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ARTICLES
Tennessee Workers’ Compensation: Employee v. Employer
Summer Geyer & Lauren Poole
Geyer and Poole explore their respective experiences and outlooks handling workers' compensation in Tennessee through contrasting positions, providing insight on the varied experience and perspective that play workers' compensation.
What
about
Bob? When
Interpreting Local Government Actions, Keep Robert’s Rules in Mind
exclusively for NBA Nashville area. and increase exclusively for NBA Nashville area. and increase
Candi Henry provides a cheat sheet and overview of Robert's Rules, exploring the importance and application.
How Employers Can Prepare for an ICE Visit
Victoria Gentry breaks down the two types of ICE worksite visits and outlines the important things you need to know to prepare your business.
FTC’s Rule Banning Non-Compete Agreements: Summary, What it Means for the Employers, and the Uncertain Future of the Rule
Maja A. Hartzell dives into the Federal Trade Commission’s recent rule, banning non-compete agreements. Hartzell shares the highlights of the rule. what this may mean for businesses, and the uncertainty of the decision.
Education Law 101: The IDEA Act
Michael Braun discusses the Individual with Disabilities Education Act (“IDEA”), the practicality of what that looks like for students and their families, and the role that lawyers in education law play.
DEPARTMENTS
From the President
Bahar Azhdari
Hear Ye, Hear Ye
Board of Directors Election
Membership Renewals
Tune Award Nominations
Annual Free Member Picnic
NBF Grant Applications
Fall Memorial Service
Annual Meeting & Banquet
YLD 21st Annual Race Judicata
Calendar
Events
Background
Bart Pickett
Bill Ramsey & Phillip Hampton
From The President
Writing the President’s message is one of the most fulfilling and difficult parts of being NBA President. That might sound odd, but, when it is the first thing each Past President mentions after your election, you tend to be wary. Fortunately, my wariness was tempered by their encouragement and words of wisdom.
I view the President’s message as a connection with our members. It’s one of the few times I get to communicate directly with you and, hopefully, to do so in an interesting or impactful way.
Tempered with that is the reality of publication: it is usually weeks between when inspiration strikes and the note is written and when our members receive the NBJ. So with that in mind, I write this now after having experienced (via television, not in person) the awe and excitement of the 2024 Summer Olympics in Paris. (And the Paralympics are starting soon!) I love the Olympics. The magic, the artistry, the athleticism, and, yes, even the patriotism. It’s hard not to get excited hearing chants of “U-S-A! U-S-A!” as America’s best compete on a world stage. It’s also a time when we come together to share in the thrill of winning and commiserate in the sting of defeat. Results do not always meet expectations, but we get to see people at their best, putting aside disappointment and showing us the resilience of the human spirit.
Olympians teach us that people can do the impossible. It’s easy to be inspired by such feats. But they aren’t the only ones. And lest you be concerned I’m going to compare elite athletes with attorneys, bear with me. We have attorneys who do not just the impossible and inspirational but those who show up day in and out to do their jobs – even when not sensational, glamorous, or noticed. The defense attorney who dedicates years to get a wrongful conviction overturned. The multitudes of attorneys working every day to protect children, families, vulnerable individuals, and the environment. The corporate, M&A, and securities attorneys who do their part to represent their clients. The members of the judiciary interpreting laws and aiming for justice. The government attorneys striving to make life in America better. All the attorneys who fight for what they believe and help effect change for millions. We, at the NBA, are fortunate to call those individuals members and to have an opportunity to get to know them and their practices better.
To that end, we are focusing on one particular area of the law in this issue: administrative law. We know our legal system may not be perfect, but it is the cornerstone of our democracy and a crucial element in ensuring justice and equality. In addition to safeguarding rights and resolving conflicts, what we do plays a vital role in advocating for change and shaping public policy. Much of that changing and shaping occurs at the administrative and regulatory level. While it is still early to see how the operation of administrative agencies will be impacted by recent court decisions, their importance, especially in their review and guidance on any number of issues, should not be ignored. From the Securities and Exchange Commission to the Department of Defense to the Environmental Protection Agency, we rely on agencies – and the attorneys working within them – to help us administer, enforce, and regulate laws. I hope the articles and stories we provide here help broaden your understanding of how administrative law and agencies serve us and the important role they play in our legal system.
Bahar Azhdari, Publisher
William T. Ramsey, Editor-in-Chief
Summer Geyer, Managing Editor
Lauren Poole, Managing Editor
Adrienne Bennett Cluff, Layout/Design/ Production
EDITORIAL COMMITTEE
Ramona P. DeSalvo
Timothy Ishii
J. Bart Pickett
Katlin Ryan
Kristin Thomas
Jonathan Wardle
NASHVILLE BAR JOURNAL (ISSN1548-7113) (USPS 021-962) is published quarterly by the Nashville Bar Association, 150 4th Ave N, Ste 1350, Nashville, TN 37219. Periodicals Postage Paid at Nashville TN.
POSTMASTER: Send address changes to Nashville Bar Journal, 150 4th Ave N, Ste 1350, Nashville, TN 37219-2419.
No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. All articles, letters, and editorials contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association. For more information, visit NashvilleBar.org/ NashvilleBarJournal
The Nashville Bar Journal welcomes discourse. You may submit counterpoint editorials to Adrienne.BennettCluff@ nashvillebar.org to be considered by the editorial committee for publication in a future print or online content.
The Nashville Bar Association, established in 1831, is a professional organization serving the legal community of Nashville, Tennessee. Our mission is to improve the practice of law through education, service, and fellowship.
The NBA—with 2,500+ members—is the largest metropolitan bar association in Tennessee.
We want to hear about the topics and issues you think should be covered in the journal. Send your ideas to Adrienne.BennettCluff@ nashvillebar.org.
Hear Ye, Hear Ye
2024 BOARD OF DIRECTORS ELECTION
Members of the NBA will be electing six new directors to serve on the Board for a four-year term commencing January 1, 2025. The election will take place in November, and all members whose 2025 membership dues are postmarked no later than October 31 will be eligible to vote. To learn more about the NBA Board of Directors, visit NashvilleBar.org/ Leadership
MEMBERSHIP RENEWALS
It’s time to renew your membership! The 2024 membership year ends on October 31. You may renew online at NashvilleBar.org/Renew (it only takes a few minutes!), by contacting Vicki at Vicki.Shoulders@ nashvillebar.org or calling 615-242-9272. If your firm is part of Firm Billing with the NBA, please check with your administrator before renewing online. Thank you for your continued support and membership!
TUNE AWARD NOMINATIONS
We are now seeking nominations for the John C. Tune Public Service Award to be presented at the Annual Meeting & Banquet on Thursday, December 12. The purpose of the award is to recognize members who make outstanding contributions to the greater Nashville area community while distinguishing themselves as practicing attorneys. To submit your nomination, email Traci. Hollandsworth@NashvilleBar.org no later than Friday, October 11, expressing why you believe your nominee is deserving of this prestigious award. Visit NashvilleBar.org/Awards for more information.
ANNUAL MEMBER PICNIC (IT'S FREE!)
The 2024 Annual FREE Member Picnic will be held on Thursday, September 26, from 5:30-8:30pm, at Walk of Fame Park, located downtown across from the Country Music Hall of Fame. This event is co-sponsored by the Metro Law Department and free for NBA members to attend. Family-friendly, casual environment, friends and colleagues, beer, wine and BBQ. For sponsorship and registration information, visit NashvilleBar.org/Picnic or email Traci.Hollandsworth@NashvilleBar. org . We look forward to seeing you there!
Hear Ye, Hear Ye
NASHVILLE BAR FOUNDATION GRANT APPLICATIONS
The Nashville Bar Foundation is now accepting grant applications for 2025. If you know of any 501(c)(3) organizations that may be eligible for a Foundation Grant, please spread the word. Grant eligibility and application guidelines can be found at NashvilleBar. org/NBFGrantGuidelines. The Foundation will allocate funding each budget year on the basis of written applications in a format prescribed by the Foundation. Grant applications can be found at NashvilleBar.org/NBFGrantApplication and will be accepted between December 1, 2024, and January 15, 2025.
FALL MEMORIAL SERVICE
Our Fall Memorial Service will be held on Thursday, November 21. The service begins at 11:00am. Stay tuned to upcoming NBA Weekly Update emails and NashvilleBar.org/MemorialService for a list of those who will be honored. A project of the NBA’s Historical Committee, memorial services honor the memory of those Nashville lawyers and judges who have recently passed away.
SAVE THE DATE! NBA ANNUAL MEETING & BANQUET
Gather around for our annual meeting on Thursday, December 12, at the Four Seasons Hotel Nashville. A reception for our members will begin at 5:30pm followed by dinner and the program. Check your NBA Weekly Updates for more details!
YLD 21ST ANNUAL RACE JUDICATA
Join the YLD on Saturday, October 5, from 8:30am-11:00am, at Edwin Warner Park, Shelter 10. The race offers 5k and 10k distances for runners and walkers as well as team competitions and exciting post-race activities such as yoga, a beer garden, and non-alcoholic mimosas. All proceeds benefit of ABLE Youth and Nashville chapter of Achilles International. Visit NashvilleBar.org/RaceJudicata to register today.
The Nashville Bar Association's Young Lawyers Division Recognized by the ABA
Our very own Young Lawyers Division was recognized by the American Bar Association's 2024 Awards of Achievement, receiving a Service to the Public Award for the recent Mural Project: The Innate Warrior.
Beginning in 2022, the YLD partnered with local artist Omari Booker on a mural project that is now proudly displayed at the Tennessee Justice Center. The mural, entitled The Innate Warrior, examines justice through an aspirational lens – not only for what it is, but what it could be.
Congratulations to the YLD on this recognition! And a special congratulations to Cherrelle Hooper, who worked diligently to shepherd this inspiring project to completion.
Welcome to the NBA
Congratulations on your membership – thank you for joining the NBA! We look forward to serving you this year and appreciate your support. Visit NashvilleBar.org or contact Vicki.Shoulders@nashvillebar.org with questions or to learn more.
New Members (June 1 - August 1)
Brian Adams
Kameron Andrews
Leah Atkinson
Audrey Bareck
Brooke Bishop
Tammy Block
Alex Brinson
Natalie Burton
Oliver Davis
Matt Delfino
Meaghan Denniston
Sean Freeland
Chicoya Gallman
Austin Gergen
Shery Girgis
Meri Gordon
Meaghan Gray
Brandon Hawkins
Fernanda Herrera Spieler
Nicole Imhof
Dre Johnson
Berkeley Kendrick
Bar Bestie:
Rosie
Jordan Kimmel
Keelin Kraemer
Grace Kruis
Robert Lowell
Andrea McCoy
Rick Miltimore
Vince Morris
John Murphy
Susan Oliver
Kaitlin O'Neill
Luke Pagan
Sarah Parker
Grant Reigard
Kylie Sarwar
Erika Stinnett
Kayleigh Thomas
Abbigail Thurman
Bridget Tindal
Tiffany Trussell
Tim Van Hal
Kymberly Whitaker
Lexi Woods
Dogs are a man/woman’s best friend for a reason: they can ease loneliness, relieve stress, anxiety and depression, and provide unconditional love. Rosie is a gift from my late father. She has been with me through law school, the bar exam, my first job, and many more pivotal life events. She is also the first dog to spend time at my firm’s office and to make guest appearances during summer associate interviews. She has a sweet personality and makes me, and others, laugh each day.
