Troutman Sanders Forms Pro Bono Team Allowing Atlanta Opera to Produce Covers for Masks for Grady Hospital
On Sunday, March 22, Troutman Sanders’ Brett Tarver received an email from Howard Palefsky, president of a successful investment management firm. It wasn’t unusual for Tarver to hear from Palefsky – she worked with him frequently in his capacity as former chair of the Atlanta Symphony Orchestra (ASO) Board of Directors. Tarver serves as a board member. But on Sunday, Palefsky wasn’t emailing about the symphony, he needed help with a decidedly different, and potentially lifesaving, endeavor.
The general director of The Atlanta Opera, a friend and colleague of Palefsky’s (who also serves on the Opera Board of Directors), had reached out because the Opera was preparing to produce covers for masks for Grady Hospital as it braced for the onslaught of coronavirus (COVID-19) patients. The nationwide and indeed global shortage of personal protective equipment (PPE) such as N95 medical masks had left health care systems scrambling, and the Atlanta Opera wanted to help.
“Because work on upcoming productions had ceased, their costume and wardrobe team had capacity to produce covers,” Tarver explained.
The Opera was prepared to produce around 72,000 covers, using instructions and materials provided by the hospital, that would allow medical workers to extend the life of the N95 masks should they experience a critical shortage. However, because the Opera is not in the business of producing goods, let alone covers for medical equipment, it needed certain legal protections before it could move forward with the novel partnership. Tarver got to work.
“We didn’t want the Opera to get in trouble for manufacturing a medical device – the covers are not medical devices. We needed to protect the Opera from liability on multiple fronts,” Tarver said.
Knowing Troutman Sanders had plenty of expertise in the area, Tarver fired off an email to fellow attorneys asking for assistance. A team started to form. Victoria Alvarez, a commercial litigator in the firm’s Charlotte office, volunteered to help draft an Emergency Supplies Agreement, which details the terms and conditions guiding production and limiting the Opera’s liability for how the covers are to be used.
“I never thought I would write an agreement that opens by citing the Stafford Act and a global pandemic, but everything about this is unique,” Alvarez said. “The agreement incorporates volunteer understanding language and draws from supply agreements that contemplate the production, buying, and selling of commercial goods.”
Brandon Woods, a partner in Charlotte with expertise in commercial contracting, stepped in to guide and review the novel agreement. Robert Browne, an intellectual property partner in Chicago, provided needed guidance on FDA regulations around medical devices.
The team also grew to include individuals from Troutman Sanders Strategies, the firm’s lobbying and public affairs group. Principal Lindsay Austin and Manager Christopher Baxter provided necessary CDC guidance.
“The legal fees in the event of a suit could bankrupt an arts organization, so we looked to protect the Opera on all fronts by identifying and providing liability and regulatory enforcement protections,” Tarver said.
The Troutman Sanders team also consulted with future colleagues from Pepper Hamilton, including Judith O’Grady, Sharon Klein and Abigail Yeo, for additional regulatory and liability guidance. As the two firms prepare to merge on July 1, they have been regularly collaborating to assist clients with some of the unprecedented challenges that have arisen around COVID-19, even creating a dedicated resource center.
In addition to Troutman Sanders and Pepper Hamilton, the pro bono project also involved attorneys from Carlton Fields, including Charles Sharbaugh, Amanda Proctor and Gail Podolsky, who handled related insurance needs.
“It has truly been a team effort to protect the Opera,” Alvarez said. “Right now, there is a spirit of good will and commonality, but in a few years, when that sentiment fades, people may look for others to blame. It is that future we had in mind as we crafted the protections for the Opera.”
While the Troutman Sanders team ironed out the agreement with the hospital, Opera employees were already sewing covers. As of Wednesday, April 1, they had already produced hundreds of covers. They are hoping to be able to deliver the first batch by the end of the week.
“We are grateful to be able to use our legal skills to give back to the greater good,” Alvarez said.
Learn more about Troutman Sanders’ pro bono efforts at troutman.com.