posts something negative online. As a result, many employers seek to create social media policies in an attempt to protect their online image. However, it is important to formulate social media policies that do not violate the National Labor Relations Act (“NLRA”).

Given the proverbial minefield posed by social media, many employers establish social media policies to better define prohibited conduct, such as prohibitions against harassment of coworkers, threats of violence, and disclosure of confidential business information. Employers, however, must be mindful that such policies could violate the NLRA. Enforced by the National Labor Relations Board (“the Board”), an independent federal agency, the NLRA protects the rights of employees to address certain conditions in the workplace—irrespective of their membership in a trade union. Although enacted in 1935, the protections of the NLRA have been extended to protect employee posts on social media.

Specifically, Section 7 of the NLRA gives employees “the right to...engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”1 The Board has used Section 7 to protect employee speech even when such speech is offensive, disparaging, or profane.

By way of example, the Board found the following to be “concerted activities” under Section 7, thereby warranting protection: 1. “Liking” a Facebook comment calling the employer a “shady little man” who was “pocket[ing]” money from employee paychecks.2 2. Commenting on Facebook that the employer misclassified employees on tax returns.3 3. Posting on Facebook offensive personal remarks about a supervisor and his family during a union election which concluded with “Vote YES for the UNION!!!!”4

In addition to the language found in Section 7, Section 8(a)(1) of the NLRA states that it is a violation for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7].”5 Given this language, there are two ways in which employers can violate Section 7: unlawfully applying a lawful policy, or adopting a policy that is overly broad or unlawful on its face.

In determining whether an employer’s social medial policy is in violation of Section 8(a)(1), the Board will perform a twostep analysis. First, the Board will look at whether the policy itself is facially invalid.

That is, the Board will determine whether a social media policy alone, or in conjunction with another internal policy, violates the plain language of Section 7. Next, the Board will assess whether the policy in question is overbroad. Any policy that “reasonably tend[s] to chill employees in the exercise of their Section 7 rights” is likely overbroad.6 This finding is often applied when an employer’s policy is ambiguous. For example, if an employer’s social media policy prohibits “inappropriate comments,” such policies can be (and have been) interpreted as having a chilling effect on protected criticisms of the employer. For example, the Board found the following language to be in violation of the Act: 1. The prohibition of “‘derogatory attacks’ on hospital representatives;”7 2. The prohibition of “‘negative conversations’ about associates or managers;”8 3. The prohibition of “[m]aking false or misleading work-related statements concerning the company, the facility or fellow associates;”9 and 4. The prohibition of posts that “damage the Company... or damage any person’s reputation.”10 In addition to reviewing whether a policy is overly broad, the Board will also look at the overall context. Indeed, if a social media policy was created or first enforced after suspected union activity, it will likely be found unlawful. Similarly, if an employer has a written policy prohibiting social me-

dia use during work, but it is not enforced until suspected union activity on social media has occurred, the employer’s policy will certainly come under greater scrutiny by the Board.

Irrespective of whether an employer has a social media policy or not, how an employer responds to an employee’s social media post can implicate the NRLA. For example, an employer threatening to sue an employee for defamation may violate Section 8 of the Act if the threat has a chilling effect on other employees.

While the NLRA is drafted and enforced in a way to protect employee rights, it is possible to draft a social media policy that does not run afoul of the Act. An effective social media policy will: a. educate employees on social media; b. provide reminders on blurring of personal and professional image; c. teach employees to present views in a professional manner; d. teach respect for professional boundaries; e. train employees on confidentiality; f. clarify whose “voice” is being used; and g. help employees understand when they represent the employer online.

and update of the policy.

RISK-TAKING CAN BE FUN...

Raymond L. Panneton is a business litigation attorney with Hendershot Cowart P.C., where he focuses his practice on complex business and intellectual property matters.

Endnotes

1. 29 U.S.C. § 157.

2. Triple Play Sports Bar & Grille, 361 N.L.R.B. 308 (N.L.R.B. August 22, 2014).

3. Id. 4. Pier Sixty, LLC, 362 N.L.R.B. 505, 505 (N.L.R.B. March 31, 2015).

5. 29 U.S.C. § 158(a)(1).

6. Lafayette Park Hotel, 326 N.L.R.B. 824, 825 (N.L.R.B. August 27, 1998), enforced 203 F.3d 52 (D.C. Cir. 1999). Once a complaint is received, cases will proceed to trial before agency administrative law judges. Thereafter, the decision of the ALJ may be appealed to the NLRB in Washington D.C. 7. S. Md. Hosp. Co., 293 N.L.R.B. 1209, 1222 (N.L.R.B. May 22, 1989), enforced in relevant part, 916 F.2d 932, 940 (4th Cir. 1990).

8. KSL Claremont Resort, 344 N.L.R.B. 832, 832 (N.L.R.B. June 16, 2005).

9. Beverly Health & Rehab. Servs., 332 N.L.R.B. 347, 348 n.5 (N.L.R.B. September 27, 2000), enforced 297 F.3d 468 (6th Cir. 2002).

10. Costco Wholesale Corp., 358 N.L.R.B. 1100, 1100 (N.L.R.B. September 7, 2012).

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An employer’s social media policy should be in writing and in clear and easily understood language. Such a policy enables an employer to mitigate the risk of having the policy being found facially overly broad or “chilling.” Additionally, the policy should inform employees that their misuse of social media can result in discipline, including termination. Lastly, any social media policy should be consistently enforced.

Regulations that govern the use of social media continue to evolve. As such, an employer’s social media policy should be reviewed and updated at least annually to reflect changes in the business, regulations, technology, and social media best practices. Finally, significant changes in the social media landscape, the company’s use of social media, or a negative incident should trigger a review thehoustonlawyer.com

September/October 2023

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Celebrating Pro Bono Excellence:

Recognizing the Diamond, Ruby, and Sapphire Sponsors of the 74th Annual Harvest Celebration

O

ne of the most well-known —and most anticipated— events hosted by the Houston Bar Association and Houston Bar Foundation every year is the Harvest Celebration.

Although the Harvest Celebration has

been the legal community’s main social event since 1949, it was designated a fundraiser more than 20 years ago and has raised millions of dollars for pro bono legal services through Houston Volunteer Lawyers.

All net proceeds from the Houston Bar Association and Houston Bar Foundation’s signature fundraising and networking event benefit Houston Volunteer Lawyers (HVL) in their mission to provide access to justice. HVL is the largest pro bono legal service provider in Texas. In 2022, HVL provided $12 million worth of pro bono legal services to the Houston community. By generously underwriting the Harvest Celebration, our sponsors play a large role in supporting that access to justice.

The co-chairs of this year’s Harvest Celebration are HBA President Diana Gomez of Chamberlain Hrdlicka, HBF Chair Monica Karuturi of CenterPoint Energy, Inc., and HBA Treasurer Daniella Landers of Womble Bond Dickinson (US) LLP. They said: “The Houston Bar Foundation (HBF) and Houston Bar Association (HBA), in partnership with the Houston Bar Association Auxiliary (HBAA), are proud to sponsor the 74th Annual Harvest Celebration to celebrate the achievements of the Houston legal community and support access to justice through Houston Volunteer Lawyers (HVL). We are incredibly grateful for the support of our sponsors and attendees, which enables HVL as the largest pro bono legal services provider in Texas to assist our Houston neighbors in need.

