Memphis Lawyer Magazine 2023 Vol. 40 Issue 2

the magazine of the Memphis Bar Association | Vol. 40, Issue 2, Summer 2023

Knock, Knock, TikTok, the Government is at the Door: Federal and State Governments are Banning TikTok, Should Lawyers Do the Same?

THIS ISSUE:

Reflections on the Memphis Mayoral Race Lawsuit IS THERE A DOCTOR IN THE HOUSE?

Did You Know that You Can Provide Pro Bono Services From Anywhere?

MEMPHIS LAWYER the magazine of the Memphis Bar Association

Memphis Bar Association Publications Committee Amber Floyd, Co-Chair Nicole Grida, Co-Chair Audrey Calkins Maureen Holland Taylor Flake Lawson Skkye Moreno

The Memphis Lawyer is a quarterly publication of the Memphis Bar Association, Inc. with a circulation of 2,000. If you are interested in submitting an article for publication or advertising in an upcoming issue, contact info@memphisbar.org. The MBA reserves the right to reject any advertisement or article submitted for publication.

MBA STAFF

Mary Ann Upchurch Executive Director

The Memphis Bar Association 145 Court Ave. Suite 301 Memphis, TN 38103 Phone: (901) 527-3573 www.memphisbar.org

Lauren Gooch Membership & CLE Director

Kelly Swan

Communications Director

Volume 40, Issue 2, Summer 2023

FEATURES 8 Knock, Knock, TikTok, the Government is at the Door:

Federal and State Governments are Banning TikTok, Should Lawyers Do the Same?

BY JUSTIN JOY

13

Reflections on the Memphis Mayoral Race Lawsuit

16

Why Join the Judiciary Sustainers Program?

BY DAVID MORELLI

19 Did You Know that You Can Provide Pro Bono Services

From Anywhere?

BY NICOLE M. GRIDA

21

Memphis Bar Foundation Welcomes New Fellows

24

Memphis Bar Association 100 Club

25

Memphis Bar Association Small Firm 100 Club

COLUMNS 22 CLC Corner: Is There a Doctor in the House?

BY KAREN HENSON

26 Wellness Corner: Reduce Your Blood Sugar Spikes -

An Easy Way to Improve Your Health

BY YVETTE H. KIRK

28

Court Report: Shelby County Circuit Court

32

Court Report: United States District Court

BY STEPHEN LEFFLER

BY AUDREY CALKINS

36-38

Bar Scene

39

People in the News

BENCH BAR 2023 CLE SCHEDULE Friday, 9/22

e to r e H Click r for e t s i Reg ! h Bar c n e B

7:30-8:30am Rise & Shine Yoga- Yoga at Your Desk: Poses and Meditation to Prevent Burn Out and Compassion Fatigue in the Legal Profession Judicial Commissioner Shayla Purifoy

9:00am-10:00am Session 1 - Case Law Update Judge Valerie Smith & Judge Bobby Carter Session 2 - General Sessions Practice- FED/Collections Judge Phyllis Gardner, Josh Kahane; Moderated by S. Denise McCrary 10:15am-11:15am Session 1 - Shelby County Bail Hearing Room Attorney General Steve Mulroy, Public Defender Phyllis Aluko, Commissioner Shayla Purifoy & Assistant Shelby County Attorney Pamela Williams Kelly Session 2 - Labor & Employment Law Hot Topics Courtney Leyes & Tressa Johnson 11:30am-1:00pm Keynote Luncheon: Sports Law Jimmy Sexton, William King & Geoff Calkins 1:15pm-2:15pm Session 1 - Handling High Profile Cases Gary K. Smith & Gerard Stranch Session 2 - Bankruptcy Panel Chief Bankruptcy Judge Jennie Latta & Toni Parker 4:00pm-6:30pm YLD Sunset CLE: Name, Image & Likeness in Sports: What's the Deal?

Folasade Omogun-Broadnax & Jimmie Strong; Moderated by Patrick Hillard

5

BENCH BAR 2023 CLE SCHEDULE Saturday, 9/23 8:15-8:45am Breakfast Session: Innovating and Supporting Your Clients at 201 Poplar Mayor Lee Harris 9:00am-10:00am Session 1 - Family Law: Women in the Profession LaQuita Stokes, Cindy MacAulay, Lara Butler & Laura Rogers Session 2 - Civil Litigation Interactive Mock Jury Selection Dawn Carson, Thomas Greer; Mock Juror: Judge Phyllis Gardner 10:15am-11:15am Session 1 - The Impact of Mass Media on Prosecuting & Defending Criminal Cases Blake Ballin, Paul Hagerman; Moderated by: Judge Jennifer Fitzgerald Session 2 - Mediation & ADR Panel David Wade & Matt Macaw 11:30am-1:00pm Keynote: Diversity, Equity & Inclusion Panel: Implicit Bias Terrence Reed & Tannera Gibson 1:15pm-2:30pm Plenary: Appellate Judges Panel Judge John W. Campbell and Judge Kristi M. Davis

6

BENCH BAR 2023 CLE SCHEDULE Sunday, 9/24 9:30am-11:00am Farewell Brunch: Advanced Trial Advocacy: Effective Use of Trial Technology and Expert Testimony in Complex Cases William Bonner, J. Brian Duncan & Robert Mitchell

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7

Knock, Knock, TikTok,

the Government is at the Door: Federal and State Governments are Banning TikTok, Should Lawyers Do the Same?

By JUSTIN JOY

I

n December 2022, the U.S. House of Representatives Committee on House Administration announced it was banning TikTok from all mobile devices managed 1 by the U.S. House. The federal government as a whole 2 soon followed suit. A new rule issued by the Department of Defense, the General Services Administration, and NASA, currently bans the use of TikTok on personally 3 owned devices of federal contractor employees. A number of states have imposed similar bans on government devices. A new law in Tennessee bans access to the platform utilizing public Internet connections 4 at public higher educational institutions. The state of Montana recently passed a law prohibiting the platform anywhere within the geographical boundaries of the state.

troubling development, it was discovered months later that the physical movements of the reporters covering the TikTok audio leak story had been tracked by ByteDance 8 employees in China.

While support for the various bans on TikTok have been bipartisan in a number of contexts, the discussion about these governmental bans can become political, and in the case of the Montana ban, some are currently subject to constitutional challenge. Politics and constitutionality issues aside, there have been concerning reports regarding TikTok's data security practices. A June 2022 news story reported on discussions in leaked audio recordings from dozens of internal meetings at TikTok’s parent company, ByteDance. In the recordings, discussions are heard about China-based ByteDance employees having repeatedly accessed non-public data about TikTok users 5 in the United States. The story quoted one consultant involved in the review saying, “There’s some backdoor to access user data in almost all” of the internal tools utilized

by ByteDance. The story was sufficiently credible and concerning to prompt several responses from federal leaders. FCC Commissioner Brendan Carr called on the CEOs of Apple and Alphabet to remove the TikTok 6 mobile application from their respective app stores, and the Democratic and Republican ranking members of the U.S. Senate Select Committee on Intelligence called 7 on the Federal Trade Commission to investigate. In a

TikTok faces a high level of scrutiny as a result of our parent company’s Chinese heritage, and that scrutiny requires a unique level of transparency—and accountability. . . . .

Put simply, Project Texas is an unprecedented initiative dedicated to making every American on TikTok feel safe, with confidence that their data is secure and the platform is free from 9 outside influence.

8

For its part, TikTok is sufficiently concerned about the threat to its business from the growing backlash in the U.S. that it has offensively gone on the defensive. One strategy ByteDance has recently pursued is establishing a U.S.-based data center, code-named Protect Texas, which would store data on U.S.-based users, and be segregated from company operations and, presumably access, elsewhere. The opening lines of its Project Texas explainer are telling of the current environment ByteDance acknowledges that it is facing:

TikTok has set up an entire website dedicated to providing information about Project Texas and the standalone entity the company formed, TikTok U.S. Data Security Inc., which ByteDance states is “tasked with managing all business functions that require access to user data identified by the U.S. Government as needing additional protection and ensuring that the content you see in the U.S. version of the app is free from 10 outside manipulation.” The website is complete with numerous FAQs and a “Myths vs Facts” section.

