In The News

Time is On Your Side: 4 Tips for Collections in a Recovering Economy

By David M. Anthony


Despite the constant reports of rising foreclosure rates and bankruptcy filings, the news world was abuzz last week about the report from the National Bureau of Economic Research (NBER) that the Great Recession had ended…in June 2009. This surely came as a surprise to loan officers and small businesses everywhere who are seeing their fair share of loan defaults and increasingly uncollectable accounts receivable.


Anticipating this response, the NBER explained that, while the economy had not yet returned to operating at normal capacity, the worst was behind us. While this good news doesn’t put money into hands today, here are some things any creditor should bear in mind while we wait for the economy to fully recover.


There’s time to be patient.  In Tennessee, the statute of limitations for collection on an unpaid debt is six (6) years, pursuant to Tenn. Code Ann. § 28-3-109. Then, once you sue and obtain a judgment (within six years from the date of the default), your judgment is valid for ten years, pursuant to Tenn. Code Ann. § 28-3-110.  Plus, if your judgment remains unpaid at the end of the ten years, Tennessee judgments can be renewed pursuant to § 28-3-110 for another ten year period.


Don’t wait to act.  In some instances, it may make sense to take no action on unpaid debt. Maybe the customer is a company that has gone out of business and has no remaining assets, or maybe they’ve filed a liquidation bankruptcy.  This is where you make the “don’t throw good money after bad” decision and possibly decide to write this debt off.


But, remember, the first creditor to obtain a judgment is the first in line to seize assets. Granted, you could be the first in line and discover there are no assets, but you should nevertheless record your judgment as lien in the real property records. For less than $25 in filing fees, a creditor can record a certified copy of its judgment in any and all Tennessee counties where the debtor owns real property, and that judgment becomes a lien on any real property owned by the debtor.


Even if they don’t have any equity in their property today, the situation could well be different in ten years (judgment liens remain valid as long as the underlying judgment is valid). What’s more, your lien’s reach will capture any real property they obtain during the life of the lien. In the end, sooner or later, your debtor will have to deal with you, whether it be as part of a purchase of new property, a sale, or a refinance.


Bend, don’t break. Sometimes, it’s important to recognize when a debtor truly lacks any assets to pay toward your debt. When this is the case, aggressive collections—whether it be seizing a work truck or all funds out of a bank account—may put that debtor out of business and, possibly, into a bankruptcy filing. A judgment creditor can take depositions and request financials from their debtor, and this information may assist you in determining whether they aren’t paying anybody…or just aren’t paying you.


Bankruptcy doesn’t mean the process is over.  If your debtor does file a bankruptcy case, there’s still a chance of monetary recovery. In addition to the benefits to the debtor, the secondary point of the bankruptcy process is to maximize return for creditors prior to granting the debtor a discharge of his or her debts. But, in most instances, a creditor in bankruptcy only receives pennies on the dollar in the process.


Keep in mind, however, the success rate in Chapter 13 bankruptcy cases (where debtors repay a percentage of their debts over 3 to 5 years) can be as low as 20%, meaning that most of those cases end with a dismissal. A dismissal is good for a creditor, because there is no discharge of the debt. Instead, the full amount remains due and owing. Debts are eliminated only when debtors receive a “discharge.” That’s an important distinction to know.


Finally, remember that a bankruptcy discharge only discharges “debts”—not “lien” rights. So, if you’ve already obtained a judgment and recorded it as a lien, then your lien on the debtor’s property survives the bankruptcy discharge. As a result, even though you can’t collect your debt, you can enforce your lien in the event of an attempted sale or refinance.


In the end, collection is a process that rewards the patient, especially in a recovering economy. But, a successful creditor must be prepared, and being prepared means having a valid judgment in place and exhausting all enforcement remedies before giving up. We all hope that the reports are right, and, if they are, the steps you take today will help make sure you’re paid in the future.


David M. Anthony practices with Bone McAllester Norton PLLC in the firm’s Creditors’ Rights practice group, and he regularly writes about issues impacting bankruptcy, judgment collection, and lien litigation at his blog, Creditors Rights 101, www.creditorsrights101.com.


