Greetings from the Section Chair

As the new chair of the TBA Alternative Dispute Resolution Section, I’m taking this opportunity to introduce myself. 
I am Debbie Fulton, and I practice with Frantz, McConnell & Seymour in Knoxville. During my 36-year career I have primarily been a litigator. (Stop doing the math on how old that makes me.). Yes, Grasshopper, there  was a time in the distant past when lawyers actually tried lawsuits. I have been a mediator since 1997. In 2015, I became interested in the field of ADR in health care and have been trained by the American Health Lawyers Association in both mediation and arbitration of health law disputes. This led me into another interest, cybersecurity and data breach.
I look forward to the coming year, and I need your help to develop a more robust membership on the TBA Executive Council for the ADR section.  Are you willing to serve? As an Executive Council member, you may be called on to assist with brainstorming CLE ideas, write an article about a mediation topic you found interesting for the Connect, share updates from your jurisdiction or find ways to serve our section.
Please give me a call or e-mail me with your ideas, and remember that I am a facilitator for what the section wants, not its dictator.
Debbie Fulton 
TBA Dispute Resolution Section, Chair
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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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Turn Your Expertise into a Magazine Article

It’s no surprise that some of the best articles in the Tennessee Bar Journal have come from TBA section members. Your membership in this section shows that you have a keen interest in trends, developments and case law in this practice area. Sharing this knowledge with your colleagues is one of the best traits of the profession.

How can you become a Journal author? Think of and refine your topic. It should be of interest to Tennessee lawyers, which is a broad criteria. This could mean you might explain a new state law, explain a complicated area of law, or take a larger issue and connect it to what it means for Tennessee attorneys and the justice system. Find a global issue within your particular experience or knowledge and tell about it and how it affects Tennessee law. Then take a look at the writer’s guidelines at, which will tell you about length, notes and other details. Once it’s in the proper format, send it in! It goes to the editor, Suzanne Craig Robertson, who will then get it to the seven members of the Editorial Board for review.

If you are published, you may apply for CLE credit for your work under Supreme Court Rule 21 Section 4.07(b). For details on claiming the credit, check with the Commission on CLE & Specialization at

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TBA Convention in Kingsport is Just Around the Corner

Registration is open for the 2017 TBA Annual Convention. This years programming offers plenty of opportunities to make new friends and renew acquaintances with colleagues from across the state. The highlight comes Thursday night with the Kingsport Karnival at the downtown Farmers Market. Along with fabulous food and drink, there will be live music from two bands, an aerialist, juggler, magician, body and face painters, caricaturist and more. Plus, you'll have access to the fabulous Kingsport Carousel, the delightful project of community artisans. Special thanks to Eastman for support of this event! 

This years convention also offers 12 hours of CLE programming, highlighted by sessions on the Hatfields and McCoys, The Neuroscience of Decision-Making, and the popular Better Right Now wellness program. It is all set at the beautiful MeadowView Marriott Conference Resort & Convention Center. To receive the TBA $129 room rate, you must book your reservation by May 23. Book your room online now or call 423-578-6600.

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Discover How Technology is Changing Dispute Resolution

This year's Dispute Resolution Forum in Nashville will focus on the changing landscape of mediation from live to digital. Speakers at the April 10 program will address the implications of online dispute resolution technology and provide practical examples of this new technology in action. Another session will address how online dispute resolution can improve access to justice. Further sessions will cover the ethical issues arising out of online dispute resolution.

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Come to the 2017 Dispute Resolution Forum

Join the Tennessee Bar Association for the 2017 Dispute Resolution Forum April 10 in Nashville. The day will focus on the changing landscape of mediation from live to digital. Speakers will address the implications of online dispute resolution technology and provide practical examples of this new technology in action. Another session will address how online dispute resolution can improve access to justice. Other sessions will cover the ethical issues arising out of online dispute resolution. Find out more and register here.

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TBA Mashup and Mini Legal Hackathon this Friday

In conjunction with the Law Tech UnConference CLE this Friday, the TBA is also offering a variety of free events and programs for lawyers we’re calling a Mashup. One program will teach you about Legal Hackathons and see one in action. A Legal Hackathon is a collaborative effort of experts in the legal profession collaborating with a computer programmer to find a technology assisted solution to a problem in the legal industry. Join the TBA Special Committee on the Evolving Legal Market for a mini legal hackathon that will demonstrate the power of collaborative minds at work. We will have tasty beverages and snacks to help you get your collaborative juices flowing.  
Other programs that will be a part of the Mashup include Pro Bono In Action which will show you various pro bono programs you can participate in to help your fellow Tennesseans and Member Benefit Programs that will provide you information on  Fastcase 7, health insurance options for small firms, ABA retirement funds and professional liability insurance.
Please sign up now to let us know you are coming.

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Updates and Resources for ADR Practitioners

by Marnie Huff*

I. Resources

Here is a copy of Appendix N (Checklist for Preparing Clients for First Negotiation Session) from Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money (2d Ed. 2015), reproduced with permission of the author John Lande. Information on Lande’s well-regarded book is available at the ABA Bookstore.

II. Caselaw Update

A. Certiorari Petitions Pending in U.S. Supreme Court

Cases on the SCOTUSblog watch list include the following cases with arbitration issues:

• Epic Systems Corporation v. Jacob Lewis, No. 16-285 (cert petition filed September 2, 2016: “Whether an agreement that requires an employer and an employee to resolve employment-related disputes through individual arbitration, and waive class and collective proceedings, is enforceable under the Federal Arbitration Act, notwithstanding the provisions of the National Labor Relations Act.”).

