Winter Edition 2021 Vol. 30, No. 2 MESSAGE FROM THE PRESIDENT BY: STEVEN F. GRIFFITH, JR.

Tomorrow (as of the time of this (a slim margin, even by standards of the day). When the writing), we will have a new electoral votes were counted, disputes arose regarding President sworn into office, be- the vote tallies in a few states, leaving Tilden with 184 ginning a new Administration. electoral votes, to Hayes’s total of 165, with 20 votes outstanding. Only a decade removed from the Civil War, Regardless of your politics, ev- threats of a new war were raised by factions of the par- ery new Administration engen- ties. And, in the face of a Constitutional crisis, Congress ders a breath of fresh air, and a appointed a 15-person Commission to settle the disputes, new direction with which we all which ultimately awarded all 20 votes to Hayes, giv- will likely have some agreements and disagreements. It ing him a presumptive 185 to 184 victory. When Til- also demonstrates the value and integrity of the United den’s supporters objected, political compromises were States Constitution, the document that guided our gov- reached, and Hayes was inaugurated. Even in the face ernment and the citizens who came before us through of war, tempers subsided, and the Constitution prevailed. difficult conflicts for over two hundred years. Just two weeks ago (again, as of this writing), we saw As we look back on the last few months, it is easy to be unspeakable lawlessness in the Capitol. exasperated by the rhetoric and ill will demonstrated by Of course, we are a Nation of men and women, with each political party to the other. But, believe it or not, strongly held beliefs. When those beliefs differ, there students of American history would tell you that it was will be disagreement, and even (hopefully, peaceful) civil by some prior standards. protest. If anything, peaceful differences are healthy – In 1800, the fourth Presidential election, voters saw they are the building blocks of compromise, yet another the candidates at each other’s throats. In an age when principle upon which a democracy such as ours thrives. the press swayed opinion, much as one could argue it But, above all, our Constitution commands respect of does today, Thomas Jefferson hired a journalist, James the law, ultimately through an independent Judiciary, as Thomson Callender, to publish criticisms of his oppo- “[i]t is emphatically the province and duty of the Judicial nent, John Adams. Callender did not disappoint, writing Department to say what the law is.” that Adams was “a hideous hermaphroditical character The Federal Bar Association is committed to protecting which has neither the force and firmness of a man, nor an independent Judiciary to help ensure the sound admin- the gentleness and sensibility of a woman.” One does istration of justice. As the largest Chapter of the FBA, wonder how Callender (or Jefferson) would view the you will continue to find us leading the charge through rhetoric of the 2020 election. outstanding programming (made possible by our tireless In 1876, Samuel Tilden faced off against Rutherford B. Board of Directors and top-notch speakers), great social Hayes, and Tilden won the popular vote by 250,000 votes cont’d on page 2

Editorial Board: Larry Centola, Colin Cambre, Michael Finkelstein, Rachel Naquin MESSAGE FROM THE PRESIDENT (cont'd) events (even in this remote world), and civic activities. to serve all of our members. And if there is anything I encourage you to note the upcoming programming this we can do to assist you, do not hesitate to reach out to Spring designed around some of our core Constitutional Amanda Kaiser, our Executive Director, or me. principles, as well as those that acknowledge the inde- pendence of the Judiciary. You will also find some great programming options related to the practice of law. As we move into this new era, we will continue, ultimately, “There are moments our d

THE M/T ATHOS I – MEETING AN UNCHARTED OBJECT CLE On December 15, 2020, the Admiralty Law Section pre- plained how the anchor had been abandoned years earlier sented a virtual CLE event, “The M/T ATHOS I - Meet- but was not discovered despite numerous surveys of the ing an Uncharted Object.” Derek Walker, a partner at river bottom thereafter. Moreover, hundreds of vessels Chaffe McCall, was lead counsel for CITGO in CITGO had navigated through this anchorage without incident Asphalt Refining Co. v. Frescati Shipping Co., Ltd, No. for years after the anchor had been abandoned. Derek 18-565, 2020 WL 1496603 (U.S. March 30, 2020) and explained that one of the key factual issues in the case provided first-hand accounts of the 16-year long saga of was whether this abandoned anchor had been in a “flukes the case. up” or “flukes down” position when it punctured the hull of the tanker. Derek provided great visuals to illustrate M/T ATHOS I was owned by Frescati Shipping Com- the height of the anchor in both positions, and the size of pany, Ltd., which had time-chartered the vessel into a the anchor relative to the size of the vessel, in discussing “tanker pool” assembled by Star Tankers, Inc. CITGO the liability issues. voyage-chartered the VESSEL from Star. M/T ATHOS I departed Venezuela, bound for the Citgo Asphalt Re- Derek talked about the evidence and anecdotes from the finery in Paulsboro, N.J., carrying 13 million gallons of 41-day bench trial before Eastern District of Pennsyl- Bachaquero Venezuelan crude oil. At approximately 9:30 vania District Court Judge John P. Fullam. Judge Ful- p.m. on November 26, 2004, M/T ATHOS I was within lam found that CITGO was not liable for the casualty 900 feet of its destination, approximately the length of in tort, casualty or otherwise. On appeal, however, the the vessel itself, when it struck a submerged anchor in Third Circuit reversed, finding that the vessel owner was the Delaware River, piercing its hull, and spilling oil into a third-party beneficiary of CITGO’s safe berth warran- the river. ty. The case was remanded to the district court. Derek regaled the attendees with his experiences through the Frescati and the U.S. government paid $143 million for re-trial and appeal process, which ultimately came be- the cleanup in the immediate aftermath of the spill. The fore the United States Supreme Court. In a 7-2 decision, government and Frescati sued CITGO to recover the the Supreme Court held that the safe-berth clause in the clean-up costs. Both alleged that CITGO was at fault for charter party constitutes a warranty that imposes on the the oil spill because CITGO had breached a contractual charterer an absolute duty for the safety of the berth it “safe-berth clause” in the subcharter agreement between selects. CITGO and Star. They alleged that this clause obligated CITGO to select a “safe” berth that would allow the ves- Two thumbs (and flukes) up to Derek Walker for his en- sel to come and go “always safely afloat,” and that ob- lightening presentation on this very interesting and im- ligation amounted to a warranty regarding the safety of portant case. the selected berth.

