cope-2647.pdf (2016)

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IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE FILED
IN RE: JAMES CARL COPE,BPR #3340 OCT 2 5 2016
An Attorney Licensed to Practice Law in Tennessee Clerk of the Courts
(Rutherford County) Rec'd By

No. M2016-02144-SC-BAR-BP
BOPR No. 2016-2647-4-KH(22.3)

ORDER OF ENFORCEMENT

This matter is before the Court pursuant to Tenn. Sup. Ct. R. 9, § 22.3, upon a
Notice of Submission filed by Disciplinary Counsel for the Board of Professional
Responsibility consisting of a certified copy of the Plea Agreement in the United States
District Court for the Middle District of Tennessee, Nashville Division, in the matter of
United States ofAmerica v. James Cope (attached as Exhibit A)demonstrating that James
Cope, a Tennessee attorney, has pled guilty to a serious crime, i.e., insider trading in
violation of Title 15, Unites States Code, Section 78j(b) and Title 17, Code of Federal
Regulations, Section 240.10b-5.

IT IS THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND
DECREED BY THE COURT THAT:

1. James Carl Cope is suspended from the practice of law on this date pending
further orders of this Court, pursuant to Tenn. Sup. Ct. R. 9, § 22.3;

2. This matter shall be referred to the Board of Professional Responsibility for
the institution of a formal proceeding in which the sole issue to be determined shall be the
extent of the final discipline;

3. James Carl Cope shall fully comply with the provisions of Tenn. Sup. Ct.
R. 9, § 28, concerning disbarred or suspended attorneys; and

4. The Board of Professional Responsibility shall cause notice of this
suspension to be published as required by Tenn. Sup. Ct. R. 9, § 28.11.

PER CURIAM
AITt.bi AMP UMW(
A TRUE COPY
Clerk
U.S. Distrid Court
ROSSO.
die Dist'
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

UNITED STATES OF AMERICA

) No.
v. ) Judge

JAMES COPE

PLEA AGREEMENT

The United States of America, through David Rivera, United States Attorney for the

Middle District ofTennessee,and Assistant United StatesAttorney Henry Leventis,and defendant,

James Cope,through defendant's counsel, Aubrey Harwell,pursuant to Rule 11(c)(1)(A)and(C)

Of the Federal Rules of Criminal Procedure, have entered into an agreement, the terms and

conditions of which are as follows:

Chances in This Case

1. Defendant acknowledges that he has been charged in the Information in this case

with insider trading in violation ofTitle 15,United States Code,Section 78j(b)and Title 17, Code

ofFederal Regulations, Section 240.10b-5.

2. Defendant has read the charges against him contained in the Information,andthose

charges have been fully explained to him by his attorney. Defendant fully understands the nature

and elements ofthe crime with which he has been charged.

Charges to Which Defendant is Pleading Guilty

3. By this Plea Agreement, defendant agrbes to enter a voluntary plea of guilty to

Count 1 ofthe Information,charging insider trading.

Exhibit A
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Penalties

4, The parties understand and agree that the offense to which defendant will enter a

plea of guilty carries the following maximum penalties: 20 years of imprisonment, 3 years of

supervised release, a $5,000,000 fine and a $100 special assessment.

. 5. Defendant also understands that a defendant who is not a United States citizen may

be removed from the United States, denied citizenship, and denied admission to the United States

in the future, regardless of whether the defendant currently has lawful temporary or permanent

tesident status,

Acknowledgements and Waivers Regarding Plea ofgujity

Nature ofPlea Agreement

6. This Plea Agreement is entirely voluntary and represents the entire agreement

between the United States Attorney and defendant regarding defendant's criminal liability in case

'4061;10146
7. Defendant understands that by pleading guilty he surrenders certain trial rights,

including the following:

a. If defendant persisted in a plea of not guilty to the charge against him, he

would have the right to a public and speedy trial. Defendant has a right to ajury trial, and the trial

would be by ajudge rather than ajury only ifdefendant,the Government,and the Court all agreed

to have nojury,

b. If the trial were a jury trial, the jury would be composed of twelve

laypersons selected at random. Defendant and his attorney would have a say in who the jurors

would be by removing prospective jurors for cause, or without cause by exercising so-called
peremptory challenges. Thejury would have to agree unanimously before it could return a verdict

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of either guilty or not guilty. The jury would be instructed that defendant is presumed innocent;

that the Government bears the burden of proving defendant guilty of the eharge(s) beyond a

reasonable doubt; and that it must consider each count of the indictment against defendant

separately.

