Nashville Bar Journal | June/July 2016 by Nashville Bar Association

Nashville Bar Journal

FEATURE The End of Collaboration Avoiding Litigation through Brand Protection

JUNE / JULY 2016 • VOL 16 • NO 5

YOU CHOOSE THE CHECKING WE’LL PAY YOUR NBA DUES Open a First Tennessee checking account with direct deposit, and we’ll pay your Nashville Bar Association membership dues (currently a $245 value) for one year. We have several great checking options you can choose – each available with the convenience of free Banking Online and Mobile Banking. Learn more at FTB.com/checking or present this ad at any financial center in Middle Tennessee. See terms and conditions below for offer details.*

Terms and Conditions: Offer valid beginning with the enrollment of Nashville Bar Association membership year beginning November 1, 2015. Offer expires March 31, 2016. You must present this printed offer at a financial center in Middle Tennessee when you open your checking account. Minimum opening deposit is $100, and cannot be transferred from an existing First Tennessee account. Cannot be combined with other checking offers or promotions. Accounts opened online are not eligible. You must be a new checking household, which means that no member of your immediate household has had an open First Tennessee consumer checking account in the previous 12 months. A direct deposit must post to this account within 60 days. You agree to maintain the account in good standing for at least 6 months. If you meet the conditions of this offer, you will receive a voucher in the mail within 6 weeks of your first direct deposit. You will be able to present this voucher to the Nashville Bar Association. The Association will then return it to us, and we will pay to them your dues for your one year of NBA membership. Upon delivery of the voucher to you, First Tennessee is required to report the $245 value as interest income on Form 1099-INT. This voucher is non-transferable, cannot be redeemed for cash or any alternative bonus, and must be presented by you to the Association by June 30, 2016. FSR: Use promo code NBADUE. ©2015 First Tennessee Bank National Association. Member FDIC.

Articles

Departments

The End of Collaboration: Avoiding Litigation through Brand Protection

Joycelyn Stevenson

Ryan Levy, Gary Montle, Seth Ogden & Wade Sims

Birchﬁeld v. North Dakota: Implied-Consent Laws Under Attack

Michael J. Sandler, Sr.

Summer Wellness: Taking Care of You Karl Warden

Columns 9

Intro to Tennesee's "3-Tier for Beer" Law Curtis R. Harrington, II

Gadget of the Month

Communique

May Event Photos • NBA Happy Hour • Carbolic Smoke Ball • Miss Rebecca Thomas Honored

Continuing Legal Education (CLE)

Cyber Security Considerations for Law Firms

Center Insert

Jordan McQuown & John Sweeney

From the President

100% Club Members

27 28

NBA Member Beneﬁts

Welcome New NBA Members • Premier Members

Classiﬁeds

Disclosure

Announcements • People on the Move • Firm News

Bill Ramsey & Phillip Hampton

Judge Seth Norman Presented the Jack Norman, Sr. Award at Law Day David L. Raybin

Golden Oldies

Who can name these guys?! Be the first person to email the correct answer to jill.presley@nashvillebar.org and your name (along with the correct entry) will appear in the next issue. Additionally, if you have any photos to submit for the Golden Oldies, please send to the email above. May 2016 Golden Oldies Perry Happell correctly identified the individuals in the May 2016 Golden Oldies photo. Pictured (left to right) were Bob Waldschmidt, C. Kinnian Cosner, and Robert Vaughn.

' A Monthly Publication of the Nashville Bar Association

Joycelyn A. Stevenson, Publisher William T. Ramsey, Editor-in-Chief ramseywt@nealharwell.com Eleanor Wetzel, Managing Editor eleanorwetzel@jis.nashville.org

E�� C�� Noel Bagwell Kimberly Faye Carline Sapp Hudson Tim Ishii Tracy Kane Everette Parrish Bart Pickett Matthew Pierce Bill Ramsey Mike Sandler Kristin Thomas Jonathan Wardle Victoria Webb Eleanor Wetzel David Winters

N�� B�� A�� S�� Monica Mackie Executive Director ----------Shirley Clay Finance Coordinator Wendy Cozby Lawyer Referral Service Coordinator Traci Hollandsworth Programs & Events Coordinator Malinda Moseley CLE Coordinator Judy Phillips CLE Coordinator Jill Presley Marketing & Communications Director Jan Margaret Rogers CLE Director Vicki Shoulders Oﬃce / Membership Coordinator The Nashville Bar Journal, ISSN 1548-7113, is published monthly by the Nashville Bar Association at 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219, (615) 2429272. Periodicals Postage Paid, Nashville, TN (USPS 021-962). Subscription price: $25 per year. Individual issues: $5 per copy. POSTMASTER: Send address corrections to Nashville Bar Journal, 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219 No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. The Nashville Bar Journal is not responsible for the return or loss of unsolicited manuscripts or for any damage or other injury to unsolicited manuscripts or artwork. All Articles and Letters contained in this publication represent the views of the authors and do not necessarily reﬂect the opinions of the Nashville Bar Association.

N�� B�� A�� 150 4th Ave N, Suite 1050 Nashville, TN 37219 615.242.9272 • NashvilleBar.org

Nashville Bar Journal • June / July 2016

From the President

Taking Positions on Matters of Public Interest By Joycelyn A. Stevenson Whether it is at the local, state or federal level, there are a host of important issues currently affecting our legal community. The Nashville Bar Association (NBA) regularly receives feedback from our members including requests for the NBA to weigh in on many of these issues given the important role of the NBA and its leadership in our community throughout the years. Looking at the immediate history of the Association, there have been limited circumstances where the NBA has taken an official public opinion. Two recent circumstances included the educational campaign surrounding the retention election in 2014, and a resolution strongly supporting the continued presence of the bankruptcy court in the U.S. Customs House. One of the questions that I often receive relates to how the NBA makes determinations on which issues rise to the level of board comment and which do not. It is a fair question and one that we as a board take very seriously. On April 5, 2011, the NBA adopted a policy related to taking official positions on matters of public interest. The policy specifically allows the board to take official positions relating to “the legal system, the courts, and/or the administration of justice that the Board believes necessary and appropriate to provide public awareness and understanding of these matters.” The policy further indicates that the NBA should “identify those matters and avoid entanglement in or controversy about matters of a predominantly partisan nature.” The policy provides a referral procedure that begins with sending requests to the Executive Director who in turn alerts the NBA Governance Committee. The Governance Committee investigates necessary facts to determine a recommendation on taking a position, using specific guidelines on when an official position is or is not appropriate. The Governance Committee then makes a recommendation to the NBA Board for consideration and action, if appropriate. During my tenure on the board, we have engaged in rigorous debate and discussion on a variety of issues affecting our community and whether or not certain issues met the requirements of the policy for public comment. Every organization must balance effectively advocating for its members and for those issues that are important to its members. With an organization of 2500+ members, that balance can be challenging; but I am proud of the thought and attention to process that our board takes with every issue that comes before it. We are not impervious to change, however, and appreciate any and all feedback from our members on how we can better meet their needs. I also encourage any members with ideas related to issues of the day to write articles for the Nashville Bar Journal, produce and facilitate CLE, and get more involved with the NBA so that we accurately and effectively reflect the concerns of the membership that we serve. We have some exciting things in store for the remainder of the year including moving to a bi-monthly, full-color publication of the Nashville Bar Journal, a complete redesign of our website, and streamlining our systems and operations. We will provide detailed information on all of these changes in our August/September edition of the Nashville Bar Journal. Each member will also soon receive an email to the website changes. Until then, please continue to support the NBA, and continue to provide constructive feedback on how we can serve our membership and the legal community in a meaningful way. n

2016 BOARD OF DIRECTORS

NBA Calendar of Events June 20 Probate Committee Meeting 11:30am

July 5 (continued) Dial-A-Lawyer 6:00–8:00pm

NBF Leadership Forum Meeting 4:00pm

July 7 Diversity Committee Meeting 12:00pm

June 21 Ethics Committee Meeting 12:00pm Government Attorney's Committee Meeting Guest Speaker: Marty Szeigis 12:00pm (Metropolitan Department of Law) Friday Fundamentals Planning Meeting 3:00pm June 22 IP Committee Meeting (with CLE) 12:00pm (Frost Brown Todd) June 23 NBF Trustees Meeting 12:00pm June 24 Health Law Committee 12:00pm June 28 Appellate Practice Committee 12:00pm June 30 NBF Leadership Forum Meeting 3:00pm

July 13 Historical Committee Meeting 11:30am (Hal Hardin's Office) July 14 CLE Committee Meeting 11:30am July 18 Probate Committee Meeting 11:30am July 19 Ethics Committee Meeting 12:00pm July 20 Memorial Service Committee Meeting 12:00pm July 21 Editorial Committee Meeting 12:00pm (Neal & Harwell)

Joycelyn A. Stevenson President Nathan H. Ridley President-Elect Matt Potempa First Vice President Andrea P. Perry Second Vice President April Knox Secretary Eric W. Smith Treasurer Stephen G. Young Assistant Treasurer Edward D. Lanquist, Jr. Immediate Past President Justin McNaughton YLD President Lela Hollabaugh General Counsel Irwin J. Kuhn First Vice President-Elect Claudia Levy Second Vice President-Elect

Finance Committee Meeting 4:00pm Executive Committee Meeting 4:45pm

NBA Happy Hour @ Pub5 Hosted by Bart Durham Injury Law 5:00–6:30pm

July 28 NBF Leadership Forum Meeting 4:00pm

July 4 Happy Independence Day! NBA Offices Closed

August 2 Dial-A-Lawyer 6:00–8:00pm

July 5 NBA Board Meeting 4:00pm

Committee Meetings are held at the NBA Offices unless otherwise noted. Full calendar available online at the *NEW* NashvilleBar.org.

Mark S. Beveridge Robert C. Bigelow Hon. Joe P. Binkley, Jr. Hon. Sheila D. Calloway Kay Caudle Jacqueline B. Dixon Samuel P. Funk Margaret M. Huff Hon. William C. Koch, Jr. Ryan D. Levy Wendy Longmire Hon. Randal S. Mashburn

Erin Palmer Polly David L. Raybin Sara F. Reynolds

Facebook.com/NashvilleBarAssociation @NashvilleBar

Saul A. Solomon Laura Smith M. Bernadette Welch

LinkedIn.com/Company/Nashville-Bar-Association Nashville Bar Journal • June / July 2016

communiqué MAY WAS A BUSY MONTH, INDEED! From the Annual NBA / NBF Golf Tournament to Arts Immersion to Bill Ramsey's Ode to Otha Block Party, the NBA kept busy with social events this Spring! Here are some pictures to prove it...

Nashville Bar Journal • June / July 2016

The next NBA Member Happy Hour is on Thursday, June 30, from 5:00 to 6:30pm at Pub5 and will be sponsored by the one and only Bart Durham Injury Law. Come on out and enjoy a drink with us! You can RSVP now at NashvilleBar.org/HappyHour.

For photos from our last Happy Hour at Skull's, visit NashvilleBar. SmugMug.com/Events/2016/ NBA-Happy-Hour-Skulls. n

SAVE THE DATE! CARBOLIC SMOKE BALL COMING SOON Just announced! This year's Carbolic Smoke Ball, presented by the NBA's Young Lawyer's Division, will be held on Saturday, August 6, at Acme Feed & Seed on Lower Broadway. For those of you who are new to the Association, the Carbolic Smoke Ball is an annual cocktail party to which all members of the Nashville legal community are invited. A fundraiser, open bar, and live music are just some of the items on the list. Mark your calendars now and stay tuned to the NBA Weekly Update for details. This is a great night of fun that is not to be missed! n

MISS REBECCA THOMAS HONORED A plaque honoring Miss Rebecca M. Thomas appeared earlier this month on the Nashville Bar Association’s Memorial Wall. It was a bequest of Elizabeth Jane “Punky” Smith, one of Nashville’s preeminent real estate lawyers. She died March 21. Miss Rebecca, as she was known to everyone at the Nashville Bar, was licensed in 1939 and practiced for many years when all the women lawyers appearing before our local courts could be counted on one hand. She was the first female member of the NBA Board of Directors. “We were honored and delighted to receive the gift from the Elizabeth Smith estate,” NBA president Joycelyn Stevenson said. “Adding to the Memorial Wall is a wonderful way to remember those who have made a difference in our legal community.” n

Nashville Bar Journal • June / July 2016

COVER STORY

The End of Collaboration Avoiding Litigation through Brand Protection By Ryan D. Levy, Gary L. Montle, Seth R. Ogden & Wade K. Sims To alcohol! The cause of, and solution to, all of life’s problems. —Homer Simpson, The Simpsons, Episode 171: “Homer vs. the Eighteenth Amendment” Protecting Your Craft Craft brewing used to be a collaborative industry. Competitors used to share brews, offer free advice, and actively encourage new breweries. The real enemies were goliath-sized, domestic macrobreweries like Anheuser-Busch and Miller. Underdog microbreweries banded together out of solidarity. But those days of cooperation may be numbered as the craft beer industry becomes more crowded. As of 2014, the United States boasted almost 3,500 breweries. The number of operating breweries doubled in the last five years alone. In addition to competing for bar taps and consumers, microbreweries are competing for branding rights. With thousands of craft beers on the market, flavor profiles are less distinguishing than a clever brand. Breweries, therefore, are relying on branding to distinguish their beers from the competition and turn customers into repeat buyers. In a crowded beer market, unique branding can be difficult to accomplish. While nationalization has given craft brewers access to an interstate market, problems arise when two breweries with similar branding sell within the same territory. Not only can the similarity confuse consumers, it can result in costly intellectual property infringement battles. When faced with a legal accusation of infringement, breweries often must choose whether to lawyer up or abandon the brand. Recognizing the increasing instances of brand conflicts, savvy craft brewers have turned to intellectual property law to protect their branding. Although many brewers now understand the importance of trademarking their beer names, brewery names, 6

