The Supreme Court of Texas has rejected an emergency writ of mandamus filed by a handful of Texas businesses and individuals challenging the constitutionality of COVID-19 restrictions instituted by local Texas governments.
Tuesday morning, the court sent the case, In re Salon a la Mode, et al, back to the lower courts where the court said it should have been reviewed in the first place.
“The Supreme Court is generally a court of last resort,” wrote Justice Jimmy Blacklock, concurring in the court’s decision to reject the direct challenge. “Our original jurisdiction to issue the requested relief is doubtful, and the petition is presented without supporting affidavits and with no record on which the Court could base its inquiry. Just as other government officials must not exceed their rightful power in extraordinary circumstances, this Court also must not do so.”
The case was filed last week by nine businesses in various Texas cities — two hair salons, three vaping supply stores, a Henderson County drag strip, a gym, a martial arts and yoga studio and an axe-throwing facility — who claimed that city and county orders to shutter their businesses were “unsupportable executive orders” infringing on their legal and constitutional rights.
Included among the relators were two individuals — Alan Snider and David Watts — who claimed they were arbitrarily punished by authorities. Snider said he was cited by a Cleburne police officer for walking his wife to a Walmart. Watts said he was denied a chance present his tax-protest live before the chief tax appraiser in Kauffman County.
In writing for a majority of the court, Justice Blacklock did not evaluate the claims, expressing sympathy for both sides.
“Those who object to these restrictions should remember they were imposed by duly elected officials, vested by statute with broad emergency powers, who must make difficult decisions under difficult circumstances,” Blacklock wrote.
“At the same time, all of us—the judiciary, the other branches of government, and our fellow citizens—must insist that every action our governments take complies with the Constitution, especially now. If we tolerate unconstitutional government orders during an emergency, whether out of expediency or fear, we abandon the Constitution at the moment we need it most,” he continued.
The concurrence can be found here:
SCOTX: Bar Exam to Proceed; Fall Exam Date Added
By Allen Pusey
(May 2) In its 13th emergency order regarding statewide changes in court deadlines and procedures to cope with the demands of the COVID-19 pandemic, the Supreme Court of Texas announced adjustments in the annual state bar examination.
The court ordered that the bar exam can continue as scheduled on July 28-30, but subject to local health and safety guidelines. Because those guidelines will likely include limitations on group size and recommendations for social distancing, the court has approved a plan by the state’s Board of Law Examiners to hold a session bar examination session on September 9-11.
The order (which can be found here) allows those who have already registered, but are uncomfortable taking the exam in July, to postpone taking it until the September session without penalty or additional fees. Fees paid will be valid for any future examination or an application for admission based on a transferred Uniform Bar Examination score.
The order notes that those taking the bar examination in September will likely release scores for the September examination within three weeks of the date it would normally release scores from the July examination.
For additional, earlier news and/or announcements concerning the effects of the COVID-19 pandemic, please scroll below.
Baker Botts Announces Temp Pay Cuts, Ogletree’s Ron Chapman has a Return to Work Guide for You
By Mark Curriden
(April 27) Baker Botts is the latest firm to announce compensation cuts for its lawyers and staff for May, June and July, but it is one of the first to officially push back the start date for the more than 50 rookie attorneys originally scheduled to start in the fall.
Baker Botts managing partner John Martin, in a memo emailed this morning to the firm’s employees and lawyers, said the salary reductions are steeper for those who make more money and are being imposed to “help avoid layoffs.”
The partners, Martin said, “have agreed to compensation reductions to absorb the bulk of the financial impact expected by the pandemic.”
The firm is cutting the compensation of Baker Botts counsel by 20% to 30%, depending on their salary level. Associates will see a 20% salary reduction. Staff earning more than $70,000 will get a pay cut up to 25% depending on their annual salary, while those making under $70,000 will see no reductions.
“The unprecedented financial stress on clients and the global economy due to the pandemic has prompted us to make the difficult but necessary decision to reduce salaries temporarily, with greater reductions at higher levels, to protect our firm, retain our extraordinarily talented team and preserve the income of our most vulnerable employees,” Martin said in a written statement.
In his memo, Martin said that the firm plans to re-evaluate its financial situation in July to see if further steps are necessary.
“As with many other law firms, we also must act prudently to protect the financial health of the firm and protect our people,” he wrote.
Martin, in the memo, stated that new law school graduates slated to start at Baker Botts in the fall have been informed that they will not be starting until 2021. The memo doesn’t indicate whether that would be in January or later in the year.
“We are in this together and will proceed under a principle of ‘collective sacrifice’ as we continue to work collaboratively for our clients, while protecting the long-term health of the firm and our tremendous talent,” Martin wrote.
For additional news about law firm announcements related to COVID-19, please scroll below.
Returning to Work? Ogletree’s Ron Chapman Has a Guide for You
By Mark Curriden
As Texas and other states start reopening local economies, companies will soon start calling employees back to work.
Business leaders, however, need to develop plans for opening their doors after a month of being closed because of the COVID-19 pandemic and they need to understand that there are laws and regulations that need to be followed.
Ogletree Deakins, a national law firm specializing in labor and employment law, has published a book that provides a detailed roadmap for company executives and managers covering a multitude of issues.
Ogletree shareholder Ron Chapman says he received his first COVID-19 related call from a client in January. Since then, he and 30 lawyers at his firm devoted about 600 hours in developing Return to Work Guide, which has 50-pages of analysis and recommendations and 23 templates, flowcharts and checklists as practical tools to help companies craft and implement a strategic and safe return to work process.
The Texas Lawbook interviewed Chapman, who is based in Dallas, about the guide and what he is hearing from his clients.
Lawbook: Regarding COVID-19, we constantly hear words such as “unprecedented” used. As lawyers, however, we are always taught to look back to prior judgements and rulings and decisions as guidance for current decisions. Is there any situation in history that is similar to what we are facing to give lawyers and businesses a road map for current events?
Chapman: No. How’s that for a black-and-white answer from a lawyer? There really is nothing similar to this. In 2008-09, our team of lawyers focused on reductions in force was very busy planning and implementing workforce reductions. That would be the most analogous period, but what we’re seeing today is vastly different. Most employers are experiencing variations of furloughs and salary reductions as hopefully temporary measures. That adds an extra layer or three of complexity. Additionally, the orders and guidance change almost every single day. In 2008-09, we had to navigate the standard employment law statutes, but that was fairly routine for us, even with the volume. Today, we’re having to locate, analyze, incorporate and provide coherent, practical advice on a new order or new agency guidance almost every day.
Lawbook: When were the first calls you received from clients regarding COVID-19 and what were they about?
Chapman: My first client question was in January, and it was just a general question along the lines of “What should we be planning for?” We just sent the client our standard pandemic response tools and didn’t think much more of it at the time. However, it quickly became clear to the entire planet that this situation is far different than past pandemics. It was early March when the firm asked me to get involved with our coronavirus response team that has created all these resources for clients. We’ve been going pretty much non-stop for almost two months now.
Lawbook: How have the questions from clients evolved during the six to eight weeks that COVID-19 has jumped into our lives?
Chapman: For a while, we were getting the “What do we do when an employee tests positive?” question. Then we played whack-a-mole with all the closure orders coming out around the country and helping clients understand their obligations and options. Then we went through a period of furloughs, reductions in force and salary reductions, with lots of questions about unemployment requirements. Now we’re starting to see planning for the return to work or the return to the workplace.
Lawbook: Are questions different from GCs (or companies large enough to have GCs) vs. smaller businesses without GCs?
Chapman: The questions are actually similar, but the scope and therefore complexity are very different. For larger companies, they have to navigate different orders in every county, state and country in which they operate. That makes providing them with clear solutions much more difficult. In contrast, smaller companies face similar underlying issues but in fewer jurisdictions and therefore they have fewer variables to address.
Lawbook: Before we discuss the Guide, tell me how the firm’s resource center came about and what it is?
Chapman: During past pandemics, hurricanes or other similar events, we’ve always had a resource center on our website where we provide guidance on common issues employers are facing. With over 900 lawyers in 53 offices all practicing some element of labor and employment law, we have a lot of visibility into what the business community is experiencing, so it’s relatively easy for us to benchmark their needs and provide resources for them.
Lawbook: How is the Guide different from Ogletree’s Resource Center?
Chapman: The COVID-19 resource center is where we maintain all pandemic-related resources. We have regularly updated summaries of all the state and local closure and re-opening orders across the country, all the orders requiring screening or temperature testing of employees, FAQ’s on every subject imaginable and the like. The Return to Work Guide is focused only on return to work issues – the planning and implementation of a return to work strategy, whether that means returning employees from a leave of absence or returning those who have been working at home to the workplace. The Guide is about 50 pages of analysis and recommendations on common return to work issues, and then 23 separate templates, checklists, and surveys that serve as tools to help employers implement their plans in a safe and compliant manner.
Lawbook: How and when did the Guide come about?
Chapman: It was 100% client driven. We don’t tell clients what they need; rather, we listen to them and develop solutions. The Guide is so comprehensive and detailed that it would be cost prohibitive for most companies to hire us to create it. Recognizing that but wanting to offer clients a solution, we invested in hundreds of hours of attorney time to create the Guide before offering it to a single client. The demand is so high for it, we can offer it for a very small fraction of the cost of the time that went into it.
Lawbook: Is the Guide meant more for GCs or more for business leaders without a GC?
Chapman: Having a legal or HR background certainly will help understand the more nuanced issues, but the gist of it can be used by anyone who cares about compliance and safety.
Lawbook: I spoke with the GC of Buc-ees this week. He told me the rules and regulations from CDC, EEOC, OSHA and state and local governments and health agencies regarding COVID-19 are changing daily. Two questions: How can a business or even a lawyer be expected to keep up? Where are we seeing the biggest regulatory changes right now?
Chapman: No one business and no one lawyer can keep up with everything. That’s impossible. We’ve divided up the issues into teams – some track new closure or re-opening orders at the state and local level, some analyze new CDC and OSHA guidance every day, others are tracking global issues from around the world, and so on. Then we have our core coronavirus response team that assimilates that information and thinks big picture about how it fits in, what is coming next, and what employers need. Right now, the big question in the return to work planning stage are safety and childcare. How do we make the workplace safe, and with schools and daycares being closed, how are employees with younger kids going to be able to come to work? There is a lot of discussion about that right now.
