In The News

Opportunities Abound at PodCamp Nashville

PodCamp Nashville used to be a best-kept secret.  Not any more. If you're want to find your voice and find your audience, if you want to build your brand and link to potential customers throughout the world, if you want to speak your mind by creating online documentaries or podcasts, or if you want to meet other people interested in your world and your community, sign up.  PodCamp Nashville will be held downtown at Cadillac Ranch on Saturday, March 26.  And it's Free. People from all industries and skill-sets (and I mean All) will be there.  Over 400 have signed up to attend so far.There's no doubt that PodCamp is a chance to network.  I got introduced to PodCamp and its sister, BarCamp (held in the fall), through a friend at work. I've met some incredible Nashvillians in the music, entertainment, marketing, technology and digital fields; made some good friends; and developed some clients.

But more than that, it's a chance to learn from some of the best and brightest in our community.  Where else can you hear all these great luminaries under one roof?  Kate O'Neill will talk about how blogging made her a better leader; Courtenay Rogers will talk about "The Power of Digital Stalking," (she says we all do it); Jake Jorgovan will discuss "How to Effectively Utilize YouTube."  And I'm excited to hear Raj Menon talk about how to launch a podcast.

I can't wait to hear David Corrigan explain how to "Mak[e] your Mobile App idea a Reality."  I came up with about 20 ideas the other day on my drive into work (I'm sure 15 of them have already been invented), but I'm eager to hear what to do the next time creativity hits!

As one of the only lawyers speaking that day, I'll be leading a session with marketing guru Taylor Vick.  She and I are teaming up to talk about how businesses can accomplish their marketing goals through social media without running into trouble.  When clients come to me with a crisis involving online communications, it often takes a tag-team approach between legal solutions and SEO know-how.  Taylor and I will use some specific case-studies to frame our discussion, highlight the issues that can help businesses and bloggers avoid liability, and give some pointers along the way.  Quoting Shakespeare, we titled our session: "Kill All the Lawyers: The Legal & Marketing Aspects of Using Social Media."  We'd love to have you join us and add to the conversation.

Spread the word.  And sign up!

Opportunities Abound at PodCamp Nashville

PodCamp Nashville used to be a best-kept secret.  Not any more. If you're want to find your voice and find your audience, if you want to build your brand and link to potential customers throughout the world, if you want to speak your mind by creating online documentaries or podcasts, or if you want to meet other people interested in your world and your community, sign up.  PodCamp Nashville will be held downtown at Cadillac Ranch on Saturday, March 26.  And it's Free. People from all industries and skill-sets (and I mean All) will be there.  Over 400 have signed up to attend so far.There's no doubt that PodCamp is a chance to network.  I got introduced to PodCamp and its sister, BarCamp (held in the fall), through a friend at work. I've met some incredible Nashvillians in the music, entertainment, marketing, technology and digital fields; made some good friends; and developed some clients.

But more than that, it's a chance to learn from some of the best and brightest in our community.  Where else can you hear all these great luminaries under one roof?  Kate O'Neill will talk about how blogging made her a better leader; Courtenay Rogers will talk about "The Power of Digital Stalking," (she says we all do it); Jake Jorgovan will discuss "How to Effectively Utilize YouTube."  And I'm excited to hear Raj Menon talk about how to launch a podcast.

I can't wait to hear David Corrigan explain how to "Mak[e] your Mobile App idea a Reality."  I came up with about 20 ideas the other day on my drive into work (I'm sure 15 of them have already been invented), but I'm eager to hear what to do the next time creativity hits!

As one of the only lawyers speaking that day, I'll be leading a session with marketing guru Taylor Vick.  She and I are teaming up to talk about how businesses can accomplish their marketing goals through social media without running into trouble.  When clients come to me with a crisis involving online communications, it often takes a tag-team approach between legal solutions and SEO know-how.  Taylor and I will use some specific case-studies to frame our discussion, highlight the issues that can help businesses and bloggers avoid liability, and give some pointers along the way.  Quoting Shakespeare, we titled our session: "Kill All the Lawyers: The Legal & Marketing Aspects of Using Social Media."  We'd love to have you join us and add to the conversation.

Spread the word.  And sign up!

Third Circuit Addresses Hospital Contract with Hospital-Based Physician Group

Appeared in the July 2009 Physicians Organizations Practice Group Newsletter reprinted courtesy of the American Health Lawyers Association.

On January 21, 2009, in the case of United States ex rel. Kosenske v. Carlisle HMA, Inc.(1), the Third Circuit reversed the decision of the district court(2) which had dismissed an action under the False Claims Act(3) which alleged that an arrangement between an anesthesiology group and a for-profit hospital violated the Stark and Anti-Kickback Acts(4) (collectively, the Acts). The Third Circuit agreed with the district court that the arrangement implicated the Acts but disagreed with the lower court’s conclusion that a written agreement entered into in 1992 continued to meet all of the requirements of the personal service exception under the Stark Act. The Third Circuit applied the Stark Act broadly to the relationship between the hospital and physician group, but strictly construed the criteria necessary to qualify for an exception. The Third Circuit’s opinion provides useful guidance for hospitals and hospital-based physicians by clarifying that a hospital-based physician group’s relationship with the hospital must be documented by a written agreement that clearly sets forth the terms of an arrangement that currently meets the requirements of an exception under the Stark Act.


Background


In December 1992, Blue Mountain Anesthesia Associates PC, a group of four anesthesiologists (Group), entered into an agreement (1992 Agreement) with Carlisle Hospital and Health Systems, Inc. (CHHS) to provide anesthesia services to the hospital facility (Hospital). The 1992 Agreement provided that: (1) the Group would provide anesthesia coverage on a twenty-four-hours-a-day, seven-days-a-week basis; (2) the Hospital would provide the space, equipment and supplies reasonably needed by the Group to provide the services without charge; and (3) the arrangement would be an exclusive one for both the Hospital and the Group. The 1992 Agreement did not mention the services being provided outside the Hospital and, at the time they entered into the 1992 Agreement, no pain management services were provided by the Group.


A little more than a year after the 1992 Agreement was signed, Ted Kosenske, a member of the Group, began providing pain management services in space that the Hospital used for other purposes.  In 1998, CHHS built a new, stand-alone facility containing an ambulatory surgery center and a pain management clinic (Pain Clinic). The Group provided pain management services at the Pain Clinic and CHHS did not charge the Group for the space, equipment or personnel. The Group’s physicians providing pain management services at the Pain Clinic did not provide anesthesiology services at the Hospital. For both the anesthesia and pain management services, the Group submitted claims to Medicare for the professional services and CHHS submitted claims for the facility and technical components. In June 2001, Carlisle HMA Inc. (HMA) purchased the assets of the Hospital from CHHS. The 1992 Agreement was not assigned by any written document. However, both the Group and HMA continued the arrangement with each other as if the 1992 Agreement was assigned.


Kosenske, a former member of the Group(5), brought a qui tam action under the False Claims Act against HMA and its parent company, Health Management Associates Inc., alleging that they submitted outpatient hospital claims to the Medicare program and other federal healthcare programs falsely certifying that such claims were in compliance with the Acts.


