News

SCOTUS Petitioned to Again Rule in Case Involving Cake for Same-sex Couples

The former owners of an Oregon bakery are asking the U.S. Supreme Court to accept their appeal and decide that they had a First Amendment right to refuse to bake a custom cake for a same-sex wedding, The ABA Journal reports. The decision could resolve a broader question that the Supreme Court didn’t settle in its Masterpiece Cakeshop decision involving a Colorado baker who refused to bake a cake for a same-sex wedding. “The State of Oregon drove Melissa and Aaron Klein out of the custom-cake business and hit them with a $135,000 penalty because the Kleins could not in good conscience employ their artistic talents to express a message celebrating a same-sex wedding ritual,” a cert petition filed Oct. 19 says.
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Pain Clinic CEO Implicated in Medicaid Fraud Conspiracy

The former CEO of the recently shuttered Brentwood-based pain clinic company Comprehensive Pain Specialists (CPS) is accused of plotting to forge the signature of a dead patient so Medicaid could be billed in her name, The Tennessean reports. Former CPS CEO John Davis allegedly emailed about the forgery with an accomplice, Brenda Montgomery, as part of an illegal kickback scheme. Prosecutors have said that Davis’ prosecution has little to do with the direct operations of CPS and are primarily related to a “side agreement” he had with Montgomery, who was the head of a medical device company named CCC Medical Inc. Davis’ attorney has filed a motion for relief regarding the emails in question.

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Basic Tech Checklist for Firms

Law firms attempting to stay competitive and state-of-the-art need to consistently evaluate their use of technology. In addition to staying competitive, technological competency is required. In 2017, the Tennessee Supreme Court amended Rule 8 of the Rules of Professional Responsibility to include this obligation. Above the Law presents a simple and straightforward tech checklist for law firms or lawyers seeking guidance in this area.   

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Park Service Proposes New Rules for Protests

Public comments are being sought on a proposal from the National Park Service that would overhaul rules for protests in front of the White House and at other iconic locations in Washington, D.C. The Hill reports that the proposal would close much of the sidewalk north of the White House to protests, limit the ability for groups to have spontaneous protests without permits in that area and on the National Mall, and would open the door to potentially charging some demonstrating groups fees. The NPS cites its mandate to protect land, saying that it wants to “provide greater clarity to the public about how and where demonstrations and special events may be conducted." Opponents say it is an attempt to limit free speech and that those spaces need to remain welcoming for the First-Amendment-guaranteed right to protest.

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President Names 13 Nominees to Federal Bench, Including One in Tennessee

The White House announced 13 new judicial nominees, including one for a seat in Tennessee, Law.com reports. President Donald Trump nominated Judge Clifton Corker for a seat in the Eastern District of Tennessee. The nominees include five picks for appeals courts and eight for trial court seats.
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New Supreme Court Justice to Begin Hearing Cases

What will be the first cases newly sworn in Supreme Justice Brett Kavanaugh hears? Bloomberg News looks at cases coming before the court this week involving penalties for gun crimes and more. Kavanaugh took the oath of office last weekend.

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Deadline Near for TBA Supreme Court Admissions Event

The U.S. Supreme Court is back in session, so act now to take part in the 35th Annual TBA Academy and Admissions Ceremony, Nov. 26-27. A select group of Tennessee attorneys will be able to take part in this private ceremony before the court and enjoy other events at the court and the capitol. A reception and celebration dinner kick off the program, which also includes the opportunity to earn three hours of CLE credit. The group will stay at the Hay Adams Hotel, where the TBA has obtained a special rate for participants. The deadline to submit applications is Oct. 22 and space is limited.
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Tech Companies Encourage National Data Privacy Laws to Preempt California Law

During a Senate hearing Wednesday, major technology and internet companies — including Apple, Alphabet, Amazon, AT&T, Charter and Twitter — encouraged the passage of federal legislation to protect data privacy that would preempt the tough privacy law that California adopted, set to take effect in 2020, Reuters reports. The companies acknowledged the importance of being more transparent with personal data use and giving users more control over their data, but argue that California’s legislation is too burdensome due to confusing language, making compliance difficult. In addition to California adopting tough privacy laws, the European Union General Data Protection Regulation took effect in May. Violations carry stiff fines in the millions of dollars. The U.S. Commerce Department is seeking comments on how to set nationwide data privacy laws.  

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Arizona Sex Crimes Prosecutor Will Question Kavanaugh, Accuser

Rachel Mitchell, an Arizona sex crimes prosecutor, has been chosen to lead questioning during a hearing involving U.S. Supreme Court nominee Brett Kavanaugh and a woman who accused him of sexually assaulting her when they were teenagers, The Arizona Republic reports. "The goal is to de-politicize the process and get to the truth,” Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, said of the choice.
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Bill in U.S. House Would Eliminate PACER Fees

A new bill in the U.S. House of Representatives would prohibit the federal courts from charging for public documents, The ABA Journal reports. The Electronic Court Records Reform Act would require documents in the PACER database to be free, a change from the current 10 cents per page with a cap of $3. “Americans deserve a justice system that is transparent and accessible,” said Republican Rep. Doug Collins of Georgia, the bill’s sponsor.
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Kavanaugh Accuser Invited to Testify Next Week

