Attorneys

About

Malcolm “Macky” Brown Futhey III

Malcolm Brown Futhey III’s practice focuses on business litigation, business organization, personal injury, insurance matters for insureds, environmental law, class actions, complex litigation, property matters, and quiet-title actions .  He has also handled a wide array of complex matters regarding  computer and technology, bankruptcy, wrongful death,  constitutional law, RICO, labor and employment, ERISA and health care law, intellectual property, government law, administrative law, and probate and estate law.

Malcolm has been designated a “Super Lawyer” in the area of business litigation for 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021.  He was a “Rising Star” in 2012 and 2013.

Malcolm graduated from Wake Forest School of Law in 2003 where he served as Executive Editor of the Wake Forest Intellectual Property Law Journal and research assistant to Constitutional and Public Law Professor Michael Kent Curtis. Before law school, he obtained his bachelor of arts degree in philosophy Reed College in Portland, Oregon, in 1999. Malcolm Futhey clerked for United States District Court Judge David R. Herndon in the Southern District of Illinois from 2003 to 2005.

Malcolm has been designated a Super Lawyer in the area of business litigation since 2014.

He was named a “Power Player” for Entertainment Law by the Memphis Business Quarterly.

 

Admissions:

Illinois Supreme Court – 2003

Tennessee Supreme Court – 2005

United States Supreme Court

Sixth Circuit

Seventh Circuit

Eighth Circuit

Western, Middle, and Eastern Districts of Tennessee

Western, Middle, and Eastern Districts of Tennessee Bankruptcy Courts

Eastern and Western Districts of Arkansas

District of Colorado

Northern District of Illinois

Northern and Southern Districts of Indiana

 

Publications:

Several Factors to Consider When Navigating the Non-Compete Landscape, Memphis Business Journal, June 10-16, 2011 (co-author).

Medicare Subrogation Rights, Subrogator, Winter 2009, at 73 (co-author).

The Burden of Knowledge: An Assessment of Conflicting Notice Rules under Tenn. Code Ann. § 20-1-119, 8 Tenn. J. Prac. & Proc. 7 (2007).

 

Notable Cases:

Hanover Insurance Company v. Tattooed Millionaire Entertainment, LLC, 974 F.3d 767 (6th Cir. 2020) – successfully represented the operator of House of Blues’ Studio B in a jury trial regarding a $3 million insurance policy and had the jury verdict reinstated on appeal.

Weimar v. Geico Advantage Insurance Company, No. 19-2698-JTF-tmp (W.D. Tenn. 2020) – obtained a settlement on behalf of a class of auto insureds and secured a 100% benefit for qualifying class members.

Carroll v. TDS Telecommunications Corporation, No. 1:17-cv-01127-STA-egb, 2017 WL 6757566 (W.D. Tenn. Dec. 29, 2017) – represented a putative class of rural internet subscribers regarding slow internet speeds.

Champion Hills Realty Holdings, LLC v. Wilmington Trust, N.A., No. 2:17-cv-02431-SHL-cgc, 2017 WL 8727477 (W.D. Tenn. Oct. 18, 2017) – represented a borrower on a complex loan dispute.

Ford v. Specialized Loan Servicing, LLC, No. 2:16-cv-02414-JPM-tmp, 2017 WL 5069114 (W.D. Tenn. Aug. 9, 2017) – obtained dismissal of a borrower’s federal banking claims against a later, good-faith purchaser.

Peters v. O’Malley, No. 2:13-00103 2015 WL 12531995 (M.D. Tenn. Feb. 20, 2015) – represented a patient in a complex medical malpractice claim.

Clemans v. New Werner Co., No. 3:12-cv-05186, 2013 WL 12108739 (W.D. Wash. Nov. 22, 2013) – represented a class of consumers who purchased defective Werner attic ladders.

Jaynes v. Landmark Construction General Contractor, Inc., No. CT-003300-12 (Shelby County Cir. Ct. 2012); State of Tennessee v. Jaynes, No. 12102282 (Shelby County Gen. Sess. 2012) – obtained dismissal of felony theft-of-property charges at probable cause hearing for client and then successfully tried a malicious-prosecution case against the individual and entity who wrongly filed charges against the client.