 

Stephen Zralek to Present How to Protect Against a Lawsuit when Using Social Media

Bone McAllester Norton attorney Stephen Zralek will present a session titled How to Protect Against a Lawsuit when Using Social Media at BarCamp Nashville on Saturday, October 16th at Cadillac Ranch.


 Stephen will be among dozens of presenters at this free, new-media focused “unconference” which brings together the brightest minds from the new media, tech, entrepreneurial and “geek” communities.


Below is an overview of Stephen’s topic:


Legal issues are often the last thing people think of when using Twitter, Facebook or blogging. They say that ignorance is bliss, but ignorance of the law is never an excuse in court.


We will explore issues that every social media user needs to know to help protect against a lawsuit, ranging from copyrights and trademarks (copying others’ content, photos or logos) to fair use, privacy & terms of use, along with questions from the audience.


Learn more and register for BarCamp Nashville.





 

Bonelaw Board Chair, Stacey A. Garrett Goes Extreme

By Stacey A. Garrett


When the Special Olympics of Tennessee announced it was bringing its “Over the Edge” fundraiser to the Nashville City Center for anyone brave enough to rappel down the side of the 27-story downtown high rise, Bone McAllester Norton attorney and Board Chair Stacey Garrett said, “Sign me up!”  But, WHY?  Read her story.


Yes, I did!  I rappelled our 27-story building.


It all started after reading an email announcing a fundraiser for the Special Olympics of Tennessee to sponsor a year round sports training and athletic competition for more than 16,000 children and adults with intellectual disabilities.  Those raising at least $1,000 to support the cause would be among the persons selected to rappel from the downtown Nashville City Center, which is 27 stories and over 400 feet.


Truth is, I never gave it a second thought and signed up within 5 minutes of receiving the email.  It seemed like the experience of a lifetime and a great challenge to advocate for a special organization.


So, the answer to my most frequently asked question, “But WHY!?” is -- it was a natural response from a very adventurous spirit.  And, the answer to the next question, “Are you crazy?” -- definitely not.


The fundraising challenge became an incredible source of fun as I worked to develop, promote and manage my own fundraising webpage and spread the word about the campaign.  Learning about the Special Olympics of Tennessee was a wonderful experience.  The best advocate is a believer in his or her cause, and throughout this process, I learned more and more about the truly special cause this organization supports.  It was amazing to see the event participants become vocal and active advocates of the Special Olympics of Tennessee.


With the fundraising goal met, I was assigned to rappel on Friday, September 10 at 3:00 p.m.  An exciting idea was about to become a reality.


The day was met with persistent and heavy rain.  Driving up to the Nashville City Center (where I work) and watching the rappellers even in the hard rain, I wasn’t sure how I felt. Was it fear? Would I actually go through with it?  In reality, I had no idea how I would react when the time came, because the experience was unknown and it was the fear of the unknown that was most distressing.


I was watching the weather radar nonstop and praying suddenly it wouldn’t rain (or at least not so hard) when 3 pm arrived and, amazingly, the sun came out.  My worried parents camped out with family, friends and our entire office to watch.


Stepping off the elevator on the 27th floor, I thought about turning around.  Standing there was one of the Special Olympics participants to cheer and thank us, and I couldn’t walk away.  The volunteers there to help us at the top were from different places.  Some worked in power plants and hung in ropes for a living.  Each and every one of them was an incredible source of support.


I will never forget climbing out onto the ledge on my knees. In that moment, feeling nothing around me, I realized there was no turning back.  Taking a deep breath, I slowly sat back but was unable to move downward due to the weight of the rope. After several seconds in a completely horizontal position and not moving, I quickly jumped back on the ledge.


With the encouragement of the volunteers, I tried once more. I remember being told: “Stacey, girl, you are already over the edge. It is that easy. You did it. Now keep going.”


Things went okay for the first six stories, but then my foot slipped off a wet window and I began swinging and couldn’t get traction for my foot. I admit I panicked a bit. But, I vividly recall that in the next second, I heard the Bone McAllester Norton team cheering me on loud and clear and, in that instant, realized my surroundings. Those cheers were enough to allow me to thoughtfully find a place to put my feet for traction and to keep going down.  Watching the video, it is clear to me when all this occurred. It is a very brief time on tape, but at the moment, it seemed an eternity.


