I want to thank everyone who served on the Executive Council this past year.  Being the Chair has been a huge learning experience for me, and a pleasure to interact with each Section member.    My only regret is that I still cannot teleport and have to rely on ancient methods like telephone and email. 

I have agreed to serve as Chair for another year, with Bob Arrington as Vice Chair.  Ruth Hillis, Steve Shields and Pat Vital, indicated that they would serve on the EC this coming year.  If any member would like to know more about the duties of being an EC member, please contact me.  Two of my interests I hope to pursue next year are: 

1.  A relatively new DR process, Collaborative Family Law, which raises a host of interesting issues for us to address.  This year, the EC approved our participation on a Joint Subcommittee on Collaborative Law with the Family Law Section.  The Subcommittee purpose is to propose back to our Sections a model court rule covering collaborative practice.
2. Scribing or scrivening or what many of us have always called (inartfully) drafting, related to what mediators can or can't do in a mediation session, Including the issues of unauthorized practice of law, whether Rule 31 treats  attorney mediators and non-attorney mediators differently in this regard, and how it all impacts mediation (and what is needed) with pro se parties, use of forms and access to justice work generally.

I invite members to generate ideas for presentations, articles and book reviews for the newsletter, and information to put on our TBA website.  An upcoming opportunity to meet and talk in person will be at the TBA Annual Convention in world-famous Gatlinburg on June 13.  Yes, Friday the 13th!  We'll meet at the Park Vista Hotel at 11AM.  If you come at 8:30am that same day, you can catch a great ethics hour and a half (with the provocative title, "Texts from Last Night...and Ethics") before coming to our meeting.

I am so grateful for everyone who participated in our Annual Seminar held on April 24, Turning Disputes into Deals.  Our presenters were superb and fit together very cohesively to make a wonderful day-long event.  Besides me, we had John Blankenship, Steve Shields, Professor Becky Jacobs, Larry Bridgesmith, and Leigh Ann Roberts, all talking about negotiation strategy, structure, tactics, psychology, ethics, and leading students through a negotiation role-play and debrief.  The seminar had fairly low attendance (a little over a dozen, I think), but the attorneys who came were very impressed.  We drew from the civil side of ADR, and mostly practitioners with business clients, or who were themselves running a business.  Going into next year, I'd like to explore with the EC how to plan CLE presentations with a non-DR audience in mind.  As has been pointed out, the DR section itself is one of the smallest in the TBA, and there are many other places for members to get CLE throughout the year, locally and nationally and online.  It may prove beneficial for our "bottom line" (the outcome measurement being attendance) to market our training skills to other sections, especially those whose members are participating in mediation, need to prepare for ADR processes, need to develop skills or overviews about mediation and arbitration, need to understand the variety of processes they can choose from to best suit the "fuss".  In other words, rather than marketing our CLE to ourselves, market it to other sections who are looking for DR training on skills and issues their members need.   Just some ideas to discuss in the near future!  I am also going to brag on our TBA staff for making everything go so smoothly and appear so effortless.  Thank you again for a great seminar! 

Jackie Kittrell

by Steve Wilson*

Once upon a time, in a land called Plenty, lived Mr. Shoemaker. The citizens of Plenty loved Shoemaker’s shoes. Shoemaker's boss, Shoe-Boss, was delighted with Shoemaker’s work ethic and abilities. Shoemaker was the happiest of all. You see, he escaped his homeland after shoemaking was outlawed by the Great Barefooted Leader.  Despite slipping into Plenty, without participating in the immigration process, life was pretty good.  He had found work with Shoe-Boss and could take care of his family.

However, one day, Shoemaker suffered a nasty cobbling accident during the course and scope of his employment. He reported the injury but sought out and paid for his own emergency treatment.  Shoemaker's work injury steadily worsened.  He could no longer afford his medical bills.  In desperation, he begged Shoe-Boss for help. Shoe-Boss did not want his workers' compensation insurance premiums to rise as a result of a claim and ignored the request.

Fearful of permanent injury and too pained to work like he used to, Shoemaker asked for help from his friends and neighbors. He discovered he had a right to medical treatment and luckily Shoe-Boss already had insurance to pay for it.  However, when Shoe-Boss was notified of the claim, he flew into a rage and fired Shoemaker that same day.  He yelled his lungs hoarse that this is what happens when he encounters disloyalty. Hearing this, his other undocumented employees grew afraid. None of them would ever ask for medical care after a work injury again.