Shelton v. Zausmer, No. 09-2258-STA, 2010 WL 145349 (W.D. Tenn. Jan. 8, 2010) – prevailed in argument for dismissal based on personal jurisdiction where a Tennessee conservator sought recovery of funds against a Michigan conservator, both of whom sought recovery of stolen funds in connection with multi-state funeral home fraud.

Black & Decker (US), Inc. v. Smith, 568 F. Supp. 2d 929 (W.D. Tenn. 2008) – successfully argued for dismissal of Computer Fraud and Abuse Act (CFAA) claims against a former employee.

Nesses v. Associates Health and Welfare Plan, No. 1:07-cv-1405-DFH-WTL, 2008 WL 2557482 (S.D. Ind. June 9, 2008) – obtained favorable decision for an ERISA health care plan in recovery of paid health care benefits under § 502(a)(3).

Humana Ins. Co. v. Brotherhood Mut. Ins. Co., No. 1:08-cv-00235-TLS-RBC (N.D. Ind. 2008) – represented Medicare insurer in a successful lawsuit seeking recovery of medical expenses from primary plan provider on multiple claims under Medicare Secondary Payer laws.

Brown v. Associates Health and Welfare Plan, No. 07-2006,  2007 WL 2350323 (W.D. Ark. Aug. 16, 2007) – obtained favorable decision for an ERISA health care plan in recovery of paid health care benefits under § 502(a)(3).

Hunt v. Illinois Central Railroad Co., No. 93635T (Shelby County Cir. Ct. 1998) – succesfully represented a class of home owners and residents affected by a rail tank car spill and designed and implemented complex geographical structure for distribution of class action settlement.

 

Organizations:

Inns of Court

Memphis Bar Fellow

Memphis Bar Association

Tennessee Bar Association

Federal Bar Association

Memphis Bar Association YLD Board – 2011

About

CASES

Hunt v. Illinois Central Railroad Co., No. 93635T (Shelby County Cir. Ct. 1998) – succesfully represented a class of home owners and residents affected by a rail tank car spill and designed and implemented complex geographical structure for distribution of class action settlement.
Brown v. Associates Health and Welfare Plan, No. 07-2006, 2007 WL 2350323 (W.D. Ark. Aug. 16, 2007) – obtained favorable decision for an ERISA health care plan in recovery of paid health care benefits under § 502(a)(3).
Humana Ins. Co. v. Brotherhood Mut. Ins. Co., No. 1:08-cv-00235-TLS-RBC (N.D. Ind. 2008) – represented Medicare insurer in a successful lawsuit seeking recovery of medical expenses from primary plan provider on multiple claims under Medicare Secondary Payer laws.
Black & Decker (U.S.), Inc. v. Smith, 568 F. Supp. 2d 929 (W.D. Tenn. July 11, 2008) – obtained dismissal of portions of Computer Fraud and Abuse Act claims on which a split in authority existed among the Circuits.
Shelton v. Zausmer, No. 09-2258-STA, 2010 WL 145349 (W.D. Tenn. Jan. 8, 2010) – prevailed in argument for dismissal based on personal jurisdiction where a Tennessee conservator sought recovery of funds against a Michigan conservator, both of whom sought recovery of stolen funds in connection with multi-state funeral home fraud.
Clemans v. New Werner Co., No. 3:12-cv-05186-RBL (W.D. Wash. 2012) – represented consumers in a successful class action against a manufacturer and seller of defective attic ladders.
State of Tennessee v. Jaynes, No. 12102282 (Shelby County Gen. Sess. 2012); Jaynes v. Landmark, No. CT-003300-12 Div. IX (Shelby County Cir. Ct. 2012) - obtained dismissal of felony theft of property charges at probable cause hearing for client and then successfully tried a case against the individual and entity who wrongly filed charges against the client.