Nashville Bar Journal • June / July 2016

and logos, even intellectual property-conscious brewers often fail to recognize the pitfalls associated with trademark and labeling law and fail to pursue other forms of brand protection. For many brewers, filing a trademark early is not enough. Trademark Disputes Brewers who fail to file for trademark protection quickly risk losing their trade name or brand name. If a competitor claims rights in a similar name or design, a brewery could be forced to change its name or packaging in response to allegations of infringement, even if only because the brewery cannot afford to defend itself in court. Changing branding comes with high costs. Brewers must replace packaging and advertising and obtain regulatory approval of those changes. The loss of brand recognition can drive down sales and erode market share. The emotional tax can be as burdensome as the financial impact. When a beer or brewery name has personal significance to the brewer, the brewer may be reluctant to surrender the mark to a competitor; tempers can flare, leading to costly litigation and, in some cases, severe reputational damage in the brewing community. In the early days of the craft brew boom, trademark disputes between breweries were polite and amicable. Many brewers remember the 2004 collaboration between Russian River Brewing Company and Avery Brewing Company. After Vinnie Cilurzo (Russian River) and Adam Avery (Avery) discovered that they had both named their beers “Salvation Ale,” the brewers concluded that the two should blend their beers rather than fight over the name. The brewers named the resulting beer “Collaboration, not Litigation Ale,” proving Homer Simpson right when he famously toasted, “To alcohol! The cause of, and solution to, all of life’s problems.” More alcohol, however, causes more problems. New competi-

tion has increased pressure on breweries to protect their brands proactively. Collaboration is being replaced by litigation, and breweries are finding out that failure to secure rights in their brands early can be an expensive lesson. Industry giant Anheuser-Busch learned the “hard way” the cost of failing to secure trademarks early. During Super Bowl XLIX, Anheuser-Busch ran an aggressive, anti-craft-beer ad titled, “Brewed the Hard Way,” which proclaimed of AnheuserBusch’s beer: “Proudly a macrobeer;” “It’s not brewed to be fussed over;” and “Let them drink their pumpkin peach ale.” Martin City Brewing Company (MCBC) filed a trademark application for its HARD WAY IPA four days after the ad premiered. When Anheuser-Busch tried the next day to file its own trademark application for BREWED THE HARD WAY, the USPTO suspended it in light of MCBC’s day-older trademark. Eventually, MCBC consented to allow the trademark. But not all breweries can afford to fight. When Sierra Nevada released its own Narwhal Imperial Stout and filed for a federal trademark for NARWHAL, the microbrewery titan sent a cease-and-desist letter to then two-year-old Narwhal Brewery of Brooklyn, threatening a lawsuit for trademark infringement. Despite being the prior user, Narwhal was outgunned and unable to expand their brand; Narwhal’s brewers Stafford and Lee reluctantly abandoned ship, scuttled Narwhal, and opened a new brewery in Queens called Finback. The orphaned Narwhal Brewery webpage features a cautionary letter from Stafford and Lee, stating, “Word of advice to anyone starting anything: file for a federal trademark immediately (uspto.gov). We did not and now are in this situation, LESSON LEARNED.” In another 2013 dispute, Sixpoint Brewery called Renegade Brewing, alleging Renegade’s “Ryeteous Rye IPA” infringed on Sixpoint’s RIGHTEOUS ALE trademark. Renegade’s founder suggested the

breweries collaborate like Avery and Russian River had done in 2004, but Sixpoint refused, claiming it had superior rights in the brand. Faced with a potential lawsuit, Renegade changed the name of it beer to “Redacted IPA,” in criticism of Sixpoint’s actions.

Logo Comparison: Magic Hat #9 versus West Sixth Brewing

Many beer fans are familiar with the logo conflict between Magic Hat Brewing Company and West Sixth Brewing. Magic Hat sued West Sixth for trademark infringement, claiming the brewery’s logo—an encircled number six with a star—infringed Magic Hat’s trademarked “# 9” logo for its flagship beer. In its complaint, Magic Hat claimed that the West Sixth’s logo was too confusing because the six is an “inverted 9.” Incensed, West Sixth launched a social media campaign against Magic Hat, decrying “corporate bullying” and rallying readers to sign an Anti- Magic Hat petition. The breweries released PR statements condemning one another for several months until finally settling the lawsuit, with West Sixth agreeing to remove the pointed star from its logo.

and assert trademark rights over generic or descriptive beer terms, essentially monopolizing basic beer terminology like “Nitro,” “IPA,” and “Session.” Lagunitas ruffled feathers last year when it sued Sierra Nevada, claiming Sierra Nevada’s Hop Hunter IPA infringed on Lagunitas’ trademarks for LAGUNITAS IPA. Lagunitas claimed that the bold, block-style typeface “IPA” used on Sierra Nevada’s packaging was confusingly similar to Lagunitas’ “IPA” mark and packaging. Critics accused Lagunitas of improperly claiming ownership of the term “IPA.” The outrage was severe enough that Lagunitas’ founder announced only days after filing the complaint that Lagunitas would withdraw the lawsuit. In 2015, Lost Coast Brewery sent a cease-and-desist letter to Peddler Brewing Company, alleging Peddler’s generically titled “tangerine wheat beer” infringed on Lost Coast’s TANGERINE WHEAT trademark. Craft beer fans and bloggers decried the letter as trademark bullying and contended that Lost Coast should never have been issued an enforceable trademark for the descriptive term “tangerine wheat.”

Comparison of Packaging from Lagunitas’ Complaint

Recently, Full Sail Brewing Company, which has a trademark for SESSION LAGER, has aggressively attacked any use of the word “session” in beer names. Although “session” is a common term for describing mild, low-alcohol beers which a beer drinker can enjoy drink after drink without getting drunk or overwhelmed with flavor, Full Sail has threatened litigation against and opposed trademark applications by several breweries for beer names such as: “Joint Session Ale;” “Suds Session;” “Single Speed Session;” “Swing Session Saison;” “Alpha Session;” “Short Hop India Session Ale;” and “Flavor is Now In Session.”

A New Threat: Generic Trademarks A controversial trend has emerged where breweries register trademarks involving

As competition increases, craft brewers are likely to see other generic and descriptive terms appear in cease-and-desist letters in Continued on page 8

Nashville Bar Journal • June / July 2016

Continued from page 7

the near future. For struggling brewers jockeying for market share, the temptation to knock competitors off the market using any means possible is too great to ignore.The threat of negative publicity may no longer be enough to dissuade breweries from claiming questionable trademarks to bully competitors. We're not just five people anymore. I have to think about the livelihoods of 92 people and their families. —Adam Avery, Avery Brewing Company The End of Collaboration? Though many brewers mourn the loss of camaraderie in today’s competitive market, “Collaboration, not Litigation” may no longer be the best way to solve brand disputes. In a 2014 interview with Westword, Adam Avery said that had he discovered Russian River’s and Avery’s “Salvation” dispute today, the result might have not been so amicable. “At the time, we were two much younger people, hitting it off. Back then, I don't remember anyone really talking about copyright infringement and trademarks. It's only become a big issue in the last few years . . . and my attitude is changing when it comes to that.” Avery admitted that although he has not file trademark applications for most of his beer names, he would be more aggressive about protecting his beer names when faced with a trademark conflict. "We're not just five people anymore. I have to think about the livelihoods of 92 people and their families." With trademark and brand disputes becoming the new reality of the brewing business, brewers might reduce risk by establishing branding strategies, performing trademark searches for conflicting names, and registering trademarks early. Establishing brands early will give breweries more leverage in resolving brand disputes; with less uncertainty over who has superior branding rights, brewers will be able to make informed decisions about when, and with whom, to collaborate. Other Pitfalls There are additional considerations in trademarking a brewery or beer name. Beer labels are regulated under state and federal law. Unrelated to trademarks, breweries often have to obtain a Certificate of Label Approval (COLA) from both federal and state government for every beer label. To obtain a COLA, the beer label cannot include “false, untrue, or misleading statements,” “obscene or indecent statements,” or “spirit terms, including words like ‘strong’ or ‘full strength,’” among other prohibitions. Some states have their own label restrictions that can thwart breweries attempting to expand across state lines. Many states like Ohio prohibit fantasy imagery like Santa Claus from appearing on alcohol labels for fear that it may appeal to children. The fantasy prohibition can be problematic for breweries which make popular, Christmas-themed winter beers.

Nashville Bar Journal • June / July 2016

Other restrictions can stop breweries’ expansion plans dead in their tracks. For example, Michigan denied label certification for Flying Dog’s “Raging Bitch” beer on grounds that the language was “detrimental to the health, safety, or welfare of the general public.” Although the commission relented and reversed its denial after Flying Dog sued the commissioners personally, Flying Dog lost potential sales during the dispute and incurred significant legal costs. Breweries can avoid expensive lawsuits if they have legal counsel perform adequate brand research from the start. Breweries also often overlook trademarks in classes other than beer. Most breweries will file trademarks for beer, but fewer will file or search for conflicts under other trademark classes. For example, breweries which operate brewpubs, restaurants, or tap rooms should also look at trademarks for restaurant and bar services. Breweries should also be careful when selecting a brand name and look for conflicting trademarks in the wine and spirits industry and related trademark classes. Some breweries have been denied trademarks due to a completing trademark for wine or liquor. For example, the USPTO denied High Water Brewing’s trademark registration for NO BOUNDARY IPA because of a previously registered mark, NO BOUNDARIES, for wine. In a case that settled quickly, Ste. Michelle Wine Estates sued Twisted Pine Brewing Company alleging the brewery’s Northstar Imperial Porter was confusingly similar to the winery’s trademark over Northstar wine. Breweries and their trademark counsel should consider tangential competitors during the branding process and search broadly for competing marks across related classes. Patent Protection Patents are often overlooked in the brewing industry, but they can be just as useful as trademarks in protecting craft brewers’ brands. Design patents protect the ornamental function or design of a functional item such as a bottle, glass, fermenting tank, or six-pack. For example, Boston Beer Corp. owns design patents on its specially designed beer glasses. While design patents don’t protect functional features, they can be useful for protecting specially designed beer items which contribute to a brewery’s brand, such as tap handles. In 2010, Port Brewing Company Port Brewing, which owned trademarks over a specific cross design used with its Lost Abbey beer, filed suit against Moylan’s Brewing Company over Moylan’s use of a similar looking tap handle. Port Brewing claimed trademark infringement, but it could have also claimed design patent infringement had it obtained a design patent on its tap handles.

Introduction to Tennessee's Recent "3-Tier for Beer" Law | By Curtis R. Harrington, II If you represent a brewery, or even an individual or a company with a financial interest in a brewery, there are some new laws and restrictions to consider. Referred to as the “3-Tier for Beer” laws, found in T.C.A. Title 57, Chapter 5, these laws prohibit certain joint relationships between breweries and retailers of beer.

Port Brewing Company’s Lost Abbey Tap Handle vs. Moylan’s Tap Handles

Design patents provide a different scope of protection than trademarks. While trademarks are concerned with whether a consumer is confused as to the source of the goods, design patents are concerned only with similar design. Design patents can therefore offer brand protection beyond the scope of trademarks. For example, Moylan’s use of a large, yellow, letter “M” on its tap handles might avoid trademark infringement if consumers recognize it as different than Lost Abbey’s, but the tap handle could still be infringing under patent law. Design patents can also can be obtained relatively quickly, sometimes faster than a trademark registration. Trademarks and trade dress that are weak, such as a distinguishing use of color on a tap handle, are only given full effect as trademarks after several years of use and extensive evidence that consumers associate the trademark or trade dress as a brand. Design patents usually take a little over a year and can give breweries more immediate brand Continued on page 22

After Prohibition, when states were given the authority to regulate alcohol, the “3tier” system (Manufacturer – Wholesaler/ Distributor – Retailer) was developed and incorporated into the alcoholic beverage industry to prevent the abuses that were believed to cause unfair competition and trade practices resulting from “tied house” relationships. A tied house relationship exists when the relationship between two or more tiers—a manufacturer and retailer, for example—is such that it can be seen to induce, with undue influence, the retailer to purchase product from the manufacturer to the exclusion of products offered by other manufacturers (think Anheuser-Busch InBev brewing beer and distributing the product directly to an Anheuser-Busch Inbev owned bar, not connected to the brewery, which serves nothing but Budweiser products). Tennessee has historically expressly prohibited wine and spirits manufacturers (Tier 1) from having an ownership interest in a wholesaler/distributor (Tier 2) or a retailer. With the 2015 enactment of T.C.A. § 57-5-101(a)(2), the prohibition against multi-tier ownership now applies to breweries and beer retailers as well (i.e., the moniker “3-Tier for Beer”).

so that business opportunities and legal pitfalls can be navigated appropriately. n Curtis R. Harrington, II is a founding partner of Farmer Purcell White & Lassiter, PLLC. His practices focus on working with individuals and small businesses in the areas of litigation, alternative dispute resolution, alcoholic beverage law and licensing, contract negotiation, business formation, personal injury and toxic tort actions, debt restructuring, and both routine and complex entertainment-related matters, such as copyright registration, infringement, copyright recapturing, trademark, licensing, negotiation of recording agreements, media appearance agreements, management agreements, and publishing deals.

