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- The Paid Family Leave Law (PFLL) becomes effective on July 1, 2019, with paid leave benefits beginning on January 1, 2021.
- Daren Garcia, a partner and co-chair of the Vorys eControl group, authored an article for Digital Commerce 360 titled “How to Ensure MAP Compliance Across Online Marketplaces.”
- On May 30, 2019, JPMorgan Chase agreed to pay $5 million to settle a class action lawsuit brought by male employees who requested paternity leave under company policy and were granted less leave than their female counterparts.
- Last week Nevada amended its law that governs online privacy policy disclosures to now give Nevada residents the right to opt out of the sale of certain personal information.
- Ohio’s health care industry will soon take on significant new obligations with respect to the management of hazardous pharmaceutical waste, pursuant to a federal rule being implemented by Ohio Environmental Protection Agency (EPA).
- Whether you’re planning early for your child’s future or contemplating how your youngest grandchild’s education will be covered after you’re gone, there are several tax-favorable mechanisms for funding growing education expenses.
- Earlier this month, New Jersey joined a growing list of states which require companies to provide notification under their respective data breach laws where non-traditional personal informational is compromised.
- Rosemary Welsh, of counsel in the Vorys Cincinnati office, authored an article titled, “Ohio Implements Standard Authorization Form for Medical Records” for the May-June edition of the Cincinnati Bar Report.
- On May 17, 2019, the White House issued a Presidential Proclamation on imports of passenger vehicles (sedans, sport utility vehicles, crossover utility vehicles, minivans, and cargo vans) and light trucks and certain automobile parts (engines and engine parts, transmissions and powertrain parts, and electrical components).
- Governor Jay Inslee recently signed Substitute House Bill 1071, amending Washington’s data breach notification law.
- As expected, the Supreme Court has just resolved a circuit split over the statute of limitations for non-intervened False Claims Act cases by maximizing the time a relator has to file a complaint. The decision in Cochise Consultancy, Inc. v. United States ex rel. Hunt, No. 18-315 (May 13, 2019) will greatly expand a defendant’s time frame for potential FCA liability and lead to more cases involving faded recollections, costly document recovery, and potential damages for decades-old alleged fraud.
- On April 30, 2019, the U.S. Department of Health and Human Services (HHS) published a notification of enforcement discretion in the Federal Register revising the maximum annual penalty amounts for breaches under the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
- Jeff Heller, of counsel in the Vorys Houston office and a member of the labor and employment group, authored an article for Employment Law360 titled "What To Expect From New EEOC Pay Data Demands."
- On April 25, 2019, the United States District Court for the District of Columbia accepted a proposal from the EEOC that will require employers who are covered by the EEO-1 reporting requirements to submit supplemental data on employees’ pay segmented by sex, race, and ethnicity by September 30.
- In 1990, Congress enacted the Federal Debt Collection and Procedures Act. One feature of that law allows a federal court to issue a “writ of continuing garnishment” to access a convicted participant’s retirement plan benefits to satisfy a restitution order entered as part of the participant’s criminal sentencing.
- HR professionals know that conducting timely and effective internal investigations is vital in order for the company to make better decisions when facing contentious allegations.
- Dean Monske is the latest participant in our Q&A series with prominent economic developers across the country.
- Investors considering an investment intended to benefit from the federal Qualified Opportunity Zone (QOZ) program should also explore the availability of similar state programs.
- Through Vorys’ fourth annual Economic Development Incentives Conference – hosted in February – we welcomed more than 270 guests from three countries and seven states.
- On April 9, 2019, federal jurors in the Northern District of Texas returned a guilty verdict against seven doctors, surgeons, and health care executives accused of participating in a $200 million bribery and kickback scheme at Forest Park Medical Center (FPMC), a physician-owned hospital in Dallas.
- On April 12, 2019, the U.S. Environmental Protection Agency (USEPA) issued an interpretative statement concluding that all releases of pollutants from a point source to groundwater are excluded from the National Pollutant Discharge Elimination System (NPDES) permit program pursuant to Sections 301 and 402 of the Clean Water Act (Act). USEPA’s interpretative statement clarified that such discharges are excluded from NPDES permit requirements even where pollutants are conveyed to jurisdictional surface waters via groundwater.
- On March 13, 2019, the City of Cincinnati joined a growing number of states and municipalities that have passed laws prohibiting employers from inquiring into a job applicant’s salary history.
- Last month, the United States District Court for the Northern District of Illinois confronted a bank’s potential liability for false information obtained (and even allegedly encouraged) by bank employees in the processing of consumer loans.
- President Trump issued two Executive Orders (EO) on April 10, 2019 to expedite permitting and construction of primarily energy-related infrastructure projects.
- Generally, a trustee is required to provide certain information and accountings to the beneficiary of an irrevocable trust.
- Jackie Ford, a partner in the Vorys Houston office and a member of the labor and employment group, authored an article for Corporate Counsel titled "America’s Opioid Crisis: What Employers and Their Counsel Need to Know."
- The United States Court of Appeals for the Federal Circuit recently revisited the question of patent eligible subject matter under 35 U.S.C. § 101.
- Taxpayers seeking to contest the values established by the local assessor have a short time-to contest their new valuation.
- Since the last edition of The Evaluator, there have been several notable legislative developments and decisions from courts and tax boards in jurisdictions across the country.
- In a recent decision, the United States District Court for the District of Minnesota held that the Department of Justice (DOJ) can still dismiss a qui tam filed under the False Claims Act even after it has declined to intervene in the case.
- Vorys Partner Joe Brunner authored an article titled, “Data Breach Litigation: Defenses Against the Rising Tide” for the April 2019 edition of AHLA Connections.
- On April 3, 2019, the federal Food and Drug Administration (FDA) published a notice in the Federal Register (available in full here) announcing a public hearing and related comment period regarding stakeholders’ experience with products containing the cannabis derivative cannabidiol, popularly known as “CBD.”
- On March 26, 2019, the U.S. Senate Committee on Health, Education, Labor & Pensions held a hearing to evaluate a rule proposed by the Office of the National Coordinator for Health Information Technology ) to implement certain provisions of the 21st Century Cures Act (related to health information technology.
- On March 20, 2019, the U.S. Supreme Court decided Obduskey v. McCarthy & Holthus LLP, unanimously holding that a business engaged in nonjudicial foreclosure proceedings is not a “debt collector” under the Fair Debt Collection Practices Act (the “FDCPA”), except for the limited purpose of one section.
- The U.S. Supreme Court has vacated the Ninth Circuit’s decision approving a settlement between Google and a class of its users, based on unresolved questions regarding the users’ standing to bring their federal privacy claim.
- On March 18, 2019, New Jersey Governor Phil Murphy signed a bill into law that bars many types of non-disclosure agreements (NDAs) that arise in the employment arena.
- Is Your Bank’s Cybersecurity Program Adequate? If Not, Your Bank May be Subject to Negligence ClaimsDue to the evolving sophistication of criminals, security breaches continue to occur on a regular basis. When such breaches occur, the victims of breaches often look to the law to make them whole.
- Bankers, and lenders in particular, have enjoyed relatively broad opportunities for mobility between institutions for decades.
- Doctors, nurses, social workers, and first responders are the types of professionals thought of when it comes to reporting elder abuse.
- Being an Ohio-chartered bank or trust company, or institution-affiliated party of same (IAP), becomes a bit more comfortable with the addition of the new “bona fide error” protections of Ohio Sub. H.B. 489, effective March 20, 2019.
- Recent changes in stock prices, capital levels and loan demand for some institutions have created an increased interest in stock buybacks.
- On March 7, 2019, the U.S. Department of Labor (DOL) finally released its proposed rule to expand the overtime protections in the Fair Labor Standards Act (FLSA).
- The Sixth Circuit recently held that Baker Botts, L.L.P. v. ASARCO, L.L.C., 135 S. Ct. 2158 (2015) does not apply to contempt sanctions.
- Property taxes are frequently the largest non-productive expense incurred by property owners, and proactive management of this expense may result in increased profitability.
- Ryan Elliott, an attorney in the Vorys Columbus office, recently wrote an article for the Oil & Gas Association’s OOGA Bulletin titled, “The WOTUS Saga Continues.”
- OSHA recently issued a final rule eliminating the short-lived requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301.
- Andy Kaplan, a partner in the Cincinnati office, and Lauren Saunders, an associate in the Cincinnati office, co-authored an article for the Cincinnati Business Courier titled “What’s Trending in Employment Law.”
- The United States Court of Appeals for the Federal Circuit released a ruling earlier this month that affirmed a District Court decision that certain medical diagnostic claims of U.S. Patent No. 7,267,820 (the '820 patent) were invalid.
- Ohio recently added comprehensive cybersecurity requirements to its insurance laws through Substitute Senate Bill 273, which take effect on or about March 19, 2019.
- Is a surviving spouse responsible for her deceased spouse’s medical bills if the creditor did not properly submit a claim against his estate?
- Every six years the State of Ohio requires counties to reappraise real estate.
- Nate Lampley, the managing partner of the Vorys Cincinnati office, authored an op-ed for Corporate Counsel titled “The Diversity Discussion: Big Law Partner Shares His Experiences to Help Change the Norm.” T
- The U.S. DHS anticipates that the new procedures will result in granting more H-1B visas to beneficiaries with advanced degrees (U.S. master’s degree or higher), thus rewarding the “most-skilled and highest-paid” in support of the Buy American and Hire American Executive Order.
- On February 4, 2019, the Sixth Circuit Court of Appeals affirmed a lower court decision upholding the constitutionality of Ohio’s statutory unitization procedures.
- On February 6, 2019, the U.S. Department of Health and Human Services (HHS) published a proposed rule that would amend the “Discounts” safe harbor under the Anti-Kickback Statute and create two new safe harbors respectively protecting “Point-of-Sale Reductions in Price for Prescription Pharmaceutical Products” and “PBM Service Fees.”
- The EEOC recently announced that the filing deadline to submit the current EEO-1 has been extended to May 31, 2019. This one-time extension for the EEO-1 was due to the “partial lapse in appropriations” to the EEOC during the government shutdown
- Companies in Illinois that use or collect biometric information from customers or employees must take immediate steps to ensure that they are complying with BIPA given a recent Illinois Supreme Court finding.
- Massachusetts Governor Charlie Baker recently signed House Bill 4806, amending the state’s data breach notification law. In relevant part, the amendment expands the information that must be reported to Massachusetts regulators in connection with a data breach involving the personal information of Massachusetts residents, imposes new requirements on compromised entities, and adds some clarification to when entities are required to issue notice of a breach. These changes take effect on April 11, 2019.
- The start of a new year often brings new laws. Discussed below are several laws affecting Illinois employers that became effective on January 1.
- If you’ve recently updated your estate plan, there may be outstanding tasks that require your attention.
- As of January 1, 2019, Connecticut became one of the latest jurisdictions to prohibit employers from inquiring into applicants’ salary history.
- On December 19, 2018, then-Governor John Kasich signed Senate Bill 263, the Notary Public Modernization Act (the Act), which, among other things, will permit online notarizations beginning on September 18, 2019.
- Every six years the State of Ohio requires counties to reappraise real estate.
- Taxpayers seeking to contest real property tax values established by assessing jurisdictions across the country often have a short window of opportunity to contest their new valuation.
- In December 2018, Michigan enacted its Paid Medical Leave Act (PMLA), which becomes effective in March 2019.
- Due to the well-publicized impasse between President Trump and Congress, a partial government shutdown is currently in effect.
- Due to the well-publicized impasse between President Trump and Congress, a partial government shutdown is currently in effect. Approximately 25 percent of government functions are shut down.
- Suffolk County, New York, has become one of the latest jurisdictions to prohibit employers from asking applicants about their compensation history. The law becomes effective on June 30, 2019.
- Starting in 2018, an employer is no longer able to deduct the expense associated with “any parking” provided to employees on or near the workplace.
- Elisabeth Healey, an associate in Vorys Pittsburgh office and a member of the technology and intellectual property group, co-authored an article for the Intellectual Property Organization titled "Economics of Diversity."
- Massachusetts is one of 11 states that currently mandate removing criminal history questions from job applications for private employers. These states are California, Connecticut, Hawaii, Illinois, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, and Washington. At least 17 cities and counties across the country have also extended these requirements to private employers. The beginning of the new year is a good time for employers to review their hiring policies and procedures and what information they collect from applicants in this regard.
- The Ohio Supreme Court has done it again. It announced a sales and use tax decision two days after Christmas and a few days before New Year’s Eve. Great Lakes Bar Control, Inc. v. Testa (12‑27‑18), Slip Op. No. 2018‑Ohio‑5207. (The Court released its sales and use tax decision involving bobblehead dolls and the resale exemption the day before Thanksgiving.) Thus, in the spirit of holiday celebration, I again take pen in hand to write this alert.
- Every five years, Congress passes legislation that sets national agriculture, nutrition, conservation, and forestry policy. Significantly, the Farm Bill contains various provisions that will impact the agriculture industry.
- On December 18, 2018, the Securities and Exchange Commission (SEC) adopted a final rule implementing Section 955 of the Dodd-Frank Wall Street Reform and Consumer Protection Act which required the SEC to establish rules requiring companies to disclose whether their employees or directors are permitted to hedge the market value of equity securities granted as compensation to, or held by, employees or directors.
- Client Alert: 2018 “Farm Bill” Creates New Opportunities for Patients, Producers of Hemp-Derived CBDOn December 20, 2018, President Trump signed the Agricultural Improvement Act of 2018, popularly known as the “Farm Bill” of 2018, into law.
- For nearly 30 years, Ohio taxpayers have been searching for an “easy answer” to avoid sales tax on employment services. The recent decision by the Ohio Supreme Court in Seaton Corp. v. Testa may give some searchers hope.
- On December 14, 2018, a District Court in Texas held that the Affordable Care Act (ACA) is unconstitutional. Texas v. United States, No. 4:18-cv-00167 (N.D. Tex. 12/14/2018). While the case makes its way through the appeal process, group health plan sponsors should continue to comply with the ACA.
- On December 13, 2018, the Supreme Court of Ohio clarified the preservation of interests under the Ohio Marketable Title Act (OMTA).
- The Ohio Supreme Court issued a second sales tax decision involving the sale-for-resale exemption in as many weeks.
- On October 31, 2018, the Internal Revenue Service and the Department of the Treasury released proposed regulations under Section 956 of the Internal Revenue Code (Proposed Regulations) that, for certain U.S. corporate shareholders, generally undo the “deemed dividend” rules that have applied to foreign corporate subsidiaries for decades.
- The U.S. Court of Appeals for the Federal Circuit has once again held that a software innovation is eligible for patenting as a claimed improvement in computer functionality.
- On November 29, 2018, the IRS announced a 32-day extension of the deadline to distribute 2018 Form 1095-Cs to employees.
- On November 21, 2018, the Pennsylvania Supreme Court issued a far-reaching decision that “an employer has a legal duty to exercise reasonable care to safeguard its employees’ sensitive personal information stored by the employer on an internet-accessible computer system.”
- Vorys attorneys Tom Fusonie, Dan Shuey and Andrew Guran co-authored an article for Farm and Dairy titled “Nuisance Lawsuits May Threaten Livestock Farmers.”
- This holiday season, Ohio based professional sports teams have at least one tax reason for which they can give thanks. On the day before Thanksgiving, the Ohio Supreme Court announced its decision in Cincinnati Reds, LLC v. Testa (November 21, 2018), Slip Op. 2018 Ohio 4669.
- On November 19, 2018, Institutional Shareholder Services Inc. (ISS) released updates to its proxy voting guidelines for 2019 (2019 Updates).
- Earlier this month, Ohio legislation became effective that removes doubt as to the enforceability of electronic signatures, records, and contracts that are secured through blockchain technology. The amendment makes Ohio one of only a few states to expressly identify blockchain technology in its laws – positioning Ohio as a blockchain-friendly state for a technology, around which both regulatory and business uncertainty loom due to its infancy and breadth of potential applications.
- A Texas Court of Appeals recently ruled that the City of Austin’s paid sick leave law is unconstitutional under Texas law.
- The Tax Cuts and Jobs Act that was signed into law at the end of 2017 made sweeping changes to many laws affecting donors.
- New hardship distribution regulations have been proposed for 401(k) and 403(b) retirement plans. Clients will need to make decisions about what changes they want to adopt and when.
- One of the very first considerations in deciding to issue new capital or debt involves whether the issuing institution desires to conduct a “public” offering, or a “private placement” which qualifies for an exemption from registration with the United States Securities and Exchange Commission (SEC).
- With Ohio entering the medicinal marijuana age, bankers unfortunately continue to have no clear direction when it comes to banking marijuana-related businesses (MRBs).
- The 132nd Ohio General Assembly’s lame-duck session will run the day after the November 6 general election through the end of 2018.
- In a proposal reminiscent of the recent comprehensive changes to Ohio banking law that effectively eliminated legal differences between Ohio-chartered banks, savings banks, and savings and loans, the Office of the Comptroller of the Currency (OCC) on September 10, 2018, issued a proposal to enable federal savings associations (FSAs) with consolidated assets of $20B or less to, in effect, opt in to becoming full national banks with the same rights and privileges as national banks and subject to the same “…duties, restrictions, penalties, liabilities, conditions and limitations that apply to national banks.”
- Gone are the days of going on vacation to get away. As technology continues to advance, society has not only become increasingly dependent on the ability to remotely handle routine tasks, but also on the capability to deal with more complicated tasks such as reviewing and signing involved legal documents.
- In early 2015, the Office of the Comptroller of the Currency (OCC) took the regulatory lead in publishing a “whitepaper” discussing a number of areas where community banks might consider combining their efforts to share common expenses and resources between institutions in an effort to reduce overall operating expenses.
- Considering a headquarters relocation or the construction of a new facility? As you navigate seeking incentives for your projects, it is important to keep in mind that many of the public entities that you will be negotiating with are subject to various “sunshine laws” that could lead to public disclosure of your project before you are ready to have the information become public.
- On November 6, 2018, Missouri’s Medical Marijuana and Veteran Healthcare Services Initiative was adopted as an amendment to the state’s constitution by 65% of the voters. Missouri now joins 32 other states and the District of Columbia in legalizing medical marijuana.
- On November 6, 2018, Michigan became the first state in the Midwest to legalize recreational marijuana.
- This alert details results of the 2018 general election.
- Michigan becomes the most recent state to legalize the recreational use of marijuana with the passage of Proposal 18-1 on November 6, 2018.
- The Centers for Medicare and Medicaid Services (CMS) recently published two rules designed to promote the use of telehealth and remote patient monitoring (RPM) under the Medicare program.
- Recently, the Securities and Exchange Commission (SEC) imposed a $1 million penalty against Voya Financial Advisors, Inc. (VFA).
- Canada’s new mandatory breach-notification requirements in the Personal Information Protection and Electronic Documents Act (PIPEDA) take effect on November 1, 2018.
- On October 19, 2018, Treasury issued Proposed Regulations and a Revenue Ruling (together, the Guidance) which address many important QOZ questions, generally in a taxpayer favorable manner.
- Lisa Babish Forbes, a partner in the litigation group in the Vorys Cleveland office, authored an article in the September/October 2018 issue of the Probate Law Journal of Ohio titled, "Online Notaries Are Coming (And Why You Should Care)."
- With open enrollment approaching for many employers, we thought it might be helpful to provide a list of the various notices and disclosures generally required to be provided to participants around this time of year.
- Jessica Cunning, an associate in the Vorys Akron office, co-authored an article for The Voice, a publication of DRI.
- Jackie Ford, a partner in the Vorys Houston office, authored an article for Employment Law360 titled "How Employers Can Address Secret Workplace Recordings."
- In this Client Alert, we provide general information concerning the application of the Fair Labor Standards Act (FLSA) to agricultural employment.
- Effective October 1, 2018, the Centers for Medicare and Medicaid Services (CMS) implemented important changes to the Medicare Inpatient Prospective Payment System (IPPS) affecting the documentation of hospital inpatient admissions.
- The third piece of legislation that California recently enacted – Senate Bill 1300 – significantly expands employer liability under California’s Fair Employment and Housing Act (FEHA).
- Labor and Employment Alert: California Extends Mandatory Sexual Harassment Training to All EmployeesCalifornia law currently requires employers with 50 or more employees to provide at least two hours of prescribed training and education regarding sexual harassment, abusive conduct, and harassment based upon gender to all supervisory employees within six months of assuming a supervisory position and once every two years thereafter.
- In California, a court is prohibited from entering an order in a civil action that restricts disclosing this information and such a provision entered into on or after January 1, 2017, void as a matter of law and against public policy. Senate Bill 820 expands this prohibition.
- In May 2016, OSHA published a final rule that prohibited employers from retaliating against their employees for reporting work-related injuries or illnesses.
- Jay Kelly, a partner in the Vorys Cincinnati office, co-authored an article titled, “The Rules of The Road: Avoiding Ambiguity in Documenting Your Load” for 3PL Perspectives October 2018 edition.
- Roche Molecular Systems, Inc. v. Cepheid, No. 2017-1690 (Fed. Cir. Oct. 9, 2018) (Roche), marks yet another decision from the Federal Circuit affirming invalidity under 35 U.S.C. §101 of diagnostic claims.
- This week, the Department of Justice (DOJ) sent a letter to Congress reaffirming its stance that Title III of the Americans with Disabilities Act (ADA) applies to websites.
- Effective January 1, 2019, Illinois will become the ninth state to mandate that employers reimburse employees for expenses incurred in carrying out their job duties.
- In September 2018, in Northern Kentucky Area Development District v. Danielle Snyder, the Kentucky Supreme Court held that employers are not permitted to require employees to enter into an arbitration agreement as a condition of employment.
- Last year, in Doe v. University of Cincinnati, 872 F.3d 393 (6th Cir. 2017), the Sixth Circuit held that, when credibility is at issue, the Due Process Clause requires a public university to provide an accused student a hearing with an opportunity to conduct cross-examination.
- If your company has outstanding assessments or has paid federal civil penalties for Form W-2 compliance failures within the last two years, please call us.
- As we previously reported, New York State recently enacted expansive changes to its sexual harassment law.
- In E.I. DuPont de Nemours & Co. v. Synvina C.V., the Federal Circuit recently reversed a finding of non-obviousness in an inter partes review (IPR) decision issued by the USPTO Patent Trial and Appeal Board (board).
- Gone are the days of going on vacation to get away. As technology continues to advance, society has not only become increasingly dependent on the ability to remotely handle routine tasks, but also on the capability to deal with more complicated tasks such as reviewing and signing involved legal documents.
- Jeff Marks, a partner in the Vorys Cincinnati office, and Jeff Bieszczak, an associate in the Vorys Cleveland office, co-authored the feature article for the Cleveland Metropolitan Bar Association’s Bankruptcy and Commercial Law Section Newsletter Fall 2018 Edition
- Under the federal Fair Labor Standards Act (FLSA), employees who are covered by the act’s overtime provisions must receive overtime pay for hours worked over 40 in a workweek at a rate of not less than time and one-half their regular rate of pay.
- In a proposal reminiscent of the recent comprehensive changes to Ohio banking law that effectively eliminated legal differences between Ohio-chartered banks, savings banks, and savings and loans, the Office of the Comptroller of the Currency (OCC) on September 10, 2018, issued a proposal to enable federal savings associations (FSAs) with consolidated assets of $20B or less to, in effect, opt in to becoming full national banks with the same rights and privileges as national banks and subject to the same “…duties, restrictions, penalties, liabilities, conditions and limitations that apply to national banks.”
- The federal Fair Credit Reporting Act (FCRA) sets forth requirements for employers who obtain criminal background checks (consumer reports in FCRA parlance) on applicants or employees from third parties (referred to as consumer reporting agencies).
- On September 11, 2018, the Ohio Department of Health (ODH) published proposed revisions to the administrative rules establishing its approved Do-Not-Resuscitate (DNR) Order form and protocol.
- Illinois recently amended its Nursing Mothers in the Workplace Act to require employers to provide paid breaks for nursing mothers to express breastmilk.
- On August 29, 2018, House Speaker Pro Tempore Kirk Schuring introduced a bill (H.B. No. 727) to create a tax credit for investments in Qualified Opportunity Zones.
- A recent decision from the U.S. Court of Appeals for the Federal Circuit changes the landscape for defendants in patent infringement cases, and in certain circumstances may limit their ability to challenge a plaintiff’s patent using the inter partes review (IPR) proceeding established in 2012.
- Large companies are not the only businesses that have an obligation to protect their customers’ data.
- In August 2018, in Gaffers v. Kelly Services, Inc., the Sixth Circuit Court of Appeals upheld an arbitration agreement that required individual arbitration of claims under the federal Fair Labor Standards Act (FLSA).
