Growth in software patents draws mixed reactions

A story from National Public Radio looks at the issue of patents in the software industry and the growing number of lawsuits being filed by so-called "patent trolls," which amass patents and then demand companies license the technology. Many of these patents are so broad, engineers say, that everyone's guilty of infringement. And computer programmers and enterpenuers say the practice is hindering innovation.

Read the full story here.

Women-Owned Small Business Federal Contract Program

Latest News Release: February 1, 2011 – SBA Expands Access to Federal Contracting Opportunities for Women-Owned Small Businesses

Memo from the Administrator:

On October 7, 2010, the U.S. Small Business Administration published a final rule effective February 4, 2011, aimed at expanding federal contracting opportunities for women-owned small businesses (WOSBs). The Women-Owned Small Business (WOSB) Federal Contract program authorizes contracting officers to set aside certain federal contracts for eligible:

Women-owned small businesses (WOSBs) or
Economically disadvantaged women-owned small businesses (EDWOSBs)

http://www.sba.gov/content/contracting-opportunities-women-owned-small-businesses

Court Reviews Whether an Employee Relinquished a Promised Ownership Interest When He Signed a Subsequent Employment Contract

STEPHEN BROWN v. COLUMBIA PRECAST, LLC, ET AL. (Tenn. Ct. App. July 22, 2011)

An employee was promised 10% ownership interest in the company he worked for if he stayed with the company for six years. When the time came to transfer the employee's 10% interest to him, however, the parties learned that the tax laws then in effect made the transfer impractical at that time. The parties therefore decided to delay the transfer.

The parties entered into a contract the following year which the employer interpreted to mean that the employee was giving up his 10% ownership interest in exchange for a raise in his salary plus 10% of the company's net profits each year. The employee claimed he did not give up his 10% ownership interest and sued the company and former majority owner for his 10% interest when the company was sold a few years later.

The trial court concluded the employee did not give up his 10% ownership interest by signing the later agreement and awarded the employee 10% of the company's net profits for the years following the employee's termination plus 10% of the ultimate purchase price. We affirm the trial court's judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2011/brownss_072211.pdf

State Supreme Court remeasures height of discovery hurdle

Coming out of Habitat case, standard required to sue employer unchanged
Published July 22, 2011 by Philip Nannie

Employers take note.

The good news is the state's highest court didn't make it easier for an employee to sue a company. The bad news is it didn't make it any harder, either.

Tennessee Supreme Court judges on Thursday issued an important ruling clarifying the burden of proof for employees suing for retaliatory discharge. Representatives of the state's largest employers were anticipating this decision, the result of which won't make future firings any easier.

Complete article may be found at: http://nashvillepost.com/news/2011/7/22/state_supreme_court_remeasures_height_of_discovery_hurdle

Knoxville Region is #1 in Green Job Growth

Knoxville is the nation’s fastest growing area for green jobs according to a report, “Sizing the Clean Economy: A National and Regional Green Jobs Assessment,” released by the Brookings Institute. Knoxville saw green jobs grow by 14.6 percent annually between 2003 and 2010. During that period the region added 10,000 green jobs, and now clean economy jobs account for 4.9 percent of all jobs in the Innovation Valley. The measure of the concentration of green jobs ranks Knoxville 2nd in the nation.

Complete article may be found at:
http://www.knoxvilleoakridge.com/news-releases/knoxville-region-1-green-job-growth

Forbes Ranks Nashville #6, Knoxville #26, and Clarksville #87 “Best Places For Business and Careers”

Forbes: The Best Places for Business and Careers

Forbes recently issued a list of the Top 100 best cities for businesses and careers, and several Tennessee cities made the list:

6 – Nashville
26 – Knoxville
87 – Clarksville

According to their methodology, they looked at the 200 largest metropolitan statistical areas in the United States. They considered 12 metrics relating to job growth (both past and projected), costs (business and living), income growth, educational attainment and projected economic growth. They also factored in quality of life elements such as crime rates, cultural and recreational opportunities, and net migration patterns. Finally, they included the number of highly-ranked colleges in an area according to their annual college rankings.

