Nashville Bar Journal | November 2012

Nashville Bar Journal

November 2012 - VOL 12, NO. 10

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“SECURITIES FOR SALE! READ ALL ABOUT IT!” The world of private offerings may not be so private anymore by:

Tracy Kane

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The Moxie of Proxy Voting by the Tennessee Legislature

Everette Parrish ------------------------------------------------------------------------------------------------

NBA Board of Directors Nominees

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Annual Meeting & Banquet Registration

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At the end of the day...

Who’s Really Watching Your Firm’s 401(k)?

And, what is it costing you?

Does your firm’s 401(k) feature no out-of-pocket fees?

YES

NO

ANNUAL MEETING & BANQUET DECEMBER 6, 2012 WILDHORSE SALOON

Does your firm’s 401(k) include professional investment fiduciary services?

Is your firm’s 401(k) subject to quarterly reviews by an independent board of directors?

If you answered no to any of these questions, contact the ABA Retirement Funds Program by phone (866) 812-1510, on the web at www.abaretirement.com or by email joinus@abaretirement.com to learn how we keep a close watch over your 401(k).

A reception for the general membership is set to begin at 5:30 p.m., with dinner and the program to begin at 7 p.m. The passing of the gavel from President John Kitch to President-Elect Tom Sherrard, introduction of the NBA officers for 2013, and Award presentations are just a few of the events on the agenda for the evening.

Awards to be presented include: John C. Tune Public Service Award, Outstanding CLE Award, Nashville Bar Journal Awards, YLD Leadership Awards, Emeritus Awards, and the President’s Awards.

Registration form on page 21 or visit www.nashvillebar.org

Who’s Watching Your Firm’s 401(k)?

The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (866) 812-1510, by visiting the Web site of the ABA Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the Nashville Bar Association as a member benefit. However, this does not constitute an offer to purchase, and is in no way a recommendation with respect to, any security that is available through the Program.

C12-0201-010 (2/12)

Nashville Bar Journal A Monthly Publication of the Nashville Bar Association

www.nashvillebar.org

“SECURITIES FOR SALE! READ ALL ABOUT IT!” The world of private offerings may not be so private anymore PAGE 6 Tracy Kane

December 4, 2012 - 3:30 pm NBA Board Meeting

November 13, 2012 o NBA Swearing-In Ceremony @ Justice A.A. Birch Building

December 5, 2012 - 12:00 pm Bankruptcy Committee Meeting

November 15, 2012 o Memorial Service @ Downtown Presbyterian Church

o Annual Banquet

The Moxie of Proxy Voting by the Tennessee Legislature

November 16, 2012 Healthy Bar Party @ Waller Lansden

Everette Parrish

November 19, 2012 - 11:30 am Probate Committee Meeting

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FROM THE PRESIDENT Belly up to the Bar

PAGE 2

John Kitch

__________________________________________________________________ 4 Communiqué • Memorial Service • Annual Meeting & Banquet • Dues Notice • NBA Members Interviewed • Golden Oldies • Upcoming Events __________________________________________________________________ 12

November 9, 2012 - 11:00 am CLE Committee Meeting

December 6, 2012

@ Wildhorse Saloon

November 20, 2012 - 12:00 pm Ethics Committee Meeting November 22 - 23 NBA OFFICES CLOSED FOR HOLIDAY November 27, 2012 - 9:30 am Finance Committee Meeting November 27, 2012 - 10:30 am Executive Committee Meeting

Gadget of the Moth: The New Microsoft Surface Bill Ramsey, Neal & Harwell, PLC Phillip Hampton, LogicForce Consulting

__________________________________________________________________ CLE Information - Center Section

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NBA Board of Directors Nominees

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Profile: James Mackler

View Full Calendar online at www.nashvillebar.org

-Golden Oldies-

__________________________________________________________________ Kathleen Pohlid

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Disclosure - Announcements • Kudos • People on the Move • Firm News • In Memory

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Classified Listings

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-------------------------------------------------------------------------------Identify the individuals in the photo. Be the first to email the correct answer to nikki.gray@nashvillebar.org and your name (along with your correct entry) will appear in next month’s issue.

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Nashville Bar Journal A Monthly Publication of the Nashville Bar Association

www.nashvillebar.org

John Kitch, Publisher William T. Ramsey, Editor-in-Chief ramseywt@nealharwell.com

FROM THE PRESIDENT

by John Kitch

Belly up to the Bar

Eleanor Wetzel, Managing Editor eleanorwetzel@jis.nashville.org

Journal Staff: Nikki Gray, Director of Communications nikki.gray@nashvillebar.org

Tina Ashford, Communications Coordinator tina.ashford@nashvillebar.org

Editorial Committee: Kelly L. Frey Kathleen Pohlid Tim Ishii Tracy Kane Everette Parrish Bill Ramsey Rita Roberts-Turner Eleanor Wetzel David Winters Victoria Webb

Nashville Bar Association Staff Gigi Woodruff Executive Director ----------Tina R. Ashford Communications Coordinator Susan W. Blair Director, Continuing Legal Education Shirley Clay Finance Coordinator Wendy K. Cozby Lawyer Referral Service Coordinator Nikki R. Gray Director of Communications Traci L. Hollandsworth Programs & Events Coordinator Judy Phillips CLE Coordinator Vicki Shoulders Membership Coordinator/Office Manager The Nashville Bar Journal, ISSN 1548-7113, is published monthly by the Nashville Bar Association at 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219, (615) 242-9272. Periodicals Postage Paid, Nashville, TN (USPS 021-962). Subscription price: $25 per year. Individual issues: $5 per copy.

POSTMASTER: Send address corrections to Nashville Bar Journal, 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219 No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. The Nashville Bar Journal is not responsible for the return or loss of unsolicited manuscripts or for any damage or other injury to unsolicited manuscripts or artwork.

All Articles and Letters contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association.

Nashville Bar Association 150 Fourth Avenue North Suite 1050 Nashville, TN 37219 615-242-9272 Fax 615-255-3026 www.nashvillebar.org

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Nashville Bar Journal - November 2012

I’m a big bar association fan. At last count I belong to six – the NBA, the TBA, the ABA, LAW, and both the Tennessee and National Council of School Board At­tor­neys.

Each of these has great value and each provides great benefits, but as you might suppose I am devoted to the Nashville Bar Association most of all. Former U.S. Speaker of the House Tip O'Neill coined the phrase “All politics is local” which encapsulates the principle that a politician's success is directly tied to his ability to understand and influence the issues of his constituents. I believe the same is true for bar associations, and the Nashville Bar Association is uniquely positioned to do the same for the legal community in Nashville and Middle Tennessee. I encourage each and every one of you to join a committee of your choice, since just like politicians your success will depend on your understanding and influence locally and that will come from committee involvement.

I want to thank everyone who has helped me this year. That list begins with my wife who took up the slack at home and with my long-time assistant who kept my office running when I was “being president.” It continues with this year’s officers and Board of Directors, all the Committee Chairs, and Gigi Woodruff and her excellent staff.

Credit also goes to all the past presidents whose suggestions were invaluable. Most of all, I want to thank all you lawyers and judges who have supported me and the NBA through your advice to me and your commitment to the organization. It has been surprising to me, and I’m sure to many of you, how easy it has been to be president, and that is entirely due to the fine people I have mentioned. I have tried to follow Teddy Roosevelt’s advice that the best leader is the one who has sense enough to pick good people to do what he wants done and the self-restraint to keep from meddling with them while they do it, and the credit for the NBA's successes this year belongs entirely to the people I have mentioned.

Speaking of those successes, as I thought about writing my last “From The President” column for the Nashville Bar Journal I was going to review for you all the accomplishments of the NBA this past year, and there have been many. But now you’re going to have to wait until the Annual Meeting and Banquet December 6 at the Wildhorse Saloon to hear about all that, because I just picked up and read a copy of David Rutherford’s wonderful history of the Nashville Bar Association, Bench and Bar II (2003). In its pages is a comprehensive history of our association, ranging from information about our formal founding on May 10, 1875, to a fine article on Andrew Jackson, to a June 3, 1916 letter from Teddy Roosevelt to Chancellor John Allison concerning the ignorance of “present day political leaders,” to a May 24, 1945 letter discussing the assault and beating of General Sessions Judge S. Trigg Moore by Constable Wayne Hargis because of Judge Moore’s refusal to issue a warrant the Constable had requested.

The book also contains copies of fascinating documents in our history, including handwritten minute entries of the “Davidson County, North Carolina, Mero District Superior Court of Law and Equity,” in which Andrew Jackson variously is listed as judge, defense attorney, witness, plaintiff and sometimes civil defendant, minutes of some of the 1875 meetings of the Nashville Bar Association, and Litton Hickman’s official oath as County Judge of Davidson County in 1918, in which he swears that he has not “directly or indirectly, given, accepted, or knowingly carried a challenge, in writing or otherwise, to any person being a citizen of this State ….” Despite what we know about Andrew Jackson’s propensity for duels, it was and still is a disqualification for public office to engage in one. See Tenn. Const., Art. 9, § 3.

2012 NBA BOARD OF DIRECTORS

This book is a must for every lawyer and judge in Nashville and I encourage you to call the NBA office to buy your copy. I only wish David were still around to update the history yet again.

Well, as my law school Contracts professor Paul Hartman remarked on the final day of his class, “As Lady Godiva said at the end of her famous ride, ‘I now have come to my close.’”1 I have enjoyed serving you as president, and with my final words in the Nashville Bar Journal I ask you to please continue to support the NBA. It’s worth it. n

(Endnotes) 1 Get it? “My close?”

John D. Kitch, President Tom Sherrard, President-Elect Hon. Randy Kennedy, First Vice President Hon. Marietta Shipley, Second Vice President Rebekah Shulman Secretary M. Bernadette Welch, Treasurer Trace Blankenship, Assistant Treasurer Gareth Aden, General Counsel Rebecca C. Blair Robert E. Boston C. Dewey Branstetter, Jr. C. Dawn Deaner Charles K. Grant Barbara D. Holmes Michele M. Johnson Edward D. Lanquist, Jr. John C. McLemore Jeffrey Mobley Patricia Head Moskal Maria M. Salas John R. Tarpley Overton Thompson, III Mandy Haynes Young

Got an Idea for an NBJ Article?

We want to hear about the topics and issues readers think should be covered in the magazine.

Send it to nikki.gray@nashvillebar.org

Nashville Bar Journal - November 2012

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communiquĂŠ

NBA NEWS n COMMITTEE INFORMATION

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SPECIAL EVENTS

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NBA NEWS n COMMITTEE IN

NBA Annual Memorial Service The Nashville Bar Association's annual Memorial Service will be conducting its 103rd service on Thursday, November 15, 2012, at the Downtown Presbyterian Church.

The service begins at 11 a.m. There will be a reception immediately following the service in the church's Fellowship Hall.

A project of the NBA's Historical Committee, the Memorial Service honors the memory of those Nashville lawyers and judges who passed away during the preceding 6 month period.

