In The News
The Commission is Tennessee's independent state agency with responsibilities pertaining to the prevention and elimination of discrimination in employment, public accommodations, and housing. Stacey was first appointed by Governor Bredesen to the agency's governing board in 2003 and will now continue to serve until 2015.
Stacey said she believes firmly in community and civic responsibility and is grateful for the opportunity to continue her work and service on the commission at an exemplary level.
Stacey is Chair of the Board of Directors of Bone McAllester Norton and focuses her practice in higher education, corporate transactions, immigration, healthcare, and government affairs. She has served in many government and nonprofit leadership positions throughout her legal career.
She has earned recognition by numerous publications and among her peers in the legal profession. In 2003, she was named one of the Tennessean's "Top 40 Under 40." She was also selected as Nashville Business Journal's "Best of the Bar" in immigration law for several years, and in 2007 she was named by the Nashville Business Journal as a "Woman of Influence" in the Entrepreneur category.
Bone McAllester Norton is proud to announce that James Crumlin was named to the Nashville Business Journal’s “Forty Under 40” list.
The annual awards go to young professionals who are making a difference in their companies and their community in Middle Tennessee. The winners were honored at an awards ceremony on March 10. At the ceremony, each winner was invited to say THREE WORDS. As added twist, each winner could say additional words with the understanding that if you said four or more words, the winner would make a $25 donation PER WORD to Big Brothers Big Sisters of Middle Tennessee (BBBSMT). As the Immediate Past President of the Board of Directors for BBBSMT, James said 56 words at the ceremony which translated to a $1,400 contribution.
Bone McAllester Norton congratulates James on this well-deserved recognition.
Click here for a full list of this year’s winners.
According to the documents, Winston Hospitality, Inc., a hotel management company based in Raleigh, NC, purchased the boutique hotel located on Union Street in downtown.
Bone McAllester Norton worked closely with legal counsel closing the Hotel Indigo deal to ensure there was no interruption in service with both beer and liquor.
Mid-South Super Lawyers and Rising Stars honorees represent the top five percent of lawyers in Tennessee, Arkansas and Mississippi. Selections for the list are based on a rigorous multi-phase selection process that includes a regional survey of lawyers, independent evaluation of candidates by Law & Politics' attorney-led research staff, peer review of candidates by practice area, and a good-standing and disciplinary check. The Rising Star designation is awarded exclusively to top lawyers who are 40 years old and younger who have been in practice 10 years or fewer.
Super Lawyers and Rising Stars are considered leaders in their areas of practice: Ms. Jacobs is honored for her skill in environmental and administrative law; Ms. Martin, in employment and business litigation and defense; Mr. Zralek in intellectual property; Mr. McAllester, in real estate, bankruptcy and creditor and debtor rights; and Mr. Bone, in business litigation, personal injury plaintiff, general corporate, and mergers and acquisitions.
Tennessee Development Files, Sees Immediate Lift Stay
Wood Ridge Development Inc. and an affiliate filed Chapter 11 petitions on Jan. 15 in Nashville, Tennessee, to stop foreclosure scheduled later that morning.
The secured lender, GreenBank, filed a motion the same day asking the bankruptcy judge to modify the so-called automatic stay so the foreclosures could be rescheduled. The bank said it's owed $7.3 million on almost 70 acres of undeveloped land in Nolensville, Tennessee.
The bank said no lots have been sold in two years, according to a court filing by David M. Anthony, an attorney for the bank from Bone McAllester Norton PLLC in Nashville.
The case is Wood Ridge Development Inc., 10-00325, U.S. Bankruptcy Court, Middle District of Tennessee (Nashville).
David is a member of Bone McAllester Norton's Creditors' Rights practice group. Sam McAllester and Tucker Herndon, fellow members of the Creditors' Rights group, have been extensively involved in the matter as well. The full article appears at Bloomberg.com.
Invitations to membership, a position of great honor, were extended to 35 attorneys this year by the Board of Trustees.The introduction of new Fellows took place at the annual Fellows' Dinner in Nashville.
The Bar Foundation's purpose is two-fold: to honor attorneys who have distinguished themselves in the profession and to administer a grant making program. That project, known by its acronym "IOLTA" (Interest On Lawyers' Trust Accounts), has awarded grants in excess of $16,000,000 to law-related, public interest projects throughout Tennessee.
James focuses his practice in the areas of labor and employment law, corporate business litigation, entertainment disputes and small business representation. He has been recognized for his contributions to the Nashville legal community on several occasions, including as a "Best of the Bar" honoree in 2009. In 2007, James was chosen as the recipient of the Nashville Emerging Leaders Award for Law. This distinguished honor recognizes professionals under the age of 40 who have excelled in their profession while making a difference in the Nashville community. James was also a member of Tennessee Bar Association's Leadership Law Class of 2006, and has served on the steering committee since then.
