S E V IN MEMORIAM Judge Peter Hill Beer...

18
IN MEMORIAM Judge Peter Hill Beer (1928-2018) BY: PETER J. WANEK When Judge Peter Beer passed away on February 9, 2018, just 2 months and 3 days shy of his 90 th birthday, we lost not only a wonderful federal jurist of 30 years, but also a man who was a: veteran of two wars and bronze star recipient; former New Orleans City Councilman; state appellate judge; avid sailor and golfer; and perhaps most important to him, a father of three. Those who knew Judge Beer well best described him as follows: self- deprecating; sense of fairness; common sensical; dutiful; and love of country. When he would enter his courtroom, Judge Beer would say: “Please keep your seats, folks.” And when attorneys had completed their arguments on rule day, Judge Beer would always thank them for “all their good work.” Judge Beer was a person who was respected by both his colleagues on the bench and also the lawyers and litigants who appeared in his courtroom. Judge Beer graduated early, at age 17, from Isidore Newman School in New Orleans and immediately volunteered for the Army during what would be the closing months of World War II. He was in boot camp in Texas when the war ended. His son, Kenneth Beer, liked to say that “Hitler and the Japanese heard that Pete was coming, so they knew to surrender!” After graduating from Tulane Law School, Judge Beer joined the Air Force and served during the Korean conflict, later receiving the Bronze Star for his meritorious service during combat. He was called up again during the Cuban missile crisis, eventually attaining the rank of lieutenant colonel. Judge Beer joined the New Orleans firm of Montgomery, Barnett, Brown and Sessions in 1954 as an associate. He became a partner and remained with the firm for 20 years, serving as the firm’s managing partner. In 1970, Judge Beer was elected Councilman for District A in New Orleans. At that time, District A encompassed a large swath of the City to include the westbank, French Quarter and parts of uptown New Orleans. Judge Beer recognized the wide diversity of his constituents, and for four years, worked hard to find common ground to represent everyone fairly. SPRING EDITION 2018 VOL. 27, NO. 3 cont’d on page 2 EDITORIAL BOARD: PETER WANEK, COLIN CAMBRE, LARRY CENTOLA, ARTHUR KRAATZ

Transcript of S E V IN MEMORIAM Judge Peter Hill Beer...

Page 1: S E V IN MEMORIAM Judge Peter Hill Beer (1928-2018)nofba.org/wp-content/uploads/2018_FBA_Advocate_Spring_digital.pdfIN MEMORIAM Judge Peter Hill Beer (1928-2018) BY: PETER J. WANEK

IN MEMORIAMJudge Peter Hill Beer (1928-2018)

BY: PETER J. WANEK

When Judge Peter Beer passed away on February 9, 2018, just 2 months and 3 days shy of his 90th birthday, we lost not only a wonderful federal jurist of 30 years, but also a man who was a: veteran of two wars and bronze star recipient; former New Orleans City Councilman; state appellate judge; avid sailor and golfer; and perhaps most important to him, a father of three.

Those who knew Judge Beer well best described him as follows: self-deprecating; sense of fairness; common sensical; dutiful; and love of country. When he would enter his courtroom, Judge Beer would say: “Please keep your seats, folks.” And when attorneys had completed their arguments on rule day, Judge Beer would always thank them for “all their good work.” Judge Beer was a person who was respected by both his colleagues on the bench and also the lawyers and litigants who appeared in his courtroom.

Judge Beer graduated early, at age 17, from Isidore Newman School in New Orleans and immediately volunteered for the Army during what would be the closing months of World War II. He was in boot camp in Texas when the war ended. His son, Kenneth Beer, liked to say that “Hitler and the Japanese heard that Pete was coming, so they knew to surrender!”

AftergraduatingfromTulaneLawSchool,JudgeBeerjoinedtheAirForceandservedduringtheKoreanconflict,later receiving the Bronze Star for his meritorious service during combat. He was called up again during the Cuban missile crisis, eventually attaining the rank of lieutenant colonel.

JudgeBeerjoinedtheNewOrleansfirmofMontgomery,Barnett,BrownandSessionsin1954asanassociate.Hebecameapartnerandremainedwiththefirmfor20years,servingasthefirm’smanagingpartner.

In 1970, Judge Beer was elected Councilman for District A in New Orleans. At that time, District A encompassed a large swath of the City to include the westbank, French Quarter and parts of uptown New Orleans. Judge Beer recognizedthewidediversityofhisconstituents,andforfouryears,workedhardtofindcommongroundtorepresenteveryone fairly.

Spring Edition 2018 Vol. 27, no. 3

cont’d on page 2

Editorial Board: PEtEr WanEk, Colin CamBrE, larry CEntola, arthur kraatz

Page 2: S E V IN MEMORIAM Judge Peter Hill Beer (1928-2018)nofba.org/wp-content/uploads/2018_FBA_Advocate_Spring_digital.pdfIN MEMORIAM Judge Peter Hill Beer (1928-2018) BY: PETER J. WANEK

Judge Beer felt a calling to the bench and was elected to the Louisiana Fourth Circuit Court of Appeal, on whichheservedfor5yearsbeforebeingappointedasanindependent to the United States District Court for the Eastern District by President Jimmy Carter.

A colleague and former Chief Judge of the Eastern District,JudgeA.J.McNamaradescribedJudgeBeerasfollows: “Pete has the ability to laugh at himself. But he is possessed with an ideal judicial temperament, that rare blendoffirmcontrol inthecourtroomwhilenotbeingoverbearing.”

Another colleague of his, Judge Adrian Duplantier, said this about Judge Beer: “He displays sound judgment, empathy to those less fortunate, and most of all a sense that he is first and foremost a servant of his belovednation. As a result of a lifetime of public service, Peter Beer has been a consummate federal trial judge.”

Judge Eldon Fallon, who has known Judge Beer since the former was an associate and Judge Beer was lead trialattorneyatMontgomeryBarnett,recalledatrialthetwo had against one another in the 1960s. “Judge Beer won most of his trials. He won a trial against me, and as washispractice,thefirstpersonatthetableafterhehadwonwasPeter.Hesaidtome:‘Pal,youdidagoodjob.’Idon’trecallthefactsofthecase,butIrememberedPetetrying to make me feel better about the loss.”

Judge Fallon said “Judge Beer had a way of adding dignity with informality, which was a hard task to perform.” Judge Beer was known for saying: “Good morning gents, pull up a chair.”

On one occasion, it was a hot day in New Orleans, and Judge Beer was presiding over a trial. The air conditioning in the courthouse was not working, so Judge Beer told the attorneys and litigants that they could take their coats and ties off. Judge Beer even took his robe and tie off. During the admiralty trial, a witness/seaman was asked by Judge Beer to give his name and address. The seaman looked at Judge Beer with no robe, no tie and wearing topsiders with no socks, and he said: “I think I will wait for the judge to come out.”

IN MEMORIAM (cont'd)Judge Peter Hill Beer (1928-2018)

BY: PETER J. WANEK

During his confirmation hearing before the USSenate, Judge Beer was asked by Sen. Patrick Leahy (D-VT) to comment about the influence a judge’sbackground and temperament may affect his or her rulings. Judge Beer answered: “I think that we are constantly charged with the responsibility of trying to be evenhanded in the administration of justice, regardless of those persuasions.”