Together, we are transforming lives and creating a lasting impact by helping to shrink the justice gap in our community.”

As we prepare to welcome you to the 74th Annual Harvest Celebration at River Oaks Country Club on Monday, November 13, we asked our Diamond, Ruby, and Sapphire sponsors to tell you in their own words why they support the Harvest Celebration.

Why It’s Important to Support HVL Through the Harvest Celebration “The practice of law is a privilege that gives us status in the community, in exchange for which we have a continuing obligation to our community to provide legal services to those who cannot afford to pay. The Harvest Celebration is our time to renew our commitment as lawyers to fulfill those obligations, and to help create paths to justice for those who would otherwise be the unseen, the forgotten, and the overlooked.”

–Kaylan Dunn, partner, Hunton Andrews Kurth LLP Diamond Sponsor “This event is truly a Celebration—celebrating the bar’s commitment to pro bono, celebrating the opportunity to give back, and celebrating the community that dedicates itself to providing much needed legal services.

Locke Lord proudly participates in the Celebration and the cause.”

–David E. Harrell, Jr., HBA president-elect and partner, Locke Lord LLP Diamond Sponsor “The Harvest Celebration is tremendously important to our community because its proceeds provide legal aid for families in crisis, veterans in need, people facing eviction and others with civil legal issues. As part of its ongoing commitment to pro bono service, Norton Rose Fulbright proudly supports the Houston Bar Association and Houston Bar Foundation’s longstanding charity event.”

–Carter Dugan, partner, Norton Rose Fulbright Diamond Sponsor

“There is no charitable event that does more to fund access to justice in Houston. If you care about our brothers and sisters in Houston having access to the justice system, this is the event to sponsor; this is the place to be.”

–Christopher V. Popov, immediate past president of the HBA and partner, Vinson & Elkins LLP Diamond Sponsor “Many Houstonians in need can obtain help with healthcare, housing, food and jobs, but legal help is just as important. Our profession has an obligation to help people—not only those with resources, but also those who need our help, but cannot afford most legal help. We are proud to help this very worthy cause.”

–John Eddie Williams Jr., founder and managing partner, Williams Hart & Boundas, LLP Diamond Sponsor “Service is the backbone of becoming an attorney. I chose this career to guide my peers through difficult times in their lives. By sponsoring the Harvest Celebration, which benefits the people who provide essential, pro bono legal services, we can continue to serve all our community.”

–Benny Agosto, Jr., HBA past president and managing partner, Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Ruby Sponsor

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“Many of our lawyers grew up poor. As quality legal help becomes more expensive and out of reach for many Americans, AZA believes strongly in paying it forward to assist those who face the same economic challenges we faced. We are honored to be part of this noble effort.”

–John Zavitsanos, managing partner, AZA Law Ruby Sponsor “Pro bono is not just about giving back. It’s an important way for attorneys to stay grounded and connected to the real struggles people in our community face. Our profession can be a force for good. We are honored to support the Harvest Celebration and to be involved in the work Houston Volunteer Lawyers does year-round.”

–Larry Campagna, managing shareholder, Chamberlain Hrdlicka Ruby Sponsor “On behalf of the HBA Litigation Section, we are proud to sponsor the 74th Annual Harvest Celebration. As lawyers—and especially as litigators—we are called upon to serve as advocates. It is a privilege to advocate for access to justice by supporting Houston Volunteer Lawyers in their mission to provide crucial pro bono legal services to those who need it most.”

–Louie Layrisson, partner, Baker Botts L.L.P., 2023-2024 chair of the HBA Litigation Section Ruby Sponsor

“Susman Godfrey is proud to continue its longstanding support of the Harvest Celebration benefiting Houston Volunteer Lawyers and the important pro bono services that this remarkable organization provides to our community.”

–Susman Godfrey L.L.P. Sapphire Sponsor The Importance of Supporting Pro Bono Work and Access to Justice in Houston “Access to legal assistance is essential for all Houstonians to exercise their legal rights and protections. From advice clinics to matters of divorce, guardianship, estate planning, veterans’ benefits, and naturalization, to name just a few examples, there is no shortage of opportunities to provide pro bono legal services in our city, one of the largest and most diverse in the country. Lawyers make a meaningful impact on the lives of their clients through pro bono work, and each engagement contributes to making justice equally accessible to all.”

–S. Grace Ho, senior counsel at Chevron Services Company and chair of Chevron’s Houston Pro Bono Committee Ruby Sponsor How Sponsoring the Harvest Celebration Campaign Aligns With Your Firm’s Values “Access to justice has been a Baker Botts priority for over 180 years.

As a native Houston law firm, we remain committed to this community through our work as a founding member and working partner of Houston Volunteer Lawyers and the Houston Bar Association.”

–Baker Botts L.L.P. Diamond Sponsor “Bracewell’s firm culture encourages pro bono work and serving the underprivileged in our community. Bracewell is proud to support the Harvest Celebration because the proceeds benefit Houston Volunteer Lawyers and local pro bono efforts.”

–Warren Harris, HBA past president and partner, Bracewell LLP Diamond Sponsor “BakerHostetler is proud to continue its longstanding commitment to the Houston Bar Association and Houston Volunteer Lawyers by sponsoring the 2023 Harvest Celebration Campaign. Our support is an extension of our firm’s core values to develop and sustain strong client relationships; provide responsive, high-quality legal services; and give back generously to our communities.”

–BakerHostetler LLP Sapphire Sponsor “We at CenterPoint Energy recognize the significant need for free, voluntary legal services and are honored to support the Harvest Celebration to help those who don’t have access to essential legal representation. CenterPoint Energy takes its responsibility to be a good corporate citizen seriously and we want to do our part to

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further the company’s strong reputation in the community by supporting Houston Volunteer Lawyers through events like the Harvest Celebration and by volunteering our attorneys’ unique skills to address the considerable gap in legal aid. Our goal is to bridge that gap and give people hope so that justice may always be served.”

–Alicia Dixon, director, community relations, CenterPoint Energy, Inc. Sapphire Sponsor “At LyondellBasell, one of our values is to ‘champion people,’ as they are at the heart of everything we do. We also believe in being good community neighbors, which includes making resources available to a wide array of people in the Houston area. Supporting the Harvest Celebration through our global corporate citizenship program, Advancing Good, is a natural fit for our company because it is a crucial component of HVL’s ability to provide access to legal services for individuals who would otherwise have nowhere else to turn.”

–Jeffrey Kaplan, executive vice president and general counsel, LyondellBasell Sapphire Sponsor “Morgan Lewis has a deep commitment to doing work for the public good, which manifests through the pro bono efforts of lawyers in every one of our global offices. In Houston, our close partnership

with HVL allows us to serve vulnerable residents in our local community. We are honored to support the Harvest Celebration and work with HVL to help bridge the justice gap, including through eviction defense work, citizenship work, and clearing criminal records.”