U.S. Supreme Court nominee Brett Kavanaugh and the woman who accused him of attempting to rape her when they were both high school students have been asked to testify at a hearing next Monday, The Hill reports. The hearing will give lawmakers a chance to “give these recent allegations a full airing,” said Senate Judiciary Committee Chair Chuck Grassley, R-Iowa. Christine Blasey Ford, Kavanaugh’s accuser, has not yet confirmed she will testify.
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DOJ Gets November Deadline to Respond to Alabama Immigrant Census Lawsuit

The federal government has until Nov. 13 to respond to Alabama's lawsuit seeking to exclude immigrants living in the country illegally from U.S. Census counts, The Associated Press reports. A federal judge granted the extension after lawyers said the Department of Justice components needed additional time to finish "evaluating the arguments that the government will make in this matter." Alabama Attorney General Steve Marshall filed the lawsuit against the federal government in June. Marshall argues the immigrants should not be included in census counts used to distribute congressional district.
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Be Sworn In at the U.S. Supreme Court in November

If admission to practice before the U.S. Supreme Court is one of your career goals, don’t miss the opportunity to make it a reality during the 35th Annual TBA Academy, Nov. 26-27. A select group of Tennessee attorneys will be able to take part in this private ceremony before the court and enjoy other events at the court and the capitol. A reception and celebration dinner kick off the program, which also includes the opportunity to earn three hours of CLE credit. The group will stay at the Hay Adams Hotel, where the TBA has obtained a special rate for participants. The deadline to submit applications is Oct. 22.
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Kavanaugh Dodges Questions on Same-sex Marriage

U.S. Supreme Court nominee Brett Kavanaugh referred to the recent Masterpiece Cakeshop ruling when asked whether he supports same-sex marriage last Thursday, the Washington Blade reports. Sen. Kamala Harris, D-Calif., asked Kavanaugh whether he thinks the Supreme Court’s 2015 decision in Obergefell v. Hodges was correctly decided, to which Kavanaugh responded by referencing five cases on LGBT rights written by former Associate Justice Anthony Kennedy, among them the Masterpiece Cakeshop decision. After being further pressed regarding his feelings on the Obergefell decision, Kavanaugh continued to read a statement from the Masterpiece ruling, stating “In Masterpiece Cakeshop, and this is, I think, relevant to your question, Justice Kennedy wrote in the majority opinion joined by Chief Justice [John] Roberts and Justice [Samuel] Alito and Justice [Neil] Gorsuch and Justice [Stephen] Breyer, the days of discriminating against gay and lesbian Americans as inferior in dignity and worth are over.” The Senate will vote on Kavanaugh’s confirmation in the coming weeks.

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Nashville Lawyer John Tarpley Testifies in Kavanaugh Hearings on Behalf of ABA, Explains ‘Well Qualified’ Rating

Former TBA president John Tarpley gave testimony today in the confirmation hearing of U.S. Supreme Court nominee Brett Kavanaugh. Speaking on behalf of the American Bar Association, Tarpley explained how the judge earned a unanimous “well-qualified rating,” The ABA Journal reports. Tarpley is the lead evaluator on the Standing Committee on the Federal Judiciary. He said the panel found that Kavanaugh “enjoys an excellent reputation for integrity and is a person of outstanding character. It was clear from all or our interviews and all of the other evidence that he learned the importance of integrity from a very early age.”
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EPA's Reconsideration of Mercury Rule Sparks Concerns in the Environmental Community

Last week the Environmental Protection Agency (EPA) announced that it would reconsider a regulation that restricts mercury emissions by coal-burning power plants, The New York Times reports. The 2011 mercury rule has been one of the EPA’s most effective policies, with mercury pollution falling 70 percent since its inception. Some who oppose changes to mercury rule have concerns that the move will weaken the EPA’s ability to write new pollution standards in the future. A spokesman for the EPA, Joe Konkus said that the agency “knows these issues are of importance to the regulated community and the public at large and is committed to a thoughtful and transparent regulatory process in addressing them.”

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Kavanaugh Hearings Day 2: Questions on Presidential Powers, Guns

The Senate Judiciary Committee confirmation hearing for U.S. Supreme Court nominee Brett Kavanaugh continued today, with the nominee promising independence and “judicial fortitude” if confirmed, Fox News reports. He received questions from senators about previous comments he had made about investigations involving a president. “No one’s about the law,” Kavanaugh said, adding that there’s no constitutional prohibition against pursuing prosecution against a president. He was also asked about a 2011 dissent he wrote in the D.C. vs. Heller case, in which he wrote that gun restrictions should be assessed by “text, history and tradition” rather than by dangers to the public or the government’s interest in regulation. 
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Confirmations Hearings Begin for SCOTUS Nominee Brett Kavanaugh

Judge Brett Kavanaugh faced his first day of questions from U.S. Senators in his confirmation hearings today, Fox News reports. Kavanaugh promised to “keep an open mind in every case” and “strive to preserve the Constitution of the United States and the American rule of law.” Democrats have challenged the speed of Kavanaugh’s nomination and confirmation over concerns with access to his records. Kavanaugh’s hearings today were frequently interrupted by protestors disrupting the proceedings.
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Federal Judge Rated ‘Not Qualified’ by ABA Confirmed by U.S. Senate