After hearing what had happened to Shoemaker, the citizenry of Plenty were not too bothered because those people should not even be in Plenty! Shoe-Boss was confident in his actions. All of his workers, even the undocumented ones, were covered by his workers' compensation insurance. However, if one of the undocumented made a claim, he had every right to fire them.  He could fire them for any reason, including making a claim, because they were not legally allowed to work for him anyway. Hmmm, he thought, he couldn’t fire a “legal” employee for making a claim without fear of a retaliatory discharge lawsuit. That could get VERY expensive. "I am a GENIUS," he exclaimed! "It's cheaper for me to hire illegals!" 

By a strange coincidence, the citizenry soon found jobs were in short supply. More employers heard how Shoe-Boss successfully kept down his insurance premiums and also created less “difficult” employees. Businesses that did not follow the lead of Shoe-Boss found it too expensive to compete and soon went out of business.  Scared of losing their jobs to less difficult employees with fewer rights, citizens grew hesitant about filing workers' compensation claims, too. 

A statutory chill swept across the land and employers like Shoe-Boss thrived.  The End.   

Tennessee Retaliatory Discharge and Worker’s Compensation Claims

Normally, in Tennessee, an employee can sue her employer for retaliatory discharge if he/she is fired for making a workers' compensation claim.  In the landmark cases of Clanton[i] and Chism,[ii] the Tennessee Supreme Court framed an action for retaliatory discharge because, "in limited circumstances, certain well-defined unambiguous principles of public policy confer upon employees implicit rights which must not be circumscribed or chilled by the potential of termination."[iii]  Further, the Court held "to allow an employee to be discharged for filing a workers' compensation claim would 'completely circumvent' the legislative scheme; thus, a retaliatory discharge cause of action was necessary to carry out the legislature's intent."[iv]

Yet, in Tennessee state courts, there is currently a legal vacuum on the issue of whether an undocumented worker has standing to pursue a claim for retaliatory discharge when he is fired for making a claim for workers' compensation.  Hard to believe, considering the plain statutory language in Tennessee relating to workers' compensation covers a huge variety of employment, including employment of undocumented workers.[v]  Further, there is no exclusion, specifically, or alluded to, by statute or case law, that undocumented workers who are legally entitled to workers' compensation are by some bizarre bent logic barred from bringing an action for retaliatory discharge when fired for making a claim for workers' compensation.    

Nonetheless, there are employers much like Shoe-Boss who insist that undocumented workers have no right to retaliatory discharge action under any circumstances.

Federal Take: Public Policy Justifies A Cause of Action But With Fewer Remedies

A cause of action with limited remedies is still a cause of action. Those who argue against a retaliatory discharge claim for undocumented workers focus on the fact that the worker is not legally allowed to work for the employer and so could not be reinstated.  Of course, a court could not order reinstatement for an undocumented worker.  However, this argument deals only with remedies, not the legitimacy of the cause of action.  Reinstatement is just one remedy for a proven case of retaliatory discharge.  There are other remedies that undocumented workers would still qualify for, such as nominal damages, non-economic compensatory damages, attorney fees and punitive damages.  Even a legally employed worker would unlikely qualify for ALL legal remedies usually available for any given cause of action.

Many federal courts have upheld the rights of undocumented workers to pursue retaliatory discharge cases, albeit barring access to certain remedies such as reinstatement and back-pay.[vi]  The notion of an in terrorem effect has proven a central concern for numerous federal courts across the country, dealing with a whole spectrum of statutory protections available to employees in the workplace.[vii]

This in terrorem effect is especially concerning in the context of workers compensation. Workers compensation insurance is paid solely by the employer. As with all insurance, many factors contribute to the cost. Within competing industries, many of these items are fixed. However, a competitive advantage can easily emerge if an employer, like Shoe-Boss, was permitted to limit or discourage actual workers' compensation claims.

Indeed, to deny a cause of action to undocumented workers in this context would set perverse incentives for unscrupulous employers to hire more undocumented workers.  Such an employer would face zero risk of litigation for terminating these workers for making a workers' compensation claim.  At the risk of losing their jobs, undocumented workers would likely choose to forgo pursuing any claims or complaints.  Citizens, and others legally authorized workers, may become less attractive prospects to many employers – especially in “high risk” job classifications prone to more on-the-job injuries.  Thus, law-abiding employers would suffer because of unfair competition. Our twisted fairytale of Plenty would be replicated right here in Tennessee, with only ruthless Big Bad Wolf employers left happy.   