The NBA Annual Meeting and Banquet will take place on Thursday, December 6, 2012, at Wildhorse Saloon. As in past years, a reception for the general membership is set to begin at 5:30 p.m., with dinner and the program to begin at 7 p.m. The passing of the gavel from President John Kitch to President-Elect Tom Sherrard, introduction of the NBA officers for 2013, and Award presentations are just a few of the events on the agenda for the evening.

Awards to be presented include: John C. Tune Public Service Award, Outstanding CLE Award, Nashville Bar Journal Awards, YLD Leadership Awards, Emeritus Awards, and the President’s Awards.

Registration form on page 21 or visit www.nashvillebar.org

Dues Notice The end of the Nashville Bar Association Dues Year was October 31, 2012. Please contact us to check the status of your dues or to obtain a new dues form if you have not yet submitted one. You may also renew online at www.nashvillebar.org. Thank you.

UPCOMING EVENTS: 50th anniversary of the U.S. Supreme Court decision in Baker v. Carr Downtown Public Library November 8, 2012 -------------------------------------NBA Swearing-In Ceremony Justice AA Birch Building Tuesday, November 13, 2012 --------------------------------------

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Nashville Bar Journal - November 2012

Memorial resolutions, recounting the lives and legal careers of the deceased individuals, are prepared and then read at the service by friends and colleagues of the bench and bar.

Family members and friends of the deceased are invited to attend.

Attorneys to be HONORED:

Roger Baskette, Sr. Robert Belton Amy Gowan-Adams Judge Irvin Kilcrease, Jr. William (Bill) Redick, Jr. Lloyd Walwyn Robert Whitaker

Memorial Service Downtown Presbyterian Church Thursday, November 15, 2012 -------------------------------------Healthy Bar Party Waller November 16, 2012 10:30 a.m. - 3:30 p.m.

Register online at: http://hbp2012.eventbrite.com -------------------------------------Annual Banquet Wildhorse Saloon

Thursday, December 6, 2012 --------------------------------------

NFORMATION

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SPECIAL EVENTS

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NBA NEWS n COMMITTEE INFORMATION

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SPECIAL EVENTS

NBA Members Interviewed

by Metro Public School Freshmen On October 24, 2012, the NBA Community Relations Committee participated in the Career Exploration Fair produced by Metro Nashville Public Schools and Shoney's. During the fair, freshmen high school students had the opportunity to encounter different employers and interview participating employees of local employers and ask them about their jobs. The NBA’s participation allowed freshmen to ask a variety of attorneys questions such as what are the educational requirements to become a lawyer, what skills are important for a career as an attorney, and what classes would be useful to those wishing to pursue a career as a lawyer.

The following attorneys participated: Beth Derrick, Kathleen Pohlid, Marc Overlock, Max A. Fleischer, Torrey Grimes, Ainka Jackson, Eric Larsen, and David Bordenkircher, Paul DeWitt, Kyle Mothershead, and Patrick Bradley. Judge Sophia Brown Crawford and Magistrate Sheila Calloway, both of the Juvenile Court System also participated.

Mary Hutto Cocke also was there to answer questions about being a paralegal.

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NBA NEWS n COMMITTEE INFORMATION

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-Golden Oldies

Darrell L. West of Dickinson Wright PLLC correctly identified the individuals in the October 2012 Golden Oldies photo.

Pictured are: Charles High, Jr. and Charles A. Leach

Do you have an old photo that you would like to see featured in the NBJ? Send it to nikki.gray@nashvillebar.org for consideration.

Nashville Bar Journal - November 2012

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FEATURE

“SECURITIES FOR SALE! READ ALL ABOUT IT!” The world of private offerings may not be so private anyby:

Tracy Kane

There is a delicate dance going on in Washington, D.C. and it is not about who is or is not occupying the White House. The Securities and Exchange Commission (the “SEC” or “Commission”) has been tasked by Congress with relaxing (possibly “eliminating”) what has been one of the bed-rock principals of modern Securities Law – the ban on general solicitation and advertising for non-registered offerings of U.S. securities. This policy change is a result of the passage of the JOBS Act in April of this year.

To understand the sea change that is (potentially) happening, though, we should take a brief stroll down memory lane and remember the genesis of securities regulation and the concept behind private offerings.

Following the stock market crash of 1929 and ensuing Great Depression, Congress enacted two major pieces of securities legislation – the Securities Act of 1933 (the “Securities Act”), which principally requires that investors receive financial and other significant information concerning securities being offered for public sale and prohibits deceit, misrepresentations, and other fraud in the sale of securities, and the Securities and Exchange Act of 1934 (the “Exchange Act”), which created the SEC with broad authority over all aspects of the securities industry, including the power to register, regulate, discipline and otherwise oversee various actors and behavior in the securities industry.

The Securities Act requires that, generally, securities sold in the U.S. must be registered. Section 4(a)(2) (formerly Section 4(2)), however, exempts from registration “transactions by an issuer not involving any public offering.”1 The Securities Act does not define the scope or otherwise set a boundary for this private 6

Nashville Bar Journal - November 2012

offering exemption. Over the years, there have been judicial interpretations as well as additional rulemaking and interpretive opinions by the SEC. The leading Supreme Court interpretation of the law came in 1953 in SEC v. Ralston Purina Corp., 346 U.S. 119 (1953). In a ruling that remains the leading opinion on private offerings, the Court declined to accept the Commission’s request to define a “public offering” by setting a quantity limit, and instead interpreted the exemption in light of the statutory purposes of the Securities Act, which the Court explained was “whether the particular class of persons affected needed the protection of the [Securities] Act.”2 In 1962, the Commission issued a statement in which it provided its views on the limitations on the availability of the private offering exemption under Section 4(2) (now Section 4(a)(2)).3 Among other things, the Commission stated that “public advertising of an offering is incompatible with a claim of a private offering.”4 The lack of general solicitation and advertising continues to be a hallmark characteristic of a private offering.

Beginning in 1972, the Commission adopted a number of interpretative safe harbors related to private offerings by issuers and re-sales of securities acquired in private offerings.5 Then in 1982, the Commission adopted Regulation D.6 Regulation D was designed to offer businesses, especially small businesses, easy-tounderstand exemptions from the registration requirements of the Securities Act. When the regulation was released, the Commission was commended for striking the right balance between investor protection and

capital formation by providing issuers of securities a stair-stepped approach that required more investor protections (and, thus, transaction costs of the offering) as the size of the offering increased.7 The basis of this framework was the Commission’s assumption, one with which most scholars agree, that the two most important protections for investors are “their own sophistication – their ability to evaluate the merits and risks of any offering of securities – and the meaningful disclosure of or access to material investment information.”8 Rule 502 of Regulation D sets forth some of the standards to be met to qualify an offering under Rules 504, 505 or 506.

With respect to communication, Rule 502(c) does not define “general solicitation” or “general advertising;” however, it provides a non-exclusive list of examples, which include advertisements published in newspapers and magazines, communications broadcast over television and radio, and seminars whose attendees have been invited by general solicitation or general advertising.9 The Commission has since released interpretations stating that other uses of publicly available media, such as unrestricted websites, also constitute general solicitation and general advertising.10 Despite the general popularity of Regulation D (evidenced by the estimated amount of capital –both equity and debt– raised in Rule 506 offerings and Rule 144A offerings in 2011, which was $895 billion and $168 billion, respectively, compared to $984 billion raised in registered offerings,11), it has not worked the way the Commission intended. Data derived from Form Ds, a notice filing for offerings under Regulation D, between 2008 and 2010 show that over 90% of Regulation D offerings are made under Rule 506 (as opposed to Rules

504 or 505) and limited to “accredited investors,” including the vast majority of offerings of less than $1 million.12 Most scholars and practitioners agree that one of the main reasons for the over-reliance on Rule 506 is Congress’ enactment of the National Securities Markets Improvement Act (“NSMIA”) in 1996, which preempted state authority over the registration of securities offered under Rule 506, but did not do so with respect to offerings made under Rules 504 and 505.13 The effect has been that small issuers structure their small offerings to be compliant with Rule 506 and limited to accredited investors, which many contend has limited access to capital for many issuers.14 Fast-forward to 2012 and the passage of the Jumpstart Our Business Startups (JOBS) Act, signed by President Obama on April 5th of this year.15 The legislation was promoted by Congress and the White House as a bipartisan bill that will allow small and high-growth businesses to raise capital more efficiently and, as a consequence, create more jobs. The sentiment behind the Act was to reduce the regulatory burdens imposed by existing securities laws on relatively small companies so that they can raise capital less expensively and from more sources.

The JOBS Act has five key components: (1) creation of a new category of company, “emerging growth companies” (EGCs) and providing them with certain accommodations in the initial public offering (IPO) process and subsequent reporting obligations (Title I); (2) relaxation of the communication restrictions in private offerings (Title II); (3) creation of a new exemption allowing companies to utilize crowd-funding platforms to raise capital (Title III); (4) expansion of the scope of the exemptions from registration under Section 3(b) of the

Securities Act (Title IV); and (5) raising the trigger for when a company becomes subject to registration and reporting requirements under Section 12(g) of the Exchange Act (Title V and VI).

The law contains an ambitious timeline for SEC rulemaking, with the first rulemaking (under Title II) due on or before July 4, 2012. While the Commission did not meet this deadline, it released the proposed rules on August 29, 2012, and set a 30-day period for public comment.16 The Commission is now considering whether to adopt the proposed rules as written or to further modify them.

Title II of the JOBS Act: Changes for Private Offerings Section 201(a)(1) of the JOBS Act directs the Commission to amend Rule 506 of Regulation D to provide that the prohibition against general solicitation contained in Rule 502(c) of Regulation D not apply to offers and sales of securities made pursuant to Rule 506, as amended, so long as all purchasers of the securities are accredited investors and the issuer has taken reasonable steps to verify that purchasers are accredited investors.

Section 201(a)(2) directs the Commission to amend Rule 144A (a safe harbor rule for resales) to provide that securities sold pursuant to Rule 144A may be offered to persons other than “qualified institutional investors” (QIBs), including by means of general solicitation, provided that securities are sold only to persons that the seller and any person acting on behalf of the seller “reasonably believe” are QIBs. This rule relaxation will allow some form of general solicitation or general Continued on Page 10 

Nashville Bar Journal - November 2012

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FEATURE

The Moxie of Proxy Voting by the Tennessee Legislature by:

Everette Parrish What does a qualified Tennessee voter expect when they cast a vote for a representative to reflect their interests before the Tennessee legislature and who “founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends [has] at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper”?1 Why, a voter expects to be duly represented, that’s what!

Then why do members of the Tennessee legislature regularly delegate that unique responsibility to others in casting their votes on vital legislative matters, making assertions that they are “present”, when they are, indeed, “not present” when the roll is called up yonder?2 Perhaps in today’s society, it is important to multi-task, to be in more than one place at one time, to be doing multiple important things at the same instance in time, so it therefore requires others to replicate that appointed representative’s abilities to be effectively cloned and obviously therefore requires the use of a proxy vote. But is that really right? Legally, that is. Tennessee’s legislature feels the matter is insignificant and nothing worth shaking a stick at.

A stick?