His philosophy as a judge was reflected in hisrulings. In one such case which paints a vivid portrait of the man and judge whom he was, Succession of Fusilier (La.App.Ct.1975),thecourtheldthattheillegitimatedaughter was entitled to receive the property of her father under his will. In a footnote to his opinion, Judge Beerwrote:“IbelievethatArticle1843oftheLouisianaCivil Code, [which prevented an illegitimate daughter theabilitytoinheritherfather’sproperty],isviolativeofthe equal protection clause of the Constitution. I believe that our Civil Code must be interpreted in the bright reflectedlightoftheConstitution,andIbelievethattheConstitutional safeguard of equal protection connotes an ever changing, always vibrant quest for fairness and impartiality in the administration of justice.” Judge Beer was right, and the Louisiana Legislature declared Article 1843unconstitutionalandrepealeditfouryearslater.

In his chambers, Judge Beer had an old boat sign whichread:“Oldsailorsdon’tdie,theyjustgetalittledinghy.”Here’shopingthatwhenweseethis“oldsailor”again, we are met with the welcoming words: “Pull up a chair, folks.”

PeterJ.WanekisapartnerwiththelawfirmofWanekKirschDavies,LLCinNewOrleans.HeisaMemberofthe Board of Directors of the New Orleans Chapter of the Federal Bar Association. He would like to specially thank Judge Eldon Fallon for his time and assistance with this article. The author also used quotations obtained from an article written by Denise Sebastian, a former permanent law clerk of Judge Peter Beer.

Page 3: S E V IN MEMORIAM Judge Peter Hill Beer (1928-2018)nofba.org/wp-content/uploads/2018_FBA_Advocate_Spring_digital.pdfIN MEMORIAM Judge Peter Hill Beer (1928-2018) BY: PETER J. WANEK

Our Chapter has enjoyed an outstanding start to 2018, and we have several upcoming CLE, philanthropy, and networking opportunities to supplement your spring activities. We began the year with a Lunch with the Court hosted by Chief Judge Kurt D. Engelhardt, and the Younger Lawyers Division

hosted a judicial clerkship panel in January for law students at Tulane and Loyola. Also in January, the Chapter hosted a free CLE for young attorneys who have volunteered, or are considering volunteering, for the Eastern District’s pro bono program to representplaintiffs in civil rights litigation.

In February, the Chapter kicked off a new mentorship program designed to connect local law students with the legal community. The program involves one-hour meetings for coffee and conversation between established Chapter members and a group of students. Our hope is thatthisprogramwillcreateopportunitiesforourregion’sfuture lawyers to tap into the expertise and experience of theFBA’sskilledanddiversemembers. Iamgratefulto the Chapter members who have volunteered to serve as mentors and to the YLD and Alex Aughtry for their efforts in coordinating this exciting new program.

February also saw the continuation of our Lawyers Who Lunch program, which seeks to bring Chapter members together for lunch and to learn about local, non-legal subjects. February’s event focused on ProspectNew Orleans, a citywide triennial of contemporary art. Membersgatheredat theOldU.S.Mint to touraProspect 4 exhibit featuring severalmusically-inspiredartworks.Afterthetour,ChrisAlfieri,pastPresidentofour Chapter and current Prospect New Orleans President and Board Chair, gave an informal talk over lunch about theProspect4exhibitandtheorganization’shistory.

InMarch, Iwas privileged to attend ameeting of theChapter’sAdmiraltyLawCommitteeatthePortofNewOrleans. The event featured an update on Port activities by Ronald Wendell, Vice-President of the Port, and Board Chairman Rusty Barkerding, as well as a discussion by AaronSmith,PresidentandCEOoftheOffshoreMarineService Association, of current state and federal legal and legislative issues that are of particular concern to the

association’smembers.AfterMr.Smith’spresentation,an attendee commented to me that she had learned things during the discussion that will be invaluable to her practice. Providing such opportunities is precisely what we hope to accomplish through our practice area committees, and I encourage you to get involved in committee activities.

March alsomarked the return of our Federal PracticeSeries. As I write this message, we have just completed our third of four one-hour CLEs that compose the 2018 series, and we are exceeding all prior attendance records. That is a testament to our distinguished panelists and the leadership of Harold Flanagan and our CLE Committee in selecting topics that are of interest to our members. We continue to receive positive feedback about the one-hour lunchtime programs, so look for that format to continue in the future.

For the remainder of the spring and looking forward to the summer,wehaveanumberof terrificprogramson thehorizon: theChapter’sPhilanthropyCommitteeis organizing a Career Day at Crescent Leadership AcademyinApril;JudgeElizabethMagnerishostingaLunch with the Court on April 18; the 26th Annual Judge Alvin B. Rubin Symposium is scheduled for April 19; theAdmiraltyLawCommittee’snextmeetingandsocialissetforApril25;onApril26,theChapterispresentinga CLE on investigating and prosecuting art forgeries; Judge Eugene Davis will host a Lunch with the Court onJune13;andtheChapterwillpresentitsfirstCourtCamp from June 19-21. And please check our website and social media often, as we are regularly adding new events to serve the interests of our membership.

In this edition of The Advocate, we mark the passing of Judge Peter Beer, who served humbly for three decades as a United States District Judge for the Eastern District of Louisiana. Judge Beer believed in a fair and independent judiciary, which he demonstrated, among many other ways,bysuccessfullychallengingCongress’sdenialofcost-of-living adjustments to the judiciary. See Robert A. Kutcher, Beer v. United States: The Case of Article III Judges and the Compensation Clause, 61 La. B.J. 404 (2014). During a recent search of our Chapter’sarchives, I came across a retirement message that Judge

MESSAGE FROM THE PRESIDENTBY: W. RALEY ALFORD III

cont’d on page 4

Page 4: S E V IN MEMORIAM Judge Peter Hill Beer (1928-2018)nofba.org/wp-content/uploads/2018_FBA_Advocate_Spring_digital.pdfIN MEMORIAM Judge Peter Hill Beer (1928-2018) BY: PETER J. WANEK

Beer delivered in the form of a per curiam. Wereprint itbelowwithgratitude forJudgeBeer’sserviceandhisdedication to the federal legal system and the administration of justice:

MESSAGE FROM THE PRESIDENT (cont'd)BY: W. RALEY ALFORD III

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

PERCURIUM

Monday,December7,2009

TodayisthefinaldayofmyserviceasanactiveU.S.DistrictJudge.Itooktheoathofofficefrommy friend, Chief Judge Fred Heebe, on this date in 1979, exactly 30 years ago. There has never been a moment that I would have changed the course embarked upon at that time.

I will always be grateful to President Jimmy Carter for nominating me and to the U. S. Senate for their unanimous advice and consent to the nomination. I am equally grateful to the citizens of New Orleans who gave me the opportunity to serve on the City Council and, later, to serve as Judge of the Louisiana Court of Appeal. Without this background I doubt that I would have been nominated by the President.

Itisdifficulttofindwordstoexpressmythankstothe“Courtfamily”andtomysisterandbrotherjudges for their wonderful friendship, support and concern as well as to the lawyers who practice in this court—manyofwhomIhaveknownandadmiredforoverfiftyyears.

I’vehadthegoodfortunetoworkwithhundredsofjurors.Ithasbeenagreatthrilltowitnesstheassumption of responsibility by the jury and the hard work and serious deliberations that come with the taking of responsibility.

