Former American Bar Association (ABA) President William H. “Bill” Neukom, who led the organization from 2007 to 2008, has died. During his tenure, Neukom established the Commission on Sexual Orientation and Gender Identity, chaired the Fund for Justice and Education, and led an ABA task force focused on advancing the rule of law globally, according to a release. Neukom also was a co-founder and CEO of the World Justice Project, an organization dedicated to promoting the rule of law, and a retired partner in the Seattle office of the international law firm K&L Gates. He taught a seminar on the rule of law at Stanford Law School, where he earned his law degree.

The American Bar Association (ABA) is launching a yearlong campaign and a two-year traveling exhibit to mark the 250th anniversary of the signing of the Declaration of Independence. The campaign will include a variety of programming and events. The initiative also will feature a traveling exhibit called “250 Years of Independence: Fortifying America’s Commitment to Democracy for All,” to explore the evolving meaning of independence and the role of the rule of law. For information about the initiative contact Betsy Adeboyejo at Betsy.Adeboyejo@americanbar.org. To explore hosting an event contact Anna Snyder, director of the Standing Committee on the Law Library of Congress, at anna.snyder@americanbar.org. Read more in a press release from the association.

From Retail to Wholesale: A Tax Structure Reimagined

The most significant change is the repeal of the 6% retail sales tax on Hemp-Derived Cannabinoid Products (HDCPs), which has been in place since 2023. In its place, Tennessee will implement a wholesale tax structure that varies by product type and potency.

Under the new law, wholesale taxes will be assessed as follows:

• $0.02 per milligram of hemp-derived cannabinoid in each product.
• $50 per ounce for HDCPs sold as hemp plant parts or flower.
• $4.40 per gallon for liquid HDCPs, or a proportional rate for smaller containers.

This shift moves the tax burden upstream in the supply chain, placing new compliance obligations on manufacturers, distributors and wholesalers rather than retailers. Businesses will need to adjust pricing models and tax reporting systems accordingly.

HB1376/SB1413: A Broader Regulatory Framework

Public Chapter 526 is more than a tax bill — it represents a comprehensive regulatory overhaul of the HDCP market. The legislation defines and categorizes a wide range of cannabinoids, including Delta-8, Delta-10, HHC, THCp and THCv, while excluding non-intoxicating compounds like CBD, CBG and CBC.

The law also:

• Establishes a licensing and registration framework for all HDCP manufacturers, distributors and retailers.
• Requires batch-level tracking and age verification protocols for all sales.
• Transfers regulatory oversight from the Department of Agriculture to the Tennessee Alcoholic Beverage Commission (ABC) beginning in 2026.

This transition signals the state’s intent to treat HDCPs more like controlled substances than agricultural commodities, aligning Tennessee with national trends in cannabinoid regulation.

Licensing and Compliance: What’s Changing and When

Until the end of 2025, the Tennessee Department of Agriculture (TDA) will continue to license HDCP retailers and suppliers under existing rules. However, beginning in 2026, the ABC will assume regulatory authority, including enforcement of the new wholesale tax and product registration requirements.

Businesses currently licensed by TDA should prepare for:

• New application procedures under ABC oversight.
• Revised compliance standards for labeling, testing and packaging.
• Potential enforcement actions for non-compliance with the new framework.

Business Tax and Entity Implications

While hemp growers remain exempt from business and sales tax on raw agricultural products, the new law clarifies that corporate entities involved in HDCP production or sales are subject to Tennessee’s franchise and excise taxes. This distinction is critical for structuring new ventures or advising clients on entity formation.

Strategic Considerations for Legal Counsel

For attorneys advising clients in the hemp and wellness sectors, Public Chapter 526 presents both opportunities and risks. Key considerations include:

• Supply chain restructuring: Clients may need to renegotiate contracts or shift distribution models to accommodate the wholesale tax.
• Tax planning: The new rates could significantly impact margins, especially for high-potency products.
• Regulatory compliance: Brand registration, batch tracking and age verification will require robust internal systems and legal oversight.
• Entity selection: Advising clients on the tax implications of different business structures is more important than ever.

A Maturing Market Demands Sophisticated Counsel

Tennessee’s hemp industry has grown rapidly since the federal legalization of hemp in 2018. With that growth has come increased regulatory attention. Public Chapter 526 reflects the state’s effort to balance economic opportunity with consumer protection and tax fairness.

