Don L. Hearn, Jr.

Member
901.576.1767

PROFESSIONAL EXPERIENCE

Mr. Hearn’s practice includes a wide range of complex commercial litigation in the areas of general and business civil law, construction law, trust and estate law, medical malpractice law, intellectual property law, and employee benefits law. Mr. Hearn has experience in aggressively representing the interests of his clients through the litigation in Tennessee state and federal trial courts and oral argument at the Tennessee Court of Appeals and the Court of Appeals for the Sixth Circuit. In addition, Mr. Hearn has experience resolving disputes to his clients’ benefit through alternative dispute resolution vehicles, including negotiation, mediation, and arbitration.

Mr. Hearn has extensive experience representing companies and individuals in the complex world of construction law. He has represented owners, architects, engineers, and contractors in construction disputes relating to proper payment under construction contracts and relating to claims of defective construction work.

Mr. Hearn has experience in handling matters on behalf of local and regional clients under various issues regarding the Employee Retirement Income Security Act of 1974, as amended (ERISA). Mr. Hearn has represented businesses, governmental units and other clients of diverse sizes in a range of ERISA employee benefits matters, including ERISA planned design, drafting, implementation, and administration. The drafting implementation amendment and administration of various types of employee benefit plans and compensation arrangements include health, life, disability and other employee benefit plans, 401(k) plans, cafeteria plans, health savings accounts (HSAs) and other compensation arrangements and tax incentive arrangements which involve ERISA and COBRA.

His practice area also has experience in insuring compliance by employers with ERISA’s fiduciary responsibility laws, including prohibited transaction rules and minimizing fiduciary liability exposure.

On the litigation side, Mr. Hearn has substantial and extensive experience in handling complex litigation on behalf of employees seeking benefits under employee benefit plans such as disability, life or health, and he has also represented employers, planned fiduciaries, third party administrators, insurers and other providers of employee benefit plans and programs in the defense of claims for employee benefits.

Mr. Hearn has also represented a variety of businesses and property owners located in the mid-south over contract disputes, limited liability company member disputes, lease disputes involving collection of rents and other payments due under lease agreements, unfair competition claims, violations of the Tennessee Consumer Protection Act, violations of the Tennessee Trademark Act, and violations of other business laws of Tennessee.

EDUCATION

University of Tennessee, Knoxville, B.S. degree, finance
University of Memphis Cecil C. Humphreys School of Law, J.D. degree, magna cum laude, 2003 (Law Review)

ADMITTED TO PRACTICE

Tennessee
U.S. District Court, Western District of Tennessee
U.S. District Court, Middle District of Tennessee
U.S. District Court, Eastern District of Tennessee
U.S. Court of Appeals, Sixth Circuit
U.S. Court of Appeals, Eighth Circuit
United States Supreme Court

HONORS/AWARDS

The Best Lawyers in America
MidSouth SuperLawyers (Business Litigation, Employee Benefits/ERISA, Construction Litigation)
Dean’s Award for Academic Excellence in Trial Advocacy and in Constitutional Law, University of Memphis

PROFESSIONAL/CIVIC/CHARITABLE ORGANIZATIONS

Blue Streak Scholarship Fund
American Bar Association
Tennessee Bar Association
Memphis Bar Association