Andfinally,I’mgratefulandhumbledbyfamilyandfriendswhohavecheerfullyandfaithfullyputup with the inconveniences, late arrivals, early departures, etc. that seem to be part and parcel of keeping judicial time tables.

Serving has been a privilege and pleasure and I sincerely thank all who have made it so.

With continuing concern for this great nation and gratitude for the opportunity to serve the cause of justice, I am,

Respectfully,

Peter Beer Judge United States District Court Eastern District of Louisiana

Page 5: S E V IN MEMORIAM Judge Peter Hill Beer (1928-2018)nofba.org/wp-content/uploads/2018_FBA_Advocate_Spring_digital.pdfIN MEMORIAM Judge Peter Hill Beer (1928-2018) BY: PETER J. WANEK

TH

E A

DV

OC

AT

E

5

FIFTH CIRCUIT IMPLEMENTS NEW CIVIL PRO BONO PROGRAMThe Fifth Circuit has recently created a civil pro-bono program that provides attorneys with a unique opportunity to gain valuable experience practicing before the Court. The program was created by the Court last year to provide a process by which pro-se litigants with potentially meritorious claims could obtainpro-bonoassistancewithbriefingandoralargument.CasesareselectedforinclusionbytheCourtandgenerallyinvolveclaimsthathavebeenidentifiedaspotentiallymeritorious,involvequestionsoffirstimpression,orpresentcomplexissues.Whilecasesselectedfortheassignmentofpro-bonocounselare not guaranteed to be scheduled for oral argument, cases that meet the criteria for appointment of counsel are more likely to be selected for argument. Since the creation of the program, the panel of volunteers has grown to several dozen lawyers from across the Fifth Circuit. Additionally, certain out-of-pocket expenses incurred by pro-bono attorneys may be eligible for reimbursement consistent with theCourt’sguidelines.Theprogramprovidesanexcellentopportunityforattorneys,andparticularlyyoung lawyers, to gain valuable experience in appellate practice. Attorneys interested in being added to the pro-bono panel can submit a cover letter indicating the types of cases they are interested (or not interested) in handling, a current resume, writing sample, and statement of good standing in the Fifth CircuitBartotheCircuitMediationandJudicialSupportOfficeviaemailatprobono@ca5.uscourts.gov.MoreinformationonjoiningtheprogramisalsoavailableontheCourt’swebsiteathttp://www.ca5.uscourts.gov/attorneys/pro-bono-program.

INTRODUCTION TO CIVIL RIGHTS LITIGATION CLE The New Orleans Chapter of the Federal Bar Association hosted the Introduction to Civil Rights LitigationCLEon January26, 2018. SpeakersPhyllisGlazer and JimMullalydiscussed thebasicinformation attorneys need to knowwhen taking on cases brought under 42U.S.C. § 1983,whichtypically involve prisoner civil rights. The CLE was put on to support the New Orleans Chapter of the FBA’sjointinitiativewiththeUnitedStatesDistrictCourtfortheEasternDistrictofLouisianatocreatethe Civil Pro Bono Panel. The Civil Pro Bono Panel is a group of attorneys willing to represent pro se litigants in federal court. For more information about this program, contact program coordinator Erin Arnold at [email protected].

LAW SCHOOLS COMMITTEE CLERKSHIP PANEL The Law Schools Committee hosted a clerkship discussion panel for Tulane and Loyola law students on January 24. Panelists Chloé Chetta (Barrasso Usdin), James Gilbert (Phelps Dunbar), Rebekka Veith (Sher Garner), Chris Zainey (Huber Slack),andMicahZeno(GordonArata) talked about the benefitsof judicial clerkships, do's and dont's of the application process, what to expect in an interview, and more. Special thanks to TulaneLaw’sstudentchapterofthe FBA for hosting!

Clerkship panelists James Gilbert, Rebekka Veith, Chloé Chetta, MicahZeno,andChrisZainey.

Page 6: S E V IN MEMORIAM Judge Peter Hill Beer (1928-2018)nofba.org/wp-content/uploads/2018_FBA_Advocate_Spring_digital.pdfIN MEMORIAM Judge Peter Hill Beer (1928-2018) BY: PETER J. WANEK

TheHonorableChief JudgeKurtD.Engelhardthosted theYoungerLawyer’sDivisionLunchwith theCourtonThursday, January 18, 2018. Judge Engelhardt discussed how practitioners can improve their written and oral advocacy,andhisadditionaldutiesas theEDLA’sChiefJudge.TheYLDgreatlyappreciatedJudgeEngelhardt’sflexibilityinreschedulingtheeventwhenextremewintryweatherledtoroadclosuresinthegreaterNewOrleansareaonJanuary17th.TheHonorableElizabethW.MagneroftheEDLABankruptcyCourtwillhostthenextLunchwiththe Court on Wednesday, April 18, 2018.

Chief Judge Kurt D. Engelhardt, U.S. District Court-EDLA, is pictured with the January 18th Lunch with the Court attendees.

LUNCH WITH THE COURT

CLERK’S CORNERU.S. DISTRICT COURT, EASTERN DISTRICT OF LOUISIANAThe Start of a New Educational Outreach Program for Students

BY: REBECCA COMAN

Inthewinterof2017,theClerk’sOfficeattheU.S.DistrictCourtfortheEasternDistrictofLouisianabeganofferinghalf-day,morningfieldtripstothecourtfor juniorhighandhighschoolstudentsof thegreater New Orleans metropolitan area.

Manyof thearea’sschools respondedenthusiastically toour initial invitation,andasa result,over70 students and faculty members from two schools have already entered the hallowed hallways of 500PoydrasStreetandwitnessedfirst-handthefederaljudiciaryinaction.

ThefirstgroupofstudentscamefromArchbishopRummelHighSchool’sLawStudiesProgram,whilethesecondgroupcamefromEdnaKarrHighSchool’sAmericanGovernmentAdvancedPlacementClass.Both groups observed criminal and civil proceedings in district and magistrate courts, and participated in lively and engaging exchanges with the presiding judges.

Whilewecurrentlyhavetwoadditionalschoolslinedupfortheprogram,theClerk’sOfficeencouragesallFBA members to relay this unique educational opportunity to all junior high and high school administrations as well as any outside extra-curricular groups that might be interested. Should you or someone you know wish to schedule a field trip to the courthouse, please contactRebeccaComan,Director ofEducation &Training,Clerk’sOffice,[email protected](504)589-7654.

Page 7: S E V IN MEMORIAM Judge Peter Hill Beer (1928-2018)nofba.org/wp-content/uploads/2018_FBA_Advocate_Spring_digital.pdfIN MEMORIAM Judge Peter Hill Beer (1928-2018) BY: PETER J. WANEK

TH

E A

DV

OC

AT

E

7

LAW STUDENT MENTORSHIP PROGRAM The New Orleans Federal Bar Association kicked off February with the launch of a new mentorship program. The program consists of a series of breakfasts connecting students from Tulane and Loyola Law Schools with local practitioners, allowing students the unique opportunity to meet experienced attorneys in an informal setting and picktheirbrainsaboutwhatit’sliketo practice law in New Orleans.

