Summer Edition 2021 Vol. 30, No. 4 MESSAGE FROM THE PRESIDENT BY: STEVEN F. GRIFFITH, JR.

Roughly twenty years ago, my No member of our Board is a member just for the sake of mentor, Mimi Koch, brought being on a Board – each takes ownership of committee me over to the Eastern District, or subcommittee roles, CLE programming, community and Judge Barbier swore me in service, or other priorities for the year. For that reason, so that I could argue a Motion the Chapter remains the strongest in the before him that morning. I country – both in size and in return for its members, won that Motion (it may or which brings me back to my own role in the organization. may not have been a Motion This is my last address to you as President of the Chapter. to Continue . . .), and I should Five years ago, when first approached about becoming have retired undefeated because I have certainly lost my an Officer, I was humbled by the invitation, and I gladly share of Motions since that day. Nevertheless, on that accepted. These last five years have allowed me to see yet day, I joined the Federal Bar Association. First, I was another side of the organization, namely, the tremendous a member, eventually I joined the Younger Lawyers’ work of the Executive Committee and our Executive Division Board, and then I joined the so-called “Big Director in setting the cadence for the year, ensuring our Board,” where I have served for roughly a decade. top notch programming continues, and preserving our In that time, I have come to know some of the most constant connection to the community. I’ll be forever impressive, brilliant, and remarkable practitioners one indebted to all of them for their work, and for setting the can ever meet. We have shared joy, pain, and many benchmark for what it took to serve as President. laughs along the way. There was Hurricane Katrina, the You’ll be in great hands this coming year with Magistrate Saints’ Superbowl victory, COVID, and so many other Judge Currault taking the helm, and I have told her I’ll inflection points in our individual lives. And through assist in any manner I can. But, allow me to close the it all, the New Orleans Chapter of the FBA was steady, address with a simple thank you. Thank you for being serving the entire membership with the tremendous a member, thank you for supporting our events and support of the Judges of the Eastern District. programs by sponsoring and attending, and thank you In our community, we have the privilege of choosing for everything you do in our community to advance the from a host of wonderful professional organizations, and legal profession and its stature. we will each choose our own paths. But, to me, I feel strongly that this Chapter is one of the most important organizations in the area, and it starts with the leadership of our Board.

Editorial Board: Larry Centola, Colin Cambre, Michael Finkelstein, Rachel Naquin CIVIL RIGHTS SERIES: Impact of COVID-19 on Housing Availability BY SHARONDA WILLIAMS, LOYOLA UNIVERSITY NEW ORLEANS

On April 20, 2021, the CLE Programming Committee held a virtual CLE on civil rights issues that arise in the context of housing accessibility, particularly during and in the aftermath of the COVID-19 pandemic. The one-hour CLE was entitled “Impact of COVID-19 on Housing Availability” and was comprised of Cashauna Hill, the Executive Director of the Fair Housing Action Center (“LaFHAC”), and John Adcock, a civil rights and cooperating attorney with LaFHAC.

The panel provided an overview of the laws related to evictions during the pandemic, how courts and communities are dealing with landlord-tenant issues in light of the economic impacts of COVID-19, as well as foreclosures and mortgage relief during the pandemic. The panel provided insight on how these housing issues are impacting minority and disadvantaged communities and how certain actions affect the civil liberties of tenants and borrowers.

Thirty people registered for the event, and the audience was appreciative of this CLE, with one participant stating, “Kudos to the Federal Bar Association and speakers for recognizing the seriousness of the housing crisis and all the impacts that it will have on low-income families!” The CLE Programming Committee thanks the panelists for the time and effort they put into planning and presenting this informative and interesting program. The Committee also thanks the many attendees who participated in this CLE, which was free for members.

Louisiana Fair Housing Action Center’s Cashauna Hill and John Adcock discuss the impact of COVID 19 on housing availability.

2021 USDC-EDLA ASIAN AMERICAN PACIFIC ISLANDER HISTORY MONTH CELEBRATION BY REBECCA COMAN, DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ORIGINALLY PUBLISHED BY THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

On May 27, 2021, the U.S. District Court for the Eastern District of Louisiana celebrated Asian American Pacific Islander History Month by hosting a program entitled, “The Asian American Experience: From Korematsu to Co- vid-19.” The program featured panelists, Dr. Karen Korematsu, founder of The Fred Korematsu Institute and daugh- ter of the late civil rights icon, Fred Korematsu; the Honorable Cyndi Nguyen, New Orleans City Councilwoman, District E; David Courcelle, Jefferson Parish Deputy Parish Attorney; and Dr. Jean Bing Simpson, LSU psychia- trist. Mr. Courcelle moderated the event, and the Honorable , Chief U.S. District Judge for the Eastern District of Louisiana, gave opening and closing remarks. The panelists gave varied legal, historical, and social perspectives on the Asian American experience, and provided valuable insight into what it meant to be an Asian American in times past and what it means to be an Asian American in our country today. "LOVE THE ONE YOU'RE WITH: HOW TO EARN——AND KEEP!——GOOD BUSINESS CLIENTS" CLE BY: CHLOÉ M. CHETTA, BARRASSO USDIN KUPPERMAN FREEMAN & SARVER, L.L.C.

On May 26, our members gathered for a virtual lunch with three in-house lawyers at multi-national companies to talk about what it takes to continue to earn your clients’ trust and respect as outside counsel. Some tips our panelists shared included updating your client regularly (at least once a month), even if nothing is going on; responding to cli- ent inquiries as quickly and concisely as possible (no need to write them a treatise!); preparing early for meetings with commercial representatives and fact witnesses to prove you’re worth your rate and your client’s time; and not being afraid to check in during the “off season.” Special thanks to our panelists Andrea Price (Walmart), Brittany Salup (Chevron), and Kristopher Zinchiak (Chiquita Brands), who brought a wealth of experience and perspective and shared great insight with our lawyers! Thanks also to our moderators Rosalie Haug (Chaffe McCall) and Harrison Golden (Phelps Dunbar) for keeping the conversation flowing!

Panelists Rosalie Haug (Chaffe McCall, LLP), Harrison Golden (Phelps Dunbar LLP), Brittany Salup (Chevron), Kristopher Zinchiak (Chiquita Brands International, Inc), and Andrea Mahady Price (Walmart) explain what makes good outside counsel that clients can’t resist relying on again and again.

We hope you are enjoying the FREE CLE programs for New Orleans FBA members! Not a member? Join now. Current members, don’t forget that the national FBA has moved to a universal renewal date of October 1st for all members. Log onto fedbar.org to check your membership status, renew, and update your contact information.

3 IN-PERSON CIVIL AND CRIMINAL JURY TRIALS RESUME IN THE EDLA BY: MAGISTRATE JUDGE DONNA PHILLIPS CURRAULT, UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF LOUISIANA

Since March 2020, the Covid-19 pandemic precluded For the first in-person criminal jury trial since Covid-19, customary in-person trials and hearings, forcing judges Judge Jane Milazzo used the en banc courtroom to con- in the Eastern District of Louisiana to continue operat- duct voir dire so she could accommodate the greatest ing through videoconference bench trials, hearings, set- number of potential jurors. While space limitations re- tlement conferences, and status conferences. With the sulted in a selection process that took longer than usual, dissemination of vaccines and the CDC’s relaxation of after a full day of jury selection, she seated 12 jurors and restrictions, the court has resumed in-person civil and 2 alternates. Judge Milazzo defined the CDC guidelines criminal jury trials as of June 2021! for the jurors and advised them that fully vaccinated ju- rors could remove their masks and did not need to main- Chief Judge Nannette Jolivette Brown noted that the tain social distance. Of the 12 jurors and 2 alternates, court planned for the resumption of in-person trials for only 1 chose to wear a mask. Judge Milazzo also gave months prior to June. Chief Judge Brown explained that each juror an opportunity to privately express any Covid the court implemented CDC guidelines, which require concerns, and none worried about serving on the jury be- unvaccinated people to wear masks and maintain social cause of Covid or sitting in the jury box with the other distance but do not require vaccinated people to adhere jurors. to those restrictions; however, each judge sets their own rules and guidelines for what is required in their According to Judge , who held the first in- courtrooms and upon entering their chambers. Lawyers person civil jury trial, “It was great to welcome jurors should inquire with the particular section regarding their back to the courthouse and the selection and trial went Covid protocols in advance of attending any conference smoothly.” Judge Vitter allowed, but did not require, or proceeding. Unvaccinated people will still be required masks of fully vaccinated individuals. “Interestingly, to mask and social distance. less than half of the venire chose to remove their masks during voir dire, and of the 8 jurors chosen, 2 chose to In addition to following CDC protocols, the court has keep their masks on during the trial.” None of the venire added high quality air purifiers for use in both the court- asked to be excused for any Covid-related issues and room and the jury room. “Thanks to the commitment and there were no complaints by any of the jurors. Judge Vit- efforts of the clerk of court and jury unit, as well as the ter noted that, while our EDLA judges continued to work committee of judges led by Judge with Judge during the pandemic, the return of jurors should help re- Jane Milazzo and Judge Lance Africk, who put together solve those cases that have not been resolved between a plan that allows us to move forward with the business the parties or by motion, so “Counsel should continue to of the court while providing a safe and functional envi- be ready to move their cases forward!” ronment for all involved,” said Chief Judge Brown.

