Summer Edition 2018 Vol. 27, No. 4 MESSAGE FROM THE PRESIDENT BY: W. RALEY ALFORD III It is difficult to believe, but the-bench program to introduce our members to new we are in the home stretch Judges and Don R. Willett of the United of our 2017-2018 year. Our States Court of Appeals for the Fifth Circuit. We were Chapter has enjoyed a busy fortunate to have Judge Jacques L. Wiener, Jr., moderate and productive spring and the panel discussion with his new colleagues, and we early summer, hosting several hope that this program will be the first of many that focus successful CLE, social, and on developments at the Fifth Circuit. community-service programs. Judges Duncan and Willett are not the only new additions We could have taken a breather to the Fifth Circuit. In May, the after the popular Federal confirmed Judge Kurt D. Engelhardt to the Fifth Circuit Practice Series in March, but we pressed on with CLE to a seat vacated when Judge took opportunities of the highest quality throughout April senior status. Judges Engelhardt and Clement are both and May, beginning with our 26th Annual Judge Alvin past Presidents of our Chapter, and we are proud of their B. Rubin Symposium on April 19. This year’s program contributions to the federal judiciary and wish them well featured Judge Marsha S. Berzon of the United States as they continue to serve. Upon Judge Engelhardt’s Court of Appeals for the Ninth Circuit, and Stephen confirmation, Judge Nanette Jolivette Brown became P. Berzon, a former clerk to Judge Rubin. This year’s Chief Judge for the United States District Court, Eastern discussion, moderated by Chapter member Bill Ross, District of . Chief Judge Brown is a longtime explored case publicity, recusal, and civility in the member of our Chapter’s Board of Directors and will practice of law in the age of social media and “fake become our Chapter’s President-Elect in August. We are news.” The highlight of this year’s program was hearing likewise proud of Chief Judge Brown’s accomplishments from Judge Rubin himself via archival footage that Judge and look forward to working with her to strengthen the Berzon obtained from the . Many federal legal system in the Eastern District. thanks to Judge Stephen A. Higginson for his work in A busy CLE calendar did not detract from our efforts to organizing this year’s symposium. facilitate more informal interactions among our members Also in April, the Chapter presented a two-hour CLE and with the federal bench. In April, the Chapter’s focused on investigating and prosecuting art forgeries, Admiralty Law Committee sponsored a discussion of featuring Colette Loll, Founder and Director of Art Fraud current admiralty and maritime law topics led by U.S. Insights; Jacques Rodrigue, Executive Director of George Magistrate Judge Daniel Knowles, III, with attendees Rodrigue Foundation of the Arts; Tess Davis, Executive adjourning to a Wednesday at the Square concert in Director of the Antiquities Coalition; and Randy Deaton, Lafayette Square. In May, the Younger Lawyers Division FBI Special Agent with the FBI’s Rapid Deployment Art Crime Team. In May, the Chapter presented a meet- cont’d on page 2

Editorial Board: Peter Wanek, Colin Cambre, Larry Centola, Arthur Kraatz MESSAGE FROM THE PRESIDENT (CONT’D) hosted a snowball social on the plaza outside of the Hale . Those efforts culminated with mock oral Boggs Federal Building before another Wednesday arguments at the federal courthouse on May 14. The at the Square Concert. The popular Lunch with Court students came well prepared, and it was rewarding to program continued with an April lunch hosted by U.S. see the students apply what they had learned about the Bankruptcy Judge Elizabeth Magner and a June lunch Constitution, the courts, and the legal profession. hosted by Judge W. Eugene Davis of the Fifth Circuit. Finally, in June, the Chapter presented its first Justice Building on the popularity of those events, lunches with Camp. This was a major new initiative for this year. the Court are scheduled with Magistrate Judge Knowles The idea was to build on the YLD’s civics-education in July and with U.S. District Court Judge Jay C. Zainey programs to provide opportunities to high-school in September. And a Lawyers who Lunch event is students throughout the Eastern District of Louisiana scheduled at the National WWII Museum on July 26 at 12 to learn about the federal legal system. Twenty-six noon. Continuing the tradition of FBA members meeting students participated in the three-day camp, and, by any over lunch to hear about local, non-legal subjects, the measure, it was a great success. We have much more lunch will feature a guest speaker from the museum information about the camp in this edition of the The discussing the Legacies of World War II. Advocate. Many thanks to Camp Committee Chair Paul Sterbcow, YLD Chair Scott Sternberg, Chapter Executive While our CLE and social programs have remained Director Amanda Kaiser, and all of the judges, speakers, strong and vibrant, the Chapter should be particularly panelists, federal employees, and Chapter members who proud of the additional effort that we have put forth volunteered their time. It was a remarkable effort, and the recently in the areas of community outreach and students and their parents expressed their appreciation in civics education. On April 4, the Chapter’s and the glowing terms. Younger Lawyers Division’s Philanthropy Committees hosted a Career Day at Crescent Leadership Academy. Looking forward, we have an active schedule for the Students had the opportunity to meet with more than 20 remainder of the summer, including the YLD’s annual professionals from across the city—including lawyers, Morning at the Federal Courthouse program geared to medical professionals, engineers, law enforcement law students and younger lawyers, and timely CLEs on officers, journalists, arts professionals, educators, and a admiralty, immigration, and practice in the Louisiana meteorologist. The Chapter worked with the school’s federal district courts. Please continue to check our board of directors and the local business community Chapter’s website regularly for program updates. to plan the program and recruit participants, further On August 23, we will host our Annual Meeting and increasing awareness of the Chapter and its commitment Awards Luncheon at The InterContinental New Orleans. to the community. Small group sessions allowed the Dean Erwin Chemerinsky will serve as our keynote professionals to address concerns specific to individual speaker, and we are thankful to Judge Mary Ann students, and YLD members were on-hand to conduct Lemmon for helping us to secure such a distinguished mock interviews for juniors and seniors who are speaker. At the Annual Meeting, I will pass the gavel to already preparing for college or the workforce. The Kathryn Knight. Kathryn is an outstanding lawyer with students were attentive and engaged. Career Day was a generous spirit, and I look forward to seeing what our successful because of the generosity of our members Chapter will accomplish under her leadership. who volunteered their time and the leadership of Chapter members Omar Mason and Annie McBride. Thank you for the honor of serving as President of your Chapter. Because of the work and dedication of our In addition to the Career Day at Crescent Leadership members, we remain the largest, strongest, and most Academy, YLD volunteers provided programming innovative FBA Chapter in the country. throughout the year in civics education and landmark cases for students at the International High School of JACK C. BENJAMIN, SR. (1928- 2018) BY: PETER J. WANEK

On June 11, 2018, the New Orleans’ bar lost a gentle “giant” from its legal fraternity with the passing of Jack C. Benjamin, Sr. Jack was not only a devoted husband, father and grandfather, he was also a gentleman, scholar, community leader and renowned attorney. We sometimes hear the old adage about coaches being “a player’s coach.” Jack was a “lawyer’s lawyer.”

A native New Orleanian, he attended and Tulane University Law School on academic scholarships and remained active with his alma mater throughout his life. He understood the incredible gift he received with his scholarships to Tulane, and from that appreciation, always knew that he wanted to give back, not only to Tulane University, but also to his community. Throughout his life, Mr. Benjamin was mindful of his upbringing and extended his energies and efforts to better his community and those less fortunate members who were most vulnerable. He served on numerous alumni and advisory boards, including the Advisory Board of the Maritime Law Center, the Dean’s Advisory Board and as a leader of the Tulane Law School Inn of Court. He was President of the Visiting Nurses Association and served on the Board for nearly 40 years. He was instrumental in the formation of Court Appointed Special Advocates of New Orleans (CASA) and served on its Board for many years. He also was influential with the growth of Covenant House, where he was serving as a Board Member Emeritus at the time of his death. Mr. Benjamin received the Endowment Achievement Award from the Jewish Endowment Foundation and was a recipient of the Weiss Award from the New Orleans Council for Community and Justice (NOCCJ). During his two terms as President of the Metropolitan Crime Commission, a city-wide crime forum was held and televised during “prime time” by every major television station. He also was the first Jewish Chairperson of the Archbishop’s Community Appeal and was a recipient of the Benemerenti Medal awarded by Pope John Paul II.

