DICTA June 2024

Judicial Profile: The Honorable Suzanne Bauknight, 2024 Law & Liberty Award Recipient . . . Page 6 Schooled in Ethics: Important Guidance on Prospective Clients . . . Page 19

A Monthly Publication of the Knoxville Bar Association | June 2024

FTC BANS MOST EMPLOYEE NON-COMPETE AGREEMENTS

K NO X V I L L E B A R A S S O CIA TION C O NT I NU I NG L E G A L E D UCA TION

K N O X V I L L E B AR ASSOCIAT IO N CO N TI N UI N G LEG AL EDU CAT IO N

Upcoming CLE Guide

END-OF-THE-YEAR CLE

UNLOCK YOUR CALENDAR: EXCITING CLE WEBINARS COMING IN JUNE & JULY Is There a Human in the House?! The Ethical and Legal Implications of AI Technology in Mediation Tuesday, June 4, 12-1 p.m. | Webinar via Zoom Joseph G. Jarret, J.D., Ph.D., Attorney At Law, Federal & State Mediator Presented by the KBA ADR Section Approved for 1 hr. Dual CLE & 1 hr. Ethics CME Credits

Advanced Legal Research Tuesday, June 11, 12-1 p.m. | Webinar via Zoom

Register for any of these programs by visiting knoxbar.org/CLE or by scanning the QR Code below

David Francisco, Esq., Decisis Sponsored by Decisis | https://www.knoxbar.org/Decisis Approved for 1 hr. Dual CLE

Creditor Rights and Wrongs in Estate Administration Thursday, June 13, 12-1 p.m. | Webinar via Zoom O. E. “Sonny” Schow, IV, Woolf, McClane, Bright, Allen & Carpenter, PLLC Presented by the KBA Bankruptcy Section Approved for 1 hr. General CLE

Understanding True Income for Support from Tax Documents Including Paystubs, W-2s, K-1s etc.

Friday, June 14, 4-5 p.m. | City Country Building, Small Assembly Room Robert Vance, CPA, ABV, CFF, CVA, Forensic & Valuation Services, PLC Presented by the KBA Family Law Section Sponsored by Robert Vance and Forensic & Valuation Services, PLC | forensicval.com Approved for 1 hr. General CLE

Family Law 101: An Introduction and Overview

Thursday, June 20, 12:30-1:30 p.m. | City Country Building, Small Assembly Rm. Chancellor Christopher D. Heagerty, Knox County Chancery Court, Part III Jennifer Burton McKinnish, McKinnish Law Group, PLLC Presented by the KBA Solo Practitioner & Small Firm Section Approved for 1 hr. General CLE

2024 Legislative Update Thursday, July 11, 12-1 p.m. | Webinar via Zoom Stephanie D. Coleman, Owings, Wilson & Coleman J. Douglas Overbey, Owings, Wilson & Coleman Approved for 1 hr. General CLE KBA members can watch 120+ CLE programs in the On Demand Catalog at a discounted rate! Visit knoxbar.org/ondemand

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DICTA

Questions? Contact Us

(865) 522-6522 cle@knoxbar.org

June 2024

In This Issue

Officers of the Knoxville Bar Association

June 2024

COVER STORY 16

FTC Bans Most Employee Non-Compete Agreements

CRITICAL FOCUS 5 President Carlos A. Yunsan

President Elect Jonathan Cooper

Treasurer Rachel Park Hurt

Secretary Ursula Bailey

Immediate Past President Loretta G. Cravens

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KBA Board of Governors Melissa B. Carrasco Joan M. Heminway Ian P. Hennessey William A. Mynatt, Jr.

T. Mitchell Panter M. Samantha Parris Courtney Epps Read Vanessa Samano Charles S.J. Sharrett

James T. Snodgrass James R. Stovall Alicia J. Teubert Hon. Zachary R. Walden

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19

The Knoxville Bar Association Staff

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President’s Message

Distressful or Pivotal? Yes!

Practice Tips

De Minimus No More: Lessons on Religious Accommodations from Groff v DeJoy

Legal Update

Title VII’s Adverse Action Standard May Now be Adverse for Employers . . . But Not Employees

Schooled in Ethics

Important Guidance on Prospective Clients

Management Counsel

Is Adverse Action Necessary for Failure to Accommodate Claims Under the ADA?

WISDOM 6

Tasha C. Blakney Executive Director

Tammy Sharpe Director of CLE & Section Programming

Jonathan Guess Bridgette Fly Membership Coordinator Programs & Communications Coordinator

Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org Tracy Chain LRIS Administrator

Dicta

June 2024

12 13 14 15

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Volume 52, Issue 6

All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment).

Exceptions to this policy must be cleared

by KBA Executive Director Tasha Blakney (522-6522).

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Jason Galvas LRIS Assistant

DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association.

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Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Executive Editor Executive Editor Executive Editor Brandon Allen Anita D’Souza Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho Matthew R. Lyon

Managing Editor

Cathy Shuck Sarah Booher Melissa B. Carrasco Wade H. Boswell, II Robin McMillan Angelia Morie Nystrom Katheryn Murray Ogle Laura Reagan Ann C. Short Eddy Smith Grant Williamson

Tasha C. Blakney KBA Executive Director

DICTA

24 25 26 27 29 31

Judicial Profile

The Honorable Suzanne Bauknight, 2024 Law & Liberty Award Recipient

In Limine: Profiling Future JDs

Debora M. Calixto de Oliveira

Why Did the Lawyer Cross the Road For Pete’s Sake

What I Learned about Inclusion and Why It Matters

The Role of Inclusion in Justice for All

The Oath

Say Nothing

Hello My Name Is

Miranda Goodwin

Privileged to Be a Lawyer

I Love Being a Lawyer

Practice Wisdom

Protecting the Brand

Around the Bar

The KBA Journeys to Panama

Legally Weird

No More Hall & Oates? Say It Isn’t So!

Top Ten List

Best Lawyer Songs

Barrister Bites

Mothers-in-Law, Super Milk, and Pineapple Upside-Down Cake

Foodie Finds

Dia De Foods

Well Read

Lady Sunflower, by Sierra Shuck-Sparer

The Last Word

That Time I Worked at the District Attorney’s Office

COMMON GROUND 4 20 28 28 28 30

Section Notices/Event Calendar Barrister Bullets Bench & Bar in the News Change of Addresses Welcome New Members Pro Bono Project

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SECTION NOTICES & EVENT CALENDAR

Section Notices

There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 865-522-6522 or send an email to membership@knoxbar.org.

Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for the “Is There a Human in the House?! The Ethical and Legal Implications of AI Technology in Mediation” CLE program scheduled for June 4. If you have a CLE program topic or speaker suggestions, please contact the ADR Section Chairs Joe Jarret (566-5393) or Betsy Meadows (540-8777).

Bankruptcy Law Section The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. Join the Bankruptcy Section for the “Creditor Rights and Wrongs in Estate Administration” CLE program scheduled for June 13. If you have a CLE program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Greg Logue (215-1000), Kevin Newton (588-5111) or Shanna Fuller Veach (545-4284).

Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. Save the date for the “Annual Corporate Counsel Update” extended CLE on August 20. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs David Headrick (363-9181) or Marcia Kilby (362-1391).

Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. If you have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (457-5640).

Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to inhouse and government attorneys. Save the date for the “News You Can Use-Workers’ Compensation Case Law, Statute, and Attorney’s Fee Update” CLE webinar program scheduled for September 17.

If you have a program topic or speaker suggestions, please contact the Employment Law Section Chairs Howard Jackson (546-1000) or Tim Roberto (691-2777).

Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (804-3741), Kendra Mansur (771-7192), or Jimmy Wright (637-3531).

Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Join the Family Law Section for the “Understanding True Income for Support from Tax Documents Including Paystubs, W-2s, K-1s, etc.” CLE program scheduled for June 14. Following the CLE on June 14, plan to attend the KBA Family Law Section Social. The social will be held 5-7 p.m. at the law office of Sharpe & Attanasio. If you are interested in getting involved or have suggestions for CLE topics, contact Section Chairs Blair Kennedy (539-3515) or Laura Wyrick (297-5511).

Government & Public Service Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you are interested in getting involved or have suggestions for CLE topics, contact Section Chairs Ron Mills (215-2050) or Mitchell Panter (545-4167).

Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you have suggestions for CLE topics, please contact Section Chairs Justin Pruitt (215-6440) or Mike Stanuszek (766-4170).

New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any KBA member licensed since 2022 will automatically be opted-in to the section. If you like to get involved in planning section activities, please contact Section Chairs Dalton Howard (546-0500) or Mari Jasa (546-7770).

Senior Section The Senior Section schedules a luncheon with a guest speaker every quarter. If you have suggestions for luncheon speakers, please contact Chair Wayne Kline at (292-2307) or Sam Rutherford (659-3833).

Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. Join the Solo Practitioner & Small Firm Section for the “Family Law 101: An Introduction and Overview” on June 20. If you have a program topic or speaker suggestions, please contact Section Chairs Tim Grandchamp (392-5936), Brittany Dykes (214-7869) or Stan Young (209-8034).

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event calendar June

n4 n4 n 11 n 12 n 12 n 13 n 14 n 20 n 20 n 26 n 27

AI Technology in Mediation Webinar New Admittee Swearing In Advanced Legal Research Webinar Veterans Legal Advice Clinic Barristers Monthly Meeting Bankruptcy & Estate Administration Webinar Family Law Section Tax Documents CLE & Social Judicial Committee Meeting Family Law 101 CLE Board of Governors Meeting Volunteer Breakfast

July

n9 n9 n 10 n 10 n 11 n 16 n 19 n 24 n 30

Professionalism Committee Meeting Access to Justice Committee Meeting Veterans Legal Advice Clinic Bankruptcy Summer Social Legislative Update 2024 Webinar Tort Law Update Webinar Barristers Summer Party Board of Governors Meeting CLE Committee Meeting

SAVE THE DATE: Annual Bench & Bar Celebration Knoxville Convention Center September 5

Check the KBA Events Calendar at www.knoxbar.org for scheduling updates.

June 2024

PRESIDENT’S MESSAGE By: Carlos A. Yunsan University of Tennessee College of Law

DISTRESSFUL OR PIVOTAL? YES! Well, it finally happened. Perhaps it’s the result of an actionpacked late April, filled with back-to-back oral arguments and questions from my students about their final appellate briefs. Or, maybe it’s the anticipation of a filled-to-the-brim May, including the birthdays of my wife, son, mother, and multiple close family friends; Mother’s Day; commencement ceremonies; grades due; high school graduations; grade school field days; dance concerts; and—last, but not least—our wedding anniversary! As I sit here waiting for the ideas and words to arrive for this month’s column, I’m positively stuck. There’s no denying it. Hours have gone by with no breakthrough. Why?! Why now?!!!

And so, here I sit, while the world keeps on turning, the personal and professional responsibilities endure, the hours continue to dwindle, and the deadlines keep getting closer. I hope you do not find yourself in this unsettling space as you enjoy DICTA, but I suspect that you’ve experienced that feeling of getting nowhere even as you furiously spin your wheels. Frankly, it feels like mine are not spinning at all. But never say die! Although I am exercising some transparency here, I wholeheartedly embrace the principle that the President’s Message should do more than invite you to commiserate over the challenges many, if not all of us, face every so often.

“Action and reaction, ebb and flow, trial and error, change – this is the rhythm of living. Out of our over-confidence, fear; out of our fear, clearer vision, fresh hope. And out of hope, progress.”1 Quick touchdown – Pick six. A prestigious award – Piercing criticism. A new baby in the family – the passing of a dear colleague. Constant Fluctuation. Repeat.

And yet, through the furnace of that very pattern, we can (and often) emerge refined, with a clearer vision and fresh hope, more able to discern what really counts.

A few of you have heard me talk about my 22-year journey to becoming a U.S. citizen. Of all the challenges along the way—and there were many over two decades--one chapter stands out. In the summer of 2009, having applied to become a legal permanent resident (LPR) many months earlier but still waiting for processing and approval, my work visa reached its six-year limit, and my immigration status expired.

What that meant in practical terms is that my wife and I found ourselves no longer able to earn income legally. We were allowed to remain in the country while our LPR application was pending, but we were legally barred from working. By this time, we had acquired a mortgage payment, a car payment, utility bills, and had established community and work relationships, all of which now stood to be uprooted. This new paradigm—being stuck with the desire and ability to work and make ends meet, but completely unable to do so—went on for nine months.2 Those were challenging times: sweltering hot indoors in the summer and freezing cold in the winter (to minimize utility use) and almost completely dependent on others for food (we did expand our palate!) and June 2024

for funds to pay all bills. But truth be told, we seldom think or talk about these humbling aspects of that chapter.

Instead, we often reflect on three memories stemming from that time. First, we remember with gratitude the kindness we received from our East Tennessee community and co-workers who spontaneously collected funds to help pay our bills, brought us food, gave us rides, and came to our aid in every imaginable way.

(For the life of me, I cannot recall how we made our mortgage payments!) Second, this unwanted and distressful chapter opened the door to my legal career. Without that ninemonth forced “vacation,” I would have never detached myself enough from the business of my job (and the comfort of steady income) to study for the bar exam and attend law school full-time beginning the fall of 2010. Last, the experience taught us that there’s very little we actually need to survive and few challenges that we cannot overcome. Ultimately, the quality and depth of our relationships is what makes the journey worth taking.

The KBA confronted the challenges of COVID and emerged stronger, better equipped, nimbler, in no small part because of the skillful leadership of Hanson Tipton and Cheryl Rice and the steady hand of Executive Director Emerita Marsha Watson. We now have adopted a Strategic Inclusion Plan, revamped the former Supreme Court Dinner to a broader Bench-Bar Celebration, pivoted from the Law Practice Today Expo to a Webinar Series (accounting for changes in the landscape of required in-person CLEs and allowing flexibility for more members to participate), and, yes, we persuaded that perpetual fountain of energy and ideas known as Tasha Blakney to lead this whole enterprise. Along with these victories, however, we continue to face the difficult tasks of promoting attorney well-being, retaining diverse lawyers, harnessing AI, and doing what we can to help all members find success and fulfillment in the practice of law. We are still grieving the recent loss of several dear colleagues, leaders, and bastions of the bar. However, the memory of their example and the imprint of their warmth and support survive with us and make us better.

That is our journey—one of ebb and flow, one we must learn to embrace. It forces us to adapt, grow, rely on one another, give when we can, and receive when we are the ones in need. I urge you to keep an eye open this summer and beyond for opportunities to get or give a clearer vision, to find or offer fresh hope. You are an indispensable member of a professional family that is striving to do the same.

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Quote attributed to Bruce Fairchild Barton (1886-1967), an American author, advertising executive, and politician. Biographical Directory of the United States Congress, https://bioguide.congress.gov/search/bio/B000211 (last visited May 8, 2024).

On March 9, 2010, we received notice that our LPR application had been approved and had finally become permanent residents.

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JUDICIAL PROFILE By: Grace Malone Ewell

Woolf, McClane, Bright, Allen & Carpenter, PLLC

THE HONORABLE SUZANNE BAUKNIGHT, 2024 LAW & LIBERTY AWARD RECIPIENT Each year, the Law and Liberty Award recognizes an individual who has worked to improve our legal system and protect our civil liberties: someone who, among other things, gives freely of their time for volunteer work, fosters and maintains good relationships between the legal profession and the community, works to advance the understanding of the law and legal processes in the non-legal community, and sets an example of good citizenship. Without question, the Honorable Suzanne H. Bauknight sets a high bar in each of these areas.

A native of Hickory, North Carolina and graduate of the University of South Carolina School of Law, Judge Bauknight served as a law clerk to South Carolina Court of Appeals Judge C. Tolbert Goolsby, Jr. before moving to Knoxville.1 Upon arrival, she quickly made her mark on the Knoxville Bar, truly embodying what it means to be a volunteer.