• Ernst & Young, LLP, et al. v. Stephen Morris, et al., No. 16-300 (cert petition filed September 8, 2016: issue similar to Epic Systems case).

• Connie Patterson, Individually and on Behalf of All Others Similarly Situated, et al., v. Raymours Furniture Company, Inc., No. 16-388 (cert petition filed on September 22, 2016: “Whether a provision in an employment arbitration agreement that prohibits employees from seeking adjudication of any work-related claim on a class, collective, joint, or representative basis in any forum is invalid and unenforceable under Sections 2 and 3 of the Norris-LaGuardia Act, 29 U.S.C. §§ 102, 103, and Sections 7 and 8(a)(1) of the National Labor Relations Act, 29 U.S.C. §§ 157, 158(a)(1), because it ‘interfere[s]’ with the employees' statutory right ‘to engage in . . . concerted activities for the purpose of . . . mutual aid or protection.’”).

• National Labor Relations Board v. Murphy Oil USA, Inc., et al., No. 16-307 (cert petition filed September 9, 2016: issue similar to Patterson case)

• Government of Belize v. Newco Limited, No. 16-135 (cert petition filed on July 26, 2016: “(1) Whether, under the doctrine of forum non conveniens, as applied to a confirmation action to enforce a foreign arbitration award, a foreign forum is per se inadequate because assets in the United States cannot be attached by a foreign court, as the D.C. Circuit has held; or is adequate if it has jurisdiction and there are assets of the defendant in the alternative forum, as the Second Circuit held; and (2) whether, under Article V(2)(b) of the New York Convention, the public policy in favor of arbitration yields where confirmation of an arbitral award would be contrary to the countervailing public policies such as international comity and the policy against tax evasion.”).

• Government of Belize v. BCB Holdings Limited, et al., No. 16-136 (cert petition filed July 26, 2016: statement of issue similar to Newco case).

• Government of Belize v. Belize Social Development Limited, No. 15-830 (cert petition filed December 22, 2015: statement of issue similar to Newco case).

B. Selected Cases from U.S. Court of Appeals for the Sixth Circuit

1. Arbitration

Continuing to work constitutes assent to employee handbook’s arbitration agreement. Marlena Aldrich; Kristin Nolan v. University of Phoenix, Inc., Case No. 16-5276 (6th Cir. October 24, 2016) (not recommended for publication) involved a suit against the University of Phoenix for wrongful termination and for uncompensated overtime hours. For the latter claim, the plaintiffs sought to represent a class of similarly uncompensated employees. After removal to federal court, the district court dismissed the case without prejudice on the ground that the plaintiffs were required to arbitrate their claims, notwithstanding the plaintiffs’ affidavits asserting they never received or signed the university’s online form acknowledging an agreement to arbitrate in the employee handbook. One of the issues on appeal was whether the district court erred in ordering arbitration because there was a genuine dispute of material fact as to whether the plaintiffs signed the acknowledgement form. Under the FAA, if an arbitration agreement’s existence is “in issue,” a court cannot grant a motion to compel arbitration. 9 U.S.C. § 4. Under applicable Kentucky law in this case, an employee who does not sign an arbitration agreement can still demonstrate acceptance of the agreement by continuing to work for an employer. Here, the university’s employee handbook stated that acceptance of the arbitration agreement was a condition of employment. The plaintiffs demonstrated assent to the arbitration agreement by continuing to work at the university, whether or not they signed the acknowledgment form. Access the opinion

Arbitration clause doesn’t survive expiration of contract. In Linglong Americas, Inc., et al. v. Horizon Tire, Case No. 16-3520 (6th Cir. December 1, 2016) (not recommended for full-text publication), the District Court denied Linglong’s motion to compel arbitration of Horizon's claims. Linglong argued that an agreement between the parties mandated arbitration even though the agreement had expired by its terms four years earlier. In 2006, the companies entered into a "Collaboration Agreement," under which Linglong China would produce a line of light-truck tires, for which Horizon would be the sole distributor. The Agreement would "remain valid for five years" if not renewed. It had an arbitration clause providing that, "if no settlement can be reached through negotiations," the parties would arbitrate in China any "disputes or claims arising out of this agreement." The agreement was not renewed, but the companies continued to do business with each other. The Court of Appeals held that the arbitration clause did not survive expiration of the Collaboration Agreement because: 1) the majority of the material facts and occurrences giving rise to the dispute did not occur before the contract expired; 2) the contractual right at issue did not survive the Agreement’s expiration, given that Horizon expressly waived any claim that it had a permanent right of exclusive distributorship under the Agreement. Access the opinion

Milan Express Co., Inc. v. Applied Underwriters Captive Risk Assurance Co., Inc., Case No. 16-5270 (6th Cir. December 2, 2016) (not recommended for full-text publication) involved a contract and tort federal court action in Tennessee based on the parties' diversity of citizenship. In a prior appeal, the Court of Appeals vacated the district court’s order stopping arbitration because, under the parties’ contract, arbitrability was for the arbitrator to decide, not the court. After remand from that earlier appeal, the parties agreed to arbitrate in Tennessee. The arbitration panel decided that the parties’ arbitration clause was not enforceable under governing Nebraska law. Applied Undertwriters then moved the district court to vacate the arbitration award, asserting the arbitrators acted with manifest disregard for the law. It also moved to dismiss the action in federal court. Per the parties' contractual forum-selection clause, the parties had agreed that Nebraska courts had exclusive jurisdiction to enforce any arbitration award and resolve other disputes related to their contract. Enforcing that clause, the district court granted Applied Underwriters’ motion to dismiss for forum non conveniens. Neither party challenged that dismissal order. Rather, Applied Underwriters challenged the district court’s failure to decide the motion to vacate the arbitration award. Applied Underwriters argued the district court's non-ruling on the motion to vacate the award, pending when the case was dismissed was an implied denial of the motion, making it ripe for appeal. The Court of Appeals declined to exercise appellate jurisdiction. The district court properly honored the parties’ agreement to litigate the arbitration award in Nebraska courts. Access the opinion