The undocumented worker walks between the dimmed light of two opposing worlds: one regulated, and one unregulated.   As a result, undocumented workers are more likely to suffer humiliating treatment in the workplace because there is a fear of being terminated for any kind of complaint. This is not an argument in support of illegal immigration, but an argument against willful blindness to the realities undocumented workers must wrestle with when deciding how to defend themselves against an employer that has no respect for them as human beings or the laws of this country.  When we deny undocumented workers all the protections of the legal system, whether it's a workers' compensation claim, sexual harassment or blowing the whistle on the illegal practices of crooked employers, we are enabling society's Big Bad Wolf employers.  

Without adequate legal protections for undocumented workers in Tennessee, we shall all end up living not-so-happily ever after.    

_________________________

* Steve Wilson is a solo practicing attorney in Memphis, Tennessee, where he practices mainly immigration law and employment law.  Steve received his Bachelors of Economic & Social Studies from University of Wales, Swansea in 2005.  He emigrated from Wales to the U.S. in 2006. Steve graduated from University of Memphis School of Law in 2009. He may be reached at (901) 337-1300 or steve@stevewilsonfirm.com.

By Bruce Buchanan**

OCAHO assessed a penalty of over $228,000 to M&D Masonry, a Georgia construction contractor, which is a considerable improvement over the assessment by Immigration & Customs Enforcement (ICE) of over $332,000. 

Newspaper Article followed by NOI

The beginning of the case is quite interesting.  The Atlanta Journal Constitution published an article, “Illegal Hiring for Airport Construction,” wherein a M&D foreman was quoted as saying M&D was employing undocumented workers.  After ICE read the article, it served a Notice of Inspection (NOI) on M&D seeking the I-9 forms of current employees and employees terminated in the last three years.  The contractor provided 342 Form I-9s.

Notice of Intent to Fine – 339 Allegations

Thereafter, ICE issued a Notice of Intent to Fine alleging 339 violations – 87 for failure to prepare and/or present an I-9 form for those individuals and 252 violations for failure to ensure proper completion of Section 1 of the I-9 form and/or failure to properly complete Section 2 of the I-9 form.  OCAHO’s decision detailed the errors found on the 252 Form I-9s.  Specifically, they were:

§  Failure to sign Section 1 – 34

§  Failure to check status – 60

§  Checking more than one status – 3

§  Failure to provide A# – 10

§  Failure to sign Section 2 – 81

§  Failure to record an issuing authority – 21

§  Failure to provide a document number – 25

§  Failure to provide both List B and List C documents – 29

§  Recording unacceptable documents – 7

Based upon an 84% error rate on the I-9 forms, ICE assessed a baseline penalty of $935 for each violation.  It enhanced the penalty by 5% each for seriousness of the violations and large size of the company but mitigated by 5% for good faith.  Overall, it assessed the 339 allegations at $981.75 for a total of $332,813.25.

M&D Defenses

M&D asserted a number of defenses, a few of which will be discussed in this article.  One defense was that ICE failed to fully identify 52 employees in Count II, some of which were only identified by three capital letters.  ICE got the three capital letters from the Georgia Department of Labor, who responded to ICE’s inquiry on employees employed by M&D Masonry in 2009 and 2010 with Social Security numbers and an abbreviated three letter surname.

M&D argues that a previous 2013 OCAHO decision, United States v. Siwan & Sons, held a violation may not be found for failure to present an I-9 form for an individual whose whole name was not provided by ICE.  OCAHO disagreed with M&D on the meaning of Siwan and cited a 2014 decision, United States v. Synmetric Solutions, where violations were found on 64 individuals with no last name listed.  Moreover, OCAHO found M&D knew the identities of virtually all of the individuals involved.

M& D also asserted the failure to provide the listing authority in Lists A, B, or C should be a technical violations, not a substantive violation.  In so arguing, it sought to reverse OCAHO’s decision in United States v. Ketchikan Drywall Services.  OCAHO declined to reverse Ketchikan and found violations in the instances where M&D failed to list the issuing authority.

Interestingly, OCAHO found ICE was “unduly generous” in treating good faith as a mitigating circumstance.  OCAHO cited M&D’s certifying signature, through a rubber stamp, that was done in advance of hiring employees.  Thus, OCAHO found this conduct to constitute a “false attestation.”

Penalties Assessed

Concerning the penalties, M&D argued ICE was required to consider M&D’s ability to pay.  OCAHO found it was not required to consider the company’s ability to pay, but did so in many cases as a matter of discretion.

