■ Non-competition agreements ■ Evidence issues in a church love triangle trial

www.tba.org

ARTICLES

14 FREE TO SHARE? GROKSTER DECISION SIDESTEPS INNOVATION/COPYRIGHT BATTLE, PUTS FOCUS ON BUSINESS STRATEGIES By David Moser 18 NEW RACE TO TENNESSEE AND GEORGIA COURTHOUSES OVER NON-COMPETITION AGREEMENTS By Don Benson and Stephanie Bauer Daniel

EVIDENCE ISSUES IN A CHURCH LOVE TRIANGLE TRIAL 22 By Donald F. Paine

NEWS & INFORMATION

6 Relief for Hurricane Katrina survivors swells; lawyers join together to help 7 Clark named to Tennessee Supreme Court 7 Indigent representation gets a boost 12 Actions from the Board of Professional Responsibility

DEPARTMENTS

3 President’s Perspective: Heartbreak followed by action By Bill Haltom

5 Letter / Jest Is for All: By Arnie Glick

8 The Bulletin Board: News about TBA members On the Cover When the U.S. Supreme 2 9 4 0 Ye a r s : TBA sections — Court ruled in MGM People who know what you are talking about Studios Inc. v. Grokster By Suzanne Craig Robertson Ltd., copyright and technology development 30 Paine on Procedure: The unconstitutional non-uniform residential industries saw the outcome landlord and tenant act very differently. Read about By Donald F. Paine what the decision may mean for each side, begin- ning on page 14. Cover 31 Classified Advertising design by Barry Kolar.

PRESIDENT’S PERSPECTIVE

Hurricane Katrina

Journal Staff Heartbreak followed Suzanne Craig Robertson, Editor [email protected] by action Landry Butler, Publications & Advertising Coordinator [email protected] Barry Kolar, Assistant Executive Director arly one warm spring morning some 24 years [email protected] ago, my bride and I boarded a train in E Atlanta and headed for our honeymoon. The Editorial Board train was called the “Southern Crescent” and it Andrée Sophia Blumstein, Nashville, Chair Miles Mason Sr., Memphis took us through the backwoods of Georgia, Donald F. Paine, Knoxville Alabama and Mississippi and then into the heart of Bill Haltom Nathan D. Rowell, Knoxville the bayou. At the end of the day, we arrived at our President Jonathan O. Steen, Jackson honeymoon destination, a wonderful city called New Orleans. We checked into the Royal Sonesta Hotel in the heart of the French Quarter The Tennessee Bar Journal is listed in the and then had dinner at a fantastic restaurant called Galatoire’s. After two days of Index to Legal Periodicals. The Tennessee Bar J o u r n a l, ISSN 0497-2325, is published by the living like the king and queen of Mardi Gras, we noticed that we were quickly Tennessee Bar Association at 221 Fourth Av e . running out of money. So we checked out of the Royal Sonesta and into the N., Suite 400, Nashville, TN 37219-2198, Olivier Guest House on To l o u s e . (615) 383-7421, monthly. Periodicals Postage Instead of dinner at Galatoire’s or Paid, Nashville, Tenn. Subscription price: $60 C o m m a n d e r ’s Pala ce, we had coffee per year. Members: $22 per year. Individual and beignets at Café Du Monde and issues: $10 per copy. Back issues sold on an “as “In Louisiana alone, some available” basis. Statements or opinions gumbo and crawfish at Tu j a g u e ’s. expressed herein are those of the authors and do We took the St. Charles trolley 6,000 lawyers (one-third not necessarily reflect those of the Te n n e s s e e out to the Garden District and Bar Association, its officers, board or staff. P O S T M A S T E R: Send address correction to otherwise took in all the sights and of the state’s bar) had lost Tennessee Bar Journal, 221 Fourth Ave. N., Suite sounds of the “Big Easy.” 400, Nashville, TN 37219-2198. “Nawlins,” as the locals call it, their homes, their offices, became our favorite city. and their law practices, at © COPYRIGHT 2005 Over the past quarter century, TENNESSEE BAR ASSOCIAT I O N my bride and I have journeyed least temporarily, and back to Nawlins on several occa- A D V E RTISING POLICY: While the perhaps permanently.” Tennessee Bar Journal attempts to confine its sions. We have not only had a advertising to legitimate business endeavors, the second honeymoon there, but statements and material appearing in the adver- third, fourth and fifth ones as well. tisements are solely the responsibility of the We spent New Years’ Eve 1986 a d v e r t i s e r. T h e J o u r n a l and the Tennessee Bar Association do not directly or impliedly endorse, there and joined about 75,000 of our closest friends at the Superdome to watch support or vouch for the authenticity of any our Volunteers upset Miami in the Sugar Bowl. representation made in any advertisement We followed our Vols there again in 1991 and saw them beat Virginia in the appearing herein. The J o u r n a l does not intend to Sugar Bowl. And we have even gone to Nawlins several times over the years accept any advertising material that is false and misleading. The Journal reserves the right to when there wasn’t even a football game being played. refuse an advertisement it deems inappropriate. On Sunday, Aug. 28, we heard the news that there was a major hurricane taking direct aim at Nawlins. But I didn’t worry about it. I am old enough to CHANGE OF ADDRESS: If your address has remember when Hurricane Betsy pounded Nawlins in 1965 and Camille struck changed, please notify the Tennessee Bar Asso- it in 1969. The Big Easy survived both of those blows, and I was confident that ciation at 221 Fourth Ave. N., Suite 400, Galatoire’s, Café Du Monde, the Olivier Guest House, and all my other favorite Nashville, TN 37219-2198, so your address will be updated for the Tennessee Bar Journal a n d haunts in the Big Easy would be just fine, thank you. other TBA publications. But it wasn’t fine, of course. Hurricane Katrina struck Nawlins and the Gulf Coast with ferocity, killing hundreds and forcing thousands either to flee to safety (the lucky ones) or to pray for rescue. Visit our Web site at www.tba.org I spent the next few nights watching the TV news footage of the beautiful town Printed on recycled paper. (Continued on page 4)

TENNESSEE BAR JOURNAL, OCTOBER 2005 3 PRESIDENT’S PERSPECTIVE (Continued from page 3) where my bride and I spent our honey- Tennessee lawyers began to volunteer to In short, Tennessee lawyers opened moon. I felt heartbroken and helpless. help. A network quickly developed their homes, their offices, their wallets, I tried to contact my friends who live consisting of the Tennessee Bar Associa- and their hearts. They generously gave and practice law in Nawlins, Gulfport tion, local bar associations, legal services their time, their talents, and their money. and Biloxi. Fortunately, I learned they offices, law schools, and private law I look forward to returning to were all safe. offices from Memphis to Mountain City. Nawlins some day. I look forward to Over the next several days, I received The TBA petitioned the Supreme taking my bride back for another honey- e-mails from bar leaders in Louisiana Court to give temporary admission to moon. I look forward to having coffee and Mississippi. I learned that in displaced Louisiana, Alabama and and beignets at Café Du Monde and Louisiana alone, some 6,000 lawyers Mississippi lawyers who sought to prac- riding the street car out to Tulane. But (one-third of the state’s bar) had lost tice in Tennessee. Legal Service attor- above all, I look forward to having their homes, their offices, and their law neys were joined by volunteer lawyers dinner with Judy and Rene Martinez practices, at least temporarily, and to quickly set up mobile legal clinics to and other dear friends who live and perhaps permanently. counsel evacuees on available social practice law in Nawlins. And when we Within a few days after Katrina flood e d services in the short-run and FEMA break bread together, I will propose a New Orleans and leveled so much of the assistance in the long-run. Many toast to a great city, the triumph of the Gulf Coast, thousands of evacuees began lawyers even took evacuee families into human spirit, the kindness of friends, to arrive in Tennessee, many of those in their homes. and the kindness of strangers. my hometown, Memphis. Tennessee law schools took in law For an up-to-date look at Tennessee And then, in the midst of all this students from Tulane and Loyola, and lawyers’ efforts or see what you can suffering, something extraordinary lawyers all across the state gave generously do to help, go to happened. All across the Volunteer State, to the Red Cross and other relief funds. http://www.tba.org/Katrina.

4 TENNESSEE BAR JOURNAL, OCTOBER 2005 LETTER

B OARD OF GOVERNORS ■ Bill Haltom, Can unfairness be cured in ex parte communications with physicians? Memphis,P r e s i d e n t ; Lar ry Wi l k s , I am writing in response to John Day’s article, “Ex Parte Communications with Springfield, President-Elect; Marcia Eason, Treating Physicians,” which was published in the September 2005 issue of the C h a t t a n o o g a , Vice President; C h a r l e s Tennessee Bar Journal. While I disagree with several of the assertions made by Mr. Swanson, Knoxville, Immediate Past Day, I direct my letter to his conclusion that unfairness to defendants can be cured P r e s i d e n t ; Paul Ney, Nashville, Tr e a s u r e r ; by the rule change he proposes. Cecilia Barnes, Memphis, Secretary; G r a h a m Mr. Day proposes that permitting a defendant to take a discovery only deposi- S w a f f o r d , J a s p e r, East Tennessee Governor; tion of a treating physician would eliminate unfairness to defendants. While that Sue Van Sant Palmer, Clarksville,M i d d l e Tennessee Governor; Ed Stanton, M e m p h i s , rule alleviates the risk of a defendant essentially paying the costs for a deposition a West Tennessee Governor; Morris Hadden, plaintiff can present as evidence at trial, the rule proposed by Mr. Day does not Kingsport, Governor — 1st District; Jack H. eliminate all unfairness. Substantial unfairness results from the fact that a plaintiff’s “Nick” McCall Jr., Knoxville, Governor — lawyer has unfettered, private and informal access to treating physicians. As a s 2nd District; Sam Elliott, Signal Mountain, result, a plaintiff can meet informally with a treating physician and explore various Governor — 3rd District; Susan Emery theories and facts of the case with the treating physician without exposing adver- McGannon, Murfreesboro, Governor — 4th sary counsel to the weaknesses of his or her own case or educating adversary D i s t r i c t; Jackie Dixon, Nashville, G o v e r n o r counsel. The defendant does not have that same opportunity. Because a defendant’s — 5th District; Claudia Jack, C o l u m b i a , access to a treating physician is limited to a deposition, a defendant runs the risk of Governor — 6th District; Lin d a Wa r r e n educating adversary counsel, and exposing weaknesses in his own case. Or to elimi- S e e l y, Jackson, Governor — 7th District; N an c y M il le r- H e r r o n , Dresden, Governor — nate that risk, the defendant must simply forego discovery of certain issues. 8th District; George T. (Buck) Lewis III, Fairness should be achieved by creating equal access for the plaintiff and the Memphis, Governor — 9th District;E w i n g defendant. If a defendant’s access to a treating physician is limited to a deposition, S e l l e r s , Murfreesboro, S p e a k e r, H ous e of Del e- (Continued on page 32) g a t e s;Danny Van Horn, Memphis, P r e s i d e n t , TBA Young Lawyers Division; Lisa Richter, Springfield, President-Elect, TBA Yo u n g WRITE TO THE JOURNAL! Letters to the editor are welcomed and considered for publica- tion on the basis of timeliness, taste, clarity and space. They should be typed and include the Lawyers Division; Arthur Bennett, Memphis, a u t h o r’s name, address and phone number (for verification purposes). Please send your President, Tennessee Judicial Conference; comments to 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198; FAX (615) 297-8058; G r e e l e y Wel ls, Kingsport, Designee, District EMAIL: [email protected]. Attorneys General Conference; G a r y A n t r i c a n , C o v i n g t o n , President, District Public Defender’s Conference; Gail Ashworth, Nashville, General Counsel. STAFF ■ Allan F. Ramsaur, Executive D i r e c t o r; Barry Kolar, Assistant Executive Director; Sharon Ballinger, R e c e p t i o n i s t; Vivian Bowles, Online CLE Coordinator; Landry Butler, Publications Coordinator; Kathleen Caillouette, CLE Administrator; Anjanette Eash, Youth Court Coordinator; Terri Gilley, Executive Assistant;S a r a h Hendrickson, CLE Assistant; Monica Mackie, Leadership Law Director; Pam Johnson, F i n a n- cial Administrator; Byron Morton, I n f o r m a t i o n Systems Coordinator; Lynn Pointer, P r o g r a m s Administrator and Sections & Committees C o o r d i n a t o r ; Becky Rhodes, Access to Justice Coordinator; Megan Rizzo, M e m b e r s h i p Director; Suzanne Craig Robertson, E d i t o r, Tennessee Bar Journal; Stacey Shrader, M e d i a Relations and YLD Coordinator; Roger Spivey, Director of Continuing Legal Education & Meet- ings; Ka t ie Wi l k i n s o n , Customer Service & Receivables Coordinator.