Although the trek down seemed an eternity, when my feet touched the ground at the end, a smile was on my face.  It wasn’t relief to be on the ground, but rather the realization that I had conquered fears I never knew I had. I had tested and can now attest to the fact that all you need to accomplish your goals is within you.  I met incredible people and had a great time learning about and supporting the Special Olympics of Tennessee.  And, in the end, it was a true adventure.







 

Will Cheek to Serve on the NCSLA 2011 Annual Conference Planning Committee

Will Cheek has been selected by the National Conference of State Liquor Administrators to serve on the NCSLA 2011 Annual Conference Planning Committee.


  The organization held its first meeting at Spring Creek Ranch, in Jackson Hole, Wyoming earlier this month.  The Committee will plan the business and social agendas for the 2011 conference, which is projected to be attended by hundreds of liquor regulators and industry members from across the United States.  This month's meeting centered on planning the program for the conference, which will cover developing legal and business issues for the liquor industry.  The eleven person committee serves as the host for the 2011 conference, to be held at the Wynn Casino in Las Vegas in June 2011.


 

Will Cheek Produces Program on Belmont University’s Law School

Bone McAllester Norton attorney Will Cheek produced a program about Belmont University's new law school for the September meeting of Lawyer's Association for Women.


  The program featured Dean Chris Guthrie of Vanderbilt Law School and Dean Jeff Kinsler of the new Belmont College of Law.  The program was moderated by Federal Court of Appeals Judge, Honorable Martha Craig ("Cissy") Daughtery.  Belmont is Tennessee's first new law school in over 100 years.


Will has produced programs for LAW for a number of years and has been active in the organization since he graduated from law school in 1991.

 

Bone McAllester Norton Ranked 2010 Best Law Firms By U.S. News Media Group and Best Lawyers

U.S. News Media Group and Best Lawyers have released the 2010 Best Law Firms rankings, marking the inaugural publication of this highly-anticipated annual analysis.


 The rankings, including 30,322 rankings of 8,782 law firms in 81 practice areas, are posted online at www.usnews.com/bestlawfirms; the national first-tier rankings will be featured in the October print issue of U.S.News & World Report, which will go on sale September 27.


Bone McAllester Norton received first tier rankings in the Metropolitan Rankings category for Employment Law – Individuals and Personal Injury Litigation – Plaintiffs.


These inaugural rankings, which are presented in tiers both nationally and by metropolitan area or by state, showcase 8,782 different law firms ranked in one or more of  81 major practice areas. Full data is available online for the law firms that received rankings, from the largest firms in the country to hundreds of one-person and two-person law firms, providing a comprehensive view of the U.S. legal profession that is unprecedented both in the range of firms represented and in the range of qualitative and quantitative data used to develop the rankings.


The mission of Best Law Firms from the start has been to help guide referring lawyers and clients – from the country’s largest companies needing corporate legal advice to individuals needing to get a divorce or write a will, along with referring lawyers everywhere, who need an especially high level of legal work because of the particularly difficult legal issues presented, or else legal issues of a particular magnitude – issues that have a bet-the-company implication for a corporation or a potentially life-changing result for an individual.


"U.S. News has more than two decades of experience in providing the public with the most accurate and in-depth rankings of a wide range of institutions, including our Best Law Schools rankings," says Tim Smart, Executive Editor of U.S. News & World Report. "This experience, coupled with our growing reputation as a leading career information resource, makes these law firm rankings a logical next step.”


“U.S. News is the world’s leading publisher of institutional rankings based on both objective data and peer evaluations,” says Steven Naifeh, President of Best Lawyers. “We are combining this expertise with Best Lawyers’ experience of providing rankings of individual lawyers based on peer reviews for almost three decades. By combining hard data with peer reviews, and client assessments, we believe that we are providing users with the most thorough, accurate, and helpful rankings of law firms ever developed.”


We were very pleased with the level of response to national surveys, in which major clients and leading lawyers were asked to rate the law firms they consider best in their practice area. In the end, 9,514 clients – including every Fortune 100 company and 587 of the Fortune 1000 companies – provided 194,370 firm practice-area evaluations; 6,190 clients provided 11,181 comments about law firm practice areas and individual lawyers; and 8,842 lawyers provided 594,012 firm practice-area evaluations.


