Client Alerts - Archives 

  • February 1, 2011 - UK Delays Implementation of Bribery Act - UK Delays Implementation of Bribery Act
    The countdown to the April 1, 2011 effective date of the United Kingdom’s Bribery Act (Act) halted on January 31, 2011, when the UK’s Ministry of Justice (MOJ) announced it would delay implementation of the Act.  Implementation is now deferred until the MOJ has had an opportunity to promulgate guidance to businesses to allow them to prepare for and adapt to the new legislation.  The Act is now slated to come into effect three months after the guidance is published.  The MOJ did not commit to a precise date for publication of the guidance, however. 
  • January 26, 2011 - Supreme Court Holds Third Parties Have Standing to Bring Retaliation Claims as a Person Aggrieved Under Title VII - Supreme Court Holds Third Parties Have Standing to Bring Retaliation Claims as a Person Aggrieved Under Title VII
    On January 24, 2011, the United States Supreme Court announced its decision in Thompson v. North American Stainless, LP, Slip Opinion No. 09-291 (January 24, 2011). The sitting Court unanimously held that Title VII of the Civil Rights Act grants a third-party cause of action for retaliation where the plaintiff falls within the “zone of interests” protected under Title VII.
  • December 28, 2010 - Federal New Markets Tax Credit Extended Under Tax Deal - Federal New Markets Tax Credit Extended Under Tax Deal
    An extension of the New Markets Tax Credit program (the “Credit”) was included in the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 (the “Bill”) as signed by President Obama on December 17, 2010. 
  • December 21, 2010 - TAX PROVISIONS OF THE 2010 TAX RELIEF ACT - TAX PROVISIONS OF THE 2010 TAX RELIEF ACT
    On December 17, 2010, President Obama signed into law the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (“Act”). This sweeping tax package includes, among many other items, an extension of the Bush-era tax cuts for two years; estate, gift and generation-skipping transfer tax relief for two years; a “patch” of the alternative minimum tax (AMT) for two years; a cut in employee-paid payroll taxes and in self-employment tax for 2011; new incentives to invest in machinery and equipment; and a host of retroactively resuscitated and extended tax breaks for individuals and businesses. This Client Alert provides a summary of the most significant of these new tax provisions.
  • December 13, 2010 - LOW INTEREST RATE ENVIRONMENT PROVIDES EXTRAORDINARY ESTATE PLANNING OPPORTUNITIES - LOW INTEREST RATE ENVIRONMENT PROVIDES EXTRAORDINARY ESTATE PLANNING OPPORTUNITIES
    The combination of low interest rates and continued depressed economic conditions presents an excellent opportunity for the transfer of wealth to children and others at little or no gift tax cost. This Alert highlights several estate planning techniques that may provide significant tax advantages in today’s low-interest rate and depressed-value environment.
  • October 29, 2010 - SEC PROPOSES RULES ON SAY-ON-PAY AND SAY-ON-GOLDEN-PARACHUTES - SEC PROPOSES RULES ON SAY-ON-PAY AND SAY-ON-GOLDEN-PARACHUTES Also Proposes Proxy Vote Reporting by Institutional Investment Managers
    On October 18, 2010, the Securities and Exchange Commission (“SEC”) proposed rules to implement Section 951 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) which requires public companies that are subject to the proxy rules to provide.
  • October 18, 2010 - FTC “Red Flag” (Identity Theft Prevention) Rules Compliance - FTC “Red Flag” (Identity Theft Prevention) Rules Compliance Deadline Is Fast Approaching
    The Red Flag rules promulgated by the Federal Trade Commission (FTC) went into effect on January 1, 2008. The current compliance deadline for the Red Flag rules is December 31, 2010.  These rules require many businesses to implement written identity theft prevention policies and programs designed to identify warning signs of actual or potential identity theft (i.e., “red flags”), detect red flags, prevent identity theft and mitigate the consequences of identity theft, and perform regular updates of the policy and program in effect to respond to changes that may occur.
  • October 13, 2010 - IRS Document Correction Program for Nonqualified Deferred Compensation Plans Means More Work to be Done by Year-End to Ensure 409A Compliance and Avoid Penalties - IRS Document Correction Program for Nonqualified Deferred Compensation Plans Means More Work to be Done by Year-End to Ensure 409A Compliance and Avoid Penalties
    IRS Notice 2010-6 establishes a program for the correction of certain document failures of nonqualified deferred compensation plans to comply with Section 409A of the Internal Revenue Code.[1]  The Notice, which was issued earlier this year, supplements Notice 2008-113, wherein the Service provided guidance with respect to the correction of operational failures under Section 409A.
  • September 28, 2010 - TAX PROVISIONS OF THE 2010 SMALL BUSINESS JOBS ACT - TAX PROVISIONS OF THE 2010 SMALL BUSINESS JOBS ACT
    On September 27, 2010, President Obama signed into law the Small Business Jobs Act of 2010 (“2010 Act”), which provides a new $30 billion lending fund to aid credit availability for small firms. The tax title of this new bill contains a number of provisions affecting both small and large businesses as well as individuals. This Client Alert provides a summary of the most significant of these new tax provisions, several of which are effective for only one or two years as highlighted below.  Note that this just-enacted legislation does not deal with other major tax issues, such as whether or not to extend the so-called “Bush tax cuts” or adjust the federal estate tax or reinstate a series of expired tax breaks. These issues will be addressed (if at all) after the November 2010 elections. 
  • September 27, 2010 - Circuit Court Holds that Search Logic Trumps Uniform Commercial Code - Circuit Court Holds that Search Logic Trumps Uniform Commercial Code
    A recent decision of the Eighth Circuit Court of Appeals continues an apparent, disturbing trend to exalt form over substance in deciding what the Uniform Commercial Code means when it says that a financing statement must contain “the name of the debtor.” The holding highlights the burden creditors face when courts scrutinize their financing statements.
  • September 20, 2010 - The UK Bribery Act 2010 – Broad Extraterritorial Reach to Impact US Companies - The UK Bribery Act 2010 – Broad Extraterritorial Reach to Impact US Companies
    The Bribery Act 2010 (the “Act”) received Royal Assent in the United Kingdom on April 8, 2010, and will come into force in April 2011.  The Act repeals all pre-existing anti-bribery laws in the United Kingdom and creates four new criminal offenses in connection with corrupt practices. 
  • September 8, 2010 - SEC ADOPTS PROXY ACCESS RULES Facilitating Director Nominations by Shareholders - SEC ADOPTS PROXY ACCESS RULES Facilitating Director Nominations by Shareholders
    On August 25, 2010, the Securities and Exchange Commission (“SEC”) adopted far-reaching new rules designed to help shareholders exercise their state law rights to nominate and elect directors to company boards.   New Rule 14a-11 will require companies to include shareholder nominees for director in their proxy statements if the shareholder meets certain conditions and if shareholders are not otherwise prohibited from nominating directors (under applicable state or foreign law or the company’s governing documents). 
  • September 2, 2010 - Ohio Historic Preservation Tax Credit Application Period Expanded - Ohio Historic Preservation Tax Credit Application Period Expanded
    The Ohio Department of Development (“ODOD”) has announced it is accepting additional applications from owners of historic buildings to take advantage of Round 5 of the Ohio Historic Tax Credit Program (the “Program”).   Applicants may submit materials until September 30, 2010 in order to receive potential future funding.  Although this round is not currently funded, applications are being taken in the event any Round 2-4 projects do not go forward and their awards are reallocated or the legislation is renewed this fall. 
  • August 16, 2010 - 2010 Financial Reform Legislation - 2010 Financial Reform Legislation New Regulations Could Dramatically Change the Landscape of the Consumer Financial Services Industry
    The Dodd-Frank Wall Street Reform and Consumer Protection Act (Act) was signed into law July 21, 2010.  By most accounts, the Act represents the biggest shift in the regulation of consumer financial services in our lifetimes.  If your company provides financial services to consumers, this shift could have a dramatic impact on your day-to-day business operations, as well as your legal defenses to consumer claims. 
  • August 3, 2010 - Patent Law Update - Patent Law Update U.S. Supreme Court Holds Machine-or-Transformation Test is not Sole Test for Patentability of Processes; Business Methods are not Per Se Unpatentable
    On June 28, 2010, the Supreme Court of the United States issued a fractured opinion in a patent case that interpreted the gateway provision of the Patent Act (35 U.S.C. § 101) that defines what types of inventions are potentially eligible for patent protection.  In Bilski v. Kappos, 561 U.S. ___ (2010), all nine justices joined in portions of the majority opinion that held that (1) the “machine-or-transformation” test described by the Court of Appeals for the Federal Circuit is not the sole test to determine whether a “process” is patentable and that (2) the invention at issue was not patentable because it claimed only an “abstract idea.” 
  • July 30, 2010 - 2010 Financial Reform Legislation - 2010 Financial Reform Legislation Far-Reaching Implications for Corporate Governance
    In connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act (Act), signed into law by the President on July 21, 2010, Congress took the opportunity to address a number of far-reaching corporate governance reforms, many of which apply to not only companies in the financial services industry, but all public companies.  Some of these reforms confirm and clarify positions previously taken by the Securities Exchange Commission (SEC) in its regulations and enforcement activities, while others address issues that have been under public scrutiny for the past several years.  Some of the most important of these provisions are discussed here.
  • July 29, 2010 - 2010 Financial Reform Legislation - 2010 Financial Reform Legislation Executive Compensation Provisions May Require Companies to Significantly Modify Current Practices
    Some of the most heavily publicized provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Act), which was signed into law July 21, 2010, are those relating to the disclosure and determination of executive compensation.  The Act’s executive compensation provisions will affect not only financial services entities, but all public companies, and will require many to review and modify their current compensation practices in rather significant respects.
  • July 23, 2010 - 2010 Financial Reform Legislation - 2010 Financial Reform Legislation Act Could Impose Investment Advisor Fiduciary Standard on Broker-Dealers and Put an End to Mandatory Customer Arbitration
    On July 21, 2010, President Obama signed into law the controversial and much anticipated Dodd-Frank Wall Street Reform and Consumer Protection Act (Act).  The Act constitutes the most sweeping revision of the laws governing the financial services industry since legislation that was enacted during the 1930s in response to the Great Depression.  The Act addresses a number of key areas which will impact the business of broker-dealers, both now and in the future.
  • Ohio Supreme Court Holds That Employer’s Maternity Leave Policy Is Not Discriminatory - Ohio Supreme Court Holds That Employer’s Maternity Leave Policy Is Not Discriminatory
    On June 22, 2010, the Ohio Supreme Court announced its decision in McFee v. Nursing Care Management of America, Inc., Slip Opinion No. 2010-Ohio-2744, holding that “an employment policy that imposes a uniform minimum-length-of-service requirement for leave eligibility with no exception for maternity leave is not direct evidence of sex discrimination under R.C. Chapter 4112.” Rather, the McDonnell Douglas burden-shifting analysis should be applied in cases involving such policies.
  • July 1, 2010 - Supreme Court of the United States Limits Scope of “Honest Services” Doctrine in Three Rulings - Supreme Court of the United States Limits Scope of “Honest Services” Doctrine in Three Rulings
    On June 24, 2010, the Supreme Court of the United States issued its rulings in the cases of Skilling v. United States, Black, et al. v. United States, and Weyhrauch v. United States. These rulings affected the convictions of three high-profile defendants and limited the application of 18 USC § 1346 — the “honest services” doctrine — to cases which specifically involved the acceptance of bribes and kickbacks and did not apply the statute to cases dealing generally with undisclosed self-dealing or other conflicts of interest.
  • June 10, 2010 - Securities and Exchange Commission Update - Securities and Exchange Commission Update Inability to Pay FINRA Award or Settlement is No Longer a Defense to Failure to Comply Charge
    On June 2, 2010, the U.S. Securities and Exchange Commission (“SEC”) issued an order approving an amendment to the Financial Industry Regulatory Authority’s (“FINRA”) Rule 9554, which sets forth the consequences of failing to comply with an arbitration award or related settlement or an order of restitution or settlement providing for restitution to a customer. Prior to approving the Amendment, the SEC received three comments, all of which supported the change. The amendment will become effective July 2, 2010. 