- Delaware’s Discrimination in Employment Act was amended to address sexual harassment and to require training of employees and supervisors concerning sexual harassment and retaliation. The law takes effect on January 1, 2019.
- The New York City Human Rights Law (HRL) prohibits discrimination on the basis of age, citizenship, arrest or conviction record, caregiver status, color, credit history, disability, gender, gender identity, marital status, national origin, pregnancy, race, religion, salary history, sexual orientation, domestic violence victim status, unemployment status, or veteran or military status.
- Laura Geyer, a partner in the Vorys Washington, D.C. office, authored an article for Westlaw’s Intellectual Property Journal.
- After nearly a decade of work, On August 1, 2018, the Massachusetts Legislature enacted a far-reaching law that imposes substantive and procedural requirements for noncompetition agreements and prohibits their use for several classes of employees (notably, employees who are classified as non-exempt).
- On August 17, 2018, the Internal Revenue Service (IRS) published Private Letter Ruling 201833012, which directly addressed an employer’s ability to provide a student loan repayment benefit in its 401(k) plan.
- We previously wrote about the changes to 162(m) under the “Tax Cuts and Jobs Act” which significantly expanded the $1,000,000 deduction cap on compensation paid by publicly traded companies to certain executive officers.
- New rules effective for partnership taxable years beginning after December 31, 2017 dramatically alter the rights and obligations of partnerships (including LLCs treated as partnerships for tax purposes) and partners, in connection with IRS partnership audits and resulting tax assessments.
- Recently, there have been several notable decisions from courts and tax boards in jurisdictions across the country including Ohio, Illinois, Michigan, Colorado, Tennessee, Minnesota, Indiana and North Carolina. These decisions related to numerous real estate tax areas including exemptions and assessments.
- On August 3, Governor John Kasich signed Senate Bill 220, also known as the Ohio Data Protection Act.
- As recently as five years ago, third-party funding of litigation the United States was an anomaly.
- On July 31, 2018, the Centers for Medicare and Medicaid Services (CMS) published its proposed changes to the Medicare hospital outpatient prospective payment system (OPPS) and the Medicare ambulatory surgical center (ASC) payment system for calendar year 2019.
- Vorys attorneys Tom Fusonie, Suzanne Galyardt, and Jeff Miller co-authored an article for Ohio Farmer titled “Considerations When Faced With Eminent Domain.”
- Currently, to maintain or renew a United States trademark registration, the registrant must file a Declaration of Use stating the mark is in use in commerce in connection with each listed good or service in the registration.
- A U.S. House Subcommittee recently held a hearing to discuss potential reforms to the Medicaid 340B program. Although it remains unclear exactly what will come of these discussions, here are the top three changes 340B providers should watch for.
- On appeal from the Patent Trial and Appeal Board, the Federal Circuit affirmed-in-part and vacated-in-part the board’s decision in two related inter partes review (IPR) proceedings that Petitioner, Medtronic, Inc., failed to establish obviousness of the claims in U.S. Patent No. 7,670,358 (the ’358 Patent) and U.S. Patent No. 7,776,072 (the ’072 Patent). The Federal Circuit held that the board erred in concluding that a video and a binder containing relevant portions of certain slides, which were distributed at various programs in 2003, are not prior art on the grounds that the video and slides were not sufficiently accessible to the public. The Court asserted that the board failed to consider all of the relevant factors in determining whether or not the video and slides are a printed publication within the meaning of 35 USC § 102.
- California’s Fair Employment and Housing Act prohibits harassment and discrimination based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation and military and/or veteran status.
- Georgia law already requires drivers to exercise “due care” in operating motor vehicles and to not engage in any actions which district the driver from the vehicle’s safe operation.
- In the Summer 2018 edition of Development Incentives Quarterly, read our Top 10 most interesting facts about the Foxconn deal, read a recap of the Ohio Supreme Court decision on what takes priority – a TIF exemption or another exemption, and seven interesting things to know about the City of Columbus' proposed incentives policy.
- On June 26, 2018, voters in Oklahoma approved a ballot initiative to legalize medical marijuana (which remains illegal under federal law).
- In 2017, Foxconn Technology Group (Foxconn)[1] and the Wisconsin Economic Development Corporation (WEDC) reached agreement on one of the largest and most significant economic development projects in history.
- Yesterday, California enacted the California Consumer Privacy Act of 2018. The law imposes new regulations on the collection, use, and disclosure of consumers’ personal information that will significantly impact companies doing business in California.
- Earlier this year, the U.S. Department of Labor (DOL) issued “Fact Sheet #17S” on the applicability of the Fair Labor Standards Act’s (FLSA) minimum wage and overtime exemptions for jobs in colleges and universities.
- In 2009, Maine enacted the Maine Medical Use of Marijuana Act (MMUMA), permitting qualifying patients to use medical marijuana.
- Earlier this year, the City of Columbus announced it would be implementing a new incentives policy impacting residential post-1994 Community Reinvestment Areas (CRAs) in the city.
- Today the U.S. Supreme Court issued a decision in the closely watched case of Janus v. AFSCME. In a landmark ruling, the Court held that public sector employees cannot be forced to pay mandatory fees to a public sector union if they are not a member of the union.
- The U.S. Supreme Court reversed a Federal Circuit decision dealing with patent damages for lost sales in foreign jurisdictions. WesternGeco LLC v. Ion Geophysical Corp., 586 U.S. ____ (June 22, 2018), Case No. 16-1011 (Thomas J). The Court concluded that U.S. patent owners can get damages from overseas sales lost through infringement.
- On June 25, 2018, the federal Food and Drug Administration (FDA) approved the first drug derived from the cannabis sativa plant, commonly known as marijuana.
- Under the Washington Law Against Discrimination (WLAD), discrimination on the basis of a protected status such as race, national origin, sex, veteran or military status, sexual orientation or disability is prohibited.
- New Hampshire recently amended its laws against discrimination to prohibit discrimination based on gender identity.
- Maryland recently enacted the “Disclosing Sexual Harassment in the Workplace Act,” which becomes effective on October 1, 2018.
- Two important aspects of every tax increment financing (TIF) project in Ohio are (i) determining whether the TIF exemption or another exemption should take priority when two exemptions apply to the same property, and (ii) taking the steps necessary to implement the preferred priority.
- In December, the National Labor Relations Board (NLRB) established a new standard for determining the lawfulness of facially neutral employee handbook policies that “may” restrict the exercise of an employee’s NLRA rights.
- For those who follow such things, the press release, consent cease and desist order and official letters of reprimand published by the Federal Reserve Board on February 2, 2018, with respect to Wells Fargo & Company (Wells) and named directors (combined, the Wells Order) were highly unusual, and raise issues that should cause all bank directors significant pause.
- Sexual harassment is illegal. It has been illegal for a long time — over 40 years, in fact. It is, in other words, not new.
- While once virtually “unthinkable,” banks are now targeted for acquisition by credit unions with more and more frequency.
- Leveraged transactions, such as leveraged buyouts (LBO) and leveraged recapitalizations, carry the risk of being unwound in a later bankruptcy of the party that transferred assets (including granting liens) or incurred obligations in the transaction.
- The U.S. Equal Employment Opportunity Commission (EEOC) has demonstrated its increased focus on sexual harassment through its filing of seven lawsuits across the nation in the past week.
- Jennifer Dunsizer and Jay Kelly co-authored an article for the June 2018 edition of 3PLPerspectives.
- A newly filed collective action in Ohio federal court against an oil and gas company highlights the importance of wage-hour law compliance and the potential ramifications for failing to do so.
- The Federal Circuit recently addressed the importance of correctly naming all inventors on a patent application.
- On May 17, 2018, South Carolina’s Pregnancy Accommodations Act became effective. The state enacted the law “to combat pregnancy discrimination, promote public health, and ensure full and equal participation for women in the labor force by requiring employers to provide reasonable accommodations to employees for medical needs arising from pregnancy, childbirth, or related medical conditions.”
- Jackie Ford, a partner in the Vorys Houston office and a member of the labor and employment group, authored an article for the Houston Business Journal titled “How to Prepare and Protect Your Office From an Active Shooter.”
- California law requires that employees receive an itemized wage statement containing statutorily prescribed information. Wage statements that lack the required information or that are inaccurate subject the employer to penalties and potential liability under the state’s Private Attorney Generals Act.
- Karen Moore, of counsel in the Vorys Columbus office and a member of the probate and tax group, authored an article for Volume 28 of Ohio Probate Law Journal.
- Michigan’s Elliott-Larson Civil Rights Act prohibits discrimination “because of sex” and applies to all employers who employ at least one person.
- In a split 5-4 decision, the United States Supreme Court upheld workplace arbitration agreements that prohibit class and collective actions.
- On May 4, 2018, U.S. EPA released an updated draft audit program agreement that will be available to new owners of oil and natural gas exploration and production facilities.
- Taxpayers seeking to contest the values established by the auditor or county assessor have a short time-to contest their new valuation.
- Recently, there have been several notable decisions from courts and tax boards in jurisdictions across the country including Ohio, Indiana, California, Oregon, Minnesota, Wisconsin, Michigan and Arizona.
- The United States Patent and Trademark Office (the office) recently issued guidance on the impact of the Supreme Court’s recent decision SAS Institute Inc. v. Iancu on post-grant patent proceedings, specifically inter partes review.
- On April 23, 2018, the Department of Labor (DOL) published a second draft of a model form, the Disclosure Template, that a group health plan participant (or his or her representative) may use to request documentation of compliance with the Mental Health Parity and Addiction Equity Act (MHPAEA).
- To the consternation of employers, New Jersey has had a patchwork of 13 local paid sick leave ordinances.
- Less than two months after announcing a $50 reduction in the 2018 limit on HSA contributions for employees with family high deductible health plan coverage, the IRS backtracked and reinstated the original limit.
- Washington recently enacted the “Fair Chance Act” and in doing so joined the expanding list of state and local jurisdictions to “ban-the-box” and limit employer access to a prospective employee’s criminal record.
- The U.S. Department of the Treasury (Treasury) and the Internal Revenue Service (IRS) updated the list of designated Qualified Opportunity Zones on their website to include the designation of 320 Qualified Opportunity Zones in the state of Ohio, as well as additional Qualified Opportunity Zones in Alabama, Delaware, Missouri, Texas and the Northern Marianas Islands.
- The Tax Cuts and Jobs Act (the Act) was signed into law on December 22, 2017 and made sweeping changes to many laws affecting tax-exempt organizations.
- On April 12, 2018, New York Governor Andrew Cuomo signed the state’s 2018-2019 budget bill, which includes sweeping changes to the state’s sexual harassment law.
- The Sixth Circuit Court of Appeals (with jurisdiction over Kentucky, Michigan, Ohio and Tennessee) recently held that Title VII of the Civil Rights Act protects transgendered (or transitioning) status.
- On April 9, 2018, the Ninth Circuit Court of Appeals held that prior salary, either alone or in combination with other factors, cannot justify a wage differential between male and female employees.
- Family office investment vehicles often are organized as limited partnerships or LLCs treated as partnerships for federal income tax purposes.
- West Virginia law allows property owners and employers to prohibit carrying firearms on any property “under his or her domain,” which previously included parking lots.
- New Jersey recently enacted the “Diane B. Allen Equal Pay Act” to significantly expand the New Jersey Law Against Discrimination (LAD) with respect to pay equity.
- In Briggs v. Southwestern Energy Production Co. (Apr. 2, 2018), the Superior Court of Pennsylvania held that trespass and conversion claims concerning hydraulic fracturing were not precluded by the rule of capture.
- Intellectual property (IP) attorneys (both in-house and outside counsel) are increasingly turning to outsourcing and offshoring to complete many patent-related tasks, such as prior art searches, patent drafting, formalizing patent drawings, and general patent prosecution.
- Vorys Partners Carey Jordan and Jeremy Harrison co-authored an article for the April 2018 edition of Texas Lawyer titled “Intelligently Managing Company Patent Spend.”
- The United States Supreme Court denied a petition for a writ of certiorari last month in CareFirst, Inc. v. Attias permitting a data breach class action to proceed against a medical insurer.
- The Public Utilities Commission of Ohio (PUCO) recently rolled out a new system, called the “PUCO Community,” that must be used for submitting annual reports and eventually it will have additional uses.
- Chris Chung is the next participant in our Q&A series with prominent economic developers across the country.
- This article is the first of a series intended to provide developers with an overview of the life cycle of New Markets Tax Credit (NMTC) transactions.
- Vorys third annual Economic Development Incentives Conference – hosted in February – welcomed more than 160 guests from several states across the country.
- In the Spring 2018 edition of Development Incentives Quarterly, read a Q&A with Chris Chung, CEO of North Carolina’s Economic Development Partnership; learn about strategies for successfully obtaining New Market Tax Credit financing; and see a recap of Vorys’ 2018 Economic Development Incentives Conference.
- Last summer the Ohio General Assembly passed Ohio’s biennial budget and, in connection with doing so, expanded the Ohio Department of Taxation’s authority relative to the state’s processing of liquor license renewals and transfers.
- For California employers, no good deed goes unpunished. Dart Container Corporation paid its employees, in addition to their normal hourly wage, a flat sum $15 attendance bonus if they were scheduled to work on a Saturday or Sunday.
- In addressing issues of subject matter eligibility, the Federal Circuit recently reached a potentially momentous decision in Berkheimer v. HP, Inc.
- The U.S. Department of Labor’s Wage and Hour Division (WHD) recently announced a pilot program to encourage employers to self-report their wage-hour violations.
- The Federal Trade Commission (FTC) has announced a settlement with PayPal, Inc., operating as Venmo, over alleged violations of the Federal Trade Act and the Gramm-Leach-Bliley Act (GLBA).
- The Tax Cuts and Jobs Act changed the indexing of numerous dollar amounts under the Internal Revenue Code effective in 2018.
- Taxpayers seeking to contest the values established by the auditor or county assessor have a short time-to contest their new valuation.
- Property tax decisions of interest from around the country from January and February 2018.
- The U.S. Court of Appeals for the Federal Circuit recently addressed IP assignment clauses in employment agreements.
- Effective June 2018, Kansas City, Missouri, and Spokane, Washington, will become the latest cities to have ban-the-box laws for private employers.
- Now that March is here we want to take a moment to remind you that MARCH MADNESS is a registered trademark of the National Collegiate Athletic Association (NCAA).
- On February 26, 2018, the Second Circuit Court of Appeals held that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act.
- On February 16, 2018, Austin, Texas became the latest jurisdiction to adopt a paid sick leave ordinance.
- Carey Jordan and Jeremy Harrison, partners in the Vorys Houston office, authored an article for IP Law360 titled “Tips For Reassessing Company Patent Strategies.”
- While the prohibition on unfair or deceptive acts or practices in or affecting commerce (UDAPs) by financial institutions is not new, we have observed a noticeable uptick over the past few years in the number of alleged UDAPs cited by federal banking regulators in the course of examinations.
- With the current uptick in M&A activity, it is timely to revisit the concept of “confidential supervisory information” (CSI) and its impact on M&A as well as other matters.
- Deposit Account Control Agreements (DACAs) are too often given little thought by a depository institution that signs them.
- As part of federal tax reform, Congress created a new program to encourage investment in businesses that are located in low-income communities that are designated as “Qualified Opportunity Zones.” This program creates a new potential source of capital for businesses and real estate developments located in Qualified Opportunity Zones, while at the same time creating a new tax benefit for investors seeking to reduce their tax burden on taxable asset dispositions.
- The U.S. Court of Appeals for the Federal Circuit recently opened the door to reviewing one aspect of decisions to institute Inter Partes Review (IPR) under the America Invest Act (AIA).
- The Bipartisan Budget Act of 2018 (the act), signed into law by President Trump on February 9, 2018 includes provisions that more than double the penalties to which health care providers may be subject under the federal health care fraud and abuse laws.
- As part of federal tax reform, Congress created a new “Qualified Opportunity Zone” program to encourage investment in businesses that are located in low-income communities.
- This past October, in Amgen v. Sanofi (Fed. Cir. 2017), the Federal Circuit sent shivers down the spine of the biotechnology industry when it overturned a district court decision confirming the validity of two patents that claim antibodies for lowering cholesterol.
- The New York Court of Appeals (the state’s highest court) recently issued a potentially game-changing decision on pre-certification settlements in class actions.
- Columbus has implemented a new policy prohibiting businesses from benefiting from incentives granted and administered by Columbus for any year in which the business elects to file its Columbus net profits tax return with the Ohio Department of Taxation (the department).
- Lisa Pierce Reisz, a partner in the Vorys Columbus office and the current president of the Columbus Bar Association, drafted an article fpr the Columbus Bar Lawyers Quarterly Winter 2018 edition about community service.
- With immigration being a hot topic, California employers should be aware of legislation enacted in October 2017 that restricts their ability to cooperate with federal immigration officials.
- Effective July 1, 2018, adults who are 21 years and older will be allowed to cultivate, possess and consume marijuana in Vermont.
- Although the government has always had the authority to move to dismiss relator cases, it almost never does, to the great frustration of numerous defendants that have had to incur the costs and inconvenience of meritless False Claims Act (FCA) claims.
- If you have not looked at your estate plan recently, it’s time to do so.
- On January 25, 2018, U.S. EPA published a guidance document altering its long-standing position on major sources of hazardous air pollutants.
- On December 22, 2017, the PBGC issued final regulations that expand their acceptance of benefits for missing participants.
- While tax reform garnered much attention at the end of 2017, the IRS also released a proposal relating to donor-advised funds that will significantly impact donors and charities.
- As we previously reported, the Illinois Biometric Information Privacy Act (BIPA) requires individuals and companies to provide notice and obtain consent before collecting or using biometric data and then ensure the proper storage and disposal of that data.
- The State of Ohio requires counties to reappraise properties for tax purposes every six years and update those values in the middle of that cycle.
- The below legislation is currently pending or will be introduced soon.
- Ohio courts were busy in the month of December, issuing a number of opinions related to trust and estate planning and administration.
- At the beginning of each government fiscal year, which starts October 1, the U.S. Citizenship and Immigration Services (USCIS) makes available an allocation of new H-1B visas.
- In December 2017, the Ninth Circuit Court of Appeals joined the Second, Sixth and Eleventh Circuits in rejecting the U.S. Department of Labor’s (DOL) six-part test for determining whether interns are employees under the Fair Labor Standards Act.
- Maryland is now the eighth state (behind Arizona, California, Connecticut, Massachusetts, Oregon, Vermont and Washington) to require sick leave for employees.
- The Immigration Reform and Control Act of 1986 (IRCA), as amended by the Immigration Act of 1990, makes it unlawful for an employer to knowingly hire or continue to employ any person who is not authorized to work in the United States.
- The tax bill signed by the president on December 22, 2017, changed the rules for deducting settlement payments and attorney’s fees related to sexual harassment or sexual abuse claims.
- On April 18, 2017, President Trump signed an Executive Order titled, “Buy American and Hire American.”
- In February 2017, a jury in the Middle District of Florida found for a relator in an upcoding case against a nursing home operator, resulting in a total judgment of approximately $350 million.
- Vorys attorneys and co-leaders of the online seller enforcement group, Whitney Gibson and Daren Garcia, authored an article for TotalRetail titled “Four Steps to Stop Unauthorized Online Sales of Your Products.”
- Recently, the U.S. Court of Appeals for the Federal Circuit again took up the issue of liability for divided infringement, re-affirming its prior precedent and clarifying the requirements for holding an alleged infringer directly liable for a third party’s actions.
- The Bureau of Workers’ Compensation will no longer reimburse spinal fusion surgery unless the injured worker first satisfies a protocol, which among other things requires at least 60 days of conservative care for low back pain.
- After postponing the effective date of Obama-era regulations on claims and appeals for disability benefits, the Department of Labor announced on January 5, 2018 that it would allow the regulations to go into effect for claims filed after April 1, 2018.
- On December 22, 2017, tax reform became official. There were several changes in the final version, including renaming the “Tax Cuts and Jobs Act” to the “Act.” The Act will have significant impact on business. This alert focuses on the impact of the Act on employee compensation and benefits programs.
- Jackie Ford, a partner in the Vorys Houston office and a member of the labor and employment group, authored an article for Employment Law360 titled “Conducting Harassment Investigations with Outside Counsel.”
- Beginning in 2018, an individual taxpayer generally may deduct 20% of his or her share of “qualified business income” from a U.S. trade or business operated through a partnership (including an LLC treated as a partnership for federal income tax purposes), S corporation, or sole proprietorship (including an LLC treated as a disregarded entity for federal income tax purposes) (the QBI Deduction).
- Over the past year, various plaintiff-side law firms sent aggressive demand letters on behalf of activist organizations and individuals to financial institutions – typically community banks – asserting that the Americans with Disabilities Act (ADA) applies to websites.
- For some savvy patent owners, enforcing patent rights through European Union (EU) courts has been a valuable tool in their efforts to extract value from their patent portfolios, whether those strategies focus on market exclusivity or monetization.
- In a January 3, 2018 decision, the Supreme Court of Ohio held that Ohio does not recognize an implied covenant to explore further as a distinct implied covenant in oil and gas leases.
- As we begin the New Year, it’s time to re-visit and update your data incident response plan. Companies subject to the Payment Card Industry Data Security Standard (PCI-DSS) are required to do so to ensure compliance.
- The Tax Cuts and Jobs Act (the “Act”) was signed into law on December 22.
- Earlier this month, the National Labor Relations Board (NLRB) articulated a new standard for evaluating when a facially neutral workplace policy or rule would potentially interfere with rights protected by the National Labor Relations Act (NLRA). In doing so, the NLRB overruled its 2004 Lutheran Heritage Village-Livonia decision, which had held that employers violated the NLRA if their workplace rules could be “reasonably construed” by employees as prohibiting their exercise of protected rights.
- The Tax Cuts and Jobs Act (the “Act”) was signed into law on December 22. The Act brings about immediate, sweeping changes to the federal income tax laws, affecting businesses and business owners across all industries. Most provisions of the Act are effective for taxable years beginning after December 31, 2017. Certain provisions, however, are retroactive to September or November of 2017.
- On December 22, 2017, President Trump signed into law the Tax Cuts and Jobs Act of 2017 (referred to herein as TCJA or the Act). Although the most discussed provisions of the Act concern income tax changes, the new tax law also contains provisions that directly or indirectly affect estate planning.
- On December 22, 2017, the IRS announced a 30-day extension of the deadline to distribute 2017 Form 1095-Cs to employees.
- Tom Fusonie and Dan Shuey, attorneys in the Vorys Columbus office, co-authored an article for Franchising World titled “Four Questions to Consider When Construction Impacts Your Business.”
- Tom Szykowny and Anthony Spina, partners in the Vorys Columbus office, co-authored an article for the FORC Journal of Insurance Law and Regulation(Vol. 28 Edition 3 - Winter 2017) titled “Insurance Agents Held To Be Employees for ERISA Purposes.”
- Companies are increasingly turning to technology to track customers and employers. For example, employers use fingerprint readers as means of employee timekeeping.
- In today’s tumultuous global economy, in-house intellectual property (IP) attorneys and managers are tasked with effectively protecting company innovation while facing ever-dwindling budgets.
- David Edelstein, an associate in the Vorys Cincinnati office, authored an article for Environmental Law360 titled “Ohio's New Practical Approach To Waste Management.”
- The U.S. House and Senate have both passed tax reform proposals, which are currently being reconciled. These proposals will have significant impact on compensation and benefit programs.
- The ten-year anniversary of the last significant reform to Ohio’s eminent domain law presents an opportunity to revisit and reexamine the use of eminent domain law and its impact on Ohio’s farmers.
- Ohio will soon join Texas and New Jersey as the only states to regulate “paint and paint-related waste” as a Resource Conservation and Recovery Act (RCRA) universal waste instead of a hazardous waste.
- In February 2015, the United States Patent and Trademark Office (the office) solicited comments as to whether it should recognize privilege for U.S. patent agents and foreign attorneys or agents. Following the comment period, the office published a notice and final rule in the Federal Register on Nov. 7, 2017 (82 Fed. Reg. 214 at 51572) officially recognizing the privilege, effective December 7, 2017.
- Senate Bill 220, also known as the Data Protection Act, was recently introduced in the Ohio legislature.
- Joseph Mann, a partner in the Vorys Columbus office and a member of the tax group, authored an article for the OOGA Bulletin (the monthly publication of the Ohio Oil and Gas Association) titled “IRS Announces that Marginal Well Production Credits are Available for 2016 Natural Gas Production.”
- Last year, the federal Occupational Safety and Health Administration (OSHA) amended its recordkeeping rules related to workplace injuries and illnesses to require employers keeping those records to submit information to OSHA electronically.