Yes, it appears, the all convenient “stick” is just what the state’s elected representatives are fond of using when it comes to casting votes on behalf of non-present members in voting by proxy for that non-present member in voting “yea” or “nay” on the laws of Tennessee as well as affirming their physical presence in a room where they are not, in fact, physically present.3

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Nashville Bar Journal - November 2012

If two elected members of the House of Representatives share one desk and one of the elected members is not present, can the other present member vote for them on house bills and on votes which reflect the common interests of another’s district? Can one member by electronic means count the other present when the other is, in fact, NOT present?

Why, yes, evidently, by virtue of the fact that they are doing just that, whether constitutionally legal or not, House rules or not.

Evidently, the physically present member sharing a desk with another elected official representing a different Tennessee district is “sticking it” to the other non-present member’s voting button, by physically using a cane, broomstick, or even modified hockey stick in reaching over (well, not really reaching because, after all, they have the stick) and acting as that other non-present member. The present member is, therefore, casting a proxy vote for the non-present member. If this seems ridiculous and doubtful, please attend a legislative session in 2013, and decide for yourself, if this is actually happening.

Legally, the Tennessee Constitution states that “[e] ach district shall be represented by a qualified voter of that district.”4 It further states that, “[t]he votes of both Houses shall be determined by yeas and nays, and the names of all the members voting for or against the bill shall be entered upon the journals of their respective Houses.”5 Further, Article IV of the Tennessee Constitution states, “[i]n all elections to be made by the General Assembly, the members thereof shall vote viva voce, and their votes shall be entered on the journal.”6 So, obviously, the Journal is important. Physically present votes and stick votes are entered into the

Journal of the House, so often times, all 99 members will post to the Journal as present when only 60 or so will be physically present in the House at roll call.7

representative who is not there is actually “there” and able to vote? In Tennessee, the answer is, for now, “Yes.” Obviously, the concept of “present” is key.

Who tells the elected representative of each district what they can and cannot do in casting votes?

Rule 29 of the Tennessee House Rules of Order requires that: Any question or motion (except final passage of a bill) may be put to the House by a voice vote at the discretion of the Speaker; provided, however, that, as required by the Constitution of Tennessee … Whenever the electronic roll call system is used, the Clerk shall preserve the record of the votes of the members by making the printed roll call as authenticated by the roll call system a part of the rough journal. All members casting votes by the electronic roll call machine shall be at their proper desks [emphasis added] at the time for voting with the exception of the Speaker and sponsor moving passage of the bill under consideration. In the event the electronic roll call system is inoperative, all questions shall be put to the House by voice vote or by calling the roll as circumstances may require.12

Answer: The General Assembly, for the Tennessee Constitution states that, “[t]heir [the representative’s] qualifications and duties shall be prescribed by the General Assembly.”8 Further, each representative must follow the rules of the General Assembly.9 Upon oath, the individual elected member constitutionally swears personally, that they “as a member of this General Assembly, … will, in all appointments, vote without favor, affection, partiality, or prejudice; and … will not propose or assent to any bill, vote or resolution, which shall appear … injurious to the people, or consent to any act or thing, whatever, that shall have a tendency to lessen or abridge … rights and privileges, as declared by the Constitution of this state.”10 The Tennessee Constitution states that Tennessee voters are to choose representatives for each of their respective districts, and those elected representatives are then to follow the dictates of the General Assembly. So, what does the General Assembly require of each Representative?

It follows, then, that being at one’s desk is important when a question of motion is before the assembly.

Rule 11 of the Tennessee House Rules of Order requires that, “[i]n all votes other than those specifically provided for herein, a majority of those present [emphasis added] and voting shall be necessary to a choice, a quorum being present [emphasis added]”.11 What is meant by the complicated term, “present”? Do the voters who placed elected representatives into that side-desk physically require that same absent representative to be actually present, or can someone else in the adjoining seat extend their stick into their seat-mate’s vote buttons and say that the adjoining

If proxy voting happens in the Tennessee legislature contrary to General Assembly rules, and if being at one’s desk is required, then why do Tennessee representatives allow the ease of proxy voting by stick?

Does the stick’s power in voting someone as present supercede an individual’s constitutional right to equal representation? Perhaps the one voter’s one right to cast one vote is not impressed upon the General Assembly’s conscience to respect and regard the voter’s right to equal representation as a right worth protecting.

The elected representatives are obviously

too busy and too important to be at their voting desks all day just to vote the will of their district day in and day out for all of a few months beginning in January of each year.13 If everybody is doing proxy voting, it must be okay, right? Basic common sense and intellectual legalities reason that something in all of this is not right.

The United States House of Representatives banished all forms of proxy voting in 1995,14 reflecting the reverence and respect for its obligation endemic in oneperson-one-vote. The rules of the nation’s House of Representatives go so far as to plainly state, “Every Member shall be present within the Hall of the House during its sittings, unless excused or necessarily prevented, and shall vote on each question put.”15 Most importantly, it further states that, “[a] Member may not authorize any other person to cast his vote or record his presence in the House” and “[n]o other person may cast a Member’s vote or record a Member’s presence in the House.”16 Tennessee’s Uniform Rules of Committee’s disavow proxy voting for committees within the general assembly stating that, “No proxy votes shall be permitted in a standing committee for any purpose.”17 While the General Assembly is not a committee, but authorizes the same, how odd it is that the larger body practices the very same forbidden act denied to committees, but freely practices proxy voting for the citizens of Tennessee. Such moxie, indeed!

Recently, in Bush v. Gore, The United Supreme Court affirmed that, “[t]he right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercises. Having once granted the right to one person’s vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”18 Where is the equality in representation by one Tennessee voter if that Tennessee representative elected to cast votes on behalf of that one voter is nowhere to be seen at roll call Continued on Page 13  Nashville Bar Journal - November 2012

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SECURITIES FOR SALE! READ ALL ABOUT IT! Continued from page 7

advertising, provided that securities are sold only to persons reasonably believed to be QIBs, in the case of Rule 144A, and accredited investors, in the case of Rule 506 of Regulation D. This change applies to all issuers, but is limited to offerings under Rule 506 and 144A and does not affect any other private offerings claiming an exemption from registration under Section 4(a)(2) of the Securities Act.17 It is also worth noting that while the JOBS Act relaxes restrictions on the audience for communications, it does not eliminate anti-fraud rules.

Commission’s Proposed Rules The Commission is proposing to amend Rule 506 to provide that the prohibition against general solicitation shall not apply to offers and sales of securities made pursuant to Rule 506, provided that all purchasers of the securities are accredited investors and the issuer takes reasonable steps to verify that the purchasers are accredited investors. Specifically, the Commission proposed to create a new section (c) of Rule 506 that would permit the use of general solicitation to offer and sell securities so long as the following conditions are met: 1. The issuer must take reasonable steps to verify that the purchasers of the securities are accredited investors; and 2. All purchasers of securities must be accredited investors, either because they come within one of the enumerated categories of persons that qualify as accredited investors or that the issuer reasonably believes that they do at the time of the sale of the securities; and 3. All terms and conditions of Rule 501 (accredited investor definition) and Rules 502(a) (integration) and 502(d) (limitations on resale) must be satisfied. 18

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A significant portion of the Commission’s Release explaining the proposed rule discusses the verification requirement of the proposed Rule 506(c). The Commission decided not to specify the particular methods necessary, or even include a non-exclusive list of procedures, to satisfy the verification requirement.

The Commission instead chose to use an “objective determination, based on the particular facts and circumstances in each transaction” to determine whether the steps taken by an issuer are “reasonable.”19 Under this approach, an issuer should consider a number of factors, including, the nature of the purchaser and the type of accredited investor that the purchaser claims to be (i.e., brokerdealer, entity, natural person, etc.), the amount and type of information that the issuer has about the purchaser, and the nature of the offering (i.e., the manner in which the purchaser was solicited or whether a minimum investment amount was required by the terms of the offer).20 The Commission explained that this objective standard was preferred over a specified method to provide “sufficient flexibility to accommodate the different types of issuers . . . and the different types of accredited investors.”21 The Commission noted that despite the additional requirement that issuers making offerings under the proposed Rule 506(c) must take reasonable steps to verify that all purchasers are accredited investors, the definition of accredited investor under Rule 501(a), which includes the reasonable belief standard, remains unchanged.22 The Commission elected to create the new Rule 506(c) while preserving, under existing Rule 506(b), the existing ability of issuers to conduct Rule 506 offerings without the use of general solicitation.23 In the Release announcing the proposed rule, the Commission recognized that offerings under existing Rule 506 represented an important source of capital for issuers of all sizes and that some issuers may not wish to engage in general so-

licitation or may wish to sell privately to non-accredited investors who meet Rule 506(b)’s sophistication requirements. As a result, the Commission is also proposing to amend Form D, a notice required to be filed with the Commission by each issuer claiming a Regulation D exemption, to add a check box to indicate whether an offering is being conducted pursuant to the existing Rule 506(b) or the proposed Rule 506(c).

To comply with the JOBS Act mandate of Section 201(a)(2), the Commission also proposed to amend Rule 144A to allow securities sold pursuant to 144A to be offered to persons other than QIBs, including by means of general solicitation, so long as the securities are sold only to persons that the seller and any person acting on behalf of the seller reasonably believe are QIBs. Specifically, Rule 144A(d)(1) would be amended to eliminate references to “offer” and “offeree,” such that the rule, as amended, would require only that the securities are sold to a QIB or to a purchaser that the seller and any person acting on behalf of the seller reasonably believe is a QIB.24 In explaining the proposed rule changes, the Commission addressed a couple other areas that some early commentators speculated would be affected by the JOBS Act and subsequent SEC rulemaking. The Commission noted that with respect to privately offered funds, i.e., hedge funds, venture capital funds and private equity funds, it believes Section 201(b) of the JOBS Act permits such funds to make a general solicitation under the proposed amended Rule 506 without losing any of their exclusions under the Investment Company Act.25 The Commission also noted with respect to offerings under Regulation S, which provides a safe harbor for offers and sales of securities outside the U.S., that the Commission’s proposed amendments for Rule 506 and 144A do not change the Commission’s statement in adoptContinued on Page 18 

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BILL AND PHIL’S GADGET OF THE MONTH CLUB By: Bill Ramsey of Neal & Harwell, PLC and Phillip Hampton of LogicForce Consulting

The New Microsoft Surface Microsoft had a big month in October with the simultaneous release of the Windows 8 operating system and the Microsoft Surface RT tablet PC. We have been anticipating this release for some time and could not wait to get our hands on the new tablet. Would this tablet be the real iPad killer or just another in a long line of inferior competitors who failed to knock Apple of its perch? We had to know. So with credit card in hand, we ventured out to the new local Microsoft “popup” retail store at a local shopping mall and stood in line to purchase the flashy new Surface.

Just the optics of the Microsoft marketing campaign, the retail store, the friendly and knowledgeable staff, and even the packaging of the new Surface shows that Microsoft is stealing a page from Apple’s insanely successful iPad campaign. The stodgy corporate Microsoft image gives way to a more consumer-focused and hip vibe that emanates from the Surface roll-out. Indeed, the first impression of the Surface is that it is a wide-screen iPad-like device. We were offered an “out-of-box experience” from the nice Microsoft sales gal where one of their tech “gurus” would configure the Surface for us by linking to our email, calendar, contacts, photos, etc. We politely declined this free tutoring session knowing that any techie worth his salt wouldn’t need the Microsoft dude showing us how to configure our new gadget.