Analysis


The district court considered the issues raised in the claim in connection with the parties’ cross-motions for summary judgment and held that the arrangement between HMA and the Group implicated the Stark and the Anti-Kickback Acts. The district court noted that both of the Acts prohibit a health care provider from paying physicians any form of compensation to induce them to refer patients to the provider, and from holding a financial interest in a healthcare entity to which they refer patients. The district court also held that the relationship between HMA and the Group involved both referrals and compensation.


Under the arrangement, HMA provided the Group office space, supplies, equipment and personnel without charge, as well as other benefits. Under the 1992 Agreement, the Group was granted the exclusive right to provide anesthesiology and pain management services. The district court agreed with the claimant, Kosenske, that these benefits constituted remuneration under the Acts. Kosenske also argued that the right to receive payment from a third-party payor for services to patients referred to the Group by the Hospital was a benefit that constituted remuneration for the purposes of the Acts. The district court rejected this argument, stating: “The court need not decide whether payment from third party payors or the expectation of payment constitutes remuneration for the purposes of the Stark Act. However, the court would be remiss if it did not express its doubts as to the merits of this attenuated argument.(6)


However, the benefits to the Group under the 1992 Agreement resulted in a compensation arrangement and financial relationship between the Group and the Hospital. The district court determined that the Group ordered numerous pain management services, and that these orders constituted referrals. Therefore, because the Hospital submitted claims to Medicare for these services, the arrangement would violate the Stark Act unless it qualified for an exception. The district court noted that the Anti-Kickback Act requires the “knowing and willful” payment of remuneration to a provider for the referral of services covered by a federal health care program, but it concluded without any additional factual consideration that the Anti-Kickback Act was also violated.


Although the relationship between the Hospital and the Group fell within the ambit of the Stark and the Anti-Kickback Acts, the district court determined that the Hospital demonstrated it met the requirements of the exception for personal services under the Acts. On Appeal, the Third Circuit agreed with the district court that there was clearly a financial relationship between the Hospital and the Group, but rejected the district court’s holding that the relationship qualified for the personal services exception.


The Third Circuit held that HMA had failed to show that the requirements of the Stark personal service exception had been met. The Third Circuit found the arrangement between the Group and HMA failed to meet the criteria of the exception by failing to have a written agreement that covered all of the services to be provided by the Group and by not adequately demonstrating that the compensation under the agreement was at fair market value.


The personal services exception applies if:


(i) the arrangement is set out in writing, signed by the parties, and specifies the services covered by the arrangement,
(ii) the arrangement covers all of the services to be provided by the physician…to the entity,
(iii) the aggregate services contracted for do not exceed those that are reasonable and necessary for the legitimate business purposes of the arrangement,
(iv) the compensation to be paid over the term of the arrangement is set in advance, does not exceed fair market value, and… is not determined in a manner that takes into account the volume or value of any referrals or other business generated between the parties, and
(v) the services to be performed under the arrangement do not involve the counseling or promotion or a business arrangement or other activity that violates any state or federal law(7).


The district court held that the 1992 Agreement continued to satisfy the requirement that the “arrangement be set forth in writing,” even though there was no written assignment of the 1992 Agreement when the assets of the Hospital were sold to HMA. The district court pointed out that the 1992 Agreement contained a provision stating that it would be binding on the parties’ successors and assigns. The district court applied Pennsylvania law and held that, because the actions of the parties after the sale of assets demonstrated their intent that HMA succeed to the position of CHHS under the 1992 Agreement, no specific assignment of the 1992 Agreement was necessary to satisfy the requirements of the exception(8).  The district court also determined that the 1992 Agreement satisfied the second requirement of the exception that the written agreement cover all services to be provided by the physician. When the 1992 Agreement was entered into, the Group was providing only anesthesia services to the Hospital, and it was not until 1998 that the Hospital opened the Pain Clinic. However, the 1992 Agreement included language granting the Group the right to provide physician services in the event the Hospital obtained, opened, or operated another facility or location at which anesthesiology or pain management services were required or offered. The district court held that this language in the 1992 Agreement adequately described the full range of services provided by the Group to the Hospital and met the Stark exception’s second requirement.


The Third Circuit disagreed with the district court’s analysis and stated:


In this case, the only written contract in existence between the parties is one that did not, and obviously was not intended to apply to services at a non-existent facility. It was negotiated in 1992, in a context wholly different from the one that existed six years later after the opening of the Pain Clinic. . . and the opening of the Pain Clinic represented a very substantial change(9).


The 1992 Agreement did not mention the provision of space, equipment and personnel without charge, and the Third Circuit appeared to find that broad language contemplating that the parties might provide each other additional services at a future date was not enough to support an argument that these services continued to be covered by a written agreement.


The Third Circuit also disagreed with the district court’s holding that the compensation under the 1992 Agreement satisfied the “fair market value” requirement under the Stark exception. The district court held that there was a “mutuality of rights and responsibilities imposed by the 1992 agreement” and that this was evidence that the compensation to the parties was a fair market value exchange. The district court went on to conclude the following, “By definition, the terms of the contract reflect the fair market value of the benefits conferred on each party(10).”  Not surprisingly, the Third Circuit rejected this argument. The Third Circuit concluded that it is impossible for a contract entered into six years earlier to reflect current fair market rates and further dismissed the lower court’s interpretation of the definition. Instead, the Third Circuit corrected the district court and stated that “as a legal matter, a negotiated agreement between interested parties does not ‘by definition’ reflect fair market value.” The Third Circuit concluded that the arrangement between the Group and the Hospital was exactly the type of situation which the Stark Act recognizes as potentially abusive. The Hospital and the Group were in a position to generate business for each other; therefore, their negotiations were not arms’ length(11).


The Third Circuit and the district court agreed that the exclusive arrangement between a hospital and a hospital-based physician group implicated the Acts. Both Courts concluded that the reciprocal responsibilities are enough to create a financial relationship and referrals governed by the Acts. The Third Circuit specifically rejected HMA’s argument that there is no fair market value issue because the Hospital and the Group were being compensated for their services by a third-party payor. The Third Circuit also rejected HMA’s argument, based on 42 C.F.R. § 413.65(d)(2)(vi), that the arrangement did not include referrals, and that the Stark Act did not apply because the facility was provider-based and the patients treated by the Group were Hospital patients:


HMA reads this sub-section [42 C.F.R. § 413.65(d)(2)(vi)] as depriving physicians at the facility of any discretion in making referrals of their patients, i.e., as mandating referrals to the main provider. We believe HMA reads too much into this provision. While Pain Clinic patients clearly must have access to all services provided by the Hospital in order for it to be considered a part thereof, we are unpersuaded that BMAA physicians at the Clinic have been deprived of the right to refer their patients in accordance with their best medical judgment(12).


Conclusion


Even if the Third Circuit had upheld all of the district court’s holdings, the result in this case would have supported the position that arrangements between hospitals and hospital-based physicians fall within the ambit of the Acts and should be structured to qualify for an exception under the Stark Act and a safe harbor under the Anti- Kickback Act.