–Morgan, Lewis & Bockius LLP Sapphire Sponsor “Winston’s longstanding support of the Houston Volunteer Lawyers and Annual Harvest Celebration is in keeping with our firm’s commitment to excellence in serving the public interest. As lawyers, we play a special role in providing access to justice for those who cannot afford to hire counsel. The work we do through HVL helps bring our firm’s values to life and makes Harris County a more just place for all who live here.”

–Denise Scofield, partner, Winston & Strawn LLP Sapphire Sponsor If these testimonials resonated with you, there’s still time to become a sponsor of the 74th Annual Harvest Celebration at hba.org/harvest.

We extend our heartfelt gratitude to all of this year’s Harvest Celebration sponsors. See the full list on page 30 of this issue, and acknowledgements of our HBA, HBF, and HVL board members who support the Harvest Celebration Campaign on page 43.

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Benefiting Houston Volunteer Lawyers

Monday, November 13, 2023 · 7:00 – 10:00 p.m. • River Oaks Country Club

100% of net proceeds raised for the Harvest Celebration benefit pro bono efforts in our community through Houston Volunteer Lawyers

Thank you to our 74th Annual Harvest underwriters (as of October 5, 2023).

Learn more about sponsoring and how to purchase tickets to the legal community’s premier fundraising and networking event at hba.org/harvest.

Diamond Sponsors

Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright Vinson & Elkins LLP Williams Hart & Boundas, LLP

Ruby Sponsors

Benny Agosto, Jr. & Nikki Agosto AZA Law Chamberlain Hrdlicka Chevron Corporation HBA Litigation Section

Sapphire Sponsors

BakerHostetler LLP CenterPoint Energy, Inc. LyondellBasell Industries Morgan, Lewis & Bockius LLP Susman Godfrey L.L.P. Winston & Strawn LLP

Gold Sponsors

Arnold & Porter LLP Beck Redden LLP Blank Rome LLP Greenberg Traurig, LLP HBA Labor & Employment Section Hewlett Packard Enterprise Hicks Thomas LLP Johnson DeLuca Kurisky & Gould, P.C. King & Spalding LLP Latham & Watkins LLP

Silver Sponsors

Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Akin Gump Strauss Hauer & Feld LLP Jane & Doug Bland Hon. Harvey Brown ConocoPhillips Foley & Lardner LLP 30 September/October 2023

Gibbs & Bruns LLP Gibson, Dunn & Crutcher LLP Tom & Debbie Godbold Halliburton David & Tammie Harrell Haynes and Boone, LLP HBA Alternative Dispute Resolution Section HBA Energy Law Section HBA Family Law Section HBA Real Estate Section Hicks Davis Wynn, P.C. Jackson Lewis P.C. JAMS Jones Day Monica Karuturi & Kumaran Sathyamoorthy Kirkland & Ellis LLP Liskow McGuireWoods LLP O’Melveny & Myers LLP Pillsbury Winthrop Shaw Pittman LLP Quinn Emanuel Urquhart & Sullivan; Karl Stern Shackelford, Bowen, McKinley & Norton, LLP Shearman & Sterling Shook Hardy & Bacon L.L.P. Sidley Austin LLP SLB Spencer Fane Weil, Gotshal & Manges LLP Yetter Coleman LLP

Bronze Sponsors

Barry & Sue Abrams Akerman LLP Christian Attar Baker Wotring LLP Balch & Bingham LLP Bissinger, Oshman, Williams & Strasburger LLP Bradley Arant Boult Cummings LLP Burford Perry, LLP Bush Seyferth PLLC CITGO Petroleum Clark Hill

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Cokinos | Young Coné PLLC Jacquelyn & Collin Cox Mindy & Joshua Davidson Dentons US LLP Diggs & Sadler Digital Insurance, LLC dba One Digital Dobrowski Stafford LLP Emma Doineau Duane Morris LLP Energy Transfer Fogler, Brar, O’Neil & Gray LLP Frost Bank Frost Brown Todd LLC Kerry Galvin Germer PLLC Hon. Michael Gomez & Diana Gomez Gray Reed Hagans Harris County Attorney’s Office Jim & Susan Hart Hartline Barger LLP HBA Corporate Counsel Section HBA Federal Practice Section Linda & Tracy Hester Hispanic Bar Association of Houston Hogan Thompson Schuelke LLP Houston Lawyer Referral Service, Inc. Houston Young Lawyers Association Husch Blackwell LLP Jackson Walker Jenkins and Kamin, LLP Jim Adler & Associates Jordan Lynch & Cancienne Kane Russell Coleman Logan PC Kean Miller LeBlanc Flanery PLLC McDowell Hetherington LLP Greg & Jennifer Moore W. Michael & Laurie D. Moreland Munsch Hardt Kopf & Harr, P.C. Okin Adams Bartlett Curry LLP Jeff Paine & Brandon Holcomb, Goldman Sachs

Plains All American Pipeline, L.P. Chris Popov Porter Hedges LLP Reed Smith LLP Reynolds Frizzell LLP The Sarofim Foundation Service Corporation International Shipley Snell Montgomery LLP Skadden, Arps, Slate, Meagher & Flom LLP South Texas College of Law Houston Hilary Tyson Vorys, Sater, Seymour and Pease LLP Westlake Corporation Womble Bond Dickinson (US) LLP Wright Close & Barger, LLP

Crystal Sponsors

Bartholet Mediation Sharon M. Beausoleil Brent & Christy Benoit Susan L. Bickley & Bob Scott Bragg Law PC Sejal Brahmbhatt Keri Brown & Ben Womack The Buck Family Fund BWA Video, Inc. Chugh, LLP Copeland & Rice LLP Cozen O’Connor Crowe LLP David Toy Law Firm Wendy & Alistair Dawson DLA Piper LLP (US) Eric & Kami D’Olive Carter Dugan Kaylan & John Dunn Fullenweider Wilhite, P.C. FTI Consulting Jackie & John Furlow Lynn & Stewart W. Gagnon Roland Garcia Christian A. & Janet G. Garza Family Craig & Penny Glidden Andrew Gratz Hon. Joseph “Tad” Halbach Lauren & Warren Harris Gregory & Jennifer A. Hasley Hon. Kristen Hawkins HBA Appellate Practice Section HBA Bankruptcy Section HBA Commercial & Consumer Law Section HBA Construction Law Section HBA Criminal Law Section HBA Juvenile Law Section HBA Mergers & Acquisitions Section HBA Taxation Section HBAA Charitable Fund, Inc. Hedrick Kring Bailey PLLC