2. Settlements

Bad faith claim rejected. In Great American Insurance Company v. E.L. Bailey & Company, Inc.; Edward L. Bailey, ___ F.3d ___, No. 15-2149 (6th Cir. November 7, 2016), the State of Michigan contracted with E.L. Bailey & Company, Inc. to construct a prison kitchen. After delays, Bailey and the State sued each other for breach of contract in the Michigan Court of Claims. Bailey had obtained surety bonds from Great American Insurance Company guaranteeing its performance. In exchange, Bailey agreed to assign Great American the right to settle claims related to the construction project if Bailey allegedly breached the construction contract. Exercising this right, Great American negotiated with the State to settle Bailey's claims without Bailey's knowledge. It then sought a declaratory judgment from the district court recognizing its right to settle. The district court granted summary judgment to Great American. On appeal, Bailey argued that Great American settled Bailey's claims against the State in bad faith. Affirming the court below, the Court of Appeals held that Bailey presented insufficient evidence of bad faith. Great American’s failure to inform Bailey until the day before a scheduled ADR proceeding was concerning, but alone did not defeat summary judgment. Bailey also did not establish that Great American failed to adequately investigate Michigan law. Access the opinion.

C. Tennessee Cases

1. Arbitration

Failure to provide services, in context of third party beneficiary claim, means arbitration not a consumer case. Billy Coffey, et al. v. Hamblen County, et al., No. E2016-01116-COA-R3-CV (Tenn. Ct. App. December 28, 2016) was a breach of contract action. On behalf of the decedent, who died as a result of suicide in the county jail, the plaintiffs sought damages from a designated emergency medical services provider, pursuant to a contract between the provider and the county. The EMS provider moved to compel arbitration per the contract’s arbitration clause. The arbitration clause provided for arbitration in accordance with the American Health Lawyers Association ADR Services Rules of Procedure. In consumer cases, the AHLA requires a separate notice about waiver of the right to a jury trial and appeal. The plaintiffs argued that the contract’s arbitration provision was invalid because it did not contain this required notice. Reversing the trial court’s decision denying arbitration, the Court of Appeals remanded for arbitration. After examining the AHLA’s definitions of “Health Care Entity,” “Consumer,” and “Consumer Case,” the Court of Appeals rejected the trial court’s classification of the case as a consumer case because the plaintiffs’ action involved the failure to provide services promised in the service agreement between the EMS provider and the county. The plaintiffs’ claim was dependent on the decedent’s status as a third-party beneficiary to the service agreement. Enforcement of the arbitration clause will result in bifurcated proceedings and possibly inconsistent results, but that possibility does not change the result. The Court of Appeals also rejected the EMS provider’s argument that the arbitrator, not the trial court, had authority to decide whether the arbitration agreement was valid. Access the opinion. Access the concurring and dissenting opinion (disagreeing with majority’s view that case is not a consumer case).

Agreed order setting aside arbitration and setting trial results in waiving prejudice from delay claim. Demquarter Healthcare Investors, L.P. v. OP Chattanooga, LLC, et al., No. E2016-00031-COA-R3-CV (Tenn. Ct. App. December 29, 2016) involved a skilled nursing facility lease. After trial began, the trial court, sua sponte, inquired about a lease provision stating that disputes not resolved within thirty days of notice of the dispute "shall be submitted to arbitration . . . ." The defendants asserted that they had not waived arbitration and orally moved for arbitration, which the trial court granted over the plaintiff’s objections. Two weeks after the trial court ordered arbitration, and before any arbitration took place, the trial court entered an agreed order setting aside its arbitration order and resetting the case for trial. One of the issues on appeal was whether the plaintiff was prejudiced by delay caused by the arbitration order. The Court of Appeals held that the plaintiff had agreed to proceed with the trial per the agreed order setting aside the arbitration order and therefore waived the prejudice issue. Access the opinion.

2. Settlements

Response to settlement offer was an acceptance, not a counteroffer. In Tim Grace v. Jeanna Grace d/b/a Grace Trucking, No. W2016-00650-COA-R3-CV (Tenn. Ct. App. November 29, 2016), Tim Grace filed a breach of contract action against Jeanna Grace. Tim later filed a motion to enforce a settlement agreement. Jeanna conceded that Tim had made an offer, but claimed there was no agreement because her response to the offer was a counteroffer, not an acceptance, and she had then revoked the counteroffer. Affirming the trial court’s decision, the Court of Appeals held that the parties had an enforceable settlement agreement. Jeanna’s response involved accepting the terms of Tim’s offer with an added requirement that the agreed order include language that the case was dismissed with prejudice. This added requirement did not materially alter the terms of Tim’s offer and therefore did not constitute a counteroffer. See Disney v. Henry, 656 S.W. 2d 859 (Tenn. Ct. App. 1983). Access the opinion.

