First, we hear pretty regularly from Realtors, investors, and lenders of incredibly ingenious and devious wire fraud attempts. And indeed some of these endeavors succeed. These are happening with greater and greater regularity in every community in the nation by fraudsters throughout the globe.
Second, we got this alert from our underwriter, First American Title Insurance Company today:
Fridays before holiday weekends represent an exponentially higher risk to fall victim to WIRE FRAUD.
Criminals know our business and have learned to take advantage of a busy agent’s desire to provide customer service and quickly move transactions to conclusion before the banks close for a long weekend.
NEVER ACCEPT WIRE INSTRUCTIONS VIA EMAIL without utilizing call-back verification procedures to a known, safe phone number. Don’t fall victim to wire fraud.
Enjoy a safe and secure holiday weekend.
So, to our clients and friends, we caution you to be safe out there!
Relating to Christopher P. Finney’s presentation on February 16th, 2017 before Cincinnati’s Lawyers’ Club entitled “Mr. Finney goes to the United States Supreme Court,” we wanted to present several links for those wanting to do further study on the topic.
First, as background, SCOTUSblog.com exists for the purpose, in part, of compiling and presenting key links for United States Supreme Court cases, from briefs, to oral argument transcripts and audio recordings, as well as in dept commentary. So, most of our links are just back to their site, for which we are greatly appreciative.
Some are links to original documents on the Finney Law Firm scribd.com site.
Next Thursday, Christopher P. Finney will present to Cincinnati’s Lawyer’s Club the topic “Mr. Finney goes to the United States Supreme Court,” a speech on his experiences in having a case accepted by the nation’s highest court, having it presented (another attorney made the oral argument) and winning in a unanimous ruling.
“It has been the highlight of my legal career to date has been to position a case for acceptance by the United States Supreme Court, to have it presented and to win,” said Finney. “The experience was made all the sweeter because up until the nine Justices spoke, not a single judge, at the trial court level or at the appellate level, saw any merit in our arguments. Strategy, persistence and a firm belief in our position prevailed.”
Within just months of forming the Finney Law Firm in 2013, we learned that one of our cases had been accepted for oral argument at the United States Supreme Court — Susan B. Anthony List v. Ohio Elections Commission. Getting a case accepted for oral argument by the United States Supreme Court is the legal equivalent of lightning striking. The Supreme Court typically accepts fewer than 1% of all cases for which certiorari petitions are presented, and many of those arise from either very high profile issues of great public interest or cases of statutory interpretation arising from the D.C. Circuit. In the year in which we presented, more than 10,000 petitions for writs of certiorari were presented, and only 69 were accepted for oral argument.
The Susan B. Anthony List case challenged Ohio’s political “false claims” statute, in which the Ohio Elections Commission sits (used to sit) in judgment of whether statements made during the course of political campaigns — candidate and issue — were “false” and if so, could refer them for criminal prosecution, involving up to six months in jail.
Our legal team presented that case in April of that year, and won a unanimous ruling from the U.S. Supreme Court in June, authored by Justice Clarence Thomas. The case as it ascended to the United States Supreme Court was merely about whether our clients had standing to challenge the subject statute. The Supreme Court decision found that standing existed and remanded the case for further proceedings in the trial and appellate courts, where some months later our clients ultimately prevailed.
Navigating legal shoals to have a case accepted by the United States Supreme Court and positioning it most strongly for victory, including by its written and oral presentation, involve intense strategy and hard work, much like a chess game or a championship boxing match.
That experience in this one case, and two more that the firm had accepted and won on only written briefs, will be presented by Christopher P. Finney next Thursday, February 16, 2017 before Cincinnati’s Lawyers’ Club at the Montgomery Inn Boathouse at 11:30 AM.
Also presenting that same day from 12:45 to 1:45 is Cincinnati attorney Daniel Drew on Civil Asset Forfeiture Reforms.
If you want to attend, you may sign up by contacting attorney Bob Cettel at (513) 325-2279 or via email at cettel@mac.com. The cost is $20 per CLE session for Cincinnati Lawyer Club members and $25 per session for non-members. The cost is $30 per year to join the Cincinnati Lawyers Club.
The Cincinnati Lawyers’ Club was founded in 1920 and gathers attorneys together for civic undertakings and continuing legal education programs. We thank them for this opportunity to present our experiences on this exciting journey to the United States Supreme Court.