Court Reviews Whether an Implied Partnership Existed Between Two Parties and Whether Certain Property was Subject to Divestiture

REBECCA GRIBBLE WADDELL v. GREGORY C. RUSTIN (Tenn. Ct. App. July 7, 2011)

This case stems from a lawsuit over an alleged implied partnership. Rebecca Gribble Waddell ("Waddell") and Gregory C. Rustin ("Rustin") were involved romantically for a number of years. After the couple separated, Waddell sued Rustin in the Chancery Court for Jefferson County ("the Trial Court"), alleging, among other things, that a partnership existed between Waddell and Rustin.

The Trial Court held, inter alia, that there was no partnership between Waddell and Rustin and ordered divestiture of certain property from Waddell to Rustin. Waddell appeals to this Court, and both parties raise multiple issues. Rustin also argues that this appeal is frivolous. We affirm the judgment of the Trial Court on all issues except for that concerning divestiture of certain property from Waddell, which we reverse. We decline to hold this appeal frivolous. We affirm, in part, and, reverse, in part.

Full opinion available at:
http://www.tba2.org/tba_files/TCA/2011/waddellr_070711.pdf

Attorney General: Amazon can be pushed on taxes

TN Attorney General Issues Opinion Upholding a Bill that would Require Amazon to Pay State Sales Taxes (Nashville Business Journal)

Tennessee's Attorney General issued an opinion upholding the constitutionality of a proposed bill that would require Amazon to pay state sales taxes. The opinion supports the argument that the building of distribution centers in Tennessee creates a physical presence, or “nexus,” which can trigger sales-tax requirements; however, the Attorney General declined to explicitly state that Amazon, which is building several distribution centers in Tennessee, has a sales-tax obligation to the state.

You can read the full text of the opinion here:
http://www.tba2.org/tba_files/AG/2011/ag_11_52.pdf

Court Reviews Whether the Tennessee-Based Income of a Delaware Limited Partnership are subject to Taxation in Tennessee

H.J. HEINZ COMPANY, L.P. v. LOREN L. CHUMLEY, COMMISSIONER OF REVENUE, STATE OF TENNESSEE (Tenn. Ct. App. June 29, 1011)

Plaintiff/Appellant H.J. Heinz Company, LP, is a Delaware limited partnership that manufactures, sells and distributes food products. Plaintiff operates a facility in Nashville, Tennessee. The issue in this case is whether Plaintiff's income from its investment in HJH One, LLC, is subject to taxation, on an apportionment basis, in Tennessee.

The trial court determined that the earnings constituted business earnings as defined by the relevant statutes, and that the Department of Revenue's assessment of franchise and excise taxes on the earnings was constitutional. The trial court further determined that the apportionment formula used by the Department was correct. The trial court awarded summary judgment to the Commissioner, and Plaintiff appeals. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2011/hjheinz_062911.pdf

TN Supreme Court Reviews Whether Various Agreements for the Sale of a Corporation were Contrary to Public Policy and, Thus, Unenforceable

WENDELL P. BAUGH, III ET AL. v. HERMAN NOVAK ET AL. (Tenn. May 20, 2011)



This appeal raises the issue of whether a contract for the sale of an interest in a corporation and related indemnity agreements are unenforceable because they are contrary to public policy.

The sellers of the corporate interest filed suit against the purchasers in the Chancery Court for Williamson County seeking damages for the purchasers' alleged breach of their indemnity agreement. The purchasers counterclaimed asserting, among other things, that the sellers had fraudulently induced them to purchase the interest in the corporation.

Following a bench trial, the trial court awarded a $201,715.50 judgment to the sellers and dismissed the purchasers' counterclaim. On appeal, the Court of Appeals, on its own motion, invalidated the stock purchase agreement and the related indemnity agreements on the ground that they were contrary to the public policy reflected in Tenn. Code Ann. section 48-16-208 (2002). Baugh v. Novak, No. M2008-02438-COA-R3-CV, 2009 WL 2474714 (Tenn. Ct. App. Aug. 13, 2009).