Callie Hinson, Neal & Harwell
Dial-A-Lawyer is held on the first Tuesday of each month from 6:00-8:00pm, and the public is invited to call in with basic legal questions. If you would like to volunteer and help the NBA support this program, please contact Vicki.Shoulders@NashvilleBar.org. Complimentary dinner is provided.
Tennessee Workers’ Compensation: Employee v. Employer
Summer Geyer is an Associate in Burr & Forman’s Construction Practice Group where she assists a range of clients, including residential and commercial general contractors, architects, engineers, project managers, business and property owners, and subcontractors. Summer earned her J.D. from Belmont College of Law, where she served as an Adjunct Professor and Mock Trial Head Coach for five years. In her free time, Summer enjoys traveling, singing, and spending time with her Great Dane, Baron.
Lauren M. Poole joined Moore Ingram Johnson & Steele, LLP in January 2024 as an Associate in Workers’ Compensation and Insurance Defense. In addition, Poole has extensive experience successfully representing clients in the areas of transactional and litigation matters involving insurance defense, bankruptcy, mergers and acquisitions, and creditors’ rights including collections. She also has experience in appellate advocacy, successfully arguing before the Tennessee Court of Appeals. Poole’s philosophy is to provide legal services for her clients that she would expect as a client herself. Poole is a member of the Nashville Bar Association and currently serves as Editor of the Nashville Bar Journal. She has written several legal articles and is a faculty member of the Tennessee Bar Association. Outside of the office, Poole enjoys spending her time traveling, listening to live music, and enjoying art.
For an employee, navigating the workers’ compensation system in Tennessee is confusing at best, says Summer Geyer. For employers, it can be frustrating, says Lauren Poole. Poole and Geyer have worked on the opposite sides of the workers compensation fence for several years and offer different perspectives in navigating the rules and regulations followed by the Tennessee Bureau of Workers’ Compensation (“TNBWC”).
Geyer found herself advocating for clients who all felt the same way: a work injury changed their lives and they didn’t understand what, if any, benefits they would be entitled to. Poole acquired the skill of workers’ compensation in what felt like a natural extension of insurance defense and civil litigation for creditors and employers. Her clients, while sophisticated in business, still were generally uncertain with the process concerning what benefits they were required to pay and when.
In Geyer’s opinion, prior to 2014, the workers’ compensation was more flexible and more employee
friendly. She contrasts this with the current rules and regulations which she believes to apply a strict equation with little to no room for subjectivity. She uses an example of two cases, one, a person who permanently lost use of his dominant arm and, based on his wages, was only awarded $60,000. While another client with a minor back injury, who, based on her wages, received upwards of $400,000.
Poole pointed out that she agrees some awards feel arbitrary. However, her emphasis is upon other factors that influence awards such as pre-existing conditions and impairment ratings. She also has found that while most employees use the process to seek fair pay, there are those who engage in filing frivolous claims costing companies thousands of dollars to resolve despite being meritless.
Work Comp from 30,000 feet
Once an employee has given notice of a work-related injury, the employer must provide the employee with a
(continued on page 12)
“panel” of doctors from which the employee may choose who will treat them. The employee is given a choice of three (3) doctors, chosen by the employer. These doctors can be anywhere within a 150 mile radius of the employee’s “community of residence.” 1
The doctor chosen by the employee is called the “authorized treating physician” (“ATP”). The opinions of the ATP determine both whether the employee will receive benefits and the amount of benefits the employee will receive. This determination is made by the ATP’s evaluation as to whether the employee can return to work and if so, what restrictions are applied. If the employee cannot return to work, the employer will pay benefits. Benefit payments are also based upon the opinion of the
follows: Impairment Rating x 450 = # of weeks of benefits the employee is entitled to (there is a minimum of 180 days); # of weeks x 66.67% of the employee’s average weekly wage = total amount of benefits.
For example: An employee who receives a 2% impairment rating and makes an average of $600 per week ($40,000/year) will receive 25.71 weeks (minimum of 180 days) x $400.02 (66.67% of $600) = $10,284.51.2
In order to dispute the Impairment Rating, the employee or employer may seek out an alternative medical doctor to perform an independent medical examination (“IME”) and provide an Impairment Rating. It is worth noting that the findings of an IME do not immediately supersede that of the ATP. Poole notes that usually an IME from an Employer will be provided to the ATP with a medical
questionnaire to confirm/ratify the IME findings with ATP’s original findings.
Settlement
If an employer agrees that the injury was work related and the parties’ do not dispute the Impairment Rating, a hearing is requested and a“settlement”order is approved by a judge at the Bureau of Workers’ Compensation. If there is a dispute as to material issues, like causation, the parties must file a request for expedited hearing with the TNBWC within 60 days of the DCN issuance.
There are many issues that arise during settlement that can cause issues between the employer and employee, says Poole. For example, there are some pro-se employees that want more money despite what is allowed under the statute. While there are resources such as the ombudsman available to further explain the rules, it can take time for the employee to “come around” to accept what settlement is required for the employer to pay under the statute. Poole also suggests that there is a fair amount of deference offered to unrepresented employees by the court. She points out that while employees are not entitled to an attorney for workers’ compensation determinations, there are many employees that do employ an attorney to help them navigate the system.3
Either party may file for an
appeal of findings by the court through the Tennessee Workers’ Compensation Appeals Board, and can ultimately be appealed to the Workers’ Compensation Panel of the Tennessee Supreme Court.
Case Study: Theralease Ridley v. Mature Care of Standifer Place, LLC, et.al.
On June 13, 2024, an appeal came before the Tennessee Workers’ Compensation Appeal Board in a case styled Theralease Ridley v. Mature Care of Standifer Place, LLC, et.al. It was heard in person at the annual Tennessee Workers’ Compensation Conference in Murfreesboro, Tennessee.
In Ridley, a certified nursing assistant sought workers compensation benefits for back pain after lifting a 400-pound patient. Ms. Ridley was examined by ATP who initially opined that her injury was work related. After further diagnostic testing, the ATP changed his opinion to say that the injury was not primarily caused by Ms. Ridley’s work activities. However, the ATP did state that the injury aggravated Ms. Ridley’s preexisting condition. Based on these opinions, the employer denied Ms. Ridley’s claim.
Ms. Ridley sought the opinion of an IME Doctor, who opined that Ms. Ridley’s back injury was casually related to her employment.
Because of the dispute, the Bureau of Workers’ Compensation held an expedited hearing. There, the court was able to analyze the deposition testimony of the ATP. The parties did not depose the IME doctor. The trial court found
that the written opinion of the IME Doctor rebutted the statutory presumption of correctness and ordered the employer to provide benefits to Ms. Ridley.
By this time, Ms. Ridley had moved out of state. The trial court ordered the employer to provide a panel of pain management physicians to Ms. Ridley in her new locale. Instead, the employer appealed.
The Court of Appeals reviewed the documentary evidence de novo, but noted that an abuse of discretion standard would be applied to the trial court’s ultimate determination. The Court examined two issues on appeal: (1) whether the trial court correctly found that the opinion of the IME Doctor rebutted the presumption of correctness of the ATP, and (2) whether Ms. Ridley was entitled to receive a panel of physicians in her new locale.
After examining the evidence, the Court of Appeals determined that the opinion of the IME Doctor did not rebut the presumption of correctness afforded to the ATP.
The Court found the deposition testimony of the ATP to be credible because he “explained why his causation opinion evolved over time and why the diagnostic test results led to that change.” In contrast, the Court felt that the trial court erred in accepting the opinion of the IME doctor over the ATP’s because, among other things, the IME Doctor was not deposed or subject to cross examination and his opinion was based on a single examination that occurred two years after the injury.
Despite the foregoing, the Court still ordered the employer to provide
a panel of physicians because Tennessee Workers’ Compensation Law requires an employer to provide treatment to an employee if “it can be shown to a reasonable degree of medical certainty that the aggravation arose primarily out of and in the course and scope of employment.” As noted, the ATP testified that the injury aggravated Ms. Ridley’s pre-existing condition.
Based on the evidence and the opinion of the ATP, the Court did not require the employer to provide a panel of pain management doctors specifically, but rather required the employer to provide a panel of general physicians.
As is clear from Ridley, there are several moving parts to the workers’ compensation system. Geyer and Poole agree that, while not required, representation for the employer and employee is helpful in navigating the process to achieve prompt and fair resolution.
Footnotes
1 To be clear, an employee must choose a doctor that is on the panel, otherwise the employer is not obligated to pay for any medical treatment. If an employee moves outside of the 150 mile radius, the employer must furnish a new panel of physicians for treatment within the employee’s new residence. This is required even if the employee moves out of state.
2 This does not include any multipliers under....or wages paid to the employee during medical treatment.
3 The statute allows employee’s attorneys to retain 20% of the settlement in fees.
Member Spotlight: Claire Fox Hodge
I've been knitting since middle school, but I only recently branched out into sweaters (encouraged by my Vandy civil procedure professor's recommendation to check out Haus of Yarn, an excellent local store). Since then, I've completed two pullovers and am currently working on a cardigan. I've also made several baby blankets, most recently for my son, Leo, who was born last year. When things get tough at work (or in life), I turn to knitting. It's almost like a type of meditation for me, and the end product is wearable to boot. Just call me the Knitigator – litigator my day, knitter by night. (I also love a bad pun, if you couldn't tell).
Thank You to Our 2024 Diversity Committee Sponsors
Claire Fox Hodge, Baker Donelson
Premier Members
The NBA Premier Membership is a special category that recognizes our members who desire to demonstrate the utmost in commitment and support to our programs and services. Contact Vicki.Shoulders@nashvillebar.org for more information on how to become a Premier Member.
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TENNESSEE CHAPTER
Gail ASHWORTH (615) 254-1877 John BLANKENSHIP (615) 627-9390
DeHOFF (615) 631-9729 James KAY (615) 742-4800
Gayle MALONE, Jr. (615) 651-6775 Dan NOLAN (931) 647-1501
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WELLS (423) 756-5051 Kevin BALTZ (615) 651-6714
Jack WADDEY, Jr. (615) 973-2630 David NOBLIT (423) 265-0214 Barry L. HOWARD (888) 305-3553
WHITE (615) 309-0400
John TARPLEY (615) 259-1366
Background Check | Jeanne B. Heaton
Bart Pickett
was recently appointed as the State Trial Court Administrator for the Twentieth Judicial District where he oversees the operations of the 18 State Trial Courts. Prior to that, he practiced as a trial attorney for Liberty Mutual Insurance Company.