Lawbook: What is the most bizarre question you have gotten from a client?
Chapman: Oh, I’d better not answer that one. They’ll surely recognize themselves in my answer.
Lawbook: What am I not asking that I should be asking?
Chapman: The last two months have been chaotic and stressful, but it’s also been the most rewarding period of my career. We’re really helping companies operate their business and survive this turmoil, rather than just dealing with the periodic one-off problems or complaints that arise, which is a lot of what we typically do. I’ve experienced even closer relationships with clients because now more than ever, we’re all in this together.
Hunton AK Tracking Spread of COVID-19 Litigation
(April 20) By Allen Pusey
Tough times lead to tough measures. Tough times and tough measures lead to litigation. That’s not necessarily a criticism; it’s just a statement of fact.
Tough times can also lead to new tools that inform and/or serve. With that in mind litigators at Hunton Andrews Kurth have created a tool to track any and all of the inevitable lawsuits emanating from the current COVID-19 pandemic.
Torsten Kracht, a litigation partner in the firm’s DC offices, is leading the effort. Working with Cognicion, a wholly owned e-discovery subsidiary of the Richmond-based firm, Kracht and his team are logging every case filed in every state and federal jurisdiction in an effort to track and analyze the legal fallout of the coronavirus pandemic.
Kracht said the Hunton litigation team began researching coronavirus litigation on an intensive basis as soon as it was clear that the epidemic was becoming a significant factor in public policy and commerce. They intend for the tool to have a public face, as well as a more detailed back shop of litigation details password-protected for firm lawyers and clients.
“The idea was to use the data to track the velocity of trends in (COVID-19) litigation for use as an attorney tool,” said Kracht. “But we realized that it might be of value to clients who want to see where there might be exposure as commercial cases develop.”
The database, simply titled “COVID-19 Complaint Tracker” is a geo-coded infographic of the US. By clicking on any state, you can locate summary statistics about the number and nature of the COVID-19-related lawsuits filed there. Behind the password protection lies the more specific details of case number, styling and docket matrix information for each case. As the cases mature, the database will provide even more detail about issues and outcomes.
Like protections against the virus itself, the data is still in its earliest phase of development. Tracking began on Jan. 30, and as of midday Monday (4/20) a total of 417 state and federal petitions had been gathered that relate to COVID-19-driven issues. And as might be expected, most of those cases track closely with those populations showing the most exposure to the virus.
Of the 417 cases, nearly 40% (160) are filed in New York, followed by California (66), Texas (30) and Florida (27). Of the 160 petitions filed in New York, 113 were related to prison and confinement issues. The 30 complaints in Texas were broadly distributed among rent lease & rejectment (4), civil rights (other than corrections complaints) and contract issues (4).
What sticks out for Kracht in the data he’s seen so far is the relative dearth of commercial claims and contract issues evidenced in the complaints. While it may be early in the process, the lack of litigation tracks with what he’s observing among his own clients.
“Based on what I’ve seen so far, I’m somewhat surprised at how well companies are working with each other,” Kracht said. “Maybe it’s because so many companies are facing what their contract partners are facing, there’s a larger recognition of what it is going to take for everyone to survive.”
“It’s pretty heartening,” Kracht said.
COVID-19 Firm Management Moves Update
(April 16) By Mark Curriden
Norton Rose Fulbright, Reed Smith and Clark Hill (aka Strasburger in Dallas) are the latest law firms to trim costs and preserve their balance sheets.
Norton Rose Fulbright U.S. Managing Partner Jeff Cody, in a written statement issued Thursday, said that the firm has “asked our attorneys and staff to accept a temporary reduction in compensation.”
“As we all know, the coronavirus is having an unprecedented effect on markets and businesses around the world and in the U.S.,” Cody said. “The extent of the virus’ impact on the legal industry is unclear at this time, but the road ahead appears challenging. In light of these conditions, US leadership believes it is prudent to take steps to address this uncertainty and ensure that our law firm emerges healthy and strong.”
“We also have made discrete reductions in our U.S. work force as part of our plan to safeguard the future of our more than 1,600 lawyers and staff,” he said.
Reed Smith, which has 113 lawyers in Texas, announced today that it is cutting associate salaries by 15% and counsel compensation by 10%. The Pittsburgh-founded firm announced last week that partner draws would be deferred.
Orrick, which has about 45 attorneys in Texas, announced last week that the compensation of staff and lawyers would be cut and that it is delaying the start date of the first year class that was scheduled to start working at the firm this fall.
Baker McKenzie, which has 113 lawyers in Texas, announced Monday that it was reducing the pay of some staff and lawyers by 15%.
Sheppard Mullin, which has about 30 lawyers in Texas, announced Monday that it was cutting compensation of some lawyers and staff by 15%.
Detroit-based Clark Hill, which has 170 Texas lawyers from its merger with Strasburger & Price, instituted a salary reduction for lawyers and staff two weeks ago.
Baker Botts Releases COVID-19 Resource Guide for Non-lawyers
By Mark Curriden (April 15)
Do you need to know the specific shelter-in-place rules for your county? Do you qualify for assistance with your utility bills? What are the rules regarding student loan payments during this time of crisis?
Baker Botts published an unofficial COVID-19 resource guide for dummies on Wednesday that provides assistance to regular people dealing with various issues during the crisis a little guidance.
The online resource guide is the result of more than 60 lawyers across the firm’s seven U.S. offices providing insight on the rules in their respective jurisdictions.
Keri Brown, a Baker Botts partner in Houston who heads the pro bono project, said the goal was to provide critical information to individuals who are most negatively impacted by the coronavirus and subsequent business shutdown.
“It is important not to lose sight of those who will be most adversely affected by the upheaval caused by the pandemic,” said Brown, who specializes in tax dispute litigation and estate and trust law. She also holds the title partner-in-charge of Baker Botts’ Corporate Social Responsibility.
The Texas Lawbook succeeded in getting Brown to spend a few minutes answer some of our questions about the guide, which has nearly 200 pages of substantive content.
Texas Lawbook: First, kudos to you and Baker Botts for doing such a public service. Second, How and when did the idea of this project come about?
Brown: In mid-March, we started thinking about what individuals dealing with the effects of COVID-19 in their lives—particularly lower-income individuals who may not know where to find answers to their questions—would need, in order to navigate the range of personal and economic issues that the pandemic has created for them. We wanted to create a resource that an individual could access and understand the options they had in dealing with their day-to-day issues. We also wanted to create a resource that our clients could pass on to their employees. Our starting point was the Harvey Crisis Response Guide that we created for the Houston area in 2017. We brainstormed additional topics that were unique to COVID-19, found lawyer volunteers from each of our U.S. offices, and got to work.
Texas Lawbook: What was the goal or mission at the start?
Brown: As part of our commitment to pro bono, our clients, and to the communities in which we live and work, we wanted to create a one-stop resource that individuals could turn to for simple explanations regarding the wide range of issues they are dealing with.
Texas Lawbook: Did objectives change at all during the process? If so, how?
Brown: The objectives did not change, but the end product grew significantly as we worked through the issues. Given the rapidly changing government guidance and information from businesses dealing with COVID-19, we made a substantial effort to keep the resources up to date as new guidance and information came through.
Texas Lawbook: Who is a project like this designed to help?
Brown: The COVID-19 Resources Guide is designed primarily for individuals who have questions about the effect of COVID-19 on their day-to-day lives. More and more individuals are having to decide between paying their rent or paying their utilities, or they find themselves—sometimes for the first time—in need of information about what kind of government assistance may be available to them, or they have questions about unemployment benefits. While this guide is not legal advice, our goal was to create a resource that was easy to understand, explained general concepts, and provided guidance on next steps and where they can go for more assistance.
Texas Lawbook: Obviously, you edited or oversaw the production of all the content. What are one or two substantive matters that surprised you?
Brown: The first was the overall depth of the government programs available. These are addressed primarily in our Federal guide. From the CARES Act, to the Families First Coronavirus Response Act, to the SBA’s various programs, there is an abundance of information out there that we tried to summarize as much as possible.
The second relates to how the courts have responded. Overall, the courts really get it. While you may not be able to step foot in many courtrooms right now, the judges and their staff are working very hard to make sure that people who truly need access to the justice system right now will continue to get it. Some courts are proceeding with business as usual, with the only change being that everyone is logging in and participating from home now.
Texas Lawbook: How much time/hours did the project take to put together?
Brown: It took about four weeks once we had a good structure in place. So far, lawyers have spent about 600 hours on the Guide. This doesn’t include our staff who were constantly updating information as it came in and handling the website.
Texas Lawbook: I know your practice area focuses on tax and estate planning. But what does it mean to be “partner in charge of corporate social responsibility?” Is that what we used to call the “pro bono partner?”
Brown: Being partner in charge of Corporate Social Responsibility includes pro bono, but it is so much more. This is a new position for our firm, so we are still defining what it means. Broadly, it covers our commitment to the communities in which we live and work, allocating our people and our financial resources to support our communities, being good corporate citizens, supporting our communities through our pro bono efforts, and aligning our CSR goals with those of our clients.
Texas Lawbook: What am I not asking that I should be asking?
Brown: “What else is Baker Botts doing to support our communities during this pandemic?” We presented a webinar for the nonprofit arts communities in March, in which we addressed the particular needs that our arts organizations have in dealing with COVID-19 and the difficult decisions they are having to make. My partners Bill Kroger and George Fibbe took the lead on developing and presenting that program. We also are working on a more generalized webinar for nonprofits dealing with COVID-19, which we expect to present in the next couple of weeks.
More Summer Programs Delayed, Partner Comp Deferred & Gunnison, CO Should Let Texans Stay
By Mark Curriden (April 9)
Baker Botts is the latest law firm in Texas to announce that it is delaying its summer associate program for about a month. But the large Houston-based corporate law firm has promised all 2Ls that they will be getting job offers next year.
“In the interests of the health and safety of our lawyers, staff and summer associates, as well as the uncertainty as to when our remote working period will end, we will be deferring the start date of our 2020 summer program by at least a month,” according to a written statement issued by Baker Botts leaders. “We expect we will host an online summer training program, with a robust curriculum that will provide our incoming class with interactive, remote professional development opportunities. We are also extending offers to all of our summer associates, contingent on maintaining strong academic performance. We will follow up with our incoming class when we have additional details.”
