Capitol Notes

LEGISLATIVE COLUMN Capitol Notes | Peggy Sue, the Beagle Hound

So sweet, she could charm a dog off a meat wagon.

TN General Assembly Election Update

Tennessee continues to glow ruby red on the nation’s electoral map. That same trend continues in the Tennessee General Assembly except for one small blue dot here in Davidson County. Our Republican friends maintained strong legislative majorities in each house of the General Assembly with a 27-6 partisan majority in the Senate and a 73-26 partisan majority in the House. While Donald Trump carried Tennessee with around 60% of the vote and 92 of the state’s 95 counties, Davidson County was one of the 3 counties—along with Shelby and Haywood counties in West Tennessee—to go for Joe Biden. While the other 92 counties went overwhelmingly for Trump, Biden carried Davidson County by almost 100,000 votes out of 298,000 votes cast.

The new blue dot came about when Heidi Campbell defeated two term incumbent State Senator Steve Dickerson in the hotly contested general election by 3,800 votes of 112,000 votes cast. Senator Dickerson was a good friend of the Nashville Bar, and we are grateful for his service, particularly these last two years when he chaired the Senate State and Local Government Committee. We also look forward to working with Senator Campbell in her new position. She is a current resident of Oak Hill and the former Mayor.

The remaining members of the Davidson County legislative delegation all won reelection, including Senator Ferrell Haile of Sumner County. While Senator Haile’s senate district includes all of Sumner County and Trousdale County, the district also includes about 60,000 folks in the eastern part of Davidson County. We suspect Senator Haile will now receive a few more requests for attention to the legislative supper dishes of the Davidson County dogs.

Redistricting Looms

By the end of December 2020, the US Secretary of Commerce will submit the 2020 census data to the President who will then present the data to the Clerk of the US House. Congressional officials should get the data needed by the states for redistricting by early April 2021. As they have in the past, the General Assembly is expected to file placeholder bills in 2021, work on them in the summer and fall of 2021, and then actually pass the bills drawing the state’s congressional districts, state house, and state senate districts early in the 2022 legislative session.

Tennessee’s 2020 population in the early estimates is around 6,890,000 people, and we will continue to have 9 members in the US House. On the state level, house districts will be readjusted to reflect an ideal population of 69,590. West Tennessee is expected to lose two House seats, and those two districts will probably move to the Nashville suburbs. The conversations for these issues are always spicy and almost always opaque, as elected officials get the opportunity to choose their voters and dogs rather than voters and dogs choosing their elected officials.

Calendar Notes

The NBA office will be closed December 24, 25, 31, and January 1 in observance of the holidays. The 112th General Assembly will convene in Organizational Session on Tuesday, January 12, 2021.

The NBA and the General Assembly will observe the Martin Luther King holiday on Monday, January 18, 2021.

The General Assembly will reconvene in Regular Session on Monday, February 1, 2021.

Davidson County voters will get a rest period in 2021 because the county does not have a regularly scheduled election. The next one of those is the May 2022 primary election for local offices including all our general sessions and trial court judges. (BOLO alert for a 2021 special election in Davidson County if those agitated about this year’s property tax increase find an avenue for voters to challenge the increase by referendum instead of in the regularly scheduled Metro Council election in 2023.) n

PEGGY SUE is fond of the classic 1957 Buddy Holly song. When hunting legislative news or biscuits, she is hard to contact.

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Year 2020: Can There Be Any Silver Lining?

Illness, death, a spiraling economy, job losses, social distancing from family and friends–these are just a few of COVID-19’s effects on Americans and on the world. With the year almost at an end, can one find any silver lining in 2020’s dark pandemic cloud?

Merriam-Webster defines silver lining as “a consoling or hopeful prospect” or “something good that can be found in a bad situation.” This noun typically makes one think of the phrase “every cloud has a silver lining.” While the pandemic’s effects have created grim and far-reaching devastation worldwide, perhaps there are some slivers of a silver lining to consider.

Creativity

With fewer places to go, perhaps fewer distractions, and likely more downtime, some folks are getting creative by learning a new skill or craft. For example, language learning applications Rosetta Stone and Duolingo both reported an increase in the number of new users. Virtual Art Academy founder Barry John Raybould reported that since the pandemic, new enrollments have “exploded fivefold” in “the most drastic jump in the academy’s 13-year history.”1 Learning or polishing cooking skills has also been on the rise. Chef Christina Tosi, founder of Milk Bar, noticed that first-time bakers were asking her for baking advice. As a result, she started a baking club on Instagram Live with “thousands of people watching every day.”