TENNESSEE BAR JOURNAL, OCTOBER 2005 5 NEWSINFORMATION Find your spot and help Relief for Hurricane Katrina survivors swells; lawyers join together to help

fter Hurricane Katrina where to do it, with links to Alabama, did her worst and the bar associations’ and other Louisiana and A enormity of the over- organizations’ relief efforts Mississippi, whelming disaster along the • how and where to make and all of the Gulf Coast came to light, a donation victims of this Tennessee lawyers began to • resources of how to get terrible ask what they could do to help, find loved ones or see disaster,” says help. In response, the specific affected areas TBA President Tennessee Bar Association • resources for legal assis- Bill Haltom. and many other bar associa- tance “We will do tions and organizations • how to volunteer legal everything we began the task of trying to services or donate items to can to assist. direct those needing help as lawyers We Tenn- Murfreesboro attorney John Blankenship, left, well as those offering help. • how to help lawyers esseans are along with family and friends, collected 20,000 pounds of supplies and headed south with a As its clearinghouse, the and the judicial system called the convoy of trucks and trailers to provide direct TBA launched a web page rebuild Volunteers aid to people in the Gulfport and Biloxi region. for up-to-the-minute infor- • how to avoid related because we mation. From donating desks scams. respond in also seeing great volunteer to blood, the page lists infor- times of need.” contributions from lawyers. mation and links to: “Our hearts go out to our One firm in Memphis — • ways to volunteer and brother and sister lawyers in Rising to the call Spicer Flynn & Rudstrom — Lawyers across Tennessee is setting the pace, with 100 have been stepping forward percent of the 49-member to help with disaster relief, firm signing up as volun- offering legal assistance to teers. Knoxville attorneys evacuees, volunteering office staffing a relief clinic are space and supplies and even seeing a number of clients delivering relief supplies to with issues ranging from the Gulf Coast. child support to bankruptcy For instance, in Nashville to social security. In at press time more than 70 Jackson, lawyers are working volunteer lawyers were with agencies that have working with the Legal Aid organized an umbrella group Society and Pro Bono called KARE to assist Program to staff a free legal victims. PHOTO BY BECKY RHODES clinic for Katrina evacuees More than 100 lawyers Attorney Lisa E. Peerman, left, vice president and chief deputy that will remain open at the counsel for Comdata Corporation, volunteers at the Nashville statewide have volunteered Red Cross Service Center as Red Cross Service Center, offering volunteer legal assistance to to provide legal assistance Beyonka Lombard and her grandmother, Irene Lombard. The long as the demand is there. Lombards are survivors of Hurricane Katrina, who were housed Memphis and Knoxville are (continued on facing page) in Nashville.

6 TENNESSEE BAR JOURNAL, OCTOBER 2005 NEWS INFORMATION

Changes in the court Clark named to Tennessee Supreme Court

ornelia “Connie” who supported her. Clark was sworn in Clark, 55, holds a bach- C Sept. 19 as the newest elor’s degree from Vanderbilt justice of the Tennessee University and a master’s Supreme Court. She fills a degree in teaching from vacancy created by the Harvard University. She retirement of Chief Justice earned her law degree from Frank F. Drowota III. Vanderbilt School of Law. Bredesen said that appointment of a justice to Anderson temporary the Tennessee Supreme chief justice Court is one of the most Before Clark was named, consequential jobs of a E. Riley Anderson of governor. He expressed Knoxville was elected chief PHOTO BY BARRY KOLAR confidence in Clark’s justice by the court, to Gov. Phil Bredesen congratulates Connie Clark after swearing “knowledge of the law, hard succeed former Chief Justice her in as the newest member of the Tennessee Supreme Court. work and utmost integrity.” Drowota. Anderson will Clark’s mother, Cornelia Clark, stood with her daughter at the Sept. 19 ceremony. For more photos go to Clark was appointed to serve until the new full http://www.tba.org/news/clark.html the circuit bench by Gov. court elects a new chief Ned McWherter in 1989. justice, which at press time She was chosen by the had not occurred. The chief Court raises caps Supreme Court as director justice elected by the new of the Administrative Office court will serve until Aug. Indigent representation of the Courts in 1999. She 31, 2006, which would have said she could only promise been the end of Drowota’s gets a boost to do “everything possible” four-year term. awyers now could be eligible to receive more compensa- to earn the trust of those tion for their appointed work. This includes those who L represent defendants charged with a felony at the trial level, juveniles in dependency and neglect cases and post Relief for survivors dispositional reviews, as well as lawyers who represent parents in allegations against the parents that could result in (continued from facing page) the termination of parental rights. By order entered Sept. 1, through the TBA, which is matching volunteer attorneys and effective Oct. 1, the Supreme Court raised caps on with local pro bono and legal services organizations in felony cases from $1,000 to $1,500, on dependent neglect need of assistance. proceedings from $500 to $750, and on certain other matters and parental termination cases from $750 to $1,000. Help finding jobs All of these steps were made possible when the appropri- Joblink, the TBA’s new career placement service, is ations to the court for indigent representation were currently available to displaced attorneys who are seeking increased by the last session of the legislature. This is one of employment in Tennessee. Under normal conditions, this the measures recommended by the Tennessee Bar Associa- service will be open only to members. But now, attorneys tion joining with the Tennessee Association of Criminal from Alabama, Louisiana and Mississippi who are seeking Defense Lawyers and the Public Defenders Conference as work in Tennessee can visit http://www.tba.org/joblink/ to part of the rewrite of the Rule 13 on indigent representa- create an online resume and search for jobs. tion. The order amending Section 2(d) of Tenn. Sup. Ct. Rule For more details on how to volunteer, offer office 13 may be found at http://www.tsc.state.tn.us/opinions/ space, office equipment or other resources, go to tsc/rules/2005/Rule13ord.htm. http://www.tba.org/Katrina.

TENNESSEE BAR JOURNAL, OCTOBER 2005 7 NEWS ABOUT TBA MEMBERS The Bulletin Board Tennessee Bar Association members may send information about job changes, award s and work-related news. Send it to The Bulletin Board, c/o The Journal at 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198, or email to sballinger@tnbar. o rg. Submissions are subject to editing. Pictures are used on a space-available basis and cannot be re t u rned. Electronic photos must be saved as a tiff or jpeg (with no compre s s i o n ) , minimum resolution 200 dpi, and at least 1”x1.5” or they will not be used. C om pi le d by S ta c ey S h ra de r an d S h ar on B a l l i n g e r

he Memphis office of Leitner, Williams, Dooley & police officer with the Metropolitan Nashville Police Napolitan PLLC announced the addition of three new Department. Dyer graduated from the Nashville School of associates to its office: Jason R. Hollingsworth, who is Law in May 2005. T licensed to practice in both Tennessee and Mississippi; Tracy A. Overstreet;andAaron R. Parker. All grad- Nashville-based Stokes Bartholomew and the New uated from the University of Memphis School of Law. Orleans firm of Adams and Reese LLP recently announced their merger effective June 30. In Tennessee, the firm will Howell S. Arnold has joined the Chat- operate as Adams and Reese/Stokes Bartholomew. The tanooga office of Shumacker Witt Gaither & combined firms will employ nearly 300 attorneys with 36 Whitaker PC as an associate. Prior to joining in Nashville, and will operate in seven other markets the firm, Arnold clerked for the Office of including New Orleans, Birmingham, Houston, Jackson, Mergers and Acquisitions at the Securities Baton Rouge, Mobile and Washington, DC. and Exchange Commission, and the Division of Enforcement at the New York Stock Memphis attorney Larry Rice h a s Arnold Exchange. He earned his law degree from the released the third edition of The Complete University of Alabama School of Law in 2003 Guide to Divorce Practice, published by the and while there clerked in the civil division of the U.S. American Bar Association. The book offers Attorney’s office. He also earned an LL.M. in securities sample forms and model procedures for and financial regulation from the Georgetown University domestic law practitioners. Rice practices Law Center in 2005. law as a certified family law specialist in Rice addition to writing and lecturing. Kristen Dyer has joined Neal & Harwell PLC as a staff a t t o r n e y, where she will focus on civil and criminal litiga- Attorney Candice L. Reed has joined the tion. Prior to joining the firm, she worked for 10 years as a Nashville office of Counsel On Call where she will focus on candidate screening and place- ment. Prior to joining the company, Reed Larry D. Soderquist, director of the Corporate and worked in the Nashville office of Miller & Securities Law Institute and law professor at Vanderbilt Martin PLLC. She brings more than five years Law School, died on Aug. 20 at Vanderbilt University of commercial litigation experience to her new Medical Center. Soderquist, 61, had been seriously position. Reed earned her law degree from the injured in an automobile accident in early July. Until Reed University of Tennessee College of Law. his death, he was counsel to Baker, Donelson, Bearman, Caldwell & Berkowitz PC. He was also the Bass, Berry & Sims PLC announced that author of two mystery novels. Keli J. Stewart has joined the firm’s Nashville office. Stewart will focus on commercial litiga- Marion F. McDavid, 93, of Harriman died Aug. tion with an emphasis on class action prod u c t 31. He received his law degree from George Wa s h- liability matters. Prior to joining the firm, she ington University in Washington, D.C., and owned a practiced at Waller Lansden Dortch & Davis private law practice in Harriman for more than 50 PLLC and Boult, Cummings, Conners & Berry years. He served as Harriman city judge from 1951- PLC. She received her law degree in 2000 from Stewart 1953. He was a member of the TBA’s Litigation the University of Tennessee College of Law. Section until his death.

8 TENNESSEE BAR JOURNAL, OCTOBER 2005 NEWS ABOUT TBA MEMBERS

Mann Bracken, an Atlanta-based collections law firm, elected to serve as treasurer of the National Conference recently opened an office in Nashville to be managed by of Commissioners on Uniform State Laws. Trost practices associate attorney Nicholas Adler. A 2001 graduate of at the law firm of Waller, Lansden, Dortch & Davis in the Washington and Lee School of Law, Adler worked in the areas of state and federal tax law and litigation. He Atlanta and New York City before deciding to settle in has been a member of the National Conference since middle Tennessee. Since 2003, he has worked at the 1997. The conference’s mission is to draft and promote Dunning Law Group handling corporate bankruptcy and enactment of uniform state laws designed to solve prob- restructurings. He will be Mann Bracken’s lead attorney lems common to all the states. in the state and will oversee a legal support staff of five. The Chattanooga office of Baker, The law firm of Kramer, Rayson, Leake, Rodgers & Donelson, Bearman, Caldwell & Morgan LLP has announced that immigration a t t o r n e y Berkowitz PC announced that William Susan E. Schultz has joined the firm’s Knoxville office as Robinson has become of counsel to the an associate. Prior to joining the firm, Schultz served at the firm. Robinson concentrates his practice U.S. Citizenship and Immigration Service (formerly known of law in the areas of employee benefits as the INS). She graduated from the University of and estate planning. He has extensive Tennessee College of Law, has served as chair of the ABA’s experience in pension and welfare bene- General Practice & Solo Division Immigration Committee Robinson fits, and has represented governmental and now is serving as secretary of the American Immigra- entities, multiemployer plan boards and tion Lawyers Association’s mid-south chapter. private employers on retirement plan issues. Robinson received his law degree from the University of Tennessee Tennessee Lawyers Association for Women (TLAW) College of Law. President Linda Warren Seely has named Tara Mooney Aaron the TLAW affiliate representative to the TBA Saul C. Belz has been named a master Young Lawyers Division. Aaron works in the Nashville member of the Leo Bearman Sr. American Inn office of Stites & Harbison PLLC. of Court. Belz concentrates his practice in the areas of business litigation, commercial Thomas A. Williams, with the Chat- disputes, complex litigation, appeals and tanooga law office of Leitner, Williams, employment law at the Nashville firm of Dooley & Napolitan PLLC, has been elected Glankler Brown PLLC. He earned his law vice president of the Federation of Defense degree from Vanderbilt University Law School Belz and Corporate Counsel (FDCC). The in 1967. While there, he was named Order of counsel is comprised of experienced attorneys the Coif and served as legislation editor of the in private practice, general counsels and Vanderbilt Law Review. Belz currently serves as a director Williams insurance claims executives. Williams also of the Tennessee Justice Center. serves as southern regional director of the Defense Research Institute whose membership includes Kelvin D. Jones III has been 22,000 defense civil trial attorneys. appointed to serve on the Tennessee Supreme Court’s Task Force on The Nashville office of Sherrard & Roe recently Attorney/Client Fee Disputes. Jones is the announced the addition of attorneys Albert Bart and executive director of the Nashville Metro Beth Moore to its corporate and securities law group. Human Relations Commission and previ- Both previously were principals in the Nashville office of ously served as Nashville Mayor Bill Stokes, Bartholomew, Evans & Petree. Moore concen- Jones Purcell’s special assistant for legal affairs. trates her practice on corporate finance and securities He also worked as a corporate attorney regulation. She received her law degree from the Univer- with Bass, Berry and Sims PLC and is a 2005 graduate of sity of Tennessee College of Law in 1988. Bart’s experi- the TBA Leadership Law program. ence includes equity and debt offerings, mergers and acquisitions, and venture capital financing. He earned his The Atlanta law firm of Clark & Washington PC law degree in 1996 from the University of Tennessee recently announced three new middle Tennessee offices College of Law, where he was a member of the Moot in Nashville, Murfreesboro and Gallatin. Murfreesboro Court Board and a George D. Hall Memorial Scholar. attorney John M. Green, a 1987 graduate of Vanderbilt University Law School, steps in as managing attorney for Charles A. Trost, an attorney in Nashville, has been (Continued on page 10)

TENNESSEE BAR JOURNAL, OCTOBER 2005 9 NEWS ABOUT TBA MEMBERS (Continued from page 9) all three offices. Clark & Washington specializes in the matters, specializing in Chapter 7, 11 and 13 proceedings, representation of debtors in all aspects of Chapter 7 and foreclosures and evictions. Prior to joining Husch & Eppen- 13 bankruptcy proceedings. b e r g e r, Ec hols worked a s a la w cle rk in both de btor a nd c red- itor bankruptcy matters. He earned his law degree in 2004 John Nicoll and Chasity Wilson Nicoll from the University of Memphis School of Law. have opened the Law Office of Nicoll and Nicoll in Manchester. The partners plan to The Tennessee District Public offer a general practice with an emphasis in D e f e n d e r ’s Con fe re nc e e lec te d Jeffrey S. real estate, business, employment and criminal H e n r y to be executive director. Henry l a w. John Nicoll graduated from the Univer- previously served as the organization’s J. Nicoll sity of Tennessee College of Law and began director of research and training. In his his legal career as a JAG officer in the U.S. new role, he will be responsible for Army at Fort Riley, Kan. Chasity Nicoll, also developing policy, providing administra- a graduate of the University of Te n n e s s e e Henry tive services and training, managing the College of Law, began her career as a JAG budgets of the state’s public defenders, officer at Fort Riley working primarily as a and coordinating multi-district cases. labor counselor. The law firm of Runyon & Runyon in Clarksville was Husch & Eppenberger LLC welcomedB e r t i s inadvertantly left off of last month’s list of leading C. Nicoll A. Echols III as an associate attorney in the firms that overwhelmingly support the TBA. The f i r m ’s Insolvency Practice Group, which repre- listing recognized firms with a minimum of sents clients dealing with commercial financial problems. three member attorneys. The J o u r n a l Echols concentrates his practice in consumer bankruptcy regrets the omission.

