- Reminder: Statutes Require Residential Builders to Provide Certain Notice to Home Buyers - Reminder: Statutes Require Residential Builders to Provide Certain Notice to Home Buyers
Ohio and Kentucky statutes require residential builders to provide certain notice to home buyers. While there is no new law on this, the construction attorneys of Ulmer & Berne LLP have seen this issue come to light many times this past year; thus, prompting this refresher alert on Ohio and Kentucky notice statutes. - SEC To Seek More Comments On Uniform Fiduciary Standard For Broker-Dealers And Investment Advisors - SEC To Seek More Comments On Uniform Fiduciary Standard For Broker-Dealers And Investment Advisors
The U.S. Securities and Exchange Commission will make a public request for more data before revealing a rule expected to establish a uniform fiduciary standard of conduct for broker-dealers and investment advisers. - January 13, 2012 - Consumer Financial Protection Bureau Launches Supervision Program for Nonbanks - Consumer Financial Protection Bureau Launches Supervision Program for Nonbanks
On January 5, 2012, the United States Consumer Financial Protection Bureau (CFPB) officially began the first federal nonbank supervision program. This new program will be a component of the CFPB’s bank supervision program, which began in July 2011. The CFBP’s announcement came shortly after former Ohio Attorney General Richard Cordray was appointed to head the CFPB on January 4, 2012. - December 15, 2011 - U.S. Court of Appeals Rules that Various Mitigation Damages are Recoverable in Data Breach Cases - U.S. Court of Appeals Rules that Various Mitigation Damages are Recoverable in Data Breach Cases
On October 20, 2011, the United States Court of Appeals for the First Circuit issued its ruling in the case of Anderson v. Hannaford Bros. Co., 659 F.3d 151 (1st Cir. 2011). This ruling significantly expanded the scope of damages available to plaintiffs in computer data breach cases.
- November 16, 2011 - Qualification Procedures for the InvestOhio Tax Credit - Qualification Procedures for the InvestOhio Tax Credit
Ohio has a new Tax Credit program called InvestOhio. This 10% Ohio Income Tax Credit is one part of the Ohio budget bill passed during the summer of 2011. In July, we sent a Client Alert to describe this program. We promised to follow-up with you as soon as the Ohio Department of Development announced how to qualify for an InvestOhio Tax Credit. The InvestOhio Tax Credit must be requested because the program is limited. The new program only permits a total of $100,000,000 in credits during a 2-year period, divided among all the requesting individual taxpayers on a first-come, first-served basis. There are now procedures published to implement the first-come, first-served rule. - October 26, 2011 - An Initial Review of the Consumer Financial Protection Bureau’s Supervision and Examination Manual – Version 1.0 - An Initial Review of the Consumer Financial Protection Bureau’s Supervision and Examination Manual – Version 1.0
On October 14, 2011, the Consumer Financial Protection Bureau (CFPB) issued its Supervision and Examination Manual – Version 1.0 (Manual), which provides the first insight into the procedures the CFPB will use in examining the depository institutions and non-depository consumer financial services companies under its jurisdiction. The complete Manual can be found at http://www.consumerfinance.gov/guidance/supervision/manual/. - October 20, 2011 - SEC Issues Guidance on Disclosures by Public Companies Relating to Cybersecurity - SEC Issues Guidance on Disclosures by Public Companies Relating to Cybersecurity
The SEC’s Division of Corporation Finance has issued guidance to public companies about disclosing the cybersecurity measures they employ, information related to actual and potential cyber incidents, and the potential costs stemming from any such incidents. - October 13, 2011 - Unionization Rights Notice Posting Requirement Postponed to January 31, 2012 - Unionization Rights Notice Posting Requirement Postponed to January 31, 2012
In August, we advised you that the National Labor Relations Board (NLRB) issued a rule requiring most private sector employers to post workplace notices informing employees of their unionization rights under the National Labor Relations Act by November 14, 2011. - September 27, 2011 - Ohio’s Public Construction Reform to Take Effect – in Part – September 28, 2011 - Ohio’s Public Construction Reform to Take Effect – in Part – September 28, 2011
The Ohio Legislature passed House Bill 153 on May 5, 2011. H.B. 153 – a budget bill – also includes significant changes for Ohio’s public construction projects. Some changes will begin on September 28, 2011, but others are forecasted to become effective in early 2012. - September 16, 2011 - Congress Reinvents the U.S. Patent System - Congress Reinvents the U.S. Patent System
The “America Invents Act” (“the Act”) recently passed by Congress was signed into law by President Obama on September 16, 2011. Many of its provisions will not take effect immediately; however, the changes to the United States patent system that will be brought about by the America Invents Act constitute the largest overhaul of the patent system in modern times. Some of the most significant features of the new law are described briefly below. - August 27, 2011 - Employers Must Post Unionization Rights Notices According to National Labor Relations Board - Employers Must Post Unionization Rights Notices According to National Labor Relations Board
The National Labor Relations Board (NLRB) issued a rule on August 25, 2011 that requires employers to post workplace notices informing employees of their unionization rights under the National Labor Relations Act. The NLRB first proposed the rule in December, the first time the agency had invoked its rule-making authority since 2004. - August 25, 2011 - Ohio Supreme Court to Decide If Mortgage Servicers Are Subject to Ohio Consumer Laws and Penalties - Ohio Supreme Court to Decide If Mortgage Servicers Are Subject to Ohio Consumer Laws and Penalties
Are mortgage servicers subject to the Ohio Consumer Sales Practices Act, O.R.C. § 1345.01, et seq. (“CSPA” or “Act”)? Two federal judges have recently asked the Ohio Supreme Court to decide this question, and Ohio’s top court announced today that it would accept certification. The CSPA exempts many financial institutions – including banks – from its coverage, but there is still controversy as to whether this exemption applies to non-bank mortgage servicers. - August 11, 2011 - Does the Use of Foreign Call Centers Violate Privacy and Consumer Protection Laws? - Does the Use of Foreign Call Centers Violate Privacy and Consumer Protection Laws?
