Nashville Bar Journal | June/July 2018 by Nashville Bar Association

JOURNAL Journal Journal

JUNE/JULY 2018 | VOLUME 18 | NO. 3

FEATURE

Can I Bring My Dog With Me?

ALSO

Dog Parent Duties An Overview of the CFPB Puppy Warranties and Lemon Laws

JOURNAL 6 Journal Journal JUNE/JULY 2018 | VOLUME 18 | NO. 3

FE ATU R E

Can I Bring My Dog With Me? Eleanor K. Wetzel

DEPA R TM E N TS

From the President

Calendar of Events

Hear Ye, Hear Ye

Erin Palmer Polly

Annual Golf Tournament Carbolic Smoke Ball Dog Days of Summer Leadership Forum Grads Happy Hour + Sounds “Yappy” Hour

17 Member Updates 30 Photo Gallery 32 Hearsay 34 100% Club 38 CLE Schedule

Parent Duties 11 Dog Caroline S. Hudson

Overview of the CFPB 25 An Lauren M. Poole Warranties and Lemon Laws 29 Puppy Robert D. Martin

C O L UMNS

Background Check 13 Bart Pickett Gadget of the Month 15 Bill Ramsey & Phillip Hampton Capitol Notes 27 Peggy Sue, the Beagle Hound

JUN/JUL 2018 | NASHVILLE BAR JOURNAL

JOURNAL JOURNAL FROM THE PRESIDENT My Roots | Erin Palmer Polly Journal It was Valentine’s Day 2003, and my plans were set. Journal I was going to get tacos, chips, and queso from SATCO,

ERIN PALMER POLLY, Publisher

WILLIAM T. RAMSEY, Editor-in-Chief

ELEANOR WETZEL, Managing Editor

JILL PRESLEY, Marketing & Communications Director

EDITORIAL COMMITTEE NOEL BAGWELL CHANDLER FARMER KIMBERLY FAYE CAROLINE HUDSON TIM ISHII CALLIE JENNINGS KELLY FREY ROB MARTIN LEE NUTINI EVERETTE PARRISH BART PICKETT LAUREN POOLE MIKE SANDLER KRISTIN THOMAS JONATHAN WARDLE NASHVILLE BAR JOURNAL (ISSN1548-7113) (USPS 021-962) is published bi-monthly by the Nashville Bar Association, 150 4th Ave N, Ste 1050, Nashville, TN 37219. Periodicals Postage Paid at Nashville TN. POSTMASTER: Send address changes to Nashville Bar Journal, 150 4th Ave N, Ste 1050, Nashville, TN 37219-2419. No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. All articles, letters, and editorials contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association. For more information, visit NashvilleBar.org/NashvilleBarJournal. The Nashville Bar Journal welcomes discourse. You may submit counterpoint editorials to Jill.Presley@ nashvillebar.org to be considered by the editorial committee for publication in a future print or online content. NASHVILLE BAR ASSOCIATION 150 4th Ave N, Ste 1050 Nashville, TN 37219 615-242-9272 | NashvilleBar.org The Nashville Bar Association, established in 1831, is a professional organization serving the legal community of Nashville, Tennessee. The NBA—with over 2,800 members—is the largest metropolitan bar association in Tennessee.

along with a two-liter of Sun Drop, and watch wrestling with my dog, Mia. My illustrious plans, however, were thwarted when my law partner and president of the NBA Young Lawyers Division (YLD)—Scott Sims—walked into my office. He needed someone to score a few rounds of the Davidson County Mock Trial Competition. I initially protested. I mean, there still was a chance that a dashing young man might make a last-minute request to take me out on Valentine’s Day. Ultimately, however, I conceded. After scoring five rounds that weeked, I was hooked. I spent the next 11 years actively involved in the YLD, scoring dozens of rounds of the Mock Trial Competition, chairing Race Judicata, and raising money for local charities through the Carbolic Smoke Ball. I can say with great certainty that I am a better lawyer and a happier person as a result of my years with the YLD. While the YLD positively influenced me personally for more than a decade, it has positively impacted thousands for the last 34 years. The YLD was formed in 1984 by some true titans of our legal community, namely Judge Waverly Crenshaw, Judge Cliff Knowles, Chancellor Ellen Hobbs Lyle, Karen Neal, and John Tarpley. It was born out of an appreciation that young lawyers in Nashville wanted to give back to the community and to network with each other—they simply needed something to bring them together. In its first year, the YLD hosted two events that remain among its most popular—the Mock Trial Competition and Race Judicata—and sponsored several social gatherings for its members. These efforts did not go unnoticed, as the YLD received the Best New Affiliate Award from the American Bar Association in its first year. Since then, the YLD has persisted in its mission of giving back to the community and bringing young lawyers together. Among other things, the YLD has: (1) hosted hundreds of rounds of the Mock Trial Competition, (2) raised hundreds of thousands of dollars for nonprofit organizations through Race Judicata and the Carbolic Smoke Ball, (3) raised tens of thousands of dollars for the Volunteer Lawyers and Professionals for the Arts through Arts Immersion, (4) donated backpacks and school supplies to children through Brews for Backpacks, (5) donated Halloween costumes to children through Craft Beer for Costumes, (6) helped local students better understand our legal system through Law Week events, and (7) hosted countless social events to promote collegiality in the profession. These events would not have been possible without the hard work and support of the active and dedicated members of the YLD. So, get involved! If you’re a young lawyer, attend a YLD Happy Hour, donate a backpack at Brews for Backpacks, or showcase your dance moves at the Carbolic Smoke Ball. Here’s a pro tip for you older lawyers (like me)—they don’t check IDs at the door, so get out and support the young lawyers in our community. The YLD forever changed my life for the better, both professionally and personally, and it can change your life if you are committed to actively participate and to give of your abilities to the greater good. n —

NASHVILLE BAR JOURNAL | JUN/JUL 2018

NashvilleBar.org/ Calendar of Events | Full calendar online at NashvilleBar.org.

JUNE 2018 M O N D AY

T U E S D AY

W E D N E S D AY

T H U R S D AY

F R I D AY High School Intern Orientation 3:00pm

1 NBA Board Meeting | 4:00pm

Diversity Committee Mtg 12:00pm

Dial-A-Lawyer | 6:00-8:00pm

CLE Committee Mtg 11:00am

Historical Committee Mtg 11:30am | Hal Hardin’s Office

NBF Trustees Mtg | 12:00pm

Immigration Committee Mtg 12:00pm

Leadership Forum Steering Committee Mtg | 4:00pm

Bankruptcy Committee Mtg 12:00pm

14 NBJ Editorial Committee Mtg 12:00pm | Neal & Harwell

Ethics Committee Mtg 12:00pm

7 NALS Mtg | 12:00pm

IP and Entertainment, Sports, and Media Law Committee Mtg 2:00pm | Bradley

Bankruptcy Committee “Night with The Sounds” 5:00pm | First TN Park

Membership Committee Mtg 12:00pm Annual Golf Tournament 12:00pm | Legends Golf Course

JULY 2018 M O N D AY

T U E S D AY

W E D N E S D AY

Middle TN Paralegal Association Mtg 11:30am Dial-A-Lawyer | 6:00-8:00pm

T H U R S D AY

F R I D AY

HAPPY 4TH OF JULY! Holiday | NBA Offices Closed

3 LAW Board Mtg | 11:30am

4 Historical Committee Mtg 11:30am | Hal Hardin’s Office

CLE Committee Mtg | 11:30am

YLD Board Mtg | 12:00pm | Waller

9 Probate Committee Mtg | 11:30am

Leadership Forum Steering Committee Mtg | 1:30pm

Ethics Committee Mtg 12:00pm

Executive Committee Mtg | 4:45pm

NBA Happy Hour + Sounds Game 5:00pm | Dodson Parker

12 Finance Committee Mtg | 4:00pm

13 High School Intern Farewell Lunch 12:00pm

31 JUN/JUL 2018 | NASHVILLE BAR JOURNAL

JOURNAL JOURNAL Journal Journal

2018 NBA BOARD OF DIRECTORS ERIN PALMER POLLY, President LAURA SMITH, President-Elect

ROBERT C. BIGELOW, First Vice President

MARGARET M. HUFF, Second Vice President MARY TAYLOR GALLAGHER, Secretary JEFF GIBSON, Treasurer MALAKA WATSON, Assistant Treasurer TERA RICA MURDOCK, YLD President LELA HOLLABAUGH, General Counsel NATHAN H. RIDLEY, Immediate Past President JACQUELINE B. DIXON, First Vice President-Elect WENDY LONGMIRE, Second Vice President-Elect MICHAEL ABELOW LAURA B. BAKER DANIEL P. BEREXA MARK S. BEVERIDGE

Hear Ye, Hear Ye |

Events of Interest

2018 Leadership Forum Graduation

In 2014, the Nashville Bar Foundation (NBF) established the NBF Leadership Forum—a local leadership program for lawyers with three to eight years of experience—designed to bring together emerging leaders who participate in monthly workshops for nine months to help them realize their potential and to benefit the legal profession and our local community. On May 4, at Baker Donelson, the 2018 Nashville Bar Foundation Leadership Forum Class graduated. If you know any of the class members listed below, please take a moment and share your regards. Congratulations to all participants on your hard work—we know it will pay off! Kristi Wilcox Arth Michele T. Marsicano

HON. SHEILA D. CALLOWAY

Tayo Atanda

Aisha McWeay

Bahar Azhdari

Jennifer Moreno

LYNNE T. INGRAM

Paige I. Bernick

P. Danielle Nellis

TRACY DRY KANE

Brad W. Craig

Jeremy Oliver

Beau C. Creson

Mallory Ricci

Lauren Curry

Brooke Schiferle

Alex S. Fisher

Bruce Shanks, Jr.

ERIC W. SMITH

Kaitlin E. Harvie

George D. Spanos

DARKENYA W. WALLER

Cherrelle Hooper

Malaka Watson

Andrew Kaufman

Zachary Wiley

Peter Malanchuk

John Wilks

BRIGID CARPENTER SAMUEL P. FUNK

HON. WILLIAM C. KOCH, JR. RYAN D. LEVY CHANCELLOR ELLEN HOBBS LYLE W. BRANTLEY PHILLIPS, JR. DAVID L. RAYBIN

CHANCELLOR BILL YOUNG STEPHEN J. ZRALEK

NBA TEAM MONICA MACKIE, Executive Director SHIRLEY CLAY, Finance Coordinator

For more information on this program, visit NashvilleBar.org/NBFLeadershipForum. n

WENDY COZBY, Lawyer Referral Service Coordinator JAN MARGARET CRAIG, CLE Director TRACI HOLLANDSWORTH, Programs & Events Coordinator JILL PRESLEY, Marketing & Communications Director VICKI SHOULDERS, Membership Coordinator, Office Manager MARIEL ZELHART, CLE Coordinator

HAVE AN IDEA FOR AN ARTICLE? We want to hear about the topics and issues you think should be covered in the journal. Send your ideas to Jill.Presley@nashvillebar.org.