10 TENNESSEE BAR JOURNAL, OCTOBER 2005 What’s new at Te n nB a rU ?

NEW VIDEO PROGRAMS: BASICS AND MORE A D R / FA M I LY L AW You may not be an expert on elder law, corpo- MOCK MEDIAT I O N : rate ethics or intellectual CHILD SUPPORT p r o p e r t y, b ut so met ime s We have lived with the new Child you need basic information Support Guidelines for almost a year. to assist a client in these or Now the “moratorium” on modifica- other areas. TennBarU is tions is about to expire. Are there here to help. Now with difficulties or areas of confusion? Find more than 80 interactive outwhatyourcolleagues thinkinthis video courses and more unique seminar and mock mediation than 20 interactive text- Coming to Chattanooga on Oct. 14 b ased co urse s, Te n n B a r U and Nashville on Oct. 27. often has just the informa- tion you need to help a Elder law attorney Cynthia L. Barrett tells how to client. And it’s available plan for incapacity and guardianship and 24/7 at a reasonable cost. conservatorship in a TennBarU video program. WHEN ETHICS RULES Newly added to the TennBarU video course catalog are eight one-hour classes to help you deal with COLLIDE WITH FIRST issues that may be facing your elderly clients and their families. For example, A M E N D M E N T TennBarU offers courses on medicaid eligibility, planning how to use retirement funds, planning for incapacity, dealing with spousal impoverishment and more. Ethics expert Brian Faughnan will be back Also new to the TennBarU video catalog are a full slate of programs on intellec- for the 2005 edition of the Te n n B a r U tual property, copyright and trademark law and courses on contract drafting, real Ethics Ro a d s h o w, taking on the topic estate closings and the use and mechanics of mediation in a business law practice. “Where the First Amendment and Ethics Che ck o ut any of t he se pr o g ra ms a nd mo r e at www. l e g a l s p a n . c o m / t n b a r / . Rules Collide: Attorney Advertising, Public Also look for new text-based online courses coming this fall on lawyer adver- Statements by Attorneys and Judges, and tising, the ethics of getting paid, use of the internet, recent developments in the Upcoming Judicial Elections.” Don’ t workers’ compensation and recent case law developments in the area of search miss it when it comes to your city. Here’s and seizure. Watch for these and more at www. t e n n b a r u . c o m the schedule: Chattanooga on Dec. 7, Knoxville on Dec. 8, Nashville on Dec. 14 and Memphis on Dec. 15. S TAY C OOL, THIN K SN OW!

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TENNESSEE BAR JOURNAL, OCTOBER 2005 11 NEWS INFORMATION

Actions from the Board of Professional Responsibility

Reinstated on making restitution to two not refund the clients’ $500 Lee Clements was publicly he following attorneys clients; remaining current on fee. In the second censured by the Board of have been reinstated all continuing legal educa- complaint, a client paid Professional Responsibility T to the practice of law tion requirements; paying Graham a $1,500 non- on July 28. Clements was after complying with Rule 21 the costs of the disciplinary refundable retainer to file an given notice of the censure as required by the Board of proceedings; and complying amended petition for and did not request a Professional Responsibility. with Supreme Court rules c u s t od y. The client hearing. Clements was Tennessee: James Alvin regarding the obligations contends that Graham did retained by a client on Oct. Carraway Jr. , C o r d o v a ; and responsibilities of a nothing. Graham maintains 18, 2004 to defend her on Jennifer Sevier Kelly, disbarred attorney. Terry that she was waiting for the criminal misdemeanor Franklin. Out of State: must notify all clients, co- client to provide additional charges and represent her in Scott D. Fletcher, Little counsel and opposing information needed for the a custody case. Beginning in Rock, Ark. counsel of his disbarment filing. The client complains November 2004, and during and deliver to clients any that he received no commu- the course of the representa- Disbarred papers or property to which nication from her regarding tion, Clements and the Paul Allan Terry II of they are entitled. Finally, he additional information and client became sexually Livingston was disbarred must not use any indicia of that his calls to her went involved. The board found from the practice of law on lawyer, legal assistant, or law unreturned. Graham ulti- that Clements’ conduct Aug. 11. He had been clerk, nor maintain a pres- mately provided the client violated Rules 1.3, 1.16 and suspended temporarily in ence where the practice of with a $1,000 refund. The 8.4 of the Tennessee Rules of August 2004 for failing to law is conducted. Board of Professional Professional Conduct. respond to a complaint that Responsibility found that ••• he neglected a client’s case, Censured G r a h a m ’s actions violated Timothy J. Richter,a which resulted in its A public censure is a form Rule 1.3, 1.4, 1.5, 1.16 and Springfield lawyer, was dismissal. Because of his of discipline that declares 8.4 of the Tennessee Rules of publicly censured by the failure to answer the petition the conduct of the lawyer Professional Conduct. Board of Professional for discipline or appear improper but does not ••• Responsibility on Aug. 8. before a hearing panel of the limit the lawyer’s right to On July 25, Helen L. Richter did not request a Board of Professional practice law. Cornell of Nashville hearing in the matter. Six Responsibility, the panel ••• received a public censure complaints were filed against decided that disbarment was On July 25 Debra Fannin from the Board of Profes- Richter charging that he appropriate. Terry will be G r a h a m of Oak Ridge sional Responsibility. neglected his client’s legal eligible to apply for rein- received a public censure Cornell was given notice of matters, failed to adequately statement to the practice of from the Board of Profes- the censure and did not communicate with his law after five years but the sional Responsibility based request a hearing. The board client, and overdrew his burden of proof is on him to on two complaints. Graham found that in representing a trust account by failing to demonstrate by clear and was given notice of the client, Cornell pursued an accurately handle financial convincing evidence that he censure and did not request invasion of privacy claim transactions. The board has the moral qualifications, a hearing. The first without factual basis and/or found that Richter’s conduct competency and learning complaint concerned fabricated evidence. In addi- violated the Tennessee Rules required for reinstatement G r a h a m ’s representation of a tion, an independent of Professional Conduct 1.3, and that the resumption of juvenile. The parents contractor employed by 1.4, 1.5 and 8.4(a)(d). his practice would not be alleged that they paid Cornell telephoned the ••• detrimental to the integrity Graham to represent their opposing party during the B y o rd e r of th e Te n n e s s e e and standing of the bar or son in an Anderson County litigation, in violation of Supreme Court, William A. administration of justice or court case and a Knox Rule 4.2 of the Tennessee L o c k e t t of Chattanooga was subversion of the public County case. Graham failed Rules of Professional Conduct. publicly censured on Aug. 12 interest. The court also to appear for the hearing in ••• for two counts of misconduct. conditioned reinstatement Anderson County but did Goodlettsville attorney Kirk The Board of Professional

12 TENNESSEE BAR JOURNAL, OCTOBER 2005 NEWS INFORMATION

Responsibility filed a petition the board found that Helm evidence that the disability Compiled by Stacey Shrader from information obtained from the Board of for discipline against him on negligently allowed his has been removed and that Professional Responsibility of the Te n n e s s e e Sept. 7, 2004. On July 18, former secretary to alter the he is fit to do so. Supreme Court. Lockett entered into a condi- contents of pleadings that tional guilty plea in exchange were filed with the court and for a public censure. In one bore his signature. In What does a disability inactive m a t t e r, Lockett misrepre- deciding to sanction Helm sented the condition of his by public censure, the board status mean? m o t h e r ’s health to adversary found somewhat mitigating The J o u rn a l will explain disability has been re m o v e d . counsel and to the court in his discharge of the secre- d i ff e rent types of actions fro m This includes requiring a order to obtain a continu- tary, the parties’ entry into the Board of Pro f e s s i o n a l medical examination of the ance for a trial. However, he an amended marital dissolu- Responsibility in upcoming a t t o rney and/or requiring the immediately reported the tion agreement, and his issues. This month we look at a t t o rney to disclose the names disability inactive status. of doctors who have examined misrepresentation and paid filing of an amended divorce or treated the individual since fees to adversary counsel as complaint that remedied the Attorneys in Tennessee are taking disability inactive status. ordered by the court. In prior unlawful alteration. placed on disability inactive If an attorney is party to a another incident, Lockett status by the state Supreme d i s c i p l i n a ryproceeding, and in misrepresented a matter to Disability inactive Court for four primary reasons: the cour se of that pro c e e d i n g adversary counsel in order to On Aug. 18, the Tennessee • being declared incompetent contends that a disability makes secure a postponement of Supreme Court stayed its by a court; it impossible to provide an depositions. The board found May 21, 2004, order of • being involuntarily adequate defense, the court that in these matters Lockett temporary suspension against committed on the grounds of must immediately enter an ord e r incompetence or disability; t r a n s f e rring the lawyer to did not pursue representation Christopher P. Renard of • being detained or placed in a disability inactive status. The of his clients with compe- Memphis and transferred his mental illness treatment lawyer remains in such status tence and diligence. law license to disability inac- center after a probable cause until a determination can made • • • tive status. Renard agreed to hearing; or of his or her capacity to The Board of Professional the transfer. He will remain • being incapacitated fro m continue practicing law. The Responsibility publicly inactive until he can prove continuing practicing law by pending disciplinary pro c e e d i n g censured William Anthony that his disability no longer reason of mental infirm i t y, is held in abeyance until the Helm of Memphis on Aug. exists and the Board of illness or addiction to dru g s a t t o rney is deemed competent 24. He did not request a Professional Responsibility or intoxicants. to practice law or is re i n s t a t e d In addition, any lawyer – with to active status. hearing on the matter. The recommends the dissolution no disciplinary proceeding or For each lawyer transferr i n g board found that Helm seri- or modification of the complaint pending – may ask to to disability inactive status, the ously neglected two clients’ temporary suspension order. be transferred to disability inac- B o a rd of Professional Respon- legal matters, that he persist- ••• tive status. sibility publishes notice in the ently was dilatory in meeting The Tennessee Supreme Disability inactive status legal journals, newspapers and his commitments to clients Court transferred the law takes effect immediately and c o u rts in co unties wher e the and to the board, and that license of Murfreesboro remains in effect until furt h e r a t t o rney maintained an off i c e . he failed to promptly refund attorney David Lloyd Goad o rder of the court. However, If the attorney has no part n e r, a client’s fee that he to disability inactive status any attorney transferred to ex ecu t o r or ot h er r e s p o n s i b l e disability inactive status is enti- p a rty capable of conducting his acknowledged was unearned. on Aug. 19. Goad filed a tled to petition the court once a or her affairs while on The board also found that petition for voluntary year (or at shorter intervals if disability inactive status, the for several months Helm transfer in July because of a t he co ur t al l ow s) f or r e i n s t a t e - p residing judge in the judicial represented these clients medical condition that ment to active status. To re t u rn district in which the lawyer despite their conflicting incapacitates him from to active status, the attorn e y maintained a practice must interests in a divorce action. continuing the practice of must show by clear and appoint a third party to pro t e c t The board concluded that l a w. While on disability convincing evidence that the the interests of the disabled Helm knew or should have inactive status Goad cannot disability has been re m o v e d and his or her clients. known that disagreements engage in the practice of and that he or she is fit to For more information about resume the practice of law. In the rules governing disability inac- over the marital dissolution law and can only return to reviewing the petition for re i n- tive status, see Rule 9, Section 21 agreement had arisen practicing upon showing by statement, the court may take of the Rules of the Supreme Court between his clients. Finally, clear and convincing such action it deems necessary of Te n n e s s e e. to determine whether the