Loyola College of Law student Jasmyn Soldatos, Baldwin Haspel Burke&MayerattorneySteven“Beaux”Jones,andTulane

University Law School student Zachary Wessler

Each breakfast was attended by three to five students, one attorney,and an NOFBA representative. Over coffee at Tartine, a small French café tucked in the Uptown Triangle behind the two law schools, mentors talked about theirown experiences in law school, how they transitioned from law school into practice, and what they wish they had known when they were still law students. Students gave effusive feedback following the events; one student so enjoyed the experience that he came back the next day for another breakfast!

MentorsincludedJakeWeixler,whosepracticeatSchonekas,Evans,McGoey&McEachincentersonwhite-collar civil and criminal matters; Beaux Jones, an environmental attorney with Baldwin Haspel Burke&Mayer,andHelenBuckley,whoselitigationpracticeatManionGaynor&Manningfocuseson complex litigation involving toxic torts and premises, products, and general liability. The diverse backgrounds and practice areas of the FBA mentors allowed students to delve into how a wide range of the substantive law they are learning in the classroom applies in a real-world setting in practice.

ThenextroundofmentorshipbreakfastscommencesMarch19,2018,withBillSchwartzandBrodieGlennofBaldwinHaspelBurke&Mayer,JessicaIbertofLewisKullmanSterbcow&Abramson,andThomasFlanaganofFlanaganPartnersservingasmentors. Wecan’twait toseewhat thisgroupofmentors and mentees brings to the breakfast table.

The mentorship program is designed to encourage participation by a broad number of FBA members by requiring practitioners only to commit to a single one-hour session, rather than mentorship over an extended period of time. If you are interested in becoming a mentor, please contact Alex Aughtry at [email protected]’sownAmandaKaiserformakingthisprograma reality.

Page 8: S E V IN MEMORIAM Judge Peter Hill Beer (1928-2018)nofba.org/wp-content/uploads/2018_FBA_Advocate_Spring_digital.pdfIN MEMORIAM Judge Peter Hill Beer (1928-2018) BY: PETER J. WANEK

April 26, 2018 3pm-5pm with a cocktail social to follow George Rodrigue Foundation of the Arts, 747 Magazine Street, New Orleans

Join the New Orleans Chapter of the FBA on April 26, 2018 at 3pm for a two-hour CLE focused on investigating and prosecuting art forgeries, both in the U.S. and in Louisiana. Featuring:

Colette Loll, Founder and Director of Art Fraud Insights

Tess Davis, Executive Director of the Antiquities Coalition

Randy Deaton, FBI Special Agent with the FBI’s Rapid Deployment Art Crime Team

Jacques Rodrigue, Executive Director of George Rodrigue Foundation of the Arts

A keynote by Colette Loll will be followed by a panel presentation featuring Tess Davis, Randy Deaton, and Jacques Rodrigue. The program will include discussion of the forgeries of Mark Landis, Clementine Hunter forgeries and forensic evidence, and forgeries of George Rodrigue’s work, focused on the investigation and prosecution.

Special thanks to the Antiquities Coalition & George Rodrigue Foundation of the Arts for their contributions and support.

The Art of Investigating and Prosecuting Forgeries CLE Registration

Name: ________________________________________________________________________

Firm/Organization: ______________________________________________________________

Telephone: ________________________ Email: _____________________________________

FBA Members: $45 (includes two hours of CLE and social) Non-Members: $60 (includes two hours of CLE and social) Government/Public Interest: $30 (includes two hours of CLE and social)

To register online, please go to www.nofba.org. Otherwise, please complete the above registration and remit payment to the Federal Bar Association, New Orleans Chapter, 500 Poydras Street, Rm. B-245, New Orle-ans, LA 70130. Cancellations must be received in writing two days in advance in order to receive a refund. Please contact Amanda Kaiser, Executive Director, by phone at (504) 589-7990 or by email at [email protected] with any questions.

The Art ofInvestigating and

Prosecuting Forgeries Federal BarAssociationNew Orleans Chapter

Page 9: S E V IN MEMORIAM Judge Peter Hill Beer (1928-2018)nofba.org/wp-content/uploads/2018_FBA_Advocate_Spring_digital.pdfIN MEMORIAM Judge Peter Hill Beer (1928-2018) BY: PETER J. WANEK

TH

E A

DV

OC

AT

E

9

On February 22, 2018, the Younger Lawyers Division hosted its third Lawyers Who Lunch event at theOldU.S.Mint. Approximately10membersenjoyedaguidedtourof“Prospect4:TheLotusInSpiteoftheSwamp,”ledbyJohnd’Addario,artwriterandeducator.Mr.d’Addarioguidedthegroupthrough the exhibit, which included several musically-inspired artworks, such as an extensive set of original collages made by jazz legend Louis Armstrong and video and sound installations. After the tour, attendees enjoyed lunch while learning about Prospect New Orleans from past FBA President and currentProspectNewOrleansPresidentandBoardChair,ChrisAlfieri.Mr.Alfierispokewithmembersabout Prospect New Orleans, a citywide triennial of contemporary art presenting the work of diverse local, national, and international artists in unique and culturally exceptional venues, and engaging with residents and visitors through education and arts programming. The event was a unique way for FBA members to gather over lunch to socialize with local attorneys and to learn about this international contemporary art triennial in New Orleans. The YLD looks forward to the next installment of Lawyers Who Lunch.

LAWYERS WHO LUNCH

Lawyers who Lunch attendees explore

Prospect 4: The Lotus In Spite of the Swamp while listening to tour guideJohnd’Addario.

ADMIRALTY LAW MEETING AT THE PORT OF NEW ORLEANSThe Admiralty Committee held its inaugural event of the committee’s second year at thePort of New Orleans on March 7, 2018.Aaron Smith, President andCEO ofOMSAand Ronald Wendell, Vice-President of the Port, spoke to the group. Rusty Barkerding, Chair of the Board of Directors of the Port, also addressed the attendees, including attorneys,lawstudents,andFBA’sPresident,Raley Alford. The meeting concluded with light refreshments in the reception area. The next meeting of the Admiralty Committee will be onApril 25 at a central location inthe CBD close to Lafayette Square, so that attendees can walk over to the square for the Wednesday afternoon music following the panel presentation.

New Orleans Chapter President W. Raley Alford III, Admiralty Law Committee Chair Patricia Krebs, and

OffshoreMarineServiceAssociationPresident and CEO Aaron Smith

Page 10: S E V IN MEMORIAM Judge Peter Hill Beer (1928-2018)nofba.org/wp-content/uploads/2018_FBA_Advocate_Spring_digital.pdfIN MEMORIAM Judge Peter Hill Beer (1928-2018) BY: PETER J. WANEK

NEW MEMBERSThe Federal Bar Association welcomes its new members:

Matthew Steven Almon Stone Pigman Walther

Wittmann, LLC

Zachary J. Ardoin The Javier Law Firm

Samantha N. Babin Brown Sims

Tommy J. Badeaux Frank D’Amico Jr. APLC

Ellen K. Baggett Law Office of Craig Leydecker

Trenton C. Ball Taylor Wellons Politz

& Duhe APLC

Guy J. Bercegeay Hailey McNamara LLP

Jennifer L. Bergeron Adams and Reese LLP

Vikram S. Bhatia Duncan & Sevin LLC

John B. Bireley Arnold & Itkin LLP

Elizabeth B. Bloch 27th JDC Judge James P. Doherty Jr.

