A publication of the
Arkansas Bar Association
Inside: ArkBar Judges & Lawyer Legislators Trial by Jury Generations of Attorneys
Vol. 48, No. 1,Winter 2013 online at www.arkbar.com
We’ll focus on your technology. In these changing times, your technology investment needs to help you respond to your client’s requests, protect you and your clients from the risks associated with technology and save you money. Some of our clients found that just the opposite was occurring because their technology team was using yesterday’s technology. Mainstream can improve that situation by providing the right solutions for your problems. Our team of experts understands how to: • Leverage technology to support, simplify and protect your practice; • Manage your technology infrastructure from backing up your information to hosting your critical technology assets; • Free you to focus on your practice without worry for your technology investment.
325 West Capitol Avenue, 2nd Floor, Little Rock, AR 72201 (501) 217-9490 • (501) 217-9715 Fax • Mainstream-Tech.com
YOUR CLOUD STARTS HERE
PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins EDITORIAL BOARD Mary Beth Matthews, Chair Judge Wiley A. Branton, Jr. Keith L. Chrestman Brandon J. Harrison Anton Leo Janik, Jr. Jim L. Julian Philip E. Kaplan Drake Mann Gordon S. Rather, Jr. David H. Williams Teresa M. Wineland OFFICERS President Charles L. Harwell Board of Governors Chair David R. Matthews President-Elect Jim Simpson Immediate Past President Tom D. Womack Secretary F. Thomas Curry Treasurer William A. Martin Assistant Treasurer Shaneen K. Sloan Parliamentarian Marie-Bernarde Miller Young Lawyers Section Chair Vicki S. Vasser President-Elect Designee Brian H. Ratcliff BOARD OF GOVERNORS Seth T. Bickett Earl Buddy Chaddick, Jr. Richard C. Downing Frances S. Fendler Amy Freedman Buck C. Gibson Amy C. Grimes Denise R. Hoggard Don Hollingsworth Jeffrey Ellis McKinley Wade T. Naramore Laura E. Partlow Jerry D. Patterson Troy A. Price John C. Riedel Brian M. Rosenthal Brock Showalter Jay Shue, Jr. Shaneen K. Sloan Danyelle J. Walker Dennis Zolper
LIAISON MEMBERS Thomas A. Daily Harry Truman Moore Judge Robert Edwards Jack A. McNulty Karen K. Hutchins Judge Mark A. Pate Paul W. Keith Richard L. Ramsay The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, email@example.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2013, Arkansas Bar Association. All rights reserved.
Lawyer Vol. 48, No. 1
8 Meet the New Arkansas Supreme Court and Arkansas Court of Appeals Judges 10 Meet the 2013 Arkansas Bar Association Lawyer Legislators A Return to Trials: Implementing Effective Short, Summary, and Expedited Civil Action Programs
15 The Case for a More Efficient Option for Trial by Jury in Civil Cases Steven W. Quattlebaum 16 A Return to Trials: Implementing Effective Short, Summary, and Expedited Civil Action Programs IAALS, the Institute for the Advancement of the American Legal System
22 Even Courts Are Going Green: How to Protect Yourself From Greenwashing Litigation Joesph W. Price II, Bradley C. Dowler and F. Clark Jennings 26 JOBS Act Seeks to Ease Restrictions on Access to Capital for Small and Medium-Sized Businesses David McDaniel and Geoffrey Neal
36 Justice Freeman Walker Comptonâ€”Three Time Justice J.W. Looney
Contents Continued on Page 2
Lawyer The Arkansas
in this issue
Vol. 48, No. 1
115th Annual Meeting
A Call to Leadership
2012-2013 Leadership Academy
Board of Governors Report
2012-2013 Board of Governors
Member Spotlight–Generations of Attorneys
2012 Speakers and Planners
Judicial Disciplinary Actions
Attorney Disciplinary Actions
Arkansas Bar Foundation Memorials and Honorarium
columns President’s Report
Charles L. Harwell
Young Lawyers Section Report
Vicki S. Vasser
Your Name in Print The Arkansas
A publication of the
Arkansas Bar Association
Vol. 48, No. 1,Winter 2013 online at www.arkbar.com
For information on submitting articles for publication, go to www.arkbar.com Publications/AR_Lawyer_magazine.aspx
Inside: ArkBar Judges & Lawyer Legislators Trial by Jury Generations of Attorneys
or email firstname.lastname@example.org
Arkansas Bar Association
2224 Cottondale Lane Little Rock, Arkansas 72202
HOUSE OF DELEGATES Delegate District A-1: Jon B. Comstock, Andrew Curry, Leon Jones, Kristin Pawlik, William J. Trentham Delegate District A-2: Chad L. Atwell, Stan B. Baker, Suzanne Clark, Casey D. Copeland, Boyce R. Davis, Amy M. Driver, Matthew L. Fryar, Tina M. Hodne, Joshua D. McFadden, Curtis L. Nebben, W. Marshall Prettyman, Jr. Delegate District A-3: Aubrey Barr, C. Michael Daily, Shannon Foster, Lisa-Marie France Norris, Colby Roe Delegate District A-4: Erik P. Danielson Delegate District A-5: Wade Williams Delegate District A-6: Jonathan E. Kelley Delegate District A-7: Michael E. Kelly Delegate District B: John T. Adams, Amber Wilson Bagley, James Paul Beachboard, Eric Scott Bell, M. Stephen Bingham, Phillip M. Brick, Jr., Franki Coulter, Grant M. Cox, Jason Earley, Khayyam Eddings, Stephen R. Giles, Christian Harris, Stephanie M. Harris, Jeffrey W. Hatfield, James E. Hathaway III, Justin Hinton, Matthew House, Paula Juels Jones, William C. Mann III, Patrick W. McAlpine, Cliff McKinney II, Whitney F. Moore, Chad Pekron, Gwendolyn L. Rucker, Shaneen K. Sloan, Aaron L. Squyres, Adam Wells, Thomas G. Williams, Dan C. Young, Kimberly Young Delegate District C-1: Roger Colbert Delegate District C-2: Michelle Huff Delegate District C-3: Keith L. Chrestman, Roger McNeil, G. S. Brant Perkins Delegate District C-4: Jobi Teague Delegate District C-5: Albert J. Thomas III, A. Jan Thomas, Jr., William “Zac” White Delegate District C-6: Charles E. Clawson III, Andrea Woods Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Paul T. Bennett, Jackie B. Harris, Jessica Yarbrough Delegate District C-9: John R. Byrd, Jr., Timothy R. Leonard, Leslie Jo Ligon Delegate District C-10: Clark D. Arnold, George M. Matteson Delegate District C-11: J. Philip McCorkle, Rodney P. Moore Delegate District C-12: J. Joshua Drake, Wade T. Naramore Delegate District C-13: Cecilia Ashcraft, Sam E. Gibson Law Student Representatives: John Crabtree, University of Arkansas School of Law; Matt Pedicini, UALR William H. Bowen School of Law
The Arkansas Lawyer
At the end of the day...
Who’s Really Watching Your Firm’s 401(k)? And, what is it costing you?
Does your firm’s 401(k) feature no out-of-pocket fees? Does your firm’s 401(k) include professional investment fiduciary services? Is your firm’s 401(k) subject to quarterly reviews by an independent board of directors? If you answered no to any of these questions, contact the ABA Retirement Funds Program by phone (866) 812-1510, on the web at www.abaretirement.com or by email email@example.com to learn how we keep a close watch over your 401(k).
Who’s Watching Your Firm’s 401(k)? The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (866) 812-1510, by visiting the website of the ABA Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the Arkansas Bar Association as a member benefit. However, this does not constitute an offer to purchase, and is in no way a recommendation with respect to, any security that is available through the Program. C12-0201-010 (2/12) Vol. 48 No. 1/Winter 2013 The Arkansas Lawyer 3
HOT SPRINGS CONVENTION CENTER
ABOTA MASTERS IN TRIAL
Family Law, CNA Risk Management, Trial, Business, Technology and Veterans Law
The American Board of Trial Advocates will show how experienced trial lawyers conduct a trial.
The ArkBar’s Largest Annual Event
2013 JUNE 12-15th
Move Over Johnnie Cochran, Jose Baez is here! High profile lawyer to speak on Friday The same lawyer that captivated America Baez and the jury of the Casey Anthony trial will share his incredible journey from dropping out of high school in the 9th grade to winning the social media trial of the century.
Attorneys and Judges Encouraged to Attend ArkBar’s Annual Meeting expects good turnout again this year
Arkansas Bar Association President Charles Harwell and Annual Meeting Chair Brian Clary invite all attorneys and judges to attend the Association’s Annual Meeting. Hot Springs in June is a vacation destination and families are encouraged to make a memorable event of “going to the Bar meeting.” It is the place to see your friends that you may only get to see this time of year as well as make some new friends.
Online Registration Begins February 25, 2013 www.arkbar.com 4
The Arkansas Lawyer
Wanted: Justice For All Justice Leagues around the state unite to ensure everyone gets a fair shake at ArkBar’s 115th Annual Meeting. Hot Springs, Arkansas, is once again the place to be for attorneys and judges June 12-15, 2013. The Arkansas Bar Association will hold its Joint Meeting with the Arkansas Judicial Council over four days filled with continuing legal education, receptions, award ceremonies, and entertainment. The meetings take place
The Hot Springs Convention Center is the place to be June 12-15, 2013. at the Hot Springs Convention Center with some afternoon receptions at the Ar-
lington Hotel. The meetings have taken place each year since 1898 and continue
to grow upon traditions while developing new ones. Nationally -recognized speakers including many of Arkansas’s own experts will present topics important to the practice of law in today’s world. Experienced trial lawyers from across the nation will conduct a daylong trial demonstration with panel discussions.
by Charles L. Harwell
The “R” Word Why do some in our society have to build themselves up at the expense of others? Where is the intellectual challenge in making fun of those who are not able to fend for themselves? Is it really sporting to use crude and unacceptable language to describe another human? Calling someone an adjective like “retard” harkens back to immature behavior on the grade school playground. And despite the childhood rhyme declaring “names” will not hurt us, they do. I submit the whole of humanity suffers with the insult of one of us. Or it should. Back in October during one of the presidential debates, conservative commentator Ann Coulter in a tweet referred to President Obama as a retard. She apparently believed her word choice was cute or witty. To the contrary, it was ignorant, disrespectful and hurtful to a great number of people. In reaction to Coulter’s social media post, a great response was written by John Franklin Stevens, a native Arkansan, who has Down’s Syndrome and is a national spokesperson for Special Olympics. I commend his letter to you, so you can judge for yourself who demonstrated the better communication skills, Coulter or Stephens. http://specialolympicsblog.wordpress.com/2012/10/23/ an-open-letter-to-ann-coulter/ Another response was written by blogger Ellen Siedman, mother of a special needs child. “Many people think that using the word ‘retard’ to slam someone is fine—as long as it’s not actually directed at a person with disability... What people don’t understand is that every time someone uses the word ‘retard,’ they perpetuate the idea that people with intellectual disability, like my son, Max, are stupid or losers....my son shouldn’t be defined by ghosts of stereotypes past. He has enough to contend with in this world. Use. Another. Word.” Lest it be thought that one side of the political spectrum has a corner on making ignorant remarks, back in 2009, Rahm Emanuel, then the President’s Chief of Staff, labeled as “retarded” the liberal activists dogging the administration over the slow pace of health care reform.
For that poor choice of words, Emanuel drew criticism from Sarah Palin, herself the mother of a special needs child, who likened its offensiveness to that of the N-Word. Emanuel, unlike Coulter, acknowledged his lack of sensitivity and even took the pledge which began circulating that spring on www.r-word.org not to use the r-word. Congress banned the use of the words “retard” and “retardation” in 2010 in federal health, education and labor laws in favor of using the words “intellectual disability.” The American Psychiatric Association also plans to replace the term “mental retardation” with “intellectual development disorder” in the fifth version of The Diagnostic and Statistical Manual of Mental Disorders, to be published in 2013. Arkansas has joined the vast majority of states removing outdated labels from our statutes and rules. In 2007, these words were removed from our statutes: disabled, developmentally disabled, mentally disabled, mentally ill, mentally retarded, handicapped, cripple, and crippled. The words in the original act bear repeating: “The General Assembly recognizes that language used in reference to individuals with disabilities shapes and reflects society’s attitudes toward people with disabilities. Many of the terms currently used demean the humanity and natural condition of having a disability. Certain terms are demeaning and create an invisible barrier to inclusion as equal community members. The General Assembly finds it necessary to clarify preferred language for new and revised laws by requiring the use of terminology that puts the person before the disability.” Act 515 of 2007. Although we each express frustration about our Legislature, I applaud this tiny bill that speaks so loudly. Unfortunately, its message is not widely heard. Speaking of the Legislature, the 89th General Assembly has officially opened. Change is part of that process. Your Association, through its full time lobbyist Jack McNulty and its hard-working Legislation
Committee will closely monitor every bill introduced this session. We may need your help with the dialogue we will have with legislators as we focus on bills which impact the practice of law. The words used to describe various disabilities has evolved. Societal attitudes play out in words. Unfortunately, while our vernacular has changed, and most would say for the better, the relative worth that society has assigned to all of those with disabilities remains too low. Language is but one manner in which we value those challenged by physical and mental disabilities. Each life, regardless of disability, has a contribution to make to the fabric of humankind. Yet, we have set our expectations too low. In my experience, the best programs serving those with disabilities break the pattern of warehousing people. In those programs, rather than artificially low expectations, each person is encouraged to stretch to maximize their goals. It is an individualized, “can-do” approach, not an unimaginative cookie-cutter. The ultimate goal is integration into community in housing, work and socialization. It can make a tremendous difference in the lives of everyone involved, disabled and non-disabled. Folks with disabilities do not want our pity. They seek our understanding, patience, and aversion to stereotypes. They do not want tired assumptions or quick judgments made about them. They seek not a “handout” but a “hand up” and fair opportunities to demonstrate their worth as individuals contributing to society. They need help. They have legal problems too. I hope that our Association will publish a Disabilities Handbook to aid our members in helping others. But even without that resource, you can make a difference by supporting those agencies serving the disabled community in your area with your pro bono time, volunteer energy and money. You will be uplifted when you do. Finally, let’s each be our own word police, always choosing our words with care. n
Vol. 48 No. 1/Winter 2013 The Arkansas Lawyer
A Call to Leadership in the Arkansas Bar Association N o m i n a t i n g
P e t i t i o n s
D u e
A p r i l
2 0 1 3
Sample petitions are available from the Association’s office or website. The petitions, current members of both bodies, and district maps are listed on the Association’s website at www.arkbar.com under the Board of Governors and House of Delegates tabs.
