2015 Tennessee Business Law Conference: Materials Only
Held in Nashville Friday, May 15, 2015
The all-new Tennessee Business Law Conference packed one day with leading authorities delivering critical law practice guidance on the hottest topics and some of the most complex issues you’ll face.
- Piercing the corporate veil, including factors to consider, parent/subsidiary liability, “reverse piercing,” and effect of Hobby Lobby
- Liability and fiduciary duties of corporate officers and directors to the corporation and the shareholders
- A step-by-step guide to a “business divorce” – from fact-finding to the “end game”
- Recent changes to the Tennessee Nonprofit Corporation Act – optional changes to governing documents
- Key considerations in selecting a business entity – for example, using series LLCs and new hybrid alternatives
- Drafting LLC operating agreements – key provisions to include
- Professional entities in Tennessee – when to use, liability considerations, and management services
- Ethics for attorneys in business disputes – including understanding the scope of your representation
- Alexander J. Davie, Riggs Davie PLC, Nashville
- Keith C. Dennen, Dickinson Wright PLLC, Nashville
- Cole Dowsley, Thompson Burton PLLC, Franklin
- J. Nelson Irvine, Chambliss, Bahner & Stophel, P.C., Chattanooga
- Mark Ison, Sherrard & Roe, PLC, Nashville
- Thomas K. Potter, III, Burr & Forman LLP, Nashville
- Andrew J. Pulliam, Wyatt, Tarrant & Combs LLP, Nashville
- Richard Spore, Bass, Berry & Sims, PLC, Memphis
Your Outstanding Faculty
Alexander J. Davie is a corporate and securities attorney with the Nashville law firm of Riggs Davie PLC. Mr. Davie’s legal practice encompasses a wide variety of corporate, finance, and real estate matters. He has worked extensively with entrepreneurs, startups, and emerging companies on all aspects of their businesses, including company formation, business planning, mergers and acquisitions, vendor and customer contracts, corporate governance, debt and equity financings, and securities offerings. He has also drafted the formation documents of a number of private funds, including hedge funds and real estate investment partnerships. He also counsels investment advisers on their regulatory obligations, such as initial state or SEC registration and ongoing compliance with advertising rules, fiduciary standards, and policies and procedures. In addition, Mr. Davie has represented investment advisors, securities brokers, hedge funds, private equity funds, and real estate partnership syndicators in numerous private offerings of securities and in ongoing compliance. Prior to returning to private practice, he served as the general counsel to a private investment fund manager. Mr. Davie is active in the Nashville Bar Association, serving as chair of its Business Law Committee. He earned his Bachelor of Arts degree in economics at the University of Pennsylvania, graduating magna cum laude; and his Juris Doctor degree at Duke University School of Law, graduating with high honors. While in law school, Mr. Davie served as the managing editor of the Duke Law & Technology Review. In addition, he earned his Master of Education degree in organizational leadership from Peabody College at Vanderbilt University.
Keith C. Dennen is a member of the Nashville law firm of Dickinson Wright PLLC, where his main areas of practice are litigation, franchise law, hospital law, health care, commercial law, corporate law, intellectual property, and employment. Mr. Dennen is a frequent lecturer on ethics and has spoken to various groups, including the American Bar Association’s Forum on Franchising. He is the editor of the Tennessee Ethics Handbook—2nd edition and the Tennessee Local Rules of Court. Mr. Dennen earned his B.B.A. and his J.D. degrees from the University of Memphis. He is a former chair of the American Bar Association’s Young Lawyers Ethics and Professionalism Committee and the former chair of the Tennessee Bar Association Young Lawyers Division’s Ethics and Professionalism Committee.