With all of the buzz about the bans, a brief pause is warranted to ask, should I have the TikTok app on the same device where client information is stored? One of

the first things I often mention when addressing the issue of data privacy and security concerns for lawyers and law firms is Comment 8 to Rule 1.1 of the Tennessee Rules of Professional Conduct:

proliferating government bans of the platform provide a dynamic example of a technology that lawyers need to continue to monitor and evaluate if they use, or are contemplating using, the service or its applications. 

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.

With the pace and breadth of changes in technology, maintaining even a headline-level familiarity with current developments is challenging. Keeping yourself sufficiently well-informed “to maintain the requisite knowledge and skill” of the various degrees of risks new 11 technologies present can seem nearly impossible. For evaluating the risks of using TikTok, and specifically the mobile application, in your law practice, a first stop is a review of the terms and conditions and privacy notice. These ubiquitous but rarely read documents generally govern the respective rights and responsibilities between a service, such as TikTok, and the user. One provision of note in the privacy notice: “If you choose to find other users through your phone contacts, we will access and collect information such as names, phone numbers, and email addresses, and match that information against existing users of the 12 Platform.”

Although other social media platforms 13 such as Facebook have very similar provisions, the ongoing issue related to TikTok’s data transfers to China, or at least the accessibility to such data by ByteDance employees based in China, does put this provision in a different context than U.S.-based companies.

So, what’s the verdict? Is the TikTok application safe to have on the same device you store client information?

Of course, this article is not legal advice, and you will have to make that decision for yourself and your firm, but all things considered, probably so, with the number of caveats discussed above, not the least of which include any specific governmental regulations or contractual obligations to which you, your firm, or perhaps your client, may be subject to. However, developments involving TikTok over the past few years do raise an interesting question regarding what the data security risk profile would look like if your law firm represented an individual or company adverse to the Chinese government. The current news of TikTok and the

1

Moira Warburton, “U.S. House administration arm bans TikTok on official devices,” Reuters (Dec. 27, 2022), available at https://www. reuters.com/technology/us-house-administration-arm-bans-tiktokofficial-devices-2022-12-27/

2

Haleluya Hadero, “Why TikTok is being banned on gov’t phones in US and beyond,” Associated Press (Feb. 28, 2023), available at https:// apnews.com/article/why-is-tiktok-being-banned-7d2de01d3ac5ab2b 8ec2239dc7f2b20d

3

https://www.federalregister.gov/documents/2023/06/02/2023-11756/ federal-acquisition-regulation-prohibition-on-a-bytedance-coveredapplication

4

“Tennessee law prohibits use of TikTok on campus internet,” The Daily Beacon (April 21, 2023), available at https://www.utdailybeacon.com/ campus_news/campus_life/tennessee-law-prohibits-use-of-tiktok-oncampus-internet/article_9f4b7c32-dac9-11ed-83ab-f318309d8a31. html

5

Emily Baker-White, “Leaked Audio From 80 Internal TikTok Meetings Shows That US User Data Has Been Repeatedly Accessed From China,” BuzzFeed News (June 17, 2023), available at https://www. buzzfeednews.com/article/emilybakerwhite/tiktok-tapes-us-userdata-china-bytedance-access

6

https://twitter.com/BrendanCarrFCC/status/1541823585957707776

7

https://www.warner.senate.gov/public/_cache/files/3/e/3eeb87b3e9b5-4aa4-8ea1-361a8472ff46/A42795C63518B32671F9ACCF82B 1E26A.khan-ssci-tiktok-letter.pdf

8

David Shepardson, “ByteDance finds employees obtained TikTok user data of two journalists,” Reuters (Dec. 12, 2022), available at https:// www.reuters.com/technology/bytedance-finds-employees-obtainedtiktok-user-data-two-us-journalists-2022-12-22/

9

https://usds.tiktok.com/usds-about/

10

https://usds.tiktok.com/what-is-usds/

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Indeed, at least one state now requires a minimum of one hour of continuing legal education every two years dedicated specifically to the subject matter of cybersecurity, privacy and data protection in the context of legal practice. https://ww2.nycourts.gov/attorneys/cle/ clenews.shtml

12

https://www.tiktok.com/legal/page/us/privacy-policy/en

13

https://www.facebook.com/privacy/policy?subpage=1.subpage.2FriendsFollowersAndOther

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12

Reflections on the

Memphis Mayoral Race Lawsuit

By DAVID MORELLI

“Nothing ever happens” is a joking refrain often heard online these days about how the media will hype up something that’s happening, and then, once it passes, everything remains relatively unchanged. One may be tempted at times to agree.

race with well over a dozen contenders. With little to no fanfare, the Shelby County Election Commission posted a legal opinion by one of its former lawyers to its website, which argued that a five-year residency requirement remained on the books.

Those trying to keep up with the local political scene may be still suffering various degrees of burnout or election fatigue after Shelby County’s “Big Election” cycle last year where hundreds of candidates appeared on the ballot across three distinct election seasons for local, state, and federal races. Once the dust settled on the county races in August, the open question, or, depending on whom one asked, the foregone conclusion, of whether the Republican party would retain any countywide office was answered in the negative with Steve Mulroy’s defeat of Amy Weirich in the District Attorney’s race.

The November state and federal races offered up even fewer surprises locally after the state legislature redrew the district maps following the 2020 census results, mostly reinforcing incumbent positions on both sides of the aisle.

This development concerned two of the frontrunners for mayor so much that they sued the Shelby County Election Commission in Shelby County Chancery Court to get a ruling on the matter. Through various procedural twists and turns which resulted in, among other things, the Election Commission being dropped as a party to the lawsuit, the Memphis City Council joining the lawsuit and adding the City of Memphis as a defendant, the case was resolved with a relative whimper when Chancellor JoeDae Jenkins sided with the two candidates concerning the status of the residency requirement and qualified them to run for mayor this cycle. This outcome kept the status quo and prevented the race from being blown wide open as three of the leading candidates would not have met the five-year requirement.

With the midterm elections over, the slow-moving machinery of the 2024 presidential race began groaning into place. But before that marathon cycle offered up much of anything newsworthy, the 2023 Memphis Mayoral Race, set for October of this year, decided it was not to be outdone with its own bit of drama: a question was raised about the five-year residency requirement to be eligible to run.

Back in 2019, current Memphis Mayor Jim Strickland was fairly confident of victory in his re-election bid and did not challenge the Memphis residency of one of his opponents, former mayor Willie Herenton, who had been residing in Collierville. This cycle, however, reportedly as a by-product of the process of going through and harmonizing the Memphis city charter, the five-year residency requirement became a live issue in an open

As the mayoral race is nonpartisan with no primary elections, whoever secures a mere plurality of votes in October will take the prize. Turnout for the mayor’s race is historically very low, and with local polling being the challenge that it is, removing three big names would have made the election even more of a jump-ball contest than it already will be.

Former Chairman of the Shelby County Election Commission and local election law expert Robert Meyers was the author of the legal memo which set off controversy this election cycle. His memo provides a wide-ranging survey of the status of durational residency requirements which notes they serve a vital government interest and would readily survive any constitutional challenge to their enforcement. The municipal interests served by a durational residency requirement center on the city’s need for candidates who are invested in the community, 13

familiar with its needs and concerns, and generally not permitting just any old charismatic upstart to wander in on a whim to run for the city’s highest executive office.

In this year’s race, the candidates with residency concerns are a former Memphis mayor, a former Shelby County Commissioner, and the current Shelby County Sheriff, dispelling fears of dilettantish outsiders interloping in Memphis politics.

Instead, this case ultimately hinged on a matter of statutory construction, with Chancellor Jenkins interpreting the five-year durational residency requirement as having been amended by a referendum in 1996. In the Chancellor’s view, this referendum eliminated durational residency requirements for city council and mayor alike.

So with this huge procedural hurdle out of the way, the real work of getting a largely disinterested and unengaged electorate to coalesce around the best candidate has begun in earnest. Whomever the people choose, something is bound to happen.

David Morelli graduated in May 2023 from The University of Memphis, Cecil C. Humphreys School of Law and plans to sit for the bar in February 2024. During law school, he clerked for the Honorable JoeDae Jenkins of Shelby County Chancery Court, Part III and served as treasurer for the Public Action Legal Society. He is a native Memphian who has volunteered on several local campaigns and most recently worked on the re-election campaign for state representative John Gillespie of East Memphis.