Board of Governors District County(ies) 1 Governor to be elected 1-BG Clay, Craighead, Greene, Mississippi 8-BG Washington 10-BG Sebastian 12-BG Pulaski 17-BG Pulaski 18-BG Pulaski All are Three-Year Terms Qualifications for Board of Governors The attorney must reside in the geographical area for the Governor’s position and must have served one year in the House of Delegates or must have been an Association member for seven years by the time of joining the Board of Governors in June. Election Process for Governors and Delegates For both governors & delegates, a nomination petition, signed by three current members of the Association who reside in the geographical area of election, must be filed with the Secretary at the Arkansas Bar Association, 2224 Cottondale Lane, Little Rock, AR 72202, no later than April 1, 2013.
Nominating petitions due by April 1, 2013
Chair-Elect, Secretary/Treasurer & District Representatives The YLS Officers shall be elected by the majority of those present and voting at the Annual Meeting of the Young Lawyers Section, which will occur during the Association’s June Annual Meeting. Chair-Elect elected from District B (one-year term) Secretary/Treasurer elected from any District (one-year term) Representative District A (three-year term) Representative District B (three-year term) Representative District C (three-year term) 6
The Arkansas Lawyer
House of Delegates District County(ies) No. of Delegates to be elected A-1 Benton 2 Delegates A-2 Washington 4 Delegates A-3 Crawford, Franklin, 1 Delegates Johnson, Sebastian A-7 Baxter, Fulton, Izard, Marion, 1 Delegate Searcy, Stone B Pulaski 10 Delegates C-3 Craighead 1 Delegate C-5 Cleburne, Crittenden, Cross, 1 Delegate St. Francis, White, Woodruff C-6 Faulkner, Van Buren 1 Delegate C-8 Grant, Jefferson, Arkansas, Lincoln, 1 Delegate Phillips, Lee C-9 Ashley, Bradley, Calhoun, Chicot, 1 Delegate Cleveland, Columbia, Dallas, Desha, Drew, Ouachita, Union C-10 Miller 1 Delegate C-12 Garland 1 Delegate C-13 Saline, Hot Spring 1 Delegate All are Three-Year Terms Qualifications for House of Delegates The attorney must be an Association member residing within the Delegate District as defined by Article XVI Section 2 of the Association’s Constitution.
Secretary & Treasurer Article III, Section 7 of the Association’s Constitution provides for an annual election of the positions of a Secretary and a Treasurer. Any member interested in serving in either of these capacities should contact Karen K. Hutchins at 501-375-4606.
American Bar Association Delegate One of the two ABA Delegate positions is open for election for a two-year term. The Delegate from this Association to the House of Delegates of the American Bar Association shall be nominated by petition signed by at least 75 Association members with at least 25 voting members from each of the three state bar districts. The nominating petitions must be filed with the Secretary at the Arkansas Bar Association, 2224 Cottondale Lane, Little Rock, AR 72202, no later than April 1, 2013.
Deadline for submission of Annual award nominations due Friday, March 15, 2013
Accolades Rockford College, in Rockford, Illinois, chose Circuit Judge Joyce Williams Warren as one of the college’s outstanding alumni, and awarded her the “Award of Distinction” for 2012. Nabholz elected Andrea Woods, Executive Vice President and Corporate Counsel, to the Nabholz Board of Directors. The American Bar Foundation awarded Philip S. Anderson the 2013 Outstanding Service award. Cynthia Nance has been inducted as a fellow of the College of Labor & Employment Lawyers.
Appointments and Elections The Judicial Discipline and Disability Commission has selected former Deputy Director David J. Sachar to succeed David A. Stewart, who retired as the panel’s executive director on Dec. 31. Hon. Van Smith was sworn in as President of the Arkansas Judicial Council. Wal-Mart Stores Inc. announced that Karen Roberts has been promoted to executive vice president and general counsel for the company effective Feb. 1. State Rep. Darrin Williams named CEO of Southern Bancorp Inc. Arkansas Supreme Court Chief Justice Jim Hannah appointed Court of Appeals Judge Robert Gladwin to a four-year term as that court’s chief judge. Governor Mike Beebe announced the following appointments: L. Doug Martin, Fayetteville, to the 4th Judicial District, 2nd Division; H.G. Foster, Conway, to the 20th Judicial District, 1st Division; Will Feland, Cabot, to the 23rd Judicial District, 2nd Division; P. Luevonda Ross, Monticello, to the Drew County District Court; Jason Duffy, Yellville, to the Marion County District Court; Amy Brazil, Conway, as Circuit Judge in the 5th Division Court of the 20th Judicial District; Tim Parker, Eureka Springs, as District Judge of the Western District of Carroll County; Ian Vickery, El Dorado, as Prosecuting Attorney for Judicial District 13.
It is time to nominate deserving candidates for this year’s Arkansas Bar Foundation and Arkansas Bar Association Annual Awards. The awards open for nomination are: • Outstanding Lawyer • Outstanding Lawyer-Citizen • C.E. Ransick Award of Excellence • James H. McKenzie Professionalism Award • Equal Justice Distinguished Service Award • Outstanding Jurist Award* • Outstanding Local Bar Association
Quattlebaum, Grooms, Tull & Burrow PLLC announced the promotion of Jennifer Wethington Merritt to membership in the firm. Carla L. Miller announced the opening of her law office, Carla L. Miller, PLLC, at 2200 Riverfront Dr. # 7202, Little Rock. Jennifer Williams Flinn announced the opening of her new law firm, Flinn Law Firm, P.A., located in the Union Plaza Building in Downtown Little Rock.
These awards will be presented at the Annual Meeting in Hot Springs in June. You are encouraged to nominate Arkansas lawyers, judges and local bar associations who deserve recognition. Nomination forms my be submitted by any Association member. Forms are available at www.arkbar.com/WhatsNew or by calling Ann Pyle at the Arkansas Bar Foundation at 501-375-4606.
We encourage you to submit information for publication in Oyez! Oyez! Please send to firstname.lastname@example.org.
*Please note the Outstanding Jurist Award is a newly created special award.
Word About Town
SPRING into learning with ArkBar Cyber CLEs Don’t have time to attend a seminar in person? The Arkansas Bar Association offers a wide variety of webinars that you can take from the convenience of your office, home or anywhere with a wifi connection. Check out the offerings on www.arkbar.com or in the catalog.
Your Source for Cyber CLE in Arkansas Vol. 48 No. 1/Winter 2013 The Arkansas Lawyer
Meet the New Arkansas Supreme Court and Arkansas Court of Appeals Judges Effective January 1, 2013
In the Arkansas Supreme Court —
Associate Justice Cliff Hoofman appointed to a two-year term replacing Justice Robert Brown Position 7
Associate Justice Josephine Hart elected to an eight-year term Position 4
In the Arkansas Court of Appeals —
Judge Brandon Harrison elected to an eight-year term replacing Judge Robbins District 4, Position 1
Judge Kenneth Hixson elected to a two-year term replacing Judge Martin District 3, Position 2
Judge Phillip Whiteaker elected to a two-year term replacing Judge Abramson District 1, Position 2
Judge Rhonda Wood elected to an eight-year term replacing Judge Hoofman District 2, Position 2
Judge Bill Walmsley appointed to a two-year term replacing Judge Hart District 2, Position 1 For more information visit the Court’s new website: https://courts.arkansas.gov 8
The Arkansas Lawyer
Young Lawyers Section Report
by Vicki S. Vasser
March Madness Tip-Off with YLS’ Starting Five Each spring, March Madness is a phenomenon that grips the national sports psyche from mid-March through the first of April. The tournament determines the national champions of college basketball. Teams that survive the mayhem of March and make it to the Final Four battle it out for the crown of college basketball. A team that reaches the Final Four and ultimately the national championship game is blessed with talent and dedication. From a more elementary perspective, for any basketball team to be successful, a team must possess at least five players, each bringing unique skills. As a former high school point guard, I experienced firsthand the importance of each player bringing his or her own unique talents to the team, so collectively, great things could be achieved. March Madness presents an opportunity for the Young Lawyers Section (YLS) to showcase its “starting line-up” or five critical areas in which YLS is working to improve our profession, the Bar, and our community: 1) Serving the Public & Communities In an effort to provide valuable legal resources to the public, the Citizenship Education Committee has been creating a new handbook and revising outdated handbooks. Stephanie Linam is leading the charge to create a domestic violence victims handbook, which will address topics such as emergency resources for victims and orders of protection. The goal is to have a final product introduced at the June 2013 Annual Meeting. Efforts are also underway to update the Senior Citizens handbook and the Consumer Law handbook. Serving the public spans across all demographics, so not only do we attempt to serve the adult population, but we help educate young adults with our ongoing distribution of “18 & Life to Go: A Legal Handbook for Young Arkansans” in both print and through
iPhone application and Kindle. Efforts are underway to disseminate these handbooks to all juvenile court offices across the state. To better serve a growing population in our state, YLS is working to secure funding through American Bar Association (ABA) grants and/ or partnerships with interested organizations to help translate the book into Spanish. This year, members have continued to place a priority upon making an impact in our local communities, whether it is by helping in a community garden in Northwest Arkansas, working at Arkansas Rice Depot in Little Rock, or visiting Ronald McDonald House while in Memphis at Mid-Year meeting. YLS never stops looking for new ways to serve the public and communities across the state in an attempt to “make our days count.” 2) Mentoring New Lawyers Last year, YLS launched the Lawyer-2Lawyer mentor program. In an attempt to expand this program, Matt Fryar has led efforts to develop additional tools to aid new attorneys in transitioning from law school to practice—the New Admittee Survival Guide and the Mentor Minute videos. Once completed, both resources will be accessible to members from the YLS web portal. 3) Encouraging Others to Become Involved No organization is successful without an eye towards the future. For this reason, Jennie Clark and Jessica Yarborough have continued to think of new ways in which YLS members can socialize and encourage more involvement from attorneys. I hope many of you were able to join us for the holiday social or socialized with us in Memphis at the MidYear meeting. Please mark your calendars to attend the 2013 Annual Meeting on June 12-15, 2013, where YLS will be providing Friday evening entertainment.
4) Including Everyone In spring 2012, YLS was awarded an ABA grant for our efforts in promoting diversity in the legal profession. This grant affords us an opportunity to expand our existing “College Road Tour” program to college campuses not yet visited and to revisit campuses, such as UAPB and Philander Smith. 5) Connecting Members It is often said that communication is the key to fostering strong relationships. YLS wants its members to have a strong connection to the Association and the Section. To better connect with members, YLS and the Association Staff continue to provide information about the Association and the Section through various communication channels— the YLS quarterly publication “InBrief,” the YLS portal on the Arkansas Bar Association website http://www.arkbar.com/pages/yls. aspx, the YLS Facebook (please “like” us!) and through Twitter at @Arkbar. YLS wants all of its members to be better connected to the Bar, the profession, and the ongoing activities and projects. *** After reviewing YLS’ “starting line-up” and as we embark upon March Madness, I leave you with a quote from Coach Mike Krzyzewski, Head Coach for the Duke University Men’s Basketball Team: “To me, teamwork is the beauty of our sport, where you have five acting as one. You become selfless.” The true beauty of YLS is that by combining talents and skills, serving in these capacities, whether by serving the profession and the public, by mentoring attorneys, by encouraging others to join our efforts, by connecting our members, or by including everyone interested to consider law as a profession, we are all better and our profession is stronger. n
Vol. 48 No. 1/Winter 2013 The Arkansas Lawyer
Meet the 2013 Arkansas Bar Association Lawyer Legislators The 89th General Assembly convened on January 14, 2013. The Arkansas Bar Association has five members serving in the Senate and 14 members serving in the House of Representatives. Governor Beebe and Attorney General McDaniel are also Association members.
Arkansas Governor Mike Beebe
Arkansas Attorney General Dustin McDaniel
In the Senate â€”
Senator Stephanie Flowers District 25 Public Service: House in 2005, 2007, 2009; Senate 2011, 2013
Senator Jeremy Hutchinson District 33 Public Service: House in 2000, 2001, 2003, 2005; Senate 2011, 2013 Asst. President Pro Tempore
Senator David Johnson District 32 Public Service: House 2005, 2007; Senate 2009, 2011, 2013
The Arkansas Lawyer
Senator Bruce Maloch District 12 Public Service: Columbia County Justice of the Peace, House 2005, 2007, 2009; Senate 2013
Senator Robert Thompson District 20 Public Service: House 2005; Senate 2007, 2009, 2011, 2013
In the House â€”
Representative Mary Broadaway District 57 Past Service: First Term House 2013
Representative Patti Julian District 38 Past Service: First Term in House 2013
Representative Davy Carter District 43 Past Service: House 2009, 2011, Speaker of the House 2013
Representative David Kizzia District 26 Past Service: First Term in House 2013
Representative John C. Edwards District 35 Past Service: House 2009, 2011, 2013
Representative Jim Nickels District 41 Past Service: House 2009, 2011, 2013
Representative Douglas House District 40 Past Service: First Term in House 2013
Representative Matthew Shepherd District 6 Past Service: House 2011, 2013
Vol. 48 No. 1/Winter 2013 The Arkansas Lawyer
In the House — Representative Nate Steel District 19 Past Service: Special Election, Oath of Office 11/1/2010, 2011, 2013
Representative David Whitaker District 85: Past Service: First Term House 2013
Representative John T. Vines District 25 Past Service: House 2011, 2013
Representative Darrin Williams District 36 Past Service: House 2009, 2011, 2013
Representative John W. Walker District 34 Past Service: House 2011, 2013
Representative Marshall Wright District 49 Past Service: House 2011, 2013
ArkBar Monitors Legislation for You — A priority of the Arkansas Bar Association is to assist in the enactment of laws which comply with the Arkansas and U.S. Constitutions and improve the legal system in Arkansas. The Association works full-time to monitor legislation issues affecting justice and the legal profession. • • • • •
A full-time lobbyist represents the Association in the General Assembly. Make your voice heard with your state and federal officials through the Arkbar Legislative Advocacy Network Voter Voice system. Weekly legislation updated during session via the Arkbar e-bulletin in the Legislative Corner. The ArkBar Legislation Committee proactively views all bills during the session to protect the practice of law. Go to http://www.arkbar.com/pages/LegislativeResources.aspx for a full list of legislative resources.