John Christopher Gibbs v. Lisa Stacy Gibbs, No. E2015-01362-COA-R3-CV (Tenn. Ct. App. September 7, 2016) involved a post-divorce civil contempt petition filed by the former wife, asserting that the former husband willfully breached their property settlement agreement that was incorporated into the divorce decree. The husband did not attend the contempt hearing. The trial court found that the husband willfully violated the divorce decree based on the wife’s testimony. The trial court ordered incarceration and $50 per day fine until the husband complied with the divorce decree. The Court of Appeals affirmed, holding that contempt is a proper remedy for breach of a property settlement agreement that was incorporated into the divorce decree. It also held that the evidence did not preponderate against the trial court’s finding that the husband’s failure to comply with the divorce decree was willful. Access the opinion.

* Marnie Huff is a member and past Chair of the TBA Dispute Resolution Section. As a member of the Nashville Bar Association’s Board, she is liaison to the NBA ADR Committee and Fee Disputes Committee. She chairs the membership subcommittee of the ABA Section of Litigation’s ADR Committee. She is a past member of the ABA Section of Dispute Resolution’s Council and past co-chair of the ABA Advanced Mediation and Advocacy Skills Institute. Marnie is an independent mediator, arbitrator, and workplace conflict management consultant in Nashville.

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Have You Heard About the TBA Mashup?

Interested in observing a legal hackathon or getting a hands-on demonstration of the new Fastcase 7 platform? Both will be part of the first TBA Mashup, a full-day of activities and free programming set for Feb. 17 at the Tennessee Bar Center in conjunction with the annual TBA Law Tech UnConference CLE program.

In addition to the hackathon and Fastcase 7 demo, the TBA Mashup will feature sessions on: 

  • Current State of Health Insurance for the Small Firms
  • Professional Liability Insurance - What to look for in YOUR Policy
  • A Demo of Fastcase TopForm, a powerful bankruptcy filing software
  • Retirement Planning Guidance from the ABA Retirement Funds
  • Pro Bono in Action: How to help with pro bono events and how to take part in online options

At the annual TBA Law Tech UnConference CLE program, you can take as many or as few hours as you need. Registration will be open all day. Payment will be determined at checkout based on the hours you need. Topics will include: 

  • Bill & Phil Tech Show
  • Ethical Considerations for Cyber Security in Law
  • Evolution of the Legal Marketplace
  • Making e-Discovery Affordable 
  • Drone Law
  • Encryption for Lawyers

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TBA Activates Disaster Legal Assistance for Wildfires

In response to the wildfire disasters in Gatlinburg and Sevier County, the TBA is partnering with the Tennessee Alliance for Legal Services (TALS), Legal Aid of East Tennessee (LAET) and the Supreme Court's Access to Justice Commission to help those affected with their legal needs. Attorneys who want to help can access training resources and other materials on the TBA's Disaster Legal Assistance page. Legal clinics and outreach related to losses from the fires are anticipated and volunteers will be needed. For more information or to volunteer in the area, contact Kathryn Ellis at Legal Aid of East Tennessee. Those who are not in the area but still want to help can volunteer to answer online questions at TN Free Legal Answers or respond to calls on the HELP4TN helpline. The TBA's Young Lawyers Division Disaster Relief Committee has also been activated and will be assisting with volunteer recruitment and coordination efforts. To volunteer, complete the Disaster Legal Assistance Volunteer Form. If you know someone in need of legal assistance, please have them call the legal helpline at 844-HELP4TN, or visit

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A Step Ahead Foundation Honors Late Volunteer

Attorneys and community leaders gathered yesterday at the Nashville home of Colleen Conway Welch to celebrate A Step Ahead of Middle Tennessee, an affiliate of the original A Step Ahead Foundation in Memphis. Program founder Claudia Haltom, an attorney and former juvenile magistrate in Memphis, launched A Step Ahead in 2011. There are now four affiliates in other Tennessee cities. The event also honored the late Mary Ruth Shell, one of the founding board members of the foundation and an active pro bono volunteer with the Nashville Conflict Resolution Center and on behalf of children in the juvenile court system. The Administrative Office of the Courts reported the news.

From left: Nashville attorneys Brenda Dowdle, Anne Russell, Claudia Haltom, Deborah Taylor Tate, Jackie Dixon and Mary Walker

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CLE to Focus on Online Dispute Resolution

On Nov. 17, the TBA will present a three-hour CLE on online dispute resolution. The sessions will cover the new world of online dispute resolution, which allows users with civil disputes to forgo court proceedings and instead use web-based technologies to resolve conflicts. Get details and register for the in-person CLE. Those who cannot make to the Bar Center for the course can tune in for a live webcast. Register for the simulcast here.

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Mediation Webcast Series Coming in November

Starting next week, a series of webcasts produced by the TBA’s Dispute Resolution Section and Special Committee on Evolving Legal Markets will offer CLE and CME credit. On Nov. 2, the series will kick off with a focus on creating and managing productive relationships in mediation. On Nov. 17, the series will look at the impact of online dispute resolution tools on the practice of law. Then on Nov. 29, the series will wrap up with a session on mediation in juvenile court. Learn more or register for the courses at the links above.

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Federal Law Forum Sessions Now Live

Sessions from the TBA’s recent federal law forum are now available online. A session on expert disclosures features Memphis lawyer Frank Day of Ford Harrison and focuses on using the rule to gain an advantage in litigation, while a second session with arbitrator and mediator Mark Travis focuses on practice tips for those interested in alternative dispute resolution.