In May, Jeanne Heaton, our newest executive director, started at the NBA. Heaton grew up in the “middle of nowhere” Illinois. She grew up on a farm about 20 miles from Carbondale in Southern Illinois. Her family raised dairy cattle and grew corn, soybeans, and wheat. Jeanne is the only daughter of four children. While she learned to drive a tractor and other farm chores, being the only girl got her out of a lot of the harder farm work. Heaton attended a small consolidated public school where she graduated first out of 41.
When it came time to go to college, Heaton chose to head north to the flagship state school, University of Illinois at Urbana-Champaign. A political science class inspired her to pursue law school in a quest to change the world as she said her generation wanted to do then. Her advisor told her to get a business minor because she might not get into law school. Heaton went on to graduate Phi Beta Kappa from college. While in college, Heaton participated in the flag corps for the Marching Illini and as an officer on the Panhellenic Council. She also used her time then to serve as an intern at both the state and federal levels. She knew she had an interest in government work and wanted to get that exposure.
Following college, Heaton got married and moved to Indiana where her husband had gotten into law school. Heaton worked and began having children until her husband completed his education. She then herself matriculated at Indiana University Maurer School of Law. She completed her first two years there, before her husband moved the family to Washington, D.C., for a job. Heaton finished her last year as a visiting student at American University.
Heaton worked for an Illinois senator during law school and after graduation until they moved back to the Midwest, eventually settling in Springfield, Illinois. Having four children by that point, Jeanne and her husband wanted to be closer to their families. Heaton sought out government work first with the Illinois Environmental Protection Agency for two years before
switching to the Illinois Emergency Management Agency for four years. Heaton then worked for a small environmental law firm specializing in regulatory and administrative law issues for two years.
In September 2005, the State of Illinois adopted its mandatory CLE requirements. As a result, the State Bar Association created a role for a Director of CLE. That role was one that Heaton filled from November 2006 until she came to the NBA. The Illinois Bar Association is based out of Springfield, but Heaton did work across the state including a lot of CLEs in Chicago.
Heaton has been heavily involved with both the International Association for CLE (ACLEA) and the National Association of Bar Executives (NABE). She served as almost every office of ACLEA including president.
(continued on page 18)
Background Check (cont.)
Recently Heaton wanted to start getting closer to her family. No longer being married and with her kids having moved away from Springfield, Heaton began to look at a potential move. One of her daughters recently moved to Memphis due to her husband’s military service, which really put Tennessee on Heaton’s radar. Having spent time here over the years for vacation and work conferences, Heaton had always loved Nashville. Being in Nashville puts Heaton about equidistance to
all of her family. She is actually closer to Southern Illinois here than from Springfield.
She recalls seeing the NBA executive director listing come across her desk in an email from NABE. It hit at just the right time when Heaton was ready to make a move. Despite what her friends had speculated, Heaton was not secretly a country singer coming here to make it big. She had researched the job and the legal community and liked what she saw. The vibrancy of
our legal community excites Heaton. Heaton enjoys visiting her three daughters, her son, and her eight grandchildren. Currently, she is looking forward to the NBA Sister City trip to Caen, France as well as exploring her new state. As both a music lover and a history buff, Heaton is quick to ask for all Tennessee travel suggestions as she plans all of her weekend adventures. n
Phillip Byron Jones is a Nashville based Business and Business Litigation attorney with a proven track record in and out of the courthouse, bolstering his ability to mediate matters small and large. He handles complicated mediations for individuals, small businesses and corporations.
• Specializing in commercial construction disputes, aviation litigation, corporate disputes, and complex contract disputes. • Commercial pilot certificate; single-engine, multi-engine, and instrument ratings.
• Master of the Bench - John Marshall American Inns of Court • Nashville Bar Foundation
Gadget of the Month | 7th Generation iPad Pro: Is
Bill Blessed Or Cursed With His Heart’s Desire?
Bill had loved his iPad Pro ever since he bought the 12.9 version, First Generation in late 2015. And, when he bought the Magic Keyboard in 2020, he was in fancy tablet Nirvana.
When Apple announced the 7th generation with a slightly larger 13inch screen and a much faster M4 Chip, his trembling hands could barely hold his credit card still, so he paid with Apple Pay – all he had to do was double-click.
He unboxed his new iPad (with the new Magic Keyboard and new Apple Pencil). His heart was racing so fast, his body thought he had taken up triathlons again. He couldn’t wait to show it to Phil.
Phil (a self-professed Apple naysayer) watched Bill’s impressive demo of his new love. “So, what does it do that your old one won’t do?” Bill was uncharacteristically at a loss for words. He finally
confessed, “Nothing new, it just does everything better and faster.” Phil’s response was, “Oh yeah, how much faster? What is better?”
Phil did finally agree that Bill’s new iPad was somewhat faster; and the display seemed clearer and a bit more vibrant. But then Phil asked, “Is that really worth spending $1,500?” For Bill, the answer was a resounding “Yes!” But let’s dig a bit deeper.
The new iPad Pro is the thinnest Apple product, and one of the thinnest devices on the market. Apple did change the location of the front-facing camera, making it ideal for Zoom and Teams meetings.
The new M4 chip is the fastest processor Apple makes. It handles anything you can give it at blazing speed. Certainly, if you are a video editor, it is a delight to use. As discussed below, however, for most tasks, one can hardly tell the difference between its speed and previous iPads or any other recently made tablet or laptop.
There is also a new pencil, the Apple Pencil Pro. An Apple Pencil of any generation is a handy tool for anyone, if one is so inclined. You can sign documents, mark up documents, make handwritten notes, write notes or make drawings in emails, etc. But the new features of the Pencil Pro are not so revolutionary, unless you are a prolific illustrator. There are slight note-taking improvements that may or may not be worth paying
$129 for a new Pro model.
The new Ultra Retina XDR Display is impressive. Apple says it is the “most advanced display in the world.” (Hmmm). It is very bright, vibrant, and the colors are amazing. The image quality is great even in situations where there is a lot of glare (or as Apple says, “in challenging light conditions”).
But Bill is a lawyer, and an old one at that... He uses the same software on his new iPad Pro as he used on his old one. As Phil so critically pointed out, “Bill cannot do anything on the iPad Pro 7th Generation that he could not do on his old 4th generation model. And, his brain is so slow, the speed of his iPad is not the bottleneck.”
Bill begs to differ. He claims he uses the iPad for videoconferences on Zoom, Teams, and Google Meet. It is true that the new camera location is a plus. He also swears that he uses the new features of the Pencil Pro. At least in his mind, the new iPad Pro is noticeably faster. And so on.
So let Bill “have his little pleasure” and enjoy his heart’s desire. At least in his mind, he is very, very pleased and happy with his new toy, and the prestige it brings.
“After all, Phil, my pickup can drive down the road just like your Lexus does.”
“Whatever.”
- Bill & Phil n
Celebrating Traci Hollandsworth A Quarter Century of NBA Service
Bahar Azhdari serves as Vice President, Compliance Officer for Brookdale Senior Living Inc., where she implements, maintains, and provides direction for the ongoing, effective operation of Brookdale’s compliance program, including the development and review of necessary policies, programs, and procedures to support the same. She is currently serving as the 2024 Nashville Bar Association President and Publisher of the Nashville Bar Journal
Twenty-five years ago, Traci Hollandsworth began her employment with the Nashville Bar Association. From her start as a receptionist greeting members cheerfully at the door to her now indispensable role as our Director of Programs and Events, Traci has left an indelible imprint on the NBA. Not only is she the mastermind behind the scenes for numerous events and programs, but she also turns ideas into realities and has woven herself into the fabric of our organization. She's more than just an event planner; she is at the heart of every gathering, event, and program.
You, our members, agree:
“I first met Traci at the Davidson County Mock Trial Competition back in 2004. We were dolling out slices from Manny’s House of Pizza to the volunteers and answering a litany of questions from the high school students. I immediately was struck by her sense of humor, her warmth, and her work ethic. I knew that if the Nashville Bar Association was made-up of people like Traci, I wanted to be involved. Over the next twenty years, my initial impressions only further were solidified. Even more, I learned that I wasn’t the only lawyer in our community with such an affinity for Traci. Everyone loves her. Everyone. Thank you, Traci, for giving so much of yourself to this organization and for making this a truly remarkable group.”
Erin Palmer Polly, K&L Gates
“Traci is the best, but you have to keep at least one eye on her at all times. During my year as President, after the
NBA golf tournament, Traci and the staff went to a restaurant to celebrate a successful outing. I dropped in to hang out with them and, being the nice guy I am, offered to buy the drinks. Traci jumped on that and ordered tequila for the group and multiple rounds after that. I know nothing about tequila. So, when she was ordering Patron Platinum or something like that, I thought little of it. When the bill came, though, I realized I had been had. It was the most expensive tequila on the menu! I can’t remember exactly how high the bill was, but it was HIGH. Traci 100% knew that she was taking me to the cleaners, and she loved every stinking minute of it. After I picked myself up off the floor, I thought it was pretty darn funny too! And, it has allowed me to give her grief on a regular basis for the past 16 years, so maybe I ultimately came out on top!
Big time congrats to Traci on 25 years with the Bar. She is an absolute treasure!”
W. Scott Sims, Sims|Funk
“Traci is the ‘rock’ of the NBA. Her tireless and
essential efforts for the past 25 years have been a tremendous benefit to the NBA and its members. I have particularly benefited from working with her in planning and arranging the NBA Law Day luncheons for the past 23 years for which she has attended to every detail in planning the events. It is not an overstatement to say that Traci is primarily responsible for the success of the NBA Law Day luncheons.”
Judge Frank Clement, Court of Appeals of Tennessee, Middle Section
“One of my fondest memories of Traci dates back to January 2022, right in the middle of the pandemic. We were organizing the Damali Booker Job Fair, and since most people were still avoiding in-person meetings, we decided to meet up at Famous Dave’s for our planning session. Being a weekday afternoon during COVID, we had the entire restaurant to ourselves. We sat there for hours, bonding over catfish fingers while pairing the students for interviews. I had known and loved Traci for years before this, but I really felt like she became a friend that day.”
Tabitha Robinson, NES
Left: A young Traci Hollandsworth poses for a photo in the newspaper, reporting the Nashville Bar Association's move to a new building location. Right: Traci and NBA President, Bahar Azhdari pose, showcasing an award presented at the August 2024 Board meeting, at which Traci was recognized for her 25 years of service to the Nashville Bar Association.
“I have had the amazing pleasure of knowing and working with Traci Hollandsworth for as long as I can remember. Traci has always been a joy to work with and literally has been my NBA ‘Savior’! Whenever it’s time to register for an event or pay my dues, I always get a nice email from Traci just as a reminder. I can’t tell you how many times I have called Traci after a deadline has passed, and she has ALWAYS taken care to sign me up! At every event, Traci has made everyone feel comfortable! Her smile and welcoming way has been a mainstay to NBA. As we enter any event, she’s always there and ready to hand out nametags and anything we need! I am so grateful to have met Traci and I am glad to consider her a friend!