With the rise of work-from-home (WFH), businesses have also become creative in new ways to serve clients and customers. Zoom/videoconference platforms, online classes, outdoor gym activities, and curb-side delivery and take-out cocktails have all replaced traditional ways we communicate, eat, and exercise.2 When gyms closed, for example, some personal trainers and gyms moved their activities to the outdoors.3

The Outdoors

With businesses, restaurants, bars, and other activities either closed or limiting the number of people, the “great outdoors” is the new hot spot. Attendance at Wisconsin state parks was up 44% in May and 52% when camping reopened in June.4 Even Tennessee state parks experienced an increase

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in park visitors with some state park attendance increasing by “30% or more in 2020.”5 In Utah, visitors to the Provo River Parkway—a trail cutting through the center of Provo—was up almost 133% in April 2020 when compared to April 2019.6 Doug Robins, the Assistant Director of Parks and Recreation for Provo, says of the increased popularity, “To be able to get out of the house and go experience nature and get outside, I think that’s a huge pressure relief for a lot of folks” and “[i]t really is an essential component of public health and safety.”7

Studies show being outdoors or exercising outdoors can reduce feelings of sadness and increase a person’s energy level. A recent study from the University of Maryland and Cornell University found that even 10 minutes of experiencing nature can improve one’s mental health and well-being.8 Director of the University of Chicago’s Environmental Neuroscience Lab, Associate Professor Marc Berman stresses the importance of nature and psychological benefits. This is especially true during a pandemic and Berman says, “[o]ur research has found that nature is not an amenity—it’s a necessity. We need to take it seriously.”9 So get up and experience nature to improve your mental health—doctor’s orders!

Family Time

It is not surprising that many families are experiencing increased chaos, stress, and anxiety at being enclosed in close proximity with their immediate family. However, several others have reported that the pandemic lockdown and disruption caused family to spend more “quality” time together—time that they wouldn’t have otherwise spent with their families.10 One example is a mother of three who reported that even

though they are stuck in the house, she now has an opportunity to see what her children are capable of academically and that the pandemic made her family come together and be more creative.11

Rescue Pets

Since the beginning of the pandemic, animal shelters are reporting a surge in pet adoptions and applications to foster. At Foster Dogs, Inc., the founder and executive director said foster applications averaging 140 per month skyrocketed to almost 3,000 since the pandemic hit. Similarly, DC Paws Rescue in Washington received almost 300 foster applications when it usually has around 60.12 An animal shelter in Chicago recently reported all adoptable animals were rescued—for the first time ever.13 Multiple studies have shown the benefits of owning a pet, particularly in stressful times. Even in the darkest of times, having the presence of a non-human companion can decrease the owner’s psychological stress while also keeping animals out of the shelters.

While the above is not an exhaustive list, it is a sliver of silver for consideration. Even in troubled times, one can hope and remember:

There is a crack, a crack in everything[.] That’s how the light gets in. — Leonard Cohen n

Endnotes

1 Michael Brice-Saddler, From Cooking to Calligraphy, People Stick at Home are Finding New Space for Creativity, Wash. Post (Apr. 11, 2020).

2 Clare Duffy, Here are Some of the Creative New Business Models and Strategies that have come out of the Cononavirus Pandemic, CNN BusiNess (June 28, 2020).

3 Megan Cerullo, Gyms Embrace Outdoors to Escape COVID-19, CBs NeWs (Oct. 16, 2020).

4 Paul A. Smith, Pandemic Spurs Broad Increases in Outdoor Recreation in Wisconsin, MilWaukee J. seNtiNel (Aug. 24, 2020).

5 Mary Hance, Tennessee State Parks experience dramatic increase in Visitors Amid Coronavirus Pandemic, teNNesseaN (May 22, 2020).

6 Colin McGuire, More People Enjoying the Great Outdoors During Pandemic, herald-star (Oct. 26, 2020).

7 Colin McGuire, The Great Outdoors, the MiNiNg J. (June 29, 2020).

8 Genevive R. Meredith et al., Minimum Time Does in Nature to Positively Impact the Mental Health of College-Aged Students, and How To Measure It: A Scoping Review, FroNt. PsyChol. (Jan. 14, 2020).

9 Jack Wang, Why Time Outdoors is Crucial to your Health, even during the Coronavirus Pandemic, u. Chi. NeWs (Apr. 6, 2020).

10 Erica Pandey, Coronavirus Reshapes American Families, ZXIOS (Apr. 4, 2020); see also RV Life Booms During the Pandemic, CBS NeWs (Aug. 9, 2020) (While many family vacations were postponed, rescheduled, or canceled, motorhome sales were up 90% this July compared to July 2019, resulting in families exploring by motorhome) (Owner of New Jersey’s Garick RV for 36 years, Gary Threlfall reported seeing more first-time buyers of RV(s): “Just the fact that there’s so many people coming, calling, emailing. It’s kind of their only choice, because an RV is a socially-distanced vehicle, a socially-distanced vacation, and a way to corral or keep your family together.”).