As the Tennessee craft beer industry continues to boom, it is essential for any lawyer advising and/or representing a brewery or an individual or company with an interest in a brewery to know and understand the interplay between T.C.A. § 57-5-101, et al. and the relevant sections of the Federal Alcohol Administration Act Nashville Bar Journal • June / July 2016

Birchﬁeld v. North Dakota: Implied-Consent Laws Under Attack By Michael J. Sandler, Sr.

Editor’s Note: the decision in this case may have been handed down prior to publication. I think we can all agree that people should not drive while intoxicated. But, drunk drivers have been with us as long as there have been motor vehicles resulting in thousands upon thousands of senseless deaths. In an effort to prevent these tragedies, our state's legislators have passed numerous criminal and civil laws to stem the loss of life. Among these are implied-consent laws, which have been adopted in all 50 states and by the federal government (e.g., government lands).1 Under these laws, when a person accepts a driver’s license, that person agrees to submit to a chemical test if detained on suspicion of drunk driving. In several states, a person’s driver’s license is immediately suspended or revoked if the person refuses to voluntarily submit to a chemical test to determine the bloodalcohol content (BAC). In most states, the refusal to take a BAC test can be used as evidence against the person in the criminal prosecution.2 Thirteen states—including Tennessee—and the federal government, currently make it a crime to refuse chemical testing. The other states being Alaska, Florida, Hawaii, Indiana, Kansas, Louisiana, Minnesota, Nebraska, North Dakota, Rhode Island, Vermont, and Virginia. Tennessee’s implied consent statute can be found at T.C.A. § 5510-406. As with most laws, implied-consent statutes have been judicially reviewed by state and federal courts, and, in general, have been held to be constitutionally valid.3 Currently before the U.S. Supreme Court, is a consolidation of three cases, known collectively as Birchfield v. North Dakota4, which may alter the laws of implied-consent and provide greater guidance on the warrant requirements for chemical testing of 10

Nashville Bar Journal • June / July 2016

suspected drunk drivers. The Court’s decision could have an immediate and lasting impact on how DUI stops and prosecutions are conducted in Tennessee. Background The primary issue before the Court is whether a state can impose criminal penalties in addition to administrative penalties under its implied-consent law if a driver’s refuses to take a chemical test (e.g., blood-alcohol, breathalyzer, or urine test) without a warrant to detect blood-alcohol levels.5 The secondary issue, and perhaps the broader reaching issue, is whether the forced warrantless test required by implied-consent laws are a violation of a person’s right under the Fourth Amendment to be free from unreasonable searches and seizures.6 Generally speaking, the Fourth Amendment prevents searches by police without a warrant. This includes chemical testing for alcohol and drugs. “Under the “unconstitutional conditions doctrine”, the government may not condition a benefit on the forced relinquishment of a constitutional right.7 However, the U.S. Supreme Court has carved out several exceptions, including: when a person freely gives consent; searches incident to arrest; and exigent circumstances, or when “special needs” are present.8 In the 1966 landmark case, Schmerber v. California, the Court held that a warrantless blood test was a search under the Fourth Amendment, however, it was permissible because the officer “might have reasonably believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence’” (e.g., diminishing blood-alcohol levels over time).9 In a 5-4 decision, Justice Brennan, writing for the majority, said, “the U.S. Constitution does not forbid the States minor intrusions into an

individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions”.10 The Court took great pains to explain that the conviction was affirmed based only on the present record [facts]. Schmerber set the stage for how law enforcement and the courts dealt with Fourth Amendment searches in DUI cases. In 2013, the Court revisited the issue in Missouri v. McNeely.11 In another 5-4 decision, the Court held that the natural metabolization of alcohol in the bloodstream does not create a per se exigency exception to the Fourth Amendment’s warrant requirement for blood testing in all drunk-driving cases, but rather that an exigency must also be based upon “special facts.”12 McNeely does not prevent officers from drawing blood if exigent circumstances establish the exigency by showing additional facts, other than the alcohol metabolism and destruction of evidence factors, as a basis for warrantless and nonconsensual blood draws. The Court held diminishing BAC levels were not enough by itself in determining whether a warrant is required. The Court went on to say that other factors, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can establish whether an exigency exists. Consistent with its ruling in Schmerber, the Court reiterated its position that a determination as to whether a warrantless blood test of a drunkdriving suspect is reasonable must be based on the totality of the circumstances on a case by case basis.13 The Court did not address the factors to be taken into account in determining the reasonableness of acting without a warrant, which brings us to the Birchfield cases. The Birchfield Cases Bernard v. Minnesota In 2012, William Bernard was arrested on suspicion of driving while impaired. Officers placed Mr. Bernard under arrest and took him to the police station where they read him the implied consent advisory statement required under the statute. When Bernard refused to take a breath test, he was charged with violating the state’s implied consent law.14 Bernard moved to dismiss the charges, claiming that “the State’s imposition of criminal penalties for refusing to submit to a warrantless breath test violate[d] the Fourth Amendment.”15 The state trial court held for Bernard, stating that “a warrantless search is per se unreasonable” subject to narrow exceptions that did not apply here.16 The Minnesota Court of Appeals reversed the trial court’s holding, finding there had been probable cause to search so that the officers “could have secured a warrant.”17 The Minnesota Supreme Court reached a similar holding but repudiated the Appellate Court’s reasoning. Instead, the Minnesota Supreme Court reasoned that the warrantless breath test fell under the Fourth Amendment’s search-incident-to-arrest exception.18

Birchfield v. North Dakota Danny Birchfield was arrested after he drove his vehicle off the road and then failed a field sobriety test.When a preliminary breath test indicated his BAC was well over the legal limit, the officer placed Birchfield under arrest and read him the impliedconsent advisory which stated he was required to provide a blood sample under the statute. Birchfield refused to consent to a blood test. He was charged with refusal to submit to a chemical test. Like Bernard, his refusal led to criminal charges against him. Birchfield moved to dismiss this charge, stating that the charge violated his Fourth Amendment right against unreasonable search and seizure.19 The trial court denied his motion and found that there had not actually been a search because he had refused to allow the chemical test. Birchfield pleaded guilty but reserved the right to appeal.20 The Supreme Court of North Dakota agreed with the lower court, stating that “driving is a privilege, not a constitutional right and is subject to reasonable control by the State under its police power.”21 The Court held that its implied–consent statute was reasonable and adhered to the State’s strong interest in maintaining safe roads free from drunk drivers. The Court found that Birchfield had impliedly consented to such warrantless searches because he had elected to use North Dakota’s highways.22 Beylund v. Levi A third driver, Michael Beylund of North Dakota, consented to a blood test after being told that he would otherwise face criminal penalties under the implied-consent statute, leading to the suspension of his driver’s license for two years. Beylund appealed the suspension, but the state district court found that the officer had not coerced him into consenting to the test. The North Dakota Supreme Court agreed and affirmed his license suspension. The Court held that consent to a blood test is an exception to the Fourth Amendment's warrant requirement for searches and that even if he did have a constitutional right to refuse the test, North Dakota’s interest in maintaining safe highways made imputing implied consent reasonable.23 Each Side Stakes Out Its Position in Oral Arguments The U.S. Supreme Court heard arguments just over a month ago, on April 20. As other commentators have done, I will refer to the respondents as the “states”. The states defended their test-refusal laws on the ground that drivers on state roads are deemed to have consented to the blood test. Therefore, there was no search, much less a search without a warrant; the law merely criminalizes the refusal to take the test.24 Additionally, the states argued that their test-refusal laws are valid for another reason: the Fourth Amendment only bars unreasonable searches and seizures, and the chemical tests in this case are reasonable. Minnesota took the position that a determination as to whether a search is reasonable hinges on whether the government’s interests in the search outweigh the intrusion on the privacy Continued on page 20

Nashville Bar Journal • June / July 2016

BILL & PHIL'S GADGET OF THE MONTH

Health & Fitness Tech By Bill Ramsey & Phillip Hampton Summertime is our favorite time of the year. We love casual Fridays, residual daylight after work is completed for the day, and weekend trips to the lake or beach. While our minds are certainly ready for a week of R&R at the beach, we're afraid our office bound bodies are not ready for prime time. Too much sitting in front of a computer screen, too many fast food lunches at our desk, too many donuts from the break room have left our bodies looking unprepared for summer exposure. So how do we solve this problem? Like we do in many other dilemmas, we look for a tech solution. Not surprisingly, we have found that fitness tech is all the rage. There was an entire wing of the latest Consumer Electronics Show exhibit hall dedicated to technology that can make us healthier and more fit. We promptly trashed the remaining donuts from the break room and dove into the pool of fitness gadgets. Here are some of the gadgets and apps that are helping us get our bodies in tip-top shape so we can be even more productive when we get back from Acapulco. We started, of course, with a fitness tracker. These things are ubiquitous and come in all shapes and prices. Probably, Fitbit makes some of the most appealing models for us. We bought the Fitbit Charge HR, which at about $130, is not the cheapest nor most expensive model available. It does, however, provide the basic functions we were looking for: tracking all-day activity, heart rate monitor, pairing with phone for call notifications, date and time readout, sleep analysis, and wireless syncing to a personalized Fitbit dashboard. Plus, it is one of the more comfortable and unobtrusive wearable fitness trackers that we have tried on, and the battery life has been more than adequate. For about $70 more, we really like the Fitbit Blaze, which essentially blurs the line between fitness tracker and smart watch. If we happen to misplace or accidentally "break" the Charge HR, we'll probably go ahead and upgrade to the Blaze. Regardless of which model we use, however, we really do like Fitbit's cloudbased dashboard that helps us track our activity and progress

on our road to fitness. Not to boost Fitbit's stock or anything, but we did go back to the Fitbit more than once to help us shed a few of those unwanted pounds around the midsection. We bought the Aria smart scale to help make us more accountable on our fitness journey. This digital scale will update our Fitbit dashboard with our current weight reading (we know it's not necessarily a welcome statistic we like to see daily; but it certainly is a great motivator to help us make healthier choices). Not only measuring weight, the Aria scale also measures body mass index, lean mass, and body fat percentages. Paired with the Fitbit tracker, we can set goals and even let the Fitbit app coach us on achieving them. Nothing against personal trainers, but this setup is a lot less expensive in the long run. Speaking of apps, a great app that we have used to assist us on this journey is MyFitnessPal. This free app is a useful tool for tracking what we eat, as well as our daily exercise. The calorie counter is easy to use and the app provides a tremendous database of calorie counts not only for raw foods but many popular restaurant dishes as well. We really have no excuse for remaining calorie-ignorant now that we have this app and have found that using MyFitnessPal provides yet another accountability touch point that in itself enforces healthy choices. We are feeling better already (we'll leave it to others to notice if we look any better). As we are trying out many different apps and gadgets to help us become more fit, it would be nice to have one aggregate site or app that lets us see all of our fitness tracking data in one place. Bill loves Apple's Health app on his iPhone for this comprehensive health dashboard. Phil prefers Google's Fit app on his Android-based Samsung Galaxy phone. Both apps provide a platform that other fitness apps can link to and provide data to your centralized health dashboard. So, if you are tracking your steps or exercise with a Fitbit device and your calorie intake with an app like MyFitnessPal, you can aggregate these data points into a central repository of your health information with these apps. Continued on page 13

Nashville Bar Journal â&#x20AC;˘ June / July 2016

June 23, 2016 | Live Seminar

CELL PHONE PRIVACY WHO SHOULD ATTEND: Individuals curious about digital forensic and cloud evidence preservation techniques. Law enforcement officials that deal with new technologies and departmental policies. Investigators that deal with digital evidence. Attorneys interested in criminal prosecution or defense, fans of CSI, or anyone who owns a smartphone. OVERVIEW: The first portion of this seminar will introduce attendees to the technical details of phone encryption, explain the legal history of the All Writs Act of 1789, and analyze the ongoing standoff between technology companies, law enforcement, and government legislature. Wade Sims of Patterson Intellectual Property Law will discuss how encryption and encryption circumvention works, what legal challenges they create, and the pros and cons of Apple’s and the FBI’s conflicting perspectives. Before lunch is served, the seminar will conclude with a Q&A session with a diverse panel of subject experts who will weigh in with their opinions. The second portion of the seminar will review the relevance of cloud data to investigations, the types of information that can be uncovered, current obstacles investigator encounter, best practices for collecting and managing evidence, legal considerations and due process, and tips for authoring warrants. PRESENTERS: Jim KempVanEe, LogicForce Consulting Richard Littlehale, TBI Criminal Investigation Division Bill Ramsey, Neal & Harwell, PLC Ben Raybin, Hollins, Raybin & Weissman, PC David Raybin, Hollins, Raybin & Weissman, PC Wade Sims, Patterson Intellectual Property Law PRODUCER:

Wade Sims, Patterson Intellectual Property Law

REGISTRATION: 9:30am SEMINAR W/ LUNCH: 10:00am – 2:30pm CREDIT: 4 General

COST: NBA Members: $195 ($205 late registration; after June 21) Non-NBA Members: $389 ($399 late registration; after June 21) LOCATION: Nashville Bar Association 150 4th Ave N, Suite 1050 Nashville, TN 37219

