In The News

POP, a Hub for Pop-Up Restaurants, is Slated for May Opening

Bone McAllester Norton client Sarah Gavigan, founder of Otaku South, a ramen pop-up restaurant, has plans to open a brick-and-mortar space for pop-up restaurants in East Nashville next month. The Tennessean reported that POP will open at 604 Gallatin Ave. on May 1, serving as a hub for other pop-up eateries. The space will seat 68 people, feature a large outdoor patio and will be available for private parties and other special events.

Bonelaw’s Alcoholic Beverage Law group helped open Otaku South and is working with Gavigan on POP’s liquor licensing needs.

Click here to read more.

 

Bone McAllester Norton PLLC is a full-service law firm with 37 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 17 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

Bone McAllester Norton Expands Practice with Focus on UAS

News Release

Thursday – April 10, 2014

Law firm is the only Tennessee firm providing services in area of UAS


 

Nashville, TN — Bone McAllester Norton PLLC today announced an expansion of the Entrepreneurial and Emerging Business Law practice group to include legal services in the area of Unmanned Aerial Systems (UAS), commonly known as drones.

The law firm is the only one in Tennessee covering UAS and issues surrounding the use of drones. Bone McAllester Norton attorneys in the Entrepreneurial and Emerging Business Law practice group focus on company formation, capital strategies, trademark registrations, copyright protection, intellectual property, social media law, privacy issues and now the unique regulatory and legal issues impacting the commercial use, legal enforcement and privacy of this emerging technology in UAS.

James E. Mackler, veteran attorney and Bonelaw member, is the lead attorney focused on the increasingly complex system of state and federal laws regarding the commercial use of drones. Joining Mackler with a focus in the area of UAS are attorneys Richard J. Nickels. These attorneys have extensive experience in entrepreneurship, commercial law, aviation, protection of intellectual property, privacy concerns and regulatory compliance.

Many states, including Tennessee, have passed laws regulating the use of drones. The Federal Aviation Administration (FAA) is under a mandate to fully integrate them for commercial use.

“With the FAA’s injunction to integrate drones into commercial airspace and the designation of 16 test sites nationwide, the growing opportunities—and risks—associated with drones cannot be ignored,” Mackler said. “We have a strong group of attorneys with sophisticated experience that will be able to provide counsel to individuals and corporations wanting to leverage the power of UAS within existing business models or seeking to start a new venture within the UAS sphere.”

The firm’s first UAS-centered client is Farmspace Systems, LLC, created to help farmers obtain a high level of situation awareness of threats to their crops, much like that of military commanders who need to detect threats to their troops. Farmspace was founded by a team of military veterans, who, in previous careers, applied UAS technology on the battlefield.

For more information, visit Bonelaw.com.

ABOUT BONE MCALLESTER NORTON PLLC

Bone McAllester Norton PLLC is a full-service law firm with 37 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 17 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, call 615-238-6300 or visit bonelaw.com.

 

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Will Cheek Discusses Problems in Judicial Elections with the Nashville Scene

Bone McAllester Norton attorney William T. Cheek III talked with the Nashville Scene last week about problems arising in judicial elections—from poorly informed voters to partisan labels for judicial candidates. With regard to conflicts of interest among those running for judge, Will, who was cited as the “go-to lawyer for issues involving the spirits industry,” told the paper that today’s elections are a vast improvement over the infighting at the judicial level that elections from years ago saw in Nashville’s Democratic machine factions. “You read some of these old stories, and the political parties were crazy. . .but I think we’re fortunate [now] in Nashville not to have too much [corruption] going on.”

Read the full article here.

 

Bone McAllester Norton PLLC is a full-service law firm with 37 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 17 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

Music City Roots Will Move to The Factory in Franklin

Bone McAllester Norton client Music City Roots will soon take up residence at The Factory in Franklin, moving from the Loveless Barn to the historic 12-building dining, retail and entertainment complex, the Tennessean reports. The news comes on the cusp of the weekly live music and radio show’s spring season. Music City Roots has called the Loveless Barn home for the past five years, and in that time, has seen the need for more space. The move to The Factory will allow show producers and fans access to two bigger spaces, accommodating up to 2,000 people.

Music City Roots’ final spring season at the Loveless Barn kicks off tomorrow and will run through June 18.

Click here to read more.
 