c. If the trial were held by thejudge without ajury, the judge would find the

facts and determine, after hearing all the evidence, whether or not the judge was persuaded of

defendant's guilt beyond a reasonable doubt.

d. At a trial, whether by ajury or ajudge,the Government would be required

to present its witnesses and other evidence against defendant. Defendant would be able to confront

those government witnesses and his attorney would be able to cross-examine them. In turn,

defendant could present witnesses and other evidence on his own behalf. If the witnesses for

defendant would not appear voluntarily, be could require their attendance through the subpoena

power ofthe Court.

e. At a trial, defendant would have a privilege against self-incrimination so

that he could testify or decline to testify, and no inference of guilt could be drawn from his refitsal

to testify.

8. Defendant understands that by pleading guilty he is waiving all of the trial rights

set forth in the prior paragraph. Defendant's attorney has explained those rights to him, and the

consequences ofhis waiver ofthose rights.

factual Basis

9. Defendant will plead guilty because he is in fact guilty ofthe charge contained in

Count 1 ofthe Information. In pleading guilty,defendant admits the following facts and that those
facts establish his guilt beyond a reasonable doubt:

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Defendant James Cope was a resident of Murfreesboro, Tennessee and was a licensed

attorney with more than 20 years of experience as a bank director. Pinnacle Financial Partners

("Pinnacle") was a publicly-traded financial institution headquartered in Nashville,

Tennessee. The defendant was a member of the Board ofDirectors of Pinnacle, served as Chair

ofthe Pinnacle Board of Directors Compensation Committee,and had previously served as Lead

Director for Pinnacle.

In connection with'his responsibilities as a Pinnacle director, the defendant received

confidential, non-public information concerning Pinnacle and certain other publicly-traded

companies. The defendant had a fiduciary duty to maintain such information in confidence and to

refrain from using this information for personal gain.'

Pinnacle maintained and enforced a policy prohibiting insider trading by its employees and

directors. Under Pinnacle's "Statement ofPolicy on Prevention ofInsider Trading," utilization of

inside information "to transact personal investment decisions is expressly forbidden." Pinnacle's

policy expressly stated that "it is illegal to engage in 'insider trading,' which is purchasing or

selling securities when one is in possession of material nonpublic information relating to those

securities."

On or about January 12, 2015,the defendant signed a certification acknowledging that he

had reviewed Pinnacle's Trading Policy and Insider Trading Statement and certified that he would

comply with these policies.

In October 2015,the defendant attended a Pinnacle event at which there was a presentation

of Pinnacle's Insider trading policy. During this event, attendees were reminded that directors

have a duty to "[k]eep all inside information confidential" and that directors should "tnjever buy

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or sell stock while in possession ofinside information." Attendees were also reminded'that inside

Information is "[m]aterial, nonpublic information you learn about Pinnacle... or another public

company while serving as a director, officer or employee ofPinnacle." .

In 2015 and 2016, Avenue Bank ("Avenue").was a publicly-traded financial institution

whose shares were registered with the United States Securities and Exchange Commission

pursuant to Section 12 ofthe Securities Exchange Act of 1934.

In December 2015, executives of Pinnacle and Avenue began discussions regarding a

potential acquisition of Avenue by Pinnacle. On December 1,2015,the Executive Committee of

Pinnacle's Board of Directors, including the defendant, was informed by Pinnacle CEO Michael

Terry Turner that he (Turner) had reached out to executives at Avenue to express interest in a

merger between Pinnacle and Avenue.

In late December 2015, the defendant and other Pinnacle directors were given access to

certain information in advance of an upcoming Executive Committee meeting to be held on

January 5, 2016, This material was non-public, and discussed a potential acquisition of an

unnamed bank. This material also discussed a potential price per share of$19.00for the proposed

acquisition. On January 3, 2016, the defendant accessed the aforementioned Pinnacle director

materials via an online portal.

On January 5,2016,Pinnacle executives briefed the ExecutiVe Committee ofthe Pinnacle

Board of Directors on a potential acquisition of Avenue, using the aforementioned

information. The defendant was present for and participated in this meeting. This meeting

included discussion ofthe proposed Pinnacle/Avenue transaction,including discussion offinancial
specifics ofthe target acquisition price of$19.00 per share of Avenue stock. On January 5,2016,

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during the Executive Committee meeting of Pinnacle's Board of Directors, all of the Executive

Committee members,including the defendant,stated that they were in favor ofPinnacle acquiring

Avenue.