The “Dog” Days of Summer

As we commemorate the “dog days of summer” in this fur-filled issue, please note that Monday, July 23, is National Hot Dog Day. This informal U.S. holiday was established by National Hot Dog and Sausage Council. Hot Dog Day celebrates hot dogs as one of the staples of American cuisine. The Council also designated July as National Hot Dog Month. It organizes and sponsors numerous events held across the United States. To celebrate National Hot Dog Day, invite your friends over for a cookout and enjoy delicious hot dogs (also available in vegetarian and vegan!) with your favorite condiments and garnishes. n

NASHVILLE BAR JOURNAL | JUN/JUL 2018

NBA Happy Hour + Nashville Sounds Game Join us on Tuesday, July 17, from 5:00 – 6:30pm, for the NBA Happy Hour Summer Edition, hosted by Dodson Parker Behm & Capparella at their offices in Germantown. It gets better! The Nashville Sounds have a game at 7:00pm that same night, and Herman Hicks of First Tennessee Bank—Official Banking Partner and Exclusive Sponsor of the NBA—has offered FREE tickets to any NBA member (plus one guest) who attends the happy hour. To RSVP, visit NashvilleBar.org/HappyHour. If you would like tickets to the Sounds game, email Traci.Hollandsworth@nashvillebar.org to get your name on the list and your tickets will be available at the happy hour. n

Carbolic Smoke Ball

Carbolic Smoke Ball is the annual cocktail and dance party hosted by the NBA Young Lawyer’s Division (YLD). Named after the infamous case, Carlill v. Carbolic Smoke Ball Co., the event is in its 21st year and is sure to be the best yet! The evening feature music and dancing, heavy hors d’oeuvres, an open bar, and a festive atmosphere. Lawyers, spouses, friends, and families come out each year in support of the NBA, the YLD, and selected beneficiaries.

This year, the festivities will commence on Saturday, August 4. Stay tuned to your Weekly Update emails or visit NashvilleBar.org/CarbolicSmokeBall. n

Annual Golf Tournament: Rain Date Presented by the Nashville Bar Association & the Nashville Bar Foundation Due to inclement weather, the Annual Golf Tournament has been rescheduled for Thursday, June 28, at Vanderbilt Legends Club in Franklin, Tennessee. Range balls will be available at 12:00pm, followed by a shotgun start at 1:00pm. The entry fee includes range balls, greens fee, cart, beverages, snacks, and dinner. NBA members | $160.00 Non-members | $180.00 Registrations must be submitted no later than Thursday, June 21. To register, visit NashvilleBar.org/GolfTournament. n

“Bubba” Savage Hans Owner: Traci Hollandsworth

June 22

Created by Pet Sitters International in 1999 to celebrate the great companions dogs make and promote their adoptions, Take Your Dog To Work Day® is celebrating its 20th year on Friday, June 22. Businesses across the world will open their doors to employees’ furry friends to celebrate the day. For more information—including a downloadable tool kit to help convince your boss—visit PetSit.com/TakeYourDog. On Saturday, July 21, the NBA welcomes you and your pup(s) to our Dog Days of Summer CLE and “Yappy Hour” at Shelby Park. Visit NashvilleBar.org/DogDays for details. n

JUN/JUL 2018 | NASHVILLE BAR JOURNAL

Feature Story | Eleanor K. Wetzel

NASHVILLE BAR JOURNAL | JUN/JUL 2018

Can I Bring My Dog With Me?

How to Prevent Assistance Animal Fraud Without Violating Disability Laws Consider a recent trip to the airport. Animals, especially dogs, seem omnipresent. Beyond service animals assisting passengers with disabilities, there has been a surge of emotional support animals (ESAs) making headlines. Additionally, an increasing number of airports now offer therapy animal programs. Do service animals, therapy animals,1 and ESAs have equal access rights? In short, no. This article provides an overview of legislation concerning support animals to empower attorneys and proprietors to prevent service animal fraud while complying with anti-discrimination laws. Right of Public Access & Commercial Entities The Americans with Disabilities Act (ADA), as implemented by the Department of Justice (DOJ), requires government and commercial entities to “modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.” American canine researcher Bonnie Bergin coined the term “service animal” when testifying before Congress in support of the Act; however, as originally enacted in 1990, the ADA contained no definition of the term. The DOJ issued its first definition of service animals, with no species limitation, in its 1991 regulations. Nearly 20 years later, the DOJ revamped the regulations limiting service animals to one species; specifically, “service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”2 The Guide Horse Foundation, however, persuaded the DOJ to carve out a limited exception for miniature horses. An entity

may take into consideration the size, weight, and limited flexibility of the miniature equine when determining whether to accommodate a service horse, but entities are prohibited from imposing size, weight, or breed limitations—the ADA trumping any local breed restriction ordinances—for service dogs. Whether horse or dog, the animal must be trained “to do work or perform tasks.” The DOJ regulation clarified “the provision of emotional support, well-being, comfort, or companionship [does] not constitute work or task for the purposes of this regulation.” Thus, ESAs and therapy animals do not qualify for right of access pursuant to the ADA. The key for public access is not whether the animal’s presence brings comfort but whether the animal is trained to respond. For example, psychiatric service animals can assist individuals with PTSD by grounding them in time and place by nudging or moving the individual to a safe location until the episode subsides. Although service animals must be trained by definition, the ADA prohibits entities from requiring proof of training or certification since the animal may be trained by a professional or the handler. Because Tennessee’s law conditioned public access on the presentation of “credentials issued by an accredited school for training dog guides”, the legislature amended TCA § 62-7-112 in 2013, to comport with the ADA. (Tennessee’s statute authorizes access for service animals in training unlike the ADA.) Verification of Service Animal & Basis for Exclusion Service animals’ right of public access has limitations. When an individual presents her service animal, entities may ask two questions: (1) “Is this a service animal that is required because of (continued on page 8) (continued on page 00)

JUN/JUL 2018 | NASHVILLE BAR JOURNAL

Feature Story | a disability?” and (2) “What work or task has the animal been trained to perform?” If a patron cannot provide a credible response to those questions, the animal may be barred entry. If the animal is denied access, the patron must be given the option to procure goods or services without the animal’s presence as the exclusion applies to the animal, not to the individual. Animals also may be denied entry if their presence constitutes “a fundamental alteration as to the nature of the service, program, or activity” of the covered entity—the classic example being zoo areas where predators to dogs are housed.3 Barking may be deemed a fundamental alteration depending how the entity treats loud crowds or crying babies. Additionally, the DOJ clarified in 2010, that entities may exclude service animals where the service animal fails to meet certain behavioral standards; specifically, if an animal is not housebroken or well-controlled. Service animals are to be kept on a leash or tether unless doing so interferes with the animals’ ability to perform its work or task; should that be the case, the animal still must be under control by voice, signals, or other effective means. An animal wandering away from its table at a restaurant encroaching on the space of other patrons, for example, is not under the control of the handler. Housing & Reasonable Accommodations for Assistance Animals Only service dogs (and sometimes mini equines) qualify for right of public access under the ADA; however, the DOJ recognizes other types of support animals may be appropriate to assist an individual inside her home. The Helping Hands “Monkey College,” for example, 8

Can I Bring My Dog With Me? (continued from page 7)

Winnie Belle Wetzel-Haley Owner: Eleanor (Ellie) Wetzel

has trained capuchin monkeys since 1979, to assist individuals with motor impairments. The Department of Housing and Urban Development (HUD), therefore, employs a different standard for determining whether an animal may legally live in housing with a “no pets” policy,4 and uses the term “assistance animal”5 as an umbrella category for service animals and ESAs. Per HUD: “An assistance animal is not a pet. It is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms of a person’s disability.”6 HUD provides no species limitation nor does it require assistance animals be trained or certified. Two inquiries may be made when an individual makes an accommodation request for an assistance animal: (1) “Does the person seeking to use and live with the animal have a disability—i.e., a physical or mental impairment that substantially limits one or more major life activities?” and (2) “Does the person making the request have a disability-related need for an assistance animal?”7 Only when the disability is not apparent may the entity ask for medical

NASHVILLE BAR JOURNAL | JUN/JUL 2018

documentation of the disability. Likewise, if the need for an animal is not readily apparent, the entity also may require documentation of how the disability necessitates an assistance animal. If none can be provided, the housing entity bears no obligation to provide an exception to its “no pets” policy. A request also may be declined where the specific animal either poses a safety threat or would cause substantial property damage that cannot be reduced or eliminated by another reasonable accommodation. HUD emphasizes the determination must be based on “the specific animal’s actual conduct,” “not mere speculation” based on the species or breed. Housing law does not apply to hotels, which have no legal obligation to host ESAs. Air Carrier Access Act (ACAA) & Rise of the Emotional Support Animal The ADA applies to all forms of transportation—bus, railway, private taxis or Uber, etc.—except flight; accordingly, only service dogs (and sometimes horses) are permitted on ground transit. The Department of Transportation (DOT) oversees airlines by implementing regulations for the Air Carrier Access Act of 1986. The DOT’s first regulations addressing service animals did not issue until 1996, and ESAs were not addressed until 2003. In the context of airlines, the DOT uses the term “service animal” to encompass service animals (as defined for the ADA) and ESAs. Although no law outlines species limitations for ESAs on domestic flights, the DOT authorizes airlines to decline carriage to rodents, ferrets, and snakes—or any other “unusual service (continued on page 14)

NashvilleBar.org/FindAMediator

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Think Win-Win and Sign Up Today! Visit NashvilleBar.org/FindAMediator to learn more. Fees for a listing are $200/year for NBA members and $350/year for non-members. Nonattorney mediators may participate if they have been approved as a Supreme Court Rule 31 mediator.

FOLLOW. LIKE. SHARE. TWEET. WATCH.

CAN YOU NAME THESE PEOPLE?

Be the first person to email the correct answer to Jill.Presley@nashvillebar.org, and your name—along with the correct answer—will appear in the next issue.

APR/MAY GOLDEN OLDIES

No one was able to correctly identify the individuals in the April/May photo. From left to right: Paul Summers, Tom Dundon, Nancy Vincent, Charles Bone, Keta Barnes, Luther Wright, and Gene Ward.

NBA Young Lawyers Division | 15th Annual Race Judicata

(left) Paige Ayres Nutini and Callie Hinson, co-chairs extraordinaire of the NBA YLD’s Annual Race Judicata. (right) Racing for a cause! Nashville’s legal community, along with participants from ABLE Youth and Achilles International.