City of Memphis Municipal Election—October 5, 2023 City of Memphis Municipal Election—October 5, 2023

Offices to be Elected:

Offices to be Elected: Mayor Offices to be Elected:

Mayor Mayor City Council District 1 City Council District 1 District 21 City Council City Council District 2 District 23 City Council City Council District 3 District 43 City Council City Council City Council District 4 District 45 City Council City Council District 5 District 65 City Council City Council District 6 District 76 7 Position 1 City Council District 8, City Council District 7 1 City Council District 8, Position 2 City Council District 8, Position 1 City Council District 8, Position 2 3 City Council District 8, Position 8,2 Position 1 3 City Council District 9, City Council District 8, Position 1 City Council District 9,3 Position 2 City Council District 9, Position 2 City Council District 9,1 Position 3 City Council District 9, Position 3 Memphis Court Clerk City Council District 9, Position 2 Memphis Clerk3 City Council District 9,Court Position

Memphis Court Clerk Upcoming Dates: Upcoming Dates: Voter Registration Deadline Voter Registration Deadline First Day of Early Voting 14 First Day of Early Voting Last Day for Absentee Request

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Why Join the Judiciary Sustainers Program?

The Judiciary Sustainers Program supports the Memphis Bar Association in its efforts to develop, improve, and grow important series and programs not only for our members, but the Memphis community.

Bar associations perform vital functions, both in the legal profession and in society at large. These include serving as a central point of engagement for lawyers who wish to participate in pro bono work; helping to educate the public about legal issues, developments in the law and their legal rights; reporting on legal trends and advocating for legal reform; and helping to maintain the integrity of the legal profession.

law students and to first year lawyers is critical to the development of young attorneys in their careers. Your sustaining membership will play a critical role in their future success.

Sustainer membership fees also help support the next generation of lawyers. Providing free membership to

To become a Judiciary Sustaining Member, please click here.

For a minimal fee, you can join other members of the Shelby County judiciary dedicated to the betterment of the legal profession and our community.

Although you will continue to enjoy the benefit of a free MBA membership as a member of the judiciary, we hope you will take the next step by becoming aJudiciary Sustaining Member.

2023 Judiciary Sustaining Members The Honorable Carlyn Addison

The Honorable Gina C. Higgins

The Honorable Bill Anderson

The Honorable Janice M. Holder

The Honorable Denise E. Barnett

The Honorable JoeDae L. Jenkins

The Honorable Annie T. Christoff

The Honorable Jennie D. Latta

The Honorable Lee V. Coffee

The Honorable David Pool

The Honorable Paulette J. Delk

The Honorable Valerie L. Smith

The Honorable Donna M. Fields

The Honorable Diane K. Vescovo

The Honorable Timothy Francavilla

The Honorable Mary L. Wagner

The Honorable Terre Jo Fratesi

The Honorable W. Mark Ward

The Honorable Julia S. Gibbons

The Honorable Cary C. Woods

The Honorable Douglas Gregory Gilbert

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18

Did You Know that You Can Provide Pro Bono Services From Anywhere?

By NICOLE M. GRIDA

F

or the past dozen years, Tennessee Free Legal Answers (TN Free Legal Answers) has provided Tennessee licensed attorneys the opportunity to provide pro bono services from anywhere they have an internet connection. This means volunteer attorneys can provide legal advice from the comfort of their own home or office or while traveling all from their smart phone, tablet, or computer. If you have ever thought that you would like to help Tennesseans with civil legal needs but have not been able to participate in an in-person legal clinic, please read on to learn more about Tennessee Free Legal Answers and how you can help.

Launched in 2011 and originally known as Online Tennessee Justice, TN Free Legal Answers was a collaboration of the Tennessee Bar Association, the Tennessee Alliance for Legal Services (TALS) and Baker Donelson who created and donated the software necessary to run the portal. Thanks to generous support of Baker Donelson agreeing to share the software license at no cost, other states created similar sites and now there are free legal answers sites in over 38 states, the U.S. Virgin Islands, and a new Federal site!

The TN Free Legal Answers website is available to Tennesseans whose annual incomes are below 250% of federal poverty guidelines. Legal Aid programs, such as Memphis Area Legal Services and West Tennessee Legal Services, can often only serve clients with household incomes at or below 125% of the poverty guidelines.

As you can imagine, TN Free Legal Answers has been a lifeline to those who make too much money for legal aid yet still cannot afford to hire an attorney.

The website is very user friendly. Tennesseans who qualify can create a free account, log in, and ask a civil legal question. Volunteer attorneys then scan the queue and answer questions of their choosing. Users will

not know the name of the attorney who answers their questions unless the attorney chooses to provide it.

When their question is answered, users receive an email that prompts them to log back in and view the answer.

Malpractice insurance is provided by the ABA for the legal guidance that you provide through the ABA Free Legal Answers website.

If you register for the 2023 Bench Bar Conference, you will also gain access to an on-demand webinar entitled “Tennessee Free Legal Answers - An Easy Way to Provide Pro Bono Services” which I will present alongside Tim Hughes, HELP4TN Program Manager and Staff Attorney with TALS. During our presentation, we will walk you through just how easy it is to serve as a volunteer attorney with the TN Free Legal Answers and provide best practices for how to respond to questions in the portal.

Now I know what you are all thinking – this sounds like a great program where you can really make an impact in the Volunteer State. So what are you waiting for? Sign up to be a volunteer attorney today!  Nicole M. Grida is a Partner at Bowman and Brooke, LLP where she focuses her practice on product liability and general liability. She currently serves as the Chair of the Memphis Bar Association’s Publications Committee and is a member of the MBA’s Access to Justice Committee, Bench Bar Committee, and Wellness Committee. Since 2019, Nicole has served on the Board of Directors for the Tennessee Alliance for Legal Services, which administers TN Free Legal Answers.

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20

Memphis Bar Foundation Welcomes New Fellows

T

he Memphis Bar Foundation recently welcomed forty seven (47) new fellows who were recognized for their service to the legal profession and the community. Thanks to the generous support of Hobson Realtors, this year’s Fellows Reception at The University Club of Memphis!

The Memphis Bar Foundation was established in 1982 by eighteen charter fellows to serve as the philanthropic arm of the Memphis Bar Association. It is a 501(c)(3) organization, which provides a platform for attorneys and others in the legal profession to give back to the community through tax-deductible contributions. The Foundation is governed by a Board of Directions, who serve a two-year term.

The Foundation annually nominates attorneys and judges to become Fellows. Nominees are chosen

based on their devoted and distinguished service to the legal profession and the administration of justice and their adherence to the highest standards of professional ethics and personal conduct. “Being named a Memphis Bar Foundation Fellow is a tremendous honor,” says Terrence Reed, Fellows Selection Committee Chair. “Approximately 1% of Memphis area attorneys are invited to join the Memphis Bar Foundation Fellows each year.”

The Memphis Bar Foundation provides grants to nonprofit organizations to support law-related projects and programs that align with its mission.

These grants would not be possible without the financial support of our Foundation’s Fellows.

To learn more about the Memphis Bar Foundation, please click here.

The Memphis Bar Association congratulates the

2023 Fellows of the Memphis Bar Foundation!

Cannon F. Allen, Sr.

Lisa Gill

Joseph McKinney

Taurus Bailey

The Honorable Serena R. Gray

Cannon F. Allen, Sr.

Thomas Greer

The Honorable LaChina McKinney

Taurus Bailey

J. Mark Griffee

Blake Ballin

W. Aaron Hall

The Honorable Danielle Mitchell

Larry R. Bray

Mary C. Hamm

Michelle Kimbril Parks

Audrey M. Calkins

Sloane Hankins

Brandon Pettes

Taylor Cates

Joseph Hardison

Eric Plumley

Kevin E. Childress

Leah Lloyd Hillis

The Honorable David L. Pool

Robert A. Cox

The Honorable Kenya Hooks

Katie Ratton

D. Michael Dunavant

Russell Jackson

Abigail Webb Sala

Laura L. English

W. Andy Jones

Lauran Stimac

The Honorable Jennifer Fitzgerald

Lindsay A. Jones

R. Scott Vincent

Tracye Jones

Howard Wagerman

Christopher Webb

Sarah Pazar Williams

Jodi L. Wilson

The Honorable Cedrick Wooten

Reagan Taylor Fondren

Christopher J. Lareau

Hugh Francis

Laura Kessler Mason

W. Christopher Frulla

Jonathan May

21

CLC Corner: IS THERE A DOCTOR IN THE HOUSE?