Congratulations on 25 years!!"
Judge
Sheila D.J. Calloway, Juvenile Court, Davidson County
“Traci is so much to so many people at the NBA: friend, planner, organizer, scheduler, and gentle
reminder of deadlines. She is the keeper of NBA knowledge and lore. She knows everyone, and she is beloved by everyone. Find any member at any event, and they will have a story of how Traci has impacted their lives – either personally or professionally. She is the embodiment of what it means to live our culture, and she is always there with a smile, a hug, or – for better or worse – the truth. I believe people join the NBA because of Traci, and they stay because of her. She makes members feel seen, heard, and acknowledged. She is creative and thinks outside the box for our events, and she has made a significant impact on and contribution to the NBA. Traci is such an integral part of the organization that I think she is synonymous with it.
Her insights and friendship have been invaluable to me over the years and none more so than one year. I am honored to have been able to work with Traci as President of the NBA, and I hope to continue to see her shine with the NBA.”
Bahar Azhdari, NBA President, Brookdale Senior Living
We commend Traci and thank her for the memories made and those yet to come.
Congratulations on an incredible 25 years! n
What about Bob? When Interpreting Local Government Actions, Keep Robert’s Rules in Mind
Candi Henry serves as Chief Legal Counsel for the Greater Nashville Regional Council, which means she spends an inordinate amount of time misspelling both counsel and council. GNRC is a governmental entity comprising 13 counties and more than 50 cities in upper Middle Tennessee.
For most local government bodies in Tennessee, there is no requirement to adopt bylaws. Given the practicalities of administering a governing body, however, along with the statutory mandate in some cases to adopt rules or procedures for business, most local government bodies find that bylaws or other operating procedures are essential. And ubiquitous among bylaws is a phrase that reads something like “Meetings shall be conducted in accordance with the then-current edition of Robert’s Rules of Order, Newly Revised.” It is no surprise, then, that this occasionally results in litigation over whether and how adherence to Robert’s Rules can affect the validity of government action.
Tennessee’s appellate courts have discussed Robert’s Rules more than a dozen times over the last 50 years. Here is your cheat sheet to the state’s Robert’s Rules jurisprudence for the next time someone assumes that just because you’re a lawyer you know the order of precedence of a motion to limit debate (and whether that motion itself is debatable).
Are You 67% Sure You Need
a “Two-thirds”
Vote?
Consider these two sentences:
“The measure must be adopted by a two-thirds vote of the local legislative body.”
“The measure must be adopted by the local legislative body via a two-thirds vote.”
Do they mean the same thing? In 1958, the Tennessee Supreme Court consulted Robert’s Rules and determined they do not.
In State ex. rel Doyle v. Torrence, the court was faced with determining what was meant by the language in Article.11, § 9 of the Tennessee Constitution requiring “approval by a two-thirds vote of the local legislative body of the municipality or county.” 1 The first authority to which it looked was the procedural rules chosen by
the body that drafted the law. The court pointed out that even the delegates to the Limited Constitutional Convention who drafted the clause could not agree that its meaning was plain. However, the delegates had adopted Robert’s Rules of Order. The Rules provided that a “two-thirds vote” means two-thirds of the votes cast, but this is distinguishable from both “two-thirds of the members present” and “two-thirds of the members.” The court determined that the phrase in the Constitution was most akin to “two-thirds of the members” as described the Rules.2 And, while the court also relied on other authorities, it was Robert’s Rules that provided the first and clearest guidance on the meaning of the phrase as applied to the deliberations of local governing bodies.
Turning Tables
It is not uncommon for a deliberative body to defer action. The impact of a deferral can vary widely, however, and both the requirements and effects of Robert’s Rules as well as the interpretation of Tennessee’s courts should be kept in mind.
As an initial matter, it is important to note that laying a matter on the table is not intended to have the same effect as a postponement consideration of an issue. Under the Rules, “a question is supposed to be laid on the table only temporarily with the expectation of its consideration being resumed after the disposal of the interrupting question, or at a more convenient season.”3 A motion to lay a matter on the table is not subject to debate and must be voted on immediately. It also may not be reconsidered. Additionally, the motion may not be qualified, meaning, for example, that it is improper to say “I move we lay the matter on the table until our next meeting.” Such a proposal is actually a motion to postpone, and a motion to postpone is a debatable motion.4
Robert’s Rules provide that a matter that has been laid on the table cannot be addressed again until there is action taken to remove it from the table. And if the matter is not lifted from the table within a specified amount of time, the ability of the matter to be considered terminates. The Rules acknowledge that this imbues a motion to table with a dangerous amount of power, as it can have the effect of suppressing a question rather than allowing it to be subject to a fair deliberative process.5
The Tennessee Supreme Court has grappled with the potential ambiguity involved in a motion to table brought under Robert’s Rules 6 The court determined that, generally, the motion has the effect of being a continuance. This means, in most cases, it cannot be considered a final action or order, and the action is not subject to writ of certiorari for review.7
Unfortunately, sometimes the general rule gets tossed out the window, and the exact opposite applies. Thus, the pronouncement from the Tennessee Supreme Court that a motion to table “can operate as a final order” if, for example, a board “needlessly prolongs” consideration of a matter or uses the act of tabling in a manner that evinces a focus on matters extraneous to the issue and essentially makes pursuit through administrative channels futile. In these instances, courts will allow a writ of certiorari to review administrative action.8
Where “tabling” is concerned, then, both Robert’s Rules and the Tennessee Court of Appeals agree that the power to regulate is the power to destroy, and a fact-specific determination will be necessary to
determine the effect of the action.
All in Favor of Abstaining Say No?
While members of a deliberative body generally have the right to abstain on any vote, it is inaccurate to presume that an abstention does not have the effect of a vote. Robert’s Rules inform every member that they have a duty to express their opinion on issues via vote.9 And the Tennessee Court of Appeals has looked to this duty when evaluating the acts of a board.
"...while the court also relied on other authorities, it was Robert’s Rules that provided the first and clearest guidance on the meaning of the phrase as applied to the deliberations of local governing bodies."
The court describes an abstention this way:
When a board member chooses to abstain from a vote, he creates a peculiar situation. One who abstains knows that he might as well have voted for the prevailing side, but for some reason chooses to keep his decision out of the public record. […] [B]oard members realize that an abstention is essentially a vote for the prevailing side… 10 Accordingly, the court determined that, in its examination of whether an administrative body acted illegally, arbitrarily, or fraudulently, it considers an abstention as a vote in favor of the
prevailing party below.11
The Rules Need Not Apply?
While a deliberative body may adopt Robert’s Rules, and the Rules might forbid an action, this does not mean that the Rules control where other legal authority applies. Of course, defining where legal authority ends of the parameters of Robert’s Rules begins is not that easy.
For example, the Rules provide that reconsideration of a matter may take place only on the day of the original vote. Further, while the Rules allow bodies to entertain motions to rescind actions taken at prior meetings, a vote cannot be rescinded if the body has taken action that “is in the nature of a contract.” 12 The Court of Appeals has ruled, however, that the prohibitions on reconsideration and recession votes do not operate to prohibit a board from reconsidering its actions when it acts in a quasi-judicial capacity so long as it still has jurisdiction regarding the question.13 This has (continued on page 24)
What About Bob? (cont.)
been phrased as a determination that "in the absence of some legislative restriction, administrative agencies have the inherent power to reopen or to modify and to rehear orders that have been entered." 14
Robert’s Rules cannot constrict a government body’s legal authority, but they also can’t expand it. Indeed, where “reconsideration” is concerned, a statutory prohibition against reconsideration will prohibit reconsideration despite the Rules.15 The same is true when there are statutory procedures for appeals; an otherwise proper rehearing under the Rules will exceed the authority of administrative body.16
Silence Is Golden
UNANIMOUS CONSENT
Finally, recall that, just as a stipulation will prohibit evidence regarding the underlying facts, and failure to contemporaneously object can waive an issue, any irregularity in deliberative procedure will be viewed in context. As Robert’s Rules phrases it, “By general, or unanimous, or
silent, consent the assembly can do business with little regard for the rules of procedure…” 17
So, if you find yourself sitting in a board meeting wondering if what just happened was procedurally correct, just refer to the rule regarding “general, or unanimous, or, silent, consent,” and, Bob’s your uncle, you’ve just mastered Robert’s Rules n
Footnotes
1 State ex rel. Doyle v. Torrence, 310 S.W.2d 425 (Tenn. 1958).
2 Id.
3 Henry R. Robert, Robert’s Rules of Order Revised, Fourth Edition, Art. VI, § 35 (1915) (Robert’s Rules Online). Available at http:// www.rulesonline.com/rror-06.htm#35 For the purposes of this article, your author is citing to the Revised, Fourth Edition which is freely available online. The substance of the rule and commentary is unchanged in the current version of the Rules, although the quotation here is not the same. See Henry R. Robert, Robert’s Rules of Order Newly Revised (Sarah Corbin Robert et. al. eds., 12th Edition 2020)).
5 “There is a great temptation to make an improper use of [the motion], and lay questions on the table for the purpose of instantly suppressing them by a majority vote, instead of using the previous question, the legitimate motion to bring the assembly to an immediate vote. The fundamental principles of parliamentary law require a twothirds vote for every motion that suppresses a main question for the session without free debate. The motion to lay on the table being undebatable, and requiring only a majority vote, and having the highest rank of all subsidiary motions, is in direct conflict with these principles, if used to suppress a
question.” Robert’s Rules Online, Art. V, §28.
6 The motion is properly “to lay [a matter] on the table.” This does not stop people from using table as a verb.
7 McCarter v. Goddard, 609 S.W.2d 505, 507 (Tenn. 1980).
8 Id.
9 Hoover, Inc. v. Metro Bd. of Zoning Appeals, 924 S.W.2d 900, 906 (Tenn. Ct. App. 1996) (quoting Henry M. Robert, Robert's Rules of Order Revised, § 46, at p.193 (1971)).
13 See Ferguson v. Metro. Emples. Benefits Bd. of the Metro. Gov't, 1985 Tenn. App. LEXIS 3067, at *8 (Tenn. Ct. App. Aug. 1, 1985). Note that the Ferguson court left open the possibility that a provision in the bylaws impliedly granted the power to reconsider, and ultimately the court concluded that it was either the inherent authority under law or the bylaws that allowed the reconsideration. However, in Irene Neighborhood Ass'n v. Quality Life, LLC, No. W2001-00474-COA-R3-CV, 2002 Tenn. App. LEXIS 373, at *20 (Tenn. Ct. App. May 24, 2002), the Court of Appeals cited Ferguson and concluded that it was the quasi-judicial authority of the Board at issue that permitted the reconsideration.
15 Methodist Healthcare-Jackson Hosp. v. Jackson-Madison Cty. Gen. Hosp. Dist., 129 S.W.3d 57, 69 (Tenn. Ct. App. 2003).
16 See Id.
17 Robert’s Rules Online, Art. VII, § 48, http:// www.rulesonline.com/rror-08.htm See also Saylors v. Jackson, 575 S.W.2d 264, 267 (Tenn. 1978).