Back the Pac! Become a supporting member of your non-partisan political action committee. Only $30 per year. Join today via your Member Portal on www.arkbar.com. 12
The Arkansas Lawyer
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Vol. 48 No. 1/Winter 2013 The Arkansas Lawyer
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The Case for a More Efficient Option for Trial by Jury in Civil Cases By Steven W. Quattlebaum
By making good on the promise of access to a civil jury trial, it is possible that such a program can revive confidence in the jury system to some extent, particularly if jury trials increase in frequency and the quality of the verdicts is well-regarded. 30%
Quote and graphic reprinted with permission from IAALS, the Institute for the Advancement of the American Legal System.
The trial by jury in civil cases is diminishing at an alarming rate in the United States. This decline became apparent in other states many years ago but has been a more recent phenomenon in Arkansas. There are many reasons for this decline—including the popularity of mediation, escalating costs of discovery, delays getting to trial, expense of trials, lack of finality due to appeals and the risk of unanticipated verdicts. As a result, jury trials in civil cases occur less frequently year-by-year. Perhaps this has not been as dramatic in Arkansas due to the efficiency of our courts in getting matters to trial, the collegiality of our bar, or the fact that, in the vast majority of trials, the verdicts rendered by juries in Arkansas seem reasonable. In recent years, however, the decline has been evident in our state, as well. Fewer jury trials in civil cases may have numerous negative consequences. Citizens have less involvement in the resolution of civil disputes. Confidence in the jury trial process is eroded. Litigants feel as though the right to have their “day in court” is not available, and they have been forced to accept a compromise resolution they did not want. Finally, young trial lawyers do not get jury trial experience and judges are deprived of the privilege of presiding. The right to trial by jury is fundamental to our system of government. To the extent we create barriers to the exercise of this fundamental right, we do a disservice to our system of government. Thus, it is important for all citizens—but especially lawyers and judges—to evaluate our judicial system constantly and make procedural changes when necessary to facilitate the efficient resolution of civil disputes within our jury trial system. In an effort to protect and promote the right to a civil jury trial, some jurisdictions have adopted procedures for a more streamlined process that allows cases to be tried sooner, more efficiently and with considerably less expense. These trials have been referred to as “expedited jury trials” and “summary jury trials” and have garnered widespread approval by the bench, bar and litigants. Organizations devoted to the efficient administration of justice and the preservation of trial by jury have studied expedited jury trials and voiced their support, as well. The American Board of Trial Advocates (“ABOTA”) is an organization comprised of experienced plaintiff and defense trial lawyers from throughout the United States. Preservation of the right to a civil jury trial is the mission of ABOTA. Recognizing the precipitous decline in the number of jury trials, ABOTA considered the advantages and disadvantages of expedited jury trials and decided to support vigorously the concept of streamlined pretrial procedures and expedited jury trial programs. ABOTA has joined forces with IAALS, the Institute for the Advancement of the American Legal System, a national independent research center at the University of Denver, and the National Center for State Courts (“NCSC”), a nonprofit organization dedicated to improving the administration of justice, in studying expedited jury trials in various jurisdictions. The three organizations have published their findings in a report that calls for implementation of such programs on a national scale. The trial bar in Arkansas has long enjoyed a reputation for handling an extraordinary number of trials and for producing exceptional trial lawyers. To address what many have characterized as “the disappearing jury trial,” we must take steps to remove real or perceived barriers that prevent cases from proceeding to trial. Arkansas should take a leadership posiSteven W. Quattlebaum tion in addressing the decline in in a founding member of the number of civil jury trials by Quattlebaum, Grooms, Tull & adopting the procedures necesBurrow PLLC in Little Rock. sary to establish an expedited His primary areas of practice jury trial option in Arkansas. are complex business, toxic tort Trial lawyers and judges should and products liability litigation. read the report reprinted here and support this initiative. n Vol. 48 No. 1/Winter 2013 The Arkansas Lawyer
A Return to Trials: Implementing Effective Short, Summary, and Expedited Civil Action Programs
A Return to Trials: Implementing Effective Short, Summary, and Expedited Civil Action Programs
Excerpt of this report is reprinted here with permission from IAALS, the Institute for the Advancement of the American Legal System. Originally published October 2012. To view the complete report, go to http://iaals.du.edu/AReturntoTrials.
Introduction There is a widespread perception—among lawyers and litigants—that the civil justice system is too complex, costs too much, and takes too long. There is also data documenting that civil jury trials have decreased precipitously over the last decade.1 The decline in jury trials has meant fewer cases that have the benefit of citizen input, fewer case precedents, fewer jurors who understand the system, fewer judges and lawyers who can try jury cases—and overall, a smudge on the Constitutional promise of access to civil, as well as criminal, jury trials. As one response to these realities, various jurisdictions—both state and federal—have implemented an alternative process that is designed to provide litigants with speedy and less expensive access to civil trials. The programs involve not only a simplified pretrial process, but also a shortened trial on an expedited basis. While some programs focus on jury trials, the overall goal of such programs is to provide access to a shorter pretrial and trial procedure, both for jury and bench trials. For purposes of this report, we are calling these programs Short, Summary, and Expedited Civil Action programs (SSE programs). The National Center for State Courts (NCSC) has just completed a report detailing the elements of various examples of these programs.2 In the wake of that report, the NCSC, IAALS (the Institute for the Advancement of the American Legal System at the University of Denver), and the American Board of Trial Advocates (ABOTA) have taken on the task of collating information about what seems to be working in these programs, how to use the process well, and how a jurisdiction might choose to put a program in place if it does not now have one. For all three organizations, this work represents an ongoing commitment to processes that provide less expensive access to the civil justice system and a commitment to the preservation of the civil jury trial. In preparation for the drafting of this report, the three organizations formed a Committee (members listed on Appendix A), agreed upon a charge to the Committee (Appendix B), and reviewed all available information regarding existing programs around the country. The Committee then met in person and thereafter worked collaboratively on the report. The Committee was chosen on the basis of balance, knowledge about different programs, and experience. 16
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The recommendations that follow are designed to assist those around the country who are considering implementing an SSE program. Because of the variability of existing programs, and the different needs that each of these programs meet in their respective jurisdictions, the Committee has chosen not to recommend a specific set of parameters to be implemented in every program and for every case. Instead, the following recommendations are meant to serve as a flexible roadmap for reform, with the details of each program to be determined at the local level. Just as importantly, we hope this manual also serves as a call for implementation of such programs on a national scale. The organizations and individual members who make up this Committee believe in the importance of Rule One of the Federal Rule of Civil Procedure’s goals of a “just, speedy, and inexpensive determination” of every civil action. Yet today, pressures on client and court resources have only increased, making access even more problematic. While these pressures make attainment of this goal more difficult, they also create space for innovation. Our organizations hope that what follows is a resource for creating and implementing these innovative programs in your jurisdiction. What is a Short, Summary, and Expedited Civil Action Program? Before trying to identify what works and what does not, it is important to define the characteristics of an SSE program for purposes of this Report. The programs vary greatly across the country, and none are identical. However, there are five constants that the Committee suggests are present in almost all of the programs and are critical for success:
First, the trial itself is short. Most jurisdictions limit the trial to one or two days. The Committee believes that the length is not necessarily dispositive, but there must be an expectation that the trial will be short and to the point. By necessity, the evidence also must be limited. Length of trial is a critical component, both for purposes of the trial itself and for purposes of structuring the pretrial process, which is then necessarily focused and abbreviated. Second, the trial date must be certain and fixed. The trial date must not be susceptible to continuance, at the behest of the court or counsel, except in extraordinary circumstances. One of the key features of the programs is the fact that litigants know they must be prepared for the trial on the date on which it is set. Such certainty drives the pretrial process and many of the benefits of the programs. In some of the more successful programs, the litigants also know who their judge will be if they choose the SSE program: either they have access to a judge pro tempore, whom they jointly choose, or they know who the judge assigned to the
case will be. Hence, the program achieves a level of certainty and predictability that may not otherwise be available.
While one or a few of these characteristics may be instrumental in achieving greater access and quicker resolution, such as establishing a firm trial date and utilizing agreements and stipulations to achieve a more streamlined trial, the SSE programs discussed here generally include most, if not all five, of these characteristics. While generally applicable rules and case management techniques that mandate streamlined pretrial process and expedited trial settings do not in and of themselves satisfy the defining characteristics of an SSE program (such as voluntariness), the Committee does not mean to infer that such procedures may not also be an effective means of assuring access and efficiency. Beyond these fundamental characteristics, however, there are a host of variations. All of these variations are components that the local bench and bar can review and build upon. The program characteristics chosen by a particular jurisdiction should be responsive to its needs and is likely to be quite individualized.
Third, the program extends to the whole litigation process—not just the trial. The pretrial process is also expedited and focused. Fourth, the program encourages issue agreements and evidentiary stipulations. Rules promoting evidentiary agreements, encouraging stipulations, and allowing relaxed evidentiary foundational standards save time and narrow the focus to the key issue(s) to be addressed at trial.3 Fifth, almost all of the programs are either partially or wholly voluntary. The litigants have the option of choosing this particular track for their case, and they are not forced to do so. Although voluntary processes are often slow to catch on, because people in general—and attorneys in particular—do not embrace change, voluntary programs nonetheless preserve the right of the litigants and counsel to decide whether the case at issue is appropriate for an abbreviated process and the program.
Benefits of SSE Programs There are a variety of benefits that SSE
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programs can provide. First, the benefits to the court system itself include the dedication of fewer judicial officers and court staff to the process. In one jurisdiction, the whole process happens without any involvement from the court, except for the assignment of a courtroom and the summoning of jurors. In other jurisdictions, sitting judges oversee the process, but it takes far less time than civil cases handled under the traditional rules of civil procedure. Once judges become familiar with the SSE program, they tend to like the process because it allows them to clear their docket, achieve better closed case numbers, and preside over jury trials, without investing weeks of court time. The system also benefits from the increased numbers of jury trials, which involve more people in the system and inform them about the process. More broadly, by making good on the promise of access to a civil jury trial, it is possible that such a program can revive confidence in the jury system to some extent, particularly if jury trials increase in frequency and the quality of the verdicts is well-regarded. The court system benefits equally from SSE bench trials. Judges are able to resolve matters more quickly and
efficiently, with streamlined procedures and a short trial that resolves the case in a day or two. The benefits for the litigants are, first and foremost, that their case will take less time and cost less money than if they had proceeded along a regular case track. In short, the process increases access to the system and decreases expense and time. But there are additional benefits as well. The process may provide more certainty. This can include certainty of trial date and perhaps of judge assignment. In some programs, this can include certainty of outcome, with limited appeal rights, and possible risk containment, if damages are limited or agreed to on a high-low basis.4 Benefits for jurors include more opportunity to participate and a shorter, more focused process when they do participate. Jurors benefit from serving for both a shorter and more defined period of time.5 Because of the streamlined process, and resulting streamlined issues, SSE programs also create less confusion and greater clarity for jurors about what is being asked of them.
For these reasons, SSE programs may actually result in a better process for the jurors. Benefits for attorneys are both immediate and long-term. First, these trials may provide an opportunity for younger attorneys to handle jury trials. Second, being able to take smaller or less complex cases for less investment on a per-case basis may actually serve to increase an attorneyâ€™s client base and build good will. Lastly, an expedited process forces attorneys to focus very acutely on what is important in a caseâ€”and to shape both the discovery and the trial presentation around those key issues. It improves case management skills, attention to what is important, and clarity and brevity of trial presentations. It can also encourage cooperation in the discovery process in order for the attorneys to get the discovery they need in a short period of time. In jurisdictions where the whole process is the result of attorney negotiation, there is additional incentive to cooperate. Appendix C identifies a set of criteria that counsel can use to identify appropriate cases for an SSE SSE Trial continued on page 45
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2012-2013 Leadership Academy Congratulations to the 18 attorneys who have been selected to participate in the 2012-2013 Arkansas Bar Association Leadership Academy. Participants attended the Opening Retreat in January and will attend three additional sessions that focus on different areas of leadership: Legislature and the Judiciary: March 4-5, 2013 in Little Rock; Community and Bar Leadership Retreat: April 19-20, 2013 at Mt. Magazine; Pro Bono and Graduation: During the Arkansas Bar Association Annual Meeting in Hot Springs - June 13, 2013. Margaret Alsbrook Alsbrook Legal Services
Amy Dunn Johnson Arkansas Access to Justice Commission
Chad William Pekron Quattlebaum, Grooms, Tull & Burrow PLLC
Bart W. Calhoun Arkansas Attorney Generalâ€™s Office
Jamie Huffman Jones Friday, Eldredge & Clark LLP
John D. Pettie Dover Dixon & Horne PLLC
Chris P. Corbitt Corbitt Law Firm, PLLC
Victoria Leigh Leigh Law LLC
Justin Bradford Smith Norton & Wood, LLP
Tracey Dennis Attorney at Law
Akira S. Marine University of Arkansas for Medical Sciences
Theodis Thompson Rolfe Law Firm, P.A.
Edie Ervin Friday, Eldredge & Clark LLP
J. Clifford McKinney II Quattlebaum, Grooms, Tull & Burrow PLLC
Shana R. Woodard Pulaski County Clerkâ€™s Office
Kenya J. Gordon Carney Bates & Pulliam
K. Brooke Moore Law Office of K. Brooke Moore
Megan Elizabeth Wooster James Law Firm
Your Dispute Resolution Resource
Hon. Henry L. Jones, Jr. (Ret.)