NASHVILLE BAR JOURNAL | JUN/JUL 2018

Editorial |

Caroline S. Hudson

Dog Parent Duties: A Dog Owner’s Responsibilities in Tennessee Dogs are part of the family. Like family, they can bring both joy and frustration. They also can be a liability if you are not a responsible dog parent. Dog attacks generally occur in two different situations: (1) when the dog is running at large or (2) when the dog attacks a person on its owner’s property. In either situation, the dog owner has responsibilities when it comes to controlling his or her dog. In 2007, the Tennessee legislature enacted the Dianna Acklen Act.1 This created a statutory cause of action against a dog owner when their dog attacks, injures, and/or causes death to a person. The Act established that dog owners have a duty to keep their dog under reasonable control and to keep their dog from running at large.2 Running at large is defined as allowing a dog to be on either public or private property without consent. This includes streets, highways, and roads.3 If an owner breaches these duties, the owner is strictly liable for the person’s damages.4 The legislature has carved out exceptions to this Act,5 including the residential exception. This exception applies if a person is injured by a dog on the dog owner’s property.6 The injured person must show that the dog’s owner knew or should

have known of the dog’s dangerous propensities.7 Dangerous propensities can mean a dog’s playfulness or mischievousness on top of a vicious temperament.8 An injured person can establish a dog’s dangerous propensities by showing that the owner previously knew of the dog’s prior harmful conduct to a person, among other ways. Some counties and cities in Tennessee also have enacted ordinances that are relevant to dog attack cases. For example, Metro Nashville considers a dog to be running at large when the dog is off the owner’s premises and not under the owner’s control by leash, cord, chain, or otherwise.9 Metro Nashville also prohibits “vicious dogs” unless the dog is confined.10 Metro defines a vicious dog as “any dog, which attacks or bites a person or animal on any public or private property without provocation.”11 A determination that a dog is “vicious” would be very helpful in pursuing a dog bite case. One can generally obtain public records on a dog, if there are any records, by submitting a request to the city’s or county’s public health department or other department, which handles animal control. Dog bites are not the only way that dogs can cause an in(continued on page 12)

JUN/JUL 2018 | NASHVILLE BAR JOURNAL

Editorial |

Dog Parent Duties (continued from page 11)

jury to a person. A dog’s conduct or behavior without any physical contact can also cause an injury. An aggressive dog may bark, growl, snarl, or bear its teeth; the dog can also lunge at, jump on, or chase a person. Even without contact, a dog’s behavior can create fear in a person, which can cause them to react and potentially fall and sustain injuries. Even though a dog may not bite a person, dogs can still injure a person through physical contact. A dog can jump on and knock down or run through or around a person’s legs. This can also cause a person to fall and sustain injuries. Even dogs constrained on a leash can cause an injury to a person. If the dog owner is not controlling the leash or is walking more than one dog, the leashes can tangle and trip another passerby or simply entangle another person with the leash. The above examples can or have happened. In a state where over 44.1% of households own a dog, it is important to be aware of these situations and act

dog is performing its official duties; (2) the injury occurs when the person is trespassing upon the dog owner’s private, nonresidential property; (3) the injury occurs when the dog was protecting its owner or another innocent party from attack; (4) the injury occurs when the dog is secured in a confined kennel, crate, or other enclosure; or (5) the injury occurs because the injured person entices, disturbs, alarms, harasses, or provokes the dog. Tenn. Code Ann. § 44-8-413. 6

Id. (c)(1).

Id. (c)(1). In Searcy v. Axley, the Court of Appeals discussed how the court had previously described this burden by requiring that “the dog owner knew of the dangerous disposition of the dog, but that the ‘injuries result[ed] from [such] known vicious tendencies or propensities.’” Searcy, 2017 WL 4743111, at *6. (citing Mayes v. LaMonte, 122 S.W.3d 142, 145 (Tenn. Ct. App. 2003) (quoting McAbee v. Daniel, 445 S.W.2d 917, 925 (Tenn. Ct. App. 1968)). The court also cited Georgia law: “a dog owner’s liability must be predicated solely upon his knowledge that the errant animal has the propensity to cause the specific type of harm from which the cause of action arises.” Id. (citing to Wells v. Beach, 315 S.E.2d 23 (Ga. App. 1984)). The court concluded that the “‘[t]he question in each case is whether the notice was sufficient to put the owner on his guard and to require him, as an ordinarily prudent man, to anticipate the injury which has actually occurred.’” Id. (citing to 13 Am. Jur 2d Knowledge of Animal’s Vicious Propensities § 3). 7

Summer Tomato Rose & BlueBelle Owner: Caroline Hudson

responsible as a dog parent.12 n Endnotes S.B. 143, 105th Leg., 2007 Reg. Sess. (Tenn. 2007); see also Dianna Acklen Act of 2007, Tenn. Code Ann. § 44-8-413. Section (c)(1) of the Act abrogates any common law claim, which falls within its parameters. See Searcy v. Axley, No. W2017– 00374–COA–R3–CV, 2017 WL 4743111, at *6 (Tenn. Ct. App., at Jackson, Oct. 19, 2017). 1

Tenn. Code Ann. § 44-8-413(a)(1).

Id. § 44-8-413(e)(2).

Id. § 44-8-413 (a)(1).

The legislature also carved out the following: (1) the injury occurs when a military or police 5

8 Moore v. Gaut, No. E2015–00340–COA–R3– CV, 2015 WL 9584389 (Tenn. Ct. App., at Knoxville, Dec. 30, 2015).

Metro. Gov’t Nashville Davidson Cnty., Tenn. Ordinance § 8.04.110. 9

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NASHVILLE BAR JOURNAL | JUN/JUL 2018

Id. § 8.08.030.

Vicious can also mean “any dog previously declared vicious in a court of law; or any dog owned or harbored primarily or in part for the purpose of dog fighting.” Id. § 8.08.010. 11

U.S. States with the Most and Fewest Pet Owners, Dogtime.com, Dogtime.com/trending/17160us-states-with-most-and-fewest-pet-ownersnamed. 12

CAROLINE S. HUDSON is an attorney at the Law Offices of John Day where she represents clients in various tort-related matters. She is a member of the NBA and is co-chair of the Nashville Bar Journal’s Editorial Committee. Hudson received her B.S. and M.A. from Tennessee Tech University and J.D. from The University of Memphis, Cecil C. Humphreys School of Law.

BACKGROUND CHECK

Laura Smith | Bart Pickett

Laura and Barkleigh Smith

Laura Smith serves as president-elect of the Nashville Bar Association, and will assume the presidency role at the Annual Banquet on December 5 at the Music City Center. This Miami native is a self-described dog lover and ended up in Nashville by way of the music industry. After graduating from high school, Laura left Miami to go to the University of Florida (UF) in Gainesville. While attending college, she studied political science, which piqued her interest into the world of politics and led to her decision to stay at UF to obtain her JD. Little did Laura know that once she got to law school, she would also fall in love with the legal world. While a student, she clerked for a smaller firm that focused on electric co-ops in the State of Florida. After graduation, Laura moved to Nashville in 1993. While studying for the Tennessee bar exam, she had what turned into a life-changing meeting with a music producer where she had mentioned her need for a job postbar exam. The producer sent her to his songwriting friend—who was also an attorney—Gene Ward. Ward, of course, served as the general counsel for Nashville Electric Service for many years. Smith interviewed with Ward, and they hit it off, which led to her new

employment with Nashville Electric Service (NES). In what seems unheard of in today’s legal climate, Laura has spent her entire career at NES. From an entry-level attorney, Smith then was promoted to vice president and general counsel. She has not always worked in the NES legal department, though. For a few years, she worked as NES’s director of corporate affairs. As to what her future holds, Laura still loves politics. Due to her position at NES, however, she cannot actively engage in politics. One day, she hopes to get back involved with politics, whether it be working on a campaign or maybe in an administration. Smith lives in Germantown with her beloved rescue and German Shepard mix, Barkleigh. Her fondness for dogs serves as a defining characteristic of her personality. She believes passionately about rescuing dogs. She adopted her first rescue during her sophomore year in college, and will never be without a dog. Though she typically has more than one, Barkleigh is her main squeeze right now. She seems to like it this way. Even beyond animal welfare, Smith enjoys being involved in her community. She has served on more nonprofit boards than the word limit of this article would permit. She has been the president of Women’s Political Collaborative, Women in Numbers (WIN), Cable, Women’s Fund, and Fifty Forward. She looks forward to her upcoming role leading the NBA and continuing the tradition of excellence set by previous presidents. Her exuberance and energy will continue to serve the NBA well for years to come. On any given weekend, one can

likely find Laura walking around Germantown with Barkleigh. Her goal on the weekends is to not use her car. She loves the walkability of her neighborhood, as well as the easy access to all the amenities. She enjoys walking to her destination whether it be a Predators game or Sunday service at Monroe Street United Methodist Church. While she loves Nashville, Laura finds traveling to be a pleasure, as it leads to such wonderful life experiences. When she turned 50, she resolved to go on a trip every month. While she no longer commits herself to monthly travel, she still goes to as many places as possible. This year, she plans on going to South America. Before she dies, the SCUBA-certified Smith wants to dive the Great Barrier Reef. n BART PICKETT is an attorney at the Law Offices of Julie Bhattacharya Peak where he represents Liberty Mutual Group, Inc.’s insureds and customers of its affiliated groups in litigation throughout Middle Tennessee. Prior to practicing, Pickett worked as a law clerk for the Honorable Judge Thomas W. Brothers of the Sixth Circuit Court of Davidson County and the Honorable Joseph P. Binkley, Jr. of the Fifth Circuit Court of Davidson County.

Shelby & Lily Owner: Bart Pickett

JUN/JUL 2018 | NASHVILLE BAR JOURNAL

Feature Story | animals” (defined in the airlines’ discretion). As initial evidence an animal is a service animal, airlines may accept identifying cards or vests or “the credible verbal assurances” of the passenger. The DOT has outlined steps for airline personnel to determine credibility by first inquiring, “Is this your pet?”, and following up with questions about the animal’s tasks/functions, training, and task execution.8 If a passenger cannot give credible assurances to these questions, then the airline may demand documentation for the animal to fly in cabin. The DOT authorizes airlines to demand a higher level of proof for psychiatric service animals and ESAs by requiring specific medical documentation. This documentation consists of a recent letter written by a mental health professional (on letterhead) stating: (1) the individual has a mental health-related illness recognized in the Diagnostic and Statistical Manual of Mental Disorders (DSM IV); (2) the ESA is necessary for the mental disability; and (3) that the undersigned is a mental health professional, specifying license type and date of issue. Per current DOT regulations,

Can I Bring My Dog With Me? (continued from page 8)

airlines may require passengers to supply notice of their intent to fly with psychiatric service animals or ESAs up to 48 hours prior to the flight and check in early.9 In light of highly publicized incidents involving animals on aircraft, many airlines revised their policies in early 2018—some of these changes arguably violate the ACAA. The DOT is reviewing its regulations and published an advance notice of public rulemaking on May 16, 2018,10 along with an “Interim Statement of Enforcement Priorities Regarding Service Animals” to provide guidance until final regulations issue. Conclusion Animals bring joy and offer numerous documented health benefits for their human companions, but pets—and even assistance animals—are not granted unfettered access to public places. Many businesses are concerned about high financial penalties for violating anti-discrimination laws. At the same time, access laws have been abused, knowingly and unknowingly. By educating clients about the categories

of support animals and access laws, attorneys can assist entities in ensuring access rights for individuals with disabilities. n Endnotes Therapy animals have no right of access. For a discussion on therapy animals in courtrooms, see the forthcoming July Online Article of the Month at NashvilleBar.org/NashvilleBarJournal. 1

28 C.F.R. § 35.104 (title II); 28 C.F.R. § 36.104 (title III). 2

DOJ, Frequently Asked Questions about Service Animals and the ADA (July 2015). 3

Applicable housing legislation includes Title VIII of the Civil Rights Act of 1968, commonly known as the Fair Housing Act (FHA), FHA Amendments, Section 227 of the Housing and Urban-Recovery Act of 1983, and Section 504 of the Rehabilitation Act of 1973. 4

Commenters encouraged the DOJ to employ the term “assistance animal” instead of “service animal” to align with the industry-preferred term used internationally. The DOJ elected to retain “service animal” in its final regulations since other administrative agencies like HUD use the term “assistance animal” to denote a broader category of animals. 5

Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs, FHEO-2013-01 (Apr. 25, 2013). 6

Id. at 3; see also Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (May 17, 2004). 7

Guidance Concerning Service Animals in Air Transportation, 68 Fed. Reg. 24874, 24877 (May 9, 2003). 8

14 C.F.R. § 382.27(c)(8).

DOT, Traveling by Air with Service Animals Advance Notice of Proposed Rulemaking, DOTOST-2018-0068 (May 16, 2018), available at transportation.gov/briefing-room/dot3618. 10

ELEANOR (ELLIE) WETZEL is a registered therapy dog handler through Pet Partners. She and her dog, Winnie, volunteer at the Children’s Hospital at Vanderbilt, the Davidson County Juvenile Court Foster Care Review Board, and special events. Ellie is an NBA member and serves as co-chair on the Editorial Committee, as well as on the Board of Directors for MusicCityPetPartners.org. She is a Fellow of the Nashville Bar Foundation, and is licensed to practice law in Indiana and Tennessee.