Perhaps if others follow our example and get their own Surface tablets, they might want to take advantage of this free tutoring session from the Microsoft folks. We managed on our own just fine, but we could have saved some time by letting Microsoft give us a jumpstart.

To understand Surface is to understand what Microsoft is doing with Windows 8. With the Windows 8 release, Microsoft is providing a new touch-enabled ecosystem that will run on tablet-style devices, ultrabook/tablet hybrid devices, and traditional PCs and laptops.

Surface is indeed a tablet (like the iPad); however, it is more. With the add-on touch keyboard (soft keys) cover or the type (mechanical) keyboard cover (which we opted for), a user can quickly convert the Surface tablet into a laptop. So what Microsoft is hoping is that users see the Surface as the best of both worlds: (1) a tablet convenient for internet browsing, media consumption, popular apps, and quick typing chores, such as email, instant messages, and tweets and (2) a laptop replacement device that one can use to do lengthier document/ spreadsheet/presentation editing. We do like this dual-functionality aspect of the Surface.

When you turn on the device you are presented with the new Windows 8 “modern” interface that features tiles representing different apps, information, websites, photo albums, etc. We quickly learned that these tiles are live (meaning they present dynamically changing data to the user, such as upcoming appointments, new messages from email or Facebook, etc.). We also learned that these tiles are customizable, so we quickly created tiles on the Windows Start screen for internet sites 12

Nashville Bar Journal - November 2012

that we frequent, as well as other apps that we use often.

These tiles are the most intuitive part of the new Windows ecosystem…very easy to customize and very convenient to access the data most important to us. Navigating this new interface is very intuitive also, especially when using Surface’s touchscreen. Sometimes finding options within an app (such as the Favorites bar in the Internet Explorer 10 app, for example) is not as intuitive. There are many online tutorial videos from Microsoft and others that will help users learn all of the “tricks” to getting the most out of your Windows 8 experience. We recommend taking advantage of this assistance.

Just beyond the flashy Windows Start screen sits the traditional Windows desktop and taskbar that we love and cherish. Windows 8 RT, the version of the operating system that comes on this first wave of Surface devices, comes bundled with Office 2013 Home and Student Edition. So with a few gestures on the touch screen, you can be editing a document in Microsoft Word via the touch interface or with the snap-on keyboard. Furthermore, you can install any software application to the desktop just like you do with a regular Windows PC. You are not restricted to just the “modern” apps that you can download from the Microsoft store. An HD video output port will allow you to connect a secondary monitor to the Surface, so you can have the modern touch interface on the Surface itself and display the traditional Windows desktop on the attached monitor. Excellent design.

Sometimes it’s the small things that really make a difference, and that is also the case with the Surface. The tablet comes with a built-in kickstand that allows the tablet to stand up on its own, which is very convenient.

Also, the inclusion of a USB port allows you to connect an external storage device or even a mouse. Furthermore, the keyboard dock and the port for the power cord are both magnetized so that the connectors snap into place with ease. All of these “little” features add up to a very pleasing experience when using Surface.

Of course everyone is going to compare Surface to the iPad, so we’ll give you our initial analysis. The entry-level price for a 32GB Surface is $499 which is the same amount you pay for a 16GB iPad. The larger wide-screen makes the Surface appear beefier and it even feels heavier than the iPad when holding it. Apple still has the market on simplicity as the iPad is much simpler to operate out of Continued on Page 13 

GADGET CONTINUED... the box. We suspect the Surface learning curve will be a bit steep for some people.

However, to be fair, Surface has a lot of capabilities that the iPad does not such as multiple user accounts on the device, ability to install and run traditional desktop software, and the ability to join a HomeGroup network.

When comparing the universe of apps available for Surface and iPad, this is where Apple is far superior at this point.

Just like Apple, Microsoft has a Store app on Surface that allows users to download all types of apps (some free and some feebased). With its three-year head start, however, Apple’s store has many more apps to choose from than the new Microsoft store. We were disappointed that some of our favorite apps, such as Pandora and Expensify, were not yet available in the Microsoft store. However, we expect that a flood of new Windows 8 apps will begin appearing in the Microsoft store as more Windows 8 devices find their way into users’ hands.

Overall, we really like the concept behind Windows 8 (an operating system for both traditional and new touch devices). Surface does represent a move to merge tablet functions (very much oriented toward entertainment and media consumption) with traditional laptop functionality.

As such, Surface is a great alternative to carrying both a tablet and a laptop. But we also think the jury is still out on what the best Windows 8 option will be. Other manufacturers are bringing new and innovative Windows 8 devices to market daily.

Microsoft will also introduce a Pro version of Surface in the coming months which might even be a better corporate laptop replacement device. In the meantime, if you blow all of your extra money on new tech gadgets like us, you’ll probably want to get a head start in the new world of Windows 8 by trying out Surface. n See you next month, Bill & Phil

The Moxie of Proxy Voting by the Tennessee Legislature Continued from page 9

or in voting for daily matters affecting the laws and statutes of that one voter’s district in Tennessee? Should the one voter accept the rationale that because everyone is doing it (proxy voting), and therefore it’s okay that the voter should ignore state or federal constitutional rights to expect exclusive and singular representation by the elected for the elector?

What part of “Present,” as in, “I’m here,” do Tennessee Representatives not understand?

Maybe the legislature has created a legalistic term of art to represent “Present” as meaning “not around when the roll is called” or that “vote my way while I’m out” is license for allowing one representative of one district to be empowered with the constitutional right of another’s equal representation duty to be made unequal by use of a stick. Proxy voting is certainly not authorized in any Rule of the Tennessee House of Representatives.19 If legislators are allowed to vote on behalf of one another, why can’t one individual voter in Tennessee vote for another on their behalf? Surely, the absent voter is just as busy and capable of multi-tasking as the elected legislator. Make no mistake, the right and privilege to vote is one so sacrosanct that no one who is a conscientious citizen will ever allow that to happen. One person’s one vote is so very important that it should be entrusted only to one legislator to vote according to his or her district. One vote must not be passed off to another colleague for mere scheduling convenience or suggest that there is another matter before an elected official more pressing than the duty to vote exclusively, singularly, and ever-presently for only the voters in each representative’s district. The elected must sacrifice for the good of the electors. Legislators in Tennessee should be mindful to forego their opportunity to be in more than one place at one time doing more than one thing at one time and focus singularly on the one thing that they were elected to do.

That is, vote. n Everette Parrish (attorney@ law4tn.com) is a proud Tennessee voter, an attorney in private practice, and a regular contributing committee member of the Nashville Bar Journal.

(Endnotes) 1

Tenn. Const. Art. I, § 1.

2

See News Channel 5’s April 27, 2012 report available at http://www.newschannel5.com/ story/17796991/nc5-investigates-state-lawmakers-ghost-voting.

3

See News Channel 5’s May 7, 2012 follow up report available at http://www.newschannel5.com/story/18168237/house-speakerreacts-to-ghost-voting-story. See also Steven Hale, Ghost Voting Fever: Channel 5 Puts Harwell on Record, Tenn Dems Wet the Bed, Nash.

Scene (May 27, 2012), available at http://www. nashvillescene.com/pitw/archives/2012/05/08/ ghost-voting-fever-channel-5-puts-harwell-onrecord-tenn-dems-wet-the-bed.

4 5 6

Tenn. Const. Art. II, § 5a.

Tenn. Const. Art. III, § 18.

Tenn. Const. Art. IV, § 4.

7

See News Channel 5’s April 27, 2012 report, supra note 4 ; see also Tennessee House of Representative’s Journal, available at http:// wapp.capitol.tn.gov/apps/publications/journal. aspx?chamber=H&GA=107.

8

Tenn. Const. Art. VII, § 1.

9

“Each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member, but not a second time for the same offence, and shall have all other powers necessary for a branch of the Legislature of a free state.” Tenn. Const. Art. II, § 12.

10 11 12 13

Tenn. Const. Art. X, § 2.

Tenn. House of Representatives, R. 11.

Tenn. House of Representatives, R. 29.

Tenn. Const. Art. II, § 8.

14

See U.S. Rules of the House of Representatives, One Hundred Twelfth Congress, R. 80, § 15 (2011). See also id. at R. 11, Clause 2(f).

15 U.S. Rules of the House of Representatives, One Hundred Twelfth Congress, R. 3, §1.

16

U.S. Rules of the House of Representatives, One Hundred Twelfth Congress, R. 3, §2 (a) & (b).

17 Tenn. House of Representatives, R. 80 “Uniform Rules Of Committees”, § 15.

18 George W. Bush V. Albert Gore, Jr., et al, 531 U.S. 98 (2000)(citing Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966)).

19

See Tennessee House of Representatives, One Hundred Seventh General Assembly, Temporary Rules of Order, available at http://www.capitol.tn.gov/house/ publications/107thRules032111.pdf.

Nashville Bar Journal - November 2012

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2013 NBA BOARD OF DIRECTORS NOMINEES (Please note: Nominees’ information is listed in the same order as the nominees’ names are listed on the ballot, which order was determined by a random draw.)

Joycelyn A. Stevenson has worked as an attorney at the law firm of Bradley Arant Boult Cummings, LLP for over 11 years.

She earned her undergraduate degree from Howard University in 1998 and her law degree from Vanderbilt University Law School in 2001. In 2009 she became one of the first two AfricanAmerican female attorneys to make partner at her firm. Joycelyn focuses a substantial part of her practice in the areas of commercial and employment litigation as well as business immigration law. She has served as a member of the NBA Minority Opportunities Committee for several years and has chaired and volunteered for the High School Minority Internship subcommittee in previous years. She was also named a 2011 Nashville Bar Foundation Fellow.

Stevenson is the Immediate Past President of the Lawyers’ Association for Women, Marion Griffin Chapter, the current President of the Council on Aging of Greater Nashville, a current member of the Nashville Farmers Market Board of Directors and an adjunct Professor of Law at Vanderbilt University Law School, where she teaches Employment Discrimination Law. Hon. Rachel L. Bell was elected to General Sessions Court Division VIII in 2012. Before becoming a Judge she was in private law practice with offices in both North and West Nashville. Bell has been very committed to her community and it has afforded her the opportunity to serve on the following boards: Hands on Nashville, Davidson County Industrial Development, Nashville Black Chamber of Commerce, Golfers Recognizing Opportunities for Women, Women in Numbers, Disciples Village, and Kaplan Career Institute. She has worked tirelessly as an active participant in both the legal community and the community at large. Bell is a member of the Nashville Bar Association, Napier-Looby Bar Association, Tennessee Bar Association, Lawyers Association for Women, Nashville Chamber of Commerce, Nashville City Club, CABLE, Delta Sigma Theta Sorority Inc., Top Ladies of Distinction, and the New Covenant Christian Disciples of Christ. She founded the Rachel L. Bell Foundation that allows high school juniors and seniors of Metro Nashville Public Schools to intern during their school breaks and apply for her college scholarship upon graduation.

