News

Knoxville Based Boat Company Accused of Violating Patent Injunction

Cobalt Boats LLC filed a motion in federal court on May 11 accusing Brunswick Corporation's Knoxville based Sea Ray brand of violating an injunction order by continuing to infringe on Cobalt's patented flip-down "retractable swim step," according to a press release issued on Wednesday. Cobalt contends that the swim steps currently sold on Sea Ray boats are not significantly different from the Sea Ray swim steps found to be an infringement in a previous trial, in which Cobalt was awarded upward to $5.4 million.

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Share Your Thoughts on Proposed Amendments to Tennessee Supreme Court Rule 6

The Supreme Court recently requested comment on proposed amendments to TSC Rule 6 that would require new attorneys to complete a Tennessee Law Course within one year of admission to the Tennessee bar. The Tennessee Bar Association has a working group on this issue and will be drafting comments in response to the court's Order for Comment. To ensure this comment best reflects members’ views and positions, the groups is looking for your feedback. Share your thoughts about the proposed amendments through this form by June 8.
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    Protecting Your Company From a Social Media Mishap

    In today's social media climate the opportunity for mishaps are everywhere. Erin S. Hennessy, Annie Allison and Salsabil Ahmed of the Law.com discuss steps your company can take to avoid these embarrassing mishaps. Click here to read more.

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    U.S. Says Bankrupt Tennessee Nursing Home Chain Must Transfer Liability

    The U.S. government has objected to a plan by Orianna Health Systems nursing home chain to protect companies that would acquire facilities through its restructuring from successor liability, Reuters reports. Filed on April 9, the motion contends that the ultimate control over the legal issues surrounding the transfer of Medicare provider agreements, not a bankruptcy court — and that Orianna cannot expect a new operator to assume control over the properties without also dealing with its existing liabilities. The Nashville based company, which operates skilled nursing facilities in seven states, with around 4,500 beds and 5,000 employees, initially revealed its bankruptcy plan last month after falling behind on rent payments to landlord Omega Healthcare Investors. 
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    Bellevue PetSmart Raided, Animals Confiscated After Video and Photos Surface

    Authorities raided a Bellevue PetSmart last week after a video and photos surfaced showing sick and injured animals allegedly not being cared for properly reports The Tennessean. The Metro Nashville Public Health Department with assistance from Metro police carried out the sweep, which took place in the morning hours at One Bellevue Place after a search warrant was issued earlier that day. Health Department spokesman Brian Todd said Metro Animal Care and Control received a video and photos showing inadequate care for animals at the business. "We confiscated any injured or sick animals and have requested veterinary records as well as their policies on animal care," Todd said. "Based on that, we will work with Metro police and the (Davidson County) District Attorney's Office to determine whether charges will be filed."
     
    According to a statement from People for the Ethical Treatment of Animals (PETA), the incidents were documented by a store employee and reported to PETA, who in turn provided law enforcement with the photos and videos of managers "repeatedly refusing to provide sick, injured and dying animals with veterinary care in order to keep costs down so that they would receive bonuses." 
     
    “We are always committed to putting the needs of the pets in our care first," a statement from Petsmart said. "We empower our store associates to do what’s right for all pets, which includes instruction to have any sick animal immediately seen by a veterinarian if needed. There is no adverse effect on a store team that takes every step possible to care for pets. ... Additionally, we are investigating the validity of the video, given some of the footage is several years old.” So far no arrests have been made.
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    Bill Could Define How Tennessee Addresses 'Gig Economy Workers'

    The House Consumer and Human Resources Committee advanced legislation that is drawing criticism from national workers' rights advocates reports The Nashville Post. HB 1978 proposes amendment to Tennessee Code Annotated, Title 50; Title 56 and Title 62, relative to employment relationships and has already passed the Senate and is likely to pass the House, given the Republican supermajority.
     