He is a member of the 2009-2010 class of Leadership Nashville and a graduate of the 41st Young Leaders Council class. He is President of the Big Brothers Big Sisters of Middle Tennessee board of directors, and Chair of the Matthew Walker Comprehensive Health Center, Inc., board of directors. He also serves on the boards of Young Leaders Council, Kelly Miller Smith Center Against Abusive Behavior and The Tennessee Repertory Theater, Vanderbilt University Law School National Alumni Board and Meharry Medical College National Alumni Association.
Bone McAllester Norton is proud to announce that Sam McAllester has been named one of Tennessee’s top attorneys in Real Estate & Construction by Super Lawyers - Corporate Counsel Edition, May/June 2010.
Super Lawyers is a listing of outstanding lawyers from more than online casino 70 practice areas who have attained a high degree of peer recognition and professional achievement.
Bone McAllester Norton congratulates Sam McAllester on this well-deserved recognition.
Bone McAllester Norton is pleased to announce that three members of our firm are among 30 lawyers in Middle Tennessee named to the Nashville Business Journal's 2010 “Best of the Bar.”
Nominated by peers and chosen by a panel of judges, these attorneys were selected for their commitment to their clients, dedication to their respective areas of the law, and their respect and professionalism toward their peers and chosen profession.
Bone McAllester Norton attorney Anne Martin has been appointed by Mayor Karl Dean to the newly formed Early Childhood Development and Education Advisory Council which will be chaired by Vice Mayor Diane Neighbors.
The Council will “assess existing programs, services, policies, and public awareness within Metropolitan Nashville and use the assessments to make objective recommendations as they relate to the long-term health and stability of these provisions for children (0-8 years of age).”
Bone McAllester Norton congratulates attorney James Crumlin on receiving the Young Leader of the Year Award from the Young Leaders Council.
This award is given in recognition of the achievements and contributions of an outstanding Alumni of Young Leaders Council.
Congratulations to James on this well-deserved recognition.
Bone McAllester Norton is pleased to announce that three of its attorneys, John Branham, Will Cheek and Sharon Jacobs, were recently selected by their peers and clients for inclusion in the Nashville Post’s "Nashville’s 101 Top Lawyers."
After months of confidentially hearing the frank opinions of local lawyers, judges and businesspeople about members of the local bar, the Nashville Post identified Nashville’s top lawyers. A special effort was made to identify attorneys who are not necessarily very good self-marketers but whom peers hold in high esteem.
Bone McAllester Norton congratulates:
John P. Branham for Litigation
William T. Cheek III for Corporate
Sharon O. Jacobs for Environmental
The Commercial Appeal, the Memphis Tennessee daily newspaper, featured an article on Will Cheek's efforts to prevent a former Gigi’s Cupcakes employee from stealing protected business plans and opening a cupcake shop, in violation of the employee's noncompete agreement. The former Gigi's employee was in the process of opening a cupcake shop in Memphis, presumably using knowledge she gained as a Gigi’s employee.
As General Counsel for Gigi’s, Will is working to protect Gig's from the unfair use of Gigi's recipes, baking methods and business plan. Cheek said: “We have no problem as long as it’s not a cupcake shop.” Gigi's has a narrowly drafted noncompete that protects it from employees unfairly using protected business plans in a directly competing cupcake business.
ABC Issues First Bar Liquor License
September 2, 2010 marked an almost miraculous milestone that slipped by the vast majority of conscious Tennesseans. The Tennessee Alcoholic Beverage Commission issued the first legitimate liquor license to a bar since before prohibition was enacted in 1919.
What about Tootsie’s World Famous Orchid Lounge? Blue Bird Café? Robert’s Western World? All three illegally operated under restaurant liquor licenses, as did nearly every bar, music venue and watering hole in Tennessee.
Tennessee legalized liquor at restaurants in the 1960s. Before then, drinks were available, but just like corn whiskey from a still, ordering a Jack and Coke was illegal. In most cities and towns, before liquor by the drink was legalized in the1960s, bars paid off the police or sheriff to sell drinks. Many of these places also featured small, but equally illegal, casinos.
Legalizing drinks was very controversial in the 1960s. Church groups teamed with bootleggers, crooked police and politicians, and illegal bar and casino owners to strongly oppose legalizing drinking. One supporter’s mailbox was famously bombed. As part of the compromise to legalizing drinking, lawmakers limited drinking to restaurants - excluding bars.