After serving as an assistant U.S. Attorney for the Eastern District of Louisiana, he joined the firm now known as Gainsburgh, Benjamin, David, Meunier & Warshauer, LLC which is the only firm with which he has been affiliated for the past sixty years. He loved the law and enjoyed the comradery of the profession, with many of his closest friends being his professional adversaries. Mr. Benjamin was involved in numerous landmark decisions and argued before the U.S. Supreme Court. For his professional achievements, the legal profession bestowed upon Mr. Benjamin some of it highest honors, to include: the Distinguished Attorney award by the Louisiana Bar Foundation; the New Orleans’ Bar Association’s President’s Award, in addition to being the recipient of the Distinguished Maritime Lawyer award.

He was President of the New Orleans Bar Association and served on many committees and as member of the House of Delegates for the Louisiana State Bar Association.

One of Jack’s law partners, who spoke eloquently at the memorial service, Irving Warshauer, said of Jack:

“Jack Benjamin was a gentleman in every sense of the word and in all aspects of his life. He was held in the highest esteem by not just lawyers in this legal community but also by attorneys with whom he practiced throughout the country and by judges on all courts before whom he appeared. Our firm was a direct beneficiary of his stellar reputation. Although Jack was the consummate professional in every facet of his law practice, he always displayed a wonderful sense of humor and it was a joy to be around him. Jack truly enriched the lives of his Gainsburgh Benjamin family with his kindness, generosity, civility, wit and good nature.” cont’d on page 4 JACK C. BENJAMIN, SR. (1928- 2018) BY: PETER J. WANEK His law partner, Robert David, said of Jack:

“Jack Charles Benjamin was a partner and mentor—but more so, a friend. He was humorous—ever so quick witted. An elegant, giving man. Jack was cool. He will never be forgotten by my family.”

And his law partner, Gerald E. Meunier, summed Jack up this way:

“Jack Benjamin doubtless would have succeeded in any number of occupations, but his singular legacy as an attorney is that he modeled how to be an outstanding and formidable advocate for clients without ever compromising who he was by nature: a good and gracious man, a true gentleman. He was the kind of mentor and partner who made you want to be not just a better lawyer, but also a better person. There was no one like Jack. He’ll be sorely missed.”

A longtime friend, and former law partner, U.S. District Judge Eldon Fallon, said of Jack:

“Jack was the ballast of the firm’s ship. If we were ever in rough waters, Jack had a quiet way of calming everything down with his wise counsel. Jack always said- ‘Never cut what you can untie.’ Jack was a mentor to a lot of us and took me under his wing early on. I will never forget him.”

Jack was an asset to both the bar and the local community. His legacy of professionalism will live on, along with his many contributions to the city. Mr. Benjamin’s full obituary may be found at this following link- http://obits.nola.com/obituaries/nola/obituary.aspx?n=jack-c-benjamin&pid=189272813&fhid=2616

(Peter J. Wanek is a partner with the firm Wanek Kirsch Davies LLC in New Orleans. He is also a direct beneficiary of Mr. Benjamin’s legacy, as his good friend and law school classmate is Jack C. Benjamin, Jr.)

NEW MEMBERS The Federal Bar Association welcomes its new members:

Mr. Nicolas Bell Ms. Shannon S. Holtzman Loyola University New Orleans College of Law Liskow & Lewis Mr. James Denman Bercaw Mr. Patrick M. Jackson King & Jurgens LLC Loyola University New Orleans College of Law Ms. Melanie A. Bray Mr. Kevin Andrew Kujawa Advocacy Center Tulane University Law School Mr. Roland Vaughn Cimini Mrs. Jahida L. Lewis-Crawford Cimini & Associates, LLC Miguel A Elias APLC Ms. Mary K. Cryar Ms. Claire Renee Pitre CNA Kinney Ellinghausen & Deshazo Mr. Joseph H. Hart, IV Ms. Alana L. Riksheim Pugh Accardo Shields Mott LLP

If you would like to become a member of the FBA, or know someone who would like to become a member, please call Michael Ecuyer, Membership Chair, at (504) 522-2304, or Amanda Kaiser, Executive Director, at (504) 589-7990 for more information. THE ADVOCATE 5 , attorneys Matthew Reuter, Ross, Thornton & Alford, L.L.C. Thornton & Ross, Reuter, Judge Alvin B. Rubin Symposium with the Hon. Marsha S. Judge Circuit Court of Appeals. The Symposium this year Berzon, United States Court of Appeals, Ninth Circuit; Stephen Berzon, United States Court of New Orleans Chapter President Raley Alford at the 26th Annual Alford at the 26th New Orleans Chapter President Raley P. Berzon, Altshuler Berzon LLP; and William M. Ross, Stanley, M. Ross, Stanley, William Altshuler Berzon LLP; and Berzon, P. th RUBIN SYMPOSIUM RUBIN ADMIRALTY LAW SOCIAL - APRIL 25 Annual Rubin Symposium in honor of the late Judge Alvin Rubin who served as both as served who Rubin Alvin Judge late the of honor in Symposium Rubin Annual th

Changes in the Tide: Differing Views on Emerging Issues in Maritime Law on Emerging Views Differing Changes in the Tide:

all committee members to attend and invite non-members, also. evolving test for the determination of a maritime contract as well as other emerging issues. We encourage We issues. emerging other as well as contract maritime a of determination the for test evolving the FLSA the and FLSA the Jones Act, the possible expansion of products liability actions in and admiralty, the Moeller and Jessica Ibert will discuss their different takes on the possible consequences and implications and consequences possible the on takes different their discuss will Ibert Jessica and Moeller of emerging issues in This Maritime program law. will cover the different standards for Seaman under During The committee’s next event will be held on July 18 at noon, and attendees can obtain one hour of CLE. next event will be held on July 18 at noon, and attendees can obtain one hour of CLE. The committee’s Knowles for the time and effort he put into this event, which we thoroughly enjoyed. he put into this event, which Knowles for the time and effort and engaged in a robust discussion of questions and issues raised by those present. We thank Judge speaker, updated speaker, the group on recent appointments to the federal bench, recent maritime cases of note, discussion with Magistrate Judge Daniel Knowles III, followed by an informal gathering at Lafayette Square to enjoy the Wednesday evening concert on April 25. Judge Knowles, always an interesting At the most recent event of the Admiralty Committee, members and guests had a special treat: a Association, and Brian J. Capitelli. Steven Higginson, Raley Alford, President of President Alford, Raley Higginson, Steven the New Orleans Chapter of the Federal Bar Chief Judge Nannette Jolivette Brown, Judge Brown, Jolivette Nannette Judge Chief to plan the Rubin Symposium including Association would like to thank all of those members who devoted their time and work conflicts of interest arise. The Federal Bar for both the bench and bar when potential social media and “fake news”. Following this, Following news”. “fake and media social William Ross discussed ethical issues raised are as equally important today in the error of how the lessons and wisdom of Judge Rubin federal judges in their role on the bench. Judge Judge bench. the on role their in judges federal Berzon and her husband Steven discussed Judge Rubin filmed decades ago to assist new assist to ago decades filmed Rubin Judge at Judge Rubin through some videos that The participants were treated to a unique look unique a to treated were participants The local attorney William M. Ross, of Stanley, Reuter, Ross, Thornton Alford, LLC. Alford, Thornton Ross, Reuter, M. Ross, of Stanley, William local attorney featured the Honorable Marsha S. Berzon, United States Court of Appeals, Circuit and Steven P. Berzon, P. Steven and Circuit Appeals, of Court States United Berzon, S. Marsha Honorable the featured by moderated was panel The LLP. Berzon, Shuler with partner a now Rubin, Judge to clerk law former a United States District Judge and Judge on the 5 Association’s 26 Association’s On April 19, 2018 local practitioners gathered at the Eastern District courthouse for the Federal Bar Federal Bar Association New Orleans Chapter Federal District Courts in Louisiana: Differences and Practice Pointers

August 13, 2018 12 noon – 1 p.m.

U.S. District Court – EDLA 500 Poydras Street, New Orleans, Louisiana

Please join Judge Carl Barbier, U.S. District Court – EDLA, Chief Judge Brian A. Jackson, U.S. District Court – MDLA, and Magistrate Judge Joseph H. L. Perez-Montes, U.S. District Court – WDLA, for a discussion on the federal district courts in Louisiana. This one hour CLE will highlight the local rules attorneys should know and focus on the following topics:

• Scheduling orders • Motion Practice • Contact with the Court • Settlement Conferences • Use of Magistrate Judges • Trial Practices • Discovery • Criminal Matters This is a unique opportunity to explore the similarities and differences among the three district courts. A light lunch will be offered.