On January 5, 2016, after learning the aforementioned information regarding Pinnacle's

interest and efforts to acquire Avenue,the defendant purchased 6,179 shares ofAvenue stock. The

approximate price per share for these purchased shares was $13.81. The defendant purchased this

stock on the basis of material, non-public information that he had obtained in confidence no later

than the Pinngcle Executive Committee meeting on January 5,2016.

Defendant also acknowledges that for the purpose of determining the applicable advisory

sentencing range under the United States Sentencing Guidelines (hereinafter "U.S.S.G.”), the

following conduct,to which he stipulates, constitutes relevant conduct under U.S.S.G. § 181.3;

The defendant's purchase of4,000 shares of Avenue Bank stock on January 11,2016.

Sentencing Guidelines Calculations

10. The parties understand that the Court will take account of the United States

Sentencing Guidelines (hereinafter "U.S.S.G."),together with the other sentencing factors set forth

at 18 U.S.C. § 3553(a), and will consider the U.S.S.G. advisory sentencing range in imposing

defendant's sentence.

11. For purposes of determining the U.S.S.G. advisory sentencing range, the United

States and defendant agree, pursuint to Rule 11(c)(1XC),to the following:

a. Offense Level Calculations.

i. The base offense level for Count 1 is 8, pursuant to U.S.S.G. §

2B1.4(a).

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ii. Pursuant to U.S.S.G. §§ 2B1.4(b)(1) and 2B1.1(hX1)(E% the base

offense level should be increased by 6 because the loss amount exceeds $40,000.

iii. Two levels should be added pursuantto U.S.S.G.§ 3B1.3, because

the defendant abused a position oftrust.

iv. Assuming defendant clearly demonstrates acceptance ofresponsibility,

to the satisfaction ofthe Govenunent,through his allocution and subsequent conduct

prior to the imposition ofsentence, a 2-level reduction will be warranted, pursuant to

U.S.S.G. § 3E1.1(a)and a 1-level reduction will be warranted, pursuant to U.S.S.G. §

3E1.1(b).

6. Therefore,the parties agree to recommend to the Court a final offense level

of 13 (the"Recommended Offense Level"). Defendant understands that the offense level

as ultimately determined by the Court (the "court-determined offense level)" may be

differentfrom the Recommended Offense Level. Defendant likewise understands that the

guidelines range as ultimately determined by the Court(the "court-determined guidelines

range")may be based on an offense level differentfrom the Recommended Offense Level.

Agreements Relating to Sentencing

12. Pursuant to Rule 11(eX1)(C) of the Federal Rules of Criminal Procedure, the

United States and the defendant agree that the following sentence represents an appropriate

disposition ofthe case:

a. The defendant will serve a probationary sentence oftwenty four(24)months.

b. During the first nine(9)months ofthe defendant's sentence, he will be subject to

home confinement.
c. The defendant will pay a fine offifty-five thousand dollars ($55,000).

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13. Defendant agrees to pay the special assessment of $100 for count one in the

Information ator before the time ofsentencing to the Clerk ofthe U.S.District Court.

Presentence Investigation Report/Post-Sentence Supervision

14. Defendant understands that the United States Attorney's Office,in its submission to
the
the Probation Office as part of the Pre-Sentence Report and at sentencing, shallfully apprise

District Court and the United States Probation Office ofthe nature,scope,and extent of defendant's

conduct regarding the charges against him, as well as any related matters. The Government will

make known all matters in aggravation and mitigation relevant to the issue ofsentencing.

15. Defendant agrees to execute truthfully and completely a Financial Statement(with

supporting documentation) prior to sentencing,to be provided to and shared among theCourt,the

United States Probation Office, and the United States Attorney's Office regarding all details ofhis

financial circumstances, including his recent income tax returns as specified by the Probation

Officer. Defendant understands that providing false or incomplete information, or refuiing to

provide this information, may be used as a basis for denial of a reduction for acceptance of

responsibility pursuant to U.SS.G. § 3E1.1, and may be prosecuted as a violation of Title 18,

United States Code,Section 1001,or as a contempt ofthe Court.

16. This Plea Agreement concerns criminal liability only. Except as expressly set forth

in this Plea Agreement,nothing herein shall constitute a limitation, waiver, or release by the United

States or any ofits agencies ofany administrative or judicial civil claim, demand,or cause ofaction

it may have againSt defendant or any other person or entity. The obligations ofthis Plea Agreement

are limited to the United States Attorney's Office for the Middle District of Tennessee and cannot

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bind any other federal,state,or local prosecuting, administrative,or regulatory authorities,except as

expressly set forth in this Plea Agreement

17. Defendant understands that nothing in this Plea Agreethent shall limit the Internal

Revenue Service (IRS)In its collection of any taxes, interest, or penalties from defendant and his

spouse.