The Foundation also focuses on disease management for Type I Diabetes and Graves disease (hyperthyroidism).The Nashville Chamber of Commerce has recognized Bell as one of Nashville’s Emerging Leaders (NELA) as a Finalist in Legal Services and the Nashville Business Journal has recognized her as an award recipient for 40 under 40.

Richard W. Littlehale is a supervisor in the Technical Services Unit of the Tennessee Bureau of Investigation’s Criminal Investigation Division. In addition to his duties as an investigative supervisor, he serves as an advisor and trainer in criminal law and procedure, and the Bureau’s Chief Firearms Instructor.

He received his undergraduate degree from Bowdoin College in 1992, and his J.D. from Vanderbilt in 1995.Littlehale served as the Treasurer of the NBA Young Lawyers Division in 2006, and the Treasurer of the NBA in 2009. He has contributed to YLD's Oyez! Newsletter and the Nashville Bar Journal, and is a Fellow of the Nashville Bar Foundation. Rich is a member of the Tennessee Bar Association Leadership Law class of 2006. He is a frequent presenter to community organizations on ways to protect children online. His particular areas of interest within the Bar include outreach to lawyers with non-traditional practices, attracting young lawyers to public service, and engaging the legal community on better ways to protect children from victimization.

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Saul A. Solomon has been the Metro Legal Director since February of this year. He received his B.A. from the University of Michigan in 1977 and his J.D. from the University of North Carolina in 1981. Since moving to Nashville in 1985, Solomon has held public sector (Assistant Public Defender) and various corporate positions, both in legal departments and in business units. Prior to becoming Metro Legal Director, he spent the previous 18 years at Bridgestone Americas, retiring from the Company in January, 2012 as the President of its Latin American Operations. Solomon has taught Sunday School at The Temple and is currently President of the Lost Boys Foundation of Nashville and is busily trying to find space for Lost Boy artists to paint and sculpt. Saul is fluent in Spanish and has a special interest in reaching out to the Spanish speaking community in Nashville.

Particular areas of interest include mentoring young lawyers and working with all new immigrants in the Nashville area.

Andrea P. Perry is a partner with Bone McAllester Norton PLLC. Prior to joining Bone, Andrea practiced with Miller & Martin PLLC. She received her undergraduate degree (magna cum laude) from the University of Memphis in 1996, and her law degree from Vanderbilt University in 2000. In 2012, Perry was the recipient of the Athena Young Professional Award.

She also was recently honored with the Napier-Looby Bar Association Outstanding Community Service Award in 2011 and the Nashville Business Journal Best of the Bar in 2009. She has been a member of the NBA’s Minorities Opportunities Committee since 2000. She is a founding member and Immediate Past President of the Tennessee Alliance for Black Lawyers (TABL). She currently serves as Co-Chair of LAW’s Programs/Events Committee. She is a former President of the Napier-Looby Bar Association, and currently serves on the Board of Directors of Napier-Looby. She also serves on the TBA CLE Committee, and is a 2008 graduate of the Tennessee Bar Association Leadership Law class. Perry is very active in the community, and presently serves on the Board of Directors of CASA and the Youth Life Learning Center. Bar issues of particular interest include access to the legal system for all, creating initiatives to promote diversity in the Nashville legal community and helping lawyers find work-life balance.

Matt Potempa is a solo practitioner at the Law Office of Matt Potempa, PLLC where he focuses on litigation and resolving probate, matrimonial and business disputes. He received his undergraduate degree from the University of Memphis in 2003 and his J.D. from the University of Arkansas at Little Rock in 2006. Potempa was honored to receive the NBA’s President’s Award in 2010 for his work in providing Disaster Legal Services after the May 2010 floods. He is also a recipient on the Nashville Bar Association YLD’s Leadership Award, the Tennessee Bar Association YLD’s President’s Award and numerous other accolades for his service to the Nashville, Tennessee and American Bar Associations. He is the founder and co-chair of the NBA’s Solo and Small Firm Committee and has also served on the Public Service Committee, LRIS Committee and Modest Means Panel. Potempa was recently named by the Nashville Post as one of the twenty “Law Leaders Rising” in the Nashville area and has been a finalist the last three years in the Nashville Chamber of Commerce’s Emerging Leaders Awards in the Legal Services category. Particular areas of interest include: improving civility and camaraderie in the local bar; adding value to NBA membership by continuing to improve the association’s technology and member resources; bridging the generational gap in our profession; and equipping young lawyers with the skills they need to solve client’s legal challenges.

Casting Your Ballot

Ballots for the election will be sent electronically to all eligible NBA members in early November at which point you will be asked to vote for six of the twelve nominees. We urge all members to participate in selecting the future leadership of the Nashville Bar Association. Dues for 2013 must be in good standing in order to vote (you will receive a notice if you have not yet renewed.) Election Results will be announced at the Annual Meeting & Banquet on December 6, 2012 (Registration for that event can be found on page 21 of the Nashville Bar Journal or you may register online at www.nashvillebar.org).

Lynda F. Jones is with The Jones Law Group, PLLC. She received a B.S. Cum Laude in Communications at the University of Tennessee in 1986 and her J.D. from the University of Memphis in 1989. Jones has served at the Chair of the NBA General Sessions Court Committee where she spearheaded a change in the local rules. She has served as the former editor of the Nashville Bar Journal and is a Fellow of the Nashville Bar Foundation.

She is currently a board member of the Morning Star Sanctuary for Domestic Violence, Nashville Soccer United, and the National Association of Women Business Owners. She is an alumnus of the Young Leaders Council and the Donelson-Hermitage Leadership Program. Particular areas of interest include promoting more transparency in the legal system and assisting new lawyers in establishing mentor relationships.

Hon. Randal S. Mashburn is a U.S. Bankruptcy Judge for the Middle District of Tennessee. Before going on the bench earlier this year, his practice focused on bankruptcy and commercial litigation, and he was a frequent mediator as well as court-appointed examiner and Chapter 11 trustee. He received his undergraduate degree from the University of Tennessee in 1976 and his J.D. from the University of Memphis in 1982.

Judge Mashburn is a Fellow of the Nashville Bar Foundation. He has been very active on several NBA committees and is a past chair of the NBA Bankruptcy Court Committee as well as heading up subcommittees dealing with CLE and local rules. He has been a speaker at dozens of seminars, including numerous CLE programs sponsored by the NBA. He is a founding member and past president of the Tennessee Association of Professional Mediators and is a past president of the MidSouth Commercial Law Institute. He is also a current board member of the Nashville Conflict Resolution Center, which provides pro bono and low cost mediation services. Particular areas of interest include alternative dispute resolution, civility in the litigation process, and the role of technology in providing greater access to justice.

M. Bernadette Welch is the Chief Administrative Hearing Officer for the Tennessee Department of Revenue. Previously, she worked in the Tax Division of the Tennessee Attorney General’s Office. She received her undergraduate degree (cum laude) from the University of Evansville, her master’s degree from Trevecca Nazarene University, her J.D. from Vanderbilt University, and her LL.M. in Taxation from the University of Florida.Welch taught public school for 12 years before attending law school. After graduation, she clerked for the Honorable Walter Kurtz in the Fifth Circuit Court for Davidson County. She is a member of the Nashville and Tennessee Bar Associations.

She served as Assistant Treasurer (2011) and currently is Treasurer of the Nashville Bar Association. She is a Fellow of the Nashville Bar Foundation, and a 2007 graduate of the Tennessee Bar Association’s Leadership Law program. She is active in the Lawyers’ Association for Women, Marion Griffin Chapter, where she has served as President (2008-2009); Treasurer (2006–2008); Archivist (2005-2006), Website Chair (2003-2004), and Breakfast Committee Co-Chair (2010-2012). She is also a member of the Harry Phillips American Inn of Court and has served on the Executive Committee and the Programs Committee since 2007.

David Green of Waller received his undergraduate degree from Tennessee State University in 2003 and his law degree from New York University School of Law in 2007. Green currently serves as the President of the Napier-Looby Bar Association and Treasurer of the Tennessee Alliance for Black Lawyers. He is a member of the National, Tennessee and Nashville Bar Associations, American Health Lawyers Association, Harry Phillips Inns of Court and R.H. Boyd Leadership Society.

Green serves as a mentor for KIPP Academy Nashville and is a former Board member of the Phoenix Club of Nashville. He is a member of Mt. Zion Baptist Church.Bar issues of particular interest include diversity in the legal profession, mentoring and the professional development of new attorneys, and access to quality representation for the poor and disadvantaged.

Kay S. Caudle is General Counsel, VP of Corporate Management for Smith Travel Research, Inc. (“STR”). As well as being STR’s sole in-house counsel, Kay manages legal affairs for STR’s subsidiaries and affiliates in both Colorado and London. She received her undergraduate degree from Vanderbilt University and her J.D. from the University Of Tennessee College Of Law. In addition to the NBA, Kay is a member of the Tennessee Bar Association, and the Lawyers Association for Women. Kay has chaired the NBA’s Attorney Health and Wellness Committee since 2009 and chairs the TBA’s Well-Being Committee. Kay served on Boult, Cummings, Conners & Berry’s Diversity Advisory Board and is an alumnus of Young Leaders Council. She is a sustaining member of the Junior League of Nashville, through which she was active with Ronald McDonald House and the Nashville Zoo. Kay volunteers at the Nashville Humane Association and serves on the Fund Development Committee for Big Brothers Big Sisters of Middle Tennessee. Bar issues of interest: fostering a supportive, collegial legal community; supporting attorneys in smaller corporate legal departments; raising the bar’s profile as a resource for members of public with limited access to legal representation; and encouraging meaningful mentoring for newer lawyers.

Rita Roberts-Turner has been an active member of the Nashville Bar Association since 1998, serving on the Minority Opportunities Committee, Nashville Bar Journal, and Government Attorneys Committee. She was honored as a Nashville Bar Foundation Fellow in 2011 and was recently elected the 2013 co-chair of the Minority Opportunities Committee. She is also the 2012 President of the NapierLooby Bar Foundation, and is a member of the Napier-Looby Bar Association, YMCA People Services Committee, and Society for Human Resource Management. She was recently recognized as a CPPW (Communities Putting Prevention to Work) Champion by the U.S. Department of Health and Human Services for her work with health and wellness initiatives throughout Nashville. Roberts-Turner received her B.A. in mass communications from Western Kentucky University where she graduated cum laude. She graduated from Temple University School of Law in Philadelphia, Pennsylvania in 1998 and is a former assistant public defender and a former attorney with the Metropolitan Department of Law where her areas of practice included civil rights, employment, and personal injury law.

She was the first African-American female chief of staff for the Mayor's Office in Nashville, Tennessee having been appointed in 2007 and currently serves as the director of the Metropolitan Government’s Human Resources Department.

Particular areas of interest include promoting the legal profession as a noble and respectable profession among traditionally underrepresented ethnic groups; increasing not only minority membership, but participation in NBA activities; and increasing membership among attorneys in diverse careers.

Nashville Bar Journal - November 2012

15

Profile

9/11 marked a change for our nation and for James Mackler, a member of the Nashville Bar, who left his successful litigation practice to enlist in the U.S. Army following the attacks on the World Trade Center and the Pentagon. After serving on active duty, including a combat tour in Iraq, Mackler returned to private practice and is a founder of the Nashville Bar Association’s Veterans Committee.