    This would further most gig workers, ‘marketplace contractors,’  as independent contractors and not benefit eligible employees. Currently, the distinction between a contractor and an employee hinges on the idea of control. Telling a worker when and how to perform a job, providing training or supplies, monitoring their activity and determining the rate of pay are all factors that would support a finding that the worker is an employee, freeing them from having to pay workers' compensation premiums and unemployment taxes or obeying state anti-discrimination and minimum wage laws.
     
    The bills have provoked a response from the National Domestic Workers Alliance, a national nonprofit advocacy group. Palak Shah, the organization's director of social innovations, recently went to Tennessee to caution lawmakers that the bill would permanently carve many workers out of rights to which they would be entitled as employees. "It's just such a sorry excuse for a business model to make vulnerable workers more vulnerable just so you can tell your investors that one day you might be solvent," Shah said. "This legislation basically ensures that domestic workers online will never have protection."
     
    House sponsor Rep. Pat Marsh (R-Shelbyville) said most people working for gig economy platforms are doing so part-time and aren't expecting and don't need the protections offered to standard full-time employees. "We already have people who go out and do yard work on their own," said Marsh. "If they get on a platform it gives them access to more customers." Others point out that these platforms take a cut from their workers, along with possible additional fees, while the individual has to cover their own costs like equipment, transportation, insurance and self-employment taxes.
     
    Critics have said they fear the laxer regulations will drive down wages, ultimately forcing them to subcontract to compete. Rep. Dwayne Thompson (D-Cordova) voiced similar concerns, comparing some platforms to Walmart's effect on businesses in a small town. Thompson was the only vote against the legislation. One of the other platforms with an interest in the legislation passing is Brentwood-based Takl, which counts Senate Commerce Committee Chairman Jack Johnson (R-Franklin) as an executive. Johnson co-sponsored the bill in the Senate.
     
    Gov. Bill Haslam's administration was opposed to the version that passed the Senate, but a state Department of Labor official told the House committee that the amended version has addressed some of their concerns. Haslam spokesperson Jennifer Donnals said the governor "is deferring to the will of the legislature on this bill as amended." The main Senate sponsor, Sen. Bo Watson (R-Hixson), has not seen the amended wording, said his aide Tres Whittum, but is fine in "principle" with the changes.
     
    The house will vote on these amendments today. You can track the progress of this legislation using this link.
     
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    10 Essential Documents for Your Practice

    Instructions and rules for client file retention, list of current curse and copy of bank’s form for IOLTA access are three of the top 10 documents attorneys need for succession planning and practice management. Learn more in this 3-hour dual credit workshop with attorney Timothy Takacs.

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    Chicken Plant Rejected by Kansas Town Finds New Home in Gibson County

    A chicken plant originally planned and rejected by a Kansas town has found a new home in Gibson County, reports The Tennessean. Tyson Foods, the world's largest processor and marketer of chicken, beef and pork, has announced that the plant will be located at the Gibson County Industrial Site with close proximity to rail and Interstate 40. As part of the deal, Tyson has been awarded $18 million in incentives through the state's FastTrack grants that will go toward additional infrastructure, and the county has offered a tax abatement deal estimated to total $16 million over the next 20 years. 
     
    Gibson County Economic Development Director Kingsley Brock says he and other local officials were aware of the Kansas pushback and vetted Arkansas-based Tyson accordingly. "I knew we had something good. It was just a matter of time," said Brock. "It turned out we were at the right place at the right time." Tyson said it was drawn to the available workforce in Gibson County, proximity to grain and available infrastructure. Jobs will have wages ranging from $13 to $20 an hour, plus benefits. Many management and administrative jobs also will be offered. 
     
    One of the biggest complaints about the Tyson project in Kansas was the infrastructure needed to accommodate both the plant and an expected to be an influx of new residents taking jobs there. Roads would need upgrades to support the heavy trucks, the sewer system would need to be extended and schools could be overwhelmed, residents said. The county had planned to issue $500 million in industrial bond revenue to support the facility, along with $7 million for utilities and another $1 million for sewer lines. Residents also objected to the perceived secrecy surrounding the project prior to the announcement and raised concerns about smells associated with chicken farms, possible exposure to ammonia and the potential for water pollution. The debate came to a head at a crowded town hall meeting in September, drawing about 2,000 people, according to media reports.
     