 

Bone McAllester Norton PLLC is a full-service law firm with 37 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 17 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

Corsair Distillery Wins American Distilling Institute’s Distillery of the Year

Congratulations are in order to Bone McAllester Norton client Corsair Distillery, who was honored with the “Bubble Cap” award from the American Distilling Institute. The highest honor in the craft distilling world, the “Bubble Cap” is given to one distillery each year that represents the very best in artisan distilling: excellence in quality of spirits, innovation, transparency, authenticity of approach, sustained company growth, community involvement and embodying the ethos of craft.

The six-year-old distillery has won more than 90 distinctions since its inception from national and international competitions.

Bonelaw’s Alcoholic Beverage Law group helped open Corsair and continues to maintain its liquor licensing needs.

 

Bone McAllester Norton PLLC is a full-service law firm with 37 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 17 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

Bryan Pieper will Speak at Fundamentals of Employment Law Seminar

Bone McAllester Norton Labor & Employment Law attorney Bryan E. Pieper is on the faculty of the Sterling Education Services, Inc. Fundamentals of Employment Law Seminar, scheduled for Tuesday, May 13. Bryan will present two sessions during the all-day event: “Hiring and Terminating Employees in the Current Economy” and “ADA and FMLA Updates and Interplay.” The seminar will cover everything from the basic fundamentals to new developments in employment law that everyone—human resources professionals, attorneys, supervisors, payroll specialists and business owners—needs to know.

The seminar will be held at the Chattanooga Marriott Downtown.

More information, including how to register, can be found here.

 

Bone McAllester Norton PLLC is a full-service law firm with 37 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 17 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

New Federal Rule Proposes to Expand Jurisdiction of the Federal Clean Water Act

By Sharon O. Jacobs

On March 25, 2014, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jointly proposed a new rule defining the scope of waters protected under the Clean Water Act (CWA). The rule would expand EPA’s jurisdiction to waters that were previously not subject to EPA’s jurisdiction as “waters of the United States.” The new rule, if it becomes final, may allow the EPA or the Tennessee Department of Environment and Conservation to expand its jurisdiction to small bodies of water on private property. Under the joint proposed rule, all natural and artificial tributaries and wetlands that are adjacent to or near larger downstream waters would also be subject to the federal CWA. The EPA and the Corps purportedly proposed the new rule in an effort to clarify the CWA program. However, the end result appears to be an expansion of the scope of “waters of the United States” protected under the CWA. Specifically, the proposed rule provides that under the CWA:

    • • Most seasonal and rain-dependent streams are protected.
    • • Wetlands, ponds and other waters near rivers and streams are protected.
    • • Other types of waters may have more uncertain connections with downstream water, and protection will be evaluated through a case-specific analysis of whether the connection is or is not significant.

The proposed rule defines “waters of the United States” as “traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters or the territorial seas; and adjacent waters, including adjacent wetlands.” In addition, the agencies propose that “other waters” (those not fitting in any of the above categories) could be determined to be “waters of the United States” through a case-specific showing that, either alone or in combination with similarly situated “other waters” in the region, they have a “significant nexus” to a traditional navigable water, interstate water or the territorial seas. However, at this time, the “significant nexus” has not been defined. The agencies seek public comments on alternate approaches to determine which waters are jurisdictional as “other waters.”

The proposed rule allows the EPA and the Corps to seek comment on a case-by-case basis on whether the aggregate effect of geographically isolated wetlands and other waters that “significantly” affect the physical, biological and chemical integrity of federally protected downstream waters are jurisdictional pursuant to the CWA. An interpretive rule was also included which clarifies that 53 specific conservation practices identified by the Agriculture Department's Natural Resources Conservation Service to protect or improve water quality won't be subject to dredge-and-fill permits under Section 404 of the CWA.

The agencies seek public comments on the proposed rule. Public comments will be accepted for 90 days after the date of the publication in the Federal Register. Because the rule alludes to other bodies of water, which could be regulated, it is important for the public to review the proposed rule carefully and provide comments. The rule is a game changer for small bodies of water if it becomes final.

The public should submit feedback by identifying Docket ID No. EPA–HQ–OW–2011–0880 using one of the following methods:

    • • Mail: Send the original and three copies of your comments to: Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue, NW, Washington, DC 20460, Attention: Docket ID No. EPA–HQ–OW–2011–0880.

 

Bone McAllester Norton Hires Experienced IT Professional to Lead Technology Efforts and Support for the Firm

Deron Peak has joined the law firm of Bone McAllester Norton PLLC in Nashville, Tennessee, as the director of technology.