- On November 16, 2017, Institutional Shareholder Services Inc. (ISS) released updates to its proxy voting guidelines for 2018 (2018 Updates). The 2018 Updates are effective for shareholder meetings on or after February 1, 2018. This alert summarizes the highlights of the 2018 Updates.
- The U.S. Tax Court recently determined that the IRS can re-examine the deceased spouse’s estate tax return that reported the unused exclusion, without regard to any statute of limitations.
- We asked Kenny McDonald, president and chief economic officer of Columbus 2020, to answer some questions regarding the organization, its upcoming initiatives and the evolving perception of Columbus.
- In order to claim Ohio Historic Preservation Tax Credits (OHPTCs) on a project, a taxpayer must first receive a tax credit certificate (certificate) from the Ohio Development Services Agency (ODSA).
- One of Illinois’ main economic development incentives is back. On September 18, 2017, Illinois Governor Bruce Rauner signed into law H.B. 162, which reinstates the Economic Development for a Growing Economy (EDGE) Tax Credit Program and extends the sunset date to June 30, 2022.
- In the Fall 2017 edition of Development Incentives Quarterly, read a Q&A with Kenny McDonald, president and chief economic officer of Columbus 2020; learn about how the new effective date for the Ohio historic preservation tax credit certificates could cause a delay in claiming credit; and learn more about what it mean now that Illinois was reinstated and revised the EDGE Tax Credit.
- The latest and growing trend for high net worth families involves the formation of a Family Office.
- Greg Russell, a partner in the Vorys Columbus office and the chair of the firm's energy subgroup, authored an article for the OOGA Bulletin titled "Legal Issues Facing Ohio Producers."
- Labor and Employment Alert: Finding Lost Participants, Annual Limit Update and Tax Bill ImplicationsWe have become aware that the Department of Labor (DOL) has started to take issue with the standard processes used by retirement plans to identify and locate lost participants in ongoing plans.
- Flooding often is caused by natural disasters. But unfortunately, past flood events have also been caused or worsened by federal, state and local governments’ actions or inactions.
- On November 2, 2017, the IRS updated FAQs 55-58 on the ACA employer pay or play penalties to explain how it intends to assess and collect 2015 penalties under Code Section 4980H.
- Jackie Ford, a partner in the Vorys Houston office and a member of the labor and employment group, authored an article titled “Will New Laws Change Your Employee Handbook?” for Texas Lawyer.
- Vorys Partner, Beth Weinewuth authored a article for the November/December issues of the Ohio Probate Law Journal titled "The Conflict: Representing Fiduciaries (Not the Estate?) after Cincinnati Bar Association v. Robertson."
- The California Fair Employment and Housing Act currently requires employers with 50 or more employees to provide all supervisory employees with at least two hours of training and education regarding sexual harassment and abusive conduct.
- On October 17, 2017, the European Union (EU) Working Party on The Protection of Individuals with Regard to the Processing of Personal Data (also referred to as the Article 29 Data Protection Working Party) released two draft guidance documents.
- California law generally prohibits an employer from asking applicants to disclose, or from using as a factor in determining any condition of employment, information concerning arrests or detentions not resulting in a conviction.
- On October 12, 2017, the Securities and Exchange Commission (SEC) proposed amendments to various items of Regulation S-K that are intended to (1) modernize and simplify certain disclosure requirements in Regulation S-K and related rules and forms and (2) improve the readability and navigability of disclosure documents and discourage repetition and disclosure of immaterial information.
- On October 12, 2017, California became the latest jurisdiction to prohibit employers from inquiring into applicants’ salary history.
- It is very satisfying to finally complete your estate plan. Looking over the binder containing copies of your Will, Trust(s), Power of Attorney and ancillary documents, you feel quite accomplished.
- “Together with all contents of said real estate.” It sounds straightforward. But what happens when the “real estate” is a farm and the “contents” in question include trucks and farm machinery?
- On September 29, 2017, the Fifth Circuit overturned a $664 million False Claims Act (FCA) judgment in U.S. ex rel. Harman v. Trinity Industries, Inc, Case No. 15-41172 (5th Cir). The court’s reasoning offers substantial ammunition to FCA defendants, and further demonstrates that courts really will enforce the strict materiality requirements outlined by the Supreme Court in Universal Health Servs., Inc. v. United States ex rel., Escobar, 136 S. Ct. 1989, 1995 (2016).
- Restrictive employment agreements such as non-compete and non-solicitation agreements are generally disfavored.
- Just recently, in Severson v. Heartland Woodcraft, the Seventh Circuit Court of Appeals completely rejected the EEOC’s position – “A multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.“
- Jackie Ford, a partner in the Vorys Houston office and a member of the labor and employment group, authored an article for the Houston Business Journal about the employee related issues companies face after natural disasters.
- The Kentucky Supreme Court recently held that Kentucky’s wage-hour law (Kentucky Revised Statutes §337.385) permits class actions for unpaid wages and overtime.
- On June 30, Governor Kasich signed Sub. H.B. 27, the BWC Budget Bill. As its title suggests, the legislation approved funding for the Ohio Bureau of Workers' Compensation (BWC).
- After years of anticipation, sponsors of 403(b) plans have finally received guidance from the IRS regarding preapproved 403(b) prototype and volume submitter documents.
- New York’s Paid Family Leave Law (PFLL) will provide employees with wage replacement while away from work in order to bond with a child, care for a close relative with a serious health condition, or help with family duties when someone is called to military service.
- Michael Vennum, of counsel in the Vorys Pittsburgh office, authored the Pennsylvania chapter for the 2017 edition of Hydraulic Fracturing Law and Practice.
- In August 2017, an Ohio federal court certified a class of 7,000 American Family Insurance agents who claimed they were misclassified as independent contractors.
- Some may say that it was only a matter of time. On September 7, 2017 Equifax, one of the country’s three main credit reporting agencies, reported that it has been hacked.
- Jeremy Harrison, a partner in the Vorys Houston office and a member of the intellectual property and technology group, authored an article for the Houston Business Journal titled “What Startups Should Know About Intellectual Property.”
- The Financial Crimes Enforcement Network (FinCEN) earlier this year issued a proposed rule to change certain data fields on its Suspicious Activity Report (SAR) form.
- Over the next several months many Ohio county auditors will complete the required six-year tax appraisal of all properties located in their counties.
- The move toward banking industry “disruption” and new “fintech” opportunities has resulted in a revisiting of the industrial loan company (ILC) charter- once a feared vehicle for expansion by Wal-Mart and others into the banking industry.
- The federal district court in Connecticut recently considered whether federal law prevents enforcing Connecticut’s Palliative Use of Marijuana Act (PUMA), which permits the use of medical marijuana for certain conditions.
- On August 31, 2017, the federal district court in Texas invalidated the U.S. Department of Labor’s (DOL) overtime rule.
- On August 29, 2017, the Office of Management and Budget (OMB) immediately halted the EEOC’s revisions to the EEO-1 form that were to take effect in March 2018.
- Ohio Governor John Kasich signed in June Am. Sub. House Bill 49, which allowed for the creation of transportation financing districts, a new economic development incentive.
- Several central Ohio auditors have recently released updated property appraisals used to determine property taxes to be paid over the next three years.
- The Missouri legislature recently enacted significant changes that raise the bar on proving discrimination and whistleblower claims; cap compensatory and punitive damage; eliminate individual liability for supervisors; and preempt local minimum wages. They become effective on August 28, 2017.
- The judge in a recent court case ordered the Equal Employment Opportunity Commission (EEOC) to develop the administrative record supporting rewards of up to 30% of the cost of health coverage for participation in wellness programs. If the EEOC is unable to defend the size of the reward, the EEOC may have to change its wellness program rules.
- The National Institute of Standards and Technology (NIST) recently released an updated draft of its Special Publication (SP) 800-53, Security and Privacy Controls for Information Systems and Organizations that sets forth cybersecurity guidance for securing devices and software commonly referred to as the “internet of things.” The draft represents NIST’s latest attempt to produce a unified information security framework for the federal government that is now also bleeding into the private sector.
- The Eighth District Court of Appeals surprised many Ohio practitioners this month by applying a fiduciary exception to the attorney-client privilege in Dueck v. The Clifton Club Company.
- Effective July 2017, Vermont joined the growing list of state and local jurisdictions to “ban-the-box” and limit employer access to a prospective employee’s criminal record. Eight other states (Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon and Rhode Island) have removed criminal history questions from job applications for private employers.
- Companies doing business in Delaware should be aware of a recent amendment to its cybersecurity and data breach notification law.
- Effective October 1, 2017, Connecticut employers will be required to provide reasonable accommodations to pregnant employees and job applicants. The new "Act Concerning Pregnant Women in the Workplace" generally requires an accommodation unless providing one would cause an undue hardship.
- One of the many reasons that clients consider trusts in their estate planning is to protect assets from the creditors of their beneficiaries.
- Earlier this month, the Department of Justice (DOJ) announced the creation of a new Opioid Fraud and Abuse Detection Unit.
- Congressmen Earl Blumenauer (D-OR) and Tim Murphy (R-PA) recently introduced the Overdose Prevention and Patient Safety Act (the act), a measure that would align the Confidentiality of Alcohol and Drug Abuse Patient Records regulations (42 C.F.R. Part 2) with the Health Insurance Portability and Accountability Act of 1996, as amended (HIPAA).
- The Bureau of Workers’ Compensation is considering a new rule to discourage the use of opioid medication and surgery for low back injuries in favor of conservative treatment.
- For years, pet owners have implanted RFID (radio frequency identification) microchips in their dogs and cats to help track the animals if they get lost.
- Delaware recently enacted a law prohibiting employers from inquiring into applicants’ salary histories. According to the legislation, “when employers ask prospective employees for their wage or salary history, it perpetuates disparities in pay based on gender from one job into another.”
- In the Summer 2017 edition of Development Incentives Quarterly, learn five more common TIF misconceptions, read about the growing pains municipalities are facing with GASB 77 and find out which Ohio county auditors will complete the required six-year tax appraisal of all properties located in their counties this year.
- In November 2016, New York City enacted the nation’s first “Freelance Isn’t Free Act” to establish and enhance protections for independent contractors.
- The Second and Eighth District Courts of Appeals demonstrate how difficult it is to establish undue influence.
- Massachusetts law already protects employees from discrimination on the basis of race, color, religious creed, national origin, sex, gender identity, sexual orientation, genetic information, ancestry and veteran status.
- Unfortunately, sometimes an employer needs to end an employment relationship. In many situations, it is in the best interests of the parties to enter into an agreement that defines the terms of the separation. Whether called a “separation agreement,” “severance agreement,” “retirement agreement” or any other name, the issues remain the same.
- The Governmental Accounting Standards Board (GASB) made waves in the economic development community in 2015 when it issued Statement No. 77 (GASB 77). GASB 77 requires governments, for the first time, to disclose in the notes of their financial statements the amount of tax revenues the government has promised to forego through tax abatements.
- Over the next several months, many Ohio county auditors will complete the required six-year tax appraisal of all properties located in their counties.
- In February 2016, the Equal Employment Opportunity Commission (EEOC) published revisions to its Employer Information Report (EEO-1) that are intended to “assist the agency in identifying possible pay discrimination and assist employers in promoting equal pay in their workplaces.”
- Under revisions to the Ohio Depository Act, the Ohio Treasurer of State has developed proposed rules and a new program for the pledging of pooled collateral for public deposits, referred to as the Ohio Pooled Collateral Program.
- On July 21, New Jersey Governor Chris Christie signed the “Personal Information and Privacy Protection Act.”
- In July 2017, the Massachusetts Supreme Judicial Court issued a landmark decision that medical marijuana users are entitled to reasonable accommodation and may pursue handicap discrimination claims under Massachusetts law.
- In July 2017, San Francisco joined New York City, Philadelphia, Delaware, Massachusetts, and Oregon in banning employers from asking applicants about their salary history.
- A recent decision by the Court of Appeals for the Ninth Appellate District illustrates Ohio courts’ reluctance in removing fiduciaries.
- Recently, the Federal Trade Commission (FTC) released its updated six-step compliance plan for businesses which may be subject to the Children’s Online Privacy Protection Act (COPPA).
- The Pennsylvania Files Act (PFA) requires an employer to permit an employee to inspect his or her personnel files used to determine the employee’s qualifications for employment, promotion, additional compensation, termination, or disciplinary action.
- Effective January 1, 2018, Nevada employers will be required to provide leaves of absence to employees who are victims of domestic violence or whose family or household members are domestic violence victims.
- Washington law requires that employees who work five consecutive hours receive a 30-minute meal break.
- Under the federal Fair Labor Standards Act tip-credit provision, employers may use an employee’s tips as a credit against the employee’s minimum wage.
- On June 22, 2017, the Ohio Supreme Court issued a decision overturning over a decade of case law that consistently found that a recent arm’s length sale was the best evidence of value for real property tax purposes regardless of the circumstances surrounding the sale.
- On June 22, 2017 the Ohio Supreme Court issued a decision overturning over a decade of case law that consistently found that a recent arm’s length sale was the best evidence of value for real property tax purposes regardless of the circumstances surrounding the sale.
- Jeremy Harrison, a partner in the Houston office, and Thomas Thrash, a patent agent in the Houston office, co-authored an article for IP Law360 Titled "Effective Utilization Of The Patent Prosecution Highway."
- Beth Weinewuth and Emily Pan co-authored an article for the July/August issues of the Ohio Probate Law Journal title, "To Engage or Not to Engage? Conflicts Analysis in Estate and Trust Administration."
- The Court of Appeals for the Third Appellate District recognized the strength of the presumption of undue influence in a will contest case, overturning an award of summary judgment because of the presumption. Sigler v. Burk, 2017-Ohio-5486, decided on June 26, 2017, demonstrates why, in drafting a will or trust, you should think carefully about any fiduciary role (or roles) assumed by the beneficiaries of the will or trust.
- The IRS has issued proposed regulations that implement the “centralized partnership audit regime” recently enacted by Congress.
- Labor and Employment Alert: New Philadelphia Regulations Permit Closing Businesses That DiscriminatePhiladelphia’s Fair Practices Ordinance already prohibits discrimination in public accommodation, employment, and housing because of age, ancestry, color, disability, domestic/sexual violence victim status, ethnicity, familiar status, gender identity, marital status, national origin, race, religion, sex and sexual orientation.
- On June 16, 2017, the Department of Labor (DOL) published a draft of a model form that an employee (or his or her representative) could use to request documentation of compliance with the Mental Health Parity and Addiction Equity Act (MHPAEA).
- Vorys attorneys Mark Vannatta and Suzanne Galyardt authored an article in the May/June 2017 edition of the Probate Law Journal of Ohio.
- California law already prohibits employers from using certain criminal history in hiring, discipline, termination and other employment decisions.
- The Second Circuit Court of Appeals provided a rare glimmer of hope to companies and courts inundated by the avalanche of the Telephone Consumer Protection Act (TCPA) litigation on June 22, in Reyes v. Lincoln Automotive Fin. Serv., No. 16-2104.
- On June 20, a federal jury sitting in the Northern District of California Ramirez v. TransUnion LLC case awarded a class of 8,185 consumers the largest to date Fair Credit Reporting Act (FCRA) verdict, consisting of $8 million in statutory damages and $52 million in punitive damages.
- California has long prohibited discrimination on the basis of sexual orientation, gender identity, and gender expression (such as appearance and behavior).
- This week a federal judge in Florida passed down one of the most historic ADA website accessibility decisions to date, finding that Winn-Dixie was liable under Title III of the ADA because its website was inaccessible.
- This week a federal judge in Florida passed down one of the most historic Americans with Disabilities Act (ADA) website accessibility decisions to date, finding that Winn-Dixie was liable under the ADA because its website was inaccessible.
- On July 1, 2017, a new policy change will go into effect that could have a significant impact on recipients of the Ohio Historic Preservation Tax Credit, O.R.C. § 149.311.
- Today, in a unanimous decision delivered by Justice Gorsuch, the U.S. Supreme Court ruled that companies that purchase and collect defaulted debts for their own accounts are not “debt collectors” subject to the Fair Debt Collection Practices Act (FDCPA or the act).
- Today, the U.S. Department of Labor (DOL) announced that it is withdrawing two Administrator’s Interpretations on joint employment and independent contractors that were issued under the Obama administration.
- Labor and Employment Alert: Oregon Adopts an Expansive Equal Pay Act That Prohibits Salary InquiriesRecently, Oregon enacted the Oregon Equal Pay Act of 2017. The act prohibits employers from inquiring into an applicant’s or employee’s salary history and expands the reach of the equal pay requirements.
- On May 30, 2017, New York City became the third city behind San Francisco and Seattle to prohibit the practice of “on-call scheduling” for retail employees.
- Contestants of an Ohio will must overcome a very high threshold to establish that a decedent was unduly influenced or lacked testamentary capacity. Young v. Bellamy, decided on May 24, 2017, provides a new example of just how difficult it is to overturn a will.
- Recently, the Ohio Legislature passed House Bill 432, which became effective on April 6, 2017.
- Angela Gibson and Colleen Devanney, partners in the Vorys Cincinnati office, co-authored an article titled “How Employers Should Address Speech in the Online World” for the ?Cincinnati Business Courier.
- California, like 48 other states, is an employment-at-will state (Montana is the sole exception). This means that employment without a specified term may be terminated at the will of either party. But the presumption of at-will employment can be overcome by the parties agreeing – either expressly or impliedly – to limit the employer’s termination rights.
- On May 24, 2017, the Congressional Budget Office (CBO) and the staff of the Joint Committee on Taxation (JCT) released their analysis of the American Health Care Act (AHCA).
- The Family and Medical Leave Act (FMLA) prohibits an employer from discriminating or retaliating against employees who have used FMLA leave.
- The Hamilton County Auditor recently mailed letters to all property owners notifying them of the 2017 new tentative values for their properties.
- The Ohio Workers’ Compensation system is a part of the opioid crisis in Ohio because injured workers have a very high level of opioid use.
- Each year, companies subject to the Payment Card Industry Data Security Standard (PCI-DSS) must review and update their incident response plans to ensure they are in proper compliance.
- The National Labor Relations Board (NLRB) recently found a regional fast-food chain’s uniform policy, which prohibited employees from wearing any type of buttons, pins or stickers not provided by the restaurant, to be in violation of NLRA Section 8(a)(1).
- As we reported previously, the federal Occupational Safety and Health Administration (OSHA) amended its recordkeeping rules related to workplace injuries and illnesses in May 2016 to require employers keeping such records to submit information to OSHA electronically.
- Cause marketing has become ubiquitous in bringing charities and for-profit companies together to mutually benefit each other and their communities. Cause marketing comes in many varieties. Sometimes a portion of sale proceeds is donated to charity, or other point-of-sale transactions permit customers at check-out to either donate a dollar or round-up their purchase to the next dollar with a donation. Campaigns often involve social media, and sometimes sharing or liking a message results in a corporate donation. An example of cause marketing is the Yoplait “Save Lids to Save Lives” campaign, in which Yoplait donates ten cents for every pink lid that is returned to it to support the Susan G. Komen Breast Cancer Foundation. Also, the Whole Foods Nickels for Nonprofits campaign allows customers to either receive or donate five cents for each reusable bag they provide.
- Effective July 1, 2017, Georgia’s employers will have to contend with a new paid sick leave law. But unlike other jurisdictions that impose paid sick leave mandates, Georgia’s law only applies to employers who already offer paid sick leave benefits to their employees.
- A federal court recently ordered an employer, WellStar Health System Inc., to pay $750,000.00 to a former employee’s widow for breaching its fiduciary duty in administering its group life insurance plan.
- Creditors of Ohio estates have little room for error under a decision handed down by the Supreme Court of Ohio on April 19, 2017.
- More and more, bankers are becoming familiar with the term “High Volatility Commercial Real Estate,” or HVCRE for short.
- The financial services industry has seemingly passed out of the dark shadows of the post-2008 “crisis” period. Now, the “Trump Effect,” as well as other factors, are influencing industry stock prices positively and generating a renewed interest in M&A and related matters in the financial services industry.
- In a continuing effort to alert our lender clients and other friends to developments in the bankruptcy, restructuring, workout and creditors’ rights space, provided below is a summary of recent noteworthy court decisions.
- West Virginia recently enacted the Safer Workplace Act to advance “the confidence of West Virginia workers that they are in safe workplaces ... by recognizing the right of West Virginia’s employers to require mandatory drug testing.”
- California’s Labor Code ensures employees a “day of rest” by providing that every employee “is entitled to one day‘s rest therefrom in seven" and that "no employer of labor shall cause his employees to work more than six days in seven."
- On May 1, 2017, the Third Circuit affirmed the dismissal of a False Claims Act (FCA) case in which the eelator had asserted that Genentech concealed information about side effects of its cancer drug, Avastin. U.S. ex rel. Petratos, v. Genentech Inc., et al., Case No. 15-3805 (3rd Cir. May 1, 2017).
- The Supreme Court ruled on Monday that cities have standing under the Fair Housing Act (FHA) to sue banks based on allegations of discriminatory lending practices that purportedly led to economic losses for the cities through lower tax revenues and increased demand for city services.
- The Occupational Safety and Health Administration (OSHA) no longer asserts that non-employee union representatives have the right to attend workplace safety inspections.
- Jonathan Ishee and Nita Garg, health care attorneys in the Vorys Houston office, co-authored an article for the Houston Business Journal’swebsite titled “Texas Senate Passes Bill Easing Restrictions on Telemedicine.”
- On April 26, 2017, the Ohio Fifth Appellate District rejected a rule of proportionality in awarding attorneys’ fees in trust litigation.
- Medical marijuana has been legal in Michigan since 2008, and more than 200,000 patients currently grow their own marijuana or obtain marijuana from 37,000 state-registered caregivers.
- On April 24, 2017, U.S. Attorney General Jeff Sessions announced that the Department of Justice (DOJ) will remain committed to enforcing laws relating to corporate misconduct and other white collar crime.
- Creditors of Ohio estates have little room for error under a decision handed down by the Supreme Court of Ohio on April 19, 2017.
- On April 19, 2017, West Virginia Governor Jim Justice signed Senate Bill 386 allowing the use of medical marijuana in the state. The law creates a medical cannabis commission that will adopt the necessary regulations for the state’s Bureau of Public Health to issue marijuana patient identification cards beginning on July 1, 2019. The bureau also will inspect medical marijuana business, process applications, and issue business licenses to a limited number of growers and dispensaries.
- Spurred by the “Fight for $15” slogan, cities and counties throughout the United States have enacted laws to increase the minimum wage paid to employees within their jurisdictions.
- On April 13, 2017, the Department of Health and Human Services (HHS) finalized a regulation intended to stabilize the Affordable Care Act (ACA) marketplaces by creating policies beneficial to the insurance industry.
- In November 2016, Maine voters (by just 50.17%) approved the state’s Marijuana Legalization Act.
- Eleven states currently limit employers' use of credit information in employment: California, Colorado, Connecticut, Delaware (which currently applies only to public employers), Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont and Washington.
- In this two-part series, we’ll cover the top 10 misconceptions associated with Ohio Tax Increment Financing (TIF).
- In order for a development project to be eligible for Ohio state historic preservation tax credits, the director of Ohio Development Services must make a specific award of tax credits to that project.
- In the Spring 2017 edition of Development Incentives Quarterly, learn five common TIF misconceptions, learn more about the two significant developments related to Ohio Historic Preservation Tax Credits that happened at the end of 2016 and read a recap of the Vorys Ohio Economic Development Incentives Conference.
- This week the New York City Council passed legislation (Int. No. 1253) to prohibit employers from inquiring into applicants’ salary history during the hiring process.
- Iona Kaiser, a partner in the Vorys Houston office, authored an article for Texas Lawyer about a recent case argued before the Texas Supreme Court related to non-compete agreements and geographical limitations.
- On April 5, 2017, President Trump signed the congressional resolution disapproving Occupational Safety and Health Administration’s (OSHA) rule, “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness,” generally referred to as the Volks rule.
- On April 4, 2017, the Seventh Circuit Court of Appeals held that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act.
- The People’s Republic of China has passed a new cybersecurity law that is set to take effect on June 1, 2017. While the law’s stated purpose is to fight hackers and is primarily aimed at internet companies, it has potentially far-reaching consequences for companies doing business in China.
- On March 27, 2017, President Trump signed the congressional resolution disapproving the so-called federal contractor “blacklisting” rules that require federal contractors to disclose labor law violations.
- On March 22, 2017, the SEC adopted an amendment to Exchange Act Rule 15c6-1(a) to shorten by one business day the standard settlement cycle for most broker-dealer securities transactions. Currently, the standard settlement cycle for these transactions is three business days (i.e., T+3). The amended rule shortens the settlement cycle to two business days (i.e., T+2).