Judge Bauknight spent her first few years in Knoxville practicing commercial and employment litigation with Baker, Donelson, Bearman, Caldwell & Berkowitz before transitioning into public service.2 She then spent a decade serving the Eastern District of Tennessee as an Assistant United States Attorney, representing various federal agencies in a wide variety of civil matters, including bankruptcy and collection of civil and criminal debt.3 Just two years into her tenure as an AUSA, Judge Bauknight was promoted to Chief of the Civil Division, a role in which she served for eight of those ten years.4 As if these accomplishments weren’t impressive enough, while serving as Civil Chief, Judge Bauknight served as Chair of the Department of Justice’s Civil Chiefs Working Group and was appointed by United States Attorney General Eric H. Holder, Jr. as a member of the Attorney General’s Advisory Committee.5 In 2014, Judge Bauknight was sworn in as United States Bankruptcy Judge for the Eastern District of Tennessee at Knoxville, where she continues to serve.6 Just this January, Judge Bauknight took on a new role as Chief Judge for the United States Bankruptcy Court for the Eastern District of Tennessee.7 In addition to her professional prowess, Judge Bauknight has become known for her dedication to service to the community and the Bar. Many of you likely know her as a frequent speaker and writer for both the Knoxville and Tennessee Bar Associations, where she never fails to say “yes” when asked to donate her time by service on a committee or board. She has served as a member of the KBA Board of Governors and as co-chair of the KBA’s Government and Public Service Sector Lawyers’ section. She is an emeritus master of the bench and past president of the

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Hamilton Burnett Chapter of the American Courts. And she has served countless other organizations in a variety of capacities over the years.

Despite becoming Chief Bankruptcy Judge—a role that comes with a busy caseload and greater administrative responsibilities—Judge Bauknight has not missed a beat in service to the community and to the Bar. More than just the robe behind the bench, Judge Bauknight has given countless hours in service to the community. She works tirelessly to enhance public knowledge of the courts and the legal system, as well as to make our field more accessible for those it impacts.

In collaboration with the KBA and Legal Aid of East Tennessee, Judge Bauknight is actively involved in the pro bono Debt Relief Clinic she helped to create in collaboration with Legal Aid of East Tennessee and the KBA. The Debt Relief Clinic is designed to provide assistance to individuals in the community who are struggling financially and may be facing the difficult possibility of filing bankruptcy.8 During each clinic, Judge Bauknight takes time out of her busy schedule to provide clients with an overview of the bankruptcy system and explain options other than bankruptcy that may be more appropriate for them, depending on their circumstances.9 Clients are then matched with area attorneys for evaluation and advice on their individual debt issues, now armed with the benefit of knowledge and understanding.

Finally, Judge Bauknight is perhaps most well known for her passion for and dedication to education. She has served as an adjunct professor at the UT College of Law and Lincoln Memorial University Duncan School of Law.10 She has been instrumental in the success of the Justice for All program in Knox County, a program which “seeks to provide underserved high schools students in rural counties adjacent to Knox County with opportunities to interact with professionals in various legal disciplines (including judges, lawyers, clerk’s staff, and law enforcement personnel) to encourage students to set goals to obtain education and training for legal careers for increased diversity of gender, race, ethnicity, and socio-economic background in the legal industry.”11 Students in the program participate in a mock trial program, interact directly with judges and members of the court, and learn more about possible career paths.

In addition to participating directly in programming, Judge Bauknight has worked diligently to assist target schools in fundraising so that more students may attend these programs. Having had the opportunity to participate in one of Judge Bauknight’s student outreach programs myself, I have seen the impact these programs have not only on students and teachers but also on the attorneys and other professionals who are reminded of why they chose this career in the first place. Thanks to Judge Bauknight, that same spark may be lit in members of future generations of the Knoxville Bar. Judge Bauknight’s efforts and achievements could fill the pages of many a DICTA issue, and we know that her impact will only continue to grow with time.

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Tennessee Bar Association, Faculty Profile: Hon. Suzanne Bauknight (https://cle.tba. org/faculty/profile/17781).

Id. Id.

continued on page 26 June 2024

PRACTICE TIPS By: Ryan T. Shannon

Lewis Thomason, P.C.

DE MINIMUS NO MORE: LESSONS ON RELIGIOUS ACCOMMODATIONS FROM GROFF V DEJOY Advising employers, like much of the practice of law, is often an exercise in imagining what could go wrong. For that reason, lawyers ensure their clients have clear policies, consistent discipline procedures, and explicit–and accurate—job descriptions. However, religious accommodation requests often challenge an employment lawyer’s neatly ordered scheme of policies and procedures. After all, Title VII does not merely require that employers treat their religious employees the same as the other employees. Rather, Title VII of the Civil Rights Act of 1964 calls for employers to give its religious employees favorable treatment. The question that lawyers and employers have grappled with is how favorable.

The law places an affirmative burden on employers to accommodate the religious beliefs and practices of employees or applicants “unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”1 For decades, it was understood that employers could deny accommodation requests so long as the accommodation would result in a cost that was “more than de minimis”.2 In 2023, however, the Supreme Court in Groff v. DeJoy called the “more than de minimis” standard a “mistake” and placed a heavier burden on employers to justify denials of religious accommodation.3 Groff v. DeJoy The employee in Groff was a postal worker who refused to work on Sundays due to his religious convictions.4 Because of Mr. Groff ’s refusal, other USPS employees were forced to take on extra deliveries.5 The USPS issued progressive discipline to Mr. Groff for refusing to work on Sundays, and Mr. Groff eventually resigned.6 Mr. Groff sued his employer for failure to accommodate his Sunday Sabbath practice in violation of Title VII.7 Applying the de minimis standard, the district court and the Third Circuit Court of Appeals held that granting Mr. Groff ’s accommodation request imposed an undue hardship on the employer “because it actually imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale” at multiple USPS locations.8 The Supreme Court reviewed the decision and found that the de minimis standard that resulted from Hardison was incorrect and resulted in employers denying minor accommodation requests.9 The Court thus rejected the “more than de minimis” standard and held that an employer shows an undue hardship where “a burden is substantial in the overall context of an employer’s business.”10 Put another way, the Court stated that an employer claiming undue hardship “must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”11 The Court further instructed courts to consider “all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost of an employer.”12 Having clarified the standard for undue hardship under Title VII, the Court remanded the case for further proceedings consistent with the new standard.13 Lessons from Groff The top line lesson from Groff is that employers no longer have the benefit of the “more than de minimis” standard. Employers and June 2024

attorneys counseling employers must now focus on whether the cost of an accommodation to an employer’s business is “excessive” or “unjustifiable,” such that it is “hard to bear.”14 But while the end of the “more than de minimis” standard may be the headline from Groff, employment lawyers should pay equal attention to the Court’s more explicit guidance.

Perhaps most significantly, employers can no longer rely solely on an accommodation’s effect on other employees when evaluating an accommodation request. Rather, effects on coworkers, including increased workload, is only relevant where it has “ramifications for the conduct of the employer’s business”.15 This guidance has already resulted in employers facing difficulty proving an undue hardship. For example, the Fifth Circuit Court of Appeals rejected an employer’s rationale that an accommodation would result in extra work for the plaintiff ’s coworkers as insufficient to constitute undue hardship under Groff.16 Additionally, where an employee requested an accommodation of one and a half days of unpaid absences, the Arizona District Court found that an employer failed to establish an undue hardship where the employer showed that the accommodation would result in the department being short-staffed and in a burden to a specific department’s operations, because the employer did not show how the employee’s absence “would have resulted in substantial increased costs in relation to its business.”17 Where an employer seeks to reject an accommodation request due to increased workload on other employees or issues of short-staffing, employment lawyers must ensure that these issues would result in the employer’s business suffering substantial increased costs.18 Additionally, the Groff Court clarified that a strain on an employer’s business cannot create an undue hardship on employers where the strain is caused by religious bias or animosity.19 Employers may naturally worry about how their employees may react to an employee receiving a religious accommodation, particularly where the employee’s religion is not common among the employee’s coworkers. However, when counseling employers on religious accommodation requests, employment lawyers should dig into an employer’s concerns about effects on coworkers and the business overall to ensure that these concerns are not due to a fear or expectation of religious bias or animosity.

Lastly, Groff clarifies that an employer’s duties to an applicant or employee do not end just because an employer concludes that an employee’s requested accommodation would result in an undue burden.

Where an employee presents a sincere religious belief or practice that conflicts with a job requirement, the employer must consider other options that would accommodate the employee’s religion.20 Conclusion As always, when one standard is abandoned for another, attorneys must pay attention to how the new standard is applied. What is clear for now is that employment attorneys must think critically when evaluating whether their clients possess a valid undue hardship defense and counsel compliance with the Groff Court’s explicit guidance to employers regarding religious accommodation requests.

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42 U.S.C. § 2000e(j).

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).

143 S. Ct. 2279, 2286 (2023)

continued on page 27

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LEGAL UPDATE By: Hailey V. Townsend Fox

Staff Attorney Tennessee Valley Authority, Office of the General Counsel

TITLE VII’S ADVERSE ACTION STANDARD MAY NOW BE ADVERSE FOR EMPLOYERS . . . BUT NOT EMPLOYEES In order to establish a Title VII employment discrimination claim, a litigant must establish, in pertinent part, that they suffered an adverse employment action. For decades, the Title VII adverse action standard for discrimination claims included a requisite showing of a “significant” employment disadvantage.1 Trivial or insignificant harm was not enough.

Recently, however, the United States Supreme Court lowered the bar in favor of employees, and it is anybody’s guess how low that bar goes.

In April 2024, the Court heard a case that changed the landscape of employment law and, specifically, what constitutes an actionable adverse action under Title VII.2 Sergeant Jatonya Clayborn Muldrow brought a Title VII suit against her employer, the St. Louis Police Department, alleging sex discrimination in the “terms [or] conditions of her employment.”3 Muldrow was a seasoned police officer in the Intelligence Division of the SLPD but that changed when a new commander took over Muldrow’s division and transferred her out even though her previous commander praised her work ethic.4 While Muldrow’s pay and rank remained the same, her responsibilities, job incentives, and schedule were altered.5 A Title VII lawsuit followed challenging the transfer.

In September 2020, the district court for the Eastern District of Missouri granted the City of St. Louis’s motion for summary judgment.

Following precedent, the district court explained that the plaintiff needed to show that her transfer caused a “significant” change in her working conditions, producing a “material employment disadvantage.”6 The district court held that Muldrow could not meet this standard for multiple reasons: (1) she experienced no change in her salary or rank, (2) her loss of “the networking [opportunities] available in Intelligence” was immaterial because Muldrow did not provide evidence that the transfer harmed her “career prospects,” and (3) her “supervisory role” continued, so Muldrow did not suffer “a significant alteration to her work responsibilities.”7 Muldrow appealed, and the Eighth Circuit Court of Appeals affirmed, similarly holding that Muldrow failed to show the transfer caused a “materially significant disadvantage.”8 Muldrow again appealed, and the Supreme Court granted certiorari to resolve the circuit split over “whether an employee challenging a transfer under Title VII must meet a heightened threshold of harm—be it dubbed significant, serious, or something similar.”9 Ultimately, the Court vacated the lower court’s judgment in a unanimous decision, deciding that Title VII “imposes no such test.”10 Justice Kagan, the author of the opinion, explained that while “a transferee must show some harm respecting an identifiable term or condition of employment . . . the transferee does not have to show, according to the relevant text, that the harm incurred was ‘significant.’”11 The Court took issue with the “significant” standard the lower courts used because it added “significant words” to a statute Congress drafted.12 In doing so, the Court rejected the City of St. Louis’s three main arguments in support of the significant-standard: (1) the ejusdem generis canon, the idea that when a general phrase is preceded by specific examples, the phrase can only apply to those specific examples, which the Court rejected because there was no significant disadvantage standard in Title VII’s language; (2) past precedent focused on Burlington Northern & Santa Fe Railway Co. v. White, which the Court again rejected because that case applied solely to retaliation cases, and the case at hand was not retaliation; and (3) the ever present “swamping the courts and employers

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with claims” argument, which the Court did not find persuasive, as the employee must still show an injury or harm, just not a “significant” one.13 While the Court rejected the significant harm standard for Title VII discrimination claims, Justice Kagan reiterated that plaintiffs must still prove that the harm occurred but did so with very little guidance: “ [the Court] leave[s] such matters for the courts below to address. All we require is that they use the proper Title VII standard and not demand that Muldrow demonstrate her transfer caused ‘significant’ harm.”14 After vacating the judgment, the Court remanded the case to examine the issues without a “significant harm” bar.15 Muldrow’s lawsuit will now move forward in the lower courts, assuming she can provide evidence for her alleged harm.

The Court eliminating Title VII’s “significant harm” standard (or similar, heightened standards applied in other Circuits) will have widereaching ramifications. Fundamentally, the employment lawyer’s common summary judgment refrain of “no adverse action” may be a vestige of the past. Presumably, this means fewer summary judgments are on the horizon. And, for attorneys, Westlaw searches will reveal case after case of red, abrogated law. But perhaps the most daunting implication of this decision is the uncertainty of what the standard will be going forward.

Justice Kagan’s decision portends and invites the debate. And surely not every trivial harm is actionable . . . or is it? So, while the Court’s ruling may make it easier for employees to move their cases through the litigation process—at least in the near term—the ultimate outcome is far from certain. Nevertheless, the lower standard will require employers to use caution when making managerial decisions—more so than before.16 1

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See, e.g., O’Neal v. Chicago, 392 F.3d 909, 913 (7th Cir. 2004); James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 376 (4th Cir. 2004); Spears v. Miss. Dept. of Corr. and Hum. Resources, 210 F.3d 850, 853 (8th Cir. 2000); Ingraham v. Buttigieg, No. 20-1857, 2022 WL 2992710, at *6 (D. Minn. July 28, 2022).

Muldrow v. St. Louis, 601 U.S. __ (2024), 144 S.Ct. 967. Because the official decision has not been published, the author will be using the Supreme Court Reporter citation.

Id. at 971.

Id. Id. at 972 (“Instead of working with high-ranking officials on the departmental priorities lodged in the Intelligence Division, Muldrow now supervised the day-today activities of neighborhood patrol officers. Her new duties included approving their arrests, reviewing their reports, and handling other administrative matters; she also did some patrol work herself. Because she no longer served in the Intelligence Division, she lost her FBI status and the car that came with it. And the change of jobs made Muldrow’s workweek less regular. She had worked a traditional Monday-through-Friday week in the Intelligence Division. Now she was placed on a “rotating schedule” that often involved weekend shifts.”)

Muldrow v. St. Louis, No. 4:18-CV-02150-AGF, 2020 WL 5505113, *8–9 (E.D. Mo. Sept. 11, 2020).

Id. Muldrow v. St. Louis, 30 F.4th 680, 688 (8th Cir. 2022).

Muldrow, 144 S.Ct. at 973.

Id. Id. at 974 (quoting Muldrow, 30 F.4th at 688).

Id. Id. at 976 (citing Burlington N. & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006)).

Id. at 977.

Id. Michelle Travis, Supreme Court Expands Employer Risk of Discrimination Claims, FORBES (Apr. 18, 2024, 3:11 PM), https://www.forbes.com/sites/ michelletravis/2024/04/18/supreme-court-expands-employer-risk-ofdiscrimination-claims/?sh=557f9fb83e79.

June 2024

IN LIMINE: PROFILING FUTURE JDS By: Jordan Houser

LMU Law Director of Career Services and Alumni Relations

DEBORA M. CALIXTO DE OLIVEIRA

LINCOLN MEMORIAL UNIVERSITY DUNCAN SCHOOL OF LAW, CLASS OF 2026 Please tell me about yourself.