  • May 27, 2010 - 2010 Health Care Reform Legislation - More Information Released on the New Biotech Tax Credit for Therapeutic Discovery Projects - 2010 Health Care Reform Legislation - More Information Released on the New Biotech Tax Credit for Therapeutic Discovery Projects
    On May 21, 2010 the Department of Treasury (Treasury) unveiled the application process for the small business biotech tax credit or grant (the Tax Credit/Grant) detailed in an earlier U&B Client Alert on this topic (http://tiny.cc/0jlsb). Notice 2010-45 explains that taxpayers must submit their applications on Form 8942 by July 21, 2010. Form 8942 will be released by IRS no later than June 21, 2010. IRS will only certify the Tax Credit/Grant for projects that meet the requirements, which were discussed in the previous Alert.
  • May 21, 2010 - Supreme Court Update: Class Arbitration Not Warranted Where Arbitration Agreement Is Silent - Supreme Court Update: Class Arbitration Not Warranted Where Arbitration Agreement Is Silent
    In Stotl-Nielsen S.A. v. AnimalFeeds Internat’l Corp., decided on April 27, 2010, the United States Supreme Court held, in a 5-3 decision with Justice Sotomayor not participating, that class action arbitration cannot be imposed on parties whose arbitration agreement is silent on the question.  The decision is a victory for those who want arbitration to remain a lower cost alternative to litigation and who seek to circumscribe arbitrator discretion.
  • May 14, 2010 - 2010 Health Care Legislation – The New Biotech Tax Credit for Therapeutic Discovery Projects - 2010 Health Care Legislation – The New Biotech Tax Credit for Therapeutic Discovery Projects
    This is the fourth in a series of Client Alerts prepared by Ulmer & Berne LLP attorneys for clients and friends relating to the recently enacted landmark health care reform legislation.  Previous related Client Alerts can be found on the Firm’s website at www.ulmer.com under Articles / Alerts.
  • May 11, 2010 - Ohio Supreme Court Holds That Evidence of Medical Bill Write-Offs Remains Admissible Under Tort Reform - Ohio Supreme Court Holds That Evidence of Medical Bill Write-Offs Remains Admissible Under Tort Reform
    On May 4, 2010, the Ohio Supreme Court announced its decision in Jaques v. Manton*, 2010-Ohio-1838, holding that evidence of medical bill write-offs is admissible in personal injury lawsuits to which R.C. 2315.20 applies.  Thus, in awarding damages, the jury is entitled to consider both the billed amount of medical expenses and any reduced amount that the medical providers accept as full payment.
  • April 30, 2010 - The United States Supreme Court Narrows the Scope of the “Bona Fide Error” Defense in the Fair Debt Collection Practices Act - The United States Supreme Court Narrows the Scope of the “Bona Fide Error” Defense in the Fair Debt Collection Practices Act
    In Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, decided on April 21, 2010, the United States Supreme Court determined that a debt collector’s erroneous interpretation of the legal requirements of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §1692 et seq.,  did not constitute a “bona fide error” under Section 1962k(c), which provides a defense to liability for debt collectors who can show that “the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.”  15 U.S.C. §1692k(c).  Resolving a split in the federal circuit courts, the Court ruled that legal errors were beyond the purview of this defense.
  • April 26, 2010 - 2010 Health Care Reform Legislation – New Health Care Initiatives - 2010 Health Care Reform Legislation – New Health Care Initiatives
    On March 23, 2010, President Obama signed into law the “Patient Protection and Affordable Care Act” (H.R. 3590).  One week later, on March 30, 2010, the President signed into law the “Health Care and Education Reconciliation Act of 2010” (H.R. 4872), which modified key provisions of H.R. 3590 (collectively referred to as the “Acts”).  The Acts will significantly change the nation’s health care system.  Many of the Acts’ provisions impose new requirements with respect to group health plans or otherwise pertain to health insurance policies and programs that bear upon employee benefits programs.
  • April 26, 2010 - 2010 Health Care Reform Legislation – Employee Benefits Highlights - 2010 Health Care Reform Legislation – Employee Benefits Highlights
    On March 23, 2010, President Obama signed into law the “Patient Protection and Affordable Care Act” (H.R. 3590).  One week later, on March 30, 2010, the President signed into law the “Health Care and Education Reconciliation Act of 2010” (H.R. 4872), which modified key provisions of H.R. 3590 (collectively referred to as the “Acts”).  The Acts will significantly change the nation’s health care system.  Many of the Acts’ provisions impose new requirements with respect to group health plans or otherwise pertain to health insurance policies and programs that bear upon employee benefits programs.
  • April 21, 2010 - EPA’s Renovation, Repair, and Painting Program: Strict New Regulations for Renovations Involving Lead-Based Paint Become Effective April 22, 2010 - EPA’s Renovation, Repair, and Painting Program: Strict New Regulations for Renovations Involving Lead-Based Paint Become Effective April 22, 2010
    Beginning April 22, 2010, building contractors, residential property managers, specialty trade contractors, and numerous other building industry professionals will be subject to new, comprehensive regulatory requirements governing renovation, repair, and painting projects with the potential to disturb lead-based paint. 
  • April 6, 2010 - Performance and Payment Bond for Public Project Deemed Discretionary - Performance and Payment Bond for Public Project Deemed Discretionary
    In the much-publicized "Kenwood Towne Place" litigation in Cincinnati, Ohio, which involves over $40 million in lien claims, presiding Judge Beth Myers recently issued a Decision and Entry that disposed of subcontractor claims against the Port Authority of Greater Cincinnati (the Public Authority involved with the project).  The Court dismissed the subcontractors’ claims for takings and negligence.  One aspect of Judge Myers' decision makes it glaringly important for contractors of all shapes and sizes to perform independent assessments of front-end protection on a public project: the Court determined that the requirement of a performance and payment bond (or lack thereof in this case) was a matter of discretion for the Port Authority and, consequently, not mandatory under Ohio law.
  • April 1, 2010 - 2010 Health Care Reform Legislation – Tax Highlights - 2010 Health Care Reform Legislation – Tax Highlights
    On March 23, 2010, President Obama signed into law the “Patient Protection and Affordable Care Act” (H.R. 3590).  One week later, on March 30, 2010, the President signed into law the “Health Care and Education Affordability Reconciliation Act” (H.R. 4872), which modified key provisions of H.R. 3590.  The two Acts together will significantly change the nation’s health care system.  To pay for these changes, a number of new taxes and fees are imposed on businesses and individuals, with staggered effective dates over the next eight years.  This Client Alert provides a summary of the most significant tax-related changes of this landmark health care reform legislation.  Future Client Alerts will cover other aspects of this legislation and related regulatory guidance, including a forthcoming Alert dealing with Employee Benefit Plans.
  • March 30, 2010 - Supreme Court of Ohio Rules Employer Intentional-Tort Reform Constitutional - Supreme Court of Ohio Rules Employer Intentional-Tort Reform Constitutional
    A year after hearing oral arguments on three appeals related to the employer intentional-tort statute, R.C. 2745.01, where Ohio lawmakers attempted to redefine the common-law claim, the Supreme Court of Ohio determined that R.C. 2745.01 does not violate the Ohio Constitution and does not conflict with the General Assembly’s legislative authority to compensate for workplace injuries or occupational diseases through compulsory employer contributions into a statewide workers’ compensation fund.  In the first of the three cases argued, Klaus v. United Equity, Inc., ___ Ohio St.3d ___, 2010-Ohio-1014, __ N.E.2d ___, Ulmer & Berne LLP successfully defended a grain operator before the trial court but the Third Appellate District found a “genuine issue of material fact” existed as to whether the operator believed that the worker’s injury was “substantially certain to occur,” even though the worker admitted that the injury was an accident.  After determining in Kaminski v. Metal & Wire Prods. Co., ___ Ohio St.3d ___, 2010-Ohio-1027, __ N.E.2d ___, and Stetter v. R.J. Corman Derailment Servs., L.C., ____ Ohio St.3d ___, 2010-Ohio-1029, ___ N.E.2d ___, that the statute was constitutional, the Court reversed and remanded Klaus, directing the Court of Appeals to consider whether the worker’s injury came within R.C. 2745.01’s definition of “substantially certain”: i.e., that the employer acted “with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.”
  • March 24, 2010 - Ohio Department of Development Announces Grant Funding for Energy Efficiency Projects - Ohio Department of Development Announces Grant Funding for Energy Efficiency Projects
    Last week, the Ohio Department of Development (ODOD) announced the availability of $8,000,000 in grant funding for qualifying energy efficiency projects undertaken at existing multi-family, commercial, and institutional buildings.  The goal of the program is to encourage the purchase and installation of energy efficiency equipment that will measurably improve the energy efficiency of existing multi-family, commercial, and institutional buildings.  The program is competitive, and awards will range from $125,000 to $1,000,000 per project. 
  • March 23, 2010 - Highlights of the 2010 HIRE Act (aka the Jobs Bill) - Highlights of the 2010 HIRE Act (aka the Jobs Bill)
    On March 18, 2010, President Obama signed into law the “Hiring Incentives to Restore Employment Act.” The centerpiece of the Act is a payroll tax holiday for employers who hire unemployed workers (plus an employer income tax credit if the new hires are retained for at least one year).  The Act also extends the enhanced Section 179 expensing rules for 2010, makes important changes for tax credit bond issuers, and creates new provisions to combat offshore tax evasion.  This Client Alert provides a summary of these new provisions.
  • February 26, 2010 - New Proxy Rules Effective February 28 - New Proxy Rules Effective February 28
    The Securities and Exchange Commission’s (SEC) new rules governing proxy disclosures will take effect on February 28, 2010. The rules dictate enhanced disclosures in proxy statements on corporate governance and executive compensation, among other things. The rules, which can be viewed at http://www.sec.gov/rules/final/2009/33-9089.pdf, govern all proxy statements, annual reports, and registration statements filed after the effective date.
  • February 19, 2010 - Sweeping Regulations Implementing New Massachusetts Data Security Law Effective March 1, 2010 - Sweeping Regulations Implementing New Massachusetts Data Security Law Effective March 1, 2010 All Businesses Possessing Personal Information on Massachusetts Residents Are Subject to the Law
    Massachusetts’ new regulatory Standards for the Protection of Personal Information of Residents of the Commonwealth, 201 CMR 17:00 et seq. take effect March 1, 2010. The regulations, which are among the most sweeping in the nation, require all businesses that own, license, maintain, or store personal information of a Massachusetts resident, including investment advisers, private fund managers, and other financial services providers, to safeguard that personal information. The Standards apply to personal information maintained on paper, as well as electronic information stored on a computer system or a portable device, transmitted across a public network, or maintained on a system connected to the Internet.
  • February 11, 2010 - Estate Tax Repeal for 2010 - Estate Tax Repeal for 2010
    As you are probably aware, the federal estate and generation skipping taxes have been repealed as of January 1, 2010. Unless Congress acts, or makes any changes that are retroactive to January 1, 2010, these taxes will remain repealed until 2011. On January 1, 2011, they are reinstated, but with the exemptions dropping back to $1 million and the top tax rate rising to 55 percent. For decedents dying in 2009, the exemption was $3.5 million and the top tax rate was only 45 percent.
  • January 29, 2010 - Changes to Title V of the Gramm-Leach-Bliley Act Offer Powerful New Tool for Consumer Privacy Disclosures - Changes to Title V of the Gramm-Leach-Bliley Act Offer Powerful New Tool for Consumer Privacy Disclosures
    Financial institutions now have a powerful new tool for consumer privacy disclosures due to recent changes to privacy rules under Title V of the Gramm-Leach-Bliley Act (“GLBA”). This new tool – a fill-in-the-blank model form (the "Form") – replaces the lengthy model disclosure clauses (“Model Clauses”) which financial institutions have relied on for years. Similar to the Model Clauses, the Form describes an institution’s privacy policies and provides a means for consumers to opt-out of information sharing. While use of the Form is optional, the various federal agencies which developed and issued the rules (“Agencies”) have established a powerful incentive to use it: a safe harbor against claims of noncompliance with disclosure requirements. This Client Alert describes the changes and weighs the benefits and costs to a typical company in connection with implementing the Form.