- Connecticut uses a three-part test (the ABC test) to determine whether an individual is an employee or an independent contractor for purposes of the state unemployment compensation law.
- California law requires that most employees receive paid rest breaks for every four hours worked or major fraction thereof.
- On March 6, 2017, House Republicans released the American Health Care Act (AHCA), their plan to repeal and replace the Patient Protection and Affordable Care Act (ACA).
- Last week, the Tenth District Court of Appeals upheld summary judgment in favor of an institutional trustee where trust beneficiaries sued the trustee—after executing a release of the trustee for actions taken in administration of the trust— for negligence and breach of fiduciary duty.
- Picture this: your company operates a website which allows users to post material such as music, drawings, videos or photographs. One day your company receives a letter alleging copyright infringement and demanding a large sum of money from your company because one of those user-generated posts included copyright-protected materials without the owner’s authorization.
- Eve Stratton authored an op-ed for the Columbus Dispatch titled “Reforms Would Help Kids Turn Lives Around.”
- New York currently has no laws or regulations specifically addressing the use of payroll debit cards.
- On March 6, 2017, House Republicans released their proposed legislation (the proposal) to repeal and replace the Patient Protection and Affordable Care Act (ACA).
- Effective July 1, 2017, Seattle’s Secure Scheduling Ordinance requires certain large employers to establish predictable work schedules, involve their employees in scheduling practices, and ensure that employees may obtain additional hours of work before new employees are hired.
- This year has already witnessed two large-scale political protests – the Women’s March on January 21 and “A Day Without Immigrants” on February 17.
- The U.S. Citizenship and Immigration Services (USCIS) has announced that it will temporarily suspend Premium Processing (which guarantees adjudication in 15 calendar days) for all H-1B visa petitions filed on or after April 3, 2017.
- Beginning on March 8, 2017, employers in San Jose generally must offer their part-time employees additional work hours before hiring new or temporary employees.
- On March 1, the New York State Department of Financial Services’ (DFS) Cybersecurity Requirements for Financial Services Companies (the regulations) went into effect.
- Manufacturers often look to trademark law to stop unauthorized online sales of their products. However, online resellers are typically immune from any liability for selling genuine trademark products. This is due to what is known as the First Sale Doctrine, described below.
- Emily Pan, a partner in the Cincinnati office and a member of the tax group, authored an article for the Cincinnati Business Courier titled “Tax Tips: Maximize Your Donations.”
- Vorys attorneys Jonathan Ishee, Shannon Majoras and Robin Canowitz co-authored a chapter for the second edition of Health Informatics.
- A team of Vorys attorneys recently authored a whitepaper that outlines the U.S. Supreme Court’s Clapper decision and the impact it may have on decisions related to standing in data breach suits.
- In January 2017, the Fourth Circuit Court of Appeals (which covers Maryland, Virginia, West Virginia, and North and South Carolina) created a new test for determining whether separate employers are deemed joint employers under the Fair Labor Standards Act (FLSA).
- Cybersquatting generally refers to “bad faith registration of another’s trademark in a domain name.” It often involves registering a domain name with the intent to either: A) sell the domain back to the owner of the mark, or B) divert customers to a competing website/company.
- During the 2017 Interactive Advertising Bureau’s (IAB) Annual Leadership Meeting, Marc S. Pritchard, Chief Brand Officer of P&G, one of the world’s largest advertisers, issued a clarion call to P&G’s fellow U.S. marketers to join him in the fight against “crappy” digital advertising.
- With the enactment of Senate Bill 19 on February 6, 2017, Missouri became the latest state to enact a right-to-work law making it illegal to require employees to become or remain union members, pay union dues, or pay fair share fees in lieu of union dues as a condition of employment or continued employment.
- “Smart” television manufacturer VIZIO, Inc. has agreed to pay $2.2 million to settle charges brought by the Federal Trade Commission (FTC) and New Jersey Attorney General arising from VIZIO’s alleged collection and use of detailed viewing history on 11 million of its smart TVs without consumers’ knowledge or consent.
- On January 31, 2017, the Consumer Financial Protection Bureau (CFPB) announced that it took action against a California mortgage lender, two real estate brokers and a mortgage servicer for violations of the anti-kickback provision of the Real Estate Settlement Procedures Act (RESPA).
- More changes are going into effect at the Trademark Office that may increase the vulnerability of trademark registrations both during prosecution and after registration.
- In a case of first impression, the Ninth Circuit Court of Appeals recently determined whether an employer may satisfy the Fair Credit Reporting Act's (FCRA) disclosure requirements by providing a job applicant with a disclosure for consumer report that also served as a liability waiver for the employer.
- The Office of Federal Contractor Compliance (OFCCP) regulations require that federal contractors invite job applicants and employees to self-identify as being an individual with a disability.
- Recently, The Federal Trade Commission (FTC) released a staff report titled “Cross-Device Tracking” (staff report). As the title suggests, this staff report addresses the practice of cross-device tracking and builds from the FTC’s November 2015 Cross-Device Tracking Workshop (workshop), where stakeholders and others discussed cross-device tracking, its benefits and challenges, and industry efforts to address privacy and security concerns created by the practice.
- Joseph Mann, a partner in the Vorys Columbus office and a member of the tax group, authored an article for the OOGA Bulletin titled "Enhanced Oil Recovery Credits and Marginal Well Production Credits: Potential Availability for 2016."
- For the first time in nearly 30 years, the Substance Abuse and Mental Health Services Administration (SAMHSA) has updated the Confidentiality of Alcohol and Drug Abuse Patient Records regulations (42 C.F.R. Part 2).
- Philadelphia Mayor Jim Kenney recently signed into law an ordinance designed to address gender-based wage disparities by prohibiting employers from inquiring about a job applicant’s wage history. This ordinance follows a similar law enacted by Massachusetts in August 2016 which became the first state to prohibit employers from asking about or requiring a job applicant to disclose his or her wage history. Similar legislation has since been introduced in New Jersey, Pennsylvania, and New York City.
- At the beginning of each government fiscal year, which starts October 1, the U.S. Citizenship and Immigration Services (USCIS) makes available an allocation of new H-1B visas.
- In a case of first impression, the Massachusetts Superior Court (the state’s trial court) recently decided when an employee’s unpaid meal break should instead be counted as paid working time.
- Recently, the U.S. Department of Commerce, through the National Institute of Standards and Technology (NIST), released a draft Version 1.1 to its Cybersecurity Framework.
- California generally requires employers to provide their non-exempt employees with a 10 minute rest period for each four hours of work or major fraction thereof.
- Over one year after the biggest statutory change in Medicare provider-based billing, Congress enacted the 21st Century Cures Act (the Cures Act) on December 13, 2016, providing relief to certain hospitals impacted by the Bipartisan Budget Act of 2015 (the BBA).
- Nationally, 24 states and more than 150 cities and counties have enacted “ban-the-box” or “fair chance” legislation that restricts public employers or government contractors from inquiring into applicants’ criminal histories.
- President-elect Donald Trump has promised major tax reform in 2017. With Republicans retaining majorities in both houses of Congress, there is now a real possibility that the federal estate tax and the generation-skipping transfer (GST) tax may be repealed.
- If your bank is in the process of a merger or has agreed to buy or sell a portfolio of mortgage loans, notices must be provided to the borrowers before and after the transaction closes.
- According to the Equal Employment Opportunity Commission (EEOC), retaliation is now the most frequently alleged basis of discrimination.
- The United States Supreme Court’s May 16, 2016 decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540, may no longer be news, but how lower courts are struggling to understand and apply that decision is.
- Once again, banks seem to be caught between a regulatory rock and a hard place.
- For the first time, Kentucky has both a Republican governor and Republican majorities in its House and Senate. In less than a week, Kentucky enacted three laws – House Bill 1 (the Kentucky Right to Work Act), House Bill 3 (repealing prevailing wage), and Senate Bill 6 (the Paycheck Protection Act) which are intended to – depending on which side you’re on – improve the state’s economic climate or eviscerate union influence.
- The U.S. Department of Labor’s new overtime rules would have increased the minimum salary level for most overtime pay exemptions from $455 per week to $913 per week effective December 1, 2016.
- President Barack Obama recently signed the Consumer Review Fairness Act into law.
- According to IRS FAQs on IRC §4980H, published December 22, 2016, the IRS will begin contacting employers in “early 2017” regarding potential liability for 2015 pay or play penalties under IRC §4980H.
- After ten years with no change, on January 14, 2017, new filing fees in the Trademark Office and Trademark Trial and Appeal Board (Board) and revised rules of procedure before the Board for both new and pending cases will go into effect.
- During a very active session on December 8, 2016, the Ohio General Assembly approved a number of bills containing various economic development incentive updates, including Substitute Senate Bill 235 (SB 235), Substitute Senate Bill 257 (SB 257), and Substitute House Bill 463 (HB 463). Governor Kasich signed SB 235 on December 27, 2016 and it will become effective on March 28, 2017.
- In January 2017, the last regular determination letter applications will be filed for sponsors of individually designed retirement plans. After that last Cycle A determination letter application, individually designed plans will no longer be able to get a ruling from the IRS that the plan terms comply with law (except for the initial ruling on formation of the plan and a final ruling at plan termination), although the IRS may specify other ruling opportunities in the future.
- On December 8, 2016, the Ohio General Assembly approved Substitute Senate Bill 235 (SB 235), which, among other things, creates an exemption from property taxation for commercial or industrial “newly developable property” or “redevelopment property,” defined herein. Governor Kasich signed SB 235 on December 27, 2016, and it will become effective on March 28, 2017. The procedures and benefits of this new exemption are outlined in this Alert.
- On December 20, 2016, the Federal Trade Commission (FTC) announced that Turn, Inc. (Turn) has agreed to settle charges that it deceived consumers by tracking them online and in mobile apps, even after consumers attempted to opt-out of such tracking.
- On December 7, 2016, amidst a whirlwind lame duck session, the Ohio General Assembly passed Senate Bill 331.
- Ohio law regulates the licensing and carrying of concealed handguns.
- On December 6, 2016, the Supreme Court of the United States handed down their second unanimous interpretation of the contours of the False Claims Act (FCA) in the last six months.
- Last week, Governor Kasich signed into law Senate Bill 232, which makes changes to Ohio’s statutes on intestacy, wills, and trusts.
- On December 13, 2016, President Obama signed the 21st Century Cures Act (H.R. 34) into law. The 21st Century Cures Act contains two provisions that relate to group health coverage.
- Greg Russell, a partner in the Vorys Columbus office and the leader of the firm’s energy group, authored an article for the Energy Mineral Law Foundation titled “Statutory Unitization in Ohio: A Brief Primer.”
- More than 100 cities and counties have adopted “ban the box” or “fair chance” laws prohibiting or restricting employers from asking about an applicant’s criminal history without first considering the applicant’s job qualifications.
- Natalia Steele, a partner in the Vorys Cleveland office, authored an article titled “Home Free ... Or Not So Fast?” for Servicing Management magazine’s November-December 2016 edition.
- In October, the U.S. Department of Health and Human Services, Office for Civil Rights (OCR) released new guidance for covered entities and business associates that utilize cloud computing for data storage, software, or online access to shared resources and contract with cloud service providers (CSPs) for the service.
- Today, the FTC and 13 states announced a settlement with notorious website Ashely Madison related to its July 2015 data breach that exposed the personal information of more than 36 million users.
- For most of its existence, the National Labor Relations Board (NLRB) has focused on fairly traditional issues related to unionization and other efforts by employees to collectively address the terms and conditions of their employment.
- Choosing a trustee is one of the most important and, often times, the most difficult decision for clients when creating a trust.
- In November 2016, New York City enacted its “Freelance Isn’t Free Act” to establish and enhance protections for freelance workers (in other words, independent contractors).
- As we previously reported, in October 2016, the Pennsylvania Superior Court held that the mandatory payment of wages by payroll debit card does not satisfy the requirements of the state’s Wage Payment and Collection Law (WPCL).
- On November 18, 2016, the IRS announced a 30-day extension of the deadline to distribute 2016 Form 1095-Cs to employees.
- In a surprising decision, a federal judge in Texas blocked the U.S. Department of Labor’s new overtime rule from taking effect on December 1.
- Several law firms nationally are in the process of issuing demand letters to banks, thrifts and various other businesses alleging website access barriers. The most recent wave of demand letters specifically target the banking industry. The letters demand changes to banks’ web pages and payment of substantial legal fees based on alleged violations of the Americans with Disabilities Act (the ADA).
- Spanning the country and the political divide, Election Day 2016 witnessed eight of the nine marijuana-related ballot measures pass in various states.
- On November 1, 2016, the Internal Revenue Service (IRS) issued Notice 2016-66. The Notice designates certain so-called “micro-captive” insurance company transactions as “transactions of interest” for purposes of Treas. Reg. Sec. 1.6011-4(b)(6), Code Sec. 6111, and Code Sec. 6112.
- This week, the U.S. Citizenship and Immigration Services (USCIS) published a revised Employment Eligibility Verification Form I-9 for use by employers.
- Spanning the country and the political divide, Election Day 2016 witnessed eight of the nine marijuana-related ballot measures pass in various states.
- Amended Substitute House Bill 233 (HB 233), which became effective August 5, 2016, established the procedure for designating so-called downtown redevelopment districts (DRDs) and innovation districts. These districts operate much like tax increment financing (TIF) areas except that the collected service payments generally can be utilized for a wider range of uses than TIF service payments.
- The federal New Markets Tax Credit (NMTC) program was created in 2000 for the purpose of encouraging investment in businesses and commercial projects, including real estate development, that benefit low-income communities.
- In the Fall 2016 edition of Development Incentives Quarterly, learn more about Downtown redevelopment districts and about the federal New Markets Tax Credit (NMTC) program.
- How partnership liabilities (including liabilities of a limited liability company treated as a partnership for tax purposes) are allocated among its partners is important.
- For now, stay the course and stay tuned…
- When unidentified individuals defame businesses or professionals online, the harmed parties can potentially serve subpoenas on relevant entities for documents containing identifying information about the authors of the online defamation.
- This alert details results of the 2016 general election.
- According to a Nov. 3 Business Insider article/report, U.S. consumers are expected to spend an estimated $385 billion online this calendar year.
- On October 20, 2016, the U.S. Department of Justice (DOJ) Antitrust Division and the Federal Trade Commission (FTC) jointly issued their “Antitrust Guidance for Human Resource Professionals” to “alert human resource professionals and others involved in hiring and compensation decisions to potential violations of the antitrust laws.”
- The past few weeks have seen a flurry of activity in the cybersecurity arena – and not just from the intruders, such as those who orchestrated the massive distributed denial of service (DDoS) attack that temporarily took down PayPal, Twitter and others.
- In an opinion published yesterday, the Supreme Court of Ohio declined to answer a certified question from the Northern District of Ohio regarding whether Ohio follows the “at the well” rule or the “marketable product” theory with respect to post-production costs, leaving it up to the federal court to interpret the parties’ contracts under traditional cannons of contract construction.
- On Monday, the U.S. Court of Appeals for the Seventh Circuit overturned a district court order denying a request by the Federal Trade Commission (FTC) and the state of Illinois (collectively, the government) to preliminarily enjoin a merger between two Chicago-area health systems, Advocate Health Care Network (Advocate) and NorthShore University HealthSystem (NorthShore) (collectively, the hospitals).
- The EEOC issued its Strategic Enforcement Plan for 2017-2021 setting forth “its continued commitment to focus efforts on those activities likely to have strategic impact.”
- Vorys Partners Lisa Babish Forbes and Emily Pan co-authored an article titled "Fixing Broken Trusts by Court Modification - From the Trustee's Perspective" for the Probate Law Journal of Ohio (Volume 27, Issue 2).
- On Wednesday, the Federal Trade Commission (FTC) released its new Data Breach Response: A Guide for Businesses.
- Spurred by the “Fight for $15” slogan, cities and counties throughout the United States have enacted laws to increase the minimum wage paid to employees within their jurisdictions. Authority for enacting local wage-hour legislation may come from a state’s constitution or statutes or the city or county charter or enabling legislation.
- The State of California is rolling out a new tool for consumers to report potential violations of the California Online Privacy Protection Act (CalOPPA).
- Unauthorized sales are causing issues for many companies across numerous industries. In highly competitive spaces, such as the beauty or skin care industries, a common (but much less talked about) issue affecting many of these same companies is traffic diversion.
- On October 21, 2016, the Pennsylvania Superior Court held that the mandatory payment of wages by payroll debit card does not satisfy the requirements of the state’s Wage Payment and Collection Law (WPCL).
- The banking industry has received long sought-after clarification as to whether Community Reinvestment Act (CRA) credit is available for Historic Tax Credit (HTC) financed projects.
- In another new and welcome gesture, the Federal Deposit Insurance Corporation (FDIC) has provided further encouragement for formation of de novo charters as described in the FDIC’s Summer 2016 “Supervisory Insights Journal.”
- The landscape of collateral requirements for public fund deposits by state and local public entities is changing.
- Tim Bechtold, of counsel in the Vorys Columbus office, authored an article for the Ohio State Bar Association’s “Law You Can Use” program.
- When people want to learn about a product, service, company or professional, they often go straight to the internet. And, unsurprisingly, a large percentage of people are going directly to search engines.
- On September 29, 2016, the U.S. Department of Labor released its final rule requiring that federal contractors provide up to 56 hours of paid sick leave per year to their employees.
- Andy Kaplan, a partner in the Vorys Cincinnati office and a member of the labor and employment group, authored an article for the Cincinnati Business Courier titled “Political Speech in the Workplace.”
- Michael Vennum and Keith Zabela, of counsel in the Vorys Pittsburgh office, co-authored the "Title and Conveyancing of Oil and Gas Rights in Pennsylvania” chapter for the second edition of The Law of Oil and Gas in Pennsylvania.
- Manufacturers—and retailers/resellers wanting to maintain profit margins—have often turned to Internet Minimum Advertised Price (IMAP) policies to combat overzealous advertising.
- Recently, the New York State Department of Financial Services (NYDFS) published its “first-in-the nation cybersecurity regulation” to impose cybersecurity requirements on NYDFS regulated entities such as banks, consumer lenders, money transmitters, insurance companies and other financial service providers.
- IRA charitable rollovers, which first became available in 2006, were made permanent by federal legislation in late 2015.
- Paige Kohn, an associate in the Columbus office, authored an article for Litigation (The American Bar Association’s Journal of the Section of Litigation) titled “How Artificial Intelligence Is Revolutionizing the Legal Practice.”
- California continues to expand its Labor Code. On September 25, 2016, California enacted a law that generally protects employees from having to adjudicate in other states any employment claims arising in California.
- Vorys Partner Fred Ransier authored an article for the September 30, 2016 edition of the Columbus Bar Association's CBA Today. The article is titled "Mentoring Essential to Maintaining a Diverse Team."
- Last Tuesday, the U.S. Court of Appeals for the Third Circuit reversed a Pennsylvania district court’s decision denying a preliminary injunction in the Federal Trade Commission’s (FTC) and Commonwealth of Pennsylvania’s (collectively, the government) challenge to a merger between Pinnacle Health System (Pinnacle) and Penn State Hershey Medical Center (Hershey) (collectively the hospitals).
- On September 27th, the Department of Justice entered into a settlement for $1 million with Tuomey Healthcare System, Inc.’s former Chief Executive Officer, Ralph J. Cox III.
- It is generally difficult to convince a website to remove defamatory third-party content without a court order.
- House Bill 390 (HB 390)is effective on September 28, 2016. The foreclosure reform included in HB 390 impacts both residential and commercial property foreclosures.
- On September 15, 2016, many oil and gas producers and surface owners of Ohio properties awoke to problematic news: the Supreme Court of Ohio, in Corban v. Chesapeake Exploration, L.L.C., et al., Slip Opinion No. 2016-Ohio-5796, held that the 1989 version of the Ohio Dormant Mineral Act (R.C. § 5301.56) (1989 DMA) was not self-executing (i.e., did not automatically abandon and vest dormant mineral interests in the surface owner of the property by operation of law).
- Vorys attorney Eve Stratton authored a blog post for Huckleberry House, a provider of shelter and services to run away, homeless and at risk youth in Franklin county. Her blog post was titled "Mental Health: No Longer the Hidden Disease."
- The 2016 elections are just over a month away. Despite the importance of voting to the democratic process, no federal law requires employers to provide time off for their employees to vote.
- Vorys Partner Jim Thomas authored an article for the Northeast Ohio Association of Corporate Counsel's newsletter titled "Principles of Effective Leadership."
- As stated in a recent post, we recommend that companies adopt a three-step approach to tackle unauthorized online sales.
- The U.S. Department of Labor’s (DOL) new overtime rules become effective on December 1, 2016. On that day, the salary threshold to be considered an overtime-exempt employee will double from the existing $455 per week to $913 per week (or $47,476 per year).
- Vorys health care lawyers, Robin Canowitz and Shannon Majoras, co-authored an article for American Health Lawyers Association Behavioral Health Task Force titled “An Analysis of Legal Issues—Child and Adolescent Behavioral Health, Part II: Consent for Behavioral Health Treatment by Minors.”
- Earlier this month, the United States Court of Appeals for the Seventh Circuit established a standard for application of Fed. R. Civ. P. 9(b) that significantly strengthens the bar imposed by the heightened pleading requirements of that rule.
- Jackie Ford, a partner in the Vorys Houston office and a member of the labor and employment group, authored an article for Corporate Counsel titled “What University Scandals Teach In-House Counsel About Protecting Attorney-Client Privilege.”
- According to the Equal Employment Opportunity Commission (EEOC), retaliation is now the most frequently alleged basis of discrimination.
- On September 15, 2016, the Supreme Court of Ohio issued numerous decisions concerning the application of the Ohio Dormant Mineral Act.
- On Tuesday, Sept. 12, the House of Representatives passed H.R.5111, better known as the Consumer Review Fairness Act of 2016.
- Now-popular online marketplaces like eBay have made consumer-to-consumer e-commerce possible. Today, it is getting even easier through “flea market” and consignment shop-style apps, which pride themselves on the ease with which people can shop for and sell products.
- The Security and Exchange Commission (SEC) has taken an increasingly hardline on employers’ confidentiality agreements and that its regulators are on the lookout for policies that impede an employee’s ability to report activities to regulator
- Manufacturers implement minimum advertised price (MAP) policies to control the prices at which retailers can advertise their products.
- Under the basic franchise model, the franchisor gives the franchisee a license to use its name, trademark, and business practices and benefit from established methods of operating the business.
- The new small unmanned aerial aircraft (UAS) rule, 14 C.F.R. §107 et seq., is effective as of August 29, 2016. This rule permits the flying of drones for commercial purposes provided that the drone operations and pilot meet the requirements of the new small UAS rule.
- Emily Pan, a partner in the Vorys Cincinnati office authored an article titled "Fixing Broken Trusts by Decanting - From the Trustee's Perspective," for the Probate Law Journal of Ohio.
- We have written about subpoenaing internet service providers (ISPs) for identifying information relating to internet protocol (IP) addresses used by their subscribers. In that post, we mentioned that securing identifying information from cable operator ISPs generally requires obtaining a court order authorizing disclosure of the subscriber information.
- Labor and Employment Alert: The Split Widens: Now the Ninth Circuit Invalidates Class Action WaiversOn August 22, 2016, the Ninth Circuit Court of Appeals held that requiring employees to sign an arbitration agreement prohibiting them from filing class or collective actions over wages, hours, and employment terms and conditions violated the National Labor Relations Act (NLRA).
- The Ohio Tax Commissioner recently issued a memorandum to county auditors regarding significant changes to the taxation of oil and gas reserves starting in tax year 2016.
- With Ohio set to become the 25th state to legalize marijuana for medical use, there are inevitably many questions about how to legally operate marijuana-related businesses in those states.
- In July 2016, Massachusetts joined California, Maryland and New York in enacting an expansive equal pay law.
- We have published various posts on our blog about implementing an effective enforcement system to stop unauthorized sales, including our recent post featuring a video about our online seller enforcement program. As mentioned in numerous posts, an ideal enforcement program combines technology, legal and investigation tactics.
- David Edelstein, an associate in the Vorys Cincinnati office and a member of the finance, energy and real estate group, authored an article, titled “A Better Approach To Environmental Prosecution?,” for Environmental Law360.
- Supreme Courts in two more states, Iowa and New Jersey, have recently ruled that CGL insurance provides coverage for damage to the completed project itself caused by defective work of subcontractors.
- Ordinarily, serving a subpoena to identify an anonymous internet poster requires first filing a lawsuit. In fact, we have published several posts about using subpoenas to identify unknown authors of internet defamation and have explained that the first step in the process is filing a complaint against the unknown poster.
- The United States Court of Appeals for the Sixth Circuit recently affirmed the guilty plea of Mark Sawyer for conspiring to violate the Clean Air Act (CAA), 18 U.S.C. 371.