    Other concerns raised involve reports of the company releasing more than 20 million pounds of toxic chemicals into U.S. waterways in 2014, more than any other agricultural company, according to a 2016 report from Environment America Research & Policy Center. Tyson spokesman Worth Sparkman disputed the report as inaccurate and misleading. Water from plants is returned to streams after it is treated by government-regulated systems and most farmers raising animals are required to follow nutrient management plans, he said. Tyson was also among chicken companies sued in 2005 for polluting the Illinois River with chicken waste. In 2015, the company settled a case in Missouri for chemical releases that killed more than 100,000 fish in a Missouri creek. 
     
    Regarding water concerns, Gibson County Mayor Tom Witherspoon says he has full confidence in the Tennessee Department of Environment and Conservation (TDEC) to regulate the chicken plant and contributing farms. But, under new legislation signed into law in February, chicken farmers raising poultry for Tyson will no longer be required to obtain TDEC permits. TDEC spokeswoman Kim Schofinski said the state can still enforce against water quality violations, mostly identified through complaint investigations or TDEC's routine sampling. "Our investigative process, as well as routine water quality monitoring, can potentially identify a link between an impact and a specific activity or source," she said in an emailed statement.
     
    Having watched what unfolded in Kansas, Witherspoon said local officials sought to engage the community and involve them in the process early on. They held meetings with area farmers and talked with community leaders about the Tyson prospect ahead of the announcement, made in November, and the project has been well-received by farmers and the business community. Any pushback Witherspoon said he has received has been from a handful of residents who fear the jobs will attract an influx of immigrants to the area, a concern he brushes off. "Anybody who wants to come to Gibson County, get here legally, get up and go to work every day, pay their bills, provide for their families and obey our laws and keep their yard picked up, they are welcome," he said.
     
    Tyson currently maintains a plant in Obion County, employing 1,000 people in Obion County's Union City and is adding 300 more jobs as part of an $84 million expansion “They have been a blessing to Obion County and surrounding counties with their employment," Obion County Mayor Benny McGuire said.  “The company's presence has sustained Obion County’s tax base, paying for schools and roads.” In Gibson County, officials are optimistic the plant will trigger new business creation and help them lure more companies to the area and to the industrial site, once Tyson is established.
     
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    Corporate Counsel Gather to Support Pro Bono Efforts

    Tennessee lawyers gathered at the Corporate Counsel Pro Bono Initiative Gala Saturday in Nashville. Over the past 12 years, the event has raised more than half a million dollars in support of pro bono efforts that engage in-house and corporate counsel with legal aid programs across the state. The program featured remarks from past TBA President Buck Lewis and Ann Pruitt, executive director of the Tennessee Alliance for Legal Services, as well as TBA Executive Director Joycelyn Stevenson and leaders from the TBA Access to Justice Committee. This year’s event was hosted by Bass, Berry & Sims and honored outstanding law firm and legal departments. This year, Eastman Chemical Company and Bass, Berry & Sims were honored for their pro bono efforts. See photos from the event or learn more about the Corporate Counsel Pro Bono Initiative.

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    Corporate Counsel CLE Forum Set for March 2

    A CLE on corporate counsel will be held at the Tennessee Bar Center on March 2. Topics will include updates in employment law, the latest in mergers and acquisitions, career options for in-house counsel and privilege considerations when working with corporate subsidiaries. Professor Joan MacLeod Heminway of The University of Tennessee will also present on data security, and this year’s roundtable discussion will offer various perspectives on contract management and procurements. 
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    CCPBI Gala to Honor Eastman and Bass, Berry & Sims

    The TBA Access to Justice Committee, in partnership with the TBA Corporate Counsel Section and the Association of Corporate Counsel, is hosting the 12th annual Corporate Counsel Pro Bono Initiative Gala on March 3 in Nashville. The gala, which will be held at the Pinnacle at Symphony Place, will feature remarks from Eve Runyon, president and CEO of the Pro Bono Institute, and the CCPBI awards presentation. Attorneys from Eastman Chemical Company in Kingsport will be honored as outstanding legal department for their work with Legal Aid of East Tennessee and Bass, Berry & Sims will receive the law firm award for its ongoing work supporting the Tennessee Justice Center. The deadline to become an event sponsor or purchase tickets is Friday. Contact Liz Todaro, TBA Access to Justice Director, for more information.