With great insight and humor, Derek deftly condensed over a decade and a half of litigation into an informa- tive and entertaining hour-long presentation. Derek ex- MALCOLM MONROE FEDERAL PRACTICE SEMINAR CLE & SWEARING IN BY: ALLYSON MILLS, MILLS & AMOND LLP

The YLD hosted its annual Malcolm Monroe Federal Practice Seminar CLE & Swearing In on January 13, 2021. The program serves new members of the bar and features a swearing-in ceremony whereby they can be admitted to practice in all federal courts in Louisiana.

This year’s program necessarily was virtual and slimmed-down, but it nevertheless was well-attended and very well-received.

Special thank you to Judge Janis van Meerveld and William Snowden for presenting a timely and important CLE on Implicit Bias in the Workplace; to Chloé Chetta and Rebekka Veith for offering 10 Tips for Federal Practice; to Emmy Schroeter and Jacob Weixler for encouraging Pro Bono for Young Lawyers; to Rebecca Cooper, Amy McIntire, Chris Zainey, Alex Aughtry, and Carlos Benach for their insights and tips for young lawyers; and to Chief Judge for swearing in new admittees.

Thank you also to attendees who, in addition to being newly admitted to the federal bar, are new members of the FBA. The YLD welcomes you all and looks forward to getting to know you at any one of its many programs (still virtual for now, but hopefully in-person soon).

Federal Bar Association Chapter

Alysson Mills and Chief Judge Nannette Jolivette Brown excitedly welcome the Malcolm Monroe attendees Judge Janis van Meerveld and William Snowden present before they are sworn in. Implicit Bias in the Workplace during the Malcolm Monroe Federal Practice Seminar.

Emmy Schroeter and Jacob Weixler present Pro Bono for Young Lawyers during the Malcolm Monroe Rebekka Veith and Chloé Chetta present 10 Tips Federal Practice Seminar. for Federal Practice during the Malcolm Monroe Federal Practice Seminar.

3 COVID-19 ETHICS AND PROFESSIONALISM CLE BY: SHARONDA WILLIAMS, FISHMAN HAYGOOD LLP On November 19, 2020, the CLE Programming Com- challenges of practicing law remotely, virtual engage- mittee held a CLE on ethics and professionalism. The ment with the bench and bar, and issues of competency two-hour CLE consisted of two panel discussions. The that may arise in the legal practice during the pandemic. first panel was entitled “Honesty, Civility, Competen- The attendance at this CLE increased over last year’s cy, Community: Professionalism in the Time of COV- ethics and professionalism CLE, and it received positive ID-19” and was comprised of Magistrate Judge Janis van ratings and feedback. The audience was very engaged Meerveld, Jose Cot (Hurley & Cot), and Atoyia Harris and participated in responding to questions posed even (Proskauer Rose). The panel provided an interactive for- though the CLE was virtual. The CLE Programming mat to address numerous professionalism questions and Committee thanks the Magistrate Judges and the panel- issues related to practicing law during the pandemic. ists for the time and effort they put into planning and pre- The second panel was entitled “COVID-19 Ethics in the senting this informative and interesting program. The New Virtual Practice” and was comprised of Magistrate Committee also thanks the many attendees who partici- Judge Dana Douglas and Prof. Dane Ciolino (Loyola pated in this CLE, which was free for members. University College of Law). The panel provided an anal- ysis of the rules of ethics that could be implicated by the

