Tennessee Diversifies Its Valuation-Method Portfolio for Closely Held CorporationsThe Tennessee Supreme Court overruled three decades of precedent in Athlon Sports Communications, Inc. v. Duggan, giving trial courts broad discretion in the method used to determine the “fair value” of shares in “dissenters’ rights” actions.

When a closely held Tennessee corporation seeks to undergo a structural change such as a merger, dissenting minority shareholders are afforded a statutory “appraisal remedy” pursuant to Tennessee Code Annotated § 48-23-101, et seq.  This “dissenters’ rights” statute allows dissenting shareholders to escape the involuntarily altered investment with the “fair value” of their shares, plus accrued interest.  But “fair value” means “the value of the shares immediately before the effectuation of the corporate action to which the dissenter objects” under Tennessee Code Annotated § 48-23-101(4).  This is not the “fair market value” of a bargained-for exchange between motivated buyers and sellers.  If the corporation and dissenting shareholders cannot agree on the shares’ “fair value,” the corporation can commence a proceeding under Section 48-23-301, petitioning the court to determine the “fair value.”  As expected, the abstract notion of “fair value” has proven elusive to courts, corporations, and shareholders alike.

Though the statute is silent as to which methods courts should use to determine “fair value,” the Tennessee Supreme Court implicitly mandated the “Delaware Block Method” in 1983. Through Blasingame v. American Materials, Inc., Tennessee “adopt[ed] the Delaware rule requiring the use of [asset value, market value, and earnings value] in determining the fair value of a dissenting minority stockholder’s shares.”  However, that same year, the Delaware Supreme Court in Weinberger v. UOP, Inc. abandoned exclusive application of the Delaware Block Method in favor of a liberal approach aligned with generally acceptable methods in the financial community.  Although Tennessee courts generally look to Delaware law in unsettled matters of corporate law, Tennessee did not divest itself of exclusive use of the Delaware Block Method for over three decades.

The court in Athlon Sports elected to overrule Blasingame and allow trial courts to consider alternative valuation methods, although the courts may still apply the Delaware Block Method when appropriate.  Specifically, the court adopted the Weinberger approach, allowing “proof of value by any techniques or methods which are generally considered acceptable in the financial community and otherwise admissible in court.”

Moving forward, corporations, dissenting shareholders, and courts may now consider other valuation methods for “fair value” that include projections of future value, provided that they are provable and not speculative.  Likewise, Tennessee trial and appellate courts may find themselves determining the “strike price” of speculation when it comes to weighing elements of future value now that Athlon Sports has “rung the opening bell” for a new dissenters’ rights regime.

You’ve Got Issues:  Making a Case for Deep-Issue StatementsWhat’s the first thing that judges and law clerks read in an appellate brief?  The certificate of interested parties, the table of contents, and the table of authorities are matters of form, and, while important, they don’t convey a message.  But a well-written issue statement can frame the narrative, preview the argument, and persuade the reader before a drop of ink is spilled on true substance.  Practitioners in state and federal courts alike would be wise to devote significant time and energy to the issue statement, beginning with choosing which form to use.  The deep-issue statement should be at the top of the list.

In 1935, the Supreme Court established a rules advisory committee, which helped draft the Federal Rules of Civil Procedure.  Since then, Advisory Committees on the Rules of Appellate, Bankruptcy, Evidence, and Civil and Criminal Procedure continually study the rules and recommend changes to ensure that the rules develop with the pace of modern practice.  Proposed amendments to the rules develop in several ways, including intensive study by committee members and public suggestions submitted for consideration.  Since January 2017, five documents have been submitted to the Advisory Committee on Appellate Rules (formerly chaired by now Justice Gorsuch), four of which concern Rule 28 (titled “Briefs”).  The parent suggestion was submitted by well-known legal writing guru Bryan A. Garner, who founded and currently operates LawProse, a notable provider of CLE training in legal writing and editing.

Garner suggested a fundamental change in the way issue statements are presented.  Traditionally, he claims, practitioners use “whether” statements to display their questions.  The conventional “whether” statement is a single sentence fragment representing the attorney’s statement of what he or she believes to be the determinative issue.  As a result, “whether” statements are grammatically incorrect, cumbersome, and difficult to comprehend.  In fact, Garner suggests that the use of a “whether” statement may actually hinder the brief’s overall effect, leaving the judges and law clerks in the dark until they read much further into the argument.