Cole Dowsley is a Partner at Thompson Burton, PLLC, in Franklin. Mr. Dowsley is a commercial litigator who has extensive experience resolving business-related disputes involving a wide variety of legal issues. His practice includes handling trials and appeals in state and federal court, in addition to alternative dispute resolution forums, such as mediation and arbitration. He has served as counsel to clients in courts and arbitration forums across the country, including Florida, Illinois, Kentucky, New York, South Carolina, Tennessee and Texas. He was selected as a Mid-South Rising Star by Super Lawyers Magazine for 2014. Mr. Dowsley’s practice includes representing companies and individuals in various business disputes, including breach of contract, partnership disputes, restrictive covenants in employment contracts, fraud, real estate/construction disputes, theft of trade secrets and securities violations. A significant portion of his litigation practice is devoted to the representation of multilevel marketing (MLM) companies and top distributors in lawsuits concerning cross-recruiting, non-competition, non-solicitation, violations of policies and procedures, trade secrets, sales organization raiding and defamation. He has also represented companies and individuals in proceedings brought by regulatory agencies, including the Securities and Exchange Commission and Tennessee Securities Division.
J. Nelson Irvine is Of Counsel with Chambliss, Bahner & Stophel, P.C., in Chattanooga. Mr. Irvine has advised and represented clients in connection with business and corporate planning, family business succession planning, closely held business organizations, mergers and acquisitions, joint ventures and related transactions for more than 40 years. His experience includes advisory roles for founders, owners, investors and managers, including privately held investment funds in such industries as capital intensive manufacturing and real estate, as well as negotiating asset sales and acquisitions, mergers and combinations. He has advised startup organizations as well as existing businesses regarding financial and capital structures and management and governance alternatives of various forms of business entities, including corporations (C corps and S corps), limited liability companies (“LLCs”), single-member LLCs, limited and general partnerships. He has provided mediation and litigation advice in connection with disputes and issues involving partnerships and limited liability companies. Mr. Irvine has formed and advised nonprofit and tax-exempt organizations involved in a variety of charitable activities in connection with corporate transactions, acquisitions and combinations and strategic planning. Mr. Irvine is the author of articles for the Tennessee Bar Journal, has published partnership entity and transaction forms, and participates in seminars and educational programming in the areas of his expertise, experience and practice.
Mark Ison is a member of Sherrard & Roe, PLC in Nashville, where he advises physicians, allied health professionals and various other health care professionals and entities, on a wide variety of federal and state health care regulatory, reimbursement and compliance issues. He also works with clients in both health care and non-health care areas with respect to operational and transactional issues, including employment matters, management and professional services arrangements, leasing arrangements, and the formation, operation, purchase and sale of professional practices, health care entities and companies in other industries. Mr. Ison graduated from Vanderbilt University Law School in 2004, where he was a Dean’s Scholar, served as Notes Development Editor for the Vanderbilt Law Review and was elected Order of the Coif. He is a member of the American, Tennessee and Nashville Bar Associations and the Executive Council of the Health Law Section of the Tennessee Bar Association, a member of the American Health Lawyers Association, and has served as an adjunct instructor at the Belmont University School of Law. He is a regular presenter of seminars on physician practice issues, including fraud and abuse and physician employment.
Thomas K. Potter, III, is Managing Partner of Burr & Forman LLP’s Nashville office and has over 25 years of experience representing business interests in securities, corporate and intellectual property disputes. Mr. Potter represents broker-dealers and investment bankers in disputes from multi-district mutual-fund class actions to state-court jury trials on derivatives contracts, government enforcement actions, and constitutional challenges to municipal securities rules to customer arbitrations. He represents labels and artists in music copyright litigation over several multi-platinum rock and hip-hop albums, and manufacturers in product-configuration trademark and software interface infringement litigation. In addition to disputed matters, he advises broker-dealers, municipal and investment advisors on regulatory and compliance matters. He assists companies with internal investigations, regulatory and compliance matters. Mr. Potter has extensive experience in alternative dispute resolution (ADR), having tried scores of arbitrations, and sits as an arbitrator and Panel Chair for the Financial Institution Regulatory Authority (FINRA). He is a frequent author and speaker on a number of legal matters.