TENNESSEE BAR JOURNAL, OCTOBER 2005 13 COVER STORY FREE TO SHARE? Grockster decision sidesteps innovation/copyright battle; puts focus on business stategies By David Moser n June 27, the U.S. Supreme Court issued a decision that, depending on who you ask, was either a huge victory for the copy- O right industries (music, movies, books, computer software, etc.) or an innovation crippling impediment to the development of new tech- nological products. In MGM Studios Inc. v. Grokster Ltd., the Supreme Court ruled that two companies that distribute peer-to-peer (P2P) file sharing software may be held liable for contributory copyright infringe- ment.1 Since the Supreme Court’s decision was limited to whether the lower courts had properly granted summary judgment, the case will go back to the district court for a trial to determine whether Grokster and StreamCast are in fact liable according to the standard specified by the Supreme Court. The G r o k s t e r decision is the most recent battle in the music and movie industries’ war against illegal file sharing. The war began in 1999 when the Recording Industry Association of America (RIAA), a trade organization made up of record companies, sued file sharing company Napster and eventually won a preliminary injunction,2 which resulted in N a p s t e r ’s de mise. 3 This initial victory was followed by another victory against another file sharing company, Aimster4 and the shutdown of several other file sharing companies that feared being the next casual- ties. However, as in any major war, there are inevitably losses on both sides. After the success of the music industry’s initial shock and awe liti- gation campaign, new file sharing companies such as Grokster and Streamcast embarked on an invigorated file sharing jihad by distributing a new generation of file sharing software which initially proved to be better able to withstand the music industry’s legal attacks. In simple terms, P2P file sharing software allows people to trade files stored on their computers. Anyone with a computer and Internet connection can download various file sharing software for free. The software allows your computer to communicate with other computers with the same software installed in order to trade files. Although the content of files traded can include any digitized material, the vast majority of files traded are copyrighted music.5 Since most copyright owners have not authorized their copyrighted works to be distributed through file sharing networks, the vast majority of file sharing consti- tutes copyright infringement. Although courts that have addressed the issue thus far in the United States have concluded that people who use file sharing software to trade copyrighted works without the authorization of the copyright owners are committing copyright infringement,6 a more difficult legal question

14 TENNESSEE BAR JOURNAL, OCTOBER 2005 is whether providers of the file sharing software resulting infringements. Although the Grokster can also be held liable and if so, under what and Streamcast file sharing software is primarily circumstances. The issue in the Grokster case used by people to trade copyrighted works, it is was whether Grokster and Streamcast could be also capable of noninfringing use such as contributorily liable for the directly infringing trading public domain material and works acts of users of their software (i.e., unauthorized authorized by the copyright owners. Since the downloading of copyrighted music and movies). lower courts concluded that the file sharing The Supreme Court’s decision indicates that software was capable of substantial nonin- the answer depends not only on how the soft- fringing use, in their view Grokster and Stream- ware works, but also on the actions taken by the cast were not contributory infringers since they company distributing the software. were not directly involved in and had no actual Early file sharing software such as that knowledge of the direct infringements by users distributed by Napster operated through the use of their software because of the software’s of centralized computer servers which listed files decentralized structure. available on the computers of Napster users. Since these server computers were operated by > The Supreme Court’s decision N a p s t e r, it could exercise some degree of control The district and appeals courts’ decisions in over what files were traded. Unlike Napster, the favor of Grokster and Streamcast rested on the file sharing software distributed by Grokster and Sony “substantial noninfringing use” precedent Streamcast does not use any centralized and many experts believed that the only way computer servers to facilitate the sharing of files the court could reverse the 9th Circuit’s deci- among users. Instead, copies of files are trans- sion would be to modify or at least clarify its mitted from one person’s computer to another’s own precedent. However, instead of deciding without passing through any computer servers the case based on the Sony precedent, the court operated by Grokster or Streamcast. held that Grokster and Streamcast are likely The California district court and the 9th guilty of contributory copyright infringement Circuit Court of Appeals held that individuals by inducing and encouraging users of their soft- who used the Grokster and Morpheus software ware to infringe.9 to download copyrighted works without permis- The court’s unanimous opinion holds that sion committed direct infringement, but “one who distributes a device with the object of granted summary judgment to Grokster and promoting its use to infringe copyright, as shown StreamCast, finding that their distribution of by clear expression or other affirmative steps the software did not constitute contributory taken to foster infringement, is liable for the infringement.7 The lower courts relied on a resulting acts of infringement by third parties.” Supreme Court precedent established 20 years It is important to note that under this induce- earlier in Sony Corp. of America v. Universal ment theory, merely supplying a technology that City Studios Inc.8 In Sony, the court held that can be used to commit copyright infringement is the manufacturer of Betamax video recorders not enough to be liable as a contributory used by consumers to make copies of copy- i n f r i n g e r. Instead, the distributor must take affir- righted television shows was not liable for any (Continued on page 16)

TENNESSEE BAR JOURNAL, OCTOBER 2005 15 MGM v. Grokster (Continued from page 15) mative action to encourage users of its clear that a company’s actions in induce the infringement. The court technology to infringe. The court had no marketing a technology can be determi- specifically states that liability will not be problem finding, based on the evidence native as to whether it is contributorily imposed merely due to knowledge of presented, that Grokster and Streamcast liable for infringements committed by potential or even actual infringing use. encouraged users of their file sharing soft- users of the technology. Companies will also not be liable because ware to commit copyright infringement, Afterthecourt’sdecisionwasof their provision of product support or stating that Grokster and Streamcast’s announced, it was immediately criticized technical updates for technology used to unlawful intent “unmistakable.” by technology proponents and much of commit copyright infringement or even According to the court, inducement the media as a severe blow to technolog- for the failure to take affirmative action to often occurs through advertisement or ical innovation. The S o n y p r e c e d e n t prevent infringement. solicitation that is intended to encourage protects technology companies from The court’s inducement standard for people to commit infringement. The court liability for the actions of the tech- contributory copyright infringement stressed three items of evidence supporting nology’s users due to the fear that without insulates companies from liability unless this intent in G r o k s t e r.First, Grokster and this protection, innovation will be there is clear evidence that they took Streamcast were intended to take the place restricted. Although the S o n y r u l e active steps to encourage infringement by of Napster, which was known to be used certainly seems justified in order to users of their products or services. predominantly for copyright infringement. encourage technological innovation, Although the court clearly believed that A d d i t i o n a l l y, Grokster and Streamcast some of its strongest proponents believe it such evidence exists with respect to made no attempt to develop filtering tools should not be subject to any limitation. Grokster and Streamcast, its decision to reduce infringing use of their software. Just think of the devastating effect once leaves room for other file sharing compa- F i n a l l y, Grokster and Streamcast’s business the record industry starts suing Apple nies even though their products may be is based on selling advertising and the price (manufacturer of the iPod),10 computer used for overwhelmingly infringing they charge for ads is directly proportional manufacturers and any other companies purposes. The outlook for Grokster and to the number of users of their software. In that make or distribute any product that Streamcast appears very bleak since they essence, their business depends on infringe- is used by people to infringe copyrights. will likely be subject to huge damage ment since it was uncontested that the vast In reality, there is an important differ- awards that are virtually certain to put majority of file sharing use is to commit ence. Like the Betamax video recorder in them out of business. However, if a copyright infringement. Although nonin- S o n y , products such as the iPod and company distributes file sharing software fringing uses exist, if Grokster or Stream- computers, although sometimes used for that has noninfringing uses and does not cast had to rely on these uses to support illegal purposes, are marketed and used actively market it for infringing use, it is their business, they would almost surely go largely for legal purposes. unlikely that it would be liable for direct out of business. In reality, the consequences of G r o k s t e r infringements committed by users under will likely be much less severe of a restric- the G r o k s t e r standard. File sharing > Implications of the Supreme tion on technology than predicted. The companies might even choose to take Court’s decision c o u r t ’s decision clearly does not establish steps to make clear that they are not Much of the media coverage of a rule that will lead to liability for any inducing infringement such as promi- G r o k s t e r has portrayed the case as a company that creates or distributes a new nently providing copyright information dispute between the entertainment technology that is capable of being used on their web sites, encouraging nonin- industry and technology. The Supreme for illegal purposes. Such a rule would fringing use among their consumers and Court apparently realized that the real certainly chill innovation. Instead, using filtering software to limit infringing dispute was between one type of business G r o k s t e r establishes that a company can use to the extent it is feasible to do so. (copyright owners) and another (file be held liable for copyright infringements The Grokster decision may even have sharing companies). Looking beyond the committed by users of their technology some positive implications for file sharing technology itself, the court’s ruling makes only if the company takes active steps to companies as well as the music and movie industries. For example, legal file sharing services have been in the planning stages and are set to be introduced this year.11 at h t t p : / / w w w. w a s h i n g t o n p o s t . c o m / w p - d y n / D avid Moser is a Nashville-based attorney specializing in entertainment and articles/A18568-2004Dec22.html. Report- intellectual pro p e rtylaw. He is also a pro fessor in the Curb School of Music edly all of the major record companies Business at Belmont University where he teaches courses such as Intellectual have agreed to make their copyrighted P ro p e rt y, Legal Issues in the Music Industry and Multimedia Law and is the recordings available through such serv- author of Music Copyright for the New Millennium. ices subject to agreeable licensing terms. The Supreme Court’s decision provides a

16 TENNESSEE BAR JOURNAL, OCTOBER 2005 http://www.napster.com/. 4. In re Aimster Copyright Litig., 334 F.3d 643 (7th Cir. 2003). Looking beyond the 5. As more people have switched from phone modem Internet connections to broad- technology itself, the court’s band connections, movies and computer soft- ware, which are much larger files than music, have also become more commonly traded on ruling makes clear that a peer-to-peer file sharing networks. 6. The Napster, Aimster and Grokster courts company’s actions in all agreed that individuals who use file sharing software to download copyrighted works marketing a technology can without permission of the copyright owners are committing direct copyright infringement. Since downloading a file involves making a be determinative as to whether copy of that file on a computer hard drive (or other storage device), downloaders exercise it is contributorily liable for the right of reproduction reserved to copyright owners. See 17 U.S.C. §106. 7. MGM Studios v. Grokster Ltd., 259 infringements committed by F.Supp. 2d 1029 (C.D. Ca. 2003) and 380 F. 3d 1154 (2004). users of the technology. 8. 464 U.S. 417 (1984). 9. Interestingly, the court seemed split on how the case should have been resolved according to the Sony standard. A concurring significant impetus for file sharing cleverly found a way to punish the tech- opinion by Justice Ginsburg (joined in by companies to enter into licensing deals nological “evil doers” while preserving Justices Rehnquist and Kennedy) indicates with copyright owners since they now the freedom for law abiding technology that Grokster and Streamcast might be liable have a huge incentive to become legiti- companies to innovate. While the ruling for contributory infringement even absent mate. Even Grokster and Streamcast may will make it harder for technology inducement since they failed to present attempt to do so as part of some type of companies to build their businesses based evidence that their file sharing software is settlement rather than risk a trial court on the illegal use of their technological capable of substantial noninfringing use. This decision against them on remand. products, it should not be a deterrent to view is contradicted by Justice Breyer’s Existing legal online music services companies that desire to produce innova- concurring opinion (joined in by Justices may also be helped by the Grokster deci- tive new technologies that can be used Stevens and O’Connor) favoring a more sion. Many online music companies such legally as well as illegally. A technology lenient interpretation of substantial nonin- as Apple’s iTunes, Rhapsody and the new company’s liability will depend, not on fringing use. Napster 2.0 sell song downloads, the technology itself or even how the 10. After a bill known as the Induce Act streaming music subscriptions or some technology is used, but on the company’s (Inducing Infringement of Copyrights Act of combination of both. Although iTunes actions in marketing its technology to 2004), S.2560 was proposed in 2004, which has received a great deal of publicity and users. As long as companies do not take would have essentially legislated the result the volume of business for these compa- steps intended to induce infringement, reached by the Supreme court in Grokster, nies has increased in the past year, it is they should be protected from most various copyright critics predicted that record still responsible for a very small claims of contributory infringement companies would sue Apple over its iPod. See percentage of music sales, arguably at regardless of how their technology is e.g., Wired News, June 24 quoting the Elec- least partly due to illegal file sharing (i.e., actually used. tronic Frontier Foundation’s Fred Vo n if you can get the same thing for free, why Lohmann: “If this bill were law, I could easily pay 99 cents?). It is possible that more > Notes imagine suing Apple the very next day for people will switch to legal online music 1. 125 S. Ct. 2764 (2005). inducing infringement for selling iPods.” services since the Supreme Court’s deci- 2. A&M Records v. Napster Inc., 239 F.3d 11. See e.g., “Mashboxx Aims to Make sion will make it harder for illegal file 1004 (9th Cir. 2001). File Sharing Legit,” David McGuire, sharing services to operate. 3. Napster was legally reincarnated as a washingtonpost.com In sum, the Supreme Court in Grokster legal online music service. See

TENNESSEE BAR JOURNAL, OCTOBER 2005 17 A R T I C L E

New race to Tennessee and Georgia courthouses over non-competition a g r e e m e n t s