Attorney Conference Center - Your Office Away From Home The Attorney Conference Center is a collaborative effort of the Federal Bar Association, the Fifth Circuit Court of Appeals and the United States District Court for the Eastern District of Louisiana. Operated by the New Orleans Chapter of the Federal Bar Association, the Attorney Conference Center benefits attorneys doing business at the Court. The Center features a computer workroom with telephone, internet, copy, fax, and print services. There are three furnished and private Conference Rooms. The Lounge provides a quiet and comfortable place to work or relax. • Ideal for attorney-client consultations • Neutral site depositions • Mid-trial negotiations • Witness waiting rooms Reservations encouraged for conference rooms. Contact the New Orleans Chapter of the FBA by phone at (504) 589-7990 or by email, [email protected]. Federal Bar Association New Orleans Chapter 29th Annual Judge Alvin B. Rubin Symposium This is (Cyber) War: Why Cybersecurity is Critical to the Practice and Profession of Law

Please join the New Orleans Chapter of the Federal Bar Association for the 29th Annual Judge Alvin B. Rubin Symposium. We are thrilled to celebrate the 29th anniversary of this ethics and professionalism program, a living memorial to Judge Rubin’s contribution to federal jurisprudence and legal scholarship. The two-hour CLE includes one hour of ethics and one hour of professionalism. Panelists Jessica C. Engler (CIPP/US), Andrew R. Lee (CIPP/US), and Parker Smith (CIPP/US) will present as a hybrid live/virtual CLE on Wednesday, July 21, 2021 from 3:00-5:00 p.m. A panel exploration of ethics and professionalism in the context of cybersecurity and its critical role in the practice and profession of law, it will connect lessons from Judge Alvin Rubin’s life and career and relate them to the challenges of modern practice and maintaining an ethical and professional practice. The discussion and presentation will include evolving client expectations & focus and ABA Opinion 498 (regarding virtual practice). Panelists: Jessica C. Engler (CIPP/US) Andrew R. Lee (CIPP/US) Parker Smith (CIPP/US) Wednesday, July 21, 2021 3 pm – 5pm, choice of in-person OR Zoom, reception following in-person Two Hours of CLE (One hour of professionalism, one hour of ethics) Zoom OR Jones Walker, 201 St. Charles Ave, 51st Floor, New Orleans, LA 70170 To register, please contact the New Orleans Chapter at (504) 589-7990 or email [email protected]. Detailed infor- mation and online registration at http://nofba.org. Payment may be mailed to New Orleans Chapter of the Federal Bar Association, 500 Poydras Street, B-245, New Orleans, LA 70130. No refunds after July 20, 2021.

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Enclosed Fee: ______p FBA Members: $45 ___ in-person ____Zoom p Non-Members: $65 ___ in-person ____Zoom p Law Clerk, Public Interest, Government Attorney Rate: $25 ___ in-person ____Zoom

5 THE HONORABLE JERRY A. BROWN, U.S. BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF LOUISIANA BY: ERIN ARNOLD, KELLY HART PITRE, AND JOSEPH P. BRIGGETT, LUGENBUHL, WHEATON, PECK, RANKIN & HUBBARD The Honorable Jerry A. Brown, who served as a bankruptcy judge in the Eastern District of Louisiana for 28 years, passed away on June 2, 2021. Judge Brown was a steadfast supporter of the New Orleans Chapter of the Federal Bar Association, giving his time both as a member of the Board of Directors, as president of the Chapter from 1980-81, and later as a judge, hosting many sessions of the popular Lunch with the Court program, speaking at various CLE programs, and partici- pating in many of the Chapter’s other functions over the years. He was featured in the January/February 2020 issue of the Federal Lawyer, which is reprinted Honorable Jerry Brown, U.S. Bankruptcy Judge below. Judge Brown was a true gentleman who will be missed, and his service to Louisiana Eastern Bankruptcy Court, the Chapter over the years is deeply appreciated. 1992 - 2020