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    Remington Declines to Say if Bankruptcy Will Put Existing Settlement at Risk

    Remington, America's oldest gun manufacturer, filed Chapter 11 bankruptcy on Monday, sparking questions on how this will affect an agreement to repair millions of allegedly defective guns that resulted in a lawsuit. The suit began in 2010 when CNBC investigated allegations that for decades Remington covered up a deadly design defect that allows the guns to fire without the trigger being pulled. To this day, Remington denies the allegations and maintains the guns are safe.
     
    The company said it was settling the case to avoid protracted litigation. An attorney for Remington refused to say whether the plan by America's oldest gun manufacturer to file for Chapter 11 bankruptcy protection will affect an agreement to repair millions of allegedly defective guns. "It is the company's position not to comment," said John Sherk, attorney for Remington.
     
    An attorney representing plaintiffs in the case, J. Robert Ates, says the bankruptcy filing should be of no moment in terms of the class action case, particularly because the suit also named as a defendant E.I. du Pont de Nemours and Company, which owned Remington when the original trigger mechanism was developed. The company, which merged with Dow Chemical last year to form DowDuPont, recorded $24 billion in revenues 2016.
     
    Under the proposed settlement - which Remington and plaintiffs have claimed could be worth upwards of $500 million - DuPont would fund only a tiny amount, covering product vouchers being offered to owners of some of the oldest Remington models. DuPont has also continuously maintained that the guns are safe.
     
    Neither Remington nor its attorneys have indicated whether the company intends to abide by the agreement considering the bankruptcy filing. While the settlement includes a guarantee that the company will meet its financial obligations under the agreement, it does not address the possibility of a bankruptcy. The settlement is currently under appeal in the Eighth U.S. Circuit Court of Appeals.
     
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    TBA Gears Up for 2018 Mock Trial Tournament

    The Tennessee Bar Association will host the upcoming Tennessee High School Mock Trial Tournament on March 23 and 24 in Nashville. The Mock Trial is a two-day, single-elimination bracket-style competition where 16 high schools face-off against each other in the Davidson County Courthouse. Each team is scored on their trial preparation and skills. 

    We need TBA volunteers to help be bailiffs and jurors (scorers) for the event. After signing up, we will send you a Volunteer Memo with all the information you need for competition including; parking, hotel, downtown map, courthouse rules, and reimbursement information. Come be a part of the Young Lawyers Divisions’ March Madness! Feel free to contact YLD Director Stephanie Vonnahme with any questions.

    To volunteer for this event, click here.

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    Memphis Landlord Trying to Save Shuttering Toys 'R' Us Location

    A Memphis Toys R Us is among as many as 182 stores likely to close as part of its bankruptcy reorganization plan, but a local shopping center owner will try negotiating to keep it open. The beleaguered company announced its filing of Chapter 11 bankruptcy filing last September, acknowledging that it needed to revamp its long-term debt totaling more than $5 billion.
     
    "I was a little surprised,'' Michael Lightman said of learning that the Toys R Us made the closure list. "I thought that store was doing just fine. I'm still trying to reach the right people at Toys R Us to find out more detail,'' he said.
     
    The company noted that some closings may be avoided if it is able to negotiate more favorable lease terms. But most of the stores listed in the documents are expected to close as Toys R Us tries to reinvent itself as a leaner, smarter retailer. "The reinvention of our brands requires that we make tough decisions about our priorities and focus," Toys R Us chief executive Dave Brandon said in a letter posted on the company's website.
     