Registration Form

Federal District Courts in Louisiana CLE

Name:______

Firm/Organization:______

Telephone:______Email:______o FBA Member $35 o Non-Member $50 o Government or Public Service Attorney/Law Student $20

Please remit payment to: Federal Bar Association, New Orleans Chapter, 500 Poydras Street, Room B-245, New Orleans, LA 70130. To register online, please go to http://nofba.org. For additional information, email [email protected] or by calling 504-589-7990. Cancellations must be received in writing two days prior to the CLE. THE ADVOCATE 7

We strongly We en G t ex N

o t

ion t After the transition, any attorney who has not ransi T In addition, of course, our help desk staff is available BY: TOM PLUNKETT, CHIEF DEPUTYTOM PLUNKETT, CLERK BY: FIFTH CIRCUIT COURTAPPEALS OF CIRCUIT FIFTH UPDATE OFFICE CLERK’S PACER Service Center at PACER 800-676-6856. to assist, as necessary. If anyone has questions about the upgrade process, we recommend Asked review Questions of for the NextGen Frequently CM/ECF at https://www.pacer.gov/psc/faq.html or contact the already done so will be required to upgrade and link the accounts before being able to access our access to able being before accounts the link and upgrade to required be will so done already filing system. will continue and to CM/ECF have separate and logins must for continue to PACER use current that notice provide we until true be will That Circuit. Fifth the in electronically file to credentials we have completed the conversion to NextGen. For the short time remaining before the transition to NextGen, all attorneys (including those with those (including attorneys all NextGen, to transition the before remaining time short the For upgraded accounts) PACER will continue to log in to our CM/ECF as you do now. Attorneys it shows “Upgraded the attorney PACER should Account”, click no the further “Upgrade” link action and is begin required. the simple upgrade Otherwise, process. To To do this, the attorney My should go Account” to screen, the PACER the website and attorney log in. will At see the the “Manage “Account Type” field displayed. If reset feature. An attorney does not need to upgrade a PACER account if he has already upgraded already has he if account PACER a upgrade to need not does attorney An feature. reset August 10, 2014. Otherwise, account after for another NextGen court, or he created the PACER the attorney must upgrade the account. as convenient and avoid waiting until the court is live on NextGen. The benefitspassword ofand retrieval login self-service upgrading a and features security new include account PACER the To To be able to use NextGen, electronic filers will need tolink undertaketheir accounts. twoFirst, an stepsattorney must update to their account. existing upgrade PACER and encourage all attorneys that file documents in the Fifth Circuit to upgrade theiraccount as soon filing system, thereby permitting attorneys to use a “single-sign-on,” simplifying accountpassword management. and even prevented some attorneys from court’s a to linked e-filing is account PACER pleadings. attorney’s an Second, NextGen difficulties. these willeliminating thereby not applets, use JAVA system relies upon JAVA applets to complete certain steps function, during the filing Asapplet process. hackers system relies upon JAVA JAVA limit frequently updates security browser internet applets, JAVA exploit can to minimize risk of compromised systems. The security updates have significantly delayed or necessary steps before we transition, to ensure they will be able to timely file in the new system. will be able to timely file in we transition, to ensure they necessary steps before There are two significant benefits attorneys to the new system. First, our current CM/ECF filing Electronic Case Filers (ECF) explaining the transition and what is required. We also have posted have also We required. is what and transition the explaining (ECF) Filers Case Electronic on our website detailed step-by-step instructions. We strongly recommend filerscomplete the for attorneys practicing in our court, but will require attorneys to upgrade and link their existing account to the new system. will We provide timely notice and training for members of the bar as we transition to the new filing software.We intend to forward an email notice to all active The U.S. Court of Appeals for the Fifth Circuit is making final preparations to convert to NextGen, to convert to preparations final making is Circuit Fifth the for Appeals of Court U.S. The improvements significant several provide will NextGen CM/ECF. appellate of version updated an

Annual Meeting and Awards Luncheon Thursday, August 23, 2018 11 am Cocktail Reception ~ 12 Noon Luncheon The InterContinental New Orleans Keynote Speaker: Dean Erwin Chemerinsky

Erwin Chemerinsky became the 13th Dean of Berkeley Law on July 1, 2017, when he joined the faculty as the Jesse H. Choper Distinguished Professor of Law.

Prior to assuming this position, from 2008-2017, he was the founding Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, at University of California, Irvine School of Law, with a joint appointment in Political Science. Before that he was the Alston and Bird Professor of Law and Political Science at Duke University from 2004-2008, and from 1983-2004 was a professor at the University of Southern California Law School, including as the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science. He also has taught at DePaul College of Law and UCLA Law School. He teaches Constitutional Law, First Amendment Law, Federal Courts, Criminal Procedure, and Appellate Litigation.

He is the author of ten books, including The Case Against the Supreme Court, published by Viking in 2014, and two books published by Yale University Press in 2017, Closing the Courthouse Doors: How Your Constitutional Rights Became Unenforceable and Free Speech on Campus (with Howard Gillman). He also is the author of more than 200 law review articles. He writes a weekly column for the Sacramento Bee, monthly columns for the ABA Journal and the Daily Journal, and frequent op-eds in newspapers across the country. He frequently argues appellate cases, including in the United States Supreme Court.

In 2016, he was named a fellow of the American Academy of Arts and Sciences. In January 2017, National Jurist magazine again named Dean Chemerinsky as the most influential person in legal education in the United States.

R.S.V.P. BY AUGUST 13, 2018 ANNUAL MEETING RESERVATION FORM

INDIVIDUAL/FIRM NAME: ______

ADDRESS: ______

PHONE NUMBER: ______EMAIL ADDRESS: ______

INDIVIDUAL TICKET(S) ($60/PERSON): ______TABLE(S) ($600/RESERVED TABLE OF 10): ______(Please include names of attendees on separate paper. Final table and seating location will be determined by the date of payment. Open seating for individuals. Reserved tables will be identified with the name of the firm or organization.) AMOUNT ENCLOSED: ______

VISIT WWW.NOFBA.ORG FOR MORE INFORMATION.

Please return Annual Meeting Reservation Form to the New Orleans Chapter of the Federal Bar Association, 500 Poydras Street, Rm. B-245, New Orleans, Louisiana 70130. All cancellations must be received in writing by August 13, 2018. For additional information, please contact Amanda Kaiser by phone at (504) 589-7990 or by email at [email protected]. THE ADVOCATE 9

Hon. Karen Wells Roby Wells Hon. Karen Bradley J. Schlotterer Diana Surprenant Hon. Janis van Meerveld Wanek Peter J. Hon. Susie Morgan Stephen G.A. Myers Hon. Michael North Andrea M. Price Kelly Rabalais , our current President-Elect, will Kathryn M. Knight Hon. Nannette Jolivette Brown Griffith, Jr. Steven F. Michael J. Ecuyer Donna Phillips Currault Alford, III Raley W. A. Johnson Sara Director Executive Amanda Kaiser, Blevins, Clerk of Court, EDL William Hon...... Kathryn M. Knight , as President of our Chapter. Election of the remaining AUGUST 2018 23, Omar K. Mason Diana Mercer Milazzo Triche Hon. Jane Harold J. Flanagan Kathleen C. Gasparian Lezlie Griffin Alida C. Hainkel Lesli D. Harris Stephen Herman III Claude J. Kelly, Lemmon Vial Ann Hon. Mary Amy S. Malish President: Treasurer: Ex Officio: Chapter Officers (2018-2019) Chapter President-Elect: Chapter Board of Directors (2018-2019) Board of Directors Chapter Membership Chair: Recording Secretary: W. Raley Alford, III Raley W. Immediate Past President: , or regular mail at the Federal Bar Association, 500 Poydras Street, Rm. B-245, New B-245, Rm. Street, Poydras 500 Association, Bar Federal the at mail regular or , Younger Lawyers Representative: Younger