In this senior level position, Peak will have overall responsibility for planning, managing and directing the technology and communications systems for Bone McAllester Norton, including the operation and maintenance of the computer network and all computers at the firm.  He also will represent Bone McAllester Norton in the International Legal Technology Association.

“With more than 20 years of experience, Deron’s specialties in IT management, operations and budgeting, project management and network administration will be a true asset to the firm,” said Charles W. Bone, founder and chairman of Bone McAllester Norton. “We are committed to staying ahead of the technology curve and we are confident that Deron will provide the leadership we need to meet our goals.”

Peak joins Bone McAllester Norton from the Dean Mead firm in Orlando, Florida, where he was the director of information technology for nearly eight years.

Peak and his wife, Debra, have two daughters and live in Brentwood. He enjoys music, drama, cycling, snow skiing, Orlando Magic games, baking and cheering on his daughters at their soccer games and dance recitals. They are involved in many church activities, including choir and praise teams, children’s worship, mission trips and homeschool groups.

 

 

ABOUT BONE MCALLESTER NORTON

Bone McAllester Norton PLLC is a full-service law firm with 37 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 17 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters.   Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, call 615-238-6300 or visit www.bonelaw.com.

 

Anne Sumpter Arney Chosen as Nashville Medical News “Women to Watch”

Congratulations to Bone McAllester Norton attorney Anne Sumpter Arney, who was chosen as a Nashville Medical News “Women to Watch” in their 2014 list. Anne is among nine other women chosen for the strides they have made in Middle Tennessee’s health sector. A third-generation lawyer and active community leader, she leads the Healthcare Law practice group at Bonelaw, focusing her efforts on legal issues that affect non-hospital and non-insurance healthcare providers.

Anne will be honored at an awards breakfast on Wednesday, April 30 at the Noah Liff Opera Center.

Click here to read more.

Bone McAllester Norton PLLC is a full-service law firm with 37 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 17 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

Read The Rules. Know The Rules. Start with Tenn. R. Civ. P. 54.02

When I first started practicing law, my mentor was a procedure savant. He knew the Rules of Procedure inside and out. In turn, I eventually learned the Rules.

That's my single biggest piece of advice for any litigation attorney: Know the Rules of Procedure. If you're in state court, read the Tennessee Rules of Civil Procedure. Before you go to court, read that County's Local Rules. The key to success at anything is knowing the rules. Sports. Checkers. The practice of law. A strong, working knowledge of the rules of procedure puts you ahead of 85% of your fellow lawyers.

Recently, while reading a new Tennessee Court of Appeals opinion about final judgments and appeals, I was reminded of a lesson my old boss taught me about Tenn. R. Civ. P. 54.02.

Rule 54.02 applies in cases where are multiple parties and multiple claims for relief, but a party is able to resolve its claims as to part of the litigation. In that circumstance, Rule 54.02 allows the trial court deem the judgment as to that part of the case "final," which means that the party's appeal deadlines start to run and, more importantly, the plaintiff can proceed with collection on the judgment as to that party.

But, you don't get Rule 54.02 relief unless you think to ask for it. Under the Rule, you have to (1) specifically request that the judgment be "final" and (2) use magic language by which the Court makes an "express determination that there is no just reason for delay" and an "express direction for the entry of judgment."

The new case I cite above is interesting, because the Judgment that was appealed included the Rule 54.02 magic language, but the Court of Appeals denied the appeal as premature, because there was still one loose end (the assessment of attorney fees). It's interesting (and re-assuring) to see the appellate court look at substance over form.

Even though Rule 54.02 led this attorney astray, don't forget to include that text in your Judgments. It's most powerful when you have the chance to take a judgment against one liable party early in the case, but one of the other defendants shows up and contests his own liability. In that scenario, while you're litigating the matter against one defendant, you can commence execution and collections on the other, without waiting until getting all the claims resolved.

Paul Kruse will Speak at the Tennessee Bar Association’s Intellectual Property Spring Institute 2014

Bone McAllester Norton attorney Paul W. Kruse will serve as a speaker at the upcoming Intellectual Property Spring Institute 2014, presented by the Tennessee Bar Association. This program will offer sophisticated topics and practical takeaways to IP lawyers related to software and bio-patents, recent developments in copyright law, trademark law, design patents and pre-filing investigations for IP litigation. The conference is scheduled for Friday, April 18 at the Tennessee Bar Center in Nashville.