Capitol Notes
Peggy Sue, the Beagle Hound is fond of the classic 1957 Buddy Holly song. When hunting legislative news or biscuits, she is hard to contact.
“That’s a bigger pile of money than a show dog could jump over.”
Four Incumbents Defeated. The August 1 primary election saw four legislative incumbents defeated, two in the senate and two in the house. East Tennessee saw those two Senate defeats with Education Committee Chair Jon Lundberg of Bristol losing to Bobby Harshbarger. This race was hotly contested and expensive. Mr. Harshbarger is the son of U.S. House Member Diana Harshbarger, and he received the endorsement of former President Donald Trump. Mr. Harshbarger faces only token opposition in the November general election. Frank Niceley of Strawberry Plains was defeated by Claiborne County’s Jess Seal. School vouchers was a significant issue, and significant independent piles of money late in the campaign may have caught Niceley by surprise. Mr. Seal will face Democrat R. E. Ellison in November. In the House, two committee chairs were defeated. In the House, Richard Scarbrough, a former Clinton police chief, defeated 14year incumbent John Ragan, both of Anderson County. Representative Ragan has served as Chair of the House Government Operations Committee. Mr. Scarbrough will face Democrat Anne Backus in November. Most surprisingly, Michele Reneau defeated 10-year House veteran and Finance Ways & Means Committee Chair Patsy Hazlewood by 137 votes in a hotly contested primary election in Hamilton County. Ms. Reneau will face Democrat Kathy Lennon in November.
Closer to Home. Here in Davidson County, State Representative Darren Jernigan decided to call in the dogs and go to work for Mayor Freddie O’Connell as the Mayor’s legislative liaison. The Mayor’s gain is our collective loss, and we will miss Darren’s calm manner in a heated legislative environment; he has served us well. The Democratic primary race to fill Jernigan’s
District 60 seat saw Shaundelle Brooks defeat Tyler Brasher by around 350 votes out of 4,800 votes cast. Ms. Brooks faces Chad Bobo, the winner of the Republican primary in November. District 60 tends a bit purple, so this race will probably be spicy.
Tennessee is the Worst. Tennesseans are not good to vote. We do better in the presidential elections every four years with 68% of Tennesseans voting in the 2020 November election. Not so much in any of the other elections. According to the Massachusetts Institute of Technology’s Election Performance Index, after the 2022 elections, Tennessee is 51st among the states and the District of Columbia. In August 2024, we did little to change those rankings here in Davidson County when a little more than 13% of the county voted. Couple that data point with our state voter registration rate of only 80%, and you end up with a super minority of voters electing a super majority of our 132 state legislative officials. We can and must do better.
Calendar Notes.
September 2September 26October 7 -
October 16-31 -
November 5 -
November 28-29Labor Day holiday
NBA member picnic
Voter Registration deadline for the November election
Early Voting period for the November 5 election
State & federal general election
Thanksgiving holidays n
Photo by Adrienne Bennett Cluff
Meet Us at the Bar
The Orange Counsel
Expertly Refreshing
Ingredients
Orange Juice
Ginger Beer
Basil Simple Syrup
Basil Leaves
Lime Juice
Directions
To make the basil simple syrup:
Combine 1 cup sugar and 1 cup water into a small saucepan. Bring the contents to a simmer, and then turn off the heat. submerge 1 cup fresh basil leaves, and let sit for 30 minutes. It's a very mild flavor in the end, but allow for more or less infusion depending on the strength of flavor you're looking for. Once finished, strain the mixture to remove the leaves.
To make the drink:
Muddle fresh basil in the bottom of your glass. Then add ice.
Add about 1/2 tablespoon of basil symple syrup.
Fill the glass halfway with fresh orange juice, then fill to the top with ginger beer. Finish with a squeeze of lime, stir, and enjoy.
Note: If including a spirit of choice, add after the Basil Simple Syrup. n
barBites | Heath Bar Cookies
Molly McCue is an Associate in Burr & Forman’s Corporate & Tax Practice Group where she has experience drafting documents for mergers and acquisitions and business formations. Molly earned her J.D. from Vanderbilt University Law School.
Makes 44 Cookies
Ingredients
2 sticks butter
1 bag (8 ounces) Heath
English Toffee Bits
1/2 cup chopped walnuts
2 1/2 cups all-purpose flour
1 teaspoon salt
Directions
1 teaspoon baking soda
3/4 cup brown sugar, light or dark
3/4 cup granulated sugar
1 teaspoon vanilla
2 large eggs
In a medium bowl, whisk together the flour, salt, and baking soda.
Mix in the Heath English Toffee Bits and walnuts.
In a separate large bowl, beat together the butter, brown sugar, white sugar, and vanilla. Then add the eggs, one at a time, mixing between.
Slowly mix in the flour mixture from the medium bowl into the large bowl until everything is incorporated.
Chill the dough for an hour.
Preheat oven to 350 F°.
Line cookie sheets with parchment paper and add 1-inch balls of cookie dough, leaving room for the cookies to spread while baking.
Bake at 350° for 11-13 minutes, until the edges begin to brown. n
How Employers Can Prepare for an ICE Visit
Victoria Gentry is the Managing Attorney of The Immigration Group, P.C. She counsels clients of all sizes, from startups to Fortune 100 companies, in on business-related immigration matters in the IT, Engineering, Finance, Pharmacy, and Insurance industries.
In the current political climate, all employers from Fortune 100 companies to start-ups should know how to prepare for a visit from U.S. Immigration and Customs Enforcement (“ICE”). From April 2018 to August 2019, ICE worksite raids increased in frequency and in number of arrests over time,1 with one of the largest ICE raids in U.S. history occurring in Grainger County, Tennessee. Some of the raids were so significant that Congressional delegations visited the locations of these raids to inspect their impact and aftermath on local businesses and communities.2 Moreover, the form I-9 employment eligibility verification process changed in 2023 as to how it relates to verification of remote employees, which can lead to costly fines for even the most whitecollar employers. With immigration law sitting at the forefront of the upcoming November 2024 presidential election, employers should be equipped with a baseline knowledge of the two types of ICE worksite visits.
Type 1: ICE Raid
ICE raids occur when ICE agents visit a worksite without warning as part of investigating an employer. These investigations are more likely to have ICE officials with uniforms saying “Police” or “Federal Agent.” They may carry guns.
Sometimes local police officers go with ICE agents on ICE raids.3 There are two lawful models of how local police can accompany ICE agents, including the “jail enforcement” model and the “warrant service officer” model. When using the jail enforcement model, deputized officers may attempt to question noncitizens who have been arrested on state or local charges regarding their immigration status and may place immigration detainers on those thought to be
subject to removal. When using the warrant service officer (WSO) model, ICE certifies state and local law enforcement officers to execute ICE administrative warrants. Because they are certified by ICE, these officers are permitted to perform the arrest functions of an immigration officer within the law enforcement agency’s jails and/or correctional facilities. The WSO model does not authorize local law enforcement officers to interrogate alleged noncitizens about their immigration status.4
To prepare for the possibility of an ICE raid, employers should know the rights of the business and the rights of its employees. ICE officials are not permitted to enter a private area of a business unless they have permission from a company representative to enter or a valid judicial search or arrest warrant signed by a judge.5 ICE agents rarely have judicial warrants. A judicial warrant must say “U.S. District Court” or a state court at the top.
All employees should know the plan before the ICE visit occurs, and employers should select a point person to speak with ICE agents. No one else should speak with them. All employees should know the phrase, “I can’t give you permission to enter. You must talk to my employer.” This sentence should be followed by silence. The point person should ask whether the visit is an ICE raid or an I-9 audit and ask if the agents have a judicial warrant. If the ICE agents claim to have a warrant, the point person should make a copy and analyze the warrant to see if it is signed by a judge from a Federal or state court. Sometimes, ICE agents try to use an administrative warrant to enter. But an administrative warrant does not allow agents to enter private areas without the company’s permission.6 Administrative warrants are not from a court but are merely forms
from Department of Homeland Security.7 If the warrant is not from a Federal or state court and signed by a judge, the employer can tell the ICE agents to leave the premises.
"To prepare for the possibility of an ICE raid, employers should know the rights of the business and the rights of its employees."
If the employer decides that the warrant is from a state or Federal judge, ICE will enter the premises. The employer may request that ICE provide proof of identity including names/ID badges. The employer may write down the name and employee numbers of the ICE agents and may request a photocopy of the official’s ID card or badge. ICE agents during ICE raids are usually looking for a particular person or people. There may have been a report from an individual providing a “tip” to ICE that persons without work authorization or lawful status are employed at this worksite. The ICE officials may try to speak with present individuals, ask questions, and, occasionally, arrest individuals. The point person should review the warrant to make sure that the officials are only searching for the limited items/ persons mentioned in the warrant. Employers are not required to “help” ICE agents perform their job during a raid. Employers do not have to help ICE sort individuals by ethnicity or country of birth. It is acceptable to film or record the encounter on a phone or other device. When an ICE agent speaks
to an individual, the individual best protects their rights by responding only with, “I need to speak with my attorney.” If the official arrests any workers, the employer should ask where they are being taken and for any contact information about the location (whether it is a jail or immigration authority, etc.).
Type 2: Form I-9 Audit
A Form I-9 audit is when ICE agents come to a business to see if the business followed the rules for Form I-9. Form I-9 confirms a worker’s identity and authorization to work in the U.S.8
An I-9 Audit varies greatly from an ICE raid. A warrant is not required for an I-9 audit. During the initial worksite visit, ICE agents will issue a Notice of Inspection three days before the official audit will take place. The Notice of Inspection will require the employer to send the requested items to a certain location or have the ICE agent review them at the worksite. If a Notice of Inspection is given, it should be given immediately to the company’s designated point person to begin preparing the request.
When the ICE agents return in three days, the employer may request that ICE provide proof of identity including names/ID badges. The employer may write down the name and employee numbers of the ICE agents and may request a photocopy of the official’s ID card or badge. The employer should request a written notice explaining the next steps and how to follow up with the authorities, including names, phone numbers and emails.
Once the ICE agents have reviewed the I-9 documents and,
if they determine that there may be I-9 violations, the employer may face civil and criminal penalties and fines.9 ICE may find that some employees are not authorized to work and, if so, ICE will give the employer ten days to provide valid work authorization for these employees. The employer may ask ICE for more time to comply with the request. If the employer can’t provide the documents by that time, the employer will be told to end their employment or face fines by continuing to employ them.10 The employer must notify these employees right away.
No matter what the upcoming presidential election holds, employers who want to prepare for a visit from ICE should speak with an experienced immigration attorney and make a plan for how to handle these visits. n
Footnotes
1 See National Immigration Law Center, Worksite Immigration Raids, January 2020, https://www.nilc.org/ issues/workersrights/worksite-raids/
2 Immigration Raids: Impacts and Aftermath on Mississippi Communities, House Committee Meeting, House Homeland Security Committee, 116 Congress, 2019.