NOTICE AND DIRECTORS OF OFFICERS ELECTION AND MEETING ANNUAL OF

Jennifer L. Englander Joelle Flannigan Evans Tiffany Delery Davis Tiffany Megan Dupuy Lawrence J. Centola, III José R. Cot Brian J. Capitelli Cayce W. Hon. Lyle John Balhoff, II John Balhoff, Hon. Carl J. Barbier Colin B. Cambre Erin K. Arnold Erin K.

officers and directors will take place at the Annual Meeting. The Nominating Committee has nominated has Committee Nominating The Meeting. Annual the at place take will directors and officers the following: automatically succeed In accordance with the Chapter’s By-Laws, Orleans, Louisiana 70130. Orleans, Louisiana Please direct registrations to Amanda Kaiser, Executive Director, by fax at (504) 589-7995, by email at Executive Director, Amanda Kaiser, Please direct registrations to [email protected] there is limited seating and reservations will be accepted on a Tablefirst-come seating basis. locations 2018. 13, August than later no made be should Reservations payment. of date the by determined be will for $600 per table. There will be open seating for those who are attending individually. Please note that note Please individually. attending are who those for seating open be will There table. per $600 for The cost to attend the luncheon is $60 per person. Reserved tables, seating ten people, may be reserved be may people, ten seating tables, Reserved person. per $60 is luncheon the attend to cost The Dean Erwin Chemerinsky. Dean Erwin Chemerinsky. Luncheon Luncheon August on Thursday, 23, 2018, at The InterContinental New Orleans. A cocktail reception be will speaker keynote and guest honored Our noon. at follow to luncheon a with a.m., 11 at begin will The New Orleans Chapter of the Federal Bar Association will host its Annual Meeting and Awards LUNCH WITH THE COURT The Honorable Elizabeth W. Magner hosted the Younger Lawyer’s Division Lunch with the Court on Wednesday, April 18, 2018. In addition to sharing her advice on how to be a successful written and oral advocate, Judge Magner discussed how to develop qualities that demonstrate the highest level of civility and professionalism. The YLD greatly appreciated Judge Magner’s time and in particular her decision to stay late and answer additional questions from attendees.

Judge Elizabeth W. Magner, United States Bankruptcy Judge for the Eastern District of Louisiana, is pictured with the April 18th Lunch with Court attendees.

The Honorable Eugene Davis of the U.S. Fifth Circuit Court of Appeals hosted the Younger Lawyer’s Division Lunch with the Court on Wednesday, June 13, 2018. Judge Davis discussed how practitioners can improve their written and oral advocacy, as well as how appellate advocacy differs from skills needed at the district court level. He further noted that few district court decisions are reversed on appeal, so advocates for appellants should be very strategic in how they argue in reply briefs. A great reply brief, Judge Davis observed, could be the key that wins the appeal.

Judge W. Eugene Davis, United States Court of Appeals for the Fifth Circuit, is pictured with the June 13th Lunch with Court attendees. THE ADVOCATE 11 Miranda cont’d on page 12 and Gideon v. Wainright Gideon v. . The second day featured engaging The third and final day opened with an interactive presentation on the First Amendment with Meerveld, Judge van Janis Judge and Milazzo Triche Jane in the of which Court Supreme the by students made decisions difficult considered and questioned United States regarding free speech. At lunchtime Dean Madeleine Landrieu of Loyola Law School met with students and emphasized the importance and practicality of a degree in even law, for those who have no intention of becoming an attorney. The camp concluded with a mock trial focused Polite on the importance of the federal law and of the rule of law in general. From Constitution in there, students split into smaller they discussed groups, the latest lecture where with one another and with volunteers from Fordham, Loyola, LSU, and Tulane law schools. Later that day, U.S. Deputy Marshal Milton campers to the exciting and action-packed life of a Ramirez introduced the U.S. Marshal, while a group of attorneys explored landmark through Amendments Sixth and Fifth the cases like Arizona v. speakers from the FBI and the Juror Carl Judge included that discussion panel a as well Project, as oral heard Students Roby. Karen Judge and Barbier They courtroom. Brown’s Judge Chief in argument continued their study of federal court with a tour of the Fifth Circuit Appeals Court and of met with Judge Stephen Higginson. JUSTICE CAMP

Chief Judge Nannette Jolivette Brown welcomes the students on the first day of Justice Camp. Chief Judge Nannette Jolivette Brown welcomes the students on the first day

presentation from former U.S. Attorney Kenneth Kenneth Attorney U.S. former from presentation Brown welcomed the campers in her opening remarks, which were followed by an excellent On the Chieffirst Judge day, Nannette Jolivette and the limits of certain rights and freedoms. and the limits of certain rights and to answer challenging questions about the law explore different legal career explore paths, different and attempt courthouse each morning ready to listen to guest to listen to ready morning each courthouse volunteers, school law alongside work lecturers, enrolled in the camp and arrived at the federal six students from twelve different schools session. The response exceeded the Chapter’s expectations for the inaugural event. Twenty- sophomores to participate in the three-day of Louisiana, encouraging freshmen and Earlier in the year, the FBA contacted schools in the thirteen parishes of the Eastern District President of the Chapter. Chapter. President of the we achieved those goals,” stated Raley Alford, the many contributors to our program, I think and to develop basic advocacy skills in a fun, interesting, and interactive format. Thanks to system, including careers within that system, to encourage students to learn about the legal aspects of the legal was designed system. to supplement “Justice civics education, Camp to introduce local high schoolers to different Justice Camp, an academic program designed The New Orleans Chapter of the Federal Bar Association recently hosted its inaugural JUSTICE CAMP (cont'd) on the right to free speech at a public high school. The particular case questioned, among other things, whether or not a violation of the school uniform policy constituted free speech and whether or not it was within the school’s right to punish such action. After a brief period of deliberation, the campers, who comprised the jury, reached a well-reasoned verdict and shared their decision with acting judge Paul Sterbcow. The students left Justice Camp with a deeper understanding and appreciation of the federal system. One student commented that he “gained more knowledge about the law, and my view about Alysson Mills leads a small group discussion session. it has changed.” The impact of the camp was not limited to the students. Many of the volunteers noted the satisfaction of facilitating such a program. “This camp provided a platform through which local high school students got a glimpse into our legal community. Even better, it centered around issues that directly impact their daily lives. It was so rewarding to facilitate a discussion with the students and watch them get excited over legal issues that affect them,” remarked volunteer Brittany Wolf. The New Orleans Chapter of the Federal Bar Association is thrilled with the success of the camp and would like to thank everyone involved. Special thanks to Paul Sterbcow, Scott Sternberg, Amanda Kaiser, Raley Alford, and Diana Mercer for their extensive work planning and Students participate in an interactive session implementing the first year of this program. led by Judges Milazzo and van Meerveld.

Students from 12 schools in the Eastern District of Louisiana are pictured on the final day of the 2018 Justice Camp with the camp director, law school students, and Board members. JUSTICE CAMP (cont'd)

To see more Justice Camp photos, please visit http://nofba.org/resources/justice-camp/ THE ADVOCATE 14

BY: SCOTT L. STERNBERG SCOTT BY: YLD CHAIR'S MESSAGE CHAIR'S YLD

YLD Chair will be over—and for me, that means no more “Chair’s Messages” way less meetings. more importantly, and, perhaps successes the rehashing time much too spend won’t I year—but good a been It’s and failures of our extremely active Younger Lawyers Division. You’ve seen them in the pages of The Advocate. Instead, I’ll tell you my single takeaway future. the helm: we have a bright, bright from my year at Going away columns, graduation speeches and retirement speeches are one of those things that I have August, really my never term been as a FBA- fan of. In