Judicial Independence in the Modern Era February 25, 2021, Noon – 1 pm Join the New Orleans Chapter of the FBA on Thursday, February 25, 2021 from 12-1pm as Professor Charles Gardner Geyh, Indiana University Distinguished Professor and John F. Kimberling Professor of Law at the Indiana University Maurer School of Law, presents a CLE on Judicial Independence in the Modern Era. Judicial independence, the ability of courts and judges to perform their duties free of influence or control by other branches of government or shifting popular opinion, has been a defining feature of the American Constitutional landscape for centuries. The architecture of judicial independence, however, has never been fully explained or understood. Many believe recent events may threaten the future of an independent judiciary in arguably unprecedented ways, and counsel the need for a deeper, and more systemic evaluation of judicial independence and its vulnerabilities. How did the architecture of judicial independence norms begin—and when did they start to erode? Why is independence essential to the role of the judiciary in American government, and how it can be rescued and defended? This CLE is free to all, but registration is required. To register online, please go to www.nofba.org. Location: Zoom CLE: 1 Hour EVENINGS WITH THE FBA: IN THE KITCHEN WITH CHIEF JUDGE NANNETTE JOLIVETTE BROWN AND MARCUS BROWN BY: BRENDAN CURTIN, SOLO PRACTITIONER

On December 15, the New Orleans Chap- ter of the FBA partnered with Eastern District of Louisiana Chief Judge Nan- nette Jolivette Brown and her husband Marcus Brown (Entergy’s General Coun- sel) who graciously virtually hosted mem- bers in their home kitchen. Chief Judge Brown provided step by step instructions to prepare one of her favorite home- cooked weeknight meals: a quick crawfish etouffee. Marcus showed how to make a margarita that can run laps around the ones made by a certain New Orleans in- stitution. Meanwhile the Browns chatted with attendees about some of their favorite restaurants, dishes, TV shows, books, and more. The laid-back, informal event gave Chief Judge Brown became Chef Judge during the first virtual Evening guests a fun behind-the-scenes-type peek with FBA. She and her husband, Marcus Brown, are pictured here with at the real people behind the offices they YLD Board member Brendan Curtin. occupy as they broadcasted live from their own kitchen. We hope to be able to con- tinue this series and invite you to join us for the next installment this Spring!

IMPACTS OF SOCIAL MOVEMENTS IN THE WORKPLACE BY: ATOYIA HARRIS, PROSKAUER

The Younger Lawyers Board of the New Orleans Chapter hosted an online CLE entitled Impacts of Social Movements in the Workplace on December 10, 2020. This CLE featured labor and employment legal experts Monique Gougisha Doucette (Shareholder at Ogletree, Deakins, Nash, Smoak & Stewart, P.C.) and Melanie Locket (Partner at Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P.). This presentation focused on the recent developments in labor and em- ployment law resulting from social movements like the #MeToo, #BlackLivesMatter, and #LoveWins movements. The presentation also provided practical tips to minimize legal risk, improve workplace diversity, and evaluate po- tential new claims that may result in light of the current social and political climates. This timely and engaging CLE attracted a record number of attendees. Thank you to these panelists for providing such valuable insight on this very important topic! If you have any sug- gestions for future CLE topics, please contact Amanda Kaiser via email at [email protected].

5 LUNCH WITH THE HON. DONNA PHILLIPS CURRAULT BY: REBECCA COOPER, THE KULLMAN FIRM

On November 4, FBA members met virtually with our newest EDLA Magistrate Judge, the Hon. Donna Phillips Cur- rault, who was sworn in on June 1, 2020. Judge Currault spoke about her path to the judiciary, noting that she was the first lawyer in her family, and that her clerkship experience after law school made her fall in love with the whole process of the court and what the court does. She is thrilled to be able to contribute to the judiciary, and she loves learning new things everyday in her “dream job.” Although adjusting to her new role during the midst of a global pandemic has been challenging, Judge Currault highlighted that virtual settlement conferences in particular have been working very well, saving time for attorneys and clients. Attendees were pleased to learn more about Judge Currault and to welcome her to the bench.

Magistrate Judge Donna Phillips Currault, United States District Court- EDLA, is pictured with the November Lunch with the Court attendees on Zoom.

LUNCH WITH THE HON. STEPHEN A. HIGGINSON BY: CHLOÉ CHETTA, BARRASSO USDIN KUPPERMAN FREEMAN & SARVER, L.L.C.

It’s been a while since we “lunched” with the appellate court, so the YLD capped off its 2020 Lunch with the Court program by virtually meeting with the Honorable Stephen A. Higginson of the United States Fifth Circuit Court of Appeals. Attendees shared their favorite parts of practicing law and some courtroom memories before Judge Higginson shared what traits he admires most in litigators. He encouraged younger lawyers to be meticulous in their work, while making time to mentor others. Our (virtual) Lunch with the Court program continues into 2021 with our first meal planned for February 24 at noon with the Honorable Carl J. Barbier of the Eastern District of Louisiana. This event is free to attend and a great way to get to know our outstanding judiciary.

Judge Stephen A. Higginson, U.S. Court of Appeals for the Fifth Circuit, is pictured with the December Lunch with the Court attendees on Zoom. MAGISTRATE JUDGE DONNA PHILLIPS CURRAULT BY: RACHEL M. NAQUIN, GAINSBURGH, BENJAMIN, DAVID, MEUNIER & WARSHAUER, L.L.C.