Retired Magistrate Judge, United States District Court, Eastern District of Arkansas
After more than 30 exemplary years on the Federal bench, Judge Jones has recently retired. Notably, Judge Jones completed hundreds of settlement conferences during his judicial service. Prior to his judicial career, he enjoyed a broad civil litigation practice as a Partner at Walker Hollingsworth & Jones, P.A. in Little Rock. Judge Jones brings this distinguished record of accomplishment to The McCammon Group to serve the mediation, arbitration, private judge, and special master needs of lawyers and litigants throughout Arkansas and beyond.
Dispute Resolution and Prevention For a complete list of our services and Neutrals call 1-888-343-0922 or visit www.McCammonGroup.com Vol. 48 No. 1/Winter 2013 The Arkansas Lawyer
Arkansas Bar Association’s Board of Governors Report By Karen K. Hutchins The Board of Governors, chaired by David R. Matthews, met December 7-8, 2012, at the Arkansas Bar Center in Little Rock. The Board heard reports from our committee chairs as well as presentations by some of the Association’s partners. The meeting began with a challenge to the Board from Ms. Michael Harrison, Chair of the Membership Development Committee. The committee challenged the Board to become personally involved in member recruitment. This challenge resulted in 124 additional members, and President-Elect Jim Simpson won the challenge by recruiting 10 members. Other top recruiting Board members were Don Hollingsworth and Jeffrey McKinley. The Board did a great job in coming together to spur member growth for this bar year. Mr. Steve Zega, Chair of the Lawyers Assisting Military Personnel Committee, updated the Board on the committee’s activities. The members are working diligently to develop resources that will benefit both active and retired military personnel in the state. Ms. Amy Johnson, Executive Director of the Arkansas Access to Justice Commission, encouraged Board members to take advantage of pro bono opportunities throughout the state and support legal services for the poor. Mr. Harry Truman Moore, one of the Association’s Delegates to the American Bar Association’s (ABA) House of Delegates, reported on items to be considered by the ABA’s House at the February meeting. Joint Task Force on Model Time Standards Chair Mr. Dick Hatfield updated the Board on the task force’s continuing work. The Arkansas Bar Association and the Judicial Council formed this joint task force to review model time standards. Mr. Hatfield will keep the Board informed of any recommendations that may develop in the future. An overview of the Association’s legislative package was provided by Mr. Dennis Zolper, Chair of both our Jurisprudence & Law Reform Committees. Mr. Zolper reported that the Association received a request for the addition of an amendment to UCC Art 4A to the Association’s legislative package. The Board voted to recommend 20
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that the Association’s House of Delegates approve this addition at their January 26th meeting. Mr. Jack McNulty, lobbyist for the Association, provided an update on other legislative issues of importance to the legal profession. Mr. Brian Rosenthal, Chair of the Editorial Board for Handbooks, shared with the Board the plans to develop new handbooks this year. The Board already published a new Debtor Creditor Handbook that became available this past fall. Prof. Lynn Foster informed the Board that the UALR Law Review is researching migrating from a print publication to an electronic publication. UALR Law School Professor Ranko Oliver addressed the Board on behalf of the proposed Arkansas Hispanic Lawyers Section. The Board voted to create the new section and commended the working group on their thorough preparation of the section by-laws and goals. Visit our website, www.arkbar. com, to join the new Arkansas Hispanic Lawyers Section. Colonel William A. Martin, Chair of the Finance Committee, updated the Board on the Association’s financial well-being. Ms. Vicki Vasser, YLS Chair, reported on several community activities that the YLS have conducted throughout Arkansas. The Chair of the Public Information/Findalawyer Committee, Ms. Laura Partlow, advised the Board of the committee’s request to modify the Lawyer Community Legacy Award to an annual nomination cycle to two awards. Previously, nominations were accepted biannually. The committee cited the need to shift the timing of this award away from the Annual Meeting to gain greater interest and generate more nominations for this award. The new deadline for nominations is February 28th of each year. The Board approved a request from Mr. Tom Curry, Chair of the Unauthorized Practice of Law Committee, to disband the committee. The committee members had determined that the committee did not have the authority to effectively address the issue. The Website/Technology Committee reported on the development of new tools
for measuring how the Association’s members are utilizing our website. Committee Chair Mr. David Fuqua described the new website analytical reports that are now available. These reports reflect which pages are most visited by members and the public and provide insight on how the Association can keep its members connected. Mr. Fuqua proposed that the Association begin efforts to develop a mobile app for our membership directory and to expand the current social communication tools. The Board supported moving forward with these technological advancements. President-Elect Jim Simpson announced future dates for upcoming Board meetings. He also updated the Board on the Patron/ Benefactor Campaign (formerly Sustaining Member) and encouraged Board members to participate in that program and encourage others to do so. He explained that these very important supporters of the Association help fund programs throughout the year including Mock Trial, Mid Year and Annual meeting. President Charles L. Harwell recognized President-Elect Designee Brian Ratcliff and welcomed him on behalf of the Association. President Harwell announced the recent appointment of Mr. Jim Julian as the Association’s Representative to the Arkansas Supreme Court’s Bar Account Retirement Plan Committee. President Harwell welcomed Judge Robert Edwards as a liaison member of the Board in his capacity as President-Elect of the Judicial Council. The Board’s next meeting is April 5-6, 2013, at Mount Magazine. n Karen K. Hutchins, J.D., CAE, is the Executive Director of the Arkansas Bar Association. For a list of Association Board of Governors go to www.arkbar. com/pages/board_governors.aspx.
Arkansas Bar Association 2012-2013 Board of Governors
Front Row (l to r): Danyelle J. Walker, Jay Shue, Jr., Vicki S. Vasser, Brian H. Ratcliff, Charles L. Harwell, David R. Matthews, Jim Simpson, Tom D. Womack, Jeffrey Ellis McKinley, Laura E. Partlow (red), Amy Freedman (green); Middle Row: F. Thomas Curry, Don Hollingsworth, Thomas A. Daily, Denise R. Hoggard, Jerry D. Patterson, William A. Martin, Earl Buddy Chaddick, Jr., Shaneen K. Sloan, Karen K. Hutchins; Top Row: John C. Riedel, Brian M. Rosenthal, Harry Truman Moore, Wade T. Naramore, Richard C. Downing, Brock Showalter, Dennis Zolper, Jack A. McNulty, Judge Robert Edwards, Paul W. Keith This photo was taken at the Capital Hotel in Little Rock by ThinkDero, Inc. Photography during the December 2012 Board of Governors meeting. OFFICERS
BOARD OF GOVERNORS
Wade T. Naramore
President, Charles L. Harwell
Seth T. Bickett
Laura E. Partlow
Thomas A. Daily
Board of Governors Chair, David R. Matthews
Earl Buddy Chaddick, Jr.
Jerry D. Patterson
Harry Truman Moore
President-Elect, Jim Simpson
Richard C. Downing
Troy A. Price
Judge Robert Edwards
Immediate Past President, Tom D. Womack
Frances S. Fendler
John C. Riedel
Secretary, F. Thomas Curry
Brian M. Rosenthal
Karen K. Hutchins
Treasurer, William A. Martin
Buck C. Gibson
Judge Mark A. Pate
Assistant Treasurer, Shaneen K. Sloan
Amy C. Grimes
Jay Shue, Jr.
Parliamentarian, Marie-Bernarde Miller
Denise R. Hoggard
Shaneen K. Sloan
Young Lawyers Section Chair, Vicki S. Vasser
Danyelle J. Walker
President-Elect Designee, Brian H. Ratcliff
Jeffrey Ellis McKinley
Jack A. McNulty
Paul W. Keith Richard L. Ramsay
Vol. 48 No. 1/Winter 2013 The Arkansas Lawyer Vol. 48 No. 1/Winter 2013 The Arkansas Lawyer
Even Courts Are Going Green: How to Protect Yourself From Greenwashing Litigation
By Joseph W. Price II, Bradley G. Dowler and F. Clark Jennings This article was printed on biodegradable, post-recyclable paper with chemical-free ink and produced in a carbon-neutral fashion by an energy-efficient printing company that uses only sustainable resources. Got your attention? Although untrue here, it is probably not the first time that you have heard an over-the-top, too-goodto-be-true line concerning the environment. It seems everyone is rushing to be “green” in the hopes of capitalizing on environmentally savvy consumers and their purchasing power. If these assertions stretch the truth or cannot be substantiated, then they also may catch the attention of governmental officials or enterprising class-action attorneys. Dubbed “greenwashing” or “eco-fraud,” these actions are brought against companies that engage in misleading advertising regarding their environmental practices or the alleged green benefits of their products or services. As consumers have become more environmentally conscious and companies tout their “green” credentials in marketing and branding efforts, scrutiny has increased on companies whose promotional assertions might not be supported by the facts. Because of this heightened sense of environmental awareness, a company should be wary of screaming “green” without first performing the necessary due diligence on the product or service it is selling. If it does not, consumer class actions and federal and state enforcement of advertising and marketing regulations may be waiting around the corner. Typical Greenwashing Claims Greenwashing litigation generally falls into one of three categories: (1) the public-enforcement action, (2) the consumer class action, and (3) the unfair-competition action. The Federal Trade Commission (FTC) or the attorney general of a particular state usually brings the “public enforcement actions” pursuant to Section 5 of the FTC Act, which prohibits unfair or deceptive practices, or the state’s consumer protection laws. The FTC’s Guides for the Use of Environmental Marketing Claims1 or “Green Guides,” as they are commonly known, provide guidance as to how the FTC interprets Section 5 of the FTC Act with regard to environmental advertising and marketing practices. Although the “Green Guides” are administrative in nature, holding no force of law, the guidelines protect consumers, establishing 22
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environmental-marketing criteria for American products. Although the “Green Guides” are administrative in nature, holding no force of law, the guidelines establish environmental-marketing criteria for American products to protect consumers. They also may provide compliant advertisers with a safe harbor to help avoid litigation and a potential defense to liability but, on the other hand, can provide the impetus for litigation if consumers recognize corporate-marketing practices are not in step with the regulations’ rules and illustrations. The Guides help set the “rules of the road” for what advertisers can (and cannot) assert about certain environmental attributes of products, and they set forth the evidence companies must be able to produce if they intend to make such green-marketing claims. The second vehicle for greenwashing claims, and the one that creates the most financial concern for companies, is the consumerproduct class action. Plaintiffs can assert these actions under state-law theories of liability or under federal statutes, e.g., the Lanham Act2 and the Magnuson-Moss Warranty Act.3 Recent examples of greenwashing lawsuits include a consumer class action brought against Fiji Water, who marketed itself as “The World’s Only CARBON NEGATIVE bottled water.” In the action, consumers alleged that they were misled into paying more for Fiji water than competing brands because it was a carbon-negative product when, in fact, the company’s use of a practice called “forward crediting” meant it was rewarding itself for carbon-reducing actions that it had not yet taken.4 American Honda Motor Co. represents another example, having recently found itself the target of a suit alleging that the Civic Hybrid consumed too much gas to live up to the company’s fuelefficient description of the vehicle.5 And S.C. Johnson & Son, Inc., also defended the use of its “Greenlist” trademark, which consumers claimed was deceptive because it was actually a mark owned by the company itself, rather than a third-party endorsement.6 Finally, some companies have confronted their competitors directly, seeking injunctive or declaratory relief for misleading or deceptive “green” advertisements in order to maintain parity in the marketplace. Sony Corporation, for example, challenged Panasonic’s claims that its plasma televisions were “environmentally friendly” while knowing that plasma televisions used more electricity than LCD televisions.7 Dell, similarly, complained that Apple’s advertising,
which touted “the world’s greenest family of notebooks,” deceptively misled consumers. This prompted Apple to change its marketing campaign to “the world’s greenest lineup of notebooks.”8 And, in New York, the manufacturer of a portable handheld steam cleaner was hauled into court by a competitor because the manufacturer’s infomercial falsely claimed its product was “EPA tested so you know it’s safe” when the EPA had no testing or approval mechanisms for such a product.9 Greenwashing in Arkansas To date, there are no reported greenwashing cases in Arkansas, including those brought either by private citizens or the Arkansas Attorney General, but a flood of litigation regarding suspect environmental claims could be on the horizon. A lawsuit for greenwashing under Arkansas law would likely be based on one of three theories of liability: (1) common-law fraud; (2) violations of the Arkansas Deceptive Trade Practices Act (“ADTPA”); or (3) breach of warranty. Unlike breach-of-warranty claims, fraud and ADTPA claims require evidence of actual damage or loss to sustain the claims, which sometimes may be difficult to prove.10 Fraud In cases of fraud, Arkansas courts have applied two measures of damages: (1) the benefit-of-the-bargain measure, which is the difference in value of the property as represented and the property’s actual value at the time of the purchase and (2) the out-of-pocket measure, which is the difference between the price paid for the property and the property’s actual value when received.11 In both instances, the plaintiff must demonstrate either an actual manifestation of injury or that the product genuinely differs from what the defendant claimed it would be.12 Neither of these measures of damages will sustain a fraud count in a no-injury approach to litigation because, under that approach, “diminution in value” alone is not enough to prove damages for fraud.13 For instance, in Wallis, the plaintiff brought a common-law fraud suit against Ford Motor Company for its alleged concealment of the fact that its “Explorer had a dangerous design defect that caused it to roll over under normal operation.”14 The plaintiff alleged that, in turn, Ford “led millions of consumers to purchase or lease Ford Explorers at prices far in excess of the values which would have been assigned to such vehicles had these dangers been disclosed[,]” resulting in Explorers that were “substantially diminished [in] value solely [because] of Ford’s fraudulent and deceptive scheme.”15 The Arkansas Supreme Court affirmed the dismissal of the plaintiff’s fraud count because the plaintiff failed to allege or show any actual injury in that the alleged design defect had not manifested itself in the plaintiff’s Explorer, and he had received exactly what he bargained for—a Ford Explorer that was operational.16 Wallis, at first blush, would appear to bar a fraud claim for greenwashing because damages typically would be based on some theory of the product’s diminution in value. The Court noted, however, that the claim in Wallis was rooted in products-liability law and distinguished claims rooted in basic contract law.17 A fraud claim for greenwashing, therefore, may exist even without injury where the claim “rests solely on the premise that a party did not receive the benefit or his or her bargain” and the party can “show that the product delivered was not in fact what was promised.”18
ADTPA The ADTPA prohibits a wide-range of deceitful and dishonest claims.19 For example, the ADTPA prohibits “[k]nowingly making a false representation as to the characteristics, ingredients, uses, benefits, alterations, source, sponsorship, approval, or certification of goods or services or as to whether goods are original or new or of a particular standard, quality, grade, style, or model;”20 this prohibition would generally cover claims of greenwashing. The ADTPA’s statutory framework, however, does not allow for strict liability.21 Though either the Attorney General or a private citizen may assert an ADTPA claim, such a claim must be limited to the plain language of the statute.22 The Attorney General may institute proceedings to restore money or real or personal property to any purchaser who has suffered any “ascertainable loss” as a result of the use or employment of practices declared to be unlawful under the ADTPA.23 An “ascertainable loss” encompasses many different aspects of damages, and courts have defined the term as any loss that is “capable of being discovered, observed or established.”24 Because an ascertainable loss represents a broader scope of damage than a private plaintiff may seek under a fraud claim, the Attorney General may seek a wide array of damages, including damages for diminution in value. In contrast, a private plaintiff may only institute an action under the ADTPA in instances where that person has suffered “actual damage or injury as a result of an offense or violation” of the ADTPA.25 Because private claims are limited to those instances where actual damage or injury has been sustained, the Arkansas Supreme Court has declined to recognize a cognizable cause of action for violations of the ADTPA where the only alleged injury is the diminution in value of a product.26 As with fraud, the ruling appears to prevent a private greenwashing claim; however, it seems illogical to believe that the ADTPA, which specifically prohibits the actions on which greenwashing claims would be based, would not protect citizens of the state from greenwashing. Thus, it is more likely that the language in Wallis would extend to a greenwashing claim under the ADTPA and allow a private greenwashing claim to proceed if (1) a party did not receive the benefit or his or her bargain and (2) a party could show that the promised product was not what was delivered.