Nathan Board

Taylor M. Bologna Brown Sims

Andre M. Boudreaux Gieger Laborde And Laperouse

Adam J. Boyer DeRouen Law Firm

Victoria L. Brayman

Quinn K. Brown Manion Gaynor & Manning LLP

Helen M. Buckley Manion Gaynor & Manning LLP

Helen M. Burnett Law Offices of Malvern Burnett

Rick A. Caballero Caballero, Fields & Adams

Nicholas Caluda US District Court for the Southern District of Texas

Claudia Carrizales Kelly Hart & Pitre

Scott J. Champagne Jackson & Jackson PLLC

Christian S. Chaney Stanley Reuter Ross Thornton

& Alford LLC

Dustin L. Cooper Lewis Brisbois

Gabriel R. Crane Sher Garner Cahill Richter Klein

Hilbert LLC

Richard B. Crohan Kean Miller LLP

Jennifer Crose Becnel Law Firm, LLC

Jane M. Daily Preis PLC

Enjolie S. Dawson

Lawrence R. DeMarcay, III Baldwin Haspel Burke

& Mayer, LLC

Melanie N. Derefinko Johnson Gray McNamara

William H. Dunckelman, Jr. Schafer & Schafer LLP

Leigh Anne Evensky Newman Mathis Brady

& Spedale PLC

Carley A. Faucheux Connick & Connick LLC

Chelsea E. Gaudin Forman Watkins & Krutz LLP

Daniel J. Gauthier Becker & Hilbert LLC

Ashley N. Giambelluca Porteous Hainkel & Johnson

William C. Gore Taylor Wellons Politz

and Duhe APLC

Megan Grantham Carver Darden

Matthew T. Habig Plauche Maselli Parkerson

Rosalie M. Haug Chaffe McCall LLP

Madison M. Hentze Jones Walker LLP

Hannah E. Honeycutt Fayard & Honeycutt

Alex E. Hotard Sher Garner Cahill Richter Klein

Hilbert LLC

Robert D. House Biggs Ingram & Solop PLLC

Marcus B. Hunter Kuchler Polk Weiner, LLC

Shannon M. Jaeckel Irwin Fritchie Urquhart

& Moore LLC

Christopher D. James-Lomax McCranie Sistrunk Anzelmo

Kelsey L. Jarrett Porteous Hainkel & Johnson

Ashley A. Johnson McGehee McGehee & Torrey

Rebecca A. Kehoe

Emily O. Kesler Baker Donelson

Adair L. Kingsmill McGlinchey Stafford PLLC

Benjamin D. Ladouceur Ladouceur & Ladouceur LLC

Gus E. Laggner Lewis Brisbois

cont’d on page 11

Page 11: S E V IN MEMORIAM Judge Peter Hill Beer (1928-2018)nofba.org/wp-content/uploads/2018_FBA_Advocate_Spring_digital.pdfIN MEMORIAM Judge Peter Hill Beer (1928-2018) BY: PETER J. WANEK

TH

E A

DV

OC

AT

E

11

NEW MEMBERS (cont'd)Gary M. Langlois

Stone Pigman Walther Wittmann, LLC

Alexander A. Lauricella Didriksen Saucier Woods

& Pichon PLC

Melinda Lim Melchiode Marks King LLC

Nicole Loeb Loeb Law Firm

Adriana T. Luciano Southern Poverty Law Center

LaClaire L. Matthews Michael Hingle & Associates

Christopher J. Matulis Brown Sims

Lacey T. McCoy Frilot LLC

Janell M. McFarland Hearin Law Offices LLC

Margaret McLaughlin Tulane Law School

Margaret A. Mentz Baker Donelson

Marian D. Messing Southern Poverty Law Center

Walter F. Metzinger, III Stone Pigman Walther

Wittmann, LLC

Cody J. Miller Liskow & Lewis

Melissa A. Miller Mouledoux Bland Legrand

& Brackett

Tiffany A. Morales Kara Hadican Samuels

& Associates

Jean-Paul J. Morrell Middleberg Riddle Group

Benjamin L. Mumphrey Benjamin Mumphrey LLC

Adele Netterville Gordon McKernan Injury

Attorneys

Derek W. O’Connor Mouledoux Bland Legrand

& Brackett

Christopher B. Ortte Davidson Meaux Sonnier

McElligot

Robert A. Pearson Pearson & Mitchell LLC

Caitlin Periou

Talbot M. Quinn Phelps Dunbar LLP

Paul A. Rabalais Perret Doise LLC

Alexis L. Reaney St. Bernard District

Attorney’s Office

Sean D. Reichert

Bennett T. Richardson McGlinchey Stafford PLLC

Timothy P. Robinson Brown Sims

Alexandra G. Roselli Adams and Reese LLP

Jose R. Ruiz McCranie Sistrunk Anzelmo

Marco J. Salgado King & Jurgens LLC

Michelle W. Scelson Akerman LLP

Evan M. Schiavi Vincent P. Scallan Law LLC

Hunter S. Schoen Adams and Reese LLP

Danielle M. Sczesny Manion Gaynor & Manning LLP

Emma J. Short Tarcza & Associates

Matthew E. Simmons Porteous Hainkel & Johnson

Travis L. Simmons Taylor Wellons Politz

& Duhe APLC

Joshua E. Sins

M. Elizabeth Tamporello Deutsch Kerrigan

Annemieke M. Tennis Kanner & Whiteley LLC

Catherine P. Thibodeaux Barrasso Usdin Kupperman

Freeman & Sarver LLC

David J. Topping Phelps Dunbar LLP

Angelina M. Valuri

Latoya N. Vitdure Gordon McKernan

Injury Attorneys

Andrew V. Waters Galloway Johnson Tompkins

Burr & Smith

Brock L. Wimberly Preis PLC

Brittany R. Wolf Gainsburgh Benjamin

Justin M. Woodard Jones Walker LLP

Lydia A. Wright Burns Charest

Ifigeneia Xanthopoulou Chaffe McCall LLP

Alexa M. Youssef The Javier Law Firm

If you would like to become a member of the FBA, or know someone who would like to becomeamember,pleasecallMichaelEcuyer,MembershipChair,at(504)522-2304,

orAmandaKaiser,ExecutiveDirector,at(504)589-7990formoreinformation.

Page 12: S E V IN MEMORIAM Judge Peter Hill Beer (1928-2018)nofba.org/wp-content/uploads/2018_FBA_Advocate_Spring_digital.pdfIN MEMORIAM Judge Peter Hill Beer (1928-2018) BY: PETER J. WANEK

26th Annual Judge Alvin B. Rubin Symposium

Please join the New Orleans Chapter of the Federal Bar Association for a discussion on ethics and professionalism. The Annual Judge Alvin B. Rubin Symposium is a living memorial to Judge Rubin’s contribution to federal jurisprudence and legal scholarship. We are thrilled to celebrate the 26th anniversary of this program.

Panelists:

Hon. Marsha S. Berzon, United States Court of Appeals, Ninth Circuit

Stephen P. Berzon, Altshuler Berzon LLP

Thursday, April 19, 2018 2 pm – 4 pm

Two Hours of CLE (One hour of professionalism, one hour of ethics) U.S. District Court – EDLA,500PoydrasStreet, Rm. C-501, New Orleans

Toregister,pleasecontacttheNewOrleansChapterat(504)589-7990 or email [email protected]. Detailed information and online registration at http://nofba.org. Payment maybemailedtoNewOrleansChapteroftheFederalBarAssociation,500PoydrasStreet,B-

245,NewOrleans,LA70130.NorefundsafterApril17, 2018.