The U.S. Senate on Tuesday confirmed U.S. Magistrate Judge Charles Barnes Goodwin for a federal judgeship, despite his “not qualified” rating from the ABA Standing Committee on the Federal Judiciary, The ABA Journal reports. Six Democrats joined the Republican majority to approve Goodwin 52-42. The committee expressed concerns about Goodwin’s work habits, including “his frequent absence from the courthouse until mid-afternoon.”  Goodwin will serve on the U.S. District Court for the Western District of Oklahoma.
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2018 Health Law Primer and Forum

Tennessee remains at the forefront of the health care industry, so it’s only fitting that we host the nation’s preeminent health law forum. This must-see, must-do event for Tennessee health law lawyers features timely programming designed to up your game and keep you on top of trends in the field. Topics for this year include new issues in health care as related to transgender and immigrant patients, the opioid crisis, fraud and abuse developments/enforcement, legislative updates and much much more. This year’s keynote speaker Chief Counsel to the Inspector General Gregory Demske will also detail priorities and enforcement efforts for the U.S. Department of Health and Human Services Office of the Inspector General. Don’t sleep on this opportunity to learn from seasoned practitioners while networking with top players in the field. Here are the key details:
 
Health Law Primer (introductory program)
When: Wednesday, Oct. 10
Where: Embassy Suites Hotel, 820 Crescent Centre Drive, Franklin
 
Health Law Forum
When:  Thursday, Oct. 11 – Friday, Oct. 12
Where: Embassy Suites Hotel, 820 Crescent Centre Drive, Franklin
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TBJ Has it: Banking, Estate Planning ... and John Ward

Laced with SARs, PEPS and OBITs, this month's Tennessee Bar Journal is full of acronyms you need to know (or are now curious about). To help with that, Nashville lawyer Kathryn Reed Edge writes about international intrigue and the importance of financial institutions’ willingness to report suspicious activity. That "OBIT" is not a death notice, but an "Optimal Basis Increase Trust" with which estate planners must be familiar. Knoxville lawyer Dan Holbrook covers it. Tennessee's Solicitor General Andrée Blumstein reviews the book Borrowed Judges: Visitors in the U.S. Court of Appeals, and Jackson lawyer Daniel Taylor reviews former TBA President Sam Elliott's book about John C. Brown. But perhaps the juiciest piece of information in this issue is about a law school graduate who walked out of the bar exam -- that's right, your Voice of the Vols, John Ward, didn't even finish the test -- he hadn't even studied! As you know, he went on to do OK in another career; Memphis lawyer Bill Haltom writes about that. Read the entire issue online.

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Federal Judge Orders Keystone XL Pipeline Review

A federal judge in Montana ordered the U.S. State Department to do a full environmental review of a revised route for the Keystone XL crude oil pipeline – a move that could further delay the project, Reuters reports. U.S. District Court Judge Brian Morris ruled for plaintiffs, ordering the review of a revised pipeline route through Nebraska to supplement one the department did on the original path in 2014. In his ruling, Morris said the State Department was obligated to “analyze new information relevant to the environmental impacts of its decision” to issue a permit for the pipeline last year. You can view the initial complaint here.

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Bankruptcy Filer Takes Student Loan Servicer to Court

A student who took out federal student loans to cover the cost of her bachelor's and master's degrees is taking the student loan provider to court, CBS Denver reports. Paige McDaniel said that she began receiving direct mail from her loan provider Sallie Mae offering additional loans to pay for different expenses. McDaniel maintains that she took advantage of the loan offers not realizing that they were different and signed up for about $120,000 of private student loans in addition to her existing federal loans. McDaniel eventually filed Chapter 13 bankruptcy, paying through the proceedings, but still came out underwater. The issuer of the private student loans — Navient Solutions — is facing lawsuits about its lending practices in Illinois, Washington, Pennsylvania and California. 

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Section Seeks Your Opinions on Upcoming Law Office Technology Forum

To help build programming for its upcoming Law Tech Forum, the TBA Law Office Technology and Management Executive Council is asking your opinions. Completing this brief web form will assist in ensuring the forum remains timely, relevant and on the cutting edge. Comments can be related to subject matter, length and location of the event. Please respond by Sept. 7. 

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Tennessee, DOJ Battle Over Federal Prosecutors Ethical Obligation in Discovery

An opinion published earlier this year by the Tennessee Board of Professional Responsibility has caused a stir in the U.S. Justice Department, setting the stage for a battle over ethics in the discovery process, The Marshall Project reports. The DOJ believes that district attorneys are duty-bound to disclose evidence that could prove a defendant’s innocence only when it’s material to the case. However, lawyer ethics panels in states, including Tennessee, have seen that standard as vague and open to interpretation by the prosecutors themselves. The new rule in Tennessee says prosecutors must hand over all evidence that is in some way favorable to a defendant, no matter if they believe it would affect the outcome or not.
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