In addition, Kosenske makes it clear that the parties’ intent to extend an arrangement that might have originally fallen within an exception to the Acts will not necessarily continue to protect the parties from prosecution if there has been a significant change in circumstance. Compliance with the Acts requires that hospitals and physicians review and revise their contracts when an arrangement has developed into something more than the original services, or when enough time has passed that the compensation’s value may have changed. Finally, the Third Circuit decision once again reminds providers and their lawyers that a complete and well drafted paper trail is important to compliance under Stark and the Anti-Kickback Act.


_____________________________________________________________________________________
1. 554 F.3d 88, 98 (3d Cir. 2009), rev’g No. 1:05-CV-2184, 2007 WL 3490537 (M.D.Pa., Nov. 14, 2007).
2. 2007 WL 3490537
3. 31 U.S.C. §§ 3729-3733 (“False Claims Act”).
4. 42 U.S.C. § 1395nn (“Stark Act”); 42 U.S.C. § 1320a-7b (“Anti-Kickback Act”).
5. Kosenske left the Group in 2005 to establish an independent pain management practice.
6. 2007 WL 3490537 at *7, n.9.
7. 42 U.S.C. § 1395nn(e)(3)(A); see also 42 C.F.R. § 411.357(a)(1).
8. 2007 WL 3490537 at *8 & n.14 (citing Bogart v. Phase II Pasta Machines, Inc., 817 F.Supp 547, 548 (E.D.Pa. 1993) for the proposition that, under Pennsylvania law, acquiring corporations become successors if they expressly or impliedly agree to assume the liabilities of the seller or if they continue to operate the seller’s business).
9. 554 F.3d. at 96-97.
10. 2007 WL 3490537 AT *10.
11. 554 F.3d. at 97.
12. Id. at 98.


 

Stephen Zralek Speaks on “How to Protect Against a Lawsuit When Using Social Media”

Bone McAllester Norton attorney Stephen Zralek speaks to Indie Connect Magazine on issues every social media user needs to know to help protect against a lawsuit ranging from copyrights and trademarks to fair use, privacy and terms of use.


Click here for “’CYA – How to Protect Against a Lawsuit When Using Social Media’ with Stephen Zralek Esq.”


 

Video of Recent Presentation on Legal Issues in Social Media

In late January, Indie Connect asked me to speak with professionals in the music industry about the pressing legal issues in social media.  It was an honor being with them.  They were kind enough to capture a video of the presentation, which you can watch here.If you'd like me to come speak about Social Media Law with your business or group, email me at This email address is being protected from spambots. You need JavaScript enabled to view it..

Last week I spoke on social media legal issues to the Tennessee Bar Association.  Yesterday, the Nashville Business Journal selected me to be one of four panelists at an upcoming presentation on social media to the business community.  And in late March, I'll be co-presenting with Taylor Vick of Point3 Media on the collaboration needed in social media between legal and marketing; we'll be at PodCamp in Nashville.  Our title is "Kill All the Lawyers: Marketing through Social Media the Legal Way."  Sign up to attend -- it's free, and there will be incredible sessions on social media all day long.

Video of Recent Presentation on Legal Issues in Social Media

In late January, Indie Connect asked me to speak with professionals in the music industry about the pressing legal issues in social media.  It was an honor being with them.  They were kind enough to capture a video of the presentation, which you can watch here.If you'd like me to come speak about Social Media Law with your business or group, email me at This email address is being protected from spambots. You need JavaScript enabled to view it..

Last week I spoke on social media legal issues to the Tennessee Bar Association.  Yesterday, the Nashville Business Journal selected me to be one of four panelists at an upcoming presentation on social media to the business community.  And in late March, I'll be co-presenting with Taylor Vick of Point3 Media on the collaboration needed in social media between legal and marketing; we'll be at PodCamp in Nashville.  Our title is "Kill All the Lawyers: Marketing through Social Media the Legal Way."  Sign up to attend -- it's free, and there will be incredible sessions on social media all day long.

Best Practices for Businesses: Tip #1: Adopt a Social Media Policy

According to a February 14, 2011 article on Mashable.com "social media is predicted to see one of the biggest increases in online marketing spending this year."  With that in mind, businesses need to adopt and implement a social media policy.  In fact, they should implement two policies: one for all employees, and another for those employees responsible for official social media communications on behalf of the business. Some businesses may say that there's no need to have a social media policy because they aren't officially engaged in social media.  Even if a business doesn't officially participate in social media, you can bet its employees are on Facebook or Twitter.  They're definitely using social media after work, but probably using it during working hours, too.  Their unofficial use of social media makes it important for businesses to set some guidelines.Businesses should consider adopting two separate policies:1.  A social media policy for ALL employees.  Businesses should provide all employees general guidelines on certain matters, for example: keeping business matters confidential, affirming that employees should have no expectation of privacy for anything posted on a publicly-accessible site, and reminding employees that they should clarify that any opinion expressed is made in their individual capacity, not on behalf of their employer.  In light of a recent NLRB settlement with a Connecticut ambulance company who disciplined an employee for making negative comments about her employer on Facebook, businesses should be very reluctant to limit employees' right to discuss the terms of their employment (like wages and conditions).  Businesses should adopt this policy even if they do not officially engage in social media as a company.2.  A policy for employees responsible for official social media communications of the business.  Those employees responsible for communicating on behalf of the company through social media need guidelines.  They need to know what is acceptable language, how to respond to negative reviews of the business, and their responsibilities when inviting user generated content.  There are laws governing marketing to minors and regulations requiring disclosure of any material connection between a blogger and a business.  These are just a few of the items a business should consider when crafting its social media policy.

Best Practices for Businesses: Tip #1: Adopt a Social Media Policy

According to a February 14, 2011 article on Mashable.com "social media is predicted to see one of the biggest increases in online marketing spending this year."  With that in mind, businesses need to adopt and implement a social media policy.  In fact, they should implement two policies: one for all employees, and another for those employees responsible for official social media communications on behalf of the business. Some businesses may say that there's no need to have a social media policy because they aren't officially engaged in social media.  Even if a business doesn't officially participate in social media, you can bet its employees are on Facebook or Twitter.  They're definitely using social media after work, but probably using it during working hours, too.  Their unofficial use of social media makes it important for businesses to set some guidelines.Businesses should consider adopting two separate policies:1.  A social media policy for ALL employees.  Businesses should provide all employees general guidelines on certain matters, for example: keeping business matters confidential, affirming that employees should have no expectation of privacy for anything posted on a publicly-accessible site, and reminding employees that they should clarify that any opinion expressed is made in their individual capacity, not on behalf of their employer.  In light of a recent NLRB settlement with a Connecticut ambulance company who disciplined an employee for making negative comments about her employer on Facebook, businesses should be very reluctant to limit employees' right to discuss the terms of their employment (like wages and conditions).  Businesses should adopt this policy even if they do not officially engage in social media as a company.2.  A policy for employees responsible for official social media communications of the business.  Those employees responsible for communicating on behalf of the company through social media need guidelines.  They need to know what is acceptable language, how to respond to negative reviews of the business, and their responsibilities when inviting user generated content.  There are laws governing marketing to minors and regulations requiring disclosure of any material connection between a blogger and a business.  These are just a few of the items a business should consider when crafting its social media policy.