NASHVILLE BAR JOURNAL | JUN/JUL 2018

BILL & PHIL’S GADGET OF THE MONTH

Aibo: The Sony Robotic Dog | Bill Ramsey & Phillip Hampton

As you know, we really love our tech gadgets—but we love our pets, too. If you have ever seen the Bill & Phil Show, you know that we always include something in the presentation that merges these two loves. Pet tech is a real thing. We told you about the Zencrate, an anti-anxiety, Wi-Fi enabled dog house that promises to keep your pooch in a tech-enabled state of Zen, with calming noises and vibration tamping, even during the fiercest of storms. And for those wayward pets who like to escape their master’s leash, we sampled the Kyon Pet Tracker, a fancy collar with a GPS tracker and barking silencer for the dog, and a special smartphone app for the master. And, of course, Bill loves his Litter-Robot III, a self-cleaning smart litter box for his kitties. So, all of this pet tech is wonderful. Wonderful if you actually have a pet, that is. What about the busy professional who lives in an urban environment, works weird hours, and travels a lot? Or an elderly person who physically can’t take care of a pet? Or even someone who has a pet allergy? Can technology supply a “pet experience” for someone who can’t (or won’t) take proper care of a live animal? Sony says yes; we saw it on display at the last Consumer Electronics Show (CES). Sony’s robotic dog, dubbed Aibo, is the perfect “companion” for the busy urbanite who wants to bond with a pet without all of the, uh, pet mess. We saw Aibo up close at CES, and

the first impression is that it looks like a toy, which we guess it is. But once it becomes animated and begins to walk, run, wag its tail, look around, roll over, etc., you start reacting as you would with a real pooch. This “new” robotic dog is actually just a reboot from a model that Sony introduced back in 1999. That early model was probably ahead of its time, and it never really caught on. This new Aibo is a huge improvement, but it remains to be seen if it will be a hit with its $2,000 price tag and $25/month maintenance fee (nobody said robotic pets would be any cheaper than real ones—just more convenient). Sony is clearly hoping its new robot dog will demonstrate its commitment to be a major player in robotics and Artificial Intelligence (AI) technology, which is what gives Aibo its life-like characteristics. Aibo’s movement is more like a real dog due to enhanced robotics. She interacts and “grows” due to AI technology that is continually learning and updating the robot’s database of knowledge (thus the $25/month fee for maintaining your dog’s intelligence in the cloud). For example, Sony says Aibo can learn to recognize the humans who interact with it the most. Aibo has embedded cameras that enable it to navigate around obstacles in your home and to recognize familiar faces. Just like a real dog, Aibo responds to touch (like scratching its head or back). Also, like a real dog, Aibo gets “tired” and needs to rest. Actually, the “tiredness” is brought on by a depleted battery after about two hours of play. But Aibo will cleverly navigate its way back to its charging base when he starts feeling lethargic, and, after “resting” on the charger for a while, he’s ready to play again. The demo we saw at CES actual-

ly involved two robotic dogs; the way they reacted to each other and played together really mimicked the interplay of real dogs pretty convincingly. But, of course—just like real pets—they can be unpredictable, such as when one of the Aibos inexplicably ignored one of the commands from its human master. Was that a misfire or just another typical prank that a real pet might pull? We’re not sure, but we think perhaps it was a misfire due to a spotty internet connection on the crowded exhibit floor. While Aibo is expensive and seems like a far-fetched idea for a pet replacement, we believe this revamped Sony project represents a new era that is growing quickly in tech gadgets—robotics. Aibo demonstrates that it is possible to provide a rewarding companionship experience using robotics and AI. We expect we will see many more robots in the near future that can be used to help entertain/teach children and provide basic care and companionship for the elderly. With any luck, we’ll be able to retire with an army of robot pets and caregivers who can keep us company and provide us comfort well into our golden years. n See you next time,

JUN/JUL 2018 | NASHVILLE BAR JOURNAL

L E T ’ S WO R K T O G E T H E R T O P RO T EC T YO U R C L I E N T S ’ I N T E L L EC T UA L P RO P E R T Y.

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Or i g i n a l Th i n k i n g. U n i q ue P ro t ec t ion.

NBA is your source for cutting edge, quality continuing legal education. We provide more than 600 hours of live and distance learning programming while offering our members discounted rates. For a complete calendar, full seminar agendas, and registration, visit NashvilleBar.org/CLE. MONDAY, J UNE 11 | LIVE SEMINA R

WE D N E S D AY, JU N E 13 | LI V E S EM IN A R

SHORT TERM RENTALS & THE (EVER) CHANGING STATE OF THE LAW IN NASHVILLE

JUVENILE JUSTICE UPDATE & SPECIAL IMMIGRANT JUVENILE STATUS DECODED

OVERVIEW

This program provides an updated summary and analysis of the Metro Council and State Legislature’s continual wrangling over regulations of the fast-emerging and faster-changing Short Term Rental industry.

Immigration questions have been a hot topic these days. Our most recent concern has been the downfall of DACA, but there is another immigration topic affecting youth—Special Immigrant Juvenile Status, also known as SIJS. This seminar is key for practitioners interested in learning more about the juvenile court’s role in the SIJS process. Judge Calloway will also provide a general update on Juvenile Justice initiatives in Metro Nashville and Davidson County. This seminar is produced by the Immigration Law Committee. An hour of CLE credit will be available with the payment of a fee; otherwise, this meeting is free to attend. PRESENTER

PRESENTER

Hon. Sheila Calloway, Juvenile Court Judge

Jon Michael, Metro Codes Department

DETAILS

Registration & Lunch . . . . . . . . . . . . . . . . 11:30am – 12:00pm

Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

COST

NBA Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35

NBA Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 For registration after June 7, add a $10 late fee.

JUN/JUL 2018 | NASHVILLE BAR JOURNAL

F RI DAY, JUNE 2 2 | LIVE SEMINAR

M ON D AY, JU N E 25 | LI V E S E M I N A R

BEST PRACTICES FOR BANKRUPTCY APPEALS

OVERVIEW

Come hear United States Bankruptcy Judge Marian Harrison, who sits on the Bankruptcy Appellate Panel for the 6th Circuit, and two practitioners with significant experience with bankruptcy appeals, Henry E. Hildebrand, III, and Carrie Ann Rohrscheib, discuss strategies regarding the conduct of bankruptcy appeals.

The NBA Intellectual Property Committee and Entertainment, Sports, and Media Law Committee invite you to their joint meeting, featuring a presentation by Regan Smith, Deputy General Counsel of the United States Copyright Office.

OVERVIEW

Lunch will be provided by our sponsors, Manier & Herod and Waller. PRESENTERS Hon. Marian Harrison U.S. Bankruptcy Court, Middle District of Tennessee

Deputy General Counsel Smith will be presenting on current initiatives of the U.S. Copyright Office. The modernization of Copyright Office systems, including those with which stakeholders interact, will be discussed. Additionally, Smith will review recent changes in Copyright Office procedure, such as with termination of transfers and licenses under 17 U.S.C. § 203. A portion of the presentation will include Q+A.

Henry E. Hildebrand, III Standing Chapter 13 Trustee, Middle District of Tennessee

An hour of CLE credit will be available with the payment of a fee; otherwise, this meeting is free to attend.

Registration & Lunch. . . . . . . . . . . . . . . . . 11:30am – 12:00pm

PRESENTER Regan Smith, Deputy General Counsel U.S. Copyright Office

Carrie Ann Rohrscheib, Trial Attorney Office of the U.S. Trustee D E TA I L S Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:30 – 2:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2:00 – 3:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General Location. . . . . . . . . . . . . . . . Bradley, 1600 Division St, Ste 700 COST

COST

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35

NBA Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 For registration after June 21, add a $10 late fee.

NASHVILLE BAR JOURNAL | JUN/JUL 2018

T HURS DAY, J ULY 1 2 | LIVE SEMIN A R

S ATU R D AY, JU LY 21 | LI V E S E M IN A R

CLE FILM FESTIVAL: MARSHALL

DOG DAYS OF SUMMER

OVERVIEW

CLE and “Yappy Hour”

Napier-Looby Bar Association and the Nashville Bar Association Diversity Committee jointly present... Are you looking for a fun way to earn your ethics and professionalism CLE credits? Enjoy a classic movie as you uncover legal ethics and professionalism traps and pitfalls. This seminar features Marshall—a classic legal film that portrays numerous ethics and professionalism issues in attorney practice. Following the film, join your colleagues in a lively discussion of the issues and challenges illustrated in the movie. A reception will follow the discussion.

OVERVIEW In celebration of the dog days of summer, you and your furry friend(s) are invited to a CLE and networking “yappy hour.” Our panel of animal-loving attorneys will discuss animal ordinances, metro codes, state laws, and relevant federal acts; dog injury cases in civil and environmental court; and rights of public access, including Emotional Support Animals on airplanes. This presentation will be given in coordination with the General Sessions Committee—all are welcome to attend—dog treats included! CLE will be available for a fee, or you may attend for free. PRESENTERS Caroline Hudson, Law Offices of John Day, PC Hon. Jim Todd, Hagan & Todd Eleanor Wetzel, Davidson County Criminal Court, Division III D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8:30 – 9:00am

PRESENTERS Hon. Kelvin Jones, Circuit Court Judge Dumaka Shabazz, Assistant Federal Public Defender Federal Public Defender’s Office D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . 12:30 – 1:00pm

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9:00 – 10:00am Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General Location. . . . . . . . . . . . . . . . . . . Shelby Park Riverview Shelter COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:00 – 4:15pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.0 Dual Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA or Napier-Looby Members . . . . . . . . . . . . . . . . . . . . . $69 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $99

Titan Allen & Duchess Owner: Jan Margaret Craig

JUN/JUL 2018 | NASHVILLE BAR JOURNAL

T UE S DAY, J ULY 2 4 | LIVE SEMINAR

TH U R S D AY, JU LY 26 | LI V E S E M I N A R

ETHICS & PROFESSIONALISM CLE VIDEO REPLAY

GHOSTS OF ALABAMA

Earn Up to 7 Hours of Dual Credit in One Day! OVERVIEW Earn up to 7 hours of ethics CLE credit in one day. At this CLE Replay, we will broadcast CLE programs all day at the NBA. Come for as long or as little as you need! Highlights include:

• Each CLE hour is dual credit • Live CLE credits • No late fee • Pay as you watch • Wi-Fi available • Online materials • Coffee and snacks provided

The Trial of Bobby Frank Cherry for the 1963 Bombing of the 16th Street Baptist Church OVERVIEW Napier-Looby Bar Association and the Nashville Bar Association Federal Court Committee jointly present... Join us for a discussion of the trial of the final defendant charged with the 1963 bombing of the Sixteenth Street Baptist Church in Birmingham, Alabama—a pivotal event in the civil rights struggle and the most deadly single act of the entire civil rights era.