June 29, 2016 | Live Seminar

ANATOMY OF A TRIAL WHO SHOULD ATTEND: This seminar will benefit any attorney looking for practice tips and tricks, but for those practicing in the 3rd and 4th Circuits or specializing in Family Law, this is truly a “can’t miss” event! OVERVIEW: Honorable Judges Phillip Robinson and Philip Smith present the anatomy of a trial in this informative two hour CLE program at the historic courthouse. From opening statement to closing arguments, the Anatomy of a Trial will provide insight into how attorneys can strengthen their trial practice. PRESENTERS: Honorable Phillip Robinson, Third Circuit Judge, Circuit Court of Davidson County Honorable Philip E. Smith, Fourth Circuit Judge, Circuit Court of Davidson County MODERATOR: Edward D. Lanquist, Jr., Patterson Intellectual Property Law PRODUCER:

Jan Margaret Rogers, CLE Director, NBA

REGISTRATION: SEMINAR: CREDIT:

2:30pm 3:00 – 5:00pm 2 General

COST: NBA Members: $95 ($105 late registration; after June 27) Non-NBA Members: $189 ($199 late registration; after June 27) LOCATION: Jury Assembly Room Ground Level of the Historic Courthouse 1 Public Square Nashville, TN 37201

Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

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July 28, 2016 | Live Seminar

WHAT TO EXPECT AT THE COURTHOUSE: CIVIL CIRCUIT JUDGES AND CHANCELLORS SHARE THEIR VIEWS, TIPS, AND INSIGHTS The seminar is co-sponsored and supported by the NBA YLD Division and is intended to instruct lawyers who have been in law practice 5 years or less or are new to practice in Davidson County state court. Special YLD funds have been allocated to enable new lawyers (in practice 5 years or less) to attend at a significantly discounted seminar rate. WHO SHOULD ATTEND: Any lawyers involved in civil litigation in state court in Nashville. The seminar is particularly targeted at young lawyers or lawyers who are new to civil state court practice in Nashville. OVERVIEW: Civil court judges and chancellors from the Davidson County Circuit and Chancery Courts will focus on courtroom practice. Questions from attendees will be encouraged. PRESENTERS:

PRODUCERS:

REGISTRATION: SEMINAR: CREDIT:

Hon. Joseph P. Binkley, Judge, Fifth Circuit Hon. Claudia Bonnyman, Chancellor, Part I Hon. Kelvin Jones, Judge, Eighth Circuit Hon. Randy Kennedy, Judge, Seventh Circuit Hon. Amanda McClendon, Judge, Second Circuit Hon. Carol McCoy, Chancellor, Part II Hon. Russell T. Perkins, Chancellor, Part IV Hon. Phillip Robinson, Judge, Third Circuit Hon. Philip Smith, Judge, Fourth Circuit Ben Goldammer, Kay, Griffin, Enkema & Colbert, PLLC Taylor Sutherland, Sutherland & Belk, PLC 8:30am 9:00am – 4:50pm 6 General

COST: NBA YLD Members: $30 ($40 late registration; after July 26) NBA Members: $275 (six years of practice or more) ($285 late registration; after July 26) Young Lawyer Non-Members: $60 (within first 5 years of practice) ($70 late registration; after July 26) Non-Members: $549 (six years of practice or more) ($559 late registration; after July 26) LOCATION: Justice A.A. Birch Building Jury Assembly Room (Ground Floor) 408 2nd Ave N, Ste 1120 Nashville, TN 37201

August 22 & 29, 2016 | Truancy Training = Two FREE CLE Credits OVERVIEW: Chronic absences, truancy, poverty, and criminal behavior often go hand in hand. With the support of the Nashville Bar Association, Metro Nashville Public Schools, Metro Student Attendance Center (MSAC), and Advocates for Women’s And Kids’ Equality (AWAKE) are developing a communitybased truancy intervention program called Connecting Attendance to Results in Education (CARE). This program will train attorneys about our state’s truancy laws, the truancy adjudication process, the structure of the CARE program, and the boundaries of the attorney-client (student) relationship. Following this two-hour training, which includes one regular CLE credit and one ethics CLE credit, attorneys will serve as pro bono legal counsel and positive role models for the duration of Juvenile Court Supervision related to the child’s truancy. Attorneys will advocate for the best interest of the child and assist the family in identifying resources that will improve attendance. (One case will last approximately 15-20 hours over the course of a few months.) In addition to gaining valuable courtroom experience in a non-adversarial setting, volunteer attorneys will help reduce truancy in our community one student at a time.

COST: FREE! TRAINING: 8:30 – 10:30am LOCATION: Metro Student Attendance Center 945 Doctor Richard G. Adams Dr. Nashville, TN 37207 CREDIT: 2.0 CLE (1.0 General & 1.0 Dual)

Volunteer attorneys must attend one of two initial trainings in order to represent a student this fall. The first trainings will be held on Monday, August 22 and Monday, August 29. Attendees will receive two FREE CLE credits, including one ethics credit, and donuts and coffee will be provided. We hope you will attend one of these trainings and get involved in the inaugural year of this crucial program for our city’s students!

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Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

Mark Your Calendar for More Live Seminars July 26 – The Cure for Procrastination August 26 – Government Practice September 13 – Supreme Court Review 2016 October 6 – Estate and Probate Institute October 13 – Nashtech Legal Technology Symposium October 27 – Employment Law Institute November 3 – Advanced Federal Courts November 10 – Blanton November 18 – Annual Ethics, Lies, and Videotape, Part XIV November 22 – Elder Law December 2 – Annual Entertainment Law Seminar December 15 – Government Practice

NBA Online Seminars | Personlized Learning on Your Schedule is the exclusive online support network for the NBA

Check out our NEW online seminars and REGISTER NOW at NashvilleBar.org/CLE. There are hundreds of seminars to choose from, with topics including...

• Ethics and Professionalism Court Practice and Views from the Bench Mediation Family Law Estate Planning Probate Practice Employment Law Federal Court Practice AND MORE!

Put Some Drama into Your CLE with these Engaging Movie Webcasts REGISTRATION MUST OCCUR AT LEAST ONE HOUR PRIOR TO THE PROGRAM. Dual Distance Learning Credit

Maxims, Monarchy and Sir Thomas More June 22 11:00am – 1:30pm CST 2.25 CLE Hours

Clarence Darrow: Crimes, Causes, and the Courtroom June 29 11:00am – 2:15pm CST 3.0 CLE Hours

For movie webcast details and to register, go to Periaktos.Bizvision.com. Brought to you by the Nashville Bar Association and Periaktos Productions, LLC. . . . The dramatic difference in CLE.

Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

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PLI & NBA Live Webcasts PLI and the NBA provide sophisticated and cutting-edge programs to Tennessee attorneys through “live” webcasts held at the NBA Conference Center. Attorneys receive in-depth training and insight from the country’s foremost legal practitioners, government officials, and corporate officers. Further, attorneys attending the live webcasts at the NBA office will earn “live” CLE credit.

Visit NashvilleBar.org/CLE for course details and to register. All start times listed below are CST. *NEW* All 8:00am programs include a complimentary breakfast! June 30 July 7 July 25 August 4 August 9

September 8

Writing for Litigators 2016 Class Action Litigation 2016 Ethics for In-House Corporate Counsel 2016 Ethics for Discovery 2016 Ethics in Banking and Financial Services 2016 Writing for Transactional Lawyers 2016 Ethics and Conflicts of Interest in Law Practice 2016 The Attorney-Client Privilege and Internal Investigations Services 2016 Nuts & Bolts of Electronic Discovery

1:00–4:15pm 8:00am–4:00pm 8:00–10:10am 11:00am–1:10pm 8:00–11:00am 1:00–4:00pm 8:00–10:10am

2.9 General CLE 6.25 CLE (5 General and 1.25 Dual) 2.0 Dual CLE 2.0 Dual CLE 2.5 Dual CLE 2.5 General CLE 2.0 Dual CLE

2:00-4:10 PM

2.0 Dual CLE

Questions? Contact Christine Seisler at PLI at cseisler@pli.edu or 212.824.5798.

Webinars | Featuring Sean Carter, Esq. The Nashville Bar Association partners with Sean Carter and Mesa CLE to bring you CLE Netshows—entertaining and contentfilled ethics and professionalism live webinars. Sean is not only a nationally recognized education expert, but also an excellent communicator who actually make learning fun. Both received rave reviews. You can also register at NashvilleBar.org/CLE. June 23 June 25 June 27 June 28 June 29 June 30

July 12 July 19 July 26

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Keep Your Big Mouth Shut: And Other Implications of Rule 1.6 11:00am – 12:00pm CST | 1.0 CLE Credit – Dual – Distance Learning The 2016 Ethy Awards | 9:00 – 11:00am CST | 12:00 – 2:00pm CST 2.0 CLE Credits – Dual – Distance Learning Show Me the Ethics!: The Ethycal Way to Bill for Legal Services 12:00 – 1:00pm CST | 1.0 CLE Credit – Dual – Distance Learning The Truth, The Whole Truth and Nothing But the Truth: The Ethycal Imperative for Honesty in Law Practice 12:00 – 1:00pm CST | 1.0 CLE Credit – Dual – Distance Learning Fantasy Supreme Court League: The 2016 Season 12:00 – 1:00pm CST | 1.0 CLE Credit – General – Distance Learning It’s Not the Fruit, It’s the Root: Getting to the Bottom of Our Ethical Ills 12:00 – 1:00pm CST | 3:00 – 4:00pm CST | 7:00 to 8:00pm CST 1.0 CLE Credit – Dual – Distance Learning Sue Unto Others as You Would Have Them Sue Unto You 12:00 – 1:00pm CST | 1.0 CLE Credit – Dual – Distance Learning Thou Shalt Not Lie, Cheat & Steal: The Ten Commandments of Legal Ethics 12:00 – 1:00pm CST | 1.0 CLE Credit – Dual – Distance Learning Nice Lawyers Finish First 12:00 – 1:00pm CST | 1.0 CLE Credit – Dual – Distance Learning

Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

NBA Teleseminars | National Faculty & Relevant Topics 12:00pm – 1:00pm (CST) Distance Learning

JUNE June 15 June 16 June 17 June 20 June 21 June 22 June 23 June 24 June 27 June 28 June 29 June 30

Professionalism for the Ethical Lawyer – Live Replay (Dual) Negotiating and Drafting Issues with Small Commercial Leases Legal Ethics in Contract Drafting (Dual) Indemnification & Hold Harmless Agreements in Business & Real Estate – Live Replay Buy-Sell Agreements, Part 1 Buy-Sell Agreements, Part 2 Lawyer Ethics When a Client Won’t Pay Your Fees – Live Replay (Dual) Ethics and Social Media: Current Developments (Dual) Tax Traps in Business Formations – Live Replay Estate Planning for Real Estate, Part 1 Estate Planning for Real Estate, Part 2 Ethics & Digital Communications – Live Replay (Dual)

JULY July 6 July 7 July 8 July 11 (Dual) July 12 July 13 July 14 Replay July 15 July 18 July 19 July 20 July 21 July 22 July 25 July 26 July 27 July 28 July 29

Settlement Agreements in Estate & Probate Disputes – Live Replay What Business Lawyers Need to Know About Licenses – Part 1 What Business Lawyers Need to Know About Licenses – Part 2 Ethics, Remote Networks, the Cloud, Smartphones & Working from Anywhere – Live Replay Income Tax Issues for Estate Planners, Part 1 Income Tax Issues for Estate Planners, Part 2 Preferred Returns, Preferences & Anti-Dilution Mechanisms in Business & Real Estate – Live The Ethics of Creating Attorney-Client Relationships in the Electronic Age What Business Law Practitioners Need to Know About the Affordable Care Act – Live Replay Tricks and Traps in the Assumption of Liabilities in Transactions Role of Trust Protectors & Trust Advisers in Estate Planning – Live Replay Drafting Sales Agents’ Agreements Ethics of Going into Business with Clients – Live Replay (Dual) Ethics for Estate Planners – Live Replay (Dual) Buying and Selling Distressed Real Estate, Part 1 Buying and Selling Distressed Real Estate, Part 2 Planning with Single Member LLCs, Part 1 – Live Replay Planning with Single Member LLCs, Part 2 – Live Replay

For registration and to see additional courses, visit NashvilleBar.WebCredenza.com.

Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

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JUN 27

JUL 26

N/A

JUN 29

JUL 28

AUG 22



CLE PASS:



$275

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$195

NBA MEMBERS

$389

 $549

 $189



Non-Member

 $285

 $105

 $205

NBA MEMBERS

2.0 



 $0



$559

$199

$399

Non-Member

(NBA use only)

EMAIL:_______________________________________

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CLE EASY PASS

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Total Amount: $____________________________________________

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1. Charge your CLE by phone 615.242.9272 or fax 615.255.3026.

TO COMPLETE YOUR REGISTRATION:

Nashville Bar Association ATTN: CLE Division 150 4th Ave N, Ste 1050 Nashville, TN 37219

check to:

3. Detach and mail this form with a

CLE and register online.

2. Visit our website at NashvilleBar.org/

Non-Members: Become an NBA member now and take advantage of 50% savings on CLE. Join now and pay the Member rate for the seminar.

Truancy Training = Two FREE CLE Credits!

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HUGE Discounts for ALL Young Lawyers (within the first five years of practice). Visit NashvilleBar.org/CLE for more information!