Andrew J. Pulliam is a partner with the law firm of Wyatt, Tarrant & Combs, LLP, in Nashville, where he practices in the areas of commercial litigation, insurance, trusts and estates, probate, and health care. Mr. Pulliam has successfully handled numerous complex litigation matters, including trials in state and federal courts. These matters include cases involving claims in the areas of insurance law, construction law, regulatory law, contract law, commercial law, real estate law, corporate and business law, banking law, securities law, franchise law, constitutional law, administrative law, health law, employment law, trust and probate law and property tort law. He has also successfully handled appeals related to such cases. He is the author of article entitled “Toward the Creation of Federal Bioethics Commission and Model Rules of Bioethical Conduct: A Proposal of Legal and Ethical Guidelines for the Rapidly Expanding Medical Genetics Field,” 19 Med. L. Quarterly 1 (Parts 3 & 4 1995). Mr. Pulliam earned his B.S. degree from the U.S. Naval Academy and his J.D. degree from Vanderbilt Law School. He is a member of the Nashville, Tennessee, American and Federal (past president, Nashville Chapter) bar associations.
Richard Spore, with Bass, Berry & Sims, PLC in Memphis, in 25 years of practice, has advised hundreds of real estate investors and other capitalists on how to best reach their business objectives through three primary areas: commercial real estate and lending, business and transaction planning, and business divorce. Mr. Spore has represented private investors, publically traded REITs and institutional lenders in commercial real estate projects across the nation. He has been at the center of numerous high profile transactions in Memphis, including landmark buildings and projects such as International Place, Crescent Centre, Clark Tower, Overton Square and Sears Crosstown. He brings passion and curiosity about the law, and a practical, results-oriented approach to structuring complicated deals, creating plans to solve a wide range of complex business problems, and helping clients execute on those strategies. His practice involves Real Estate – representing clients in commercial real estate and lending transactions involving office, retail, industrial, multi-family, hotel/hospitality, timber and agricultural land; represents both landlords and tenants in commercial lease transactions, including complex build to suit leases; advises developers on a variety of development projects and public/private partnerships, including various payment-in-lieu-of-taxes (PILOT) matters; represents publicly traded REITs in acquisitions and portfolio financing; represents borrowers, lenders and investors involved in distressed real estate situations – Business and Transaction Planning – advising investors and private company owners in a wide variety of investment partnership, joint venture and start-up situations – and Business Divorce – advising business owners, partners or co-investors who no longer get along. Mr. Spore has taught business law and business planning to undergraduate and graduate business students and to law students. He has taught dozens of classes and seminars to lawyers, business executives and commercial real estate professionals and has published award-winning articles in regional and national publications. His third book, The Guide to Business Divorce, was published by the American Bar Association in 2012. He also chaired the committees that adopted Tennessee’s current laws in the areas of limited liability companies and general partnership entities. He has been actively involved in firm management having served on the firm’s executive committee and recently been named as the managing partner of the firm’s Memphis office. He has also served on several nonprofit boards, including a two year term as President of the Board of Directors of Memphis Botanic Gardens, where he helped lead the Board during the MBG’s construction of a world class $6,000,000+ Children’s Garden.
8:00 A.M. to 8:45 A.M.
“Piercing the Corporate Veil in Tennessee: What Your Business Clients MUST Know”
Cole Dowsley, Thompson Burton PLLC
- Principles of limited liability
- Piercing the corporate veil – factors courts consider
- Parent/subsidiary liability – Bankers test
- Piercing the corporate veil – case law
- Reverse piercing
- Effect of Hobby Lobby case
8:45 A.M. to 9:45 A.M.
“Corporate Officer/Director Liability”
Thomas K. Potter, III, Burr & Forman LLP
Officers and directors of a corporation have fiduciary duties to the corporation and to the shareholders (including to minority shareholders). In some cases, corporate officers and directors may even owe fiduciary duties to creditors of the corporation. These fiduciary duties exist irrespective of the fact that the officer or director has never expressly agreed to assume the duties, responsibilities and potential liabilities of a fiduciary. A phrase used by the courts very frequently to describe the fiduciary duty of a corporate officer or director is “utmost good faith.” Corporate officers and directors, as fiduciaries, have an obligation to refrain from acting in their own best interests, with respect to decisions made in their fiduciary capacity, where doing so would conflict with the interests of the corporation or its shareholders. When corporate officers or directors breach a collective fiduciary duty, those officers and directors may well be held jointly and severally liable. When a court applies the principle of joint and several liability, each defendant is held liable for all of the damages awarded by the court. Mr. Potter will discuss the fiduciary duties owed to a corporation by a director or an officer and explain the liabilities faced by these individuals if these fiduciary duties are breached.