Friends, I have seen the future, and it is bright. Best of luck to us all—catch you on the flip side. Friends, I have seen the future, and it is bright. Best of luck to us of Directors, for always being up for what’s next. of Directors, for always being up for what’s host numerous events at the Courthouse, and supported the FBA in so many ways. Thank you to Amanda to you Thank ways. many so in FBA the supported and Courthouse, the at events numerous host Board YLD fantastic our to you thank all, of most And, FBA. the of stewardship resolute your for Kaiser crazy after all, and for involving me in the process. Thank you to our Eastern District Judges who let us Thank you to Paul Sterbcow for leading crazy Raley’s Justice Camp idea and showing it wasn’t all that Finally, I’ll close with some thanks. I’ve already mentioned Annie McBride—but her work is truly without truly is work her McBride—but Annie mentioned already I’ve thanks. some with close I’ll Finally, President. hard-charging a being for Alford Raley to you Thank efforts. her of proud am I and comparison also partnered with the law schools to provide mentorship and guidance opportunities for law students. also partnered with the law schools to provide mentorship and guidance School has been led by the incomparable Annie McBride – and Annie has taken it to new heights. I would I heights. new to it taken has Annie and – McBride Annie incomparable the by led been has School encourage you to Annie join and be involved in this program next year: it is worth your have time. We on this year. The FBA YLD’s conflicts resolutionYLD’s and landmark The on casesFBA this programyear. at the International High The Justice Camp was a culmination of a number of education events and programing we have focused for almost an hour and they got the right answer: with minimal coaching required. for almost an hour and they got the critically. Led by volunteer law students from Tulane, LSU, Loyola and Fordham, the campers deliberated campers the Fordham, and Loyola LSU, Tulane, from students law volunteer by Led critically. And guess who won? Reason. The kids got it exactly right and came back with a split verdict—almost unanimously (there were a few heartstrings holdouts). They learned and applied the law and applied it

by yours truly, had the “heartstrings” and better facts. had the “heartstrings” and better by yours truly, jury on a particularly complex student speech question. The problem was deliberately written to produce to written deliberately was problem The question. speech student complex particularly a on jury argued sheepishly side, other the law, the had Mills, Alysson by argued artfully side, verdict—one split a important, the Justice Camp culminated in a mock trial that required the 26 kids to sit and deliberate as a as deliberate and sit to kids 26 the required that trial mock a in culminated Camp Justice the important, and many other aspects that they would never have encountered in high school civics. But perhaps most The kids learned about criminal procedure, the anatomy of a civil trial, the First and Fourth Amendments, Amendments, Fourth and First the trial, civil a of anatomy the procedure, criminal about learned kids The I think we’re all going to be OK. After spending the better part of three days with high school kids for the Justice Camp, I have to say that say to have I Camp, Justice the for kids school high with days three of part better the spending After their future. the most important thing we can do is educate our children on how to make informed decisions about system and to become better citizens. In this hyper-partisan environment, no matter your leanings, I think think I leanings, your matter no environment, hyper-partisan this In citizens. better become to and system Just a few weeks ago we first completed Justicethe An Camp. FBA’s initiative of our President, Raley Alford, the camp brought together 26 high schoolers from the Eastern District to learn about our justice MOOT COURT

The YLD brought the International High School Eric Foley, the of New Orleans (IHSNO) civics students into Hon. Jane Triche Milazzo, the federal courthouse for a Moot Court on May Jonathan Trunnell, 14, where students had the opportunity to argue Amanda Kaiser, Rebecca Coman and in front of real federal judges. The time spent at Raley Alford with the courthouse was the culmination of the YLD IHSNO students. Philanthropy Committee’s Landmark Cases program, an academic year devoted to educating young people in the community about constitutional rights and federal law, career opportunities in the federal system, and the skills required to fully engage as active citizens. Sophomores from Cody Bourque’s IHSNO civics class came to the EDLA and did mock oral arguments on a school Eric Foley, search issue. Volunteer Judges included Judge Annie McBride, van Meerveld, Judge Milazzo, Raley Alford, and Margot Want, the Parker Smith. Thanks to the volunteer Judges for Hon. Janis van Meerveld, devoting their time and energy to this project, to the Rebecca Coman and Jake Wexiler YLD Philanthropy Committee for its commitment are pictured with to the Landmark Cases program throughout the IHSNO civics teacher school year, Amanda Kaiser for her constant Cody Bourque and support of the Committee’s endeavors, and Annie his students. McBride for her devoted leadership.

MEET THE BENCH WITH FIFTH CIRCUIT JUDGES WIENER, DUNCAN, AND WILLETT On Tuesday, May 15th, over 50 members of the New Orleans Chapter attended the Meet the Bench Program with the Honorable Jacques L. Wiener Jr. (Senior Judge, U.S. Fifth Circuit) leading the get-to-know-you session with two of the newest Fifth Circuit Judges, the Honorable Don R. Willett of Texas and the Honorable Kyle L. Duncan of Louisiana. Attendees earned an hour of Professionalism CLE credit for attending the program. During the one-hour session, the judges discussed a variety of topics, from their childhood and legal education to some of the most significant matters that they handled before joining the Fifth Circuit. The audience, which included judges from the Fifth Circuit and the Eastern District of Louisiana, a former U.S. Senator, corporate General Counsel, and attorneys in private practice, listened to the judges discuss the importance of civics education in America, memorable lessons from their experience as federal law clerks at the Fifth Circuit (Judge Willett clerked for Fifth Circuit Judge Jerre Williams and Judge Duncan clerked for Fifth Circuit Judge John Duhé), and significant matters from their own practice. This interactive program offered the audience the chance to ask the judges questions on a range of topics, starting with questions about recent attacks on the judiciary to Judge , Donna Currault, Judge Kyle Duncan recommendations on brief-writing and oral advocacy. A and Raley Alford small reception followed the program. THE ADVOCATE 16

some of the

Rm. C-467 Rm. C-501 Annual Meeting Hon. Jay C. Zainey 444 St. Charles Avenue Avenue 444 St. Charles August 13, 2018 at 12 noon September 5, 2018 at 12 noon followed by 12 noon luncheon InterContinental New Orleans, Federal Comparison Program Lunch with the Court with the I would like to reach out to the former mentors and would without hesitation take again.” part in the program if offered “Hearing a young associate’s perspective was perspective associate’s young a “Hearing super helpful.” Enjoyed “casual opportunity to talk with a young attorney and learn a little about their practical experiences.” “Candid talk, friendly nature, and eagerness to share with us.” “I wish I’d had this perspective earlier in my career.” U.S. District Court - EDLA, 500 Poydras Street, U.S. District Court - EDLA, 500 Poydras Street, • “ • • • • August 23, 2018 cocktail reception begins at 11am, August 23, 2018 cocktail reception begins at 11am, Thank you to Alex Aughtry for a successful first year of this Buckley, Helen program. mentors: volunteer the to gratitude We also extend sincere Bill Jones, Beaux Ibert, Jessica Flanagan, Thomas Weixler. Schwartz and Jake applies applies to real-world practice, while also creating the opportunity to engage a broader cross-section membership. of the NOFBA’s Feedback from students and mentors alike was positive. A program mentees after evaluation the breakfasts yielded circulated to following responses:

MENTORSHIP PROGRAM SAVE THE DATE FOR UPCOMING EVENTS FOR UPCOMING THE DATE SAVE

Rm. C-351 Rm. B-709 Lawyers who Lunch July 26, 2018 at 12 noon July 24, 2018 at 12 noon July 25, 2018, 3:00-4:30 pm Hon. Daniel E. Knowles, III Louis Armstrong Private Dining Louis Lunch with the Court with the Immigration Law or Rhetoric? Immigration Law or

U.S. District Court - EDLA, 500 Poydras Street, U.S. District Court - EDLA, 500 Poydras Street,