Many companies rely on foreign call centers to help with customer service or other business needs. Now, Plaintiffs in a federal lawsuit allege that the use of such centers violates customers’ privacy and puts personal and financial information at risk. On August 3, 2011, three residents of Washington D.C. sued Bank of America (“BoA”) over the alleged confidentiality and privacy risks caused by the transfer of their data to foreign call centers. On behalf of the class, the three plaintiffs allege that their financial data receives greater protection inside the United States than outside it. - July 27, 2011 - Dodd-Frank Act Increases Disclosure Requirements for Financial Institutions and Other Businesses Which Make Decisions Based on Credit Scores - Dodd-Frank Act Increases Disclosure Requirements for Financial Institutions and Other Businesses Which Make Decisions Based on Credit Scores
On July 15, 2011, the Federal Reserve Board (“the Board”) and the Federal Trade Commission (“FTC”) published final rules in the Federal Register implementing the credit score disclosure requirements contained in Section 1100F of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). - July 14, 2011 - New Ohio Small Business Investment Credit - New Ohio Small Business Investment Credit
The recently-enacted Ohio budget bill (HR 153) made some significant changes to Ohio’s tax law, the most notable of which include: (a) repeal of the Ohio estate tax, (2) temporary tax amnesty program, (3) new job retention credit for large employers, and (4) new small business investment credit. This Client Alert focuses on the new small business investment credit (aka the InvestOhio plan). - July 6, 2011 - Ohio Historic Preservation Tax Credit Renewed With Modifications - Ohio Historic Preservation Tax Credit Renewed With Modifications
Ohio’s legislature recently approved, and Governor Kasich signed, a fiscal year 2012-2013 budget that includes a renewal of the Ohio Historic Preservation Tax Credit Program (the “Program”) for coming years in perpetuity. The new budget provides for annual credits to eligible projects worth up to $60 million, which matches prior years’ funding allowances. Several modifications to the Program promise to make it more appealing to eligible building owners. For the first time, foreign and domestic insurance companies can take advantage of the Program, and projects may now be completed in “phases.” Also, whereas ODOD was previously required to rescind approval to projects that fail to move forward within 18 months of approval, it now has discretion over whether to sustain the project despite such delays. - July 5, 2011 - Supreme Court Nixes Massive Wal-Mart Employee Class Action - Supreme Court Nixes Massive Wal-Mart Employee Class Action
The Supreme Court of the United States recently issued a decision in a class action employment case described by the Court as “one of the most expansive class actions ever,” which was brought on behalf of all current and former female employees of Wal-Mart. The decision heralds heightened scrutiny of the actual evidence purportedly tying the claims of a particular class together to ensure that there is common and class-wide proof of a shared injury. The Supreme Court’s decision, which has provoked divergent and heated commentary, is therefore important to the business community in defending class action litigation. - June 27, 2011 - Primary Liability Under Rule 10b-5 Limited to “Ultimate Makers” of Fraudulent Statements - Primary Liability Under Rule 10b-5 Limited to “Ultimate Makers” of Fraudulent Statements
In a recent decision, Janus Capital Group, Inc. v. First Derivative Traders, No. 09-525 (June 13, 2011), the U.S. Supreme Court further limited who can be held liable in a private action under Exchange Act Rule 10b-5, 17 C.F.R. § 240.10b-5, for false or misleading statements of material fact in connection with the sale of securities. The decision is good news for business entities and individuals who give advice and assistance to companies which issue such statements, since the Court held that only the ultimate “maker” of the statement can have primary liability in a private action under Rule 10b-5. - May 12, 2011 - Department of Justice Contends Due Diligence Failures Can Be the Basis for False Claims Act Liability - Department of Justice Contends Due Diligence Failures Can Be the Basis for False Claims Act Liability