The partners at Winston & Strawn, including those in Dallas and Houston, have decided to defer their monthly draws by 50% over the next three months. The firm also expects to make a decision regarding schedules for its summer associate program in the near future.
“Because things are changing on an almost daily basis, we are taking a wait-and-see approach to the starting date of our summer program,” Tom Melsheimer, managing partner of Winston’s Dallas office told The Texas Lawbook. “To ease the anxiety of our recruits, we have assured them that they will be fully paid for the summer and that they will be getting offers.”
The Texas Supreme Court, in emergency order number 10, “has delayed service for garnishment writs to collect consumer debt” under the Texas finance code until May 8. The order states:
“For any accounts that are currently garnished, the parties are strongly encouraged to reach an agreement on the garnishment and courts are encouraged to ‘aid and facilitate a quick adjudication.’ A request for default judgment may be filed, but no hearings shall be set and the time to respond or file an answer will be postponed until April 30. No court shall dismiss a case for want of prosecution while the order remains in effect.”
And finally, Texas Attorney General Ken Paxton today sent a letter to the nervous Nellies at the Gunnison County Department of Health and Human Services in Colorado, who had passed a decree that all non-residents of the state should get the hell out.
Paxton stated that the county’s health board violated the Privileges and Immunities Clause of the U.S. Constitution when it ordered nonresident homeowners to vacate Gunnison County because of the coronavirus and to leave their toilet paper behind.
“Citizen of one state will be ‘treated as a welcome visitor rather than an unfriendly alien when temporarily present in another state,’” Paxton said, citing the federal constitution. “While I applaud several measures Gunnison County has taken to ensure the health and safety of its citizens, the banishment of nonresident Texas homeowners is entirely unconstitutional and unacceptable.”
(NEW) Attention Docs & Hospitals: Greenberg Traurig Patent Agent has ‘Medical Splash Masks’ for You
By Mark Curriden (April 7)
TV newscast after newscast are filled these days with doctors and political leaders saying they are short on the critical masks that help keep healthcare workers safe when treating COVID-19 patients.
Enter Greenberg Traurig patent agent Joseph Finan of Dallas.
A graduate of the Navy Nuclear Power School with an additional degree in mechanical engineering from Texas A&M, Finan is part of a growing grass roots effort using their 3-D printer expertise to produce medical masks for doctors, nurses and other healthcare professionals treating those infected with the coronavirus.
A registered patent agent, Finan uses his 3-D printer to make parts for an open-source medical splash mask developed by Joseph Prusa, who actually made the 3-D printer Finan uses.
Finan and his colleagues have already “assembled and delivered” 72 splash masks to medical professionals in the Dallas and plan to produce another 20 by the end of the day tomorrow.
“The feedback has been very positive,” Finan told The Texas Lawbook. “We’ve incorporated a forehead cover and we’ve recently had a suggestion to print an open source ear-saver that allows the pressure from a face mask’s elastic straps to be taken off the ears. We integrated the ear-saver into the splash shield headband design, which allowed us to stretch our dwindling elastic supply from having enough for 150 splash shields to over 300.
“We’ve also been working with modifying the ear-saver design to be longer to make the splash shields more comfortable and adjustable for a wider range of head sizes,” he said. “This new innovation allows us to supply the requested ear-savers, which can be used together with the splash shield or separately, to our frontline heroes.
Even so, Finan needs help identifying the hospitals who have the need for their masks and are able to accept them.
The Texas Lawbook interviewed Finan on the project.
Texas Lawbook: What caused you to start this effort? Was there something specific that triggered you into action?
Finan: My girlfriend, Melissa Guerrero, and I heard about the gap in the medical supply chain and started doing research to see if there were any 3-D printable parts we could make to help. What we discovered is a large grass roots effort in the 3-D printing community around the world to create a distributed manufacturing network to help the cause. Melissa scoured the Internet and found links to local Dallas medical professionals in need.
Lawbook: How many of you are involved in this project?
Finan: Melissa and I are a very small cog in the machine. There are a lot of people worldwide with 3-D printers who are willing to donate printer time. However, right now there is not a local coordinated effort here in Dallas to match the medical professionals and the makers (maker is term used for people who 3-D print like us) so we are looking to fill that gap. We have recently set up a GoFundMe (http://gf.me/u/xt8wy8) to help pay for the materials and reached our $1,000 goal in half a day. Our relatives, friends and colleagues have been very generous. As we find other makers in the Dallas community, we can share these funds to help pay for the costs of materials.
Lawbook: In as simple terms as possible, how does this work? What are the basic steps to go from thinking about using a 3-D copier to making masks? Also, what kind of machine/copier do you do this on?
Finan: The rigid portion of the splash shield was designed by the manufacturer of my printer: Joseph Prusa. A detailed description can be found here: https://www.prusaprinters.org/prints/25857-prusa-protective-face-shield-rc2. A 3-D model file is downloaded, sent to the 3D printer, and the printing process begins. We use 1” sewing elastic for the headband. We had some difficulty finding the parts for the transparent face cover, so we adopted suggestions in the community to use 10 mil transparent binder covers instead. We then used an open source 3D modeling software called Blender to modify the ridged printed portion to where the pegs align with a 3-hole puncher: this standardizes the process while speeding it up and removing variability. Now our local medical professionals can make replacement face covers themselves from common office supplies as the face covers become scratched and worn. The printed ridged portion is strong biodegradable plastic and all parts can withstand bleach and alcohol cleaning.
Lawbook: How many masks have you made? How many can you make per day?
Finan: Our capacity averages about five masks per day, as printing is a relatively slow process. We have already delivered 32 completed splash shields, and we are delivering another 20 soon. As we get more people printing in the Dallas area, we are optimistic we can grow this number proportionally. I have used my own funds to purchase a second Prusa MK3S MMU2 3D printer from Joseph Prusa that will double our production capability. The second 3D printer should be assembled and ready by next week.
Lawbook: How much does it cost to make per mask?
Finan: The cost is surprisingly reasonable. We are estimating a total of about $3.00 per completed splash shield set.
Lawbook: What are you wanting to do with the masks?
Finan: We are providing the splash shield to local medical centers, but the goal has become to use the research we have already done to expand our efforts to other projects. We are currently looking at working with a group in NYC to help supply ventilator splitters so that multiple people can share the same ventilator machine. We want to create a network to help them and then have a network ready for when Dallas is likely to experience the same shortage of machine parts and supplies.
Lawbook: Can I order a mask?
Finan: Only if you are a medical professional in need. However, this is an open source project, so you are free to make your own.
Lawbook: What am I not asking that I should be asking?
Finan: The project is bigger than any one person. So getting the word out that there are makers in the Dallas community that can help and that the help is needed is more important than highlighting the efforts of any one individual. By coordinating our efforts, we can build a distributed 3D manufacturing network that can help supply our front line with the items they need to fight the virus.
The material such as the 3D filament, elastic and office supplies are not on the “essential” list so supplies are dwindling. Shipping for what is out there is being canceled or delayed until late April which will be too late. We need help from others to highlight to our leaders that these materials are essential for the fight and that these businesses and factories need to stay open. We need more cogs in the machine. Anything anyone could do to help get the word out would be greatly appreciated.
Melissa and I can be contacted by makers and medical professionals at Dallas3dPrintersClub@gmail.com.
Munck Wilson, V&E, Norton Rose Fulbright & Others Take COVID-19 Actions
By Mark Curriden (April 3)
The intellectual property and technology law boutique Munck Wilson Mandala announced Friday that the firm is “implementing compensation reductions among partners, associates” and some staff.
Vinson & Elkins, in a letter to about 100 law students, has announced that it is delaying the start of its 2020 summer associate program to mid-June.
Norton Rose Fulbright’s Asia, European and Middle East operations is asking some of its staff to go to a reduced work schedule, though the employees in the firm’s U.S. offices are not included.
The Texas Lawbook, which interviewed more than 20 law firm leaders in Texas this week, has learned that additional announcements regarding compensation deferrals and delaying summer clerkships are expected in the next few days.
Munck managing partner William A. Munck became the first Texas law firm leader on Friday to publicly announce that his Dallas-based firm is implementing payroll reductions as a result of COVID-19. The firm has about 70 lawyers.
Munck made it clear Friday that the firm “has no plans to reduce attorney headcount,” though a “limited number of salaried employees will be furloughed and some hourly employees will work reduced hours.” He said that all employees will receive full benefits.
“There is tremendous uncertainty in the economy right now, brought on by the ongoing pandemic,” Munck said in a written statement. “We are taking precautionary measures to better position the firm and to ensure our workforce and clients have what they need.”
Munck said the firm began modeling business outcomes three weeks ago that projected the next three quarters of 2020. The numbers from these models led the firm to take precautionary steps in order to better position Munck Wilson going forward. He said several partners chose to defer their base salary for the next three months, while others agreed “to take deeper pay cuts to ensure the firm could protect the salaries of the remaining staff.”
V&E Summer Program
Houston-based V&E this week wrote the 100 or so law students scheduled to start the firm’s summer associate program in mid-May to announce a new start date: June 15, “at the earliest.”
“We did not make this decision lightly; however, several of our offices are now under mandatory stay-at-home orders that are expected to remain in effect through April and into May,” V&E partner Stephen Gill wrote to the firm’s summer associates on Wednesday.
“Our top priorities include maintaining the health and safety of our employees and transparency with our colleagues,” Gill wrote. “As we plan for the possibility that we will be serving our clients remotely into June and potentially beyond, it became clear to us that we will not be ready to welcome you into our offices on May 18, as originally planned.
“We wanted to share this decision with you so that you can make the appropriate plans in advance for matters such as travel and housing,” he said.
Sidley Austin announced last week that it is delaying the start of its summer associate program in Texas until early June. Other law firms are expected to follow suit in the next few days.
Norton Rose Fulbright
Norton Rose Fulbright, which has its U.S. operations based in Houston, announced Thursday that it is deferring partner payment distributions, delaying any bonuses and offering certain staff employees the opportunity to go to four-day work weeks for reduced compensation. But the announcement stated that this applies only to the firm’s offices in Asia, Europe and the Middle East – not those in the U.S.