Judge Jerry A. Brown remarks that he was lucky in Brown went on to study at Murray State University. his legal career: lucky to have had the opportunity to In college, he continued debating for three years. He still study at Tulane Law School, lucky to have been selected laughs at his debate teammate who would often begin as a law clerk to legendary Judge John Minor Wisdom, his arguments by theatrically declaring that he had four and lucky to have been appointed as a bankruptcy judge. points, while holding up four fingers, ticking off three, But his story shows that he made his own luck. From his but then never seeming to make it to the fourth one. His upbringing in a small village in western Kentucky, he’s claim was that this held the judges’ attention. Something led a life guided by hard work, a deep appreciation for did, because Brown’s debate team at Murray State was the law, and a love of his chosen home of New Orleans. rated superior at various tournaments around the country. Early Years In college, Brown most enjoyed history and social sci- ence classes but was not particularly focused on the law. Brown was born in Crayne, Ky., in 1932. Crayne is a No one in his family was a lawyer or had any connection small village, at the time populated by 119 people. As a with the law, but as a small child he reportedly expressed child, the rigors of education did not agree with Brown. a desire to be a lawyer. In his economics class, he had an He was resistant to his grandmother’s home reading les- eccentric professor who pushed him to go to law school. sons, and she declared that there was no need to send him Brown considered going to law school at Washington to school. Nevertheless, at the age of almost 7, he started University in St. Louis or in New Or- his studies in Crayne’s two-room schoolhouse. leans, both of which had offered him scholarships. He Brown worked many jobs through his early years. His chose Tulane. One major influence in this decision was first job was at the counter in his family’s country gen- his radio, which picked up a clear channel from New Or- eral store. To give his mother and father a chance to eat leans, Leon Kelner’s jazz orchestra from the Roosevelt together, Brown was required to manage the store, which Hotel’s Blue Room. He knew that he wanted to go to the was located across the road from their house. In his teen source of that music. Although he acknowledges that St. years, he worked during his summers off from school. In Louis is a great city, he chose to go to Tulane based in the summer of 1949, he worked on an assembly line in a great part on the allure of New Orleans. Chevrolet factory in Detroit, producing gears and axles. Tulane University Law School In 1950 he worked on another assembly line at a Chrysler plant in Evansville, Ind. Brown served honorably in the U.S. Army. He attend- ed the Counterintelligence Corps school at Fort Holabird Back in Kentucky, Brown commuted to the city high in Baltimore and a German-language school in Berchtes- school in Marion. He would walk or hitchhike—any way gaden, Germany. Because of his service, however, he he could get to school. He played basketball and ran cross missed the first two weeks of his first-year law classes country for the one year the school had a track team. He at Tulane. Later, when he was mystified by a professor’s also honed his debate skills competing as a member of the high school debate team. cont’d on page 7 THE HONORABLE JERRY A. BROWN, U.S. BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF LOUISIANA (cont'd) BY: ERIN ARNOLD, KELLY HART PITRE, AND JOSEPH P. BRIGGETT, LUGENBUHL, WHEATON, PECK, RANKIN & HUBBARD lecture or a particular statement in class, he would turn After being Judge Wisdom’s law clerk, Brown knew to his classmates, wondering if there was a key point he that he wanted to one day be a judge. Brown learned had missed in those first two weeks. They assured him a lot from Judge Wisdom. He came to admire not only that he had missed nothing—no one in the first year of Judge Wisdom’s brilliant legal mind but also his com- Tulane Law School understood everything the amazing mitment to fairness and equal justice through the cases professor Mitch Franklin put out. Despite missing those he weighed in on, and the important decisions he au- first two weeks, Brown found academic success. Much thored during his career. to his surprise, Brown, with no legal background and a late start, was invited to join the Tulane Law Review. Career in Private Practice While at law school, Brown took another summer Upon entering private practice, Brown joined one of job, working at the now-defunct Jackson Brewery at New Orleans’ white-shoe law firms of the time, Monroe Jackson Square in the French Quarter. Jackson Brewery & Lemann. Early on, the duties of a new attorney at the was the largest brewery in the South at the time, known firm consisted of the “court run”—sending young law- for its trademark “Jax Beer.” The job paid well, and the yers to court to handle filings and appearances in a pot- pourri of cases. Brown became the right-hand man to the employees could drink as much beer as they wanted. They were even allowed to drink beer while on the job. then head of the firm, Malcolm L. Monroe. Unlike in to- He was not the only Tulane Law student who worked day’s legal practice, where specialization predominates, there during the summer, as it was a highly sought-after in that time a well-rounded civil lawyer was expected job; not very hard work and all the beer you wanted to to handle any and all court business, from successions drink (but you couldn’t take it home). to obtaining default judgments, trying cases and every other aspect of a civil practice. Influence of John Minor Wisdom Although not a specialist, Brown did work a great When Brown graduated from Tulane in 1959, Judge deal in corporate reorganizations, which were then gov- Wisdom had been on the bench as a judge only a short erned by Chapter X of the Bankruptcy Act, the predeces- time. Judge Wisdom’s first law clerk, Martin L.C. Feld- sor to the modern Chapter 11 framework. Coincidentally, man (now a district judge for the Eastern District of Lou- one of his most memorable cases was reorganization of isiana), was a Tulane Law graduate two years ahead of the same brewery he worked for as a law student, Jack- Judge Brown. Judge Wisdom selected Judge Brown as son Brewery. The company had fallen on hard financial his second law clerk, and Max Nathan Jr. was the third. times. Brown’s client, the American Can Company, had All were graduates of Tulane Law School, where Nathan acquired a strong position as a secured creditor that be- is now an adjunct professor of law. came owner of the stock of Jackson Brewery. American Can, as an absentee owner of the stock, wound down Brown’s law clerk duties included driving Judge the dwindling Jax business and oversaw the dissolution Wisdom from his Garden District home to the court in of what few assets remained. Much of the valued prop- the morning and sometimes driving him home in the erty of Jax had been transferred by its former owner for evening. They also spent 10 to 12 weeks of the year trav- inadequate consideration to certain preferred creditors eling the circuit. They would drive to and from the five of Jax. Multiple suits were involved, and all of it ended states then within the Fifth Circuit’s jurisdiction: Texas, up in two reported decisions from the Fifth Circuit, one Louisiana, Mississippi, Alabama, and Florida. of which was won by Brown’s client, American Can, Judge Wisdom was both a gifted legal scholar and and one which was lost. The Fifth Circuit opinion, In re a talented writer. As a boss, he was also a taskmaster Jackson Brewing Co.1, is still often cited in bankruptcy who always made corrections to Brown’s draft opinions. settlement disputes today it is one of the many decisions On one occasion, however, Brown had finally drafted appealed in the Jax matter, extolling the importance of an opinion that Judge Wisdom had approved with very settlements in bankruptcy. Brown laughingly remem- few changes. Judge Wisdom commented at the time that bers the Jackson Brewery case because it was so ironic Brown should be proud of his work, getting the opinion that he, who unloaded beer cases in the summer of 1958 published with so few changes. The losing litigant, how- while still a law student, became the ad hoc executive of ever, cast some doubt on his work by filing a scathing Jax Brewery when it was first in reorganization. (This motion for reconsideration that Brown still remembers. cont’d on page 8

7 THE HONORABLE JERRY A. BROWN, U.S. BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF LOUISIANA (cont'd) BY: ERIN ARNOLD, KELLY HART PITRE, AND JOSEPH P. BRIGGETT, LUGENBUHL, WHEATON, PECK, RANKIN & HUBBARD was because American Can, the owner of the stock, no Judge Brown has a few pet peeves. He believes in longer had a representative in the New Orleans area to the importance of open courts, and therefore, he gener- make day-to-day decisions as to what to do with its few ally does not lightly grant motions to seal pleadings or to remaining assets and the litigation.) keep settlements secret. He also lacks sympathy for those litigants where attorneys fail to cooperate with opposing Brown preferred trial work and often tried cases for counsel in formulating an acceptable pre-trial order, as those of his partners who were not accustomed to or did required by the court’s rules. Generally, he appreciates not particularly like to appear in court. He also gained a attorneys who come to court prepared. reputation for his work in major Chapter 11 bankruptcies. He worked on just about every major reorganization case Family in New Orleans during the 1970s and 1980s. Toward the end of his private practice, he moved to a boutique bank- Returning to the subject of luck, Judge Brown’s re- ruptcy firm, then known as Bronfin & Heller. He did not mark that he was lucky to have had the opportunity to stay there long, however. In 1992, he was appointed as study at Tulane has a greater significance. That was how a bankruptcy judge for the Eastern District of Louisiana. he, a young man from Kentucky, came to meet his wife, Florence, who was born and raised in Arizona. She had Service on the Bench been studying political science at Tulane (then New- comb College) and graduated before Brown enrolled in Judge Brown has now been serving as a bankrupt- the law school. They met while he was at Tulane Law cy judge for 27 years. At 87 years old, he is the oldest School and have now been married 59 years. They have among the federal judges of the Eastern District of Loui- three children and five grandchildren who have come to siana. In 2020, he will have completed the equivalent of see the proceedings in his courtroom first-hand. His son, two 14-year terms as bankruptcy judge, and he hopes to Scott, is a lawyer, and he is hopeful that one of his grand- live long enough to serve another few years. He com- children may pursue a legal career, too. ments jokingly that at 87 years of age he is “not buying any green bananas.” Judge Brown’s sincere appreciation for the practice of law truly stands out. He does not fall into the usual As a bankruptcy judge, he is cognizant of the changes trappings of cynicism about the legal profession, and in in jurisdiction of bankruptcy courts. Bankruptcy courts fact, staunchly rejects them. The undersigned authors of exercise nationwide jurisdiction. Bankruptcy court is this article, his career law clerk and former extern, are perhaps the part of the federal judiciary that most often of a younger generation where cynicism about the prac- affects ordinary Americans. There are certainly limita- tice of law unfortunately predominates. Those attitudes tions on the power of bankruptcy judges, most recently do not enter Judge Brown’s outlook. He relishes the in- highlighted by the Supreme Court in Stern v. Marshall tellectual challenges, the camaraderie, and the spirit of and its progeny. But these decisions have not greatly lim- honorable competition among opponents. It is this atti- ited the scope of cases before the bankruptcy courts as a tude—not luck—that has led to his great successes as a practical matter. Judge Brown observes that many cases lawyer and judge. once considered outside of the core bankruptcy jurisdic- tion can be tried by bankruptcy courts with the consent Endnote of the parties. 1 In re Jackson Brewing Co., 624 F.2d 599 (5th Cir. As far as his judicial philosophy, Judge Brown en- 1980). deavors to make predictable decisions and to follow the law. He is generally conservative but nevertheless gives Reprinted with permission from the January/Febru- special consideration to the rights of debtors in his court, ary 2020 issue of The Federal Lawyer. © 2020 Federal many of whom are honest and hard-working individu- Bar Association. All rights reserved. Further duplica- als who simply met unfortunate financial circumstances. tion without permission is prohibited, contact (571) 481- He believes that all litigants in his court, right or wrong, 9100 or [email protected]. deserve a fair chance to be heard. Therefore, he does not mind going to trial. He aims to give parties a prompt trial date (whether they like it or not). THE HONORABLE GREG GERARD GUIDRY U.S. DISTRICT JUDGE, EASTERN DISTRICT OF LOUISIANA BY: COLIN CAMBRE, PHELPS DUNBAR LLP