What to Expect at the Courthouse

Anatomy of a Trial

Cell Phone Privacy

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Nashville Bar Association 615.242.9272 | NashvilleBar.org REGISTRATION

REGISTRATION FORM

Continued from page 12

DID YOU KNOW?!? These are just the basics. But, of course, the road to continued health and fitness begins with the basics—diet and exercise, right? As we continue this journey, however, we are trying out even more exotic fitness products. Look for future reports from our Sensoria Fitness Socks, the Kolibree Smart Toothbrush, and the Pavlok bad-habit-breaking device. If you see us at the beach this summer, you probably won't even recognize us—not because our bodies are so toned and muscly, but because we are covered from head to toe with all these fitness gadgets. Make no mistake about it, when we get back to the office, we are going to be so prepared to tackle that new case. Have a happy and healthy summer! n —Bill & Phil

The NBA offers its conference rooms to be reserved by attorneys who need a convenient place to meet in downtown Nashville. We have a spacious Conference Center and a smaller Board Room—both of which have free Wi-Fi access, phone, and videoconferencing—available for your use. Visit NashvilleBar.org/RentOurFacilities for details!

Nashville Bar Journal • June / July 2016

Cyber Security Considerations for Law Firms By Jordan McQuown & John Sweeney

As the news media continues to make us aware of the evermounting data breaches within our corporations and government agencies, one would assume these institutions are the only key targets for state and criminal sponsored hackers. Data breaches at law firms are occurring at an ever-increasing rate yet go primarily unreported; however, 25% of firms did report some type of breach in 2015, up from 10% in 2012. The fact that law firms host enormous amounts of very valuable data ranging from corporate intellectual property and strategy documents to sensitive government secrets is not lost on those who can gain from obtaining it. Implementing sound IT systems and data security practices is an essential business practice for every law firm as well as an ethical duty for lawyers. Law firms that ignore this risk and do not devote the proper amount of resource to protect client data do so at their own demise. The simple fact is whether law firms like it or not they are by the very nature of their profession entrenched in the data management/ security business. The potential catastrophic financial impact a breach could have on a firm is something that every Managing Partner must consider. The average cost of a data breach ranges from $6.4 million to $7.5 million, including forensic investigation, remediation, notification expense, credit monitoring, and crises management. This does not include the negative impact of any client attrition that undoubtedly occurs. Therefore, the very existence of the law firm may hinge on their ability to withstand such a cost. Lawyers Duty to Protect Client Data The legal and ethical obligations of law firms to protect client data is well-documented. A variety of Federal laws like Health Insurance Portability Act (HIPAA) and Fair and Accurate 14

Nashville Bar Journal â&#x20AC;˘ June / July 2016

Credit Transactions Act (FACTA) clearly obligate lawyers to protect certain types of data in their possession. States have also imposed obligations on law firms and businesses to protect personally identifiable information (PII) including driverâ&#x20AC;&#x2122;s license and social security numbers. Failure to do so can result in civil action, suits and penalties. Lawyers are also tasked with complying with their ethical duties as spelled out in the ABA Model Rules of Professional Conduct 1.1 and 1.6. Any violation may result in a malpractice lawsuit and potential disciplinary action. To compound matters almost every law firm today goes through a myriad of IT systems and security audits at the demand of their corporate and government clients. Failure to meet clientâ&#x20AC;&#x2122;s requirements may result in the loss of business or significant infrastructure investment to bring the firm into compliance. This is particularly true of firms who work in the financial and healthcare industries. Therefore, responsible firms should pursue either an internal examination or external independent audit that looks at the following areas of information security. While this list is not exhaustive, it is a good first step into making security conscious decisions and laying the groundwork for a holistic approach to security. 1. The Cloud Law firms should use cloud providers that can reasonably protect and provide assurances on overall data security. Knowing the answers to the following questions should help in the selection process: Will the data be encrypted? Who holds the encryption keys? Is the data encrypted in Transit and in Motion? Continued on page 16

Save the Date | October 13, 2016 Music City Center The Nashville Technology Symposium is being put on by LogicForce Consulting in partnership with the Nashville Bar Association and will provide a one-day, dual track CLE seminar in Nashville on legal technologies. The hallmark of this Symposium is sophisticated, cutting-edge content presented by an expert panel of nationally renowned scholars, judges, and attorneys and will cover some of the most relevant and challenging topics in legal technology, including:

Technology in the Law Big Data Explosion: How to Manage & How to Get Rid of It Cyber Security in the Law Firm Protecting your Data Best Practices for Legal Document Management Big Data Implications to Litigation Analytics

This yearâ&#x20AC;&#x2122;s Symposium will offer CLE credits along with valuable networking opportunities. Breakfast and lunch will be provided and a cocktail reception will follow the last panel of the day. Earn quality CLE credits and take advantage of all that Music City has to offer! For more information and registration, visit NashTech.LogicForce.com. Please be sure to use the registration code "NBA". Nashville Bar Journal â&#x20AC;˘ June / July 2016

Continued from page 14

Might it be subject to international search and seizure? Has your client approved of data being stored in the cloud? Does the provider provide Litigation Hold technology preventing deletion of data? What auditing and security capabilities are available with the platform? 2. Email Security Law firms need to consider using email encryption. There are many forms of email encryption. These options include utilizing a third party service to encrypt the content of your messages, encrypting your email database/file system, and finally encrypting emails in transit. Utilizing third parties or encrypting the email databases can pose challenges to end users. However, ensuring the communications channel between your email system and the recipient’s email system can be a seamless process for both end users. 3. BYOD: Bring Your Own Device Best practice is to have a clearly written BYOD policy regulating usage with the law firm having ultimate control over all devices. Strong consideration should be given to installing software that can remotely wipe all data from devices in the event an employee should leave the firm. Mobile device management platforms that support containerization of business and personal data, enhanced security controls, encryption key escrow, and tracking and management of mobile devices is of extreme importance. 4. Encryption All portable devices—phones, tables, laptops, media—are subject to loss or theft. Encrypting them not only makes sense, but with today’s technology, this is a very easy step to accomplish in mitigating the risk to critical firm or client data. 5. Password Policy All firms should have a policy that

mandates passwords are changed at certain intervals throughout the year with characterizations consisting of numbers, letters and special characters. It is also important to note that a password of 12 characters is significantly more difficult to crack (years) than a password of 8 characters (2 hours). Another thing to consider is to allow the use of dictionary words, but extending the password requirements to be greater than 16 characters.

matters are law firm clients who are becoming increasingly more sophisticated about data security requirements and demanding their lawyers and their firms have systems in place to ensure compliance. Failure to protect client data by a law firm can result in disastrous monetary and reputational consequences. Therefore, instituting a comprehensive data security program at the enterprise level of every firm is a necessary cost of doing business. n

6. Training Everyone in the firm should understand the ethical and professional responsibilities they have to ensure that data in their possession is protected. General Counsel should clearly articulate the data governance and IT security policies of the firm as well as the expectations for compliance. Periodic training updates and refresher courses are highly recommended as it human nature to revert to old habits that may put data security at risk.

Jordan McQuown, CISSP and John Sweeney are Partners at LogicForce Consulting. Find out more at LogicForce.com.

7. Wireless Wireless access points are considered untrusted devices. The ability to exploit laptops that are utilizing “public” Wi-Fi does not require any skill. Mobile employees should be equipped with company or personal hotspots to protect company assets. 8. Cyber Errors and Omissions Insurance Policy Every Law Firm should have Cyber E&O coverage. The very survival of the business may depend on it! Most policies cover the cost of litigation, loss of income, and client notification. In some cases, it can also cover regulatory fines, penalties, and miscellaneous expenses.

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Take a Progammatic Approach to Data Security In closing, data breach is a very real threat and has become an ever-growing concern to Managing Partners and CIOs of law firms around the world, regardless of size or practice areas. Complicating Nashville Bar Journal • June / July 2016

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Nashville Bar Journal • June / July 2016

Summer Wellness: Taking Care of You By Karl Warden

Over the years I have observed that many lawyers, including myself, let the practice of law get to them. This personal observation has been confirmed by the findings of the ABA, Hazelden Betty Ford Foundation study on attorney substance abuse and mental health issues, which was discussed in the NBJ April cover story.1 The results of the study are brutal. For example: • 21% of licensed, employed attorneys qualify as problem drinkers • 28% struggle with some level of depression • 19% demonstrate symptoms of anxiety2 Attorneys with less than 10 years of experience have higher problem rates than more experienced attorneys. Alarmingly, the study found more than 33% of attorneys are problem drinkers.3 For perspective, the adult general population alcoholism rate is believed to be 7%.4 This article is not specifically aimed at lawyers who drink more than they should. Problem drinkers might benefit from reading the article. At the same time, I don't want anyone to dismiss the contents of this article because they do not think they have a problem.

the most important things an attorney can bring to a case. Second, I take on a responsibility for solving the problem, for getting the client out of the predicament into which the client has placed himself. It is an easy trap and one into which I fell myself. The responsibility of making the client’s life all better is an awful lot of emotional baggage to carry around. In my experience, it is destructive emotional baggage to carry around. You may think becoming emotionally invested in a case is all part of doing a good job. When in reality, it is a direct route to making wrong decisions, to having feelings of guilt when things don’t work out the way you think they should, and it leads to being unhappy. You might also believe that there is no escape from emotional involvement. Only a heartless gunslinger attorney does not become emotionally involved in a case. Truth is, you can escape emotional entanglement. It takes being conscious of what you are doing and feeling, but it can be done. Your responsibility is to do the best you can. You are not responsible for the result.

The tensions and feelings set forth in this article are not just theory. I have lived them. The ways of dealing with tensions and feelings, although I use them, do not originate with me. Like any other lawyer looking to draft a will, interrogatories, jury instructions and the like, I have borrowed copiously from folks wiser than myself. Your client has the problem—not you.

This is a self-evident truth. We lawyers tend to ignore it. Step back and examine the logic behind feeling you are responsible for the outcome of a case. Look with clear eyes at how many things you are actually in charge of versus how many things you are out of your hands. What you are actually in charge of is a short list. You are in charge of you and your employees, of preparing adequately, of being organized about what you are doing, and doing the best you can.

Every time I become emotionally involved in the client’s problem I do two bad things. First, I lose my objectivity, which is one of

Here is a partial list of things you are not in charge of: Your client, your client’s issue, the law, the witnesses, your opponent, the other

Nashville Bar Journal • June / July 2016

party, the evidence, the judge, and the jury. How can anyone logically think they are in charge of the outcome when most factors are not in their control at all? Yet I did, and many of us do all the time. It is natural to want the best result possible for your client. My experience was that I would take on responsibility in my head for fixing the mess the client had gotten into. Then, I was anxious and no longer truly objective. The quality of my work would decline as I took on the emotions of the client instead of the attorney. It is our duty as attorneys to work towards the best possible result for our clients. As long as we do the work as best as we can, that's all we can do. Beyond that, the outcome is up to too many different people and too many different factors to assume we are responsible for an outcome. It's okay to ask for help. It's not only okay to ask for help, but also reasonable and healthy. No matter what you do, no matter how much experience you have, you are bound to come across a case that baffles you. This isn't because you aren't smart enough or not learned enough. It happens because we attorneys deal with real life. Real life can get messy. Picking apart that mess and putting it back together in some useful form is not always something any of us can do alone. There is always someone who can help you. If you are in a solo practice, there are still many sources for help. Join your local bar association or a practice committee in your area of law. Join an online forum in your area of law. Meet other attorneys and get to know them and talk with trusted friends. More than a few attorneys with experience are willing to help out those of us with less experience. Most of us are flattered when

someone asks for help. Many of us never ask for help because it might mean that someone (even ourselves) will get the impression we aren’t as smart/good/ able as we want everyone to believe. The thing is, people who ask for help learn and end up doing a better job for their clients than those who do not ask for help. I have had plenty of attorneys ask me questions and have never assumed they weren't smart enough or inadequate in any way. Again, I am generally flattered and happy to share. You Can Step Back From Your Feelings Earlier, we discussed the fact that you do not have to be a slave to your feelings. Sometimes our feelings are useful and might make us happy. However, it is when our feelings make us believe that we ought to be perfect, or don't need help, or are responsible for an outcome, that we ease ourselves down the road of mental issues and alcoholism. So, if having feelings is a natural part of human existence, how do we escape? The answer is, we don't. We must acknowledge the

feeling and then take a step back. While it takes practice, you can recognize when your feelings are overcoming your common sense. Once you recognize this is happening, you can take a step away from those feelings and view them in the light of reason. Then you can ask yourself if you are benefitting, or suffering, because of your feelings. No one I know is perfect at the practice of stepping back from their emotions. Practice with something small and insignificant and you'll see how stepping back can help with bigger emotions. When you are waiting to turn left against traffic, there will almost always be that car that is going just fast enough to keep you from turning—and—slow enough that all the cars behind it will catch up by the time it gets past. You have every right to be mad and can indulge in being in a bad mood for a good 10 minutes or so. Instead, make the decision to not let it bother you. Amazingly enough, you might find you don't get mad and actually find yourself in a good mood. My experience is that doing this on every day frustrations makes my life better and allows me to trust the process of stepping back from my emotions on big things as well. So, if my opponent acts like a jerk—and you know that we atContinued on page 21

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Nashville Bar Journal • June / July 2016