    Toys R Us will shrink its store fleet by about 20 percent if all planned 182 stores are closed. Lightman's location is among two planned Tennessee closures for the company. Babies R Us on Nolensville Road in Nashville is also planned for closure. A complete list of closing stores can be found here.
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    Don't Forget: Winter CLE Blast Tomorrow!

    Need CLE hours fast? We can help! The annual Winter CLE Blast is less than a day away. With this program, you can complete up to 11 hours of Dual CLE credit on your own time. Our registration desk will be open from 7 a.m. to 6:45 p.m. on Feb. 21, providing you the flexibility to create your own schedule and take as many or as few hours as you need. Payment will be determined at checkout depending on the number of hours you attend. 

    Highlights

    • Flexible to your schedule
    • Up to 11 Hours of CLE
    • Ethics Credits
    • Compliance CLE
    • Live Credit Hours

    When: Feb. 21, registration begins at 7 a.m., CST

    Where: Tennessee Bar Center, 221 4th Ave N., Nashville, TN 37219

     

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    Rep. Faison Files Bill Aimed at Ending Private Prison Usage in State

    Rep. Jeremy Faison, R-Crosby, has filed legislation taking aim at private prison usage in Tennessee, according to the Tennessean. SB1585 proposes an amendment to TCA Title 41, Chapter 24, prohibiting contracts for the operation of prison facilities from containing occupancy level guarantees, in which the state promises to keep its prison at 90 percent capacity or pay the contractor as though the prison were 90 percent full even if it's not. Private prison opponents argue that these guarantees act as a monetary incentive for states to keep prisons full.
     
    Faison predicts the bill will be hotly contested, as Tennessee is home to the second largest private corrections company in the United States, CoreCivic, formerly Corrections Corporation of America. The spokesman for the company, Amanda Gilchrist, recently told the Tennessean that "fewer than half of our contracts include such a provision. Those contracts that include a guarantee ensure our government partners that sufficient space to safely and securely house their offenders in the facility is available to them." 
     
    CoreCivic has long been the center of controversy, most recently because of a report from the state Comptroller’s Office, which cites inadequate staffing and supervision of inmates, both persistent problems for the beleaguered corporation. "The U.S. Constitution says that government is supposed to carry out justice," said Faison. "Our Tennessee state Constitution says that government is supposed to carry out justice, not, 'somebody who’s trying to make money gets to carry out justice.' That's crazy."
     
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    Message and Survey from the Chair

    Welcome to the start of the TBA Corporate Counsel Section calendar year. I am Brad Hendrix, the incoming Corporate Counsel Section chairman, and this year, our Executive Council wants to make your Section membership even more beneficial to your practice. 
     
    As you know, each year our Section presents the always-great spring Corporate Counsel Forum. The primary drawbacks to the Forum, however, are that it takes place in Nashville (which is great if you’re in Nashville, not so great if you’re located in Memphis, Chattanooga, Knoxville, Jackson, Johnson City, Bristol, etc.) and that it only occurs once a year. This year, we want to take the show on the road, and not only provide you with great resources for your corporate counsel practice but also put you in contact with your peers in our practice area.
     
    As you would expect, our Section membership roster is diverse, consisting of both in-state and out-of-state members, along with members practicing in-house, in-government, and in private practice. In addition, our in-state membership is spread far and wide – from Memphis, all the way Bristol, and everywhere in between. To bring the Section closer to you and to interact on a more regular basis, we want to assign each member into regions so that we can plan events (either CLEs and/or social gatherings). Initially, the regions will be centered around our major metropolitan areas: Nashville, Memphis, Knoxville and Chattanooga. We will also want to have an out-of-state region, possibly for some on-line offerings. If interest is sufficient, we can also create regions in other cities around the state as well.
     
    In order to get this project off the ground, we need your input and support. We have created a SurveyMonkey for you to fill out. You can click on this link, and it will take you to the survey. 
     