The Honorable Greg G. Guidry, U.S. District Court, Eastern District of Louisiana

Judge Greg Gerard Guidry was born and raised on After sitting for the requisite interviews, Judge the West Bank of New Orleans in Jefferson Parish. He Guidry was awarded the scholarship that relocated him to attended West Jefferson High School, where his father South Africa for a year, during which he studied classical served at various times as teacher, coach, and principal. civilization and Roman law at the University of Witwa- Judge Guidry completed his undergraduate degree in tersrand in Johannesburg, Republic of South Africa. The political science with a focus on classical civilization at associate attorney position that he had accepted to start Louisiana State University. He was the only one of his after law school (with Liskow and Lewis in New Or- parents’ three children who decided to pursue a legal ca- leans) was protected while Judge Guidry spent the year reer. Judge Guidry’s brother is a retired Army lieutenant speaking at rotary clubs throughout Africa. Needless to colonel, and his sister is a schoolteacher. say, the experience was amazing and impactful for him. Judge Guidry eloquently explained his inspiration Upon returning from Africa, Judge Guidry took up for attending law school: “You cannot have freedom or his position as an associate attorney in the commercial liberty without the rule of law, and you cannot have an litigation section at Liskow and Lewis. He recalled ordered society without the rule of law.” This belief has working with the benefit of many influential mentors been his guiding principle for the numerous roles he has who demonstrated great work ethic at Liskow and Lew- served since obtaining his law license. is, including Gene Lafitte, Bill Meyers, and John Wilson. Judge Guidry excelled in his law school class at Lou- Liskow and Lewis’s John Wilson graciously provid- isiana State University (LSU), where he was selected to ed the following regarding Judge Guidry: be part of the Law Review program and graduated with Order of the Coif honors. In law school, he discovered Greg came to our law firm in 1985 fresh out of the Foundation Grant Scholarship offered through the the LSU Law School, where he had one of the Baton Rouge Rotary Club. The scholarship provides top academic records. He worked in our general the recipient an opportunity to travel internationally and commercial litigation and oil & gas litigation serve as an ambassador for the mission behind rotary sections and did remarkably good work, espe- associations. The scholarship application process is in- cially for a newly-minted lawyer. Not only was volved and attracts many worthwhile applicants with re- he very smart, but he also had great analytical ward criteria focused on strong educational performance, ability and was very focused. public speaking skills, and high ethical standards. Judge After several years, Greg left us to become a Guidry learned of the program only one week before the prosecutor with the Attorney General’s office. I application deadline. Fortunately, Judge Guidry then remember saying at the time he left the firm that was serving as the research assistant for the late, great our loss was the state’s gain. I have stayed in LSU Law professor Saul Litvinoff, who generously al- touch with Judge Guidry from time to time and lowed Judge Guidry access to his office and staff in order have followed him as well through the excellent to complete the application package—a tall task on such a short deadline. cont’d on page 10 9 THE HONORABLE GREG GERARD GUIDRY, U.S. DISTRICT JUDGE, EASTERN DISTRICT OF LOUISIANA (CONT'D) BY: COLIN CAMBRE, PHELPS DUNBAR LLP opinions he has written at the various courts on Judge Guidry explained that his experience at the appel- which he has served. He has had a remarkable late level revealed to him that “it was very different to legal/judicial career, but that is not at all sur- be a ‘review’ level judge,” and he recalled the realization prising to me given the ability and character he as it related to the great weight and deference that should displayed from his very earliest years following be given to the district court judges’ decisions based on law school graduation and on through his pro- their unique position in observing witnesses and assess- fessional career. We can all expect that he will ing credibility. be a great federal district judge. In 2008, Judge Guidry was elected to the Louisiana After approximately four years with Liskow and Lew- Supreme Court, where he served the next 10 years. He is, Judge Guidry decided to pursue a career as a prosecu- had been re-elected to a second 10-year term with the tor in the U.S. Attorney’s Office in the Eastern District Louisiana Supreme Court when an Article III judge posi- of Louisiana. Then U.S Attorney John Volz encouraged tion opened in the Eastern District of Louisiana. Judge Judge Guidry first to get criminal experience outside of Guidry was enthusiastic about rejoining the federal sys- the complex federal prosecutorial system. So, Judge tem, where it feels particularly meaningful to be serving Guidry successfully obtained a position in the office of the people of the United States as a district court judge. Louisiana Attorney General William Guste, a mentor He received his judicial commission in June 2019. Obvi- whom Judge Guidry grew to admire greatly. ously Judge Guidry’s time on the federal bench has been greatly impacted by the coronavirus pandemic, including At the Attorney General’s office, Judge Guidry gained its effects on the litigation process for the cases on his extensive courtroom experience, including felony trials, docket. Judge Guidry had two cases go to trial before the and assisted in drafting legislation. After approximately pandemic, and he looks forward to hopefully returning a year and a half in the Attorney General’s office, Judge to some sense of normalcy in progressing his docket in Guidry accepted a position in the U.S. Attorney’s Office the near future. in the Eastern District, where he spent the next 10 years prosecuting crimes primarily involving public corrup- Judge Guidry greatly respects all participants in the tion and white-collar fraud. judicial system, and he stated that whatever path a young lawyer chooses can be worthwhile if that work is done In 2000, Judge Guidry ran for an open Jefferson Par- th well with a commitment to ethics and attention to de- ish District Court (24 J.D.C.) judicial position and won tail. Judge Guidry encourages young lawyers to seek out his first position on the bench. In deciding to seek out the appropriate mentors to find answers to the many ques- judgeship, Judge Guidry felt that it would provide him a tions that arise early in a legal career. Judge Guidry also unique opportunity to explore the legal system “from the other side.” Judge Guidry’s experience as a state court district judge has taught him that “the real judging takes place at the district court level where the public comes in… real people come to pres- ent their case.” Judge Guidry also noted that the sheer volume of the docket at the district court level distinguishes it from other judicial bench positions he subse- quently held. Judge Guidry was re-elected to a sec- ond term on the state district court bench, but a judgeship in the Fifth Circuit Court of Appeal for Louisiana opened, and Judge Guidry and FBA New Orleans Chapter members he ran unopposed for the seat in 2006. at a Lunch with the Court in January 2020. cont’d on page 11 THE HONORABLE GREG GERARD GUIDRY, U.S. DISTRICT JUDGE, EASTERN DISTRICT OF LOUISIANA (CONT'D) BY: COLIN CAMBRE, PHELPS DUNBAR LLP encourages all lawyers to remain responsive to clients, When Judge Guidry steps away from his obligations as well as the court, during and beyond the pandemic. on the bench, you will most likely find him riding and Judge Guidry mentioned on several occasions during showing western performance horses, a passion and hob- our interview that he has enjoyed every single one of his by of his since he was a young boy. In fact, Judge Guidry jobs, finding each to be rewarding in different ways. lives on a farm where he cares for a menagerie of animals. Finally, we would be remiss not to mention Judge Guidry’s most prideful accomplishments; namely, his 28 Reprinted with permission from years of marriage to Cathy, a retired emergency room the May/June 2021 issue of The nurse, and their two children. Judge Guidry’s 27-year- Federal Lawyer. © 2021 Fed- old daughter is currently serving as a law clerk with the eral Bar Association. All rights Louisiana Supreme Court, and his 21-year old son is en- reserved. Further duplication rolled in college and working as a firefighter in Mandev- without permission is prohibited, ille, a public service career that he began while in high contact (571) 481- 9100 or school. [email protected].

Judge Guidry with his American Quarter Horses.

LUNCH WITH THE COURT LUNCH WITH THE HON. SHELLY D. DICK BY: BRENDAN CURTIN, CURTIN CARTER LLC

Following a morning of jury selection, the Hon. Shelly D. Dick spent her lunch recess on May 24 in chambers hosting FBA members in a virtual Lunch with the Court. As Chief Judge for the Middle District of Louisiana, Chief Judge Dick had the arduous task of navigating a global pandemic that shut down courthouses across the country and catalyzed some of the fastest technological changes in our system of justice. The implementation of virtual proceedings allowed courts to reopen sooner than may have otherwise been safe, but, as the Chief Judge explained to an enchanted group of FBA members, this was not without its challenges. It was particularly evident with the Court’s criminal docket due to constitutional rights of the accused to confront their accusers and to speedy trials before juries of their peers. Assisted by new powers granted by the CARES Act, Chief Judge Dick worked closely with her judicial colleagues to weigh the different competing interests and issue district- wide orders to guide the bench and bar all in the face of wide-spread national uncertainty. Attendees thoroughly enjoyed hearing her behind-the-scenes look at the some of the administrative work involved into keeping our fed- eral courts operating, especially in the unprecedented cir- cumstances. The Chief Judge also spoke about what she learned since taking the bench and offered some helpful tips for young lawyers practicing in federal court. The YLD thanks Chief Judge Dick for making time, especially Chief Judge Shelly D. Dick, U.S. District Court for the Middle District of Louisiana, and May Lunch with the Court on the first day of a jury trial, to talk with the younger attendees engage through Zoom. members of the bar. 11 The New Orleans Chapter of the Federal Bar Association will host its Annual Meeting and Awards on Wednesday, August 25, 2021 online through Zoom. The meeting will begin at 2 p.m. There is no cost to participate, but reservations must be made on Eventbrite no later than August 24, 2021. Information on registration can be found at nofba.org. Please direct questions to Amanda Kaiser, Executive Director, at [email protected]. In accordance with the Chapter’s By-Laws, Hon. Donna Phillips Currault, our current President-Elect, will automatically succeed Steven F. Griffith, Jr., as President of our Chapter. Election of the remaining officers and directors will take place at the Annual Meeting. The Nominating Committee has nominated the following: Chapter Officers (2021-2022)

