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Learn about Richard Arnholt's diverse government contracts practice and why he chose to pursue a career in the legal field. Read more>

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In June 2017, Pinnacle Financial Partners, Inc. (NASDAQ: PNFP) closed a $1.9 billion merger with BNC Bancorp (NASDAQ: BNCN) pursuant to which BNC merged with and into Pinnacle. With the completion of the transaction, Pinnacle becomes a Top 50 U.S. Bank. The merger will create a four state footprint concentrated in 12 of the largest urban markets in the Southeast. 

Bass, Berry & Sims has served Pinnacle as primary corporate and securities counsel for more than 15 years and served as counsel on the transaction. Our attorneys were involved in all aspects related to the agreement, including tax, employee benefits and litigation. 

Read more details about the transaction here.

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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 Examines Employee v. Independent Contractor Issue

Securities Litigation Commentator

Publications

February 22, 2017

Bass, Berry & Sims attorney Chris Lazarini examined a case in which the plaintiff claimed to be an employee of Northwestern Mutual and therefore protected under New York's minimum wage and overtime laws; Northwestern argued the plaintiff was an independent contractor, not an employee, and, therefore, exempt from protection of the labor laws. The court, considering five different factors, found the plaintiff to be an independent contractor. 

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.

Rose vs. Northwestern Mutual Life Ins. Co., No. 14-CV-3569 (E.D. N.Y., 12/12/16) 

Under New York law, determining whether one is an employee or independent contractor turns on the degree of control exercised by the purported employer. Factors to consider include whether the worker: (1) works at his own convenience, (2) may engage in other employment, (3) receives fringe benefits, (4) is on the employer's payroll, and (5) is on a fixed work schedule. 

In this putative class action, Plaintiff alleged violations of the New York minimum wage and overtime laws. Defendant moved for summary judgment, arguing that Plaintiff was an independent contractor, not an employee, and, therefore, was exempt from the labor law's protections. The Court finds that Plaintiff is an independent contractor and dismisses the action. 

Under New York law, the critical inquiry in determining whether an employment relationship exists rests with the degree of control the purported employer exercises over the work performed. After granting Plaintiff months to conduct discovery, the Court finds no factors supporting an employment relationship. Rather, multiple factors weigh against that finding. First, no facts support Plaintiff's claim that Defendant controlled when and where Plaintiff was to work. Requiring one to be at a job site, at certain hours, and to attend regular meetings, the Court holds, are factors to consider, but none is conclusive. Here, they are outweighed by Plaintiff's ability to control the time he devoted to his duties and the location in which he performed them. Second, Plaintiff could work for other companies and was free to sell competitors' products where those products offered lower premiums than Defendant's. This absence of exclusivity, the Court finds, weighs against an employment relationship. Third, Plaintiff did not receive health or other insurance benefits from Defendant, he worked on a commission basis only and Defendant did not withhold taxes from Plaintiff's compensation. Fourth, the Court rejects Plaintiff's argument that Defendant's use of training materials, guidebooks, and marketing materials were indicia of control. Those materials merely offered advice on how to be a successful salesman. Finally, the Court points to Plaintiff's contract with Defendant, in which he agreed that he was an independent contractor as another factor supporting the absence of an employment relationship. While Defendant's label is not dispositive, when combined with the other factors, the Court has little trouble concluding that no employment relationship existed. 

Northwestern Mutual Investment Services, LLC, was also a Defendant. The Court granted summary judgment in its favor, finding Plaintiff never obtained a license to sell its products and never interacted with any of its agents.


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