“In this current crisis, we believe that it is prudent to take preemptive action to protect our people and our business,” Peter Scott, managing partner of the firm’s practices in Asia, Europe and the Middle East, said in a statement. “We know this is a challenging time for all of our people and we want to safeguard jobs as far as possible.
“It is not likely that all parts of the business will be adversely affected by the current situation,” Scott added. “So it is quite possible that employees who have signed up to the scheme in some parts of the business will not be required to reduce their working hours.”
In Other Firm News…
Reed Smith, which has about 112 lawyers in its Austin, Dallas and Houston offices, announced Monday that is reducing partner distributions. Baker Donelson, a Tennessee-based firm that has two-dozen lawyers in Houston, announced Wednesday that it reduced the draws and salaries for its partners and plans to furlough employees over the next few weeks. Cadwalader, which no longer has offices in Texas, stopped paying partners and cut associate salaries.
On Friday, Clark Hill confirmed with The Texas Lawbook that it has taken various cost-cutting measures, including “a freeze on all discretionary spending, a revision of certain benefits and pay reduction for attorneys and staff.” The firm also has made the “very difficult decision” to offer indefinite leave of absence to certain employees.
“In common with professional services organizations, and businesses across all sectors and economies, we are undertaking a wide variety of cost cutting measures to ensure that our firm will remain a sustainable business, and stable employer, throughout this crisis and beyond,” a firm spokesperson said in a statement. “We hope that this will be a temporary measure, and anticipate that as we emerge from this period of global health and economic crisis, we will be able to revisit these difficult decisions.”
One firm, Culhane Meadows, said it’s not firing, but hiring.
Based in Dallas, Culhane Meadows is the largest full-service, women-owned law firm in the country. Since its 2013 inception, the firm, which operates in 10 markets, has been fully equipped for its attorneys to work remotely every day.
And due to its low overhead, Culhane Meadows is growing at a time most firms are shedding back salaries or certain parts of their operations to save costs in light of the coronavirus. Kelly Rittenberry Culhane, one of the firm’s founding lawyers, said the firm is looking to expand its current 70-plus lawyer headcount, which is largely made up of former corporate and BigLaw lawyers.
“From an operational standpoint, we are business as usual,” said Culhane, who serves as managing partner of the firm’s Texas and Chicago offices. “We have absolutely no plans to make changes in our compensation system or to reduce our attorney or staff rosters. To the contrary, we’re still actively recruiting and interviewing a number of attorneys who are searching for a better way to practice law.”
Culhane said with the firm’s low overhead and cloud-based structure, Culhane Meadows is free of the financial liabilities that “burden the balance sheets” of traditional law firms – rent, utilities and a large staff payroll, as a few examples. She said the firm has well-established technology and infrastructure in place that allows the attorneys to continue serving clients in a secure environment – technology that the traditional brick-and-mortar firms “are scrambling to put in place today.”
“I can’t imagine the chaos caused by having all your employees in an office one day then at home with no idea when they can return to work – while supporting clients who likely need their lawyers more than ever before,” she said.
“Culhane Meadows is very thankful to be in a position to focus on supporting our clients without having to worry about setting up technology systems and reconfiguring infrastructure in the middle of a crisis,” she added. “We empathize and are here to support brick-and-mortar firms who are understandably struggling and regularly co-counsel with firms to pitch in.”
Texas Lawyers Engage in Virus-Related Pro Bono Efforts
By Claire Poole (April 1)
Several law firms in Texas are rolling out pro bono efforts in light of the spreading coronavirus and the need for supplies and resources in their communities. The Texas Lawbook will be writing about them as part of its continuing coverage, so please let us know how your firm is participating by emailing firstname.lastname@example.org.
Hogan Lovells provides masks, goggles to Houston hospital
Hogan Lovells US said March 31 that its Houston office collected around 70 masks from the emergency bags it supplies all of its employees and donated them to Houston Methodist. Overall, the firm has donated 2,131 masks and 502 pairs of safety goggles. Houston litigators Aaron Crane and Bruce Oakley, who is the office’s managing partner, are leading the local effort with office administrator Veatris Negrete.
Kirkland & Ellis advises on the formation of Feed the Front Line
Kirkland & Ellis said March 31 that Houston corporate partner Ahmed Sidik and associate James Long spent last week on a pro bono engagement in which they helped form Feed the Front Line, a nonprofit started by a group of professionals from Bain & Co. The organization’s mission is to buy meals from local restaurants struggling in the current environment and provide them to healthcare workers fighting COVID-19 at various Houston and Dallas hospitals (https://www.ftfl.org/).
Sidik and Long’s work covered all aspects of non-profit formation, including corporate and tax structuring, drafting formation documents and assisting with governmental filings to ensure tax-exempt status for the organization. They also are continuing to counsel Feed the Front Line on various legal matters as the organization plans for growth in additional cities across the U.S.
Anne-Marie Firth, one of the Bain Houston consultants leading the effort, said the organization’s partners include such restaurants as Common Bond, Katz’s and Phoenicia Specialty Foods in Houston and HG Sply Co., BBBop, Sixty Vines, Rafas and Jose, Beto & Son in Dallas and hospitals Harris County Public Health, Memorial Hermann, Baylor, Scott & White and UT Southwestern. The nonprofit delivered 400-plus meals in its pilot week and recently added Houston Methodist to the list of hospitals it’s serving.
DBA Coronavirus Efforts Designed to Support Members
By Natalie Posgate (March 26)
Texas lawyers are going through quite an adjustment as most major cities have issued shelter in place orders.
Although they’re able to trade their hours spent commuting for, perhaps, quality time with their high-schoolers learning the Tik Tok dance du jour, lawyers are already feeling the stress that this new remote working world brings.
That’s why the Dallas Bar Association is the latest organization to create a coronavirus task force, where members of the Dallas legal profession can find resources and support as they navigate the many pressures the coronavirus brings to conducting their practices and law firms.
The DBA created its task force at a time the organization itself is navigating how to continue conducting its operations in the virtual world — one that, for the time being, doesn’t include the DBA’s home at the Belo Mansion.
“We have a tremendous sense of community at noon every day … that sense of community is to some degree changing,” said DBA President Robert Tobey, referring to the daily CLE luncheons and other events the Belo hosts that allow members of the Dallas legal community to connect with each other. “We are, I think, being hurdled five years into the future with this crisis.”
“We are determined to help our members through events like this one,” added Tobey, a partner at Johnston Tobey Baruch. “We want to be good stewards for our community.”
The DBA task force includes Bill Mateja of Sheppard Mullin, Amy Stewart of Stewart Law Group, Cheryl Murray of Katten Muchin Rosenman and Ladd Hirsch of Winstead.
“We wanted to make sure the Dallas Bar responds to the needs of the lawyers,” Mateja said.
The task force created a resource center on the DBA’s site, where lawyers can find upcoming CLE webinars hosted by various law firms, updates from the Dallas courts, information on government resources and white papers.
“What we want people to know is you can go through the DBA site for a one-stop shopping area,” Tobey said.
Another part of the DBA’s mission it says it’s committed to keeping in operation is providing legal help to low income residents through the Dallas Volunteer Attorney Program. Tobey said maintaining DVAP’s operations will be crucial — particularly as various legal issues mount, such as the impending growth of the unemployment rate as certain industries are forced to lay off employees.
Although DVAP had to cancel its upcoming legal clinics, Tobey said the DBA/DVAP are scrambling to figure out how to conduct the clinics on a remote basis.
“The restaurant industry in Texas is expected to have 1 million people become unemployed. The numbers are staggering,” Tobey said. “The problems are all across the spectrum and we’re going to have to figure out ways to deliver these sorts of services on a mass basis.”
In terms of keeping up with conducting DBA business, Tobey said the board will conduct their meetings on the ever-popular remote conferencing service, Zoom.
Stewart said the task force will also begin putting out its own CLE webinars and podcast episodes. Stewart, who is spearheading those efforts, said examples of future topics include mental health and wellness issues in light of the coronavirus (featuring the Texas Lawyers’ Assistance Program), interviews with judges on the issues they’re noticing in their courtrooms and what small firm owners are doing to keep afloat during this period.
One major stress factor for friends who are fellow law firm owners is the notion of launching into the remote version of the practice of law in “two days because of the virus” instead of a more realistic time period that would transcend the circumstances: five to 10 years in the future.
“I’ve had friends call me because they’ve been in business for 12 to 15 years and they’ve never thought of the entire workforce and foundation of firms, which is paralegals and legal staff, having to work from home,” Stewart said. “When you think about it from a global perspective, it’s even more stressful for attorneys when they don’t have their support system in place … to help them handle their dockets and all the other things on their calendars.”
Tobey echoed the sentiment that the coronavirus is catapulting the practice of law into the future, which makes for an interesting “social experiment.”
“It’s like we’ve been thrown into a giant petri dish and we’ll see what’s growing out of this,” Tobey said. “I don’t think the way things were on March 12, the day we closed the Belo, will ever be quite the same once we re-open.”
Coronavirus Client Service: FAQ Edition
By Natalie Posgate (March 20)
An FAQ page is a great tool to include on your wedding website to subtly tell your guests that kids aren’t invited or to keep colleagues from asking the same thing over and over. But in these current times, the FAQ is serving a much more vital role.
Law firms across Texas have utilized the FAQ to inform their clients on the vast array of legal issues spawned by the coronavirus pandemic. Some are aimed solely at clients, and some are more introspective.
Here’s a roundup of some questions and approaches from five different law firms in Texas that caught The Lawbook’s eye:
Q: Can I ask employees about potential exposure to the COVID-19 virus?
A: The Americans with Disabilities Act (ADA) limits an employer’s ability to ask disability-related questions, even when dealing with an emerging public health crisis. Questions about exposure to a disease may be likely to illicit information about a disability and therefore be prohibited disability-related inquiries. In that case, the ADA requires a “direct threat” to the health of the employee or others before an employer may make a disability-related inquiry that is not job related or consistent with business necessity. The question from a legal perspective is whether the illness caused by COVID-19 is severe enough that it poses a direct threat to the employee or others in workplace. The answer to that question is uncertain at this point, but we believe asking employees (or requiring them to tell you) if they have been exposed to the virus is not an impermissible disability-related inquiry. We caution employers, however, to act on actual, objective evidence and guidance from public health authorities instead of unlawful stereotypes or generalizations. The EEOC had previously issued guidance on pandemic preparedness in the workplace and ADA considerations. The CDC has also issued interim guidance for businesses. We recommend all employers review the guidance and consult counsel before making generalized inquiries about exposure to COVID- 19.