Hirsch & Westheimer, P.C. Hillary Holmes & Matthew Archer Jim & Cisselon Nichols Hurd Catherine & Brian James Monica Karuturi, TAJC Corporate Counsel Pro Bono Award Recipient Shae Keefe & Mark Jacobs John Raley & Associates, PLLC Sara & Jason Keith Neil & Dana Kelly Kilpatrick Townsend & Stockton LLP Elizabeth & Bill Kroger Daniella D. Landers The Law Office of Daniel D. Horowitz, III, PC Law Office of Jack Balagia Law Office of Seth Kretzer James Leader Elizabeth & Russell Lewis Peter Lowy & Gabriela Boersner Hon. Erin Lunceford & Mike Lunceford Diana & Dwaine Massey Tim & Ginnie McConn McGarvey PLLC Hon. David M. & Pamela Medina MehaffyWeber PC Hon. Margaret Mirabal Audrey Momanaee Hon. Daryl L. Moore Munck Wilson Mandala Nathan Sommers Jacobs Holly Nini Christopher Northcutt Jeff & Melissa Oldham Olson & Olson, LLP O’Neil Wysocki, PC Robert & Taunya Painter Christine & Seepan V. Parseghian Connie H. Pfeiffer Colin & Sangita Pogge Kelly & Mike Prather Quadros Migl & Crosby PLLC Rapp & Krock PC Aaron M. Reimer & Amanda Heidemann Reimer Karen & Scott Rozzell Rusty Hardin & Associates, LLP Hon. Frank Rynd Travis & Sandy Sales John & Denise Scofield Kay Sim Tramaine Singleton Quentin & Aerin Smith Smyser Kaplan & Veselka Hon. Susan S. Soussan Sponsel Miller Greenberg PLLC The Springer Law Firm PLLC Steven C. Howard P.C. Takla Law Terry G. Fry, P.C. & Gina Lucero

Jennifer Tomsen Samantha Torres & Jimmy Hollowell Sandy & Greg Ulmer Roy & Dominique Varner Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP West Mermis Richard & Laura Whiteley Wiley George Mediation PLLC Hon. LaShawn A. Williams Winstead PC William D. Wood Michael S. Wright – Mediator Andrew Yeh & Ann Elisa Deblina Alan Ytterberg / Ytterberg Deery Knull LLP Krisina Zuñiga & Rick Houghton

Friend Sponsors

Ascent Emergency Medical Center LLC B. Riley Advisory Services Hon. Julie Countiss Jeanne & Tom Cunningham Amy Catherine Dinn Scott Ellis Polly & Stephen Fohn Freedom Law, PLLC Hon. Angela Graves-Harrington David T. Harvin HBA Antitrust & Trade Regulation Section HBA Probate, Trusts & Estates Section Juris Medicus Hon. Veronica Rivas-Molloy & David Molloy Terry Roberson Jane Langdell Robinson S. Mayer Law Hon. Robert Schaffer Hon. Jerry Simoneaux Hon. Charles Spain & John Adcock Brooks & Jacquelyn Tobin Travis Torrence University of Houston Law Center

Other Sponsors

190th Judicial District Court Hon. Tanya Garrison HBA Animal Law Section HBA Entertainment & Sports Law Section HBA Environmental Law Section Craft Hughes Gregg M. Rosenberg Mediation Samantha Jarvis Hon. Margaret Poissant Robin Raasch Hon. Fran Watson

In-Kind Sponsors

Innovative Legal Solutions

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LAWYERS GIVING BACK

El Centro de Corazón:

Serving the Heart of Houston’s Hispanic Community

By Maggie Martin

The HBA offers many opportunities for attorneys and firms to give back to the community through its committee work. Learn how at hba.org/ committees. This year, The Houston Lawyer is highlighting other organizations that also offer an avenue for lawyers to give back to Houston.

For this issue, we’re featuring an organization that serves Houston’s Hispanic community in honor of National Hispanic Heritage Month, observed September 15-October 15.

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l Centro de Corazón (“El Centro”) has served Houston’s East End neighborhood for nearly 30 years, providing comprehensive healthcare services ranging from primary and dental care, and women’s health and behavioral health to underserved and uninsured (or underinsured) children, adults, and families. The organization is designated as a Federally Qualified Health Center (FQHC) to provide these services to families and individuals who otherwise might not have access to healthcare. Last year, the organization served over 12,000 low-income children and adults. “Without these programs, many East End residents without healthcare coverage or the means to pay healthcare expenses outof-pocket would forgo checkups and treatments, ignoring health problems until they reach crisis levels,” said El Centro de Corazón CEO Marcie Mir. El Centro’s three locations within Houston’s East End are intentional. According to the East End Chamber of Commerce’s East End Guide 2023 Edition, nearly 79% of residents in the organization’s primary service area identify as Hispanic or Latino with an average household income of $46,977.1 “El Centro de Corazón is a vital part of the fabric of the East End, working 32 September/October 2023

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tirelessly to identify challenges and barriers that our families face when accessing resources for their health and well-being,” said Mir. “We are committed, day in and day out, to make the East End, and Houston, a healthier community. This has been the driving force of El Centro for the past 29 years.”

In addition to its healthcare services, El Centro offers volunteer opportunities through its Back-to-School event, held every August to distribute free backpacks filled with school supplies for elementary-aged children from local schools, and its Annual East End Holiday Event, held every December to distribute donated toys to young children in the East End community. “El Centro has continued to increase its community collaborations to foster strong health and wellness among Houstonians. By working in partnership with likeminded organizations, such as law firms like Chamberlain Hrdlicka; The Gonzalez Law Group, PLLC; Salazar & Velazquez, P.C.; and other local business organizations, El Centro has not only enhanced its programs and services and improved outreach efforts, but also has increased our efficacy, impact, and sustainability.”

To learn more about El Centro de Corazón, visit www.elcentrodecorazon.org.

Endnotes 1. Houston East End Chamber of Commerce, East End Guide: Food, Culture & Entertainment 2023 Edition https://chambermaster.blob.core.windows.net/userfiles/UserFiles/chambers/2026/ CMS/2023/East-End-Guide-2023.pdf.

Maggie Martin is the marketing and communications director at the Houston Bar Association and managing editor of The Houston Lawyer.

LAW IN THE FAMILY

The Briones Family Harris County Commissioner Lesley Briones is a native Texan and proud Latina who grew up on the U.S.-Mexico border. Upon graduating from Harvard University, she began her career as an 8th and 10th grade public school teacher in her hometown of Laredo. Lesley then attended Yale Law School, and upon graduation, returned to Texas to practice law at Vinson & Elkins LLP. Lesley then worked as general counsel and chief operating officer of the Laura & John Arnold Foundation before being appointed to serve as judge of Harris County Civil Court at Law No. 4. Lesley now serves as Harris County commissioner for Precinct 4.

Adán D. Briones was born and raised in El Paso, Texas. Adán received degrees in government and history from the University of Texas at Austin, a master’s in public policy from the Harvard Kennedy School of Government, and a law degree from the University of Texas School of Law. Adán currently serves as assistant general counsel for Boardwalk Pipeline Partners. Prior to going in-house, Adán was an associate with the law firms of Vinson & Elkins LLP and Jones Walker LLP and had the privilege of serving as an assistant United States attorney for the Southern District of Texas.

Lesley: I always told myself I was never going to marry another lawyer, and that I was never going to date someone with whom I worked.