Paul’s session, “Trademark Law: Reverse Confusion,” will take place at 9:30 a.m.

More information, including how to register, can be found here.

 

Bone McAllester Norton PLLC is a full-service law firm with 37 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 17 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

Tennessee Whiskey Debate Turns to Battle Between Giants

Bone McAllester Norton attorney William T. Cheek III was quoted in the Wall Street Journal in what has become a battle between Brown-Forman’s Jack Daniel’s brand and industry giant Diageo. Bonelaw client Popcorn Sutton Distilling LLC is leading a group of craft distillers in efforts to make technical corrections to the state whiskey laws. Although technical, the corrections will be an enormous benefit for the craft distilling industry in Tennessee.

Read the article here.

 

 

Bone McAllester Norton PLLC is a full-service law firm with 37 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 17 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

Legal Designation of “Tennessee Whiskey” is Causing a Debate Between Liquor Giants, The Tennessean Reports

In 2013, Tennessee’s state legislature passed a law designating what can be classified and sold as “Tennessee whiskey,” and in this year’s session, lawmakers are attempting to tweak that law. Under the current law, “Tennessee whiskey” must be made from fermented mash of at least 51 percent corn, aged in new oak barrels, charcoal mellowed and stored in the state, reports The Tennessean. The tweak would require that whiskey be mashed and distilled in Tennessee and would remove the requirement for charcoal filtering, a measure that Bone McAllester Norton Alcoholic Beverage Law client Prichard’s Distillery supports. "If I wanted my whiskey to taste like Jack Daniel's, I'd make it like Jack Daniel's," said Phil Prichard, owner and master distiller of Prichard's Distillery in Kelso, Tenn.

Read the full article here.

 

 

Bone McAllester Norton PLLC is a full-service law firm with 37 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 17 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

From What Every HR Department Needs to Know to Restaurant Openings, Bonelaw Has the Latest Updates

Bone McAllester Norton has important updates and announcements to share with you, our valued clients and friends, in our latest newsletter. Click here to read about the impact a recent lawsuit could have on common severance agreement language, how our Alcoholic Beverage Law group opened two high-end restaurants in Memphis, awards and accolades our attorneys have been given and our involvement with Habitat for Humanity.

Bryan Pieper will Give an Update on the Genetic Information Nondiscrimination Act at MTSHRM Meeting

Bone McAllester Norton attorney Bryan E. Pieper is slated as the speaker for the Middle Tennessee Society for Human Resource Management March meeting. Bryan, one of Bonelaw’s Labor and Employment Law attorneys, will present “GINA: Five Years Later” to the group. The Generic Information Nondiscrimination Act, signed into law in 2008 by President George W. Bush, has meant changes for employers. Bryan will discuss what has happened since the bill made it way through the courts and address questions still unanswered.

The breakfast meeting will take place Thursday, March 20 at the Hampton Inn in Mt. Juliet, Tenn.

 

 

Bone McAllester Norton PLLC is a full-service law firm with 37 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 17 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

Bone McAllester Norton will Partner with Renasant Bank on Habitat for Humanity Home Build

Bone McAllester Norton and Renasant Bank have teamed up on a weekend build with Habitat for Humanity of Greater Nashville in the Park Preserve neighborhood of north Nashville. Construction on the home is slated to begin this month, and the two teams will work together on carpentry and painting on Sunday, April 6, 2014. The home is for Molly Beasley, a single mother who wants to provide stability and leave a legacy for her children.

Renasant Bank is one of Bonelaw’s longtime and respected clients.

“Our firm and all of our attorneys and staff members take great pride in using their passions to participate in activities that promote the betterment of our community,” said Sam J. McAllester III, vice president and member of Bone McAllester Norton who also serves on the advisory board and finance committee for Habitat for Humanity of Greater Nashville. “We are excited to partner with our friends at Renasant Bank to provide not just a quality, affordable home but a better life of hope and opportunity to a deserving family in our community.”

Bone McAllester Norton supports a wide range of community programs and activities and strives to make our culture synonymous with good works for clients and the community. Giving back has always been a key part of what the firm does, so joining together with Habitat to provide a life-changing opportunity for others was something that made perfect sense, McAllester noted.

Habitat for Humanity of Greater Nashville is an ecumenical Christian ministry that provides the life-changing opportunity for people to purchase and own quality, affordable homes. Since it was established in 1985, Habitat for Humanity of Greater Nashville has built or recycled more than 850 homes, over 600 locally, and served more than 2,000 family members including 1,325 children.