l to r: Joseph W. Price II and Bradley G. Dowler are associates with Quattlebaum, Grooms, Tull & Burrow PLLC in Little Rock with practices focusing on civil litigation. F. Clark Jennings served as a law clerk to the Honorable D. P. Marshall Jr. of the U.S. District Court for the Eastern District of Arkansas. Vol. 48 No. 1/Winter 2013 The Arkansas Lawyer
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Breach of Warranty In Arkansas, it appears that liability for greenwashing could exist under a claim for breach of warranty because “[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates a warranty that the goods shall conform to the affirmation or promise.”27 An affirmation of fact, not opinion, must be part of the basis of the parties’ bargain to constitute a warranty.28 Generally, a plaintiff may recover as damages any loss resulting in the ordinary course of events as a result of the seller’s breach of warranty.29 The typical measure of damages in breachof-warranty claims is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if supplied as warranted.30 Accordingly, if an advertiser promotes a product as environmentally friendly, a consumer purchases the product based on that affirmation, and the advertised product is not environmentally friendly, then the product’s manufacturer has breached its warranty to the consumer and a greenwashing claim may be viable even without injury to the plaintiff.
How to Avoid Greenwashing Liability Although we live in a more eco-conscious society, with consumers seeking out environmentally safe products and willing to pay a premium for such products, companies planning to market their products as “green” must be vigilant and take the necessary precautions to prevent a greenwashing accusation. Below are some tips on how to avoid liability from greenwashing or “eco-fraud” claims but still enable the advertiser to tap into the new “green” consumer market. •Always Tell The Truth. Although telling the truth in any marketing or advertising campaign should go without saying, the truth is sometimes stretched or even outright ignored, hurting not only your company’s credibility with consumers but also exposing your company to liability in litigation. •Be Relevant. Do not make an environmental claim about your product that is unimportant or not helpful to the consumer. For instance, do not claim that a product is free from a chemical that has been banned by the government for decades. This is misleading because every product is going to be free from that chemical.
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•Document, Document, Document. Study, evaluate, and document the environmental impact of your product or service before you begin a “green” advertising and marketing campaign. Scientific and empirical studies help evaluate your product’s potential environmental benefits and risks, leading to a more focused advertising and marketing campaign and representing a valuable resource if greenwashing or eco-fraud litigation is ever filed against you. •Be Precise. If possible, you should avoid vague terms in environmental advertising and marketing campaigns because they are difficult to substantiate and may mislead consumers. Refrain from touting your product as “environmentally friendly” and instead use terms such as “environmentally friendlier” because that claim is easier to substantiate. Other terms you may want to shy away from include the following: earth friendly, eco-conscious, carbon neutral, energy efficient, sustainable, renewable, organic, nontoxic, chemical free, all natural, recycled, and biodegradable. •Consult Guidelines. You should consult and review environmental marketing guidelines administered by the FTC before you begin your advertising and market-
ing campaign. Other third-party organizations that publish best practices for “green” advertising and marketing campaigns are the American National Standards Institute, the International Organization for Standardization, the United States Environmental Protection Agency, and Consumer Unions. By using these guides, you may be able to establish a “safe harbor” for your advertising if the government, consumers, or a competitor knocks at your door. For instance, if your advertising or practices are subject to the FTC and you comply with the rules, orders, or statutes administered by the FTC, then the ADTPA is inapplicable to any claim that may be brought against you.31 •Seek Certification From Reputable Programs. Environmental-certification programs provide consumers and companies with the assurances that the product they are buying or selling meets stringent environmental standards established by the program itself or an independent, unbiased third party. Although a certification will not insulate a company from greenwashing or eco-fraud liability entirely, it may reduce the potential for liability. •Be Diligent. With the explosion of the Internet as a news and entertainment source
along with other digital media forums, the possible avenues for environmental advertising and marketing are endless. These endless possibilities, however, also lay traps for today’s businesses. For example, if a product is not marketed as “green” but is placed on a television or radio show that publicizes itself as environmentally conscious, then the product’s manufacturer may face some liability for implicitly greenwashing its product. As a result, companies should routinely and carefully review their environmental advertising and marketing plans to avoid potential claims. Conclusion Although honesty, consistency, and research constitute the cornerstones of any marketing campaign, this has become especially true in today’s green-focused society. A company must do its homework and stay true to its product if it wants to avoid the pitfalls of litigation with government regulators, consumers, and competitors because today, as Kermit said, “it’s not easy being green.” However, if advertisers follow the guidelines Greenwashing continued on page 49
Vol. 48 No. 1/Winter 2013 The Arkansas Lawyer
JOBS Act Seeks to Ease Restrictions on Access to Capital for Small and Medium-Sized Businesses
By David McDaniel and Geoffrey Neal Last year, on April 5, 2012, President Obama signed into law the Jumpstart Our Business Startups Act1 or the “JOBS Act.” The stated goal of the JOBS Act is to assist small and medium-sized businesses in accessing capital by easing restrictions and hurdles on issuing securities in certain exempt offerings and registered initial public offerings (“IPOs”). The JOBS Act involves various amendments to the Securities Act of 1933 (the “Securities Act”) and the Securities Exchange Act of 1934 (the “Exchange Act”) and mandates various rulemaking initiatives for the Securities and Exchange Commission (the “SEC”). On its face, the JOBS Act involves substantial securities law deregulation that could only be passed in a contentious election year, but the ultimate impact and utility of the new legislation will be decided by rules and regulations to be promulgated by the SEC in the coming months.
proposing release provides some guidance as to what might constitute “reasonable steps” under various circumstances, but does not establish a safe harbor for ascertaining accredited investor status. As of January 23, 2013, these rules have not been finalized by the SEC. Platforms. The JOBS Act also amends Section 4 of the Securities Act to permit “platforms” to facilitate Rule 506 offerings without first registering as a broker-dealer. In order to qualify for the registration exemption, the “platform” may not receive any transaction-based compensation (it is unclear whether a flat fee would be permissible), may not act as a custodian of customer funds or securities, and may not be statutorily disqualified due to certain “bad acts.” This provision of the JOBS Act appears to be targeted at electronic platforms that bring together issuers and investors for no fee, but the term “platform” is undefined and it may ultimately have a broader reach.
Amendments to SEC Rule 506 and Rule 144A General Solicitation. Rule 506 of Regulation D2 is a registration exemption safe harbor promulgated by the SEC under Section 4(a)(2) of the Securities Act available to issuers of securities. SEC Rule 144A3 is a resale registration exemption safe harbor that is often relied upon in a broker-assisted sale of securities to qualified institutional buyers.4 Prior to the JOBS Act, any general advertising or general solicitation of offers in connection with a Rule 506 offering or Rule 144A resale was strictly prohibited. The JOBS Act mandates that the SEC amend Rule 506 and Rule 144A to allow for general advertising and general solicitation, provided that the ultimate purchasers (but not offerees) in such an offering or resale that utilizes general advertising or solicitation must be accredited investors5 or qualified institutional buyers, as applicable. This will allow issuers to broadly advertise their offerings through various traditional and social media outlets, but will require issuers to diligently ensure that all purchasers meet the objective requirements of an accredited investor or qualified institutional buyer, as applicable. Although any general advertisements will be subject to the anti-fraud liability provisions of the securities laws, the ability to broadly disseminate unsolicited information about issuers and securities offerings for which financial and other information is not publicly available could result in an increased level of fraudulent activity. On August 29, 2012, the SEC proposed amendments to Rule 506 and Rule 144A to implement the changes mandated by the JOBS Act. The proposed amendments to Rule 506 would create a new Rule 506(c) and would require that an issuer take “reasonable steps” to verify that all purchasers are accredited investors. The SEC’s
Crowdfunding The JOBS Act added a new exemption from registration under Section 4 of the Securities Act to permit a practice known as “crowdfunding.” The exemption, which is directed at smaller offerings and is unavailable to foreign issuers, public companies or investment companies, permits the offer and sale of up to $1 million in securities during any 12-month period in relatively small amounts to a large number of investors, including unsophisticated investors. Specifically, the new exemption limits the aggregate amount of securities that an issuer can sell to a single investor during any 12-month period to (i) the greater of $2,000 or 5% of the annual income or net worth of the investor for an investor whose annual income or net worth is less than $100,000, and (ii) 10% of the annual income or net worth of the investor for an investor whose annual income or net worth is $100,000 or more, up to a maximum investment of $100,000. The crowdfunding exemption includes various investor protection measures in addition to the investment cap discussed above. For example, the exemption imposes certain disclosure and reporting requirements on crowdfunding issuers and the intermediaries hosting the offering (see discussion of “Funding Portals” below). Eligible issuers seeking to rely on the exemption are required to file with the SEC and provide to investors basic information about the issuer, including identifying information about the issuer, its directors, officers and principal shareholders, a description of its business and financial condition, the target offering amount and price, the terms of the securities being offered and the intended use of proceeds. Issuers are also required to disclose the risks of investing in their securities, including
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risks related to minority ownership in the issuer and risks associated with certain corporate actions, such as additional equity issuances, a sale of the issuer or of assets of the issuer, and transactions with related parties. After a crowdfunding transaction, issuers will have ongoing reporting obligations, including the filing of annual financial statements with the SEC. These reporting obligations, which will be established by SEC regulation, are expected to be less burdensome than current reporting obligations for issuers registered under the Exchange Act. Funding Portals. Crowdfunding transactions must be conducted through an intermediary—either a broker or “funding portal”6—that meets a laundry list of disclosure and risk mitigation requirements. Issuers are not permitted to advertise the terms of their offering, but are permitted to issue a notice directing prospective investors to the funding portal or broker. We anticipate that the SEC will provide guidance, either informally or through its rulemaking process, regarding permissible content and distribution channels for such notices. Restricted, Covered Securities. Securities sold in crowdfunding transactions are subject to transfer and resale restrictions and generally cannot be resold for at least one year. Such securities are also “covered securities” (meaning they are exempt from state regulation), but issuers, broker-dealers and funding portals remain subject to enforcement action by state authorities for fraud or other unlawful conduct. State regulators may not require notice filings or fees in crowdfunding transactions, except those regulators in states where (i) the issuer maintains its principal place of business or (ii) 50% or more of the investors in a particular transaction are residents. Rulemaking. Congress granted the SEC broad rulemaking authority with respect to the new crowdfunding exemption and imposed a December 31, 2012, deadline (270 days) to promulgate the rules. Considering the novelty of this exemption, the new regulatory scheme for crowdfunding issuers and intermediaries that must be established, and the amount of consideration that all of the foregoing deserves, the SEC was unable to satisfy this deadline and rules have yet to be proposed as of January 23, 2012.