  • January 25, 2010 - U.S. Supreme Court Opens Door for Corporate and Union Spending to Support Political Candidates - U.S. Supreme Court Opens Door for Corporate and Union Spending to Support Political Candidates
    A recent U.S. Supreme Court decision, Citizens United v. Federal Election Commission, will give corporations and labor unions expansive new rights to influence federal, state and local elections. In a 5-4 decision issued on January 21, 2010, a majority of the Court invalidated a longstanding law that restricted independent corporate and union spending in support or opposition of congressional or presidential candidates. The decision left untouched prohibitions of direct corporate or union contributions to federal candidates.
  • December 23, 2009 - U.S. House of Representatives Passes the Wall Street Reform and Consumer Protection Act - U.S. House of Representatives Passes the Wall Street Reform and Consumer Protection Act
    On December 11, 2009 the U.S. House of Representatives passed, by a 223-202 vote, the Wall Street Reform and Consumer Protection Act (the Act), a comprehensive overhaul of the U.S. financial system intended to remedy the deficiencies which allowed the U.S. economy’s historical failure. The Act would implement many of the changes recommended in President Obama’s recently released white paper entitled “Financial Regulatory Reform: A New Foundation.” Below are some of the most important changes.
  • December 10, 2009 - U.S. Government Announces Changes in Immigration Law - U.S. Government Announces Changes in Immigration Law
    The federal government recently announced several changes to U.S. immigration legislation. Two key topics involve increased enforcement efforts of the Immigration and Customs Enforcement (ICE) and changes in request for prevailing wage procedures. We have summarized these recent developments below.
  • November 13, 2009 - Local County Auditor Suggests Commercial Property Values May Stay Flat - Local County Auditor Suggests Commercial Property Values May Stay Flat
    As you have heard by now, the local County Appraiser is performing an update of all real property values in Cuyahoga County and in certain surrounding counties for the 2009-2011 triennium. The prognosticators have suggested that commercial property values may stay flat or may decrease slightly, but likely will not fall in lockstep with the recent decline in residential values which averaged around 8 percent countywide (higher or lower depending upon the community).
  • November 11, 2009 - Sunbelt: Emerging Opportunity for Enforcement of Restrictive Covenant in Illinois - Sunbelt: Emerging Opportunity for Enforcement of Restrictive Covenant in Illinois
    In Sunbelt Rentals, Inc. v. Ehlers, the Appellate Court of Illinois, Fourth District overturned 34 years of precedent in holding the “legitimate business interest” test invalid in connection with the enforcement of restrictive covenants. Instead, the court held that covenants should be analyzed based solely on whether they are reasonable from a time and
    territory perspective.
  • November 9, 2009 - Ulmer & Berne’s Financial Services Group Announces Strategic Expansion Through Its Chicago Office - Ulmer & Berne’s Financial Services Group Announces Strategic Expansion Through Its Chicago Office
    Ulmer & Berne LLP is pleased to announce the addition of four financial services attorneys to the Firm's Chicago office, furthering the Firm’s strategic expansion in the Chicago market and throughout the Midwest.  Joining the law firm are partners Randy Lehner, Scott Meyers, David Porteous and associate Jim Martignon. 
  • November 5, 2009 - “Red Flag” Update: Rules Compliance Deadline Delayed to June 1, 2010 by FTC - “Red Flag” Update: Rules Compliance Deadline Delayed to June 1, 2010 by FTC
    The Federal Trade Commission (FTC) has delayed the compliance deadline for its Red Flag rules governing identity-theft prevention an additional seven months, to June 1, 2010. These rules require many businesses to prepare and implement written identity-theft prevention policies and programs to identify warning signs of actual or potential identity theft (i.e., “red flags”), detect red flags, prevent identity theft, and mitigate the consequences of identity theft.
  • October 29, 2009 - Ulmer & Berne Attorney Scott A. Meyers Featured on Bloomberg TV – Discusses Galleon Insider Trading Scandal - Ulmer & Berne Attorney Scott A. Meyers Featured on Bloomberg TV – Discusses Galleon Insider Trading Scandal
    Scott A. Meyers, a securities litigation partner in Ulmer & Berne LLP’s Chicago Office, was a featured guest on Bloomberg TV on October 22nd, discussing the insider trading scandal at embattled hedge-fund Galleon Group. 
  • October 1, 2009 - Mandatory Greenhouse Gas Reporting – Is Your Facility Covered? - Mandatory Greenhouse Gas Reporting – Is Your Facility Covered?
    Beginning January 1, 2010, large emitters of greenhouse gases (GHGs) will be required to collect and report their GHG data to US Environmental Protection Agency (EPA). An estimated 85 percent of the nation’s GHG emissions, from approximately 10,000 facilities, will be covered by the new reporting program. To determine whether your facility is covered, you must determine whether your company emits any GHGs above the threshold carbon dioxide equivalent and whether your facility falls within one of the regulated industries.
  • August 18, 2009 - TARP Recipients Slow in Adopting Excessive or Luxury Expenditures Policy - TARP Recipients Slow in Adopting Excessive or Luxury Expenditures Policy
    Recipients that still retain Troubled Asset Relief Program (TARP) “investments” must each adopt an Excessive or Luxury Expenditures Policy (Policy) by September 14, 2009 and publish the Policy on its website. To date, few banks that retain TARP money have posted their Policy.
  • August 7, 2009 - Ohio’s Budget Bill Introduces New Markets Tax Credit Program - Ohio’s Budget Bill Introduces New Markets Tax Credit Program
    The Ohio Budget Bill signed by Governor Ted Strickland on July 17 contained provisions authorizing Ohio’s first state-run New Markets Tax Credit program (Program). Modeled after the federal New Markets Tax Credit (Federal Credit), the Program allows up to a nearly $1 million cumulative, nonrefundable tax credit for an entity that holds an investment in a “qualified community development entity” over the next seven years. Like the Federal Credit, the Program is intended to aid development in low-income areas where new projects are typically more difficult to finance.
  • August 5, 2009 - Obama Administration Proposes New Legislation to Regulate Financial Institutions - Obama Administration Proposes New Legislation to Regulate Financial Institutions
    President Obama recently released a white paper entitled “Financial Regulatory Reform: A New Foundation,” proposing the most comprehensive regulatory reform to the U.S. financial system in decades. The Obama Administration submitted proposed legislation to Congress on July 22 and 23 that would implement the white paper’s proposed reforms. Notably, the proposed legislation would (i) create the Financial Services Oversight Council (Council); (ii) designate the Federal Reserve (Fed) as the regulator for financial institutions that pose a systemic risk to the financial system (Tier 1 financial holding companies (FHCs)); (iii) create one national regulator to oversee all national banks; (iv) increase regulatory standards for FHCs; (v) eliminate exemptions in the Bank Holding Company Act of 1956; (vi) change regulations for critical markets, such as securitization and clearing; and (vii) establish a framework for the federal government to prevent significant non-bank financial institutions from failing.
  • July 31, 2009 - “Red Flag” Update: Rules Compliance Deadline Delayed to November 1, 2009 by FTC - “Red Flag” Update: Rules Compliance Deadline Delayed to November 1, 2009 by FTC
    The Federal Trade Commission (FTC) has delayed by three more months the compliance deadline for its Red Flag (identity theft prevention) rules. The new deadline is November 1, 2009. These rules require many businesses to implement written identity theft prevention policies and programs to design and identify warning signs of actual or potential identity theft (i.e., “red flags”), detect those red flags, prevent identity theft and mitigate the consequences of identity theft, and regularly update the policy and program.
  • July 24, 2009 - Developments in Internal Corporate Investigations and Deferred Prosecution and Non-Prosecution Agreements - Developments in Internal Corporate Investigations and Deferred Prosecution and Non-Prosecution Agreements
    In connection with its ongoing study of the Department of Justice’s (“DOJ”) use and oversight of deferred prosecution (“DPA”) and non-prosecution agreements (“NPA”), on June 25, 2009, the United States Government Accountability Office (“GAO”) released the testimony of Eileen R. Larence, Director Homeland Security and Justice, on this issue. The GAO’s study was prompted by recent high-profile cases of corporate fraud and mismanagement and the DOJ’s expanded use of DPAs and NPAs. The release of testimony comes on the heels of recent federal court decisions supporting companies’ use of independent counsel to conduct internal investigations.
  • July 21, 2009 - Ohio’s Finalized Budget Bill Implements Significant Changes to the Historic Preservation Tax Credit Program - Ohio’s Finalized Budget Bill Implements Significant Changes to the Historic Preservation Tax Credit Program
    Last month, Ulmer & Berne LLP issued a Tax Credit Update which mentioned pending state legislation related to the Historic Preservation Tax Credit Program (the “Program”). On July 17, 2009, Governor Ted Strickland signed into law House Bill 1, Ohio’s budget bill, which finalized pending revisions that make the Program even more attractive to owners of historic properties.
  • July 20, 2009 - Legacy Securities Program Rolls Out - Legacy Securities Program Rolls Out
    The U.S. Treasury recently rolled out a scaled-back version of the Public-Private Investment Program (PPIP). Once hailed as the cornerstone of Treasury Secretary Timothy Geithner’s plan to rejuvenate the American economy, the PPIP will initiate its Legacy Securities Program (LSP) with $30 billion, rather than the $100 billion initially proposed for the program. Reportedly there remains much interest in the LSP among private investors. Treasury hopes that the LSP will enable participating Public-Private Investment Funds (PPIFs) to take advantage of the LSP’s favorable leverage to pay 5 to 10 percent higher prices for the toxic securities held by banks and other investors. 
  • July 16, 2009 - Employment Eligibility Enforcement Trends - Employment Eligibility Enforcement Trends
    Earlier this month, Immigration and Customs Enforcement (ICE) sent Notices of Inspection (NOIs) to more than 650 businesses indicating that the agency would be reviewing their hiring records to determine corporate compliance with Federal employment eligibility laws. As a result of one such audit, an Ohio franchise of Krispy Kreme Doughnut Corporation was fined and ultimately reached settlement of $40,000 with the Department of Justice. The inspection notices are part of ICE’s new enforcement strategy focusing on audits and investigations of employers and criminal prosecutions of businesses hiring undocumented workers.
  • July 14, 2009 - U.S. Supreme Court Rules that States May Enforce Non-Preempted State Laws against National Banks through State Court Actions - U.S. Supreme Court Rules that States May Enforce Non-Preempted State Laws against National Banks through State Court Actions
    On June 29, 2009 the U.S. Supreme Court held in Cuomo v. The Clearing House Association, 557 U.S. ___, No. 08-453 (2009) that the Office of the Comptroller of the Currency’s (“OCC”) interpretation of the National Bank Act (“NBA”) set forth in 12 C.F.R. § 7.4000, more commonly known as the Visitation Rule, was unreasonable. In a 5-4 decision authored by Justice Scalia (joined by Justices Stevens, Souter, Ginsburg, and Breyer) the Supreme Court invalidated parts of the Visitation Rule and ruled that states could enforce their non-preempted state laws directly through lawsuits or other legal proceedings.
  • July 13, 2009 - Ohio Supreme Court Clarifies Applicability of Ohio’s Prevailing-Wage Statute, but Leaves Many Questions Still Unanswered - Ohio Supreme Court Clarifies Applicability of Ohio’s Prevailing-Wage Statute, but Leaves Many Questions Still Unanswered
    In a pair of decisions issued in June, the Ohio Supreme Court provided some guidance on the applicability of Ohio Revised Code Chapter 4115, Ohio’s prevailing-wage statute. The prevailing-wage law requires contractors and subcontractors for public improvement projects to pay laborers and mechanics the prevailing wage (union scale) in the locality where the project is to be performed. This Client Alert summarizes each of these decisions and the effects the decisions may have on public and private development projects.