When an employer feels the need to cut costs, the first thing it often targets is wages and salaries, because that is often the biggest expense it has. To reduce wage costs it naturally will look at reducing the size of its workforce. And when it does that, it will often focus on the people with larger salaries. In this way the employer feels it can save the most money with the fewest number of terminations – get the most “bang for its buck” so to speak.
The problem is that the people with the biggest salaries are also often among the oldest employees. People who have been at a company the longest tend – due to their tenure, and the accumulation of annual salary increases – to be the most highly compensated.
So when a company engages in a reduction in force, and focuses on higher salaried employees for termination, older workers are often hit harder than younger employees. Is this illegal? Is this age discrimination?
Technically no. Targeting someone because of his or her salary – if that is the reason he or she was targeted – is not age discrimination, even though the EFFECT of this cost-conscious motivation is to hurt older workers more than younger workers
Age discrimination is an intentional act, not an accidental or negligent one. It occurs as a result of stereotypical, biased attitudes about older people – such as that they aren’t as energetic or creative, that they are slowing down, that they can’t adapt to change, etc. It is these attitudes that the age discrimination laws were designed to address.
Having said that, employers should always be concerned about applying any reduction in force in an evenhanded manner. Any reduction that disproportionately affects a particular demographic group is going to be subject to scrutiny by the courts, and create a greater risk of litigation.
The Ohio Department of Education has a remarkable record in teacher disciplinary proceedings over the past five years: Nearly 100% of all proceedings decided by the state board of education result in discipline for the teacher. Yes, the standards for “due process” in ODE administrative proceedings are so robust that nearly no one is ever found “not guilty” of the charges leveled.
That fact alone should make the citizenry shiver, as no one involved in the proceedings seems to ever find a chink in the armor of the Department’s overzealous prosecutions. It has the appearance, if not the reality, of a rubber-stamp procedure from beginning to end.
That one-sided history of adjudication of teacher disciplinary proceedings thus made our win this week in Langdon v. Ohio Department of Educationall the more sweet.
In a proceeding that endured for more than 36 months, including seven days of trial, and taking six months after the close of the hearing for the Hearing Examiner to issue a decision, our client’s teaching license was revoked by the Ohio Board of Education. She was a special education teacher in the troubled Lakota School District, dealing with developmentally-disabled, multi-handicapped children. We then appealed that administrative decision on behalf of our client to the Butler County Common Pleas Court pursuant to O.R.C. §119.12.
Today, the decision in that appeal was issued, and our client was completely vindicated on all points, evidentiary and legal.
In that decision, the Honorable Judge Keith Spaeth from the Butler County Common Pleas Court found “an appalling lack of fairness and due process” throughout the seven-day proceeding to which our client, Michelle Langdon was subjected. Among the due process violations were
failure to provide the client with the most basic notice of the alleged infractions,
a complete failure to ever define “conduct unbecoming” (the basic charge against her), and
a failure to name her accusers.
To the Ohio Department of Education, fundamental fairness and notice of the charges filed apparently are simply an unneeded inconvenience.
The case was filled with amazing parrys and thrusts to force bureaucratic conformity in the cozy Lakota School District bureaucracy.
For example, when a teacher’s aide was repeatedly late, absent and lazy on the job, our client hurt her feelings by saying “I just want you to do your job.” As hard as it may be to believe, this fact pattern was one of the dozens of charges — in challenging the inertia of the educational bureaucracy — against which our client had to defend.
Our client also confronted an administrator in the Lakota Schools for her failure to properly equip the classroom with the furniture and equipment needed for a special needs population. Yes, advocating forcefully for special needs children is the basis for revoking of a teacher’s license according to the Ohio Department of Education.
The Court even cited in its opinion the Hearing Examiner’s strange rulings on procedural and due process issues and the lateness of his decision outside of the statutorily-permitted deadline. Virtually everything about the administrative proceeding was unfortunate and Kafkaesque. This Judge Spaeth clearly understood.
You may read Judge Spaeth’s brilliant decision here. You may read the Finney Law Firm’s briefs before the Common Pleas Court here and here.
This case was a pleasure defending, and the client was a delight.