11 Nikoleta Morales, Covid-19 Response Opens Door to More Time with Loved Ones, CoMM. health. (Jul. 24, 2020).

12 Derek Karikari & Pat Eaton-Robb, Pandemic Leads to Surge in Animal Adoption, Fostering, aP NeWs (Apr. 24, 2020).

13 Sarah Whitten, Animal Rescues are Going to Need More Help than Ever Once Coronavirus Restrictions Are Lifted, CNBC (Apr. 11, 2020).

CAROLINE SAPP is the Managing Attorney of The Barnes Firm where she helps individuals and small business in catastrophic injury and wrongful death cases, fraud, and other complex litigation matters. She is also a Managing Editor of the Nashville Bar Journal.

The CASE Act: Small Claims Copyright Court

The Music Modernization Act passed unanimously in a bitterly partisan Congress and the bill was signed by President Trump on October 11, 2018. This legislation helped to bring music licensing, pre-1972 sound recordings, and producer fees in line with modern means of distribution on digital platforms and to pay legacy artists and producers for their creative contributions.

What about the “little guy,” though? What happens when the copyrighted recordings or musical compositions of an independent recording artist or a self-published songwriter are infringed? What about the photographer whose online photographs are routinely stolen? Can these small business owners afford to bring an infringement action in federal court when typical infringement cases can cost over $300,000 plus costs to litigate? Just in case (yes, pun intended) these small entrepreneurs’ works are infringed, there may soon be a means to access the courts without bankrupting copyright owners, called the CASE Act—Copyright Alternative in Small Claims Enforcement Act.

After more than a decade of study, substantial comments, and recommendations by the US Copyright Office, a bill setting forth the CASE Act was first proposed in 2017 in the US House of Representatives (HR 3945) and then again in 2019 (HR 2426-Jeffries). After bi-partisan passage, it was introduced in the US Senate in May 2019 (S 1273-Kennedy). Copyright protection is meaningless if the copyright claimant does not have the ability to enforce his or her rights or if the claimant is shut out of the court system due to the high costs. Filing fees and service of process fees alone can cost $1,000 or more, depending on the number of defendants. The CASE Act is designed to address small claims, and to render the process affordable and accessible to creators.

Key features of the proposed bill are discussed here. The bill creates a three-judge tribunal called the Copyright Claims Board (CCB) within the US Copyright Office that can hear claims valued up to $30,000, exclusive of attorney fees and costs. Proceedings can be done electronically, and hearings, if necessary, may be done via audio or video conference. As with other copyright claims,1 the claimant must file a claim within three years of the date the claim accrued. The claimant also must provide the CCB with a certificate of reg-

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istration or show that application has been made to the US Copyright Office with the proper deposit copy and fee, and that the application has not been refused. The CCB cannot render a decision until a registration has been issued by the Copyright Office and all parties have an opportunity to view it. A party may proceed with or without an attorney, but proceeding must be voluntary (i.e., all parties must agree to participate). Filing a claim with the CCB tolls the statute of limitations in the district court, and any party can opt out of the CCB action and proceed in federal court.

As with other copyright cases, a claimant may seek actual damages plus profits or, alternatively, statutory damages,2 subject to limitations. If the work was not timely registered under 17 USC § 412 (i.e., if it was infringed before it was registered), statutory damages are limited to $7,500 per work infringed, not to exceed $15,000 in a single proceeding. If the work was timely registered and then infringed, statutory damages are limited to $15,000 per work infringed. When awarding statutory damages, the CCB may consider whether the infringer agreed to stop or mitigate the infringement. The CCB also may consider other monetary damages for a total of up to $30,000, including for violation of 17 USC 512(f) (false statements about online content).

Each side bears its own attorney fees and costs before the CCB, except in cases of bad faith. “Bad faith” means a party filed a claim that constitutes harassment, is filed with an improper purpose, or is one that does not have a reasonable basis in law or fact. In cases where a party is pro se, an award of up to $2,500 in costs can be made, and if represented, an award for fees and costs can be up to $5,000. Additional penalties can be imposed where a claimant repeatedly files groundless or harassing claims in a one-year period. If the infringer does not pay the award, the successful claimant may apply, within one year of the award by the CCB, to the district court to affirm the award and enter judgment (includ-

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After passing the House with a bi-partisan vote, the CASE Act was referred to the Senate Judiciary Committee in May 2019 and reported upon on September 12, 2019. One would think COVID-19 may be the cause of the delay in passing, but there is another stumbling block—Senator Ron Wyden (D-Oregon). Wyden has put a “hold” on the bill, blocking it from a vote, on the grounds that the bill creates an extrajudicial, unappealable tribunal, and thus, more studies are warranted to protect due process. The text of the bill reveals Senator Wyden’s ostensive concerns are unfounded. There is a 90-day objection period following the application for judgment whereby a party may ask to set aside the CCB determination. Further, the proceedings are voluntary, and the matter may be moved to a district court before a determination is made. Until Wyden reconsiders his position, the bill is stalled in committee during this 116th Congress. n

Endnotes

1 See 17 USC § 507.

2 17 USC § 504(b)(c).