and retain employees. On the other hand, issuers with over 500 record holders will be required to annually evaluate their shareholder bases to ensure that they do not exceed the non-accredited investor limitation. Companies with large shareholder bases may need to engage a transfer agent to assist them in adequately tracking the number of record holders and non-record holders of their securities to ensure they do not inadvertently trip the registration requirement threshold. Small Company Capital Formation The JOBS Act adds a new paragraph to Section 3(b) of the Securities Act. Section 3(b) (now Section 3(b)(1)) has long housed the statutory underpinning of the infrequently used Regulation A. New Section 3(b)(2) directs the SEC to promulgate a new registration exemption pursuant to which issuers can offer and sell up to $50 million in securities within a 12-month period (a substantial increase from Regulation A, which permitted offerings of up to $5 million). The new regime, which we refer to herein as “Regulation A+,” has potential as a useful tool for capital formation that may fuel the reemergence of small company IPOs. Regulation A+ Requirements. While the specifics of Regulation A+ will be defined by SEC rule, certain limitations and features of the new exemption are imposed by Section 3(b)(2): • •
• Exchange Act Registration Prior to the JOBS Act, an issuer was required to register with the SEC under the Exchange Act if (i) it was listed on a national securities exchange7 or (ii) it had $10 million in assets and 500 or more record shareholders.8 A company that is registered under the Exchange Act must file current and periodic reports with the SEC and comply with certain other requirements of the Exchange Act. The JOBS Act amends Section 12(g) of the Exchange Act to increase the registration threshold for non-listed companies from 500 total record holders to (i) 2,000 total record holders or (ii) 500 record holders that do not qualify as accredited investors.9 For purposes of Section 12(g), the term “record holder” will exclude any employee of the issuer that received securities of the issuer pursuant to an employee compensation plan and will also exclude any person holding securities of the issuer that were issued pursuant to the new crowdfunding exemption, subject to the imposition of conditions to be set forth in rules promulgated by the SEC. The amendments to the Section 12(g) registration threshold will be beneficial to many private companies hoping to avoid the compliance costs and disclosure obligations of the Exchange Act, especially startup companies that rely heavily on equity compensation to attract
Regulation A+ offerings are limited to equity, debt, and convertible debt securities. Securities offered under Regulation A+ can be offered and sold publicly and will not be “restricted securities” (meaning they are freely resalable). Any person offering or selling securities under Regulation A+ will be subject to liability under Section 12(a)(2) of the Securities Act for material omissions and misstatements in any offering materials. This contrasts with traditional exempt offerings that are subject only to antifraud liability under Section 17 of the Securities Act and Rule 10b-5 of the Exchange Act. Subject to terms and conditions to be determined by the SEC, issuers relying on Regulation A+ will be permitted to “test the waters” and solicit interest in their offering prior to filing an
David McDaniel and Geoffrey Neal are associates in the Little Rock office of Kutak Rock LLP. As members of Kutak Rock’s corporate practice group, their practices focus McDaniel primarily on capital formation, securities law compliance matters, corporate governance and mergers and acquisitions. Neal
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Personal Injury Product Liability Medical Negligence Nursing Home Cases 1001 La Harpe Blvd., Little Rock, AR 72201 501-224-7400 1-888-4GARY GREEN (442-7947) www.gGreen.com ggreen@gGreen.com offering statement. Any issuer relying on Regulation A+ will be required to file annual audited financial statements with the SEC. Additionally, the SEC is permitted to establish such additional periodic reporting requirements as it deems appropriate. • The SEC is authorized to promulgate such other terms and conditions that it deems appropriate, including the form of offering document to be used in connection with a Regulation A+ offering and disqualification provisions that would prohibit certain “bad actors” from engaging in a Regulation A+ offering. Covered Securities. Securities offered under Regulation A+ will •
qualify as “covered securities” exempt from state regulation if they are either (i) traded on a national securities exchange or (ii) sold only to “qualified purchasers” (a term reserved for SEC definition). For purposes of federal preemption, the term “qualified purchaser” has remained undefined by the SEC since 1996 and the JOBS Act does not require the SEC to promulgate a rule defining the term. Until a definition is advanced by the SEC, a Regulation A+ offering will effectively be limited to offerings where the issuer intends to list its securities on a national securities exchange (unless the issuer intends to comply with a myriad of state securities registration requirements), which listing will require the issuer to register under and comply with all of the reporting obligations of the Exchange Act.
Emerging Growth Companies The JOBS Act creates a new category of issuer for companies with annual revenues of less than $1 billion—the Emerging Growth Company.10 A company that qualifies as an Emerging Growth Company can conduct an IPO and take advantage of certain scaled disclosure obligations in its initial registration statement as well as its subsequent reports filed under the Exchange Act. Subject to certain limited exceptions, an Emerging Growth Company will retain its status as such and will be able to apprise itself of the scaled disclosure obligations until the earlier of its attainment of $1 billion in annual revenues or five years following its IPO. In addition to the eased restrictions applicable to Emerging Growth Companies, issuers with a public equity float of less than $75 million, referred to as Smaller Reporting Companies (a term defined by SEC Rule), are already subject to and will continue to be subject to the regime of scaled disclosure obligations for Smaller Reporting Companies.
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Scaled Disclosure. The JOBS Act exempts an Emerging Growth Company from the following requirements: (1) conducting shareholder say-on-pay votes, (2) disclosing the ratio of CEO compensation to median employee compensation (as required by Section 953(b)(1) of the Dodd-Frank Wall Street Reform and Consumer Protection Act), (3) disclosing an analysis of executive pay versus issuer performance (as required by Section 14(i) of the Exchange Act), (4) disclosing selected financial data pursuant to Item 301 of Regulation S-K for any period prior to the earliest audited financial statement filed in connection with the company’s IPO, (5) complying with any newly adopted accounting standards that are only applicable to public reporting companies, (6) obtaining an auditor attestation report on its internal controls (as required by Section 402 of the Sarbanes-Oxley Act), (7) mandatory audit partner rotation, and (8) the requirement for an auditor to provide any auditor discussion and analysis. In addition, in its registration statements and periodic reports, an Emerging Growth Company is only required to provide two years of audited financial statements and accompanying Managements’ Discussion and Analysis of Financial Condition and Results of Operations. Permitted Communications. The JOBS Act also lessens the restrictions on pre-offering communications, commonly known as “gun-jumping,” that may be made by an Emerging Growth Company and its advisors. Brokers and dealers may now publish research reports about an Emerging Growth Company that is contemplating an IPO. Such reports may be disseminated at any time prior to, during and after an IPO. Additionally, prior to filing a registration statement for an IPO, an Emerging Growth Company may “test the waters” through oral and written communications to qualified institutional buyers and institutional accredited investors to gauge their interest in investing in the issuer’s securities. Registration Process. Emerging Growth Companies may avoid much of the early publicity that accompanies the filing of an IPO registration statement and the SEC comment process. Under the current registration regime, an IPO company publicly files its registration statement, receives comments on the registration statement from the SEC and responds to those comments with a comment response letter and an amendment
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to the registration statement. The amended registration statement is immediately available for investor scrutiny and the comment response letter is made publicly available after the IPO. Under the new regime, an Emerging Growth Company may submit its draft registration statement to the SEC for review and complete the review and comment process before publicly filing the registration statement; provided, however, the issuer must publicly file its initial registration statement and all amendments at least 21 days prior to the date of the pre-offering road show.
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Endnotes: 1. Pub. L. No. 112-106, 126 Stat. 306 (2012). 2. 17 C.F.R. § 230.506 (2012). 3. Id. § 230.144a. 4. The term “qualified institutional buyer” is defined by 17 C.F.R. § 230.144a to include certain institutional buyers with assets of at least $100 million invested in unaffiliated issuers. 5. 17 C.F.R. § 230.501(a) provides multiple categories of objective criteria for determining if a person is an “accredited investor.”
6. A “funding portal” is defined as any person acting as an intermediary in a crowdfunding transaction that does not (1) offer investment advice or recommendations; (2) solicit purchases, sales, or offers to buy the securities offered or displayed on its website or portal; (3) compensate employees, agents, or other persons for such solicitation or based on the sale of securities displayed or referenced on its website or portal; (4) hold, manage, possess, or otherwise handle investor funds or securities; or (5) engage in such other activities the SEC, by rule, determines. The JOBS Act contemplates the adoption of a new regulatory scheme applicable to the “funding portals” that host crowdfunding offerings. It also relieves funding portals from traditional broker-dealer registration. 7. 15 U.S.C. § 78l(b) (2006). 8. Id. § 78l(g); 17 C.F.R. § 240.12g-1 (2012). 9. For bank holding companies, the 500 non-accredited investor record holder threshold does not apply. 10. Only issuers whose IPO was effective on or after December 8, 2011, may qualify as Emerging Growth Companies. n
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Member Spotlight — Generations of Attorneys l to r: Judge Leon Pesek, Jr. (son), Texas state judge; Phil Pesek (son), Washington attorney; Judge Leon Pesek Sr. (father), retired Texas judge; John Pesek (grandson), Little Rock attorney; Lindsey Pesek (John’s wife), Little Rock attorney Pesek Family l to r: David S. Mitchell, Sr. (son), Little Rock attorney; David S. Mitchell, Jr. (grandson), Memphis attorney; and the late H. Maurice Mitchell (father), Little Rock attorney. Not pictured: Hamilton M. Mitchell (grandson), Little Rock attorney
l to r: U.S. District Judge Jim Moody (father) and Pulaski County Circuit Court Judge Jay Moody (son)
Fogleman Family left photo, l to r: the late Julian B. Fogleman (father), Marion attorney and Judge John Fogleman (son), Arkansas Circuit Court; right photo, l to r: Adam B. Fogleman (grandson), Little Rock attorney and Judge John Fogleman; Not pictured: Julian’s daughter Jennifer Fogleman Brown, Georgia attorney and Julian’s brother, the late Arkansas Supreme Court Chief Justice John A. Fogleman
Henry Family left photo, l to r: Clifford Joseph Henry, Sr. (grandson) and Robert “Bob” W. Henry (son) practice together in Conway in the law firm that Joseph Wendell Henry (father) (right photo), started in 1923
l to r: the late Griffin Smith (son), Little Rock lawyer and producer of the Pulaski County Gridiron Show; Griffin Smith (grandson), lawyer and former editor of the Arkansas Democrat-Gazette; the late Griffin Smith (father), Arkansas Supreme Court Chief Justice (1945 photo) Smith Family Pike Family left photo, l to r: the late Ralph Edwin Wilson, Sr. (father), Osceola attorney; Ralph “Win” Wilson, III (grandson), Little Rock attorney and Judge Ralph Edwin Wilson, Jr. (son) Arkansas Circuit Court; Wilson Family right photo l to r: Judge Wilson and Debra Wilson Bell (granddaughter), Batesville attorney
left photo, l to r: the late George E. Pike, Sr. (father), Dewitt attorney; George E. Pike, Jr. (son), Little Rock attorney; right photo, Deborah Pike Bliss (granddaughter), Little Rock attorney; Not pictured: the late Roy Rasco (George Sr.’s uncle), Dewitt attorney
Member Spotlight continued on page 34
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Vol. 48 No. 1/Winter 2013 The Arkansas Lawyer 33 THE JURY TRIAL
Member Spotlight — Generations of Attorneys l to r: Taylor Chaney (son), lawyer; Terri (Don’s wife ), office manager; Don Chaney (father), attorney; Hilary Chaney (Nathan’s wife), attorney; Nathan Chaney (son), attorney. All with the Chaney Law Firm in Arkadelphia.
l to r: Aaron Ablondi (son) and Leslie R. Ablondi (father) practice together at the Ablondi Law Firm in Little Rock Ablondi Family
Chaney Family l to r: Judge Brandon Harrison (son), Arkansas Court of Appeals and Ron D. Harrison (father), Fort Smith lawyer
Brasuell, Baker & Jefferson Family
l to r: Chuck Gibson (grandson) and Charles Sidney Gibson (son) pose by a portrait of the late John F. Gibson, Sr. (father). The Gibson Law Office has been in Dermott since 1938. Not pictured: Gibson Family John Frank Gibson, Jr., Circuit Judge Robert Bynum Gibson, Jr., Charles Clifford Gibson III, Marcie E. Gibson, Jill Gibson Odell and the late Robert Bynum Gibson III.
Compton Family left photo, l to r: Maggie Hobbs (granddaughter), law student; Cathi Compton (daughter), Little Rock lawyer; Walter Compton (son), El Dorado lawyer, pose next to a photograph of the late Robert C. “Bob” Compton (father). Center photo, left: the late Robert C. Knox (great uncle), Arkansas Supreme Court Associate Justice. Right photo: Judge Bill Wilson (Cathi’s husband). Not pictured: James C. Knox (Robert’s father), Drew county lawyer; and Robert Cornelius Knox (James’s C. Knox’s father), Drew county lawyer and judge.
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l to r: Cris Brasuell (Toney’s wife; court reporter); Toney Brasuell (son), Little Rock lawyer; Janet Baker (mother), Little Rock lawyer; Leigh BrasuellJefferson (daughter), Kentucky lawyer; Professor Lee Jefferson (Leigh’s husband); and (sitting) the late Roy Baker Jr. (grandfather), Harrison lawyer
l to r: Tom Curry (father), Arkadelphia lawyer; Erin Hawkes Curry (daughterin-law), Fayetteville lawyer; and Andrew Curry (son), Rogers lawyer.
l to r: Valerie Glover Fortner (daughter), Assistant Attorney General; Judge David M. Glover (father), Arkansas Court of Appeals; and David Glover (son), Little Rock lawyer. Not pictured: Judge Glover’s father, Lawson Glover, was licensed in 1938 and his grandfather D.D. Glover, was licensed in 1913.