This is from Judge Sapeth’s decision about our client:
What the evidence and testimony from the administrative hearing does show is that Appellant was a dedicated, caring educator…She was an advocate for these children, and throughout her tenure at Lakota, Appellant went above and beyond the normal duties of a classroom teacher to ensure that her students had a genuine high school experience and resources to help them transition from the classroom to independent living.
We truly were thrilled to help “Make a Difference” for this client in this engagement. The proceeding was important to her license and career, but the bigger principle of reining in an out-of-control state agency was even more important. And here that principle was vindicated.
We now look forward to the expeditious restoration of our client’s teaching licenses and an award of her attorneys fees for forcing her to endure this persecution, which state statute requires.
As discussed here, Ohio’s legislature has amended the law to reflect the changes in commercial finance involved in sale and leaseback transactions. Simply put, a sale and leaseback involves the sale of commercial real estate at a higher than market value with the seller then leasing back that property at an above market rate lease commensurate with the sale price. The excess of the sale price is used to finance the purchase of the business who originally owned the real estate.
Consider this hypothetical: ABC Restaurant Co. is being purchased by XYZ private equity firm, XYZ arranges to sell ABC’s real estate to 123 Financing company for approximately three times its actual value and use the difference to purchase all of the shares of ABC Restaurant Co. stock, XYZ (now the sole shareholder of ABC) then enters into a 20 year lease for that same real estate back with 123 for an annual rent that is 7% of the sale price (with scheduled increases over the life of the lease).
The pricing of the real estate is based on the income the restaurant operations throws off, it has no relation to the actual value of the property as real estate. At the end of the lease, 123 Financing Co. still owns the real estate and has collected roughly 150% of its purchase price in lease payments.
Under the prior law, the county auditor would automatically adopt that inflated sale price as the “true value” and the property taxes on the restaurant would triple or more.
Under the new law, the auditor should disregard the sale price and determine the “true value” of the property “as if unencumbered” that is as if it was not subject to the non-market based lease. The result should be that the properties’ values remain roughly the same as they were before the sale and leaseback transaction.
Some County Auditors and Boards of Revision, and the Ohio Board of Tax Appeals itself, have thus far been unwilling to appreciate the magnitude of the change in the law and continue to value sale and leaseback properties using the old method. The Ohio Supreme Court has an opportunity to clarify the law for Ohio’s businesses and tax officials.
Oral argument will be held in the Terraza 8 case on April 5, 2017 and in the State Farm case on May 3, 2017. Finney Law Firm will continue to provide updates on these important cases.
You are an investor buying and renting residential real property. And, yes, the Ohio legislature has decided that you do not have enough paperwork to handle already!
O.R.C. Chapter 5323, enacted ten years ago, requires registration of residential real property with the County Auditor by its owner.
The rule applies only in urban counties, counties with more than 200,000 in population. Presently, qualifying counties are: Butler, Cuyahoga, Franklin, Hamilton, Lake, Lorain, Lucas, Mahoning, Montgomery, Summit, Lorain, and Trumbull.
Once your property is registered, there is no need to re-file annually, and there is no fee for the filing.
For properties with co-owners, only one of them is required to file. The filing is required within 60 days following the day a real property conveyance form for that property is filed with the county auditor. The fine for failure to timely file the form is up to $150.00. against the property that is the subject of the violation.
The Hamilton County form, on which multiple properties can be listed at once, is linked here.
I receive a lot of inquiries from clients about the enforceability of non-compete agreements. For reasons that have never been clear to me, there seems to be a common belief that such agreements are “not worth the paper they are printed on.”
A non-compete agreement is a contract between an employer and one of its employees, stating that the employee will not work for a competing employer for a period of time – most commonly a year – after their employment with the contracting employer ends. These agreements often will also contain provisions against soliciting the employer’s customers (“non-solicitation”) and using the employer’s confidential information or trade secrets (“confidentiality”).
Historically, non-compete agreements were disfavored in the law as a restraint of trade. And some states – such as California – today have sharp restrictions against them.
In Ohio and many other states, however, non-compete agreements are alive and well, and are enforced in courts with regularity. Ohio has even held that a non-compete agreement may be enforceable when the employee doesn’t receive anything from the employer in exchange for signing it – what the law calls “consideration.” The Ohio Supreme Court has ruled that an employee’s continued employment alone can be sufficient consideration for an employee’s promise not to compete.