James Crumlin Interviewed in Article “Checking Candidates’ Credit: Good Idea?”

Borrowman Baker, LLC, BV Staffing + Consulting recently featured Bone McAllester Norton attorney James Crumlin in an article addressing the usefulness of credit checks when hiring new staff.


“Is the information you will receive through the credit check essential to the job you're trying to fill? If it's not absolutely clear that it is, you're better off using other forms of background checks” states James.


Click here to read “Checking Candidates’ Credit: Good Idea?”


 

Olive and Sinclair's Experience: Secrets to Success for Any Business

On January 31, 2011, I sat down to talk with Scott Witherow, owner of Olive and Sinclair Chocolate Co. , which makes the South's best chocolate.
 
Olive & Sinclair’s Exclusive with Williams-SonomaOlive & Sinclair’s Exclusive with Williams-Sonoma
Later that night, he hosted WaterCooler, a monthly networking event for young entrepreneurs that some friends and I co-founded in August 2009.  We had a jam-packed crowd of over 40 people.  Everyone, it seems, wants to learn more about this company.  (For another great write-up on the tasting, check out the recent post on Nashville Foodies' blog, or see Gwyneth Paltrow's blog "Goop," which highlighted O&S.)

Begun just 13 months ago in September 2009, Olive and Sinclair’s growth has been as viral as a posting on Facebook or Twitter.  O&S has already gained an exclusive contract with Williams-Sonoma for some of its products, and the demand for its chocolate grows every day.

We met after work at the office of O&S, which doubles as factory, research and design center, marketing headquarters, and nerve-center for all things chocolate in Nashville.  Before everyone from WaterCooler arrived, Scott offered me a sneak-preview sample of an upcoming chocolate he plans to launch in the coming weeks, something he’s collaborating on with Benton’s Smoky Mountain Country Hams.  To top it off, he offered me the perfect pairing of a  Terrapin Moo-Hoo Chocolate Milk Stout, which also has O&S chocolate in it.  Talk about a rich combination.  This was better than any of the after-school snacks I ate as a kid!

Here’s my take-away from talking with Scott, and what I think are some of the biggest secrets of his success. To be honest, I think these are some of the best keys to any modern business’s prosperity:

1. Authenticity: Olive & Sinclair offers an authentic story and product.

2. Collaboration: O&S collaborates with Terrapin, Drew’s Brews, Williams Sonoma, Bongo Java, and even non-profits like Saddle Up.

3. Embracing Social Media: Scott told me they couldn’t have had this massive growth and success without using social media. Only a 13 month old company, O&S has already grown to over 500 retail and wholesale customers.
 
O&S Red Hot Hearts for Valentine’s DayO&S Red Hot Hearts for Valentine’s Day
 
Here’s the best parts of my conversation with Scott:
Zralek: Thank you for the Terrapin Moo Hoo Chocolate Milk Stout…awesome! You were saying that social media has without questions helped your business…tell me how.

Witherow: Obviously it allows us to communicate with anybody out there that’s interested in Oliver & Sinclair. But because we’ve also been blessed with some pretty ridiculous—in a good way—articles. It’s allowed for people to actually kind of let us have a face. We were doing a lot more on Facebook and blogging before we ever even had a website. So that was a big part of it.

ZRALEK: Part of what I find in my work representing businesses as a lawyer is that, when people who are older than us (both in our 30s) are running companies, they often question the value of social media.

WITHEROW: Yeah.

ZRALEK: And to me, companies like yours are a prime example of how social media can help fuel the explosive growth you’ve experienced.

WITHEROW: I think for me and the company, I think that we all just believe in this product. We’re not…we don’t necessarily get into chocolate as like a monetary thing, you know, to make like a bazillion dollars. So it started off with just kind of loving the idea of being able to make chocolate. And then for me it was—I want to make chocolate personable and…I don’t know what this sounds like. But I think that we were successful in making it approachable and, again I don’t mean it arrogantly, but I think we do make a good product, and I think that social media is hugely important as long as you have a good product.

ZRALEK: I agree.

WITHEROW: But I think…

ZRALEK: If you’ve got nothing behind it, it doesn’t matter.

WITHEROW: Yeah, if it’s all this kind of chutes and ladders then you’re only going to go so far with it. But I think that—it’s been great even getting feedback, good and bad. I mean there have been people that have shot me a message on Facebook saying something was up or they noticed something and, like we had one customer who got a chocolate bar that wasn’t up to their standards of what they thought O&S was. And so she Facebooked me and, with the a batch number that we include on every bar, we found out where she bought it. It was poor product placement and it was such an old bar…I mean such an old bar that it shouldn’t have been on the shelf. So we had to go in and make sure that they were off the shelf and that our batch numbers are—they’re done for a reason. So that’s a great part to me.

ZRALEK: So this beer that you’re letting me taste, what’s the best chocolate that goes with it?

WITHEROW: [Handing me a sample of an upcoming release where O&S is collaborating with Benton’s Hams.] It will be a little while before it’s out.

ZRALEK: So what is that that I just tasted?

WITHEROW: It’s a smoked nib.

ZRALEK: From Benton’s Farm…they’re teaming with you?

WITHEROW: Yeah, we’re kind of teaming up for a little project. Hopefully we’ll see it through.

ZRALEK: And what’s that made of…it’s so good. Is there some bacon in there?

WITHEROW: No, [it’s just] nibs [that] are smoked by Alan down in Madisonville.

ZRALEK: So it’s more of the smoked flavor than the bacon.

WITHEROW: Yeah, there is no bacon in there really because it’s just…it’s Alan good quality smoked [flavor]…

ZRALEK: Wow it tastes good. . . .
 
Tasting of Various O&S ChocolateTasting of Various O&S Chocolate
ZRALEK: [W]hen did you decide to start this [company]?

WITHEROW: That was somewhere 2008 sometime, I think.

ZRALEK: What were you doing before Oliver & Sinclair?

WITHEROW: Just working in kitchens here in town. At the time I was a pastry chef at F. Scott’s.

ZRALEK: I didn’t know that.

WITHEROW: Yeah, I was there for about three years

ZRALEK: Did you go to culinary school somewhere?

WITHEROW: Yeah I went to Le Cordon Bleu.

ZRALEK: So you don’t recommend just anybody deciding to start their own chocolate shop? Having a little training comes in handy?

WITHEROW: Yeah but I didn’t learn how to make chocolate in culinary school. They didn’t guarantee me that. It’s more of working with chocolate. And I always try telling people it’s kind of like people that really like craft beers tend to start home brewing at some point. And I worked a lot with chocolate so I learned how to make my own chocolate. And I just started doing it.

ZRALEK: Where did you sell to first? Who was your first buyer?