Over the years, bars claimed restaurant status, or presented falsehoods to the ABC, and liquor licenses were issued to hundreds of bars and nightclubs across Tennessee. Problem was none were legit under the liquor laws.
When the ABC began cracking down harder on bars in 2009, revoking a couple of liquor licenses for 90 days -- the equivalent of the death penalty for most bars -- the legislature responded. Pundits thought it may never happen, especially in an election year, but it did. The legislature has created a new liquor license allowing bars to legitimately operate.
Although very controversial and long overdue, the fix was quite simple. Lower the minimum amount of food an establishment has to sell to levels that are more practical for a bar. Restaurants have to sell 50% food. Under the new law, bars have to sell at least 15% food.
Bar owners are lining up statewide for the new bar liquor license. In a sign of the times, it is interesting to note that Tennessee’s first legitimate bar is not a honky tonk or country music hot spot, but rather an upscale gay bar and fashionable restaurant located on Church Street -- Tribe and Suzy Wong’s House of Yum. The Alcoholic Beverage Group at Bone McAllester Norton helped this long-standing client obtain the first legal bar license in the State of Tennessee issued on September 2, 2010.
Will Cheek leads the Alcoholic Beverage Team at Bone McAllester Norton, and regularly writes about issues impacting Tennessee restaurants and bars at his blog, Last Call.
Benjamin Franklin once said, “[a]n ounce of prevention is worth a pound of cure.” While this phrase is commonly used in the medical field, it also has meaning as it relates to the negotiation of commercial leases.
It is imperative that before a medical provider enters into a lease for medical office space, he or she should review and understand the terms of the lease in order to avoid problems in the future. In the case of lease negotiation, the devil is definitely in the details. This article focuses on seven tips the tenant should consider when negotiating a lease to prevent costly issues from arising. The seven tips are as follows:
1) It is important for the tenant to read the ENTIRE lease. Since it is typical that the landlord, or an attorney hired by landlord, has drafted the lease, the landlord has an advantage as the landlord is familiar with the language used and exactly what that language implies. Thus, in order to level the playing field, it is imperative you read the entire lease – and read it again! Take the time to understand the smallest details and especially, how they relate to you. Ask, “how will this impact me?” Try to walk through a few “what if?” scenarios in order to understand the potential consequences that could be set in motion should some unfavorable clause actually come into play. Pay close attention to the exhibits, particularly the Rules and Regulations. Some of these issues may actually impact you as a tenant, so read the Rules and Regulations as carefully as you do the rest of the lease. Consider hiring an attorney to explain the lease in more details and to assist in tailoring and negotiating the lease to meet the practice's individual needs and objectives.
2) In most form medical office leases, the landlord has the right to reenter the leased premises to inspect it to ensure that the tenant is complying with the lease, to show it to future tenants, and to allow the landlord to make needed repairs to the leased premises. Generally, medical tenants will seek to place limitations on the landlord's reentry rights. Specifically, such access is limited by requesting that the landlord give tenant at least twenty-four hours advance notice before entering the leased premises. In addition, due to the nature of their practice, health care providers may limit the landlord's access to examining rooms and other areas during certain hours of the day. This can be done through designating certain privacy areas on a diagram showing the finished leased premises.
3) If the Tenant is leasing space in a multi-tenant building, particularly if it is a medical office building, it is prudent for the tenant to request that the landlord add an exclusive use provision. An exclusive use provision basically prohibits the landlord from leasing any of the remaining space in the building to any tenant whose intended use would be in direct conflict with your specific medical specialty.
4) A common provision found in most leases is the indemnification provision. This provision provides that the tenant will indemnify the landlord against any claims brought by third parties for personal injury or property damage caused by the tenant or otherwise occurring in the leased premises. It is important that such a provision is qualified by the inclusion of an exception for matters directly caused by the landlord’s negligence or willful misconduct, as it is improper for the landlord to seek indemnification from the tenant for the landlord’s own wrongful acts (or those of the landlord’s employees, agents or contractors). Further, as most indemnification provisions are completely one-sided, it is important to ask for a mutual indemnification as the landlord should have an obligation to indemnify tenant for injuries and damages caused by the negligence or willful misconduct of landlord as it relates to the leased premises.