Many clients will point out that their former employer has not enforced non-compete agreements signed by other employees, and ask whether that doesn’t prevent the employer from trying to enforce one against them? The answer is “no.” Just because an employer chose not to bother enforcing a similar agreement against another employee does not prohibit it from enforcing it against you.
The law does recognize some defenses to non-compete agreements, and does impose certain limitations on them. Employers who want to protect their customers from former employees should seek competent legal counsel to draft enforceable agreements. And employees facing claims by former employers that they are in violation of such agreements should do the same.
Most importantly, employers and employees should get counsel about these agreements BEFORE the employee leaves the job. Employers: Make sure your agreements are enforceable BEFORE you present them to your key employees. Employees: Talk to a lawyer when you are PRESENTED with one of these agreements – don’t wait until after you’ve already signed it, or after you’ve left your current employer for a competitor.
The Family and Medical Leave Act (FMLA), passed in 1993, is a federal law that requires employers with 50 or more employees to provide up to 12 weeks of leave per year to eligible employees for the birth of a child, a serious health condition, or the care of a family member with a serious health condition.
The leave required by the federal law is unpaid, and it only applies to larger employers. But Congress provided that states may pass their own leave laws that are more generous than what is required by the federal statute.
Several states have done exactly that. (Ohio is not yet among them.) Some states, for instance, apply the leave requirement to smaller employers than those covered by the federal act. And a few states (California, New Jersey and Rhode Island) have passed laws that require at least certain types of leave to be PAID – something which is not included in any part of the federal FMLA.
New York will also have a paid leave law in 2018, and the District of Columbia city council just passed a paid leave law that is more generous to employees than the laws of any of the states or the FMLA.
The trend definitely seems to be in favor of expanding employee leave protection, including making the leave paid instead of unpaid. During the recent presidential campaign, in fact, President-elect Trump proposed that pregnant employees receive up to six weeks of paid maternity leave after the birth of a child.
The Trump plan did not contain many specifics, and it remains to be seen if something like it will become federal law in the next four years. But employers and employees should both expect that the trend toward requiring paid leave will continue, both on the state and federal level.
I get a lot of calls from employees who reach out for legal help because they are or have been working in what they call a “hostile work environment.” Many of them have not been fired, and are still working in the environment. Others have quit because the environment had become too toxic. For all of them, work had become a very unpleasant or even miserable place. They reached the point where they dread (or dreaded) having to go.
Sometimes the employee’s dread comes from knowing they will likely experience unwanted sexual remarks or behavior or touching. Sometimes it comes from knowing they will likely be threatened, insulted, humiliated, or demeaned by a boss, or by one or more co-workers. Sometimes it comes from knowing they will be unfairly criticized or scrutinized, or blamed for things that are not their fault.
My heart always goes out to these clients. We spend so much of our time at work, and our jobs are a big part of who we are and how we feel about ourselves. If we are unhappy at work it is almost certain we will be unhappy in our lives.
Often, though, for a variety of reasons, people can’t just quit their jobs in these circumstances, even if their jobs have become a source of misery. They are caught in a terrible situation, and it can seem like there’s no way out. So many of them will reach out to a lawyer, hoping he or she can do something to fix this deeply unjust situation. Can’t a lawyer do something about their “hostile work environment”?
The answer to that – like a lot of questions in the law – is “it depends.” The term “hostile work environment” is used a lot. There are lots of news stories about people who filed or won legal cases because of a “hostile work environment”. But there is a lot of confusion about what that term actually means.
It surprises many people to learn that the law does not always protect people from a “hostile” work environment. It depends on what the motivation is behind the “hostility.” If an employee is being mistreated or harassed for reasons having something to with their sex or race – or certain other characteristics like their religion or national origin – then there are indeed legal protections against it.
But if the source of the hostility is something else there may not be a legal remedy for it. If, for instance, someone is being harassed at work just because their manager or co-worker is a jerk, or because the manager or co-worker is simply an unreasonable, excessively demanding, or irrational person, or because of a “personality conflict” with them, often there is not a legal solution to the problem, Many times the only things the victim of this kind of harassment can do is either try to resolve the problem through internal channels – like going to HR – or to find another job. This can be very hard for people to understand when they have worked hard, and have done nothing to deserve the harassment and mistreatment they are being subjected to.
The problem of a hostile work environment, as you can see, can be a complex and tricky one for the employee. Having good and experienced legal counsel can be invaluable in resolving the situation in the best way possible.