WITHEROW: Mitchell’s Deli.  [Mitchell’s, the best deli in Nashville, is literally upstairs from Olive and Sinclair.]

ZRALEK: Are you selling primarily in Middle Tennessee?

WITHEROW: No, we’re nationwide and in Canada.

ZRALEK: So you started in ’08, it’s now January 2011…

WITHEROW: Well, I say we started in ’08. I started experimenting in ’08 and making test batches.

ZRALEK: So when was your first sale?

WITHEROW: September of 2009.

ZRALEK: Wow. You’re a young company.

WITHEROW: Yeah. We’re a year and three months.

ZRALEK: That’s great. . . .

ZRALEK: [O]bviously you wear a lot of hats. I assume that you [serve as] creative director, HR director, CEO, chief culinary designer and are you also making house calls to these places or do you send somebody else out there for you?

WITHEROW: We don’t call on anybody. We don’t approach someone in hopes that they’ll sell our chocolate. Maybe the first two months some of that went on, maybe three, probably two. But we really tried to slow down after that. We did some here and there during brief interims where we kind of thought it was getting quiet and you start to get kind of nervous as a new company or whatever. And you think well we need to pick up the phone and start cold-calling. But I think that we’ve all really found that just holding tight and just getting the product out there and in other ways. Yeah, that’s kind of how we do it.

ZRALEK: Let me ask you who you’ve teamed up with in terms of making chocolate. So you’ve teamed up with Benton’s Hams.

WITHEROW: Yeah, with Alan. And that’s a new something.

ZRALEK: So that’s on its way. Who else have you teamed up with if anybody?

WITHEROW: Well we teamed up with Terrapin, you know, for the Moo Hoo. And we look at all the local guys. I called the Yazoo boys [Linus Hall and his team] and made sure that [they didn’t mind] cause they’re the home team, so…
ZRALEK: Have you done anything with a coffee company yet?

WITHEROW: Yeah, we do stuff with Bob Bernstein [at Bongo Java]  in our normal coffee line. And then we do a line that’s exclusively at Williams-Sonoma [and one] that we do with my buddy Drew [of Drew’s Brew’s].  And it’s a totally different chocolate and a totally different roasted coffee. So it’s kind of a new interpretation of that.

ZRALEK: Okay, one last question…

WITHEROW: Yazoo as well. I gotta say we have teamed up with Yazoo…

ZRALEK: …and you’re drinking Yazoo as we’re talking.

WITHEROW: Yeah.

ZRALEK: So a good loyal follower.

WITHEROW: Yeah, I’m a big fan.

ZRALEK: Who do you see as your main competitor and who do you see—that’s probably a bad term—but who do you see as…is there any other chocolatier in the US that you think does a really good job like you do?

WITHEROW: I don’t want to look at them as competition. I guess in a way I kind of have to. But…

ZRALEK: Who else is a local chocolatier that you like?

WITHEROW: Well, just to…we’re not really chocolatiers. We don’t make truffles, we don’t…

ZRALEK: Chocolate company…what’s the right word?

WITHEROW: We’re chocolate makers. We import beans [then roast them and temper them].

ZRALEK: So who else does it like you do?

WITHEROW: Nobody in Tennessee.
 
Imported Cocoa Beans at O&SImported Cocoa Beans at O&S 

Copyright Stephen J. Zralek 2011 ©. All Rights Reserved.

Olive and Sinclair's Experience: Secrets to Success for Any Business

On January 31, 2011, I sat down to talk with Scott Witherow, owner of Olive and Sinclair Chocolate Co. , which makes the South's best chocolate.









Olive & Sinclair's Exclusive with Williams-Sonoma

Later that night, he hosted WaterCooler, a monthly networking event for young entrepreneurs that some friends and I co-founded in August 2009.  We had a jam-packed crowd of over 40 people.  Everyone, it seems, wants to learn more about this company.  (For another great write-up on the tasting, check out the recent post on Nashville Foodies' blog, or see Gwyneth Paltrow's blog "Goop," which highlighted O&S.)

Begun just 13 months ago in September 2009, Olive and Sinclair’s growth has been as viral as a posting on Facebook or Twitter.  O&S has already gained an exclusive contract with Williams-Sonoma for some of its products, and the demand for its chocolate grows every day.

We met after work at the office of O&S, which doubles as factory, research and design center, marketing headquarters, and nerve-center for all things chocolate in Nashville.  Before everyone from WaterCooler arrived, Scott offered me a sneak-preview sample of an upcoming chocolate he plans to launch in the coming weeks, something he’s collaborating on with Benton’s Smoky Mountain Country Hams.  To top it off, he offered me the perfect pairing of a  Terrapin Moo-Hoo Chocolate Milk Stout, which also has O&S chocolate in it.  Talk about a rich combination.  This was better than any of the after-school snacks I ate as a kid!

Here’s my take-away from talking with Scott, and what I think are some of the biggest secrets of his success. To be honest, I think these are some of the best keys to any modern business’s prosperity:

1. Authenticity: Olive & Sinclair offers an authentic story and product.

2. Collaboration: O&S collaborates with Terrapin, Drew’s Brews, Williams Sonoma, Bongo Java, and even non-profits like Saddle Up.

3. Embracing Social Media: Scott told me they couldn’t have had this massive growth and success without using social media. Only a 13 month old company, O&S has already grown to over 500 retail and wholesale customers.










O&S Red Hot Hearts for Valentine's Day

Here’s the best parts of my conversation with Scott:
Zralek: Thank you for the Terrapin Moo Hoo Chocolate Milk Stout…awesome! You were saying that social media has without questions helped your business…tell me how.

Witherow: Obviously it allows us to communicate with anybody out there that’s interested in Oliver & Sinclair. But because we’ve also been blessed with some pretty ridiculous—in a good way—articles. It’s allowed for people to actually kind of let us have a face. We were doing a lot more on Facebook and blogging before we ever even had a website. So that was a big part of it.

ZRALEK: Part of what I find in my work representing businesses as a lawyer is that, when people who are older than us (both in our 30s) are running companies, they often question the value of social media.

WITHEROW: Yeah.

ZRALEK: And to me, companies like yours are a prime example of how social media can help fuel the explosive growth you’ve experienced.

WITHEROW: I think for me and the company, I think that we all just believe in this product. We’re not…we don’t necessarily get into chocolate as like a monetary thing, you know, to make like a bazillion dollars. So it started off with just kind of loving the idea of being able to make chocolate. And then for me it was—I want to make chocolate personable and…I don’t know what this sounds like. But I think that we were successful in making it approachable and, again I don’t mean it arrogantly, but I think we do make a good product, and I think that social media is hugely important as long as you have a good product.

ZRALEK: I agree.

WITHEROW: But I think…

ZRALEK: If you’ve got nothing behind it, it doesn’t matter.