— Members of Thompson & Knight’s labor and employment practice group, including Anthony Campiti, Katy Mathews, Charles Shewmake, Bennett Cervin, Bryan Neal, Lauren Timmons, Stephen Fink, Meghan McCraig, Jasmine Wynton, Barbara-Ellen Gaffney, Micah Prude, Sarah Yousuf, Marc Klein and Elizabeth Schartz, who are all located in the firm’s Dallas office.
Read TK’s full FAQ here.
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Q: I am a healthcare provider. Can I begin offering telemedicine consultations to lower the risk of potential exposure to COVID-19 for my patients and staff?
A: Telemedicine is regulated at the state level, and the general rules for telemedicine apply even in cases when a potential public health emergency exists. Healthcare providers who wish to start offering telemedicine should consult an attorney to make sure that they have complied with all applicable laws and regulations. Recently, the federal government announced it would be relaxing some of the requirements related to telemedicine recognizing its importance in treating this virus.
— Dallas partner Virginia Mimmack of Jackson Walker, head of the firm’s healthcare practice
Q: What information can I disclose about employees who are ill with COVID-19?
A: All Health Insurance Portability and Accountability Act (HIPAA) rules and regulations apply, even in a public health emergency. Benefit plan administrators should be particularly careful. For those subject to HIPAA, an important provision to consider is 45 CFR 164.512(b) which deals with public health activities. In essence, it provides if a public health authority requests information and the public health authority has the statutory authority to request that information, it is permissible to disclose the legally required information to the public health authority, but the information must otherwise remain confidential and should not be disclosed to reporters, members of the county medical society, or others who might seek information from benefit plan administrators. It is always advisable to require those requesting the information to explain why such request is covered by a HIPAA exception to ensure the disclosure is appropriate.
HR administrators may have more leeway than those governed by HIPAA, but to avoid potential liability for invasion of privacy torts or violations of the Americans with Disabilities Act, the Family and Medical Leave Act, and state and local paid sick leave laws, they should consult counsel before disclosing any health information, particularly if the information can be tied to individual employees. The employer must balance the ability of other employees to protect their health with the privacy rights of infected individuals. In general, employers can disclose that an employee has been diagnosed but should avoid identifying the ill employee and should be careful before providing more specific information, particularly in small offices.
Where applicable, employers should also consider the applicability of data privacy laws, such as state laws like the California Consumer Privacy Act (CCPA), and international ones like the General Data Protection Regulation (GDPR). Any decisions about applicability of privacy laws or their exceptions should be made in consultation with counsel.
Q: Must I provide sick leave to an employee who contracts COVID-19 or who is caring for an ill family member?
A: This is an evolving issue currently under consideration in Congress. New requirements are expected to be promulgated as early as March 17, 2020.
Leave issues implicate a number of employment laws including the ADA, the Family and Medical Leave Act (FMLA), and paid sick leave laws. An employee may be entitled to protected leave under the FMLA if he or she has a serious health condition and otherwise satisfies the FMLA eligibility requirements. While the symptoms of COVID-19 have been reported to be flu-like, reported illnesses have ranged from mild to severe, including illness resulting in death. Given the fatality rate of the illness, COVID-19 may be considered a serious health condition permitting leave under the FMLA, depending on the circumstances. Additionally, if an employer operates in a jurisdiction with paid sick leave laws, employees who have COVID-19 or who are caring for family members who have COVID-19 may also be eligible for paid leave in accordance with state or local paid sick leave laws.
Employers may also be required to provide leave under the ADA to employees with disabilities unrelated to COVID-19 that put those employees at a high risk for complications due to COVID-19. In such a case, the employee may request leave or make a request to work from home as a reasonable accommodation. In any situation involving a request for a reasonable accommodation under the ADA, the employer should already have a policy in place for evaluating those sorts of requests.
Employers should consider looking beyond the strict legal requirements in their jurisdiction and take a business-centered approach to issues related to leave. In some cases, strict application of restrictive leave policies may make it likely that an employee may prematurely return to work and risk infecting others in the workplace. Employers should consider whether they consider time taken to self-quarantine, recover from, or care for an ill family member as sick leave, paid leave, or unpaid leave, and whether the COVID-19 outbreak warrants a change in policy, even if the change is only temporary.
— Labor and employment associate Judy Garner from Jackson Walker’s Dallas office
Read Jackson Walker’s full FAQ here, which also includes other topics, such as travel, business continuity, corporate finance and existing financing arrangements.
* * *
Q. What do I do if an employee has special needs and is working from home when he/she previously worked in the office?
A: If an employee requests an accommodation due to his/her disability, or if the employer has reason to believe an employee has special needs, the employer needs to enter into a dialogue with the employee to ascertain if there is a reasonable accommodation that can be provided in his/her home to address those needs. If there is a reasonable accommodation that addresses those needs, the employer needs to provide it. NOTE: if a particular accommodation would result in an undue hardship for the business, the employer does not need to provide it.
Q. What should an employer do about employees who cannot work on premises and cannot work remotely?
A: Employers should apply vacation, sick or PTO time for employees unable to work due to COVID-19 circumstances and comply with ADA and FMLA requirements where applicable. Whether an employer must pay such employees depends upon the employer’s sick or medical leave policy and applicable federal, state and local laws and ordinances. Note that some state laws may provide additional emergency paid leave requirements. For companies with unions, employers should check union agreements and meet with unions to discuss protective measures. Employers may consider expanding paid time off benefits. Further, the Families First Coronavirus Response Act passed by the House on March 13 and under consideration by the Senate has paid time off provisions, which will need to be followed if and when the Act becomes law.
Q. Our annual meeting is not until May. Should we warn stockholders that we might reschedule or require remote participation?
A. Many companies are alerting stockholders in their proxy statements that they may reschedule or conduct their meeting with remote-only participation by stockholders. A number of companies have used hybrid or virtual annual meetings in the past, so those changes, if necessary, are not expected to be materially disruptive.
— A team of labor & employment attorneys from Locke Lord’s Houston and Dallas offices, including Hanna Norvell, David Gregory, Mike Rose, Rufino Gaytán III, Emily Travis, Paul Nason and Jennifer McCoy.
Click here to read Locke Lord’s full FAQ.
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Q: What if the data is held by a business associate of the covered entity? (With respect to coronavirus-related disclosures and HIPAA)
A: Business associate is a person or entity (other than members of the covered entity’s workforce) that performs functions or activities on behalf of a covered entity that involve creating, receiving, maintaining or transmitting PHI. A business associate of a covered entity may make disclosures permitted by the HIPAA Privacy Rule, including to a public health authority, on behalf of a covered entity or another business associate to the extent authorized by its business associate agreement (BAA). With that in mind, here are some additional tips that covered entities might consider concerning business associates:
- Confirm whether there is an executed BAA in place between the covered entity and business associate, if applicable.
- Confirm that the BAA explicitly establishes the permitted and required uses and disclosures of PHI by the business associate.
— Karen Nelson, Randy Peak and Renae Flowers from DLA Piper’s Austin office, who all specialize in healthcare regulatory and compliance matters.
Read the full DLA Piper FAQ here, which focuses exclusively on HIPAA issues associated with the coronavirus.
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Q: If I decide to take employees’ temperatures or other health screening procedures, does the person administering the screening need to be a medical professional?
A: Not necessarily, but if you have a medical professional on staff or available at the worksite, then it is logical that person should be considered to administer screenings. If no medical professional is available, it is prudent to have one or a limited number of employees (ideally within HR or senior management) who are designated and trained to take temperatures so there is consistency to the process. Moreover, remember, employee health information is confidential and should be kept as such, and not be documented in employees’ personnel files.
Q: If I implement a voluntary work from home policy for the next several weeks or a month for employees who are able to work remotely, do I need to reimburse them for internet, phone or mobile device expenses incurred during that period of time?
A: Generally, no, but employers should consider specific state laws. The DOL’s guidance does not mandate reimbursement for expenses employees have incurred as a result of a work from home policy implemented during a pandemic. However, employers cannot require employees to reimburse employers for expenses the employee incurs as a result of such a policy, unless doing so would bring the employee’s take-home pay below minimum wage. In practice, this would only apply to low wage earners and even then is difficult to track unless the employer is certain the employee did not have internet or phone expenses prior to the work from home policy. Moreover, under the Americans with Disabilities Act, no such expenses can be denied for reimbursement if the work from home is provided as an accommodation to a qualified individual with a disability (such as those with HIV, lupus, etc., who are immunosuppressed).
However, state law must be considered, too. In Illinois, for example, state law requires reimbursements for “necessary expenditures,” which includes “all reasonable expenditures or losses required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer.” Under a voluntary work from home policy, Illinois’s law does not require reimbursement under the question posed because (a) the work from home policy is not required, and (b) unless the employer knows the employee did not already have internet/phone access prior to now, such usage is not primarily for the benefit of the employer.
If, however, circumstances change and the employer requires an employee who exhibited symptoms of or was expose to someone with COVID-19, to work from home, or if a government proclamation mandates it, then employers should reevaluate and consider reimbursing if the employee is actually working from home during that period of time. California law is similar to Illinois law, but omits the “primary benefit to the employer” language, and as such, regardless of whether the employee previously had phone or internet service prior to a mandatory work from home policy, reimbursement is likely required (but may not be under a voluntary policy). Other state laws may impose other requirements, so we recommend consulting legal counsel if you do not want to reimburse employees for these expenses.
Q: We recently received products that were shipped from one of the countries that the centers for disease control has designated “Level 3.” My employees [or customers] are refusing to handle the product. What should I do?
A: There is still a lot about the COVID-19 virus that is unknown especially about how it spreads. However, based upon government information available as of March 9, 2020, it would appear there is a very low risk that the virus would survive on the surface of goods for the days or weeks it takes to ship products from one of the countries designated Level 2 or Level 3.