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Event Friday Celebrates Role of Mediation

The Nashville Conflict Resolution Center and Southern Word will hold an event Friday from 6 to 8 p.m. at Rocketown, 601 4th Ave. S. The spoken word event “Only You(th) Can Stop the Violence” will feature original poetry written and performed by Nashville youth. The center is dedicated to helping individuals and families resolve conflict through mediation and find long-term solutions to relieve overcrowded courts and reduce the burden on taxpayers. For more information, contact Sara Figal, 615-333-8400.

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2 Positions Open at AOC

The Tennessee Administrative Office of the Courts (AOC) recently announced two job openings. The first position is a programs manager, which will be responsible for staffing the Alternative Dispute Resolution Commission, managing several grants, assisting with policy development, and planning and implementing education programs. A law degree is required for this job. The second opening is for a communications director to handle media relations, public information activities and internal communication functions of the Judicial branch. A law degree is preferred but not required for this post. Learn more at the links above.

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Court Square 2016 Debuts in Columbia

This year’s Court Square CLE series will launch Sept. 7 at First Farmers Bank in Columbia. Nathan Ridley, Jeff Carson and Roger Maness will address legislative updates, estate planning for digital assets and family law in mediation. Learn more or register online.

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Warren Seely Named ABA Section Director

Tennessee lawyer Linda Warren Seely has been named the new director of the ABA Section of Dispute Resolution. She will take office Sept. 1. Seely served as director of pro bono projects for Memphis Area Legal Services (MALS) for nine years and later became director of MALS’ Campaign for Equal Justice. She recently left MALS to join a Step Ahead Foundation, working to help women learn about and access birth control. Seely is a past president of the Memphis Bar Association and the Tennessee Lawyers Association for Women. She currently serves in the TBA House of Delegates, and on the governing boards of the Association of Women Attorneys Foundation, Madison County CASA and Tennessee Bar Foundation. 

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Federal Law CLE to Focus on Pre-Trial Issues

This year’s annual Federal Practice CLE on July 28 will focus on pre-trial issues, including presentations on pleadings, pre-answer motions and related strategies. Additional sessions will explore amendments to the Federal Civil Rules, which took effect in December 2015, and their impact on practioners. Finally, the program will look at rules related to expert disclosures and alternative dispute resolution techniques.

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The Continuing Struggle Over Class Action Waivers in Arbitration

The issue of mandatory arbitration of employment and consumer disputes continues to be controversial. The principal bone of contention appears to be the requirement that the employee or consumer waive the right to participate in class or collective actions, so that his or her sole recourse is the pursuit of individual claims in arbitration. No matter how employee- or consumer-friendly the arbitration provision is, if it contains a class action waiver, neither the plaintiffs’ bar nor consumer advocacy groups will like it.

But such provisions have survived judicial scrutiny in cases governed by the Federal Arbitration Act. In AT&T Mobility v. Concepcion, the Supreme Court held the California rule that a class-action waiver is per se unconscionable could not be used to avoid an agreement to arbitrate because it discriminated against arbitration and was thus contrary to the public policy in favor of arbitration enacted in the FAA.  563 U.S. 333 (2011). Thus, the opponents of employment and consumer arbitration were pushed into other avenues, legislative and regulatory, to voice their displeasure.

They have not had much success in Congress. Numerous bills to preclude pre-dispute consumer and employment arbitration agreements have been introduced in Congress but have not advanced very far. The Dodd-Frank Act, passed in 2010, however, did command both the SEC, and the consumer protection agency it created, to study the issue of mandatory arbitration and enact appropriate regulations. The Act also prohibits pre-dispute arbitration provisions in mortgage agreements.  15 U.S.C.A. § 1639c(e). Possibly other regulations are forthcoming.

By Executive Order, President Obama has restricted the award of federal contracts to companies that have mandatory arbitration plans for employees. Exec. Order No. 13673, 79 FR 45309 (July 31, 2014).

Neither of these measures has so far made much of a dent in employment and consumer arbitration.

The National Labor Relations Board got into the act in 2012. In the case of D.R. Horton, Inc., 357 N.L.R.B. 184 (2012), the NLRB held that the adoption of a mandatory arbitration plan for employees containing  a class and collective action waiver was unlawful because such provisions are an unfair labor practice under Section 7 of the National Labor Relations Act, which protects the right of employees to act in concert.

D.R. Horton petitioned for review of this ruling by the United States Court of Appeals for the Fifth Circuit, which overturned the Board in 2013.  D.R. Horton, Incorporated v. National Labor Relations Board, 737 F.3d 344 (5th Cir. 2013).  The Court held the FAA and the Supreme Court’s decisions interpreting it prevailed because the NLRA was not intended to repeal the application of the FAA by implication.

The NLRB did not accept the Fifth Circuit’s decision. It struck down a similar dispute resolution plan in Murphy Oil USA, Inc. and Sheila M. Hobson. Case

10–CA–038804 (October 28, 2014). Murphy Oil asked the Fifth Circuit to review the ruling, and the Board petitioned for hearing en banc, hoping to change the Court’s mind. But the Fifth Circuit did not budge. It granted the petition for review, denied the en banc hearing, and overturned the Board’s decision. Murphy Oil USA, Incorporated v. National Labor Relations Board, No. 14-60800 2015 WL 6457613 (2015).

