Close X
Attorney Spotlight

How did Mike DeAgro's experience co-founding a nonprofit advocacy organization lead to a career in the legal field? Find out more>


Close X


Search our Experience

Experience Spotlight

Envision to Sell to KKR for $9.9 Billion

We represented Envision Healthcare Corporation (NYSE: EVHC) in its definitive agreement to sell to KKR in an all-cash transaction for $9.9 billion, including debt. KKR will pay $46 per Envision share in cash to buy the company, marking a 32 percent premium to the company's volume-weighted average share price from November 1, when Envision announced it was considering its options. The transaction is expected to close the fourth quarter of 2018. Read more

Envision Healthcare

Close X

Thought Leadership

Enter your search terms in the relevant box(es) below to search for specific Thought Leadership.
To see a recent listing of Thought Leadership, click the blue Search button below.

Thought Leadership Spotlight

Six Things to Know Before Buying a Physician Practice spotlight

Dermatology, ophthalmology, radiology, urology…the list goes on. Yet, in any physician practice management transaction, there are six key considerations that apply and, if not carefully managed, can derail a transaction. Download the 6 Things to Know Before Buying a Physician Practice to keep your physician practice management transactions on track.

Click here to download the guide.

Chris Lazarini Comments on Court's Refusal to Find Arbitration Clause Unconscionable


February 3, 2015

Bass, Berry & Sims attorney Chris Lazarini provided commentary on whether events that occurred after a contract is signed can render an arbitration agreement unconscionable, as revealed in the Harris vs. TD Ameritrade case. Chris provided the analysis for Securities Litigation Commentator (SLC). The full text of the analysis is below and used with permission from the publication. If you would like to receive additional content from the SLC, please visit the SLC website to sign up for the newsletter.

Harris vs. TD Ameritrade. Inc. No. 4:14-CV-0045 (E. D. Tenn., 1/5/15)

Determining whether an agreement is unconscionable requires an examination of the circumstances that existed at the time the parties entered into the contract; later events, including the possibility that the claims may ultimately fail in arbitration, do not render an otherwise valid arbitration agreement unconscionable.

In August 2005, Plaintiff purchased 48,000 shares of Bancorp International Group, Inc. ("BCIT"), in his TD Ameritrade ("TDA") account. In 2011, Plaintiff demanded that TDA transfer his BCIT shares into his name on the books of BCIT and deliver a stock certificate to him. TDA told Plaintiff that it could not comply with his demand because the Depository Trust and Clearing Corporation ("DTC") had placed a "global lock" on all BCIT shares, preventing them from being delivered, transferred or withdrawn. Plaintiff then instituted this court action, alleging fraud and violations of the Uniform Commercial Code. TDA moved to dismiss or, in the alternative, to compel arbitration under the FAA.

Citing the broad language of the PDAA in Plaintiff's TDA account agreement, the Court finds that the matter must be referred to arbitration under well-settled authority. The Court, however, goes on to discuss Plaintiffs arguments that the arbitration clause is unconscionable because no other BCIT shareholders had been successful in arbitrating similar claims. Examining Nebraska law pursuant to the choice of law provision in the account agreement, the Court holds that determining whether an agreement is unconscionable requires an examination of the circumstances that existed at the time the parties entered into the contract. However, Plaintiff has not pointed to any provision of the agreement that was unfair or inequitable at the time he signed the agreement. Finally, the Court rejects Plaintiff's argument that he should be excused from arbitration because of the lack of success of other shareholders who arbitrated similar claims. The Court labels this argument speculative and against the liberal policy favoring arbitration. Finding no reason to stay the matter, the Court dismisses the claims.

(The BCIT saga is not reflected in the opinion, but is an interesting story. In 2005, BCIT was the subject of an illegal takeover attempt and the victim of corporate identify fraud. The persons responsible for the illegal takeover attempt printed fraudulent share certificates and were able to sell them into the market where they were publicly traded for several months through the DTC. After the fraud was discovered, the SEC suspended all trading of BCIT shares, and the DTC issued a global lock on the shares, preventing them from being delivered, transferred or withdrawn. The global lock continues to be in place. Although Plaintiffs argument that all other similarly situated shareholders had been unsuccessful in arbitration may have been accurate at the time he filed his papers with the court, a review of 30 awards that came up on a search of "BCIT" on FINRA's Awards Database reveals three customers wins.)

Related Professionals

Related Services


Visiting, or interacting with, this website does not constitute an attorney-client relationship. Although we are always interested in hearing from visitors to our website, we cannot accept representation on a new matter from either existing clients or new clients until we know that we do not have a conflict of interest that would prevent us from doing so. Therefore, please do not send us any information about any new matter that may involve a potential legal representation until we have confirmed that a conflict of interest does not exist and we have expressly agreed in writing to the representation. Until there is such an agreement, we will not be deemed to have given you any advice, any information you send may not be deemed privileged and confidential, and we may be able to represent adverse parties.