REPRESENTATIVE MATTERS

Assigned to and performed critical work as Glankler Brown’s investigation team retained by the Memphis City Council Chairman to investigate allegations of inappropriate and preferential treatment by MLGW executives, particularly Joseph Lee, towards certain City Council members. Duties included in depth review of pertinent documents, correspondence, and MLGW policies and procedures, extensive interview of MLGW former and existing employees, interview of former and existing City Council members, and drafting comprehensive Investigation Report.
Obtained substantial judgment in bench trial against owner of local nightclub who refused to honor construction suppliers’ contract and delivery of goods and materials to owner used in construction of facility. Successfully defeated defense claims to escape liability based on jurisdictional and venue arguments involving the political and geographical boundaries of Shelby County and the State of Tennessee.
Successfully mediated complex federal court dispute regarding claim by lower-tier electrical installation subcontractor against upper-tier electrical design and installation subcontractor over work performed on a multi-million dollar coal and dust suppression systems power plant. Work on case involved extensive analysis and briefing of proper scope of work under complex bid documents and state law regarding contractors’ licensing act.
Obtained complete dismissal based upon the statute of repose of claim of negligent construction and breach of contract brought against the general contractor and architect of work performed on local high school and involving claims of damages due to mold.
Successfully mediated commercial construction dispute over payment owed to an electrical contractor for work performed on local restaurant and nightclub.
Obtained substantial payment from liability insurance carrier on behalf of property and business owner for claim against contractor for defective construction work that resulted in the complete failure of a wall on structure in downtown Brownsville, Tennessee. Representation in this matter involved comprehensive analysis of expert opinions of engineers and others regarding the appropriate loads and stresses of building’s walls and supports.
Successfully resolved negligent and defective construction claim against unlicensed homebuilder who also sought damages for unpaid invoices.
Intimately involved in the resolution of multi-million dollar dispute brought by ERISA fiduciary against third party administrator of ERISA health welfare and benefit plan regarding claims of improper payment of health benefits and improper charging of claims processing fees. This matter involved specific and detailed analysis of comprehensive third party administrator contract and fee arrangement as well as in-depth study and argument involving ERISA’s fiduciary duties and legal responsibilities.
Successfully obtained judgment for retroactive ERISA disability benefits based upon administrator and retained physician’s failure to provide a full and fair review as required under ERISA’s full and fair review regulations for failing to examine or consider all pertinent medical information and failing to provide all pertinent information to claimant upon request. Also successfully settled claim for additional benefits and for attorneys’ fees during appeal process.
Successfully upheld administrator’s proper denial of health care benefits based upon experimental nature of requested procedure. Also, successfully defended alternative claim of failure to provide a full and fair review. Obtained judgment upholding benefits determination at federal district court and was lead counsel at oral argument before United States Court of Appeals for the Sixth Circuit, who affirmed the decision of the district court.
Drafted extensive summary plan description for the self-insured health welfare benefit on behalf of national client in order to ensure ERISA compliance.
Favorably settled improper unfair competition claim by large multi-national tax preparation company against locally owned national tax preparation franchise. This defense included extensive preparation of multistate defenses and research various state and federal unfair competition and consumer protection law.
Favorably resolved irrevocable trust interpretation, construction and authenticity dispute on behalf of children of deceased. This involved successfully removing trustee and executrix on claims of breach of fiduciary duty pending outcome at trial.
Successfully resolved class action civil rights claim brought under 42 U.S.C. section 1983 against municipal hospital for allegedly denying patients federally mandated rights under Medicare and Medicaid. Successfully obtained dismissal of all state law claims on motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
Obtained final judgment in defense of uncertified class action in Shelby County Circuit Court on behalf of local hospital on claims involving Tennessee’s Hospital Lien Statute.
With a pending ruling on Motion for Summary Judgment, successfully settled multi-continent intellectual property dispute regarding misappropriation of intellectual property intrinsic in the development of a medical orthopedic product. Negotiated successful and substantial payment on claim for misappropriation and for lost profits and fees brought under Tennessee’s Trademark Act that involved multi-continental discovery and depositions.
Obtained substantial award of damages on summary judgment on behalf of local real estate and venture capitalists against contractor and consultant who misappropriated funds to be utilized to purchase kitchen equipment for breach of contract, conversion, and unjust enrichment.
Defended and negotiated favorable settlement on behalf of national tax preparation franchise against claim brought by state attorney general under newly enacted tax refund anticipation loan rules, regulations, and disclosure statute.
Obtained numerous monetary judgments on behalf of suppliers of construction labor, materials, and supplies for breach of contract and unjust enrichment via filing and enforcing mechanics’ and materialmen’s liens under Tennessee’s Mechanics’ and Materialmen’s Lien Statute.
Obtained substantial and numerous trial judgments for possession and damages for default of commercial lease agreement.

WRITTEN OPINIONS

Highwoods Properties, Inc. v. City of Memphis, 297 S.W.3d 695 (Tenn. 2009)
Wachter Electric Company v. Electrical Systems, Inc., 2010 WL 5137361, Nos. 3:10-cv-00083, 3:10-cv-00140 (E.D. Ark. Dec. 9, 2010)
Simmons v. BlueCross BlueShield of Tennessee, 258 Fed.Appx. 878 (6th Cir. 2008)
Simmons v. BlueCross BlueShield of Tennessee, 2005 WL 1638737, No. 3:04-1080 (M.D. Tenn. July 1, 2005)
Winchester v. Unum Life Insurance Company of America, Memorandum Opinion and Order Granting Plaintiff’s Supplemental Motion for Judgment on the Administrative Record, No. 2:07-cv-02724, Docket No. 66 (W.D. Tenn. March 25, 2009)(finding failure of Unum to provide claimant a full and fair review under ERISA)
Winchester v. Unum Life Insurance Company of America, Memorandum Opinion and Order Granting Plaintiff’s Motion to Alter or Amend, No. 2:07-cv-02724, Docket No. 80 (W.D. Tenn. June 23, 2009) (reinstating improperly terminated disability benefits)
Clark v. Shoaf, 302 S.W.3d 849 (Tenn. Ct. App. 2009)