AGENDA 9:00 – 10:00am | The Cure for Procrastination 10:00 – 11:00am | Conflicts and Recent Discipline 11:15am – 12:15pm | Ethics, Social Media & YOU! 12:15 – 1:15pm | Ethical Issues for the Mediator & the Mediated 1:30 – 2:30pm | Fighting to stay in the USA: One immigrant’s struggle before the U.S. Supreme Court 2:30 – 3:30pm | Apps for Attorneys 3:45 – 4:45pm | Moving Your Practice Into the Cloud D E TA I L S Details are available online at NashvilleBar.org/CLEReplay. Seminars will be held all day from 9:00am – 4:45pm. Register at any time and pay as you go. COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . $45/CLE Hour Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . $89/CLE Hour

Presenter Don Cochran—current U.S. Attorney for the Middle District of Tennessee and former Assistant U.S. Attorney in Birmingham, Alabama—was one of the prosecutors tasked with bringing Bobby Frank Cherry to justice nearly 39 years after the bombing. An hour of CLE credit will be available with the payment of a fee; otherwise, this meeting is FREE to attend. Please plan to attend our joint Napier-Looby/NBA reception immediately following the program. PRESENTER Donald Q. Cochran U.S. Attorney, Middle District of Tennessee D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2:30 – 3:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3:00 – 4:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General Location. . . . . . . United States District Court, Courtroom A859 COST CLE Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35

NASHVILLE BAR JOURNAL | JUN/JUL 2018

W E DNE S DAY, AUGUST 8 | LIVE SEM I N A R

TH U R S D AY, A U G U S T 9 | LI V E S EM IN A R

ANDREW JACKSON’S BANK WAR

WHAT TO EXPECT AT THE COURTHOUSE

OVERVIEW Daniel Feller, Professor of History and Editor of The Papers of Andrew Jackson at the University of Tennessee, explores the keystone controversy of Jackson’s presidency—his sustained attack on the Bank of the United States. Created in 1816, the Bank was the federal government’s official financial agent, endowed by its congressional charter with exclusive powers and privileges. But it was also a privately controlled, profit-making, dividend-paying corporation, which wielded its clout to serve political ends including perpetuating its own existence. Jackson’s war against the Bank challenged the place of great financial institutions in a democracy, provoked the organization of national political parties, redefined the presidential office, and prompted the Senate to officially censure a president for the first and so far only time in our history.

Civil Circuit Judges and Chancellors Share Their Views, Tips, and Insight from the Bench OVERVIEW This seminar—co-sponsored and supported by the NBA YLD Division—will focus on courtroom practice and is intended to instruct those who are young lawyers (in practice 5 years or less) or are new to practice in Davidson County state court. Civil court judges and chancellors from the Davidson County Circuit and Chancery Courts will focus on courtroom practice. Questions from attendees will be encouraged. PRESENTERS See full list of participating Davidson County Chancellors and Judges online at NashvilleBar.org/YLDCLE.

This program will take place at a meeting of the NBA Historical Committee. You are welcome to arrive at 11:30am and bring your lunch to eat before the program. This meeting is free; CLE credit will be available for a fee. PRESENTER Daniel Feller, Professor of History & Editor of The Papers of Andrew Jackson University of Tennessee D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 Dual Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89

D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8:30 – 9:00am Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9:00am – 4:50pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.0 General Location. . . . . . . . . Jury Assembly Room, Historic Courthouse COST NBA Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $275 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $549 Young Lawyer & YLD Member . . . . . . . . . . . . . . . . . . . . . . $30 Young Lawyer & Non-YLD Member. . . . . . . . . . . . . . . . . . $60 For registration after August 7, add a $10 late fee.

JUN/JUL 2018 | NASHVILLE BAR JOURNAL

F RI DAY, AUGUST 1 0 | LIVE SEMINAR

TH U R S D AY, A U G U S T 23 | LI V E S E M IN A R

GOVERNMENT PRACTICE INSTITUTE

THE ETHICAL ISSUES IN REPRESENTING BANDS

OVERVIEW The NBA Government Practice CLE seminars are scheduled for Friday, August 10, and Friday, December 14. Each program will offer 6 hours of CLE credit, with the December program offering 3 hours of dual (ethics) credit. Register for both programs and save $125 off the cost of admission. Topics for the August seminar include: legal issues impacting local government; gun law; education; legislative update; and more. The full agenda is available at NashvilleBar.org/GovernmentCLE.

OVERVIEW The NBA Entertainment, Sports & Media Law Committee presents... Rock ‘n’ Roll Ethics: A Case Study of The Beatles. This ethics CLE focuses on the unique issues faced when representing an organization. As a former General Counsel bringing his first-hand experience in this area, presenter Jim Jesse uses the final few years of The Beatles as a case study to highlight ethical issues faced when providing legal representation to a band or artist. Specific emphasis is placed on the Model Rules of Professional Conduct 1.7 (Conflict of Interest—Current Client); 1.13 (Organization as a Client); 1.14 (Client with Diminished Capacity); and 2.1 (Role as Advocate). Further, we review the ethical issues in the “My Sweet Lord” copyright infringement case. PRESENTER Jim Jesse, CEO/Founder Rock ‘n’ Roll Law and Law Office of Jim Jesse

PRESENTERS A full list of presenters is available online at NashvilleBar.org/GovernmentCLE.

D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 2:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.0 Dual

D E TA I L S

Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

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Editorial |

Lauren M. Poole

An Overview of the CFPB: Past, Present, and Future According to its Twitter bio, the Consumer Financial Protection Bureau’s (CFPB) mission statement is “Making markets for consumer financial products and services work for Americans.”1 This statement is supported by various tweets with bright illustrations regarding help and information on home buying, emergency savings tips, and tax refund season. Hashtags like #mortgage #creditscore #fraud #scams are sprinkled down its news feed. This seemingly bright resource for consumers is in stark contrast to the darkness and drama currently encircling the CFPB. The CFPB was first shoved into the limelight with the departure of Richard Cordray, who served as the CFPB’s first director from 2013 to 2017. Cordray’s replacement—Mick Mulvaney—has stepped in and become a lightning rod for controversy. In recent headlines, Mulvaney was criticized for stripping the CFPB of its regulatory powers and “pay to play” comments regarding lobbyist donors.2 However, his comments regarding the CFPB began several years prior to his taking the top spot as director. In a 2014 interview, he infamously called the organization a “sick, sad joke.” As Mulvaney is accused of “gutting” the organization by cutting the

budget and reducing its enforcement “teeth,” we look at how the CFPB was created and why it is being challenged. The Past. . . An Independent Agency The CFPB was established in 2011 as part of the 2010 Dodd-Frank Act. Senator Elizabeth Warren, a professor at the time, is credited with creating the CFPB out of “concern” over failing federal enforcement of consumer protection statutes.3 The proposed structure was an independent agency—beyond the reach of the White House or Congress—similar to the Securities and Exchange Commission and the Federal Reserve Board, headed by a multi-member commission. However, while the agency was eventually created to operate as an independent commission, it is not run by several members. Today, at the helm of the CFPB is a single director which the U.S. Court of Appeals for the DC Circuit describes as, “the single most powerful official in the entire U.S. Government, other than the President.”4 For example, the CFPB budget is submitted directly to the Federal Reserve, bypassing Con(continued on page 26)

JUN/JUL 2018 | NASHVILLE BAR JOURNAL

Editorial |

An Overview of the CFPB (continued from page 25)

gress’s purse. Mulvaney’s recent budget request to the Federal Reserve for second quarter of 2018 was zero dollars, adding more fuel to the dismantling fire. Mulvaney will instead draw on the CFPB’s $177 million reserve to fund the estimated $145 million budget for the second quarter.5 For what equates to a consumer finance power vacuum, it is not surprising that the CFPB and its structure have received widespread criticism and constitutional challenges.6

Sir “Charlie” Bone Apart Owner: Lauren M. Poole

The Present. . . Constitutionality Challenges Since its formation, the structure of the CFPB has been plagued with controversy. However, its challenges have come to a head in recent months. In February 2018, it was reported that the CFPB was restructuring its Office of Fair Lending and Equal Opportunity, stripping it of its enforcement and supervisory role. This action prompted 53 Democratic members of Congress to sign a letter to Mulvaney—and then

acting Director Leandra English—demanding answers.7 The move to restructure and strip enforcement came in the wake of reports that Mulvaney had not undertaken any new enforcement actions since he began as interim director in November 2017.8 Prior to Mulvaney, the CFPB was very active in enforcement of its directives. Since its founding, the CFPB has recovered approximately $12 billion in relief for consumers.9 Valuation, litigation, forensic and mediation support services require an independent and objective assessment. Price CPAs has assisted in cases involving these services. THESE SERVICES ARE LED BY THESE SERVICES INCLUDE: THE FOLLOWING PROFESSIONALS: • Minority shareholder disputes • Valuations • Tom Price, CPA/ABV/CFF, CVA • Wrongful Death/Personal Injury • Alan Webb, CPA • Divorce (equitable distribution) • Mark Fly, CPA, ABV • Comingling & Transmutation • Brett Henry, CPA, MBA • Business damage assessment • Gary Pounders, CPA, CFE and determination • Solvency analysis and fraudulent conveyance CONTACT US TODAY TO DISCUSS HOW WE MIGHT BE OF SERVICE TO YOU. • Litigation consulting services. 3825 BEDFORD AVE | STE 202 | NASHVILLE, TN 37215 615.385.0686 | w w w. p r i c e c p a s . c o m

