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- On August 22, 2014, the Sixth District Court of Appeals affirmed on all counts a Williams County probate court’s September 2012 decision in favor of PNC Bank, National Association against successor trustee and beneficiaries’ various breach-of-fiduciary-duty claims. The decision in Newcomer v. National City Bank, (2014-Ohio-3619; 2007 Ohio App. LEXIS 6365 (Ohio App. 6th Dist.)) provides critical guidance for Ohio trustees on four key points of law.
- Today, anyone who wants to cause damage to a business can easily do so simply by going online and harming them in one of many different ways. Online attacks on businesses and their professionals may originate from a number of parties, including business competitors.
- Selecting a name or brand for a new product or service involves multiple considerations, some of which are not obvious at first and can haunt the company later. Marketing teams struggle with choosing a name that balances the right message and image to attract the target consumers while informing those consumers of the benefits and functions of the new product or service. During this process it is easy to forget that brands are valuable assets and protectable property under trademark law. Trademarks are the public face of a product or company and hold the reputation and goodwill of the company, typically for many years and even generations. Thus, it is important to select the strongest trademarks to lay a strong foundation for a long-term asset. Following are five considerations, beyond the marketing concerns, to assist in selecting a strong new brand.
- Labor and Employment Alert: President Obama Adds Sexual Orientation and Gender Identity to Protected Categories for Government ContractorsPresident Obama has signed yet another executive order changing the rules of the road for government contractors. Following on the heels of executive orders regarding minimum wage, compensation discrimination, and discussion of wages, the most recent executive action prohibits government contractors from discriminating against individuals on the basis of sexual orientation or gender identity. The president signed this executive order on July 21, 2014. It amends Executive Order 11246, the law setting forth affirmative action requirements for covered federal contractors and subcontractors.
- Perhaps as many as 200,000 Ohio employers are eligible to participate in a $420 million refund program but they must apply for a refund by September 22, 2014. Eligible employers have paid premium to the Bureau of Workers’ Compensation between 2001-2008, not been “group rated” during all of that time and paid their premium based on certain “manual classifications.”
- Client Alert: Brown v. Tellermate Holdings, Ltd.; Confirming that Candor and Communication are Keys to DiscoveryAs reflected in the recent decision by the United States District Court for the Southern District of Ohio in Brown v. Tellermate Holdings, Ltd., communication and candor are key components of modern discovery. Indeed, the Brown decision emphasizes that, not only do attorneys have an affirmative obligation to speak to the key players related to the matter being litigated so that counsel and client together can identify, preserve, and search the sources of discoverable information, but doing so is necessary for effective advocacy.
- Labor and Employment Alert: EEOC Issues New Controversial Enforcement Guidance on Pregnancy DiscriminationThe Equal Employment Opportunity Commission (EEOC) recently issued its first enforcement guidance on pregnancy discrimination since 1983. The new guidance was approved by a 3-to-2 vote of commissioners. The dissenting commissioners issued public statements questioning the majority’s decision to issue the guidance without first making it available for public comment, criticizing the majority’s interpretation of the law, and questioning the timing of the enforcement guidance given that the United States Supreme Court is scheduled to address issues covered in the guidance next term in Young v. United Parcel Service, Inc.
- Two federal appeals courts ruled yesterday on a key provision of the Affordable Care Act (ACA) – and reached opposite conclusions. At issue is the component of the ACA that allows individuals who earn between 100% – 400% of the federal poverty level (FPL), or $11,670 and $46,680 for an individual, to be eligible to receive a subsidy to purchase insurance in a Health Insurance Marketplace
- Health Care Alert: Expansion of Payment for Some Mental Health Telemedicine Services under Medicare Part BEach year, Medicare makes additions and deletions to its annual physician fee schedule (PFS). Medicare recently released a proposed rule for calendar year 2015 which includes an expansion of some telemedicine health services. Under the proposed rule, Medicare will expand payment for certain mental health and medical services that are furnished via telemedicine.