Little did I know what awaited me in Houston. I had just moved back to Texas to start my legal career at Vinson & Elkins. At a team-building event at new attorney orientation, I remember hearing Adán talking about Cambodia, where I had just been on my post-bar exam backpacking trip. He’s Latino, he’s from the border, family is everything to him, he loves to travel, he went to Harvard—our lives were very similar. And sure enough, we were married within the next year. I never thought I would marry someone after knowing them for a year, but as my grandma and tías would say, “Mijita, when you know, you know.” Now we’re about to celebrate 15 years of marriage and we have three amazing daughters—Valentina (13), Catalina (9), and Ana Lucía (6). Marrying a fellow lawyer has been a blessing because I believe the understanding and shared perspective help strengthen our foundation.

Adán: Growing up, it was my father who introduced me to the law.

Before his appointment to the federal bench, my dad was in private practice. Some of my fondest childhood memories are tagging along and watching my father in action at the courthouse. Wanting to follow in his footsteps, I attended UT Law, where my dad’s portrait still hangs in one of the classrooms. My decision to pursue a legal career was one I will never regret—not just because I enjoy the practice of law, but more importantly, because I otherwise wouldn’t have met Lesley at new attorney orientation.

Lesley: Although I did not have any lawyers in my family, I grew up always wanting to be a lawyer.

After shadowing lawyers during school events, studying the civil rights movement, and learning how seminal cases have advanced social justice in our country, my childhood dream deepened. Throughout my career, I have loved applying the framework of analysis that is sharpened in law school—looking at both sides of an issue, weighing the strengths and weaknesses of your position, and always basing decisions on credible evidence. Now, as a county commissioner, even though I may not practice law in the traditional sense, I still take a similar approach. My commitment to fairness, to listening to all sides, and to justice guides my work.

Lesley and Adán: As our three daughters get older, they seem to be taking after us. Our oldest, Valentina, is a born lawyer. She’s a national champion in debate. All three girls love to debate each other, but we always encourage them to practice mediation!

Lesley: My hope is that if any of our daughters should one day pursue a legal career, the playing field is more equal than it is today. Latinas make up just 2% of all lawyers, despite representing almost 20% of the population. When I was elected to commissioners court, I became the first mother ever elected to the court in her own right. For the first time in Harris County history, two women are now serving on the court at the same time. We have made progress, yet the work is not finished until women achieve pay equity and balanced representation in all levels of leadership. Ultimately, I hope my daughters and all children feel empowered to follow their dreams, and, in the pursuit of their goals, will find—and will continue championing—equality and justice. thehoustonlawyer.com

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OFF THE RECORD

Zachary Caballero:

A Pathway Paved by the Power of Prose

By Anietie Akpan

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The Houston Lawyer

“I was a poet before I was a lawyer.” achary Caballero is a “first-generation everything,” whose fascination with the power of words in two seemingly disparate worlds— the legal profession and the fine art of poetry—has greatly influenced the way he advocates for his clients and his community, and also how he reflects on his humble immigrant roots.

Zachary remembers writing his first poem in seventh grade. His English class had just finished reading The Outsider by S.E. Hinton and was given an assignment to write a poem inspired by the book. “I remember sitting down at my desk and writing with energy and gusto, something I never experienced before!” shared Zachary.

So began Zachary’s journey as a poet. Over the next several years, he filled countless moleskin journals with his stories, his ideas, his words; attended open mics; and listened to and became inspired by spoken word poets performing their original works.

It was these moments that created a bridge into himself—a bridge into a world where his voice would be heard… if he were only brave enough to use it. At age 13, he discovered that bravery when he performed in his first youth poetry slam hosted by Texas Youth Word Collective at Ruta Maya Coffee Headquarters in Austin.

That contest was the catalyst for an illustrious poetry career: competing in local, regional, and national contests, having his works featured in distinguished literary publications, and being honored with numerous awards.

An alum of South Texas College of Law (“STCL”) Houston, Zachary is now an associate attorney with Padilla & Rodriguez, where his practice focuses on a litany of negligence-based personal injury suits. When he’s not lawyering, he shares his gift of poetry and spoken word in legal spaces, in community spaces, and in academic spaces, being radically and openly vulnerable with stories about his Latino identity and his family history. He writes about being a poet, being a lawyer, and being a Mexican American man in Texas, in the United States, in the world. “I write about the native language of my soul,” Zachary shared, “about optimism and love.”

As is the case with many first-generation students, navigating law school for Zachary was often a lonely and insular experi-

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ence. He battled imposter syndrome and was weighed down by pressures of success. He found solace by joining his law school’s advocacy program, harnessing his poetry and performance background to become a dedicated moot court advocate. Since graduating, Zachary has returned to STCL Houston to volunteer as a moot court coach, teaching law students how to command a room with their voice. It was in this way that Zachary continued to learn that being a poet and a legal advocate are two things about him that intersected beautifully.

It seemed destined that Zachary’s life would be paved by the power of poetry. His art (and his style of advocacy) has been shaped by a litany of influences—American literature, the melanin in his skin, his last name. The language in his poetry swings vertiginously from literary to colloquial, from English to Spanish; from razor-tinged melancholy when speaking about his white-passing grandmother who had to refrain from speaking Spanish to attend public school, to fervent pride when speaking about his two grandfathers who each “built a house and a family without ever going to college.”1 He and his wife Adela Peña (an intellectual property attorney who is also an STCL Houston alum) are building their own family. They are expecting their first child this Christmas. “Around my 20-week mark, our baby boy began to kick more regularly,” shared Adela, “Around that time, Zachary had performed poetry at an event in Montrose. Once his voice hit the microphone and the poems started flowing, our baby started kicking and moving like I’ve never felt before!”

Zachary’s passion for poetry perfectly complements his practice of zealously representing his clients and impressing judges, students, and fellow artists alike. But the most important person Zachary has impressed is his soon-to-be son, whose enthusiastic response to hearing him perform demonstrates that Zachary has already passed on his legacy of language to the next generation.

Visit Zachary’s work at https://cabbythepoet.com.

Endnotes 1. Write About Now, To Be A Mexican Man in Texas by Zachary Caballero, YOUTUBE (Sept. 17, 2017), https://www.youtube.com/watch?v=3LrWeaDlHBs.

Anietie Akpan is legal counsel with Royal Vopak and a longtime member of The Houston Lawyer editorial board and former editor in chief for the magazine.

A Profile

in prof e s s io n a l i s m

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The Honorable Michael Gomez Judge, 129th Civil District Court

fter almost 15 years on the bench, it has been a privilege to watch some of the most talented lawyers in our state practice law. In my experience, those who find success in the courtroom share common traits: they are prepared, they focus on finding solutions to problems and disagreements, and they persuade with the law and facts. Our adversarial system of justice can make it easy to forget that there are real people on each side with their own legitimate issues and concerns. When lawyers make their counterparts the problem, they not only make the practice of law more difficult, but they undermine their own ability to serve their client’s best interests.

Most cases will never make it to trial. The vast majority are resolved through compromise and settlement. When we focus on interests, instead of personalities, and on solutions instead of problems, parties usually find better outcomes more efficiently with less expense and less stress.