Several companies have faced multi-million dollar payouts as a result of CFPB enforcement. In 2014, Bank of America was ordered to pay $727 million in consumer relief for illegal credit card practices with a hefty $20 million fine in civil penalties to the CFPB. That same year, the CFPB brought charges against PHH Corporation. PHH, a mortgage lender, was participating in captive reinsurance arrangements and charged for allegedly receiving kickbacks in violation of the Real Estate Settlement Procedures Act (RESPA). In 2015, the CFPB ruled against PHH, and PHH was ordered to disgorge $109 million.10 PHH appealed to the DC Circuit Court, alleging, among other things, that the CFPB’s structure and powers violate Article II of the Constitution. In January 2018, the U.S. Court of Appeals for the DC Circuit, en banc voted 7-3, holding the CFPB is a constitutional “independent” agency, and its director may only be removed for cause. This decision overturned a 2016 ruling which held the CFPB’s single-director structure was unconstitutional because of the immense power vested in one individual. The court, in an attempt to balance the director’s power, ruled that the director could be removed at-will by the President.11 However, under the January 2018 ruling, it appears that Mulvaney will enjoy job security in an environment that resembles a revolving door. The Future. . . Where does the CFPB go from here? The January 2018 Federal Circuit ruling is not the end to CFPB constitutionality challenges. As recently as (continued on page 28)

NASHVILLE BAR JOURNAL | JUN/JUL 2018

LEGISLATIVE COLUMN

Capitol Notes | Peggy Sue, the Beagle Hound

—Put out the fire and call the dogs in; this hunt is over. 2018 Legislative Session Recap The 2018 legislative session ended late in the evening of April 25, and the two bodies were so irritated with each other, they had a hard time adjourning. Neither house concurred in the other body’s adjournment resolution, but the usually reliable legislative website reports that the 110th General Assembly adjourned on April 25, 2018, sine die, that is without a day to return. The 111th General Assembly will convene on January 8, 2019. Here are the top five enactments from the 2018 session: 1. Balanced Budget (SB 2552 / HB 2644) This is the only bill the General Assembly must pass to keep the dogs fed for state government. The bill authorizes the expenditure of a total of $37.5 billion for the fiscal year that runs from July 1 of this year through June 30, 2019. The number includes $17.8 billion in state revenues—primarily from the state sales tax—with the remainder mostly from federal funds and some other revenues such as state college tuition

and departmental fees. 2. University of Tennessee Board of Trustees (Chap. 657) This bill reduces the size of the board from 27 to 12. The new board has the commissioner of agriculture as an ex officio voting member, 10 voting members appointed by the governor and confirmed by the House and the Senate, and one non-voting student member. The bill was not without controversy, even though it was based on the best practices of the National Association of Governing Boards. You may recall that the House version of this Haslam Administration initiative (HB 2115) passed on the House floor with 51 votes—one above the bare minimum and only two of which were cast by Democrats, Raumesh Akbari and John DeBerry, both of Memphis. 3. Opioid Prescription Limits (SB 2257 / HB 1831) With five Tennesseans dying each day last year from the opioid epidemic, Governor Haslam and the General Assembly had to respond. This legislation brings a new term to the law in “opioid naïve” and a five-day supply limit. The bill also includes a 30-day supply limit for an acute care patient.

4. Small Cell Towers (Chap. 819) For most of us, the most powerful computer is the one in our own pocket or hands. All that computer horsepower takes a significant amount of network capacity to handle the work usage, the social media posts, and the inevitable dog videos. Chapter 819 reflects the efforts of the telecommunications industry to expedite the build out process for new small cell infrastructure. The statute imposes a shot clock on a local government in its time to approve an application to site a new facility and restricts the amount of fees that may be imposed on an applicant for the siting of new infrastructure. 5. Sunday Sales of Wine and Spirits (Chap 783) Part of the compromise that led to the passage in 2014 of wine in retail food stores is a prohibition on Sunday sales. The General Assembly revisited that issue in 2018, and now permits retail package stores to be open for business on Sundays between 10:00am and 11:00pm. Effective January 1, 2019, retail food stores may sell wine on Sundays between 10:00am and 11:00pm, as well. Wine and spirit sales will be prohibited for all vendors on Thanksgiving, Christmas, and Easter. 2018 Elections Elections should be on your mind and on your calendar for 2018. Thursday, August 2, will see the general election for the local races and the primary election for state and federal offices. All state house seats will be up, as will the odd numbered state senate seats. (In Davidson County, the open state house seats are District 54 where Brenda Gilmore is seeking the Senate District (continued on page 28)

JUN/JUL 2018 | NASHVILLE BAR JOURNAL

LEGISLATIVE COLUMN

Capitol Notes | Peggy Sue, the Beagle Hound 19 seat, District 56 where Speaker Beth Harwell is seeking the Governor’s office, and District 59 where Sherry Jones has decided not to seek reelection. The state senate seats are District 19 where Senator Thelma Harper is not seeking reelection, and District 21 where Attorney Jeff Yarbro is the incumbent and is unopposed.) August 2 is also the primary election for Governor, US Senate, and all US House seats. The early voting period for the August 2 election begins July 13. Tuesday, November 6, will see the general election for the state and federal offices. Checklist for June and July 1. Send a note to your state lawmakers thanking them for their service. Like lawyering, lawmaking is hard. 2. You may use the website GoVoteTN. com to register to vote or to update your registration online. 3. Last day to register to vote for the August election is July 3. 4. Mark your calendar for the NBA’s Happy Hour and Sounds Game on July 17, and the Dog Days of Summer CLE and “Yappy Hour” on July 21.

(continued from page 27)

Editorial | An Overview of the CFPB (continued from page 26) April 24, 2018, the Fifth Circuit Court of Appeals confirmed it will hear an interlocutory appeal by All American Check Cashing (All American), a defendant in a CFPB complaint filed in 2016. The complaint alleges All American engaged in abusive, deceptive, and unfair conduct in making payday loans—including failing to refund overpayments on the loans and cashing consumers’ checks.12 It is unknown how the court’s ruling will impact All American under the “frozen” CFPB enforcement. As the conflict does not seem to be winding down nor decisions finalized, the future shape of the CFPB is not certain. To date, the January 2018 PHH ruling has not been appealed to the Supreme Court. For now, Mulvaney cannot be removed at-will by the President, and the CFPB’s structure will continue as it was at its creation over seven years ago. However, it does not look like the old CFPB watchdog will be showing its teeth again anytime soon. n Endnotes ©CFPB, Twitter (May 7, 2018, 4:13), Twitter. com/CFPB. 1

Calendar Notes Father’s Day is Sunday, June 17. State and NBA offices will be closed Wednesday, July 4, for the Independence Day holiday. n PEGGY SUE is fond of the classic 1957 Buddy Holly song. When hunting legislative news or biscuits, she is hard to contact. She is also grateful for the Nashville Bar Journal’s recognition of the Dog Days of Summer in this issue. Reminds us, every dog has her day.

Diana Hembree, Mulvaney Is on the Hot Seat For His Stunning ‘Pay To Play’ Remarks, Forbes, (Apr. 26, 2018), Forbes.com/ sites/dianahembree/2018/04/26/cfpbs-mulvaney-is-on-the-hot-seat-for-his-pay-to-playremark/#5a89e9504417. See also Mick Mulvaney: I’m not “gutting” CFPB, USA Today (Feb. 13, 2018), USAtoday.com/story/opinion/2018/02/13/mick-mulvaney-changing-cfpb-editorials-debates/110383654. 2

PHH Corp., et al. v. Consumer Fin. Protection Bureau, No. 15-1177 (D.C. Cir. Oct. 2016). 3

Id. slip op. at 27.

Megan Leonhardt, Washington’s New Consumer Cop Is Gutting His Own Agency. Here’s Why You Should Care, Money Magazine, (Feb. 5

NASHVILLE BAR JOURNAL | JUN/JUL 2018

2, 2018), Time.com/money/5129645/mick-mulvaney-cfpb-agency. Wilhelm, Colin & Josh Gerstein, Court upholds constitutionality of Consumer Financial Protection Bureau, Politico (Jan. 31, 2018), Politico. com/story/2018/01/31/consumer-financial-protection-bureau-court-ruling-380226. 6

See Letter from Sherrod Brown, et al. to Leandra English & Mick Mulvaney (Feb. 16, 2018), Democrats-financialservices.house.gov/ uploadedfiles/cfpb_fair_lending_bicameral_letter_-_final.pdf. 7

Emily Stewart, The government’s top consumer watchdog hasn’t taken a single enforcement action since Trump’s pick took over, Vox (Apr. 10, 2018), Vox.com/policy-and-politics/2018/4/10/17218774/mick-mulvaney-cfpb-consumer-wells-fargo-equifax. 8

Id.

Iain Murray, Case of Mortage Lender PHH Corp. Highlights CFPB’s Unconstitutional Abuses, CEI (Nov. 30, 2017), CEI.org/blog/ case-mortgage-lender-phh-corp-highlights-cfpbs-unconstitutional-abuses. 10

Judges rule CFPB independent, structure constitutional, NASCUS, (Jan. 31, 2018), Nascus.org/stories/2018/01-31-18%20Judges%20 rule%20CFPB%20structure%20constitutional. php. 11

Barbara S. Mishkin, Circuit agrees to hear challenge to CFPB’s constitutionality, Ballard Spahr LLP (Apr. 26, 2018), ConsumerFinanceMonitor. com/2018/04/26/fifth-circuit-agrees-to-hear-challenge-to-cfpbs-constitutionality (citing Alan S. Kaplinsky & Theodore R. Flo, CFPB Sues All American Check Cashing, Ballard Spahr LLP, (May 17, 2016)). 12

LAUREN M. POOLE is an Associate Attorney at Taylor, Pigue, Marchetti & Blair, PLLC in Nashville where she practices civil litigation, including bankruptcy and creditors’ rights. Lauren earned a B.A. in Political Science and a B.A. in Studio Art from the University of Tennessee, Knoxville. She earned her J.D. from Belmont University College of Law in 2016. She is an NBA member and serves on the Editorial Committee for the Nashville Bar Journal. Lauren is also passionate about supporting the arts and currently serves on the Board of Turnip Green Creative Reuse.