Under the Occupational Safety and Health Act (“OSHA”) employees have a right to refuse to do work only when (1) the employee reasonably believes that doing the work or handling the product, would place the employee in serious and immediate danger; (2) the employee has asked the employer to fix that hazard; (3) there is insufficient time to report the alleged hazard to OSHA; and (4) there is no other way to handle the material. In a workplace where employees are represented by a union, the applicable collective bargaining agreement may also provide guidance as to how such disputes are resolved.
On a more practical level, if the employer can somehow sanitize the product or otherwise offer personal protection such as gloves, this may make any refusal to handle “unreasonable” under the circumstances.
Employers are cautioned against representing they know there is absolutely no risk of transmission from surface contact exposure. Instead, they should direct employees [customers] to the relevant portions of the CDC or WHO websites where these issues are addressed.
Q: Can I Discipline Employees for not Covering Their Mouths when Coughing/Sneezing or for Failing to Regularly Use Provided Hand Sanitizers?
A: Yes, assuming you have implemented an appropriate workplace policy/requirement. Employers should uniformly enforce their workplace policies and rules. If mandatory infection control practices have been implemented, then discipline may be applied if an employee refuses to adhere to the required practices. Obviously, an employer must avoid disparate treatment in the enforcement of its policies, and infection control rules are no different. In addition, an employer may be required to provide some forbearance from taking discipline if an employee’s failure to adhere to certain infection control procedures is disability-related.
— Members from Foley Gardere’s employment group, including partner Carrie Hoffman and senior counsel Taylor Eric White from the firm’s Dallas office.
Excerpts pulled from Foley Gardere’s FAQ was part of a three-part series. Read Part 1 here, Part 2 here and Part 3 here.
Task Forces, Portals & Hotlines, Oh My! Firms Address COVID-19 Concerns in Full Force (Litigation Edition)
By Natalie Posgate (March 18)
In the middle of any crisis, businesses are almost guaranteed to turn to one group of people for help: their lawyers. So it’s no surprise that companies are turning to the same professionals during these lonely, economy-shattering, uncertain times of the novel coronavirus pandemic.
Scores of law firms in Texas are rising to the occasion by providing extra help to clients — on top of their regular billable work and managing the pandemic’s effects within their own staff.
Below is an overview of what some of these firms are doing, who from Texas is involved with their firm’s efforts, and what some lawyers are saying about trends of client needs thus far.
The Houston-based law firm announced last week that it formed a multidisciplinary coronavirus crisis response group, created an online resource kit and is providing daily social media updates for clients on the rapidly-evolving pandemic. The firm also has a toll-free emergency hotline available for clients 24/7: (833) 308-0588.
The group is being co-led by the firm’s Washington, D.C. office and Houston partner Scott Janoe, the firmwide chair of Baker Botts’ environmental, safety and incident response practice group.
The main areas the crisis group is advising clients on include crisis response, business interruption, SEC disclosures for public companies, force majeure clauses, employee/human resources issues and loss of key personnel.
“For many years, our crisis response team has helped clients in dealing with issues of all kinds, including business interruptions caused by political and health related incidents, large-scale industrial accidents and environmental disasters, high-stakes cross-border disputes and cybersecurity and data privacy incidents,” Janoe said. “We also draw on extensive government experience as leaders and members of teams charged with responding to environmental, health and safety crises; privacy issues; and inventional acts of terrorism.”
The Dallas-founded law firm has launched a resource center and a 60-lawyer advisory group to address client concerns.
The multidisciplinary group runs the gamut on expertise, including in the areas of healthcare, corporate, financial restructuring, labor and employment, litigation, trade, investment management, regulatory and compliance, and public policy.
Among the group members are Dallas litigation partners Eric Gambrell and Lizzy Scott. Gambrell specializes in high-stakes, breach of fiduciary duty and fraud claims. Scott specializes in bet-the-company False Claims Act cases, global internal investigations and privacy and cybersecurity policy review and litigation.
Gambrell said one issue concerning clients not only entails inquiring on what businesses’ force majeure clauses cover, but how to word them in the future.
“The days of drafting force majeure clauses in contracts using boilerpate cut-and-paste may well be over,” Gambrell said. “It is also obviously not a bold prediction that we are on the precipice of a wave of suits in Texas centered on force majeure clauses.”
“Proactivity in carefully drafted provisions, including specificity to surgically address a client’s particular business or industry, choice of law considerations and thoughtful forecasting of the complexion of potential future litigation, may prove pivotal in later disputes,” he added.
In terms of coronavirus legal issues directed at Texas general counsel, Gambrell said GCs “not already inundated with these issues” will be in an exponential need of Texas trial lawyers who are versed in not only the Texas courts, but also New York and Delaware law on force majeure and related contract issues, as well as insurance issues as disputes arise. He said GCs will also be looking to outside lawyers for advice on “drafting advice for a wide span of transactional and settlement agreements.”
Vinson & Elkins
V&E has announced a similar site and a task force, advising clients on corporate governance matters, remote workforce and IT considerations, litigation considerations (including force majeure clauses), labor and employment considerations (day-to-day workforce management, medical inquiries and employee leave), and implications for government contractors.
Texas-based lawyers on the task force with a specialty in litigation include labor & employment partners Sean Becker (Houston) and Vanessa Griffith (Dallas), international litigation partner Philip Dye Jr. (Houston) and government investigations & white collar criminal defense partner Jeffrey Johnston (Houston).
While Bracewell has not formally announced an official task force formation, the firm’s labor and employment lawyers in particular are keeping busy fielding inquiries from clients. Among the matters the lawyers are advising their clients on are:
- employee, third-party and board communications;
- ADA and HIPAA issues;
- monitoring agency guidance and best practices;
- OSHA recordability of workplace exposures;
- tracking employee absenteeism;
- updating company policies (including communicable disease, travel, leave and telecommuting);
- social distancing (work-from-home, environmental NPIs [nonpharmaceutical] interventions and conferences/meetings);
- business continuity, emergency response and emergency communication planning;
- personal, organizational and environmental prevention techniques;
- employee education;
- training and drilling (including cross-training);
- community and peer outreach;
- resources (including IT infrastructure);
- supply chain impacts;
- litigation risk (torts, discrimination);
- public company statements and SEC issues; and
- vendor issues.
A few other services the lawyers are providing include:
- liaising with government agencies on behalf of clients who have concerns regarding COVID in the workplace or their public-facing spaces (e.g., banks, hotels and healthcare providers);
- drafting catastrophic event and COVID-19 pay policies, including analyzing interaction with state pay and leave laws and the ADA; and
- assisting clients with very specific COVID-19 related questions or issues, such as the ability to prohibit the general use of masks at work, how to respond when they have an employee actually test positive, rights to limit employee personal travel, and how to address the decline in staffing needs due to a COVID related sharp decline in business.
The Chicago firm, which also has outposts in Dallas and Houston, has put together its own resource center and task force with 42 lawyers. Texas companies in need of litigation advice can turn to Dallas partners Yvette Ostolaza and Angela Zambrano.
Ostolaza in particular has expertise on key issues tied to contractual breach and supply chain considerations clients face. Some key questions clients are having on this subject include:
- What steps should a company take if it cannot supply its customers?
- Does the COVID-19 outbreak constitute force majeure and excuse non-performance of commercial contracts? For cross-border transactions involving a particular country severely impacted by COVID-19, how long can a party seek to avoid performance as a result of COVID-19?
- When should a force majeure notice be issued and what steps should be taken in response to a force majeure notice? How does COVID-19 affect “Time of the Essence” clauses in contracts?
- Who is responsible for losses when a supplier cannot supply a customer due to the COVID-19 outbreak?
- In the event of a disagreement about responsibility for loss, what is the most efficient way to resolve the disagreement?
- What steps should a company take if threatened with litigation over a supply chain disruption?
The international giant has created its own coronavirus resource page, where clients can sort through four main topics: workforce, risk and disputes, investment and deal activity, and supply chain.
Clients can also sort through legal alerts by jurisdiction: Asia Pacific, EMEA, Latin America and North America.
Some Texas litigators who are advising clients on coronavirus matters include Dallas partners Mark Taylor and Nick Kennedy and Houston partner Thomas Kruse.
Taylor specializes in defending class actions, collective actions and multi-district litigation. Kennedy advises clients primarily in the consumer products and retail, software and technology, manufacturing, infrastructure and energy industries on disputes tied to international law, class actions antitrust law, trade secrets California Proposition 65 and general commercial issues. Kruse is a trial lawyer who represents clients in the energy, engineering/EPC and oilfield services industries in courts and arbitration panels on a national and global level.
A Judge Gets Specific: Eric Moyé Explains How He Intends To Carry On
By Natalie Posgate (March 16)
In light of Dallas County Judge Clay Jenkins’ decisions to suspend all jury trials until May 8, The Texas Lawbook visited with Hon. Eric Moyé, the presiding judge over the state civil courts in Dallas to learn about how the decision is affecting the operations in George R. Allen courthouse.
Judge Moyé said the civil judges met late last week to discuss measures to take. Here are a few takeaways on what the judges are doing, how the civil jury trial will be affected and what parties can do to ensure they get their day in court sooner rather than later.
Measures the Courthouse is Taking
Although the county’s eight week ban does not currently apply to non-jury trials and other hearings, Moyé said he and his fellow judges will ramp up the use of their courtroom technology to minimize in-person contact.
Moyé said he already dedicates his docket on Thursdays to telephonic hearings, and anticipates “aggressively expanding” that to three to four days a week.
For hearings that require witnesses, Moyé said he welcomes innovation — particularly via Skype.
“If you’re a lawyer and you have to put on a witness, one of the things we’ll consider doing is get a notary or someone who can administer an oath, get your witness in your conference room, contact the court and opposing counsel on Skype,” he said.
“If [lawyers] have some ideas about how they can facilitate what we’re doing, we certainly want to hear them,” he added. “I know lawyers who have better hands on technology than most judges do.”
Moyé said this approach would also allow the court to uphold an important principle of the legal system.
“The other positive of doing the hearings with technology in the courtroom is it remains consistent with our system of open courts,” he said. “If someone wanted to come see how things are moving along in my court or another, they could do so. If it is a hearing of significant interest we could put it on a video screen.”
In terms of sanitation, Judge Moyé said court services have performed incredibly with obtaining massive amounts of hand sanitizer despite the national shortage — “I’m not sure from where, but they’ve got them.”