I know it’s easy to preach the virtues of civility and grace from the bench when lawyers routinely face antagonism and incivility in their practices. We can’t control what other people do, but we can control how we respond. To be clear, we all fall short from time to time of the highest aspirations of our profession, but our system of justice that we proudly declare as the best in world in front of venire panels every day needs us all to keep trying to practice with integrity, compassion, and understanding.

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COMMITTEE SPOTLIGHT

Special Olympics Committee:

A Longstanding Commitment to Increasing Engagement

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The Houston Lawyer

By Brad Rapp

he Houston Bar Association Special Olympics Committee is a partnership between the Houston Bar Association (“HBA”) and Special Olympics Texas (“SOTX”). The committee provides volunteers for sporting events conducted by SOTX, donating thousands of volunteer hours each year to events such as basketball, bowling, golf, softball, swimming, soccer, track and field, and other sports. Volunteers serve as scorekeepers, timekeepers, referees, and judges. More importantly, they also give the athletes encouragement. The committee also provides an opportunity for entire families to get involved in helping others, as committee members often enlist their spouses and children to help at these events.

In 1989, Houston Bar Association President Eugene Cook—who later became a justice on the Supreme Court of Texas—was involved on a personal level with SOTX. Justice Cook, along with many HBA members, frequently volunteered at Special Olympics events. He believed there should be a standing HBA committee to encourage and organize the efforts of HBA members and their families. Therefore, he set up the HBA Special Olympics Committee and made it one of the focus areas of his HBA presidency.

Since 1989, the committee has provided volunteers for almost all of the Area 4 Special Olympics events in Houston. Each event is staffed by several groups of volunteers from several different organizations. And for their part, HBA members typically recruit volunteers from among their colleagues, firm support staff, friends, and families.

Although the committee was unable to volunteer in person for 36 September/October 2023

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the last few years due to COVID-19 and the high-risk status of the athletes, the committee was back at work this past year with 35 attorneys recruiting volunteers and staffing registration for several events, including: regional golf, regional softball and bocce, volleyball, bowling, regional bowling, table tennis, basketball, and regional spring games.

Most recently, the committee partnered with the HBA Golf Tournament Committee to help organize, and provide volunteers for, the HBA’s 75th Annual Golf Tournament held on March 23, 2023. The tournament raised over $36,000, which benefited Special Olympics of Texas, the HBA Habitat House, and the Houston Bar Foundation. Committee members and SOTX athletes manned a hole at the golf tournament to raise money and awareness for SOTX while also increasing engagement. A SOTX athlete also joined each tournament team to help prepare the green as the golfers reached it. It was a great day for SOTX, and it helped spread the good work of the committee.

The current chairs for the HBA Special Olympics Committee are Derick Mendoza, Linebarger Goggan Blair & Sampson, LLP, and Brad Rapp, Rapp & Krock, PC. For more information on how to get involved with the HBA Special Olympics Committee, please contact HBA Director of Projects and Events Bonnie Simmons at bonnies@hba.org or visit the committee page at hba.org/ specialolympics.

Brad Rapp is an attorney and shareholder at Rapp & Krock, PC. His business law practice focuses on navigating operational and governance, real estate, and tax law issues.

Section Spotlight

Labor & Employment Law Section:

Connecting Lawyers and Preparing the Next Generation

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By Nehal Anand

he Houston Bar Association’s Labor & Employment • October 2023: Supreme Court and Fifth Circuit Update Law Section (“L&E Section”) is comprised of apThe L&E Section also hosts sevproximately 500 members, eral social functions for its members, including plaintiff and deincluding its popular holiday party, fense attorneys, in-house counsel, which will take place this year on public sector and government attorDecember 12, 2023 at Pappas Bros. neys, mediators, and arbitrators with Steakhouse Downtown. experience or interest in labor and Finally, the L&E Section continuemployment law. The L&E Section ously invests in the next generastrives to provide labor and employtion of attorneys through its annual ment law attorneys in Houston and scholarship, The Timothy Bowne surrounding areas with networking Fellowship, in honor of a former opportunities and topical seminars. section chair. The Timothy Bowne The L&E Section hosts in-person Fellowship provides a $3,000 grant monthly CLE lunch meetings, usuto one deserving law student who ally held on the second Tuesday of (L to R) Ian Scharfman, Joe Ahmad, and the Hon. Robert works in an unpaid summer internevery month, at Brennan’s of Hous- Schaffer at the section’s annual holiday party. ship for a governmental entity and ton. It also provides live broadcasts expresses an interest in labor and of these lunch meetings for anyone employment law. who cannot attend in-person. The This year’s officers are Nehal lunch meetings are open to section S. Anand, Littler Mendelson, P.C. members, as well as nonmembers. (chair); Radha Thiagarajan, Attorney Our lunch meetings typically feaat Law (chair-elect); Laurance Stuture a panel of experienced practiart, Stuart P.C. (vice chair); Steven tioners and judges. Each meeting Quezada, Ogletree, Deakins, Nash, begins with a five-minute update Smoak & Stewart, P.C. (secretary); speaker (usually featuring a junior and Abby Kotun, PNC Bank (treaattorney). A few of our topics insurer). For more information about clude: the section, please contact one of • May 2023: One Year After the section officers or visit hba.org/ Dobbs: The Impact on Texas sections.

Employers • June 2023: Fundamentals of Nehal Anand is is a shareholder Labor Law and Union Issues in at Littler Mendelson, P.C. and the Workplace is the chair of the Houston Bar • July 2023: The Care and FeedAssociation’s Labor & Employment ing of Senior Executives Law Section. Nehal is board • August 2023: Ethics in Emcertified in labor and employment ployment Law law by the Texas Board of Legal • September 2023: Hot Topics in (L to R) The Hon. Beau A. Miller, the Hon. Dan Hinde, and Specialization.

Jeffrey McPhaul at an L&E Section lunch at Brennan’s.

Trade Secret Theft thehoustonlawyer.com

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Media Reviews

Star Wars and Conflict Resolution: There are Alternatives to Fighting

By Noam Ebner and Jen Reynolds Published by DRI Press Reviewed by The Honorable Josefina M. Rendón

The Houston Lawyer

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tar Wars and Conflict Resolution is a fascinating book. It certainly has the perfect mix of practical advice, academics, creativity and humor, and Star Wars fandom and enthusiasts are sure to love it. The book’s editors are well-known law and conflict resolution professors Noam Ebner and Jen Reynolds. With much knowledge and expertise in the legal field, they still describe themselves in humorous terms.

Prof. Ebner’s short biography states that he “was in the wrong place at the wrong time. Naturally, he became a lawyer.” He adds that: “reprogrammed like IG-11, he is now a professor of negotiation and conflict resolution at Creighton University, where he teaches that wars not make one great.”

Fellow author and editor Prof. Reynolds is an associate dean at the University of Oregon School of Law. According to her biography, she has written and published extensively on alternative dispute resolution and “she is dedicated to training legal Padawans to become wise and thoughtful leaders.”

Padawans, for those unfamiliar with the term, are Jedi apprentices and, in Prof.

Reynolds’s case, law students.