- On July 22, 2016, the Internal Revenue Service (IRS) and Department of Treasury published long awaited temporary and proposed regulations (Regulations) regarding so-called “50(d) income” affecting historic tax credit (HTC) transactions and energy tax credit (ETC) transactions.
- Most employers have a sexual harassment policy, usually contained in an employee handbook.
- Nelson Cary and Al Kinzer, partners in the Vorys Columbus office and members of the labor and employment group, co-authored an article for the Ohio State Bar Association’s Fine Print titled “5 Labor Law Developments for Your ‘To Review’ List.”
- Ohio Workers’ Compensation law prohibits employers from retaliating against employees who seek workers’ compensation benefits.
- In the Summer 2016 edition of Development Incentives Quarterly, read about the long sought-after clarification as to whether Community Reinvestment Act credit is available for Historic Tax Credit financed projects and the proposed regulations regarding so-called “50(d) income” affecting historic tax credit transactions and energy tax credit transactions.
- For companies seeking to transfer personal data from the EU to the U.S., the formal adoption of the Privacy Shield on July 12, 2016 by the European Commission and yesterday’s launch of the Privacy Shield website (privacyshield.gov) provides a data transfer mechanism to replace the Safe Harbor.
- The Nevada Supreme Court recently refused to apply the “blue pencil” doctrine to modify an overbroad noncompete agreement.
- On May 12, 2016, the federal Occupational Safety and Health Administration (OSHA) amended its recordkeeping rules. While the amendment did not change the basics of recordkeeping, OSHA announced three significant initiatives.
- At the end of June, the federally-facilitated health insurance exchanges (as known as the Marketplace) sent out the first batch of Marketplace Notices to employers.
- Ashley Manfull, an attorney in the Akron office and a member of the labor and employment group, authored an article titled “Unpaid Interns and Volunteers: An Effective Way to Reduce Costs for Public Employers?” for The International Public Management Association for HR’s HR News Magazine.
- Professionals and companies are being harmed online and on social media in a number of ways. One increasingly common form of online harassment is impersonation of the person (or company) that the harasser is intending to harm through the creation of fake public personas on social media platforms or websites.
- Adam Sherman, a partner in the Vorys Cincinnati office and a member of the technology and intellectual property group, authored an article for Technology Law360 titled “VPN Dilemma: Anonymous Expression Vs. Anonymous Defamation.”
- Bank and BHC subordinated debt can be a good idea for a variety of reasons. In an industry where capital is still (and really always has been) “king,” and TruPS have become a thing of the past, sub debt provides a number of the benefits of equity but without the shareholder dilution and other issues that accompany sales of equity.
- What happens to your Facebook and Pinterest accounts when you die? What about all those photos and documents stored on the Cloud and Google Drive? How about all of your electronic passwords to access your bank accounts, investment accounts and retirement accounts? What about your YouTube channel, iTunes and Bitcoin accounts?
- Given the focus of our blog and the services that we provide to clients, we are obviously routinely publishing content about the unauthorized sales problem and strategies for overcoming the actions of unauthorized sellers.
- On June 17, 2016, the four federal financial institution regulatory agencies issued a joint statement on the long-awaited and controversial new accounting standards issued by FASB implementing the “current expected credit loss” model for financial reporting, commonly referred to as “CECL.”
- The Ohio Supreme Court has issued a ruling further clarifying the issue of standing that has dogged lenders throughout the recent mortgage foreclosure crisis.
- Jolie Havens, a partner in the Vorys Columbus office and chair of the health care group, authored an article for Becker’s Hospital Review titled “Significant Reduction to Hospital Provider-Based Reimbursement Looms For New, Off Campus Sites.”
- Online reviews affect nearly every industry, and health care is certainly one of them. What differentiates health care, in this context, is the Health Insurance Portability and Accountability Act of 1996, or HIPAA.
- In the wake of the surprise outcome of the United Kingdom referendum on whether to leave the European Union (aka, the Brexit), many clients have asked what they should do to ensure continued trademark protection in the UK for their existing European Union (EU) registrations and future applications.
- Countries that have started using EMV technology have seen a reduced amount of card-present fraudulent activity. In the U.S., the major credit card issuers set an October 1, 2015 deadline for merchants to be EMV chip compliant.
- For the first time in 46 years, the Office of Federal Contract Compliance Programs (OFCCP), which oversees the affirmative action and equal employment opportunity obligations of federal contractors, has updated its sex discrimination guidelines.
- Vorys Partners Lisa Babish Forbes and Emily Pan co-authored an article titled "Fixing Broken Trusts by Agreement - From the Trustee's Perspective," for the Probate Law Journal of Ohio (Volume 26, Issue 6).
- Unauthorized sales of products on third-party websites like eBay is significantly impacting many businesses.
- Under Tennessee law, employers may generally prohibit employees and others from possessing weapons (including firearms) on their property. The key exception to this rule involves storing firearms in personal vehicles parked on the employer’s property by individuals with lawful handgun carry permits.
- A California appellate court recently affirmed a lower court’s decision to require Yelp to remove three defamatory reviews. The First Appellate District did, however, remand the case to the trial court to narrow the terms of the removal order, which ordered Yelp to also remove potential future reviews.
- You hired a summer intern who is eager to work as many hours as possible. If you allow the intern to work 30-plus hours per week during the summer, at what point would you have to offer medical coverage in order to avoid the risk of Affordable Care Act (ACA) pay or play penalties?
- A federal district judge in Texas today issued a nationwide injunction prohibiting enforcement of the Department of Labor’s (DOL) persuader rule, saying it threatens employers’ rights to secure legal advice about union organization.
- The Ohio Board of Tax Appeals (BTA), on a remand from the Ohio Supreme Court, has held that the special purpose doctrine did not apply to a big box Lowe’s property.
- Effective January 1, 2017, Colorado’s private employers must allow current and former employees to inspect and copy their personnel files. The new law does not apply to a financial institution, bank, trust company, savings institution, or credit union. Nor does it apply to public employees, who already have access to their personnel records under the Colorado Open Records Act.
- Mike Griffaton, of counsel in the Vorys Columbus office and a member of the labor and employment group, authored an article for Columbus CEO titled “Keeping Things Civil & Legal When Talking Politics at Work.”
- In a case of first impression, the New Jersey Supreme Court unanimously held that an employer’s attempt to contractually shorten the two-year statute of limitations for claims under the New Jersey Law Against Discrimination (LAD) violates public policy and so is unenforceable. After reviewing the LAD’s legislative history and purpose, the Court concluded that “a private agreement that frustrates the LAD’s public-purpose imperative by shortening the two-year limitations period for private LAD claims cannot be enforced.”
- On June 10, 2016, six agencies that regulate financial institutions (FDIC, SEC, OCC, Federal Reserve Board, National Credit Union Administration, and Federal Housing Finance Agency) jointly proposed regulations regarding incentive compensation for financial institutions.
- For businesses and professionals defamed on the internet, most simply want the false content removed. Fortunately, there are a number of ways to obtain removal, one of which is through a court order.
- Most businesses and professionals defamed on the internet simply want the false content removed. Fortunately, there are a number of ways to obtain removal, one of which is through a court order.
- On Thursday, June 16, 2016 the United States Supreme Court released its decision in Universal Health Services, Inc. v. United States ex rel. Escobar (No. 15-7). In Escobar—argued on April 19, 2016—the Court decided the legal validity of the “implied certification” theory of liability under the False Claims Act (FCA).
- The DOL has recently interpreted its new Persuader Rule to exclude an agreement or arrangement signed before July 1, 2016, even if the services and payments occur after July 1.
- Let’s say your company sells products on eBay.com. To monitor your products for sale, you frequently check eBay and notice that there are regularly many products being listed on the website for substantially less than your price.
- U.S. Customs and Border Control (CBC) is a powerful ally in the battle to prevent counterfeits from reaching the U.S. market. In 2015 an estimated 11 million maritime containers arrived on U.S. shores carrying imported products from all over the world.
- In a case of first impression, the Ninth Circuit Court of Appeals recently considered whether an employer violated the Fair Labor Standards Act (FLSA) because it failed to include cash-in-lieu of benefits payments when it calculated employees’ regular rate of pay.
- The Bankruptcy Judges and Chapter 13 Trustees for the United States Bankruptcy Court for the Southern District of Ohio have reviewed and approved a proposed District Wide Mandatory Form Chapter 13 Plan and proposed form Order Confirming Chapter 13 Plan and Awarding Attorney Fees.
- On June 8, 2016, Governor John Kasich signed House Bill 523 to legalize the use of medical marijuana in Ohio. Ohio now joins the 25 states and District of Columbia that have “legalized” marijuana for medicinal purposes (marijuana use, possession, and distribution remains illegal under federal law).
- Effective August 10, 2016, Colorado employers will be required to provide job applicants and employees with reasonable accommodations for pregnancy and physical recovery from childbirth. An employer only has to provide an accommodation if requested and if the accommodation would not impose an undue hardship.
- In December 2013, in D.R. Horton, the Fifth Circuit Court of Appeals rejected the National Labor Relation Board’s (NLRB) prohibition on mandatory arbitration clauses. Since then, the vast majority of federal courts addressing this issue have agreed with the Fifth Circuit, including the U.S. Courts of Appeals for the Second and Eighth Circuits.
- The Second District Court of Appeals has issued an opinion in Gehrke v. Senkiw, 2d Dist. Montgomery No. 26829, 2016-Ohio-2657, which held that the validity of a revocable trust that the settlor’s will incorporates by reference cannot be challenged without also challenging the settlor’s will.
- In Virginia, when an employment contract does not specify a time period for its duration, either party is ordinarily at liberty to terminate it at-will on giving reasonable notice of his or her intention to do so.
- On May 17, 2016, the Internal Revenue Service issued final regulations simplifying a participant’s ability to make a rollover from his or her designated Roth account in a qualified plan. The final regulations eliminated the requirement that the amounts that are directly rolled over by a participant to an eligible retirement plan be treated as a separate distribution from other amounts received by the participant.
- Lisa Babish Forbes, a partner in the litigation group in the Vorys Cleveland office, authored an article for the June 2016 edition of the Cleveland Metropolitan Bar Journal titled “No Contest Clauses in Ohio.”
- Effective December 1, 2016, the salary threshold for an employee to be considered exempt from overtime under the Fair Labor Standards Act (FLSA) increases to $913 per week – $47,476 per year (or to $134,004 for highly compensated employees).
- The majority of online defamation is posted anonymously or pseudonymously. Thus, many cases require issuing subpoenas—including to internet service providers (ISPs)—to identify the unknown posters.
- Faced with a petition drive to put a minimum wage proposal on the November ballot, Cleveland City Council must now consider an ordinance that would mandate a $15 per hour minimum wage for those employees working within Cleveland’s geographic boundaries.
- The first wave of attacks on the Consumer Financial Protection Bureau’s (CFPB) recently proposed rules prohibiting class action waivers in pre-dispute arbitration agreements occurred during the House Financial Institutions and Consumer Credit Subcommittee hearing entitled “Examining the CFPB’s Proposed Rulemaking on Arbitration.
- Financial Services Alert: Regulations Prohibiting Class Action Waivers Published in Federal RegisterOn May 24, 2016 the Consumer Financial Protection Bureau’s (CFPB) proposed arbitration rule was published in the Federal Register.
- The United States Supreme Court recently resolved a split among the federal circuits about when the limitations period begins on a constructive discharge claim (as opposed to a claim by an employee that he or she was terminated by an employer).
- On May 11, 2016, President Obama signed the Defense of Trade Secrets Act (DTSA), which Congress passed overwhelmingly in a rare moment of bipartisanship. Until now, trade secrets have been exclusively protected by state law (unlike the federal protection afforded to patents, copyrights and trademarks).
- If your company sponsors a wellness program, you are undoubtedly familiar with IRS and DOL rules for participatory, activity, and outcomes-based wellness programs.
- On May 17, 2016, the SEC updated its Compliance & Disclosure Interpretations (C&DIs) concerning the use of non-GAAP financial measures. The new guidance focuses on the calculation and presentation of non-GAAP financial measures in SEC filings and earnings releases subject to Regulation G and/or Item 10(e) of Regulation S-K.
- Minimum advertised price policies, or “MAP” policies, restrict the price at which products can be advertised. In other words, they set the lowest price at which a retailer is allowed to advertise a manufacturer’s products—including for internet sales—regardless of the price at which the products might actually be sold.
- Today, the U.S. Department of Labor published its final rule significantly expanding the overtime protections of the Fair Labor Standards Act (FLSA). The rule increases the salary an employee must receive before being considered overtime-exempt to $913 per week – $47,476 per year (or, $134,004 for highly compensated employees).
- There are a number of ways in which one can respond to internet defamation. There are also a number of ways not to respond.
- Sales tax on goods and services purchased by your business is always an element of cost that must be considered. This has become especially important to the Ohio banking industry.
- In working out of a troubled commercial credit, often the optimal exit strategy for the senior lender is a sale of the borrower’s business as a going concern. However, frequently it is not feasible for a distressed borrower simply to execute a sale of its assets directly to a buyer and pay the senior secured debt at closing.
- It was not that long ago that the concern over preparing for, and dealing with, activist investors was rare in the banking industry, and especially rare for community banks. That comfort is quickly fading, however, as more funds and individuals contemplate opportunities for becoming “activist” investors in community banks through a variety of mechanisms, some for the better and some perhaps not so much.
- Earlier this year, two federal appeals courts decided cases that are significant to lenders whose borrowers are experiencing financial distress. In one case, the court stripped the lender of its secured status because the lender had failed to investigate the borrower’s wrongdoing, despite having notice of suspicious facts.
- As the longest awaited sequel in years, financial regulators have finally revealed their revised interagency proposal to restrict incentive-based compensation arrangements for executives at financial institutions. In 2010, the Dodd-Frank Act obligated six agencies, including the Federal Deposit Insurance Corporation, the Federal Reserve Board, the Officer of the Comptroller of the Currency, the Securities and Exchange Commission, the National Credit Union Administration and the Federal Housing Finance Agency, to establish rules prohibiting incentive-based compensation arrangements that would encourage inappropriate risk-taking.
- After nearly a decade practically devoid of state or federal de novo charter activity nationwide, the FDIC has announced plans to return to its three-year post-approval oversight period for de novos that was in effect prior to the financial crisis.
- Many parents across the country will soon be preparing to take their adult child to college.
- The Supreme Court of Ohio recently released its opinion in White v. King,expressly expanding the definition of a “meeting” under Ohio’s Open Meetings Act to include discussions that occur “telephonically, by video conference, or electronically by email, text, or other form of communication.”
- In a highly-anticipated opinion, this morning the U.S. Supreme Court overturned the Ninth Circuit Court of Appeals’ decision in Spokeo, Inc. v. Robins.
- The U.S. District Court for the Northern District of Ohio recently delved into the meaning of the word “or” and showed how its meaning affects the enforceability of a non-compete agreement.
- In the ever-expanding world of e-commerce, businesses often create terms, conditions, notices, policies, or other disclaimers on their websites that apply to consumers across the country.
- The EEOC has issued a Fact Sheet on “Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964.” It notes that “a person does not need to undergo any medical procedure to be considered a transgender man or a transgender woman.”
- The Department of Homeland Security’s new rule on the STEM Optional Practical Training extension goes into effect on May 10, 2016. Some of the changes that impact employers are highlighted in this Immigration Alert.
- In general, a person can sell another’s genuine trademarked goods, under the First Sale Doctrine. However, a failure to abide by or follow a company’s quality controls can give rise to trademark infringement.
- The Consumer Financial Protection Bureau (CFPB) yesterday released a widely anticipated proposed rule that would: (1) prohibit class action waivers in pre-dispute arbitration agreements, and (2) require a provider to submit records from individual arbitrations to the CFPB.
- The IRS recently issued proposed regulations that, if finalized, would treat debt instruments between related persons as stock under certain circumstances.
- It’s been said that politics makes strange bedfellows as illustrated by the efforts at “legalizing” marijuana use in Ohio (marijuana use and possession remain illegal under federal law).
- Colleen Laux, a senior attorney in the Vorys Cincinnati office, authored an article entitled "Superintendence Rule 66 and Its Impact on Your Guardianship Practice" for the May/June 2016 edition of the Probate Law Journal of Ohio.
- E-commerce sales, unsurprisingly, continue to increase. In fact, according to data released by the U.S. Department of Commerce in early 2015, online retail sales in the United States totaled nearly $305 billion (an increase in more than 15 percent since 2013).
- For businesses forced to deal with internet defamation, in our experience removal of the harmful content is generally the best solution.
- The U.S. Department of Labor (DOL) has just issued “The Employer’s Guide to the Family and Medical Leave Act.” The DOL created this Guide because the DOL is “committed to strengthening compliance with the FMLA by providing assistance to employers and helping increase their knowledge of the law.”
- On April 20, 2016, the Ohio House of Representatives approved Amended Substitute House Bill 233 (HB 233) as amended and passed by the Ohio Senate, which, among other things, establishes the procedure for designating so-called downtown redevelopment districts and innovation districts.
- The first new comprehensive Ohio banking legislation in 20 years, Senate Bill 317, sponsored by Sen. Jim Hughes (R-Columbus), was introduced in the Ohio Senate on April 20, 2016.
- On Tuesday, the Supreme Court heard oral argument in Universal Health Services, Inc. v. U.S. ex rel. Escobar.
- David Edelstein, an associate in the Vorys Cincinnati office and member of the environmental group, authored an article for Environmental Law360 titled "From Gov't To Firm, Happily: Changing Careers Midstream."
- The Mississippi Supreme Court had recognized only two limited exceptions to the at-will doctrine: employees cannot be discharged for refusing to participate in illegal acts or for reporting an employer’s illegal acts. It recently recognized a third exception for employees storing firearms in their vehicles on an employer’s property.
- Are you reading this sitting down? If so, you may have to give that seat to one of your employees.
- Many companies tell authorized retailers or distributors that they will exclusively sell their products through them. Such a company might also have a written policy against product diversion and unauthorized online sales. This looks good for purposes of marketing and trying to convince prospective retailers and distributors to distribute their products.
- Angela Gibson, a partner in the Vorys Cincinnati office, and Mike Griffaton, of counsel in the Vorys Columbus office, co-authored an article for the Cincinnati Business Courier titled “Prepare Now for Change in Pay Laws.”
- Retailers that have seen declining profits in traditional brick and mortar stores have turned to the internet to drive consumer sales. However, the e-commerce boom is not without its challenges. This in-depth article outlines the laws governing online marketing and advertising.
- One of the more prominent consumer complaint websites out there is ComplaintsBoard.com.
- The North Carolina Supreme Court recently confirmed that courts in that state are prohibited from rewriting an overbroad noncompete agreement to make is reasonable and enforceable – even when the parties’ agreement specifically allows the court to do so.
- Jackie Ford, a partner in the firm’s Houston office and a member of the labor and employment group, authored an article for the April 2016 edition of Texas Lawyer titled “Prepare for Significant Changes in Employment Law.”
- On April 4, 2016, Governor Andrew Cuomo signed legislation that will gradually increase New York’s minimum wage to $15 per hour and will implement the nation’s most extensive paid family leave program.
- Today, Governor Jerry Brown signed legislation that will increase California’s minimum wage to $15 per hour by 2022. For the next six years, the state-wide minimum wage will gradually increase.
- Since 2005, California employers with 50 or more employees have been required to provide at least two hours of interactive sexual harassment training to all supervisory employees once every two years. In 2015, California added “abusive conduct” (or bullying) to that mandatory harassment training. And now, beginning April 1, 2016, California employers will need to update their anti-discrimination and harassment training and policies to meet extensive new requirements imposed by California’s Fair Employment and Housing Council (FEHC).
- If a company suspects that an online seller is engaged in the unauthorized re-selling of its products online, it is up to that company to take action and attempt to enforce its policies and procedures — to the extent that it has any.
- The Second Circuit Court of Appeals (with jurisdiction over New York, Connecticut, and Vermont) recently held that a director of Human Resources may be an “employer” and thus can be held individually liable for violating the Family and Medical Leave Act (FMLA). Under the FMLA, an individual may be held liable only if he or she is deemed to be an “employer,” meaning “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.”
- Connecticut has long used the “ABC Test” for determining whether an individual is an employee or independent contractor for purposes of the state’s unemployment compensation law. Recently, in Standard Oil v. Administrator, Unemployment Compensation, the Connecticut Supreme Court expanded the test for determining who qualifies as an independent contractor.
- The U.S. Department of Labor (DOL) issued its new persuader rule yesterday. The final rule is largely unchanged from the proposed rule that was originally published in 2011. As expected, the DOL’s new interpretation departs from decades of precedent to expand the definition of “persuader” activities while limiting the definition of “advice” activities.
- On March 8, 2016, a New York Bankruptcy Court issued a bench decision in the Sabine Oil & Gas Corporation Chapter 11 case. The Court’s decision concerning a producer’s request to reject certain portions of its midstream agreements has sent shockwaves through the oil and gas industry.
- Employers are vulnerable to being the targets of negative online and social media postings, and sometimes these statements can give rise to defamation claims. However, an employer considering suing a current or former employee for internet defamation must be careful if the (ex-)employee recently engaged in protected activity.
- On March 4, 2016, the Ohio Seventh District Court of Appeals in Summitcrest, Inc. v. Eric Petroleum Corp., et al., addressed several issues concerning oil and gas leases in Ohio.
- Employers in Ohio dodged a bullet last week. In a 5-2 ruling, the Ohio Supreme Court decided that a 2006 constitutional amendment increasing the minimum wage did not eliminate previously applicable exclusions and exemptions to the minimum wage requirement.
- It is important to regularly review asset titling and ensure such titling is consistent with one’s estate plan.
- Mr. Smith, a widower, died survived by his three children. At the time of his death, Mr. Smith had the following assets: Residence (valued at $250,000), Checking/Savings Accounts (valued at $50,000) and Investment Account (valued at $600,000).
- In March 2016, Utah enacted the “Post-Employment Restrictions Act” (House Bill 251) to regulate non-compete agreements. Beginning May 10, 2016, an employer and an employee may not agree to a post-employment restrictive covenant for more than one year from the day on which the employee is no longer employed by the employer. A restriction longer than one year is void.
- Unauthorized online sales have become very problematic for many businesses, including those offering high-end luxury products, companies selling beauty and skin care products and also multi-level marketing (or MLM) companies.
- A recent case from the Fifth Circuit Court of Appeals highlights the importance of well-drafted and strictly enforced wage-hour policies. In Ambrea Fairchild v. All American Check Cashing, Inc., 811 F.3d 776 (5th Cir. 2016), All American’s overtime policy prohibited hourly employees from working overtime without prior approval and required employees to accurately report all of their hours worked in its timekeeping system.
- A recently decided case from an Ohio Court of Appeals breathes life into that proverb, teaching companies the importance of having a properly drafted employee handbook.
- As originally enacted in 2012, Philadelphia’s ban-the-box law applied to employers with at least 10 employees within the city. The law allowed employers to conduct criminal background checks on applicants after the first interview and employers could review an applicant’s entire criminal history.
- On March 2nd, the Consumer Financial Protection Bureau (CFPB) announced a $100,000 penalty and settlement with online payment processor Dwolla, Inc. (Dwolla) for weak data security practices.
- The Eighth District Court of Appeals recently struck down the Broadview Heights Community Bill of Rights as an invalid exercise of the home rule authority. The Community Bill of Rights, also known as Article XV of the City Charter, banned new oil and gas drilling and limited operation of current wells in the city. It also made it illegal to challenge Article XV as preempted by state law.
- Companies from many industries have long been contracting with distributors to sell products on an exclusive basis. As technology has evolved, however, it has become easier for anyone to sell products on the internet, and the diversion of products to unauthorized online sellers poses a serious threat to companies.
- Vorys Partners Pete Lusenhop and John Keller authored an article titled “Deduction of Post-Production Costs – An Analysis of Royalty Calculation Issues Across the Appalachian Basin” for the for the 36th Annual Energy & Mineral Law Institute Publication.
- The Equal Employment Opportunity Commission (EEOC) recently announced that it will now release employers’ position statements and non-confidential exhibits to charging parties as a matter of course during its investigations.
- On February 18, 2016, the Oregon legislature amended its minimum wage law with a unique, tiered approach. The intent is to balance the needs of the rural, farming communities with that of the growing Portland area. No other state has taken this approach to increasing its minimum wage.
- Monica Oathout, a partner in the Vorys Houston office and a member of the labor and employment group, authored an article for Texas Lawyer titled “Open Carry Law Presents Unsightly Small Business Problems.”
- We understand that incoming calls from reporters and media outlets can be scary. It’s natural to not want to comment and, instead, ignore the reporter’s call.