These reputational survey responses were combined with more than 3.1 million evaluations of individual lawyers in these firms in the most recent Best Lawyers survey of leading lawyers.  Hard numbers were also used to develop the practice area rankings — data about numbers of lawyers and their previous experience, numbers of clients within different billing ranges, numbers of transactions and litigation matters at different dollar levels; pro-bono commitment, diversity, and other objective data.


Achieving a high ranking is a special distinction that signals a unique combination of excellence and breadth of expertise.


About the U.S. News Media Group
The U.S. News Media Group is a multi-platform digital publisher of news and analysis, which includes the monthly U.S. News & World Report magazine, the digital-only U.S. News Weekly magazine, www.usnews.com, and www.rankingsandreviews.com. Focusing on Health, Money & Business, Education, and Public Service/Opinion, the U.S. News Media Group has earned a reputation as the leading provider of service news and information that improves the quality of life of its readers. The U.S. News Media Group’s signature franchises include its News You Can Use® brand of journalism and its “America’s Best” series of consumer guides that include rankings of colleges, graduate schools, hospitals, health plans, and more.


About Best Lawyers
Best Lawyers is the oldest and most respected peer-review publication in the legal profession. For over a quarter century, the company has helped lawyers and clients find legal counsel in distant jurisdictions or unfamiliar specialties. The 2011 edition of The Best Lawyers in America includes 41,385 lawyers covering all 50 states and the District of Columbia and is based on more than 3.1 million detailed evaluations of lawyers by other lawyers. At www.BestLawyers.com, Best Lawyers also publishes peer-reviewed listings of lawyers in most of the world’s major legal markets. Best Lawyers lists are excerpted in a wide range of general interest, business and legal publications worldwide, reaching an audience of more than 17 million readers.


 

Stephen Zralek's Watercooler Networking Event to Feature "The Art of Collecting Fine Art"

The next Watercooler networking event will be held on Monday, September 13, 2010, at 5:30 PM at the Stanford Fine Art Gallery in Belle Meade, at 6608 Highway 100, just past the Hwy 100/70 split.


  We have relocated this upcoming WaterCooler to allow our future host, Fish & Co, to complete its renovations.  There is no charge for attending this WaterCooler and complementary wine will be available.  What better reward for making the trek to the backwoods of Belle Meade than this informal networking and learning opportunity?  (Networking from 5:30 to 6:00; Ed begins his presentation around 6:00.)


"The Art of Collecting Fine Art"
with Ed Nash of Oxford Fine Arts


Please RSVP to Kristi at This email address is being protected from spambots. You need JavaScript enabled to view it. so that we can give an accurate headcount.  Feel free to invite your friends, and let us know of anyone else who should be on our list.


WaterCooler Presents
Ed Nash
"The Art of Collecting Fine Art"
Monday, 13 September, 2010
5:30- 7:00 PM
Stanford Fine Art Gallery
6608 Highway 100
Renata, Stephen, and Wade


WaterCooler is an informal networking group for young entrepreneurs in their 20s, 30s and 40s that meets the second Monday of every month from 5:30-7pm for cocktails, networking and the chance to hear vibrant speakers on a variety of topics.  There is no official membership and no dues -- just come when the speaker interests you.

WaterCooler began in September 2009 and has featured the following speakers/topics:

September 2009: Kimberly Pace (Owen School): "Personal Marketing"
October 2009: Clint Smith (Emma): "The Art of Everyday Innovation"
November 2009: Chris Ferrell (SouthComm): "The Changing Delivery of Information"
December 2009: Becca Stevens (Magdalene/Thistle Farms): "Walking in Gratitude"
January 2010: Freddie O'Connell (SearchViz): "Search Engine Optimization"
February 2010: Bob Bernstein (Bongo Java)/Jose Gonzalez (Belmont): "Entrepreneurship with Heart"
March 2010: Sid Chambless (Nashville Capital Network): "Investment Capital for Young Entrepreneurs"
April 2010: Networking for WaterCooler attendees
June 2010: Laura Creekmore (Creekmore Consulting): "Using Social Media as a Young Entrepreneur"
July 2010: Alan Young (Armor Concepts LLC): "Secrets of Starting a Successful Company"


 

Bone McAllester Norton Attorneys John Branham, Paul Kruse, Anne Martin & Will Cheek Named to The Best Lawyers in America®

Bone McAllester Norton is pleased to announce that four of its attorneys, John Branham, Paul Kruse, Anne Martin and Will Cheek, were recently selected by their peers for inclusion in The Best Lawyers in America® 2011.


