Interview with Brant Phillips



Brant Phillips
is a partner with Tennessee powerhouse firm Bass Berry & Sims. Based in the firm's Nashville office, he has earned recognition among his peers in the local legal community, as well among those beyond the state's borders. Brant spoke with Benchmark editor Michael Rafalowich, relaying his assessment of his own firm as well as commentary on broader market trends.

Can you give our readers a little history of the firm and its relationship to the Tennessee market?
 

The firm was founded in 1922 as a result of two lawyers, Messrs. Bass and Berry, coming together when their respective banking clients merged into a single, much larger, bank. For several of the first decades, the firm was focused on the needs of financial institution clients. 

Our main office is here in Nashville. Historically, Nashville (along with Atlanta) has been one of the largest centers for banking in the South, and we had the good fortune to be right in the center of that, right up until the 2000s when the last of the local banks merged with larger banks that were headquartered elsewhere. Where this has helped distinguish us as a firm is by giving us experience in transactional areas that is unsurpassed outside of the large money centers in the country today.  That is largely a function of the diversity of Nashville’s economy. We have roughly 40 public companies headquartered here, a substantial amount for a city of Nashville’s size, and Bass, Berry & Sims has relationships with more than 30 of them. 

Knoxville has been an area in which we are able to enhance our robust public finance practice. The addition of Mark Mamantov, who is one of the leaders in this space has been key to that success.  That work continues to evolve to include economic development incentives and urban opportunity zones. 

The Memphis office was opened in 2001. That market is well known for logistics and transportation. We work with many of these companies as well as entities in health care. We advise all three of the major hospital systems there. 

While our roots are in Tennessee, our work takes us everywhere. We are a national firm. In 2012, we opened our Washington, D.C. office to expand our healthcare practice and respond strategically to the needs of clients in areas including Compliance & Government Investigations, Government Contracts, IP and International Trade, to name a few.

Bass, Berry & Sims is indeed noted for its presence in the health care industry. How did Tennessee become such a hub for this type of industry? 

The genesis of it begins in 1960s with the formation of HCA in Nashville, one of the first for-profit hospital companies. HCA is now the country’s leading hospital company, and it continues to be headquartered here. There have been literally hundreds of spin-offs led by HCA or HCA alums, and most of those businesses have remained connected to Nashville as well. Nashville is a business-friendly environment. It’s an attractive place to start and grow a business – it’s a low-tax environment and, in case of the health care industry, there is a concentration of expertise. 

How has this environment affected the litigation community, and particularly at Bass, Berry & Sims? 

In litigation, we have benefited by having the opportunity to concentrate our practice on larger, more sophisticated business disputes of all types.  This work takes us all over Tennessee but also far outside the state’s borders as well. Our clients call on us to handle their disputes all over the U.S. I’m a perfect example of that. I have a few cases pending in Nashville, but most of my work currently in other venues, like Arizona, California, Florida and Chicago. 

Our department has continued to grow over the years – we are over 100 lawyers strong, which is roughly a third of the firm overall. That number is divided 50/50 between partners and associates. I think of us as a comprehensive business litigation firm. We work across offices to make sure that cases are staffed with the right number of lawyers with the right talents. It is common for a case to be staffed with lawyers from two or more offices, and we enjoy working that way. It is more effective and beneficial for the clients.

 

As our featured litigation star, did you want to comment on your specific practice?

My own practice generally divides into three areas. The first is complex business litigation. We get to do a regular amount of that, given the richness of our corporate practice, and it includes everything from shareholder disputes, corporate governance disputes, transactional challenges, and post-closing disputes. As people have started to take money off the sidelines and are engaging in more M&A activity, there have been a lot of disagreements after the fact that we have been brought in to help resolve. This keeps us active in not only state and federal courts but also takes us to Delaware on a regular basis. We have excellent relationships with several of the firms in Wilmington. This is the work that I spend about 50-60% of my time doing. I also deal with disrupted transactions, contract disputes and business divorce-type matters that have ended up not just here in Tennessee but all over the country. I recently completed one arbitration in September, which was one of these business divorce cases in which the “aggrieved spouse” – euphemistically speaking – was asking us to pay $36 million. We not only got a decision in favor of our client, but the other party actually wound up having to pay us damages.

I also deal with assisting health care clients obtaining regulatory permits – also known as a “certificate of need” – here in Tennessee. Applications to receive those kinds of permits are often hotly contested and openly litigated.