Entry ofGuilty Plea

18. The partiesjointly request that the Court accept the defendant's plea ofguilty as set

forth in this agreement and 'enter an order reflecting the acceptance of the plea; the parties

understand the Court may wish to review the pre-sentence report.

Waiver of Appellate Rights

19. Regarding the issue ofguilt, defendant hereby waives all (i) rights to appeal any issue

bearing on the determination ofwhether he is guilty ofthe crime to which heis agreeing to plead guilty;

and (ii) trial rights that might have been available if he exercised his right to go to trial. Regarding

sentencing, defendant is aware that 18 U.S.C.§3742 generally affords a defendantthe rightto appeal

the sentence imposed. Acknowledging this, defendant knowingly waives the right to appeal any

sentence within or below the Recommended Guidelines Range. pefendant also knowingly waives

the right to challenge the sentence imposed in any collateral attack, including, but not limited to, a

motion brought pursuant to 28 § 2255 and/or § 2241,and/or 18 U.S.C.§ 3582(c). However,

no waiver of the right to appeal, or to challenge the adjudication of guilt or the sentence imposed in

any collateral attack, shall apply to a claim of involuntariness, prosecutorial misconduct, or

ineffective assistance ofcounsel. Likewise,the Government waives the right to appeal any sentence

within or above the Recommended Guidelines Range.

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Other Terms

20. Defendant agrees to cooperate with the United States Attorney's Office in collecting

any unpaid fine and restitution for which defendant is liable,including providing financial statements

and supporting records as requested by the United States Attorney's Office.

21. Defendant agrees to cooperate with the IRS in any tax examination or audit of

defendant and his wife that directly or indirectly relates to or arises out of the course of conduct

defendant has acknowledged in this Plea Agreement,by transmitting to the IRS original records or

copies thereof, and any additional books and records that the IRS may request. Nothing in this

paragraph precludes defendant from asserting any legal or factual defense to taxes, interest, and

penalties that may be assessed by the IRS.

22. Should defendant engage in additional criminal activity after he has pled guilty but

prior to sentencing, defendant shall be considered to have breached this Plea Agreement, and the

Government at its option may void this Plea Agreement.

Conclusion

23. Defendant understands'that the Information and this Plea Agreement have been or

will be filed with the Court, will become matters of public record, and may be disclosed to any ..

person.

24. Defendant understands that his compliance with each part of this Plea Agreement

extends until such time as he is sentenced, and failure to abide by any term ofthe Plea Agreement is

a violation ofthe Plea Agreement. Defendant further understands that in the event he violates this

Plea Agreement, the Government,at its option, may move to vacate the Plea Agreement,rendering

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it null and void, and thereafter prosecute defendant not subject to any ofthe limits set forth in this

Plea Agreement,or may require defendant's specific performance ofthis Plea Agreement.

25. Defendant and his attorney acknowledge that no threats have been made to cause

defendant to plead guilty.

26. No promises, agreements, or conditions have been entered into other than those set

• forth in this Plea Agreement, and none will be entered into unless memorialized in writing and

signed by all ofthe parties listed below.

27. Defendant's Signature: I hereby agree that I have consulted with my attorney and fully

understand all rights with respect to the pending Information. Further,I fully understand all rights with

respect to the provisions ofthe Sentencing Guidelines that may apply in my case. I have read this Plea

Agreement and carefully reviewed every part ofit with my attorney. I understand this Plea Agreement,

and I voluntarily agree to it.

Date:

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28. Defense Counsel Signature: I am counsel for defendant in this case. I have fully
explained to defendant his rights with respect to the pending Information. Further,I have reviewed

the provisions ofthe Sentencing Guidelines and Policy Statements, and I have fully explained to

defendant the provisions ofthose guidelines that may apply in this case. I have reviewed carefully

every part ofthis Plea Agreement with defendant. To my knowledge,defendant's decision to enter

into this Plea Agreement is an informed and vo)intary o

645r- V'Vii
Date:
Aubrey ell •
Attorneyf Defendant

Respectfully submitted,

DAVID
United tats.ttomey

By:
H i .Lev
Assistant U.S. Attorney

John Web
Deputy Chief

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