But the NLRB is not going away quietly, although it does appear to have given up on the Fifth Circuit. It has decided similar cases in Arizona and California, among other venues, consistently with its previous holdings in D.R. Horton and Murphy Oil.  See Amex Card Services Company, Case 28-CA-123865 (Nov. 10, 2015), and ISS Facility Services, Inc. and United Food and Commercial Workers Union, Local 99, Case 28-CA-126024 (April 7, 2016).  Doubtless the Board is hoping its reasoning will fare better with the Court of Appeals for the Ninth and other Circuits than it did with the Fifth.

The Ninth Circuit is one of three circuits that have cited the Fifth Circuit’s decision in D.R. Horton favorable in dicta. Richards v. Ernst & Young, 744 F.3d 1072, 1075 n. 3 (Ct. App. 9th Cir. 2013).  See also, Sutherland v. Ernst & Young, LLP, 726 F.3d 290, 297 n. 8 (2d Cir. 2013) and Owen Bristol Care, Inc., 702 F.3d 1050, 1055 (8th Cir. 2013.)   Still, there is the possibility of a split in the circuits, which will mean the issue will likely ultimately reach the Supreme Court.

In the meantime, and probably thereafter, the debate will continue.

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Letter from the Chair

The Dispute Resolution Section of the TBA is concluding a very successful year. We helped present a well-received series of CLE webcasts in November and December, and our ADR Forum at the Bar Center in April was the best-attended in years.

The past year also showed great strides in the acceptance of the practice of Collaborative Law. Based on the statistics compiled by the ADR Commission, the popularity of mediation continues to be strong. Based on the decisions of the Court of Appeals, arbitration -- while more controversial than mediation -- continues to be used widely as well. (My parting “gift” to our section members is a piece I have written on arbitration, class action waivers and the NLRB.)
I would like to thank the TBA staff, all of the members of the Section’s Executive Council, and all of the volunteers who gave their time so generously to speak at our webcast and forum. All of our successes were truly group efforts, and show that the value the TBA gives its members is composed in equal measure of its staff’s dedication and our members’ generosity with their time and talents. I am sure that next year under the leadership of Linda Warren Seely will be even better.
Bob Arrington
Section Chair, 2015-2016

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Register Today for the 135th Annual TBA Convention

Join us on June 15-18 in Nashville for the 135th Annual Convention! Registration for the 2016 TBA Convention includes:

  • free access to all TBA CLE programming;
  • the Opening Reception;
  • the Bench Bar Programming and Luncheon;
  • Law School and general breakfasts;
  • the Lawyers Luncheon;
  • the Thursday evening Joint (TBA/TLAW/TABL) Reception;
  • the Thursday night dinner and entertainment at the George Jones Museum;
  • and the Friday night Dance Party.

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Letter from the Chair: Forum Covers Many Types of ADR

Most lawyers who litigate don’t handle only one type of case, and most law firms certainly don’t. While some aspects of mediation and arbitration are universal, both lawyers and neutrals know there are differences that arise out of subject matter. So we have put together for the April 22 section-sponsored Alternative Dispute Resolution Forum, segments on employment mediation and arbitration, health care dispute resolution, construction mediation and domestic relations mediation. We’ve added to that mix presentations on the application of neuroscience to ADR and ADR ethics. This seminar may not quite have something for everyone, but it almost certainly have something for somebody in every law office in Tennessee. Don’t miss it!

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ADR Update

ADR and settlements in the news

Tom Brady Wins “Deflategate” Appeal in District Court. In National Football League Management Council v. National Football League Players Association, Nos. 15 Civ. 5916 (RMB)(JCF) and 15 Civ. 5982 (RMB)(JCF) (Sept. 3, 2015), appeal pending (2d Cir. Ct. App.), the court overturned Roger Goodell’s suspension of New England Patriots quarterback, Tom Brady, for participating in a conspiracy to deflate footballs during the AFC championship. Generally courts do not get involved in arbitration between parties who have agreed to arbitrate disputes. However, the court has authority to hear appeals under the Federal Arbitration Act (FAA) if certain grounds are met. 9 U.S.C. §10. In this case, the issue involved whether the arbitrator’s award drew its essence from the collective bargaining agreement (CBA) between the players and the NFL. Under CBA, Roger Goodell, as commissioner, had authority and discretion to serve as the hearing officer in the appeal. CBA Article 46 §2(a)). But the arbitrator must apply the CBA in a plausible way and act within the scope of his or her authority. The court found Tom Brady was prejudiced and overturned Goodell’s decision to suspend Brady. Goodell had relied on the integrity of the game and competitive rule policies that are not applied to players in the CBA. In addition, the court found that Brady was denied access to key witnesses and lacked notice of the discipline for the actions he was accused of. The court noted there were inconsistencies in the way Brady was punished: players in the past have never been suspended for equipment tampering, and the punishments used were based on the NFL steroid policy. The court held that the process was fundamentally unfair. Copy of District Court’s opinion available at The NFL's appeal to the Second Circuit Court of Appeals is pending, with oral argument set for March 3, 2016 after the 2016 Super Bowl. See "NFL 'Deflategate' appeal to be heard March 3, after Super Bowl," available at

IRS appeals arbitration program eliminated. Effective September 2015, the IRS eliminated its appeals arbitration program due to lack of demand. Under the program, taxpayers and the IRS Office of Appeals were permitted to jointly request binding arbitration on any issue unresolved at the conclusion of the appeals process. Over the fourteen-year period the program was available, only two cases were resolved using arbitration. Taxpayers may still request mediation of unresolved issues that remain after completing settlement discussions in the appeals process. Internal Revenue Bulletin at