The National WWII Museum, 945 Magazine Street, The National students to delve into substantive law they how are learning in the classroom the wide range of diverse backgrounds and practice areas allowed litigation, toxic torts, government and regulatory mentors’ The litigation. complex and enforcement, environmental law, white collar crime, maritime attorneys specializing in practice areas including leadership selected mentors from a of wide practice range areas, with plaintiffs and defense led by a different local attorney. NOFBA The NOFBA held six breakfasts in total, each they were still students. school, how they transitioned from law school into school law from transitioned they how school, when known had they wish they what and practice, mentors talked about their experiences in law coffee coffee and pastries at a small French café tucked in Uptown Triangle behind the two law schools, one attorney, and a NOFBA representative. Over Each breakfast consisted of three to five students, Orleans. brains about what it is like to practice law in New the unique opportunity attorneys in to an informal meet setting and experienced pick their Schools with local practitioners, allowing students The program consisted of a series pairing of breakfasts students from Tulane and Loyola Law in February 2018 to help connect local law students students law local connect help to 2018 February in community. legal diverse and rich Orleans’ New to (“NOFBA”) (“NOFBA”) launched a new mentorship program The New Orleans Federal Bar Association FIRST-OF-IT'S-KIND CAREER DAY IS EXTRAORDINARY SUCCESS On April 4, 2018, the New Orleans Chapter of the Federal Bar Association and the Younger Lawyers Division hosted a first-of-its-kind Career Day at Crescent Leadership Academy. Crescent Leadership Academy serves some of New Orleans’ most underserved youth. The school provides disadvantaged and high-risk students in grades 9 through 12 an opportunity to earn not only a high school diploma but also to enter the workforce, choose a career, and/or apply to college. Its newly renovated campus and tailored programming creates a safe and nurturing environment, designed to instill the desire to succeed. Career Day was the brainchild of the chairs of the FBA’s and the YLD’s Philanthropy Committees, Omar K. Mason and Annie G. McBride, respectively. Last year the Philanthropy Committees spearheaded a campus beautification day at the school—this year they undertook to do something especially for the students. Months in the making, Career Day was an extraordinary success, thanks to the hard work and generosity of volunteers, FBA and YLD members, school staff, and vendor donors. As the morning unfolded, students had the unique opportunity to meet with more than 20 professionals from across the city—including medical professionals, lawyers, engineers, law enforcement officers, journalists, arts professionals, educators, and even a meteorologist. YLD members were on-hand to conduct mock interviews for seniors and juniors who are already preparing for college or the workforce. “These kids deserved a first class career day, and they got it,” said Mason and McBride. “On behalf of our committees, we thank everyone who generously donated their time and energy to make this a success.” A special thanks to the following: Professionals who presented: Brittany Reed, AUSA; Randolph M. Thomas, Jr., USDOD Police Officer; Dr. Jean Mathis, OB/GYN; Patrice Haywood, Speech Pathologist; Pamela Toney-Crawford, family lawyer; Todd Price, food writer; James McBride, stage director; Andre D. Harris, educator; Melissa McClendon, real estate consultant; Cinicii Hughes, housing case manager; Quentin Brown, NOFD Captain; Dr. Ahmed Mohiuddin, physician; Dr. Hezekiah Brinson, Jr., music composer and educator and minister; Corey Watson, electrical engineer; Michael Walcott, Sr., electrical engineer; Juan J. Lizarraga, patent lawyer/mechanical engineer; Tyler Abadie, engineering consultant; Kerwyn King, electrical engineer; Jessica P. Gaudet, civil engineer; Damon Singleton, WDSU meteorologist. YLD members who conducted mock interviews: Kristen Amond and Kaki Johnson. FBA and YLD members who assisted throughout the day: Raley Alford, Omar Mason, Annie McBride, Eric Foley, Jonathan Trunnell, Alysson Mills, Rebecca Cooper, and Atoyia Harris. Vendor who donated coffee, fruit, and pastries: Aroma Catering.

Younger Lawyers Division Philanthropy Chair Annie McBride, Crescent Leadership Academy Board President Warren Atkins Jr., Crescent Leadership Academy Superintendent Tracy Bennett-Joseph, New Orleans Chapter of Officer Randolph Marvin Thomas, Jr. engages students the Federal Bar Association Philanthropy Chair Omar Mason at Crescent Leadership Academy. and Chapter President Raley Alford at Career Day U.S. FIFTH CIRCUIT'S NEW DOIRON TEST FINDS P&A CONTRACT TO BE MARITIME, BUT WHAT IF THE WORK OCCURRED ON THE OCS? BY: TOD J. EVERAGE

Contractual indemnities are important and valuable in the oil patch. When they are enforceable, they have the potential to end litigation completely or at least navigable waters?” and (2) “does the contract provideIn reor Larry do the Doiron, parties Inc. expect that a vessel will play a substantial role in the completion of the contract?” playthe financial in several burden jurisdictions for a particularly (including well-positioned Louisiana), may be applied to the, 879 contract. F.3d 568, 576 (5th Cir. 2018). theindemnitee. enforceability But, withof these “anti-indemnity” indemnity provisions statutes rely in Both factors must be affirmed before maritime law (barring exceptions) on the application of general On the first factor, Carrizo asserted a creative and maritime law. ultimately successful argument that P&A work is “part of the total life cycle of oil and gas drilling.” Because It is a common practice to select general maritime law plugging and abandoning a drilled well is part of the as the governing law in any oilfield MSA – at least within agreement with the State of Louisiana to get an initial the Fifth Circuit – but simply saying it applies doesn’t permit to drill, the US Fifth Circuit was persuaded that actually make it so. As a result, jurisprudential tests itsthe departure contract for from P&A Davis work & Sons involved and its“the concern drilling about and have emerged to determine what law actually applies production of oil and gas.” The CourtDoiron then re-iterated providedto torts depending under the on contract where the are incident obviously occurred, maritime as inwell nature, as to the such contracts as a themselves.contract for When vessel the servicessupport where the incident occurred. In , the US Fifth maritimeCircuit stated: tort, but “The they facts are immaterial surrounding in thedetermining accident are relevant to whether the worker was injured in a enforceabilityservices, there ofis littlean indemnity to dispute. obligation, But, especially there when have Doiron beenthere persuasiveis a high-dollar arguments potential made exposure on both riding sides on of the whether the workers’ employer entered into a maritime contract.” , 879 F.3d at 573-74. The US Fifth Circuit is “no longer concerned about whether maritime vs. state law debate governing contracts for drillingthe worker and production was on a platformof oil and or gas vessel.” on navigable Rather, other, less obvious, oilfield services. the question. is whether the contract concerned the

Most recently, the US Fifth Circuit addressed this waters Doiron Indispute re: Crescent over plugging Energy and Services, abandoning services (“P&A work”) on three wells in coastal Louisiana waters in On this point, Crescent’s insurers argued that ’s No. 16-31214 (5th tortsanalysis occurring on the P&Aon andwork during resulted the in constructioninconsistencies of andCir. Julyto indemnify 13, 2018). Carrizo Crescent against agreed, any claims amongst for bodily other with other Fifth Circuit precedents finding that things, to provide three vessels to perform the work fixed, offshore production platforms on the OCS are injury, death, or damage to property. One of Crescent’s alsogenerally traditionally not governed been by found maritime to not law. be Also, a maritime wireline employees was injured on one of Carrizo’s fixed work – which comprises much of the P&A work – had platforms during the P&A work, and unsurprisingly, Carrizo’s indemnity demand from the resulting claim activity. The Court declined the invitation to review Daviswas denied & Sons by Crescent under the Louisiana Oilfield those OCSLA cases: “We are not concerned here with andIndemnity Crescent Act. to The be districta maritime court, contract applying and the granted former those OCSLA issues of whether to borrow state law summary judgment test, found in favor the ofcontract Carrizo between on its indemnity Carrizo as surrogate federal law, which leads to analyzing claim. ofwhether certain maritimecontracts. lawWe do applies need to of analyze, its own though, force, which requires determining the historicalDoiron treatment contract test (from Davis & Sons whether this is a maritime contract. now In January, the US Fifth Circuit pared down its maritime controls that endeavor.” But these statements do not facilitate the drilling or production) to focusof oil onand only gas two on make clear whether the rejection of thecont’d OCSLA on page cases 19 factors: (1) “is the contract one to provide services to U.S. FIFTH CIRCUIT'S NEW DOIRON TEST FINDS P&A CONTRACT TO BE MARITIME, BUT WHAT IF THE WORK OCCURRED ON THE OCS? (cont'd)