WITHEROW: Yeah, if it’s all this kind of chutes and ladders then you’re only going to go so far with it. But I think that—it’s been great even getting feedback, good and bad. I mean there have been people that have shot me a message on Facebook saying something was up or they noticed something and, like we had one customer who got a chocolate bar that wasn’t up to their standards of what they thought O&S was. And so she Facebooked me and, with the a batch number that we include on every bar, we found out where she bought it. It was poor product placement and it was such an old bar…I mean such an old bar that it shouldn’t have been on the shelf. So we had to go in and make sure that they were off the shelf and that our batch numbers are—they’re done for a reason. So that’s a great part to me.

ZRALEK: So this beer that you’re letting me taste, what’s the best chocolate that goes with it?

WITHEROW: [Handing me a sample of an upcoming release where O&S is collaborating with Benton’s Hams.] It will be a little while before it’s out.

ZRALEK: So what is that that I just tasted?

WITHEROW: It’s a smoked nib.

ZRALEK: From Benton’s Farm…they’re teaming with you?

WITHEROW: Yeah, we’re kind of teaming up for a little project. Hopefully we’ll see it through.

ZRALEK: And what’s that made of…it’s so good. Is there some bacon in there?

WITHEROW: No, [it’s just] nibs [that] are smoked by Alan down in Madisonville.

ZRALEK: So it’s more of the smoked flavor than the bacon.

WITHEROW: Yeah, there is no bacon in there really because it’s just…it’s Alan good quality smoked [flavor]…

ZRALEK: Wow it tastes good. . . .










Tasting of Various O&S Chocolate

ZRALEK: [W]hen did you decide to start this [company]?

WITHEROW: That was somewhere 2008 sometime, I think.

ZRALEK: What were you doing before Oliver & Sinclair?

WITHEROW: Just working in kitchens here in town. At the time I was a pastry chef at F. Scott’s.

ZRALEK: I didn’t know that.

WITHEROW: Yeah, I was there for about three years

ZRALEK: Did you go to culinary school somewhere?

WITHEROW: Yeah I went to Le Cordon Bleu.

ZRALEK: So you don’t recommend just anybody deciding to start their own chocolate shop? Having a little training comes in handy?

WITHEROW: Yeah but I didn’t learn how to make chocolate in culinary school. They didn’t guarantee me that. It’s more of working with chocolate. And I always try telling people it’s kind of like people that really like craft beers tend to start home brewing at some point. And I worked a lot with chocolate so I learned how to make my own chocolate. And I just started doing it.

ZRALEK: Where did you sell to first? Who was your first buyer?

WITHEROW: Mitchell’s Deli.  [Mitchell’s, the best deli in Nashville, is literally upstairs from Olive and Sinclair.]

ZRALEK: Are you selling primarily in Middle Tennessee?

WITHEROW: No, we’re nationwide and in Canada.

ZRALEK: So you started in ’08, it’s now January 2011…

WITHEROW: Well, I say we started in ’08. I started experimenting in ’08 and making test batches.

ZRALEK: So when was your first sale?

WITHEROW: September of 2009.

ZRALEK: Wow. You’re a young company.

WITHEROW: Yeah. We’re a year and three months.

ZRALEK: That’s great. . . .

ZRALEK: [O]bviously you wear a lot of hats. I assume that you [serve as] creative director, HR director, CEO, chief culinary designer and are you also making house calls to these places or do you send somebody else out there for you?

WITHEROW: We don’t call on anybody. We don’t approach someone in hopes that they’ll sell our chocolate. Maybe the first two months some of that went on, maybe three, probably two. But we really tried to slow down after that. We did some here and there during brief interims where we kind of thought it was getting quiet and you start to get kind of nervous as a new company or whatever. And you think well we need to pick up the phone and start cold-calling. But I think that we’ve all really found that just holding tight and just getting the product out there and in other ways. Yeah, that’s kind of how we do it.

ZRALEK: Let me ask you who you’ve teamed up with in terms of making chocolate. So you’ve teamed up with Benton’s Hams.

WITHEROW: Yeah, with Alan. And that’s a new something.

ZRALEK: So that’s on its way. Who else have you teamed up with if anybody?

WITHEROW: Well we teamed up with Terrapin, you know, for the Moo Hoo. And we look at all the local guys. I called the Yazoo boys [Linus Hall and his team] and made sure that [they didn’t mind] cause they’re the home team, so…
ZRALEK: Have you done anything with a coffee company yet?

WITHEROW: Yeah, we do stuff with Bob Bernstein [at Bongo Java]  in our normal coffee line. And then we do a line that’s exclusively at Williams-Sonoma [and one] that we do with my buddy Drew [of Drew’s Brew’s].  And it’s a totally different chocolate and a totally different roasted coffee. So it’s kind of a new interpretation of that.

ZRALEK: Okay, one last question…

WITHEROW: Yazoo as well. I gotta say we have teamed up with Yazoo…

ZRALEK: …and you’re drinking Yazoo as we’re talking.

WITHEROW: Yeah.

ZRALEK: So a good loyal follower.

WITHEROW: Yeah, I’m a big fan.

ZRALEK: Who do you see as your main competitor and who do you see—that’s probably a bad term—but who do you see as…is there any other chocolatier in the US that you think does a really good job like you do?

WITHEROW: I don’t want to look at them as competition. I guess in a way I kind of have to. But…

ZRALEK: Who else is a local chocolatier that you like?

WITHEROW: Well, just to…we’re not really chocolatiers. We don’t make truffles, we don’t…

ZRALEK: Chocolate company…what’s the right word?

WITHEROW: We’re chocolate makers. We import beans [then roast them and temper them].

ZRALEK: So who else does it like you do?

WITHEROW: Nobody in Tennessee.










Imported Cocoa Beans at O&S

***********************************

Copyright Stephen J. Zralek 2011 ©. All Rights Reserved.

Anonymous Online Defamation: Fighting Back to Protect Yourself & Your Business



With the explosion of social media, businesses and individuals are becoming daily victims of anonymous online defamation. With tools like Twitter and Topix, now everyone has a megaphone to say whatever they want to the widest possible audience. Many say this is freedom of speech at its best. But as with anything, this freedom comes at a high price.

Putting bloggers on equal footing with traditional journalism has many upsides, but now we are beginning to see the downsides, as well. Online reviews of restaurants and movies, for example, are often helpful. Generally, those reviews state opinions rather than facts, such as: “This movie was terrible,” or “This restaurant has the best food.” Opinion cannot constitute defamation. But websites today also allow patients to review doctors, students to review teachers, and customers to review everything from iPads to car repair service. When these reviews include untrue facts, they may constitute defamation. For example, a review expressing a diner’s opinion about how food tastes is mere opinion and does not constitute defamation, but a review claiming that a restaurant had a health department rating of 65 when the actual rating was 97 is an untrue fact that likely could serve as the basis of a defamation claim.

Sometimes the negative comments are minor and the best advice is to brush them off. But other times the comments are serious and deserve a stronger response, such as when they indicate you committed scandalous or criminal conduct, that you are untrustworthy, or that you have committed malpractice. These comments can damage your reputation and harm you economically if they steer business away from you. When that happens, especially if it happens more than once from the same person, you may have grounds to assert a claim of business interference, and not just defamation.