OCAHO concluded “the principle of proportionality” should apply and lowered the penalties to $650 each for Count I violations and $750 each for Count II violations – failure to prepare I-9 forms.  Overall, M&D was assessed $228,300 in penalties.

This is the second recent OCAHO decision arising out of Georgia and each employer was assessed significant penalties.  Furthermore, this case sheds light on the manner in which some investigations are commenced – from a newspaper article – and the cooperation that the Georgia Department of Labor provided in the investigation.

_________________________

*This article was adapted from my article written for LawLogix, which can be found at http://www.lawlogix.com/blog/georgia-construction-company-hit-228000-i9-penalty.

**Bruce E. Buchanan is an attorney at the Nashville and Atlanta Offices of Siskind Susser, P.C.  He is a graduate of Vanderbilt University School of Law. Bruce is the Chair of the Immigration Law Section.  He writes a blog on employer immigration compliance, located at http://blogs.ilw.com/blog.php?29223-I-9-E-Verify-Immigration-Compliance, and is a contributor to LawLogix’s I-9 and E-Verify Blog, located at http://www.lawlogix.com/blog. Bruce may be reached at bbuchanan@visalaw.com or (615) 345-0266.

By Sean Lewis*

On April 4, 2014, the Tennessee Supreme Court held that a guilty plea following expunction is not a “conviction subject to collateral review” under the Tennessee Post-Conviction Procedure Act. For those who do not habla legalese, the high court essentially said that you cannot undo a guilty plea that involves a sentence that was never formally “entered” by the court clerk. Enter the feds who say “we’re going to deport you because of this ‘conviction’ that does not exist!”

Still confused? Read on!

In Jose Rodriguez v. State of Tennessee, No. M2011-01485-SC-R11-PC (Tenn. April 4, 2014), the appellant, a long-term Mexican immigrant married to a U.S. citizen, was not advised by his criminal lawyer that expungement following judicial diversion would cause dire immigration consequences. After completing probation, Mr. Rodriguez expunged his record and was placed into deportation proceedings. The U.S. Supreme Court has said that under the Sixth Amendment, criminal defense attorneys must advise foreign nationals of deportation consequences before advising their clients to plead guilty. [i]  Tennessee judges must also warn litigants of the same possibility before accepting pleas of guilty under Rule 11.[ii]

The Rodriguez decision neither resolves nor reveals the nature of the legal “black hole” faced by non-citizens (or their defense attorneys) when they go to criminal court and face pleas of guilty. Given the complexity of the legal issue, the Court side-stepped any discussion of the due process issues in citing the legislature’s “clear and unambiguous” statutory language defining what is a “conviction” under Tennessee Law.[iii]  Under federal law an expunged Tennessee conviction [iv]  following judicial diversion is a federal conviction, even though it is not under state law.[v]

The Metaphysical Aspect of “convictions” and “Convictions” Implicates Federalism

To understand the ambiguity that underlies the current state of the law, one might begin to feel they are back in college studying existentialism or metaphysics. Remember Immanuel Kant’s ontology and epistemology?

Under federal immigration law a “Conviction” (large letter “C”) exists, regardless of expungement where a non-citizen admits guilt and pays some sort of a price for it, regardless of whether a criminal court judge defers adjudication and later throws out the charges.

Under state law, a “conviction” (small letter “c”) is not a conviction where the imposition of the sentence is deferred and not formally entered following the performance of certain conditions. The Tennessee Supreme Court found that no “judgment of conviction” occurs in this instance even though under federal law a deferred adjudication is a “conviction”.[vi]  In other words, a qualified judicial diversion defendant will plead guilty to a crime and the judge will sign the order finding guilt but later “rip up” the conviction upon the completion of a period of probation. This is Tennessee (post-plea) judicial diversion.[vii] The defendant may then literally set fire to the records in the form of applying for “expungement” and then tell all future employers that he has never been “convicted” of any crime. Again, small letter “c” as in not a “Conviction” (capital “C”).

If the defendant is a non-citizen, for example a legal permanent resident with U.S. Citizen children, a spouse and decades of residency, she/he will be told by the immigration judge that she/he was nonetheless Convicted (Capital “C”). In other words, “Convicted” (large “C”) for immigration purposes but not for state law purposes. The punishment that follows a Conviction in this sense is unusually severe: deportation possibly leading to persecution or death in some cases or at least the separation of families. Many times, defendants will have only a primary school education and initially be ecstatic at the prospect that they have “cleaned” their record. For many people, the punishment of deportation far exceeds any time spent in jail. Sadly, far too many defense attorneys are unaware of or seem to shrug off these harsh consequences.  All it takes is 5 minutes in General Sessions court to ruin his/her life.