One only needs to spend a few minutes with Magistrate Judge Donna Phil- lips Currault before her passion for the law and enthusiasm for the federal judiciary become apparent. Judge Currault, the Eastern District’s newest magistrate judge, was sworn in on June 1, 2020. While some may find the task of taking the bench during a global pandemic a bit daunting, Judge Currault has not let the challenges of this unprecedented time temper the fervor with which she is approaching her new position. When asked what she enjoys most about being a member of the judiciary, she, without hesita- tion, exclaimed, “Everything!” It was this love for the law that drove Judge Currault to become the first lawyer in her family. Judge Currault grew up in Harahan, Louisiana, and attended Harahan El- ementary where her mother was a teacher. After graduating from Ursu- line Academy, Judge Currault sought a change of scenery and spent her freshman year at Louisiana State University but later transferred to Loyola University of New Orleans, where she majored in Psychology and met her future husband, Douglas Currault. By the time Judge Currault began her U.S. Magistrate Judge Donna Phillips Currault, undergraduate career, she had set her sights on law school. However, her United States District Court - strong interest in psychology almost tempted her to pursue a joint J.D./ Eastern District of Louisiana Ph.D. degree. Judge Currault graduated from Loyola a semester early. Instead of taking a break before starting law school, Judge Currault felt that she could better use her time by helping those in need and spent that spring and summer working at a psychiatric hospital with adolescent children. In dealing with these children suffering from family and/or behavioral issues, Judge Currault found that often they just need someone to talk to and to listen to them in return. In addition to facilitating group therapy sessions, Judge Currault would take the children on outings to play sports, make pottery, or otherwise participate in activities with them to show them that they were not alone. She, along with her husband, started at School of Law the following fall. Judge Currault has always been a person who seeks the right answer, not just any answer. While other students might have shied away from such difficult topics, Judge Currault enjoyed rule-centered classes like Federal Practice and Procedure and Advanced Federal Jurisdiction. Yet she excelled in all of her classes, accumulating awards for achieving the highest grade in numerous courses. A fellow classmate and colleague, Kathy Manchester, who served as law clerk to former Chief Magistrate Judge Joseph C. Wilkinson, Jr., reminisced: When we were in law school, Donna was always prepared—you knew that when a professor called upon “Ms. Phillips,” her answer would be correct, and the class could move forward. When we were managing editors at Tulane Law Review, I knew that her work would be accurate and timely. She and I shared an (admittedly geeky) devotion to the Blue Book that extended into our practices and demonstrated both her attention to detail and an acknowledgement that rules matter when trying to communicate legal concepts clearly and ethically. Judge Currault quickly earned a reputation for taking some of the best notes in her law school class, which she was always happy to lend to her fellow students. Shortly after announcing her engagement to Douglas during their first year, Judge Currault lent her notes to a student who had missed class due to an illness. Upon returning her notes, the student joked that he knew why Douglas was marrying Donna: “He wants her notes.” Based on the accomplishments above, it is no surprise that Judge Currault graduated Order of the Coif and magna cum laude from Tulane. cont’d on page 8

7 MAGISTRATE JUDGE DONNA PHILLIPS CURRAULT (cont'd) BY: RACHEL M. NAQUIN, GAINSBURGH, BENJAMIN, DAVID, MEUNIER & WARSHAUER, L.L.C. While Judge Currault did not always envision herself sitting on the bench, the goal was inspired and cultivated by her time as a law clerk for the Honorable Morey L. Sear, United States District Judge for the Eastern District of Louisiana. It was during this time that she became captivated with the federal judiciary. Judge Currault remembers, while prepar- ing one of her very first assignments, she asked Judge Sear whether he preferred for her to find authority to support a specific outcome in a case. Judge Sear explained that, as a judge, he was tasked with applying the law to the facts of the case before him, following the law regardless of the out- come, and that he did not ignore the law to reach a desired outcome. Judge Sear further explained that this duty did not mean that a judge could not be critical of the outcome to which applying the law led or bring light to issues that should be addressed by the legislature. For Judge Currault, this guidance from Judge Sear encapsulated what the federal judiciary should be, “That’s our job: to uphold the laws and Constitution of the United States.” Douglas Currault (left) and Nicholas Currault After finishing her clerkship, Judge Currault entered the (right) celebrate with Judge Currault world of private practice at Gordon Arata Montgomery Bar- on the day of her investiture. nett. Judge Currault had clerked for the firm the summer af- ter her second year in law school and was impressed with how the firm valued female voices and women in leadership. When it came time to leave her clerkship, she was thrilled to work at a place where women were recognized and appreci- ated for their contributions. Even though the firm did not have a designated employment section, Judge Currault always had an interest in employ- ment law. Consequently, when the firm’s clients kept ask- ing for assistance with employment matters, Judge Currault seized the chance to work on something she enjoyed, while getting more experience in the courtroom. With her passion for litigation, she never turned down an opportunity to ap- pear in court, and spearheading the firm’s labor and employ- ment practice helped her create more of those opportunities. Judge Currault recalls that Gordon Arata always made a point to foster the careers of its young lawyers. She recount- ed a particular instance when she was working as a fifth-year Judge Currault with her daughter Katharine, associate on a complex oil and gas matter with hundreds of husband Douglas, and son Nicholas. millions of dollars in dispute. She had drafted a motion for summary judgment, and the partners on the case, Blake Ara- ta and Tim Eagan, offered her the opportunity to argue the hearing. Knowing that she would be arguing against more senior attorneys who were pillars of the legal community,