For a quarter of a century, Best Lawyers® has been regarded – by both the profession and the public – as the definitive guide to legal excellence in the United States.  Selection to Best Lawyers is based on an exhaustive and rigorous peer-review survey comprising more than 3.1 million confidential evaluations by top attorneys in the country.  Because no fee or purchase is required, being listed in Best Lawyers is considered a singular honor.


The Bone McAllester Norton attorneys named in the forthcoming edition of The Best Lawyers in America include:


John P. Branham for Personal Injury Litigation
Paul W. Kruse for Intellectual Property Law
Anne C. Martin for Labor and Employment Law
William T. Cheek III for Food and Beverage Law


 

“Safety of Patrons Is Real Question”

Will Cheek’s article was published in the Tennessean on Aug. 8, 2010.


Handgun-carry laws in Tennessee are not hard for experienced gun owners to understand. With a permit, you can carry your handgun. You cannot carry your shotgun or assault rifle, for example.


You cannot bring your gun into restaurants and bars with “no gun” signs on the door. You cannot carry a gun into a park if the city has voted to prevent guns. Park laws vary from city to city, but if you are not sure, you can ask a police officer or look at the list on the NRA website.


It is pretty simple.


Those that choose to be licensed to carry a gun should understand the law and know what they can legally carry into public places, and what they cannot carry. The gentleman that carried an AK-47 assault pistol into Radnor Lake certainly knows the difference, but he pushes the bounds of common sense. Why carry a handgun that looks like an assault rifle, even if it is legal? He may be trying to prove a point about the right to bear arms, but his effort is misguided.


Permit holders minimally trained


As I see it, the big question is not whether Tennessee’s gun-carry laws are vague and unconstitutional (as this gentleman’s lawsuit claims), but rather do they make sense?


Personally, I support the right to own a gun. I fondly remember learning how to shoot cans with my stepfather at my great-grandmother’s house in Opelika, Ala., when I was 6. The pistol was exciting, but the 12-gauge shotgun nearly knocked me down.


As a U.S. citizen, we have a fundamental right to own a gun to defend our home and nation. The Second Amendment right to bear arms makes perfect sense when you think about the time it was adopted — after battling the English Redcoats for freedom and confronting natives that were hostile to settlers.


In public today, it is a completely different matter. It is one thing to fire shots at cans or a paper target — it is completely different to fire a gun at a person in a crowded restaurant or bar.


Ask any police officer about the required training to carry a handgun as a police officer. They are trained to know how to use their guns in a crowd — most importantly, how to avoid shooting innocent bystanders. Compare this to the very basic training required by citizens to carry a handgun.


I welcome trained officers with guns in our bars, restaurants and parks. Vigilantes are glorified in the movies, but in real life, do you really want someone that has never trained to open fire in a crowded public place in a well-intentioned but misguided effort to help?


Then there is the issue of drinking. We are all aware of the drinking and driving problem. Despite decades of public campaigns and stepped-up law enforcement, people still drink and drive. Why should we expect gun permit holders to be the exception? We have to assume that there will be permit holders who will bring their guns into restaurants and bars and have more than a few drinks.


I work with hundreds of restaurants, bars and hotels across the state. There is a reason you see so many “no gun” signs on their doors. The owners know that guns and alcohol do not mix.


Trained law enforcement officers are always welcome. But it is simply too dangerous to allow untrained permit holders to carry handguns in crowded places like bars, restaurants and parks.


 

Guns in Licensed Establishments

The 2010 Legislative session saw passage of a revised gun bill that is designed to survive a court challenge.  The Legislature legalized bringing firearms by licensed handgun carriers into any place that sells beer or alcoholic beverages, unless the place opts out.