- On February 12, 2016, West Virginia enacted the Workplace Freedom Act, becoming the 26th state to enact right-to-work legislation (after Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Iowa, Idaho, Kansas, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin and Wyoming).
- Energy and production companies seeking to develop an unconventional natural gas well site in Western Pennsylvania undoubtedly are familiar with the local zoning ordinance and well permit challenges being brought by those opposed to hydraulic fracturing.
- At the beginning of each government fiscal year, which starts October 1, the U.S. Citizenship and Immigration Services (USCIS) makes available an allocation of new H-1B visas. In general, the H-1B visa classification permits a foreign national to work in the United States for a temporary period in a “specialty occupation.”
- In January 2016, Cincinnati became the first city in Ohio to enact a law prohibiting “wage theft” and “payroll fraud” in city contracts. The ordinance applies to city contracts in excess of $25,000, including those involving community reinvestment area tax abatements, job creation tax credits, commercial loans, and conveyances of land for less than fair market value.
- In recent years, there has been backlash against non-disparagement clauses pertaining to online reviews, specifically those attempting to restrict honest—albeit negative—feedback about companies. In fact, California passed a law in August 2014 prohibiting anti-negative review policies, while the Federal Trade Commission filed its first ever lawsuit over similar non-disparagement clauses last September.
- On February 11, 2016, Medicare regulators issued a final rule that relaxes the obligations for doctors and hospitals to report and return Medicare overpayments (RIN 0938-AQ58, CMS-6037-F).
- On Tuesday, the U.S. Substance Abuse and Mental Health Services Administration (SAMHSA) published a proposed rule which would amend the Confidentiality of Alcohol and Drug Abuse Patient Records regulations, found in 42 C.F.R. Part 2.
- As part of an ongoing effort to improve the federal government’s cybersecurity practices, President Barack Obama signed two executive orders this week establishing a Federal Privacy Council to be filled by Senior Agency Officials from at least 24 federal agencies, and a Commission on Enhancing National Cybersecurity, to be composed of up to 12 members appointed by the President.
- On February 1, 2016, Senator Bill Seitz (R-Cincinnati) introduced Senate Bill 268 in the Ohio General Assembly to significantly overhaul Ohio’s civil rights law.
- On January 29, 2016, USEPA proposed amendments to the petroleum and natural gas systems source category of the Greenhouse Gas Reporting Rule, 40 CFR Part 98, subpart W (GHG Reporting Rule).
- On January 20, 2016, the U.S. Department of Labor Wage & Hour Division (WHD) issued an Administrator’s Interpretation on joint employment under the Fair Labor Standards Act (FLSA) and the Migrant Worker Protection Act (MWPA).
- On February 3, 2016, the Pennsylvania Environmental Quality Board approved revisions to Pennsylvania’s natural gas regulations which, in part, would create a new regulatory chapter covering unconventional natural gas wells.
- On February 1, 2016, the Equal Employment Opportunity Commission (EEOC) published proposed revisions to its Employer Information Report (the EEO-1) that are intended to “assist the agency in identifying possible pay discrimination and assist employers in promoting equal pay in their workplaces.”
- Aaron Williams, an attorney in the Vorys Cleveland office and member of the litigation group, authored an article titled “Oil and Gas Drilling and Operations in Ohio: The Evolution of the State’s Sole and Exclusive Regulatory Authority” for LexisNexis/Matthew Bender’s Proceedings of the Institute on Oil and Gas Law.
- Grey market goods generally refer to items manufactured in one country and imported into another (e.g. products created abroad that are imported into the United States) without consent from the trademark owners.
- Allegations of “greenwashing”—generally defined as “the practice of making an unsubstantiated or misleading claim about the environmental benefits of a product, service, technology or company practice”—are on the rise.
- CVS recently announced that it has entered into clinical affiliations with four additional health care providers to “help enhance access to high-quality, affordable health care services for patients.”
- Jolie Havens, the chair of the firm’s health care group, and Stephanie Angeloni, an associate in the health care group, co-authored an article for Crain’s Cleveland Business titled “Legislative Action Impacting Medicare Provider-Based Payment Means Big Change for Hospitals.”
- When it comes to handling internet defamation issues and other online reputation attacks—specifically in terms of removing the content from the internet— the solutions are, in one word: fact-dependent. There is no other way to describe it; there is no perfect solution that can be applied to every instance of online defamation.
- Only one month after oral argument, the Supreme Court of Ohio has issued its decision in the consolidated cases of Hupp v. Beck Energy Corporation (renamed on appeal as Hustack v. Beck Energy Corporation) and Claugus Family Farm L.P. v. Seventh District Court of Appeals, affirming the holding of the Seventh District Court of Appeals that the leases at issue were not perpetual and thus void as against public policy.
- Ordinary consumers are often unable to distinguish counterfeit products from legitimate products. In fact, according to a recent study, nearly one in four consumers has unknowingly purchased a counterfeit product on the internet.
- The issue of accommodating medical marijuana users in the workplace is becoming more common. As we reported last year, the Colorado Supreme Court has unanimously held that employers may still terminate employees who use medical marijuana – even though medical marijuana use was specifically authorized by the Colorado Constitution and even though Colorado law protects employees’ lawful off-duty conduct.
- During 2015, the number of appeals to the Ohio Supreme Court from decisions of the Ohio Board of Tax Appeals (BTA) declined from historical highs in 2014, but are still significantly above appeals from prior years.
- The court reversed a Board of Tax Appeals (BTA) decision that denied a property tax exemption to a board of education that leased a 34-acre parcel of property to a farmer. The local board of education (BOE) acquired 154 acres to build a new high school.
- The State of Ohio requires counties to reappraise properties for tax purposes every six years and update those values in the middle of that cycle. This cycle is not evenly distributed between Ohio’s 88 counties.
- In 2002, the New York City Council enacted the Transgender Rights Bill to expand the gender-based protections under the New York City Human Rights Law (NYCHRL) and ensure protection for those whose “gender and self-image do not fully accord with the legal sex assigned to them at birth.”
- There are several ways in which a disgruntled beneficiary or disinherited heir can challenge a last will and testament or a trust.
- In August 2015, the City of Pittsburgh, Pennsylvania, enacted a paid sick leave law (see our previous Labor and Employment Alert on the ordinance). The ordinance would have required all private employers in the City of Pittsburgh to provide their eligible employees with at least one hour of sick leave for each 35 hours worked.
- On January 11, 2016, the Office of Federal Contract Compliance Programs (OFCCP) final rule on pay transparency became effective. The rule implements Executive Order 13665, issued in April 2014, prohibiting federal contractors from discharging or discriminating against an employee or applicant "because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant" (See our previous Labor and Employment Alert on the final rule). The OFCCP’s final rule applies to all federal contractors with contracts in excess of $10,000 entered into or modified on or after January 11, 2016.
- The Ohio Department of Taxation recently issued an updated Information Release that unmistakably targets digital advertising fees for imposition of sales tax. Traditional advertising services placed through TV/radio broadcasts or through newsprint have never been subject to sales tax.
- On January 5, 2016, New York City Mayor Bill de Blasio signed into law legislation prohibiting employment discrimination based on an individual’s actual or perceived status as a caregiver.
- It’s all over the news and it’s top of mind with bank regulators: “Cybersecurity.” What happened with Target, Home Depot and Wyndham hasn’t helped. The last several years have been fraught with news story after news story about those crafty hackers who find vulnerabilities in a company’s system and steal private information or even redirect funds. And despite all of our technological advancements, the escalation in successful hacking attempts has no end in sight. Call them hackers, fraudsters or good old-fashioned crooks, from computer-savvy teenagers to state-sponsored groups, they are not going away. And, unfortunately, they seem at times to be two steps ahead of the latest security software and security vendors that are offering you and your financial institution protection.
- With an industry-wide focus on enterprise risk management, and with the particular vulnerability of banks to the adverse impact of “reputation risk,” it is important that banks understand and take appropriate steps to mitigate risks associated with internet defamation. Online reputation attacks, including internet defamation, are affecting all industries and professionals. Banks, –including community banks,– are not immune from being attacked and disparaged online.
- Bank and thrift shareholders are “different.” Direct or indirect ownership or control of large blocks of stock in a bank or a thrift institution brings with it the need to be cognizant of complex state and federal laws and regulations that may well trigger applications with state and federal regulators to approve the ownership, and/or a proposed transfer of ownership, in advance.
In a welcome development, the IRS announced on December 28, 2015 (IRS Notice 2016-04) the following extensions of Form 1095-C and Form 1095-B deadlines:
Original Deadline New Extended Deadline Distribution to employees February 1, 2016 March 31, 2016 (2-month extension) Electronic filing with IRS March 31, 2016 June 30, 2016 (3-month extension) Paper filing with IRS* February 29, 2016 May 31, 2016 (3-month extension) * Paper filing is only permitted if an entity is filing fewer than 250 Forms 1095-C or 1095-B.
- Recently the Department of Health and Human Services Office for Civil Rights (OCR) announced three settlements to resolve investigations into potential violations of the Health Insurance Portability and Accountability Act (HIPAA).
- Rodney Holaday, a partner in the Vorys Columbus office, and Paige Kohn, an associate in the Columbus office, co-authored an article for the Winter 2016 edition of the Columbus Bar Association’s Lawyers Quarterly. The article was titled “The Duty of Competence and Trends in E-Discovery.”
- Jessica Knopp Cunning, an associate in the Vorys Akron office and a member of the litigation group, authored an article for The Whisper, DRI's Young Lawyers Committee Newsletter titled "A 'Drone’s Eye' View of State Laws Governing Drone Use.”
- In October 2015, Representative Tom Brinkman introduced House Bill 377 in the Ohio General Assembly to make Ohio the nation’s 26th right-to-work state (along with Alabama, Arizona, Arkansas, Kansas, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin, and Wyoming).
- The U.S. Immigration and Customs Enforcement and Office of Special Counsel for Immigration-Related Unfair Employment Practices recently released guidance for employers conducting internal I-9 audits. The guidance covers topics including how to define the scope of an internal audit, how to communicate to employees regarding the audit, how to fix specific errors discovered during the audit, and other related questions.
- On January 1, 2016, the Texas Open Carry Law becomes effective. The new law allows a person with a concealed handgun license to carry a holstered handgun in plain view in any public place where a concealed handgun is otherwise permitted.
- Members of the Ohio House and Senate concluded their formal work schedule for 2015 last week with a flurry of activity aimed at finalizing pending legislative issues before heading back to their respective districts for the holidays. They are expected to return to Columbus January 20th for a very limited schedule prior to the March 15th Primary Election.
- In November 2015, the Ohio House of Representatives passed a bill (House Bill 48) to expand Ohio’s concealed weapons law.
- Ohio’s biennial budget bill for FY 2016-2017 (Am. Sub. H.B. 64) added Section 5124.70 to the Ohio Revised Code. This section, which was effective September 29, 2015, prohibits, with limited exceptions , an ICF/IID from allowing more than two residents to share a sleeping room.
- Jackie Ford, a partner in the Vorys Houston office and a member of the labor and employment group, authored an article for Texas Lawyer titled “Houston HERO Defeat Doesn't Mean End of Discrimination Protections for LGBT.”
- Tom Fusonie, a partner in the Vorys Columbus office and a member of the litigation group, authored an article for Ohio Farmer on the government’s use of eminent domain.
- Recently five federal agencies, The Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Farm Credit Administration and the Federal Housing Finance Agency (collectively, the Agencies), issued much-anticipated joint final rules (the Final Rules) that establish minimum margin and capital requirements for registered swap dealers, major swap participants, security-based swap dealers and major security-based swap participants (Swap Entities) for which one of the Agencies is the prudential regulator (Swap Entities regulated by one or more of the Agencies are referred to as Covered Swap Entities).
- On Dec. 3, 2015, the Ohio EPA issued an invitation to certain interested parties to begin discussions on how to address USEPA’s Notice of Deficiency for Ohio’s Startup, Shutdown and Malfunction (SSM) rules.
- In November, 2015, as part of the Bipartisan Budget Act of 2015, new rules were enacted governing partnership audits and assessments by the IRS.
- As part of a modernization project that was begun by the Advisory Committee on Bankruptcy Rules in 2008, most of the Official Bankruptcy Forms will be replaced with substantially revised, renumbered and reformatted versions, effective December 1, 2015.
- In an Official Press Release last week, the Federal Trade Commission announced that it has approved final amendments to its Telemarketing Sales Rule that, in large part, help protect consumers by eliminating various payment methods popular amongst scam artists.
- Heather Kabele, a partner in the Vorys Houston office and a member of the litigation group, authored an article for International Law360 titled “FinCEN Expands Data Collection Geography Beyond Banking.”
- California has taken the lead in enacting new comprehensive “green chemistry” laws aimed at reducing toxic chemicals found in everyday consumer products.
- As more employers consider paying their employees with payroll debit cards, they need to be aware of lawsuits challenging the practice and what sparked those suits. In several cases, employees argued that the payroll cards imposed fees for withdrawals, transfers, balance inquiries, and/or inactivity, which allegedly made it impossible for employees to obtain their full, earned wages.
- Minutes, if not seconds, is all it takes for someone to cause harm to another person on the internet. Whether a single posting on social media or another online forum, or a full-fledged harassment campaign consisting of numerous postings on various platforms, it is extremely easy today to cause damage to another’s reputation online.
- There are three federal wealth transfer taxes: (1) the estate tax; (2) the gift tax; and (3) the generation-skipping transfer (GST) tax.
- Recently five federal agencies, The Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Farm Credit Administration and the Federal Housing Finance Agency, issued much-anticipated joint final rules that establish minimum margin and capital requirements for registered swap dealers, major swap participants, security-based swap dealers and major security-based swap participants for which one of the Agencies is the prudential regulator.
- Under what is known as the First Sale Doctrine, one who buys a trademarked good may ordinarily resell that product without infringing the trademark owner’s mark.
- The Bipartisan Budget Act of 2015 (11/2/2015) includes a rare bipartisan amendment to the Affordable Care Act (ACA). The ACA would have required that employers with 200 or more full-time employees auto-enroll their full-time employees in health coverage.
- The federal bipartisan budget contained a little-noticed provision entitled the Federal Civil Penalties Inflation Adjustment Act Improvements Act. This Act requires the Occupational Safety and Health Administration (OSHA) to increase its monetary penalties for the first time since 1990.
- The Bipartisan Budget Act of 2015 (the Act) was enacted just days ago. When the Act takes effect, it will materially reduce reimbursement for new, off campus hospital outpatient departments (OPD), such as hospital-based clinics.
- On November 5, 2015, the Supreme Court of Ohio answered two questions concerning the Ohio Dormant Mineral Act (DMA). In Chesapeake Exploration, L.L.C. v. Buell, the Court held that under the DMA: (1) a recorded oil and gas lease is a title transaction that serves as a savings event that prevents minerals from being abandoned to a surface owner; but (2) that the unrecorded expiration of an oil and gas lease is not a savings event.
- During Monday’s oral argument in Spokeo, Inc. v. Robins, No. 13-1339, the Supreme Court appeared sharply divided on the issue of whether a plaintiff has standing to sue for a technical violation of a federal consumer law even when there is no indication that the plaintiff has actually been harmed by the violation.
- In October 2015, the Occupational Safety and Health Administration (OSHA) announced that it will soon issue a final rule concerning safety incentive programs that reward employees for low accident levels.
- Executives from top businesses around the world have weighed in, and they have indicated that the top risk for their respective companies is their reputation.
- On October 26, 2015, the Ohio Fifth District Court of Appeals in K and D Farms, Ltd, et al. v. EnerVest Operating, L.L.C., et al. addressed several issues concerning oil and gas leases in Ohio.
- Lisa Babish Forbes and Aaron Williams, attorneys in the Vorys Cleveland office, co-authored “Can Localities Use Ballot Power To Ban Oil And Gas Drilling?” for Appellate Law360.
- With cybersecurity as THE hot button issue in bank and thrift risk management right now, and of course to help the industry celebrate “National Cybersecurity Awareness Month” (who knew?), bankers and their boards should take advantage of the FDIC informational teleconference on cybersecurity issues being held on October 28, 2015.
- Following a growing trend among cities nationwide, Minneapolis is weighing a plan to require employers operating within the city to provide employees with extensive paid sick leave. In April 2015, the Minneapolis City Council passed a resolution creating a workgroup, known as the Working Families Agenda, to develop policy proposals on issues affecting low-income workers.
- Whitney Gibson and Jordan Cohen co-authored an article for the Bloomberg/BNA Electronic Commerce & Law Report titled “Favorable Ruling for Critics of Section 230 of the CDA in Washington Case.”
- Last month, the Federal Trade Commission (FTC) filed suit in the Middle District of Florida against two companies and their principals over a “gag” clause aimed at preventing negative reviews.
- Your company spends vast resources developing and protecting its brand. A brand or trademark is shorthand communication for your company’s values and the quality of your products or services. Obtaining a trademark registration from the United States Patent and Trademark Office (USPTO) provides the fullest protection under the law.
- On October 6, 2015, the District of Columbia Council introduced the “Universal Paid Leave Act of 2015,” which would require up to 16 weeks of paid family leave and 16 weeks of paid medical leave per year. Although just introduced, the legislation currently has the support of a majority of the D.C. Council. If enacted, it will affect the budget and operations of D.C. employers.
- The Delaware Court of Chancery is considering an argument that a hyperlink to an allegedly defamatory article, for purposes of overcoming a statute of limitations defense, constitutes republication.
- Beginning January 1, 2016, California may have the most stringent equal pay law in the country. California’s new Fair Pay Act makes it easier for plaintiffs to assert gender-based wage claims and more difficult for employers to defend against them.
- Ray Pinkham, an associate in the Vorys Washington, D.C. office and member of the litigation group, authored an article for the ABA/BNA Lawyers’ Manual on Professional Conduct titled “Embrace Inevitable Change in Legal Services Profession, Conference Speakers Say.”
- On October 2, 2015, California enacted AB 1506 to amend its Private Attorneys General Act (commonly referred to as PAGA) to address the increase in class action litigation over minor, technical violations of itemized wage statements.
- In September 2015, U.S. EPA published a Compliance Alert addressing compliance concerns regarding emissions from controlled storage vessels at oil and natural gas production facilities.
- Jessica Knopp Cunning, an associate in the Vorys Akron office and a member of the litigation group, authored an article for Crain’s Cleveland Business titled “The Future of Drones is Now, Even if the Law is a Bit in Limbo.”
- Dave Froling and John Petzinger, attorneys in the Vorys Columbus office and members of the tax group, co-authored an article titled “Ohio Supreme Court Decision on Bright-Line Domicile Creates Uncertainty Going Forward – Ohio’s Bright-Line Test Is Not So Bright” for the Fall 2015 edition of the Journal of State Taxation.
- This week, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) commenced its “Class Member Locator” website in support of the president’s Transparency and Open Government Initiative. The website’s purpose is to identify and “locate as many class members as possible” who may have been victims of discrimination with a federal contractor.
- Julie Brown, Vorys’ litigation technology executive manager, authored an article for Corporate Counsel titled “How to Decide Who Handles Your E-Discovery.”
- Many businesses today are finding their products being sold online without their permission, often on third-party websites. While the First Sale Doctrine generally permits buyers to resell others’ trademarked goods without incurring any liability, it does not apply when a reseller sells goods that are materially different from the genuine goods sold by a trademark owner.
- The National Labor Relations Board (NLRB) released its most recent in a string of pro-union decisions in the form of a new guidance memorandum from its General Counsel (GC). In the “quickie” or “ambush” election rulemaking, the NLRB had directed the GC to issue guidance on whether electronic signatures should be accepted for the showing of interest required of a union.
- There are three federal wealth transfer taxes: (1) the estate tax; (2) the gift tax; and (3) the generation-skipping transfer (GST) tax.
- The Ohio Board of Tax Appeals (BTA) recently decided what we believe is its first case concerning the allocation of property taxes from horizontal drilling. In the case, the BTA affirmed the Harrison County Board of Revision’s decision dismissing a complaint filed by a local taxing authority challenging the allocation of the tax revenue.
- Steven Becker, a partner in the Vorys Washington, D.C. office, authored a column titled “Your Insurance May Not Cover Website Disability Claims” for the September 14, 2015 edition of Retail Law360.
- Nelson Cary, a partner in the Vorys Columbus office, and George Stevens, an associate in the Columbus office, co-authored an article for Employment Law360 titled “When Calling The Police Is Permissible Under Labor Law.”
- On September 11, 2015, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published its Final Rule on pay transparency in federal contracts. According to the Department of Labor (DOL), this rule “provides a critical tool to encourage pay transparency, so workers have a potential way of discovering violations of equal pay laws and can seek appropriate remedies.”
- In August, the United States Court of Appeals for the Federal Circuit, the federal appellate court with national jurisdiction over patent lawsuits, issued its decision in Limelight Networks, Inc. v. Akamai Technologies, Inc.
- On Labor Day, President Obama signed an Executive Order establishing paid sick leave for employees of federal contractors and subcontractors. This is similar to what several states and cities have mandated for private employers (including Oregon; Montgomery County, Maryland; and Pittsburgh, Pennsylvania). The Executive Order’s requirements apply to all covered federal contracts that are solicited or awarded on and after January 1, 2017.
- Last week, the Washington Supreme Court handed down a favorable ruling in a case turning on the application of the federal Communications Decency Act of 1996 (CDA) – favorable, that is, for those seeking to hold websites accountable for certain harm arising out of content published on their sites.
- Outside of handling internet defamation matters and protecting businesses from product diversion/unauthorized online sales, we are often asked about a number of other internet-related issues, including removing intellectual property (IP) infringement from social media websites.
- Mark E. Vannatta, a partner in the Vorys Columbus office, authored an article entitled "The Ohio Bright Line Residency Test: It Is Not So Luminous Anymore" for the Sep/Oct 2015 edition of the Probate Law Journal of Ohio.
- The NLRB dealt a blow to employers yesterday, releasing its long-awaited decision in Browning-Ferris Industries. In a 3-2 decision, the NLRB rolled back nearly 30 years of case law to “restate” its joint employer standard. The result: a far more expansive test that is centered firmly on the question of control -- even indirect or potential control -- over a work force.
- Mike Griffaton, of counsel in the Vorys Columbus office and a member of the labor and employment group, authored an article for Recruiting Trends Bulletin titled “Screening Candidates Through Social Media.”
- In November 2015, Ohio voters will determine whether to ensconce the use of recreational and medical marijuana in the Ohio Constitution.
- Recently, the U.S. District Court for the Western District of Pennsylvania granted preliminary approval to a $6 million class and collective action settlement between Calfrac Well Services Corp. and a class of about 1,300 fracturing, cement, and coil operators. The plaintiffs worked as field operators in Pennsylvania, Colorado, North Dakota, and Arkansas and were paid according to a complicated formula that included a salary, bonuses, and overtime. The case centered on how the operators’ regular rate of pay (the rate which provides the basis for the time-and-a-half overtime premium) should be calculated.
- According to a recent survey, more consumers are reading online reviews, they are forming opinions based on those reviews quicker, they are paying close attention to star ratings, and – in general – they are highly trusting of online reviews.
- In companion decisions released on August 20, 2015, the Supreme Court of Kentucky confirmed that Kentucky follows the “at the well” rule with respect to post-production costs, but held that the payment of severance taxes must be borne solely by the producer.
- Nelson Cary, a partner in the Vorys Columbus office, and George Stevens, an associate in the Vorys Columbus office, co-authored an article for TLNT.com titled “Why the NLRB Ruled That College Football Players Can’t Unionize.”
- Rob Phillips, the firm’s senior manager of strategic communications, recently authored an article for PR Daily titled “Why you should talk to your employees first in a crisis.” The article focused on the importance of including internal communication in your response to crises.
- On Thursday, August 13, Secretary of State John Husted issued a decision finding that the proposed charter petitions for Athens, Fulton and Medina counties are invalid. The secretary’s decision tracked analysis provided by Vorys’ attorneys Jonathan Airey, Gregory Russell, Lisa Babish Forbes and Aaron Williams in an amicus brief submitted on behalf of the Ohio Oil and Gas Association and the Ohio Gas Association.
- On Tuesday, August 11, 2015, the United States Court of Appeals for the District of Columbia Circuit released a decision upholding an assertion of privilege by Kellogg Brown and Root, Inc. (KBR) over internal investigation documents in a FCA suit alleging kickbacks and overbilling on Iraq war subcontracts.
- Following Oregon’s recently enacted state-wide paid sick leave law, Montgomery County, Maryland, and Pittsburgh, Pennsylvania, are the latest locales to require that employers provide paid sick leave to their employees. This further complicates the growing patchwork quilt of federal, state and local leave laws that employers have to contend with.