In terms of continued litigation, it appears that the Rodriguez decision in the post-Windsor[viii]  scheme of things raises serious questions implicating federalism. As brought to the attention of this writer by attorney and TBA member Mark A. Fulks, a legal challenge may lie where the federal definition of a “conviction” interferes with a state’s exclusive right to define criminal law under the police power. In the context of the Rodriguez case, the State of Tennessee has chosen to forgive and forget a class of persons who have been rehabilitated via judicial diversion and expunction. The federal government, on the other hand, ignores the restoration of individuals to their previously occupied legal status (prior to arrest and conviction) and will seek to punish them via removal proceedings (deportation). The burdens upon on the family of a deported parent or spouse are arguably greater than the burdens imposed on the beneficiaries of the Windsor decision.

Conclusion

The Rodriguez decision certainly falls short of a legal “Copernican Revolution” and leaves it to the other states to sort out a very slippery issue facing the defense bar and immigrants. Certainly the decision was a disappointment to the immigration and defense bars and more litigation is certain to follow.

_________________________

*Sean Lewis practices immigration law with his own firm. He received his J.D. from Golden Gate University School of Law. Sean may be reached at (615) 226-4236 or sean@musiccityvisa.com.

For this June issue of the Immigration Law Section Newsletter, I would initially like to thank the authors of the articles, Sean Lewis, Steve Wilson, and Bruce Buchanan, for this newsletter as well as our editor, Bruce Buchanan.  As an outgoing note, I have been the Chair of the Immigration Law Section for the Tennessee Bar Association for a total of three years.  I have served from 2009-2011, and from 2013-2014.  For these years, I have coordinated several projects, conferences, and seminars for the section.  This year, I have arranged and presented seminars with ICE across the state; coordinated a conference in April that brought together agents from USCIS, ICE ERO, and ICE Chief Counsel’s office; initiated work with state agencies regarding creating an SIJS guidebook for the state; and coordinated several CLE programs. My goal as Chair has been to educate and inform lawyers in this section and across the state in current immigration laws and policies, and foster a working relationship with the government agencies with which we work.  I will remain on the Executive Council and will continue assisting in the many projects of the Immigration Law Section of the TBA.

Terry Olsen

Dear Family Law Section Members:

As the 2013-2014 bar year comes to a close, I would like to provide you with an update on the work that the TBA Family Law Section Executive Council has been involved with this year. 

In November the section held its annual CLE on the topic of how to handle access to mental health records in high conflict custody cases.  The CLE was held in Memphis, Nashville, and Chattanooga, which provided local speakers allowing for a more specific discussion of how issues are handled in each city.

In March the 12^th Edition of the Alimony Bench Book was released to members.  The 12th Edition Alimony Bench Book includes Published and Unpublished cases from August 8, 2003 through December 31, 2013.  One benefit of being a TBA Family Law Section member is that you can download the Alimony Bench Book for free.  To download your FREE copy of this publication, please follow these steps:

              1.  Go to Tennessee Bar Association

2.  Log-in to your TBA account.  If you do not have a TBA account, please create one in order to access the information.

              3.  Go to the "TBA Groups" tab and then Click "Sections".

              4.  Click the "Family Law Section".

              5.  Then Click "Resources" on the right hand side of the page. 

6.  You should find the "12th Edition of the Alimony Bench Book" on this page.  If you do not see the link, then you are either not logged in or not a member of the section.

You can download the Alimony Bench Book in either PDF or Microsoft Word format.

A loose-leaf printed version of this publication may also be purchased for $40 per book ($50 in a 3-ring binder) from the online TBA Bookstore by clicking <link="https://www.tba.org/products/alimony-bench-book-12th-edition">here</link> or by contacting the Tennessee Bar Association at (800) 899-6993 or (615) 383-7421.

I would like to thank the TBA Family Law Alimony Subcommittee for their hard work and commitment to this publication. The Subcommittee’s hope is that this book will assist judges in their attempts to award consistent alimony in cases across Tennessee.

Throughout the legislative term the TBA has called upon us several times to review potential legislation and comment on behalf of the section.  The following is a summary of a couple legislative issues the Executive Council was involved with this year:

·      SB1488/HB1851:  Signed by the Governor on April 4, 2014 - Child Custody and Support – As enacted, revises the factors that are considered when making a custody determination and makes the factors applicable to determinations regarding relocation and establishment of residential schedules; revises other provisions regarding custody and parental rights.  Amends TCA Title 36.