By KAREN HENSON

A

s a part of my regular practice in Shelby County, I file petitions for conservatorship of abused seniors. In Tennessee, we investigate the filing of a conservatorship of anyone 18 or older whom we reasonably believe is incapacitated in the eyes of the law. As recent history has shown us through the Britney Spears case, conservatorships should not to be taken lightly by the courts and should only be utilized when adults have either temporarily or permanently lost the ability to make reasoned and sound legal, medical, and personal decisions, not simply when they don’t make reasoned or sound decisions, in the opinion of others.

To prevent fraud and manipulation of vulnerable adults, state legislatures should have stringent burden of proof requirements in place for petitioners should they seek a conservatorship of another adult because it means that we are stripping that adult of their most basic rights.

The most crucial requirement of Tenn. Code Ann. § 34-3-105 is the sworn medical report, more commonly referred to as the physician’s affidavit, which must be completed by a physician, psychologist, or senior psychological examiner. Physician is further defined in Tenn. Code Ann. § 34-1-101(14) as “a medical doctor or doctor of osteopathic medicine who is licensed to practice medicine in the state of Tennessee.” The physician’s affidavit is also often the most difficult piece of evidence to procure in a conservatorship. Medical practitioners are, somewhat understandably, apprehensive about 22

completing an affidavit whereby they disclose their patient’s most personal information.

This already almost insurmountable hurdle is further complicated by Tenn. Code Ann. § 34-3-105 which requires that the examination of the patient/respondent must have been completed within ninety (90) days of signing the affidavit. Unless one must see a specialist with some regularity, the average American adult may visit their primary care provider (PCP) once a year, at most.

An August 2022 report detailed that 42.9% of Americans see a Nurse Practitioner (NP) as their PCP and 8.2% see a Physician’s Assistant (PA). In Tennessee, only one-third of adults have a physician as their PCP. That means that the vast majority of Tennesseans would need to find a new physician if they were in need of a court’s assistance in the form of a conservatorship. If an abused elder’s file is referred to my office for filing a conservatorship, it may take several months just to get that victim in front of a licensed physician to be examined, much less file a petition.

During all of that wait time, no one has any authority whatsoever to intervene on that vulnerable adult’s behalf.

Financial fraud and medical neglect is free to continue until attorneys have concrete proof that the adult in question even needs our assistance. These requirements are unnecessarily hampering our ability to render timely and cost-effective legal services to the community.

Every minute that attorneys, social workers, caregivers,

medical professionals, and family have to wait to get that vulnerable adult in front of a licensed physician is an unnecessary risk to the health and welfare of that adult.

As members of the bar, it is incumbent upon us to inform, and, if need be, pressure our legislators to draft legislation that keeps our most vulnerable citizens and the community safe. If we apply the most basic best interests standard to our analysis, it is clear that the current Tennessee legislation does not meet that standard. Our legislators need to recognize that a Nurse Practitioner or Physician’s Assistant is very often the only medical advocate that a vulnerable adult has and modify the Code’s language to include these valuable medical professionals as our partners in protecting our citizens. 

Karen Henson is a Staff Attorney at the Community Legal Center (CLC). A 2012 graduate of The University of Memphis Cecil C. Humphreys School of Law, Ms. Henson initially focused her practice on general civil legal issues and volunteered pro bono services for the CLC. In 2015, Ms. Henson began working part-time as a civil legal attorney on the Coordinated Response to Elder Abuse (CREA) team which serves vulnerable seniors in Shelby County. In late 2016, she took over as the full-time Elder Law/CREA Attorney at the CLC. In her free time, Ms. Henson enjoys reading, gardening, supporting animal rescues, and all things Memphis.

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T

he Memphis Bar Association 100 Club recognizes law firms and legal departments that have 100% of their attorneys as members of the MBA. With your support, we are able to deliver quality networking, continuing legal education courses, and enriching volunteer opportunities to the Memphis legal community. Whether you are a small firm or a large firm, we want to celebrate your commitment to the legal profession and our community!

100 Club Firms Receive:

•

Recognition on the MBA website, Memphis Lawyer quarterly online magazine, and MBA social media channels

•

100 Club Member Logos to display on your firm's communication materials

100 club members Adams and Reese, LLP

Leitner Williams Dooley & Napolitan, PLLC

Allen Summers & Gresham

Lewis Thomason

AutoZone

Martin Tate Morrow & Marston, P.C.

ALSAC/St. Jude

McNabb Bragorgos Burgess and Sorin, PLLC

Baker Donelson Bearman Caldwell & Berkowitz, PC

Memphis Area Legal Services

Black McLaren Jones Ryland & Griffee, P.C.

Morgan & Morgan-Memphis, LLC

Burch Porter & Johnson, PLLC Butler Snow LLP City of Memphis Law Division Dinkelspiel Rasmussen & Mink, PLLC Donati Law, PLLC Evans Petree, PC Farris Bobango, PLC Ford & Harrison, LLP Glankler Brown, PLLC Hall Booth Smith, P.C. Harkavy Shainberg Kaplan PLC Harris Shelton Hanover Walsh, PLLC International Paper Company Jackson Shields Yeiser & Holt

Methodist LeBonheur Healthcare Ogletree Deakins Nash Smoak & Stewart, PC Patterson Bray Rainey Kizer Reviere & Bell, PLC Shelby County Attorney's Office Shuttleworth, PLLC Siskind Susser, P.C. Spicer Rudstrom, PLLC St. Jude Children's Research Hospital Sylvamo The University of Memphis Cecil C. Humphreys School of Law The Wharton Law Firm Williams McDaniel, PLLC Wyatt Tarrant & Combs, LLP

Thank you for your support of the MBA! You make our community stronger.

To become part of MBA’s 100 Club, contact Lauren Gooch.

24

T

he Memphis Bar Association Small Firm 100 Club recognizes small firms (5 or less attorneys) that have 100% of their attorneys as members of the MBA. With your support, we are able to deliver quality networking, continuing legal education courses, and enriching volunteer opportunities to the Memphis legal community.

To become part of MBA’s 100 Club, contact Lauren Gooch.

Solo/Small Firm 100 Club Members Arthur E. Quinn Law Firm

Leffler Law Office

Bailey Bailey & White

Linda L. Holmes, Attorney at Law

Berry, Cannon, Crawford & Macaw

Loevy Law Firm

Bostick Law, PLLC

Luxman Law Firm

Breakstone & Associates

Melanie Taylor, Attorney

Burgoyne Law Offices

Midsouth Advocates, PLLC

Carol Chumney Law PLLC

Nettles Harris Law Firm

Chastain English

Patterson Intellectual Property Law

Clinton Law Firm

Pehanick Law

Consumer Legal Solutions, PLLC

Ralston Buchanan PLLC

Dan T Bing

Sharon G Lichliter, Attorney at Law

Davies Hood PLLC

Simpson Law Firm

G. Green Law Practice

The Bradley Law Firm, PLLC

Geiger Law & Mediation

The Johnson Law Group, PLLC

Ginsburg Law Group, P.C.

The Law Office of Attorney Reginald E. Shelton

Hartsfield & Hartsfield

The Law Office of Joseph S. Ozment

Holland & Associates

The Law Office of Roberto Garcia, PLLC

Johnson & Bennett, PLLC

The Pensoneau Firm, PC

Kaizen Law PC

The Raines Law Firm

Kathryn DeRossitt

The Scholl Law Firm

Kathy Webb Law

The Wharton Law Firm

Kinard Love Law, PLLC

The Williams Law Firm

Law Office of Earle J. Schwarz

Thompson Estate and Probate Law, PLLC

Law Office of Jean E. Markowitz

Walls Law Firm, PLLC

Law Office of Joseph E. Garrett

Wick Mediation

Law Office of Kathy Baker Tennison

Wm. Edward Russell, Jr. Attorney at Law

Law Office of Toni Campbell Parker

Yarbrough Family Law & Mediation

Law Office of Yollander Hardaway

Yvonne K. Chapman, Attorney at Law

Law Offices of Cary Schwimmer

Zoccola Law Firm 25

WELLNESS CORNER Reduce Your Blood Sugar Spikes: An Easy Way to Improve Your Health

By YVETTE H. KIRK

I

f you have been paying attention to health and wellness trends, you have seen that advocating for one diet is on its way out. Many experts agree that you can make paleo, keto, vegan, Mediterranean, carnivore, or even less restrictive diets work for you, so long as you are prioritizing the good stuff and your body is showing you signs that you are on the right track. What are some fundamental principles that apply to all good, healthy, and longevity-promoting diets? As Dr. Robert Lustig says in his new book Metabolical: “Protect the liver. Feed the gut.” Below are some tips to help do just that.