- On August 5, 2015, the SEC voted 3-2 to adopt the final pay ratio disclosure rules imple¬menting Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act).
- Since 1990, Title III of the Americans with Disabilities Act (ADA) has required places of public accommodation to meet certain standards for accessibility by persons with disabilities. The traditional definition of “places of public accommodation” – stores, schools, offices, etc. – has largely remained unchanged since the ADA’s enactment. In April 2016, however, a long-awaited change could see an entirely new frontier fall under the scope of the ADA: websites.
- Pursuant to recently enacted legislation, filing deadlines for federal partnership information returns (Form 1065), S corporation information returns (Form 1120S) and C corporation income tax returns (Form 1120) have been changed.
- On July 22, 2015, the United States Department of Defense issued a final rule implementing the Military Lending Act (the MLA), a federal law that provides various protections to active-duty service members in consumer credit transactions. The MLA imposes various restrictions and disclosure requirements on a creditor who extends consumer credit to active-duty service members, their spouses and their dependents.
- Vorys attorneys Daniel Buckley, Lisa Babish Forbes and Elizabeth Weinewuth authored an article for the Probate Law Journal of Ohio titled “Newcomer V. National City Bank Appeal Concludes, Affirms Important Guidance for Ohio Trustees.”
- A decision last week in an FCA case in Pennsylvania confirms that the FCA’s first-to-file bar has been weakened. See U.S. ex rel. Boise v. Cephalon, Inc., No. 08-CV-287 (E.D. Pa.). The court in the Cephalon case confirmed that the Supreme Court’s decision in Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter means that the first-to-file bar does not apply when a previously filed case is no longer pending.
- In mid-2000, the SEC adopted Regulation FD to protect investors by creating a level playing field for all investors for access to material, nonpublic information. The SEC’s primary concern was that selective disclosure, and the perception of selective disclosure to analysts and institutional investors, of material, nonpublic information, leads to a loss of investor confidence in the integrity and fairness of the securities markets.
- On June 9, 2015, the Federal Reserve, OCC and FDIC (as well as the SEC, CFPB and NCUA) issued a final interagency joint policy statement (JPS) establishing standards for assessing the diversity policies and practices of the entities they regulate.
- Imagine the following scenario: your bank has just announced an agreement to be acquired by a larger institution that is entering your market for the first time. Two months into the process your CEO, CFO and chief lender tell the board that they have decided to accept offers from local competitors because (a) they will make more money, (b) they have a built-in customer following and (c) despite good relations with the buyer they are uncertain as to their future and have families to consider.
- As the M&A environment heats up and industry chatter increases, banks and their boards need to be prepared to take advantage of strategic opportunities. Boards should have an M&A strategy in place and this preparation needs to take place before the situation arises.
- Natalia Steele co-authored a column titled “Technological Advancements Have Led to More Traces of Infectious Disease—Now How to Assign Blame When They Cause Harm?” for Texas Lawyer.
- Democrats in Congress recently introduced the Schedules that Work Act to control how employers schedule their employees’ to work. The bill would apply to employers of 15 or more employees.
- Oregon is now the fourth state, after Connecticut, California, and Massachusetts, to mandate that employers provide their employees with sick leave benefits. Oregon’s new sick leave law goes into effect on January 1, 2016, applies to all private- and public-sector employees, and in most cases, requires that the sick leave be paid.
- In May 2014, the Court of Justice of the European Union ruled that individuals have the right to ask Google to remove certain search results about them. This “Right to Be Forgotten,” as it is popularly known, has led to nearly 290,000 removal requests and counting, with Google having evaluated well over a million URLs to date.
- The Ninth Circuit’s recent decision in U.S. ex rel. Hartpence v. Kinetic Concepts, Inc., 2015 U.S. App. Lexis 11643 (9th. Cir. July 7, 2015), overruled existing Ninth Circuit precedent regarding the requirements for meeting the public disclosure rule’s original source exception, weakening the public disclosure bar in the Ninth Circuit and opening the door for increased qui tam activity within that jurisdiction.
- A recent opinion from the federal district court for the Middle District of Pennsylvania determined that drivers who transported water to drilling rigs were not exempt from the overtime requirements of the Fair Labor Standards Act (FLSA) or Pennsylvania law.
- Ohio’s one-time sales tax holiday starts on Friday, August 7, 2015 at 12:01 a.m. and ends on Sunday, August 9, 2015 at 11:59 p.m. Vendor compliance with this holiday is mandatory.
- Today, the U.S. Department of Labor (DOL) issued an Administrator’s Interpretation discussing the misclassification of employees as independent contractors. In this guidance, the DOL takes the position that “most workers are employees under the FLSA’s broad definitions.”
- On June 30th Governor Kasich signed Ohio’s 2016-2017 biennial budget. Amended Substitute House Bill 64 (HB 64) contains a few noteworthy tax reforms. That said, HB 64 is more noteworthy for the tax reforms the General Assembly considered but ultimately discarded -- a commercial activity tax (CAT) rate increase, severance tax reform, sales tax rate increase, and sales tax base expansion.
- On June 30, 2015, Governor Kasich signed into law Amended Substitute House Bill 64 (HB 64), which contains several tax law changes. Included in HB 64 are numerous modifications to both the Ohio Job Creation Tax Credit (JCTC) and the Ohio Job Retention Tax Credit (JRTC). These changes are effective September 29, 2015, the 91st day after the bill was signed. The most significant changes are described in this Alert.
- A Washington appellate court offered defamation plaintiffs a friendly reminder last week: if you want to unmask the identity of an unknown internet poster, you better present evidence to back up your defamation claims.
- On July 1, 2015, the SEC issued proposed rules that would require listed issuers to: • adopt and comply with a policy requiring the recovery of excess incentive-based compensation from the issuer’s executive officers in the event of material accounting restatements; and • disclose the listed issuer’s clawback policy and certain information relating to the application of such clawback policy.
- Jackie Ford, a partner in the Vorys Houston office and a member of the labor and employment group, authored an article titled “Same-Sex Marriage Decision a Win for Employers?” for Texas Lawyer.
- Unless you’ve been under a rock for the past year, you’re aware that perhaps top on the list of “risk management” items is the need to ascertain the viability and efficacy of your data security programs. Banking industry and agency literature has been replete with warnings and highlights. On June 30, 2015 the federal agencies, through the FFIEC, published their promised Cybersecurity Assessment Tool (CAT) to assist institutions, including those too small to have specific cybersecurity assessment resources, to evaluate cybersecurity risks and preparedness.
- Today, the U.S. Department of Labor issued a proposed rule that would significantly expand the overtime protections in the Fair Labor Standards Act. The rule would increase the salary an employee must receive before being considered overtime-exempt to $970 per week – $50,440 per year (or, $122,148 for highly compensated employees) in 2016.
- The Federal Trade Commission (FTC) has recently released its updated “What People are Asking” FAQs regarding its Endorsement Guides. The FTC’s Endorsement Guides help define what the FTC would consider to be a deceptive practice when using endorsements in advertising.
- As the deadline for passage of Ohio’s budget bill looms, a House-Senate Conference Committee worked over the weekend and is expected to meet to report a compromise version of House Bill 64, the state’s two-year main operating budget bill, by mid-week.
- On June 15, 2015, the Colorado Supreme Court unanimously held that employers may still terminate employees who use medical marijuana – even though medical marijuana use is specifically authorized by the Colorado Constitution and Colorado law protects employees’ lawful off-duty conduct.
- Recently, the Centers for Medicare & Medicaid Services (CMS) published proposed rules relative to Medicaid Managed Care Organizations (MCOs) that may increase access to Medicaid behavioral health services through Medicaid managed care programs.
- On June 18, 2015, the Supreme Court of Ohio issued its first decision analyzing one aspect of the much contested Ohio Dormant Mineral Act.
- In May, the Ohio Department of Taxation mailed letters to Ohio direct pay permit holders indicating the Department’s intent to conduct audits for Ohio sales and use tax compliance on purchases. The Department’s letters are friendly reminders that vigilant compliance remains ever important.
- Legislation was recently introduced in the Ohio Senate by Senator Joe Uecker to protect employees who engage in certain off-duty conduct from adverse job actions. At least 29 states and the District of Columbia currently have laws that protect employees to some extent from adverse action based on their off-duty activities.
- Jackie Ford and Elizabeth T. Smith, attorneys in the Vorys Columbus and Houston offices and members of the litigation and labor and employment groups, co-authored an article titled “Crisis Management Takes a Team.” It was featured in the June 2015 edition of the AICUO Affiliate Member Newsletter.
- More employers are using or considering payroll debit cards instead of paper checks or direct deposit to pay their employees. For employers, these cards may be less expensive than physical checks; for employees, these cards allow them to withdraw funds and make payments much like traditional debit cards.
- Greg Russell, Pete Lusenhop and Steven Chang, attorneys in the Vorys Columbus office, co-authored an article for the June 2015 edition of the Oil and Gas Journal titled “Ohio Weighs Post-Production Costs, Royalty Calculations.”
- Heather Kabele, a partner in the Vorys Houston office and a member of the litigation group, authored an article for the Journal of Commerce titled “Treasury Targets Electronics Exporters, Carriers in Miami.”
- The Fair Labor Standards Act (FLSA) requires employers to keep records of nonexempt employees’ hours worked each day, total hours worked each workweek, regular hourly rate, and straight and overtime wages. There is no required form for these records, but the records must include accurate information about the hours worked and the wages earned. A recent case from the Sixth Circuit Court of Appeals reinforces the importance of good record keeping when it comes to tracking employees’ work time. In Moran v. Al Basit, the Sixth Circuit answered “one simple question: Where Plaintiff has presented no other evidence, is Plaintiff's testimony sufficient to defeat Defendant's motion for summary judgment? We hold that it is.”
- Tom Crookes, a partner in the Vorys Akron office and a member of the labor and employment group, authored an article for Crain’s Cleveland Business titled “Prep For, But Don't Ban Politics Talk.”
- Nelson Cary, a partner in the Columbus office, and Ashley Manfull, a senior attorney in the Akron office, co-authored an article for Crain’s Cleveland Business titled “Policies on Employee Appearance and Social Media Use Declared Unlawful.”
- Today the Supreme Court issued its decision in Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter. On the first question presented, the Court held that the Wartime Suspension of Limitations Act (WSLA) applies only to criminal offenses and thus does not toll the False Claims Act’s (FCA) statute of limitations indefinitely while the United States is in armed conflict.
- Last month, the Sixth Circuit reaffirmed the fair market value (FMV) standard as the primary measure of damages in False Claims Act (FCA) cases—and demonstrated the teeth of that requirement when evidence (including expert testimony) is not presented to support an FMV determination. United States v. United Technologies Corp., 2015 U.S. App. LEXIS 5476 (6th Cir. April 6, 2015), represented the culmination of a decades-long dispute between the government and United Technologies’ Pratt & Whitney unit over pricing for engines supplied to the Air Force for use in its F-15 and F-16 aircraft.
- On May 21, 2015, the Supreme Court of Ohio ruled that private entities, even sub-parts of private universities, can quality as public bodies with duties to comply with Ohio’s Public Records Act.
- On May 18, 2015, the U.S. Supreme Court unanimously held in the case of Tibble v. Edison International that fiduciaries of an ERISA plan have a continuing duty to monitor investments and to remove imprudent ones. This decision continues a recent trend in which the Court has demonstrated its willingness to overturn courts of appeals in ERISA cases.
- Blending of families and the handling of the financial assets brought into a new marriage require estate planning solutions specially tailored to meet the unique circumstances inherent in such situations.
- The Fourth Circuit Court of Appeals (which covers Maryland, Virginia, West Virginia, North Carolina and South Carolina) recently held that calling an African-American employee a “porch monkey” twice within 24 hours was so severe that it created a hostile work environment. The Court also found that the employee’s complaints about the comments were protected by the anti-retaliation provisions of Title VII.
- The IRS announced the 2016 indexed amounts for health savings accounts (HSAs) and high deductible health plans (HDHPs).
- Jackie Ford, partner in the Vorys Houston and Columbus offices, authored an article for Law360 on whether traditional definitions of property and ownership include social media accounts.
- Although visual in nature, people are not immune from defamation on the popular photo-sharing app Instagram. In fact, in 2014 – merits of the claims aside – rappers 50 Cent and The Game were each sued in unrelated matters for allegedly tarnishing others’ reputations through Instagram posts.
- On April 29, 2015, the Securities and Exchange Commission (SEC) proposed rules to implement Section 953(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which directs the SEC to require additional “pay-versus-performance” disclosure in any proxy information statements in which executive compensation disclosure is required pursuant to Item 402 of Regulation S-K.
- Pissed Consumer – branded as a “premier consumer advocacy group” – is home to countless online reviews and complaints about businesses across dozens of industries. For many small- and medium-sized businesses, false and defamatory reviews on Pissed Consumer can be quite harmful.
- On April 29, 2015, the U.S. Supreme Court unanimously held that courts may review the EEOC’s conciliation efforts that are a prerequisite to the EEOC’s filing suit against an employer under Title VII. The Court recognized that the EEOC has “expansive” and “abundant” discretion in how to conduct conciliation efforts and when to end them. Consequently, while courts may evaluate whether the EEOC has attempted conciliation, the scope of that judicial review is limited and “relatively barebones.”
- Eve Stratton, of counsel in the Vorys Columbus office who prior to joining Vorys served as justice on the Supreme Court of Ohio for 16 years, authored an article for the Daily Reporter titled “Shuttering of Mental Hospitals Led to Flood of Mentally Ill into the Legal System.”
- Vic Ferguson and Rich Seils, attorneys in the Columbus office and members of the trusts, estates and wealth transfer group, co-authored an article titled “Keeping the (Potential) Disgruntled Beneficiary at Bay – the Current Effectiveness of “No Contest” Clauses in Ohio.”
- Nelson Cary, a partner in the Columbus office and a member of the labor and employment group, and George Stevens, an associate in the Columbus office and a member of the labor and employment group, co-authored an article for TLNT.com titled “Court Won’t Give Legal Relief From NLRB’s ‘Quickie’ Election Rule.”
- When running a search of a business on Google, chances are that an aggregate star rating (on a 5.0 scale) and a listing of Google Reviews will appear high up in the search results. While Google Reviews may not yet have the widespread appeal of Yelp, they are gaining in popularity and will continue to be prominently displayed in Google.com search results for obvious reasons.
- Monica Oathout, a partner in the Vorys Houston office and a member of the labor and employment group, and Jim Barnish, an associate in the Houston office and a member of the litigation group, co-authored an article for Law360 titled “Figuring Out Family Responsibilities Discrimination.”
- Jeff Smith, a partner in the Vorys Columbus office, and Jeffrey Quayle, senior vice president and general counsel for the Ohio Bankers League (OBL), co-authored an article for the Spring 2015 edition of the Ohio Record (the magazine of the OBL) titled “Joining Forces to Enhance Competitiveness.”
- Following its proposal early this year, on April 9 the Federal Reserve issued an important revision to its Small Bank Holding Company (SBHC) Policy Statement relieving bank and savings and loan holding companies with consolidated assets of less than $1 billion from the requirements of Basel III.
- Nelson Cary, a partner in the Vorys Columbus office and a member of the labor and employment group, authored an article for TLNT.com titled “Believe It or Not, NLRB Protects Foul Facebook Attack on Supervisor.”
- For years, the Equal Employment Opportunity Commission declined to provide formal guidance on the application of the ADA to wellness programs. It has now issued rules.
- There are many internet forums on which disgruntled parties are initiating online reputation and brand attacks. This includes people publishing false and defamatory blog posts, which typically involves them creating a free blog through Google, WordPress or another easy-to-use blog-publishing platform for the sole purpose of disparaging other parties.
- Last year, the Sixth Circuit opened the floodgates on telecommuting as a reasonable accommodation under the Americans with Disabilities Act (ADA). In EEOC v. Ford Motor, the Equal Employment Opportunity Commission (EEOC) sued Ford under the ADA for failing to accommodate Jane Harris’ (a former employee) irritable bowel syndrome by refusing her request to telecommute as-needed up to four days a week.
- Increasingly today, “extortionists” – given the significance of online reviews – are threatening businesses with potential harmful reviews or posting other damaging content online. For instance, if a business does not give that person a refund, produce replacement, or discount, he or she could make good on a promise to harm the company online.
- Jackie Ford, a partner in the Vorys Houston and Columbus offices, authored an article for the National Law Journal titled “What Clinton's Email Troubles Can Teach Employers.”
- California courts have made it notoriously difficult to enforce noncompete agreements against former employees in California. The Ninth Circuit Court of Appeals has just made it even harder.
- On April 7, 2015, USEPA proposed a zero discharge Clean Water Act pretreatment standard for wastewater from existing or new Unconventional Oil and Gas Extraction facilities discharged to a Publicly Owned Treatment Works (POTW).
- The U.S. Department of Labor (DOL) recently announced the results of a 2014 enforcement initiative that focused on the oil and gas industry in New Mexico and west Texas. According to the DOL, it recovered more than $1.3 million owed to some 1,300 employees as a result of this investigation. This is not the first DOL foray into wage-and-hour practices within the oil and gas industry. In December 2014, the DOL announced that employers engaged in natural gas extraction in the Marcellus Shale region of Pennsylvania and West Virginia agreed to pay $4,498,547 in back wages to 5,310 employees.
- Despite serious concerns by the industry, as announced on March 19, the Consumer Financial Protection Bureau (CFPB) has opted to publish “personal narratives” in conjunction with complaints against banking institutions. The CFPB website will carry unverified, unsubstantiated and uninvestigated narratives, in the words of the customer, describing their purported issues with a named institution.
- On March 25, 2015, the Securities and Exchange Commission (SEC) adopted amendments to Regulation A, which provides an exemption from the registration requirements of the Securities Act of 1933 (Securities Act) for smaller securities offerings by private (non-SEC reporting) companies.
- The U.S. District Court for the Northern District of Ohio recently certified an important question of law concerning the deduction of post-production costs to the Supreme Court of Ohio: Does Ohio follow the “at the well” rule (which permits the deduction of post-production costs) or does it follow some version of the “marketable product” rule (which limits the deduction of post-production costs under certain circumstances)?
- The National Labor Relations Board has determined that confidentiality statements used in internal investigations are unlawful. Now, the Securities and Exchange Commission (SEC) has weighed in on employee confidentiality agreements.
- On March 18, 2015, the Occupational Safety and Health Administration (OSHA) announced that those engaged in crude petroleum and natural gas extraction, drilling, and related support activities are engaged in “high hazard” activities and will be subject to OSHA’s Severe Violator Enforcement Program. The program has been in effect since 2010, when it replaced the prior Enhanced Enforcement Program. When the program started, OSHA placed its national emphasis on the “high-hazard” industries that involved fall hazards and hazards from amputations; combustible dust, crystalline silica; excavation and/or trenching; lead; and shipbreaking. This announcement is an expansion of the program’s “high hazard” activities. This is important for the oil and gas industry because OSHA concentrates the majority of its resources to inspecting employers from “high-hazard” industries.
- Underscoring a national trend, Virginia joined 18 states (Arkansas, California, Colorado, Illinois, Louisiana, Maryland, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Washington, and Wisconsin) limiting employer access to the social media accounts of job applicants and employees.
- On March 25, 2015, the Supreme Court announced its long-awaited decision in Young v. United Parcel Service regarding the scope of required accommodations under the Pregnancy Discrimination Act (PDA). The case involves a former driver for UPS who claimed that UPS violated the PDA by not offering her light duty when she was pregnant and subject to a 20-pound lifting restriction, despite accommodating nonpregnant drivers with the same lifting restriction.
- On March 24, 2015, the Ohio Supreme Court decided the Fairfield County v. Nally (former Ohio EPA Director) case. This was a challenge brought by Fairfield County to a Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit limit, which was based on a total maximum daily load (TMDL) report prepared by Ohio EPA to limit phosphorus discharges from the county’s wastewater treatment plant.
- On March 18, 2015, the National Labor Relations Board (NLRB) general counsel released a report addressing “problematic” employee handbook provisions that could be “reasonably construed” as having a chilling effect on employees’ Section 7 activity under the National Labor Relations Act (basically, the right to engage in “concerted activities” for collective bargaining or “other mutual aid and protection”).
- As 2015 gets under way, bank compensation committees are tasked with setting the bank’s executive compensation strategy for the year and effectively communicating that compensation structure to shareholders. Compensation committees need to strike a balance between a compensation program that attracts and retains employees and encourages those employees to take appropriate business risks while advancing the bank’s growth strategies and discouraging inappropriate risks.
- Maybe at one time your company was reporting to the Securities and Exchange Commission (SEC) and your company’s stock was listed on The NASDAQ Stock Market (NASDAQ). You were relieved when the Jumpstart Our Business Startups Act allowed you to terminate your SEC registration, even though it meant that your stock could no longer be listed on NASDAQ.
- During the past three years, a significant number of community banks and their holding companies (collectively, banks) throughout the United States elected to “go dark” by taking advantage of a provision in The Jumpstart Our Business Startups Act (JOBS Act). These banks were able to suspend their reporting obligations under Section 12(g) of the Securities Exchange Act of 1934 (Exchange Act) and deregister with the Securities and Exchange Commission (SEC) because they had fewer than 1,200 shareholders of record.
- In December 2014, Congress modified portions of Dodd-Frank to provide additional opportunities to reduce the regulatory burden on community banks. In response to this legislation, on January 29, 2015 the Federal Reserve Board (FRB) requested comment on several related proposals (and an interim rule) focused primarily on increasing the number of holding companies eligible for the reduced reporting and other requirements under the “small” holding company exclusion.
- No company today is immune from negative reviews on websites such as My3Cents.com. In fact, My3Cents.com has received an aggregate 2.2 star rating (out of 5) on its own website.
- Adam Sherman, a partner in the Vorys Cincinnati office and a member of the litigation group, authored an article for Law360 titled “Not All That Is Public Should Be Publicized.”
- For decades, estate planners have been using trusts to help their clients save estate taxes.
- The IRS will need detailed information from employers to enforce three Affordable Care Act (ACA) tax provisions. The IRS must determine whether: (1) an employer owes a pay or play penalty for failing to offer affordable, minimum value health coverage to its full-time employees; (2) employees and/or their family members are entitled to tax credits (subsidies) for the purchase of health insurance in the public exchanges; and (3) employees and/or their family members owe penalties for failing to maintain health coverage.
- The Consumer Financial Protection Bureau (CFPB) released a study on March 10, 2015 that concludes that pre-dispute arbitration agreements restrict a consumers’ relief. This study is the latest step in the CFPB’s analysis of lenders’ arbitration practices and is widely regarded as a precursor to new regulations.
- In Perez v. Mortgage Bankers Association, the Supreme Court unanimously held that federal agencies do not have to engage in formal notice-and-comment rulemaking when changing their interpretative rules (even when, as in the case before the Court, those changes are significant).
- In Perez v. Mortgage Bankers Association, the Supreme Court unanimously held that federal agencies do not have to engage in formal notice-and-comment rulemaking when changing their interpretative rules (even when, as in the case before the Court, those changes are significant).
- Over the past year, Pennsylvania has continued to lead the northeastern United States in natural gas production. According to a report published by the U.S. Energy Information Administration on November 25, 2014, Pennsylvania became the second-largest shale gas producing state in the nation in 2013, and production continued to increase throughout 2014.
- 2014 was a year of continued growth and expansion for Ohio’s oil and gas industry. Drilling and production increased dramatically, with more than 50 Utica rigs operating in Ohio at year end and over 550 new drilling permits having been issued as of October 2014, which is more than all of 2013.
- With Governor Scott Walker’s signature today, Wisconsin has become the latest state to enact a right-to-work law. Indiana and Michigan last did so in 2012. Wisconsin brings the total number of right-to-work states to 25.
- Businesses have a lot to gain from positive online reviews. Even a business that has overall strong reviews, however, can suffer if a disgruntled person publishes a false and defamatory post. Complaints.com is one website where businesses can become victims of internet defamation, and the website’s header – which reads “CONSUMERS IN CONTROL” – implies the difficulty of a business’s internet reputation being in the hands of other persons.
- Any employer who has done business in California is familiar with the state’s byzantine wage-hours laws and the immense liability for even minor violations. The complexity of these laws – and the potential exposure facing employers – has not been lost on the Ninth Circuit Court of Appeals as the recent case of Mendoza v. Nordstrom demonstrates.
- There is no denying that online reviews are important for businesses. After all, customers regularly search them out and are increasingly relying them.
- Several employment laws recently became effective in Washington, D.C. that impose new requirements on employers operating within the District on wage transparency, marijuana testing, pregnancy accommodations and concealed weapons. Employers should review their current operations and policies to ensure they comply with the new laws’ requirements.