9:45 A.M. to 10:00 A.M.: MORNING BREAK
10:00 A.M. to 11:00 A.M.
“Representing a Client in a Business Divorce”
Richard Spore, Bass, Berry & Sims, PLC
A “business divorce” occurs when the business owners conclude that the benefits of continuing their business relationship are outweighed by the costs (economic or human) to such an extent that continued ownership of the business is no longer an option. Let Richard Spore, the author of The Guide to Business Divorce, walk you through the process of closing a business in Tennessee.
- Business analysis
- Legal analysis
- The potential role of litigation in the business divorce
- Refinement of goals and objectives based on the business and legal divorce
- The end game
11:00 A.M. to 12:00 P.M.
“Tennessee Nonprofit Corporation Act: Optional Changes to Governing Documents”
J. Nelson Irvine, Chambliss, Bahner & Stophel, P.C.
On January 1, 2015, the Tennessee Nonprofit Corporation Act saw several major changes take effect. These changes will impact both existing nonprofit organizations and new formations. Mr. Irvine will discuss the changes to the default charter and bylaw provisions, the new optional charter and bylaw provisions, and other miscellaneous changes. You’ll learn about:
- Sending notices electronically
- Standards of conduct for officers and duty to inform
- Standards of conduct for directors and duty to disclose
- Director indemnification and limiting director liability
- Mergers, membership exchanges, two types of conversions, and sales of assets
- The 45-day notice period
12:00 P.M. to 1:15 P.M.: LUNCH ON YOUR OWN
1:15 P.M. to 2:00 P.M.
"Nuts and Bolts of Professional Entities in Tennessee"
Mark Ison, Sherrard & Roe, PLC
Professional service businesses formed by individuals who require a license to provide a service, such as those of attorneys, doctors, dentists, accountants, engineers, or architects, are often permitted or required to be organized as entities such as professional corporations or professional limited liability companies. Understanding when to use a professional entity and the implications of that choice are critical to meeting your clients' needs. Mr. Ison will walk you through the "nuts and bolts" of professional entities in Tennessee, including:
- Tennessee law regarding the "corporate practice" of various professions
- When to use a professional entity, and limitations on who may participate in its ownership and management
- Liability considerations, including professional liability issues and the protection of personal assets from business liabilities and from the acts of others in the business
- Management services and "friendly PC" arrangements involving nonprofessionals
- Termination and buyout considerations
2:00 P.M. to 3:00 P.M.
“Ethics for Attorneys in Business Disputes”
Andrew J. Pulliam, Wyatt, Tarrant & Combs LLP
How quickly can you settle a business dispute? Can you reach a resolution that secures your client’s bottom line, while preserving relationships with clients, partners, suppliers and customers, all while advoiding inadvertent missteps that may violate ethical guidelines? Mr. Pulliam will show you how to settle a business dispute without violating the rules of professional conduct. You’ll learn about:
- Negotiating in good faith
- Who is the client – understanding the scope of your representation
- Maintaining settlement confidentiality before, during and after litigation
- Rules for directly contacting the opposing party
- Rules of conduct for acting as a neutral third party
3:00 P.M. to 3:15 P.M.: AFTERNOON BREAK
3:15 P.M. to 4:15 P.M.
“Drafting LLC Operating Agreements”
Alexander J. Davie, Riggs Davie PLC
State statutory fiduciary dutiesLLC Operating Agreements, while viewed by many as routine, are often among the most complex legal documents a business law practitioner may draft. Mr. Davie will walk you through some of the more significant issues involved, including:
- Management structures
- State statutory fiduciary duties
- Exculpation and indemnification
- When to choose Delaware instead of Tennessee
- Buy-sell provisions
- Economic vs. tax provisions
4:15 P.M. to 5:15 P.M.
“Key Issues Impacting Business Entity Selection”
Keith C. Dennen, Dickinson Wright PLLC
- Analyzing financing concerns – the question of debt
- Factoring in equity
- Charging orders and foreclosures of LLC membership interests
- What about series LLCs?
- Using new hybrid alternatives
- Liability and operational implications
- What does management style have to do with it?
- Case law update