 

Bone McAllester Norton PLLC is a full-service law firm with 37 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 17 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

EEOC Attacks Common Severance Agreement Language

By Bryan E. Pieper The U.S. Equal Employment Opportunities Commission (“EEOC”) has filed a lawsuit against CVS Pharmacy, Inc., claiming that a severance agreement CVS has employees sign violates the employees' rights to communicate with the EEOC and to participate in EEOC investigations. Click here for the full lawsuit. Many of the provisions targeted by the EEOC are considered fairly typical in employee severance agreements. As is common in severance agreements, the employer, CVS, agrees to give the employee severance benefits, conditioned on the employee making certain promises in exchange. The EEOC takes issues with those required promises, specifically identifying the following provisions:

    • The employee releases any and all claims he or she may have against CVS;
    • The employee agrees not to file any claims again CVS in any court or agency;
    • The employee agrees not to make any statements that disparage CVS or its business;
    • The employee agrees not to disclose to any third party any of CVS's confidential information, which is defined to include personnel information;
    • The employee agrees to cooperate with CVS by notifying CVS promptly if the employee is contacted regarding any lawsuit or administrative proceeding against CVS; and
    • If the employee breaches the severance agreement, CVS will be entitled to an immediate injunction, and the employee will reimburse CVS for any attorneys’ fees incurred enforcing the agreement.

In its Complaint, the EEOC asserts that the combination of the above provisions deprives an employee of his Title VII right to participate in and cooperate with an EEOC investigation and enables an employer to conceal a pattern of discrimination by thwarting the EEOC's ability to learn about and investigate employment discrimination. The EEOC alleges that in 2012, more than 650 individuals signed the CVS severance agreement. "Charges and communication with employees play a critical role in the EEOC's enforcement process because they inform the agency of employer practices that might violate the law," explained the EEOC’s lead attorney on the case. "For this reason, the right to communicate with the EEOC is a right that is protected by federal law. When an employer attempts to limit that communication, the employer effectively is attempting to buy employee silence about potential violations of the law. Put simply, that is a deal that employers cannot lawfully make." Click here to read the EEOC's full press release. The EEOC asked the court to do the following:

    • • Enjoin CVS from continuing to use the current version of the severance agreement;
    • • Reform the agreement to comply with Title VII, both for individuals who have already signed it and for those who sign it in the future;
    • • Require CVS to issue a corrective communication informing its workforce of its right to file an EEOC charge and to initiate and respond to communication with the EEOC;
    • • Require CVS to provide its management with additional training regarding an employee's Title VII right to file charges and participate in EEOC investigations; and
    • • Provide a window of 300 days for any former employee who has signed the severance agreement to file a charge of discrimination with the EEOC.

Because employers typically enter into severance agreements and pay severance pay in order to get the peace of mind that they have made a clean break with an employee, the agreement provisions discussed above are rather common. This clean break is often essential to an employer’s willingness to provide non-mandatory severance benefits in the first place. However, the EEOC contends this lawsuit is part of its new emphasis on attacking systemic patterns of discrimination and the methods employers use to protect and hide them. This is consistent with the EEOC's practice of using investigation of an individual charge of discrimination as an opportunity to look for class or group claims, which would be difficult if all former employees are bound to silence. Employers are encouraged to have their current severance agreements reviewed by counsel and to keep an eye on this case as it progresses through the courts.