My name is Debora M. Calixto de Oliveira. I am from Brazil, and I moved to the United States a little over two years ago. I am currently a 1L at the Lincoln Memorial University Duncan School of Law and will graduate in May 2026. In Brazil, I obtained my undergraduate degree in Accounting Sciences with a specialization in Controllership. I also graduated from law school in Brazil in 2021.

Previously, I worked for ten years in a bank in Brazil, where I held different positions from Bank Teller to Accounting Advisor.

During my time there, I developed financial skills, learned how to work with different types of people, and had the opportunity to work on many important projects during the years I was assigned to the corporate headquarters in Brasilia. Two years ago, I moved to the United States. I worked as a Senior Accountant at a bank in Knoxville for over a year before deciding to go to law school.

What type of law do you want to practice, and where would you like to end up?

I believe there are many interesting areas to work in, and that is why I would like to do as many internships as possible during law school to learn more about different practice areas and make my final decision.

However, at the moment, the ones that catch my attention the most are corporate law, due to my experience in the corporate world, and I believe I may also be interested in working as a personal injury or professional liability attorney.

Outside of law school, what do you enjoy doing?

I participate in a Bible study group at the church I attend, and whenever I can, I try to spend time with my friends. I also love watching Nashville Predators games in Nashville and going to Dollywood.

What is your ultimate “why” with respect to being a future attorney?

I believe that being an attorney is a profession that requires a lot of responsibility because you are dealing with people’s lives. At the same time, it is also very rewarding because you can directly see the impact of your work on them. After years of working in banking, I am convinced that to be an excellent professional, dedication alone is not enough. You also need to truly enjoy what you do, and I am passionate about studying the law.

How did you make the decision to go to law school, and why did you pick LMU Law? I have always enjoyed doing volunteer work, and I knew that as a lawyer I would have opportunities to make a difference in people’s lives. My desire to become a lawyer intensified when I took an exam to work for a public company. Some of the subjects required were Administrative Law and Labor Law, which I really enjoyed learning. Then, in 2018, I decided to pursue this dream and started law school in Brazil. I graduated in 2021.

For a long time, I dreamed of becoming a lawyer, so after moving to the United States, I decided to pursue my dream here. I chose LMU Law because I wanted to continue living in East Tennessee and because of the assistance I received from many people there. From the first call I received, they were very open to answering my questions and helping me with everything I needed. I realized that it is a highly esteemed institution that treats people personally and with great respect.

Finally, what is the biggest lesson you have learned in law school?

I learned so many lessons in this first year that it is hard to pick just one! I believe my biggest challenge was dealing with time pressure during exams and understanding that I need to make quick decisions. However, I think the most important lesson I learned is that we should always research and study extensively about the subjects we are learning and to never rely solely on our own intuition or common sense , as the most obvious answer is not always the correct one.

Tell me about your law school experience so far: what activities and classes have you participated in and enjoyed?

In this first year of law school, the classes I liked the most were Contracts and Torts. I believe I enjoyed Contracts due to my experience working in the corporate world, and I enjoyed Torts because we see cases that happen in people’s daily lives. I also attended several events of the Federalist Society, with different types of legal professionals as speakers, which made me enjoy the law school experience even more. Additionally, I participate in an immigration group that aims to help Brazilians who immigrate to the United States. Recently, I became a Peer Leader, and I am excited to mentor students who will start school next fall.

*Hiring Footnote* When sharing a job post with your local law school career services professionals, consider first what documents you and those on your hiring committee might want to receive. If just a resume will suffice, you may receive more interest in the position due to the speed at which the applications are able to be completed. On the other hand, if members of the hiring committee may eventually want to see more detailed documentation, such as writing samples, reference lists, and transcripts, including these documents as required in the initial job post will allow students to prepare and submit these for review in a timely manner and avoid any delays later in the interview process.

June 2024

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June 2024

WHY DID THE LAWYER CROSS THE ROAD By: Brad Fraser Leitner Williams Dooley Napolitan, PLLC

Stefanie Bowen

Leitner Williams Dooley Napolitan, PLLC

FOR PETE’S SAKE A(nother) scene from O Brother, Where Art Thou?: After an encounter with the Sirens, the camera pans in on a sleeping Delmar O’Donnel and Ulysses G. Everett. Delmar groggily looks over at a pile of clothing matching what he believes to be that of his compatriot Pete Hogwallop, rising and falling. A large yellow toad sticks its head out from under the collar. Delmar screams.

EVERETT: What on earth is goin’ on here! What’s got into you, Delmar?

DELMAR: Caintcha see it, Everett? Them sigh-reens did this to Pete! They1— OBJECTION. Hearsay.

Under the Federal Rules of Evidence and the Tennessee Rules of Evidence, if you intend to prove the truth of the matter Delmar asserted here—that Pete was loved up and turned into a horny toad by the Sirens—you must find an exception to the rule against hearsay.

In Tennessee, hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.2 And Federal Rule 801 agrees—though it does so by breaking the definition into subparts.3 Understanding the definition makes the rule seem practicable. Hearsay is often unreliable because many times the declarant is unavailable for cross-examination, making the veracity and reliability of the statement uncertain. For that reason, Tennessee Rule of Evidence 802 agrees with Federal Rule of Evidence 802—absent an exception found within the Rules, hearsay is inadmissible.

Exceptions to the rule against hearsay provide certain scenarios which offer more guarantees of reliability and truthfulness of out-ofcourt statements proving the truth of the matter asserted.4 The Advisory Committee states in comments to Federal Rule 803 that “. . .under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial even though he may be available.”

But you may be surprised to know that there are some significant differences in the hearsay exceptions available in Tennessee state courts and federal courts.

The first significant difference becomes quickly apparent when comparing the list of exceptions. Under 803(1) of the Federal Rules of Evidence, an out of court statement used to prove the truth of the matter asserted may be admissible if the statement is a “present sense impression.” A statement may be a present sense impression if it is one “describing or explaining an event or condition, made while or immediately after the declarant perceived it.”5 A hallmark of the Federal Rule 803(1) exception is contemporaneity. According to the Advisory Committee “. . .[t]he underlying theory of [the present sense impression exception] is that substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation. Moreover, if the witness is the declarant, he may be examined on the statement. If the witness is not the declarant, he may be examined as to the circumstances as an aid in evaluating the statement.”6 June 2024

Returning to Delmar’s out of court statement, “They loved him up and turned him into a horny toad,” the statement may be admissible in federal court as a present sense impression. Delmar made the statement to describe Pete’s condition quickly after he perceived it. The fact that little passed between Delmar’s statement and his view of the Siren’s work on Pete means he is less likely to have misrepresented the circumstances.

But the same statement may be inadmissible in a Tennessee state court—at least as a present sense impression. Tennessee’s exceptions to the rule against hearsay begins with Rule 803(1): [Reserved.] The advisory committee simply notes that “[t]he proposed rules contain no present sense impression exception.”

But all is not lost to introduce Delmar’s statement in a Tennessee state court. Like the Federal Rules of Evidence, the Tennessee Rules of Evidence permits an excited utterance to be admitted despite it being made out of court. Rule 803(2) of the Tennessee Rules of Evidence defines an “excited utterance” as “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”7 Certainly, Delmar’s surprise to find Pete in toad form qualifies as an excited utterance in Tennessee.

Federal Rule 803(2) defines an excited utterance with language almost identical to the Tennessee counterpart: it is “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.”

The advisory committee notes included with Federal Rule 803 delve into the nuances between a present sense impression and an excited utterance. If contemporaneity is a hallmark indicator that a present sense impression is reliable, it becomes doubly important with an excited utterance.8 When using a present sense impression, instant, precise contemporaneity is not possible, and therefore, a slight lapse in time is allowable—after all, Delmar must perceive the scene in order to describe it. But with an excited utterance, the measure of contemporaneity involves less calculus between viewing the event and speaking.9 Instead, the question is, “How long did the excitement last?”10 According to the advisory committee, “[o]bviously there are no pat answers and the character of the transaction or event will largely determine the significance of the time factor.”11 In other words, the more shocking the event, the more time may pass between the statement with no loss in veracity or reliability.

Delmar’s statement that Pete was “loved up and turned into a horny toad” was a statement on Pete’s condition, made while Delmar was under stress of the event. A statement likely admissible in both Tennessee state courts and federal courts under the hearsay exception of “excited utterance.” And while Delmar made the statement quickly, given the shock of the event, it might still be admissible even if he made it after taking some time to evaluate the scene on the riverbank.

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O Brother, Where Art Thou? (Touchstone Pictures, 2000).

Tenn. R. Evid. 801(c).

Fed. R. Evid. 801(c)(1)-(2).

Fed. R. Evid. 803, advisory committee’s notes.

Fed. R. Evidence. 803(1).

Fed R. Evid. 803, advisory committee’s notes, citing Basic Problems of Evidence 340-341, Morgan (1962) (emphasis added).

Tenn. R. Evid. 803(2).

Fed. R. Evid. 803, advisory committee’s notes.

Id. Id. (emphasis added).

Id.

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WHAT I LEARNED ABOUT INCLUSION AND WHY IT MATTERS By: Adriannette Williams, Esq. Assistant Dean of Diversity, Equity, and Inclusion Lincoln Memorial University Duncan School of Law

THE ROLE OF INCLUSION IN JUSTICE FOR ALL Inclusion is more than just a buzzword; it’s a fundamental aspect of building a just and equitable society. Defined as the practice or policy of providing equal access to opportunities and resources for people who might otherwise be excluded or marginalized, inclusion lies at the heart of creating a world where everyone feels valued, respected, and empowered to thrive.

In recent years, conversations around inclusion have gained momentum across various sectors, including the legal profession. As someone deeply involved in legal education and practice, I’ve come to understand the critical importance of inclusion not only in fostering diversity but also in ensuring justice for all.

Perceived justice, or the belief that the legal system treats everyone fairly and equally, is paramount to upholding the principles of democracy and the rule of law. Yet, achieving this ideal requires more than just diverse representation; it demands a commitment to inclusion at every level of the legal profession.

The American Bar Association (ABA) has long championed diversity and inclusion within the legal community. Through initiatives aimed at eliminating bias and enhancing inclusion, the ABA seeks to create a profession that reflects the rich tapestry of the society it serves. By promoting diversity in law schools, law firms, and the judiciary, the ABA aims to ensure that the legal profession is accessible to individuals from all walks of life.

At institutions like Lincoln Memorial University’s Duncan School of Law, the importance of inclusion is deeply ingrained in its mission and values. With a commitment to providing legal education opportunities for underserved communities, the law school strives to empower students from diverse backgrounds to pursue careers in law and serve their communities.

In my journey through legal education and practice, I’ve learned that inclusion is not just a moral imperative, it’s also a strategic necessity.

Research has shown that diverse teams are more innovative, creative, and effective at problem-solving. By bringing together individuals with different perspectives, experiences, and expertise, organizations can better understand and address the needs of their clients and communities.

Moreover, inclusion fosters a sense of belonging and trust, which are essential for building strong relationships and promoting collaboration.

When people feel valued and respected for who they are, they are more likely to contribute their best ideas and efforts towards shared goals.

As we strive to create a more inclusive legal profession, it’s essential to recognize that inclusion is an ongoing process that requires continuous effort and commitment. From recruiting and retaining diverse talent to creating inclusive policies and practices, organizations can take many steps to foster a more inclusive environment.

Fostering inclusivity in law schools and the legal profession requires deliberate efforts and strategies aimed at creating an environment where individuals from diverse backgrounds feel valued, respected, and empowered. Here are some practical ways to promote inclusivity in these settings: Diverse representation is crucial. Law schools should actively recruit and admit students from diverse backgrounds, including different racial, ethnic, socioeconomic, gender, and cultural identities. Encouraging participation from individuals with disabilities and LGBTQ+ individuals enhances diversity.

Also, culturally competent curriculum is essential. Incorporating diverse perspectives into the curriculum, such as case studies, readings, and

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discussions that reflect the experiences of marginalized groups, fosters inclusivity. Offering courses on topics like social justice, diversity in the law, and implicit bias promotes understanding and empathy.

Furthermore, providing support services tailored to the needs of diverse students is vital. Mentorship programs, counseling services, and academic support programs help students navigate challenges and succeed academically. Creating affinity groups and student organizations fosters a sense of community and belonging.

Faculty diversity and training play a significant role as well. Recruiting and retaining diverse faculty and staff who can serve as role models and mentors for students from underrepresented backgrounds is important. Providing training on diversity, equity, and inclusion for faculty and staff creates a supportive learning environment.

Promoting inclusive classroom practices is another key aspect–– encouraging faculty to adopt inclusive teaching practices, such as using diverse examples and materials, facilitating respectful dialogue, and accommodating different learning styles, enhances the learning experience for all students. Creating opportunities for student input and feedback fosters a sense of ownership and engagement.

Addressing bias and discrimination within the school and legal profession is imperative. Implementing policies and procedures to address bias, discrimination, and harassment ensures a safe and inclusive environment for all. Providing resources for reporting incidents and ensuring that complaints are taken seriously and investigated promptly is essential.

Moreover, promoting access to opportunities is critical. Providing access to experiential learning opportunities, internships, and externships that allow students to gain practical experience in the legal field is crucial.

Offering financial aid and scholarship programs supports students from underprivileged backgrounds in pursuing their legal education.

Community engagement and outreach are also essential. Encouraging students to engage with the local community through pro bono work, volunteer initiatives, and outreach programs fosters a sense of social responsibility. Partnering with community organizations to address legal needs and promote social justice strengthens ties with the broader community.

Professional development and networking opportunities are vital for students’ career advancement. Offering networking events, career fairs, and professional development workshops that connect students with legal professionals from diverse backgrounds facilitates mentorship and sponsorship opportunities.

Maintaining a commitment to improvement is key. Regularly assessing and evaluating the school’s diversity and inclusion initiatives to identify areas for improvement ensures ongoing progress. Soliciting feedback from students, faculty, staff, and alumni informs decision-making and strategic planning, ultimately creating a more inclusive and equitable environment for all.

Ultimately, by embracing inclusion and diversity, we can build a legal profession that reflects the values of fairness, equality, and justice. As lawyers, it’s our responsibility to advocate for inclusivity in all aspects of our work, from representing clients to shaping public policy. By working together toward a more inclusive future, we can create a society where everyone has the opportunity to thrive.

Reference C. Elkins, F. Frei, & A. Morris, Critics of D.E.I. Forget that it Works (New York Times, Jan. 21, 2024).

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June 2024

THE OATH By: Melissa B. Carrasco Carrasco Trump, PLLC

SAY NOTHING Dark, cold, silent. Day after claustrophobic day, night after endless night, the German submarine U-505 prowled the Atlantic Ocean. Their express orders were to target ships from the United States and any Central or South American countries that supported the United States after the attack on Pearl Harbor.1 Under the command of Admiral Karl Donitz, the German U-boat fleet was merciless, sinking around 3,000 Allied ships over the course of World War II.2 At only 250 feet long, 22 feet wide, and with a range of almost 17,000 miles, the U-505 was able to glide beneath the ocean surface, surfacing where it was least expected.

With six 21-inch torpedo tubes, 22 torpedoes, a 4.1-inch deck gun, and 2 anti-aircraft guns, the U-505 was built to wreak havoc above and below the surface.3 Under the command of Axel Löwe, the U-505 had 58 crew members and 35 bunks.

After a few days, all of the food would have tasted like the diesel fuel whose fumes rose from the engine room. No daylight. No fresh air.

Sweat, diesel fumes, and fear permeated every inch of this vessel.4 It was a deadly hunter – sinking four ships and torpedoing a fifth as it made its way to the southern part of the Atlantic off the coast of West Africa.5 But it was also being hunted.