He said the building staff is also being proactive about wiping down tables, microphones and other items in the courtroom after each hearing.
And like every business building, Judge Moyé said the courthouse is encouraging everyone — lawyers, clients, staff, and others to stay home if they believe they may be symptomatic.
Getting your day in court
Judge Moyé acknowledged that rescheduling the trials that were set during the ban could get tricky, as cases are usually scheduled for trial a year out from the time they get filed.
To work around that obstacle, Judge Moyé said he and his clients will consider scheduling more trials in the summer — an unpopular period for many due to scheduled vacations.
“Just like many schools will have to go through the end of May or early June … we’ll do the same and set more for trial during the summer, assuming the crisis passes quickly,” Moyé said.
If a plaintiff is particularly eager to get their day in court, Moyé said the simplest option is to waive their right to a jury trial.
“That happens occasionally because jury trials take longer,” he said. “Non-jury trials might take a day or day-and-a-half to try.”
He acknowledged, however, that this approach is the less ideal option for clients who have a strong sense of wanting justice to be served.
“There’s something more cathartic about telling your story to 12 individuals,” Judge Moyé said. “I’ve had people who have lost jury trials say to me, ‘I just want to thank you for letting me have the opportunity to tell my side of the story too, to 12 citizens.’”
Judge Moyé said there has been no resistance to Judge Jenkins’ order because he and his colleagues are eager to do whatever they can to help courthouse business return back to normal as soon as possible.
“Our hope is with the measures we’re taking now that we can flatten this bell curve,” he said. “So that we’ll get past this and get to normal where everybody is not afraid to go without wearing a face mask or gloves, or shake hands with someone. None of the judges want to be responsible for anybody’s illness.”
For earlier posts in this continuous coverage, just scroll below.
Law Firms Share Advice with Clients — and Each Other
By Natalie Posgate (March 15)
(March 13) – The Texas Lawbook has received feedback from litigation leaders in Texas on what measures their law firms are taking to assist clients, what their clients’ largest concerns are surrounding the virus, and what they are advising their general counsel clients to do.
John Zavitsanos, AZA
What are litigation clients asking about?
“Timing. Harris County is taking the incremental action of banning civil jury trials in March. I applaud that approach. But we have several trials scheduled in April and May, including a sizeable, hard-fought matter. The next two weeks will be very telling about whether we get to go forward or not.
“There is so much information, disinformation and different viewpoints, some of them political. It is tough to tell where this will really go. I hope general hysteria is replaced with careful planning.”
Advice for GCs:
“What a General Counsel should do depends so much on the size of their business. The more employees and the more locations a business has, the more conservative they may need to be.
“But the economic impact on a small business could be devastating. It’s a different thing if someone is infected. But if there is no indication of any illness, it will be much harder for a small business GC to consider any kind of shut down when weighed against the possibility there is no business to come back to afterwards.”
Upcoming legal issues:
“The collapse of the economy means we will have many folks trying to get out of deals and contracts. The question asked in many boardrooms and courtrooms will be: was there a real breach of contract or was this an Act of God that excuses the breach? That will be the issue du jour for maybe 18 months.”
Michael Hurst, Lynn Pinker Cox & Hurst
Advice for GCs
“GCs need to review all existing executory contracts and specifically the timeframes associated with compliance provisions and force majeure clauses. I’m also getting calls regarding insurance claims.
“Clients want to be assured that we are available and able to work remotely on their important matters, which we and most law firms are able to do. While some courts are still open, no juries are going to be ordered. I assure clients that while the wheels of justice may be working more slowly, I’m advancing their cause as quickly and efficiently as circumstances allow.”
Greg Waller, Hunton Andrews Kurth
Waller told The Texas Lawbook that the law firm has decided to re-activate its pandemic working group, a group of around 30 lawyers who specialize in employment, healthcare, insurance, commercial contracting, privacy, corporate and finance, securities, bankruptcy and immigration cases.
“The same team previously helped clients address the SARS, MERS, H1N1 and Ebola outbreaks and has significant experience,” Waller said. “The group meets regularly to share intelligence and develop coordinated responses.”
The ranges of questions clients have litigation-related are “extraordinarily broad,” he said. By industry, here are the main topics the firm is providing advice on:
- Labor & employment: “We’re advising on questions associated with balancing OSHA obligations and ADA obligations not to discriminate on basis of the perceived disability of being contagious, as well as significant work from home issues.”
- Commercial: “We’re handling a deluge of requests to interpret force majeure clauses, analyze “impossibility of performance” claims, and strategize generally around event cancellations and potential disputes. Our insurance coverage litigators are busy handling related inquires around event cancellation insurance policies (which are non-standard and need careful review), as well as business interruption and workers’ compensation policies.”
- Commercial Litigation: “Our commercial litigators are fielding questions about appropriate standards of care for those concerned with facilities management and other industries with significant exposure to the public … Our litigators are also beginning to help our judges manage the practical challenges of social distancing in the courthouse.”
- Finance and Bankruptcy: “Clients are focused on credit risks and are asking us to analyze ‘adequate assurance’ and ‘material adverse change’ clauses in financing agreements.”
- Immigration: “Our immigration lawyers handling issues relating to US travel bans, as well as critical status issues that may arise if certain visa holders are forced to work from home.”
“All of those activities ought to confirm for general counsel that, for the near term, COVID 19 is going to require significant effort in every area of the law and legal operations,” Waller concluded. “Managing the human aspects of the response to the disease will have to be at the top of the list, closely followed by triaging operational and financial challenges and contingency planning.”
Tom Walsh, Winston & Strawn
Unique legal issues tied to the coronavirus that don’t immediately come to mind to many:
“This particular disruption is particularly acute because pandemics such as this were not anticipated by many of the contracts, regulations, and business models that form the infrastructure of the global economy – for now, we want to make sure we learn from the gaps and issues that are arising now and make the adjustments needed for business arrangements to withstand similar disruptions in the future.”
Common areas of client concern:
“We are seeing a lot of questions right now about employee benefits and executive compensation, labor and employment, HIPAA and other data security issues, business continuity/interruption insurance, private equity/M&A deal flow and due diligence, and contracts and force majeure clauses – other questions of course come up daily as the situation continues to evolve.”
Texas Courts, SEC Offer Guidelines for Virus Response
By Mark Curriden (March 13)
Texas courts should schedule or suspend proceeding “to avoid the gathering of large groups of people” until at least April due to COVID-19, according to a statement issued Friday by the Texas Office of Court Administration, a body that reports to the Texas Supreme Court and the Texas Court of Criminal Appeals.
In addition, the U.S. Securities and Exchange Commission announced Friday that it is granting a 45-day reprieve to publicly traded companies that may be negatively impacted by the coronavirus. The SEC order covers required financial disclosure documents scheduled to be filed between March 1 and April 30.
Civil district courts in Dallas, Houston and some in San Antonio have previously announced that they are suspending civil jury trials for the next few weeks.
The announcement by the Texas Office of Court Administration is likely to push other court jurisdictions to follow suit.
“Courts should schedule or suspend proceedings to avoid the gathering of large groups of people until at least April 1, including jury trials and large docket calls,” court administrators announced on the state’s website Friday.
Court administrators say judges and court clerks should consider delaying hearings or conducting hearings by telephone or remote video if in-person hearings are “non-essential” and may put individuals at a health risk.
The courts identify essential proceedings as including criminal proceedings, CPS removal hearings, temporary restraining orders and temporary injunctions, juvenile detention hearings, family violence protective orders and certain mental health proceedings.
“Courts should publicly encourage persons with COVID-19 or flu-like symptoms, a fever or who are coughing or sneezing, to contact the court before appearing,” the court administrators stated. “Courts should also publicly encourage attorneys who know that clients, witnesses, or others have such a condition to alert the court in advance. The court should make reasonable accommodations and reschedule appearances and hearings as needed.
To the court administration’s credit, the instructions state that judges need to “be aware that the Open Courts provision of the Constitution will generally require that the public have access to proceedings. If you hold telephonic or video remote hearings, you should consider a method by which the public can have access.”
DMN: Civil Jury Trials in Dallas County are Cancelled for 30 Days Amid Coronavirus Concerns
By Natalie Posgate (March 12)
Dallas County residents who were to report for jury duty within the next 30 days for a civil case will no longer have to, the county announced Thursday.
According to a report by The Dallas Morning News, Dallas County has cancelled all civil and justice of the peace jury trials until April 13 as ongoing concerns about the coronavirus escalate. However, the new announcement does not apply to criminal cases, due to criminal defendants’ constitutional right to a speedy jury trial. But jurors will not gather in the Central Jury Room when they report for duty.
“This is one of many steps we will take to ensure that jurors are safe,” Dallas County Judge Clay Jenkins told The News in a statement. “This is a rapidly developing situation and we will be monitoring the science and making adjustments continually.”
Faegre Drinker Reopens Majority of Offices; LMA Postpones Annual Conference
By Brooks Igo (March 11)
One day after closing all 22 of its offices as a precautionary measure due to potential exposure to the coronavirus in Washington, D.C., Faegre Drinker Biddle & Reath has resumed normal business operations at the majority of its offices, including Dallas. The firm’s D.C. locations remain closed.
Faegre Drinker said it was notified on March 9 that a guest who attended an event on March 3 at the firm’s D.C. office on 1500 K Street had subsequently been diagnosed with COVID-19. The firm also learned of another visitor to the office who has since been diagnosed with the virus.
After consulting with an infectious disease expert, the firm’s executive leadership team decided to close all of its offices on Tuesday and engaged a specialized service to clean and disinfect each office prior to reopening.
Officials at Faegre Drinker issued the following statement on Wednesday:
“On Tuesday, March 10, Faegre Drinker asked colleagues across all offices to work remotely after learning of a guest who visited our Washington, D.C. office on 1500 K Street on March 3 and was subsequently diagnosed with COVID-19, commonly known as coronavirus. We then learned of an additional guest in our Washington, D.C. office on March 2 who was also diagnosed with coronavirus following their visit to the firm. Because the scope of each guest’s contact with firm colleagues was not readily known, and because our attorneys, consultants and professionals have been traveling cross-office to support firm integration efforts, we chose to exercise caution while our leadership team evaluated the situation.