In a surprisingly friendly move to the alcoholic beverage industry, the legislature now allows places to opt out by posting the international circle-slash no gun sign.  Although the sign needs to be large enough to be plainly visible to patrons entering the business, the international no gun sign is considerably preferable to the alternative sign, which was the only mechanism to opt out under the 2009 gun law.  The alternative sign must contain language “substantially similar” to the following:

AS AUTHORIZED BY T.C.A. § 39-17-1359, POSSESSION OF A WEAPON ON POSTED PROPERTY OR IN A POSTED BUILDING IS PROHIBITED AND IS A CRIMINAL OFFENSE.

The 2009 gun law allowed licensed handgun carriers to bring firearms into restaurants, but not bars.  At the time, the liquor laws did not distinguish between restaurants and bars, and a court threw out the gun law as being unconstitutionally vague.

The new law has taken effect.  Licensed establishments that desire to opt out are advised to post the international no gun sign at every entrance.

Because the law requires the posting to be plainly visible, we suggest that establishments use signs that are at least three inches or larger.  “Plainly visible” has not been defined, but larger signs are probably better than smaller signs.

The Rest of the Story: 2010 Liquor Laws that Failed to Pass

Often, some of the most interesting legislative news relates to bills that failed to pass.  The 2010 session was no exception.

Perhaps the most notable was a bill by Representative Todd and Senator Fowlkes to shut down liquor and beer service at midnight across the state.  With the fiscal note for eliminating sales from midnight until 3:00 a.m. rather daunting, the legislation failed to advance.

As was widely suspected, the “wine at retail food store license” was dead on arrival this year.  We expect that wine in grocery stores will be a hot topic of discussion after the election and encourage readers to check with our blog Last Call.

In an effort to address the widespread failure of bars, music venues and other places to meet the minimum food service requirements, Representative Todd proposed that all licensees submit an oath of percentage of food sales in connection with license renewals.  Representative Todd later became a primary backer of the limited service restaurant license bill, which more-effectively addresses the food service issue.

Efforts to make the sale of alcohol to minors a crime punishable by a mandatory period of imprisonment of forty-eight hours failed to gain momentum.

Ninth Circuit Offers Best Guidance on Issues of Copyright Registration Requirement to Initiate Litigation

On March 2, 2010, the Supreme Court issued its decision in Reed Elsevier v. Muchnick.  In that decision, the Court clarified that Section 411(a) of the Copyright Act "does not restrict a federal court's subject-matter jurisdiction."  Instead, Section 411(a) is merely a "precondition to filing a claim."  Importantly, the plurality explicitly declined to address "whether Section 411(a)'s registration requirement is a mandatory precondition to suit that . . . district courts may or should enforce sua sponte by dismissing copyright infringement claims involving unregistered works."  Instead, the Court left that issue unresolved.

Picking up where Reed Elsevier left off, the Ninth Circuit specifically addressed that issue in a decision on May 25, 2010, namely what it means to "register" a copyrighted work.  See Cosmetic Ideas, Inc. v. IAC/InteractiveCorp, 606 F.3d 612 (9th Cir. 2010).  The Cosmetic Court issued a thoughtful decision that concluded "registration" under 411(a) is accomplished upon mere "receipt by the Copyright Office of a complete application."  In so holding, the Ninth Circuit adopted what many courts refer to as the "application" approach, rather than the "registration" approach. 

The Cosmetic Ideas decision provides the best analysis on the issue to date.  In amplifying the sound reasoning of La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1202-04 (10th Cir. 2005), the Cosmetic Ideas opinion examined the plain language of Section 411(a), the Copyright Act as a whole, and even the purpose of the Act.  It found the plain language unhelpful in defining "registration," and it found five sections of the broader Copyright Act to be instructive, but not clearly supporting either the application approach or the registration approach. In examining the purpose of the Copyright Act, the court concluded that "the application approach better fulfills Congress's purpose of providing broad copyright protection while maintaining a robust federal register." 

Specifically, the Cosmetic Ideas Court noted that the application approach offers these benefits over the registration approach: (a) "avoids unnecessary delay in copyright infringement litigation . . . [g]iven that copyright owners will ultimately be allowed to proceed regardless of how the Copyright Office treats the application"; (b) "avoids delay without impairing the central goal of copyright registration"; and (c) avoids the "worst-case scenario" under the registration approach, which "could cause a party to lose its ability to sue." 