To over-simplify, and based on my understanding of Dr. Lustig’s work (as an attorney and health and wellness enthusiast), this means that we want to help prevent our bodies from having to store fat in the liver, often caused by ingesting too much sugar, especially fructose sugar. Fun fact: fructose sugar is sent straight to the liver, whereas glucose sugar can be used and stored in more ways and places, including in our muscles, which is exactly where we want it to get used! Dr. Lustig also advocates for providing our gut bacteria plenty of fiber to feed on so it does not start feeding on our organ linings. In essence: store less fat in the liver; feed more fiber to the gut.

While there are many interventions that help support both of these essential principles, one of the easier and increasingly popular ways of protecting our bodies and decreasing the substantial inflammatory load of dealing with the food we intake, is to reduce the blood sugar spikes that occur in our bodies after meals. When we eat, we generally spike the glucose levels in our blood, which in turn sends insulin out into our bodies to help use and store that glucose, as needed. How much of a spike depends on what we eat, and how our bodies process those foods. For example, table sugar and whole fruit both contain glucose and fructose sugars, but whole fruit 26

also has fiber, which means it will spike your blood sugar less than table sugar alone.

The general consensus is that the more glucose spikes you have from eating certain foods, the more likely you are to suffer from many chronic diseases and general health conditions over time (including diabetes and fatty liver disease). While more doctors now advocate for testing your fasting insulin levels, which, according to Dr. Lustig, is a better indicator of metabolic health than just testing your fasting glucose levels since testing your fasting insulin requires a blood test. Whereas, keeping our blood sugar (glucose) levels steady throughout the day can be done with simple interventions.

Popular biochemist and blogger, Jessie Inchauspé (known as “The Glucose Goddess”), is making hacks to curb your glucose spikes easy and accessible to the general public, even without investing in a continuous glucose monitor (CGMs). In her book Glucose Revolution, she includes many compelling and easily digestible (pun intended) tidbits on why we should care about our glucose spikes and ways to help curb them. Some of her top tips include: 1. Eating a savory breakfast; 2. Consuming one tablespoon of vinegar a day (preferably 20 minutes prior to a large meal of carbohydrates); 3. Adding a plate of veggies (fiber) to the start of your meal; and 4. Moving for 10 minutes after a meal.

While you can immediately implement some or all of these tips without wearing a CGM, for more help and insight, you can also purchase and use a CGM through the trendy Levels™ or Nutrisense™ programs to get

more tips and tricks to curb your glucose spikes. CGMs are becoming increasingly popular within the nondiabetic population, as many in the health and wellness community tout them as a relatively inexpensive (for a high-tech biohacking tool) and highly informative way to monitor your body’s general metabolic health and, as a result, allow you quick access to improving your health overall. However, implementing these easy hacks without monitoring a thing will still help your body do what it needs to both protect your liver and support (feed) your gut. For more information on why you should care about glucose spikes and how to both protect your liver and feed your gut, check out the resources below!  Resources: Metabolical: The Lure and the Lies of Processed Food, Nutrition, and Modern Medicine, Robert Lustig, MD, MSL (2021); Glucose Revolution: The Life-Changing Power of Balancing Your Blood Sugar, Jessie Inchauspé (2022).

Yvette H. Kirk is the Managing Partner at Holland & Associates, PC where she represents individuals against employers Yvette Kirk including companies of all sizes and government entities. She graduated from American University with a Bachelors of Arts in Political Science in 2010 and The University of Memphis Cecil C. Humphreys School of Law with her Juris Doctorate in 2013.

Yvettee is licensed in Tennessee and is also admitted to the United States District Court for the Western of Tennessee and the United States Sixth Circuit Court of Appeals. She is the Secretary of the MBA’s Wellness Committee, and authors articles and presents on attorney health and wellness.

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COURT REPORT:

Shelby County Circuit Court

by STEPHEN LEFFLER

covers jury trials from September 2022 through March 2023 DIVISION I: JUDGE FELICIA CORBIN-JOHNSON 1. CT-0860-20, Shanieka Mays v. Kai Owens September 26, 2022 Derek O. Fairchilds for Plaintiff Nicholas Owens, Jr. for Defendant Auto Accident Jury • Plaintiff Verdict: $7,984.37

2. CT-3835-22, TS Miller Creek, LLC v. Quaterra Doggett December 13, 2022 R. Alan Pritchard for Plaintiff J.B. Smiley for Defendant Breach of Contract (Landlord Tenant) Non-Jury • Plaintiff verdict for $9,237.50

3. CT-4033-22, Lynnfield Place v. Stacy Watt February 8, 2023 Joshua Kahane for Plaintiff Defendants Pro Se Breach of Contract (Landlord Tenant) Non-Jury • Plaintiff verdict for $6,547.60

4. CT-001488-18, Kerry Clay v. City of Memphis Sanitation Division March 10, 2023 John P. Wade for Plaintiff Joseph M. Fletcher for Defendant 28

GTLA (Negligence) Jury • Plaintiff verdict: $1,690,500.00 » Past Loss of Earning Capacity: $113,750.00 » Future Loss of Earning Capacity: $87,500.00 » Past Loss of Enjoyment of Life: $162,500.00 » Future Loss of Enjoyment of Life: $250,000.00 » Past Pain and Suffering: $711,750.00 » Future Pain and Suffering: $365,000.00 » Reduced to $300,000.00, the statutory maximum

5. CT-002378-16, Demetreian Johnson v. Marie Clark March 16, 2023 Kenneth M. Margolis and Robert Hardy for Plaintiff Robert Moore and Craig Flood for Defendant Auto Accident Jury • Plaintiff Verdict: $28,153.00 » Medical Expenses: $8,203.00 » Loss of Earning Capacity: $1,950.00 » Physical Pain and Mental Suffering: $6,000.00 » Loss of Enjoyment of Life: $6,000.00 » Permanent Injury: $6,000.00

6. CT-2332-20, Daveyon Wirt v. Armstrong Transfer and Storage Company, Inc. March 30, 2023 Oscar S. “Kav” Spivey III for Plaintiff Paul T. Nicks for Defendant Auto Accident Jury • Plaintiff Verdict (49% comparative fault to Plaintiff) » Damages: $33,000.00 » Reduced to $16,830.00

DIVISION II: JUDGE CAROL CHUMNEY 1. CT-3963-21, Rodelle Dixon v. Luke Marlin January 11, 2023 Robert L.J. Spence, Jr. for Plaintiff Robert L. Moore and Craig Flood for Defendant Auto Accident Jury • Plaintiff Verdict: $11,541.60

2. CT-3487-21, Shenequa N. Cooper v. Dobbs Ford, Inc., d/b/a Autonation Ford Memphis February 24, 2023 Robert L.J. Spence, Jr. for Plaintiff James Stephen King for Defendant Auto Accident Jury • Plaintiff Verdict: $562,578.22 » Past Medical Expenses: $34,222.22 » Physical Pain and Suffering: $100,000.00 » Mental and Emotional Anguish: $200,000.00 » Disfigurement: $120,286.00 » Loss of Enjoyment of Life: $90,000.00 » Future Medical Expenses: $18,070.00)..

DIVISION III: JUDGE VALERIE L. SMITH 1. CT-004578-15, Acuity v. Hunter Miller Stroud, Individually and d/b/a Southern Landscape Services of TN, LLC a/k/a Southern Landscape Services, LLC September 21, 2022 Paul I. Mendelson for Plaintiff Andrew W. McClelland, Jr. for Defendant Breach of Contract Non-Jury • Plaintiff verdict for $31,000.00.