  • July 8, 2009 - Ohio Campaign Finance Law Declared Null and Void - Ohio Campaign Finance Law Declared Null and Void
    Ohio campaign finance law imposing strict limitations on political contributions to state and local government officials “having ultimate responsibility” for the award of a government contract was recently declared null and void. Amended Substitute House Bill 694 (H.B. 694), the subject of two prior Ulmer & Berne Client Alerts distributed in May and December 2007, imposed significant changes to Ohio’s campaign finance law, including a $2,000 overall entity limitation on political contributions to state and local officials awarding government contracts. H.B. 694 prohibited, among other things, the award of a government contract for goods or services worth $500 or more to any individual contributing more than $1,000, or to any partnership, sole proprietorship, or corporation whose principals contributed a combined total of more than $2,000 to the elected official awarding the government contract.
  • June 30, 2009 - Changes Enacted by the Credit Card Accountability, Responsibility, and Disclosure Act of 2009 - Changes Enacted by the Credit Card Accountability, Responsibility, and Disclosure Act of 2009
    On May 22, 2009, President Obama signed into law the Credit Card Accountability, Responsibility, and Disclosure Act of 2009 (“CCARDA”). CCARDA amends several federal laws and regulations, including the Truth in Lending Act, the Fair Credit Reporting Act, and Regulations AA and Z. Some of these changes are effective as of August 20, 2009, while others will become effective nine months and 15 months from enactment. This Client Alert summarizes CCARDA’s major provisions and the heightened requirements these provisions will impose on credit card issuers in the coming months.   
  • June 17, 2009 - New Cleveland Ordinance Qualifies Some Historic Building Owners for 10 More Years of Tax Abatement - New Cleveland Ordinance Qualifies Some Historic Building Owners for 10 More Years of Tax Abatement
    On June 8, Cleveland City Council passed legislation that should be of interest to owners of residential historic tax credit projects converting to condominiums at the end of the recovery period. Last year, the Ohio Legislature amended the Ohio Revised Code (ORC 3735.67) on “Applying for Exemption from Taxation” to grant qualifying historic properties an additional 10 years of tax abatement. This month, Cleveland City Council passed legislation that mirrors the state’s tax abatement ordinance. Under the new state and Cleveland ordinances, a property qualifies “if the dwelling is a structure of historical or architectural significance, is a certified historic structure that has been subject to federal tax treatment under 26 U.S.C. 47 and 170(h), and units within the structure have been leased to individual tenants for five consecutive years.” Ulmer & Berne drafted both the state and Cleveland tax abatement ordinances.
  • June 15, 2009 - Ohio Historic Preservation Tax Credit Application Period Approaching - Ohio Historic Preservation Tax Credit Application Period Approaching
    On June 4, 2009, the Ohio Department of Development (the Department) announced that it will begin accepting new applications for the Ohio Historic Preservation Tax Credit Program (the Program) on July 1, 2009. The Program, originally enacted in 2006, was renewed as part of the $1.57 billion Ohio Bipartisan Job Stimulus Plan on June 12, 2008. Under the Plan, $120 million of the $1.57 billion has been set aside for the Program; $41.8 million of which will be available during the upcoming application period.
  • June 10, 2009 - The FDIC Announces: No June Start for the Legacy Loans Program - The FDIC Announces: No June Start for the Legacy Loans Program
    On June 3, 2009, the FDIC announced that the June launch of a test of the Legacy Loans Program (LLP) would be “postponed”.  The Chair of the FDIC was quoted as saying that “Banks have been able to raise capital without having to sell bad assets through the LLP. . ..”  In turn, this has reduced the urgency to provide banks with an outlet for troubled real estate mortgage loans.  While the FDIC takes more time to study the LLP, it will test the market with a different kind of program. On Wednesday, May 20, 2009, President Obama signed into law new provisions to aid homeowners attempting to avoid foreclosure on their homes. That new law is called the “Helping Families Save Their Homes Act of 2009.”
  • June 9, 2009 - “Red Flag” Update: Rules Compliance Deadline Delayed to August 1, 2009 by FTC - “Red Flag” Update: Rules Compliance Deadline Delayed to August 1, 2009 by FTC
    The compliance deadline for the Red Flag (identity theft prevention) rules promulgated by the Federal Trade Commission (FTC) has been delayed to August 1, 2009. These rules require many businesses to implement written identity theft prevention policies and programs designed to identify warning signs of actual or potential identity theft (i.e., “red flags”), detect red flags, prevent identity theft and mitigate the consequences of identity theft, and perform regular updates of the policy and program in effect to respond to changes that may occur.
  • May 22, 2009 - Congress Begins to Fill in the PPIP Details - Congress Begins to Fill in the PPIP Details
    On Wednesday, May 20, 2009, President Obama signed into law new provisions to aid homeowners attempting to avoid foreclosure on their homes. That new law is called the “Helping Families Save Their Homes Act of 2009.”
  • April 24, 2009 - Business Reorganization and Job Protection Act of 2009 Proposes Significant Changes to Current Bankruptcy Code - Business Reorganization and Job Protection Act of 2009 Proposes Significant Changes to Current Bankruptcy Code
    On April 2, 2009, U.S. Representative Jerrold Nadler presented a bill to Congress that, if passed, could have a profound impact on the likelihood of success for Chapter 11 business bankruptcies. H.R. 1942 – the “Business Reorganization and Job Protection Act of 2009” – proposes to make significant changes to the current Bankruptcy Code. The proposed bill would repeal certain changes made by the 2005 amendments to the Bankruptcy Code (BAPCPA) and restore some of the language that existed prior to BAPCPA.
  • April 24, 2009 - FTC “Red Flag” (Identity Theft Prevention) Rules Compliance Deadline Is Fast Approaching - FTC “Red Flag” (Identity Theft Prevention) Rules Compliance Deadline Is Fast Approaching
    The compliance deadline for the Red Flag rules promulgated by the Federal Trade Commission (FTC) is May 1, 2009. The Red Flag rules went into effect on January 1, 2008. These rules require many businesses to implement written identity theft prevention policies and programs designed to identify warning signs of actual or potential identity theft (i.e., “red flags”), detect red flags, prevent identity theft and mitigate the consequences of identity theft, and perform regular updates of the policy and program in effect to respond to changes that may occur.
  • April 21, 2009 - The FDIC/Treasury Public-Private Investment Program: Proceeding Deliberately - The FDIC/Treasury Public-Private Investment Program: Proceeding Deliberately
    At the end of March, we alerted you to the new FDIC/Treasury Public-Private Investment Program (PPIP).  President Obama and Treasury Secretary Geithner made the initial announcement of this Program on March 23, 2009.  Since that time, the FDIC and Treasury have been moving forward with the creation of programs that will serve the dual goals of taking troubled loans off the balance sheets of financial institutions and loosening credit within the financial system.
  • April 14, 2009 - Suppliers to Auto Manufacturers Eligible to Participate in the Treasury Department’s Auto Supplier Support Program - Suppliers to Auto Manufacturers Eligible to Participate in the Treasury Department’s Auto Supplier Support Program
    Effective April 8, 2009, suppliers to automobile manufacturers may participate in the Treasury Department’s Auto Supplier Support Program (the Program), which is intended to improve cash flow for participating suppliers. The Program guarantees receivables for certain automobile suppliers regardless of the manufacturer’s financial status and allows suppliers to sell receivables into the Program for immediate liquidity. Treasury has allocated $5 billion of its $700 billion Troubled Asset Relief Program (TARP) money to the Program to help stabilize suppliers reliant on automobile manufacturers.
  • March 31, 2009 - Treasury Announces Details of the Public-Private Investment Program - Treasury Announces Details of the Public-Private Investment Program
    On March 23, 2009, Treasury announced the details of the Public-Private Investment Program (the Program), its new plan to rid financial institutions of the toxic assets that are paralyzing their balance sheets and the American economy. The Program will use between $75 and $100 billion of Treasury’s Troubled Asset Relief (TARP) funds with private investment funds to fund Public-Private Investment Funds (PPIFs). PPIFs will purchase “legacy assets” from financial institutions pursuant to two distinct programs. The Public-Private Investment Program for Legacy Loans (the Legacy Loans Program) will purchase from financial institutions any troubled loans that satisfy eligibility criteria to be established by the Federal Deposit Insurance Company (FDIC). The Legacy Securities Public-Private Investment Funds (the Legacy Securities Program) will use PPIFs to purchase securities that are backed by commercial and residential mortgages issued prior to 2009 that were originally AAA rated by at least two national rating organizations, and it also expands the Term Asset-Backed Securities Loan Facility (TALF) program to encompass purchasing commercial and residential mortgage-backed securities. Below is a summary of the two programs.
  • March 30, 2009 - Employers Required To Begin Using New Form I-9 on April 3, 2009 - Employers Required To Begin Using New Form I-9 on April 3, 2009
    The U.S. Citizenship and Immigration Services (USCIS) has revised the Form I-9, Employment Eligibility Verification Form.  Beginning April 3, 2009, employers must use the new form for all new hires and required reverifications.
  • March 27, 2009 - TARP Relief for Small Businesses - TARP Relief for Small Businesses
    To the surprise of even some of his most ardent supporters, President Obama announced on March 16, 2009 a series of measures aimed at providing small business owners greater access to the frozen credit markets. Recognizing that previous measures have failed to ease credit for small companies, the President and Treasury Secretary Timothy Geithner laid out a proposal to acquire securitized Small Business Administration loans from lenders. To accomplish the goal of unfreezing credit for small business owners, the President’s plan provides for:  
  • February 19, 2009 - Tax Provisions of the 2009 Economic Stimulus Act - Tax Provisions of the 2009 Economic Stimulus Act
    On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (2009 Act). This massive economic recovery package provides appropriations for infrastructure projects, and also provides tax cuts and tax incentives for businesses and individuals. This Client Alert provides a summary of the most significant of these new tax provisions.
  • February 18, 2009 - New Data Encryption Laws and Regulations Require Compliance - New Data Encryption Laws and Regulations Require Compliance
    In recent years data security and privacy have become increasingly important to businesses large and small. Along with increased threats to the security of personal information have come calls by lawyers for companies to implement effective data security policies. These admonitions do not merely constitute good practice, as the implementation of data security practices and data security policies is now required in an increasing number of states.
  • February 13, 2009 - TARP Program – New Strings Attached for Financial Institutions - TARP Program – New Strings Attached for Financial Institutions
    As discussed in our October 17, 2008 Client Alert, President George W. Bush signed into law the Emergency Economic Stabilization Act of 2008 (EESA) on October 14, 2008. EESA was intended to address the liquidity crisis then facing the financial sector by providing additional capital to financial institutions to alleviate the credit crunch. One of the main components of EESA was granting the Secretary of the Treasury (Secretary) authority to establish the Troubled Assets Relief Program (TARP).
  • January 28, 2009 - SEC Adopts “Plain English” Requirement for Mutual Fund Prospectuses - SEC Adopts “Plain English” Requirement for Mutual Fund Prospectuses
    On January 26, 2009, the U.S. Securities and Exchange Commission (SEC) announced its adoption of new regulations designed to enhance public disclosure of mutual fund information. (See Release No. 33-8998, Federal Register, Vol. 74, No.15.)
  • January 27, 2009 - SEC Approves Rule to Limit Motions to Dismiss in FINRA Arbitration - SEC Approves Rule to Limit Motions to Dismiss in FINRA Arbitration
    On January 8, 2009, the Financial Industry Regulatory Authority (FINRA) announced that the Securities and Exchange Commission (SEC) has approved a rule change proposed by FINRA which would significantly limit the ability of parties to file motions for pre-hearing dismissals in arbitration cases. In particular, the new rule limits the grounds upon which motions to dismiss may be filed, and authorizes and directs arbitrators to impose sanctions against parties who use motions to dismiss in an abusive or improper manner.