One benefit of the application approach that Cosmetic Ideas missed is that it puts U.S. works on equal footing with non-U.S. works.  Under the Berne Convention, foreign works may not be subject to registration formalities prior to initiating litigation.  The registration approach actually treats non-U.S. works better than U.S. works, because it requires owners of U.S. works to wait for registration prior to filing an infringement action.  By adopting the application approach, U.S. works are given equally favorable treatment.

Look for the Cosmetic Ideas opinion to be the new road map for courts across the country as they grapple with deciding whether to adopt the application or registration approach.  More courts should follow the analysis in Cosmetic Ideas and reach the same conclusion.

Finally, many of the courts that adopted the registration approach did so while dismissing the complaint before them for lack of subject matter jurisdiction.  That is, many of them held that since 411(a) required a copyright plaintiff to obtain registration prior to filing suit (i.e., the registration approach), the court lacked subject matter jurisdiction.  See Specific Software Solutions, LLC v. Institute of WorkComp Advisors, LLC, 615 F. Supp. 2d 708, 716 (M.D. Tenn. 2009).  As Cosmetic Ideas notes in note 4, however, many of these cases have been abrogated, in part, by Reed Elsevier.  Knowing that should help lawyers and litigants who are seeking to persuade courts to abandon the registration approach and adopt the application approach instead.

Bars Legalized

On the eve of adjournment, the legislature created a new liquor license that allows establishments selling fifteen percent or more of “prepared food” to obtain a new limited service restaurant license.  The law legalizes the vast majority of bars and entertainment venues that did not qualify as a “restaurant” under prior law, which required that the sale of food be the “primary business.”  The legislation also clarified the existing definition of “restaurant,” by requiring that a restaurant derive fifty percent or more of its income from the sale of food.

The new limited service restaurant license has graduated license fees ranging from $2,000 to $4,000, depending on the percentage of food sales.  The license also requires adequate security and a number of other minor modifications to the existing restaurant law.

The law has taken effect and the ABC is accepting applications.

Premier Tourist Resorts Gain Liquor Licenses

As usual, the legislature added a long list of premier-type tourist resorts and other special legislation to allow liquor licenses in places that are otherwise dry.  Rejoice Sewanee Tigers, you can now legally purchase wine and spirits at The Sewanee Inn.  The following is our compilation of the new watering holes, based on the best information available:

Blackberry Farms (expansion) Buckhorn Inn, outside of Gatlinburg Center for Southern Folklore, Memphis Clayton Center for the Arts, Blount County East Fork Stables, Jamestown Laurel Cove, College Grove Majestic Theatre, Chattanooga Meadow Creek Mountain Rustic Resort, Cocke County Pine Crest Golf Course, Gibson County Richmont Inn, Townsend, Tennessee Roxy Regional Theatre, Clarksville The Sewanee Inn, Sewanee Slingo Marina on Center Hill Lake

In a departure from tradition, the Majestic Theatre in Chattanooga appears to be the first for-profit theater that is licensed for wine and liquor service.  The handful of other theaters previously legalized for the sale of alcohol are all nonprofit.

Alcoholic Beverage Group Provides Update on New Liquor Laws

Distilleries: The legislature allowed distilleries to charge for tours and tastings conducted in connection with tours.  Previously, no charge could be required for tastings, which prevented distilleries from requiring patrons to attend a paid tour in order to participate in tastings.  The legislature also authorized distilleries to provide samples for marketing purposes, after all taxes have been paid, and tweaked the location restrictions.

Collector License: The legislature created a new license for collectors of commemorative bottles that contain alcoholic beverages.  Readers may recall the seizure of collectable Jack Daniels bottles a few years ago, which drew national attention when it appeared that the seized inventory would be destroyed.  The new collector license legalizes the practice that led to the seizure.

Transportation: The laws concerning the amounts of alcohol one can legally transport through dry and other counties were modified to uniformly legalize transportation of less than five gallons of alcoholic beverages or wine for personal or household use.  Previously, the amounts varied and were arguably in conflict.

Lakewood: The legislature passed a technical correction that allows liquor stores licensed within the area formerly known as Lakewood to be issued renewal licenses and to stay in business.