The editors state that the purpose of the book is “understanding the dynamics of conflict and the mechanism for conflict resolution within the context of the Star Wars universe.” They add that, ultimately, their book reveals that “more often than not, in our world and in Star Wars, conflict is resolved through communication and negotiation.” Another purpose of the book, according to the editors, is “spreading knowledge about conflict and its peaceful resolution to people who would never buy a negotiation textbook but would listen to anything Obi-Wan Kenobi has to say.”

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The book is simply divided into two parts: Part I. Conflict and Part II. Resolving Conflict. Each part has nine informative and humorous chapters written by various authors from different academic fields.

Many of the authors are professors of law, psychology, and other disciplines, as well as practicing attorneys, negotiators, and mediators.

By just reading some of the chapters’ playful titles, readers will become aware of the excellence and creativity of this book.

Some of the titles are as follows: 1. Lightsabers and Fighting Styles discusses seven forms of “dueling” used

by Star Wars characters. The chapter teaches how to recognize and choose the most effective style for resolving conflicts.

2. Are Emotions the Path to the Dark Side? discusses how both positive and negative emotions may affect conflict and conflict resolution and teaches how to master, rather than suppress, them.

3. Between Interests and Values, Often Choose One Must discusses, through the eyes of Lando Calrissian and Anakin/Darth Vader, how we often may face a moral dilemma in choosing between interests and values in our negotiations.

Other chapter titles include: Curse my Metal Body! How Empathy Shaped a Protocol Droid’s Journey; Han Shot First: The Ethics of First Strike; and These Aren’t the Droids You’re Going for: Mind Tricks and Manipulation.

The book is geared toward the general public and not necessarily toward lawyers or other professionals. However, attorneys, especially those in the dispute resolution area, will find the book both very informative, as well as amusing. A great read, it is.

The Hon. Josefina M. Rendón is a 1976 graduate of the University of Houston School of Law. She is a former municipal judge and state district judge. An enthusiastic believer in alternative dispute resolution, for several

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years she taught negotiation skills to members of the U.S. Armed Forces. She is a current member of The Houston Lawyer editorial board.

The Legal Singularity: How Artificial Intelligence Can Make Law Radically Better

By Abdi Aidid and Benjamin Alarie Published by University of Toronto Press Reviewed by David T. Lopez

I

n The Legal Singularity: How Artificial Intelligence Can Make Law Radically Better, law professors Abdi Aidid and Benjamin Alarie take the reader on a fascinating journey, delving into the intersection of artificial intelligence and the legal system. The book, about $30 in a digital edition, spans over 200 pages of intellectual exploration, captivating readers with insightful analysis and visionary speculation. Professors Aidid and Alarie, both of the University of Toronto, blend rigorous research and imaginative storytelling in a thought-provoking narrative that challenges conventional notions of law and technology.

The Legal Singularity is a hypothetical future in which AI achieves superintelligence, surpassing human cognitive abilities in the legal domain. The authors lay the foundation for this future by meticulously examining the current state of AI in legal practice, illustrating how various applications such as contract review, legal research, and predictive analysis are already transforming legal practices. With lucid explanations, they navigate through the complexities of AI algorithms and the potential implications for the legal profession. Critical concerns surrounding the integration of AI into the legal system create ethical dilemmas that arise from relying on machines to interpret laws and dispense

LEGAL TRENDS

Media Reviews

justice. The book raises pertinent questions about accountability, bias, and transparency, exposing the challenges of granting autonomous decision-making powers to AI entities. By intertwining real-world examples with theoretical frameworks, the book stimulates contemplation about the moral and societal consequences of embracing the legal singularity.

Vivid scenarios unfold in which AI-driven courts render verdicts, AI lawyers represent clients, and AI legislatures debate and create laws. Through skillful storytelling, the essence of each scenario enables readers to visualize the potential realities that await us.

The importance of The Legal Singularity lies in its ability to strike a delicate balance between optimism and caution. While it celebrates the transformative potential of AI, it also serves as a cautionary tale, warning against complacency in the face of rapid technological advancements. It argues that the legal community must grapple with these challenges proactively, shaping the trajectory of AI integration, rather than merely adapting to its consequences.

The Legal Singularity is an intellectually stimulating and remarkably prescient book that navigates the intricate landscape of AI and law. The masterful storytelling and insightful analysis leave readers with a profound sense of wonder and concern about the future of our legal system. By blending expert research with imaginative narrative, professors Aidid and Alarie create a compelling and thought-provoking exploration that will resonate with legal professionals, technology enthusiasts, and anyone interested in the evolving relationship between AI and the law. As we stand on the brink of unprecedented technological advancements, The Legal Singularity urges us to contemplate our choices and shape the path we tread into this uncharted territory.

David T. Lopez, a Houston domestic and international arbitrator and mediator, is a former journalist, a native of Laredo, and a member of The Houston Lawyer editorial board.

EEOC Issues New Guidelines on Visual Disability in the Workplace

ing and set forth the rights to confidentiality and disclosure of the disabling condition and related medical information.

Details on the guidelines are available on the EEOC’s website at www.eeoc.gov, and they are subject to modification and updating.

By David T. Lopez

David T. Lopez, a Houston domestic and international arbitrator and mediator, is a former journalist, a native of Laredo, and a member of The Houston Lawyer editorial board.

O

n July 26, 2023, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued important new guidelines explaining how the Americans with Disabilities Act (ADA) applies to the employment of individuals with visual disabilities.1 Protection against discrimination is extended to individuals who are substantially limited in the use of their eyes, have a history of visual problems that no longer exist, or a history of such disability, such as eye surgery. A prospective or actual employer is required to provide reasonable accommodation to ensure equal access to employ me nt opportunities and to discuss with applicants or employees the nature and extent of such accommodations. Discrimination against the visually impaired is prohibited in all aspects of employment, including hiring, job assignments, training, promotion, and disciplinary actions. Harassment is prohibited because of the disability and employers must act to prevent and address any incidents of harassment.

The workplace must be laid out to assure accessibility for any such disabled employees, including discussion of tools and equipment to assist the employees in performing their duties effectively.

The guidelines also include recommendations for communications and train-

Endnotes

1. U.S. Equal Employment Opportunity Commission, Visual Disabilities in the Workplace and the Americans with Disabilities Act (ADA), No. 2023-3 (July 26, 2023), available at https://www.eeoc.gov/ laws/guidance/visual-disabilities-workplace-andamericans-disabilities-act.

Fifth Circuit Broadens Potential Discrimination Claims Under Title VII

O

By E. Phileda Tennant and Ashley Plunk

n August 18, 2023, the Fifth Circuit’s decision in Hamilton, et al. v. Dallas County1 shifted decades of Title VII disparate treatment precedent by holding that, to be actionable under Title VII, an employment decision need only impact “terms, conditions, or privileges” of employment and need not constitute an “ultimate employment decision.”