By Don Benson and Stephanie Bauer Daniel

ennessee employers and employees with multi-state in Georgia. Because so many of these cases would be remov- noncompete contracts may want to lace up their best able to federal court on the basis of diversity of citizenship, T pair of running shoes and get ready for a race. On April the Palmer & Cay decision is attracting significant attention 1, 2005, in Palmer & Cay Inc. v. Marsh & McLennan Compa- nationwide by confirming that federal courts sitting in diver- nies Inc.,1 the 11th Circuit Court of Appeals revised a United sity in Georgia will issue as broad of a declaratory judgment as States District Court, Southern District of Georgia, ruling Georgia state courts have extended in NCA disputes. that an employer’s noncompete agreement was unenforceable Although the defendant filed a Petition for Rehearing En only in Georgia. The employee initiated the case in Georgia in Banc on April 22,2 the debate it is creating among commen- order to use the pro-employee Georgia law regarding non- tators is likely to focus more and more attention on the compete and non-solicitation covenants (NCAs). The 11th importance of winning the race to the courthouse. Circuit extended the unenforceability to any other lawsuit between the same parties, even if other lawsuits are filed outside I. Tennessee vs. Georgia — enforceability of of Georgia. Tennessee employers who have employees with non-competition and non-solicitation covenants connections to Georgia should be concerned because this Enforcing an employment-related restrictive covenant is ruling may provide an avenue of escape from an otherwise much easier under Tennessee than Georgia law. Like Georgia, valid NCA to employees who can relocate to Georgia and are Tennessee disfavors restraints on trade; however, Tennessee willing to preemptively bring a declaratory judgment action courts will enforce covenants not to compete where the

18 TENNESSEE BAR JOURNAL, OCTOBER 2005 “restrictive contracts are II. Factual background reasonable as to territory and Marsh & McLennan Companies Inc. (MMC) bought the time, where a violation would brokerage that employed James Meathe in 1997. As part of the result in serious damage or sale and transition, Meathe sold his shares in the acquired injury to the employer and brokerage and accepted employment with MMC, ultimately impose no undue hardship becoming managing director and head of the Midwest Region upon the employee.”3 of MMC, and according to MMC residing in Michigan and While Georgia’s pro- Illinois.12 Meathe executed a 1997 stock sales agreement employee case law does not containing NCAs and a 2002 employment-related NCA. In allow courts to “blue pencil” or February 2003, Meathe left MMC, relocated to Georgia, and reform unreasonable restric- joined Palmer & Cay in allegedly direct competition with tive covenants contained in MMC in both Georgia and his former Midwest territory. employment contracts, under The 1997 stock agreementincludes a provision that prevents m os t cir c um sta n c es ; Te n n e s s e e seller for a specified time from accepting unsolicited business courts will modify noncompe- from any clients or prospects of the company who were solicited tition agreements where either directly or indirectly by seller while with the company: the time or territorial limita- (b) Each Seller who is not a director of the company as of tions are found to be unreason- the date herby agrees that during the Non-Solicit Period, a b l e . 4 H o w e v e r, i f t h e r e i s such Seller will not (x) solicit, accept or service business evidence that an employer that competes with businesses conducted by the Company, deliberately imposed unrea- buyer or any of their affiliates who were solicited directly by sonable restrictions in a Seller or where Seller supervised, directly or indirectly, in noncompetition agreement, whole or in part, the solicitation activities related to such the court will void the terms of clients or prospects or (ii) from any former client who was the covenant not to compete such within two (2) years prior to such termination and a l t o g e t h e r.5 Both time and who was solicited directly by Seller or where Seller super- territorial restrictions in vised, directly or indirectly, in whole or in part, the solici- covenants not to compete tation activities related to such former client; or (y) solicit must be no broader than any employee of the Company or its affiliates to terminate necessary to protect the inter- his employment.13 ests of the employer.6 For example, where a the The 2002 employment agreement includes a similar prohi- Tennessee Court of Appeals bition against accepting unsolicited business from clients of found that a six-month restric- the company who were directly or indirectly solicited or serv- tion on competition for a nail iced by employee within two years prior to the termination of technician was unreasonable, employment: the time limitation was reduced (a) solicit or accept business of the type offered by the to two months.7 Additionally, the Tennessee Court of Appeals Company during my term of employment with the modified a 20-year restriction on competition by reducing it to Company, or perform or supervise the performance of any five years,8 whereas a Georgia court likely would have invali- services related to such type of business, from or for (i) dated the covenants altogether. After finding that such a clients or prospects of the Company or its affiliates who temporal period was unreasonable, a Georgia court would not were solicited or serviced directly by me or where I super- have modified the NCA, but instead would have declared the vised, directly or indirectly, in whole or in part, the solici- covenant unenforceable.9 Although Tennessee courts have tation or servicing activities related to such clients or enforced nationwide geographic restrictions under certain prospects; or (ii) any former client of the Company or its c i r c u m s t a n c e s , 1 0 Georgia courts have invalidated entire affiliates who was such within two 2) years prior to my NCAs based on over-broad, even less than nationwide, termination of employment and who was solicited or serv- geographic restrictions.11 Clearly, employees seeking to get out iced directly by me or where I supervised, directly or indi- from under restrictive NCAs are more likely to receive a rectly, in whole or in part, the solicitation or servicing favorable ruling in Georgia, while employers seeking to activities related to such former clients.14 protect their legitimate business interests would rather litigate in Tennessee’s courts. To take advantage of Georgia’s anti-NCA precedent, Meathe and his new employer, Palmer & Cay, filed a declara- (Continued on page 20)

TENNESSEE BAR JOURNAL, OCTOBER 2005 19 Non-compete agreements (Continued from page 19) tory judgment action in the federal district court in Savannah, Ga., seeking an order that both the 1997 stock sale NCA and “Clearly, employees seeking to get out from his 2002 employment-related NCA are under restrictive NCAs are more likely unenforceable. MMC counterclaimed for enforcement of both agreements. to receive a favorable ruling in Georgia, Although both the 1997 and 2002 while employers seeking to protect agreements contained forum selection clauses, the District Court found that the their legitimate business interests parties had waived these contractual would rather litigate in Tennessee’s courts.” rights by litigating the merits of the claims, counterclaims, and defenses without challenging venue: As a preliminary matter, the parties t o r y, transforming it into a non-competi- NCA in a stock agreement is entitled to have waived any “New York,” contrac- tion restriction.2 1 the lower blue-pencil standard or the tually forum-selected, venue rights they The District Court declared unen- stricter standards for employment-related might hold. Plaintiffs did so by filing its forceable the 2002 employment-related NCAs. Georgia analyzes the bargaining case here; MMC did so by answering, NCA preventing Meathe from accepting capacity of the seller to determine if it is Counterclaiming and litigating the unsolicited business2 2 and the 11th more like the bargaining power of a busi- merits without challenging venue.1 5 Circuit affirmed.23 ness owner or an employee.2 7 The court will look to the facts of each situation, A. Unenforceability of the 2002 employ- B. The 1997 Stock Sale Agreement including whether there was considera- ment restrictive covenant in Georgia The 1997 Stock Sale Agreement tion independent of employment for the Georgia is one of the most difficult contains a nearly identical NCA, not NCA, the relative size of the seller’s states for an employer to obtain enforce- limited by a geographic territory, stock holding in the acquired company, ment of an employment-related NCA. restricting the solicitation of customers the realistic power of seller’s stock in a Georgia will not “blue pencil” an overly and prospective customers on whom closely held corporation, whether the broad, employment-related NCA to Meathe called while employed. Once seller had exercised control over the enforce it to the extent reasonable.16 T h e again the NCA prevents Meathe from decision to pursue a merger, or taken part 2002 restrictive covenant is in essence a accepting unsolicited business from such in merger negotiations.2 8 non-solicitation of customers covenant customers and prospective customers and Both the 1997 and 2002 agreements without a geographic restriction. A non- is therefore un-enforceable in Georgia. If contained choice of law provisions solicitation covenant that prohibits the the 1997 agreement is interpreted as an declaring that the parties had agreed to solicitation of an employer’s clients that employment-related NCA, then the no- interpret the contracts according to New the employee actually contacted as part of blue-pencil rule would prevent the court York law.29 MMC contended that the his or her job for a business purpose can be from severing overreaching provisions.24 agreement’s prohibition against accepting enforceable without a geographic restric- Although Georgia law is quite antago- unsolicited business would be enforce- t i o n . 1 7 Such an NCA can even extend to nistic to employment-related NCAs, it able, whether the agreements were inter- prospective customers where some busi- will blue-pencil an NCA ancillary to the preted according to New York law, or the ness relationship was established by the sale of a business.25 Georgia courts apply law of Illinois where they were executed employee as a part of the job.1 8 a lower level of scrutiny to NCAs ancil- by Meathe.30 Therefore, the court’s deci- Unfortunately for MMC, although a lary to the sale of a business and Georgia sion whether to abide by the choice of non-solicitation NCA may be enforce- will reform or “blue pencil” those objec- law provisions in the agreements proved able in Georgia without a geographic tionable portions of NCAs to enforce determinative of the merits of the case. limit, it is n o t enforceable if the same them to the extent allowed by Georgia restriction also precludes the former law.26 Consequently, if the 1997 agree- III. Choice of law employee from accepting unsolicited ment is construed as ancillary to the sale The 11th Circuit’s Palmer & Cay b u s i n e s s . 1 9 Such restrictions without a of a business rather than employment, ruling does not break new ground on the geographic territory can only restrict then its NCA might still be blue-penciled issue of interpreting the parties’ choice of affirmative actions by the former to be enforceable. law provision in an NCA agreement. In e m p l o y e e . 2 0 If the employer wants to H o w e v e r, if a stock sale occurs at the an earlier case, Keener v. Convergys prevent the acceptance of unsolicited same time that an employee joins the Corp.,31 the 11th Circuit referred a ques- business, then the non-solicitation buying company, Georgia law has its own tion of Georgia law to the Georgia clause must specify a geographic terri- peculiarities for determining whether the (Continued on page 24)

20 TENNESSEE BAR JOURNAL, OCTOBER 2005

A R T I C L E

Evidence issues in a church love triangle trial By Donald F. Paine

n Knoxville around 7 p.m. on the The answer involves religion, sex, crime tion, transformed later into an agreed evening of June 7-8, 1994, Lisa and law. order of protection with social contact. I Whedbee drove to Michael Frazier’s These classy citizens were members of Lisa told Frazier that these legal steps apartment and brought him to her house. Trinity Methodist Church. Michael served only to kindle Rob’s anger and She put him in a downstairs closet armed Frazier was choir director and organist, that he threatened to kill her (and her with a butcher knife. Husband Rob and Lisa Whedbee sang in the choir. lawyer). These events culminated in the Whedbee came home from playing soft- Rob Whedbee attended but was less unpleasant evening we began with. ball after work. He ate, started messing active in church affairs. F r a z i e r ’s t r i al fo r at t e mp t ed f ir s t with papers from his insurance business, F r a z i e r ’s da y job wa s writ in g fea t ure d e gr e e m u r d er r an fr o m Tu e s d a y but went to bed when Lisa appeared in a articles for the Oak Ridger n e w s p a p e r. On e through Saturday, September 12-16, sexy short nightgown. of those was a Mother’s Day 1993 story 1995, Hon. Richard Baumgartner After midnight Lisa went to the about Lisa’s struggles to cope with the presiding. It was the first Tennessee trial closet, fetched Frazier, led him upstairs, medical problems of daughter Brittany on Court TV; I have the videotapes. and pointed to the marital bedroom. (age four), afflicted with Down Syndrome. Prosecuting were Bill Crabtree and Jo Frazier entered and heard Rob snoring. Frazier had long been attracted to Lisa. Helm. Defending were Greg Isaacs and He looked down at Rob, decided he On a fateful Wednesday evening in early Ron Rayson. The latter presented in could not kill him, and started to leave. June, the two were the last to leave the four acts the classic hillbilly defense: But he bumped the bed. Rob awoke and choir loft. In the parking lot Lisa confided “The guy deserved killing.” a struggle ensued. Lisa appeared in the that for many years she had strong feel- Act I was the cross-examination of bedroom holding a softball bat. ings for Frazier. Feelings escalated to Rob Whedbee, the state’s star witness: Rob slammed Frazier down, grabbed holding hands and kissing, climaxed by Q. “Do you admit or deny to this the bat from Lisa, and ran out of the sexual intercourse in late July. jury that you forced your wife to house to rouse a neighbor. Deputies were The affair continued in 1994. have sex, that you raped her?” called. Lisa was arrested. About 6 a.m. According to proof developed in the A. “That is totally false.” Frazier was arrested after a long walk to State v. Frazier trial transcript Rob his estranged wife’s townhouse. became increasingly abusive to wife Lisa. Q. “Do you admit or deny that you What the hell was going on?! She obtained an ex parte order of protec- told your wife that this divorce wasn’t going to happen and that Donald F. Paine is a past president of the Tennessee Bar Association and is of the only way she would leave your counsel to the Knoxville firm of Pa i n e, Ta r w a t e r, B i ck e rs , and Tillman LLP. H e house was in a body bag?” lectures for the Tennessee Law Institute, BAR/BRI Bar Rev i ew, Tennessee Ju d i c i a l A. “Absolutely not. It is completely C o n fe r e n c e, and University of Tennessee College of Law. He is reporter to the f a l s e . ” Supreme Court Adv i s o ry Commission on Rules of Practice and Pro c e d u r e.