Will Cheek Quoted in the Tennessean on Guns-In-Bars Law

Bone McAllester Norton attorney Will Cheek is quoted in an article by reporter Chad Sisk highlighting voter opposition to Tennessee’s controversial guns-in-bars law.


  The article was published by The Tennessean, The Commercial Appeal (Memphis) and the Knoxville News Sentinel on July 28.


According to the article, seven in ten voters oppose the gun law and supporters of the gun law say it will make the state safer.


From the article:


"You would think (legislators) would vote the way their constituents want," said Will Cheek, a Nashville attorney with Bone McAllester Norton who led a successful legal challenge to the first of the two gun laws. "I think the legislators are out of touch with the people."


Click here to read more.


 

ABA Copyright Litigation Committee Co-Chair Stephen Zralek Announces Annual Conference Events in San Francisco

Bone McAllester Norton attorney Stephen Zralek, co-chair of the American Bar Association (ABA) Copyright Litigation Committee, has announced committee events to be held during the ABA annual meeting on August 6 in San Francisco. All committee members attending the annual meeting are invited to attend.


Committee Meeting/Roundtable Discussion: The Committee will meet Friday, August 6, from 11:45am to 12:45pm in the SoMa Room on the 3rd floor of the InterContinental San Francisco.  Dale Cendali, a copyright litigation superstar at Kirkland & Ellis, will lead a roundtable discussion about current issues in copyright litigation and share some observations from her representation of The Associated Press in the lawsuit against Shepard Fairey (who used the AP's photo of President Obama to create a poster and other merchandise).  As "Above the Law" Blog says: "In case you're not familiar with her, Dale Cendali is a big deal. . . . [she] is a Bad-Ass Litigatrix."

We'll also shape our agenda for the coming year and establish subcommittees, including Hot Topics, Bulletin, Webinars, and planning next year's Annual Meeting. .

Happy Hour:  Drinks on Friday, August 6 at 6:30 at ThirstyBear Brewing Company, billed as "San Francisco's first & only organic brewery," located only 2 blocks from the Intercontinental at 661 Howard Street.

 

ABC to Live for One More Year

The legislature extended the duration of the ABC as an independent state agency until June 30, 2011.  During the legislative session, there was informal discussion of merging the ABC with other agencies, including the Department of Revenue.  Backers of merging state agencies claim that the state will save significantly on redundant services, such as computer support, clerical staff, rent and storage.

We expect that the future of the ABC will continue to be discussed during the upcoming year.  Follow the progress at our blog Last Call for updates.

David Anthony Settlements Involving Former Titans Player Albert Haynesworth Covered in Tennessean

Bone McAllester Norton attorney David Anthony recently represented Nashville civil engineering firm Dale & Associates in two small-claims lawsuits against Washington Redskins defensive tackle and former Titans player Albert Haynesworth in disputes involving $50,000 in unpaid surveying and engineering expenses for a proposed townhome development and mixed-use residential and retail project that were never built.


Anthony’s settlement of the two cases in Davidson County Circuit court was covered in the Tennessean on July 27, 2010 in an article titled “Nashville Real Estate Briefs: Real estate disputes leads to settlement.”


 

Trace Blankenship Presents "Private and Family-Owned Company Boards: What Directors, Owner/Executives and their Professional Advisers Need to Know Now about the Evolving Corporate Governance Landscape"

Trace Blankenship presented “Private and Family-Owned Company Boards: What Directors, Owner/Executives and their Professional Advisers Need to Know Now about the Evolving Corporate Governance Landscape," during the first week of July to Vistage International's Nashville Trusted Providers Group.


  Trace concentrates his practice on mergers and acquisitions, securities transactions, and corporate governance for public and private companies, and he summarized to the group some essential principles that directors and owner/executives of private companies can use to reduce the risk of disputes and potentially benefit the bottom line when making "bet-the-farm" decisions and changes that affect the stakeholders.  Vistage International was founded in 1957 and is a respected worldwide chief executive leadership organization with more than 14,500 members.  Vistage’s Executive Leadership Program provides access to new ideas and fresh thinking through monthly peer workshops, one-on-one business coaching, speaker presentations from industry experts, social networking and an extensive online content library of articles, best practices, podcasts and webinars.  Trace is a member of Vistage International's Nashville Trusted Provider Group.