One of the biggest challenges with the Web 2.0 is the fact that most online reviews and comments are made anonymously. If that’s the case, how can you protect yourself? How can you even find out the identity of the poster?

Fortunately, victims are not without recourse. Most people think that they can say whatever they want online and that no one will ever know who said it. This is incorrect. There are ways to find out the identity of online posters, but you need to act quickly since Internet service providers (ISPs) often destroy records of online activity after 180 days.

If you find that you are the victim of disparaging comments made online, you won’t get very far suing the website that hosts the comments (known as user generated comment or “UGC”). Hosting websites are immune from liability related to UGC under Section 230 of the Communications Decency Act. But you can have your attorney send a cease & desist letter to the website demanding that the comments be removed. Sometimes websites comply; other times their terms & conditions do not allow them to comply without a court order.

When you want to find the identity of the anonymous poster, and not just have the comments removed, you can also file a “John Doe” lawsuit against unknown defendants, empowering you to subpoena the host website for the IP address of the person posting the comments. From there, you can determine the ISP. Because the Cable Communications Policy Act of 1984 prohibits ISPs from disclosing personally identifying information about Internet users to non-governmental entities without a court order, the next step is to obtain a court order allowing you to subpoena the ISP for the identity of the poster. Recently, a court in Nashville refused to allow an anonymous poster to hide his identity, and allowed the victim to move forward with its subpoena of the ISP.

Finally, responding to anonymous online defamation often requires a multi-faceted approach. Recently, one of my business clients found several comments online that accused its employee of criminal and scandalous conduct. Given the context, the client needed legal advice on not just the social media issues, above, but also with employment law issues. If defamatory comments are made that threaten to damage your reputation and your business, don’t just sit back and take it. Instead, consider your options in fighting back.
© Stephen J. Zralek 2011

10th Annual Fellowship Breakfast Honoring Dr. Martin Luther King, Jr.

On Monday, January 17, 2011, over 450 people joined Bone McAllester Norton at our tenth annual Fellowship Breakfast to celebrate the memory and legacy of Dr. Martin Luther King, Jr.


 The celebration was held at the Hutton Hotel in Nashville and featured the Fisk Jubilee Singers as our entertainment.


Bone McAllester Norton's annual Fellowship Breakfast is the firm's most honored tradition.  We founded Bone McAllester Norton in 2002 as a new firm, to put into practice a set of core principles and values to which we are unfailingly committed. We adopted the phrase “Law – Life – Passion” as a shorthand way of expressing those principles. One value about which the firm is passionate is diversity.  We believe that we have created a law firm that reflects the diversity of our clients – people of different idealistic, socioeconomic, educational, ethnic, racial and religious backgrounds - and which reflects the core commitments firm founders Charles W. Bone and Stacey A. Garrett made on the day the firm was created.  Rather than simply closing our offices on the MLK holiday, we decided to honor Dr. King’s memory by inviting a few family members, friends and clients to join us for breakfast.  We spend this time together to reflect upon Dr. King, his legacy, and the contributions he made to our world and to each of us personally.


This year, we were honored to have the two time Grammy-Nominated Fisk Jubilee Singers as our entertainment. In 1871, the original Jubilee Singers introduced "slave songs" to the world. Today, the Fisk Jubilee Singers continue the tradition of singing the Negro spiritual around the world sharing this rich culture while preserving this unique music.


Following the Fisk Jubilee Singers, we opened the floor and encouraged comments by anyone who wished to talk about Dr. King's legacy.  Previous Fellowship Breakfasts have featured prominent civil rights champions Dr. E. Rip Patton, Diane Nash, John Seigenthaler and Mike Cody.


We invite you to view:
About the Fisk Jubilee Singers
Video of the Life and Legacy of Dr. King
Slideshow of our 2011 Fellowship Breakfast


 

Paz Haynes Participates in Nationally Recognized Law Day Program

To commemorate Law Day in 2010, the Nashville Bar Association (NBA) produced a program commemorating the 50th Anniversary of the Nashville Student Movement's lunch counter Sit-Ins.


  These Sit-Ins were a seminal event in the advancement of the Nashville community, and the civil rights movement nationwide.  The NBA's presentation honored the "Counsel for the Children" -- the local lawyers who defended the student demonstrators during the Sit-Ins -- with a mock trial involving several distinguished members of the Nashville bench and bar.

Paz Haynes was one of the producers of the program, and served as moderator for a panel discussion after the mock trial.  Two of the "Counsel for the Children," retired Tennessee Supreme Court justice Adolpho A. Birch and trial lawyer George E. ("Citizen") Barrett, shared their experiences and reflections on the Sit-Ins, the trials, and the lawyers and judges involved in these historic events.  The event was filmed to be shared and enjoyed by generations of lawyers.  The "Counsel for the Children" program recently received national acclaim when the NBA received a 2010 Law Day Outstanding Activity Award from the American Bar Association.

Bone McAllester Norton was a sponsor of the "Counsel for the Children" program.  "I was honored to participate in such a memorable and important program for the Nashville Bar,” said Paz. “Through its sponsorship of 'Counsel for the Children', our Firm has ensured that the program will be preserved and appreciated for years to come."


 

Will Cheek Quoted on Whiskey Distilleries in Tennessee

In 2010, Legislature passed a law allowing 43 Tennessee counties to manufacture whiskey.  This law was passed in hopes that new distilleries will work in conjunction with the established brands to create a draw for tourists to Tennessee.


Will Cheek told Westview, "It was seen as being a really strong barrier to starting up, particularly for a microdistillery where you really don't want to spend that much money and you don't have that many people,"


"Any changes to the state liquor laws are going to be very difficult," he said.


"What is happening now really lays the foundation for a whiskey trail that is similar to the bourbon trail that Kentucky has," Cheek said. "The bourbon trail is fairly successful, but what the bourbon trail lacks is an international brand. We know Maker's Mark and we know Wild Turkey, but those aren't big brands in Europe or China or Japan.”


"We've got Jack Daniel's and that might be the best-known brand of spirits worldwide. We have a real marquee that draws people, and if we could have a number of micro-distilleries that are available for touring and marketed properly, it could be really neat."


This story was picked up and repeated in papers like The Leaf Chronicle, The Daily Herald and other papers by the Associated Press.


 

"Anonymous Online Defamation: Fighting Back to Protect Yourself and Your Business"

With the explosion of social media, businesses and individuals are becoming daily victims of anonymous online defamation.

With tools like Twitter and Topix, now everyone has a megaphone to say whatever they want to the widest possible audience.  Many say this is freedom of speech at its best.  But as with anything, this freedom comes at a high price.

Putting bloggers on equal footing with traditional journalism has many upsides, but now we are beginning to see the downsides, as well. Online reviews of restaurants and movies, for example, are often helpful. Generally, those reviews state opinions rather than facts, such as: “This movie was terrible,” or “This restaurant has the best food.”  Opinion cannot constitute defamation. But websites today also allow patients to review doctors, students to review teachers, and customers to review everything from iPads to car repair service. When these reviews include untrue facts, they may constitute defamation.  For example, a review expressing a diner’s opinion about how food tastes is mere opinion and does not constitute defamation, but a review claiming that a restaurant had a health department rating of 65 when the actual rating was 97 is an untrue fact that likely could serve as the basis of a defamation claim.

