In The News

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.


 

July 2, 2010 Newsletter Features New CMS Draft Regulations

On June 25, 2010, CMS proposed regulations that immediately impact physicians who provide diagnostic imaging services to their patients. To read the rest of our newsletter, click here.

CMS Issues Draft Regulations Mandating Disclosure by Physicians of Imaging Service Providers

On June 25, 2010, CMS proposed regulations that immediately impact physicians who provide diagnostic imaging services to their patients.  These regulations are required by the Healthcare Reform Act enacted on March 23, 2010.  A copy of the proposed regulations is available at http://www.cms.gov/.  The effective date of the final regulations is January 1, 2011.


The regulations, as proposed, require a physician or physician extender who orders a MRI, a CT scan or PET Scan, to provide the patient with a list of other suppliers of those services in the area and a statement that the patient may obtain the service from another supplier.  The required disclosures include:


  • A list of ten alternate suppliers of that service located within a 25 mile radius of the doctor’s office.



  • The address, telephone number and distance from the doctor’s office of each supplier.


The regulations require that disclosure be given to the patient at the time the test is ordered.  In addition, the patient must sign an acknowledgement of receipt of that disclosure.  This acknowledgment must be maintained in the patient’s medical record.
What if there are less than ten suppliers within a 25 mile radius of the office?

Then, all suppliers of the service must be listed.


What if there are no other suppliers within a 25 mile radius of the office?

 According to CMS, the disclosure does not need to be made.


What if the physician or extender ordering the test does not have the equipment necessary to perform the test?

The proposed rule only applies if the physician or physician extender ordering the test is able to perform the test.


Does this disclosure requirement apply to any tests other than MRI, CT Scan or PET Scans? 

At this time, no.  CMS is considering whether additional diagnostic imaging tests should be added to the disclosure requirement.


Can the disclosure be in electronic form? 

CMS does not specify that the disclosure must be in written form.  CMS is requiring the patient “to sign” an acknowledgment.  Presumably, electronic signatures are permitted.


Is a hospital a supplier?

The proposed regulations exclude hospitals and critical access hospitals from the definition of supplier.  A freestanding outpatient imaging clinic owned by a hospital is a supplier.


Is the disclosure required in emergency situations?

At this time, yes.  CMS is accepting comments on that issue.


May the patient choose another supplier who is not on the list? 

Yes.  CMS clearly states that the list of suppliers is non-exclusive.

Anne Martin Comments on Supreme Court’s Public Employee Privacy Ruling

Bone McAllester Norton employment attorney Anne Martin is quoted in the Tennessean on the recent ruling by the Supreme Court allowing employers the right to read a public employee’s text messages if the supervisor expects work rules are being violated.


  The article entitled “Ruling lets bosses read public employees’ texts” was reported in the Tribune Washington Bureau by David G. Savage and in the Tennessean with contributions from G. Chambers Williams III on June 18, 2010.


From the article:


"It's a reminder of what everybody has been telling clients: that employees realistically should have no expectation of privacy when using workplace computers," said Anne Martin with the Nashville law firm Bone McAllester Norton, who practices employment law.


"The reality is that we spend most of our days at work, and use our work computers for business and personal communications," she said. "People should use good judgment, because what they send from a work computer reflects on that company. And once something happens on an employer's system, the employer has to take responsibility for it. But it is unrealistic to say that employees can't conduct personal business on work computers."


 

Paz Haynes to Moderate Panel for Law Day 2010: Defending Freedom in the Nashville Sit-In Trials

Presented by the Nashville Bar Association, Napier-Looby Bar Association and Nashville Bar Foundation, Law Day 2010 will be a special celebration of the attorneys who defended Nashville sit-in demonstrators on the 50th anniversary of the trials.


  The event titled “Law Day 2010: Defending Freedom in the Nashville Sit-In Trials” will feature a luncheon followed by a CLE panel presentation, “Civil Disobedience and the Rule of Law: The Nashville Sit-Ins and Lessons In Courage,” moderated by Bone McAllester Norton attorney Paz Haynes.


Details on the event and how to register are available at www.nashvillebar.org.


 

Health Care Reform Seminar: Preparing Businesses for Immediate Impact

When: Thursday, June 17, 2010 | 7:30 a.m. - 9:00 a.m.

Where: Bone McAllester Norton

131 Saundersville Road | Parkside Plaza One

Hendersonville, TN  37075



When: Thursday, June 24, 2010 | 11:30 a.m. - 1:00 p.m.