On the surface was U.S. Navy Task Group 22.3: carrier escort, the USS Guadalcanal, and five destroyer escorts – the USS Pillsbury, USS Pope, USS Flaherty, USS Chatelain, and USS Jenks—under the command of Captain Daniel V. Gallery.6 Then, one Sunday morning, a sonarman aboard the USS Chatelain reported a sound . . . then a contact . . . then a contact that sounded like a U-boat.7 The fighter planes in the air regrouped and reported visual confirmation of the submarine, running fully submerged, and the battle began. The U-505 fired a torpedo and reversed course, with the Chatelain in pursuit. It launched a depth charge, and the fighter planes reported sighting oil. The U-505 had no choice but to surface, surrounded by the Chatelain, Pillsbury, and Jenks.8 The escort planes and the destroyers opened fire, and much of the U-505’s crew tried to scramble overboard. The destroyers launched boarding parties and began picking the crew out of the water. But the submarine was still on the move, and someone had to stop it.

Lieutenant JG Albert Leroy David of the USS Pillsbury decided that person was him. He and his boarding party chased the U-505 down, and then he leapt from the boarding boat to the submarine and took possession of it. With the submarine rapidly sinking, he and two enlisted men, armed with hand grenades and a machine gun, opened the hatch and entered the chaos below. They secured the submarine, activated the bilge pump, stopped the flooding, and ensured that the submarine could be examined and towed. His “conspicuous gallantry and intrepidity” earned LTJG David a Medal of Honor.9 It was the first time the U.S. had captured an enemy vessel since 1815.10 It was also Sunday, June 4, 1944. The U.S. now had in its possession a German U-boat with all of its military secrets and technology – the Enigma encryption machine, communication codes, attack tactics, torpedo guidance system, etc. The majority of sailors of Task Group June 2024

22.3 had no idea that in just two days, thousands of miles north of them, thousands of U.S. and Allied forces would launch a massive offensive effort that would be known as D-Day. No one could know that the U-505 was in American hands.

That was easier said than done. Hundreds of sailors and airmen had participated in the capture. So, Captain Gallery did what needed to be done: he required them to take an oath.

I, , having had the necessity explained to me for maintaining absolute secrecy regarding the capture of the German Submarine U-505, do hereby swear that I will reveal this information to no one until the end of the war unless sooner released to the public by the Navy Department. (“No one” includes my closest relatives, friends, military or naval personnel – even an Admiral unless I am directed by my Commanding Officer to tell him).

Subscribed and sworn to before me this June, 1944.

day of

Each person signed, and every person lived up to their oath. The technology and classified military secrets mined from the U-505 assisted in the D-Day offensive and in securing the Atlantic for the Allied forces.

The U-505 was towed to Bermuda, and no one said a word until they were released to do so after Germany surrendered on May 7, 1945.11 That is the power of an oath.

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On December 8, 1941, Adolf Hitler and Grand Admiral Erich Raeder ordered the German Navy to target and attack any vessels – civilian or military – of the United States or any country that supported it. The National WWII Museum New Orleans, Wolf Beneath the Waves: U-505 Joins the Battle of the Atlantic (Feb.11, 2022), https://www.nationalww2museum.org/war/articles/u505-german-submarinebattle-of-atlantic, last visited May 11, 2024).

National Park Service, Submarines in World War II, https://www.nps.gov/ articles/000/submarines-in-world-war-ii.htm#:~:text=Germany%20built%20 1%2C162%20U%2Dboats,(merchant%20ships%20and%20warships), last visited May 11, 2024.

National Maritime Initiative, Warships Associated with World War II in the Pacific U-505, https://www.nps.gov/parkhistory/online_books/butowsky1/u505.htm, last visited May 11, 2024.

National WWII Museum New Orleans, supra n. 1.

Id. Naval History and Heritage Command, Capture of German Submarine U-505, https://www.history.navy.mil/content/history/museums/nmusn/explore/ photography/wwii/wwii-atlantic/battle-of-the-atlantic/engagements-germanuboats/1944-attacks-german/wwii-atlantic-u505.html, last visited May 11, 2024.

Capt. Daniel V. Gallery, USN, Capture Nazi Submarine U-505, recorded May 26, 1945, World War II Oral Histories, Interviews & Statements, RG 38, National Archives & Records Admin., available at https://www.usni.org/magazines/navalhistory-magazine/2021/april/wrangling-runaway-u-boat.

Capt. Gallery, supra n.7.

Naval History and Heritage Command, David, Albert L, https://www.history.navy.mil/ our-collections/photography/us-people/d/david-albert-l.html, last visited May 11, 2024.

Id. History.com, The U-505, a Submarine from Hitler’s Deadly Fleet, is Captured, https://www.history.com/this-day-in-history/u-505-submarine-captured, last visited May 7, 2024.

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HELLO MY NAME IS By: Bridget J. Pyman Arnett | Baker

MIRANDA GOODWIN June’s Hello My Name Is features Miranda Goodwin. Miranda is a dedicated solo practitioner, specializing in Elder Law and Professional Fiduciary Services, and she serves as a Wills Clinic CoProfessor for the Legal Clinic at the UT College of Law. Miranda’s academic journey began at Tennessee Technological University, where she obtained a Bachelor of Science in Sociology and Political Science.

In 2020, Miranda graduated from University of Tennessee College of Law. Miranda is actively engaged in the legal community – particularly with the Knoxville Bar Association (KBA), for which she serves as co-chair of the Volunteer Breakfast Committee, the Tennessee Bar Association (TBA), and the Conservatorship Association of Tennessee (CAT).

Miranda’s dedication to her professional work is underscored by her commitment to her clients. As an advocate for families during incredibly difficult seasons, she’s gained invaluable insight into the importance of supporting others as they face life’s most difficult challenges. As you’ll see, Miranda’s thorough and compassionate professional approach, coupled with her genuine empathy, make her a valuable asset to both our legal community and to the individuals she serves.

client empathy. I am working on balancing being comfortable while having empathy for the client.

If you gave a TED Talk, what would it be about and why?

If I could give a TED talk it would be about caring and planning for our aging population. There is not enough time or resources spent talking about the aging population and the potential problems we will be facing in the future.

How do you try to prevent burnout?

I love spending time with my family, my husband, and my dogs. Any time spent with them is a stress reliever for me. I think finding things that make you happy and making sure to build those things into your weekly schedule is the key to avoiding burnout.

Have you traveled or lived internationally?

I spent a summer during undergrad studying abroad in Paris, France.

This is where my love for travel began. Almost instantly, I was hooked.

I absolutely loved immersing myself in a different culture. Lucky for me, my husband also loves to travel. Since meeting him seven years ago, we have had so many amazing adventures together. My favorite place we have traveled would definitely be Iceland. The landscape there is absolutely beautiful. While there we got to see the northern lights, walk behind waterfalls, trek across glaciers, and swim in the blue lagoon.

Need More Clients?

What do you enjoy most about your job?

I help families in some of the most difficult moments of their lives.

The thing that I love about my job is being able to tell my clients and their families that they don’t have to go through these difficult times alone. I am there for them to be a resource and, if needed, handle some of the more difficult tasks on their behalf. If I can take even a small amount of families’ grief or stress off their shoulders, I consider that a successful day.

What is one professional skill you are working on?

One thing that I deal with a lot in my line of work is talking about death and dying. I have spent the past several years helping families make end of life decisions in their estate plan or talking them through the recent loss of a loved one. Recently, I have noticed that I have become more comfortable than I would like to be with these topics. While I believe being comfortable talking to families about sensitive topics is important and necessary in my line of work, it is also important not to become so comfortable that you forget to show your

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PRIVILEGED TO BE A LAWYER By: Rachel Park Hurt Arnett | Baker

I LOVE BEING A LAWYER I love being a lawyer. Not like. Love.

Now, is everyday sunshine and rainbows? No. Wait, let me say it more clearly…HELL NO. But, is it the best job? For me, it really is.

In the beginning…

I didn’t grow up wanting to be Atticus Finch or Matlock. I wanted to be the doctor who saved Matlock’s life when he had a heart attack caused by the stress of being a lawyer and the lack of time afforded lawyers to work out and eat healthy.

But, on my way to medical school, I took a class called “English Common Law.” I learned about the Magna Carta, Henry VIII creating a whole denomination to work around the law, and the “trial” of Charles I (followed by his beheading); and, well, as they say, the rest is history. I was hooked! The law was powerful, both as a shield and a sword. The law was not black and white (like my calculus/biochemistry classes). The law was messy, challenging, and sometimes stupid. And with every case, statute, and regulation I read, I wanted to learn more. And, so, I rejected my amazing MCAT score for my meh LSAT score and pursued the noble profession of law. I have no regrets.

Mentors/Colleagues/Friends Through this great profession, I have experienced wonderful mentors (who became friends) at every step. Professor Penny White in law school, Chancellor Weaver in my first externship, Justice Connie Clark in my first job, Judge Pam Reeves in my early years of practice, Marsha Watson, Debby Thompson, Jim O’Kane, Jimmie Miller, and on and on and on.

Within my firm, I was also granted the good fortune of excellent mentors - Rick Powers and Mike Fitzpatrick. I still work at this great firm – Arnett, Baker, Draper & Hagood – with great lawyers. The firm has made me a better lawyer, and I have laughed a lot along the way with all of them.

More than half of the contacts in my phone are lawyers. I call most (but not all) of them friends! The fellowship, laughter, and joy that I have experienced in the practice, through the KBA, through legal committees and commissions, and through social events “after hours” have profoundly changed my life for the better. I have had all of these amazing experiences because I chose to be a lawyer.

preachers, churches, doctors, nurses, business owners, and even my former coaches and girl scout leader. Each case is different: new law, new facts, new issues, and new strategies to be developed. I get to play doctor, engineer, psychologist, and investigator. I get to ask people questions in depositions, and (for the most part) they have to answer. I have an outlet for my competitive side that has not lessened over the years (only my body’s ability to compete has done that). And, in addition to all this, I really believe that what I do matters to my clients, to the rule of law, and to the notion of justice.

It is called the “practice” of law for a reason Over a Jack and Coke (or two), I could tell you some embarrassing stories about my many, many failures as a lawyer. Those stories have only made the practice that much better. This job is crazy hard. So, when I think about all those failures and losses, I don’t think of the bad. I think about how far I have come! I no longer bow to judges. When I go to court, I now always know my client’s name (and mine for that matter) – I mean, look how far I have come (and, yes, I have done all of those things)! As Tom Hanks said in A League of Their Own, “It is the hard that makes it good.”

Find the Joy A law degree affords an opportunity to do so many things. I am so very fortunate that I found my calling, my joy – a life fulfilled by the practice of law.

Work/Life Balance The law has also afforded me a great life, with a very flexible work schedule. I am a workaholic. But, what I am not doing is working at 6 am, or punching a clock at 7 am, or starting my surgical schedule day at 4:45 am. I choose when I start my day (other than when courts command me to appear at 9 am). I work late. I work weekends. I work long hours.

But, I do all of this working around my daughter’s softball games, my son’s hockey games, concerts, and school fieldtrips. I travel. I golf. I work in the yard. I do all the things I want and then fill the rest of my time billing.

Most importantly, I could not be happier to have the opportunity to work this way. I work from home, from the car, from the hotel, and from the office. I can work anywhere. I can address client needs and issues at any time. While this can, at times, feel burdensome, it also liberates me to have flexibility in my schedule in ways most other professions can only dream.

This Stuff is Just Cool The law has also allowed me to learn something new every day. The law is always changing. My cases are always different. I get to learn about different medical issues in my healthcare liability work; I learn how golf carts, go-carts, ziplines, cars, planes, and trucks work (and occasionally don’t) in my premises/products liability work. I have represented June 2024

DICTA

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FTC BANS MOST EMPLOYEE NON-COMPETE AGREEMENTS The Federal Trade Commission threw a grenade into well-settled areas of contract and employment law in late April when it announced a final rule to ban non-compete agreements between employers and employees (“FTC Final Rule”).1 If it becomes effective, the FTC Final Rule will have a significant impact in most states, including Tennessee, where reasonable employee non-compete agreements have been enforceable for many years. However, the future of the FTC Final Rule is uncertain, as it already has been challenged in court by several businesses and other organizations representing employers.

This article provides an overview of the current law governing employee non-compete agreements, summarizes the FTC Final Rule, and anticipates the prospects for the ongoing litigation challenging the rule.

What is the Problem with Employee Non-Compete Agreements?

Despite the general common-law preference in favor of freedom of contract, employee non-compete agreements have long been viewed as suspect, and potentially against public policy, as restraints on trade. Under a typical non-compete agreement between an employer and employee (also known as a “non-compete clause” or a “covenant not to compete”), the employee agrees, as a condition of employment, not to work for a competitor, or within a certain market or geographic area, within a specified time period after leaving the place of employment.

Once limited to senior executives or employees who have knowledge of confidential information or trade secrets or special access to clients, employee non-compete agreements have proliferated in recent years to other non-specialized professions.2 Notably, in at-will employment states like Tennessee, an employer can add a non-compete agreement as a term of employment after the employee has been hired without providing any additional consideration to the employee (such as a raise in salary, promotion, or increased work responsibilities). Merely continuing to provide a job to the employee is consideration sufficient to support an employee non-compete agreement.3 Contract law typically is left to the states, and states have taken different approaches to employee non-compete agreements. A couple of states, most notably California, have banned employee non-compete agreements outright and will not enforce them at all.4 Most states, however, will enforce such an agreement if it is reasonable. That reasonableness analysis is case-by-case and typically has three steps: • First, the court will inquire whether the agreement exists to protect the employer’s legitimate business interest, rather than simply to prevent ordinary business competition. The special circumstances most commonly cited by employers in support of employee non-compete agreements include: (a) the cost of specialized training that the employer provided to the employee; (b) the employee’s access to trade secrets or other confidential information that may be valuable to competitors; and (3) the value of the employer’s goodwill (i.e., the personal relationships that the employee formed with customers while interacting with them on behalf of the employer).

• Second, the court will consider whether the non-compete agreement is narrowly tailored to protect the employer’s interest and does not impose an undue burden on the employee. For

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this analysis, the court will weigh the level of hardship that the agreement places on the employee’s right to work, as measured by the agreement’s temporal restrictions (length of time), spatial limitations (size of geographic area), and scope (the specific business activities prohibited).

• Third, the court will want to ensure that the employee non-compete agreement is not adverse to the public interest.

Will the agreement increase the cost to the public of a necessary product or service, or deny access entirely in a particular market, due to the employee’s inability to work? For example, twelve states bar employee non-compete agreements in the medical profession.5 And as we know, non-compete agreements are prohibited in the practice of law by the ABA Model Rules of Professional Conduct.6 If a court determines that an employee non-compete agreement is unreasonable, then the remedy provided to the employee will vary by state as well, with some states striking the entire agreement, others “blue-penciling” it, and the majority, including Tennessee, reforming the agreement to make it reasonable.

What Does the FTC Final Rule Say? The FTC Final Rule eliminates this well-established structure of judicial analysis under state law and imposes an outright ban on all employee non-compete agreements in the United States.7 In so doing, the FTC purports to be acting under the authority granted to it by Section 5 of the FTC Act to prohibit unfair methods of competition.8 It is important to understand what types of non-compete agreements are covered by the ban, who is covered by it, and the extent to which it covers existing or only future agreements.

• First, section 910.1 of the FTC Final Rule forbids any “term or condition of employment that prohibits a worker from, penalizes a worker for, or functions to prevent a worker from (1) seeking or accepting work in the United States with a different person where such work would begin after the conclusion of the employment that includes the term or condition; or (2) operating a business in the United States after the conclusion of the employment that includes the term or condition.”9 • Second, “worker” is defined broadly, to include not only an employee but also an “independent contractor, extern, intern, volunteer, apprentice, or a sole proprietor who provides a service to a person.”10 • Third, the FTC Final Rule bars not only future agreements but also existing agreements with the vast majority of employees.