2. CT-001761-17, Ranae Daniel, and Husband, William Daniel v. Joshua S. Tow and Jeff Tow December 9, 2022 Andrew C. Clarke for Plaintiff Samuel R. Marney III and Douglas A. McTyier for Unnamed Defendant.

Auto Accident Jury • Plaintiff verdict for $746,103.92 » Ranae Daniel: Past Physical Pain and Suffering: $25,000.00 Future Physical Pain and Suffering:: $171,000.00 Past Emotional Pain and Suffering: $29,175.00

Future Emotional Pain and Suffering: $21,111.00 Pass Loss of Enjoyment of Life: $12,750.00 Permanent Impairment: $36,000.00 Past Medical Bills and Expenses: $425,678.92. » William Daniel: Loss of Love, Affection and Consortium: $12,750.00 Loss of Services: $12,750.00)

3. CT-2238-22, Crestcore Realty, LLC v. Vikki Moore and Billie Jean Moore January 17, 2023 Jason M. Goldstein for Plaintiff Defendants Pro Se Breach of Contract (Landlord Tenant) Non-Jury • Plaintiff verdict for $5,113.06 and possession of premises.

4. CT-4497-22, Elm Re Investment v. Tiowanna Vernette Logan January 30, 2023, Hillary W. Samuels for Plaintiff Defendants Pro Se Breach of Contract (Landlord Tenant) Non-Jury • Plaintiff verdict for $11,167.15.

5. CT-3966-19, Jamela Smith and Rory Hunt v.

Savannah May March 1, 2023, Jason Hines for Plaintiff Robert L. Moore and Craig Flood for Defendant Auto Accident Jury • Trial on damages only • Plaintiff Verdict » Jamela Smith: $2,304.36 » Rory Hunt: $11,978.00

6. CT-1200-20, Rufus Johnson, Jr. v. Vanessa McKinnie March 28, 2023 W. David Cheek for Plaintiff Robert L. Moore and Craig Flood for Defendant Auto Accident • Jury • Plaintiff verdict for $18,978.00 » Medical Expenses: $10,978.00 » Pain and Suffering: $5,000.00 » Loss of Enjoyment of Life: $3,000.00

DIVISION IV: JUDGE GINA C. HIGGINS No contested cases tried to verdict this reporting period.

29

DIVISION V: JUDGE RHYNETTE HURD 1. CT-5254-20, Ebony Wallace v. City of Memphis d/b/a Memphis Police Department January 3, 2023 M. Shawn Cardwell for Plaintiff Joseph M. Fletcher for Defendant GTLA (Auto Accident) Non-Jury Trial on damages only • Plaintiff verdict: $25,510.00 » Medical Expenses: $8,190.00 » Lost Wages: $1,320.00 » Non-Economic Damages: $16,000.00

DIVISION VI: JUDGE CEDRICK D. WOOTEN No contested cases tried to verdict this reporting period.

DIVISION VII: JUDGE MARY L. WAGNER 1. CT-000143-18, Rose Marie McCort and Daniel Kozak, Individually and as Husband and Wife v. Kroger Limited Partnership I, The Kroger Company d/b/a Kirby Whitten Kroger, and Trade Fixtures, LLC December 13, 2022 Bobby Martin, Mohammed Farraj and Ryan Skertich for Plaintiffs Kevin Bernstien, Edd Payton and Laura Paxton Roberts and for Defendants Personal Injury Jury • Plaintiff verdict: $484,262.34 » Rose Marie McCort: Past Medical Expenses: $104,198.04 Future Medical Needs: $80,064.30 Pain and Suffering: $125,000.00 Permanent Injury: $125,000.00 Loss of Enjoyment of Life: $50,000.00 » Daniel Kozak: Loss of Consortium: $0.00

2. CT-2923-21, Faith Kone v. Frank Taylor January 19, 2023 Kevin A. Snider for Plaintiff Larry Weissman for Defendant Breach of Contract (Purchase of Interest in a Business) Non-Jury • Plaintiff verdict: $10,000.00.

30

3. CT-004005-17, Jennifer Farmer, Individually and as Next Friend of Cadarious Farmer v. Shelby County Board of Education, Shelby County Schools and Michael Phillips February 6, 2023 Derek Fairchilds for Plaintiff Robert L.J. Spence for Defendant GTLA Non-Jury • Case dismissed against governmental defendants because sovereign immunity was not lifted due to an intentional act.

• Plaintiff Verdict against Michael Phillips: $25,485.00 » Medical Bills: $5,485.00 » Pain and Suffering: $5,000.00 » Loss of Enjoyment of Life: $5,000.00 » Permanent Injury: $10,000.00

4. CT-3222-21, Frederick Echols v. Kemp Perkins February 15, 2023 Louis P. Chiozza, Jr. and John W. Leach for Plaintiff Robert L. Moore and Craig Flood for Defendant Auto Accident Jury • Trial on damages only.

• Plaintiff verdict: $4,979.00 (medical expenses)

5. CT-5116-21, Sheryl Galison and Robert Galison v.

Jennifer Brownell and Amelia Fletcher March 6, 2023 Anthony L. Bridgeforth, Jr. for Plaintiff Lauren L. Holloway for Defendant Auto Accident Jury • Trial on damages only.

• Plaintiff verdict: $500.00 (past loss of enjoyment of life)

DIVISION VIII: JUDGE DAMITA DANDRIDGE No contested cases tried to verdict this reporting period.

DIVISION IX: JUDGE YOLANDA KIGHT BROWN No contested cases tried to verdict this reporting period.

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31

COURT REPORT:

United States District Court FOR THE WESTERN DISTRICT OF TENNESSEE, WESTERN DIVISION covers jury and bench trials from January 1, 2023 through June 8, 2023

by AUDREY CALKINS

DISTRICT JUDGE S. THOMAS ANDERSON 1. USA v. Ali H. Muhammad, No. 21-10068 Trial from June 5, 2023-June 6, 2023 Attorneys for Prosecution: Adam Davis Attorneys for Defendant: Michael Chandra and Dianne Smothers • Charges in Indictment: One count of unlawful possession of a firearm by a convicted felon.

• Verdict: Not guilty.

DISTRICT JUDGE J. DANIEL BREEN No trials.

DISTRICT JUDGE JOHN T. FOWLKES, JR. 1. USA v. Randy Readus, No. 21-20002 Trial from February 6, 2023 through February 13, 2023 Attorneys for Prosecution: Karen Hartridge and Greg Wagner Attorney for Defendant: Coleman Garrett • Charges in Indictment: Conspiracy to commit Hobbs Act robbery; Hobbs Act robbery; attempted Hobbs Act robbery; and use of a firearm during and in relation to a crime of violence.

• Verdict: Guilty on all counts.

2. Stephen Pike v. City of Memphis, et al., No. 20-2866 Trial from February 27, 2023 through March 2, 2023 Attorneys for Plaintiff: Jonathan A. Street and Lauren Jacqueline Irwin Attorneys for Defendant: John B. Turner, Jr., Alan G. Crone, Catherine Carter Walsh, Hannah Grace Fuson, and Natasha Grondsna 32

• Claims in Complaint: Age discrimination under the Age Discrimination in Employment Act and the Tennessee Human Rights Act. • Plaintiff’s claims against Defendants Christian Brothers University and Memphis Museums, Inc. were dismissed before trial.

• Verdict: For Defendant City of Memphis.

3. USA v. Jeffrey W. Young, Jr., No. 19-10040 Trial from March 27, 2023 through March 31, 2023 Attorneys for Prosecution: Dermot Lynch, Jillian Willis, Katherine Payerle, Andrew Pennebaker, James Powell, Bennett Starnes, and Hillary Lawler Parham Attorneys for Defendant: Claiborne Ferguson and John McNeil • Charges in Indictment: One count of conspiracy to distribute and dispense controlled substances, including hydrocodone, oxycodone, and fentanyl not for legitimate medical purposes and outside the course of professional practice; six counts of unlawfully distributing and dispensing oxycodone and hydrocodone to pregnant women and aiding and abetting same; seven counts of unlawfully distributing and dispensing hydrocodone and oxycodone not for legitimate medical purposes and outside the course of professional practice; and one count of maintaining a drug-involved premises and aiding and abetting.