5) While some medical office leases require the physician simply to pay a monthly rent, in other leases the tenant is obligated to pay additional rent (e.g., the tenant’s share of the operating expenses). Typically, in a multi-tenant building, the landlord “passes through” to its tenants all of landlord’s expenses for operating the entire building. Typical operating expenses include the landlord’s costs of operating, maintaining, repairing, cleaning, painting, and securing the property. As a tenant, you want absolute clarity regarding all monetary obligations. There can be hidden traps for the naïve tenant in this part of the lease. Pay close attention to how your share of the operating expenses will be calculated. For example, if the lease states that your share of operating expenses will be your square footage divided by the total occupied square footage in the building, and you occupy 10% of a building which has 50% of its space filled, then you must reimburse the landlord for 20% of its operating expenses. This outcome can be prevented by insisting that the calculation be based on your portion of the leasable space in the building, whether or not the rest of the building is occupied. Further, you should include in the lease that the tenant has the right to review and audit the landlord's books and records relating to operating expenses and taxes annually to ensure that you are not overcharged.
6) It is important to have the ability to assign and/or sublet the leased premises in the event that the location is not good for business, and the term has not expired. However, it is common to find in the majority of form medical office leases a provision that states that approval for the tenant to sublet space or assign the leased premises is at the sole discretion of the Landlord. This means that the Landlord does not have to articulate any reason whatsoever when withholding consent to any assignment and/or sublet of the leased premises. Thus, it is important to ask that the landlord amend this language to provide that the landlord’s consent to a proposed sublease or assignment will not be unreasonably withheld, delayed or denied. This will prevent the landlord from arbitrarily withholding consent should you ever wish to assign the lease to a credit-worthy, reputable third party.
7) In the event the landlord agrees to a sublease, in order to comply with the safe harbor exceptions to the Anti-Kickback Statute, when you sublease space you must ensure that (i) the sublease is in writing and is signed by both parties, (ii) the sublease describes the specific space being leased, (iii) if the sublease provides access for periodic intervals rather than full time, the intervals are specified in the sublease, (iv) the sublease must be at least for one (1) year, (v) the aggregate rent charged for the term of the sublease is set in advance, consistent with fair market value and does not take into account the volume or value of referrals between the parties of business payable under Medicare or a state healthcare program, and (vi) the aggregate space rented does not exceed that which is reasonably necessary to accomplish the commercially reasonable business purpose of the rental.
When negotiating a lease, it is important to take preventive steps in an effort to avoid issues that may be costly to deal with in the future. You should be able to avoid many lease-related headaches by implementing some of the aforementioned tips along with the help of an experienced commercial real estate attorney.
A 2010 change in foreclosure laws is helping bring some pricing sanity back into the market.
Published May 31, 2011 by J.R. Lind
What’s the market value of something when the market isn’t functioning? If there are no buyers — no matter the price — figuring that value can be as impossible as dividing by zero.
When the housing market was hopping along, there was no shortage of buyers when a bank needed to sale a property at foreclosure and any difference between the sale at public outcry and the outstanding amount of the loan could be sought through the court system. If a home with a $500,000 mortgage sold for $400,000, a bank could easily come for the remaining $100,000.
That worked just fine when there are plenty of buyers. But what if, as has happened during this housing crisis, the buyers disappear and the banks are stuck buying back the foreclosed tracts?
The logical answer is that if there is only one bidder — in this case, the banks themselves — the rational choice would be to bid as low as possible and, again, seek the deficiency in the courts.
"When the economy hit the skids, foreclosure sales for a while were getting prices at 20 percent of the loan value — crazy low — and I don’t think that was a function of the real value being 20 percent. We just stopped having a functioning market," said Bob Mendes, a member at MGLaw. "If you are a bank, you have to make a decision: Would you rather bid in at 20 percent and be able to sue for $400,000 deficiency or bid in at 80 percent and sue for $100,000 deficiency?"
In an effort — spearheaded by a reeling development community — to keep bankers from systemically underbidding, the state legislature last year enacted a change in the foreclosure law that has given legal recourse to the borrower. Under a handful of appellate cases, borrowers already had a right to sue if the market value was too low, but as is often the case from court decisions, there were lots of gray areas.
And while the legislature sought to protect the borrowers through legislation, the law may have actually had the opposite effect, said Bone McAllester Norton attorney David Anthony.
"The clarity of the new statute provides an obstacle for attacks on the foreclosure bid price," he said. "In the past, the standard was unclear. Now, it’s a clear test and easier to overcome… The burden is clearly on the debtor to prove by a preponderance of the evidence that the property sold for an amount materially less than the fair market value… That’s not an easy standard to meet."
So in a way, the law managed to both benefit and hinder each side in the creditor/defaulted borrower battle.
