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Articles, Books & Whitepapers

And The Defense Wins

The Voice, DRI, July 16, 2014
by John L. Tate

DRI member, John Tate, of Stites & Harbison, PLLC, won a defense verdict for Leatt Corporation in Scarvelli v. Leatt Corporation (Case No. 1:12-CV-00483), a product liability lawsuit in U.S. District Court for the Northern District of Ohio after a two-week trial ending April 17, 2014.

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The Supreme Court Redefines 'Exceptionality' and Lowers Bar for Recovery of Attorney Fees in Patent Suits

Business Law Today, American Bar Association, Vol. 23, Issue 10, June 2014
by Joel T. Beres and Melissa Hunter Smith

Patent infringement litigation is expensive, and the cost of that litigation can make or break a company. By the same token, even our nation’s largest and healthiest companies are spending millions of dollars on arguably meritless patent litigation brought by non-practicing entitites and, at the end of the case, they have nothing to show for it but a hefty legal bill. The Patent Act allows a successful party to recover its attorney fee expenses from the other party under certain circumstances. 

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Ten Things Employers Should Know About Wellness Programs

Nashville Area Chamber of Commerce's HR newsletter, February, 2014
by Andrew R. Jacobs

In recent years, many employers have instituted employee wellness programs to encourage good health, lower medical costs, and improve employee productivity and attendance. Initially, large employers were the primary proponents of wellness plans, but now many small and mid-sized companies sponsor wellness programs. Wellness programs can take many forms. Some focus more on disease management while others focus more on healthy lifestyles and habits.

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Subcontracting is a Risky Business: Ensuring Payment on Public-Private Partnerships?

Insurance, Surety & Liens, newsletter of Division 7 of the ABA Forum on Construction, December 2013
by Zachary D. Jones

Construction projects are like onions—and ogers—they have many layers. On a typical construction project an owner will contract with a general contractor who will then contract with subcontractors, who may themselves contract with even lower tier subcontractors. Ultimately, there tend to be many intermediaries between subcontractors doing the work and owners who benefit by the work on construction projects. One problem that results from this for subcontractors is how they ensure payment for their work if the contractor with whom they have contracted refuses to pay?

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Let’s give health law a chance to work

The Tennessean, October 3, 2013
by Jerry W. Taylor

The House of Representatives has resorted to the “nuclear option” in shutting down the federal government in pursuit of a quixotic ideological crusade to stop the Affordable Care Act (ACA). Unlike the other attempts to derail their self-created bogeyman “Obamacare,” this attempt will be both unsuccessful and harmful to the nation.

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Defending Class Actions

Global Business Magazine, December 1, 2012
by Chadwick A. McTighe

The fundamental feature of a class action is that the claims are such that resolving those claims for one plaintiff effectively would resolve those claims for others who have the same claims against the defendant.  Rule 23 of the Federal Rules of Civil Procedure and its state equivalents, require proof of several elements designed to help determine whether this feature is present in a given case.

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Best practices in leadership

Medical News, November 17, 2012
by Matthew J. DeVries

As a busy lawyer and father of seven young children, I know that it takes the right team to achieve success at work and home. Whether you are talking about adjusting to the challenging healthcare environment with new regulations and technologies, or fostering good relationships with your colleagues, staff, family and friends, anyone can find the right balance by planning ahead and using some best practices.

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A brief look at the EEOC’s updated Guidance regarding criminal records use by employers

Nashville Area Chamber of Commerce's HR Notes, November 5, 2012
by M. Clark Spoden

Recently, the U.S. Equal Employment Opportunity Commission (EEOC) issued its Enforcement Guidance (Guidance) regarding employer use of arrest and conviction records in employment decisions.  The Guidance highlights the EEOC's approach to the use of criminal records in background checks, but should not be considered by an employer in a vacuum.

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Proceed with caution

Medical News
by Brian A. Cromer

Merger and acquisition (M&A) activity in the healthcare field, including the long-term care sector, has been strong, with high reported deal volume and values.  The dynamic created by healthcare reform in the U.S. is certainly a major force behind the move to greater consolidation, as well as factors such as the uncertainty resulting from downward pressure on reimbursement, challenging economic conditions, the looming fiscal cliff and the possibility of a less favorable future tax environment.

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How Large Law Firms are Leading the Way

Law Practice Magazine, Volume 38, Number 5
by Marcia Watson Wasserman

An article published in Law Practice Magazine about professional development training and mentoring programs. Stites & Harbison is featured in the article.

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You don’t miss it until it’s gone: Drought highlights the importance of water management

Water Quality and Wetlands Committee Newsletter, American Bar Association, Vol. 10, No. 2, August 1, 2012
by W. Blaine Early III

Blaine Early and Kathryn Taylor (a summer associate with the firm) explore how regulators, water users, legislators, and the courts are responding to severe droughts in west Texas and the Southeastern United States by allocating water among competing users, incentivizing conservation, or, in an example of the law of unintended consequences, triggering greater depletion of limited groundwater reserves.  The authors consider the economic and environmental consequences of drought in the two regions and posit that Georgia legislators should consider a system such as that adopted by Texas, allowing counties and cities to provide financial incentives for rainwater harvesting.

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Supreme Court Clarifies Test to Determine Navigability for Title to Riverbeds

Water Quality and Wetlands Committee Newsletter, American Bar Association, Vol. 10, No. 2, August 1, 2012
by Kenneth J. Gish, Jr.

Ken Gish, along with Elizabeth Thomas and Kari Vander with K&L Gates, LLP, review the Supreme Court's February 2012 decision in PPL Montana, LLC v. State of Montana and present an enlightening summary of the distinction between federal navigability tests for the purposes of (1) establishing title to the beds of water bodies, (2) determining the extent of federal regulatory jurisdiction under the Commerce Clause, and (3) determining the extent of admiralty jurisdiction.  To the confusion of many courts and practitioners, the test for navigability is applied differently in each of these distinct types of cases.

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Preliminary Injunctions in Trademark Cases - Did eBay REALLY Change the Standard for Irreparable Harm?

The Computer & Internet Lawyer, Volume 29, Number 8, August 1, 2012
by Jennifer L. Kovalcik

Prior to the Supreme Court's decision in eBay Inc. v. MercExchange, L.L.C., most federal courts presented with a motion for a preliminary injunction in a trademark case routinely applied a presumption of irreparable harm once a plaintiff demonstrated a likelihood of success on the merits.  Irreparable injury ordinarily was presumed to exist based on a theory that the infringement would injure intangible assets including the good-will associated with the mark and the plaintiff's reputation.  This long-recognized presumption has been called into question by the Supreme Court's decision in the eBay case, in which the Supreme Court refuted the application of categorical rules favoring automatic entry of injunctive relief in the context of a permanent injunction for patent infringement.  The Court cautioned that the injunctions should be treated as extraordinary remedies and reaffirmed the traditional four-factor test governing the award of injunctive relief.

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Engaging a design and construction team

Medical News, June 1, 2012
by Matthew J. DeVries and Angela R. Stephens

In April 2012, Medical News focused on various elements of health IT from the good, the bad and even the confusing.  Whether you are dealing with new construction or renovations of existing healthcare facilities, technology and innovation continue to improve the landscape of healthcare construction.  In the end, you want a facility that optimizes energy efficiency, while at the same time has the right equipment that seamlessly integrates your IT department, medical providers and end-users.  In the construction industry, the project delivery system you choose is just as important to the process as the design and construction criteria you choose.

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Reconsidering the Motion to Reconsider

Bar Briefs, June 1, 2012
by Brian M. Bennett and Chadwick A. McTighe

It is never enjoyable to open the daily mail and find an order entered against your client.  This is especially true when you or more importantly, your client, expected a favorable result—whether because of your thorough briefing of the issues, the excellence of your oral argument or best of all, the clarity of the law in favor of your position (which, of course, is usually the case).

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Executive Profile: Stephen Price

Nashville Business Journal, May 25, 2012
by Stephen H. Price

Stephen Price took the reins of Stites & Harbison in Nashville just over a year ago.  A business litigator, Price focuses on employment and intellectual property law.  The regional law firm has weathered the recession's storm and is now looking for opportunities to grow.

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A new era in the coal industry under Clean Water Act Section 404

Mining Committee Newsletter, Vol. 6, No. 1, ABA Section of Environment, Energy & Resources, May 24, 2012
by William T. Gorton III

Forty years after passage of the Clean Water Act, interpretation of the act's applicability to the surface coal mining industry continues to evolve.  Due to the very nature of surface mining, where enormous amounts of overlying rock is blasted, excavated, and placed, any regulation that impacts the operations can have significant impact, not only on these methods of operation, but on the viability of the industry itself.  

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Preserving the Credit Bid: A Balancing of Interests

Norton Bankruptcy Law Adviser, Issue No. 4, April 1, 2012
by Robert C. Goodrich, Jr.

Everyone who has attended a commercial bankruptcy seminar or read an advance sheet in the past two years is aware of the "credit bid" controversy arising under the cram-down provisions of 11 U.S.C.A. § 1129(b)(2)(A)(ii) and (iii).  Under § 1129(b)(2)(A)(iii), can a plan proponent sell property without allowing the creditor secured by that property to credit bid, instead giving that creditor the proceeds of an auction sale or a private sale based on a judicial valuation of the property, on the basis that such proceeds are the "indubitable equivalent" of the creditor's claim?  A circuit split on the issue has arisen among the Third, Fifth, and Seventh Circuit Courts of Appeals.  On December 12, 2011, the U.S. Supreme Court granted certiorari in In re River Road Hotel Partners, LLC, which may, but is certainly not guaranteed to, resolve this conflict.

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