President: Hon. Donna Phillips Currault President-Elect: Michael J. Ecuyer Treasurer: Brian J. Capitelli Recording Secretary: José R. Cot Membership Chair: Lawrence J. Centola, III Immediate Past President: Steven F. Griffith, Jr. Younger Lawyers Representative: M. Palmer Lambert Ex Officio: Amanda Kaiser, Executive Director

Chapter Board of Directors (2021-2022)

William D. Aaron, Jr. Hon. Greg G. Guidry Hon. Phil Antis Alida C. Hainkel Stephen G.A. Myers Erin K. Arnold Stephen J. Haedicke Kim Ngan Nguyen Vanessa Beary Stephen J. Herman Hon. Michael North Sean P. Brady Sara A. Johnson William M. Ross Hon. Nannette Jolivette Brown Claude J. Kelly, III Elizabeth S. Sconzert Cory R. Cahn Kathryn M. Knight Karen Waters Shipman Christine M. Calogero Hon. Kelly McNeil Legier Scott L. Sternberg Colin B. Cambre Christopher K. LeMieux Diana Cole Surprenant Hon. Lyle W. Cayce Carey L. Menasco Kelly E. Theard Martha Y. Curtis Diana Mercer Hon. Janis van Meerveld Hon. Dana M. Douglas Hon. Carol L. Michel Hon. Wendy B. Vitter Kathleen C. Gasparian Hon. Jane Triche Milazzo Peter J. Wanek Hon. Tamia N. Gordon Stephen L. Miles Sharonda R. Williams Hon. Meredith S. Grabill Alysson L. Mills Due to COVID-19, the New Orleans Chapter of the Federal Bar Association will host its Annual Meeting and Awards via Zoom on Wednesday, August 25, 2021.

Robert L. Woodson, Sr. will serve as the keynote speaker. Founder and President of The Woodson Center, he founded the Center in 1981 to help residents of low-income neighborhoods address the problems of their communities. He is an early MacArthur "genius" awardee and the recipient of the 2008 Bradley Prize, the Presidential Citizens Award, and a 2008 Social Entrepreneurship Award from the Manhattan Institute.

Robert L. Woodson, Sr. Founder and President of The Woodson Center

The recipients of the 2021 President's, Professionalism, and Pro Bono Awards will be recognized during the Annual Meeting on August 25, 2021. More info on www.nofba.org.

S. Gene Fendler Eva J. Dossier Jee Park President's Award Jack Martzell Pro-Bono/Public Service Professionalism Award

13 YLD CHAIR'S MESSAGE BY: LAURA ASHLEY

As the Board year winds down, a heartfelt thank you is in order for the members of the YLD Board for all of their efforts this past year. They have worked hard to put on dozens of great events this year amid a global pandemic, an over-active hurricane season, and endless Zoom meetings. The YLD’s Lunch with the Court series finished this year with a virtual lunch with Chief Judge Shelly D. Dick, U.S. District Court for the Middle District of Louisiana whose unique perspective was greatly appreciated by the attendees. These meaningful lunches with the judiciary wouldn’t be possible without our hosts’ dedication to the program. The YLD also put on a fantastic CLE program, Love the One You’re With: Conversation with Inhouse Counsel on May 26, 2021 with panelists Andrea Mahady Price (Walmart), Brittany Salup (Chevron), and Kristopher Zinchiak (Chiquita Brands International, Inc.). Harrison Golden (Phelps Dunbar LLP) and Rosalie Haug (Chaffe McCall L.L.P.) moderated as panelists dis- cussed understanding inhouse clients’ schedules, workload, and communication best practices. On June 10, 2021, the YLD tried out a little Zen with Not Another Zoom Meeting! An Evening of Yoga, led by Brittany Wolf-Freedman, an attorney and yoga teacher in New Orleans area. The program started with vinyasa flow with an emphasis on move- ments to counterbalance the stress that working on a computer and at a desk has on the body. Finally, the YLD would like to welcome Chloé M. Chetta onto the YLD’s Executive Committee as Secretary and M. Rebecca Cooper onto the YLD’s Executive Committee as Treasurer. They are passionate and hard-working Board members, and we look forward to their contributions on the Executive Committee.

NEW MEMBERS The Federal Bar Association welcomes its new members:

Ms. Laura A. Alexander Ms. Ally Duplechain Ms. Brittany L. Reed Mahtook & LaFleur Flanagan Partners LLP United States Attorney’s Office for the Eastern District of Louisiana Ms. Gabrielle A. Ball Ms. Taylor L. Gamm Flanagan Partners LLP Barrasso Usdin Kupperman Freeman Ms. Etheldreda C. Smith & Sarver, L.L.C. Kuchler Polk Weiner LLC Mr. David Beck Loyola University New Orleans Ms. Tori Howze Ms. Lynda A. Tafaro School of Law McCranie Sistrunk Anzelmo Hardy Ms. Mary Bubbett Jackson McDaniel & Welch, LLC Mr. Rhakeem Brown Jackson+Jackson Southern University Law Center Mr. Ian Taylor Ms. Shannon M. Jaeckel Lewis, Kullman, Sterbcow & Abramson Ms. Sheri L. Corales Irwin Fritchie Urquhart & Moore, LLC Liskow & Lewis Mr. Lee Davis Williams Mr. Brian M. Klebba Loyola University New Orleans Mr. Mark A. Cunningham United States Attorney’s Office for the School of Law Jones Walker LLP Eastern District of Louisiana Mrs. Caitlin Zetzmann Ms. Arianna Elizabeth de Goede Zetzmann Law Firm Pipes | Miles | Beckman, 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

In March 2020, after the pandemic forced the closing of the courthouse and prevented in-person arguments, we quickly developed procedures permitting video oral arguments using Zoom. Subsequent hearings were either decided on briefs, conducted by Zoom, or postponed, until January 2021, when the court permitted a few panels to hold in-person hearings to assess the effectiveness of mitigation measures. This led to the court approving additional in-person hearings, even as the courthouse remained closed to the public. In July, however, improved conditions and widespread public vaccinations led the court to approve in-person arguments for all cases. Of course, individual panels were still authorized to use teleconferenced proceed- ings if necessary. The court reopened the John Minor Wisdom Courthouse and the Clerk’s Office, subject to only one restriction—individuals not fully vaccinated were required to wear a protective mask and practice safe social distancing. The court decided to retain for the present two COVID related procedural changes that were of great interest to attorneys. First, the court continued to suspend the requirement for the filing of paper copies of plead- ings. Parties need only provide copies of pleadings when directed to do so by the clerk. Second, the court determined to continue to live stream both live and virtual arguments, for the convenience of the public and attorneys, recognizing that COVID might still prevent some from attending in-person. We revised calendars on our website to provide better information regarding proceedings. Our new calen- dars provide limited information about the case type, and permit searches for past or upcoming hearings by case name or number and by the month or year of the hearing. Additionally, links in the note section at the bottom of each calendar page permit the public to listen to a live argument or visit the court’s recording page, if the argument was completed. An example of a typical calendar appears below:

cont’d on page 16

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

Finally, we are proud to announce the Fifth Circuit YouTube Channel (U.S. Court of Appeals for the Fifth Circuit - YouTube https://www.youtube.com/channel/UCzgzKXYsW9dC45Mqzu2yBxQ?app=desktop&for m=MY01SV&OCID=MY01SV) which includes recordings for all hearings held after January 1, 2021.