"Before the law changed, our advice to lenders was, ‘Start the bidding on the low end of the range of market value,’" Mendes said. "Post the law changing, there’s a little more art, because there’s not as many bidders. But under the statute, if you have successfully predicted something in the range of market, you have defended yourself… If we’ve seen any impact, it’s that banks are back to bidding into a price where the market is."
In a recent sale, Mendes said, the bank put up a property for outcry that held a $2.1 million debt. Eventually, the lender bought back the property at $1.5 million, a hefty tag that still left a $600,000 deficiency for the borrower to overcome. A year ago, Mendes said, the bid could have come in "hundreds of thousands of dollars lower."
Anthony said most bankers already were careful to make fair bids, even in the tough economy, in large part because a too-large deficiency might trigger a bankruptcy for the borrower, in which case they would likely not see the money anyway.
What he sees as the major change is the tightening of the statutory window, the time lenders have to seek those deficiencies, from six years to two.
"Bankers are getting tired of these legal fees, so they’d do these foreclosures … and then sit on them. Some banks would even sell the deficiency on the note," Anthony said. "Now you only have two years to sweat it out. Six years is a long time to kick the tires. I think banks are desensitized to chasing down deficiencies, but now they don’t have forever."
Anthony said he wasn’t sure the law was a "gut reaction" to the rash of foreclosures that beset most parts of the country when the housing bubble burst. That affliction has inspired a slew of proposed changes to Tennessee’s foreclosure procedures, the most widely debated of which has been a plan to no longer require that foreclosure notices be printed in newspapers of record.
SouthComm, the parent company of Post, is one of a number of media companies that have hired lobbyists to oppose the change. But, Mendes said, in a normal market, these things become less of a hot-button issue.
"This statute only matters in a historically ridiculous time. As soon as we get back to a functioning economy, bidders will set the price, but in the absence of bidders, banks are," he said. "It’s just brought everybody back to what the norm has always been: Foreclosures should be priced at market value."
Click here for the entire story in the Nashville Post.
WKRN interviews Stephen Zralek about reclaiming copyrights.
Click for the video.
By James A. Crumlin Jr.
The volunteering in America report recently released by the Corporation for National and Community Service, which showed an increase in the number of Nashville volunteers, also reported important data on the volunteer life cycle, defined as the arc of civic involvement that tends to increase as citizens feel a deeper connection to their communities.
As board chairman of the Young Leaders Council, I am particularly intrigued by the research showing that the national volunteer rate tends to increase with age until mid-life. I have seen this trend firsthand in the young professionals establishing themselves in their careers who have expressed a desire to take their volunteerism to the next level by applying to the Young Leaders Council board training program.
Founded in 1985, YLC was developed to address the need to broaden and strengthen Nashville’s volunteer leadership base by training men and women ages 25-40 to effectively serve on the board of directors of nonprofit organizations in Middle Tennessee. To date, more than 1,800 graduates have served on the boards of 150 local nonprofit agencies.
I have found what Laurel Creech, chief service officer for the Mayor’s office and a graduate of YLC Class 38, said to be true: “There is growing national and local interest in weaving service into our daily lives and selecting passions that are important to us that we can dig into and make a difference. With the growing needs of low-capacity nonprofits and the budgetary constraints of local government, the opportunities to engage are vast.”
Since first participating in the program in 2003 as a member of Class 41, I have been inspired to serve on more than 15 boards, including serving as immediate past president of the Big Brothers Big Sisters of Middle Tennessee and as the current board chair of Matthew Walker Comprehensive Health Center Inc.
In addition to my involvement in the community, my board training has given me the tools needed to benefit my professional career. I have had the honor of participating in a number of leadership roles within my industry, the most exciting of which was when former Gov. Phil Bredesen appointed me to serve as a commissioner on the Tennessee Civil Service Commission through 2014.
Even in these challenging economic times, corporations realize the value of nonprofit leadership training because young leaders bring back to the workplace those skills they have learned through their volunteer experiences. Serving on the boards of area nonprofits introduces young leaders to a network of valuable contacts, in addition to providing an invaluable service to the community.
Today, more than ever, nonprofits benefit from the skills and passion that young leaders provide. I applaud all volunteers for their giving spirit during times of great need, and especially their continued desire to volunteer after things have improved.
James A. Crumlin Jr. is a member of Bone McAllester Norton PLLC law firm and was named the 2010 Young Leader of the Year by the Young Leaders Council.
Attorneys Stacey Garrett and James Mackler rappelled over the Nashville City Center Building on Friday to raise money for the Special Olympics. They each descended over 400 feet to a crowd of onlookers below.
To learn more about this event, visit the Special Olympics site.
To see pictures of James and Stacey, visit our Facebook page.