Employers are required to notify their employees that their existing non-compete agreement is no longer enforceable, and the final rule provides model language for such communications. There is a carve-out for existing non-compete agreements between employers and “senior executives,” defined as workers earning more than $151,164 annually who are in a “policy-making position.”11 Existing agreements with senior executives are preserved in the FTC Final Rule under the rationale that such workers are “less likely to be subject to the

DICTA

June 2024

COVER STORY By: Matthew R. Lyon LMU Duncan School of Law

In the pending case of Ryan v. FTC, Ryan argues that the FTC Final Rule “far exceeds the Commission’s authority under the FTC Act” because the FTC Act did not grant the FTC the “statutory authority to promulgate substantive rules regarding unfair methods of competition at all.”20 Alternatively, if Congress did grant such authority to the FTC, then the FTC Act “is an unconstitutional delegation of legislative power in violation of Article I of the Constitution” (or, put another way, the Act violates the “non-delegation doctrine”).21 Ryan seeks a declaratory judgment to this effect and an injunction setting aside the FTC Final Rule in its entirety.22 Time is of the essence in this case, because the effective date of the FTC Final Rule is September 4, 2024, 120 days after it appeared in the Federal Register. On May 7, the judge in Ryan v. FTC set a briefing schedule and indicated she would rule on Ryan’s motion for preliminary injunction by July 3, or shortly after the publication date of this issue of DICTA.23 So while it may be premature for employers to tear up their employee non-compete agreements, they should watch this case closely throughout the summer.

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kind of acute, ongoing harms currently being suffered by other workers subject to existing non-competes” and because of “the practical impacts of extinguishing existing non-competes for senior executives.”12 However, the “senior executives” covered by this exception make up fewer than one percent of workers in the United States, and at any rate, all future non-compete agreements with senior executives will be banned after the final rule’s effective date.13 Importantly, the FTC Final Rule impacts only employee non-compete agreements, not non-compete agreements related to the sale of a business. Section 910.3(a) of the FTC Final Rule excludes non-compete agreements “entered into by a person pursuant to a bona fide sale of a business entity.”14 The FTC Final Rule does not define either “bona fide” or “sale,” but it does define “business entity” as “a partnership, corporation, association, limited liability company, or other legal entity, or a division or subsidiary thereof.”15 Of course, even if a transaction generally falls within this “sale of business” exception, the FTC Final Rule could cover other post-transaction employment agreements that are related to the sale of a business.

Will the FTC Final Rule Become Effective?

Mere hours after the FTC announced the final rule, it was challenged in federal court by multiple employers and organizations representing employers. The most notable of these plaintiffs was the U.S. Chamber of Commerce, which decried the FTC Final Rule as “not only unlawful but also a blatant power grab that will undermine American businesses’ ability to remain competitive.”16 However, the Chamber’s suit, filed on April 24 in the U.S. District Court for the Eastern District of Texas,17 was stayed on May 3 under the “first-to-file” rule.18 The first decision by a court on the merits of a challenge to the FTC Final Rule instead will be in a companion case in the Northern District of Texas brought by Ryan, a Dallas-based global tax services and software provider.19 June 2024

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DICTA

FTC Announces Rule Banning Noncompetes, https://www.ftc.gov/news-events/ news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes (April 23, 2024).

See, e.g., Neil Irwin, When the Guy Making Your Sandwich Has a Noncompete Clause, N.Y. Times (Oct. 14, 2014), https://www.nytimes.com/2014/10/15/upshot/ when-the-guy-making-your-sandwich-has-a-noncompete-clause.html. The FTC provides several examples of unexpected, and seemingly unreasonable, employee non-compete agreements in its justification for the FTC Final Rule. Non-Compete Clause Rule, A Rule by the Federal Trade Commission on 05/07/2024, Federal Register https://www.federalregister.gov/documents/2024/05/07/2024-09171/noncompete-clause-rule, at § I. Central Adjustment Bureau, Inc. v. Ingram, 678 S.W.2d 28 (Tenn. 1984).

The start-up culture in Silicon Valley owes its existence, in great part, to California’s complete ban on employee non-compete agreements.

Tanya Albert Henry, What Employed Physicians Should Know About Noncompete Clauses, American Medical Association (Feb. 21, 2024), https://www.ama-assn. org/medical-residents/transition-resident-attending/what-employed-physiciansshould-know-about.

MRPC 5.6; see also Tenn. Sup. Ct. R. 8, § 5.6.

The FTC Final Rule explicitly preempts existing state law that conflicts with it.

Fact Sheet on FTC’s Proposed Final Noncompete Rule, Federal Trade Commission (Apr. 23, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/04/ fact-sheet-ftcs-proposed-final-noncompete-rule; see also Non-Compete Clause Rule, supra note 2, at § II. Non-Compete Clause Rule, supra note 2, at § I. Id. Id. at § IV. Id. at § I. Fact Sheet, supra note 8.

Non-Compete Clause Rule, supra note 2, at § I. Id. U.S. Chamber to Sue FTC Over Unlawful Power Grab on Noncompete Agreements Ban, U.S. Chamber of Commerce (Apr. 23, 2024), https://www.uschamber. com/finance/antitrust/u-s-chamber-to-sue-ftc-over-unlawful-power-grab-onnoncompete-agreements-ban.

Chamber of Commerce of the United States of America v. Federal Trade Comm’n, No. 6:24-cv-00148 (E.D. Tex.).

Ginger Crist, Federal Judge Halts Chamber’s Challenge to FTC’s Noncompete Ban over a ‘Race to File’, HRDive (May 8, 2024), https://www.hrdive.com/news/federaljudge-halts-chambers-challenge-to-ftcs-noncompete-ban/715559/.

Ryan, LLC v. Federal Trade Comm’n, CA No. 3:24-cv-986 (N.D. Tex.).

Complaint, Ryan, LLC v. Federal Trade Comm’n, CA No. 3:24-cv-986 (N.D. Tex. Apr. 23, 2024).

Id. Id. Federal District Court To Rule on Plaintiffs’ Motion for Stay of FTC Non-Compete Ban and Preliminary Injunction Most Likely By July 3rd, JDSupra (May 10, 2024), https://www.jdsupra.com/legalnews/federal-district-court-to-rule-on-5371288/.

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PRACTICE WISDOM By: Raymond E. Stephens Stephens IP Law

PROTECTING THE BRAND The Brand According to various sources on the Internet, the practice of branding livestock dates back approximately 4,700 years.1 An article published in the Smithsonian Magazine, mentions that branding dates back to 2,700 BC as evidenced by ancient Egyptian hieroglyphics.2 Most of us, however associate cattle branding with the Old West. If you’ve seen the John Wayne movie, The Cowboys, you likely remember the scene early in the movie where the boys learn how to brand cattle. On the open range, branding distinguished ownership. Ranchers developed a system of branding where a unique mark or symbol was seared onto the hide of each animal. This unique symbol was a ranch’s brand. This practice not only served as a practical means of identification but also became a symbol of the source of the cattle and a testament to the rancher’s reputation.

The importance of the brand extended beyond mere identification; it became a form of quality assurance and a means of establishing trust in the marketplace. A well-known and respected brand represented the rancher’s commitment to breeding and raising healthy, high-quality cattle. This practice is still prevalent where livestock is managed. For instance, in Colorado, when cattle are being sold, given away, transported certain distances, or slaughtered, Brand Inspectors “determine whether the purported owner is in lawful possession of the livestock.”3 Over the years, while the practice of branding has evolved, it has also spread beyond the cattle ranch with companies, artists, and athletes, all working to promote their “brand.”

Trademarks, the Modern “Brand” A trademark, by statute, is “any word, name, symbol, or device, or any combination thereof . . . [used] to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.” 15 U.S.C. § 1127. It is the source-indicating quality or strength of a trademark that is protectable. One of the primary purposes of trademark law is to protect a business’s consumers from being confused as to the source of particular goods and/or services. Indeed, one of the things that the owner of a trademark has to prove to establish infringement of its trademark is that the defendant’s use of the mark is “likely to cause confusion.” Id. A company’s trademark becomes the symbol of its brand. Trademark rights arise upon use, such that a company has common-law rights in its trademark as soon as the company uses the trademark to promote its goods and/or services. These rights extend to the goods and/or services for which the mark is being used and any goods and/or services that would be within what some courts refer to as the “natural zone of expansion.”

The U.S. Government and most state governments have passed comprehensive legislation to promote the interest of fair competition and the protection of consumers from confusion related to the source of goods and services. On the federal level, the Lanham Act, officially known as the Trademark Act of 1946, was enacted on July 5, 1946. The primary purpose of the Lanham Act is to provide federal protection and regulation of trademarks, service marks, and other indications of origin, and to prevent unfair competition. It establishes the framework for the registration and protection of trademarks in the United States Patent and Trademark Office, (the USPTO), and outlines the rights and remedies available to owners of both trademarks registered under the Lanham Act as well as owners of common-law trademarks.

Adopting a Unique Trademark – The Importance of a Search Just as cattle owners used a unique mark or symbol to identify their

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cattle, a business owner should choose a unique mark to protect his or her brand. In order to aid in the process of selecting a unique mark, a search is advisable. A search of the USPTO’s trademark database can provide material information to use in determining the likelihood that a trademark can be federally registered. In this regard, the U.S. Trademark Act prohibits registration of a trademark that is confusingly similar to a trademark that is already registered or pending in the USPTO. However, because trademark rights arise upon use of a trademark in connection with goods or services, regardless of whether the trademark is ever federally registered, users of unregistered/common law trademarks and owners of state-registered trademarks can oppose a federal registration and bring suit for trademark infringement. Accordingly, in order to attempt to determine both the likelihood of successful federal registration and the potential risk of opposition and/or infringement litigation, a more comprehensive U.S. trademark search, which includes a search of state and federal trademark registration records, as well as a common law search of sources deemed likely to reflect third-party trademark use, is recommended. When possible, it is advisable to perform this search prior to investing significant time, money, and resources, into promoting a selected trademark.

Applying for Federal Registration As mentioned above, trademark rights arise upon use of the trademark in conjunction with the sale, or the offer for sale, of goods and/or services. Accordingly, a mark must be in actual use in interstate commerce prior to the USPTO registering an otherwise registrable trademark. An owner of a trademark in use in interstate commerce can apply to have that mark registered in the USPTO. However, even if a trademark is not yet in use in connection with the sale or shipment of goods or the providing of services in interstate or foreign commerce, an “intent-to-use” application can be filed if the applicant has a bona fide intent to use that mark in commerce.

With both use-based and intent-to-use applications, after an application is filed, it is substantively examined by a Trademark Examiner in the USPTO. The initial examination of the application can take from 18 to 24 months or longer. The Examiner will either issue a notice of allowance or a “non-final” action advising as to whether the trademark can be registered. The applicant is then given the opportunity to respond to the Examiner’s communication. If the Examiner makes a final determination that the trademark can be registered, it is published in the Official Gazette, a U.S. government publication, so that anyone believing they will be harmed by the registration may file a proceeding seeking to oppose registration. If no opposition is filed in a timely manner, a trademark that is in use will be registered in due course. In applications that were filed based on an “intent-to-use,” an acceptable Statement of Use, establishing that the mark is being used, must be filed in a timely manner before Registration will issue.

The USPTO Registers the Trademark; Now What?

Once the trademark is registered, the owner can use the Federal Registration mark, the capital “R” in the circle, i.e. ®. For the registration to remain in force, the mark must remain in use. To this end, the registration is subject to being renewed on the fifth and tenth anniversaries of issuance and every ten years thereafter. Federal Registration, in conjunction with consistent use and zealous enforcement, is the best way to protect the brand!

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DICTA

See e.g., https://agamerica.com/blog/brand-history-of-cattle-branding/ https://www.smithsonianmag.com/arts-culture/decoding-the-range-the-secretlanguage-of-cattle-branding-45246620/ https://ag.colorado.gov/brands/livestock-inspection#BrandInspector

June 2024

SCHOOLED IN ETHICS By: Alex B. Long

Williford Gragg Distinguished Professor of Law University of Tennessee College of Law

IMPORTANT GUIDANCE ON PROSPECTIVE CLIENTS The initial meeting with a prospective client provides both parties with the chance to explore whether they wish to enter into an attorneyclient relationship. It also carries with it several potential ethical concerns. New ABA Formal Opinion 510 addresses when a lawyer’s conflict of interest resulting from a meeting with a prospective client is imputed to other members of the lawyer’s firm and the steps lawyers should take in order to avoid imputation.

Even when a lawyer decides not to represent an individual who has discussed with the lawyer the possibility of forming a lawyer-client relationship, the lawyer still owes the individual a number of ethical obligations. These include a duty of competence, confidentiality, and safekeeping of property. The lawyer’s discussion with the individual might also result in the lawyer having a conflict of interest that prohibits the lawyer from representing another party in the matter in question.

If, during the course of a meeting with a prospective client, the lawyer learns “information from the prospective client that could be significantly harmful to that prospective client in the matter,” the lawyer is disqualified from representing another client in the same or substantially related matter. TRPC R. 1.18(c).

Of course, if both the affected client and the prospective client provide informed consent, confirmed in writing, to the conflict, the lawyer may represent the affected client in the new matter, as may other lawyers in the same firm. However, what if the prospective client refuses to consent to the lawyer’s representation of the new client? In such a case, the lawyer’s conflict remains and might possibly be imputed to other members of the lawyer’s firm. According to TRPC Rule 1.18(d), the lawyer’s conflict is imputed to other members of the firm unless the lawyer undertook “reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client.”

The relevant language of ABA Model Rule 1.18 is identical to TRPC Rule 1.18. TRPC Rule 1.18(d)(2) provides that representation by other members of the firm is permissible if: the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (i) the disqualified lawyer is timely screened from any participation in the matter; and (ii) written notice is promptly given to the prospective client. (emphasis added). New ABA Formal Opinion 510 addresses what types of information may result in imputation of the lawyer’s conflict and the “reasonable measures” a lawyer must take to avoid the imputation of the conflict. The opinion breaks down this standard into three distinct inquiries.

First, the opinion explains that information pertaining to the decision “whether to represent the prospective client” for purposes of the rule “may relate to the lawyer’s professional responsibilities (i.e.,

whether the rules permit the lawyer to take on a matter).” For example, this might include information needed to determine whether the lawyer could handle the matter competently or whether the lawyer has a conflict of interest. Second, information pertaining to “whether to represent the prospective client” might relate to the more basic question of whether the lawyer wants to accept the matter as a business decision. This could include enough information “to enable the lawyer to assess the amount of time the engagement will take, the range of anticipated compensation for that time, the potential expenses, and the likelihood of being fully compensated.” In contrast, information that a lawyer elicits from a prospective client that the lawyer can then use to persuade the client to hire the lawyer would not relate to the lawyer’s determination “whether to represent the prospective client.”

The second (and more difficult) inquiry is whether it is “reasonably necessary” for the lawyer to learn the information in question in order to determine whether to represent the prospective client. The opinion attempts to differentiate between information that is useful or serves some legitimate purpose and information that is “reasonably necessary” for the lawyer to know in order to decide whether to represent the client. For example, the opinion suggests that some inquiry into the facts of a potential lawsuit might be reasonably necessary for the lawyer to determine whether the claim is frivolous or how likely the client is to prevail. But substantial investigation into the facts of a prospective client’s matter may not be “necessary” to permit the lawyer to decide whether to represent the client.

This leads to the third inquiry: “what constitute ‘reasonable measures’ to limit exposure to more information than reasonably necessary.” The opinion offers two suggestions for how lawyers may reasonably limit the information they receive. “[A] free-flowing conversation,” in which the lawyer allows the prospective client to talk freely about the matter, “is unlikely to involve reasonable measures to limit the information being provided,” the opinion observes. In addition, the opinion suggests that a lawyer warn the prospective client that the lawyer “has not yet agreed to take on the matter and that information should be limited only to what is necessary for the lawyer and client to determine whether to move forward with an engagement.”

If, in keeping with Rule 1.18(d), the lawyer has taken reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client, other members of the firm may represent the new client despite the lawyer’s disqualification. This would require timely screening of the disqualified lawyers as well as providing prompt written notice to the prospective client of the screening measures employed.