For business lawyers, the message is clear: the legal landscape for HDCPs is no longer the Wild West. It’s a regulated, taxed and increasingly sophisticated sector that demands equally sophisticated legal guidance.

Sources

Tennessee Department of Revenue – Important Notice: Taxability of Hemp-Derived Cannabinoid Products: https://www.tn.gov/revenue/news/2025/6/5/important-notice--taxability-of-hemp-derived-cannabinoid-products.html

Tennessee Department of Revenue – SUT-112: Hemp – Tennessee Tax Implications: https://revenue.support.tn.gov/hc/en-us/articles/360058231712-SUT-112-Hemp-Tennessee-Tax-Implications

HB1376/SB1413 – Full Text of Public Chapter 526: https://www.capitol.tn.gov/Bills/114/Bill/HB1376.pdf

Tennessee Department of Agriculture – Hemp Licensing Update: https://www.tn.gov/agriculture/businesses/hemp.html

Tommy Fridy is a corporate associate in the Memphis office of Wyatt Tarrant & Combs LLP. He assists with counseling clients regarding mergers, acquisitions, dispositions and provides operational, regulatory and general transactional support. His practice also includes the development, leasing, acquisition and disposition of commercial real estate and lending.

Nashville lawyer Hugh C. Gracey Jr. died July 8 at the age of 79. Originally from Pennsylvania, he graduated from Auburn University in 1967 and earned his law degree from Cumberland School of Law at Samford University in Birmingham in 1971. He returned to Nashville following law school graduation and practiced with his father for 12 years at Gracey, Madden Cowan & Bird before starting his own law firm of Gracey, Howard, and Sowell in 1987. That firm later became Gracey, Ruth, Howard, Tate and Sowell. Gracey was a member of the American Bar Association, Tennessee Bar Association, Nashville Bar Association, Tennessee Defense Lawyers Association, Federation of Insurance and Corporate Counsel and the Defense Research Institute. He retired from the practice of law in 1999. A celebration of life will be held in the near future. Memorial donations may be made to “The BGA Fund” at Battle Ground Academy in Franklin.

Memphis lawyer Harry Eugene Sayle III died July 11 at the age of 82. A graduate of Memphis State University, he went on to earn his law degree in 1985. He spent much of his career as a civil servant and was working in the Shelby County Public Defender’s Office up until his passing. Visitation will be held on July 25, at noon CDT with a memorial service to follow at 1 p.m. at Memorial Park Funeral Home, 5668 Poplar Ave., Memphis 38119. Memorial donations may be made to the ACLU or Real Good Dog Rescue.

Business lawyers understand that corporate directors and officers owe fiduciary duties to the firm. These duties include responsibilities to provide oversight, which are colloquially known under Delaware law (and beyond) as Caremark duties, based on a flagship Delaware Supreme Court opinion, In re Caremark Int'l Inc. Derivative Litig., 698 A.2d 959 (Del. Ch. 1996). Although historically understood by many (yours truly included) as either a separate fiduciary duty of good faith or a component of the fiduciary duty of care, oversight obligations under Delaware law currently are classified as a component of the fiduciary duty of loyalty. According to the Delaware Supreme Court, “because a showing of bad faith conduct ... is essential to establish director oversight liability, the fiduciary duty violated by that conduct is the duty of loyalty.” Stone ex rel. AmSouth Bancorporation v. Ritter, 911 A.2d 362, 370 (Del. 2006).  

Successful Caremark claims are difficult to plead and prove, given the relatively high burden of showing bad faith conduct. Historically, almost all claims alleging a breach of Caremark duties in Delaware courts have been dismissed before trial for failure to state a claim. Recently, a case involving Meta Platforms, Inc. directors and officers, including Mark Zuckerberg, came close to making it to trial but settled at the eleventh hour. Nevertheless, with Caremark claims in the news, it seems like a good time to ask whether Tennessee law incorporates Caremark duties in the way Delaware law construes those duties.

A review of decisional law on Westlaw reveals only one published opinion, a federal trial court opinion, citing to the Caremark doctrine in relation to claims involving a Tennessee corporation. That opinion, Lukas v. McPeak, No. 3:11-CV-422, 2012 WL 4359437 (E.D. Tenn. Sept. 21, 2012), aff'd, 730 F.3d 635 (6th Cir. 2013), relates to whether demand may be excused in a shareholder derivative action. In his opinion in Lukas, Judge Thomas Varlan uses Caremark to describe the relevant duties as a basis for articulating the applicable burden of proof involved in assessing demand futility.  