Crescent Energy Services appropriate, then it seems that Doiron may be the was because is not an OCSLA its task? If the situs of the controversy is no longer case itself, or whether that distinction no longer has a difference in oil and gas contract review. answer.Grand Isle articulated in Union Texas Petroleum Corp. v. PLT The Fifth Circuit then quoted commentary from Engineering, wasInc. a contractual application of test Professor David W. Robertson discussing contract disputes on the OCS: “If the contract is a maritime ,Doiron 895 F.2d 1043 (5th Cir. 1990) which indemnitycontract, federal is not maritime a maritime law contract, applies of the its owngoverning force, PLTstarts by finding that the dispute arises on the OCS; and state law does not apply. If the contract calling for otherwise, now, surely is the test. The second factor determines whether the OCSLA choice- law will be adjacent-state law made surrogate federal of-law provision applies by looking to see if federal law by OCSLA § 1333(a)(2)(A).” Why bring this up intomaritime play . law applies of its own force. This is where if the Court is ignoring OCSLA cases on the groundsDavis Crescent’s insurers’ historical argument would come previouslyof distinction? and Doiron The Court doesn’t directly clarify. To determine whether federal maritime Instead, it said the reference was “to show that law applies of its own force, the US FifthDavis Circuit: & Sons. (1) It stated that Davis now are performing the task identified the historical treatment of contracts such of determining how to classify contracts.”Doiron . It further revisedas the one to substitute at issue, andDoiron (2) for applied Davis & Sons (a Louisiana waters case) did not seems obvious that this factor will likely at least be offend OCSLA cases, so neither does . The less obvious question is whether the historical treatment The Fifth Circuit seemed concerned about this factorIn Doiron is relevant at all going forward. argument though and the perception of the Court’s indemnitors.abandonment In of addressing long-standing those precedent. criticisms, Surely, the Court this , the Fifth Circuit criticized those “historical” will be the continued topic of attack from potential opinions that “improperly focus[ed] on whether the classifying a contract for a certain purpose, a juridical services were inherently maritime as opposed to stuck with its more back-to-basics theme: “We are here secondwhether PLT a substantial factor simply amount becomes of the thework Doiron was totest. be Rodrigue Davis performed from a vessel.” Thus, it is possible that the decision.activity thatWe en has banc been eliminated done consistently most of the with factors, the necessity of the PLT 1969 decision at least since our 1990 But, if so, then that would effectively eliminate the change the task. Doiron test for OCS contract law disputes, narrowing our focus, but we did not fundamentally because the Courts have long since acknowledged reiterate that Doiron is the law we must apply.” On analysisthat the isrelevant correct application then Doiron of should Louisiana be the law standing to the analyzingthe one hand, the maritime the Court’s nature statements of a contract seem regardless to firmly contract does not conflict with federal law. If this is the law going forward when legal test for the determination of applicable law in of thetheir location decision of the begs work. for But,more the direct Court’s guidance avoidance from of an oilfield contract regardless of the location of the the OCSLAFifth Circuit issues on and Doiron the narrowed “certain purpose” work (OCS vs. State waters). another earlier issue seems to bolster that conclusion: ’s geographic reach. A comment the Fifth Circuit made in its analysis of that the breadth of Doiron The Fifth Circuit could have unequivocally proclaimed “If the contract here is maritime, the fact that it was extended to DoironOCSLA oncases, those in to be performed in the territorial waters of Louisiana whatever capacity, if that were its intent; but it did not. thedoes high not seas. justify Consistency causing the and outcome predictability of this are lawsuit hard So then, what is the expected effect of to be different than if the contract was for work on contract cases involvingDoiron a controversy actually supplant on the Grand OCS, Islewhere Shipyard, OCSLA Inc.statutorily v. Seacor provides Marine, itsLLC own choice-of- enough to come by in maritime jurisprudence, but we law provision? Does at least should not intentionally createcont’d distortions.” on page 20 , 589 F.3d 778 (5th Cir. 2009), since it called the case “un-useful” to U.S. FIFTH CIRCUIT'S NEW DOIRON TEST FINDS P&A CONTRACT TO BE MARITIME, BUT WHAT IF THE WORK OCCURRED ON THE OCS? (cont'd)

Doiron the contract. While the Fifth Circuit may have left a After lauding the directness of its new the testFifth in Circuit that a vessel will play in the work being done under (notwithstanding their use of the unpredictably Doiron directnessapplied term in Crescent “substantial Energy role”), Services. gap in its recent holdings for the next OCSLA-based could have assisted practitioners with a bit more contract dispute, we see no reason why would not be at least a part of that new analysis. Crescent EnergyDespite Services the historically is not surprising non-maritime given nature the necessity of P&A work in the Fifth Circuit, the outcome of Tod Everage is a Partner in the Offshore Energy and of the vessels used for the work. In thatDoiron respect, test Maritime Litigation Practice Group at Kean Miller this decision is consistent with the Fifth Circuit’s LLP. This article was originally published on Kean continued primacy – now, by way of the Miller’s blog: www.louisianalawblog.com highlighting its importance – of the “substantial role” TULANE LAW SCHOOL CHAPTER The Tulane Law School’s Student Chapter of the Federal Bar Association had a successful 2017-2018 academic year. The Chapter partnered with the Younger Lawyers Division on panels on mentorship and summer jobs as well as a mentorship breakfast series and welcomed a Fifth Circuit panel sitting at Tulane. In the fall semester, students joined the Loyola Chapter to learn about federal, firm, and non-profit career opportunities from a panel of attorneys who shared tips about maneuvering the path to summer and post-grad employment. To kick off the spring semester, the Chapter hosted a clerkship panel where recent clerks shared their experiences working for the federal and state judiciary. Tulane capped a successful year coordinating with the YLD on the inaugural mentorship breakfast series. Students gained valuable mentorship from attorneys in the New Orleans community who work in a variety of fields with numerous backgrounds. The insight young attorneys have brought to the Tulane community has allowed members to thrive and make connections that have led to great job and clerkship opportunities and the Chapter is excited to continue its work in the coming academic year.

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]. THE ADVOCATE 21 cont’d on page 22

Eventually, Patriot left the job. Patriot left Eventually, Patriot sued TAS for breaching its professional duty as an architect in designing the project and in administering the construction contract. Patriot claimed that TAS’s slab design would not accordance in it have poured had Patriot if even worked with the plans. Patriot improperly also denied alleged that Patriot TAS unreasonably long time payments, to respond to requests for took an replacing from Patriot prevented and information, against claims Star’s asserted also Patriot slab. the TAS for the same acquired the claims in its settlement with Star. breaches of duty, having to duty its breach not did TAS that found jury The architects other as skill and care same the exercise project the designing either in situations similar in or administering the construction contract. Docket No. 15-6634, H (J. Milazzo) (Jury trial held 3/26/18 – 4/3/18) CIVIL – CONSTRUCTION TORT – CONSTRUCTION CIVIL Star Insurance LLC v. Patriot Contracting, Company et al. Plaintiff Patriot Construction brought (“Patriot”) in by was Star complete Insurance construction of Co. a group (“Star”) camp for to State of the Louisiana. Defendant The Architectural Studio James Dodds designed (“TAS”) the camp and administered Patriot, the believing that TAS’s design was construction faulty, poured contract. a concrete slab not in the plans. The accordance parties could not with agree how to fix the slab. TAS withheld payment to Patriot to due the slab issues and other alleged deficiencies. Organized by topic, the summaries below are compiled by compiled below are the summaries by topic, Organized

TRIALSTRIBULATIONS AND

the Editorial Board from Verdict Reporting Forms provided by the Court. Forms provided Reporting Verdict from Board the Editorial of Louisiana. the Eastern District Court for Trials and Tribulations is your quarterly summary of matters recently tried in the United States District District States United the in tried recently matters of summary quarterly your is Tribulations and Trials 2/26/18 – 3/9/18) Docket No. 16-1131, E (S. Morgan) (Jury trial held trial (Jury Morgan) (S. E 16-1131, No. Docket Waypoint as to Plaintiff’s breach of contract claim. contract of breach Plaintiff’s to as Waypoint The jury returned a verdict in favor of Defendant for the acts of KLG. (10%). The jury further found that HCA was liable was HCA that found further jury The (10%). HCA (30%); KLG (60%); Waypoint and its agents (30%); Waypoint KLG (60%); HCA found Team was entitled to damages in the amount the in damages to entitled was Team found of $565,979.99, with fault allocations as follows: negligence claims against HCA and KLG. The jury The KLG. and HCA against claims negligence the jury returned a verdict in favor of on Team its After approximately 8.5 hours of deliberation, KLG seeking indemnification. contract by failing to compensate Team for these additional costs. HCA filed a cross-claim against expenses. Team claims Waypoint breached its increased labor, project supervision, and overhead claims that Waypoint ordered Team to accelerate for costs additional incur to Team causing work, its negligence on the part of HCA and KLG. Team also Team KLG. and HCA of part the on negligence construction work, were the result of professional Team Team alleged and that revisions demolition to resulting the the plumbing and and designs, mechanical

engineering, and plumbing services. to serve as the architect for the project. HCA hired HCA project. the for architect the as serve to KLG, L.L.C. (“KLG”) to perform mechanical, with Defendant Architecture, HC L.L.C. (“HCA”) renovate certain floors of a building in downtown contract a into entered also Waypoint Orleans. New NOLA, L.L.C. (“Waypoint”) to construct and entered into a contract with Defendant Waypoint Plaintiff Plaintiff Team Contractors, L.L.C. (“Team”) L.L.C. et al. Team Contractors L.L.C. v. Waypoint NOLA, Waypoint L.L.C. v. Contractors Team BREACH OF CONTRACT BREACH OF CONSTRUCTION – NEGLIGENCE AND – NEGLIGENCE CONSTRUCTION TRIALS AND TRIBULATIONS (CONT'D)