James Mackler by:

Kathleen Pohlid

“It was September 11,” Mackler said when asked what inspired him to join the Army. “So much of my personality just wanted to get into the fight. The very first thing I did was to apply to the FBI but they were not really hiring lawyers. So then, my focus shifted to the military.”

Although Mackler had been living in Colorado when 9/11 occurred, he had strong connections to both New York City and the Army. Both of Mackler’s grandfathers – Louis Groman, who had been a New York City police officer, and Harry Mackler, a dentist – served in the U.S. Army during World War II. Mackler was born in Washington, D.C. and lived in Nashville until kindergarten when his family moved to New York City.

After graduating from the Bronx High School of Science, Mackler went to Duke University, where he graduated summa cum laude in 1994, and to the University of Washington School of Law, where he graduated cum laude in 1997.

“I had to get an age waver to join,” Mackler said of his first hurdle in joining the Army. “I was 30 years old and worried about keeping up with the 18 to 19 year old recruits. I also wanted to enlist, rather than join as an officer so that I would have a better chance to get into flight school. It seemed like the coolest thing to do.”

Mackler completed basic training at Fort Sill, Oklahoma and was accepted into warrant officer school at Fort Rucker, Alabama followed by flight training and Survival Evasion Resistance and Escape (SERE) training. After becoming a helicopter pilot, he was assigned to the 101st Aviation Brigade at Fort Campbell and deployed for combat in Iraq from August 2005 to August 2006.

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“I figured the job of being a pilot would be fun,” Mackler said. “But it wasn’t. Everything has to be planned to the minute. That thought about it being fun was me being naïve. It is not like the Army is going to teach you to fly and then let you go fly around for fun. I think I learned humility in the military and a degree of empathy for others. It is easy for me to stay within a group in the military as we share a lot of values in life.”

Army flight school and military discipline instilled during training paid off on several occasions while Mackler served in Iraq. “There were occasions when we inadvertently flew at night into a dust storm,” Mackler said recalling his air assault missions. “You have on your night vision goggles but there is no field of reference. You always fly with two ships and our training teaches us to maintain a certain altitude and to trust our instruments. Otherwise, you can fly into the ground. It is this type of learning that becomes instinctive.”

Responding to threats during battle also became instinctive for Mackler. “We flew a colonel to visit various bases and we had just landed,” Mackler said, recalling his Thanksgiving in Iraq in 2005. “The pilots and crew were sitting on the ground talking about how this is the worst Thanksgiving we have ever had when someone fired a rocket that landed on the pad where we were. Fortunately, it was a dud and did not fully fragment. The senior officer told us to “get to the aircraft.” Normally, we have a checklist that takes us about 20 minutes to get started. We made record time and got airborne in five minutes.”

Mackler immediately took over the flying to search for the source of the enemy rocket. “That was the best flying I ever did. I got to fly fast and low and do everything to avoid being a target like not flying in a straight line.”

While serving in Iraq, Mackler realized he wanted to return to the law and decided to join the Army Judge Advocate General (JAG) Corps. “I missed being a lawyer,” he said. “I was in the cockpit flying and talking with soldiers who had legal problems. I will probably always be a better lawyer than a pilot.”

He completed his JAG training and graduated in 2007 from the Army Judge Advocate School in Charlottesville, Virginia as an honor student.

His first assignment after joining the JAG Corps was to Fort Knox, Kentucky where he was assigned to advise commanders on administrative law and ethics matters. He later became a criminal prosecutor. “I really liked prosecuting,” Mackler said. “I felt like I was fighting for the victims. It gave me a lot of experience. I tried about 40 cases during a four year period on active duty. These included very serious criminal cases – kidnap, rape, murder, child abuse.”

The Army also returned Mackler to the Middle Tennessee area, where he was assigned at Fort Campbell as the Division’s Senior Trial Counsel. Mackler became active with the Temple congregation in Nashville and met and married its rabbi, Shana Mackler. The Macklers have two daughters Sylvie and Hannah.

After leaving active duty in 2011, Mackler joined Bone McAllester & Norton, PLLC where he practices in civil litigation, regulatory compliance, and criminal defense. Earlier this year, Mackler was named as a finalist for the Nashville Emerging Leader Award in Legal Services. He has also been named by the Nashville Business Journal to their

“Forty Under 40 class” and named a “Law Leader Rising” by the Nashville Post.

Mackler has found that his experience in the Army has sharpened his skills as a lawyer in private practice. “In the military, I had experience advising commanders on a broad range of issues. You get the perspective of having worked under real stress and are able to remain calm and clear, even if the client can’t.

You also remember your role. The lawyer advises and the commander decides.”

Charles Bone, a founder and chairman of the firm, said his colleagues were impressed with Mackler both as an attorney and as a veteran. “We were moved by his story that he would be committed enough to not just go into the military but to go in as a helicopter pilot,” Bone said. “He is an amazing person with impressive legal accomplishments and scholarship. We were delighted for him to join us.”

Stacey Garrett, also a founder of the firm and chair of its board of directors, said that she enjoys working with Mackler and can always count on his support for firm charitable and community efforts. “He is so much fun and a real trooper. I told him about Over the Edge, my pet charity, where I rappel down our building to raise money for Special Olympics. He said, “I’ll do it,” and he did. We raised over $2,000 for Special Olympics. He rocks. Not many people would do that to help.”

Mackler’s professional focus is on serving his clients with respect to regulatory compliance and criminal defense.

However, he continues to serve in the Army reserves as a trial defense lawyer.

He also helps veterans with military related separations and transitions. “I think of veterans like myself who are in the workplace as well placed entrepreneurs who can help.” This perspective inspired him to initiate the Veterans Group with the Nashville Bar. “I found myself seeking out people with similar military backgrounds. We are in a great position to benefit and do community service to benefit veterans.” n Kathleen Pohlid is a member of the Nashville Bar Association and serves on the editorial board for the Journal. She is also a retired Marine Corps Officer and practices in employment law and litigation with DHPM, PC.

Stacey Garrett and James Mackler rappel down their building for Over the Edge, a charity event that benefits Special Olympics.

Nashville Bar Journal - November 2012

17

SECURITIES FOR SALE! READ ALL ABOUT IT! Continued from page 10

ing the release for Regulation S, which is that “[o]ffshore transactions made in compliance with Regulation S will not be integrated with registered domestic offerings or domestic offerings that satisfy the requirements for an exemption from registration under the Securities Act,” including “domestic unregistered offerings that are conducted in compliance with Rule 506 or Rule 144A, as proposed to be amended.”26 Comments When the JOBS Act legislation was proposed, many critics, including Commission Chairman Mary Shapiro and former New York Governor Elliot Spitzer, worried publicly about the bill’s relaxation of important investor protections, including existing prohibitions on general solicitation and advertising for private offerings.

Since the bill’s passage, the Commission solicited comments from the public on its proposed rulemaking required by the JOBS Act both before and after issuing the current rule proposals. The Commission received more than 160 comments on the proposed rule changes, including submissions from Senators and Members of Congress, State Securities Commissioners, representatives of the American Bar Association (“ABA”), consumer and investor advocacy groups, and various practitioners and individuals, and has published all comments at www.sec.gov/ rules/proposed.shtml.

The Federal Regulation of Securities Committee of the Business Law Section of the ABA largely approved of the proposed rules. Specifically, the Committee supported the preservation of the existing Rule 506(b) for Rule 506 offerings without the use of general solicitation as well as the view that the accredited investor verification should be an objective determination based on the particular facts and circumstances of each transaction. The Committee also supported the Commission’s continued inclusion of the “reasonable belief” standard in

the definition of “accredited investor” in Rule 501(a). In its letter, the Committee asked the Commission to provide issuers with transitional guidance in the final rule or release as many issuers may be in the process of offering securities and may determine after final implementation of the rules that they want to use general solicitation for the remaining portion of the offering and no such guidance was offered in the proposed rule. Many of the other practitioner comments supported the Commission’s flexible approach to the amended rules.

Comments expressing concern with the proposed rules largely focused on the Commission’s elimination of the general solicitation ban and on the lack of specificity regarding the verification of accredited investor status under the amended Rule 506. Senators Jack Reed, Carl Levin, Dick Durbin, Tom Harkin, Frank R. Lautenberg, Al Franken, and Daniel K. Akaka submitted a letter urging the Commission to establish specific “methods,” including “common-sense documentation and/or verification practices and procedures,” issuers must use in order to qualify taking “reasonable steps” to verify that only accredited investors participate in the offering. The Senators also contended that the Commission misconstrued the Section 201 mandate with respect to general solicitation and urged the Commission to “significantly revise” the rules and not adopt elimination of the prohibition on general solicitation, but instead to promulgate “clear, objective, and meaningful regulation of the manner or substance of general solicitation that may be allowed in private offerings.” The Senators also thought the Commission’s rules should differentiate between issuers engaged in operational businesses and “those that are merely investment vehicles.” Specifically, the Senators believe “Congress did not contemplate removing the general solicitation ban – without retaining any limitations on forms of solicitation – for private investment vehicles,” such as hedge funds or private funds. Many

state securities Commissioners urged the Commission to place reasonable restrictions on the use of advertisements and some suggested further rulemaking, such as adding the requirement that a Form D be filed in advance of any public advertising.

The Commission stated that it will consider all public comments before finalizing the proposed rules and has not set a deadline for releasing the final rule changes.

Conclusion Most practitioners appear to agree that the JOBS Act and the Commission’s proposed amendments will improve issuers’ and resellers’ access to capital; however, these amendments, along with the other changes under the JOBS Act, do little to fix what many have found problematic with the current Regulation D scheme – namely that smaller issuers with smaller offerings will still structure offerings under Rule 506 (whether under the amended 506(b) or 506(c) with its associated higher transaction costs, rather than utilize Rules 504 and 505.

One part of the JOBS Act that offers the most hope for smaller issuers wanting to make smaller offerings is the crowdfunding provisions (Title III of the JOBS Act).

Title III of the JOBS Act requires the SEC to create a new exemption from registration allowing a private company to sell securities in small amounts to a large number of investors that are not accredited over a 12-month period.27 The SEC is further directed to establish new rules that exempt funding portals from broker-dealer registration as long as they are subject to the authority of the SEC and are a member of a national securities association, among other requirements. Compensation of funding portals will also be subject to rules that require disclosure of receipt of compensation.