  • January, 21 2009 - Fiscal Year 2010 H-1B Filing Is April 1, 2009 - Fiscal Year 2010 H-1B Filing Is April 1, 2009
    Beginning on April 1, 2009, U.S. employers may request employment authorization for foreign nationals under H-1B status for fiscal year 2010. The H-1B visa allows foreign nationals to work for a U.S. employer in a “specialty occupation” position. Generally speaking, a “specialty occupation” is one for which a bachelor’s degree in a related field is the minimum requirement for entry into the occupation. The visa is often used by employees in the information technology and engineering industries for temporary employment and allows the employee to simultaneously pursue permanent residence.
  • January 16, 2009 - New FMLA Amendments Effective Today - New FMLA Amendments Effective Today
    New amendments to the Family and Medical Leave Act (FMLA) go into effect today. Employers should immediately post a copy of the new FMLA notice, which can be found at www.dol.gov/esa/whd/fmla/finalrule/fmlaposter.pdf. Notice of the FMLA amendments must be posted and must either be included in the employee handbook or other written materials distributed to employees regarding benefits or distributed to each new employee upon hiring. (The notices should be provided in a language in which the employees are literate if the workforce is comprised of a significant number of non-English speaking employees.)
  • December 18, 2008 - 2008 Year-End Employee Benefits Update - 2008 Year-End Employee Benefits Update

    The last quarter of 2008 saw a flurry of activity on the part of the Internal Revenue Service (IRS) and Congress involving employee benefits matters. Some of these pronouncements of more general application and interest are discussed below.

  • November 26, 2008 - LandAmerica Financial Group, Inc. and LandAmerica 1031 Exchange Services Company, Inc. File for Chapter 11 Bankruptcy Protection - LandAmerica Financial Group, Inc. and LandAmerica 1031 Exchange Services Company, Inc. File for Chapter 11 Bankruptcy Protection
    Today, LandAmerica 1031 Exchange Services Company, Inc. (LES) and its parent company, LandAmerica Financial Group, Inc. (LandAmerica) filed for Chapter 11 bankruptcy protection with the US Bankruptcy Court in the Eastern District of Virginia. LandAmerica is based in Richmond. Two days earlier, LES abruptly ceased doing business and callers were directed to the company’s outside counsel
  • November 25, 2008 - Time Is Running Out for Section 409A Compliance - Time Is Running Out for Section 409A Compliance
    Ulmer & Berne LLP would like to remind our clients that they need to identify all of their nonqualified deferred compensation arrangements that are subject to Code Section 409A in time to make necessary changes before the December 31, 2008 deadline.
  • November 24, 2008 - Ulmer & Berne LLP Secures Victory for Hitachi – $3.2 Million - Ulmer & Berne LLP Secures Victory for Hitachi – $3.2 Million Jury Verdict
    After a three-day trial in the United States District Court, Northern District of Ohio,
    Ulmer & Berne LLP partner Stephanie Dutchess Trudeau secured a major victory for
    Hitachi Medical Systems America, Inc. of Twinsburg, Ohio. The Firm’s client, which
    sells and services health care magnetic resonance imaging (MRI) systems, sued
    Horizon Medical Group, Inc. of Sarasota, Florida and 12 related limited liability
    companies located in Florida, Georgia and Texas. Horizon manages the LLCs and the
    LLCs operate various MRI centers. The case involved a business dispute between the
    Firm’s client and Horizon and its entities.
  • November 19, 2008 - Ohio Electronic Discovery Rules - Ohio Proposes Amendments to Rules of Civil Procedure to Accommodate Electronically Stored Information
    Ohio has now proposed amendments to its Rules of Civil Procedure which basically mirror the Federal Rules regarding the scope of Electronic Discovery.
  • November 3, 2008 - Ulmer & Berne LLP Wins Ohio Supreme Court Case Protecting Suppliers, Distributors, and Installers of Products - Ulmer & Berne LLP Wins Ohio Supreme Court Case Protecting Suppliers, Distributors, and Installers of Products
    Ulmer & Berne LLP attorneys Bruce P. Mandel, Marvin L. Karp, and Max W. Thomas secured a major victory for suppliers, installers, and distributors in DiCenzo, et al. vs. A-Best Products Company, Inc., et al., following a multi-year battle over whether these type of companies can be sued in strict tort liability as if they were the manufacturer of the product in question. On October 22, 2008 the Ohio Supreme Court held, in DiCenzo, that its seminal decision in Temple v. Wean United, Inc. (1977), which for the first time held suppliers (non-manufacturers) liable in common law strict tort liability, could not be applied retroactively, or prior to the decision in Temple.1
  • October 20, 2008 - Tax Provisions of the Emergency Economic Stabilization Act of 2008 - Tax Provisions of the Emergency Economic Stabilization Act of 2008
    On October 3, 2008 President Bush signed into law the Emergency Economic Stabilization Act of 2008 (“EESA”). Although the primary focus of EESA is the highly publicized financial markets rescue package, EESA also contains a number of tax provisions, including an alternative minimum tax (“AMT”) patch, individual and business tax extenders, energy incentives, disaster tax relief, and much more. This Client Alert provides a summary of the most significant provisions of the new tax law.
  • October 17, 2008 - TARP Stock Purchase Program - TARP Stock Purchase Program
    While the wild gyrations on the stock market have created great anxiety for everyone, we believe that the virtual shutdown of the liquidity markets is of far greater danger to the United States and world economies. The recent inability of funds to flow easily between banks, or from banks to customers, caused severe challenges to the free access to capital that fuels our country’s economic engine.
  • October 16, 2008 - USCIS Announces Changes in Immigration Regulations - USCIS Announces Changes in Immigration Regulations
    The U.S. Citizenship and Immigration Services (USCIS) recently announced changes to U.S. immigration regulations. Two key topics involve the revision of change of address forms and the increased period of stay for Canadian and Mexican TN visa holders. Please see below for summaries of these recent developments.
  • October 10, 2008 - The Emergency Economic Stabilization Act of 2008 - The Emergency Economic Stabilization Act of 2008
    In response to the worst economic crisis in the United States since the Great Depression, on October 3, 2008, the House of Representatives approved, and President Bush immediately signed, the Emergency Economic Stabilization Act of 2008 (“Act”). Risky complex securities, including collateralized debt obligations, once considered safe by financial institutions and ratings agencies alike despite the inherent instability of the sub-prime mortgages that secured them, are at the heart of this financial crisis. The purpose of the Act is to: (i) create a market for these securities through the Troubled Assets Relief Program (“TARP”); (ii) inject liquidity into the financial markets; (iii) improve the capital of financial institutions; and (iv) regain consumer and commercial confidence.
  • September 29, 2008 - New ADA Amendments Act of 2008 Overturns Supreme Court Decisions on “Mitigating Measures” - New ADA Amendments Act of 2008 Overturns Supreme Court Decisions on “Mitigating Measures”
    Signed into law on September 26, 2008, the ADA Amendments Act of 2008 overturned three 1999 Supreme Court decisions which directed courts to consider “mitigating measures” such as medication, when determining whether an individual is disabled under the Americans with Disabilities Act (ADA). The law also overturns a 2002 Supreme Court case that made it more difficult for ADA plaintiffs to prove they were “substantially limited” in a “major life activity.” Thus, the new law will make it easier for employees to establish a disability and it will also expand the potential for ADA claims. In addition, the new law makes it easier for employees to demonstrate they are “substantially limited” in a “major life activity.”
  • July 15, 2008 - Estate Planning - Estate Planning Opportunities in a Low-Interest Rate and Depressed-Value Environment
    The combination of low interest rates and current economic conditions present an excellent opportunity for the transfer of wealth to children and others at little or no gift tax cost. The following highlights several estate planning techniques that may provide significant tax advantages in a low-interest rate and depressed-value environment.
  • June 16, 2008 - Immigration - U.S. Government Announces Changes in Immigration Law
    The federal government recently announced several changes to U.S. immigration legislation. Two key topics involve the new two-year Employment Authorization Document (EAD) cards and the executive order requiring federal contractors and subcontractors to use the E-Verify system.
  • June 5, 2008 - Subprime - Ulmer & Berne LLP’s New Subprime Task Force Represents National and Local Financial Institutions
    Ulmer & Berne LLP announces the creation of its new Subprime Task Force formed to address the issues created by the subprime mortgage crisis. Our nationally recognized business and litigation attorneys have the depth and expertise to advise our clients on a broad range of subprime-related issues, including complex regulatory and transactional matters, investigations, bankruptcy and litigation.
  • June 4, 2008 - Immigration - Department of Homeland Security Publishes Interim Final Rule Amending the Visa Waiver Program
    The U.S. Department of Homeland Security (DHS) and Customs and Border Protection (CBP) published on June 3, 2008, an interim final rule which, upon approval, will amend the rules governing the Visa Waiver Program (VWP).
  • April 14, 2008 - Immigration - USCIS Announces Expansion of F-1 "Optional Practical Training" Program for Qualifying Students
    The U.S. Citizenship and Immigration Services (USCIS) recently published an interim final rule expanding the F-1 “optional practical training” (OPT) program for certain qualifying students. Under the new rule, which is effective as of April 8, qualifying F-1 students may receive up to an additional 17 months of OPT employment authorization, for a total of 29 months of OPT employment authorization.
  • March 25, 2008 - Employment and Labor - “Military Status” Is a New Protected Class under Ohio Revised Code Chapter 4112
    On December 20, 2007, Governor Ted Strickland signed into law the “Ohio Veterans Package” (Sub. H.B. 372). Among other statutory changes, the law adds “military status” to the list of protected classes under Revised Code (R.C.) 4112.02. Ohio employers are now prohibited from discriminating against any person based upon that individual’s military status in the same way that employers are prohibited from discriminating on the basis of race, color, sex, national origin, religion, age, ancestry, or disability. The law went into effect on March 24, 2008.
  • February 13, 2008 - Tax - Economic Stimulus Act of 2008
    On February 13, 2008, President Bush signed into law the “Recovery Rebates and Economic Stimulus for the American People Act of 2008.” The centerpiece of the Act provides for cash tax rebates to lower and middle-income individual taxpayers, including taxpayers whose income consists only of Social Security or veterans’ disability payments. The Act also provides business growth incentives by increasing Section 179 expensing and bringing back bonus depreciation.
  • January 17, 2008 - Employee Benefits - 2007 Year-End Employee Benefits Update
    The last quarter of 2007 saw a flurry of activity on the part of the Internal Revenue Service (IRS) and the Department of Labor (DOL) involving employee benefits matters.
  • January 5, 2008 - Workers' Compensation Claims - Coolidge Finally Limited: Applicable Only to Teachers Working Under a Contract Governed by O.R.C. § 3319.16
    In Bickers v. Western & Southern Ins. Co., Slip Opinion No. 2007 – Ohio – 6751, the Ohio Supreme Court definitively limited the controversial Coolidge decision to teachers whose employment is covered by a contract governed by Ohio Revised Code (O.R.C.) § 3319.16.
  • December 13, 2007 - Ohio Campaign Law Amendments - Recent Amendments to Ohio Campaign Finance Law
    The past year has been a tumultuous one for Ohio campaign finance law. In May, Ulmer & Berne LLP distributed a Client Alert advising contractors holding or planning to seek a government contract to be conscious of significant changes to Ohio Revised Code §3517.13 (O.R.C. §3517.13), which among other things, imposed new limits on political contributions to state and local government officials “having ultimate responsibility” for the award of a government contract. Ohio campaign finance law recently underwent further changes which shed some light on the applicability of the new limits on political contributions.
  • November 19, 2007 - New I-9 Forms - The New I-9 Form – Don’t Wait for the Deadline, Start Using It Now
    On November 7, 2007, the United States Citizenship and Immigration Services (USCIS) released a revised Employment Eligibility Verification Form – the Form I-9 (Rev. 06/05/07). On November 26, the USCIS published a notice in the Federal Register which provides that employers not using the new I-9s and following the new procedures by December 26, 2007 will be subject to penalties under the Immigration and Naturalization Act.
  • November 18, 2007 - U.S. Supreme Court-Travel - U.S. Supreme Court Finds Travel Time between Locker Room and Production Area Compensable
    On November 8, 2005, the U.S. Supreme Court issued a unanimous decision in two cases which raised an “hours worked” issue under the Fair Labor Standards Act (FLSA) as amended by the Portal to Portal Act.