l to r: Vicki Vasser (daughter), Rogers attorney; Glenn Vasser (father), Prescott lawyer; and Judy Vasser (mother)
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Vol. 48 No. 1/Winter 2013 The Arkansas Lawyer
Justice Freeman Walker Compton — Three Time Justice by J.W. Looney Freeman Walker Compton has the distinction, along with Justice David Walker and Justice Elbert English, of serving on the Arkansas Supreme Court three non-consecutive and distinct terms. He was first elected to the court in 1858 after having attracted the attention of the legislature while serving as a special judge on the Supreme Court to resolve the so-called “swamp land” cases in 1857-58. He continued to serve on the court after Arkansas seceded although the work of the court was reduced considerably during the war years and by 1864 was not functioning at all. A new constitution was adopted under federal military auspices and a separate Supreme Court elected. Following the war, a new election was held in August 1866, and Justice Compton was elected to serve on the court a second time. This would not last. The first federal Reconstruction Act of 1867 declared that no legal state governments existed anywhere in the South. New constitutions were demanded of the southern states and current officeholders were no longer in power. In response to the Reconstruction Act, a new constitution in 1868 provided for popular election of associate justices. (The Chief Justice was appointed by the governor.) This period of political unrest culminated in the “BrooksBaxter war,” a contest over control of state government. Compton was one of the lawyers representing Elisha Baxter in litigation concerning his claim to the governship. Three members of the Supreme Court were impeached by vote of the House of Representatives. Governor Baxter then appointed three Democratic replacements, including Compton. An 1874 constitution (the current one) was then approved which reduced court membership to three. Compton returned to the practice of law in Little Rock following his third stint on the court. Compton had moved to Arkansas in 1849 from Tennessee and was a major cotton planter in addition to his law practice. He was born in Orange County, North Carolina, January 15, 1824, and studied law in Maxville, North 36
The Arkansas Lawyer
Carolina. He moved to Greeneville, Tennessee, in 1844 and was admitted to the bar, perhaps prematurely, before he reached the age of 21. He moved to Arkansas in 1849 living first in Princeton then moving to Camden in 1852. While in Princeton he married Susan Frances Lea October 22, 1851. They had four children who survived to adulthood. He died May 28, 1893, and is buried in Oakland Cemetery in Little Rock. During his service on the Confederate court, Justice Compton Associate Justice Freeman Walker Compton was involved in some of the imporPhoto courtesy of the J.N. Heiskell Collection, tant cases involving interpretation of University of Arkansas at Little Rock Archives the 1861 secession constitution. Most significant was Burt v. Williams,1 in by the proclamation since it was issued as a which legislation that attempted to continue all court proceedings until after peace war measure under the President’s authority as was satisfied was found to be in violation of a commander-in-chief.4 Justice Compton was described as over six the constitution (speedy trial rights in criminal feet tall and “stout,” perhaps weighing 300 cases; impairment of contracts in civil cases). While serving on the court the second time pounds or more. He was apparently slow and in 1866, Justice Compton addressed a related deliberate in speaking (some suggest “voluquestion regarding Confederate legislation minous”) but clear and precise in his writing. which suspended the statute of limitations on This is evident in his opinions which exhibit all debts during the conflict. The court permit- somewhat less of the pedantry common for ted the period from adoption of the legislation the time. (Dec. 1, 1862) until adoption of the 1864 constitution (Mar. 16, 1864) to be disregarded Endnotes: in calculating the time period for court actions 1. 24 Ark. 91 (1862). 2. Bennett v. Worthington, 24 Ark. 487 (1866). to be brought.2 The court invalidated action by the “federal” 3. 24 Ark. 242 (1866). legislature (elected under the 1864 constitu- 4. Dorris v. Grace, 24 Ark. 365 (1866). tion) which prohibited collection of debts by any person who had violated an oath of alle- Judge J.W. Looney is a Circuit Judge, 18-W giance, aided the rebellion or was in the army. Judicial Circuit (Polk and Montgomery This, in Vernon v. Henson,3 the court found it Counties) and Distinguished Professor, to be in clear conflict with the U.S. constitu- Emeritus, University of Arkansas School of tion’s prohibition against laws impairing the Law. obligation of contracts. In addition, the court addressed the effect This article is provided by the Arkansas of the Emancipation Proclamation in a trans- Supreme Court Historical Society, Inc. For action in a part of the state not yet under more information on the Society contact Rod federal control when it occurred. The court Miller, Arkansas Supreme Court Historical ruled that rights of slave owners beyond the Society, Justice Building, Email: rod.miller@ lines of federal occupation were not affected arkansas.gov; Phone: 501-682-6879.
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Vol. 47 No. 1/Winter 2012 The Arkansas Lawyer Vol. 48 No. 1/Winter 2013 The Arkansas Lawyer
Judicial Disciplinary Actions & Attorney Disciplinary Actions The Judicial Discipline and Disability Commission issued the following Final Actions. Full text documents are available on-line at http://www.state.ar.us/jddc/ press_releases.html. On October 4, 2012, the Arkansas Judicial Discipline and Disability Commission issued an Order of Suspension to 10th Judicial District Judge Sam Pope of Hamburg in Commission case #12-763. On October 25, 2012, the Arkansas Judicial Discipline and Disability Commission announced that former Drew County Judge Ken Harper resigned his upcoming term and that there will be no Formal Disciplinary Hearing in case #12-233. Final actions from October 1, 2012, through December 31, 2012, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available on-line at http://courts.arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Attorney” link on the home page. [The “Model” Rules of Professional Conduct are prior to May 1,
2005. The “Arkansas” Rules are in effect from May 1, 2005.]
2012, at 2012 Ark. 410, and ordered her barred from practicing law in Arkansas.
SURRENDER of LICENSE:
MICHAEL R. SHAHAN, Bar No. 93175, of Springdale, Arkansas, in No. 12-799, petitioned the Court to accept the surrender of his Arkansas law license, based on his guilty plea in May 2011 to a felony count of sexual assault in the first degree in Crittenden County Circuit Court. The Court accepted his petition on November 15, 2012, at 2012 Ark. 433, and ordered him barred from practicing law in Arkansas, thereby mooting the pending petition for disbarment filed September 18, 2012.
FRED D. DAVIS, III, Bar No. 72033, of Jefferson County, in Supreme Court disbarment proceeding No. 05-501, on November 29, 2012, at 2012 Ark. 440, was assessed a five (5) year prospective suspension of his law license by the Court as a result of an adjudication of his guilt by a jury in early 2005 of the Class C felony offense of attempting to evade or defeat a tax. The trial resulted in a three-year suspended imposition of sentence, an outcome affirmed on appeal in 2006. Davis was found to have violated Arkansas Model Rules 8.4(b) (criminal conduct) and 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). In October 2002, Davis, then a sitting circuit judge, purchased a new truck, but failed to properly license it or pay the state sales tax on it. In June 2004, Davis was arrested for DWI and his failure to pay the state vehicle sales tax was discovered. He promptly paid all tax and penalty, but was soon charged with the felony. Davis resigned his judicial office in March 2005.
HOLLY C. STEVENS, Bar No. 2005017, of Little Rock, Arkansas, previously licensed in North Carolina in 1998, in No. 12-904, petitioned the Court to accept the surrender of her Arkansas law license based on her prior disbarment in the State of North Carolina on March 4, 2011, for conduct involving fraudulent practices in real estate transactions, and in lieu of facing reciprocal disciplinary proceedings in Arkansas for that serious misconduct. The Court accepted her petition on November 1,
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Attorney Disciplinary Actions The disbarment case was filed in May 2005, and Davis was thereafter on interim suspension until the Supreme Court ruled. DANA A. REECE, Bar No. 87142, of Little Rock, Arkansas, in Case No. CPC 2012-051, was suspended for a period of thirty-six (36) months specifically only from representing clients before the Arkansas Supreme Court or the Arkansas Court of Appeals by Panel B of the Committee on Professional Conduct on November 28, 2012, for violation of Rules 1.1, 1.3, and 8.4(d). Ms. Reece represented Cristobal Mancia, an inmate at the Arkansas Department of Correction, in a Rule 37 Petition for Post-Conviction Relief. The petition was denied on March 7, 2011, and Motion to Reconsider Dismissal and Reinstate Mr. Mancia informed Ms. Reece that he Appeal and Motion to File Belated Brief. The wished to appeal the denial. Ms. Reece filed Arkansas Supreme Court granted the motion a notice of appeal on March 7, 2011. The and reinstated the appeal on December 1, record was timely filed and Ms. Reece filed 2011. The matter was then referred to the two Motions for Extension of Time. Both Committee on Professional Conduct. Ms. motions were granted and a brief was due to be Reece had been sanctioned previously in six filed by August 25, 2011. No brief was filed, other disciplinary matters involving appeals and the State of Arkansas filed a Motion to to the Arkansas Supreme Court and Court Dismiss. On October 27, 2011, the Arkansas of Appeals. This suspension applies only to Supreme Court granted the State’s motion. matters involving appeals to the Arkansas 1210608 ADR Ar Lawyer Winter 2013 Ad:ADR Ad 12/11/12 3:59 PM Page 1 On November 4, 2011, Ms. Reece filed a Supreme Court and Court of Appeals and the
Panel directed that the suspension be effective from April 24, 2012, the date of the filing of the Findings and Order in the case of In Re: Dana A. Reece, CPC Docket No. 2011-085, and run concurrently with the similar “appellate” suspension in that matter. REPRIMAND: JEFFREY L. SINGLETON, Bar No. 99173, of Little Rock, Arkansas was reprimanded by Committee Findings and Order filed
Welcomes Travis Berry Travis Berry is certiﬁed by the Arkansas Alternative Dispute Resolution Commission as a mediator for Arkansas’ Circuit Courts. He joins our other certiﬁed mediators and arbitrators with decades of legal and judicial experience. Travis is a graduate of the University of Arkansas at Little Rock School of Law where he was a member of the Law Review. Travis is an Advocate with the American Board of Trial Advocates (ABOTA) and a member of the Million Dollar Advocates Forum. He is a member of the Top 100 Trial Lawyers with the American Trial Lawyers Association and a member of the Top 100 Trial Lawyers with the National Trial Lawyers Association. The National Board of Trial Advocates (NBTA) has certiﬁed Travis Berry as a Board Certiﬁed Civil Trial Advocate and the National Board of Legal Specialty Certiﬁcation has certiﬁed him as a Board Certiﬁed Civil Pre-Trial Advocate. He has an AV Preeminent peer rating with Martindale-Hubbell, the organization’s highest level of professional excellence. Travis has 30 years of trial experience and nearly 100 jury trials tried to verdict. He has represented Plaintiffs in cases ranging from medical negligence, product liability, ﬁre claims, motor vehicle accidents, defective ﬁrearms and several other areas. He has also represented Defendants in hundreds of motor vehicle defense cases over the years. He was lead counsel for the Plaintiff in a product liability multi-district litigation in Federal Court with cases in seven states and has represented Plaintiffs and Defendants in class action litigation. He founded the Gar Gig Continuing Legal Education event held each year at Cedar Lodge in Arkadelphia on the Ouachita River and was selected again in 2012 by his peers to be featured in the Mid-South Super Lawyers Magazine. For more information about Travis and how ADR, Inc.’s experienced, professional and reasonably priced mediators can help you, or to book a mediation call our main ofﬁce in Little Rock.
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Vol. 48 No. 1/Winter 2013 The Arkansas Lawyer
Attorney Disciplinary Actions December 10, 2012, on a self-referral made by Mr. Singleton, and report of Honorable Mackie Pierce and Attorney James Keever, in Case No. CPC 2011-083, for violations of Rules 4.4, 8.4(a) and 8.4(d). Singleton self-reported his conduct in a civil matter pending in Pulaski County Circuit Court. During the course of his representation (defense) of a doctor in a medical malpractice action, Mr. Singleton sent the doctor an e-mail suggesting that he think of “backdoor ways” to cause the Plaintiff’s medical expert to decide he did not want to testify in the litigation. He was specific to the point of mentioning the expert’s university employer as someone to be contacted to cause the decision to be made to not testify. Relying on Mr. Singleton’s suggestion, his client, Dr. Kravatz, sent e-mails which were improper and which caused much activity and additional hearings before Judge Pierce in the pending litigation. There was no legitimate, ethical purpose for the e-mails or for the suggestion to engage in conduct in an effort to find “backdoor ways” to put pressure on Plaintiff’s named expert. CAUTION: J. REBECCA HASS, Bar No, 2000172,
of Fayetteville, Arkansas, was cautioned by Committee Findings and Order filed October 19, 2012, on a complaint filed by Stephen May, a former client of Ms. Hass, in Case No. CPC 2011-097 for violations of Rules 1.3, 1.15(a)(5), 1.15(b)(2) and 1.16(d). In February 2010, Stephen May hired Ms. Hass to represent him in a divorce matter. Ms. Hass was paid for the representation and filed a divorce complaint for Mr. May. Mr. May’s estranged wife filed for bankruptcy, so Ms. Hass filed to postpone the divorce matter pending the bankruptcy proceeding. Mr. May continued to provide Ms. Hass with voluntary child support payments to send to Mrs. May through her counsel. At some point, Ms. Hass became completely unavailable to Mr. May. According to him, he continued to try to reach her. According to her, she told Mr. May to find other counsel because she was closing her office. Finally, Mr. May made contact with Jason Boyeskie who agreed to assist Mr. May with his divorce action and a child support matter that had been opened against him. Mr. Boyeskie wrote Ms. Hass and requested the file and any funds owing to Mr. May. There was initially no response and then an assertion that the file would be sent. It was not sent. Ms. Hass
was contacted by the Office of Professional Conduct and in response to that inquiry stated that she would be sending the file and a check to Mr. May. Although requested in May 2011 to provide an accounting of funds she was holding for Mr. May’s child support payments and volunteering to send a check made payable to him to Mr. Boyeskie of funds she is to have in her trust account, Ms. Hass did not deliver the funds until October 2011 after contact by the Office of Professional Conduct. In addition, Ms. Hass failed to deposit into her client trust account the payment delivered to her by Mr. May when he first hired Ms. Hass to represent him, with such payment including fees not yet earned and expenses to be paid in filing and serving the divorce complaint. In spite of requests for return of his file contents after Ms. Hass ceased to represent Mr. May, Ms. Hass failed to return Stephen May’s documents to him from May 2011 until November 2011, and then only after contact by the Office of Professional Conduct, and, in spite of requests in May 2011 for return of funds delivered to Ms. Hass for payment of his child support, Ms. Hass failed to return those funds to Mr. May until October 2011 after contact made by Staff of the Office of Professional Conduct. n
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MEMBER BENEFI T OF T HE A R K A NSA S BA R A SSOCI AT ION
SSE Trials continued from page 18
program, as well as recommendations for maximizing effective preparation for and presentation at an SSE trial. The development of all of those skills has possible pervasive implications. The current litigation process encourages attorneys to develop an all-inclusive, litigious approach to cases, whereas the SSE program prioritizes and hones the skill of highlighting only what is important. SSE programs seek to address inefficiencies that currently exist in our civil justice system by streamlining both pretrial and trial proceedings in select cases. It is also possible to make the pretrial and trial process more efficient in non-SSE program cases by incorporating some of these same principles. Moreover, the more attorneys try cases in front of juries, the more comfortable they become both with the process and the potential outcome. Thus, it is possible that use of SSE programs could actually change the litigation culture as a whole over time. Implementing an SSE Program The Design The Committee has pooled both anecdotal and empirical data about SSE programs around the country and has drawn from the individual expertise of the Committee members. Out of that pool of information, the Committee has distilled the elements that characterize the more successful programs and has also created a check-list of decisions that a jurisdiction should review when designing a program. The SSE program should be designed to address existing obstacles that impede efficient case processing and resolution in that jurisdiction, but without introducing procedures or requirements that affect otherwise well-functioning processes. The table below identifies some common obstacles described in the NCSC study and the solutions that the SSE programs implemented to address those obstacles. At the same time, changes in procedures should be made only as needed to craft an effective SSE program. For example, jury procedures should be the same in the SSE programs as in regular civil litigation wherever possible. The obstacles posed, and the corre-
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sponding SSE program benefits that may be achieved, may also shift during the course of an individual case. For this reason, programs should be sufficiently flexible to permit early entry, for those who seek a streamlined pretrial procedure, and late entry, for those who just want an abbreviated trial, perhaps because only one
issue remains after summary judgment. Other components of successful programs appear to be presenting the option to counsel and the parties on an individualized basis (through case management orders or at status conferences) and creating certainty regarding who the judge will be for the case.