From the above landing page, selecting “Playlists” and then “View Full Playlist” permits sorting and for each case, displays the case name and number, the location of the hearing, whether the hearing was live or virtual, the judges on the panel, and the names of arguing attorneys, as depicted below:

cont’d on page 17 FIFTH CIRCUIT COURT OF APPEALS CLERK’S OFFICE UPDATE (cont'd) BY: LYLE CAYCE, CLERK

We found it necessary to disable several YouTube features as incompatible with a Judicial channel. For example, we do not permit users to comment on arguments. Similarly, while users can “like” or “dislike” the recording of the argument, YouTube does not aggregate and display that information as it does for other channels. Likes and dislikes are stored only in the user’s personal account. Eventually, users may prefer YouTube to the court’s website to listen to arguments because the channel has more robust search features, including easily doing a global search for a counsel’s name. Users can also alter the playback speed, listening at 1.5x or 2x the normal speed. Finally, most significantly, the YouTube chan- nel can provide closed captions of the recorded arguments, a feature not available on the court’s website. At present, the court is only uploading oral argument recordings, but the platform could expand in the future to include audio or video from oral history projects, tips for practitioners, lectures, or portions of Circuit Judicial Conference proceedings, to name only a few possibilities. While each of these developments were at least in part intended to provide greater public access during COVID-restricted operations, we anticipate they may become valuable permanent features of our opera- tions. As always, please share your comments or suggestions for improvement with our help desk at [email protected].

NOT ANOTHER ZOOM MEETING! AN EVENING OF YOGA BY: ALEX S. AUGHTRY, REASONOVER & BERG, LLC Having practiced in our new remote work settings for more than a year now, most FBA members have mastered the art of Zoom videoconferencing. Attorneys have had to learn how to use Zoom to conduct depositions, attend sta- tus conferences with the Court, and even present evidence at trial. But, we have to admit, all of this Zooming has got some of us tied up in knots. The Younger Lawyers Division recognizes that it has been a transformative—and sometimes stressful—year for most FBA members, and so, instead of trying to force another awkward remote happy hour into attorneys’ already overpacked schedules, the YLD set out with a new goal: to help our members add a little self-care into their workday. If attorneys can use Zoom for so many functionalities in their professional lives, why not leverage that same technology to help our members de-stress and regain some much-needed balance in their work-from-home life? Partnering with the Association for Women Attorneys, the YLD held its second remote yoga session by Zoom on June 1, 2021. The class was taught by Brittany Wolf-Freedman, an attorney at Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C. who also happens to be an accomplished yogi on the side. Brittany led attendees through a series of restorative yoga poses, focusing particularly on positions designed to loosen up all the tight muscles that tend to develop after a long day hunched over a keyboard drafting briefs and conducting legal research. Members were even provided with a playlist to accompany the session, letting attendees immerse themselves fully in the practice and forget about all the challenges awaiting them back at their desks. A little yoga can go a long way, and everyone left with decidedly less stress and a reminder that it takes balance and self-care to be our very best in the courtroom and beyond. Special thanks to the AWA for co-hosting, to Brittany for generously donating her skills and expertise, and to Brit- tany’s husband for watching their child for the hour, so attendees could have the benefit of Brittany’s full and undi- vided attention. 17 BANKRUPTCY COURTS DIFFER ON APPLICATION OF FORCE MAJEURE TO CORONAVIRUS RESTRICTIONS BY: MICAH ZENO, GORDON, ARATA, MONTGOMERY, BARNETT, McCOLLAM, DUPLANTIS & EAGAN, LLC

Please note a similar, but not identical article was published the court stated that to the extent there was a conflict be- by the Bankruptcy & Insolvency Litigation Committee of tween the two provisions in the lease, the specific “orders the ABA in November 2020 under the title “COVID-19 of government” provision preempted the general “lack of Restrictions and Implications for Debtors in the North- money” exception. “[A] lessee’s lack of money,” the court ern District of Illinois: Bankruptcy court relieves debtor observed, “could arise from any number of events . . . . By from post-petition rent, citing coronavirus restrictions.” contrast, the Debtor’s failure to pay post-petition rent is the That article is available online, https://www.americanbar. direct and proximate result, at least in part, of Governor org/groups/litigation/committees/bankruptcy-insolvency/ Pritzker’s executive order.” articles/2020/covid-19-restrictions-implications-debtors- northern-district-illinois/. Kass then suggested that Hitz could have paid its rent by applying for a loan from the Small Business Administra- A bankruptcy court recently excused a debtor-in-possession tion, and that Hitz’s failure to do so had worked to preclude from paying post-petition rent, after the debtor asserted the restaurant from exercising the force majeure clause. that Coronavirus restrictions prevented it from continuing The court summarily rejected this argument. “Nothing in normal operations. Meanwhile, another bankruptcy court that [force majeure] clause requires the party adversely af- rejected similar assertions and held that a debtor was not fected by government action or orders to borrow money to entitled to rent abatement under the terms of its leases. counteract their effects.” In re Hitz Restaurant Group, Bankruptcy Court for the Yet, in an astute application of business savvy, the court Northern District of Illinois observed that while the Governor’s order prohibited the restaurant from offering on-premises dining, Hitz was not In a matter pending before the Bankruptcy Court for the without alternatives. “[D]ebtor is not off the hook entire- Northern District of Illinois, creditor Kass Management ly. Governor Pritzker’s executive order did not prohibit Services filed a motion to force Hitz Restaurant Group to Debtor from performing carry-out, curbside, pick-up, and pay post-petition rent under Section 365(d)(3) of the Bank- delivery services. . . . It follows that, to the extent that ruptcy Code. In re Hitz Restaurant Group, 616 B.R. 374 Debtor could have continued to perform those services, its (N.D. Ill. 2020). Section 365(d)(3) requires a debtor to per- obligation to pay rent is not excused by the force majeure form its obligations under an unexpired lease of commer- clause.” (italics added). The court then reduced the restau- cial property arising after an order for relief. In this case, rant’s obligation to pay rent in proportion to its ability to Hitz Restaurant failed to pay its March 2020 rent, which generate revenue under the executive order. arose after its order for relief. The restaurant argued that its liability to pay post-petition rent had been excused by the On this issue, the court lamented that “[n]either party of- force majeure clause in its lease. The force majeure clause fered much assistance to the Court,” but that Hitz estimated provided that that the Governor’s order had rendered seventy-five percent of Hitz’s leased space unusable. Interpreting this estimate Landlord and Tenant shall each be excused from as a judicial admission, the court held that the restaurant performing its obligations or undertakings provid- owed “at least 25 percent of the rental payments.” The ed in this Lease, in the event, but only so long as court further noted that later required rent payments were the performance of any of its obligations are pre- likely to increase as the Governor gradually lifted Corona- vented or delayed, retarded or hindered by . . . or- virus restrictions. ders of government. . . . Lack of money shall not be grounds for Force Majeure. In re CEC Entertainment, Inc., Bankruptcy Court for the Southern District of Texas On March 16, 2020, Illinois Governor J. B. Pritzker issued an executive order suspending services of all businesses In contrast, in the Southern District of Texas, the Bankrupt- that offered “on-premises consumption” of food and bever- cy Court concluded that CEC Entertainment, Inc. was not ages. Hitz argued that the Governor’s order had triggered entitled to rent abatement under its leases in three differ- the force majeure clause in Hitz’s lease with Kass Man- ent states. In re CEC Entertainment, Inc., No. 20-33163, agement. While restricting certain on-premises activities, 33162, 33164, 33165, 33166, 33167, 33168, 33169, 33170, the order notably permitted and encouraged businesses to 33171, 33172, 33173, 33174, 33175, 33176, 33177, 33178, provide carry-out, drive-through, curbside, and at-home 2020 WL 7356380 (Bankr. S.D. Tex. Dec. 14, 2020). delivery services. In June 2020, CEC—better known as Chuck E. Cheese— Kass insisted that the restaurant’s failure to pay had re- filed for chapter 11 bankruptcy. Shortly thereafter, CEC sulted from a lack of money and did not constitute a force cont’d on page 19 majeure event under the lease. In rejecting this assertion, BANKRUPTCY COURTS DIFFER ON APPLICATION OF FORCE MAJEURE TO CORONAVIRUS RESTRICTIONS (cont'd) BY: MICAH ZENO, GORDON, ARATA, MONTGOMERY, BARNETT, McCOLLAM, DUPLANTIS & EAGAN, LLC moved the bankruptcy court for an order abating CEC’s other obligation due to the lack of money or inability to rent payments at six of its locations in North Carolina, raise capital or borrow for any purpose.” As a result, the Washington, and California that were closed or working court concluded that by the express language of the force under limited operations as a result of government restric- majeure clause it did not apply to CEC’s obligation to pay tions in response to the Coronavirus pandemic. rent. CEC offered its patrons a combination of gaming, enter- The two Washington leases had force majeure clauses simi- tainment, and dining, with 50% of its revenues from en- lar to that of the North Carolina lease—and included nearly tertainment and 30% from dining. CEC argued that pan- identical exclusions for the “inability to pay any sum of demic-driven restrictions had triggered the force majeure money” or the failure to perform “due to the lack of mon- clauses in its leases entitling CEC to relief from its rent ey.” One of the Washington leases specifically excluded obligations. Alternatively, CEC suggested that the purpose rent from the protections of its force majeure clause: “[T]he of the leases had been sufficiently frustrated such that CEC provisions of this [force majeure clause] shall not be appli- was excused from its obligation to timely pay rent. cable to Tenant’s obligation to pay, when due and payable, the rents, charges or other sums reserved hereunder . . . .” In North Carolina “mass gatherings” of more than ten Consequently, like in the North Carolina lease, the court people were prohibited, and entertainment facilities—in- concluded that the express language of the Washington cluding arcades and gaming establishments—were ordered leases precluded application of their force majeure clauses. closed. In Washington and California arcades were similar- ly prohibited. All three states permitted indoor dining—but Two of the California leases were similar to the North under reduced capacity; 60% in Washington, 50% in North Carolina and Washington leases, both in their definitions Carolina, and 25% in California. CEC determined not to of force majeure events and in their exceptions to the same. offer in-person dining, concluding that doing so without its In defining a force majeure event, one of the California gaming and entertainment operations would damage the leases specifically excluded financial obligations: 1 company’s brand. If either party hereto shall be delayed or prevented It was uncontested that no party foresaw the risks of a pan- from the performance of any act required hereun- demic at the time the leases were executed, and the court der by reason of acts of God . . . labor troubles, in- recognized that the Coronavirus pandemic had “severely ability to procure materials, restrictive governmen- impacted CEC’s ability to operate its venues.” “The gov- tal laws or regulations or other cause without fault ernment regulations have entirely prevented CEC from op- and beyond the control of the party obligat[ed] erating the arcade portion of its business,” the court stated. (financial inability excepted), performance of The court further acknowledged that “[t]he CEC venues such act shall be excused . . . . at issue have been limited to offering “take out” food ser- (bold added). Thus, the court concluded that the force ma- vices.” Yet, the court declined to grant CEC relief from jeure clauses in these leases were inapplicable. its lease obligations, holding that the express terms of the leases precluded any such remedy. The third California lease included an anti-force majeure clause expressly requiring the parties to perform despite an The force majeure clause of the North Carolina lease in- act of God or other uncontrollable event. cluded “act[s] of God” and “unusual governmental restric- tion.” North Carolina Executive Order No. 141 forbade The Lease and the obligations of either party here- gatherings of more than ten people and prohibited the op- under shall not be affected or impaired because eration of arcades and gaming establishments. The court either party is unable to fulfill any of its obligations found that the Order qualified as an unusual government hereunder or is delayed in doing so, if such in- restriction because it “significantly limits CEC’s ability to ability or delay is cause by reasons of strike, labor do business in a way that the parties did not foresee.” How- troubles, acts of God, or any other cause beyond ever, the force majeure provision had limited applicability: the reasonable control of either party. “This Section shall not apply to the inability to pay any sum of money due hereunder or the failure to perform any (italics added). The court found that this lease had no pro- vision that would entitle CEC to any form of rent abate- ment—regardless of whether a global pandemic constitut- 1 CEC’s Chief Financial Offer likened the scenario to “taking ed an “act of God” or a government restriction was a “cause your kids to the movie theater, buying them a big [box] of beyond the reasonable control of either party.” popcorn, setting them down in the seat and then not show[ing] the movie.” cont’d on page 20 19 BANKRUPTCY COURTS DIFFER ON APPLICATION OF FORCE MAJEURE TO CORONAVIRUS RESTRICTIONS (cont'd) BY: MICAH ZENO, GORDON, ARATA, MONTGOMERY, BARNETT, McCOLLAM, DUPLANTIS & EAGAN, LLC