Cooper to Serve as Monitor in Daynmar College Settlement. Former Tennessee Attorney General Robert E. Cooper Jr. will serve as compliance monitor in a $12.4 million settlement reached by the Kentucky Attorney General and Daynmar College in a consumer protection lawsuit. The settlement provides debt relief, cash payments, and injunctive terms over Daynmar’s future operations. An estimated 12,294 students are eligible. The Owensboro, Kentucky school will be monitored over the next two years. Full story at

Microsoft and Google end patent war. (Oct. 2, 2015). Microsoft and Google dismissed multiple patent lawsuits they have been fighting for years. The companies will dismiss up to 20 lawsuits. They agreed “to collaborate on certain patent matters and anticipate working together in other areas in the future.” The initial lawsuit began when Microsoft claimed Google was using their company’s technology without paying royalties. Full story here.

Caselaw Update

Selected Sixth Circuit Cases

Second ground for vacatur of arbitration award must be addressed by trial court. In Bernard J. Schafer; Henry Block v. Multiband Corp., No. 14-2518 (6th Cir. October 20, 2015) (not for publication), the Court addressed the effect of its earlier decision in Schafer v. Multiband Corp., 551 F. App'x 814, 820-21 (6th Cir. 2014) ("Schafer I") (holding arbitrator did not manifestly disregard the law in concluding that Bernard Schafer and Henry Block's indemnification agreements with Multiband Corporation were void). Schafer I reversed the district court's judgment vacating an arbitration award and remanded the case for further proceedings. On remand, Schafer and Block argued that the district court was required to rule on a second theory for vacating the arbitration award, involving stock fraud claims. They asserted that the arbitrator did not provide a full and fair hearing, did not given notice that he was deciding those stock fraud claims, and did not allow them to present evidence on those claims. The district court refused to hear this claim, reasoning that Schafer I precluded review of the second argument. Conceding that Schafer I included some unclear language, the Court of Appeals held that Schafer I did not decide Schafer and Block's second argument for vacatur, and the district court should address that argument in the first instance. It did not address Multiband’s res judicata argument which is to be addressed on remand.

In Skylar Gunn v. NPC International, Inc., William Harris v. NPC International, Inc., Candace Jowers v. NPC International, Inc., Tiffney Penley v. NPC International, Inc., Leah Redmond v. NPC International, Inc., Case Nos. 14-6036, 14-6040, 14-6041, 14-6042, and 14-6044 (6th Cir. August 28, 2015) (not for publication), the Court addressed whether the defendant employer failed to timely assert its right to arbitration, and therefore waived its contractual right to insist on arbitration of employees' claims for unpaid compensation. Affirming the district court, the Court of Appeals held the employer's litigation actions were completely inconsistent with reliance on the arbitration agreement and resulted in actual prejudice to the plaintiffs. The Court relied on Johnson Associates Corp. v. HL Operating Corp., 680 F.3d 713, 716 (6th Cir. 2012) and Hurley v. Deutsche Bank Trust Co., 610 F.3d 334, 338 (6th Cir. 2010), and distinguished Shy v. Navistar Int'l Corp., 781 F.3d 820, 827-28 (6th Cir. 2015). Here, before it moved to arbitrate, the employer delayed for almost 15 months, it engaged in settlement negotiations, it had filed several motions (some dispositive), and it had received unfavorable rulings on initial dispositive motions. The Court also rejected the defendant’s claim that, in these collective actions, the waiver issue should be considered individually as to each plaintiff (evaluating each opt-in plaintiff from the date of opt-in).

Tennessee ADR Cases


In a 32 page opinion, the Court of Appeals in Mid-South Maintenance Inc., et al. v. Paychex Inc., et al., No. W2014-02329-COA-R3-CV (Tenn. Ct. App. August 14, 2015) addresses a number of arbitration issues. The plaintiffs and Paychex, Inc. had expressly agreed to arbitrate any disputes arising from their contract. They also agreed that New York law governed. The plaintiffs later sued Paychex and one of the Paychex’s employees who had not signed the arbitration agreement (the non-signatory employee). The claims were for breach of fiduciary duty, negligence, and aiding and abetting conversion. The trial court denied the defendants’ motion to compel arbitration on the ground that the plaintiff's tort claims were outside the scope of the arbitration agreement, citing Tennessee law. The Court of Appeals reversed, holding that, pursuant to federal and New York law, and the arbitration agreement’s delegation clause, the arbitrator (not the trial court) is the proper tribunal to determine issues regarding the scope and unconscionability of the arbitration agreement. The Court also concluded that the plaintiffs' claims against the non-signatory employee were intertwined with the claims against Paychex, thus all disputes regarding arbitrability of claims against the non-signatory employee must also be resolved by the arbitrator. In the course of its decision-making, the Court addressed a number of issues, including: 1) choice of law, 2) whether the court (not the arbitrator) determines arbitrability where the plaintiffs claimed they never received a copy of the purported arbitration agreement, 3) whether the plaintiffs had waived the arbitrability issue by failing to list it as an issue in their appellate brief, 4) whether the parties’ agreement to have AAA rules apply meant that, per the AAA rules, the arbitrator would decide his or her own jurisdiction, 5) whether to address an unconscionability issue not addressed by the trial court, and 6) severability of the arbitration agreement from the underlying contract. Copy of opinion at