EEOC Attacks Common Severance Agreement Language

By Bryan E. Pieper The U.S. Equal Employment Opportunities Commission (“EEOC”) has filed a lawsuit against CVS Pharmacy, Inc., claiming that a severance agreement CVS has employees sign violates the employees' rights to communicate with the EEOC and to participate in EEOC investigations. Click here for the full lawsuit. Many of the provisions targeted by the EEOC are considered fairly typical in employee severance agreements. As is common in severance agreements, the employer, CVS, agrees to give the employee severance benefits, conditioned on the employee making certain promises in exchange. The EEOC takes issues with those required promises, specifically identifying the following provisions:
  • The employee releases any and all claims he or she may have against CVS;
  • The employee agrees not to file any claims again CVS in any court or agency;
  • The employee agrees not to make any statements that disparage CVS or its business;
  • The employee agrees not to disclose to any third party any of CVS's confidential information, which is defined to include personnel information;
  • The employee agrees to cooperate with CVS by notifying CVS promptly if the employee is contacted regarding any lawsuit or administrative proceeding against CVS; and
  • If the employee breaches the severance agreement, CVS will be entitled to an immediate injunction, and the employee will reimburse CVS for any attorneys’ fees incurred enforcing the agreement.
In its Complaint, the EEOC asserts that the combination of the above provisions deprives an employee of his Title VII right to participate in and cooperate with an EEOC investigation and enables an employer to conceal a pattern of discrimination by thwarting the EEOC's ability to learn about and investigate employment discrimination. The EEOC alleges that in 2012, more than 650 individuals signed the CVS severance agreement. "Charges and communication with employees play a critical role in the EEOC's enforcement process because they inform the agency of employer practices that might violate the law," explained the EEOC’s lead attorney on the case. "For this reason, the right to communicate with the EEOC is a right that is protected by federal law. When an employer attempts to limit that communication, the employer effectively is attempting to buy employee silence about potential violations of the law. Put simply, that is a deal that employers cannot lawfully make." Click here to read the EEOC's full press release. The EEOC asked the court to do the following:
  • • Enjoin CVS from continuing to use the current version of the severance agreement;
  • • Reform the agreement to comply with Title VII, both for individuals who have already signed it and for those who sign it in the future;
  • • Require CVS to issue a corrective communication informing its workforce of its right to file an EEOC charge and to initiate and respond to communication with the EEOC;
  • • Require CVS to provide its management with additional training regarding an employee's Title VII right to file charges and participate in EEOC investigations; and
  • • Provide a window of 300 days for any former employee who has signed the severance agreement to file a charge of discrimination with the EEOC.
Because employers typically enter into severance agreements and pay severance pay in order to get the peace of mind that they have made a clean break with an employee, the agreement provisions discussed above are rather common. This clean break is often essential to an employer’s willingness to provide non-mandatory severance benefits in the first place. However, the EEOC contends this lawsuit is part of its new emphasis on attacking systemic patterns of discrimination and the methods employers use to protect and hide them. This is consistent with the EEOC's practice of using investigation of an individual charge of discrimination as an opportunity to look for class or group claims, which would be difficult if all former employees are bound to silence. Employers are encouraged to have their current severance agreements reviewed by counsel and to keep an eye on this case as it progresses through the courts.

Five Bone McAllester Norton Attorneys Named to Nashville Post’s 2014 In Charge List

Bone McAllester Norton is pleased to announce that five of its attorneys have been named to the 2014 Nashville Post In Charge list. Charles W. Bone, Edward M. Yarbrough and Stacey A. Garrett were named to the Legal list, Charles Robert Bone was named to the Government & Politics list, and William T. Cheek III was named to the Food Biz list. The fifth annual compendium names the 450-plus top business, political and civic leaders in Middle Tennessee, who “make a positive impact not just on their individual sectors but on the city in general,” according to the outlet’s website today.

Congratulations on this outstanding recognition; you make our firm—and our city—proud!

For the full In Charge list, click here.

 

Bone McAllester Norton PLLC is a full-service law firm with 37 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 17 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

Is it OK to Google a Client? Of Course It Is. I'm Probably Googling You Right Now.

The American Bar Association Journal recently posted an article called "Is it OK to Google a client?" The story compares the act to a physician searching for information about patients online, which the story suggests is a violation of the patient's privacy expectations.

Frankly, I was a little surprised at this article, because: (1) it's the 21st century; and (2) when I get a call from a new client or a lawyer referring me work, the first thing I do is google them. Sometimes, I run the searches while I am talking to them on the phone.

Why? Because, as a lawyer, you are an extension of the client. A quick google search reveals their business page, news stories about them, and a general sense of "who they are." By hiring you, a client asks you to advocate for their position. Wouldn't it be relevant to see who it is that you're going to stake some part of your professional reputation on?

Let's be honest, the number # 1 test for a prospective client is "Is this a Crazy Person?" (Closely followed by: "Can this client pay my fees?")

Once you represent them, it'd be malpractice not to have googled the client. What if the client was making statements online (or posting videos or photos) that have a direct bearing on their case? If you don't find it, you can be sure that opposing counsel will.

Speaking of which, don't think for a second that I don't google opposing counsel and/or opposing parties. In fact, one of the best items a creditor can obtain on a credit application is an e-mail address, which I've called the 21st century fingerprint. Google, Facebook, Linkedin, and Twitter are all fair game.

What a strange article for the American Bar Association. I'm going to google the author now.