ABA Formal Opinion 510 supplements Formal Opinion 492, the ABA’s earlier opinion concerning prospective clients. Opinion 492 focused on the type of information that could be disqualifying for a lawyer who has communicated with a prospective client (such as personal accounts of relevant events, sensitive personal information, and strategies). Because the relevant portions of the ABA’s Model Rules and Tennessee’s Rules of Professional Conduct are identical, both opinions provide useful guidance for Tennessee lawyers.

If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835.

June 2024

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MONTHLY MEETING Plan now to attend the Barristers monthly meet-up on Wednesday, June 12, starting at 5:15pm at The Firefly, the outdoor patio at the Hilton, located at 501 W. Church Avenue, Knoxville. Social time starts at 5:00pm. All Barristers members are invited to attend, meet fellow attorneys, and learn about upcoming Barristers events.

MEMBERSHIP COMMITTEE HOLDS SUMMER PARTY AT JIG & REEL The Barristers Olympic Summer Party will be held on Friday, July 19, from 7:00 - 9:00 p.m. at Jig & Reel on 101 S. Central Street. Join your friends for good food, drinks, and fun! In theme with the Summer Olympics, small games will be held, and guests can come dressed in support of their favorite competing country! The cost is $25 per person before July 5, and after that date, the ticket price will increase to $30 per person. The Summer Party is open to guests, including members from the Knoxville Bar Association, law clerks, and/or friends and family. Register early by going to the event calendar at knoxbar.org/events. Special thanks to Rusty Harmon and our friends at SmartBank for sponsoring our summer party!

VOLUNTEER BREAKFAST COMMITTEE CONTINUES OPERATIONS The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15am at the Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, Tennessee. The Barristers Volunteer Breakfast Committee always needs volunteers to serve food or sponsor. The cost is

$150 for sponsoring, and we need 4-5 volunteers. If you are unable to fund the breakfast, the Barristers will subsidize the cost of the breakfast.

We meet at 6:15am and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30am. It’s a great way to serve the community! Please contact either Matt Knable at mknable@ wkfirm.com or Miranda Goodwin at mirandaegoodwin@gmail.com with any questions and/or about volunteering.

DIVERSITY COMMITTEE COLLECTS DONATIONS FOR SCHOLARSHIP FUND The Barristers Diversity Committee has created a scholarship fund to help with travel and lodging costs for diverse students who are invited to attend preview days hosted by the local law schools. Members are asked to make a donation to help ensure that one student, who may not otherwise be able to afford to visit a law school in Knoxville prior to their enrollment, is able to attend a preview day. If you have questions, please reach out to Mariel Bough (mariel.bough@verasafe.com) or Grant Williamson (gwilliamson@bradley.com) for more information on how your donation will be used, or for more ways to get involved with the Barristers Diversity Committee’s efforts to make the Knoxville Bar Association a more inclusive and diverse organization. Information on how to donate online can be found on the KBA website on the Barristers Diversity Committee page.

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DICTA

June 2024

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Clint J. Coleman Nelson Law Group, PLLC

IS ADVERSE ACTION NECESSARY FOR FAILURE TO ACCOMMODATE CLAIMS UNDER THE ADA? In May 2023, the U.S. Court of Appeals for the Eleventh Circuit, in Beasley v. O’Reilly Auto Parts, held that a plaintiff ’s claim for failure to accommodate under the Americans with Disabilities Act (“ADA”) must include an assertion that he suffered an adverse employment action.1 The Facts The plaintiff worked for O’Reilly Auto Parts as a warehouse worker. The plaintiff is deaf and can understand only 30% of verbal communications. As such, he utilizes American Sign Language (“ASL”) for communication. When he was hired, O’Reilly agreed to provide the plaintiff an ASL interpreter when necessary.2 Specifically, the plaintiff requested but did not receive an ASL interpreter for various meetings, training, and a company picnic. He also asked for text messages summarizing nightly pre-shift meetings but did not receive those accommodations.3 In January 2018, the plaintiff resigned from his position and filed a lawsuit claiming that O’Reilly had discriminated against him under Title I of the ADA by failing to reasonably accommodate him. The district court granted O’Reilly’s motion for summary judgment.4 In reaching its conclusion, the district court relied on a footnote in a 2007 decision by the Eleventh Circuit stating that to succeed on a failure-to-accommodate claim, a plaintiff must show that he suffered an adverse employment action, which Beasley had not done.5 Beasley challenged the district court’s ruling of his failure to accommodate claim.6 The Law Under the ADA, an employer commits a violation when it (1) “discriminate[s] against a qualified individual on the basis of disability” and (2) does so “in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”7 The first element—discrimination—occurs “when the employer fails to provide ‘reasonable accommodations’ for the disability — unless doing so would impose undue hardship on the employer.”8 As to the second element, however, the Eleventh Circuit, in Beasley, held that “discrimination in the form of a failure to reasonably accommodate is actionable under the ADA only if that failure negatively impacts the employee’s hiring, advancement, discharge, compensation, training, and other terms, conditions, and privileges of his employment.”9 In other words, a failure to accommodate claim can only survive if the plaintiff shows he suffered an adverse employment action.

An Ever-Growing Circuit Split The Eleventh Circuit’s ruling in Beasley highlights an expanding split among federal circuits. In 2020, the Tenth Circuit reached

the opposite conclusion of Beasley. In Exby-Stolley v. Bd. Of Cty. Commissioners,10 the Court overturned the district court’s ruling incorporating an adverse employment action requirement into an ADA failure to accommodate claim.11 In reaching its decision, the Tenth Circuit stated that it was confident that prior iterations of the appellate court that set the precedent upon which it now relied, “omitted an adverse-employment action element from their comprehensive statements of the prima facie case for an ADA failure-to-accommodate claim for a reason: viz., there is no such element in an ADA failure-toaccommodate claim.”12 The Tenth Circuit bolstered its assertion by noting that the omission of an adverse-employment action requirement from its prior articulations of the ADA prima facie case for failure to accommodate was especially telling given that the Court had not been reticent to acknowledge an adverse employment action requirement in other contexts.13 This outcome is in agreement with the precedent of the Second Circuit Court of Appeals, which has affirmatively held that an ADA plaintiff need not show an adverse employment action to state a failure to accommodate claim.14 By contrast, the Eighth Circuit has indicated that a failure to accommodate claim does require an adverse employment action, thus agreeing with the Beasley court.15 To add confusion to the chaos, at least one federal court in Tennessee has stated that an ADA plaintiff asserting a failure to accommodate claim must show that he requested a reasonable accommodation and was denied or that he was subject to an adverse employment decision that was made because of his disability.16 This signals that an adverse employment action is not a requirement. But only a year earlier, our Sixth Circuit stated that “to bring a claim for failure to accommodate, the plaintiff must provide direct evidence that he suffered an adverse employment action because of his disability.”17 So how do these circles square? How is the confusion resolved?

Until the Supreme Court provides clarity for the applicable standard, employers’ exposure to risk on failure to accommodate claims will vary among jurisdictions.

Guidance Moving Forward The decision in Beasley grants employers in Florida, Georgia, and Alabama greater protection from liability (and expands what constitutes legal disability discrimination) by requiring plaintiffs to prove both failure to accommodate and adverse employment action. However, for Tennessee employers, the above case law only adds confusion, not clarity, to any risk analysis when dealing with accommodation requests or defending against failure to accommodate claims.

In either event, what constitutes an adverse employment action is a nuanced evaluation, and so it would be imprudent to rely solely on the continued on page 31

About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Sam Henninger at shenninger@wmbac.com.

June 2024

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AROUND THE BAR By: Hon. Sharon G. Lee

Tennessee Supreme Court (Retired)

Tasha C. Blakney

Executive Director, Knoxville Bar Association

THE KBA JOURNEYS TO PANAMA If you ever get the chance to see Panama with KBA President Carlos Yunsan, do it.

That’s what 14 lawyers and guests from the Knoxville Bar Association learned during a week with Carlos in his native Panama.

And that’s not all we discovered.

Our merry band of intrepid travelers had extraordinary access to people and places in the beautiful nation of Panama, centered largely around the cosmopolitan capital of Panama City. Our home base was a lovely hotel in the charming Casco Viejo historic center, named a UNESCO World Heritage Site in 1997. Also known as the Old Quarter, the area featured cobblestone streets, colonial mansions, churches, plazas, and Spanish landmarks. From there, we traveled around Panama City for programs at the Panamanian General Assembly, the Presidential Palace, the Supreme Court Palace of Justice, and the United States Embassy. We met dignitaries ranging from the Chief Justice of the Panamanian Supreme Court, elected members of the General Assembly, American diplomats, and even the chief engineer responsible for the expansion of the Panama Canal. Every speaker was knowledgeable, engaging, and so very welcoming to our group.

Of course, no trip to Panama would be complete without getting out of the City and getting in the Zone—the Canal Zone, that is. We

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had true behind-thescenes access to the Miraflores Locks.

When our guide told us to step across the area generally reserved only for those working on the docks themselves, we gladly accepted the invitation. It was absolutely fascinating to learn the history of the Canal and see massive ships passing through the Canal’s intricate system of locks.

And, going even further afield, we had the extraordinary chance to visit an indigenous village on the shores of Gatun Lake in the Gamboa rain forest, accessible only by boat. The Emberá villagers treated us like family, teaching us local dances, displaying their handicrafts, and sharing an extraordinary meal of freshly caught fish, fresh fruit, and fried plantains wrapped in banana leaves. On the way to the village, we saw some of the wildlife of Panama, including crocodiles, monkeys, and stunning birds.

During free time, KBA travelers explored the fish markets and waterfront; Panama Viejo, the archaeological site of the ruins of the original city; the Biomuseo, which showcases the country’s ecological richness; the Museo Canal for an in-depth

DICTA

June 2024

view of the history of the Canal; and the Museo de la Mola to see and learn about the intricate pieces of fabric art made by Indigenous Guna women.

In the evenings, we enjoyed delicious cuisine at some of Panama City’s best restaurants.

Some travelers even stayed for a few days post-trip to explore the natural beauty of the interior of Panama. During our trip, we learned about Panama and each other. We took advantage of the opportunity to get better acquainted and develop lasting connections with our fellow KBA travelers in a beautiful, relaxed setting.

The trip was an experience of a lifetime, and we already can’t wait to see where the next adventures take the KBA. We each earned 7.5 hours of CLE on this fantastic voyage and, while there are a great many ways to get your CLE with the KBA, getting it abroad on an enriching and culturally eye-opening trip with your KBA friends and colleagues simply cannot be beat.

Welcome TO OUR PRACTICE

Amanda Busby Charles Child Sloane Davis

abusby@bsmlaw.com cchild@bsmlaw.com

865-546-8030 www.bsmlaw.com

sdavis@bsmlaw.com

June 2024

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LEGALLY WEIRD By: Lisa J. Hall1 Hodges, Doughty & Carson

NO MORE HALL & OATES? SAY IT ISN’T SO!2 Unless you are out of touch, you may be aware that all is not right in the world of Daryl Hall & John Oates. Time has run out for the magic pair. Late last year, Daryl Hall learned that John Oates planned a sale of his shares of Hall & Oates’ joint venture, Whole Oats Enterprises, LLP to a third party, Primary Wave Music. Hall sued Oates in the Davidson County Chancery Court (this is widely referred to in the news media as the “Nashville Chancery Court” – imagine my confusion) to block the sale, as well as to seek damages due to breaches of their business agreement.

After thinking to himself, “I can’t go for that,” Hall signed a declaration in support of his motion for temporary injunction, stating that this was the “ultimate partnership betrayal” and that the “harm is unimaginable.” In other words, no can do. Swift action was necessary to block the sale, so he basically did it in a minute.

He also said, “I am deeply troubled by the deterioration of my relationship with, and trust in, John Oates.” His declaration also states that the timing of Oates’ planned sale was purposefully planned to “create the most harm” to him, as he was in the middle of the tour and needed to “focus and perform at top level.” He did not specifically say, “I have lost that lovin’ feeling,” but we all understand that some things are better left unsaid. Oates responded, stating he was “tremendously disappointed” and that he had “no idea who or what is motivating Daryl to take these steps and make such salacious statements, but I am deeply hurt.” He also denied knowing that Hall was on tour, stating he did not follow him on social media and did not know what he was doing. On the legal dispute, Oates told Rolling Stone it is about a “very boring business issue” and that he believes they will work it out.

Chancellor Russell T. Perkins first issued a temporary restraining order, prohibiting Oates from selling the shares of Whole Oats Enterprises to Primary Wave, and later entered a temporary injunction.

Much of the record is sealed, available only to certain private eyes. The Court apparently does not feel the need to give such secrets away.

Hall and Oates made music together for over fifty years, and it is hard for me to think of either of them as a true solo act, but they both seem to suggest that this split basically made their dreams come true.

Hall, in particular, seems to be a Hall and Oates denier, telling Bill Maher in a podcast last year, “I don’t have a partner. You think John Oates is my partner? He’s my business partner. He is not my creative partner. John and I are brothers, but we are not creative brothers. … We made records called Hall & Oates together, but we’ve always been very separate, and that’s a really important thing for me.”

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When asked about their musical relationship status by Rolling Stone, Oates said, “You can ask Daryl the same question. But, yes. As far as I’m concerned, I’ve moved on. I feel like I have a new lease on my creative life.” He stressed that he and Hall were both individuals: “Daryl and I have always called ourselves Daryl Hall and John Oates, because we always wanted to be perceived as two individuals who work together.

That was very important to us. If you look at the albums, you’ll see that on every album. And so this is the ultimate expression of that.” When asked if they may one day perform one last song together to end the story on a positive note, he said, “I have no idea. But I don’t see it. I really don’t. Life is funny though. You never know what kind of curve it will throw you.”3 For now, and maybe forever, they’re gone. We’d better learn how to face it.

I am very flattered, but no, I am not related to Daryl Hall. Common mistake. I am also not a rich girl. I do feel that I missed out on a legendary law firm opportunity by failing to seek out a law partner with the last name “Oates.” Or even “Oats” – it still would have worked!

For fun, feel free to count the number of song title or lyric references included in this article. This challenge is not sponsored by the Knoxville Bar Association.

We are lawyers, so the way we interpret that statement is, “So you’re telling me there’s a chance!”

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DICTA

June 2024

TOP TEN By: Jason Long Lewis Thomason

BEST LAWYER SONGS It’s summertime. A time to relax a little, go outdoors, take that family vacation, or just take some time to enjoy the fruits of your hard labor. When I think of summertime, I picture myself playing golf out at Holston Hills. Those visions invariably end with me burying myself in the front bunker at 18, trying to get the damn ball somewhere on the green. Once I push that nightmare out of my head, summertime conjures up an image of driving down the open road with good friends in a convertible on a bright sunny day and the radio blaring at top volume.

With that much more preferable image stuck in my head, this month’s Top Ten List is the top ten songs involving the law or lawyers. As always, this is an entirely subjective list. If you disagree with me, please keep your opinions to yourself, at least until the DICTA editors give you permission to write your own column.

10. Here Comes the Judge – Shorty Long, 1968. A great soul/funk offering that was inspired by the classic comedy sketch from Rowan & Martin’s Laugh-In. Lyrics: “Court’s in session, order in the court now. Court’s in session, can’t nobody smoke now. Here comes the judge.” I would make this the background music next time I am in Judge McMillan’s courtroom, but I know he would much prefer the next song on this list.

9. Lawyers in Love – Jackson Browne, 1983. This is Jackson Browne’s ode to lawyer couples who find themselves too busy to enjoy their romance. Lyrics: “Am I the only one who hears the screams, and the strangled cries, of lawyers in love.” As one-half of a lawyer couple myself, the lyrics are somewhat disconcerting, but still a classic song.