Akilah Louise Wofford, et al. v. M. J. Edwards & Sons Funeral Home Inc., et al., No. W2015-00092-COA-R3-CV (Tenn. Ct. App. November 23, 2015) concerns enforceability of an agreement to arbitrate a dispute between a consumer and funeral home. The consumer signed a two page funeral services contract which included a short, completely one-sided, mandatory arbitration clause and referred to a “Part 3” of the contract. Part 3 included additional arbitration provisions. The funeral home did not provide a copy of Part 3 to the consumer to read. Arbitration clauses are not common in funeral services contracts in Memphis. The contract was presented on a “take it or leave it” basis after the funeral home had already embalmed the body of the deceased and performed additional services to the plaintiff. The trial court refused to compel arbitration, finding no meeting of the minds as to the arbitration agreement. On appeal, the funeral home argued that the Court of Appeals should consider not only the signed agreement, but also the Part 3 document allegedly incorporated by reference into the parties' contract. The Court held there was no meeting of minds regarding the additional Part 3 document that had additional arbitration provisions, so it was not properly incorporated by reference into the parties' contract. Thus, the consumer was not bound by its provisions. Further, the arbitration provision actually contained in the parties' contract is an adhesion contract that is unenforceable because it is beyond the expectations of an ordinary person. Opinion at

Optional arbitration agreement signed by a patient’s health care agent enforceable as a “health care” decision. In Billy Bockelman, et. al. v. GGNSC Gallatin Brandywood LLC, et. al., No. M2014-02371-COA-R3-CV (Tenn. Ct. App. September 18, 2015), the decedent’s attending physician had determined she lacked lack mental capacity. She had previously given an agent the power to make “health care decisions,” and was subsequently placed in a nursing home. The agent completed all nursing home admission contracts on behalf of the decedent, including an optional arbitration agreement. After the patient’s death, the agent sued the nursing home. The trial court granted the nursing home’s motion to compel arbitration. On appeal, the agent claimed she lacked authority to sign the arbitration agreement because the patient was competent at the time of admission, the agreement was not a “health care decision,” and the arbitration agreement was unconscionable. The Court of Appeals upheld the trial court’s order compelling arbitration. First, clear and convincing evidence, based on the attending physician’s determination, showed the patient was incompetent, even though other medical records included some evidence of competence. Second, entering into an arbitration agreement as part of a nursing home admission is a “health care” decision because it is part of the admission process. Finally, the ADR Agreement is not unconscionable it was optional, it had mutuality, and its terms were not misrepresented by the nursing home Opinion at

Settlements; Releases

In Dana Jo Stricklin v. Jerone Trent Stricklin, No. W2015-00538-COA-R3-CV (Tenn. Ct. App. September 21, 2015) the Mother sought to modify the parties' permanent parenting schedule. During a trial recess that followed the Mother’s testimony, the parties settled. The Mother’s attorney announced the parties had agreed to a new parenting plan. The agreed-upon terms were announced in open court in the parties’ presence. The judge stated he was “glad the parties were able to work out their dispute ‘for the best interest of the child,’” but did not make any findings on best interests. The record on appeal does not include a transcript of the Mother’s testimony. After the trial court entered an order approving the modified plan, the Father stated he did not consent to the plan. The trial court denied the Father’s motion to set aside the order. The Court of Appeals, relying on Harbour v. Brown for Ulrich, 732 S.W.2d 598 (Tenn. 1987), held that parties’ consent was not required at the time of entry of the order because the parties had announced their agreement in open court where the terms of the agreement were determined. Nevertheless, the order was not legally sufficient. Citing Tuetken v. Tuetken, 320 S.W.3d 262 (Tenn. 2010) and Fletcher v. Fletcher, No. M2010-01777-COA-R3-CV, 2011 WL 4447903 (Tenn. Ct. App. Sept. 26, 2011), the Court held that the trial court's order did not contain a finding that the modified parenting plan was in the child's best interests. Therefore, the Court of Appeals vacated the order and remanded the case for further proceedings. Opinion at

Settlement of will must be in good faith. In In Re Estate of Vide Mae McCartt, No. E2014-02185-COA-R3-CV (Tenn. Ct. App. Sep. 25, 2015), five grandchildren contested the decedent’s will. After mediation, the grandchildren and living children entered into a settlement agreement which the trial court approved. One of the decedent’s non-marital grandchildren (the petitioner) was not part of the settlement agreement. She brought an action, arguing that she was entitled to a share of the estate under the agreement and that her siblings perpetrated a fraud by representing that the decedent had only three children and heirs at law when she actually had four children. The defendants argued that the petitioner was time barred and that res judicata applied. The trial court granted defendants’ motion to dismiss for failure to state a claim. The Court of Appeals found that any interested party may bring a will contest, and all other interested parties are free to join. Those involved in litigation may settle if done in good faith. In the present case, the complaint’s allegations raise a legitimate issue of whether the heirs were acting in good faith. The Court vacated the judgment and remanded for further proceedings. Opinion at


Editor's Note: Marnie Huff’s law clerk, Matthew Oberlin, assisted in preparing this ADR Update. Marnie is a member and past Chair of the TBA Dispute Resolution Section. As a member of the Nashville Bar Association’s Board, she is liaison to the NBA ADR Committee and Fee Disputes Committee. She is also active in the ABA Section of Dispute Resolution and Section of Litigation’s ADR Committee. She is past co-chair of the ABA Advanced Mediation and Advocacy Skills Institute. Marnie is an independent mediator, arbitrator, and workplace conflict management consultant in Nashville. Her website is at

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