22 TENNESSEE BAR JOURNAL, OCTOBER 2005 Where the sparks start e d , on Lisa’s body, alleged abuse were admissible to prove 5 613 Western Ave n u e including: “I saw why Frazier believed he had to protect bruises up her back, Lisa from Rob. He was allowed to tell the down the backs of her jury about X-rated statements that even legs, and horrible your perverted author is reluctant to black purple bruises submit for publication in the J o u r n a l. between her legs.” Theverdict?Astotheindicted Act IV was offense of attempted first degree murder, Michael Frazier’s “Not guilty.” As to the lesser included direct examination offense of attempted second degree Where it got hot, testimony about murder, “Not guilty.” As to the lesser 9127D Brendon Park L i s a ’s e x t r aj u d ic ia l included offense of attempted voluntary statements about m a n s l a u g h t e r, “ Gui lt y.” I r eck o n th e R o b ’s abuse. Why is jurors decided, even if the victim Act II was the that not excludable deserved killing, they should not be on testimony of a hearsay? Because a record as approving a man entering defense witness, a common category of another man’s bedroom at midnight with shrink named nonhearsay encom- a butcher knife. Diana McCoy. passes statements Denying probation, Judge Baum- Under Evidence offered to show the gartner sentenced Frazier to the Rule 703 she told mental state of the maximum of four years, but at 30 percent the jury what h e a r e r. Even if Lisa he would have served around 15 months Frazier told her were a liar, her state- in the penitentiary. about what Lisa ments about Rob’s And what about Lisa Whedbee, told him about indicted for solicitation of R o b ’s abuse . How first degree murder? Current can that be? Let’s Where it blew up, Knoxville Bar Prexy and inspect the rule, 7500 Belfast Lane Lisa’s defense lawyer, David always a good idea: Eldridge, obtained a plea The facts or data in the partic- bargain that netted her just ular case upon which an expert under a year at the Knox bases an opinion or inference County Penal Farm. may be those perceived or Query: As a result of made known to the expert at reading this article, how many or before the hearing. If of a of you folks are going to start type reasonably relied upon by checking out the closets experts in the particular field before retiring at night? in forming opinions or infer- ences upon the subject, the Where Frazier was arrested, facts or data need not be 9115 Jenny Cook Circle admissible in evidence.

This is a verbose way of saying that the s h r i n k ’s o pi n io ns ar e t h e s ub st an t iv e evidence. But the judge may allow the jury to hear the underlying bases of the opinion in order to evaluate the accuracy of the opinion. So here the double and sometimes triple hearsay was not itself evidence, but the jury heard it for a legit- imate evidentiary reason. Act III was the testimony of two of Lisa’s girlfriends about physical injuries observed

TENNESSEE BAR JOURNAL, OCTOBER 2005 23 Non-competition agreements (Continued from page 20)

Supreme Court regarding such choice of that the parties may mutually agree that the NCAs to be unenforceable in Georgia law provisions, and conformed its final the law of some place other than the and enjoined MMC from enforcing them judgment to the Georgia Supreme Court’s place of making the contract will against Meathe in Georgia.3 6 Thus, the ruling that Georgia would consider such a govern.34 In order for a choice of law territorial scope of the declaratory judg- choice of law provision by first examining provision to govern (unless it is the ment from the District Court was limited whether the NCA violated Georgia’s choice of the place of making the in the same way as the scope of its injunc- public policy regarding NCAs.3 2 I n contract), the parties must enter into the tive award. This appeared to leave open applying this choice of law analysis to the choice of law provision in good faith and the possibility that, if MMC could obtain 1997 and 2002 agreements executed by the other state must have “some material jurisdiction over Meathe in some other Meathe, the District Court in Palmer & connection with the transaction.”35 On jurisdiction, that it could sue him for Cay found the NCAs in the 1997 and the other hand, Georgia courts are likely competitive activities outside of Georgia 2002 agreements violated Georgia’s to apply their own law where the law of and obtain a ruling using the parties’ policy regarding NCAs by preventing the selected forum may conflict with the agreed upon choice of law provisions in acceptance of unsolicited business. public policy of Georgia. Therefore, the 1997 and 2002 agreements. The Tennessee’s “reasonableness” approach b ec au se o f Te n n e s s e e ’s ap p ro ac h t o District Court, perhaps mindful of having versus Georgia’s “all or nothing” NCA’s in employment contracts, it also been reversed in an earlier case for approach, makes it much more probable seems more likely that the parties’ choice granting nationwide injunctive relief that a Tennessee court would enforce a of law provision would be honored in against enforcement of an invalid NCA choice of law provision contained in a Tennessee than in Georgia. under similar circumstances, restricted its NCA. In Tennessee, in the absence of a ruling to a judgment that the NCA was choice of law provision, the rule of lex loci IV. Scope of declaratory judgment declared unenforceable.3 7 c o n t r a c t u s applies, meaning that the As a result of applying Georgia’s choice The Palmer & Cay decision reverses contract will be governed by the law of of law principles, the District Court the District Court’s territorial limitation the place where the contract is made.33 granted a declaratory judgment to Plain- of its declaratory judgment as to the 2002 However, it is well settled in Tennessee tiffs Meathe and Palmer & Cay, finding agreement, but remands for further find- ings as to whether the 1997 NCA was ancillary to employment or to the sale of a business. A federal court sitting in diversity in a state declaratory judgment action would apply that state’s interpreta- tion of its declaratory judgment statute’s affect on claim and issue preclusion, unless that state’s law conflicts with federal interests.38 The 11th Circuit cited a Georgia case, Hostetler v. Answerthink, involving a race to state courts in Georgia and Florida, where the Georgia court was the first to issue a final declaratory judg- ment, fully resolving all issues and claims that the parties actually or could have brought based on the events before the court.39 Because Georgia does not limit its declaratory judgments in employment- related NCA cases, the federal court sitting in diversity would give equally broad territorial, issue and claim preclu- sion affect to its ruling. In essence, the 11th Circuit clarified that the declaratory judgment issued as to the 2002 NCA fully resolved the dispute between the parties based on the agree- ments and the facts alleged in the lawsuit. Although injunctive relief would not be issued on a nationwide basis because of

24 TENNESSEE BAR JOURNAL, OCTOBER 2005 limits in the federal statutory basis of Companies often send “cease and injunctive authority, as confirmed in the “Tennessee’s ‘reasonableness’ desist” letters prior to an enforcement earlier Keener case,4 0 the declaratory action. Now, prolonged letter writing may judgment fully resolved the dispute wher- approach versus Georgia’s no longer be a useful tactic against a ever the parties may be, not just as to ‘all or nothing’ approach, former employee willing to rush to the claims and issues presented in a Georgia courthouse to obtain a declaratory judg- state or federal court.41 makes it much more probable ment in a favorable jurisdiction. that a Tennessee court Waiving venue and forum selection V. Growth industry in forum clauses may decide a case’s outcome. Liti- shopping would enforce a choice of gants must balance the merits of a forum Before Palmer & Cay, it was clear that law provision contained where jurisdiction is easily obtained and if an employer had a valid NCA in, for where docket pressures allow for a quick example, Tennessee, and if it could in a NCA.” hearing on a temporary restraining order obtain jurisdiction in Tennessee over its (TRO) to be set against the importance of former employee who now lived in a forum applying favorable law. Employers Georgia, then the NCA would likely be elsewhere for his prior competition may face multiple lawsuits, progressing in enforced under Tennessee law, particu- outside of Georgia? Palmer & Cay now different forums. Litigation strategy must larly if the agreement includes an indicates that in the 11th Circuit the recognize that it is not the first court that Tennessee choice of law clause. employee obtaining such a final declara- enters a TRO or preliminary injunction, It was also clear that if the employee tory judgment would be protected if he but the first to enter a final judgment that located in Georgia was sued in Georgia, a were simultaneously or later sued outside will have its judgment followed in other court applying Georgia law would not of Georgia, whether or not his competi- j u r i s d i c t i o n s . 4 3 C o n s e q u e n t l y, employers enforce the agreement, even if the NCA tive activities were restricted to Georgia. may be forced to aggressively fight any stated that Tennessee law was to apply. Rushing to court in Georgia assures Georgia litigation until a final judgment Georgia’s choice of law principles require that Georgia’s substantive restrictions can be obtained outside Georgia in a its courts to bypass initially such choice of against NCAs will many times find an forum willing to apply the NCA’s choice law provisions and first determine NCA unenforceable, even if the state of law provisions. whether the NCA is enforceable under where it was originally signed and drafted Companies seeking to help a new Georgia law. The strong Georgia public would reach a different conclusion. employee avoid the enforcement of an policy against NCAs would not allow a NCA might pursue a declaratory judg- Georgia court to enforce an NCA VI. Responding within, and ment that it is unenforceable by rushing contrary to that policy, despite a choice of outside, of Georgia to a state or federal court applying favor- law provision in the NCA. A federal Employees can more easily relocate if able anti-NCA case law. court in Georgia hearing a case based on their former territories include states like In response to this development, an diversity jurisdiction would also apply Georgia, or if their jobs could be performed ounce of prevention may be worth a Georgia law to such a contract dispute. primarily by telephone or internet from pound of cure, even for employers in It was not yet clear what the employee any state. Tennessee employers with oper- jurisdictions that have not faced the issue could gain by preemptively rushing to ations in or near Georgia should consider yet. Employers should carefully examine court in Georgia for a judgment declaring the likelihood of such relocations and draft their contracts to make sure that they the NCA unenforceable under Georgia its NCA provisions with an eye toward include useful forum selection, consent to law.42 Would that protect him only from enforceability in Georgia, not just the jurisdiction, and choice of law provisions. suit in Georgia? Could he still be sued current location of its employee. Even if choice of law provisions will not be enforced in declaratory judgment actions brought in Georgia, could the employer prevent a declaratory judgment Don Benson is a shareholder in Littler Mendelson’s Atlanta, G a . , o f f i c e. preemptive strike by providing in a forum Benson clerked with judges James Jarvis and Robert Tay l o r, U. S . D i s t r i c t selection clause that all disputes must be C o u rt , K n oxville and received his law degree from the University of Utah in Salt Lake City. brought in a specific forum, with parallel consents to jurisdiction and service? Stephanie Bauer Daniel is an associate with Dinsmore & Shohl in Cincinnati and received her law degree from the University of Tennessee College of VII. Forum selection clauses L aw. For further info r m a t i o n , contact Benson at [email protected] or A race to the courthouse may be the Daniel at stephanie. d a n i e l @ d i n s l aw. c o m . o nl y r elia b le p ro te c tio n fo r Te n n e s s e e

(Continued on page 26)

TENNESSEE BAR JOURNAL, OCTOBER 2005 25 Non-competition agreements (Continued from page 25) employers because including a forum selection clauses where enforcement In Iero v. Mohawk Finishing Products se le ct ion cl aus e ch oo sin g a Te n n e s s e e would result in application of a choice I n c .,4 5 a forum selection clause in an non- court may not be enough to keep deci- of law provision contrary to the public competition covenant was enforced by the sions regarding the enforceability of policy of Georgia disfavoring restraints Georgia Court of Appeals because Iero did NCAs inside Tennessee. Although on trade. This is important to Te n n e s s e e not show that the clause was “unreason- forum selection clauses are generally employers because Tennessee courts able under the circumstances.”4 6 U n f o r t u- en fo rc eab le in Te n n e s s e e , 4 4 the dicta of may enforce or “blue pencil” an NCA n a t e l y, Georgia courts have shed little two Georgia cases may indicate a will- that Georgia courts would find light on what constitutes “unreasonable ingness to refuse enforcement of forum completely unenforceable. under the circumstances.” Georgia courts consider more than whether the chosen forum would be merely inconvenient for one of the litigants, but also whether there I would appreciate hearing from any attorneys is evidence of “fraud, undue influence or having had dealings with Johnny Dunaway overweening bargaining power. ”4 7 Although Iero enforced a forum selec- in the Chancery Court in Campbell County. tion clause, the court noted that it was leaving open the issue of whether a You may contact me by telephone, e-mail or postal mail as you wish. forum selection clause would be unen- I may be reached at the following: forceable in Georgia as against public 865-539-1067 (office) policy on a different factual record.4 8 865-567-4234 (cell) The Georgia Court of Appeals pointed out that the U.S. Supreme Court has [email protected] noted that “certain contractual forum The Taylor Law Firm • P.O. Box 31705 • Knoxville, TN 37930-1705 selection clauses may be held unenforce- able if such clause contravenes ‘a strong public policy of the forum in which the suit is brought, whether declared by statute or by judicial decision.’”4 9 Perhaps this indicates that the Georgia courts will someday consider whether a forum selection clause is unen- forceable because it damages the litigants by applying unfavorable law contrary to Georgia public policy in the selected forum, which the court expressly notes is an argument not raised by I e r o . 50 A second Georgia Court of Appeals deci- sion in Hulcher v. Corman Railroad Co., also notes in dicta that the I e r o a p p e l l a n t “failed to carry the burden of showing how the application of New York law would be contrary to the public policy of Georgia and that ‘enforcement of his employment contract would be unrea- sonable under the circumstances.’”5 1 T h e H u l c h e r decision seems to be willing to consider whether a forum selection clause may fail if it dictates an objec- tionable choice of law. The repeated efforts by both opinions to phrase the standard in terms of public policy and to note arguments not raised by those appellants, may indicate that the enforceability of such forum selection