Where: Bone McAllester Norton

Nashville City Center, 16th Floor | 511 Union Street

Nashville, TN  37219



Signed into law March 23, 2010, The Patient Protection and Affordable Care Act ("Health Reform Act") includes sweeping changes which will impact every American.  This briefing will break through the complexities of the legislation and focus on the key provisions that go into effect this year and early in 2011.


If you have employees or work with health care benefits or health plans, join us for this informal session on:



  • Insights into the new rules for health plans and health insurance.

  • Opportunities and challenges for plan design and administration in this new environment.

  • Which parts of the legislation take effect the earliest so you can prioritize.

  • What you need to be doing NOW to prepare for the coming Health Reform Act changes.


Presented by Bone McAllester Norton and Heritage Financial Group, specific topics will include how to prepare for benefit limits, pre-existing condition exclusions and rescission, requirements regarding medical loss ratios, new tax measures, "Cadillac Plan" taxes, coverage of dependent children, early retiree reinsurance, and rules for health accounts (HSAs and FSAs).





To register for this complimentary seminar and breakfast/lunch, RSVP by Friday, June 11 to This email address is being protected from spambots. You need JavaScript enabled to view it. or 615-742-6889 with date/location preference.

Space is limited.



September 2010 Newsletter Features 11 Awards, Social Media Tips, Rappelling Off a Building, Economic Tips, ABC's First Liquor License & New Health Care Laws

September has been an especially busy month at Bone McAllester Norton.  To read the rest of our newsletter, click here.

Rob Pinson to Speak on Rules Governing Tax-Exempt Organizations

Bone McAllester Norton attorney Rob Pinson will present at the National Business Institute’s one-day live seminar How to Keep Tax-Exempt Organizations in Compliance on July 22 at the Millennium Maxwell House Hotel.


Rob will be speaking on the topics of “Maintaining Tax-Exempt Status”, “Dealing with Unrelated Business Income” and “Intermediate Sanctions” along with speakers David Parsons (Baker, Campbell & Parsons), Carolyn Schott (Baker Donelson, Bearman, Caldwell & Berkowitz, PC) and Sallye Williams (Carr, Riggs & Ingram, LLC).


Five benefits of attending:




  • Gain strategies for safeguarding directors, officers and executives from potential liability.

  • Create an environment of accountability by establishing comprehensive internal controls.

  • Follow annual reporting requirements and comply with the rules governing disclosures and solicitation.

  • Know how to identify what qualifies as unrelated business income – and what the exceptions are.

  • Adhere to the accepted guidelines for determining appropriate executive compensation.


 

Bone McAllester Norton Attorneys Charles Bone, Stephen Zralek and Trace Blakenship Named "Best of the Bar"

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.


Honorees from Bone McAllester Norton are Charles W. Bone and Stephen Zralek in the category Outstanding Small Law Firm and Trace Blankenship for Rising Star.


 

"Transportation System’s Future Needs to be Developed Today"

May 26, 2010, Tennessee Voices
By Charles W. Bone


If there is a lesson to be learned from the devastating floods, it’s that our region is at its best when we pull together as a community. And just as we have pulled together as a community to address the natural disaster, we must do the same if we’re going to solve our region’s transportation issues.


In the coming weeks, there will be a number of public hearings for community input on the Nashville Area MPO 2035 Regional Transportation Plan that will be unveiled at the upcoming “Convening the Region Summit.” The plan will help us establish regional goals, policies and objectives for our multi-modal transportation system over the next 25 years. It will help us support the economic growth and prosperity goals of communities while tackling future congestion, safety and security travel concerns and working to reduce urban sprawl.


All of us involved with Cumberland Region Tomorrow will be asking you to take part in developing a regional vision for the future of our transportation system.


In 1956, President Dwight D. Eisenhower signed into law the “National Interstate and Defense Highways Act” that served as the catalyst for what we all know now as our national interstate system.


As monumental as that legislation was for setting the course for the designation and funding of our nation’s transportation infrastructure, it didn’t all come together that year — or even in that decade. It took years of input, cooperation and planning to put in place our current interstate system.


The 2035 Regional Transportation Plan is the 21st century equivalent of the interstate system for us. It will be vital to the economic vitality and livability of this region we call home.


A number of policy issues will need to be decided: How do we address the long-term transportation needs of our 10-county Middle Tennessee region? How do we provide better transportation alternatives for our citizens to reduce traffic congestion, smog and pollution while still remaining economically competitive? How do we work with the federal, state and local governments to make sure our public-private partnership in addressing Middle Tennessee’s transportation needs is successful?