CEC argued, in the alternative, that the doctrine of frus- doctrine of impossibility, that doctrine was only applicable tration of purpose should relieve CEC from its obligation when performance is “impracticable”—meaning perfor- to pay rent. The lessors insisted that under state law the mance “can only be done at an excessive and unreasonable force majeure and anti-force majeure provisions precluded cost.” (citing Mineral Park Land Co. v. Howard, 156 P.2d the application of frustration of purpose because the force 458, 460 (Cal. 1916)). In this case, nothing about the pan- majeure provisions specifically allocated this risk to CEC. demic or subsequent government regulations had increased The court agreed with the lessors. the cost of CEC’s rent. In North Carolina, the frustration of purpose doctrine ap- As to all of the leases at issue, in dicta the court suggested plies when a supervening event causes a failure of consid- that even if the leases’ force majeure clauses had not super- eration or “practically total destruction of the expected val- seded the doctrine of frustration of purpose, the doctrine ue of performance.” (citing S. Coll. St., LLC v. Charlotte would still not apply. The purpose of the leases had not Sch. of Law, LLC, 2018 WL 3830008, at *4 (N.C. Super. been totally frustrated—“only restricted.” “The principal Ct. Aug. 10, 2018); Sechrest v. Forest Furniture Co., 141 obstacle alleged by CEC is that it cannot operate a Chuck S.E.2d 292 (N.C. 1965)). Yet, where the parties contract E. Cheese restaurant at the venue[s].” The court observed as to the allocation of risk from the frustrating event, nei- that nothing in the leases precluded CEC from pursuing ther party may invoke the doctrine. (citing Brenner v. Little “other profitable alternative uses.” Red Sch. House, Ltd., 274 S.E.2d 209 (N.C. 1981)). CEC and its North Carolina lessor had specifically allocated the In Hitz the lease defined a force majeure event to include risk of unusual governmental regulation to CEC and deter- orders of government, but excluded a lack of money from mined that it would not relieve the lessee from its obliga- the protections of the force majeure clause. Despite Hitz’s tions. Additionally, CEC had retained its rights under the apparent lack of financial resources, the bankruptcy court lease for use after subsidence of the pandemic and associ- found that the specificity of the government order super- ated government restrictions. The court noted that “[t]his seded the vague lack of money exclusion, which in the suggests that CEC believes that any destruction of value is court’s opinion was not a proximate cause of Hitz’s failure limited to the period where the government regulations are to pay post-petition rent. The court further held that Hitz in effect. The destruction [of the expected value of perfor- had no obligation under the lease to mitigate its losses—or mance] is temporary, not total.” the losses of its lessor—by applying for a loan or seeking other third-party financing. Despite the “quite liberal application of the frustration doc- trine” in Washington (citation omitted), the court conclud- By contrast, under similar circumstances in CEC the court ed that the doctrine did not apply to the lease in that state. found no such exceptions to force majeure clauses identi- Like in North Carolina, in Washington “the doctrine of cal in substance to those in Hitz. While the court in CEC frustration does not apply if the contract between the par- readily acknowledged that government restrictions had ties disclosed an allocation of that risk to one party or the adversely affected CEC, the court concluded that the lack other.” (citing Scott v. Petett, 816 P.2d 1229, 1236 (Wash. of money exclusions in CEC’s leases precluded the debtor App. 1991)). Although the parties could not have foreseen from any force majeure relief of its obligations. Presum- a global pandemic or that it would prompt government ably, the court in CEC found no vagueness in these exclu- regulations affecting CEC, CEC and its North Carolina les- sions, but that these provisions had superseded the inclu- sor had “expressly recognized [in their lease] that govern- sion of government restrictions in the definition of a force ment regulations could delay or prevent contractual perfor- majeure event. mance” and had burdened CEC with that risk. Regardless, Interestingly, both courts acknowledged that their debt- the court observed that “payment of rent is excepted from ors could have pursued alternative uses under their leases. the force majeure clauses . . . .” While the Hitz court held that its debtor was not required to California law similarly recognizes that “if the parties have pursue certain alternatives (third-party financing), the court contracted with reference (to the frustrating event) or have employed other alternative uses (off-premises dining) as a contemplated the risks arising from it, they may not invoke basis to reduce the debtor’s rent obligation. Meanwhile, the doctrine of frustration to escape their obligations.” the court in CEC suggested that the existence of an alter- (citing Glenn R. Sewell Sheet Metal, Inc. v. Loverde, 451 native use was evidence that CEC was not entitled to rent P.2d 721, 727 (Cal. 1969)). Consequently, CEC could not abatement under the doctrine of frustration of purpose. escape its obligations under the California leases, includ- ing under the lease with an anti-force majeure clause. The court further noted that although California recognizes the THE AMENDED CODE OF PROFESSIONALISM CLE

Join the New Orleans Chapter of the FBA on Thursday, July 29, 2021 from 12:00-1:00 pm for a CLE presentation on the current status of the Code of Professionalism. Barry Grodsky, Taggart Morton, L.L.C., chaired the committee responsible for the revisions of the new code. He will discuss how and why it was amended and the current status of this code.