cont’d on page 9 MAGISTRATE JUDGE DONNA PHILLIPS CURRAULT (cont'd) BY: RACHEL M. NAQUIN, GAINSBURGH, BENJAMIN, DAVID, MEUNIER & WARSHAUER, L.L.C. Judge Currault made sure she was the most prepared her now serving as a Magistrate Judge, and we remain person in court that day and aptly answered all of the fortunate to have her commitment to the New Orleans judge’s questions while zealously advocating for her cli- Chapter of the Federal Bar Association.” ent. Judge Currault remembers that case as a prime ex- While Judge Currault may have been the first lawyer in ample of the confidence the firm and her senior partners her family, she will not be the last. Her husband currently had in her as a young attorney. When asked about his serves as Senior Vice-President and General Counsel for time working with Judge Currault, Mr. Eagan comment- Freeport-McMoRan, and both of her children, Katha- ed, “Donna Currault and I worked together for about 25 rine and Nicholas Currault, have expressed interest in years. It was a pure delight. She was always the smartest the law. Following in her parents’ footsteps, Katharine is in the room and saw her role as a litigator as more than currently in her second year at University of California, an exercise in fixing the blame, i.e., winning the case. Berkeley, School of Law and a member of the Califor- She also tried to fix the PROBLEM, so that our client nia Law Review. Nicholas is finishing his senior year at wouldn’t get sued again.” the California Institute of Technology with a major in Not only did Judge Currault serve as a brilliant litigator, Computer Science, and he is currently debating between but she also shares her talents with us as an active mem- a future in graduate school or law school. ber of the Federal Bar Association. In her time with the When asked what words of wisdom she has for young FBA, she has served as Chair of the national organiza- lawyers, Judge Currault said that establishing a good tion’s Labor and Employment Section, as well as various reputation, including thoroughness, honesty, and respect, roles for the New Orleans Chapter, including Director is critical. She warned against attacking another lawyer’s of the Board of Directors and Membership Chair. Most integrity, as that can only reflect poorly on one’s own recently Judge Currault was elected as President-Elect of credibility. As to Judge Currault’s own reputation, Mr. the New Orleans Chapter. When asked about his succes- Eagan said it best: “Whenever I couldn’t find Donna, I sor, current Chapter President, Steve Griffith, remarked, looked for the high road—that’s where she hangs out.” “I have known Magistrate Judge Currault for decades— first, as a mentor, then as a colleague in the community, Judge Currault’s colleagues at Gordon Arata are the first and most recently through the Board of the FBA. She is to admit that their loss is our gain. Peck Hayne, the firm’s a tireless worker, dedicated to the law, and a wonderful General Counsel, stated: “Gordon Arata deeply misses addition to the bench. In that role in particular, she ex- the wisdom, dedication, integrity, enthusiasm and humor ercises her great legal instincts, compassion, and desire of Judge Currault. Little did the Romans know that they to “get it right” in every instance. We are lucky to have were describing her when then came up with the phrase

Judge Currault speaks on a CLE panel titled Returning In the fall of 2018, Judge Currault spoke to law school students Our Wounded Warriors to Work: USERRA, FMLA and about her experiences as a first-generation lawyer. ADA Issues during the 2015 FBA National Meeting.

cont’d on page 10

9 MAGISTRATE JUDGE DONNA PHILLIPS CURRAULT (cont'd) BY: RACHEL M. NAQUIN, GAINSBURGH, BENJAMIN, DAVID, MEUNIER & WARSHAUER, L.L.C. ne plus ultra. The only solace from her leaving our firm is that we federal taxpayers are getting the bargain of a lifetime: the federal judiciary is all the better with Judge Currault.” The federal bar of the Eastern District is truly fortunate to have someone so tirelessly committed to the pursuit of justice, such as Judge Currault, and she is a welcomed addition to the bench.

Honoring the federal bench at the New Orleans Chapter’s Annual Federal Judges’ reception in 2017, Judge Currault is pictured with Kathryn Knight and Judge .