·      SB1885/HB1766:  Signed by the Governor on April 15, 2014 – Guardians and Conservators – As enacted, establishes requirements for in loco parentis decision-making for a minor child and revises notary requirement for power of attorney for care of a minor child.  Amends TCA Title 34, Chapter 6.

·      SB2418/HB2314:  Signed by the Governor on April 25, 2014 – Uniform Laws – As enacted, enacts the “Uniform Deployed Parents Custody and Visitation Act”.  Amends TCA Title 36.

The TBA Family Law Section in conjunction with the TBA Dispute Resolution Section formed a Collaborative Law Subcommittee to determine whether a rule or formal legislation is the best method to protect the rights of clients and to guide those holding themselves out as collaborative practitioners as to best practices and procedures.   The subcommittee is working on proposed language and processes for consideration.   The section will be kept posted as more information becomes available, and please let the Family Law or the ADR section know if you have an interest in this subject matter.

The TBA Family Law Section met at the TBA Annual Convention in Gatlinburg on Friday, June 13, 2014 at 9:00 a.m. ET/8:00 a.m. CT at the Park Vista Hotel.  Helen Rogers officially took over as Chair of the TBA Family Law Section at Convention.  I want to thank Helen for volunteering to Chair the Section and wish her good luck in the upcoming bar year.  The TBA Family Law Section is in good hands with Helen. 

Finally, I would like to thank the entire TBA Family Law Executive Council for their continued efforts.  TBA Family Law Executive Council members are volunteers who continue to not only work hard in their individual practices to improve the area of Family Law but take time out of their extremely busy schedules to work hard on behalf of the TBA and its members.  Thank you for your continued service and efforts on behalf of our members.  I would also like to thank Christy Gibson from the TBA for all her valuable assistance to myself and the section throughout the year.

Sincerely,

Cathy Allshouse

2013-2014 TBA Family Law Chair   

As one of my last "official" actions as Chair of the TBA Business Law Section Executive Council for the 2013–2014 bar year, I want to give you an overview of some of the activities of the Section during the past year, and give you a bit of a preview of some things coming up for next year.

LEGISLATIVE MATTERS

The Executive Council was involved with several legislative matters before the Tennessee General Assembly.

a.              We reviewed and advised the TBA Board of Governors about a pending bill that would authorize the establishment of so-called low profit limited liability companies in Tennessee, Senate Bill 506.  The bill did not move forward in the General Assembly this session, but it may come up again soon.  More about this subject later.

b.              We drafted a bill to amend T.C.A. Section 61-1-306(c) (in the Revised Uniform Partnership Act) regarding the liability of partners in a registered limited liability partnership to expand the limitation of liability to be consistent with the Revised Uniform Partnership Act and the law in the majority of the states.  The bill was pursued by the TBA, adopted by the General Assembly, and signed by the Governor. Public Chapter, 1613.

c.              Under the leadership of Richard Johnson of Nashville, a joint committee of the Business Law Section and the Tax Law Section proposed and submitted through the TBA a complete revision of the Nonprofit Corporation Act.  The bill was adopted by the General Assembly and signed by the Governor.  Public Chapter, 899.

SEMINAR

We presented an informative and hopefully useful seminar on May 5, 2014, dealing with insurance provisions in contracts and transactions that we are frequently involved in as business lawyers.  The title was "Issues in Drafting Contract Insurance Provisions."  The seminar will be available online at the TennBarU.  Many thanks to our colleagues Amanda Stanley, Ford Little, Glenn Rose and Kris Kemp who participated in the seminar, and to Van East, Lillian Blackshear and Kris Kemp who helped secure the other speakers.

REQUESTS FOR VOLUNTEERS

We are undertaking two projects going forward for which we need volunteers.

First, we will consider whether to propose social enterprise entity legislation in Tennessee.  This is a continuation of the work that we started in our brief review of the low profit LLC legislation discussed above.  In the neighboring state of Georgia, the Business Law Section of the State Bar of Georgia has recently undertaken such an effort and has rendered a report with recommendations with respect to benefit corporation legislation in Georgia.  This is a topic of considerable discussion among business entity practitioners around the country.  We need volunteers to serve on a committee to look at various sources of information and determine whether to recommend that Tennessee enact such legislation.  Please let incoming Business Law Section Executive Council Chair Van East or me know if you are interested in serving on this committee.