Birchfield v. North Dakota Continued from page 11

of the individual subject to the search. Minnesota argued the government’s interest in protecting the public and prosecuting drunk drivers is substantial.25 By contrast, the states asserted, the breath test was only “minimally intrusive”—essentially requiring the suspect to blow into a straw for four to fifteen seconds—and measures only the arrestee’s blood-alcohol level, without disclosing any other facts about the driver.26 The states proffered that drunk drivers have relatively few expectations of privacy either while they are driving on a public road or in police custody. Plus, they argued, the sweep of the law is narrow: it applies only to drivers whom the police have probable cause to believe are drunk.27 The Petitioners countered that states cannot make a benefit like driving contingent on giving up a constitutional right. They argued that to believe that drivers will “understand that they have granted consent to be tested simply by virtue of driving in North Dakota” is unfounded, especially in a large, car-dependent state like North Dakota, that has little in the way of mass transit and where driving is an essential part of residents’ lives.28 In an amicus brief the federal government filed in support of the states’ position, the government offered that: (1) the proper test is whether the government is asking someone to surrender a constitutional right to obtain a benefit that “has little or no relationship to the condition imposed”; (2) one cannot separate the danger a driver poses to others on the road and their driving privileges; and (3) is no bright-line rule that prohibits the government from ever putting any conditions on the exercise of constitutional rights.29 Commentary As one might expect, the questioning by the Justices followed the ideological path the Roberts Court is known for. Interestingly enough, the Justices did not seem to focus on the law per se. They were more interested in the facts as they were in Schmerber. They continually asked the parties to explain how the facts should influence the outcome. It appeared to this observer Court did not get answers they were looking for. Each side stayed on message instead of answering the question. At times the Court appeared to be taking the position that since the majority of blood, breath, and urine tests were taken either at a hospital or the police station, it was conceivable that in today’s digital world, a police officer could call for a warrant in the time it took to reach the hospital or police headquarters. Therefore, a warrantless search was not justified absent the exceptions already carved out in previous decisions. This would seem to suggest that if a warrant is needed, criminal penalties should be imposed under the state’s criminal code and not the implied consent statutes. 20

Nashville Bar Journal • June / July 2016

The decisions in Schmerber and McNeely have shown the Court has been unwilling to make sweeping changes in how it interprets the Fourth Amendment in DUI cases. Will the Court continue this pattern or broaden the scope? The fact that the Court chose these particular cases may provide a clue. The combined cases have all the elements: a refusal to consent, the implied consent test, and blood and breath tests. Perhaps, the Court is signaling its willingness to address the implied-consent laws, the “unconstitutional conditions” argument, and underlying Fourth Amendment issues in a comprehensive way this time around. We will see. n Endnotes 1 Michael J. Oh, Missouri v. McNeely: What Does This Mean for DUI Enforcement? 80 POLICE CHIEF 16 (Aug. 2013), available at PoliceChiefMagazine.org/magazine/index. cfm?fuseaction=display_arch&article_id=3002&issue_id=82013. 2

Id.

Steven Schwinn, Fourth Amendment: Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. Levi (14-1468, 14-1470, and 14-1507), 43 ABA PREVIEW (Apr. 2016), AmericanBar.org/publications/preview_home/articles/15-16_issue7vol43_schwinn_birchfield.html.

Birchfield v. North Dakota, 858 N.W.2d 302 (2015); State v. Bernard, 844 N.W.2d 41 (2014); Beylund v. Levi, 859 N.W.2d 403 (2015).

Birchfield. 858 N.W.2d 302.

Id.

Schwinn, supra note 3.

Id.

Schmerber v. California, 384 U.S. 757, 770 (1966). at 770.

Id. at 772.

Missouri v. McNeely, --U.S. --, 133 S.Ct. 1552 (2013).

Id.

Id. at 1562.

Bernard, 844 S.W.2d 41.

LII Supreme Court Bulletin: Birchfield v. Northfield (14-1468), CORNELL UNIV. LEGAL INFO. INST., Law.Cornell.edu/supct/cert/14-1468.

Id.

Birchfield, 858 N.W.2d 302.

State v. Birchfield, No. 20140109, ¶6 (N.D. 2015), available at ScotusBlog.com/ wp-content/uploads/2015/12/State-v.-Birchfield-2015-ND-6-858-N.W.2d-302.pdf. 20

Id.

Beylund, 859 N.W.2d 403

24 Amy Howe, Argument analysis: Criminal penalties for refusal to take a Breathalyzer test in jeopardy?, SCOTUSBLOG (Apr. 20, 2016) ScotusBlog.com/2016/04/argument-analysisContinued on page 24

Summer Wellness: Taking Care of You Continued from page 19

torneys do—I do not have to get mad, frustrated, or experience negative emotions. By stepping back from my emotional reaction, I can maintain my serenity. Equally as important, I can maintain my objectivity and therefore, benefit my client. We worry about how we are impressing others. We try to appear intelligent, hardworking, and important. And we suffer when we worry that people do not perceive us as they are supposed to be perceiving us. Here is a secret: Nobody cares. Do not sell yourself short. I cannot tell you how many times I've fallen into the trap of “Oh sure, I’ll give you a discount because. . . .” We are in the practice of law to earn a living. Sure, you can—and should—do some pro bono work. Just make sure when you are doing so that you intend it to be pro bono work. Giving a discount because a client says you're too expensive means you've them see you as a discount lawyer. You're probably not worth what you charge, so payments can be late and advice can be ignored. When we see our hourly rate veering towards minimum wage, we tend to resent what we're doing and the client that is “making” you do it. It's a guarantee that we do a less than premium job. To make the pain even worse, you could be doing law for someone else and earning your hourly rate. Oh, don't forget that the discounted client will refer other clients expecting a discount. Just like setting a reasonable fee, set a reasonable retainer. Do not be a victim. It's a natural human inclination to think that you are the victim of bad circumstances. This is great as long as you like suffering. Personally, I am not a big fan of suffering. So, when I'm intentional about what I'm doing and start to feel like a victim, I know it's time to figure some things out. I need to see what it is that I did to cause the victim (me) to suffer. Sure, other people may have contributed to it, but I always find that I had a big hand in my victimhood as well. Why would I do something as ill-considered as blaming myself for my problems? There is power in looking at my part in my problems. If I recognize my part in the problem, I can change things and alleviate my victimhood. If I take on a case I shouldn’t have taken, I get out of it. If people think I failed, maybe I did. So what? None of us are perfect. The notion that I had to be perfect caused me more harm than almost anything else I ever thought in my life. Get out of the case. Ask for help. Admit and correct mistakes. Get past it. Once again learn what it is like to get up smiling.

Remember, fear is a wall that is 1,000 miles high and 1,000 miles wide. If you messed something up, admit it, take ownership, and go about fixing the mistake before the problem snowballs. Malpractice defense attorneys put on seminars where they encourage attorneys to call them in before an adverse judgment. Just doing something constructive will bring you immediate mental relief. It might even help solve the problem. If the problem cannot be solved, at least you spend less time fearing the consequences. By the way, the problem can be solved. Time is a precious thing. One of the biggest mistakes I ever made in the practice of law was not reserving time for my family and myself. If a client called at night, I answered. If a client called on the weekend, I answered. Getting up on a Saturday or Sunday morning and doing work was a norm. I placed no separation from work while I was physically at home. That meant my time at home did little to recharge my batteries. We attorneys can do little for a client past office hours except listen to them most of the time. When I made a practice of answering calls on nights and weekends, my clients didn't get down on their knees thanking me for sacrificing my personal life to hear their issues. Instead, my clients simply expected me to listen to them whenever they had time to fret about their case. The time my clients had when it was convenient to fret about their cases was after they were home from work. They were not grateful and I was building up resentments towards them. Of course, I was training them to feel free to call at night because I answered the phone and listened to them. Unless I there is a good reason to answer the phone, I do not answer my work number at night. My cell phone is no longer a leash; it is a tool. If it's urgent, the client can leave a voice mail. Think about it this way, a client who is too impatient to wait for office hours to make a call may well be a client whose impatience turns a good case into a bad case. The same goes for meeting clients out of the office or after work hours. There may be times when it's necessary because of a physical challenge a client has. However, inconvenience for the client is not a good reason to come to their place, especially out of normal office hours. If the matter is important enough for the client to retain you, it is important enough for the client to figure out how to take a little time off from work to see you. If the client cannot find a way to meet with you in your office during office hours, how are they going to find time to deal with all of the activities of a case? Too much is too much. Lawyers sometimes face a temptation to take on a case just because of the fear that there may never be another case. That sounds extreme, but look back at cases you began regretting not too long

Continued on page 24

Nashville Bar Journal • June / July 2016

The End of Collaboration Continued from page 9

protection.

Endnotes 1 Brewers Association, Number of Breweries: Historical U.S. Brewery Court (2016), BREWERS ASSOCIATION, BrewersAssociation.org/statistics/number-of-breweries. 2

There were 1,653 breweries in 2009. Id.

AVERY BREWING, AveryBrewing.com/collaborationnot-litigation-ale/.

Design patents can also be used for brand development on items that are not in the stream of commerce, such as brewery equipment. Many breweries and brewpubs invest considerably into making their facilities distinctive, using ornamental components and equipment to evoke a specific look and feel. Design patents can help protect the ornamental components of your brewery even where components are not a part of your mass market brand-

The Simpsons: Homer vs. the Eighteenth Amendment (FOX television broadcast Mar. 16, 1997; season 8, episode 18).

5 Budweiser USA, 2015 Budweiser Super Bowl Commercial “Brewed the Hard Way,” YOUTUBE (Feb. 1, 2015), YouTube.com/watch?v=siHU_9ec94c.

Nashville Bar Journal • June / July 2016

SESSION LAGER, Registration No. 4,265,585.

U.S. Trademark Application Serial Number 86,527,348 (filed Feb. 6, 2015).

23 Bill Donahue, Brand Battles: Ford, Session Beer, Star Wars, LAW360 (June 26, 2015), Law360.com/articles/672790/ brand-battles-ford-session-beer-star-wars.

NARWHAL, Registration No. 4,273,521.

See NARWHAL BREWERY, NarwhalBrewery.com/. Despite the similar branding and logo, Finback Brewery’s new website, FinbackBrewery.com, makes no direct mention of its late predecessor.

Danielle Teagarden, Seattle Brewery Trademark Dispute Gets Acidic: Issues with Tangerine Wheat, BREWERY LAW BLOG (Apr. 11, 2015), BreweryLaw.com/2015/04/ seattle-brewery-trademark-dispute-gets-acidic-fermentwith-me-over-tangerine-wheat.

U.S. Trademark Application Serial Number 86,526,281 (filed Feb. 5, 2015).

Conclusion Faced with exponential growth and increasing competition, breweries must consider brand protection early or risk losing market share and brand investment to breweries that obtained intellectual property protection early. Breweries are learning that good intentions and a collaborative industry spirit are no longer sufficient to protect their brands and fans from confusingly similar products. By engaging an intellectual property attorney early, breweries can continue to operate with at least some of the optimism and collaborative intent that has defined the industry for years, as brewers can now offload the challenges of brand protection and publicity to counsel and focus on what they do best: brewing delicious craft beer for everyone—including the competition—to enjoy. n

TANGERINE WHEAT, Registration No. 4,509,582.

Stafford and Lee launched Finback Brewery with the help of a Kickstarter campaign. Love Beer, Love Finback: a new brewery in Queens, KICKSTARTER (campaign Sept. 8, 2013 – Oct. 10, 2013), KickStarter.com/projects/1194817137/love-beer-love-finback-a-new-breweryin-queens/description.

U.S. Patent No. D188,371 for a beer fermentation tank.

ing initiative—for example, uniquely styled fermenting tanks.

(Jan. 14, 2015), GoodBeerHunting.com/blog/2015/1/14/ uawfc3z6nsdi9etplzvca53389r5jk; Reid Ramsay, Lagunitas Files Legal Complaint Against Sierra Nevada [UPDATED], BEER STREET JOURNAL, BeerStreetJournal.com/ lagunitas-files-legal-complaint-sierra-nevada (comments) (last visited Jan. 18, 2016).

Jonathan Shikes, Renegade Changes the Name of Ryeteous IPA after Legal Threat from Brooklyn’s Sixpoint Brewery, WESTWORD (Feb. 21, 2013), Westword.com/restaurants/renegade-changes-the-name-of-ryeteous-ipa-afterlegal-threat-from-brooklyns-sixpoint-brewery-5759975; RIGHTEOUS ALE, Registration No. 3,928,021.

#9, Registration No. 2,024,581.

Magic Hat IP, LLC et al. v. West Sixth Brewing Company, LLC 5:13-cv-00136 (E.D.Ky. May 25, 2013).

14 WEST SIXTH BREWING, No More Magic Hat, WestSixth.com/no-more-magic-hat/ (last visited Jan. 18, 2016).

Press Release, Magic Hat calls BS on West Sixth’s media campaign after lawsuit, BEERPULSE.COM (May 21, 2013), BeerPulse.com/2013/05/magic-hat-calls-bs-onwest-sixths-media-campaign-after-lawsuit-407; WEST SIXTH BREWING, Response to Magic Hat, WestSixth. com/response-to-magic-hat (last visited Jan. 18, 2016). Magic Hat amended its complaint against West Sixth to allege false advertising and trade disparagement resulting from West Sixth’s social media posts. See Magic Hat IP, First Amended Verified Complaint, (Docket No. 7).

Chris Furnari, Magic Hat and West Sixth Brewing Resolve Trademark Dispute, BREWBOUND (June 6, 2013), Brewbound.com/news/magic-hat-and-west-sixthbrewing-resolve-trademark-dispute. 16

The Lagunitas Brewing Co. v. Sierra Nevada Brewing Co., 4:15-cv-00153 (N.D.Cal. Jan. 12, 2015); LAGUNITAS IPA, Registration No. 4,689,768.