YLD CHAIR'S MESSAGE BY: LAURA ASHLEY

On behalf of the YLD, thank you to everyone who made our fall programs a success—and all done virtually to boot! Since our last update, the YLD has hosted two virtual Lunches with the Court, with Judge Donna Phillips Currault on November 4, 2020 and Judge Stephen A. Higginson on Decem- ber 9, 2020. Each one filled up quickly, so RSVP early if you plan to attend the next virtual lunch with Judge Carl J. Barbier on February 24, 2021! Special thanks to Rebecca Cooper for organizing. The YLD sponsored the Impacts of Social Movements in the Workplace CLE on December 10, 2020. The CLE, organized by Chloe Chetta and Atoyia Harris, focused on developments in labor & employment law resulting from social movements, plus practical tips to minimize risk & increase workplace diversity. The YLD’s annual Malcolm Monroe Federal Practice Seminar for new admittees was held on January 13, 2021, and we welcomed fifty new members to the FBA! The benefits of FBA membership include access to top-notch yet af- fordable CLE on topics relevant to federal practitioners. And for younger lawyers, membership includes admission to our Lunch with the Court series. The first part of the 2021 series will feature lunches with the court among many other exciting programs, such as Federal District Courts in Louisiana: Differences and Practice Pointers (January 27, 2021) and Civil Rights Étouffée (January 28-29, 2021). Special thanks to immediate past president Alysson Mills, and Executive Director Amanda Kaiser, for organizing the seminar. In addition to these enriching events, among other things the YLD hosted virtual Evening with the FBA: In the Kitch- en with Chief Judge Nannette Jolivette Brown and Marcus Brown on December 15, 2020, which was an informal fun night of making dinner and socializing via Zoom (special thanks to Brendan A. Curtin for organizing). We look forward to the programs and events we’re planning for 2021 and hope to see you there virtually (and hope- fully in person soon)! FEDERAL DISTRICT COURTS IN LOUISIANA: DIFFERENCES AND PRACTICE POINTERS

On January 27, 2021, our Chapter sponsored a virtual version of our annual CLE program, “Federal District Courts in Louisiana: Differences and Practice Pointers.” This year, the seminar consisted of two panels: a panel of District Judges and a panel of Magistrate Judges. The Panel of District Judges was composed of District Judge Robert R. Summerhays of the Western District, District Judge John W. deGravelles of the Middle District, and District Judge Wendy B. Vitter of the Eastern District. The Panel of Magistrate Judges consisted of Magistrate Judge Carol B. Whitehurst of the Western District, Magistrate Judge Scott D. Johnson of the Middle District, and Magistrate Judge Donna Phillips Currault of the Eastern District. Board member José R. Cot moderated the discussion. The program provided an overview and discussion of practice in all three federal districts, including initial disclo- sures, scheduling orders, discovery, motion practice and oral argument, use of Magistrate Judges and settlement conferences, standing orders and Local Rules, and decorum and professionalism, particularly during the Covid 19 pandemic. The panelists offered interesting and insightful observations and practice pointers, as well as anecdotes. The program was well-attended and received favorable reviews. Special thanks go to District Judge Carl J. Barbier, who suggested the idea of a two-panel format and was instrumen- tal in planning the program. We are also grateful to our distinguished panelists for their participation and support, and to Executive Director Amanda Kaiser for her usual diligence in coordinating the program.

In the first hour, moderator José Cot joined the New this year, second hour was devoted solely to Hon. Wendy B. Vitter, the Hon. Robert R. Summerhays, Magistrate Judges. Moderator José Cot joined the Hon. and the Hon. John W. deGravelles Donna Phillips Currault, the Hon. Carol B. Whitehurst, as they presented their insights as District Judges. and the Hon. Scott D. Johnson as they presented their insights as Magistrate Judges.

National Federal Bar Association President W. West Allen attended the January Board meeting. He has focused on the Constitution during his term as FBA President and spoke on that topic as well as national FBA initiatives and programs. Read his President's Messages here: https://www.fedbar. org/blog/category/from-the-fba/presidents-messages/.

11 The New Orleans Chapter joins other Federal Bar Association Chapters in a food bank drive. We have teamed up with Second Harvest Food Bank to raise money to directly support their efforts in feeding the local community.

Our goal is to help Second Harvest Food Bank feed the 1 in 5 of our neighbors in South Louisiana who are unsure of their next meal. Help us help Second Harvest to feed more people in need!

Together, we can end hunger in South Louisiana. Click here to donate. http://nofba.org/2021/01/13/help-fight-hunger/

The USDC-EDLA is hosting two contests, open to students in grades 9-12. Both contests are open to high school stu- dents residing in the Eastern District of Louisiana. Essay and poster submissions will be accepted beginning February 5, 2021, and the submission deadline is March 5, 2021. Contest finalists will be determined by March 19, 2021, and

winners will be announced at a Zoom event scheduled for March 31, 2021, at 4:00 pm. Essay contest and poster contest rules and entry forms can be found online, https://www.laed.uscourts.gov/bill-rights-essay-and-poster-contests.

We invite members of the bench and bar, to serve as contest judges for the USDC-EDLA Bill of Rights Essay Con- test and/or USDC-EDLA Bill of Rights Poster Contest. In addition, the Zoom event will include an interactive stu- dent activity requiring volunteer facilitators on March 31st.

Those interested in judging or facilitating the interactive student activity, please contact Rebecca Coman at (504) 376- 3806 or [email protected].