26 TENNESSEE BAR JOURNAL, OCTOBER 2005 Discover These Great Corman Co. LLC, 543 S.E.2d 461, 466 (Ga. TBA B EN E F I T S Ct. App. 2000) (Court of Appeals upheld trial For You and Your Firm court ruling the covenant not to compete was unreasonable and therefore unenforceable As a member of the Tennessee where five state restriction was broader than Bar Association, you have access the area where the employee worked). to a wealth of member benefits, 12. Defendant Marsh & McLennan Compa- ranging from great rates on insur- nies Inc.’s opposition to plaintiffs’ motion for ance to discounts on legal research judgment on the pleadings, Palmer & Cay Inc. and overnight package delivery. v. Marsh & McLennan Companies Inc.,No. Here’s a sample of what you can CV403-094 (S.D.Ga. 2003). expect with your membership. 13. Palmer & Cay, 2005 U.S. App. LEXIS LIABILITY INSURANCE AND MORE at *4. The TBA sponsors a select number 14. Id. at *6-7. of insurance programs for you 15. Palmer & Cay Inc, CV403-094 (S.D.Ga. and your firm’s financial security. clauses in employment-related NCA N o v. 11, 2003) (order granting motion for Auto insurance from GEICO cases may see additional litigation. schedule of oral argument). is also available. As parties continue to assess the 16. Id. usefulness of the Palmer & Cay d e c i s i o n 17. See, e.g. American Software USA Inc. v. LEGAL RESEARCH FROM LEXISNEXIS™ in avoiding NCAs, one message is clear: Moore, 264 Ga. 480, 448 S.E.2d 206 (1994); Flexible research and savings pro-active, aggressive litigation strate- W.R. Grace & Co. v. Mouyal, 262 Ga. 464, on services for lawyers from gies have grown even more important 422 S.E.2d 529 (1992). LexisNexis™. for employers. 18. See, e.g. Paul Robinson Inc. v. Haege, 218 Ga. App. 578, 462 S.E.2d 396 (1995). The DISCOUNTS AT OFFICE DEPOT Notes situation regarding potential customers is not When TBA members sign up for 1. Palmer & Cay Inc. v. Marsh & McLennan quite so clear where the prior contact was little this program, they will receive Companies Inc., No. 03-16248, 2005 U.S. App. more than an unsuccessful “cold call.” I d . pricing as if they were a large LEXIS 5243, at *1 (11th Cir. Apr. 1, 2005). 19. Habif, Arogeti & Wynne PC v. Baggett, volume purchaser. In addition, 2. Id. (petition for rehearing en banc filed 231 Ga. App. 289, 498 S.E.2d 346, 353 (1998). Office Depot is offering ordering April 22, 2005). On Sept. 6, defendant filed 20. Singer v. Habif Arogeti & Wynne PC, by fax, phone, the internet or in its notice of filing in the 11th Circuit of peti- 250 Ga. 376, 297 S.E.2d 473 (1982); Waldeck person at an Office Depot location tion for writ of certiorari to the U.S. Supreme v. Curtis 1000 Inc., 261 Ga. App. 590, 583 and free next-day delivery. Find Court. S.E.2d 266 (2003). out more at 3. Kaset v. Combs, 434 S.W.2d 838, 841 21. Id. h t t p : / / w w w.tba.org/tbinfo/mai n.html (Tenn. Ct. App. 1968). 2 2 . Palmer & Cay Inc, CV403-094 (S.D.Ga. 4. Cent. Adjustment Bureau Inc. v. Ingram, N o v. 11, 2003) (order granting motion for T R AVEL SERVICES 678 S.W.2d 28, 37 (Tenn. 1984). schedule of oral argument). Visit the TBA’s online travel center 5. Id. 23. Palmer & Cay Inc., 2005 U.S. App. for one-stop travel shopping. 6. Allright Auto Parks Inc. v. Berry, 409 LEXIS 5243 at *1. S.W.2d 361, 363 (Tenn. 1966). 24. Id. at *15. CONFERENCING MADE SIMPLE 7. See, e.g., Baker v. Hooper,50S.W.2d 25. Id. at *12-13 (citing White v. Fletcher/ Information Logistics helps 463, 469 (Tenn. Ct. App. 2001). Mayo/Assocs. Inc. 303 S.E.2d 746, 749 (Ga. make conference calls and web 8. Suggs v. Glenn, C.A. No. 837, 1989 1983)). conferencing affordable for all Tenn. App. LEXIS 37, at *16 (Tenn. Ct. App. 26. Id. (citing Swartz Invs. LLC v. Vion TBA members. Jan. 20, 1989). Pharm. Inc., 556 S.E.2d 460, 463 (Ga. Ct. SERVICES TO HELP YOUR PRACTICE 9. See, e.g., Riddle v. Geo-Hydro Eng’rs Inc., App. 2001)). TnBar Management Services 561 S.E.2d 456, 458 (Ga. Ct. App. 2002) 27. See, e.g. Advance Tech. Consultants Inc. provides members practical (restrictive covenant containing nonsolicita- v. Roadtrac LLC, 551 S.E.2d 735, 737 (Ga. Ct. information on law office tion clause was unenforceable because it did App. 2001); Ward v. Process Control Corp., management issues. not limit the purpose for which the ex- 277 S.E.2d 671, 673 (Ga. 1981). employee could not solicit clients of his former 28. Palmer & Cay Inc., 2005 U.S. App. To find out more or sign up for a benefit, visit employer and therefore was unreasonable). LEXIS5243at*16-17(citingWhite v. T B A L i n k at www.tba.org/tbinfo/main. Or contact 10. Id. Fletcher/Mayo/Assocs. Inc. 303 S.E.2d 746,751 Megan Rizzo, our membership coordinator, by phone 11. See, e.g. Hulcher Servs. Inc. v. R.J. (Continued on page 28) at (800) 899-6993 or [email protected]

TENNESSEE BAR JOURNAL, OCTOBER 2005 27 Non-competition agreements (Continued from page 27)

(Ga. 1983); Drumheller v. Drumheller Bag & that state, that is, its performance in the final adjudication of the merits entitled to res Supply Inc., 420 S.E.2d 331, 334-35 (Ga. Ct. particular state is in some way either benefi- judicata and collateral estoppel). App. 1992)). cial or desirable.”). 44. Dyersburg Mach. Work Inc. v. Renten- 29. Defendant Marsh & McLennan 36. Palmer & Cay Inc . v. Marsh & McLennan bach Eng’g Co., 550 S.W.2d 378, 380 (Tenn. Companies Inc.’s opposition to plaintiffs’ Companies, No. CV403-094, Order filed Ct. App. 1983). motion for judgment on the pleadings at 15, 11/11/03, p. 11 (S.D.Ga. filed May 21, 2003 ). 45. Iero v. Mohawk Finishing Prod. Inc., 534 n.6, Palmer & Cay Inc. v. Marsh & McLennan 37. Keener, 342 F.3d at 1266. S.E.2d 136, 137-38 (Ga. Ct. App. 2000). Companies Inc., No. CV403-094 (S.D.Ga. 38. Palmer & Cay Inc., 2005 U.S. App. 46. Id. at 138-39. May 21, 2003). LEXIS at *34. 47. Id. (quoting The Bremen v. Zapata Off- 30. Id. (citing Ecolab Inc. v. K.P. Laundry 39. Id. (citing Hostetler v. Answerthink Inc., Shore Co., 407 U.S. 1, 12 (1972)). Machinery Inc. 656 F. Supp. 894, 898 599 S.E.2d 271, 275 (Ga. Ct. App. 2004) 48. Id. at 138 (“Under these circumstances, (S.D.N.Y. 1987); Howard Johnson & Co. v. (declaratory judgment from Georgia court Iero fails to show that the mere enforcement of Feinstein, 609 N.E.2d 930, 935 (Ill. App. Ct. precluded parties from re-litigating issue in a freely negotiated forum selection clause 1993)). simultaneous or subsequent litigation in violates Georgia public policy. Indeed he does 31. Keener v. Convergys Corp., 205 F. Supp. another state’s courts). not even address whether the New York court 2d 1374, 1383 (S.D.GA. 2002), conflict-of-law 40. Keener v. Convergys Corp., 342 F.3d at would apply New York law. Accordingly, our question certified, 312 F.3d 1236 (11th Cir. 1269. (11th Cir. 2003). inquiry is limited to whether enforcement of 2002), answered, Convergys v. Keener 276 Ga. 41. In Palmer & Cay, the District Court the forum selection clause is inconvenient or 808 (2003), answer conformed, Keener v. erred in ruling that on the pleadings, there would deprive Iero of his day in court.”). Convergys Corp., 342 F.3d 1264 (11th Cir. was no set of facts on which MMC could show 49. Id. (quoting Bremen v. Zapata Off-Shore 2003). that the 1997 Agreement was ancillary to the Co., 407 U.S. 1, 15 (1972)). 32. Id. sale of a business. The 11th Circuit remanded 33. Vantage Tech. LLC v. Cross, 17 S.W.3d for further proceedings regarding the 1997 637, 650 (Tenn. Ct. App. 1999) (citing Ohio Agreement. Palmer & Cay Inc., 2005 U.S. Cas. Ins. Co. v. Travelers Indem. Co., 493 App. LEXIS 5243 at *____. S.W.2d 45, 467 (Tenn. 1973)). 42. Enron Capital & Trade Resources Corp. v. 34. Goodwin Bros. Leasing Inc. v.H&B P o l a s k y,227 Ga. App. 727, 490 S.E.2d 136, 138 Inc., 597 S.W.2d 303, 306 (Tenn. 1980). (Ga. App. Ct. 1997) (declaratory judgment is 35. I d . See also Deaton v. Vi s e, 210 S.W. 2 d available where a legal judgment is sought that 665, 669 (Tenn. 1948); Stevenson v. Lima would control or direct future action like Locomotive Works Inc., 172 S.W.2d 812, 814- ongoing competition and employment). 15 (Tenn. 1943) (“Where the parties agree to 43. Hulcher Servs. Inc. v. R.J. Corman R.R. performance of the contract in a foreign Co., 247 Ga. App. 486, 543 S.E.2d 461, 464 state, the contract itself must be referable to (Ga. C. App. 2000) (not first injunction, but

28 TENNESSEE BAR JOURNAL, OCTOBER 2005 A R T I C L E

TBA sections cover special areas of the law People who know what you are talking about We’re celebrating the Tennessee Bar Wheeler explained what goes on areas and make appropriate recom- Journal’s first 40 years all year! In each “behind the scenes of a section and mendations to the Board of Gover- issue we will look back at an area of life some of the things your section chair nors regarding legislation, continuing in the law to see how the TBJ covered it. must deal with.” Chairs are respon- legal education or other needed This month we consider sections, the sible for setting the budget, working action in regard to the specialized subgroups of the TBA devoted to with an editor for a newsletter, and areas of the law.” particular subject areas. collecting section members’ views in One of the areas sections have drafting proposed legislation, among excelled at is in providing suggestions he Tennessee Bar Association other duties. and support for CLE seminars. For has steadily increased the Wheeler wrote: “The people who instance, the Health Law Section is T number of its sections over in its 17th year of offering the Health the years — now there are 25 of Law Forum, a highly successfuly these specialized groups that focus on program with section members as the various areas of the law. driving force. At the 1965 convention, eight As the number of sections and sections met: Real Property, Probate their scope of influence has increased, & Trust, Plaintiff’s Attorneys, Insur- so has TBA staff time devoted to ance, Labor Law, Military Law, them. In 1987, when the first director Municpal Law & County Attorneys of communications was and Young Lawyers. Reports of these hired, section chairs got meetings were the first coverage the their first official liaison. Tennessee Bar Journal gave to TBA That duty was passed sections. Some of those sections are along, coupled with other still active and some have faded away. duties at different times. Current sections are: Bankruptcy, Today, Lynn Pointer is the Business Law, Construction Law, sections and committees Corporate Counsel, Creditors Prac- coordinator as part of her tice, Criminal Justice, Disability Law, job as programs adminis- Dispute Resolution, Elder Law, Enter- The J o u r n a l h a s trator. She spends about promoted section tainment and Sports Law, Environ- membership over 75 percent of her time mental Law, Estate Planning & the years, like on sections. these stories Probate, Family Law, Federal Prac- from 1992, “The value in joining a tice, General/ Solo/Small Firm Practi- above, and section is much greater tioners, Health Care Law, Intellectual 1990, at right. than it was years ago,” Property, Juvenile and Children’s Pointer says, “simply Law, Labor and Employment Law, are elected to these [section chair] because we can now send members Law Office Technology/Management, positions take on a lot for a year and instant information — changes in the Litigation, Real Estate Law, Senior we appreciate this volunteer work law, court opinions, and other news Lawyers Divison, Tort and Insurance very much. It’s important to us from the legal community. Tech- Law, and Tax Law. Dues for each because it involves you.” nology has changed everyone's expec- range from $15 to $25, in addition to The function of a section, tations. People expect us to deliver TBA membership. according to TBA bylaws, is “to news and information quickly and I In his September/October 1989 investigate, discuss and evaluate believe TBA does just that.” P r e s i d e n t ’s Perspective, Jack trends and activities in its specialized — Suzanne Craig Robertson