Prior to Hamilton, Fifth Circuit precedent held that, to be actionable, an employment decision needed to be an “ultimate employment decision,” which included “acts such as hiring, granting leave, discharging, promoting, and compensating.”2 In Hamilton, the policy at issue was a “sex-based scheduling policy under which “‘only male officers are given full weekends off[,]’” and “‘[f]emale employ-

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LEGAL TRENDS

ees [...] can only receive weekdays and/ or partial weekends off.’”3 The district court relied on the disparate treatment framework in Felton v. Polles4 to hold that this policy did not violate Title VII because it did not constitute an ultimate employment decision.5 As the Hamilton court would later acknowledge, this was consistent with Fifth Circuit precedent that had “long limited the universe of actionable adverse employment actions to socalled ‘ultimate employment decisions.’”6 In Hamilton, The Fifth Cirthe policy at issue cuit, in departing from prior was a “sex-based precedent, said scheduling policy it was addressing an “interpreunder which tive incongru“‘only male offi- ity” and “flatten[ing]” an “atcers are given full extual” ultimate weekends off[,]’” employment destandard and “‘[f]emale cision in support of a employees [...] broader “terms, can only receive conditions, or privileges” stanweekdays and/ dard for proving or partial week- disparate treatment, noting ends off.’” that “bound by [the prior] standard, we have reached some remarkable conclusions[.]”7 The court’s opinion emphasized that “[n]owhere does Title VII say, explicitly or implicitly, that employment discrimination is lawful if limited to non-ultimate employment decisions.”8 Noting that Title VII’s plain language prohibits “discriminat[ion] against any individual with respect to his compensation, terms, conditions, or privileges of employment,” the Fifth Circuit held that the “statute’s catchall provision” referencing “terms, conditions, or privileges of employment” could not be rendered “all but superfluous.”9 The Fifth Circuit did not address the

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level of “minimum workplace harm” that a plaintiff must allege in addition to showing discrimination in “terms, conditions, or privileges of employment” to proceed with a disparate treatment claim under the new Hamilton standard.10 Instead, it left “for another day the precise level of minimum workplace harm a plaintiff must allege on top of showing discrimination in one’s ‘terms, conditions, or privileges of employment.’”11 Judge Edith Jones’ concurrence stated that this “leaves the bench, bar, and employers and employees with no clue as to what this court will finally declare to be the minimum standard for Title VII liability.”12 Accordingly, there remains some uncertainty about threshold standards that must be established in order for a Title VII claim to go forward. But following, the Fifth Circuit has now held that the scope of adverse employment actions that could give rise to a claim is now broader than it had been.

E. Phileda Tennant is counsel and Ashley Plunk is an associate in the Employment, Labor and OSHA group of Vinson & Elkins LLP, based in Houston, Texas. Their practices both include Title VII claims.

Endnotes 1. No. 21-10133, 2023 WL 5316716, at *12 (5th Cir. Aug. 18, 2023).

2. Felton v. Polles, 315 F.3d 470, 486 (5th Cir. 2002) (internal quotations omitted).

3. Hamilton, 2023 WL 5316716, at *3.

4. 315 F.3d at 786.

5. See Hamilton v. Dallas Cnty., No. 3:20-CV-00313-N, 2020 WL 7047055, at *2 (N.D. Tex. Dec. 1, 2020) (granting Dallas County’s motion to dismiss because “[c]hanges to an employee’s work schedule, such as the denial of weekends off, are not an ultimate employment decision.”); see also Hamilton v. Dallas Cnty., 42 F.4th 550, 555–56 (5th Cir. 2022) (“[O] ur circuit precedent and the rule of orderliness constrain us to conclude that because the denial of weekends off is not an ultimate employment decision, the district court correctly granted the County’s motion to dismiss on the grounds that Plaintiffs-Appellants did not plead an adverse employment action.”).

6. Hamilton, 2023 WL 5316716, at *2; see generally Dollis v. Rubin, 77 F.3d 777, 781–82 (5th Cir. 1996) (per curiam).

7. Hamilton, 2023 WL 5316716, at *9, *12–13.

8. Id. at *5, 9.

9. Id. at *10.

10. Id. at *17–18.

11. Id. at *16–18.

12. Id. at *26.

Join the HBA 100 Club!

The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools, and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Ajamie LLP Alvarez Stauffer Bremer PLLC Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Berg & Androphy Bradley Arant Boult Cummings LLP Buck Keenan LLP Bush & Ramirez, PLLC Christian Levine Law Group, LLC Coats | Rose Crady, Jewett, McCulley & Houren, LLP De Lange Hudspeth McConnell & Tibbets LLP Dentons US LLP Devlin Naylor & Turbyfill P.L.L.C. Dobrowski Stafford LLP 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 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

Kane Russell Coleman Logan PC Kilpatrick Townsend & Stockton LLP Law Feehan Adams LLP Linebarger Goggan Blair & Sampson, LLP Liskow McGinnis Lochridge McGuireWoods LLP McKool Smith MehaffyWeber PC Morris Lendais Hollrah & Snowden Murrah & Killough, PLLC Nathan Sommers Jacobs 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, LLP 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 Shellist | Lazarz | Slobin LLP Shipley Snell Montgomery LLP Smith Murdaugh Little & Bonham LLP Sorrels Law Spencer Fane 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 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 Kean Miller Littler Mendelson P.C. Martin, Disiere, Jefferson & Wisdom LLP McDowell & Hetherington LLP Yetter Coleman LLP Firms of 50-99 Attorneys AZA Law BakerHostetler LLP Brown Sims, P.C. Chamberlain Hrdlicka Greenberg Traurig, LLP Haynes and Boone, LLP Jackson Walker Morgan, Lewis & Bockius LLP Susman Godfrey L.L.P. Winstead PC

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Firms of 100+ Attorneys Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright 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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LITIGATION MARKETPLACE

Office Space EXCLUSIVE SUITE, GALLERIA INNER LOOP Private attorney-only office space conveniently located inside Houston’s 610 loop at San Felipe. Staffed with a receptionist/office manager, with access to amenities, including highspeed internet, telephones, kitchen, two conference rooms and covered parking. Two offices available with window views.

Call Jerry at 713-237-0222.

MEMORIAL CITY AREA Class-A high rise. 800 Gessner, 9th floor. Remodeled 2023. Two furnished window offices. Very quiet. Great views. Conference room. Covered Parking. Fitness center. Onsite restaurants. $1000/office. 713-468-4600; ari.pramudji@pro-ip.com.

HOUSTON MONTROSE AREA Sizeable furnished offices off Branard immediately available. Has access to conference room, kitchen, and separate entrance. Contact Colleen Migl at 713-828-2783 or cmigl@qmclaw.com.

Professional Services

Video Mediations Available

mary@quantumsur.com

Latham & Watkins is proud to support the

74th Annual Harvest Celebration benefiting Houston Volunteer Lawyers

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281.955.2449 ext. 3

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Thank you to the HBA, HBF, and HVL board members for their service and support of the 74th Annual Harvest Celebration!

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Blank Rome LLP is pleased to support The Houston Bar Foundation and its 74th Annual Harvest Celebration.

Blank Rome is an Am Law 100 firm with 15 offices and more than 680 attorneys and principals who provide a full range of legal and advocacy services to clients operating in the United States and around the world.

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