Name _______________________________________________________________________

Firm/Organization _____________________________________________________________

Telephone ____________________________ Email ________________________________

Enclosed Fee: ______ FBAMembers:$45 Non-Members:$65 LawClerk,PublicInterest,GovernmentAttorneyRate:$25

Page 13: S E V IN MEMORIAM Judge Peter Hill Beer (1928-2018)nofba.org/wp-content/uploads/2018_FBA_Advocate_Spring_digital.pdfIN MEMORIAM Judge Peter Hill Beer (1928-2018) BY: PETER J. WANEK

TH

E A

DV

OC

AT

E

13

YLD CHAIR'S MESSAGEBY: SCOTT L. STERNBERG

Marketingisoneofthosethingsyounglawyershearaboutintheabstract.Lunches, blog posts, cocktail parties—the clients that pave the path to prosperity and,maybe,partnershipare(allegedly)there.Butmarketingisn’talwaysaboutbeing in the right place at the right time, it can also be about building connections and a network of sustainers through involvement in organizations like the FBA.

A fellow FBA member recently recommended that I read a marketing non-fictionbookabout“buildingandunleashing”anonlinebrand.It’snotexactlyreadingforpleasure—myfirmneedsanonlineupgrade,forsure.Theauthor,Mark Schaefer, starts with a fairly general premise: how do you (or your

business)becomea“known”inyourfield—andheprovidesanecdotesofhowseveral,largelytechnologyoriented-businessmen and women made their mark.

MuchofwhatMr.Schaeferwritesaboutinthebook,aptlytitledKnown,involvesfindingyour“space”andthenyourplaceinthatspace.It’saninterestingconceptthatchallengesthereadertothinkdeeperabout not just where you go, but what you do when you get there (or post there), as well. The internet issurelyfullofplentyofalternativeforumstomarketyourself,yourpractice,andyourfirm,andMr.Schaefer’sbookisoneofmanyquickandeasywaystoexplorehowyoucanusethoseavenues.

It’salsohardtoarguewiththetried-and-truebeliefthatthebestmarketingisnotaboutself-promotionontheinternetorbypressingflesh,butinsteadactualexperience—andresults.Anotherattorneywaitingfor her own oral argument to come up on the docket might be so impressed with your handling of a motioninfrontofthatsamejudgethatsherefersyouthenextconflictcaseshehas.

Another young lawyer, while discussing marketing on a NOBA panel I moderated last year, said that asayounglawyershedoesn’tthinkaboutcertainstintsinwhichsheissupposedtobemarketing—shejust views every time as an opportunity to market.

Indeed, organizations like the FBA, LSBA and NOBA can also provide you with the marketing connections to other lawyers – if not to exact clients – who will see you speak at a CLE, ask questions at a Lunch with the Court or participate in a certain pro bono project and raise their opinion of you and yourability.Marketinggrowthis,inadditiontothepersonalandprofessionalfulfillmentthatcomesfromthingslikeprobonoorvolunteeropportunities,justanotherbenefitthattheFBAoffersyounglawyers.

Thismonth’seditionofThe Advocate is full of ways for you to market yourself—join us for the Federal PracticeSeries,ourConflictResolutionProgramattheInternationalSchool,theRubinSymposium,orvolunteerforournewLawSchoolMentorshipProgram.Thissummerwehavemoresocialeventsandthelaw-clerkorientedMorningattheFederalCourthouse.Ihopetoseeyouthere—wecanworkonthosenetworks of ours.

MOCK OCIs The Law Schools Committee recently held mock interviews for Tulane and Loyola law students. The students met one-on-one with local attorneys and received feedback on their resumes, writing samples, andinterviewstyles.SpecialthankstoTodEverageandKeanMillerLLPforhostingthestudentsandto our volunteer interviewers: Carlos Benach, Taylor Brett, Laura Cannon, Blake Crohan, Eric Foley, AtoyiaHarris,RosalieHaug, FritzMetzinger,MeghanSenter,GrahamWilliams,BrittanyWolf, andBilly Wright.

Page 14: S E V IN MEMORIAM Judge Peter Hill Beer (1928-2018)nofba.org/wp-content/uploads/2018_FBA_Advocate_Spring_digital.pdfIN MEMORIAM Judge Peter Hill Beer (1928-2018) BY: PETER J. WANEK

TRIALS AND TRIBULATIONSTrials 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.

cont’d on page 15

Title VII - Retaliation

Irma Stephens v. Board of Supervisors of the University of Louisiana System

Irma Stephens was employed by Defendant Board of Supervisors of the University of Louisiana System as a janitor at Southeastern Louisiana University from April 2008 untilMay 22, 2017. OnMay 5, 2014, Stephensfiled a written grievance with the Defendant allegingthat her supervisor discriminated against her due to her race. Stephens is an African-American woman. Stephens alleged that she received negative performance evaluations, written and verbal reprimands, and other adverseemploymentactionsaftershefiledthegrievance.

Stephens asserted claims of race-based discrimination and retaliation in violation of Title VII. Her race-based discrimination claim was dismissed before trial.

After a short deliberation, the jury returned a verdict in favor of the Defendant.

Docket No. 16-6885, E (S. Morgan) (Jury trial held1/16/18, 1/19/18 and 1/22-23/18)

MaritimePersonalInjury

Raymond Dardar v. T&C Marine, LLC

Dardar,anemployeeofDefendantT&CMarine,LLC,alleged that he sustained a foot injury while working as a seaman aboard the M/V SHELBY COURTNEY.Specifically, Dardar alleged that he suffered an injurywhen his left foot was smashed by a door aboard the vesselonMay23,2016.

Dardar claimed that his left foot injury was slow to heal due to peripheral arterial disease, a condition discovered after the accident. Plaintiff brought claims for Jones Act negligence, unseaworthiness, maintenance and cure, and compensatory and punitive damages for failure to pay maintenance and cure.

Defendant,T&CMarine,deniedthatadooronthevesselhadslammedonPlaintiff’sleftfootcausinganinjury.

After deliberating for more than four hours, the jury found for the T&C Marine on the Jones Actand unseaworthiness claims, but for Dardar on the maintenance and cure and failure to pay claims. They awarded the following damages:

Cure:$3,500

CompensatoryDamages:$72,500

PunitiveDamages:$20,000

Attorneys Fees: To be determined.

In addition, the Court awarded Dardar maintenance through the date of maximum medical improvement selectedbythejuryatastipulatedrateof$20/day.

Docket No. 16-13797, H (J.Milazzo) (Jury trial held1/22/18–1/24/18)

Louisiana Tort Law: Slip and Fall

Breunetter Wright v. Wal-Mart Stores, Inc., et al.

Wright alleged injuries to her elbow and knee when she slippedandfellinapuddleofwaterinsideaWal-MartStore. She had prior surgeries on her knee and a history of Lupus, which affected her joints.

The jury found that Wal-Mart was not negligent incausing the accident, and returned a defense verdict.

Docket No. 17-887, S (M. Lemmon) (Jury trial held1/22/18, 1/23/18)

Page 15: S E V IN MEMORIAM Judge Peter Hill Beer (1928-2018)nofba.org/wp-content/uploads/2018_FBA_Advocate_Spring_digital.pdfIN MEMORIAM Judge Peter Hill Beer (1928-2018) BY: PETER J. WANEK

TRIALS AND TRIBULATIONS (CONT'D)

Section 1983 – Fourth Amendment

Lyle Dotson v. Huey McCartney et al.