3 8 U.S. Code § 12(287)(g)
4 Id.
5 ICE Enforcement and Removal Operations, Fugitive Operations Handbook, July 23, 2010.
6 Id.
7 See https://www.ice.gov/ sites/default/files/documents/ Document/2017/I-200_SAMPLE.PDF
8 8 CFR § 274a.2
9 8 U.S.C. § 1324a(a)(1)
10 8 U.S.C. § 1324a(a)(1)-(2)
FTC’s Rule Banning Non-Compete Agreements
Summary,
What it Means for the Employers, and the Uncertain Future of the Rule
Maja A. Hartzell is an associate in the firm’s Labor & Employment practice group, where her practice concentrates on representing employers in a range of labor and employment law matters, such as defending against claims of discrimination, harassment, wage and hour, retaliation, and other employment-related claims before federal and state courts and other administrative entities. With this experience, she has defended clients against claims arising under Title VII of the Civil Rights Act of 1964, the Tennessee Human Rights Act, the Florida Civil Rights Act, the Americans with Disabilities Act, and more.
Background
On July 9, 2021, President Biden signed an executive order, designed to promote competition in the U.S. economy, that included a recommendation to the Federal Trade Commission (FTC) to consider “exercis[ing] the FTC’s statutory rulemaking authority … to curtail the unfair use of non-compete clauses … that may unfairly limit worker mobility.”
Although it was anticipated that the rule would ban non-compete agreements for lower wage earners, as opposed to “high-paid executives,” that is not the direction the FTC took. A year and a half later, on January 5, 2023, the FTC issued a notice of proposed rulemaking that was much broader than forecasted, essentially prohibiting the use of nearly all non-compete clauses, regardless of one’s occupation or income.
On May 7, 2024, the FTC published a final rule, effectively banning all non-compete agreements between employers and “workers,” with certain limited exceptions as explained in more detail below, and requiring employers to rescind previously entered non-compete provisions and inform workers that their non-compete provisions are no longer in effect and will not be enforced. Unsurprisingly, the FTC’s final rule is currently being challenged in three lawsuits, and its fate remains unknown. The rule is set to take effect by September 4, 2024, if not stayed by the courts.
The Rule
Here are the highlights of the final rule:
• Under the final rule, it will be unlawful for a forprofit employer to (i) enter into or attempt to enter into a non-compete clause; (ii) to enforce or attempt to
enforce a non-compete clause; or (iii) to represent to a “worker” that they are subject to a non-compete clause.
• A “worker” is defined as “a natural person who works or who previously worked, whether paid or unpaid, without regard to the worker's title or the worker's status under any other State or Federal laws, including, but not limited to, whether the worker is an employee, independent contractor, extern, intern, volunteer, apprentice, or a sole proprietor who provides a service to a person.” (emphasis added) This definition will include almost anyone, from a high-ranking C-suite executives to regular mail room employees.
"Although it was anticipated that the rule would ban non-compete agreements for lower wage earners, as opposed to 'highpaid executives,' that is not the direction the FTC took."
• For “workers,” the final rule will be retroactive and will invalidate all non-competes that existed prior to the rule.
• Same restrictions will apply to non-compete clauses entered into with “senior executives,” except that the restrictions will not apply retroactively. A “senior executive” will include a worker who (1) was in a policy-making position, and (2) received from a person for the employment a total annual compensation of at least $151,164 in the preceding year. Accordingly, non-compete agreements with senior executives that preexist the rule’s effective date will remain in place, but any non-compete agreements entered into
after September 4, 2024, will be prohibited.
• A “non-compete clause” is defined as a “term or condition of employment” that prohibits, penalizes, or functions to prevent a worker from doing either of the following:
o Seeking or accepting work in the U.S. with a different person where such work would begin after the conclusion of the employment that includes the term or condition; or
o Operating a business in the U.S. after the conclusion of the employment that includes the term or condition.
• Notably, the final rule specifies that a term or condition of employment includes a contractual term or workplace policy, whether written or oral, that may prevent someone from seeking or accepting work somewhere else.
• This means that although the final rule does not outright prohibit non-disclosure or non-solicitation clauses, or provisions that require workers to repay training costs, employers should scrutinize such clauses to ensure they are not so broad and sweeping as to essentially function as an unlawful non-compete clause.
• As mentioned above, the final rule also requires employers to provide “clear and conspicuous notice” to the worker, by the effective date of the final rule, that the worker’s non-compete clause will not be, and cannot legally be, enforced against the worker. The final rule provides a model language that can be used by employers to
give notice to their workers.
• The requirements of the final rule will not apply to a noncompete clause entered into by a person as part of a bone fide sale of a business.
• Also of note, the final rule will not apply to causes of action related to non-compete clauses that accrued prior to the effective date
Challenges to the Rule
The rule is currently being challenged in three separate federal lawsuits seeking, among other things, a temporary stay of the rule’s effective date. The main basis of the challenges is whether FTC possess the power to ban noncompetes. Because non-compete clauses are contractual, they have traditionally been governed by state law. The FTC’s regulation of non-compete agreements purports to preempt all state laws governing non-competes, which the challengers of the rule argue would constitute a significant expansion of the FTC’s power.
Of course, the courts so far are split on the issue. On July 3, 2024, a Texas federal court in Ryan, LLC v. Federal Trade Commission held that the FTC exceeded its statutory authority in adopting the rule and granted the plaintiff’s request for preliminary injunction to stay the effective date of the rule, but declined to enter a nationwide injunction and instead limited the scope of the injunction to the parties in the case. Not even three weeks later, a Pennsylvania federal court reached a contrasting conclusion in ATS Tree Services, LLC v. Federal Trade Commission, (continued on page 32)
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FTC’s Rule Banning Non-Compete Agreements (cont.)
denying plaintiff’s request for a preliminary injunction to stay the effective date of the rule and holding that the rule falls within the FTC’s rulemaking authority under the FTC Act.
A third challenge to the rule, Properties of the Villages, Inc. v. Federal Trade Commission, was filed in a federal court in Florida on June 21, 2024, where a Floridabased company is likewise asking the court to issue an injunction to stay the effective date of the final rule, also arguing – among other things – that the rule exceeds FTC’s statutory authority. The briefing on that motion is still ongoing (with a hearing on plaintiff’s motion for preliminary injunction set for August 14, 2024), but a decision is expected before the Final Rule effective date. Until – and if – a court stays the FTC rule’s effective date on a nationwide basis, the rule is set to go into effect on September 4, 2024. The Texas federal court indicated that it will issue a final ruling on the merits in Ryan on or before August 30, 2024, before the rule’s September 4, 2024, effective date.
Employer Considerations
Naturally, this leaves the employers with a burning question of “what do we do now?” The truth is, there is no good or bad answer to this question, because the future of the rule remains so uncertain. Employers may choose to prepare for the rule to become effective on September 4, 2024, by removing non-compete clauses from their agreements and carefully reviewing any other provisions of their contracts and policies to ensure they do not run afoul of the FTC’s final rule (i.e. they cannot be interpreted to function to prevent workers from seeking new employment). Employers may also want to prepare to issue the required notice under the final rule, and assess whether to pursue any existing breaches of non-compete agreements before the effective date. Or, employers may choose to simply wait and see what happens until September 4, 2024 (but at the very least be ready to issue the required notices by then). That being said, however, employers should continue to be mindful of the various state laws that come into play, and the increasing trend of the states to limit the use of restrictive covenants in certain situations. n
The NBA is offering exciting member benefits, including the new All-Access CLE Pass.
For $199, members may register for an unlimited number of any NBAproduced* seminars, both online and in-person throughout the membership year (November 1, 2024 through October 31, 2025**).
The All-Access CLE Pass is exclusive to NBA members only and available to purchase when renewing. For details and more information regarding the All-Access CLE Pass, contact our CLE Department at NBA_CLE@NashvilleBar.org
*Some exclusions for All-Access CLE Pass usage apply for special programming including but not limited to CLE Institutes, Master Series speakers, travel-related CLEs, and other seminars in which we partner with outside entities.
**The All-Access CLE Pass expires annually on October 31 and may not be used to register for seminars beyond that date.
Reserve Our Facilities
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Can You Name These People? Golden Oldies
Be the first person to email the correct answer to Adrienne. BennettCluff@Nashvillebar.org, and your name – along with the correct answer – will appear in the next issue.
Spring Golden Oldies
Congratulations to Charlie High of Charles A. High Law Office for correctly identifying the indivuals in last issue's photo! Individuals are listed from left to right: Marietta Shipley, John Tune, and Richard Marshall.
Education Law 101: The IDEA Act
Michael Braun is an experienced litigator. He has achieved success for clients in real estate litigation, administrative law, and personal injury law. Having honed his skills practicing agency law and certificate of need law, Michael also helps his clients navigate special education rights around the country. Michael’s practice includes lecturing advocacy organizations on the subject of autism and the law and representing students, parents, and associated therapists.
It comes as a surprise to many to learn that there is no federal Constitutional right to an education.1 And, until 1968, a local school superintendent could claim a child was uneducable and deny the child the right to attend public school.2 After a series of groundbreaking federal cases establishing and clarifying the rights of children with disabilities to an education, Congress passed the Education for All Handicap Act in 1970, which as amended is known today as the Individual with Disabilities Education Act (“IDEA”).3 The Act promises that a free and appropriate public education (FAPE) will be provided to children and youth with disabilities from preschool through secondary school. Today, depending on where you live, 10-20% of public school children have a “qualifying disability” under IDEA and receive the benefit of an Individualized Education Plan, referred to as an IEP.
IDEA, ADA, and Section 504 of the Rehabilitation Act
While IDEA provides children with disabilities some overlapping protections that can be found in other federal laws, it is important to keep in mind the distinctions among them. The Americans with Disabilities Act and Section 504 of the Rehabilitation Act are nondiscrimination laws that prohibit discrimination against the disabled. The ADA applies to every public educational institution because they are public entities4 and applies to almost all private schools because they are places of public accommodation.5 Section 504 applies to public and private educational institutions that “receive public assistance.”
IDEA, on the other hand, is not a nondiscrimination law but a grant program. States that choose to participate in IDEA6 receive funds to identify, evaluate,
and serve disabled children.7 And, if a state accepts IDEA funding, then IDEA will apply to all political subdivisions of the state that are involved in providing educational services to children with disabilities.8
It is important to keep in mind that a disability under IDEA does not necessarily constitute a disability under the ADA or Section 504. Many students will have overlapping protections under the statutes, but some will not.
"Today, depending on where you live, 10-20% of public school children have a “qualifying disability” under IDEA and receive the benefit of an Individualized Education Plan, referred to as an IEP."
The Individualized Education Program
The hallmark of the IDEA is its attempt to cure the lack of parental participation that occurred prior to its enactment. This is structured in two key ways: (1) parents are made mandatory members of teams that design an Individualized Education Program (IEP) for their child; and, (2) parents and students have due process protections to resolve disagreements surrounding their child’s educational needs.