Vol. 48 No. 1/Winter 2013 The Arkansas Lawyer
the option to counsel and the parties on an individualized basis (through case management orders or at status conferences) and creating certainty regarding who the judge will be for the case.
Potential SSE Program Solutions
Civil case backlogs create scheduling delays for civil trials with regularly assigned civil trial judges
Permit SSE program trials to be tried to non-judicial personnel (e.g., special referees, judges pro tempore) or magistrate judges
Calendaring preferences for non-civil trials undermine trial date certainty
Permit SSE program trials to be tried to non-judicial personnel (e.g., special referees, judges pro tempore) or magistrate judges
Pretrial case management does not permit early identification of trial judge
Assign SSE program cases to one or more highly qualified and SSE designated trial judges
Length of civil trials makes it difficult to calendar cases for trial
Restrict trial length; restrict amount or form of trial evidence
Length of voir dire makes civil jury trials too lengthy
Designate smaller jury panel size; provide fewer peremptory challenges; shorter voir dire time
Expert witness fees make it too expensive to take cases to trial
Restrict expert evidence (number and/or form)
Discovery process is disproportionately excessive for lower value or less complex cases
Restrict the scope and/or time limit for discovery
Discovery disputes take too long to resolve, increasing expenses and delaying trial readiness
Create a process to expedite resolution of discovery disputes, including more immediate access to trial judge or discovery master and preference for informal telephonic conferences rather than formal motions, briefs, and hearings
Mandatory ADR creates needless procedural hurdles without significantly improving case resolution rates
Permit SSE program cases to opt out of mandatory ADR
Editorâ€™s Note: Below are the endnotes for this excerpt of the IAALS, the Institute for the Advancement of the American Legal System, report. To view the remainder of the report, go to http://iaals.du.edu/AReturntoTrials. Endnotes 1 According to state court disposition data collected by NCSC from 2000 to 2009, the
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percentage of civil jury trials dropped 47.5% across the period to a low 0.5% in 2009. Data on federal civil cases shows a decline in cases resolved by trial from 11.5% in 1962 to 1.8% in 2002, illustrating the historic trend away from trials. Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. Empirical Legal Stud. 459, 461, 464
(2004) (noting that in 1938, â€œthe year that the Federal Rules of Civil Procedure took effect, 18.9 percent of terminations were by trialâ€?). 2. National Center for State Courts, Short, Summary & Expedited: The Evolution of Civil Jury Trials (2012), available at http://www.ncsc.org/SJT/. 3. For examples of pretrial and trial agreements, see Stephen D. Susman, Trial
by Agreement, http://trialbyagreement.com (last visited Sept. 24, 2012). 4. Some parties that agree to a short, summary, and expedited procedure also enter into a highlow agreement, where both parties agree that the outcome of the case will be no less than the low amount, nor in excess of the high amount. 5. Employers also benefit significantly from reduced employee absence and, as a result, employers may be more willing to pay employee wages even when not required by law. n NEW Law Practice Management Website
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Greenwashing continued from page 25
Jennifer Williams Flinn
outlined above and avoid the traps into which other companies have fallen, nothing should stop any company from successfully marketing the “green” aspects of its products or services. Endnotes 1. 16 C.F.R. pt. 260. 2. 15 U.S.C. § 1125. 3. 15 U.S.C. § 2301 et seq. 4. Jen Quraishi, “Fiji Water Sued for Greenwashing,” Mother Jones (Jan. 7, 2011), available at http://www.motherjones. com/blue-marble/2011/01/fiji-water-suedgreenwashing; see also Hill v. Roll Int’l Corp., 128 Cal. Rptr. 3d 109 (Cal. Ct. App. 2011) (affirming dismissal of consumers’ claim for greenwashing against Fiji water because the manufacturer allegedly placed a green water drop and pictures of Earth on the bottles of Fiji water to represent that its product was “environmentally superior” when it was not). 5. Jerry Hirsch, “Honda Loses Civic Hybrid Small Claims Court Lawsuit,” L.A. Times (Feb. 1, 2012), available at http://articles. latimes.com/2012/feb/01/business/la-fi-mohonda-loses-civic-lawsuit-20120201; see also Paduano v. American Honda Motor Co., 88 Cal. Rptr. 3d 90 (Cal. Ct. App. 2009) (allowing consumers’ claims for greenwashing to proceed). 6. Koh v. S.C. Johnson & Son, Inc., No. C-0900927, 2010 WL 94265 (N.D. Cal. Jan. 6, 2010). 7. Panasonic Corp. of N. America, NAD Case No. 4697 (July 16, 2007). 8. Apple Inc., NAD Case No. 5013 (June 3, 2009); see also Andrew LaVallee, “Dell Challenges Apple’s Greenness,” Wall Street Journal (June 19, 2009), available at http://blogs.wsj.com/digits/2009/06/19/ dell-challenges-apples-greenness/. 9. Euro-Pro Operating, LLC v. Euroflex Americans, No. 08cv6231, 2008 WL 5137060 (S.D.N.Y. Dec. 8, 2008). 10. Wallis v. Ford Motor Co., 362 Ark. 317, 208 S.W.3d 153 (2005). 11. Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993). 12. Coghlan v. Wellcraft Marine Corp., 240 F.3d 449, 455 n.4 (5th Cir. 2001) (cited with approval and followed in Wallis, 362 Ark. at 323-25, 208 S.W.3d at 158-59). 13. Wallis, 362 Ark. at 325, 208 S.W.3d at
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159. Notably, the plaintiff in Wallis failed to bring a claim for breach of warranty, which the Court explicitly noted when it dismissed the fraud count. Id. at n.3. This footnote seems to imply that a breach-of-warranty claim may have been cognizable under the plaintiff’s fact scenario. 14. Id. at 318, 208 S.W.3d at 154. 15. Id. at 318, 208 S.W.3d at 154-55. 16. Id. at 325, 208 S.W.3d at 159. 17. Id. at 323, 208 S.W.3d at 158. 18. Id. at 324, 208 S.W.3d at 159. 19. Ark. Code Ann. § 4-88-101 et seq. 20. Ark. Code Ann. § 4-88-107(a)(1). 21. Ark. Code Ann. § 4-88-113.
22. Id. 23. Ark. Code Ann. § 4-88-113(a)(2). 24. See, e.g., In re West Virginia Rezulin Litig., 585 S.E.2d 52, 74-75 (W. Va. 2003). 25. Ark. Code Ann. § 4-88-113(f). 26. Wallis, 362 Ark. at 328-29, 208 S.W.3d at 161-62. 27. Ark. Code Ann. § 4-2-313(1)(a). 28. See Currier v. Spencer, 299 Ark. 182, 772 S.W.2d 309 (1989). 29. Ark. Code Ann. § 4-2-714(1). 30. Ark. Code Ann. § 4-2-714(2); Arkansas Model Jury Instructions 2520 (2012 ed.). 31. Ark. Code Ann. § 4-88-101(1). n
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Arkansas Bar Foundation Memorials and Honorarium The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during the period October 1, 2012, through December 31, 2012: In Memory of Richard W. Byrd Hyden, Miron & Foster, PLLC In Memory of Ann Dawson Judge James M. Moody In Memory of Judge Nancy C. Dreher Judge James G. Mixon (designated to the Ernest Lawrence, Jr., Scholarship Fund) In Memory of Winslow Drummond Judge James M. Moody In Memory of Julian B. Fogleman Jeffrey and Lester McKinley (designated to the McKinley Family Scholarship Fund) Judge Bill Wilson and Cathi Compton In Memory of Clyman Edward Izard, Jr. Barbara and Jeff Pence In Memory of John Lingle Roger Colbert Donis B. Hamilton James V. Scurlock, II In Memory of Ed M. Massey B. Jeffery Pence
In Memory of Marion “Mickey” Roberts Judge Bill Wilson and Cathi Compton In Memory of Sammy Lou Taylor Judge James M. Moody In Memory of R. Christopher Thomas W. Christopher Barrier Katy and Ralph Cloar Hayden and Gordon Rather B. Jeffery Pence Roscopf & Roscopf, P.A. Judge John F. Stroud, Jr. Judge Bill Wilson and Cathi Compton Carolyn Witherspoon In Memory of Roxanne Tomhave Wilson, Designated to the Roxanne Tomhave Wilson Scholarship Fund Judge James M. Moody In Memory of Judge Henry Woods Designated to the Judge Henry Woods Scholarship Fund Judge James M. Moody
In Memory of James H. McKenzie, Designated to the Horace H. and James H. McKenzie Scholarship Fund Judge James M. Moody
Honorariums and Scholarship Contributions
In Memory of Christopher C. Mercer, Jr. Judge John and Sue Plegge Roscopf & Roscopf, P.A. Judge Bill Wilson and Cathi Compton
McKinley Family Scholarship Fund Jeffrey and Lester McKinley
In Memory of A. Delbert Mickel, Jr. Michael R. Gott, P.A. In Memory of Judge William R. Overton, Designated to the Judge William R. Overton Scholarship Fund Judge James M. Moody In Memory of Senator Arlen Specter Judge Bill Wilson and Cathi Compton
In Memory of James A. McLarty (father of Jim McLarty of Newport) Jeffrey and Lester McKinley (designated to the McKinley Family Scholarship Fund)
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In Honor of Judge Robert F. Fussell Judge James M. Moody
Wright, Lindsey & Jennings LLP Scholarship Fund Wright, Lindsey & Jennings LLP Memorial Gifts Please remember the Arkansas Bar Foundation when you choose to make a memorial gift honoring a family member, a colleague or a friend of the profession. Contributions may be sent directly to: Arkansas Bar Foundation • 2224 Cottondale Lane Little Rock, Arkansas 72202 Please feel free to call the Arkansas Bar Foundation at 501.375.4606 for further information.
Ray Christopher Thomas Ray Christopher Thomas of Little Rock died on December 11, 2012, at the age of 63. He graduated from the University of Arkansas at Fayetteville in 1971 with a degree in Business Administration. Afterwards he attended the UALR School of Law where he received a JD degree and served on the Arkansas Law Review. As a professional, Chris served as Deputy Prosecuting Attorney for the Sixth Judicial Circuit in 1976, followed by nine years of private practice of law, according to his obituary. He was a member of the Arkansas Bar Association where he served on the House of Delegates while also participating in the work of various committees of the Bar Association. He was also a member of the Pulaski County and American Bar Associations and the Arkansas Trial Lawyers Association. From 1985 through July of 1988 he was the Executive Secretary of the Arkansas Judicial Department, now known as the Administrative Office of the Courts. In this position, he worked to reorganize the Judicial Department by making it a more direct agency of the Supreme Court of Arkansas to improve its efficiency. He also collaborated with many others to enact an amendment to
the Arkansas Constitution which increased the jurisdiction of the Municipal Courts of the state. During this time he also was a member of the Interest on Lawyers Trust Accounts Board and represented the Chief Justice on the Arkansas Crime Information Center Board. In 1988 he was appointed by the Arkansas Supreme Court to be the Director of the Office of Professional Programs. In that position he acted as the Executive Secretary for the Board of Law Examiners and Executive Secretary of the Arkansas Supreme Court. The Arkansas Judges and Lawyers Advocacy Program recently honored Chris with the Justice Robert L. Brown Community Support Award. Chris is survived by his wife, Mary Burbage Thomas; his daughter, Jennifer Anne Thomas Eddy; and his son, Jordan McClellan Thomas.
James A. Buttry James A. Buttry of Little Rock died January 7, 2013, at the age of 72. He graduated from the University of Arkansas School of Law (LLB) in 1963 and from Georgetown University (LLMTaxation) in 1966. He was Editor-in-Chief of the Arkansas Law Review. He served three years in the United States Army, being discharged as a Captain in 1966, according to his obitu-
ary. He practiced law in Newport, Arkansas ,from September 1966 to September 1967, with Fred Pickens, Wayne Boyce and Kenneth Castleberry. In 1967 he joined the Little Rock firm now known as Friday, Eldredge and Clark, LLP, where he actively practiced law as a bond lawyer until 2010. He was of counsel to the law firm at the time of his death. He was a member of the Arkansas Bar Association where he served on the Executive Council and House of Delegates. He also served on numerous committees, including the Lawyers for Literacy, Law Related Education, and International Law Committees. He served as chair of the Young Lawyers Section in 1970. He was a Fellow of the Arkansas Bar Foundation. He was a member of the National Association of Bond Lawyers. He was a member of the American, Arkansas and Pulaski County Bar Associations. He is survived by his wife of 50 years, Virginia Ann Hays Buttry; and three sons, Altus H. Buttry, Edwin C. Buttry and James A. Buttry. William K. Ball William K. “Bill” Ball of Auburn, Washington died October 13, 2012, at the age of 85. He earned his undergraduate degree from the University of Arkansas and his Juris Doctorate degree from the University of Arkansas School of Law. He entered the U.S. Army in 1945 where he was commissioned a 2nd Lieutenant, according to his obituary. He began his law career as a clerk for Justice Rose Smith. In June of 1954, he became an associate attorney with the law firm of Williamson & Williamson in Monticello. The firm later became Ball & Bird and continues today as the Barton Law Firm. He was a member of the Arkansas Bar Association. He was a special associate justice to the Arkansas Supreme Court and a member of the Arkansas State Law Examiners. n
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