Lyle Dotson was stopped, detained, and arrested by the Louisiana State Police in the French Quarter onOctober 7, 2015.At the time, Lylewas eighteen years old, visiting New Orleans on a group architectural tour with his father, a professor at Ball State University.

Defendants Calvin Anderson, Tagie Journee, and Huey McCartney are Louisiana StateTroopers. They stopped and arrested Lyle based on information they obtained from Defendant Trooper Rene Bodet and other state troopers in the French Quarter. The troopers believed that Lyle was a “shadow”—someone following undercover troopers to determine if they were policeofficers.

Plaintiff asserted four distinct Fourth Amendment violations: (1) subjecting him to a Terry stop without reasonable suspicion; (2) unreasonably using handcuffs during the stop; (3) continuing todetainhimafterhisidentifywasverifiedandany reasonable suspicion had dissipated; and (4) arresting him for battery against an officerwithout probable cause.

After approximately five hours of deliberation,the jury returned a verdict in favor of the Defendants.

DocketNo.16-15371,E(S.Morgan)(Jurytrialheld1/24/18–1/29/18)

DiscriminationinviolationoftheADAand§504of the Rehabilitation Act

Arce v. Louisiana State et al.

Nelson Arce was a deaf individual who pleaded guilty to a drug possession offense in Jefferson ParishinFebruary2015.Nelsonandhisfather,Lazaro Arce, alleged that they repeatedly requested that the State of Louisiana, through the Department of Public Safety and Corrections (“Louisiana”), provide Nelson with a qualified

American Sign Language interpreter (“ASL interpreter”) for his meetings with his probation officer. However, Nelson and Lazaro contendedthat Louisiana did not provide an interpreter, and instead relied on less effective means to communicate with Nelson.

Nelson and Lazaro argued that Nelson misunder-stood the terms and conditions of his probation. As a result, Nelson allegedly inadvertently violated his probation.

After pleading guilty in December 2015 to aviolation of his probation, Nelson was incarcerated at the Jefferson Parish Correctional Center (“JPCC”) for 90 days. Nelson and Lazaro alleged thatSheriffJosephLopinto,inhisofficialcapacityas the Sheriff of Jefferson Parish (“Sheriff Lopinto”), should have provided an interpreter to Nelson at times during the incarceration, including at a disciplinary hearing. According to Nelson and Lazaro, JPCC staff never provided Nelson with an interpreter.

Louisiana and Sheriff Lopinto denied that they violated federal nondiscrimination law, denied that any discrimination experienced by Nelson was intentional, and argued that Nelson was not injured by their actions.

During the pendency of the case, Nelson passed away for unrelated reasons. Christine Ann Shelton, themotherofNelson’stwochildren,wassubstitutedinNelson’splace.

The jury found that Louisiana and Sheriff Lopinto violated Title II of the ADA and intentionally discriminated against Nelson. However, the jury found that Nelson was not injured as a result of the violation. Thus, Christine Ann Shelton received nominal damages from Louisiana and Sheriff Lopinto.

Prior to trial, the parties agreed to a stipulation that a violation of Title II of the ADA resulted in a violation of the Rehabilitation Act.

DocketNo.16-14003,I(L.Africk)(Jury(8jurorstostart,7deliberated)trialheld12/11/17-12/15/17)

TH

E A

DV

OC

AT

E

15

Page 16: S E V IN MEMORIAM Judge Peter Hill Beer (1928-2018)nofba.org/wp-content/uploads/2018_FBA_Advocate_Spring_digital.pdfIN MEMORIAM Judge Peter Hill Beer (1928-2018) BY: PETER J. WANEK

The Fifth Circuit en banc (In re Larry Doiron, Inc., 2018WL 316862, at *7 (5th Cir. Jan. 8, 2018))has handed down an historic re-working of the test for determiningwhether oilfield contracts aremaritime ornon-maritime in nature. Harkening back to the United States Supreme Court’s eminently practical, simplemaritime contract test in Norfolk S. Ry. Co. v. Kirby,543U.S.14,22(2004)thatconsiderswhether“thesituationpresented…[has]agenuinelysaltyflavor,”theen banc decision in In Re Larry Doiron, Inc.simplifiesdecades’worth of confusing and often inconsistent jurisprudence to give a more streamlined and hopefully predictable rule fordeterminingwhetheroilfieldcontractsaremaritimeor not.

And this new rule will likely have immediate real-world implications. In the offshore/nearshore oil and gas exploration industry, the use of knock-for-knock indemnity agreements in service contracts has been a standard, critical commercial tool for virtually as long as the industry has existed. The parties negotiate these (typically) mutual back-and-forth indemnity provisions, nearly always coupled with concomitant belt-and-suspender agreements to procure insurance in favor of the indemnified party (in case the indemnitor cannotmeet its obligations on its own), in order to give some predictability ahead of time as to what their potential liabilities for a project may be.

The courts, however, have for decades complicated these efforts at arms-length agreements to foster commercial predictability by applying a byzantine, “perplexing”1 set of fact-intensive, seemingly ad hoc rules to determine whether contracts relating to offshore/nearshore drilling are “maritime contracts” governed by maritime law that validates such indemnity agreements; or “non-maritime contracts” governed by state law that - at least in Louisiana and Texas and/or on the outer continental shelves of those states - invalidates such indemnity agreements pursuant to so-called “anti-indemnity” statutes. The distillation of this jurisprudence (insofar as it could be distilled) was the two-step, six-factor Davis test, which was less a definitive test and more a very rough guidepost ofcobbled together, fact-intensive inquiries that almost

1 Demette v. Falcon Drilling Co., 280 F.3d 492, 500 (5th Cir. 2002), overruled by Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778 (5th Cir. 2009).

necessarilyresultedincase-specificoutcomesdependingonwhichofthevirtuallyinnumerableoilfieldactivity(-ies) was at issue (wireline operations, decommissioning, well-stimulation, etc.).

Into this quagmire, a Fifth Circuit panel in In Re Larry Doiron, Inc., 849F.3d602 (5thCir.Feb.23,2017,rev’dMar.7,2017) slogged its way through the Davis testinacaseinvolvingflowbackoperations(essentiallystimulating an older natural gas well) performed in state watersonafixedplatform.Thecruxoftheproblemindetermining the maritime/non-maritime nature of the contract stemmed from the fact that the overarching masterservicecontract(MSC)fortheflowbackworkdidnot call for or contemplate any vessel involvement; but mid-waythroughthejob,theflowbackcontractor(STS)required a crane to manipulate some of the flowbackequipment. In turn, the only way to get a crane to the platform was via tug and barge, which required the platform owner (Apache) to subcontract with LDI to charter in the necessary vessels to allow STS to do its workundertheMSC.Duringtheensuingoperations,anSTS technician was injured, and LDI sought indemnity from STS under the terms of the Apache-STS MSC(which provided for indemnity from STS to Apache and anyofApache’ssubcontractors).