See, e.g., Michael Kiser, Critical Drinking — Why the Lagunitas Lawsuit Matters, GOOD BEER HUNTING 18

Session Beers, Defined, BEERADVOCATE (Dec. 10, 2005), BeerAdvocate.com/articles/653.

Johnathan Shikes, In an Era of Trademark Battles, Would Avery and Russian River Still Collaborate, Not Litigate? WESTWORD (Feb. 5, 2014), Westword.com/ restaurants/in-an-era-of-trademark-battles-would-averyand-russian-river-still-collaborate-not-litigate-5753330.

Id.

27 C.F.R. Part 7.29 – Prohibited Practices.

OHIO REV. CODE ANN. § 4301:1-1-44.

See, e.g., Santa’s Private Reserve Ale, ROGUE, Rogue. com/rogue_beer/santas-private-reserve (last visited Jan. 18, 2016).

Flying Dog Brewery LLLP v. Mich. Liquor Control Comm’n, No. 12-1984, slip op., at 6 (6th Cir. Mar. 5, 2015).

Flying Dog Brewery, LLLP v. Mich. Liquor Control Comm’n, 870 F. Supp. 2d 477 (W.D. Mich. 2012).

31 U.S. Trademark Application Serial No. 85,886,282 (filed Mar. 26, 2013). 32

NO BOUNDARIES, Registration No. 4,242,366.

Ste. Michelle Wine Estates, Ltd. v. Timberline Brewing Co., dba Twisted Pine Brewing Co., Case No. 2:15-cv-678 (W.D. Wash. Apr. 30, 2015).

U.S. Patent Nos. D582,213, D569,189.

See, e.g., U.S. Patent No. D411,710.

Registration Nos. 4,004,750 and 4,004,751.

Port Brewing, LLC v. Moylan’s Brewing Company et al, Case No. 3:10-cv-1826 (S.D. Cal. Sept. 2, 2010).

Ryan D. Levy is a shareholder at Patterson Intellectual Property Law, PC in Nashville. His practice includes patent and trademark litigation, as well as

management of client’s intellectual property portfolios. He received bachelor’s degrees in biochemistry and chemical engineering from N.C. State University in 2001 and his law degree from Duke University School of Law in 2005.

Judge Seth Norman Presented the Jack Norman, Sr. Award at Law Day By David L. Raybin

Gary L. Montle is a shareholder at Patterson Intellectual Property Law PC in Nashville. His practice generally includes patent and trademark prosecution, most particularly in the technology fields of electronics, electromechanical systems and computer software. He received a B.S. in electrical engineering with a focus on control systems and instrumentation from the University of Tennessee-Chattanooga in 1996 and his J.D. from Vanderbilt University School of Law in 2008. Seth R. Ogden, Ph.D., is an associate at Patterson Intellectual Property Law PC in Nashville. His practice includes patent and trademark litigation and prosecution, patent due diligence and opinion work, and client counseling for all types of intellectual property, including implementation of trade secrets policies and procedures. He received his Ph.D. in Cancer Biology from Vanderbilt University in 2009 and his law degree from American University Washington College of Law in 2012. Wade K. Sims is an attorney with Patterson Intellectual Property Law. His practice focuses on intellectual property litigation in patent, trademark, copyright, and trade secret matters, with experience in emergent technology matters including software licensing, digital rights management, data access and privacy, encryption, and drone law. He received his law degree from Belmont University College of Law in 2014.

David L. Raybin presenting the Jack Norman, Sr. Award to Judge Seth Norman.

The Jack Norman, Sr. Award was presented at the Law Day celebration to Judge Seth Norman, Jack Norman, Sr.’s son. The award was created in 1996, after the death of Mr. Norman, Sr. who was—without question—the finest criminal lawyer our city has ever produced. The Norman Award is given to an attorney, prosecutor, or judge who demonstrates a lifetime of respect for the rights of all individuals in the criminal justice system. Judge Norman graduated from Nashville School of Law in 1962, and entered the private practice of law with his father and his brother. He also served in the State House. In 1990, Judge Norman was elected judge of Division IV of the Criminal Court for Davidson County, then re-elected in 1998, 2006, and 2014. When he first assumed the Bench, Judge Norman ascertained that 70% of the criminal cases in Davidson County involved drugs or alcohol. He became aware of a new court concept that was being used in Miami, Florida, called a “drug court”. The concept involved treating non-violent felons rather than sending them to jail. He discussed the matter with the other judges and obtained a federal grant to study the feasibility of such a court. As a result, the Davidson County Drug Court was created. The Court was originally set up as an out-patient facility. However, within six months it became apparent that long-term residential treatment would be necessary. Fortunately, Judge Norman was able to obtain the use of an old building that had housed the Middle Tennessee Mental Health complex. After several years of operation, Dell Computer chose to come to Nashville and needed the space occupied by the drug court. As a result, the Metropolitan Government built the current drug court facility on County Hospital Road. The complex can accommodate 60 males and 40 females. Judge Norman holds court at this facility every Tuesday at 5:15pm. Six years ago, the Thirteenth Judicial District—comprised of seven counties around

Continued on page 24

Nashville Bar Journal • June / July 2016

Summer Wellness Continued from page 21

after you took them on. The regret may be because you were too busy to do a good job on that case, or because you had no idea what you were doing and were having to spend a lot of time figuring it out, or getting lectured by irritated judges. You know how busy you are. You know what areas of law baffle you. If you take on a case when you are too busy to take it on, or you know nothing about the area of law, why did you take the case on? The money up front was irresistible? Sometimes money is just too expensive. Jeff Levine, a wise friend, once counselled me that my initial response to any potential client asking me to take on the case should be a silent “NO.” Then, only when I have thought through all the implications of taking on the case and found the positives outweigh the negatives, should I say “yes”. Every time I ignore that advice I end up regretting it. Summary There will always be multiple opportunities to make your life miserable practicing law. I hope this article gives you a few tools to explore the possibility of not being miserable. My experience is that the only person who can make myself truly miserable is me. Conversely, the only person who can bring me peace is me. Living in peace is a lifelong task and one that is worth every second of effort. The Tennessee Lawyers Assistance Program (TLAP) is not the Tennessee Alcoholic Lawyers Assistance Program. It's for attorneys who need help. If you have a problem and need a place to turn, give them a call at 615. 741.3238 or 877.424.8527 or visit TLAP.org. They are friendly, confidential, helpful, and free. If they cannot help you, they will direct you to someone who can. n Endnotes 1 Tracy Kane, Unwell: Lawyers and the Art of Practic-

Nashville Bar Journal • June / July 2016

ing Wellness, 16 Nash. B.J. 6 (Apr. 2016), available at NashvilleBar.org/Publications/NBJ/archives.html; see also Tracy Kane, The Road to Wellness, 16 Nash. B.J. 9 (May 2016). Press Release, ABA, Hazelden Betty Ford Foundation release first national study on attorney substance use, mental health concerns (Feb. 3, 2016), AmericanBar. org/news/abanews/aba-news-archives/2016/02/ aba_hazelden_betty.html. 2

Id.

4 National Institute on Alcoholism and Alcohol Abuse, Alcohol Facts and Statistics (Jan. 2016), NIAAA.nih.gov/alcohol-health/overview-alcoholconsumption/alcohol-facts-and-statistics.

Karl D. Warden, JD, LLM focuses on estate planning, asset protection, business law, transactions, probate, and elder law. He is also a Fellow of the Nashville Bar Foundation.

Birchfield v. North Dakota Continued from page 20

criminal-penalties-for-refusal-to-take-a-breathalyzer-testin-jeopardy/; see also Amy Howe, Argument preview: Warrantless DUI tests and the Fourth Amendment, SCOTUSBLOG (Apr. 15, 2016), ScotusBlog.com/2016/04/ argument-preview-warrantless-dui-tests-and-the-fourthamendment. 25

Id.

Mike Sandler is in solo practice. His firm, Mike Sandler Law, PLC, specializes in cyber and information security issues, automotive and franchise law, consumer rights, civil litigation, mediation, and family law. He is a Tennessee Supreme Court Listed Rule 31 Civil & Family Mediator, a graduate of the Nashville School of Law and holds a Masters in Information Security from Lipscomb University. You can reach Mike at 615.881.4499 or mike@mikesandlerlaw. com.

Judge Seth Norman Award Continued from page 23

Cookeville and Crossville—approached Judge Norman and asked if he would help start a drug court. Judge Norman now presides over that Drug Court, which meets two Thursdays a month. He also presides over a Veteran’s Court in that District, which meets at 4:30pm on those same Thursdays. Three years ago, the State of Tennessee asked Judge Norman if he would help establish a facility in Morgan County. That long-term residential treatment facility is similar to the one in Davidson County. Twice each month Judge Norman and his driver/court officer leave Nashville at 6:00am and make the 160 mile drive to Morgan County. After Morgan County Court, they drive 80 miles back to Cookeville where he holds Court for the Thirteenth Judicial District Drug Courts. He usually arrives back in Nashville around 7:30pm. In addition to the various Drug Courts, Judge Norman continues to maintain his regular Criminal Court Docket in Nashville. One wonders when Judge Norman gets to sleep. On April 12, 2016, Governor Haslam spoke at the 20th anniversary of the Davidson County Drug Court. It has been a wonderful success and is emulated across the country. Judge Norman told me that early in his legal career he asked his father to help him with his first jury trial. His father agreed. While Judge Norman was up picking a jury he turned to his father to ask for some advice and found that his father was gone. He had to try the rest of the case alone. Judge Norman learned from the “sink or swim” lessons his father taught him and has certainly added luster to the Norman Award. n With more than 35 years of experience, David L. Raybin heads the criminal defense section at Raybin & Weissman, PC.

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Nashville Bar Journal • June / July 2016

The NBA 100% Club is our special category of membership for law firms who have demonstrated an outstanding commitment to the legal profession and our community, and by the work done through the NBA programs and services. If your firm has three or more attorneys based in the Nashville market, you can indicate your commitment by having 100% of your attorneys as members of the Nashville Bar Association. As a 100% Club Law Firm, you will be recognized as a key supporter of the Nashville legal community through inclusion on NashvilleBar.org, in our NBA Weekly Update e-blast, and right here in this publication. We want to recognize YOU for your support!

Aaron | Sanders, PLLC (3) Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (103) Bone McAllester Norton, PLLC (39) Brewer, Krause, Brooks & Chastain, PLLC (14) Buffaloe & Associates, PLC (4) Burrow Lee, PLLC (3) Butler Snow LLP (58) Cameron Worley, PC (3) Cornelius & Collins, LLP (17) Corrections Corporation of America (9) Dobbins, Venick, Kuhn & Byassee, PLLC (4) Dodson Parker Behm & Capparella, PC (10) Farris Bobango, PLC (5) FordHarrison LLP (4) Frost Brown Todd LLC (27) Grissim & Hodges (3) Gullett, Sanford, Robinson & Martin, PLLC (28) Hale & Hale, PLC (4) Hall Booth Smith, PC (11) Haynes, Freeman & Bracey, PLC (4) Hollins, Raybin & Weissman, PC (6) Holton & Mayberry, PC (4) Howard Mobley Hayes & Gontarek, PLLC (8) Kay, Griffin, Enkema & Colbert, PLLC (9) Larry R. Williams, PLLC (4) Law Offices of John Day, PC (6) Leader, Bulso & Nolan, PLC (5) Legal Aid Society of Middle Tennessee (12) Leitner, Williams, Dooley & Napolitan, PLLC (8) Levine, Orr & Geracioti, PLLC (6) Lewis Thomason (28) Lieff, Cabraser, Heimann & Bernstein (4) Littler Mendelson, PC (8) 26

Nashville Bar Journal â&#x20AC;¢ June / July 2016

Loeb & Loeb, LLP (5) Martin Heller Potempa & Sheppard, PLLC (6) May, Hagan & Todd, PLLC (3) McAngus Goudelock & Courie, LLC (7) Mink & Duke, PLLC (3) MTR Family Law, PLLC (3) Nashville Electric Service (4) Neal & Harwell, PLC (31) Nelson Mullins Riley & Scarborough (14) North, Pursell & Ramos, PLC (8) Ogletree, Deakins, Nash, Smoak & Stewart, PC (14) Ortale, Kelley, Herbert & Crawford (23) Patterson Intellectual Property Law, PC (20) Prochaska Quinn & Ferraro, PC (3) Reid Leitner Law Group, PLLC (3) Reno & Cavanaugh PLLC (5) Riley Warnock & Jacobson, PLC (18) Robinson, Reagan & Young, PLLC (4) Sarah Cannon Research Institute (3) Shackelford, Bowen, McKinley & Norton, LLP (7) Sherrard Roe Voigt & Harbison, PLC (34) SIMS|FUNK, PLC (3) Smythe Huff & Hayden, PC (4) Spicer Rudstrom, PLLC (13) Stites & Harbison, PLLC (30) Taylor, Pigue, Marchetti & Blair PLLC (6) Tennessee Justice Center (4) Trauger & Tuke (5) Watkins & McNeilly, PLLC (11) Waypoint Law PLLC (3) Weatherly, McNally & Dixon, PLC (3) White & Reasor, PLC (6) Wiseman Ashworth Law Group, PLC (7)

NBA MEMBERSHIP BENEFITS The Nashville Bar Association helps build a sense of community and camaraderie among our members and comes with tangible and intangible benefits for your career, profession, and community. Our members come from the public and private sectors, from large multi-state firms to solo practices; they are judges, in-house counsel, law students, paralegals, educators, and everything in between.