After last year’s summit, the Middle Tennessee Mayors Caucus was formed to provide leadership on the important issues facing our growing region. The Transit Alliance of Middle Tennessee also has been formed, calling for a “bold vision” including more mass transit and walkable communities. The Alliance is headed by Ed Cole, a longtime leader in transportation solutions, and I serve as the chairman.


Concerned citizens, the business community, our elected leaders and others in our 10-county community must all pull together if we’re going to find a regional solution to our transportation issues. One county or one community can’t do it alone. It’s going to take us all.


Please make your voice heard.


Charles W. Bone is the chairman of Bone McAllester Norton PLLC and a founding member of Cumberland Region Tomorrow, the nonprofit organization that brings people together to address regional challenges and opportunities we face with the future growth and development of Middle Tennessee.


 

Leadership and Perseverance in the Face of Disaster: Bone McAllester Norton Clients Rise Above

When more than six feet of flood water rushed into two of Nashville’s key business enterprises destroying property and shutting down operations, Ajax Turner President Scott Turner and Gaylord Opryland Resort & Convention Center President Colin Reed did not retreat.


Instead, the leaders focused on the immediate crisis and number one priority of ensuring individual safety and salvaging property and next got down to the business of mapping out the shortest road to recovery.  Three weeks after the flood, Ajax Turner is reloading its inventory and making customer deliveries from a temporary location and Gaylord expects the hotel to be back in business before the end of the year.



National Flood Insurance Program: What Lenders Should Know

The National Flood Insurance Program (NFIP) was created by the National Flood Insurance Act of 1968. Two subsequent laws, the Flood Disaster Protection Act of 1973 and the National Flood Insurance Reform Act of 1994, have made the purchase of flood insurance mandatory for Federal or Federally-related financial assistance for acquisition or construction of buildings in Special Flood Hazard Areas (SFHAs).

Flood insurance is mandatory for buildings in FEMA-identified high-risk flood areas, referred to as SFHAs.  Whenever you make, increase, extend or renew a mortgage, home equity, home improvement, commercial or farm credit loan in an SFHA, you must require flood insurance. You may require flood insurance on all loans, even those outside SFHAs.

Ensure that flood insurance coverage is maintained for the term of all the loans on a building. Escrowing flood insurance premiums can help make sure you meet this requirement, and it helps protect you and your borrowers from uninsured flood losses.

Know the amount of flood insurance coverage to require. The required coverage is the lesser of the following: (i) the maximum amount of NFIP flood insurance coverage available, (ii) the outstanding principal balance of the loan, or (iii) the value of the building only. (Land and land values are not covered under the NFIP.)

Notify borrowers in writing of the requirement to buy flood insurance for new and existing loans. If you determine that a home or business is in an SFHA before loan closing, you are required to notify the borrower within a reasonable time prior to the loan closing. If you determine that an existing loan for a home or business is in a SFHA, you are also required to notify the borrower within a reasonable time.

There is no waiting period for flood insurance to go into effect when it is purchased in connection with making, increasing, renewing or extending a loan. In most other instances, there is a 30-day waiting period before flood insurance goes into effect.

For more information about the mandatory purchase of flood insurance requirements, and other related topics, read the .

Flood insurance and the mandatory purchase laws help protect your investments as well as your borrowers’ against uninsured flood losses. Floods can occur in unexpected areas of the country. Make sure you and your borrowers are protected from uninsured flood losses for their homes, businesses and belongings by following these requirements.

May 2010 Newsletter Features What to Do After the Flood

As the flood victims begin to assess the damage and put their lives, homes and businesses back together, our firm is here to help. To read the rest of our newsletter, click here.

Casualty Losses: Qualifying for Federal Tax Deductions

Now that the rains have stopped and the flood levels are receding, many Tennesseans are surveying the damage done to their property, whether personal property or business property.  The good news is the federal tax laws allow a deduction for losses of personal and business property due to a casualty—a sudden, unexpected, and unusual event such as a fire, storm, flood or hurricane—for which many Tennessee residents qualify.

Regardless of the type of property, if you suffer a loss from the recent floods, then your loss will be equal to the less of either: (1) the adjusted basis of the property (generally, what you paid for it); or (2) the loss of value by reason of the casualty (generally, the value immediately before the flood minus the value immediately after).  In addition, your loss may be reduced by any compensation received from insurance or otherwise.