  • November 15, 2007 - SSA No Match Letters 2007 - No "No-Match" Letters for 2007
    The Social Security Administration has announced that it will  not send out any no match letters to employers this year because of a lawsuit.
  • October 16, 2007 - SEC Imposes Fines and Censures - SEC Imposes Fines and Censures on Investment Adviser and Chief Compliance Officer Using Pre-Packaged Compliance Manual
    The Securities and Exchange Commission (SEC) announced the imposition of censures and fines against an investment adviser and its chief compliance officer arising from their use of an off-the-shelf compliance policies and procedures manual.
  • August 2, 2007 - Boone v. Vanliner - Boone v. Vanliner Modified by Statute
    In Boone v. Vanliner Ins. Co., the Ohio Supreme Court held that in an insurance bad faith case, “the insured is entitled to discover claims file materials containing attorney-client communications related to the issue of coverage that were created prior to the denial of coverage.”
  • July 25, 2007 - Senate Bill 7 - Senate Bill 7 Amends Ohio Eminent Domain Law
    Recent changes in Ohio law could make it more challenging for local and regional governmental entities to exercise their eminent domain power.  Signed by the Governor earlier this month, Senate Bill 7 will take effect 90 days after being filed with the Secretary of State.
  • July 10, 2007 - Ohio Homestead Exemption - The Newly Expanded Homestead Exemption for Ohio Seniors
    The Ohio General Assembly has enacted new legislation which will allow all senior citizens and permanently or totally disabled homeowners to lower the size of their property tax bill as a result of the newly expanded Homestead Exemption.
  • June 29, 2007 - Tax Act of 2007 - Highlights of the Small Business and Work Opportunity Tax Act of 2007
    On May 25, 2007, President Bush signed into law the Small Business and Work Opportunity Tax Act of 2007 (the “2007 Small Business Act” or the “Act”).
  • May 29, 2007 - Discriminatory Pay Claim - U.S. Supreme Court Holds that Limitations Period on Discriminatory Pay Claim Begins When Pay Decision Was Made
    If a female employee is being paid less than her male counterparts, and believes that this difference is the result of intentional discrimination, how long can the employee wait before bringing a sex discrimination claim against her employer?
  • May 25, 2007 - Campaign Finance Law - Revised Ohio Campaign Finance Law
    Contractors holding or planning to seek a government contract must be conscious of recent revisions to Ohio law pertaining to political contributions.
  • May 18, 2007 - Sub-Prime Lending - Sub-Prime Lending Leads the News: Investment Banks and Credit Rating Firms Are New Targets
    Over the past few months, the business news media have saturated consumers with stories about sub-prime residential mortgage loans, “predatory” lending and the resulting “foreclosure crisis” in many states.
  • May 11, 2007 - Ohio Supreme Court Bars Contractor - Ohio Supreme Court Bars Contractor from Recovering Delay Damages Caused by Incomplete Construction Drawings
    Contractors are at significantly greater risk, while owners (and indirectly design professionals) are at less risk in delay damage disputes under a recent decision by the Ohio Supreme Court.
  • May 5, 2007 - Securities and Exchange Commission - D.C. Circuit Court Decision Overturning SEC Broker Rule Still Garnering Attention
    Broker-dealers who charge customers a flat fee, rather than commissions on securities transactions, and act as financial advisers, will be required to disclose potential conflicts of interest to customers pursuant to Section 202(a)(11) of the Investment Advisers Act (IAA).
  • April 19, 2007 - National Bank Subsidiaries - Federal Government Preempts States as the Sole Regulator of National Bank Subsidiaries
    In Watters v. Wachovia Bank, N.A., No. 05-1342, the United States Supreme Court determined that in areas where the National Bank Act authorizes national banks to operate, the federal government is the sole regulator of national bank subsidiaries, even when the subsidiaries are state-chartered.
  • February 10, 2007 - Arbitration Award - Sixth Circuit Upholds Decision to Vacate Arbitration Award but Invites Challenge to its Standard of Review for Arbitration Awards
    Tthe United States Court of Appeals for the Sixth Circuit, which includes Ohio in its jurisdiction, upheld a district court decision to vacate an arbitration award.  Although such a result is noteworthy in itself, the Court’s discomfort with that decision and the future implications of that attitude are the real story.
  • February 1, 2007 - FLP LLC - Radical Change in Workers’ Compensation Law Adversely Impacts Employers and Benefits Employees: A Follow Up
    Our November 2003 Client Alert on the Ohio Supreme Court case of Coolidge v. Riverdale Local School District, 100 Ohio St.3d 141 (2003), where the Court prohibited employers from discharging employees who are receiving workers’ compensation temporary total disability (TTD) compensation solely for absences or inability to work directly related to the allowed condition for which they are receiving benefits, has generated a tremendous amount of interest.
  • January 31, 2007 - No-Smoking Regulations - Issue 5 - A Second Look at Ohio’s Proposed No-Smoking Regulations
    The Ohio Department of Health has released its revised draft of proposed regulations to implement the smoking restrictions in places of employment and public places that were approved by Ohio voters last November in Issue 5.
  • January 18, 2007 - Rental Property Registration - New Rental Property Registration Law Takes Hold in Ohio
    What Has Changed: The Rules that Apply in Federal Court Concerning Discovery of Electronic Information
  • January 16, 2007 - Electronic Discovery and Data - New Federal Rules Focus on Electronic Discovery and Data
    What Has Changed: The Rules that Apply in Federal Court Concerning Discovery of Electronic Information
  • January 1, 2007 - Issue 2 FAQ - Ohio Minimum Wage Law: Questions and Answers
    Last November, Ohio voters passed Issue 2, guaranteeing most Ohio employees an increased minimum wage, and imposing other timekeeping and recordkeeping requirements on most Ohio employers, as a constitutional amendment effective January 1, 2007.
  • 2006 - December-Janicki v KFORCECOM - Employees Injured while Crossing Public Streets May Be Eligible for Workers’ Compensation
    In a recent decision, the Ohio Second District Court of Appeals declared that an employee who was injured while crossing a public street was eligible for workers’ compensation benefits because the street was within the zone of employment.
  • December 22, 2006 - Issue 5 Regulations - A First Look at Ohio’s Proposed No-Smoking Regulations
    The Ohio Department of Health has released its initial draft of proposed regulations to implement the smoking restrictions in places of employment and public places that were approved by Ohio voters last November in Issue 5.
  • December 19, 2006 - NASD Webcast - NASD Staff Permits Broker-Dealer To Use On-Demand Webcast To Satisfy Annual Compliance Meeting Requirements
    On November 30, 2006, the NASD staff issued an Interpretive Letter advising Citigroup Global Markets, Inc. (CGMI) that it may, under certain circumstances, use on-demand webcast technology – in place of live meetings, interviews or real-time webcast presentations – to satisfy the annual compliance meeting requirements of NASD Conduct Rule 3010(a)(7).
  • 2006 - December - Slaine v. Republic Waste Services - Court Rejects Intentional Tort Claim based on Failure To “Warn” Employee of Known Hazard
    Ohio’s workers’ compensation laws generally preclude employees from suing employers in court for workplace injuries.  However, an exception is made when the injury is caused by the employer’s intentional tort.
  • December 12, 2006 - DOL Clarifies Overtime Exempt Status - Department of Labor Clarifies Overtime Exempt Status of Registered Representatives in Securities Industry under the Fair Labor Standards Act
    In an Opinion Letter dated November 27, 2006 the Department of Labor advised the securities/financial services industry that registered representatives may qualify for the “administrative employees” exemption, provided that certain criteria are met.
  • December 8, 2006 - Alcohol at Holiday Party - Planning To Serve Alcohol at the Company’s Holiday Party?
    During this holiday season, many employers treat their employees to a holiday party and provide alcoholic beverages. A recent Ohio appellate court decision revisits the issue of employer liability for an intoxicated employee’s negligent conduct after leaving the workplace.
  • December 1, 2006 - Issue 5 FAQ-2 - Issue 5: Smoke Free Ohio
    On December 7, 2006, Issue 5 will become effective and essentially prohibit smoking in nearly all public places and places of employment.  This FAQ contains responses to several frequently asked questions that have been added since our last FAQ was distributed on November 22, 2006. New topics addressed include: Employee Smoke Breaks; New Signage Guidelines Issued by the Ohio Department of Health; Enforcement
  • November 29, 2006 - Issue 5 FAQ - Issue 5 Update: Phone Numbers for “No Smoking” Signs
    The Ohio Department of Health has now issued temporary guidance on how employers and proprietors of public places should comply with Issue 5.   This guidance relates to the “No Smoking” signs that employers and proprietors of public places are required to post.
  • November 27, 2006 - NASD Hyperlink - Firms Must Now Use Hyperlink When Mentioning NASD Membership on Websites
    The SEC recently announced that it has approved an NASD rule interpretation requiring any broker-dealer that mentions its membership with NASD on the firm’s website to provide a hyperlink to NASD’s Internet home page.
  • November 22, 2006 - Issue 5 FAQ - Issue 5: Smoke Free Ohio
    On December 7, 2006, Issue 5 will become effective and essentially prohibit smoking in nearly all public places and places of employment.
  • November 9, 2006 - Issue 5 - Issue 5 Passage: What It Means for Ohio Employers
    Although not well publicized, Issue 5 imposes several new obligations and prohibitions upon all Ohio employers.  It also imposes stiff penalties for any violations.
  • November 8, 2006 - Issue 2 - Issue 2 Passage: What It Means for Ohio Employers
    With the passage of Issue 2, a new provision will be added to the Ohio Constitution effective January 1, 2007.  This amendment will trigger new obligations for Ohio employers regarding paying employees the minimum wage and new payroll recordkeeping/reporting requirements.
  • October 27, 2006 - Pension Protection Act of 2006 - Ulmer & Berne LLP Has Developed Two Client Alerts Concerning the Pension Protection Act of 2006
    In order to assist you with an understanding of the Act and the actions you will need to undertake in order to comply with, or take advantage of, the newly enacted provisions, Ulmer & Berne has prepared two separate Client Alerts that are collectively intended to provide you with an overview of some of the more significant provisions contained in the Act.
  • October 25, 2006 - Sixth Circuit Ruling on Separation Agreement - Sixth Circuit Issues Ruling on Separation Agreement that Conditions Severance Pay on Promise not To File EEOC Charges
    A recent decision by the federal Sixth Circuit Court of Appeals rejects the EEOC’s position that merely including a restriction on filing discrimination charges constitutes unlawful retaliation; however, the Sixth Circuit also commented that such a restriction probably is unenforceable as against public policy.
  • October 10, 2006 - NLRB Issues on Supervisory Status - NLRB Issues Long-Awaited Guidelines on Supervisory Status
    The NLRA protects employees engaged in union organizing and other protected, concerted activities.  Supervisors have no such protection.
  • August 7, 2006 - Age Discrimination Waiver - Confusing Age Discrimination Waiver Isn’t Worth the Paper It’s Printed On
    Age Discrimination waivers must meet a strict criteria to be valid.
  • August 15, 2006 - Backdating Stock Options - How Backdating Stock Option Grants Could Create Future Problems for Private Companies Too
    While the backdating of stock options is not per se illegal, backdating can be unlawful, if not undertaken properly.
  • August 2, 2006 - Alexicole-Update - Effective February 2007 Out-of-State Attorneys Will Be Permitted to Handle Arbitrations in Ohio
    As expected, the Ohio Supreme Court has adopted the new Ohio Rules of Professional Conduct.
  • July 18, 2006 - Charitable Organizations - Ohio Attorney General Jim Petro Issues Proposed Rules for Charitable Organizations
    Ohio Attorney General Jim Petro has proposed a new set of rules for Ohio charities with the intent to make charities more transparent and accountable to the public.
  • July 7, 2006 - New Air Pollution Law - New Air Pollution Law Enacted to Streamline Ohio Air Permitting Process
    Governor Bob Taft recently signed Senate Bill 265, legislation that significantly revises the Ohio Pollution Control Law and streamlines the state’s air permitting process.