This CLE is free for all interested participants. This program will be held via Zoom. Details at nofba. org. Registration is required.

Request for Volunteer CLE Speakers

The FBA is seeking volunteers for CLE presenters. The Chapter holds CLEs and programs throughout the year to explore the latest legal developments while bringing together members of the bench and bar. Topics may include issues of federal jurisdiction and procedure, substantive practice areas or discovery issues across both criminal and civil law, and ethics, professionalism, or law practice management.

If you have an idea for a CLE or program, please email us at [email protected] and include a brief description of your CLE or program, any prepared materials (or a description of materials you plan to prepare), the names of your proposed volunteer presenters, and your scheduling availability to host the proposed event. The Chapter’s Board of Directors will review submissions on a rolling basis.

The Chapter adheres to a diversity and inclusion policy encouraging programs of two or three presenters to have at least one presenter reflecting diversity of race, ethnicity, gender, sexual orientation, or ability. Programs of four or five presenters should have at least two diverse presenters. Programs of six or seven presenters should have at least three diverse presenters. And with programs of eight or more presenters, at least half should be diverse.

21 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.

CONTRACT DISPUTE vessel deck after stepping on a ciga- predominantly for their employ- rette lighter near a stairway. Defen- er’s benefit; (2) whether the Parish Rouses v. Clapp dants denied liability, claiming that proved that there was an agreement plaintiff’s injuries were caused by with plaintiffs to exclude from their Rouses filed a claim against a former his failure to wear proper non-slip hours worked 6 hours in each 24- executive attempting to enforce a footwear in accordance with com- hour period for a bona fide regularly non-compete agreement that was en- pany policy. scheduled sleep period; (3) wheth- tered into prior to the executive’s em- er plaintiffs proved that the Parish ployment at Rouses. Rouses argued Trial resulted in a defense judgment. failed to pay them overtime when that the words “employer” and “em- they worked more than 40 hours in ployee” in the applicable statute, LA. Case No. 18-8941; Judge Jay C. a week; and (4) whether plaintiffs R.S. § 23:921, are merely descriptors Zainey (Non-jury trial held April 19- proved that the Parish knew that its and the statute doesn’t require an ac- 20, 2021) conduct violated the FLSA or showed tual employment relationship. reckless disregard as to whether its conduct violated the FLSA. The defense argued that the statute FAIR LABOR STANDARDS is clear, that public policy disfavors Trial resulted in a defense verdict. non-compete clauses, and that strict ACT – UNPAID OVERTIME adherence to the statute is required. Case No. 18-cv-7378; Judge Wendy They further argued that Rouses had Keith Babin, et al. v. Plaquemines Parish B. Vitter (Jury trial held June 7-10, the agreement signed when the ex- 2021) ecutive was only an applicant and Four Plaquemines Parish EMTs sued had not yet officially interviewed for the Parish for failure to pay overtime the position. Finally, Rouses failed to under the FLSA. Plaintiffs allegedly ADMIRALTY have the executive sign an enforce- regularly worked seven days on, sev- able agreement once the employ- en days off, or 168 hours per week, Archer Daniels Midland Company, ment began. while living in housing provided by et al. v. American Liberty, M/T Trial resulted in a defense judgment. the Parish, and were on-call during the entire seven-day period. Plain- On the evening of May 16, 2019, the Case No. 20-cv-2378, Judge Wendy tiffs were not paid overtime, but M/T AMERICAN LIBERTY, a fully B. Vitter (Non-jury trial held April were paid “straight overtime” for 132 laden oil tanker, lost control while at- 26, 2021) hours of work a week (18 hours per tempting to leave from a Marathon on-duty day with 6 hours of “down dock and turn downriver for transit time” for sleep and meals). to the Gulf of Mexico. During this top-around maneuver, the river cur- JONES ACT AND GENERAL The defendant claimed that plaintiffs rent forced the AMERICAN LIB- MARITIME are not entitled to overtime pay be- ERTY to allide with several moored cause the on-call hours were spent vessels, barges, and wharfs along Allen Taylor v. B&J Martin, Inc., et predominantly for plaintiffs’ own the left bank of the Lower Missis- al. benefit, and, that plaintiffs could use sippi River near Reserve, Louisiana. the time for their own purposes. At the time of the incident, two tugs Plaintiff Allen Taylor sought damag- were engaged to assist the vessel and es for back injuries sustained while The jury had to decide a number of a compulsory federal pilot was on serving as captain of a vessel. Plain- issues: (1) whether plaintiffs proved board. tiff allegedly slipped and fell on the that their on-call hours were spent cont’d on page 23 TRIALS AND TRIBULATIONS (cont'd)

As a result of the incident, several claims of gross negligence against United States or to remove property lawsuits were filed seeking to- re the pilot, determining that his actions to prevent seizure; Count 2 charged cover for property damage and per- or inactions were informed by the Defendants with conversion of prop- sonal injuries. The parties filed three crew’s failure to advise him of the erty by an employee or officer of the limitation proceedings and claims in vessel’s limitations and maneuvering United States; and Count 3 charged those proceedings, as well as in state characteristics and failure to prompt- defendants with removal of property court, all of which were consolidated ly execute orders. of another to prevent seizure. in this EDLA court. The court bifur- cated the consolidated case into two Case No. 19-10525; 19-10925; 19- The government contended that the phases: (1) liability, limitation, and 11813; 19-12748; Judge Eldon E. defendants converted property and allocation of fault and (2) damages. Fallon (Non-Jury trial held May 17- money seized by the DEA for their The instant trial constituted the first 24, 2021) personal use, including storing per- phase of the case. sonal property in their desks, remov- ing cash from wallets, and skimming The court found that the negligence off a portion of seized currency. The CRIMINAL of the AMERICAN LIBERTY’s government also contended that, af- crew was the proximate cause of the USA v. Chad Scott and Rodney Ge- ter another member of the DEA task allisions. The court further found mar force was arrested, the defendants the Vessel Owners had privity and removed those same items from their knowledge of this negligence, so the Defendant Chad Scott is a former desks and disposed of them in vari- court denied limitation of liability. DEA special agent, and defendant ous ways—including by throwing Rodney Gemar is a former DEA Task them into the swamp off I-10 in an The court granted the petitions for Force Officer and member of the effort to hide their crimes. exoneration from liability by the Hammond Police Department. They owners and/or operators of the assist After deliberating for almost 5 hours, were charged by Superseding In- tugs, the M/V JOSEPHINE ANNE the jury found Scott guilty of Counts dictment in May 2018 with multiple and the VERA BISSO, and the crane 1 and 2 and not guilty of Count 3. counts, three of which went to trial. barge, the DON D, whose crewmem- The jury found Gemar guilty on all At issue in this trial were Counts 8 bers alleged personal injuries. Ad- Counts. through 10, which the Court renum- ditionally, the Court found no fault bered as Counts 1 through 3. Count on the part of Marathon Petroleum Case No. 17-181; Judge Jane Triche 1 charged Defendants with conspira- Company – the time charterer of Milazzo (Jury trial held June 7-15, cy to convert the property of anoth- the vessel and owner of the depar- 2021) er by an employee or officer of the ture dock. The court also dismissed

23 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.

29th Annual Judge Alvin B. Rubin Symposium July 21, 2021

The Amended Code of Professionalism CLE July 29, 2021

Annual Meeting August 25, 2021

Morning at the Federal Courthouse September 1, 2021