In The News

“Safety of Patrons Is Real Question”

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


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


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


It is pretty simple.


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


Permit holders minimally trained


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


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


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


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


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


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


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


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


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


 

Guns in Licensed Establishments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bars Legalized

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

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

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

Premier Tourist Resorts Gain Liquor Licenses

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

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

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

Alcoholic Beverage Group Provides Update on New Liquor Laws

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

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

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

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

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

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


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


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


From the article:


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


Click here to read more.


 

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

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


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

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

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

 

ABC to Live for One More Year

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

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

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

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


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


 

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

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


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


 

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.