  • June 23, 2006- Retaliation - U.S. Supreme Court Establishes Standard for “Materially Adverse Action” in Retaliation Cases
    In a much-awaited decision, the U.S. Supreme Court, resolved that conflict in a way that changes the standards for employers in most parts of the country and also could make it easier for plaintiffs to establish retaliation claims.
  • June 9, 2006 - Salaried Non-Exempt Employees - Are You Paying Your Salaried Non-Exempt Employees Correctly?
    In a recent U. S. Department of Labor, Wage and Hour Administrator’s Opinion Letter, a key point in the payment of salaried non-exempt employees is clarified.
  • June 7, 2006 - SEC-USA Patriot Act - SEC Prosecutes First Brokerage Firm under the Patriot Act
    The Patriot Act requires that financial institutions establish and follow procedures for verifying the identities of customers opening new accounts.  On May 22, 2006, the Securities and Exchange Commission (SEC) issued the SEC’s first enforcement action under the Patriot Act against the brokerage firm of Crowell, Weedon & Company.
  • May 23, 2006 - Tax Increase Prevention and Reconciliation Act - Highlights of the Tax Increase Prevention and Reconciliation Act
    On May 17, 2006, President Bush signed into law the Tax Increase Prevention and Reconciliation Act (the 2006 Tax Act).
  • May 23, 2006 - Tax-Exempt Organizations - New Tax Law Subjects Tax-Exempt Organizations Involved in Tax Shelter Transactions to New Taxes
    Congress continues to be concerned about the involvement of tax-exempt organizations in activities that do not further the tax-exempt purposes for which they were established.
  • 2006 - May - York International Corp. v. Industrial Commission - A Right To Be Heard: What To Do if Your Company Is Not Notified of a BWC Hearing
    If a company does not receive proper written notice of a proceeding before the Bureau of Workers’ Compensation (BWC), then it should petition the Industrial Commission of Ohio (Commission) for relief.
  • 2006 - May - Meris v. Industrial Commission - Lessons from a Fish Salesman: When To Contest a Doctor’s Report to the BWC based on an Incomplete Work History
    A doctor’s report to the Bureau of Workers’ Compensation (BWC) regarding a claimant’s current bill of health is not defective if the claimant failed to give the doctor a complete history of jobs held before the time of examination.
  • 2006 - May - Apcompower, Inc v. Industrial Commission - Missing a Scheduled Independent Medical Examination Does Not Preclude Workers’ Compensation Claimants from Receiving Benefits
    What happens when an employee files a claim for workers’ compensation benefits, but several months go by during which time the employee fails or refuses to attend an independent medical examination (IME) scheduled by the employer? Is the employee forever barred from receiving benefits during this time period?
  • April 26, 2006 - IRS Targets Politicking by Charities - IRS Targets Politicking by Charities
    With the 2006 election cycle heating up it is important for churches and other 501(c)(3) organizations to be keenly aware of the general prohibition on politicking by tax-exempt organizations.  The Internal Revenue Service has vowed to crack down on churches and other tax-exempt charities engaged in political campaigns.
  • April 10, 2006 - "After Acquired" Evidence - FMLA - Sixth Circuit Permits Use of “After-Acquired” Evidence in FMLA Cases, Minimizes Employee’s Subjective Claims of Ability to Work, and Rejects “Exacerbation Theory” of Liability
    The federal Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of unpaid leave from work per 12-month period for a serious health condition.  When that 12-week period has been exhausted and the employee still is unable to return to work, the employee usually has no further right under the FMLA to reinstatement.
  • March 31, 2006 - Tax Incentives - “IC-DISCs” – Tax Incentives for Closely-Held Exporters
    Today’s IC-DISCs, however, offer more than just tax deferral – they offer strong tax savings for U.S. exporters.  This tax savings benefit is due to the reduced 15% tax rate on dividends, and has revitalized the use of IC-DISCs.  Under current law, the reduced dividend rate expires at the end of 2008.
  • March 15, 2006 - Data Security - Former Employee who Deletes Data on Company Computer Subject to Civil and Criminal Penalties under Federal Law
    While employers are still encouraged to draft and disseminate policies that govern the use of employer-owned computers by employees, a new application of a federal anti-hacking law offers employers additional protection from employee misconduct involving employer-owned computers.
  • March 14, 2006 - Vacation Time - Ohio Court Of Appeals Requires Employer to Pay Employee for Accrued and Unused Vacation Time
    Many employers, as a matter of practice, do not pay terminated employees for vacation time that the departing employee has earned under the employer’s vacation policy, but had not yet used as of the time of termination.  These employers may be unwittingly exposing themselves to significant liability.
  • March 9, 2006 - Unemployment Compensation - Ohio Supreme Court Allows Unemployment Compensation Benefits for Permanently Replaced Strikers
    Tthe United States Court of Appeals for the Sixth Circuit, which includes Ohio in its jurisdiction, upheld a district court decision to vacate an arbitration award.
  • February 3, 2006 - Regarded As Disability Discrimination - Federal Sixth Circuit Appeals Court Opens the Door Wider for “Regarded As” Disability Discrimination Claims
    On February 3, 2006, the Sixth Circuit Court of Appeals, which has jurisdiction over Ohio, issued a new published decision that could expand the circumstances under which employees could sue their employers for disability discrimination.
  • January 15, 2006 - Ohio Supreme Court Disciplines Attorney - Ohio Supreme Court Disciplines Attorney for Falsely Notarizing Signatures on Affidavits
    On December 14, 2005, the Ohio Supreme Court reaffirmed that when notarizing a document, the signer must sign the document in the notary’s presence.  This case is truly a cautionary tale for all lawyers and notaries in Ohio.
  • January 1, 2006 - Groundwater - Ohio Supreme Court Finds that Landowners Have a Constitutionally-Protected Property Interest in Groundwater
    In a significant water rights decision issued December 21, 2005, the Ohio Supreme Court held that “Ohio landowners have a property interest in the groundwater underlying their land, and that governmental interference with that right can constitute an unconstitutional taking.”
  • December 29, 2005 - McCrone v. Bank One Ruling - Ohio Supreme Court finds that Workers’ Compensation Act’s Exclusion of Purely Psychiatric Injuries is Constitutional
    The Ohio Supreme Court has issued a decision in McCrone v. Bank One Corp., holding that the Workers' Compensation Act's exclusion of purely psychological injuries is not a denial of equal protection.
  • December 19, 2005 - U.S. Dept. Labor USERRA - U.S. Department of Labor Issues Regulations Implementing USERRA
    On December 19, 2005, the U.S. Department of Labor (DOL) published its final regulations designed to implement the Uniformed Services Employment and Reemployment Rights Act of 1994 detailing how employers must treat employees who leave and then return from military service.
  • November 2, 2005 - Unauthorized Users - New York Court Holds Banks Can No Longer Contract to Shorten the Notice Period for Unauthorized Transfers
    In a case of first impression anticipated by banks across the country, the New York Court of Appeals (New York's highest state court) recently and severely limited a bank's ability to protect itself from liability for an unauthorized electronic funds transfer by contract.
  • Sarbanes-Oxley Whistleblower - Employee Must Communicate Specific Concern about Fraud Against Shareholder to Prevail in Sarbanes-Oxley Whistleblower Action
    The Sarbanes-Oxley Act (SOX) contains a whistleblower provision that prohibits employers from retaliating against employees who “provide information . . . to  . . . a person with supervisory authority over the employee . . . regarding any conduct which the employee reasonably believes constitutes a violation of section 1341, 1343, 1344, or 1348; any rule or regulation of the Securities and Exchange Commission; or any provision of Federal law relating to fraud against shareholders.”  To prevail, an employee must show: (1) engagement in a protected activity; (2) that the employer knew of the employee’s involvement in the protected activity; (3) that the employee suffered an unfavorable personnel action; and (4) that the protected activity was a contributing factor to the unfavorable personnel action.
  • September 9, 2005 - PD Case - Police Officer Photos Are Not Public Records
    Under almost everyone’s radar screen, legislation went into effect in June 2000 exempting from disclosure as a public record “[a]ny record that identifies a person’s occupation as a peace officer other than statements required to include the disclosure of that fact under the campaign finance law.” The force of this little-known exemption recently came into focus in State ex rel. Plain Dealer Publishing Co. v. Cleveland, 106 Ohio St. 70, 2005-Ohio-3807, where the Ohio Supreme Court held that photographs of police officers are not subject to disclosure in response to a public records request because they identify a person’s occupation as a police officer.
  • August 10, 2005 - Financial Fraud - Financial Institutions As Gatekeepers Against Financial Fraud: Good News and Bad News
    Financial Institutions As Gatekeepers Against Financial Fraud: Good News and Bad News
  • July 1, 2005 - Major Ohio Tax Changes - Major Ohio Tax Changes
    Major changes were made to Ohio’s tax system with the enactment of Am. Sub. H.B. 66, effective July 1, 2005. Virtually all Ohio businesses and individual taxpayers will be affected.
  • June 1, 2005 - IRS Changes the Rules - IRS Changes the Rules
    The tax shelter mania has produced a new burden for lawyers and our clients. For years tax shelter promoters have used lawyers’ and accountants’ written “advice” to help sell questionable investment products. If challenged, the customer claimed an exception from IRS penalties because the customer relied on that “advice”. The IRS hasn’t been very successful in fighting tax shelter promoters and customers directly, so the IRS is trying an indirect attack by revising its rules (known as “Circular 230”) governing lawyers and other advisors who give tax advice. We are now going to be required to caution our clients whenever we give written tax advice that does not rise to the status of a full, formal legal opinion.
  • April 20, 2005- Bravo-Update on Alexicole II - Alexicole - Ohio’s Board on the Unauthorized Practice of Law Declines to Issue an Advisory Opinion on Alexicole
    In separate but nearly identical letters dated April 21, 2005,  the Ohio Board on the Unauthorized Practice of Law (the “Board”) declined, as we predicted in our March 2005 UPDATE on Alexicole, to issue an advisory opinion regarding the recent Ohio Supreme Court opinion in Disciplinary Counsel v. Alexicole,  the case which has called into question the ability of attorneys not admitted in Ohio to represent parties, including their employers, in arbitrations held in Ohio.
  • March 5, 2005 - Update on Alexicole - Update on Alexicole - Whether or Not Non-Ohio Attorneys May Participate in Arbitrations and Mediations Is Still Unclear
    Since the Ohio Supreme Court announced its decision in Disciplinary Counsel v. Alexicole on December 22, 2004, there has been much speculation and rumor regarding the interpretation of the case.
  • March 1, 2005 - Employment-Claims-Shortened - Take It or Leave It: Sixth Circuit Upholds Legality of Job Application Clause Shortening Statute of Limitations for All Employment Claims to Six Months
    In a case that has received little fanfare, but may affect thousands of employers, the Sixth Circuit Court of Appeals recently held that a properly worded job application can actually shorten the statute of limitations for employment claims brought by current and former employees.
  • February 1, 2005 - Alexicole - Alexicole - Ohio Ruling May Limit Out-of-State Attorneys in Ohio Arbitrations
    In a ruling somewhat reminiscent of what happened in California in the Birbrower case in 1998 and in Florida in the Rapoport case in 2003, the Ohio Supreme Court has issued an opinion which may limit the ability of attorneys not licensed to practice in Ohio to represent parties in mediations and arbitrations in Ohio.