8. This Side of the Law – Johnny Cash, 1970. Could there be a list of songs about the law that did not include one by the man in black who made a career of performing for those who found themselves on the wrong side? Lyrics: “On this side of the law, on that side of the law.

Who is right? Who is wrong? Who is for and who’s against the law?”

7. Chicago/We Can Change the World – Crosby, Stills & Nash, 1971.

A classic song about the trial of the Chicago 7 and, in particular, the decision to bind and gag Bobby Seale during court proceedings. Lyrics: “So your brother’s bound and gagged and they’ve chained him to a chair.

Won’t you please come to Chicago just to sing.” You’ll notice that many songs from here on out tend to be songs of protest.

Dixon Line. Still a haunting and memorable song. Lyrics: “Well, don’t trust your soul to no backwoods, southern lawyer. Cause the judge in the town’s got bloodstains on his hands.”

4. Hurricane – Bob Dylan, 1975. In fairness, this protest song, by the grandfather of all protest singers, really has only a brief commentary on the legal system. I probably could have picked a dozen other Dylan songs that fit the mold. However, I don’t think Hurricane gets enough credit, and its one of my personal favorites. Inspired by the true story of boxer Rubin “Hurricane” Carter’s conviction on murder charges. Lyrics: “The trial was a pig circus. He never had a chance. The judge made Rubin’s witnesses drunkards from the slums.”

3. I Shot the Sheriff – Bob Marley and the Wailers, 1973. Another master of the protest song genre. I challenge anyone who hears “I Shot the Sheriff ” not to immediately sing “but I didn’t shoot no deputy.” Go ahead - try.

2. L.A. Law Theme Song – For those who grew up like me, in the 80’s, hearing the opening theme song to L.A. Law immediately conjures up images of Harry Hamlin, Susan Dey, Corbin Bernsen and Jimmy Smits, enjoying the type of life we all thought we would have as lawyers. For lawyers of later generations, I suspect the theme song of Law & Order has similar emotional appeal, but I am old and am sticking with L.A. Law. 1. I Fought the Law – Sonny Curtis, 1958. Honestly, there was never going to be another number one considered for this list – when I thought of this topic, the tune immediately came into my head. A lot of interesting history here. This classic tune was originally written by Sonny Curtis in 1958. It was recorded a year later when Sonny joined the Crickets to take the place of the deceased Buddy Holly (no pressure there). The popular versions of the song you know today were performed

by The Bobby Fuller Four, 1966, or if you like a little punk in your music, The Clash, in 1979. Lyrics: “Breakin’ rocks in the hot sun, I fought the law and the law won.”

Get outside, enjoy the summer, enjoy some music, and enjoy being a lawyer.

6. Don’t Be a Lawyer – Crazy Ex-Girlfriend Cast, featuring Burl Moseley, 2018. Hear me out on this one. I came across this song while “researching” this article. Do yourself a favor, google it and watch the video. Hilarious. The chorus sums up how we have all felt at least once: “Don’t be a lawyer! Don’t do it, quickest way to ruin your life.” I particularly love the following lyric: “Daily regret of what you dreamed of as a kid – or did you hope one day, you’d find a way, to spend four years workin’ on a pharmaceutical company’s merger with another pharmaceutical company . . .” Seriously, go google this video now!

5. The Night that the Lights went out in Georgia – Vicki Lawrence, 1972. A lot to unpack in this song. Did you know it was originally recorded by Vicki Lawrence of Carol Burnett Show fame? The same Vicki Lawrence who played Mama in Mama’s Family? Of course, most of us know it now by the 1991 cover done by Reba McEntire. It does not paint a pretty portrait of the justice system south of the MasonJune 2024

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BARRISTER BITES By: Angelia Morie Nystrom

Vice President for Advancement and Chief Legal Counsel East Tennessee Foundation

MOTHERS-IN-LAW, SUPER MILK, AND PINEAPPLE UPSIDE-DOWN CAKE Since the beginning of time, daughters-in-law have complained about their mothers-in-law. From 1967 until 1969, NBC aired a show called “The Mothers-in-Law,” which featured two couples whose children were married. The show ‘s premise involved the two meddling mothersin-law and the children who had to deal with them. In 2005, Jane Fonda and Jennifer Lopez starred in “Monster-in-Law,” a comedy about a woman who had met the perfect man and his mother who did everything in her power to destroy the relationship. Mothers-in-law, and especially mothers of sons, are much maligned. They are derided in comedy sketches, in soap operas, in books, and in real life.

I need to complain about mine. My only complaint about TeeDee Nystrom is that I didn’t have her long enough. Hugh and I had been married exactly 2.5 years when we lost her.

TeeDee had that certain je ne sais quoi. She was smart, she was funny, and she was resourceful. She was an avid reader, an incredible flower arranger, and she was an amazing cook. Her lasagna was legendary, and a famous chef featured her cheesecake in his cookbook. She also had some recipes that were—shall we say—unusual.

Hugh loves to talk about some of his mother’s culinary creations.

When she wanted her kids to drink milk, she gave them “Super Milk,” which she told them could turn them into super heroes. Hugh says that, as he got older, he realized that Super Milk was just regular whole milk loaded with sugar.

She also made “Lazarus doughnuts.” The Nystroms lived near Krispy Kreme, and their doughnuts were a staple in their household. If they didn’t eat them all, TeeDee turned them into Lazarus doughnuts, reviving dead doughnuts by giving them new life. To raise the doughnuts from the dead, TeeDee would cut them in pieces and then fry them in butter on the stove. Hugh loved them as a kid, and he still loves them as a grownup kid.

TeeDee was also famous for her banana pancakes. Banana pancakes were regular pancakes with bananas in the batter. Any time Hugh would have friends over, TeeDee would serve banana pancakes for breakfast.

I can attest that they were amazing – best I have ever had. I’m not the only one who thought so. Hugh likes to tell the story of when his friends John and Holly visited from Florida. Since they were staying at TeeDee’s house, she made her famous banana pancake breakfast for them. Holly, who was (and still is) a super-athlete and vegan, was chowing down on pancakes. She told TeeDee that they were the best she had ever had and asked for her secret. TeeDee’s secret: a healthy dose of bacon grease in the batter. I don’t think Holly ever recovered.

Hugh’s favorite of his mother’s recipes, though, was her pineapple

upside-down cake. TeeDee’s version was so loaded down with butter and brown sugar that it could not be turned out of the pan. Per Hugh, it was a 13x9 pan of buttery and sugary goodness. TeeDee made it for him every year on his birthday, and on more than one occasion, he ate the whole thing in one sitting.

Unfortunately, TeeDee passed away before I could get this recipe from her. For the past 16 years, I have scoured cookbooks for a recipe for pineapple upside-down cake that could come close to the ones that TeeDee used to make for him. Through trial and error, I think I’ve finally found the one. It’s super easy and comes from an unlikely source.

I’ve made this pineapple upside-down cake for Hugh on many occasions, and he says that it tastes just like the ones his mother used to make. It comes from Betty Crocker, and, like TeeDee, I’ve done a little improvising.

To make Hugh’s new favorite pineapple upside-down cake, you will need the following: ½ cup butter, 2 cups brown sugar, 2 cans crushed pineapple (20 oz) in juice (juice drained), 1 box Betty Crocker Super Moist yellow cake mix, and vegetable oil and eggs as called for on the cake mix box. While the recipe suggests using a 13x9 inch pan, I prefer a Bundt pan. You get a greater concentration of brown sugar and pineapple, and you also have more edges.

To make the cake, heat oven to 350°. Melt butter in oven (or microwave). Pour butter into greased pan and then sprinkle brown sugar evenly over butter. Drain one can of crushed pineapple, reserving the juice. Put pineapple on top of brown sugar and butter. Press gently into brown sugar.

Open and drain the other can of pineapple. Add the reserved juice together and then add enough water to measure 1 cup. Make cake batter as directed on the box, substituting pineapple juice for water. Mix well with a hand mixer. Once mixed, add in the crushed pineapple, and mix again. Pour the batter over the pineapple/brown sugar/butter mixture.

Bake 42-48 minutes or until toothpick inserted in center comes out clean. Immediately run knife around side of pan to loosen cake. Place heatproof serving plate upside down onto pan. Turn plate and pan over.

Leave pan over cake for at least 5 minutes so brown sugar topping can drizzle over cake. Remove pan. Cool 30 minutes. Serve warm or cool.

Store covered in refrigerator.

I recently made this cake for Hugh’s birthday. He said that it reminded him of his mother’s and that was the best gift that I could have given him. Mothers-in-law often get a bad rap. Mine, though, was the best ever.

J U D I C I A L P R O F I L E , continued from page 6 4 5 6

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Id. Id. United States Courts, Suzanne H. Bauknight: Judicial Milestones (https://www. uscourts.gov/judicial-milestones/suzanne-h-bauknight).

United States Bankruptcy Court Eastern District of Tennessee, Announcement Concerning Changes in Tennessee Eastern Bankruptcy Court (https://www.tneb. uscourts.gov/news/announcement-concerning-changes-tennessee-easternbankruptcy-court).

American Bankruptcy Institute, Debt Relief Clinic in Knoxville, Tennessee Celebrates

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First Anniversary (https://www.abi.org/feed-item/debt-relief-clinic-in-knoxvilletennessee-celebrates-first-anniversary).

Knoxville Bar Association, Upcoming Legal Clinics (https://www.knoxbar. org/?pg=Upcoming-Legal-Clinics).

Tennessee Bar Association, Faculty Profile: Hon. Suzanne Bauknight (https://cle.tba. org/faculty/profile/17781).

Federal Bar Association, Grants Awarded – 2019 (https://www.fedbar.org/ foundation/outreach-and-diversity-grants/chapter-community-outreach-grantprogram/grants-awarded-2019/).

June 2024

FOODIE FINDS: THE BEST OF KNOXVILLE’S FOOD TRUCKS By: Parker Bohne LMU Duncan School of Law J.D. Candidate, 2026

DIA DE FOODS Most, if not all, of us have had those moments in life where we talk about our dreams with our friends. Maybe that dream is a cross-country road trip or an adventure in a new country or a drastic career change. For some, those dreams never become anything more than a conversation. For Jesse and Erica, that dream turned into reality.

Jesse and Erica’s relationship began in a restaurant where they worked long, relentless shifts together – Jesse as a chef and Erica as a bartender. While their love story began in a restaurant, the couple together dreamt of something more: serving high-quality food from a food truck. The two were hesitant to jump into anything out of fear of losing the steady income of their restaurant jobs.

Then, in 2020, the world stopped. Coronavirus wreaked havoc on the restaurant industry and all the hardworking people who keep it afloat.

Jobs were no longer guaranteed or secure. Jesse and Erica knew that if they did not take this opportunity to follow their dreams now, they may never get another chance.

Step one? Find a truck. A friend of a family member up in New Jersey sold the couple an old school bus. After about six months of renovations, the first Dia De Foods truck was born. This was three years ago, and now the couple have the original busrenovation food truck as well as an 18-foot trailer that enjoys a permanent residency, open seven days a week, at Southside Garage at 1014 Sevier Avenue.

The menu started small with a focus on brunch. Now the menu is ever-expanding and changing with crowd favorites and daily specials. With Jesse manning the kitchen, and Erica greeting every customer with a smile and hilarious sense of humor, Dia De Foods delivers traditional New Mexican and southwestern flavors to Knoxville’s

tastebuds.

There is no wrong choice when it comes to the Dia De Foods menu—which is posted online at diadefoods.com/menus. The way to my heart is a nice, crispy potato, and Dia De Foods won every piece of my heart with their Smashed Potatoes. They’re perfectly crisped, seasoned, sprinkled with cojita cheese, and served with a side of NM red chile lemon aioli.

The Green Chile Cheeseburger always hits the spot, as well. The beef patties are juicy, flavorful, and cooked to perfection. The burger comes topped with American cheese, green chiles, mustard aioli, and pickles to create a powerful and delicious flavor combination. The Tacos Birria, filled with smoked brisket, cheddar cheese, red onions, and NM red chile, are divine in their own right, but when dipped in the broth served with them, the explosion of flavor is unmatched by anything I have ever tasted.

The creations put out by Jesse and Erica are unparalleled and leave customers speechless. The duo’s creativity and dedication to their craft show no sign of slowing down any time soon. Next time you’re near Sevier Avenue or if you ever see the original Dia De Foods bus-turnedfood-truck out on the town, you would be remiss to keep driving. Turn the car around and find out why Dia De Foods is one of the best spots in town.

P R A C T I C E T I P S , continued from page 7 4 5 6 7 8 9 10 11 12 13 14 15 16

Id. Id. at 2286-87.

Id. Id. at 2287.

Groff v. DeJoy, 35 F.4th 162, 175 (3d Cir. 2022).

Groff v. DeJoy, 143 S.Ct. at 2292-93.

Id. at 2294.

Id. at 2295.

Id. (internal citations and quotation marks omitted).

Id. at 2297 Id. at 2294.

Id. at 2296.

Hebrew v. Tex. Dep’t of Criminal Just., 80 F.4th 717 (5th Cir. 2023).

June 2024

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Smith v. City of Mesa, No. CV-21-01012-PHX-DJH, 2023 U.S. Dist. LEXIS 214657, at *11 (D. Ariz. Dec. 1, 2023).

Notably, this distinction between an accommodation’s hardship on the employer’s workforce and the employer’s business is the subject of Justice Sotomayor’s concurring opinion. Justice Sotomayor, joined by Justice Jackson, wrote, “[I]f there is an undue hardship on the conduct employer’s business, then such hardship is sufficient, even if it consists of hardship on employees.” Groff, 143 S.Ct. at 2298 (Sotomayor, J., concurring). Employment lawyers should keep a close eye on how—and to what degree—courts draw a distinction between a burden on an employer’s employees and an employer’s business.

Groff, 143 S.Ct. at 2296.

Id. at 2296-97.

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BENCH AND BAR IN THE NEWS How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted.

Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to membership@knoxbar.org.

Address Changes

Please note the following changes in your KBA Attorneys’ Directory and other office records:

KBA MEMBERSHIP RENEWAL KBA is successful wholly because of your support and involvement. If you’ve already renewed, thank you! If you haven’t yet, there’s still time.

You can renew your KBA Membership by clicking on “Membership Renewal” within your myKBA profile. It is the last item listed under your name. We encourage you to pay online and update your profile. To see which committees and sections you are affiliated with, click on the “My E-Communities” tab under your myKBA profile. We are excited about new programs, continuing education offerings, and networking opportunities on the horizon in 2024.

KBA MEMBER SHOUT OUTS As part of this year’s focus on celebrating our bar association’s diverse membership and exploring creative ways for members to connect, network, and experience fulfillment in the practice of law, we would like to highlight the accomplishments and contributions of KBA members who are making a difference in the legal arena and beyond. Send links to news to posts or articles, pictures, or just a blurb about what’s going on to membership@knoxbar.org.

Sloan R. Davis BPR #: 037049 Bernstein, Stair & McAdams LLP 116 Agnes Road Knoxville, TN 37919-6306 Ph: (865) 546-8030 sdavis@bsmlaw.com

Virginia A. Schwamm BPR #: 014476 Virginia A. Schwamm, Attorney at Law P.O. Box 30988 Knoxville, TN 37930-0988 Ph: (865) 951-2018 ginny@schwammlaw.com

Todd L. Fulks BPR #: 021479 Pilot Company 5508 Lonas Drive Knoxville, TN 37909-3221 Ph: (865) 474-3563 todd.fulks@pilottravelcenters.com

Michael “Lawyer Mike” Shipwash BPR #: 019173 Law Office of Michael S. Shipwash 234 Morrell Rd., #366 Knoxville, TN 37919-5876 Ph: (865) 691-4454 shipwash@shipwashlaw.com

Rameen J. Nasrollahi BPR #: 033458 Lowe Yeager & Brown PLLC 920 Volunteer Landing, Suite 200 Knoxville, TN 37915-2584 Ph: (865) 521-6527 rjn@lyblaw.net

Celeste M. Watson BPR #: 022334 Law Office of C.M. Watson 9047 Executive Park Drive, Suite 215 Knoxville, TN 37950-2386 Ph: (865) 290-0506 celeste@cmwatsonlaw.com

FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates? Click on Public Resources and select “Career Classifieds” from the dropdown navigation.