NEW MEMBERS The Federal Bar Association welcomes its new members:

Mr. Alec Andrade Mr. James Edward Courtenay Ms. Juliana Roger Liskow & Lewis The Courtenay Law Firm, LLC Ms. Claris E. Smith Mr. Brandan T. Bonds Mr. Mark P. Glago Cooper Law Firm, LLC Loyola New Orleans College of Law Glago Williams, LLC Mr. Jason Waguespack Ms. Laura E. Carlisle Mr. Roy E. Lambert Galloway Johnson Tompkins Burr Baker Donelson Bearman Caldwell U.S. Department of Labor & Smith & Berkowitz, PC Mr. Matthew James Paul Mr. Clerc Cooper Stanley Reuter Ross Thornton Phelps Dunbar LLP & Alford LLC

If you would like to become a member of the FBA, or know someone who would like to become a member, please call José Cot, Membership Chair, at (504) 524-5353, or Amanda Kaiser, Executive Director, at (504) 589-7990 for more information. FIFTH CIRCUIT COURT OF APPEALS CLERK’S OFFICE UPDATE BY: LYLE CAYCE, CLERK

It is hard to believe that the COVID-19 pandemic continues to dominate our lives and profession. The court last held regularly scheduled in person arguments in New Orleans in March 2020. Shortly after those argu- ments, we closed the John Minor Wisdom Courthouse and the Clerk’s Office to the public. Those closures have continued for ten months. Like so many others in the court family, I hoped that the new year would permit a return to normal operations, but the much feared “second wave” dashed those hopes.

The court has, of course, adopted measures to ensure the court continued to serve the public despite the clo- sures. In March, when most of our employees began working remotely, we suspended the requirement for paper copies of most pleadings and began to accept email filings by pro se litigants. On April 27, we held our first video arguments, after rapidly developing procedures for virtual hearings. Obviously, judges, counsel, and court staff had to learn how to use a range of audio and video conferencing tools. But perhaps it is true that there is a silver lining for every dark cloud – for the technology permitted the court to provide the public live streaming of the audio, even as we posted recordings later that day. While video arguments have permit- ted the court to decide cases, it is undoubtably true that the court wants to return to in person arguments as soon as we can do so safely.

In early January, the court conducted several in-person arguments to determine whether mitigation measures and precautions would permit safe in-person arguments. We held the proceedings in the circuit courtroom in the Bob Casey District Courthouse in Houston, as that facility had reopened to the public. Because those proceedings went well, future panels may elect to hold arguments in Houston or in New Orleans. I provide below information about how such hearings might be conducted.

When we set the calendar for future arguments, my staff will determine if an attorney has concerns or objects to in-person attendance. The court will respect counsel’s preference not to attend in-person, and in that event, oral argument may occur using video or may be postponed. If all parties agree and the panel elects to proceed in-person, however, we will schedule the hearing.

Arguments held in New Orleans may initially use only the En Banc courtroom, as it is larger and can provide better distancing. As mitigation measures, we will modify attorney check-in procedures; stagger attorney ar- rival times; limit attendance by parties to counsel presenting argument; and enforce distancing in the gallery. As public attendance will be severely limited, if permitted, we will continue to live stream arguments as well as post audio recording on our website after the hearing.

During a telephonic check-in before the argument, counsel will have to confirm they are free of COVID-19 symptoms and have not been exposed to anyone with the virus. Counsel will wear an appropriate mask/face covering and proceed as usual through the security entry station. Clerk staff will escort counsel directly to the courtroom. The court will take a short recess between cases to permit counsel to enter and exit the courtroom separately. When directed, counsel should move directly to their table. We have separated counsel tables to

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13 FIFTH CIRCUIT COURT OF APPEALS CLERK’S OFFICE UPDATE (cont'd) BY: LYLE CAYCE, CLERK

better promote social distancing and installed plexiglass barriers on the bench, podium, and around the court- room deputy station. Everyone (and judges if they choose) must wear a mask/face covering during the hear- ings, except when presenting argument to the court. With the cooperation of the bar, we hope these measures and other measures will permit the safe resumption of in-person hearings.

As Chief Justice John Roberts wrote in his 2020 Year-End Report on the Federal Judiciary (https://www. supremecourt.gov/publicinfo/year-end/2020year-endreport.pdf), John Jay, the first Supreme Court Chief Justice, convened the Supreme Court for its inaugural sitting at a time the nation was suffering from the spread of influenza and later, yellow fever. While thousands died and the business of the judiciary was greatly impacted, the nation endured. And so, we will again.

Best wishes to all.

We are excited to announce that we are keeping the majority of our CLE programs FREE for New Orleans FBA members in 2021! We began offering free CLEs to our members as part of the 100 year celebration of the national FBA, and are delighted to continue offering this incredible gift in appreciation of our members. The Judge Alvin B. Rubin Symposium and Malcom Monroe Seminar will be the only 2021 CLE programs with a fee for members. Not a member? Join now. TRIALS AND TRIBULATIONS Trials and Tribulations is your quarterly summary of matters recently tried in the United States District Court for the Eastern District of Louisiana. Organized by topic, the summaries below are compiled by the Editorial Board from Verdict Reporting Forms provided by the Court.