The IEP is intended to be a comprehensive statement of the educational needs of the child with a disability and the specially designed instruction and related services to be employed to meet those needs. It provides the basic plan and goals for the student’s education over the academic year.9 The IEP is intended to tailor the education to the child, and the substance
of an IEP must be something different than the normal school curriculum and something more than a generic, one-size-fits-all program for children with special needs.10 In addition to academic subjects, the special education umbrella under IDEA can include physical education, vocational education, travel training, as well as related services like speechlanguage pathology.11
IEPs are created by teams that must include:
• the parents,
• at least one regular education teacher of the child (if the child participates in the regular education environment);
• the child’s special education teacher or provider;
• a representative of the public agency who: is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; is knowledgeable about the general education curriculum; and, is knowledgeable about the availability of resources of the local education agency;
• An individual who can interpret the instructional implications of evaluation results; this person may be another member of the IEP team other than a parent;
• At the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and
• Whenever appropriate, the child with a disability.12
Common Disputes under IDEA
Most parents seeking legal advice about their child’s conflict
with a school concerning the IEP process will ordinarily fall into one of three types of cases: identification/ evaluation; progress under the IEP; and inappropriate use of discipline.
Let’s look first at what is known as “Child Find.” Under IDEA, public schools have a legal affirmative duty to seek out and identify children that they suspect have a qualifying disability, and this includes a duty to provide clinical testing to evaluate the student.13
This ordinarily takes the form of a psychoeducational evaluation used to make a determination of a student’s eligibility for an IEP. While eligibility for services is an objective measure, as a practical matter, disputes often arise because of a school’s finite resources. Districts that find themselves needing to ration and prioritize resources sometimes exclude students whose needs are comparatively “less.”
Another point of friction occurs when students who have IEPs are not making satisfactory progress. For instance, a middle school student might have an IEP, but they are reading on a third-grade level. In these cases parents are challenging the design and implementation of the IEP. In its most defining decision of what constitutes the free, appropriate public education (“FAPE”) owed to qualified students, in 2017 the Supreme Court declared in Endrew F. v. Douglas County School District RE-1 that schools must offer an IEP reasonably calculated to enable a child to make progress in light of his or her unique circumstances.14
The last common cohort of cases involves the overuse of discipline by school districts. In crafting
the IDEA Congress expressed its concern that school districts might find suspensions and expulsion as a substitute for addressing a student’s behavioral challenges in their IEP. Consequently, the IDEA is embedded with a discipline appeal mechanism for disabled students referred to as a manifestation determination. This process prohibits long term discipline of disabled students where their offensive conduct is determined to be a manifestation of their disability. In such cases, the statute is self-executing and requires the school to provide a behavioral assessment and plan.15
Dispute Resolution
While the IDEA’s procedural safeguards provides multiple mechanisms for dispute resolution, as a practical matter an attorney can discard utilizing the IEP meeting process or mediation. However, a practitioner must take care to ensure that any exhaustion of remedies requirement has been met. The most valuable option is often a Due Process hearing where the dispute is determined by a state hearing officer provided by the state’s department of education. In Tennessee, this is an Administrative Law Judge.
If a parent is dissatisfied with the outcome of the education agency’s decision the IDEA permits the filing of an administrative appeal to state court or federal court.16 Almost always the choice is federal court so as to utilize the IDEA’s fee-shifting provisions. And unlike other administrative appeals, the case is reviewed de novo and can involve supplementing the record (continued on page 36)
Education Law 101 (cont.)
with additional evidence. Because of the IDEA’s exhaustion requirement, with limited exceptions, this is also the first time the practitioner will formally plead any non-IDEA claims (for example, tort claims; claims of discrimination under other statutes; or systemic claims).17
Access to Justice
Woven in the background of understanding and living with a myriad of complicated disorders (autism, dyslexia, emotional disturbance), parents of disabled children also face overwhelming costs associated with the disability. Parents of children with disabilities are less likely to be employed and children with disabilities are less likely to achieve full-time employment; and, caring for a child with a disability will result in lower labor income.18 The parents themselves may also have their own disabilities. A dispute with a local school system with enormous resources that employs numerous
experts can seem insurmountable, causing parents to give up or disenroll from the guaranteed free education that nondisabled children receive. Congress’ inclusion of the IDEA’s feeshifting provision can incentivize an attorney seeking to aid a vulnerable population and gain experience in administrative law, federal practice, and an evolving area of law.
Footnotes
1 Heyne v. Metro. Nashville Bd. of Pub. Educ., 380 S.W.3d 715, 731-32 (Tenn. 2012)(citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35-36 (1973)).
2 How Autism is Reshaping Special Education: The Unbundling of IDEA, Mark Claypool and John McLaughlin, Roman & Littlefield (2017)
3 For an overview of the case law developing educational rights for students with disabilities and the history of IDEA, see 4 James A. Rapp, Education Law § 10C.01 (2024).
4 42 U.S.C. § 12131(1).
5 42 U.S.C. § 12182, § 12181(7)(J).
6 All states and the District of Columbia do, as well as the Bureau of Indian education and eight U.S. insular areas. “Idea by State” U.S. Dept. of Education https://
sites.ed.gov/idea/states/
7 20 U.S.C. § 1412. See also 34 C.F.R. § 300.2.
8 34 C.F.R. § 300.2(b).
9 4 Education Law § 10C.06 (internal citations and quotations omitted).
10 Id (internal citations and quotations omitted).
11 Id.
12 20 U.S.C. § 1414(d)(1)(B). See also 34 C.F.R. § 300.321.
13 34 CFR §300.111
14 Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386 (2017).
15 20 USC §1415(k)
16 20 USC §1415 (l)(i)
17 Last year’s Supreme Court case, Perez v. Sturgis Public Schools, 598 U.S. _142 (2023) opened the door to skipping the exhaustion requirement where the relief sought was not educational benefits, but instead monetary damages for the alleged loss.
18 Extra Costs of Living with a disability: A review and agenda for research Disability and Health Journal
10 (2017) 475-484
Continued Legal Education (CLE)
The NBA is your source for cutting edge, quality continuing education. We provide more than 600 hours of live and distance learning programming while offering our members discounted rates. For a complete calendar, full seminar agendas, and registration, visit NashvilleBar.org/CLE
September 12 | Hybrid Seminar
Appellate Practice Section CLE
OVERVIEW
Join us for a dynamic seminar featuring distinguished speakers and compelling topics tailored for appellate practitioners. Delve into the realm of extraordinary appeals under Rules 9 and 10 of the Tennessee Rules of Appellate Procedure with insights from Judge McBrayer. Following this, Justice Campbell will offer invaluable guidance on Applications for Permission to Appeal under Rule 11, providing practitioners with essential strategies for navigating this critical aspect of appellate practice. Concluding our seminar, Edmund Sauer will share expert insights on Becoming a Valued Member of an Appellate Team, offering practical tips for enhancing brief writing skills and mastering the art of oral argument. Don't miss this exceptional opportunity to elevate your appellate practice and network with fellow legal professionals.
PRESENTERS
Judge W. Neal McBrayer, Tennessee Court of Appeals
Justice Sarah K. Campbell, Tennessee Supreme Court
Edmund Sauer, Tennessee Supreme Court
NBA On-Demand Seminars Personalized Learning on Your Schedule
Did you know?
On-demand CLEs are just a click away through NashvilleBar.org/DistanceLearning! Choose from the following relevant and focused topics.
Continued Legal Education (CLE)
September 20 | Live Seminar
Diversity Summit 2024: Navigating Diversity After Students for Fair Admissions
Sponsored by Leif Cabraser Heimann & Bernstein
OVERVIEW
Join the NBA Diversity Committee and your colleagues in a full day of learning, spirited discussion, and inspiration at this year’s biannual NBA Diversity Summit, held at the beautiful Belmont College of Law.
Since the 2022 Summit, the nation and our Nashville community has experienced a seismic shift on the DEI front, due to SCOTUS’s landmark ruling in Students for Fair Admissions (“SFA”), striking down affirmative action in college admissions. SFA’s effects were not only felt in education but all sectors of our economy and society.
This year’s Diversity Summit will feature numerous Nashville and regional leaders, in the public, private, and nonprofit sectors, who will share their diverse experiences and valuable insights.
Topics covered include service on boards, AI and access to justice, intersectionality, multiculturalism, wellness, and concrete action plans. The program also includes plenty of opportunities to network between sessions and over lunch.
DETAILS
8:00am - 5:00pm
PRESENTERS
Keynote speaker: The Honorable Bernice B. Donald, Burch, Porter & Johnson
Opening plenary speaker: Yesha Yadav, Vanderbilt Law School
Alvaro Manrique Barrenechea, Vanderbilt Law School
Chelsie Bennett, GlobalLogic
Mary H. Beard, HCA Healthcare
Amy Bryant, Nashville Office of Conservatorship Management
Supporters: Adams and Reese, LLP, Butler Snow, LLP, Dickinson Wright, Holland & Knight, Legal Aid, Nashville Electric Service,
Sponsors make this event possible. To learn more about the levels of sponsorship and perks, Contact Traci.Hollandsworth@NashvilleBar.org
$99
$99
* Pending Accreditation
Continued Legal Education (CLE)
September 24 | Hybrid Seminar
Environmental Committee CLE: Endangered Species
OVERVIEW
Embark on a comprehensive exploration of the legal framework surrounding endangered and threatened species. This seminar offers a vital overview of the laws designed to protect these species and their habitats, providing attorneys with essential insights into spotting and addressing related legal issues. Participants will gain a nuanced understanding of key statutes such as the Endangered Species Act and relevant case law, equipping them with the knowledge needed to navigate complex regulatory landscapes. Moreover, our expert speakers will share practical tips and strategies for effectively handling legal matters pertaining to endangered and threatened species, empowering attorneys to advocate for environmental conservation while ensuring compliance with pertinent laws and regulations. Join us for this invaluable opportunity to enhance your expertise in this critical area of environmental law.
PRESENTER
Sara Samoray, Davey Resource Group
Bart Kempf, Bradley Peter Murrey, Tennessee Attorney General's Office
DETAILS Seminar 11:30pm - 1:00pm
Location . Bradley Offices & Zoom
* Pending Accreditation
October
1 | Hybrid Seminar
Government Practice Institue
Part 1
OVERVIEW
For more than 20 years, the NBA has provided government attorneys with exceptional CLE. We look forward to continuing to provide you with high-quality programs focused on government practice issues. These seminars will offer six hours of governmentspecific CLE programming.
This year, the Government Practice Section will host the October institute in person at the Tennessee State Library & Archives. We strongly encourage in-person attendance.
PRESENTER
For a complete agenda and presenter information, visit NashvilleBar.org/GovernmentInstitute.