Editorial |

Robert D. Martin

Puppy Warranties and Lemon Laws: Tightening the Leash on Breeders and Retail Pet Stores As Nashville becomes more of a dog city, the demand for purebred and so-called “designer” dogs has grown. Opting for the predictability that can come from an intentionally bred dog, Nashvillians have filled their homes with Golden Retrievers, German Shepards, Puggles, Cockapoos, Labradoodles, Goldendoodles, Ausiedoodles, and any other number of doodles in recent years. As the demand for purebreds has grown, so too have the presence of breeders and specialty retail pet stores. Since breeding purebreds often involves inbreeding (defined as the mating of closely related dogs), purebreds can be at an increased risk for genetic defects or hereditary disorders. The price tags of purebred dogs can stretch into the thousands of dollars. With the risk of illness and disorders among these pets, it is not uncommon for consumers to pay $2,000 for an eight-week-old puppy, only to be confronted with massive medical bills weeks later after learning about an undisclosed birth defect in the dog. The cost-benefit analysis of high vet bills has always presented a dilemma to pet owners, but people today seem to be more prone to treat pets as family members, choosing to bite the bullet on expensive medical

bills rather than euthanizing sick, but curable, dogs. As difficult as it may be for some consumers to justify $10,000 surgery bills for a young dog, the idea of retaining and paying a lawyer thousands of dollars to sue a breeder or retailer seems like financial overkill. With no guaranty for recovery of attorneys’ fees, lawyers might not be inclined to take a pet-warranty or negligent breeding case on a contingency basis. On the same note, consumers who are able to shell out thousands of dollars for a dog may not fit the profile of a traditional pro bono client either. The “to retain or not to retain” dilemma is exacerbated by the lack of guiding law on the subject in Tennessee. Animals are typically treated as goods under the UCC, and so the UCC’s sections on implied warranties could theoretically apply to domestic pets.1 But the applicability of these warranties to household pets has not been tested in Tennessee’s appellate courts, which is probably attributable to the high cost of litigation as compared to the relatively low recovery potential. To throwback to 1L Contracts class, these warranties provide that goods sold are implied to be fit for the or(continued on page 30)

JUN/JUL 2018 | NASHVILLE BAR JOURNAL

Editorial |

Puppy Warranties and Lemon Laws (continued from page 29)

dinary purpose for which the type of goods are traditionally used. These common-sense sounding warranties provide plenty of fodder for creative lawyers to craft convincing arguments about what the “ordinary purpose” of a companion animal is. Would a dog traditionally bred for hunting be defective under the warranties if he had no sense of smell? What if he was just lazy and had no interest in hunting? Regardless of a dog’s ability or interest in performing activities specific to its particular breed, most buyers purchase their dogs with expectation that the dog will not die shortly after arriving home (we have different expectations for goldfish). Twenty-two states have adopted “lemon laws” for new pets that require sellers to provide at least some guaranty for the puppies they sell. For instance, in Arkansas, if a veterinarian determines a dog is “unfit” because of a disease or defect within 10 days from purchase, the consumer has the right to be reimbursed for the reasonable costs associated with curing or attempting to cure the illness (capped at the purchase price of the animal).2 Florida’s version of this law is a little more sweeping: consumers have up to a year for a vet to identify a congenital or hereditary disorder in their new pet, and if one is discovered, consumers may either return a dog for a full refund (including taxes) and reimbursement of vet expenses, exchange the dog for a new dog and still be reimbursed for vet expenses, or keep the dog and receive reimbursement for reasonable vet expenses to treat or cure the dog (up to the purchase price of the animal).3 Tennessee, for better or worse, does not have a pet lemon law. In

Sam Tarley Owner: Rob Martin

2017, State Representative Pat Marsh (R-Shelbyville) and State Senator Becky Duncan Massey (R-Knoxville) proposed a version of a pet Lemon Law, the “Tennessee Retail Pet Store Protection Act,”4 but the bill failed in the Senate. Tennessee used to have a law regulating breeding in an attempt to combat so-called puppy mills, but the “Commercial Breeder Act” sunset in 2014.5 Despite the absence of such a law, several retailers and breeders have started issuing express warranties for their puppies. One Nashville breeder provides a two-year written health guaranty against life altering genetic disorders. The more common express warranty among breeders is to prescribe a short amount of time for the consumer to have his or her new pet examined by a vet, and if the vet determines the animal has a major health defect, the consumer may return the dog for a refund or exchange it for a new dog. But given the emotional attachment people tend to have with their pets, these remedies can seem insufficient.6

NASHVILLE BAR JOURNAL | JUN/JUL 2018

In short, Tennessee law does not provide a clear path for new pet owners who are unwittingly sold a dog with major birth defects. As purebreds and designer dogs become more and more common, these issues will eventually need to be litigated, but the cost of litigation serves as a major barrier to resolving these issues in court. The General Assembly could also help by providing clear guidance for breeders and pet retailers as to what information or warranties they must provide their customers. n Endnotes Tenn. Code Ann. §§ 47-2-314 and 315 are the sections of the Tennessee UCC providing for Implied Warranties of Merchantability and Fitness for a Particular Purpose. 1

Ark. Code Ann. § 4-97-101.

Fla. Stat. Ann. § 828.29.

HB0568/SB0519, 110th Leg, 1st Session (Tenn. 2017). 4

Tenn. Code Ann. § 44-17-701 (expired June 30, 2014). 5

Tennessee does have loss of companionship statute, which provides that if a person’s pet is killed or sustains serious injuries that result in death caused by the acts of another, the aggrieved owner may be awarded up to $5,000 in noneconomic damages for loss of companionship, love, and affection. Tenn. Code Ann. § 44-17-403. However, this statute has never been applied against a breeder or pet retailer. 6

ROBERT D. MARTIN is an attorney at Meridian Law, PLLC, where he practices in general civil litigation defense. He has a very large, sweet, and fluffy dog named Sam (see inset photo). Please note that this article was researched and written out of purely academic curiosity of warranty issues arising from the sale of purebred puppies, and should not be taken as an endorsement for selective breeding or puppy mills.

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Kelley Pruett

Cheryl L. Cheffins

Richard C. Jones

Lindsey Shepard

Christopher J. Climo

Bobbie J. Lamar

Mason Rollins

Brittany Dunbar

Gregory D. Sweeney

John D. Slater

Christopher Ryan Eads

Jenna Macnair

Paul Swiney

Julie R. Fine

Elise H. McKelvey

Adam York

Joseph Fuson

Patrick D. McMurtray

VOLUNTEER FOR DIAL-A-LAWYER Dial-A-Lawyer is held the first Tuesday of each month from 6:00 â&#x20AC;&#x201C; 8:00pm, and the public is invited to call in with basic legal questions. If you would like to volunteer and help the NBA support this program, please contact our LRIS Coordinator at Wendy.Cozby@nashvillebar.org. Pro Bono credit applies, and a complimentary dinner is provided.

Thank you to our April & May volunteers!

CHRIS HUGAN ANDREW KAUFMAN TOM LAWLESS DOUG PIERCE JOE RUSNAK KIM THOMPSON

JUN/JUL 2018 | NASHVILLE BAR JOURNAL

VISIT NASHVILLEBAR.ORG/PHOTOGALLERY FOR MORE!

Spring 2018 Highlights

NBA Happy Hour | Woolworth on 5th (below)

YLD Happy Hour | Martinâ&#x20AC;&#x2122;s Bar-B-Que Joint (above)

Law Day Lunch | Downtown Renaissance Hotel (left, below)

NASHVILLE BAR JOURNAL | JUN/JUL 2018

#TEAM NBA

The NBA Family of Dogs, Cats, Cows, and a Frog

Princess Roosevelt “Rosie” Owner: Callie Hinson

Boudreaux Owner: Monica Mackie

Isabelle “Izzy” Owner: Kelly Frey

Mama Kathy (left) & Baby Lola (center) Owner: Bill Ramsey

Nala Paisley (above) & Dempsey Franklin (right) Owner: Jill Presley

Dufresne & Spooky Owner: Wendy Cozby

JUN/JUL 2018 | NASHVILLE BAR JOURNAL

Hearsay | Honors & Awards, On the Move, Firm News HONORS & AWARDS Judge Richard Dinkins and Judge Thomas Wiseman, Jr. received the third annual Francis S. Guess Bridge to Equality Award by The Community Foundation of Middle Tennessee. Judge Wiseman served as presiding judge in the long-running Metro schools desegregation case, and retired in 2013 as a U.S. District Court judge. Judge Dinkins represented the plaintiffs in Nashville’s school desegregation case, and has served as a judge in the Tennessee Court of Appeals since 2008. Tucker Herndon was named Burr & Forman’s managing partner in its Nashville office. Herndon is a partner at the firm and a member of the firm’s Lending Practice Group. His practice focuses on commercial lending, creditors’ rights, regulatory compliance, and the beverage industry. E. Berry Holt, partner at Bradley, has been inducted into the Seton Society of St. Thomas Health of Tennessee, which recognizes professional excellence. Holt is a member of the Health Practice Group and has devoted his practice to a wide range of healthcare provider and other business matters.

Carla Lovell, member of Sherrard Roe Voigt & Harbison, has been elected to membership as a Fellow of the American College of Trust and Estate Counsel, an organization of lawyers and law professors elected by their peers in recognition of having made outstanding contributions to the practice of trust and estate law. Lovell advises clients with regard to their tax and estate planning, charitable planning, and business succession. She is a Fellow of the Nashville Bar Foundation and a volunteer for the NBA pro bono program. Chris Mayfield, assistant vice president of development for HCA Inc., was awarded Pro Bono Volunteer of the Year by the Legal Aid Society. Over the last two years, Mayfield has advised more than 50 Legal Aid Society clients facing eviction, debt collection, and employment challenges. He has taken part in Legal Aid Society’s legal help clinics in partnership with Metro Nashville Public Schools, serving immigrant and refugee families, and he has worked with elderly Middle Tennesseans to prepare wills, advance care directives, and powers of attorney. Patricia Head Moskal was selected as Lawyers’ Association for Women’s recipient of the 2018 Judge Martha Craig Daughtery Award. Moskal is a partner at Bradley and a member of the firm’s Litigation Practice Group. She has 30

NASHVILLE BAR JOURNAL | JUN/JUL 2018

years of experience as a trial and appellate lawyer and is a past president and former treasurer of LAW’s Marion Griffin Chapter. Zac Oswald has been promoted to managing attorney of the Gallatin office for the Legal Aid Society. Oswald joined Legal Aid Society in 2014, as a University of Miami Legal Corps Fellow, and has served as a staff attorney at Nashville office, where he practiced housing and consumer law. Oswald received the Tennessee Alliance for Legal Service’s 2016 New Advocate of the Year award. On May 4, the local legal community came together to celebrate the power and importance of the rule of law at the NBA’s Annual Law Day Lunch. Honored at this year’s celebration were retired prosecutor Tom Thurman who received the Jack Norman, Sr. Award, and Liberty Bell Award winners David Esquivel and Dean Bill Koch. Former mayor Bill Purcell gave the keynote address. DarKenya W. Waller was recently named new executive director of Legal Aid Society. Waller, who previously served as managing attorney of the firm’s Nashville office, replaces Gary

Hearsay | Honors & Awards, On the Move, Firm News Housepian, who served as executive director for the last decade. Waller joined Legal Aid Society in 2008 as a staff attorney and was named managing attorney of the Nashville office in 2010. Specializing in family law, she works primarily with victims of domestic violence, focusing on securing their safety and independence. Waller is a member of several nonprofit boards, including the Nashville Coalition Against Domestic Violence, where she is the board chair. Tyler Chance Yarbro has been named managing partner of Dodson Parker Behm & Capparella, PC. Yarbro represents businesses and individuals in employment matters and her litigation practice includes personal injury, criminal, and probate matters. She joined the firm in 2011, from the Metropolitan Nashville Public Defender’s Office. In 2017, she was appointed by the Metro Council to the Greenways and Open Space Commission. The Tennessee Supreme Court has named her an “Attorney for Justice,” every year since 2014, signifying that she has devoted at least 50 hours a year to pro bono legal work. ON THE MOVE Josh Ehrenfeld has been named as a member of the executive committee of Burr & Forman. The firm’s executive committee brings together leaders with-

in the firm from various practice areas and office locations to represent the firm as a whole across its footprint. Ehrenfeld is a member of the firm’s Corporate and Tax Practice Group with a focus on domestic and international taxation, mergers and acquisitions, venture capital, early-stage and start-up companies, private equity and corporate finance. He advises clients worldwide on a range of domestic and cross-border transactional and business-related issues. Bernie Graves joined Baker Donelson as Of Counsel and concentrates his practice in intellectual property law with a particular focus on patent portfolio creation and trade secret protection. Graves previously served as vice president and deputy general counsel for Eastman Chemical Company. He is a chemical and material sciences patent attorney, with an emphasis on identification and protection of intellectual property rights in the manufacturing sector. two years with the Honorable Richard H. Dinkins on the Tennessee Court of Appeals. Justin Hayden joined Pinnacle Financial Partners’ legal team. Before joining Pinnacle, Hayden was a partner with the law offices of Smythe Huff & Hayden, P.C., where his practice was focused in the areas of creditors’ rights, banking and financial services, construction and creditor litigation, collections, and representation of creditors in bankruptcy proceedings, among other areas.

