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The M&A Advisor Winner 2017The M&A Advisor announced the winners of the 16th Annual M&A Advisor Awards on Monday, November 13 at the 2017 M&A Advisor Awards. Bass, Berry & Sims was named a winner in the two categories related to the following deals:

M&A Deal of the Year (from $1B-$5B) – Acquisition of CLARCOR Inc. by Parker Hannifin Corporation

Corporate/Strategic Deal of the Year (over $1B) – Acquisition of BNC Bancorp by Pinnacle Financial Partners

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Regulation A+

It seems that lately there has been a noticeable uptick in Regulation A+ activity, including several recent Reg A+ securities offerings where the stock now successfully trades on national exchanges. In light of this activity, we have published a set of FAQs about Regulation A+ securities offerings to help companies better understand this "mini-IPO" offering process, as well as pros and cons compared to a traditional underwritten IPO.

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Chris Lazarini Analyzes Case Holding No Viable Claim for Breach of Duty of Good Faith in Employment At-Will Relationship


December 7, 2015

Bass, Berry & Sims attorney Chris Lazarini analyzed the case of Harmon vs. Principal Life Ins. Co. & Primcor Finl. Services, Corp. in which the Plaintiff asserted claims for breach of the covenant of good faith and fair dealing, for intentional interference with business relations and for an accounting. The Court granted the Defendants' motion to dismiss because the good faith and accounting claims were not supported by a viable breach of contract claim and because the interference with business relationships claim was time-barred. 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.

Harmon vs. Principal Life Ins. Co. & Primcor Finl. Services, Corp., No. 2:15-CV-2223 (S.D. Ohio, 11/18/15) 

*Claims of breach of the covenant of good faith and fair dealing and for an accounting are not stand-alone claims, and must be supported by a viable claim to withstand a motion to dismiss.
**A complaint may not be amended in a brief opposing a motion to dismiss.
***A broker's failure to timely update a Form U4 may lead to termination and regulatory sanctions. 

For many years, Plaintiff sold insurance products through Principal and securities products through Primcor. In 1999, he signed a Career Agent Contract ("Agent Contract") with Principal. The Agent Contract made him an at-will employee, terminated any prior written or oral contracts, and could not be amended except in a writing signed by both parties. According to Plaintiff, he was terminated by Principal and Primcor in 2010, and his insurance and securities licenses were cancelled, "without just cause." In 2015, Plaintiff filed this action, asserting claims for breach of the covenant of good faith and fair dealing, for intentional interference with business relations and for an accounting. Defendants filed a Rule 12(b)(6) motion to dismiss. Conducting a Twombly analysis, the Court grants Defendants’ motion and dismisses the case.

The Court notes that both the breach of the covenant of good faith and fair dealing claim and the accounting claim cannot stand alone. Rather, they must be supported by another viable claim. The Court rejects Plaintiff's argument that he intended to assert a breach of contract claim based on oral representations made to him regarding continuing commission payments that were not received, as no fair reading of the complaint supports the "inartfully drafted" argument, and refuses to allow Plaintiff to amend his claims through his opposition brief. Further, the Court concludes, a breach of contract claim, even if read into the complaint, fails because nothing in the complaint allows the Court to infer that the oral representations regarding commissions were integrated into the Contract. The Court also holds that Plaintiff's speculation on the reasons for his termination are irrelevant, because there is no separate cause of action for violating a duty of good faith in an employment-at-will relationship.

Finally, the Court dismisses the intentional interference with business relations claim as being time-barred under Ohio's applicable four-year statute of limitations. The Court rejects Plaintiff's argument that information posted on his CRD by Primcor restarts the running of the statute every day as bordering on frivolous. Even if the CRD posting could support the claim, the statute was triggered when the posting first appeared over four years prior. 

While the at-will relationship means that Defendants did not have to justify their termination decision, it appears that termination was warranted, because Plaintiff misrepresented his financial standing to the firm for many years, failing to timely disclose tax liens, judgments and a bankruptcy filing. When Plaintiff's Form U4 was finally updated, FINRA fined him $10,000 and suspended him for six months.

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