Should a court applying Tennessee corporate law be citing to Delaware corporate jurisprudence in relation to a Tennessee corporation, even though Tennessee’s corporate law is based on the Model Business Corporation Act, not the Delaware General Corporation Law? Although the policy underpinnings of the statutes can be different, citations to Delaware law are certainly not unusual. “[I]n matters of corporate law, Tennessee courts often look to Delaware law.” Athlon Sports Commc'ns, Inc. v. Duggan, 549 S.W.3d 107, 125 (Tenn. 2018). In his opinion in Lukas, Varlan maintained that “a plaintiff can only overcome the demand requirement with ‘well-pleaded facts to suggest a reasonable inference that a majority of the directors consciously disregarded their duties over an extended period of time,’” citing to Kenney v. Koenig, 426 F.Supp.2d 1175, 1182 (D.Colo.2006) (quoting David B. Shaev Profit Sharing Account v. Armstrong, 2006 WL 391931 at * 1 (Del.Ch., Feb.13, 2006)). He found that the plaintiff failed to meet this burden of proof and dismissed the case.

One might simply conclude from Varlan’s opinion in Lukas that Tennessee recognizes and applies Delaware’s Caremark doctrine. Yet, the Lukas opinion — a federal district court ruling made in a specific procedural context — assumes the existence of the Caremark doctrine as a descriptive matter without reasoning through its general applicability under Tennessee law. It would be interesting to see how a Tennessee state court judge might reason through whether Tennessee corporate law expressly recognizes director and officer oversight duties in the same way Delaware does, including whether the same standard of conduct would apply and whether oversight duties are classified as separate fiduciary duties or as components of the duty of care or the duty of loyalty. The Tennessee Business Corporation Act (TBCA), in § 48-18-301(a), specifically articulates three duties applicable to directors of a Tennessee corporation, separating good faith out from care and loyalty: “A director shall discharge all duties as a director, including duties as a member of a committee: (1) In good faith; (2) With the care an ordinarily prudent person in a like position would exercise under similar circumstances; and (3) In a manner the director reasonably believes to be in the best interests of the corporation.” An officer having “discretionary authority” over a matter is charged with the same duties in discharging that authority under TBCA § 48-18-403.

Of note in this regard, the Utah Supreme Court expressly rejected Delaware’s categorization of oversight duties as subsidiary elements of the fiduciary duty of loyalty in Rawcliffe v. Anciaux, 2017 UT 72, ¶ 18, 416 P.3d 362, 370 (2017). Utah’s corporate law (the URBCA), as applied in the case, was based on an earlier version of the Model Business Corporation Act. The court in Rawcliffe found that the duties of good faith and loyalty are separate (but sometimes overlapping) fiduciary duties that require different standards of conduct, rejecting the Delaware Supreme Court’s characterization in Stone v. Ritter.  

While it may seem like a pedantic exercise (and therefore unimportant) to ask whether Tennessee courts would follow Delaware courts in defining and categorizing director and officer oversight duties, the relevant standards of conduct and the availability of, for example, the business judgment rule, exculpation, indemnification, or director and officer liability insurance may hang in the balance based on the classification of a claim against a director or officer for a breach of their fiduciary duties. Along those lines, the Rawcliffe court in Utah expressly noted that “the URBCA allows corporations to indemnify their directors for a breach of the statutory duty of care identified in Utah Code section 16-10a-840(1)(b), but does not allow them to indemnify their directors for a breach of the duty of good faith identified in section 16-10a-840(1)(a), or a breach of the duty of loyalty identified in section 16-10a-840(1)(c),” recognizing that the classification of a specific breach claim may have substantive effect.  Rawcliffe, 416 P.3d at 370.

And so we must wait to know for sure whether Tennessee fully embraces Delaware’s law on director and officer oversight. However, the Utah Supreme Court’s opinion in Rawcliffe may offer important persuasive authority in that regard. The statutory references in that opinion parallel those that could be made under Tennessee law.