In early May 2011, the U.S. Department of Justice sued Deutsche Bank and its subsidiary, Mortgage IT Inc., in the Southern District of New York for alleged violations of the False Claims Act, 31 U.S.C. §§3729, et seq. This civil suit is widely considered to signal a new wave of False Claims Act prosecutions to recover government funds expended in the recent mortgage crisis. - May 6, 2011 - IRS Permits Taxpayers to Deduct 70% of Success-Based Fees in M&A Transactions and Reorganizations, No Questions Asked - IRS Permits Taxpayers to Deduct 70% of Success-Based Fees in M&A Transactions and Reorganizations, No Questions Asked
Revenue Procedure 2011-29 (the Revenue Procedure) permits taxpayer to treat 70% of success-based fees in certain acquisitions or reorganizations as a deductible expense and requires that the remaining 30% be capitalized. - May 3, 2011 - The Supreme Court Upholds Arbitration Agreements That Preclude Class Actions - The Supreme Court Upholds Arbitration Agreements That Preclude Class Actions
On April 27, 2011, the U.S. Supreme Court significantly enhanced the ability of companies to limit exposure to class action litigation, and to ensure that disputes with customers who have agreed to arbitration are decided on an individual rather than a class-wide basis. - April 15, 2011 - SEC Proposes Rules Regarding the Independence of Compensation Committees and Advisers - SEC Proposes Rules Regarding the Independence of Compensation Committees and Advisers
On March 30, 2011, the Securities and Exchange Commission (SEC) proposed rules to implement Section 952 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). That section requires that the SEC adopt rules directing national securities exchanges and associations to prohibit listing of any equity security of an issuer that is not in compliance with certain compensation committee and compensation adviser independence requirements. - April 12, 2011 - Substantial Changes to FINRA Discovery Guide Forthcoming - Substantial Changes to FINRA Discovery Guide Forthcoming
On April 1, 2011, the Securities and Exchange Commission (“SEC”) granted accelerated approval to a rule change that will substantially revise the Discovery Guide (Guide) applicable to arbitrations before the Financial Industry Regulatory Authority (“FINRA”). The new Guide will eliminate the current “claim specific” document lists and replace them with two general lists that will be applicable in all cases, regardless of the claims asserted.
- April 4, 2011 - Ohio General Assembly Approves Major Public Sector Collective Bargaining Changes - Ohio General Assembly Approves Major Public Sector Collective Bargaining Changes
On Thursday evening, Governor John Kasich signed Senate Bill 5 (SB 5) into law. The legislation, which sets forth significant changes to Ohio’s 27-year-old public sector collective bargaining law, passed the House of Representatives by a 53-44 vote on Wednesday afternoon. - March 10, 2011 - U.S. Army Corps of Engineers Proposes to Reissue and Modify Nationwide Permits - U.S. Army Corps of Engineers Proposes to Reissue and Modify Nationwide Permits
On February 16, 2011, the U.S. Army Corps of Engineers (“Army Corps”) noticed for public comment its proposal to reissue and modify the nationwide permits issued under Section 404 of the Clean Water Act. The notice can be found at 76 FR 9174. The proposal will affect nationwide permits applicable to residential developments, commercial and institutional developments, agricultural activities, surface and underground mining activities, and renewable energy generation facilities, among others. - March 8, 2011 - In “Cat’s Paw” Case, Supreme Court Rules That Employer Can Be Liable for Discriminatory Animus of Supervisor Who Did Not Make the Ultimate Employment Decision - In “Cat’s Paw” Case, Supreme Court Rules That Employer Can Be Liable for Discriminatory Animus of Supervisor Who Did Not Make the Ultimate Employment Decision
On March 1, 2011, the United States Supreme Court issued Staub v. Proctor Hospital, Slip Opinion No. 09-400 (March 1, 2011), a tough decision for employers. The Court held unanimously that an employer can be liable for the discriminatory animus of a supervisor, even when the supervisor did not make the ultimate employment decision. - February 9, 2011 - SEC ADOPTS FINAL RULES ON - SEC ADOPTS FINAL RULES ON SAY-ON-PAY AND GOLDEN PARACHUTES (With a Divided 3-2 Vote)
On January 25, 2011, the Securities and Exchange Commission (“SEC”) issued its final rules to implement Section 951 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). Section 951 requires public companies that are subject to the proxy rules to provide...
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