    The survey asks for your preferred contact information, your preferred region, your interest in attending such an event and, if so, your interest in helping organize (or hosting) an event in your region. It should only take a couple of minutes to complete, but we would really appreciate your input and involvement.
     
    Of course, if you have any feedback, suggestions (or if you want to go ahead and volunteer to help out), please let myself, TBA Sections and Committees Coordinator Wil Hammond, or any of the Executive Council know. You can email me at brad.hendrix@cblproperties.com.
     
    Thank you for membership in the TBA Corporate Counsel Section, and we’re looking forward to a great year.
     
    Brad Hendrix

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    Global & Tennessee Specific Trade & Investment Perspectives & Policies for 2018 & Beyond

     
    The International Law Section of the Tennessee Bar Association is sponsoring a free seminar “Global & Tennessee Specific Trade & Investment Perspectives & Policies for 2018 & Beyond” to be held on Thursday, Nov. 2 from 6:00 p.m. – 7:30 p.m. at Nashville School of Law, Appellate Courtroom, 4013 Armory Oaks Drive, Nashville, Tenn. 
     
    The speakers on the panel include:
    • Terry Olsen, Chair of the TBA International Law Section, as Moderator
    • Clay Banks, Regional Director of Tennessee Department of Economic & Community Development
    • James Forde, Prosperity and Economics Officer of British Consulate General, Atlanta
    • Ms. Joanne Chu, Director of Hong Kong Economic and Trade Office (New York)
    • Mr. Michael Kwan, Deputy Director of Hong Kong Economic and Trade Office (New York)
    The seminar will provide an overview of the global & U.S. trade & investment landscape as it concerns Tennessee for 2018 & beyond, and both policy & legal views of the ever-changing global standard of Tennessee in the international investment environment.
     
    Attendees will also have the opportunity to have direct interactive discussions with the speakers at the end of the seminar.
     
    The panel discussion will last from 6pm thru 7pm, and then followed with a FAQ session for attendees, along with a light reception of beverage & desserts. 
     
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    Check Out Latest Corporate Counsel CLE Package

    Wellness programs, legal technology and recent developments are included in the 1-Click package for corporate counsel attorneys. Speakers include Stacie Caraway of Miller Martin PLLC and Fredrick Bissinger of Wimberly Lawson Wright Daves & Jones PLLC. 

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    FedEx Names New General Counsel

    FedEx Corp. has named Mark R. Allen as the next general counsel of the company, the Memphis Business Journal reports. Allen will also serve as executive vice president and secretary, effective Oct. 1. He’s been with the corporation since 1982, and succeeds Christine P. Richards in the role.
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    Corporate Counsel Package Now Available

    Wellness programs, legal technology and recent developments are included in the 1-Click package for corporate counsel attorneys. Speakers include Stacie Caraway of Miller Martin PLLC and Fredrick Bissinger of Wimberly Lawson Wright Daves & Jones PLLC.

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    Chattanooga Lawyer Named to Board of National Legal Group

    Chattanooga lawyer Marc H. Harwell has been elected to the Board of Directors of the Federation of Defense and Corporate Counsel. An attorney with the firm of Leitner, Williams, Dooley & Napolitan PLLC, Harwell also serves as the appointed chair of the group’s Construction Section and vice chair of its Transportation Section, Admissions Committee and Projects and Objectives Committee.

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    Item of Interest

    Below is an article that was published in the the Disability Section Connect. We thought it had information that would be of interest to those of you in this section as well.  

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    First Tennessee v. Pinnacle Financial to Head to Trial

    A legal battle between First Tennessee Bank and Pinnacle Financial Partners over the latter’s entry into the Memphis market is set for a jury trial, the Memphis Daily News reports. Shelby County Chancellor Jim Kyle yesterday denied a motion for partial summary judgment made by First Tennessee. The action was first brought in 2015 originally only against Damon Bell, the First Tennessee executive vice president recruited by Pinnacle to serve as its Memphis president. The recruitment was a culmination of secret efforts to recruit Bell and others while they were still employed by First Tennessee, the 2016 amended complaint alleges.
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