“The health and safety of Faegre Drinker’s colleagues, clients, visitors and their loved ones is a top priority. The firm’s executive leadership team acted quickly to protect those we care about, making time to gather key facts, assess risk and determine appropriate next steps. We received helpful advice from a board-certified infectious disease expert with specialized knowledge in communicable diseases, including coronavirus, and consulted with internal specialists. Additionally, we took the precautionary measure of engaging a specialized service to clean and disinfect each office prior to our colleagues returning.
“After a thorough review, nearly all firm offices have returned to normal business operations today, Wednesday, March 11. As an ongoing measure of caution, Faegre Drinker’s Washington, D.C. offices remain closed with status being evaluated daily. Our Washington, D.C. colleagues are equipped with the required technology to work remotely and remain ready and available to assist clients. We are not aware of any Faegre Drinker personnel who have tested positive for coronavirus — this is simply a precautionary measure while we evaluate the appropriate path forward.”
The Legal Marketing Association board of directors announced on Wednesday that it is postponing its annual conference due to concerns about the coronavirus.
The conference was scheduled for March 25 to 27 at the Gaylord Rockies Resort & Convention Center in Denver. More than 1,400 people were expected to attend.
LMA President Jill Huse emailed the following update:
“After significant time, energy and evaluation, the LMA Board of Directors has decided to postpone the LMA Annual Conference. Ultimately, protecting our attendees, speakers, sponsors and staff is our top priority. Many of us, myself included, look forward to this event every year—it’s a valuable source of insight that helps to elevate the work we do and it is what brings our community together. We are working to secure a new date for the event and will have an update for you before week’s end, along with information on next steps so that you can save the date and join us in Denver later this year.
“At the very heart of our organization is a strong sense of community and support, and we appreciate the patience given while we navigated this unprecedented situation we are finding ourselves in. The connections, the sense of family and the ability to be a part of something bigger is what drew me to LMA and why I look forward to coming together at the annual conference every year. We are in uncharted territory in many ways with a lot of uncertainties. While we may not individually have all the answers, as a community let’s continue to lean on each other to get us through these challenging times.”
Law Firm with Dallas Outpost Temporarily Closes All Offices
By Brooks Igo (March 10)
Faegre Drinker Biddle & Reath announced Tuesday that it has closed all of its 22 offices – including in Dallas – as a precaution due to potential exposure to the coronavirus at a March 3 firm event in D.C.
The firm’s 27-lawyer downtown Dallas office occupies the 54th floor of the Comerica Bank Tower on 1717 Main St. The skyscraper is home to several other law firms including Cozen O’Connor, Dykema, Fish, K&L Gates and Morgan Lewis. Comerica Bank Tower property management has not responded to a call or email seeking comment.
Officials at Faegre Drinker issued the following statement:
“Faegre Drinker’s executive leadership team was notified on the evening of March 9 that an attendee at a recent event in our Washington, D.C. office has since tested positive for COVID-19, commonly known as the coronavirus. Because the health and safety of our personnel and clients is our top priority, Faegre Drinker is temporarily closing its D.C. offices. As a measure of caution, our leadership team has also taken the step of closing our global offices on March 10th while we evaluate this situation.
“No Faegre Drinker personnel have tested positive for coronavirus – this is simply a precautionary measure while we evaluate the appropriate path forward. Our attorneys, consultants and professionals are equipped with the required technology to work remotely and remain ready and available to assist clients. As we evaluate when to re-open offices, we will keep the health and safety of our personnel, clients, visitors and the public at the front of our minds.”
Faegre Drinker is the newly-combined firm of Minneapolis-based Faegre Baker Daniels and Philadelphia-based Drinker Biddle & Reath. The two firms officially merged on February 1 and now boast more than 1,300 attorneys with international offices in Beijing, London and Shanghai.
Texas Law Firms Make Adjustments Because of COVID-19
By Mark Curriden (March 9)
Despite the federal government’s repeated proclamation that the latest coronavirus threat is under control, the number of Texas law firms and legal organizations canceling conferences, conducting meetings by video instead of face-to-face and preparing for even more interruptions is increasing by the day.
Multiple law firms, including Vinson & Elkins, Baker Botts, Latham & Watkins and Sidley Austin, canceled partner retreats due to the spread of the new coronavirus disease, called COVID-19.
The American Bar Association’s Criminal Justice Section canceled next week’s white-collar institute, which several Texas lawyers attend annually. CERAWeek canceled its annual petroleum conference in Houston, but the Houston Livestock and Rodeo – a favorite of many Texas attorneys – is still a go.
Several state and federal court judges have informed lawyers who practice before them to inform the court immediately if either they or their clients are not feeling well. The judges are trying to hold video conferences when possible.
Five law schools in California, New York and Washington state have canceled classes, but none in Texas have done so.
A partner at Quinn Emanuel in New York has reportedly contracted COVID-19, but no lawyers in Texas have made the list so far. Texas Sen. Ted Cruz, however, has quarantined himself after shaking hands with a COVID-19 patient at the Conservative Political Action Committee in late February. The senator reports that he has shown no signs of illness.
Southwest Airlines has “enhanced” its cleaning techniques of its seats between flights. Vonlane, the executive nonstop business bus service between Austin, Dallas and Houston, has done the same. American and United airlines are temporarily being flexible on penalties for changing flights due to illness.
The spread of COVID-19 in the U.S. has already prompted operations changes at some larger law firms.
Vinson & Elkins chairman Mark Kelly said Monday that the firm is canceling its firmwide partner and counsel conference scheduled for April 1-3 in Coral Gables, Fla.
“First and foremost, we are focused on the health and safety of our employees and maintaining business continuity to provide our clients the excellent service they expect from the firm,” Kelly said. “We have imposed business travel restrictions for our attorneys consistent with guidelines from the U.S. Centers for Disease Control, and have halted all non-essential international and domestic business travel for administrative staff.”
Kelly said V&E is “evaluating other planned firm events but generally expects to cancel large group meetings scheduled to occur in the near term, particularly those that involve travel.
“As part of the firm’s business continuity plan, we are prepared for all attorneys and critical personnel to work remotely should the need arise so that service to clients remains uninterrupted,” he said.
Thompson & Knight managing partner Mark Sloan said the Dallas-based law firm has “a game plan for the different degrees of preparedness, specifically focused on how best to protect our employees and to ensure business continuity.”
Like other firms, TK leaders are monitoring real time updates from the WHO and CDC and forwarding that information to employees so they know to take all of the necessary precautions, including sharing best practices to employees planning for Spring Break.
Sloan said the firm is “monitoring anyone who has or will travel to any of the restricted countries and requiring self-quarantine” and “enhancing workplace safety to include extra sterilization and cleaning.” He said TK is “testing our infrastructure and bolstering our ability to move our teams to a remote platforms (if necessary) and reviewing and considering leave policies should any employees become ill or as businesses and schools close as changes occur with the outbreak.”
Cliff Vrielink, co-managing partner of Sidley Austin’s Houston office, said the law firm has canceled its annual partner retreat scheduled for April.
“Because we have numerous offices around the globe, the risk of so much travel outweighed the benefits of an in-person meeting,” Vrielink told The Texas Lawbook. “ We also have adopted quarantine rules for those traveling to affected areas and encouraged all our lawyers and personnel to avoid unnecessary travel.”
Vrielink said some of the firm’s clients have instituted “no travel” policies.
“So, in person meetings are becoming less common,” he said. “For instance, one of our large clients prohibited any cross-border travel by its personnel or any advisors, so a previously-scheduled day of meetings was indefinitely postponed.”
Locke Lord managing partner David Taylor said the “safety and well-being of our clients, lawyers and staff are paramount.”
“Our goals are to protect our lawyers and staff and to serve our clients with little to no disruption, and we have a contingency plan in place to address what continues to be an evolving situation,” Taylor said. “In addition, we’ve mobilized across practice groups and created a COVID-19 Task Force to provide a coordinated response to our clients’ range of needs during this uncertain time, covering areas such as corporate (including capital markets), health care, labor and employment, litigation, insurance (insurer-based issues), privacy and cybersecurity, public finance and real estate, among others.”
“Out of an abundance of caution and in the interest of providing the safest possible environment for our people, we decided not to gather in person this past weekend for our partner conference in Scottsdale,” Baker Botts said in a written statement to The Texas Lawbook. “We held the meeting remotely instead. Certainly, we and our clients are exercising a great deal of caution and holding meetings ‘virtually’ in many instances.”
Norton Rose Fulbright, in a written statement to The Texas Lawbook, said firm employees have been advised “to take preventative measures in line with recommendations from the World Health Organization and national public health authorities and to follow local guidance in terms of self-isolating where relevant.” The firm stated that its leaders “are closely monitoring the situation.”
“We canceled our Partners’ Business Summit scheduled to take place in Austin late last month due to the spread of the coronavirus,” Norton Rose Fulbright stated. “We considered a variety of different issues in making this decision, but our people come first, and we concluded that asking our partners to travel to the US and thereby risk the possibility of being quarantined abroad or being prevented from returning home to their families was too great. Our partners, while disappointed, recognized the necessity of us reaching this decision.”
Kirkland & Ellis partner Andy Calder in Houston said the law firm is closely monitoring the situation both locally and globally.
“It has not meaningfully affected our domestic operation yet, but we are following guidance issued by relevant authorities and ensuring that the safety of our personnel is our top priority,” Calder said. “We have noted increasing use of video conferences and telephone conferences as a method of communication with our clients. As a matter of policy, we are checking with clients whether they would prefer that we move meetings to video conference and taking our lead from each client.”
Tom Melsheimer, a managing partner at Winston & Strawn in Dallas, said the firm is trying “to be very data driven in all our decisions.”
“What that means is paying attention to new information about the virus,” Melsheimer said. “The firm has provided multiple updates to all employees over the last few weeks, and I expect continued updates in the future. Some of this information has been very commonsensical – wash your hands frequently, see a doctor if you have symptoms.
“We haven’t canceled any firmwide events, but we are asking everyone to consider minimizing nonessential travel, especially international travel,” he said. “We’ve also asked everyone to prepare for changing working conditions, such as the prospect of working from home for an extended period. So, we’ve encouraged folks to take their firm-issued laptops home every night, for example.”
The Texas Lawbook plans to make this a continuous column regarding the impact of COVID-19 on the legal profession in Texas. Stay tuned.