RAMONA DESALVO practices copyright, trademark, and entertainment law at DeSalvo in Nashville. She earned her BA from University of California, Berkeley, and JD from University of Cincinnati College of Law. She is admitted in Tennessee, Ohio, and California (inactive). Ramona is a Fellow of both the American Bar and Nashville Bar Associations, and a member of NARAS, Copyright Society of the South, the NBA, ABA, TBA, and the Tennessee Lawyers’ Association of Women (Past President).

SINCE THE AGING PROCESS NEVER STOPS The Day Will Come When... | Mark Bassingthwaighte

In the middle of a conversation with one of our insureds on the topic of the difficulty of learning to say no, the fine gentleman I was conversing with did a jump shift on me. For whatever reason, he felt it was important to acknowledge that he was cognizant of his age and he wanted me to know he had taken steps to make sure he continues to practice law competently. What really struck me, however, was his desire to also share he had instructed others at his firm to let him know if they were to ever see him start to mentally slip, because in his words “the day will come when….”

As a risk manager, I found his comments reassuring. In my mind, he’s one I would describe as someone who is growing old gracefully. He’s not in denial and, unlike far too many, he doesn’t appear to be fighting the aging process tooth and nail. He also has recognized that with age comes certain age-related risks and he’s doing something about that reality. In light of this conversation, I felt compelled to take a look at a few of these risks and talk about how to responsibly manage them.

The most obvious risk with the aging process is the unexpected event, something along the lines of a medical crisis that leads to a short or longterm absence. Should this ever occur, someone will need to step in and at least temporarily accept responsibility for your client matters, even if you aren’t in a solo practice. For the solo practitioner, however, this is a particularly significant issue that underscores the necessity of having a backup attorney in place. Regardless of your age, if you haven’t already found one, now’s the time.

Next, don’t overlook the related file status problem. Lawyers don’t always keep files as current as they should. There’s never enough time and just about everyone trusts their own memory. Here’s the problem with that line of thinking—memory isn’t as trustworthy as one ages, and if you’re not available due to an unexpected event, it doesn’t matter anyway. Given this, committing to keeping the status of all files current at all times is equally necessary regardless of your practice setting.

There are the subtler risks that arise as a result of the aging process itself, many of which can be quite gradual. Sooner or later, everyone begins to realize their memory, hearing, and/ or sight isn’t as sharp as it once was. Some lawyers find they have difficulty accurately seeing everything on a computer screen, which leads to worry about making mistakes due to incorrectly entering a critical date or misreading what’s on the screen. Others struggle with forgetfulness, worrying that it’s only a matter of time before missing a filing deadline or incorrectly remembering a client’s instructions. Others fears hearing loss, not the least of which is a fear of mishearing something due to being too embarrassed to ask a client or a judge to repeat what was just said.

There are any number of steps one might take to address these subtle risks. In terms of competency issues, the use of checklists can be a great way to make sure nothing is overlooked. Additional training on how to get the most out of your computer tech might become necessary, if for no other reason than as tech evolves so does the standard of care. You might consider prioritizing the pursuit of relevant CLE in the areas in which you wish to continue to practice. Just because you’ve practiced in a given practice area for several decades doesn’t mean you can ignore your obligation to remain current on the impact of any recent changes in relevant law or regulations. Finally, be open to acknowledging that at some point you may need to start slowing down because the time and energy necessary to stay on top of it all is no longer there.

In sum, since no one has found a way to stop the aging process, the day will come when it’s time to cease practicing law. Until that day arrives, however, do all you can to age gracefully. Be aware of your limitations as they arise and be open to hearing the concerns of others. Find ways to identify your specific risks and work to responsibly address them. I say this because I have had to sit down with a few solos over the years and be the one who had to tell them their time had come. Trust me, aging gracefully is the better choice. n

MARK BASS-

INGTHWAIGHTE is Risk Manager with ALPS. He has conducted over 1,200 law firm risk management assessment visits, presented over 400 CLE seminars throughout the US, and written extensively on risk management, ethics, and technology. He is a member of the State Bar of Montana and the American Bar Association where he currently sits on the ABA Center for Professional Responsibility’s Conference Planning Committee.