Continued on Page 20 

18

Nashville Bar Journal - November 2012

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Deposit products and services are offered through SunTrust Bank, Member FDIC. Investment and Insurance Products: Are not FDIC or any other Government Agency Insured • Are not Bank Guaranteed • May Lose Value SunTrust Private Wealth Management is a marketing name used by SunTrust Banks, Inc. and the following affiliates: Banking and trust products and services, including investment advisory products and services, are provided by SunTrust Bank. Securities, insurance (including annuities) and other investment products and services are offered by SunTrust Investment Services, Inc., an SEC registered broker-dealer and a member of the FINRA and SIPC, and a licensed insurance agency. Investment advisory products and services are offered by SunTrust Investment Services, Inc., RidgeWorth Capital Management, Inc., and GenSpring Family Offices, LLC, investment advisers registered with the SEC. © 2012 SunTrust Banks, Inc. SunTrust is a federally registered service mark of SunTrust Banks, Inc. Nashville Bar Journal - November 2012

19

SECURITIES FOR SALE! READ ALL ABOUT IT! Continued from page 18

The JOBS Act is attempting to harness the enthusiasm surrounding crowd-funding platforms, like Kickstarter (www. kickstarter.com), a funding portal for creative projects.28 These platforms currently exist in a non-securities context, but the legislation’s supporters hope the new exemptions will allow investment by “non-wealthy” individuals in a relatively low-risk manner. Importantly for many issuers and their advisors is that securities acquired pursuant to these new crowd-funding provisions will also be exempt from qualification under state blue sky laws. That being said, the JOBS Act preserves state enforcement authority over unlawful conduct by issuers and intermediaries (funding portals) and with respect to fraud or deceit. n

of the Securities Act. The Commission did not have general exemptive authority under the Securities Act until Section 28 was added in 1996. See Law of Private Placements, supra note 4, at 91.

The Commission was directed by Congress, albeit after the regulation’s adoption, to balance investor protection and capital formation. 15 U.S.C. § 77b(b) (2006) (“the Commission shall also consider, in addition to the protection of investors, whether the action will promote efficiency, competition, and capital formation”).

The Regulation D framework starts with offerings up to $1 million and contains no disclosure or purchaser sophistication requirements (Rule 504). The next “stair” in the regulation is for offerings between $1 million and $5 million (Rule 505), which requires the issuer in most cases to disclose investment information to the purchasers. Rule 506 allows an issuer to offer and sell securities, without any limitation on the offering amount, to an unlimited number of “accredited investors” and to no more than 35 non-accredited investors who meet certain “sophistication” requirements so long as the issuer, or any person acting on its behalf, does not offer or sell the securities through any form of “general solicitation or general advertising.” 17 C.F.R. 230.504, .505, and .506.

7

Rutheford B. Campbell, Jr., The Wreck of Regulation D: The Unintended (and Bad) Outcomes for the SEC’s Crown Jewel Exemptions, 66 The BUS. LAW. 919-42, at 921 (Aug. 2011).

8

9

Tracy Kane is an attorney with Dodson, Parker, Behm & Capparella, P.C. where she advises businesses on wide ranging transactional matters, including company formation, operation, mergers and acquisitions, intellectual property, and succession planning.

(Endnotes) 1

Securities Act § 4(a)(2), 15 U.S.C. § 77d(2) (2006).

2

SEC v. Ralston Purina Corp., 346 U.S. at 125.

3 Non-Public Offering Exemption, Securities Act Release No. 4552, 27 Fed. Reg. 11316, Fed. Sec. L. Rep. (CCH) ¶ 2770 (Nov. 6, 1962).

4 Id.; Other factors courts and practitioners consider in determining whether an offering is a private offering exempted from registration under Section 5 of the Securities Act include the relationship between issuer and offerees as well as between offerees and each other, the size of the offering, number of units offered, the type, access and content of information provided to offerees, and whether purchases are made with a view to resell.

See Committee on Federal Regulation of Securities, ABA Section of Business Law, Law of Private Placements (Non-Public Offerings) Not Entitled to Benefits of Safe Harbors – A Report, 66 The BUS. LAW. 85-124 (2010).

5 See, e.g., 1972 - Rule 144 (resales of securities acquired from an issuer or control person); 1974 – Rule 146 (issuer offerings), which were rules adopted under Securities Act § 19(a), 15 U.S.C. § 77s(a), which authorizes the Commission to define terms used in the statute.

6 See 17 C.F.R. §§ 230.501-.508 (2011). The rules were adopted in Revisions of Certain Exemptions from Registration for Transactions Involving Limited Offers and Sales, Securities Act Release No. 33-6389, 47 Fed. Reg. 11251 (Apr. 14, 1982) (codified at 17 C.F.R. pts. 230 & 239). Regulation D consists of Rules 501 through 508 with Rules 501 through 503 and Rules 507 and 508 providing general rules of support for the exemptions found in Rules 504 through 506. Regulation was also an interpretative rule and while it uses the language of exemption, it was adopted pursuant to the Commission’s authority to define terms under Section 19(a)

20

Nashville Bar Journal - November 2012

17 C.F.R. § 230.502(a).

See Use of Electronic Media for Delivery Purposes, Release No. 33-7233 (Oct. 6, 1995) [60 Fed. Red. 53458] at Ex. 20; Use of Electronic Media, Release No. 33-7856 (Apr. 28, 2000) [65 Fed. Reg. 25843] at n.79-80 and accompanying text.

10

See Eliminating the Prohibition Against General Solicitation and General Advertising in Rule 506 and Rule 144A Offerings, Release No. 33-9354, at 8 [77 Fed. Reg. 54464].

11

4.4% of all Regulation D offerings are under Rule 504, 1.6% under Rule 505, and 94% under Rule 506. Further, 88.3% of offerings of $1 million or less and 91.8% of offerings between $1 million and $5 million are made under Rule 506 and limited to accredited investors. See Campbell, supra note 8, at 926-31.

12

13 In theory, Rules 504 and 505 were intended to be less expensive and less onerous on issuers, but if an issuer sells to persons located in more than one state, the issuer’s transaction costs increase substantially in order to either comply with each state’s registration requirements or find an exemption within such state.

Regulation D defines “accredited investor” to include, among other categories, a natural person “whose individual net worth, or joint net worth with that person’s spouse, at the time of his purchase exceed $1,000,000” and “who had an individual income in excess of $200,00 in each of the two most recent years or joint income with that person’s spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year.”

14

17 C.F.R. § 230.502(a)(5), (a)(6) (2011). Over the last 30 years, the number of individuals meeting the threshold for accredited investor status has increased, mainly because the annual income test has not been adjusted, but the relative number of persons who satisfy the accredited investor requirements remains a small portion of the general population. In 2010, the Dodd-Frank Act made the most meaningful revisions to the definition of accredited investor by excluding from the calculation of net worth the value of an individual’s personal residence.

15 Pub. L. No. 112–106, 126 STAT. 307 (to be codified in scattered sections of 15 U.S.C.).

16 Eliminating the Prohibition Against General Solicitation and General Advertising in Rule 506 and Rule 144A Offerings, Securities Act Release No. 33-9354, 77 Fed. Reg. 54464 (Sept. 5, 2012) (17 C.F.R. Parts 230 and 239).

See Eliminating the Prohibition Against General Solicitation and General Advertising in Rule 506 and Rule 144A Offerings, Securities Act Release No. 33-9354, at 11 (noting that other bills that would have amended Section 4(a)(2) itself to permit the use of general solicitation were considered, but not enacted, by Congress.

See Access to Capital for Job Creator, H.R. 2940, 112th Cong. (2011); Access to Capital for Job Creators, S. 1831, 112th Cong. (2011)).

17

Eliminating the Prohibition Against General Solicitation and General Advertising in Rule 506 and Rule 144A Offerings, Securities Act Release No. 33-9354, at 11-12.

18

19

Id. at 14.

20

Id. at 14-20.

21

Id at 14.

22

Id. at 29.

23

Id. at 12.

24

Id. at 37.

Id. at 31-32 (citing, e.g., 15 U.S.C. 80a-3(c)(1) and (c)(7)).

25

26

Id. at 39-40.

Section 302(a) of the JOBS Act requires that the aggregate amount sold to all investors by the issuer during the 12-month period is not more than $1,000,000. It also limits the total amount sold to any investor depending on the investor’s annual income or net worth.

For example, if the annual income or net worth of an investor is less than $100,000, then the total amount sold to such investor may not exceed the greater of $2,000 or 5% of the annual income or net worth of such investor. For investors with an annual income or net worth equal to or greater than $100,000, then the amount sold may not exceed 10% of the annual income or net worth of such investor.

27

28 To avoid the characterization as sales of securities, companies like Kickstarter facilitate rewards or the pre-purchase of products in exchange for funding of projects.

ANNUAL MEETING & BANQUET DECEMBER 6, 2012 WILDHORSE SALOON

WE HOPE TO SEE ALL NBA MEMBERS THERE!

A reception for the general membership is set to begin at 5:30 p.m., with dinner and the program to begin at 7:00 p.m.

The passing of the gavel from President John Kitch to President-Elect Tom Sherrard introduction of the NBA officers for 2013, and award presentations are just a few of the events on the agenda for the evening.

Name:___________________________ BPR#:__________ Phone:_____________ Email:___________________________ Guest:_______________ Member?

Member?  Yes  No

 Mail Form to:

Nashville Bar Association 150 Fourth Avenue North, Suite 1050 Nashville, TN 37219



Or Fax Form or Call: Fax: 255-3026 - Phone: 242-9272

Guest:_______________ Member?

Member?  Yes  No

 Or Register Online:

Guest:_______________ Member?

Member?  Yes  No

www.nashvillebar.org

Guest:_______________ Member?

Member?  Yes  No $_________ Regular Registration - $99 per person

(received before November 29, 2012) $_________ Non-Member or Late Registration - $109

per person (received after November 29, 2012) $_________ TOTAL (All prices include open bar until

8:00 p.m.)







Total Amount: $__________________________ Credit Card #: ___________________________ Exp. Date: ______________ C V V Code: ________ (three digit code on the back of card)

Billing Address: _____________________________ Signature: _______________________________

Nashville Bar Journal - November 2012

21

Disclosure J. Allen Roberts has joined Baker, Donelson, Bearman, Caldwell & Berkowitz, PC as a shareholder. He will concentrate his practice in general business law, mergers and acquisitions and private equity and debt offerings, including private placements of convertible debt, preferred stock, common stock and warrants. A frequent lecturer on mergers and acquisitions and corporate issues, Roberts is a 1995 graduate of the University of Tennessee College of Law where he was the research editor of the Tennessee Law Review. He is a member of the Tennessee Bar Association and is active in the American Bar Association.

Susan Blair, Director of Continuing Legal Education for the Nashville Bar Association, will serve as Co-Chair of the The Association of Continuing Legal Education’s (ACLEA) annual meeting to be held in Baltimore, Maryland in August 2013. Blair will work with Co-Chair Larry Center, Assistant Dean – Academic Conferences and CLE at Georgetown Law Center CLE, and with Donna Passons, Executive Director of ACLEA. Susan has served on the ACLEA Board of Directors, chaired various committees and task forces and has been a presenter at many of the association’s meetings Sean Wlodarczyk has joined Anderson & Reynolds PLC. Before joining the firm he served as the judicial clerk to the Honorable Thomas W. Brothers. Wlodarczyk obtained his law degree from Vanderbilt University Law School and is licensed to practice law in Tennessee. While in law school, Mr. Wlodarczyk served as Articles Editor for the Vanderbilt Journal of Entertainment and Technology Law and was on the Dean’s List for academic achievement. He is currently a member of the Nashville Bar Association and the Harry Phillips American Inn of Court.

