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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 Comments on When Appellate Courts May Consider Arguments Not Raised Below

Securities Litigation Commentator

Publications

June 8, 2017

Bass, Berry & Sims attorney Chris Lazarini commented on a case in which a former commodities broker appealed a decision ordering him to pay restitution to his former firm which had made its customers whole after the broker's unauthorized trades caused them to incur losses. On appeal, the broker argued, for the first time, the district court erred in directing him to make legal restitution of the losses incurred, as opposed to equitable restitution of his unlawful gains. The Sixth Circuit affirmed the summary judgment award, finding the broker waived his arguments on the distinction between legal and equitable restitution by not making them below and finding no exceptional circumstances justifying a deviation from the waiver rule.

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.

CFTC vs. Miklovich, No. 15-4426 (6th Cir., 4/19/17) 

*Arguments not raised at the district court level are deemed waived on appeal.

**Courts may deviate from appellate waiver in exceptional circumstances, such as where necessary to prevent a miscarriage of justice or to promote finality of litigation. 

In 2013, commodities broker Miklovich placed multiple unauthorized futures trades in the accounts of two customers, causing them $566,000 in losses. After terminating him, his former firm unwound the transactions and made its customers whole. The CFTC brought an enforcement action against Miklovich and, following discovery, the district court granted summary judgment for the CFTC, ordering Miklovich to make full restitution to his former firm, fining him $100,000, and permanently enjoining him from committing future violations of the commodity laws (SLA 2015-40). 

Miklovich seeks to appeal the restitution award, arguing that the district court erred in directing him to make legal restitution of the losses incurred, as opposed to equitable restitution of his unlawful gains (which, he claimed, were not established below). Noting the absence of even a colorable argument about the distinction between legal and equitable restitution below, the Court deems the arguments waived. Miklovich asks the Court to exercise its discretion and consider his forfeited arguments anyway because, he argues, the remedies set out in 7 U.S.C. §13a-1(d) are "beyond doubt" and allowing the legal restitution award to stand would cause a "miscarriage of justice."

The Court disagrees. First, the plain language of the statute provides for various remedies, including (1) "restitution to persons who have sustained losses proximately caused by the violation (in the amount of the losses)" and (2) disgorgement of gains. It is nonsensical, therefore, to read the statute as limited solely to equitable restitution. Second, allowing Miklovich to make his forfeited argument is contrary to the concept of promoting finality to the litigation because the CFTC did not have the opportunity in the district court to prove a basis for equitable restitution if Miklovich prevailed on the arguments raised for the first time on appeal. Finding no exceptional circumstances militating against the waiver finding, the Court affirms the award of summary judgment.


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