Parenthetically, while there has been debate and discussion over whether corporate officers owe the same oversight duties as corporate directors, a 2023 Court of Chancery opinion in Delaware, In re McDonald's Corp. S'holder Derivative Litig., 289 A.3d 343 (Del. Ch. 2023), held that officers effectively owe the same fiduciary duties of oversight as directors in context. Vice Chancellor Travis Laster’s opinion in the case was clear: “Failing to confirm that officers owe oversight duties would undermine the directors’ ability to fulfill their statutory obligation to direct and oversee the business and affairs of the corporation.” Id. at 367. The In re McDonald’s opinion also “concludes that oversight liability for officers requires a showing of bad faith. The officer must consciously fail to make a good faith effort to establish information systems, or the officer must consciously ignore red flags.”  Id. at 375. Although the TBCA sets forth the same fiduciary duties for officers as for directors, the contextual analysis of officer oversight duties also is an open issue in Tennessee.

Claims of director and officer malfeasance persist. Many of these claims sound in breaches of fiduciary duty. As a result, litigation involving director oversight duties in Tennessee corporations may receive future judicial attention. In that event, this article may establish foundation for any claim in that regard. However, even absent relevant litigation, the analysis shared here may be useful to those advising Tennessee directors and officers on the nature and extent of their fiduciary duties under Tennessee law.

This article was contributed by Joan Heminway. She is the Rick Rose Distinguished Professor of Law at the University of Tennessee Winston College of Law, a corporate finance lawyer and a past chair of the TBA Business Law Section.

MURPHY, Circuit Judge. The Employee Retirement Income Security Act of 1974 (ERISA) imposes many fiduciary duties on those who manage the retirement plans that employers set up for their employees. ERISA generally allows employees who participate in these plans to pursue breach-of-fiduciary-duty claims against these plan administrators. But the law exempts retirement plans designed for high-level managers from its fiduciary-duty requirements. It also directs employers to keep these so-called “top hat” plans unfunded, so participating managers risk losing their benefits to an employer’s creditors if the employer becomes insolvent. This risk materialized for former managers of Ruby Tuesday, Inc., when the company filed for bankruptcy. After losing their benefits, these managers sued Regions Bank— the bank that had administered their top-hat plans. Unable to bring federal fiduciary-duty claims under ERISA, the managers instead turned to state law. They asserted that Regions had breached state-law fiduciary, trust, contract, and tort duties. Alternatively, the managers sought to obtain their lost benefits from Regions under an ERISA provision that allows them to recover only equitable (not legal) relief. These claims require us to ask both a preemption question and a remedies question under ERISA. The preemption question considers whether the Ruby Tuesday managers may pursue state-law causes of action against Regions even though ERISA preempts all state laws that “relate to” ERISA-covered plans. 29 U.S.C. § 1144(a). Our answer is no. Congress’s decision to exempt administrators of top-hat plans from ERISA’s fiduciary-duty requirements shows that participating managers must protect themselves through contract—not through 50 potentially conflicting state-law standards of conduct. And while the managers argue that they seek to enforce the contractual duties that Regions agreed to accept, they must pursue this type of contract claim through ERISA’s exclusive remedial scheme, not through a state-law contract action. The remedies question considers whether the Ruby Tuesday managers may pursue their lost monetary benefits under a provision of ERISA that allows them to seek only “equitable relief” from Regions. 29 U.S.C. § 1132(a)(3). Our answer is again no. The Supreme Court and this court have both made clear that money damages qualify as legal relief that plan participants cannot obtain under § 1132(a)(3). And although the managers argue that they seek an “equitable surcharge” from Regions, they merely request damages under another label. All told, then, our answers to these two questions lead us to affirm the district court’s judgment for Regions.

Jonathan Duncan, Defendant, was indicted for first degree murder, felony murder, and aggravated robbery by the Wilson County Grand Jury for his involvement in the death of Ellis Sanders, the victim. After a jury trial, he was found guilty on all counts and sentenced to an effective sentence of life imprisonment. After the denial of a motion for new trial, Defendant appeals, arguing: 1) the evidence was insufficient to support the convictions; 2) Defendant’s right to a fair and impartial jury was violated because jurors slept during trial, the trial court required the jury to work “extensive and unreasonable hours,” and the trial court interfered with the jury by holding ex parte meetings; and 3) the trial court erred in allowing the State to present evidence of uncharged bad acts in violation of Tennessee Rule of Evidence 404(b). After a thorough review, we affirm the judgments of the trial court but remand the matter to the trial court for entry of corrected judgment forms to reflect merger of the first degree murder and felony murder convictions.

Because no final order has been entered in the underlying trial court proceedings, this Court lacks jurisdiction to consider this appeal.

Professor appeals from the Tennessee Claims Commission’s Rule 41.02(2) involuntary dismissal of his breach of contract action against Tennessee State University. Discerning no reversible error, we affirm.