In addition, we believe that it is time to review Tennessee limited partnership law.  Tennessee is one of the few states that has not adopted the Uniform Limited Partnership Act.  There is considerable feeling among the Executive Council that it would be well for Tennessee to consider adopting freestanding limited partnership legislation similar to the Revised Uniform Limited Partnership Act.  We need volunteers for this project, as well.  Again, let Van East or me know if you are interested.

Van P. East, III

Frost Brown Todd LLC

150 3rd Avenue South, Suite 1900

Nashville, TN  37201

Phone:  615-251-5571

Fax:  615-251-5551

veast@fbtlaw.com

 

Dennis R. McClane

Woolf, McClane, Bright, Allen & Carpenter, PLLC

900 South Gay Street, Suite 900

Knoxville, TN  37902

Phone:  865-215-1000

Fax:  865-215-1015

dmcclane@wmbac.com

 

NEW EXECUTIVE COUNCIL

Finally, as indicated above, Van East is the incoming Chair of the Executive Council.  Your Business Law Section is in good hands with Van.  We have expanded the Executive Council a bit.  Members for the 2014-2015 bar year include:

John A.A. Bellamy

Rockward Pharmaceutical Consultants, LLC (Bristol)

John.Bellamy@rockwood.com

 

Lillian M. Blackshear

Bass, Berry & Sims PLC (Nashville)

lblackshear@bassberry.com

 

Sam B. Chafetz

Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. (Memphis)

schafetz@bakerdonelson.com

 

Van P. East, III

              Frost Brown Todd LLC (Nashville)

              veast@fbtlaw.com

 

Lee A. Harkavy

Wyatt Tarrant & Combs LLP (Memphis)

lharkavy@wyattfirm.com

 

Joan MacLeod Heminway

University of Tennessee College of Law (Knoxville)

jheminway@tennessee.edu

 

Kris Kemp

Harwell Howard Hyne Gabbert & Manner, P.C. (Nashville)

kris.kemp@h3gm.com

 

Matthew Lyon

Lincoln Memorial University Duncan School of Law (Knoxville)

matthew.lyon@LMUnet.edu

 

Dennis R. McClane

Woolf, McClane, Bright, Allen & Carpenter, PLLC (Knoxville)

dmcclane@wmbac.com

 

Robert C. Starnes

Glankler Brown, PLLC (Memphis)

rstarnes@glankler.com

 

R. Christopher Trump

Egerton, McAfee, Armistead & Davis, P.C. (Knoxville)

CTrump@emlaw.com

 

You may certainly contact any of us about Business Law Section matters.

Thank you for the opportunity to serve as Chair of the Executive Council for 2013-2014.

Dennis McClane

FRANK W. WILSON ET AL. v. TMBC, LLC
Court: TN Court of Appeals

Attorneys:

Ronald J. Zuker, Knoxville, Tennessee, for the appellants, Frank W. Wilson and Sonya L. Wilson.

Rockforde D. King and Melissa B. Carrasco, Knoxville, Tennessee, for the appellee, TMBC, LLC.

Judge: SUSANO

The plaintiff took his bass fishing boat to defendant’s business for it to repair a “rodbox lid” that did not fit properly. While the boat was there, defendant replaced the lid. Subsequently, plaintiff went to the defendant’s store and got in the boat, which was on a trailer in the parking lot, in order to examine the new lid. While attempting to exit the boat, plaintiff caught his foot on something, tripped, and fell out of the boat. Plaintiff’s theory was that an employee of the defendant had negligently left the old rodbox lid inside the boat and that plaintiff tripped over the old lid. At the close of plaintiff’s proof, defendant moved for a directed verdict, arguing that (1) plaintiff failed to prove breach of duty because, according to defendant, he offered no evidence of the object that caused his fall; and (2) defendant could not, as a matter of law, be liable because plaintiff was at least 50% at fault for his injuries. The trial court directed a verdict for defendant. We hold that plaintiff presented sufficient proof that the old lid caused him to trip and fall, and that a reasonable trier of fact could conclude that the employee had negligently caused plaintiff’s injury. We further hold that the question of comparative fault is properly for the jury to decide under the proof presented at this trial. We therefore vacate the directed verdict and remand for further proceedings.

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By Chloé Morrison
Friday, April 4th 2014
Nooga.com

Jean-Marie Lawrence, who won second place at the recent 48-Hour Launch business pitch competition, didn't initially think of herself as an entrepreneur.