I also handle a fair amount of administrative and regulatory proceedings. There is generally a small bar of people who do this work.  Although this work is mostly for the health care industry, it actually covers a variety of industries. I currently have one such matter dealing with the electric power industry and another dealing with the tobacco industry.

One of the things that we’ve been brought in to do more of lately is to take over appeals that have been handled by other firms where the trial process has not gone as planned. It’s always an interesting challenge to come in and provide a fresh perspective on the case. Recently, a Philadelphia-based company was tagged with a $20 million default judgment in our chancery court for the alleged conduct at issue, and I was brought in to handle the appeal. We asserted that this judgment was flawed, and in July we got a favorable opinion from the court of appeals completely vacating the trial verdict. That favorable appellate decision has just become final, and the client is very pleased.


Did you want to discuss any other attorneys with the firm and their respective practices?

There are five major sub-practices within the litigation group at Bass, Berry & Sims. There are three other partners who do the securities litigation work I do – senior partner Overton Thompson, as well as partners Britt Latham and Joe Crace. Britt is currently handling a series of shareholder lawsuits that have been filed in Delaware and Nashville regarding a stock drop where the potential exposure is significant.

Our Compliance & Government Investigations practice is led by two partners, John Kelly in DC and Wally Dietz in Nashville. Both have deep experience in international investigations, both corporate and government related, including FCPA actions. John and Wally both handle that work for clients, not just in the U.S. but also overseas. John is a former DOJ official. He came here seven years ago to open our DC office and helped us build this practice up tremendously. He was recently involved in the acquittal on all but one charge for an executive indicted in a case related to the Pilot/Flying J fuel rebate program scandal. Four members of Pilot’s leadership team were tried in Chattanooga. We have also been involved in an international diesel emissions scandal, and we are constantly looking to do more of that kind of work.

We also have a very robust Products Liability & Torts practice. Jessie Zeigler has almost singlehandedly built this practice over the last several years, particularly in the pharma space, beginning with some work in an MDL that we did for Wyeth for fen-phen, a diet drug. She handles cases for manufacturers ranging from medical devices to heavy equipment and is currently embroiled in several class actions related to opioids. We are representing a global pharmaceutical company in those cases.

Brian Roark and Matt Curley are contemporaries of mine, and helped pioneer the development of our Healthcare Fraud Task Force. They are working alongside Anna Grizzle, Lisa Rivera and others on this national practice. Our team is focused on investigations work but specifically for health care providers. Brian and Matt are seen as the two go-to lawyers in Nashville when these investigations come down the pike. These often include not only enormous monetary penalties but also the possibility of being barred from any government payor programs. In addition to being great advocates, Brian and Matt are thoughts leaders in this area, too.  They teach a course on health care fraud at Vanderbilt Law School and are regularly sought out by the media to comment on this topic.

David King is a seasoned litigator who has done a lot of things in his career. But, in the last six or seven years he has developed a niche in the managed care space. He represents health care providers in disputes with payors – the large insurance companies. It’s been interesting to watch hospital and hospital companies begin to push back against payors’ efforts to unilaterally cut or limit reimbursement after care has been provided.  Ten years ago, you did not see that very often.  There has been a tremendous explosion in the number of these disputes that arise due to the increasing changes in the reimbursement, and with David’s work, our firm is developing a singular niche in that space. We are representing all manner of providers, including ancillary providers, air ambulance companies, etc., and not just doing it here but also in a number of other jurisdictions.

I would be remiss if I didn’t name David Esquivel, who specializes in the financial products industry.

Several partners in Memphis – including John Golwen, the managing partner there –have tried just about every type of case you can litigate, with great success. John is viewed as one of the go-to litigators that you’d want to have on your list if you’re a corporate defendant looking at going into state or federal court in Memphis.

Shepherd Tate, Michael Brady and Chris Lazarini have a specialized focus on the broker-dealer industry, representing brokerage houses and their principals in disputes. They are recognized for their success and called upon by major financial services companies, like Raymond James, to handle to disputes with disgruntled investors.

I am proud of our many lawyers and their diverse sub-practices.  As a cohesive, full-service business litigation group, we are ready and able to meet the litigation needs of our clients virtually anywhere those needs arise.  We are eager to help our clients achieve their goals.