CIVIL – PRODUCT LIABILITY her vehicle back several feet. Plaintiff asserted that the collision occurred because of the negligence of Shamberia Smith v. Kansa Technology, LLC Defendant Poole, who was in the course and scope of employment of Defendant Mabe Trucking Co. at the This product liability lawsuit arises out of an injury time of the alleged accident. Wright’s minor son, Noah Plaintiff Shamberia Necole Smith sustained on October Jackson, was in her vehicle at that time. 13, 2015, while working in the mail room at the Hammond Daily Star Newspaper Company. The accident resulted Defendants denied that the accident happened. In in the amputation of the last digit of Smith’s left pinky the alternative, Defendants argued that if the alleged finger. accident did happen, it was caused by the actions of Wright. Furthermore, Defendants averred that even if Smith filed suit against Kansa Technology, LLC, there was an accident, Wright’s injuries did not result the manufacturer of a 480 Newspaper Inserter that from the alleged accident in 2015. Defendants asserted was present at the Hammond Daily Star Newspaper that a separate, unrelated intervening and superseding Company. Smith claims that the 480 Newspaper event occurred that caused Wright’s injuries. Inserter was unreasonably dangerous in its design and unreasonably dangerous because of inadequate warning. After deliberating for approximately 8 hours over the Further, Smith claims that the unreasonably dangerous course of two days, the jury returned a verdict in favor of characteristic of the 480 Newspaper Inserter caused her the Plaintiff. The jury found that (1) Defendant collided injuries. his truck with Plaintiff’s vehicle; (2) Plaintiff sustained injuries as a result of this accident; (3) and Defendant Defendant Kansa Technology, LLC (“Kansa”) denied and Plaintiff were each negligent and 50-percent at fault. liability. Specifically, Kansa claims that the Inserter is not unreasonably dangerous and disputes that Smith’s The jury initially awarded Plaintiff $235,000.00 for past injury was caused by the 480 Newspaper Inserter. Based and future medical expenses. She was not awarded any on the testimony of two eyewitnesses, Kansa contends compensation for past and future pain and suffering, past that Plaintiff’s injury occurred on and was caused by the lost wages, future loss of earning capacity, and loss of main conveyor belt of another machine in the mail room. consortium. The jury did not award any damages to Further, Kansa claims that Smith’s negligence, as well as Noah Jackson. the negligence of her employer, caused her injury. The Court rejected this verdict. Citing Yarbrough v. After deliberating for less than one hour, the jury returned Sturm, Ruger & Co., 964 F.2d 376 (5th Cir. 1992), the a verdict for Defendant finding that the 480 Newspaper Court held that the jury’s award represents an inconsistent Inserter was not unreasonably dangerous in design or verdict because the jury awarded $235,000.00 for past unreasonably dangerous because of inadequate warning. and future medical expenses, but nothing for past and future pain and suffering. The Court instructed the Docket No. 16-CV-16597, N (K. Engelhardt) (Jury trial jury to continue deliberation to redress the issue. held 4/30/18 – 5/2/18) Shortly afterward, the jury returned another verdict: the parties were equally negligent and liable; Plaintiff was awarded $235,000.00 for past and future medical CIVIL – MOTOR VEHICLE ACCIDENT expenses; and $17,000.00 for past and future pain and Tonja Wright, et al. v. National Interstate Ins. Co., et al. suffering. The Court accepted the jury’s verdict, reduced the award by 50-percent for comparative In 2015, Plaintiff Tonja Wright was operating her Ford negligence, for a grand total of $126,000.00. Escape in Tangipahoa Parish as she approached a truck driven by Terry Poole that had stopped near a stop sign. Docket No. 16-16214, L (E. Fallon) (Jury trial held Plaintiff claimed that instead of moving forward from 3/5/18 – 3/9/18) the stop sign, the truck backed into her car, pushing cont’d on page 23 THE ADVOCATE 23

(CONT'D) counts. Docket No. 17-CR-225, E (S. Morgan) (Jury trial held 4/2/18 – 4/3/18) a warrant to search his person. While he was in the back seat, video footage captured Thompson pulling something out of his pants and stuffingit into the crack of the seat. When Thompson found officers was the vehicle, police the from removed a plastic bag containing cocaine, heroin, and ecstasy. cocaine base, Mr. Thompson was indictment: charged in a three-count Count 1: Possession with the intent to distribute a quantity of cocaine. Count 2: Possession with the intent to distribute a quantity of cocaine base. Count 3: Possession with the intent to distribute a quantity of heroin. After deliberating for approximately an hour and a half, the jury found Thompson guilty on all three CRIMINAL Jr. Ronald Thompson, v. United States Parish Charles St. the of officers 2017, 28, July On transactions drug apparent observed Office Sheriff’s illegal Suspecting Louisiana. Luling, in vehicle a in activity, two officers followedthe car, witnessing after and a traffic violation, pulled the car over. The driver, Ronald Thompson, exhibited nervous behavior during the traffic stop, and called the officers a canine unit. After the canine alerted to the positively driver’s seat and the glove box, the officers searched the car and found $1,870 in cash and brass knuckles. The officers placed Thompson in of the the back seat police cruiser pending authorization of

TRIALSTRIBULATIONS AND

trial held 4/9/18 – 4/10/18) Docket No. 14-CV-1741, N (K. Engelhardt) (Jury Engelhardt) (K. N 14-CV-1741, No. Docket that Leblanc had committed a battery. jury did not find that the force used by Leblanc find not did jury the Additionally, excessive. was Leblanc and the City of Gretna on all claims. The claims. all on Gretna of City the and Leblanc half hours, the jury returned a verdict for Officer After deliberating for approximately two and a Officer Leblanc is entitled to qualified immunity. qualified to entitled is Leblanc Officer circumstances and was not the cause of injury to injury of cause the not was and circumstances the Plaintiff. Further, Defendants contended that of force was reasonable and lawful under the on his claims because Officer Leblanc’s use and refused to comply with Defendants alleged lawful that demands. Morris cannot recover the traffic ticket, refused to surrender to arrest, Defendants contended that Morris refused to sign to refused Morris that contended Defendants battery based on a theory of vicarious liability. battery based on a theory of vicarious the City of Gretna for Officer Leblanc’s alleged and battery. Morris also asserted a claim against and battery. other injuries. Morris submits that the actions of Officer Leblanc constituted excessive force Morris allegedly sustained a broken jaw and times during the scuffle. times during the Leblanc. Officer Leblanc tased Morris three police officers Joseph Mekdessie and Brandon City of Gretna Police Department. A physical altercation broke out between Morris and Gretna in traffic stop conducted by officers with the On July 31, 2013, Seantrey Morris was involved City of Gretna Seantrey Morris v. Brandon Leblanc & Brandon Leblanc Morris v. Seantrey CIVIL RIGHTS CIVIL Federal Bar Association FIRST CLASS MAIL New Orleans Chapter U.S. POSTAGE P A I D c/o W. Raley Alford III PERMIT NO. 385 Chapter President NEW ORLEANS, LA 500 Poydras St., Room B-245 New Orleans, LA 70130

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 Michael Ecuyer c/o Attorney Conference Center 500 Poydras Street, Room B-245 Hale Boggs Federal Building New Orleans, LA 70130 (504) 589-7990

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SNOWBALL SOCIAL On May 2, 2018, the New Orleans Chapter of the Federal Bar Association’s Younger Lawyers Division hosted its first-ever Snowball Social in the courtyard between the courthouses for the Eastern District of Louisiana and the United State Court of Appeals for the Fifth Circuit. Members of the federal judiciary and the Federal Bar Association enjoyed snowballs while listening to Amanda Shaw play at the Wednesday at the Square Concert Series. This event provided a perfect opportunity to visit with colleagues and cool off from the summer heat.