Garner’s solution is an amendment to Rule 28 mandating practitioners use so-called deep-issue statements.  Deep-issue statements usually consist of three short, pointed sentences that recount critical facts in a chronological manner.  The final sentence in the issue statement asks a question and is followed by a question mark.  Critically, the deep-issue statement must be 75 words or less, forcing practitioners to truly condense the question presented to reveal the most vital information.  Deep-issue statements are intended to be dispassionate and non-argumentative and to highlight the logic underlying a particular argument.  As a result, they are more likely to make salient facts stick in the reader’s mind, making it easier for him or her to digest the legal arguments that follow.

In practice, Garner’s suggested amendment would add an entire subsection to Rule 28 under “(a) Appellant’s Brief.”  The subsection purports to govern the means by which practitioners present their statements of the issues, including each of the standards discussed above.  The suggested amendment also includes a prohibition on the use of “whether” statements and examples of how deep-issue statements should be formatted.

Since Garner’s suggestion was filed in January 2017, one judge and two practitioners have written the committee to express their support for the mandatory deep-issue statement.  Notably, Judge Jennifer A. Dorsey of the District of Nevada wrote the committee and praised the deep-issue statement for contributing to “clear, direct, and grammatically correct prose.”  In her experience, deep-issue statements provide clarity for the audience, which directly contributes to trimmer briefs.  She’s such a proponent that she starts her orders and opinions with a deep-issue statement whenever possible.

Attorney Steven A. Hirsch also wrote to express his support and effectively illustrated his point through an anecdotal exercise.  In doing so, he treated Garner’s suggestion as if it were the subject of an appeal and drafted both “whether” and deep-issue statements.  The “whether” statement, he suggests, might look something like this: “Whether, instead of requiring that an appellant’s brief contain a ‘statement of the issues’ that—like this one—traditionally consists of one lengthy sentence that begins with ‘whether’ and then packs in all the facts essential to presenting the issue, FRAP 28 should be amended to require that principal appellate briefs begin with a multi-sentence issue statement limited to 75 words, usually couched as a syllogism, whose final sentence ends in a question mark.”  In contrast, the deep-issue statement may take the following form: “FRAP 28 requires that the appellant’s brief contain a ‘statement of the issues.’  That statement traditionally consists of one lengthy sentence that begins with ‘whether’ and then packs in all the facts essential to presenting the issue.  Should Rule 28 be amended to require that principal appellate briefs begin—like this one—with a multi-sentence issue statement limited to 75 words, usually couched as a syllogism, whose final sentence ends in a question mark?”  Both examples are comprised of 74 words, but only one is grammatically correct and conveys its point without extensive head scratching.

Garner’s suggestion (and the support for it) are still listed as pending consideration, meaning the committee has not yet foreclosed the possibility.  The deep-issue statement has amassed popularity during the past several decades, owing in part to Garner’s teaching and his many books, some of which he authored with former Supreme Court Justice Antonin Scalia.

Until the committee adopts Garner’s suggestion, it remains just that: a suggestion.  But practitioners would be wise to consider using the deep-issue format or some other expository means to author issue statements.  And the use of deep-issue statements should not be limited to appellate writing.  Any lawyer with a story to tell and a message to convey should consider adopting this practice.

Tennessee Supreme Court Rejects Efforts to Alter Existing Law on the Collateral Source Rule in Personal Injury CasesLast month the Tennessee Supreme Court, in Dedmon v. Steelman, affirmed the long-standing collateral source rule in personal injury cases. As long as an injured plaintiff can establish that the medical expenses they incurred were reasonable and necessary for their treatment, the full amount of the charges from the medical providers can be accepted into evidence. Defendants cannot challenge the reasonableness of these medical expenses with evidence of the actual (discounted) amounts paid to medical providers by the plaintiff’s insurance provider.

Defendants sought to extend the Court’s decision in West v. Shelby County Healthcare Corp. to personal injury cases. West interpreted Tennessee’s Hospital Lien Act (HLA) to preclude a hospital from seeking the balance of medical expenses charged to a patient after the hospital had accepted discounted payment from the insurance company in satisfaction of the debt.  Since a lien only exists for the amount a patient owes, “reasonable charges” could not exceed what the patient was required to actually pay the hospital.

The Court in Dedmon rejected the defendants efforts to limit recovery of injured plaintiffs to the discounted amounts that medical providers accepted from insurance companies in payment of medical expenses. The Court considered and rejected the “actual amount paid,” “benefit of the bargain,” and “reasonable value/actual amount paid” approach adopted in other jurisdictions. Finding that these alternatives created as many problems as they solved, the Court retained Tennessee’s “reasonable value/full bill” approach.

To rebut an injured plaintiff’s claim that the charges are reasonable and necessary, defendants are limited to competent evidence that does not run afoul of the collateral source rule.

Practical effect: No change in Tennessee to proving or disputing an injured plaintiff’s medical expenses.