She has two degrees from UTC—a bachelor's in political science and a master's in public administration. But now she's moving strongly ahead with the idea for a nonprofit called Access-U that won at last weekend's competition.

Lawrence also has a form of muscular dystrophy, and when a friend encouraged her to follow her idea for a new business, she thought about what she could offer to people that would be unique.

"And one of the things that I've always been passionate about since college has been disability rights and empowering adults with disabilities to take charge of their lives and do what they want with it," she said. "I thought it would be great if I could develop a business around that."

Now she's working to launch Access-U, which is a nonprofit that will offer a database of colleges that students with disabilities can search to help make the best decision about what school is right for them.

During her work in graduate school, she did a project that focused on transition services in post-secondary institutions for students with disabilities.

And she had her own experiences in searching for colleges.

Although the Americans with Disabilities Act provides regulations for colleges about providing access and services for students with disabilities, Lawrence said there is wide range of what is actually available as far as services, facilities and infrastructure at each school.

So with Access-U, Lawrence aims to provide a database that will allow students to search every college and find out what resources are available.

A self-proclaimed "concept person," she had to narrow down the idea a bit after she graduated from the local Co-Starters class that provides tools for budding entrepreneurs.

"I knew that I had to help students get to college first," she said. "There's so much in terms of access to consider. Whenever I looked for graduate programs, something that was always a concern for me was the type of access I would be able to get at the university."

When she says "access" she means everything from getting in and out of buildings to health home policies, which differ from state to state, in addition to what sorts of support and social services are available, she said.

"I didn't realize what all would go into building a database when I came up with the concept," she said. "It's a lot harder than I thought it would be. There are upwards of 7,000 schools in the U.S."

She's starting with the state of Tennessee first and is going to make that her testing ground.

In the coming months, she and her team are going to be developing a survey to send to two and four-year colleges in Tennessee to get information about disability services at each institution.  

"I'm hoping that Access-U will be able to partner with a handful of community colleges and universities in Tennessee to develop questions and test them," she said.

Her 48-Hour Launch prize is $500, which she said will go a long way for a nonprofit, and an array of other business services. She's already scheduled appointments to take advantage of those services, she said.

And she's planning on crowdfunding and applying for grants to get Access-U underway.

"It's important to know that the database isn't functioning yet," she said. "But I would like to see the database functioning at least in the state of Tennessee within the next year."

http://www.nooga.com/166128/new-nonprofit-to-connect-people-with-disabilities-to-colleges

Disability Law Section Members:
 
I wanted to thank all of you who attended our annual CLE last Friday, April 11th.  It was great to see new and more experienced disability law attorneys, Social Security ODAR decision writers, administrative law judges and other disability advocates who all gathered together to share information.  I am especially grateful to all of our presenters, our Executive Council, TBA Section Coordinator Christy Gibson, and to Kaisha Bond, TBA’s CLE Coordinator for making the event a success.
 
Administrative Law Judge William Taylor started the day off providing valuable insights, answering questions from the audience and sharing his personal experiences as a Social Security practitioner, trial attorney and adjudicator.  Eric Buchanan shared his Social Security appeal and litigation strategies, reminding us of how important it is to build a strong case at the administrative level based on an understanding of the appropriate administrative rules and federal case law.  He gave us great written materials he prepared.  His materials also included summaries of significant Sixth Circuit Cases on Social Security issues from 2012-2014, written by Cincinnati, Ohio attorney James Roy Williams. Mr. Williams has graciously allowed us to distribute the list to all of the disability law section members.  Click here for the Sixth Circuit Social Security case summaries.  
 
After lunch, Ethel Zelenske, NOSSCR Director of Government Affairs since December 1995, apprised us of recent developments in the Social Security disability program, including decreasing allowance rates, new proposed rules for the submission of adverse evidence and continuing congressional focus on fraud and error prevention.  She gave a great perspective on recent trends and recurring issues within the media, Congress and the Social Security Administration.  Harold Parker closed the program by engaging the audience in an interactive ethical discussion of ways to resolve practical questions faced by Social Security attorneys and advocates regarding the submission of adverse evidence, work activity, amending onset dates, and duties as a representative.  After challenging all of us with the ethical questions, Harold presented valuable practical information about Veterans Benefits and Pensions and ways elder law attorneys can help clients establish they meet the eligibility criteria.  
 
Please don’t forget to print a copy of the Sixth Circuit case summaries.  I hope see you at next year’s CLE program.
 
Thank you,
Janet Mynatt, Tennesseee Bar Association Disability Law Section Chair