DETAILS
8:00am - 4:30pm
.6.0 General
Location Tennessee State Library & Archives
* Pending Accreditation
Continued Legal Education (CLE)
October 23 | Live Seminar
Young Lawyers’ Lunch with Judges Series: Essential Practice Tips for Chancery
and Circuit Court
OVERVIEW
Lunch with the Judges – a series of CLEs aimed to help connect new attorneys with judges in their practice field.
In this seminar, Judge Joseph P. Binkley, Jr. and Chancellor Anne C. Martin will discuss practical litigation tips for young lawyers to successfully handle civil disputes, motion practice and courtroom etiquette, and effectively represent clients in Circuit and Chancery Courts. Lunch will be provided.
Don't miss this opportunity to gain valuable knowledge and expand your professional network with judges and other attorneys practicing in these areas! All are welcome to register. Lunch will be provided.
PRESENTERS
Judge Joseph P. Binkley, Jr., Davidson County Fifth Circuit Court
Chancellor Anne C. Martin, Davidson County Chancery Court Part II
DETAILS
Seminar 12:00pm - 1:00pm
Credit .1.0 General
Location Historic Metro Court House
* Pending Accreditation
November 22 | Live Seminar
Annual Ethics, Lies, and Videotape Part XXII
OVERVIEW
Don’t miss one of the NBA’s most popular ethics and professionalism programs! Past seminar participants have rated this seminar a “10.”
Join your colleagues in viewing scenes from movies to explore, analyze, and compare “reel” life with common ethical issues and the Rules of Professional Conduct. How many gavels will the movie receive? How many ethical violations can Hollywood exploit?
PRESENTERS
Hon. Barbara Holmes, United States District Court for the Middle District of Tennessee
Edward D. Lanquist, Jr., Baker Donelson
Hon. W. Neal McBrayer, Tennessee Court of Appeals
DETAILS
Seminar 1:00pm - 4:15pm
Credit .3.0 Dual
Location NBA Office
* Pending Accreditation
“I
Estate
June 10, 2024
Pride Happy Hour | June 18, 2024
Chancery Circuit Court & Federal Courts Happy
June 26, 2024
YLD & Diversity Committee Summer Break
July 11, 2024
11th Annual Brews for Backpacks | July 24, 2024
Hearsay | Honors & Awards, On the Move, Firm News
Honors & Awards
Bradley Arant Boult Cummings LLP is pleased to announce that Nashville partner Brooks R. Smith has been elected as a Fellow of the American College of Mortgage Attorneys (ACMA). The newly elected Fellows will be formally inducted into membership at ACMA’s 50th Anniversary Annual Meeting on September 19-21, 2024. Smith concentrates his practice on all aspects of real estate transactions, including borrower-side financings, joint ventures, and development projects on a national basis. He regularly works with developers and real estate professionals to structure transactions, compose entity formation documents, draft and negotiate contracts for sale, perform due diligence review, review and address title and survey issues, and finalize closings.
On the Move
Mary Neil Price, a seasoned attorney with over three decades of expertise is set to join Wood Stabell Law Group in June. She brings experience in mergers and acquisitions, banking and financial law, and corporate governance. With a robust background in the financial sector, she has the background to provide clients with unique insight into regulatory frameworks and intricate transactional matters, having represented large money-center institutions as well as community banks. Throughout her career, Price has navigated complex mergers and acquisitions, facilitated equity and debt transactions, ensured regulatory compliance, and provided legal counsel in various corporate settings, including as in-house general counsel and corporate secretary for a
regional multi-bank holding company.
The Tennessee Bar Foundation Board of Trustees announces the selection of John Murphy as its new Executive Director. Murphy brings a diverse professional background, including legal practice, nonprofit management, and public service to this role, including serving as the Senior Advisor for Economic Inclusion at the Metropolitan Government of Nashville & Davidson County.
Firm News
Managing Intellectual Property (Managing IP) magazine has named two Nashville attorneys from Stites & Harbison, PLLC to the 2024 “IP Stars” list. Alexandra MacKay to Copyright Stars and Trademark Stars, and Richard S. Myers, Jr. to Patent Stars. The star attorneys are nominated by their peers and in-house counsel. Managing IP recognizes the most highly regarded intellectual property attorneys in the U.S. Inclusion on the list is based on surveys, interviews and independent research conducted by Managing IP. “IP Stars” further separates honorees into the following categories: Copyright, Design, Patent, Trademark and Transactions Stars. Stites & Harbison has been recognized for Intellectual Property in Tennessee since the inception of the “IP Stars” list in 2013.
Wiseman Ashworth Trauger has added three associate attorneys. Among them are Matt Holman and Katie Koss Holman practices in the areas of healthcare liability defense, health
care law, mental health law, long term care defense, civil litigation and appellate law. He was previously in private practice on cases including criminal and family law, government defense, civil litigation and appellate practice. He is a 2021 graduate of the University of Tennessee College of Law, where he served as research editor for the Tennessee Journal of Business Law, the social chair for Tennessee’s Sports and Entertainment Law Society, and as a representative for the Christian Legal Society. Koss is a 2024 graduate of Loyola University School of Law. She was a Health Law Fellow and supported clients in a health justice clinic in Chicago while in law school. Prior to law school, she was a Registered Nurse working for Vanderbilt University Medical Center. She has led multiple teams and is certified as an ANCC Nurse Executive Advanced. She is an editor for the Certified Pediatric Emergency Nurse Review Manual and has worked with the American Nurses Credentialing Center in both the Pediatric Nursing Standard Setting Workgroup as well as an Item Writer for the Nurse Executive Advanced certification.
McGlinchey is proud to announce that the firm is relaunching its African American Affinity Group under a new identity: BOLD, McGlinchey’s Black Originators, Leaders, and Doers. BOLD is a network for McGlinchey’s African, African-American, Black, and Caribbean attorneys across the diaspora. The group’s mission is to foster an equitable and inclusive workplace for all, by spotlighting workplace issues unique to the community and working to affect meaningful change in the places where we live and work.
Puryear Law Group PLLC, widely recognized for its commercial litigation and creditors’ rights practice, has changed its name to Puryear
Pippenger & Cook PLLC to reflect the firm’s continued expansion and the leadership of its partners Andrew Pippenger and Charles Cook, according to Dan Puryear, founder. Puryear Pippenger & Cook has offices in Nashville and Chattanooga, Tennessee.
Bradley Arant Boult Cummings LLP is pleased to announce Scarlett Singleton Nokes as the new leader of the firm’s Government Enforcement and Investigations Practice Group and John P. Rodgers as the new leader of the firm’s Labor & Employment Practice Group. Both are partners in the firm’s Nashville office. Nokes draws upon her deep experience as a former federal prosecutor in Birmingham, Nashville, and Savannah to represent clients in a range of matters related to internal investigations, internal risk analysis, government investigations, whitecollar criminal defense, regulatory and compliance issues, civil litigation matters, and enforcement actions. She has extensive experience in Title IX and sexual assault investigations and sexual misconduct matters, as well as healthcare fraud. Rodgers helps employers solve their employment-related problems. He handles employment-related litigation and counsels clients on termination and disciplinary decisions, as well as issues related to the Americans with Disabilities Act (ADA), Fair Labor Standards Act (FLSA), and Family and Medical Leave Act (FMLA). He assists employers with their transactional needs, including drafting and negotiating employment agreements, including non-competition, non-solicitation agreements, and non-disclosure agreements. Mr. Rodgers also devotes substantial attention to ERISA litigation.
Lang Wiseman , a shareholder with the national law firm of Baker Donelson, has been named to the Tennessee Artificial Intelligence Advisory Council, and he will serve as chair of the council's Policy Subcommittee. Recently created by the Tennessee Artificial Intelligence Advisory Council Act, the council will provide a collaborative source of knowledge, expertise, and information sharing to advance the State of Tennessee's use of AI technologies in an ethical, adaptable, collaborative, and beneficial modality for all Tennesseans. The council will recommend and support the implementation of sound policies and strategies regarding AI use and adoption. Wiseman, who practices from Baker Donelson's offices in both Nashville and Memphis, provides strategic political, legal, and legislative advice in a wide range of industries, including manufacturing, health care, transportation, automotive, energy, real estate, and financial services, as well as educational institutions and local governments and economic development districts.
Fisher Phillips, an international labor and employment law firm representing employers, is pleased to announce that Christopher Bellamy and Marcia McShane have joined the firm as Partners in Nashville. Bellamy most recently served as the in-house head of US Litigation and Global Data Privacy for a Fortune 500 energy company. In that capacity, he managed a wide variety of matters ranging from securities and derivative lawsuits, complex litigation matters, contract disputes and personnel issues to matters involving government regulations, and tort claims. He also ensured the company’s compliance with global data privacy and related
regulatory requirements and was responsible for its data retention program. McShane has two decades of experience in private practice and was a partner at a national labor and employment firm where she defended management in complex legal claims at the administrative, trial, and appellate levels. During this time, she also worked with employers to proactively identify and avoid legal disputes through the development and implementation of extensive management training programs, audits, and best practices.
Seth Cline, of Collins Legal, PLC, has been promoted to Senior Partner at the firm. Cline’s area of practice and expertise focuses on land use/zoning, government relations, and real estate law. Additionally, he is an alumni of the Nashville Bar Foundation Leadership Forum; a member of the NBFLF Steering Committee; and serves as a Co-Chair for both the NBA Board: Community Outreach and NBA – YLD Board: Unhouse Committees.
Bahar Azhdari was recently promoted to Vice President, Compliance Officer for Brookedale Senior Living, Inc., where she implements, maintains, and provides direction for the ongoing, effective operation of Brookdale’s compliance program, including the development and review of necessary policies, programs, and procedures to support the same. Prior to this role, Bahar served as Associate General Counsel –Labor and Employment for Brookdale, where she provided advice and counsel on labor and employment issues and strategic initiatives, handled administrative matters, and managed litigation for the operating divisions she represented; Bahar also helped create and led the inclusion and diversity team. n
Local Solutions. Global Reach.
100% Club
Thank you for supporting your local bar association!
The Nashville Bar Association 100% Club is a special category of membership that demonstrates a commitment to the legal profession and our community from legal organizations with more than three attorneys that have 100% of their Nashville attorneys as members of the NBA. To become a part of the NBA's 100% Club, contact Vicki.Shoulders@nashvillebar.org and support your local bar association today!
Anderson & Reynolds, PLC
Baker Donelson
Belcher Sykes Harrington, PLLC
Bradley
Brewer, Krause, Brooks, Chastain & Meisner, PLLC
Butler Snow, LLP
Cole Law Group, P.C.
Collins Legal, PLC
Constangy, Brooks, Smith & Prophete, LLP
Cornelius & Collins, LLP
Dickinson Wright, PLLC
Dodson Parker Behm & Capparella, PC
Equitable Trust Company
Fisher & Phillips LLP
Frazer PLC
Frost Brown Todd, LLC
Grissim & Hodges
Gullett Sanford Robinson & Martin PLLC
Hall Booth Smith, PC
Healthcare Realty Trust, Inc.
Herzfeld, Suetholz, Gastel, Leniski, and Wall PLLC