• Verdict: Guilty on all counts.

4. USA v. Timothy Lurry, No. 21-20146 Trial from April 10, 2023 through April 12, 2023 Attorneys for Prosecution: Greg Allen and Raven Icaza Attorneys for Defendant: Dewun Settle • Charges in Indictment: One count of conspiracy to possess with intent to distribute and distribution of more than 50 grams of methamphetamine; one count of conspiracy to possess with intent to distribute and distribution of cocaine; two counts of aiding and abetting in the possession with

intent to distribute and distribution of methamphetamine; two counts of aiding and abetting in the possession with intent to distribute and distribution of cocaine; and two counts of possession with intent to distribute (and distribution of ) more than 50 grams of methamphetamine.

• Verdict: Guilty of one count of conspiracy to possess and distribute 50 grams or more of methamphetamine; one count of aiding and abetting in the possession with intent to distribute and distribution of methamphetamine; and one count of possession with intent to distribute (and distribution of ) more than 50 grams of methamphetamine.

Not Guilty of conspiracy to possess and distribute cocaine; one count of aiding and abetting in the possession with intent to distribute and distribution of methamphetamine; two counts of aiding and abetting in the possession with intent to distribute and distribution of cocaine; and one count of possession with intent to distribute and distribution of methamphetamine.

CHIEF DISTRICT JUDGE SHERYL H. LIPMAN 1. Nancy Cheairs v. Mark Thomas, et al., No. 20-2494 Trial from February 27, 2023 through February 28, 2023 Attorneys for Plaintiff: Irma W. Merrill Attorneys for Defendant: Mark Thomas (pro-se defendant).

• Claims in Third Amended Complaint: Copyright infringement of original paintings; violation of the Tennessee Consumer Protection Act; tortious interference with prospective business relationships; conspiracy; a civil RICO violation; unjust enrichment; and libel.

• Defendant Helen Thomas filed a Third-Party Complaint against Memphis Professional Imaging, Inc., which was dismissed before trial.

• Plaintiff’s claims against Helen Thomas, which Plaintiff pursued against the executrix of Ms. Thomas’ estate after Ms. Thomas passed away, were settled before trial.

• Plaintiff also settled claims against Defendant Memphis Professional Imaging, Inc. before trial.

• Plaintiff Verdict: Jury found Mark Thomas willfully infringed 14 original works created by Plaintiff • Statutory Damages: $2,100,000.00

2. Moon Fenton, M.D. v. The West Clinic, PLLC f/k/a The West Clinic, PC, d/b/a West Cancer Center; West Leaseco, LLC, West Desoto Partners, LLC; West Union Partners, LLC; West Wolf River Partners, L.P., f/k/a West Wolf River Partners, LLC; West Clinic Holdco, PC; West Equity, LLC; and West Partners, LLC, No. 21-2790 Trial from May 22, 2023 through May 24, 2023 Attorneys for Plaintiff: David A Burkhalter, II, David Alexander Burkhalter, III, Zachary Joseph Burkhalter, and Dan M. Norwood

Attorneys for Defendants: Michael G. McLaren, Amy Worrell Sterling, and Charles S. Mitchell • Claims in Complaint: Breach of contract; conversion; negligent misrepresentation; intentional misrepresentation; promissory fraud; fraudulent concealment; fraud by omission; and constructive trust/resulting trust.

• Plaintiff’s negligent misrepresentation, promissory fraud, fraudulent concealment, and fraud by omission were dismissed before trial.

• Awaiting submission of findings of fact and conclusions of law after a bench trial.

SENIOR DISTRICT JUDGE SAMUEL H. MAYS 1. USA v. Gary Crawford, No. 22-20029 Trial from January 3, 2023 through January 5, 2023 Attorneys for Prosecution: Marques T. Young Attorneys for Defendant: Dewun R. Settle • Charges in Indictment: One count of unlawful possession of a firearm by a convicted felon.

• Verdict: Guilty.

SENIOR DISTRICT JUDGE JON P. MCCALLA 1. USA v. Courtney Trenell, No. 22-20051 Trial from March 27, 2023 through March 29, 2023 Attorneys for Prosecution: Greg Wagner and Eileen Kuo Attorneys for Defendant: David Bell and Brian Mounce • Charges in Indictment: One count of unlawful possession of a firearm by a convicted felon.

• Verdict: Not Guilty.

DISTRICT JUDGE MARK S. NORRIS 1. USA v. Terrell Young, No. 22-20118 Trial from February 6, 2023 through February 9, 2023 Attorneys for Prosecution: Regina Thompson and Jermal Blanchard Attorneys for Defendant: Angela Smith and Peter Oh • Charges in Indictment: One count of unlawful possession of a firearm by a convicted felon.

• Verdict: Not Guilty.

2. USA v. Julio Cesar Garcia and Juan Garcia, No. 2120142 Trial from February 21, 2023 through February 24, 2023 Attorneys for Prosecution: Michelle Kimbril-Parks and Greg Allen Attorneys for Defendants: Linda Garner represented Julio Cesar Garcia; Claiborne Ferguson represented Juan Garcia 33

• Charges in Indictment as to both Defendants: One count of conspiracy to distribute 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine.

• Verdict: Guilty as to both Defendants.

3. USA v. Paul Seib, No. 22-20157 Trial from March 6, 2023 through March 9, 2023 Attorneys for Prosecution: Jennifer Musselwhite and Joe Murphy Attorneys for Defendant: Taurus Bailey • Charges in Indictment: One count of conspiracy to possess with intent to distribute a mixture and substance containing 5 kilograms or more of cocaine.

• Verdict: Guilty.

4. Doristeen Taylor v. Methodist Healthcare, No. 19-2796

LeBonheur

Trial on March 20, 2023 Attorneys for Plaintiff: Doristeen Taylor (pro-se plaintiff) Attorneys for Defendant: Jonathan C. Hancock and Locke Houston Waldrop • Claims in Complaint: Age discrimination under the Age Discrimination in Employment Act. • Awaiting submission of findings of fact and conclusions of law after a bench trial.

5. City of Memphis v. Horn Lake Creek Basin Interceptor Sewer District of Desoto County, Mississippi and Desoto County, Mississippi, No. 192864 Trial from April 10, 2023 through April 12, 2023, April 20, 2023, and May 30, 2023 Attorneys for Plaintiff: Bruce McMullen, Karen Lott Glover, Mary Wu Tullis, Pete Brunson, and Carmalita Drayton Attorneys for Defendant: Abram Orlansky, William Brown, Mary Lee Walker Brown, Keith Turner, Michael Gwin, Anthony Nowak, and Samuel Barber • Claims in Complaint: Declaratory judgment regarding the treatment and disposal of sewage wastewater and seeking a declaration that the City of Memphis has no obligation and cannot be compelled to provide treatment and disposal services for wastewater collected by Horn Lake after certain waste-treatment agreements expire.

• Awaiting submission of findings of fact and conclusions of law after a bench trial.

6. Robert D. Harper v. Shelby County, Tennessee, No. 21-2300 Trial from April 24, 2023 through April 25, 2023 Attorneys for Plaintiff: Steven George Wilson and Bryce William Ashby Attorneys for Defendant: Robert Joseph Leibovich and Katherine Frazier 34

• Claims in Complaint: Failure to accommodate, interference, disparate treatment, wrongful termination, and retaliation, all under the Americans with Disabilities Act. • Awaiting submission of findings of fact and conclusions of law after a bench trial.

• USA v. Devin Wiseman, No. 22-20161 • Trial from May 8, 2023 through May 9, 2023 • Attorneys for Prosecution: Raney Irwin • Attorneys for Defendant: Greg Gookin and James Hoagland • Charges in Indictment: One count of unlawful possession of a firearm by a convicted felon.

• Defendant pled guilty to the charges in the indictment on March 16, 2023.

• The jury decided only the applicability of the Armed Career Criminal Act. • Verdict: For the prosecution. The jury found Defendant is an armed career criminal under the ACCA because he did have three prior offenses committed on occasions different from one another.