TENNESSEE BAR JOURNAL, OCTOBER 2005 29 PAINE ON PROCEDURE

The unconstitutional non-uniform residential landlord and tenant act

By Donald F. Paine

law review article got me to 68,000 population according to the tutionality, if such a thing is possible. thinking. Why do courts in some 1990 or any subsequent census. But Three more counties did become A counties apply this crassly uncon- four counties were removed from covered as a result of the most recent stitutional statute on a daily basis? coverage by population bracketing: census: Maury, Sevier and Wilson. Pull from the shelf Volume 11A of the Rutherford, Sullivan, Washington and The Supreme Court was able to C o d e and turn to T.C.A. §§66-28- Williamson. That left only six medium avoid deciding the constitutional 101–521; locate §102 on “Applica- size counties covered: Anderson, question raised in Crawford v. Buckner, tion.” Also grab Volume 13, containing Blount, Bradley, Madison, Mont- 839 S.W.2d 754 (Tenn. 1992). There county populations as of the 2000 gomery and Sumner. an injured apartment tenant was census in the supplement. And while trying to prevail despite an exculpa- you’re at it consult Volume 1, where tory clause in her lease. At the time of you will find the Class Legislation injury the county (Bradley) was not Clause of our Tennessee Constitution, covered by the URL&TA, which Article XI, Section 8: “Challenge prohibits such clauses at T.C.A. §66- The legislature shall have no power constitutionality 28-203. The court held exculpatory … to pass any law granting to any … clauses in residential leases void individuals rights … other than such at every level.” statewide as violating public policy. as may be by the same law extended I hope the justices will grant to any member of the community permission to appeal in an appropriate who may be able to bring himself case and resolve the constitutional within the provisions of such law. L e t ’s se e. Ru th er for d an d Wi l l i a m - question once and for all. Meanwhile son, not covered, lie just south of lawyers whose clients are prejudiced by When enacted in 1975 the statutory Nashville (Davidson County); Mont- this patchquilt map should challenge scheme applied only in the four largest gomery and Sumner, covered, lie constitutionality at every level: counties: Shelby, Davidson, Knox and north of the Music City. Am I to General Sessions and Circuit and the Hamilton. Because these had substan- believe that residential rental prob- Court of Appeals. Ashby Scott’s tially greater populations than the lems differ in these two directions? article cited in the endnote gives you remaining 91 counties, a rational basis Get outta here. all the ammunition you need.1 existed for discrimination. Large urban To make sure the four exempt areas arguably have unique residential counties remained so despite the 2000 Note landlord and tenant issues. census, in 2001 T.C.A. §66-28-102(d) 1. Ashby Richbourg Scott, “The Tennessee In 1992 the General Assembly was added to exclude them in perpe- Uniform Residential Landlord and Tenant extended application to counties of tuity. That exacerbated the unconsti- Act: ‘A Hodge-podge of Statutory Exclu- sions’,” 34 Memphis Law Review 9 0 3 (2004). Ms. Scott’s thoroughly researched Donald F. Paine is a past president of the Tennessee Bar Association and is of article is excellent. counsel to the Knoxville firm of Pa i n e, Ta r w a t e r, B i ck e rs , and Tillman LLP. H e lectures for theTennessee Law Institute, BAR/BRI Bar Rev i ew,Tennessee Ju d i c i a l C o n fe r e n c e, and University of Tennessee College of Law. He is reporter to the Supreme Court Adv i s o ry Commission on Rules of Practice and Pro c e d u r e.

30 TENNESSEE BAR JOURNAL, OCTOBER 2005 CLASSIFIED ADVERTISING

S E R V I C E S TRAFFIC ACCIDENT care, psychiatric and mental health, RECONSTRUCTION & primary care and acute care in hospitals CERTIFIED FORENSIC HIGHWAY EVALUATION and emergency departments are among DOCUMENT EXAMINER Former State Traffic Engineer. Licensed as the clinical specialties of the professional Te n n e s s e e ’s o n l y ABFDE certified Professional Engineer in Tennessee, with Tennessee nurses of HealthFutures, Inc. private document examiner. F o r m e r l y national accreditation in traffic accident Please call us at 615-353-1991. with U.S. Postal Inspection Service reconstruction. Certified in crash data Crime Laboratory. Certified by retrieval. Traffic accidents, highway design POSITIONS AVAILABLE American Board of Forensic Document and traffic control, including construction Examiners. American Society of work zones. Computer-assisted reconstruc- TRANSACTIONAL ATTORNEY Questioned Document Examiners. tion analysis and drawings.R i c h a r d Established Knoxville tax and business Substantial civil, criminal and trial expe- Fitzgerald, PE, 4545 Winfield Drive, firm seeks an attorney with 2 to 5 years rience. Thomas Vastrick (PMB #147), Nashville, TN 37211; (615) 331-1212. transactional experience and strong 6600 Stage Road, Suite 107, Bartlett, r f i t z g e r a l d p e @ b e l l s o u t h . n e t analytical, negotiating and drafting skills TN 38134; (901) 383-9282. to be involved in handling real estate IMMIGRATION PROBLEMS? acquisitions and development, commer- BUSINESS VALUATION/ Call Barry L. Frager, former Trial cial matters and business organizations. FORENSIC ACCOUNTING/ Attorney for the Immigration & Please submit résumé and references to LITIGATION SUPPORT Naturalization Service (INS) of The Gentry, Tipton & McLemore, PC, Attn: Business Valuation services for FLPs and Frager Law Firm P.C. at 5100 Poplar Brian D. Blind, P.O. Box 1990, other tax and business purposes; Forensic Ave., Clark Tower Suite 2204, Memphis, Knoxville, TN 37901. Accounting and Expert Testimony serv- TN 38137-2207; (901) 763-3188; toll- ices for fraud, divorce and other free (888) 889-VISA; 24-Hour TRANSACTIONAL ASSOCIATE commercial cases; Litigation Support Answering Service (901) 371-5333. The East Memphis office of Farris services for a variety of cases involving Also in Nashville at 1040 Murfreesboro Mathews Branan Bobango Hellen & unusual and complex financial and Pike, Suite 206; (615) 366-1000. The Dunlap PLC seeks an associate with accounting issues. D. Michael Costello, emphasis of his practice is in immigra- business/transactional experience (CPA, CPA•ABV, Decosimo, Tallan tion legal matters for clients in LL.M in Tax, or MBA would be helpful Building, Suite 1100 - Two Union Tennessee, Arkansas and Mississippi. but not mandatory). All inquiries will be Square, Chattanooga, TN 37402; kept confidential. Fax résumé to 901- (423) 756-7100. AUDIO ENHANCEMENT/EXPERT 259-7180 Attn: RFH or e-mail to [email protected] Our forensic enhancement systems can [email protected] remove or diminish noise or audio blem- FORENSIC ishes, making speech or other poorly HEALTH CARE MANAGEMENT HANDWRITING EXPERT recorded evidence intelligible and ready AND BUSINESS VALUATION www.HandwritingForensics.com for legal proceedings. Over 15 years of EXPERT — Hospital CEO and owner Qualified in all Courts. experience in audio engineering. of rural health care company with 20 Handwriting Identification, Taproot Audio Design, 355 C.R. 102, years’ experience in all aspects of health Forgery, Anonymous Letters, Graffiti. Suite A, Oxford, MS 38655, (662) 236- care management. Particular expertise in Diplomate / ABFE, NC Dept. of Justice, 2167, www. t a p r o o t a u d i od e s i g n . c o m risk management, corporate compliance, U.S. Secret Service QDCI&II. stark law, mergers/ acquisitions, physi- Theresa F. Dean, Handwriting Expert, HEALTH CARE EXPERTISE cian contracts and business valuations. Hendersonville, NC (828) 891-4263 AND CONSULTATION Gregory Z. Cantrell, Alliance Health PO Box 414, Horseshoe, NC 28742 HealthFutures, Inc. offers professional Systems, 503 North Maple St., Murfrees- Located in Hendersonville, North Carolina case review, analysis and consultation by boro, TN 37130, (615) 895-8623, [email protected] expert advanced practice nurses for a [email protected]. variety of health-related cases and conditions. Nursing home and long-term (Continued on page 32) RATES The classified adve rtising rate is $78 for up to 50 words and $1.50 per word thereafter. Payment for classified adve rtisements mu s t a c c o m p a ny adve rtising message. As a service to our members, there is no charge for adve rtisements up to 50 wo r d s for full-time job openings. For info rmation about classified or display adve rtising, write to Adve rtising Coordinator, Tennessee Bar Association, 221 Fo u rth Ave nue North, Suite 400, Nashville, TN 37219- See classifieds online at http://www.tba.org 2 1 9 8 ; (800) 899-6993 (in Nashville, 383-7421);fax (615) 297-8058;email lbu t l e r @ t n b a r. o r g .

TENNESSEE BAR JOURNAL, OCTOBER 2005 31 CLASSIFIEDS (Continued from page 31)

PERSONAL INJURY ASSOCIATE resolution to improve diversity in the proficiency in Internet use and Busy personal injury lawyer in Chat- legal profession. D u t i e s : developing and domain/trademark name protection for tanooga needs highly motivated and implementing diversity initiatives; this generalist, non-litigation position energetic associate with trial experience staffing at least one of the bar’s Access to perform domain/trademark proce- in tort cases and/or workers’ comp. and Fairness committees; planning dures, and coordinate/work with outside Salary dependent on experience, with statewide conferences on diversity; moni- counsel, as needed. Start $50K-$60K. bonuses for results. Send résumé in toring a clearinghouse of diversity efforts; Significant advancement potential. Fax confidence to Box 718, Tennessee Bar facilitating educational programs for cover letter, r é s u m é, domain/trade- Association, 221 Fourth Ave. N., Suite lawyers on eliminating bias; and repre- mark experience, salary history and 400, Nashville, TN 37219-2198. senting the bar at events and meetings. availability to (615) 834.4521. Qualifications: B a c h e l o r ’s degree or LITIGATION ASSOCIATE equivalent and five years of related expe- A N N O U N C E M E N T S Downtown Nashville law firm with rience, or juris doctorate and two years of emphasis on insurance defense, fraud, related experience. Excellent written and ANNOUNCING!! arson and personal injury defense has verbal communication skills. A history of REQUEST FOR PROPOSAL TO BE an immediate opening for a licensed working with volunteers. Ability to work ISSUED TO AWARD A attorney with interest in litigation. The and travel evenings and weekends. CONTRACT FOR LEGAL successful candidate will be expected to Salary & Benefits: Salary is $5,118 per SERVICES TO JUVENILES immediately handle litigation cases. month. Comprehensive benefits. To The United States Court of Appeals, Excellent salary and benefits, along A p p l y : send a cover letter and résumé to Sixth Circuit requires that incarcerated with incentive bonus program. F o r The State Bar of California Office of juveniles have the right of access to consideration, please forward résumé Human Resources; Attn: Heidi M. court, extending to actions relative to and writing sample to Gary Brewer, Schwab, Esq.; Human Resources the fact or duration of confinement B r e w e r, Krause, Brooks, Chastain & Representative; 180 Howard St.; San and civil rights actions related to Burrow; P.O. Box 23890, Nashville, Francisco, CA 94105-1639; email: incarceration. Consequently, the State TN 37202-3890 or email at h e i d i . s c h w a b @ c a l b a r.ca.gov; fax: (415) of Tennessee, Department of Children’s g b r e w e r @ b k b l a w.com. All inquiries 5 3 8 - 2 5 8 6 . The State Bar of California Services, (DCS), is issuing a Request will be held in confidence. ( w w w. c a l b a r.ca.gov) is an Equal Oppor- for Proposal to secure a contract for tunity Employer. the provision of legal services to incar- THE STATE BAR OF cerated students residing in the Ta f t CALIFORNIA SEEKS PROGRAM IN-HOUSE COUNSEL Youth Development Center. A copy of DEVELOPER/ORGANIZER Established Nashville manufacturing this Request for Proposal may be The State Bar of California’s Office of company with worldwide product obtained by accessing the state website Legal Services, Access, and Fairness demand needs attorney on top-level at: http://www. s t a t e . t n . u s / f i n a n c e / r d s / Programs is seeking a program devel- management. Team. Need high-energy ocr/rfp.html or by contacting the o p e r / o r g a n i z e r. Th is pos it ion wil l be level person with strong communication Request for Proposal Coordinator at responsible for implementing a State Bar skills, prior business experience and 615-741-9864.

LETTER (Continued from page 5) Looking for the right job … then a plaintiff’s access to a treating physi- cian should also be limited to a deposition. or just the right person? If a plaintiff’s lawyer if permitted to have L o o k n o f ur t h er t ha n t h e Te n n e s s e e private and informal conversations with Bar Association’s new JobLink online the treating physician, then a defendant’s career center.Postajob oraresume lawyers should be permitted to do so as or search our database of openings well. To achieve fairness, any rule change should accomplish equal access to treating and job hunters. And, it’s free! physicians by plaintiffs and defendants. w w w. t b a . o r g / j o b l i n k — Edward A. Hadley, Nashville

32 TENNESSEE BAR JOURNAL, OCTOBER 2005 RIGHT IDEA, W R O N G B A R

Photo of person pulling a piece of rebar out of briefcase in a legal setting

Contractors reach for rebar when they want to ad strength and integrity to their work. For attorneys, the Tennessee Bar Association provides these same qualities.

We’re an association of more than 9,000 members across the state. And much the way rebar works in construction, the Tennessee Bar Association ties together the strengths of individual attorneys to produce a strong and unified legal community. In recent years, for example, the TBA has led major efforts to improve our jury system, earn passage of the Tennessee Uniform Trust Code, revise probate law and expand and improve legal education in schools across the state.

WE K N O W THE BAR F o r m o re i n f o r m a ti o n, v i si t o u r We b s i te a t h t tp :/ / w w w. t b a . o r g Or call Member Services Coordinator Megan Rizzo at 615-277-3210