Sometimes the negative comments are minor and the best advice is to brush them off.  But other times the comments are serious and deserve a stronger response, such as when they indicate you committed scandalous or criminal conduct, that you are untrustworthy, or that you have committed malpractice. These comments can damage your reputation and harm you economically if they steer business away from you.  When that happens, especially if it happens more than once from the same person, you may have grounds to assert a claim of business interference, and not just defamation.

One of the biggest challenges with the Web 2.0 is the fact that most online reviews and comments are made anonymously.  If that’s the case, how can you protect yourself?  How can you even find out the identity of the poster?

Fortunately, victims are not without recourse.  Most people think that they can say whatever they want online and that no one will ever know who said it.  This is incorrect.  There are ways to find out the identity of online posters, but you need to act quickly since Internet service providers (ISPs) often destroy records of online activity after 180 days.

If you find that you are the victim of disparaging comments made online, you won’t get very far suing the website that hosts the comments (known as user generated comment or “UGC”).  Hosting websites are immune from liability related to UGC under Section 230 of the Communications Decency Act.  But you can have your attorney send a cease and desist letter to the website demanding that the comments be removed.  Sometimes websites comply; other times their terms and conditions do not allow them to comply without a court order.

When you want to find the identity of the anonymous poster, and not just have the comments removed, you can also file a “John Doe” lawsuit against unknown defendants, empowering you to subpoena the host website for the IP address of the person posting the comments.  From there, you can determine the ISP.  Because the Cable Communications Policy Act of 1984 prohibits ISPs from disclosing personally identifying information about Internet users to non-governmental entities without a court order, the next step is to obtain a court order allowing you to subpoena the ISP for the identity of the poster.  Recently, a court in Nashville refused to allow an anonymous poster to hide his identity, and allowed the victim to move forward with its subpoena of the ISP.

Finally, responding to anonymous online defamation often requires a multi-faceted approach. Recently, one of my business clients found several comments online that accused its employee of criminal and scandalous conduct. Given the context, the client needed legal advice on not just the social media issues, above, but also with employment law issues.  If defamatory comments are made that threaten to damage your reputation and your business, don’t just sit back and take it.  Instead, consider your options in fighting back.


 

Marty Cook Goes “Back to School”

Marty Cook and Bone McAllester Norton have partnered with Nannie Berry Elementary School in Hendersonville, Tennessee and our client “COMPASS” (Community Outreach Making Partners At Sumner Schools) for several years.


 COMPASS’ emphasis is to develop partnerships between the business community and Sumner County Public Schools to improve student success.


Marty served as President of the COMPASS Board of Directors and has led Bone McAllester Norton’s involvement at Nannie Berry Elementary School in many different ways. Recently, Bone McAllester Norton participated in the “School Back Pack” program which provided food for less fortunate students at Nannie Berry Elementary over the holidays.  Bone McAllester Norton has also led COMPASS’ school supply drive at the start of each school year and provided tutors in classrooms. We are pleased to have been involved in several incentive programs for the students at Nannie Berry, where prizes such as bikes and buckets of gifts were presented to students who exhibited excellent character. Bone McAllester Norton provides and prepares academic certificates at the end of the school year acknowledging students for their accomplishments over the past year. Marty has been influential in encouraging other businesses in the Hendersonville area to partner in these endeavors.


 

David Anthony’s Blog Featured in the Nashville Business Journal

David Anthony and his legal blog, Creditor’s Rights 101, were featured in the December 24, 2010 edition of the Nashville Business Journal.


 The article, titled “Standing Out on the Web,” discussed the ways companies are using the internet and, in particular, blogs to promote their services and skills.


Mr. Anthony’s blog provides readers with a discussion and explanation of news and trends related to the collection of debt.


Click to read the Nashville Business Journal’s article, “Standing Out on the Web.”  (subscription required)


 

Relaunching TheExpressive Blog to Focus on the Entrepreneurial & Community Spirit of Nashville

What a great Sunday!  Big white flakes of snow are falling outside my window, the Christmas tree is lit and our baby is napping upstairs.  I mention the baby napping for two reasons: first, it's amazing having a baby in my life; and second, it gives my wife and me a few minutes off.

In these few minutes before our baby wakes up, I'm excited to tell you that TheExpressive is re-launching.  Instead of focusing on the law, this blog will highlight the incredible entrepreneurial and community spirit we have in Nashville.

People hear "Nashville" and they think Grand Old Opry, HCA, Vanderbilt/Fisk/Belmont or the Titans.  (Well, they think of the Titans when they're playing well, which isn't lately.)  But that talent is in so many other places, too.  It's in restaurants like Burger Up, the coffee beans of Drew's Brews, the books by Alice Randall, and the businesses like Emma and Griffin Technology.  That spirit is also in our non-profits like Conexion Americas and Community Food Advocates; in our art galleries like Zeitgeist; and our drop-in clinics like United Neighborhood Health Services.

A year and a half a go, I started something called WaterCooler with a friend, Renata Soto.  We meet once a month to hear from young entrepreneurs.  We've had a lot of fun, and met some inspiring people: Chris Ferrell of SouthComm spoke on the changing media landscape; Nashville Captial Network's Sid Chambless spoke on the availability of venture capital funds; Laura Creekmore spoke on social media; Linus Hall gave us a tour of Yazoo Brewery; and Becca Stevens introduced us to two women who graduated from her program at Magdalene House after surviving on the streets as prostitutes.

Tomorrow, we're headed to Olive & Sinclair to tour Nashville's own chocolate factory and hear the story of founder/chocolatier Scott Witherow.  Olive & Sinclair is a great example of all of the above: people with a vision who take a risk, enjoy great success, and benefit their communities in many different ways.  Their stories are inspiring to me and I hope you find them inspiring, too.

Stories like these are the ones I plan to highlight in this blog.  I hope to feature a different entrepreneur or community leader each week.  Hopefully, by finding what inspired and motivated them, we can learn something to apply to our own jobs, neighborhoods and community groups.

I hear the baby -- she's awake and I've had my break.  Back to my most important job and favorite pastime... fatherhood.

Charles Bone Named One of Sumner County’s Top 30 Most Influential People

Bone McAllester Norton is proud to announce that Charles Bone has been named one of Sumner’s 2010 Most Influential People.


Featured in the Tennessean, this list “reflects the diversity and variety of those who stand out as genuine movers and shakers in and around Sumner.”  No vote or survey was taken rather the editorial staff of The Hendersonville Star News, The News Examiner and Sumner A.M. selected these influential people that “one, either live in or work in, (or both), Sumer County and, two, that what they do touches the lives of many others.”


Charles Bone is currently active with the Transit Alliance of Middle Tennessee and the Tennessee Higher Education Commission, as well as many other civic and charitable organizations.


Bone McAllester Norton congratulates Charles Bone on this well-deserved recognition.