- Client Alert: Ohio Appellate Court Interprets OTC and UPOAA; Allows New Claim for Treble Damages by Vested BeneficiariesOn July 3, the Second District Court of Appeals issued an opinion in Cartwright v. Batner, 2014-Ohio-2995 (Ohio App. 2 Dist.), which interprets both the Ohio Trust Code and Ohio’s Uniform Power of Attorney Act, recognizes a new claim for treble damages by vested beneficiaries, and provides guidance on a variety of issues important to estate planners, fiduciaries, beneficiaries and those who represent them.
- Labor and Employment Alert: In Dudenhoeffer, Supreme Court Takes a Bite Out of the Moench Presumption of PrudenceIn a unanimous decision that was a surprise to most in the benefits community, the Supreme Court, in Fifth Third Bancorp v. Dudenhoeffer, rejected the commonly accepted rule that fiduciaries of employee stock ownership plans (ESOPs) are entitled to a “presumption of prudence” in connection with their decision to buy or hold employer stock.
- Earlier this month, federal banking regulators finalized their December 2013 guidance on Income Tax Allocation Agreements. This guidance confirms that all financial institutions should have in place an appropriate tax sharing agreement not just for federal and state income taxes but also for the Ohio Financial Institutions Tax (FIT).
- Whistleblower Defense Alert: D.C. Circuit Grants Writ of Mandamus and Protects Privilege of Internal Corporate InvestigationsLast week, the D.C. Circuit provided good news to defense contractors, health care providers and all other corporate entities doing business with the government. In a forceful opinion, the court overruled a trial court decision that portended disastrous consequences for privileged internal investigations by corporate legal departments.
- Whistleblower Defense Alert: The Supreme Court Will Review Fourth Circuit Decision that Weakened the False Claims Act’s Statute of Limitations and First-to-File BarToday, the Supreme Court granted the petition for certiorari in Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter. The petition presented two questions: (1) whether the Wartime Suspension of Limitations Act (WSLA) applies to claims of civil fraud brought by qui tam relators, and (2) whether the False Claims Act’s (FCA) first-to-file rule is an absolute bar or whether it permits subsequent actions so long as the first-filed action had been dismissed on non-merits grounds prior to filing of the subsequent action.
- Substitute House Bill Number 117 (Ohio’s Captive Legislation) will become effective mid-September 2014. Ohio’s Captive Legislation creates a regulatory scheme that permits the formation in Ohio of pure captives (a captive that insures only the risks of its parent and affiliates), protected cell captives (a captive that is made up of separate segregated cells that each contain their own assets and liabilities) and a special purpose financial captive. This alert will focus only on pure captives, but we are available to answer any questions you may have regarding protected cell captives and special purpose financial captives.
- On June 20, Florida’s governor signed into law a replacement to its former breach notification statute, called the Florida Information Protection Act of 2014. This law is going into effect very quickly (July 1, 2014), and will be one of the most robust breach notification laws in the country. The Florida law did not necessarily break new ground, but it incorporated into one law many of the recent trends that have been passed in other states.
- The Federal Trade Commission mandates that material connections between endorsers and advertisers be disclosed. Yet there are countless misleading review websites out there, masking payments received in exchange for positive publicity.
- The Third Circuit’s recent decision in U.S. ex rel. Foglia v. Renal Ventures Mgmt., LLC, 2014 U.S. App. Lexis 10549 (3d. Cir. June 6, 2014), evens the circuit split regarding whether a FCA plaintiff must identify at least one representative false claim before being granted a ticket to discovery—a troubling development for anyone who does business with the federal government and therefore runs the risk of dealing with an FCA lawsuit.
- State and Local Tax Alert: Governor Kasich Signs Mid Biennium Budget Bill and Legislation with Additional Tax ChangesOn June 16, 2014, Governor Kasich signed Substitute House Bill 483 (HB 483), the primary mid-biennial review bill for the current State biennium, and amended Substitute House Bill 492 (HB 492), which includes several tax law changes. The most significant tax law changes contained in HB 483 and HB 492 are described in this Alert.
- Company reputations today are largely dictated by what is posted on the internet, both about the companies themselves and their executives. Gone are the days where reputation is based on building up and maintaining goodwill with consumers over time.
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