Unfortunately, you bear the burden of proving the facts needed for qualifying for the deduction—including the existence of the casualty as the cause of the loss, the resulting decline in fair market value, the adjusted basis of the asset(s), and that you actually owned the asset(s).  Proof of the casualty is easy enough.  Keep copies of newspaper or online articles about the recent floods, and also obtain a copy of the Presidentially-Declared Disaster Area notice for your county.  In substantiating the loss, you must establish: (1) the adjusted basis of the asset(s) involved; (2) the decline in value of the property as a result of the casualty; and (3) the amount of any reimbursement.  In order to justify your loss, you will need proof of what you paid for your property, as well as proof of its value before and after the flood, if you have it.  In order to prove the value of real estate and other substantial assets after the flood, an appraisal may be necessary.

If the loss is from property used in a trade or business or income-producing property (such as rental property), then you can deduct the full amount of the loss as determined above.  If the loss is from non-business (or personal) property, certain limitations apply restricting the amount you can deduct.

Generally, a loss is deductible in the year it is sustained, 2010 in this case.  However, losses sustained because of natural disasters in Presidentially-Declared Disaster Areas may be deducted in the prior year, 2009 in this case.  Therefore, you have a choice to wait until early 2011 to claim this deduction and hopefully get a refund, or file an amended return for 2009 and get a refund sooner.  The one drawback to claiming the loss sooner is that if you get insurance proceeds after filing the amended return, you may have to file another amended return paying some of your refund money back.

The IRS also has resources available on its website for calculating the amount of your casualty losses (go to www.irs.gov and search for Publication 584).

Lease Rights Following the Flood: Casualty Provisions

The flood has affected many of our neighbors, including businesses.  While flood insurance or business interruption insurance may be helpful to some property owners and businesses, almost all landlords and tenants have provisions that relate to casualties in their leases.  The water and flood damage of the magnitude suffered in Middle Tennessee almost certainly qualifies as a casualty.

The rights of landlords and tenants under these casualty provisions generally are independent of insurance and liability provisions, and these casualty provisions will help guide the parties’ next steps, regardless of whether the property is determined to be a total loss or not. Many times, these casualty provisions give landlords the sole right to determine whether the lease will continue post-casualty (i.e., once flood waters subside from the property).  The landlord usually has some amount of time to repair and/or rebuild, and if the repair/re-build happens within a certain amount of time, the lease will continue.  If repair/re-build cannot happen on the given timetable, the lease may terminate.  This is good for landlords because it affords some measure of control over their property.

The good news for tenants is that many leases allow for rent abatement during the time that the property is unusable.  So, from the time water damage or flood waters forced the tenant from the leased property until the time repair/re-build is completed, the tenant may not have to pay rent.

Some casualty provisions are short and straightforward, and some are complex.  Always consult your lease if you have questions, and seeking legal advice may be helpful.  Most casualty provisions may be reviewed quickly and efficiently.

Flood Relief Contractor: Dealing with Damage Requiring Immediate Repair

The disastrous floods throughout Middle Tennessee have left many in our area dealing with damage to their homes that requires immediate repair.  Contractors and home restoration services will certainly be in high demand, which may open the door to less reputable contractors trying to exploit desperate consumers. In the rush to get your home restored, it is critical that you know what to do when selecting a home repair/restoration professional in order to prevent further hardship.

Here are a few tips:

Get an estimate in writing from your contractor.  Despite the urge to get the work started as soon as possible, document your engagement with the contractor. Sure, there may be unforeseen issues resulting from the damage, but you are entitled to some fair advance expectation of what the job will cost. Getting an estimate in advance places the burden on the contractor to provide you with notice of those unforeseen issues…and advance notice of any increase in costs.

Be sure that the contractor you hired is licensed with the state.  In the rush to get somebody—sometimes anybody—working on the damage, a homeowner may neglect to take the “due diligence” precautionary measures of vetting the contractor with whom they are dealing. The State of Tennessee Board for Licensing Contractors has an that allows homeowners to investigate whether the contractors they are dealing with are licensed.

If you live in an impacted area, you may be approached by door-to-door contractor solicitations. This could be a legitimate contractor reaching out to people who need help the most, or it could be somebody seeking to exploit other people’s hardship. Again, check on the contractor through the State’s online records, or call the State contractor board at (800) 544-7693. Additionally, the Tennessee Secretary of State maintains records of all corporate entities authorized to do business in Tennessee and provides an online database with those companies. Ask questions about the contractor and their particular experience, and, of course, get it all in writing.

Don’t be afraid to ask questions and seek guidance There are many government and private institutions offering guidance and help in dealing with the aftermath of a flood, including:

Tennessee Emergency Management Agency for specific guidance as to available services in Tennessee.

Tennessee Board for Licensing Contractors

Tennessee Secretary of State

Local resources, such as blogs, may have the most up-to-date information on aid and agencies seeking to provide relief.