The Doiron panel went through the painful exercise of attempting to apply the Davis factors to this unique fact pattern, and ultimately determined that the Apache-STS MSC was a maritime contract (such that the indemnity to LDI was valid) - although the court did so only hesitatingly, specifically stating that its “holding[was]confinedtothefactsbefore[it]”andshouldnotbeused as precedent in later cases. In re Larry Doiron, Inc., 849F.3dat610.

Moreover, two of the three judges on the originalDoiron panel took the opportunity in a special concurrence to call for en banc rehearing, echoing the long-running criticisms of the Davis testfor“creat[ing]uncertainty, spawn[ing] litigation, and hinder[ing] therational calculation of costs and risks by companies participating in [the offshore/nearshore oil and gas]industry.” Id. at 611. Taking heart in this directive, STS anditsinsurersfiledapetitionforen banc rehearing; and after the mandatory poll of all sitting Fifth Circuit judges

AN OPINION WORTH ITS SALT - FIFTH CIRCUIT EN BANC SIMPLIFIES RULE FOR IDENTIFYING MARITIME CONTRACTS IN THE OILFIELD

cont’d on page 17

Page 17: S E V IN MEMORIAM Judge Peter Hill Beer (1928-2018)nofba.org/wp-content/uploads/2018_FBA_Advocate_Spring_digital.pdfIN MEMORIAM Judge Peter Hill Beer (1928-2018) BY: PETER J. WANEK

resulted in a majority voting for rehearing, the case was taken up before for en banc reconsideration.

Nearly a year later, the Fifth Circuit en banc issued its opinion reversing the panel in Doiron, holding that the Apache-STS flowback MSC was a non-maritimecontract (notwithstanding the unexpected use of vessels), andthattheLouisianaOilfieldAnti-IndemnityAct(La.Rev.Stat.§9:2780)thereforeinvalidatedanyindemnityin favor of LDI.

However, more importantly than this result itself, the en banc court in Doiron announced a new, much simpler, more straightforward and intuitive two-factor testfordeterminingifanoilfieldcontractismaritimeornot-thatis,whetheritissufficiently“salty”totriggerapplication of maritime law to the exclusion of state law:

First, is the contract one to provide services to facilitate the drilling or production of oil and gas on navigable waters? . . . Second, if the answer to the above question is “yes,” does the contract provide or do the parties expect that a vessel will play a substantial role in the completion of the contract? If so, the contract is maritime in nature.

2018 WL 316862 at *7. Based on these two questions, the court determined that because the use of vessels in the Apache-STS-LDI scenario was unexpected in the scope of the original work, theMSC was necessarilynon-maritime.

That said, the death knell of Davis cannot ring out just yet; the Doiron en banc court noted that there may be residual usefulness of the kaleidoscopic Davis test in the context of the new two-factor test:

The scope of the contract may be unclear; the extent to which the parties expect vessels to be involved in the work may also be unclear. In resolving these issues, courts may permit the parties to produce evidence of the work actually performed and the extent of vessel involvement in the job [i.e. the Davis factors].”

Id. at *8. Nonetheless, it is absolutely clear that the Davis factors are secondary/supplemental only, and that theultimateresolutionofwhetheranoilfieldcontractismaritime or not will be determined under the practical

two-factor Doiron test. This result - perhaps a rarity in thelegalworld-wasdrivenbytheCourt’sconcernsforthe practical realities of the industry and the end-goal of creating a framework that would allow some sense of certainty when negotiating agreements:

This test places the focus on the contract and the expectations of the parties. This is the proper approach in a contract case and assists the parties in evaluating their risks, particular-lytheirliabilityunderindemnificationclausesin the contract.

Id.

Given the omnipresence of indemnity/additional insurance provisions in oilfield contracts, and thecommercial importance of certainty (within reasonable parameters) of contractual risk allocation in the potentially high-risk/expense world of oil and gas exploration, the Doiron decision should prove to be a welcome solution to a perennially perplexing quandary. And to be sure, despite its elegant simplicity, the new Doiron test will inevitably face problems of its own. What will fall within the scope of contracts “to facilitate the drilling or production of oil and gas on navigable waters” under thefirstDoiron prong? Asaspecific, timelyexample,will contracts for decommissioning (i.e. deconstructing) offshore facilities after wells are plugged and abandoned be considered contracts “to facilitate the drilling or production of oil and gas”?

It remains to be seen how far the new Doiron test may extend, and how it will affect existing contracts that were drafted under the prior labyrinthine rule of Davis. Butinthemeantime,oilfieldcontractorsandoperators,and perhaps equally importantly their insurers, should carefully consider the scope and nature of work in their service contracts, and specifically draft with an eyetowards the new two-factor test.

Christopher Hannan is a shareholder at Baker Donelson in New Orleans, with a practice focused on inland, offshore and oceangoing maritime matters. Chris served as a law clerk for Judge Carl J. Barbier in 2008-2009, and is the blogmaster for Baker Donelson’s maritime law blog “Striding the Quarterdeck” (www.stridingthequarterdeck.com).

AN OPINION WORTH ITS SALT - FIFTH CIRCUIT EN BANC SIMPLIFIES RULE FOR IDENTIFYING MARITIME CONTRACTS IN THE OILFIELD (cont'd)

Page 18: S E V IN MEMORIAM Judge Peter Hill Beer (1928-2018)nofba.org/wp-content/uploads/2018_FBA_Advocate_Spring_digital.pdfIN MEMORIAM Judge Peter Hill Beer (1928-2018) BY: PETER J. WANEK

Attorney Conference Center - Your Office Away From HomeThe 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 NewOrleansChapteroftheFederalBarAssociation,theAttorneyConferenceCenterbenefitsattorneysdoing 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. ContacttheNewOrleansChapteroftheFBAbyphoneat(504)589-7990orbyemail, [email protected].

Federal Bar AssociationNew Orleans Chapterc/o W. Raley Alford IIIChapter President500 Poydras St., Room B-245New Orleans, LA 70130

Interested in becoming a member of the Federal Bar Association?Contact:Federal Bar Association1220 North Fillmore St., Suite 444Arlington, VA 22201(571) 481-9100Fax (571) 481-9090www.fedbar.orgorMembership ChairMichael Ecuyerc/o Attorney Conference Center500 Poydras Street, Room B-245Hale Boggs Federal BuildingNew 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.

FIRST CLASS MAIL

U.S. POSTAGE

P A I D

PERMIT NO. 385

NEW ORLEANS, LA

Editorial Board: PEtEr WanEk, Colin CamBrE, larry CEntola, arthur kraatz

Please contact us at: [email protected]

SAVE THE DATE FOR UPCOMING EVENTSLunch with the Court with the Hon. Elizabeth Magner

April 18, 2018 at 12 noon. U.S.BankruptcyCourt-EDLA,500PoydrasStreet,B-709

26th Anniversary Judge Alvin B. Rubin SymposiumApril19,2018from2pmto4pm

U.S.DistrictCourt-EDLA,500PoydrasStreet,Rm.C-501

Admiralty Law Committee Meeting and Social April25,2018at4pm

U.S.DistrictCourt-EDLA,500PoydrasStreet,Rm.B-124

The Art of Investigating and Prosecuting ForgeriesApril26,2018from3p.m.to5p.m.,receptionfollowing

George Rodrigue Foundation of the Arts, 747MagazineStreet

Lunch with the Court with the Hon. Eugene Davis June 13, 2018 at 12 noon

U.S. Court of Appeals for the Fifth Circuit, 600 Camp Street