DISTRICT JUDGE THOMAS L. PARKER 1. Ballentine Express Corp. v. EAN Holdings, LLC d/b/a Enterprise Rentals and Steven D. Barksdale, No. 21-2242 Trial from February 21, 2023 through February 23, 2023 Attorneys for Plaintiff: Kelly McLeod, Mark C Carroll, Luke Whitaker, and Thomas Gerry Bufkin Attorneys for Defendant EAN Holdings, LLC d/b/a Enterprise Rentals: Joseph R Swift, Elijah Settlemyre, and Terrill L. Adkins • Attorneys for Defendant Steven D. Barksdale: Ryan Skertich and William Thomas Hackett • Attorneys for Third-Party Defendant Shelter General Insurance Company: Edward R McNees and Robert Bradley Best • Claims in Amended Complaint: declaratory judgment regarding insurance coverage stemming from a car accident in Olive Branch, Mississippi.

• EAN Holdings filed a Third-Party Complaint against Shelter General Insurance Company, which was dismissed before trial.

• Shelter General Insurance Company was later added--and then dismissed--as a named Defendant, both before trial.

• Defense Verdict: Jury found EAN Holdings, LLC d/b/a Enterprise Rentals did not agree to provide Ballentine Express Corp. with a limit of $750,000 in Business Travel Insurance (“BTI”) coverage.

2. James Cole ex rel. The Board of Trustees of the Iron Workers Local Union No. 167 Health and Welfare Plan Trust, the Iron Workers Local Union No. 167 Pension Plan and Trust, the Iron Workers Local

Union No. 167 Apprenticeship and Training Trust Fund, and Iron Workers Local Union No. 167 v.

Elite Iron Works, Elite Iron Works, LLC, and Russel Feivou, No. 21-2165 Trial from March 20, 2023 through March 21, 2023 Attorneys for Plaintiff: Deborah E. Godwin Attorneys for Defendant: John B. Turner, Jr. and Carl I. Jacobson • Claims in Complaint: An ERISA claim for failure to pay fringe benefit contributions to various funds and dues to the Union.

• Awaiting issuance of findings of fact and conclusions of law after a bench trial.

• Yvonne Craddock v. Fedex Corporate Services, Inc. and Lee Ann Scallions, No. 17-2780 • Trial from March 27, 2023 through March 31, 2023 • Attorneys for Plaintiff: Peggy Lee • Attorneys for Defendant FedEx Corporate Services, Inc.: Charles V. Holmes, Barak J. Babcock, Seth Ryan Jewell, Sr., and Whitney K. Fogerty • Attorney for Defendant Lee Ann Scallions: Seth Ryan Jewell, Sr. • Claims in Amended Complaint: Title VII race-based disparate treatment, hostile work environment, and wrongful termination and retaliation; violation of 42 U.S.C. 1981 because of wrongful termination based on race; violation of the Equal Pay Act; violation of the Family Medical Leave Act; defamation; and libel.

• The court dismissed Plaintiff’s claims against Defendant Scallions at summary judgment.

• Trial on Plaintiff’s Title VII race discrimination wrongful termination claim only.

• Defense Verdict for Defendant FedEx Corporate Services, Inc.

• Charges in Citation: Disorderly conduct involving the U.S. Postal Service in violation of 39 C.F.R. 232.1(e).

• Verdict: Guilty after a bench trial.

Audrey Calkins has been an Assistant U.S. Attorney in the Civil Division of the U.S. Attorney’s Office for the Western District of Tennessee since April 2020. Before that, she practiced labor and employment defense at Ogletree, Deakins, Nash, Smoak & Stewart, P.C. in Memphis and commercial litigation at Susman Godfrey L.L.P. in Houston, Texas. Ms. Calkins is a member of the MBA Publications Committee and is the outgoing chair of the TBA’s Federal Law Section.

Ms. Calkins wrote this article in her personal capacity only. All opinions and views in this article are personal and belong solely to Ms. Calkins and do not represent those of people, employers, institutions, or organizations she may or may not be associated with in any professional or personal capacity, unless explicitly stated. Any views or opinions are not intended to malign any group, association, company or individual. If Ms. Calkins omitted any trials, please contact her so that she can include those trials in the next court report.

3. USA v. Monique Stewart, No. 22-20080 Trial from April 17, 2023 through April 20, 2023 Attorneys for Prosecution: Chris Cotten and William Bateman Attorneys for Defendant: Barry McWhirter • Charges in Indictment: One count of conspiracy to commit healthcare fraud; one count of healthcare fraud.

• Verdict: Not Guilty as to conspiracy to commit healthcare fraud. Guilty as to healthcare fraud.

AGISTRATE JUDGE CHARMIANE G. M CLAXTON 1. United States v. Alonzo C Tate, No. 22-43 Trial on May 4, 2023 Attorneys for Prosecution: Regina Thompson and Reid Manning Attorneys for Defendant: Alonzo C Tate (pro se defendant) 35

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Criminal Law Section Happy Hour

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Swearing-In Ceremony

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2023 Summer Law Intern Program

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In August 2023, MBA President Jennifer Sink became the VP and General Counsel of Memphis Light, Gas and Water.

Before joining MLGW, Sink served as the Chief Legal Officer for the City of Memphis where she provided legal counsel and strategic advice to the Mayor and divisions of city government.

Prior to joining the Memphis City Attorney's Office in 2016, she was a shareholder at Baker, Donelson, Bearman, Caldwell and Berkowitz P.C. practicing civil litigation and primarily health care litigation from 2003-2016.

James “Jim” Barry took office as the President of the Tennessee Bar Association (TBA) on June 16, 2023 during the TBA Annual Convention in Knoxville. Barry has long been active in the TBA serving on the TBA’s Board of Governors, as chair of the TBA’s Access to Justice Committee and as co-chair for many years of the TBA’s Corporate Counsel Pro Bono Initiative.

He is also a long time member of the Memphis Bar Association’s Access to Justice Committee, and has held leadership roles with the Association of Corporate Counsel, the Community Legal Center in Memphis, Memphis Area Legal Services, the Tennessee Alliance for Legal Services (TALS), and the Tennessee Justice Center.

On June 16, 2023, Quinton Thompson took office as the President of the TBA Young Lawyers Division during the TBA YLD’s Annual Meeting. A Past President of the MBA Young Lawyers’ Division and Past President of the Ben F. Jones Chapter of the National Bar Association, Quinton was also recently recognized as one of the American Bar Association “On the Rise – Top 40 Young Lawyers” in recognition of his high achievement, innovation, vision, leadership, and service to the profession and community.

In April 2023, David M. Cook received the Harris Gilbert Award at the 2023 TBA Public Service Awards Brunch. This award recognizes private attorneys who have contributed a significant amount of pro bono work and have demonstrated dedication to the development and delivery of legal services to the poor.

The Tennessee Supreme Court appointed former Judge W. Mark Ward as a senior judge for a term of four years, effective June 1, 2023.

Judge Ward previously served as a criminal court judge in the 30th Judicial District from 2004 to 2022.

The University of Memphis, Cecil C. Humphreys School of Law Alumni Chapter will honor five Memphis-area lawyers at its annual Pillars of Excellence event on August 26, 2023 at the Fed Ex Forum.

Those receiving awards are: United States Congressman Steve Cohen (TN-09); Robert L. Dinkelspiel, founding member of Dinkelspiel Rasmussen & Mink; Mike McLaren, shareholder at Black McLaren Jones Ryland & Griffee; David Wade, shareholder and director at Martin Tate Morrow & Marston; and Ruby R. Wharton, founder and partner with The Wharton Law Firm. Additionally, Judge Jon Phipps McCalla with the United States District Court for the Western District of Tennessee will receive the 2023 Friend of the Law School Award. The event will start with a reception at 6:00 p.m. followed by dinner, awards and an after party. Proceeds from the evening will support the law school and student scholarships.

Steve Cohen

Robert L. Dinkelspiel

Mike McLaren

David Wade

Ruby R. Wharton

Judge Jon Phipps McCalla

SUBMIT YOUR NEWS AND UPDATES If you are an MBA member in good standing and you’ve moved, been promoted, hired an associate, taken on a partner, or received an award, we’d like to hear from you. We will not print notices of honors determined by other publications (e.g., Super Lawyers, Best Lawyers). Notices are limited to 100 words; they are printed at no cost to members and are subject to editing. E-mail your notice and hi-resolution photo (300 dpi) to kswan@memphisbar.org.

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