The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource.

LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. Interviews of Tim Priest, Bob Pryor, and Charles Swanson have been recently added. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources.

OFFICE SPACE AVAILABLE: • North Knoxville, right off I-640/275. Part of a larger office with an established attorney. Free Parking and Internet, access to Kitchen and Conference room. Separate entrance. Excellent set-up for a new attorney. $500 per month. Contact Daniel Kidd, dan@ danielkiddlawoffice.com.

•

First class furnished individual offices for rent on the 19th floor right off the elevator in First Horizon Plaza, 800 S. Gay Street.

Please contact Lance Baker at 865-310-0997 for further details if you are interested.

•

Downtown Office Space for Rent - Large corner office with a view of downtown. Located in the First Horizon Building. $900 monthly.

Inquiries can be sent to jfanduzz@gmail.com.

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WELCOME NEW MEMBERS

THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS:

NEW ATTORNEYS Emily Elison Federal Defender Services Jennifer Lynn Foster Law Office of Jennifer L. Foster, PLLC Joseph McAfee McAfee & McAfee, PLLC James P. Mynatt, Jr. Chistopher W. Sherman

NEW LAW STUDENT MEMBERS Gabriella L. Choate William Gass Kevin S. Hill Kaylee Holloway Megan M. MacLean Adam B. McDonald Sawyer A. Vals

June 2024

WELL READ By: Tasha C. Blakney

Executive Director, Knoxville Bar Association

LADY SUNFLOWER,

BY SIERRA SHUCK-SPARER Sierra Shuck-Sparer made a wish.

When she was diagnosed with a devastating form of brain cancer as a teenager, she turned to the Make-A-Wish Foundation to make her dream of publishing a book come true.

She managed to live long enough to see her dream come to fruition, but only barely.

Now the wish of her book is a gift for the rest of us.

Lady Sunflower, published by Flowerpot Press in 2024, is Sierra Shuck-Sparer’s parting gift to the world she no longer directly inhabits. With straightforward clarity and conviction, she tells the reader, “I want to put enough of myself into the world so that when I’m gone, you’ll remember me.” The book is part memoir, part journal, part poetry collection, part how-to list, and all heart. When I finished reading it, I did something I never do; I turned back to the first page and began reading it again.

It is difficult to conceive of experiencing such a deep range of emotions— alternating between tears and laughter—within the brief confines of a book written by a young woman facing the ravishes of cancer and chemotherapy, surgery and radiation. But that is precisely what the book accomplishes. There is deeply touching introspection, anger, love, humor, sadness, and grace, all packed within the 172 compact pages.

The highlight of the work is Sierra’s poetry. It is beautiful, touching, and accessible, as with this excerpt from the titular poem, “Lady Sunflower:” Lady Sunflower, standing tall, Rises above to shield them all, Heaven forbid her petals fall And allow her feelings to show.

Lady Sunflower, full of grace, Never shows a cloudy face, Knows that life is not a race But feels behind even so. …

Lady Sunflower, stuck in bed, Droopy leaves and propped-up head, Gets frustrated but never turns red, She hides it under her yellow.

There’s practical advice here, too. Using her valuable and hardJune 2024

earned voice, Sierra at times speaks directly to readers enduring the same or similar hardships. She gives a science lesson (aided by Chloe Tyler’s thoughtful illustrations), provides musical playlists to boost the reader who needs it, and describes what to expect at various stages of illness and treatment. Sierra offers meaningful advice and encouragement to folks experiencing illness and to those supporting them.

It’s ultimately the insight into her own journey, though, that provides the beauty of this memoir. Sierra laments the brutal surgeries and treatments which render her A bare bones, a freezing house, That gets new clothes once the cold is gone.

But in the meantime, it shivers.

Comparing the cancer to a war and herself to the soldier who must face it, she poignantly reflects that it is the soldier who must fight the toughest wars, while camping “on an island made of her pain.” Still, there is hope and so much love on these pages: Whenever I am having a bad day, When I can only look at the ground and not the flowers or the sky, When the shades of green in the trees blur together, When I think about not being able to come back here, I close my eyes.

And I breathe.

I am in love with this world.

Sierra began the writings that ultimately became Lady Sunflower soon after her diagnosis with high-risk medulloblastoma at the age of 15. The writings, much like the dreaded “Gertrude” (the name given to the evil tumor which invaded her body), were her constant companion through spots of both darkness and joy. She endured an initial devastating diagnosis, a brutal surgery, debilitating treatment, a reprieve, then a heart-breaking relapse—all followed by the same vicious sequences of surgery and treatment, hope and despair. Yet, along the way, she persevered, managing to finish high school, perform in a school play, and begin her college career at Georgia Tech in Atlanta.

Sierra Sparer-Shuck, daughter of Tim Sparer and our own Cathy Shuck, lived to the age of 20, merely five years after her initial diagnosis with the cancer that would ultimately take her life. Thankfully, though, the cancer could not take her voice. Lady Sunflower was released on March 12, 2024. On March 24, Lady Sunflower herself left us. Like many, I grieve the loss of her life and the gift of her voice. She was promise itself.

Sunflowers grow to face the sun, turning in the course of each day to feel the sun on their faces. Sierra’s Lady Sunflower finds the very heart of the reader and shines. In a journal entry she shares, she tells the reader “I want to believe I can exist when I’m gone. I want you to believe it too.

I want you to know that I’ll be with you. It’s okay. I’ll be okay.” From her own words we know she wrote—in part—to prevent the meaningful, but brief, mark she made from fading from memory. She needn’t have worried. Her writing makes her impossible to forget.

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Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System

PRO BONO SPOTLIGHT By: Caitlin A. Torney Director of Pro Bono Legal Aid of East Tennessee

WE NEED YOU! KBA PRO BONO SECOND CHANCE INITIATIVE EXPANDS Criminal convictions create obstacles that tremendously impact a person’s life – often years after a person’s sentence is over. Old charges can make it difficult to find a job, secure permanent housing, and reunite with children. A felony conviction can strip a person of their citizenship rights like the right to vote, serve on a jury, and be a conservator for a loved one.

Tennessee also has powerful laws that allow people to remove some of these barriers. Our expungement statute – Tenn. Code Ann. § 4032-101 – has expanded dramatically over the past decade, and a new amendment passed this legislative session makes conviction expungement rules clearer. Certain felonies and misdemeanors – sometimes two of them – can be expunged at one time. Our Tennessee statute empowering people to restore their citizenship rights – Tenn. Code Ann. § 40-29-105 – requires that a petition be filed in Circuit Court.

Both expungement and voting restoration can truly change a person’s life, offering them a second chance. But many Tennesseans cannot take advantage of these laws without the help of a lawyer.

To give you an example, at a recent expungement clinic, a woman was so excited to learn that her simple possession and theft convictions were expungable. She had been repeatedly denied jobs because of these convictions, and she couldn’t support her children. By filing a conviction expungement petition and asking a judge for a fee waiver, the pro bono attorney helped her expunge these convictions.

At another pro bono clinic, a client asked for help to restore his right to vote. He lost this right in his twenties because of a felony conviction. A pro bono lawyer worked with the client to collect basic information required by the citizenship rights restoration statute, drafted the petition, and filed the petition in Circuit Court. For the first time in twenty years, the client voted in Tennessee.

To help give Tennesseans a second chance, we need you! The KBA Access to Justice Committee, led by Daniel Ellis and Caitlin Torney, is expanding its Second Chance Initiative and wants to train more pro bono lawyers. Last year, we launched the Second Chance Initiative to help more people expunge eligible dismissals and convictions.

This year, we are excited to expand this work to include Citizenship Rights Restoration. We are collaborating with Legal Aid of East Tennessee and the UT Legal Clinic to support the TN Supreme Court Access to Justice Commission’s Citizenship Rights Restoration Project.

This project assists Tennesseans with criminal records restore their rights.

The Commission has assembled experts from across the state to provide free training, resources, pleadings, forms, and support.

To engage busy lawyers from a range of practice areas, the KBA Second Chance Initiative has designed three pro bono pathways for lawyers to choose from: 1.

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Expungement Community Court Pro Bono Volunteers – If you like working one-on-one with clients at a weeknight event, this is the pathway for you! Pro bono lawyers will be assigned clients to help individually at the Knoxville Area Urban League’s Expungement Community Court. After reviewing the client’s Knox County criminal history, you will give advice about expunging dismissed cases, diversions, and eligible convictions, help draft and argue motions to waive costs and fees, and discuss driver’s license reinstatement and voter restoration.

2.

The Conviction Expungement Circle – If you want to focus on expunging convictions (as opposed to dismissed cases), this pathway is for you! As the statute expands eligibility each year, it is no simple task to determine if a person is eligible to expunge a conviction, especially for people with more complicated criminal histories. And yet most clients really want advice about removing convictions from their records. Pro bono attorneys in the Conviction Expungement Circle will fill this access to justice gap, taking on client referrals through the UT Legal Clinic at times in the year when you can take on a pro bono case.

3.

Civil Rights Restoration Pro Bono Project – If you want to work with volunteer law students to help one to two clients restore their citizenship rights, this path is for you! You will receive training and materials to help you work with a client to restore their full citizenship rights in Circuit Court.

All volunteer attorneys will be covered under LAET’s malpractice coverage and receive CLE credit for the time they spend on these cases.

The Second Chance Initiative will be presenting two dual-credit CLEs to equip pro bono lawyers with the necessary legal knowledge to provide the in-depth legal advice required by each pathway. The CLEs will be recorded and available online.

The trainings will occur on zoom this summer and focus on: • • • • •

Expunging dismissed cases and diversions; Waiving court costs and expungement fees; Expunging eligible convictions; Reinstating a person’s driver’s license; and Filing Petitions for Citizenship Rights Restoration and Certificates of Employability.

The trainings will also offer lawyers access to Dropbox folder with statutes, templates, and other resources. The training modules will be available to review after the training so pro bono lawyers can rewatch segments that relate to legal issues presented by their pro bono cases.

Volunteer attorneys will have access to mentors to help with questions as they arise.

The latest expansions of the expungement statute have opened the door to expungement for many Tennesseans. The citizenship rights restoration statute restores a person’s right to vote, restoring dignity and civic engagement. Lawyers are needed, though, to put these laws into practice for people seeking a second chance. We need you!

If you are interested in helping with the Second Chance Initiative’s Expungement work or restoring the right to vote for East Tennesseans, please use this QR code to sign up.

You can also email Caitlin Torney at ctorney@laet.org and watch for communications about future training opportunities in June.

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June 2024

TELL ME A STORY By: Andrew M. Hale

Kramer Rayson LLP

THAT TIME I WORKED AT THE DISTRICT ATTORNEY’S OFFICE I’m one of the lucky ones who can say with a straight face that I have my dream job.

From my first day as a runner in 2011, I wanted to grow up and be a lawyer with Kramer Rayson. I have an immense sense of gratitude and respect for this law firm, the lawyers in it, and those who came before me.

I’m thankful every day to walk into our office.

I’m also grateful for another work experience that I had that doesn’t fit squarely with my practice, but nonetheless, it gave me a deep appreciation for what this organization does for our community and afforded me the opportunity to make lasting relationships.

In 2014 and 2015, my “gap” year between undergrad and law school, I was a Knoxville Fellow. The Knoxville Fellows Program, run by local legend Rick Kuhlman, is a 10-month fellowship that aims to shape recent college graduates into service-oriented local leaders. It is a program rooted in the Christian faith and seeks to teach the Fellows how to integrate their faith with their given vocation. So, naturally, one of the main focal points during your time as a Fellow is your job. I knew that I wanted to be a lawyer, so Rick set out to help me find a job in the legal profession that wasn’t the job I knew I wanted.

Fellows in several previous classes had worked in the Knox County District Attorney’s Office. Candidly, I never had a desire to practice or work in criminal law. I didn’t really have a good reason for that other than all I knew up to that point was the civil side of things, but I was open to the opportunity and how it might broaden my horizons. I interviewed with, at the time, District Attorney-Elect, Charme Allen, and she graciously extended me an offer to work there during my time as a Fellow.

On my first day, I’m not sure they knew exactly what to do with me.

I must admit, I was a little dismayed and wasn’t sure how this opportunity would go. Very quickly though, they found a home for me assisting the White-Collar Crime Division. Bill Bright and John Gill were gearing up for several trials on related cases they had been prosecuting for several years, and they needed the extra set of hands to get ready.

My initial dismay was quickly replaced by a sense of awe and curiosity of the criminal trial process. Not only was I able to assist in these matters, but Bill and John were so great to me and made sure to

teach me as I assisted them. I was lucky to witness firsthand two talented attorneys who are among the best at what they do. What’s more, I spent quite a bit of time with them and got to know them well. After those trials were over, I stayed with them in the White-Collar Crime Division and helped with case management on other fraud cases.

Despite working in the White-Collar Crime Division, I was able to get to know others who worked in the DA’s office at the time, like Criminal Court of Appeals Judge Kyle Hixson and Circuit Court Judge Hector Sanchez, to name a few, as well as the DA office’s staff who are critical to the work they do, and many, many others. I was just a lowly extern, but all of these people made an effort to get to know me, which is something I appreciate to this day.

During my time at the DA’s office, I had two big realizations. One – the role the DA’s Office performs is vital to our community, and these individuals perform their work with the utmost integrity. Two – I could never do what they do. While my prior conceptions for what I wanted to do with my career were confirmed (that I did not want to practice criminal law), I was nonetheless thankful for the experience, thankful for the relationships that I made, and thankful for the work that they did and still do.

One lesson we had during the Fellows that has always stuck with me was an analogy about an abbey in a monastery. An abbey has distinct components that each play a critical role and, while separate, all work together to serve one purpose. While the DA’s office may do work completely different than what I now do on a day-to-day basis as a lawyer practicing on the civil side of things, each serves an important function toward providing legal services to our community.

So, my takeaway from working at the DA’s office that I would impart to everyone in our profession is this – keep an open mind to the opportunities that are presented to you, even if they don’t seemingly fit within your practice or career. You never know who you might meet, what relationships you may forge, or what you might learn. Even if some of your prior conceptions are confirmed, like mine were, it will still be worthwhile.

M A N A G E M E N T C O U N S E L , continued from page 21 absence of an adverse-employment-action as a defense to a failure-toaccommodate claim. Employment counsel should advise employers to provide best practices training to their human resources staff and to seek guidance from employment counsel for close calls.

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69 F.4th 744 (11th Cir. 2023).

Id. at 746-748.

Id. Id. at 752.

Id. (citing Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1263 n.17 (11th Cir. 2007)).

Id. 42 U.S.C. § 12112(a).

Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001); Beasley, 69 F.4th at 754 (emphasis added).

979 F.3d 784 (10th Cir. 2020).

June 2024

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Id. at 791-92.

Id. Id. at 792 (gathering cases recognizing an adverse-employment-action requirement in other contexts).

Granica v. Town of Hamburg, 237 F.Supp.3d 60, 78 (W.D. N.Y. 2017) (citing McBride v. BIC Consumer Prods. Mfg. Co., Inc., 583 F.3d 92, 96 (2d Cir. 2009)).

See Moses v. Dassault Falcon Jet – Wilmington Corp, 894 F.3d 911, 923 (8th Cir. 2018).

Chaniott v. DCI Donor Services, Inc., 481 F.Supp.3d 712, 721 (M.D. Tenn. 2020) (emphasis added).

Booth v. Nissan North America, Inc., 927 F.3d 387, 396 (6th Cir. 2019) (emphasis in original).

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