Robert Kouchoukos has joined Dickinson Wright, PLLC’s as Of Counsel. Kouchoukos represents creative individuals, sports, entertainment, and media companies. He previously served as an in-house music and video content production and licensing counsel at Sony Interactive Entertainment. FIRM NEWS Littler, a national employment law firm, has grown its Nashville office. Eric Cook joins from the firm’s Los Angeles office. He provides guidance and litigation defense to employers on a variety of issues including discrimination and harassment, retaliation, and wrongful terminations. Elise Hofer McKelvey joins from the firm’s Charlotte office. She counsels clients on employment matters including discrimination, retaliation, hiring practices, and contract disputes. Levy Leatherman, a new addition to the firm, defends clients against claims made under Title VII of the Civil Rights Act, the ADA, the FMLA, the Age Discrimination in Employment Act and the FLSA. Legal Aid Society of Middle Tennessee and the Cumberlands has relocated its Nashville office to 1321 Murfreesboro Pike, Ste 400, Nashville, TN 37217.

JUN/JUL 2018 | NASHVILLE BAR JOURNAL

The Affinity Program EXCLUSIVE MEMBER SAVINGS ON LOCAL PRODUCTS & SERVICES!

The Affinity Program is a partnership between the NBA and local businesses that fosters a mutually beneficial relationship between the NBA, its members, and participating local businesses. In order to take advantage of these member benefits, present your NBA membership card to the business. Don’t have a membership card? Email Mariel.Zelhart@nashvillebar.org and she will send one your way!

Save 10% on case management software, private cloud solutions, and fully managed solutions portfolios.

Save 20% off all menu items. Alcohol excluded. Cannot combine with other offers. (Downtown)

Receive 10% off a purchase of $30 or more. Promotional value valid on food and beverages. Minimum purchase of $30 is required, before tax and gratuity. Available at both the Nashville and Brentwood locations. (Midtown & Brentwood)

Receive a complimentary dessert with the purchase of an entrée. (12 South)

Receive a 25% discount on three books: Day on Torts: Leading Cases in Tennessee Tort Law (3rd edition & 2016 Supplement), Tennessee Law of Civil Trial (2014), and Tennessee Tort Reform Statutes and Related Case Law (2008-2016). (Green Hills)

Receive 10% off of your lunch or dinner order. Excludes alcohol. (Midtown)

Receive 15% off all services offered. (Brentwood) Receive 10% off all corporate bulk orders. To redeem, call Batch at 615-931-3912. (Germantown)

Receive 10% off resume services. (Green Hills)

Receive 15% off any purchase at the Goo Goo Shop and Dessert Bar. (Downtown/SoBro) Sign up for a complimentary Brooks Brothers Corporate Membership Card online at BrooksBrothers.com. As a Brooks Brothers Corporate Member, you will receive an everyday 15% savings on full priced merchandise at Brooks Brothers stores, by phone, and online at BrooksBrothers.com. (Midtown & Brentwood)

Receive 20% off all services offered. (Green Hills)

NASHVILLE BAR JOURNAL | JUN/JUL 2018

Get to and from select NBA events with ease thanks to our ridesharing partner, Lyft! If you’re new to Lyft, visit lyft.com/i/nba2017 and you’ll get up to $10 each of your first 5 rides. Already have Lyft? Save 10% off two rides to/ from select events with the code provided to you in event promotions at NashvilleBar.org. (Nashville)

The Affinity Program

Present membership card for 10% off food and beverages (excludes alcohol), private dining room fee waived for groups of eight or more, and/or Complimentary prosecco toast. (Downtown)

Save 20% off on all orders. (Germantown)

Receive 10% off all purchases. (Downtown)

Save 50% off the current initiation fee ($250 instead of the current $500) along with a $100 food and beverage credit on a new membership account. (Downtown)

Get Happy Hour wines by the glass during any visit. (Sylvan Park)

Save 10% off any adult enrichment classes. Members will receive a special code for use at online checkout or mention over-the-phone/in person when registering for a class. (Sylvan Park)

Receive 10% off Pilates equipment, classes, and class packages. Not applicable on membership or unlimited packages. (Melrose)

Enjoy 10% off all food and products. Excluding alcohol, tobacco, and art. (Downtown/SoBro)

All members will receive employee pricing on new and pre-owned vehicles (excludes limited edition vehicles), 10% discount on service and parts at both locations, personal service advisor assigned to member, free oil and filter change on first visit. (Mt. Juliet)

Receive 10% off all repairs up to $250 ($25 flat rate above $250) and 25% off all accessories (does not include UBIF temporary glass). Discounts do not apply to professional services such as data recovery and backup disk copy. (Green Hills)

Receive 10% off application fee. (Nashville)

POLISHED First-time clients receive a free haircut with any color service; $5 off blowout services. (Green Hills)

Receive either a FREE appraisal or FREE home warranty option (value up to $500). Call us when you’re ready at 615-557-4650.

Save 10% on all coaching packages. (Nashville)

Receive a 10% discount on a subscription to The Sewanee Review, America’s longest-running literary quarterly, containing the best fiction, poetry, and essays being written in America today!

ProFlowers offers a wide assortment of floral arrangements, plants, and gifts for any occasion. Receive 15% off your order using the discount code: BLUEGOLD15. Visit our website at ProFlowers.com today.

Receive either a FREE appraisal or FREE home warranty option (value up to $500). Call us when you’re ready at 615-557-4650.

JUN/JUL 2018 | NASHVILLE BAR JOURNAL

Thank you for supporting your local bar association!

The Nashville Bar Association 100% Club is a special category of membership that demonstrates a commitment to the legal profession and our community from legal organizations with more than three attorneys that have 100% of their Nashville attorneys as members of the NBA. To become part of NBAâ&#x20AC;&#x2122;s 100% Club, contact Vicki.Shoulders@nashvillebar.org and support your local bar association today!

Aaron | Sanders, PLLC (3)

Andrews & Ghanem, PLLC (7)

Reid Leitner Law Group, PLLC (3)

Anderson & Reynolds, PLC (3)

Kinnard, Clayton & Beveridge (5)

Riggs Davie, PLC (3)

Baker Donelson (104)

Larry R. Williams, PLLC (3)

Riley, Warnock & Jacobson, PLC (17)

Bone McAllester Norton, PLLC (37)

Latitude (3)

Bradley (135)

Law Offices of John Day, PC (7)

Branstetter, Stranch & Jennings, PLLC (16)

Leader, Bulso & Nolan, PLC (7)

Brewer, Krause, Brooks & Chastain, PLLC (14)

Rogers, Kamm & Shea (7) Rudy Winstead Turner, PLLC (5) Shackelford, Bowen,

Leitner, Williams, Dooley & Napolitan, PLLC (11)

McKinley & Norton, LLP (7)

Lewis Thomason (32)

Sherrard Roe Voigt & Harbison, PLC (35)

Butler Snow (53)

Lieff, Cabraser, Heimann & Bernstein, LLP (5)

Cameron Worley, PC (3)

Lindsey & Amonette, PLLC (4)

Cole Law Group (3) Cornelius & Collins, LLP (17)

Martin Heller Potempa & Sheppard, PLLC (6)

Dickinson Wright, PLLC (30)

McAngus Goudelock & Courie, LLC (7)

Dodson Parker Behm & Capparella, PC (7)

Meridian Law, PLLC (3)

Stites & Harbison, PLLC (28)

MTR Family Law, PLLC (5)

Taylor, Pigue,

Evans, Jones & Reynolds, PC (6)

Nashville Electric Service (4)

Marchetti, & Blair, PLLC (7)

Floyd Law Group, PLC (3)

Neal & Harwell, PLC (34)

Trauger & Tuke (5)

FordHarrison LLP (3)

Veazey & Tucker (3)

Frazer PLC (4)

Nelson, Mullins, Riley & Scarborough (19)

Frost Brown Todd, LLC (26)

North, Pursell & Ramos, PLC (10)

Grissim & Hodges (3)

Ogletree Deakins (17)

Gullett, Sanford, Robinson & Martin, PLLC (29)

Ortale Kelley Law Firm (25)

Buffaloe & Vallejo, PLC (4) Burr & Forman, LLP (28)

Legal Aid Society of Middle TN (15)

Robinson, Reagan & Young, PLLC (4)

Sims|Funk (3) Smith Cashion & Orr, PLC (10) Smythe Huff & Hayden, PC (3) Spicer Rudstrom, PLLC (14)

Venick, Kuhn, Byassee, Austin & Rosen PLLC (5) Watkins & McNeilly, PLLC (11) Waypoint Law, PLLC (3)

Hall Booth Smith, PC (14)

Patterson Intellectual Property Law, PC (17)

Weatherly, McNally & Dixon, PLC (3)

Healthcare Realty Trust, Inc. (3)

Pepper Law, PLC (3)

White & Reasor, PLC (6)

Holton & Mayberry, PC (4)

Prochaska, Quinn & Ferraro, PC (3)

Wiseman Ashworth

Keller, Turner, Ruth,

Raybin & Weissman, PC (3)

Law Group, PLC (9)

NASHVILLE BAR JOURNAL | JUN/JUL 2018

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DIAGNOSIS: Elder Care Confusion Do your clients have the symptoms? Exhausted: Frazzled by the competing demands of work, family and caregiving

Uncertain: No time to do the research needed to make good decisions about their loved ones’ future

Unprepared: No plan for the time when they can no longer manage their loved one’s care at home

Terrified: Worried that if long-term care outside the home is needed, the nursing home will take everything their loved one worked a lifetime to earn

When the long-term illness or disability of an elderly family member threatens to disrupt your clients’ financial, legal and emotional well-being, you don’t call just anyone. You call the best. Don’t let your clients struggle alone. Refer them to Takacs McGinnis Elder Care Law, PLLC. For more than 25 years, our Certified Elder Law Attorneys, elder care coordinators, and other professionals have been helping families protect assets, find high-quality care, and navigate the long-term care system.

We can help your clients, too. Give us a call today.

(615) 824-2571

Toll-Free: (866) 222-3127

201 Walton Ferry Road

PO Box 364

Helping you protect whatTN matters most in your life Hendersonville, 37077-0364

Life Care Planning Elder Law Estate Planning Care Coordination

www.tn-elderlaw.com

* Takacs McGinnis, PLLC has been named a Tier 2 firm in Nashville for Elder Law Practice by U.S. News - Best Lawyers”, “Best Law Firms” in 2018.