Oil Pollution Act administrative costs in the amount of an injury to his back as a result of the $1,033.75. accident, but argued that the injury United States of America v. E.R.R. was not neuropathic in nature. In LLC, et al. The Court also found Defendants li- addition, Defendant argued that the able to the United States for interest, neck injury was not causally related This case arises out of an oil spill including prejudgment interest, and to the accident. that occurred on the Mississippi for all litigation costs and attorney’s River in May 2015. Plaintiff, the fees in an amount to be later deter- The Court found that the lower back United States of America, filed suit mined. injury was neuropathic in nature, under the Oil Pollution Act (“OPA”) which increased Plaintiff’s damages against E.R.R. LLC, Evergreen Re- Case No. 19-cv-2340, L(5) (Non-ju- for past and future medical expens- source Recovery LLC, and Hugh ry trial held with Judge Fallon Octo- es. In addition, the Court also found Nungesser, Jr. seeking recovery of ber 5-8, 2020) that Plaintiff’s neck injury was not cleanup and removal costs totaling caused by the accident. $632,262.49. Plaintiff argued that the oil spill originated at a wastewa- Judgment was awarded to Plaintiff in Federal Torts Claim Act ter storage and treatment facility in the amount of $2,640,636.36. Spe- Belle Chasse, Louisiana, owned and Lionel Singleton, Jr. v. United States cifically, the Court awarded Plaintiff: operated by Defendants. Plaintiff got of America involved in this case after Defen- · $400,000 for general damages dants refused to pay Oil Mop, LLC On March 30, 2017, Plaintiff was in- for the work associated with clean- · $140,727 for past medical ex- jured in a rear end motor vehicle ac- penses ing the oil spill. Plaintiff maintained cident when he was struck by United that Defendants are responsible par- States Postal Service (“U.S.P.S”) · $250,000 for future medical ex- ties under the OPA and are liable for employee Donnelle Breaux. At the penses the oil cleanup and removal costs. time of the accident, Plaintiff’s vehi- cle was stopped at a red traffic signal, · $207,122 for past lost wages Defendants denied liability, claim- and the impact knocked his vehicle ing that the oil spill originated from into a third vehicle ahead of him. · $1,642,787 for future loss of a barge that transferred oily waste- earning capacity water to Defendants’ facility on May Breaux was found to be solely liable 12, 2015, or from an act or omission for the accident in Summary Judg- In addition, Plaintiff was awarded of a different third party. Defendants ment motion practice before trial. court costs, as permitted under 28 also disputed the amount of oil re- Since Breaux was acting within the U.S.C. § 2412(a)(1), and post-judg- moval costs reported by the United course and scope of her employment ment interest, as permitted under 28 States and the National Pollution with U.S.P.S., the United States of U.S.C. §1961. Funds Center. America was vicariously liable for the accident under the Federal Torts Case No. 19-2684, J(3) (Non-Jury The Court found that Defendants Claim Act. The issue of liability was trial held with Judge Barbier from were properly designated as re- not litigated at trial. October 13-14, 2020) sponsible parties under the OPA in connection with the May 13, 2015 At trial, Plaintiff sought to recover oil spill. The Court concluded that for an injury to his low back (“L4- Defendants are liable to the Unit- 5”) and to his neck (“C4-5”). Defen- ed States for removal costs in the dant conceded that Plaintiff suffered amount of $631,228.74 along with 15 Federal Bar Association FIRST CLASS MAIL New Orleans Chapter U.S. POSTAGE P A I D c/o Steven F. Griffith, Jr. PERMIT NO. 385 Chapter President NEW ORLEANS, LA 500 Poydras St., Room B-245 New Orleans, LA 70130 www.nofba.org Interested in becoming a member of the Federal Bar Association? Contact: Federal Bar Association 1220 North Fillmore St., Suite 444 Arlington, VA 22201 (571) 481-9100 Fax (571) 481-9090 www.fedbar.org or Membership Chair José R. Cot c/o Attorney Conference Center 500 Poydras Street, Room B-245 Hale Boggs Federal Building New Orleans, LA 70130 (504) 589-7990 Membership fee includes both national and chapter membership in the FBA. You can apply online at www.fedbar.org.

Editorial Board: Larry Centola, Colin Cambre, Michael Finkelstein, Rachel Naquin Please contact us at: [email protected]

SAVE THE DATE FOR UPCOMING EVENTS All programs listed will be held via Zoom.

Help Fight Hunger with Judicial Independence in the Second Harvest Food Bank Modern Era CLE Donate through February 16, 2021 February 25, 2021

Tips from the Pros – Building a Virtual Lunch with the Court Successful Career During the with the Hon. Jane Triche Milazzo Challenging Times of a Global Pandemic March 10, 2021 February 23, 2021

Virtual Lunch with the Court with the Hon. Carl J. Barbier February 24, 2021

Visit http://nofba.org/upcoming-cles-programs/ to see the most recent CLE and Events Calendar.