22

Nashville Bar Journal - November 2012

\Dis*clo”sure\ (n) The act of revealing, releasing or bringing to light relevant information concerning NBA Members & Staff. n Announcements n Kudos n People on the Move n Firm News n Tracy L. Childress has joined Reno & Cavanaugh, PLLC as an Associate. Her practice will emphasize land use law, sustainable development, and real estate law, including the representation of lenders, developers, and non-profits. Childress received her Juris Doctor from the University of Tennessee College of Law and received her Masters in Arts in City and Regional Planning from the University of Pennsylvania.

Tera Rica Murdock, a trial lawyer at Waller, has been honored by the Cystic Fibrosis Foundation as one of Nashville’s Top 30 Under 30 professionals. Murdock was recognized for her philanthropic involvement, exemplary leadership qualities and professional success as an attorney. Murdock is a member of the Nashville, Tennessee, and American Bar Associations, the Lawyer’s Association for Women, and a board member with the Nashville Bar Association Young Lawyer’s Division, on which she serves as chair of the Homelessness Committee.

Brooks R. Smith has been named as vice-chair of Bradley Arant Boult Cummings LLP’s Real Estate Practice Group. Smith advises clients on matters related to commercial real estate, commercial financing, and general business transactions. He focuses his practice on real estate transactions, with a specific emphasis on acquisitions and development; health care industry real estate acquisitions, development, leasing and dispositions; complex commercial financing transactions; and lease transactions. He regularly represents lending institutions in all types of real estate financing, and has had significant experience advising lenders in the workout and restructuring of loans. He holds a J.D. from the University of Tennessee College of Law and a B.A. (cum laude) from University of the South, Sewanee.

Adams and Reese has added an additional office in Tallahassee, Florida.

The firm’s Southern footprint already includes Florida offices in Tampa, St. Petersburg, and Sarasota. The addition of a Tallahassee increases the firm’s size to over 50 attorneys in Florida, and over 300 attorneys and advisors firmwide.

Outside of Florida, the firm also has offices in: New Orleans and Baton Rouge, LA; Memphis, Downtown Nashville, and Nashville Music Row, TN; Birmingham and Mobile, AL; Houston, TX; Jackson, MS; and Washington, DC. Martha L. Boyd has joined Baker, Donelson, Bearman, Caldwell & Berkowitz, PC as a shareholder. Boyd concentrates her practice in labor and employment law and employee benefits litigation. She has represented employers in all types of litigation in state and federal courts and assists employers in assessing and reducing risk associated with personnel decisions and policy implementation. After serving in the U.S. Army for six years on active duty as a Military Intelligence officer, Boyd continued her service in the Reserves, serving as a Civil Affairs officer with the 350th Civil Affairs Command in Baghdad, Iraq during Operation Iraqi Freedom. In 2010, she was appointed by Tennessee Governor Phil Bredesen to the Governor's Council on Service Members, Veterans & Their Families.

John M. Scannapieco has joined Baker, Donelson, Bearman, Caldwell & Berkowitz, PC as a shareholder. Scannapieco will serve as co-leader of the Firm's Global practice team. His focus on international law includes working with a variety of U.S.-based companies in connection with their business activities in China, Japan, Europe, the Americas and Africa.

He is counsel to the Tennessee Chinese Chamber of Commerce and a board member of the Nashville Area Chamber of Commerce's International Business Council.

DIAL - A - LAWYER Dial-A-Lawyer is held the first Tuesday of each month.

October Volunteers: Christopher Boiano Stephanie Boiano Helen Cornell Tom Lawless Doug Pierce

To volunteer your time, please contact Wendy Cozby, LRIS Coordinator at wendy. cozby@nashvillebar.org or 242-9272. Pro Bono credit does apply and dinner will be provided.

Sarah Davis, Davidson County Assistant District Attorney General, was recognized for her work with domestic violence victims. Davis was presented with the Sherry Jones Award for Outstanding State Government Official during the “Meet Us at the Bridge” memorial for victims of domestic violence homicide.

The ceremony is an annual event in October to remember those who have lost their lives at the hands at a loved one, and to recognize individuals whose work benefits victims of domestic violence. Davis has been an Assistant DA for 12 years, three of which were in the Domestic Violence Division. Davis received her undergraduate degree from the University of Notre Dame, where she graduated magna cum laude with a B.A. in English. She was graduated with a J.D. from the Vanderbilt University School of Law, and while attending law school, interned with the Davidson County DA’s office.

WELCOME NEW NBA MEMBERS Melissa J. Anderson Velez & Cruz, PLLC

Gere L. Beason Law Office of Gere L. Beason

Raquel N. Parker Baker, Donelson, Bearman, Caldwell & Berkowitz, PC*

Justin T. Campbell Garfinkle, McLemore & Young, PLLC* Rachel N. Carden

Jonathan Robert Patton Dickinson Wright PLLC*

Candace M. Carter

Fred C. Pickney

J. Taylor Chenery Bass, Berry & Sims PLC

Erika S. Piland

Mary H. Cocke Moses Townsend & Russ, PLLC*

Benjamin S. Pitts Laura E. Price

Todd G. Cole ColeLaw Group

Clarence Risin Baker, Donelson, Bearman, Caldwell & Berkowitz, PC*

Russell T. Cook Russ Cook & Associate, PC

Carrie Ann Searcy Butler & Associates

John Cheek Eason Jr. Bass, Berry & Sims PLC

Jackie E. Sharp Jr.

Thomas L. Fielder Fielder & Johnson, PLLC

Van Austin Shaver Baker, Donelson, Bearman, Caldwell & Berkowitz, PC*

Macy G. Forrest Amie Gibbons

Brittany Bartley Simpson Baker, Donelson, Bearman, Caldwell & Berkowitz, PC*

Nathan Richard Glassman Glassman, Edwards, Wyatt, Tuttle & Cox

Shawn Patrick Sirgo Sirgo & Associates, PC

James Walter Hovious Jr. Erica Rachael Johnson Susan R. Limor, Attorney at Law, P.C.

Scott Douglas Smith Baker, Donelson, Bearman, Caldwell & Berkowitz, PC*

Julie Watson Lampley Butler, Snow, O'Mara, Stevens & Cannada, PLLC*

Peter A. Malanchuk Constangy, Brooks & Smith, LLP

Jean C. Michel Law Offices of Jean C. Michel Terri L. Nolan EMI Christian Music Group, Inc.

Jonathan Rutledge Burns Watkins & McNeilly, PLLC*

Erin K. White

Eric M. Larsen Papa & Roberts, PLLC* Nashville Bar Association members may send Disclosure announcements via email to nikki.gray@nashvillebar.org Submissions are subject to editing.

Amber S. Marrow-Jones

Thomas Wyly Whitworth Manier & Herod, P.C.*

Yan Yang

* Belongs to a 100% Club firm

Nashville Bar Journal - November 2012

23

Classifieds

100 Oaks/Berry Hill.

Building in eclectic neighborhood of Berry Hill available for lease September 1st. This building of approximately 2100 square feet has a large conference room with white oak paneling and a crab orchard fireplace, a large reception area, five offices, a full kitchen and one and a half baths. It is in exceptional shape, inside and out.

Numerous recent improvements. $2,200.00 per month plus utilities. Berry Hill codes will also allow the owner of the business who locates there to live there as well. To view contact Bill Britt, 615/681-5857. MLS 1368580. For more information go to: http://listings.realtracs. com/Reports/EmailPublicReports.aspx?EmailID =49429049&reportid=3n Brentwood Office share with two established attorneys Wireless, Fax, Phone, Copy, Cable, Storage, Free Parking, Space for your administrative assistant. Chapple Building 5115 Maryland Way - $ 1000 per month, plus incidentals and expenses negotiable. Fore more information contact: grant@gglassford.com or todd@roberttoddjacksonlaw.com.

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Share office space with established attorneys near historic downtown Murfreesboro Square. Two offices available, more available in 2013. $600.00/month/office, includes utilities, library, receptionist, three conference rooms, spacious lobby, internet availability. Optional amenities include large fully stocked kitchen, telephone answering services. Outdoor signage available. Contact pat.blankenshipinvestmentgroup@gmail.com.

Mature lawyer seeks opportunity to associate with established small firm in Hendersonville or Nashville area. Interested in creditors representation, probate and real estate. Also have background in tax and employment related matters. Let's see if we have mutual interests. Please contact me at tsplaw@comcast.net

Midtown Midtown : 682 square feet with beautiful view of Centennial Park; $19.15 per square foot with annual increases; available as is or with build-out cost to be prorated over term of sublease; space is newly carpeted and newly painted, with small kitchen area; covered parking; available immediately.

Please call 615-321-5659.

CC

Advertise your Office Space in the Nashville Bar Journal

Nashville Bar Journal Classifieds Online at www.nashvillebar.org

Visit the NBA's Career Center and Get Started Today:

Downtown Office condos for Lease or Sale. 500 to 2500 sq. feet. 501 Union Street, 5th floor. Near Legislative Plaza. Call Lynne at (615) 259-1550.

DOWNTOWN Law firm has office space to rent for two attorneys and assistants, if needed or option 2 attorney can sublease entire suit which will accommodate four to five attorneys and staff. Office is located in the Regions building downtown on the first floor with window view. Includes internet, all utilities, use of copy/fax/scanner, and postage machine. If interested, please e-mail rpnimmo@nimmolaw.com or contact Price Nimmo at 615-244-2244.

DOWNTOWN Prime, A++ office space with two conference rooms for lease in the 5th 3rd Bank Tower, Downtown Nashville. State of the art copier, scanner, fax, high speed internet access, digital phone system and receptionist all provided. Receptionist provided to answer your phone line and greet your clients. $1,750.00 per month. Contact: John Agee @ (615)256-5661 or (615)218-7131.

DOWNTOWN OFFICE SPACE AVAILABLE NEAR COURTHOUSE Downtown office space available on the first floor in the historic Barristers Building at 329 Union Street in Nashville. Four offices, library, conference room, kitchen, secretary space and reception area available. One block from courthouse, banks and restaurants. Call Jonathan Williams, 615-256-8880.

24

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Advertising:

Classified Advertising: Rates: $75 for the first 50 words and $1 for each additional word.

Contact Tina Ashford at (615) 242-9272 or tina.ashford@nashvillebar.org

Available Sections: Expert Witness, For Sale, Positions Wanted, Forensic Document Examiner, Technical Support Services, Office Space, Litigation Services, Office Sharing, and Accounting.

Nashville Bar Journal - November 2012

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During the long-term illness or disability of aging loved ones, your clients may discover that the pieces don’t always fall into place.

Point them in the right direction with a referral to Elder Law Practice of Timothy L. Takacs.

For nearly two decades our Certified Elder Law Attorney and Elder Care Coordinators have been helping families protect assets, find high-quality care and navigate the long-term care system.

When your clients need help putting the pieces together, send them to Middle Tennessee’s most trusted elder law firm.

Call Elder Law Practice of Timothy L. Takacs.

Middle Tennessee: (615) 824-2571 Cumberland Plateau: (931) 268-5761 Toll-Free: (866) 222-3127 Family Website: www.tn-elderlaw.com Professional Education Website: www.elderlaweducation.com

Life Care Planning Elder Law Estate Planning Care Coordination