  • February 1, 2005 - Class-Action-Fairness-Act - The Class Action Fairness Act of 2005: Changing the State Court Paradigm
    On February 18, 2005, the Class Action Fairness Act of 2005 was enacted into law. The act has been hailed as a reform measure to address the abuse of class action lawsuits, which is in response to findings of Congress that class action lawsuits too often “harmed defendants that have acted responsibly” and “adversely affected interstate commerce.” The act expands the subject matter jurisdiction of the federal courts, allowing certain “interstate” class action lawsuits to be transferred from state to federal court. Previously, plaintiffs were often successful in carefully drafting class action complaints to avoid the limited subject matter jurisdiction of federal courts, preferring to remain in state court for reasons of forum shopping or other strategies
  • January 1, 2005 - Harvey-Tort Reform - Tort Reform and Toughening the Employer Intentional Tort Standard
    In our ongoing effort to keep you apprised of changes in Ohio law, the attorneys of Ulmer & Berne LLP provide the following executive summary and general overview of the new Tort Reform Act and Employer Intentional Tort Act, both of which take effect on April 7, 2005. The overview provides more detail, and it includes a few comments about how the recent changes in Ohio law might affect your business. We encourage you to contact us with any questions.
  • November 11, 2004 - American Jobs Creation Act - Key Provisions of the American Jobs Creation Act of 2004
    On October 22, 2004, President Bush signed into law the American Jobs Creation Act of 2004. The impetus for the new law was a ruling by the World Trade Organization that the tax code’s extraterritorial income (ETI) regime was an illegal export subsidy.
  • November 1, 2004 - Inspection Subsidiary Rights - Ohio Shareholders Get New Common Law Right to Inspect Books of a Corporation's Subsidiaries
    On October 13, 2004, the Ohio Supreme Court held, for the first time, that shareholders of an Ohio corporation have a common law right to inspect the books of the corpo-ration’s wholly owned subsidiary, even if the shareholders do not own stock in the subsidiary itself. A “common law” right is one expressed in court decisions, rather than in a legislated statute.
  • November 1, 2004 - Nonqualified Deferred Compensation - New Tax Law Necessitates Prompt Review of All Nonqualified Deferred Compensation Arrangements
    On October 22, 2004, President Bush signed into law the American Jobs Creation Act of 2004. Included among its many tax provisions is a section which creates a sea change in the rules pertaining to the taxation of nonqualified deferred compensation arrangements. For many years, Congress required the Internal Revenue Service to maintain a hands-off policy with respect to the regulation of deferred compensation arrangements. In the wake of the Enron and WorldCom scandals, however, lawmakers have decided to step in and impose new restrictions and severe penalties to limit perceived abuses. The result will be much less flexibility in the operation of such programs.
  • September 1, 2004 - U.S. Sentencing Commission - U.S. Sentencing Commission Adopts New Requirements for Corporate Compliance and Ethics Programs
    The U.S. Sentencing Commission is changing its sentencing guidelines for corporations, marking the first noteworthy amendments to those provisions since their adoption in 1991. The amendments, submitted to Congress on April 30, 2004, will amend the existing organizational sentencing guidelines, thereby changing the way corporations create and manage compliance programs. The amendments are scheduled to become effective on November 1, 2004
  • RealEstateLawLetter-Fall2004 - Clean Ohio Fund Revitalizes Ohio’s Brownfield Development
    Some Ohio developers and commercial real estate property owners are finding gold in polluted property. The state of Ohio, through an innovative funding program known as the Clean Ohio Fund (COF), provides a development opportunity for areas polluted and once abandoned.
  • BusinessTaxLawLetter-Fall 2004 - Proposed State Bill Creates Increased Reporting Requirements for Recipients of Public Money
    Financial scandals are fresh in the minds of many frustrated Americans.  Proposed Ohio Senate Bill (S.B.) No. 153, currently before the Ohio General Assembly, is apparently targeted at preventing the environment which led to these scandals.
  • July 1, 2004 - Unizan - Court Reaffirms Primacy of More Difficult Ohio Derivative Procedure Over Delaware Class Action Format in Shareholder Suits
    Dissatisfied shareholders in Ohio cannot rely on Delaware’s more liberal shareholder-friendly class action law in pressing Ohio claims that their rights were violated in a proposed merger. They must instead seek redress through the more procedurally daunting route of a derivative action, a Stark County Common Pleas Court recently ruled. The ruling, in a case successfully defended by Ulmer & Berne LLP, involved granting defendants’ motion to dismiss in a case contesting the merger of two Ohio banks.
  • EmploymentLawLetter-Summer2004 - Labor Specialist Fred Seleman Panelist With NLRB Chair Battista at 2004 ABA Mid-Winter Meeting
    Fred Seleman, a member of Ulmer & Berne’s Employment & Labor Law Group, had the privilege
    of being a panelist with the National Labor Relations Board’s chairman, Robert J. Battista, at
    the 2004 mid-winter meeting of the ABA’s Committee on Practice & Procedure.
  • BusinessTaxLawLetter-Summer 2004 - Conservation Easements Generate Income and Estate Tax Savings
    If you own family lands... it may be possible to preserve your lands and protect your family’s financial future through the use of conservation easements.
  • March 1, 2004- Guns in Workplace - Ohio’s New Concealed Weapons Law Hastens Need for Workplace Weapons Policy
    It used to be that employers thought they didn’t need a handgun policy in their workplace. Who would bring a gun to work? But think again: Ohio’s new concealed weapons law means employers should seriously consider whether to put a handgun policy in place.
  • February 1, 2004 - Reverse Age Discrimination - U.S. Supreme Court Rejects "Reverse" Age Discrimination Claim
    The U.S. Supreme Court has held that an employer cannot be sued for “reverse” age discrimination under the federal Age Discrimination in Employment Act of 1967 (ADEA), which prohibits discrimination against “any individual…because of such individual’s age.”
  • BusinessTaxLawLetter-Winter 2003 - Auditor Independence Rules Under Sarbanes-Oxley: Large Firm’s Loss Could Be Smaller Firm’s Gain
    One prominent feature of the Sarbanes-Oxley Act is its mandate regarding auditor independence. The act charged the Securities and Exchange Commission (SEC) with promulgating rules intended to strengthen auditor independence by prohibiting auditing firms from providing certain non-audit services to their audit clients.
  • November 15, 2003 - Workers Comp Follow Up - Coolidge Decision: What Employers Should Do Now -- A Follow Up to the Coolidge Client Alert Distributed the Week of November 3
    In Coolidge v. Riverdale Local School District, 100 Ohio St.3d 141, decided October 22, 2003, the Ohio Supreme Court ruled that employers, public and private, cannot discharge an employee who is receiving TTD compensation pursuant to R.C. 4123.56 "solely on the basis of absenteeism or inability to work, when the absence or inability to work is directly related to an allowed condition." Id. at 150.  Bottom line — any policy that limits the length of leaves of absence cannot apply in Ohio to workers’ compensation leaves where the employee is receiving TTD compensation for allowed conditions.
  • November 1, 2003 - Workers Comp Law - Radical Change in Workers’ Compensation Law Adversely Impacts Employers and Benefits Employees
    On October 22, 2003, the Ohio Supreme Court, in Coolidge v. Riverdale Local School District, 100 Ohio St.3d 141 (2003), unanimously held that employers may not discharge employees who are receiving temporary total disability (TTD) compensation under the State Workers’ Compensation Act solely for absences or inability to work directly related to the allowed condition for which they are receiving benefits. The court issued its decision in a case where a teacher was discharged after missing nearly two years of work. When she was discharged, she continued to be disabled and was receiving TTD compensation. The court stated “[i]n our opinion, the policy of protection embodied in the Workers’ Compensation Act can be effectuated only if an employer is not permitted to discharge an employee for being absent from work due to an allowed injury for which the employee is receiving TTD compensation.”
  • June 2, 2003 - University of Michigan Case - U.S. Supreme Court Upholds Some, But Not All, Affirmative Action Educational Admission Practices
    Handing down two of the most eagerly awaited decisions of this term, the U.S. Supreme Court ruled upon the legality of the University of Michigan’s affirmative action practices for its undergraduate and law school admissions. The court held that the law school’s affirmative action admissions policy, which assessed all of the individual qualifications (including race and ethnic background) of each applicant, complied with the “equal protection clause” of the 14th Amendment to the U.S. Constitution and the federal civil rights laws. However, the court also struck down the undergraduate affirmative action admissions policy that automatically awarded points to any applicant in certain underrepresented minority groups.
  • June 1, 2003 - Tax Bill - The 2003 Tax Act: Near-Term Tax Benefits, But More Complexity
    On May 28, 2003, President Bush signed into law the Jobs and Growth Tax Relief Reconciliation Act of 2003 (the 2003 Tax Act). Pressure to keep the cost of the new tax law under $350 billion resulted in a number of tax law changes which are only temporary. The short life of these provisions makes many financial and planning decisions for individuals and businesses even more tax-intensive and complex. We are analyzing the new law and its many details in order to determine how they impact our clients. In the meantime, this client alert provides a summary of the highlights of the 2003 Tax Act.
  • BusinessTaxLawLetter-Summer2003 - S Corporation Technique for Maximizing Capital Gain on Land Development
    What follows discusses some of the details of the technique for maximizing capital gain and minimizing ordinary income from a land development project. We also included some guidelines for structuring the transaction. These are drawn from court cases that have upheld as well as denied the capital gain goal of similar arrangements.
  • EmploymentLawLetter-Summer2003 - Get That Employee Handbook Off Your “To Do” List
    If writing or revising an employee handbook is still on your business’ “to do” list, now is the time to move that project to the top of the list. This is the time of year when clients ask members of Ulmer & Berne’s Employment & Labor Law Group to assist them in revising personnel manuals, updating policies or writing employee handbooks. Clients can decide how much or how little to do themselves or delegate to our attorneys.
  • EmploymentLawLetter-Spring 2003 - U.S. Supreme Court to Decide Whether ADA Requires Reinstatement of Employee Discharged for Drug Use
    Does the Americans with Disabilities Act (ADA) require an employer to reinstate a former employee who was discharged after testing positive for cocaine in violation of the employer’s drug testing policy?
  • RealEstateLawLetter-Spring 2003 - Is Port Authority Financing Right for Your Next Project?
    Companies are constantly looking for creative ways to finance construction and expansion projects. One innovative option is port authority financing.
  • January 1, 2003 - IP OCPO Web Audit - New Privacy and eCommerce Laws Pose Risks for Businesses
    In today’s fast-paced business environment, there are a myriad of issues about which companies must be concerned — chief among them, privacy compliance and doing business on the web.
  • January 1, 2003 - Wetlands Mitigation - Corps-EPA Issue Regulatory Guidance Letter and National Wetlands Mitigation Act
    The U. S. Army Corp of Engineers, headquartered in Washington, DC, has thrown a "no overall net loss" monkey wrench into the business plan for the preservation of wetlands. On December 24, 2002, without fanfare or bells and whistles, the Corp of Engineers issued a revamped Regulatory Guidance Letter (RGL 02-2) regarding Guidance on Compensatory Mitigation Projects under the Clean Water Act. This was somewhat of a surprise development, though we discussed some of the below concepts in past meetings (for example potential stream mitigation credits).
  • January 1, 2003 - Workers Comp Drug Testing - Ohio Supreme Court Strikes Down Workers' Compensation Drug Testing Statute
    On December 18, 2002, the Ohio Supreme Court struck a major blow against employers by declaring unconstitutional a portion of the workers’ compensation law that permits employers and the Bureau of Workers’ Compensation (BWC) the right to deny workers’ compensation benefits to injured workers who refuse to submit to drug and alcohol screening after an injury.
  • October 1, 2002 - Ohio Spam - Ohio Spam Legislation
    On August 1, 2002, Ohio enacted law regulating unsolicited commercial e-mail (spam), joining approximately 26 other states.  This new law, Ohio Senate Bill No. 8, regulates the transmission of unsolicited commercial e-mail advertisements to Ohio residents through e-mail service providers located in the state of Ohio.  The new law will go into effect November 1, 2002.  Ohio’s new anti-Spam law requires that all commercial e-mail include the following information:
  • September 1, 2002- Sarbanes Oxley - New Federal Corporate Responsibility Law Mandates New Whistle-Blower Protections
    On July 30, 2002, a new federal corporate responsibility law, known as the Sarbanes-Oxley Act of 2002, was signed into law.  The act contains sweeping provisions intended to restore public confidence in the honesty and integrity of the public securities market.  Many of these provisions impose new or different responsibilities and potential liabilities on public companies and their officers and directors.  Some of those provisions include: