John Paul Nefflen

John Paul Nefflen

Burr & Forman

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Labor & Employment E-Note - March 2016

Are your cell phone policies as outdated as your original iPhone? Cell phones have become common place in today’s workplace and employers must consider the legal risks they pose. Thus, if you haven’t revisited your policies...more

3/21/2016 - ADA Cell Phones Employment Policies FMLA Hiring & Firing Minimum Wage Mobile Devices Non-Compete Agreements Wage and Hour

New Trend for Invalidating Arbitration Clauses in Tennessee?

Several months ago I posted a blog about two New York Times articles criticizing arbitration clauses in consumer contracts. Despite nationwide statutory and judicial support (federal and state), the New York Times article...more

3/1/2016 - Business Litigation Consumer Contracts Mandatory Arbitration Clauses TN Supreme Court

Better Think Twice About Enforcing A Non-Compete

Over the last couple of years, there has been an increase in employees striking back against employers trying to enforce non-compete agreements.  In those cases, the employee argues that his former employer has interfered...more

2/29/2016 - Employer Liability Issues Employment Contract Hiring & Firing Non-Compete Agreements

Labor & Employment E-Note - February 2016

The U.S. Department of Labor ("DOL") recently announced that its long awaited changes to the federal overtime regulations will be published in July 2016. The revised regulations, which were first discussed in March 2014, are...more

2/19/2016 - DOL FLSA Minimum Salary Severance Agreements Unfair Competition Unpaid Overtime Wage and Hour Wage Garnishment White-Collar Exemptions

Continued Employment is Enough for a Severance Agreement

Here’s one where the tables were turned. Former employees often argue that a non-compete agreement is unenforceable because there was inadequate “consideration.” Consideration is the exchange parties to a contract make, what...more

2/10/2016 - Commercial Contracts Hiring & Firing Non-Compete Agreements Severance Agreements

I Forgot to Respond to a Garnishment. Now What?

If you are a business owner and have employees, at some point you will receive a garnishment. Garnishment is a post-judgment process that allows a judgment creditor to acquire the judgment debtor’s assets (property or...more

2/9/2016 - Asset Seizure Failure To Respond Wage Garnishment

Rule 26: What’s New, What’s Old, and What Still Needs to be Litigated

The amendments to Rules 26(b)(1) and 26(b)(2)(C) of the Federal Rules of Civil Procedure have been in effect for almost two months now. They are expected to change the way lawyers manage discovery and the way courts resolve...more

1/28/2016 - Business Litigation Discovery e-Discovery Evidence Federal Rules of Civil Procedure Rule 26 Young Lawyers

Why You May Be Responsible for Injuries Suffered by a Non-Customer

If you have ever been involved in a personal injury case, you probably heard the word “duty” or the phrase “duty of care” used a lot. Duty is a key concept in negligence claims. Broadly speaking, it is the legal obligation...more

12/16/2015 - Duty of Care Negligence Third-Party Service Provider

Labor And Employment E-Note - November 2015

A little-noticed provision in the federal Bipartisan Budget Act of 2015 calls for OSHA to increase its penalties to adjust for inflation for the first time since 1990... Please see full E-Note below for more...more

11/30/2015 - Arbitration FMLA NLRB Non-Compete Agreements OSHA Penalties Same-Sex Marriage Unions Wage and Hour White-Collar Exemptions

The Drones are Under Attack

Those who know me know that I love gadgets. Most of the time, I imagine I have a need that the newest toy will fix, at least until the next one comes along. But, despite my best efforts, I have not been able to create an...more

11/17/2015 - Drones Invasion of Privacy Privacy Concerns Surveillance Unmanned Aircraft Systems

Arbitration Clauses Under Attack – Do They Harm Consumers?

Arbitration clauses are a common feature in a large part of my business litigation practice. They are generally enforceable under both federal and state statutes (e.g., the Federal Arbitration Act and the Tennessee Uniform...more

11/3/2015 - American Express v Italian Colors Restaurant Appeals Arbitration Arbitration Agreements Bias Business Litigation Class Action Class Action Arbitration Waivers Dispute Resolution Federal Arbitration Act New York Times SCOTUS

Finally, We’re Back to “Put Up, or Shut Up”

My clients who have defended against meritless claims over the last few years know why this is important. The Tennessee Supreme Court has finally restored the traditional summary judgment standard making it easier for these...more

10/28/2015 - Business Litigation Evidence Genuine Issue of Material Fact Litigation Strategies Summary Judgment TN Supreme Court Trials

The Constitutionality of Tennessee Tort Reform Will Have to Wait

On March 10, 2015, I posted a blog about a recent court ruling that the Tennessee Civil Justice Act of 2011 (Tennessee’s statutory tort reform) was unconstitutional.  The ruling, made in an automobile accident case, held that...more

10/26/2015 - Car Accident Jury Trial Non-Economic Damages TN Supreme Court Tort Reform

Get Ready for 128,000 New Employees

My good friend, Daniel Horwitz, has done something unprecedented and amazing. Earlier this year, he filed a class action lawsuit to have the criminal charges of 128,000 Nashvillians expunged from the Davidson County General...more

10/23/2015 - Class Action Criminal Records Expungement Hiring & Firing

Can I Get My Legal Fees Back for Having to Defend This Case?

One of the most common questions I get from my clients is whether they can recover their legal expenses for having to defend a meritless case. The short answer is that in most cases, no. That may seem unfair, especially...more

10/21/2015 - American Rule Appeals Attorney's Fees Business Litigation Consumer Protection Act Fee-Shifting Foreclosure Legal Costs Legal Fees Mortgages Prevailing Party TN Supreme Court Unfair or Deceptive Trade Practices

Construction E-Note - September 2015

Florida's Department of Business and Professional Regulation requires and issues licenses for entities and individuals to qualify to construct improvements to real property in Florida. Generally speaking, an out-of-state...more

9/29/2015 - Best Practices Construction Contracts Construction Industry DOL Employment Discrimination Federal Contractors FLSA Harassment Joint Venture Mechanics Lien Minimum Salary Minimum Wage Real Estate Development Real Estate Market Wage and Hour White-Collar Exemptions

Don’t Guess On How to Assert A Mechanic’s Lien

Many contractors and subcontractors have learned this the hard way: failure to comply with the filing and notice requirements for a mechanic’s lien can result in losing the lien and an effective way of ensuring payment for a...more

8/31/2015 - Construction Industry Contractors General Contractors Mechanics Lien Notice of Default Prompt Payment Subcontractors

Colorado Rules Baker Cannot Refuse Service to Same-Sex Couples for Religious Reasons

In a post last week, I discussed how some believe Tennessee’s version of the Religious Freedom Restoration Act (“RFRA”) could allow Tennessee businesses to refuse service to same-sex couples despite a recent ruling that...more

8/20/2015 - Anti-Gay Discrimination First Amendment Free Speech Freedom of Religion Gay Rights Obergefell v. Hodges Religious Freedom Restoration Act RFRA Same-Sex Marriage Sexual Orientation Discrimination

Same-Sex Marriage and Tennessee Businesses

In its first opportunity to apply Obergefell v. Hodges, the U.S. Supreme Court case holding same-sex marriage is a constitutional right, the Tennessee Court of Appeals recently held the state must recognize same-sex...more

8/12/2015 - Anti-Discrimination Policies Burwell v Hobby Lobby Equal Protection Fourteenth Amendment LGBT Marriage Marriage Equality Obergefell v. Hodges Religious Discrimination Religious Freedom RFRA Same-Sex Marriage SCOTUS

No Privacy in Pocket-Dialing

Most of us are aware of the increased risk of identity theft caused by the exponential growth of digital communications. But have we stopped to consider how the ease of communication we have today has significantly decreased...more

8/5/2015 - Business Litigation Cell Phones ECPA Electronic Communications Email Policies Employee Handbooks Identity Theft Invasion of Privacy Mobile Devices Mobile Privacy Reasonable Expectation of Privacy Right to Privacy Telecommunications

New Lessons from Cosby: Confidential Doesn’t Always Mean Confidential

How, after all these years, did the truth about Bill Cosby finally come out? It happened on July 6, 2015 when a federal judge in Philadelphia ordered that documents filed in a lawsuit by one of Cosby’s accusers 10 years...more

8/3/2015 - Confidential Information Depositions Litigation Strategies Sealed Records Sexual Assault

New Tennessee Business Related Laws Go Into Effect

Hundreds of new Tennessee laws went into effect on July 1, 2015. The following is a summary and link to several new laws which can affect Tennessee businesses. SB 1058 – Wrongful discharge for firearms and...more

7/3/2015 - Charitable Donations Charitable Organizations Gun Laws Guns-in-Trunks Legislation Hiring & Firing New Legislation Private Property Public Property Social Security Numbers Statute of Limitations Statute of Repose Unemployment Insurance Wrongful Termination

Tennessee Non-Profits Take Note: Failure to Register May Result in Significant Fines

Over the last few of months, the Tennessee Department of State, Division of Charitable Solicitations and Gaming (the “Division”) has filed at least seven lawsuits against non-profit organizations doing business in Tennessee....more

7/2/2015 - Charitable Donations Enforcement Actions Non-Profits Registration Requirement Solicitation

Corporate E-Note - June 2015

In this Issue: - IRS Issues Guidance on Portability: The IRS recently issued final regulations that provide guidance on the federal estate and gift tax applicable exclusion amount, in general, as well as the...more

6/30/2015 - Board of Directors Corporate Taxes E-Commerce Employer Liability Issues Estate Tax Final Rules Gift Tax Independent Contractors Induced Infringement IRS Means-Plus-Function Mortgage-Backed Securities Patents Personal Liability Portability Same-Sex Marriage SCOTUS Tax Revenues

Corporate Directors Are Not Personally Liable Under New Tennessee Law

A misunderstanding over recent amendments to Tennessee’s Business Corporation Act has led drafters of Public Chapter No. 60 to issue a statement emphasizing that corporate directors are not personally liable for a company’s...more

6/9/2015 - Amended Legislation Board of Directors Corporate Officers Debt Personal Liability

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