HERE ARE A FEW OF THE MANY REASONS TO BELONG TO THE NBA... Connect with Your Local Legal Community The NBA provides numerous opportunities to meet and connect with other local Nashville area attorneys. Through networking, social events, continuing education, committee work, and other career and personal development opportunities, we help bring our profession together. Don’t just hang out with familiar faces… Use your NBA membership to build your network of contacts. Expand Your Business and Client Base Build relationships, network, and gain referrals through activities and programs, CLEs, committee work, volunteer projects, or by joining the NBA Lawyer Referral and Information Service at the discounted NBA member rate. Be a Better Lawyer Learn from fellow lawyers and judges at NBA events. Enhance your professional development through high-quality CLE programs and committee in-service meetings, and stay informed with insightful and timely articles within the Nashville Bar Journal. Sharpen Your Practice Skills with CLE Attend our innovative and engaging CLE courses featuring local, regional, and national presenters. Our skilled faculty will keep you current on the nuts and bolts of the law, local rules and customs, ethics and professionalism, winning practice strategies, and key practice procedures—all at special NBA member rates. Be educated, enlightened, and entertained by keynote speakers and other special guests from the legal community. Give Back to the Community Serve the public and help improve the image of lawyers by participating in community service projects offered by the Young Lawyers Division and the NBA throughout the year, or volunteer for Dial-A-Lawyer—a free call-in service where members provide general legal information to the public. Be a Leader Set the pace in the legal community by serving on committees, publishing Nashville Bar Journal articles, helping produce or present CLE seminars, joining the Young Lawyers Division, participating on the NBA Board, or working with the Nashville Bar Foundation. Refresh and Renew Yourself Take time out from your daily routine to attend a Bar event or activity—such as the annual Golf Tournament, the Free Member Picnic, or one of our many Happy Hour gatherings—and catch up with old friends and unwind with new ones. Save on Personal & Business Expenses Through your NBA membership, you can save money on things like seminars, legal publications, legal resources, phone and internet services, credit card processing services, IPSCO professional liability insurance, and banking needs with First Tennessee. Savings on life, major medical, disability, and professional liability insurance plans also are available. These savings can more than cover the cost of your NBA membership dues.

NBA STRATEGIC PARTNERS

Nashville Bar Journal • June / July 2016

Disclosure

\Dis*clo”sure\ (n) The act of revealing, releasing, or bringing to light relevant information concerning NBA Members and Staff. Announcements n People on the Move n Firm News

Baker Donelson* has announced that across the Firm, 83 attorneys were named leading practitioners in the 2016 edition of Chambers USA. One attorney ranked as a "Star Individual," a ranking given to attorneys with exceptional recommendations in their field, and two attorneys also achieved a national ranking. Chambers USA recognized 23 of the Firm's practice areas as leading statewide practices, with 9 ranked in Band 1. The Firm's health care practice also ranked as a leading practice in the country. Seven of the Firm's practices ranked as leading practices in Tennessee: General Commercial Litigation, Real Estate, Banking, Environment, Health, Labor and Employment, Corporate/Mergers and Acquisitions, and Banking and Finance.

labor and employment law firms in the state of Tennessee in the 2016 edition of Chambers USA: America's Leading Lawyers for Business. FordHarrison also was recognized as a top tier labor and employment law firm in Tennessee, and at the top of its practice area in Georgia, Florida, and South Carolina.

In individual rankings, 13 of the Firm’s Nashville attorneys ranked as leading practitioners in their field: Ashby Q. Burks (Health Care, Band 2), Richard G. Cowart (Health Care, Band 1), Anthea Daniels (Health Care, Band 3, Ohio), Steven J. Eisen (Banking and Finance (Regulatory), Band 1 & Banking and Finance, Band 2), Kenneth P. “Pete” Ezell, Jr. (Real Estate, Band 1), Tonya Mitchem Grindon (Corporate/M&A, Band 3), John A. Gupton, III (Real Estate, Band 2), Matthew T. Harris (Real Estate, Band 2), John S. Hicks (General Commercial Litigation, Band 2), Philip S. McSween (Health Care, Band 2), Gary C. Shockley (Environment, Band 2 & General Commercial Litigation, Band 2), Robert M. Steele (Environment, Band 2), M. Kim Vance (Labor and Employment, Band 2). Bradley is pleased to announce that Nashville partners William L. Norton, III and Todd Presnell have been elected as Fellows of the Tennessee Bar Foundation. Norton focuses his practice in the business bankruptcy area, dealing in all aspects of bankruptcy cases, creditor rights and insolvency. Presnell is a trial lawyer licensed in Georgia and Tennessee who represents major corporations, small businesses, governmental entities, tax-exempt organizations, and individuals in their litigation-related needs. FordHarrison, LLP* is pleased to announce that the Firm was among the highest ranked 28

Nashville Bar Journal • June / July 2016

Littler* is pleased to announce that its Tennessee offices, including the Nashville location, received a top ranking in the 2016 edition of Chambers USA: America’s Leading Lawyers for Business. Nashville Office Managing Shareholder Jen Robinson and Shareholder Eric Stevens also earned Band 1 rankings. Nashville School of Law’s 23rd Annual Recognition Dinner honored four legal leaders for their contributions to the community: NSL graduates, Brenda Franks Hale and Douglas Hale, NSL professor Hal Hardin, and Senior Judge Martha Craig Daughtrey of the U.S. Sixth Circuit Court of Appeals. More information about the event and honorees is available at NSL.law. Robert Brandt, retired judge and Nashville attorney, authored his first historical fiction novel, Painted Trillium, released this June. Set in 1863, during the Union Army of the Cumberland’s stay at Murfreesboro, the book explores the relationship between the occupiers, the occupied, and the impact the situation had on women who witnessed the war. Brandt previously has written about Tennessee history, travel, and outdoors. Among his books are Touring the Middle Tennessee Backroads, Fodor’s Compass American Guide – Tennessee, and Middle Tennessee on Foot. His articles have appeared in the Sierra, Tennessee Historical Quarterly, and The Tennessee Conservationist. Mark P. Chalos has been named a Fellow of the American Bar Foundation. Chalos serves as the Managing Partner of Lieff Cabraser Heimann & Bernstein’s* Nashville office and litigates complex federal civil cases. He currently serves in a court-appointed national leadership role on the Plaintiffs’ Steering Committee on behalf of Tennessee patients killed or left permanently injured

following epidural steroid injections administered from contaminated medication. Chalos also was recently was named to the “Top 100: 2015 Tennessee Super Lawyers” list, as one of the Nashville Post’s lawyers “In Charge” in 2016, and to the 2016 Outstanding Lawyers list in the category of Mass Tort Litigation/Class Actions by The Best Lawyers in America, a legal peer-review publication which rates lawyers nationwide. Bruce Doeg has been elected vice chairman of Launch Tennessee, a public-private partnership focused on supporting the development of high-growth companies in Tennessee. A shareholder in Baker Donelson's* Nashville office and chair of the Firm's Business Department, Doeg has been actively working with high growth companies across the state and around the country since 1995. Doeg concentrates his practice in the area of business law with an emphasis on technology and life sciences, and has been recognized by The Best Lawyers in America in multiple practice areas, including information technology law, technology law, venture capital law, corporate law, and mergers and acquisitions law. Meredith Eason has joined Wyatt, Tarrant & Combs, LLP as part of the Firm’s Litigation and Dispute Resolution Service Team. She concentrates her practice on commercial litigation and employment law. She earned her J.D. from Vanderbilt University Law School and her B.A. (Philosophy, Communications), cum laude, from Villanova University. Eason is a member of the NBA’s Young Lawyers Division and the Lawyers’ Association for Women. She is also active in the community, serving on the Grants Committee and as Done In a Day Co-Chair for the Junior League of Nashville, and as a member of the Young Leaders Council. Edward D. Lanquist, Jr., managing shareholder at Patterson Intellectual Property Law, P.C.*, has been selected for inclusion in the 2016 Intellectual Property (IP) Stars List. This is the third consecutive year Lanquist has been named as an IP Star by the World IP Survey conducted by Managing Intellectual Property. An A/V rated attorney, Continued on next page

Welcome New NBA Members! Jamaal Boykin Jed Storey Crumbo Amber Ervin Chandler Harris

Lanquist was named one of Tennessee’s Top Lawyers by the National Law Journal in 2012 and a “Best Lawyer” each year since 2010, as well as Best of the Bar by the Nashville Business Journal. Darlene T. Marsh, a member attorney with Dickinson Wright, has been named a “Leader in their Field” in Chambers USA Environment and Real Estate sections for Tennessee. Marsh practices primarily in commercial real estate with an emphasis on finance and environmental compliance. Marsh is the Past President of the American College of Mortgage Attorneys, Chair of the Real Estate and Environmental Law sections of the Tennessee Bar Association, and a Fellow of the Nashville Bar Foundation. Helen Sfikas Rogers, the principal of the law firm of Rogers, Kamm & Shea, has been selected as a Fellow of the American Bar Association in recognition of a career that has demonstrated extraordinary leadership in the profession, service to society, and commitment to the ideals and objectives of the American Bar Association. This award is limited to 1% of Tennessee lawyers. Rogers has practiced in Middle Tennessee, primarily in the areas of family and probate law, for over 30 years. n (* indicates that the firm is a member of the NBA's 100% Club)

Please send Disclosure announcements — regarding NBA Members only — to Jill.Presley@nashvillebar.org. Submissions are subject to editing.

Elizabeth Hernandez Melissa Ann Johnson Harlene Jean Labrum

Michael Miller Alyssa Rayne Jan Margaret Rogers

NBA Premier Membership is a special category that recognizes our members who desire to demonstrate the utmost in commitment and support to the NBA Programs and Services. Contact Vicki.Shoulders@nashvillebar.org for details.

2016 NBA PREMIER MEMBERS Frank Abernathy Elizabeth Alexander Gail Vaughn Ashworth Heidi Barcus Joe Bednarz Joe Bednarz, Jr. Mark Beveridge Joe P. Binkley, Jr. Jonathan Bobbit C. Dewey Branstetter Jr. Kenneth Sherman Byrd Christopher Cardwell Kathryn Caudle Mark P. Chalos John Ray Clemmons Lewis Conner Patricia Cottrell John Day Joy Day Robert Dempsey David Downard Blair Durham John Floyd Keith Frazier Grant Glassford Charles Grant John Griffin Jay Harbison William Harbison Marian Harrison Trey Harwell Aubrey Harwell Lisa Helton Paul Housch R. Jan Jennings Jordan Keller John Kitch William Koch Irwin Kuhn Ed Lanquist

Andrew Laufman Thomas Lawless Claudia Levy Randal Mashburn Amanda McClendon Rocky McElhaney Robert Mendes Jeffrey Mobley Marlene Moses Patricia Moskal Michael Mossman Mattison Painter David Parsons Gregory Pease Tracy Powell David Raybin Sara Reynolds Maria Salas Kathryn Sasser Carolyn Schott Nathan Shelby Kimberly Silvus Elizabeth Sitgreaves Eric Smith Saul Solomon John Spragens Michael Stewart James Stranch III James Stranch IV Claire Thomas Hon. Aleta Trauger Howard Vogel Michael Wall Elizabeth Washko James Weatherly Peter Weiss Thomas White Thomas Wiseman Stephen Young

Nashville Bar Journal • June / July 2016

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OFFICE SPACE WHITE BRIDGE / BELLE MEADE Established Law Firm: 3rd Floor, 85 White Bridge 37205. (Next to J. Alexander’s). Convenient location, 10-12 minutes to courthouse. Spacious 14’ x 14’ office, includes use of conference room, reception area, kitchen. Telephone, internet services, more available as extras. Parking included. $1,200/mo. + extras. 615.256.8127; ren@dhhrplc.com. WEST END AND 31st AVENUES Rare West End Class A Space: One American Center Tower, 4281 RSF office suite sublease available with up to 10 windowed offices, 2 conference rooms, reception area, kitchen, and garage parking. 10 minutes to downtown, 2 minutes to 440. Phone, internet possible. Direct lease possible. Please contact Christina Primm at 615.467.3503.

APPELLATE BRIEFS and ARGUMENT THOMAS F. BLOOM, J.D. (Emory, 1977) 615.260.5952 • BloomAppeals.com Retained by attorneys throughout the State for over 30 years to draft briefs and/or argue cases in over 300 appeals, State and Federal. Research assistance also available.

Dial-A-Lawyer Dial-A-Lawyer is held the first Tuesday of each month. The public is invited to call in with basic legal questions. Thank you to our May and June volunteers! Helen Cornell Gina Crawley Chris Hugan Tom Lawless Doug Pierce Joe Rusnak

To volunteer your time, please contact our LRIS Coordinator at wendy.cozby@nashvillebar.org. Pro Bono credit applies and dinner will be provided.

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Nashville Bar Journal • June / July 2016

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Join the NBA LRIS—the exclusive referral service for the Nashville Bar Association—and your practice will beneﬁt from our unique marketing and advertising programs. In addition to our online presence—which attracts clients nationwide—LRIS receives client referrals through a variety of sources including the courts, Ofﬁce of the Attorney General, employee assistance programs, other Bar Associations, and the Social Security Administration. In 2015, member attorneys collected nearly $400,000 in fees generated by referrals from LRIS. For information on joining the NBA LRIS, contact wendy.cozby@nashvillebar.org or visit NashvilleLawyerReferral.org. The NBA Lawyer Referral & Information Service is the Exclusive Referral Service for the Nashville Bar Association.

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