We granted the sellers' Tenn. R. App. P. 11 application for permission to appeal and now find that the Court of Appeals erred by finding that the agreements at issue in this case were contrary to public policy. We have also determined that the evidence fully supports the trial court's decision to dismiss the purchasers' counterclaim for fraudulent inducement. 


Opinion available at:

http://www.tba2.org/tba_files/TSC/2011/baughw_052011.pdf

Court Reviews Whether Injunctive Relief was Proper in a Case Involving a Dispute Between an Employer and a Former Employee

OTTER'S CHICKEN TENDER, LLC v. JOEY COPPAGE (Tenn. Ct. App. June 28, 2011)

This appeal arises out of a breach of contract action between a restaurant and its former employee. On cross motions for summary judgment, the court resolved all issues between the parties except whether attorney fees should be awarded and whether a permanent injunction should be issued against the employee. The court subsequently dismissed both parties' claims for attorney fees and extended a temporary injunction previously entered.

Both parties appeal the denial of attorney fees; in addition, defendant asserts that the trial court erred in extending the temporary injunction. Finding that the court erred in determining that plaintiff was not the prevailing party, we reverse the court's denial of attorneys fees to plaintiff and remand for an award of fees for time spent pursuing injunctive relief; we affirm the court's action in extending the temporary injunction.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/otters_062811.pdf

Guy's bankruptcy 'handbook' shares secrets

Nashville lawyer Bobby Guy recently wrote and published a book entitled Distress to Success. The book is billed as a "handbook for business leaders trying to turn around their company, as well as for investors trolling the market for a good opportunity."

The Nashville Business Journal talks to Guy about the book. Check out the full story here:
http://www.bizjournals.com/nashville/print-edition/2011/06/24/nashville-bankruptcy-lawyer.html

Court Reviews Whether Plaintiff is Entitled to Unpaid Wages and Reimbursement for the Cost of Educational Courses Taken During His Employment

WILLIAM BRIAN TAYLOR v. THE DEL-NAT TIRE CORPORATION (Tenn. Ct. App. June 13, 2011)



Plaintiff sued his former employer, claiming that he was entitled to unpaid overtime pay and reimbursement for the cost of educational courses he took while employed by the employer. Following a bench trial, the trial court awarded the plaintiff overtime pay, reimbursement for the courses, and attorney's fees. We reverse the decision of the circuit court and vacate the award.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/taylorw_061311.pdf

Advice for business: Hire an attorney (Tennessean)

A small business just starting out needs a "strong three-legged stool to support it," columnist Jeff Cornwall writes. "The three legs should consist of a strong attorney, a CPA and a business banker." Cornwall explains why it's best not to do-it-yourself when it comes to these jobs.

Chris Sloan, an attorney with the Nashville office of Baker, Donelson, Bearman, Caldwell & Berkowitz, weighs in saying that the best way to avoid a nasty business breakup later is with an agreement that addresses issues like decision-making, dispute resolution, what happens if someone dies or wants to leave, and how and when to shut or sell the business. "With a good agreement, you accomplish two things," Sloan says. "First, you avoid a dispute down the road, and second, you have a chance to preserve the personal relationships."

Read the full story at the Tennessean's website: http://www.tennessean.com/article/20110509/BUSINESS/305090019/Startup-entrepreneurs-need-good-business-attorneys

Tennessee Adventure Tourism and Rural Development Act approved in Senate Finance Committee

The Senate Finance Committee has approved legislation to enact the Tennessee Adventure Tourism and Rural Development Act. The objective is to establish a plan for Tennessee to promote outdoor recreational opportunities in rural, high-employment areas of the state to create jobs. Senate Bill 1205 would direct the Department of Economic and Community Development and the Department of Conservation and Environment to perform a study and create a plan to promote adventure tourism and other recreational and economic development activities in rural areas.