- Monica Oathout, a partner in the Vorys Houston office and a member of the labor and employment group authored an article titled “Religious Liberties and LGBT Rights.”
- Effective May 26, 2015, certain H-4 dependent spouses of H-1B nonimmigrants will become eligible for their own employment eligibility.
- Labor and Employment Alert: Department of Labor Finalizes Rule on Same-Sex Spouses for FMLA CoverageThe federal Family and Medical Leave Act (FMLA) provides eligible employees of covered employers with unpaid, job-protected leave for specified family, medical, and military family reasons. On February 25, 2015, the Department of Labor (DOL) issued a Final Rule that revises the FMLA’s regulatory definition of “spouse.”
- As the 131st Ohio General Assembly continues to get underway, Senate Democrats recently introduced three bills regulating employers’ use of consumer credit reports, criminal histories and social media accounts.
- Paige Kohn, an associate in the Vorys Columbus office, authored an article for Columbus C.E.O. titled “How Businesses Can Avoid Legal Risks of Utilizing Social Media.” The story highlighted the pros and cons of the use of social media in the workplace.
- Monica Oathout, a partner in the Vorys Houston office and a member of the labor and employment group authored an article titled “Religious Discrimination and Same Sex Marriage.”
- Under the New Jersey Law Against Discrimination (NJLAD), an employer can be liable for hostile work environment harassment in two ways. First, an employee can assert a cause of action directly against the employer for negligently or recklessly causing the hostile environment. Second, the employer can be vicariously liable for the acts of its supervisors. The New Jersey Supreme Court’s recent ruling in Aguas v. State, 2015 N.J. LEXIS 131 (2015), significantly impacts the state’s employers when it comes to defending against that second theory of sexual harassment and reinforces the importance of effective anti-harassment procedures.
- Founded in 2007, Glassdoor.com is an online “career community” with a database consisting of several million company reviews, CEO ratings, salary reports, job interview reports and more. But as both the Associated Press and the Wall Street Journal phrased things – in articles published nearly three years apart – Glassdoor is a website where employees can “anonymously dish” on their companies and bosses.
- The Ohio Department of Taxation is expected to begin auditing businesses within the oil and gas industry for sales and use tax compliance (i.e., purchase audits).
- The Ohio Department of Taxation has announced its renewed effort to audit Ohio direct pay permit holders for sales and use tax compliance (i.e., purchase audits).
- In a significant victory for the oil and gas industry, on February 17, 2015, the Supreme Court of Ohio, in State ex rel. Morrison v. Beck Energy Corp., affirmed the State of Ohio’s “sole and exclusive” authority over the regulation of oil and gas operations in the state.
- On February 11, 2015, Representative Ryan Smith introduced Ohio House Bill 64 (the Bill), the governor’s proposed 2016-2017 biennial budget bill. As Governor John Kasich previously announced, the Bill contains a number of Ohio tax proposals, including reform of Ohio’s severance taxes.
- The language of Governor Kasich’s 2016-2017 biennial budget bill was recently released. House Bill 64 has 84,757 lines and 2,783 pages of text. Many of the details track very closely to summaries of the bill announced during the preceding weeks. The proposal includes significantly reduced personal income tax rates, continued and expanded small business income tax exclusions and higher personal exemptions.
- On February 9, 2015, the Securities and Exchange Commission (the SEC) proposed rules to implement Section 955 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which directs the SEC to require, by rule, each public company to disclose in any proxy or consent solicitation material for an annual meeting of the shareholders of the company whether any employee or director, or any designee of such employee or director, is permitted to hedge the company’s equity securities.
- Courts continue to whittle away at the public disclosure bar, historically one of the best ways to dispose of parasitic qui tam lawsuits. Most recently, the Eleventh Circuit issued a ruling regarding the impact of the 2010 amendments to the False Claims Act’s (FCA) public disclosure rule. In its opinion in U.S. ex rel. Osheroff v. Humana, Inc., the Eleventh Circuitjoined the Fourth Circuit in holding that the public disclosure rule, as amended in 2010, is no longer a jurisdictional bar to an FCA action. Instead, under the amended version of the statute, defendants now must move to dismiss allegations that have been publicly disclosed under Fed. R. Civ. P. 12(b)(6).
- Whitney Gibson, the leader of the firm’s internet defamation practice, authored an article for Social Media Explorer titled “Strategies for Legally Generating and Monitoring Online Reviews.”
- FLSA claims involving off-the-clock work have become a popular claim in recent years. A recent Eleventh Circuit ruling has made employer defenses to such lawsuits a bit more challenging. In Bailey v. TitleMax of Ga., Inc. (11th Cir., No. 14-11747, 1/15/15), the employer argued that the plaintiff’s claims should be barred because the plaintiff failed to report all hours worked, which caused the company to under-compensate the plaintiff.
- In a much anticipated opinion, the U.S. Court of Appeals for the Ninth Circuit upheld an Idaho district court’s order mandating the unwind of a merger between two health care providers in Nampa, Idaho after determining that the merger violated § 7 of the Clayton Act. In the wake of the FTC’s recent and heightened enforcement in the health care industry, St. Alphonsus Medical Center-Nampa, Inc. v. St. Luke’s Health System, Ltd., No. 14-35173, (9th Cir. Feb. 10, 2015), offers important insight into the hotly debated interplay between the integration encouraged under the Affordable Care Act and the operation of federal antitrust laws.
- A recent Sixth Circuit opinion provides defendants a valuable roadmap for using government witness testimony to defeat False Claims Act (FCA) claims on materiality grounds at the summary judgment stage. In U.S. ex rel. American Systems Consulting, Inc. v. ManTech Advanced Systems Int’l Inc., Case No. 14-3269 (6th Cir.), the court rejected the relator’s argument that materiality decisions should be left to a jury. Instead, the court expressly held that “a judge may decide as a matter of law whether a misrepresentation was material under the FCA.”
- Ohio Governor John Kasich recently outlined the tax changes he will include in his 2016-2017 biennial state budget. The governor’s proposal is a mixture of cuts, increases and elimination of taxes which he says will result in a net $500 million tax cut for Ohioans. The taxes included in his package are: sales tax, commercial activity tax, oil and gas severance tax, individual income tax and tobacco tax.
- Groucho Marx once said that “politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly, and applying the wrong remedies.” So as we welcome the 131st Ohio General Assembly, we already have the introduction of pro-employee wage-and-hour legislation. On February 2, 2015, Senator Kenny Yuko (D-Richmond Heights) introduced Senate Bill 25 which would make significant changes to Ohio’s employment laws.
- Whitney Gibson, the leader of the firm’s internet defamation practice, authored a column, which was titled “Think You're Onto the Apps Your Kids are Into?,” for WCPO.com.
- This is a reminder to all employers with employees in California to implement the new workplace bullying training requirements that went into effect for California employers on January 1, 2015.
- Whitney Gibson, the leader of the firm’s internet defamation group, a Jordan Cohen, a member of the internet defamation group, authored an article for Privacy Law360 titled “FTC Is Cracking Down On 'Revenge Porn.’”
- As multistate employers are well aware, several states have enacted “wage theft prevention acts.” These laws are designed to ensure employees know how much they are being paid by requiring employers to provide detailed notices to employees on a set schedule, including at the time of hire. California and New York have had laws on wage theft for several years. Washington, D.C. enacted a new law late last year dealing with wage theft and making other, perhaps more disturbing, changes to wage and hour law in the District.
- Negative media coverage has always posed a challenge for businesses and professionals. Given the current internet landscape and the ability of articles to spread quickly through social media, businesses must be especially active in trying to deal with bad publicity.
- As the new year is in full swing, you may or may not have ditched your resolutions by now.
- President Obama delivered his sixth State of the Union address on Tuesday, and labor and employment matters took center stage. While the president’s address does not have the force of law, it highlights for employers what issues the White House plans on pursuing in the coming year.
- When someone posts a harmful YouTube video about another person or organization, not only can this cause significant harm in and of itself, but it can also be difficult for the subject of the video to get it taken down.
- We hope you and your family enjoyed a happy holiday season. We’re writing to introduce you to a new e-newsletter we will begin publishing next week.
- On January 13, 2015, the United States Supreme Court ruled in favor of homeowners seeking to rescind their loans and mortgages with written notice to lenders within three years of completion of a real estate transaction, where lenders allegedly failed to comply with the federal Truth in Lending Act (TILA). Based on this decision in Jesinoski v. Countrywide Home Loans, Inc., it is not necessary that a homeowner actually file a court action within those three years.
- Justin Roberts, partner in the litigation group in the Cleveland office, and Sean Purcell, a partner in the corporate group in the Washington, D.C. office, authored an article for Crain’s Cleveland Business titled “Don’t Buy an FCPA Problem in an Overseas Deal.”
- Before there was Yelp, there was Citysearch. Founded in 1995 as an online guide for finding local businesses, Citysearch helped pave the way into an era of consumers posting online reviews. While Yelp has blown Citysearch and other competition out of the water in recent years, Citysearch is nevertheless still active and businesses are still very much vulnerable to false reviews on the website.
- Health Care Alert: Federal Court Strikes Down DOL’s New Companionship Services Exemption RegulationsNew U.S. Department of Labor (DOL) regulations concerning the companionship services exemption to the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA) were scheduled to take effect on January 1, 2015.
- Speaker of the House Cliff Rosenberger (R-Clarksville) and House Minority Leader Rep. Fred Strahorn (D-Dayton) announced House committee leadership positions this week for the new two-year session.
- Ashley Manfull, an associate in the Vorys Akron office and a member of the labor and employment group, authored an article for Crain’s Cleveland Business regarding employee performance improvement plans (PIPs) and year-end reviews.
- On January 8, 2015, the United States Court of Appeals for the Fourth Circuit reinstated the government’s False Claims Act (FCA) claims in United States v. Triple Canopy, Inc., No. 13-2190. In reversing the district court’s dismissal of the government’s case, the Fourth Circuit highlighted, both explicitly and implicitly, the importance of the government’s decision to intervene in the case.
- Earlier this week, President Obama gave a speech at the FTC laying out an agenda on privacy and data security issues, and indicating that the topic is important enough to the administration that it will be included in his upcoming State of the Union address. Generally, the initiative’s goals include tackling identity theft, protecting the privacy of student data and working toward a general privacy “bill of rights” to provide comprehensive data and privacy protections.
- It is once again time for public companies to march into proxy season. While the SEC has not adopted any significant new rules or amendments effective for the 2015 proxy season, you should keep the following items in mind as you prepare.
- The Sixth Circuit Court of Appeals recently issued a decision regarding whether interruptions of an employee’s meal period automatically render that time compensable under the Fair Labor Standards Act (FLSA).
- Earlier this week, Judge Amy Totenberg of the United States District Court for the Northern District of Georgia imposed significant monetary sanctions against a pair of relators who blatantly and repeatedly violated the seal order in a pending qui tam action, United States ex rel. Bibby v. Wells Fargo Bank, N.A., Case No. 1:06-CV-0547-AT.
- On December 19, 2014 Governor Kasich signed Am. Sub. H.B. 5 (the Bill) into law thus concluding three years of contentious lobbying between selected trade associations on one side of the debate (primarily The Ohio Chamber of Commerce, The Ohio Society of CPAs and The National Federation of Independent Business) and Ohio’s roughly 600 municipalities on the other side of the debate.
- With 70 million-plus members, TripAdvisor has developed a reputation as a well-trusted source for information and trip planning options for hotels, restaurants, and various attractions. Of course, like any website, TripAdvisor is not free of false or otherwise fraudulent reviews.
- On December 15, 2014, the United States Supreme Court decided that a party seeking to remove a class action to federal court need not include evidence of the amount in controversy as part of its petition for removal. Instead, the party seeking removal need only plausibly state that the amount at stake exceeds $5 million. The case is Dart Cherokee Basin Operating Co. LLC v. Owens, 574 U.S. ---, 2014 U.S. LEXIS 8435 (2014).
- Bret Treier co-authored Mergers and Acquisitions for Distributors: Expert Advice for Buyers and Sellers.
- Margaret Everett, of counsel in the Vorys Cleveland office and member of the litigation group, authored an article for Crain’s Cleveland Business titled “Workers' Compensation Fraud Investigations: Old School Meets New Tools.”
- Members of the 130th Ohio General Assembly officially finished their business and headed home after the conclusion of a lengthy Ohio House floor session December 17. The hectic final days were notable both for the legislation that passed as well as for some high profile bills that did not pass.
- Effective January 1, 2015, employers with facilities located in states subject to federal OSHA jurisdiction will have new reporting requirements. Previously, employers were required to report all work related fatalities and work related hospitalizations of three or more employees within eight hours of the event.
- Whitney Gibson, the leader of the firm’s internet defamation group, and Jordan Cohen, an associate in the internet defamation group, co-authored an article for Travel Law Quarterly titled “New York Hotel’s Policy Against Negative Online Reviews Backfires.”
- Following an extended dry spell for de novo bank applications, in what could be interpreted as a gesture to “kick-start” de novo conversations, the FDIC issued in November a somewhat “out of the blue” financial institutions letter (FIL-56-2014) containing a series of Q&As relating to procedural issues surrounding applications for deposit insurance.
- When bankers see news reports about the Defense of Marriage Act (DOMA), Ohio’s Marriage Amendment and recent court cases involving same-sex marriages, they probably think in terms of constitutional, health care, employment and domestic issues.
- Both state and federal bank regulatory exam reports use references to Matters Requiring Attention (MRAs), Matters Requiring Board Attention (MRBAs) and Matters Requiring Immediate Attention (MRIAs) as mechanisms for bringing issues and concerns to the attention of financial institution boards.
- Community banks and thrifts have great reputations for their focus on customer service. Management and boards of financial institutions are accustomed to being thoroughly engaged and focused on maintaining and monitoring good relationships with their key customers at all levels.
- Vorys Partners Greg Russell and Pete Lusenhop authored an article for the Oil & Gas Monitor titled “‘It’s All About that Basin, Bout Dat Basin…No Trouble (Well Maybe a Little).” The article highlighted the lessons that can be learned from recent and pending cases in U.S. shale plays. According to the authors, the main lesson is “Proceed with Caution.”
- Both the West Coast (led by San Francisco) and the East Coast (led by Philadelphia) recently illustrated growing pro-employee trends in defining employee work schedules and in ensuring paid sick leave for employees.
- In several previous blog posts, we have mentioned obtaining court orders with the aim of getting links to harmful content, such as Ripoff Report posts, de-indexed from search engines. What we have not written about, to date, is how to use a court order to get links removed from Google.
- Kevin Gormly, a partner in the Pittsburgh office, and Abbi Marusic, an associate in the Pittsburgh office, provided the Pennsylvania Oil and Gas Update in the Rocky Mountain Mineral Law Foundation Mineral Law Newsletter, Vol. 31, No. 4.
- Last Friday, the NLRB issued its long-anticipated “ambush election” or “quickie election” rules. The rulemaking, which followed a long and tortured procedural path, is a major overhaul of the procedures used to conduct secret ballot, union elections. These elections are an important path to union representation, and they will now occur more quickly after the election petition is filed.
- Since 2007, as a result of the NLRB’s Register Guard decision, an employer could lawfully limit the use of its email system by employees for certain non-business related activities, assuming that it applied the rule non-discriminatorily. On December 10, 2014, in a 3-2 decision, the NLRB reversed the old rule established in Register Guard and established a new rule. Now, employees must be permitted to use employer email for statutorily protected communications during nonworking time if they have access to employer computer systems for work.
- People today love sharing photographs of themselves and their whereabouts. And today’s technology makes it so easy. While there are numerous websites and apps that make this possible, among the most popular are Facebook, Twitter and Instagram. This trio ranks second, eighth, and twenty-fourth, respectively on Alexa.com’s rankings of top websites in the United States.
- Whitney Gibson, a partner in the Vorys Cincinnati office and the leader of the firm’s internet defamation group, and Mary Henkel, of counsel in the Cincinnati office and a member of the litigation group, authored an article for Social Media Explorer called “Can Haters Post Death Threats on Facebook?”
- As we reported in October, the case of Integrity Staffing Solutions, Inc. v. Busk, U.S. No. 13-433, has been closely watched by companies that screen their workers to prevent employee theft. Integrity Staffing required its employees to pass through a security check at the end of each shift and did not compensate them for the 25 minutes the employees claimed the process took.
- Eighteen states and the District of Columbia currently protect lesbian, gay, bisexual and transgender employees (LGBT). In July 2014, President Obama issued Executive Order 13672, which extended this protection by prohibiting discrimination on the bases of sexual orientation and gender identity in federal contracts.
- Michael Garvin, a partner in the Vorys Cleveland office and a member of the litigation group, authored an article for the Canadian Federated Press publication Intellectual Property. The article was titled “How "Inter Partes Review" Will Reshape Patent Litigation Advice.”
- According to a recent Department of Justice press release regarding annual False Claims Act (FCA) recoveries, FCA recoveries continue to skyrocket, in keeping with the trend in recent years. 2014 marks the third straight year in which the Department of Justice has announced a record-setting annual recovery.
- The use of independent contractors in the oil and gas industry is typical and its advantages are obvious. However, decisions about when and how to use independent contractors might be made without full consideration of potential problems or the ever-looming and potentially significant risks of misclassification.
- Whitney Gibson, a partner in the Vorys Cincinnati office and the leader of the firm’s internet defamation group, and Mary Henkel, of counsel in the Cincinnati office, authored an article for PR Daily called “What PR Pros Should Know About the Supreme Court's Facebook Case.”
- Led by the Equal Employment Opportunity Commission (EEOC), federal agencies are beginning to focus on sexual orientation, gender identity and transgender discrimination. While the proposed federal Employment Non-Discrimination Act, which has been introduced in every Congress since 1994, is unlikely to gain traction in the new Republican-controlled Congress, the EEOC and Department of Labor (DOL) have made lesbian, gay, bisexual and transgender (LGBT) issues an enforcement priority.
- On November 26, 2014, U.S. EPA proposed a more stringent national ambient air quality standard for ozone. The Clean Air Act requires U.S. EPA to establish two air quality standards for ozone: a primary standard, to protect public health with an “adequate margin of safety”; and a secondary standard, to protect the public welfare. U.S. EPA’s proposal reduces the current primary and secondary ozone standard of 75 parts per billion (ppb) to a level that is proposed to be between 65 and 70 ppb.
- Dave Froling and John Petzinger, attorneys in the Vorys Columbus office and members of the tax group, co-authored an article titled “The Ohio Commercial Activity Tax: Audit Trends and Latest Developments” for the Winter 2014 edition of the Journal of State Taxation.
- Lisa Babish Forbes, a partner in the Vorys Cleveland office and a member of the litigation group, authored an article for the Cleveland Metropolitan Bar Journal titled “Exculpatory Clauses: They May Not Mean What They Say.”
- Ashley Manfull, a senior attorney in the Vorys Akron office and a member of the labor and employment group, authored an article for TLNT.com titled “Troubling Questions After Record $185 Million Discrimination Award.”
- Michael Garvin, a partner in the Vorys Cleveland office and a member of the litigation group, authored an article for the Crain’s Cleveland Business/Legal Marketing Association (Ohio Chapter) 2014 Legal Guidebook.
- On November 20, 2014, President Obama announced a number of executive actions (also known as the Immigration Accountability Executive Actions). One of the executive actions focused on policies supporting U.S. high-skilled businesses and workers. A link to this executive action can be found here. In this action, President Obama directs new policies and regulations that will support our country’s high-skilled businesses and workers by improving the ability of U.S. businesses to hire and retain highly skilled foreign-born workers, while also providing the workers with increased flexibility to make natural advancements with their current employers or seek similar opportunities elsewhere.
- Even the best businesses cannot always keep every customer, employee, business partner, or other party happy at all times. Unfortunately, in this day and age, many of these disgruntled parties will choose to take their complaints public by posting disparaging information or content about a company online, which can cause significant damage.
- Sean Purcell, a partner in the Vorys Washington, D.C. office and a member of the corporate group, authored an article for BNA’s Banking Report titled “Good for Business: How Lenders Can Benefit From Ex-Im Bank Charter Extension.”
- Whitney Gibson, a partner in the Vorys Cincinnati office and the leader of the internet defamation group, authored an article titled “How Organizations Should Handle False, Defamatory Reddit Posts” for PR Daily.
- The National Labor Relations Board (NLRB) recently issued a decision reaffirming its much-maligned 2012 D.R. Horton opinion. In D.R. Horton, the NLRB held that an employer could not require employees to resolve employment-related claims through individual arbitrations, thereby waiving their right to proceed in a collective or class action.
- On November 13, 2014, Ohio EPA issued draft amendments to the rules in OAC Chapter 3745-31 governing the Permit-to-Install New Sources and Permit-to-Install and Operate Program, including a new permit-by-rule (PBR) provision for emissions from horizontal well completion operations (OAC 3745-31-03(C)(2)(m)).
- Recent lawsuits, in Ohio and beyond, have accentuated the risks institutions face under the Fair Labor Standards Act (FLSA) when it comes to how Mortgage Loan Officers (MLOs) are paid. U.S. Department of Labor (DOL) activity in the past several years has further increased those risks.
- Starting in 2015, a large employer will be subject to pay or play penalties if it fails to offer affordable health coverage that provides at least minimum value to its full-time employees. A health plan provides “minimum value” if it is designed to pay at least 60% of the total cost of medical services for a standard population. This is generally equivalent to a bronze level plan sold in the public health insurance Exchange.
- Jonathan Ishee, of counsel in the Vorys Houston office and a member of the health care group, co-authored an article for the ABA Health Law Section: ESource titled “The Out-of-Network Battle Heats Up.”
- Mathew Drocton, an attorney in the Vorys Columbus office and member of the litigation group, authored an article titled “Searching for the Sweet Spot: An Analysis of the American-U.S. Airways Merger” for the Case Western Reserve Law Review 2014 edition.
- Businesses will be best equipped to handle online reputation attacks if they take steps upfront to protect their reputations; take preventative measures to try to thwart or limit attacks; and plan out how to address attacks if (or when) they really do occur.
- This alert details results of the 2014 general election.
- Voters in four states and two California cities yesterday faced ballot initiatives proposing to raise the state minimum wage. All were passed. Alaska will raise its minimum wage from $7.75 an hour to $8.75 on Jan. 1, 2015, and to $9.75 on Jan. 1, 2016. The measure also provides for automatic yearly increases after 2016 based upon inflation, and further provides for an automatic increase should their minimum wage ever be less than $1 over the federal minimum wage. The measure included language that specifically indicated that tips and gratuities do not count towards a worker’s wage.
- Nelson Cary, a partner in the Vorys Columbus office and a member of the labor and employment group, authored an article for TLNT.com titled “NLRB Revisits the Definition of an Independent Contractor.”
- Published in The Evaluator, this article details the number of appeals to the Ohio Supreme Court from decisions of the Ohio Board of Tax Appeals (BTA).
- Published in The Evaluator, this article details several cases related to real property taxation.
- Published in The Evaluator, this article details counties reappraising or updated tax valuations for 2014.
- In the Fall 2014 edition of The Evaluator, read about appeals of BTA decisions, cases the Ohio Supreme Court decided related to real property taxation, as well as updates on counties reappraising or updated tax valuations for 2014.
- The Centers for Medicare and Medicaid Services (CMS) had set November 5, 2014 as the deadline for all but the smallest self-insured health plans to obtain a health plan identification number (HPID). On October 31, 2014 – less than a week before that deadline (and three days after publishing new FAQs on the process) – CMS announced an indefinite delay in the requirement that health plans get HPIDs.
- Dave Froling and Jeffrey Miller, attorneys in the Vorys Columbus office and members of the tax group, co-authored an article titled “It’s Time to Update Your Tax Sharing Agreement – And If You Do Business in Ohio You’ll Need a Second One” for the November/December 2014 edition of the Journal of Taxation and Regulation of Financial Institutions.
- Emily Pan, an attorney in the Vorys Cincinnati office, authored an article titled "Trust Protectors: Does Ohio Law Leave More Questions Than Answers?," for the Probate Law Journal of Ohio.
- Although the Internal Revenue Service (IRS) and the Department of Labor (DOL) have agreed on standards for wellness programs, and Congress seemed to have blessed those standards when it authorized higher levels of incentives in wellness programs as part of the Affordable Care Act (ACA), the Equal Employment Opportunity Commission (EEOC) has long expressed concerns about those standards.
- A federal district court in Virginia last week tentatively approved a $4 million settlement between Dollar General and a nationwide class of job applicants to settle a proposed class action claiming that the company did not properly notify more than 100,000 job applicants since 2007 that they would be screened by background checks.
- One person with Ebola, technically known as the Ebola hemorrhagic virus, and sometimes called the Ebola Virus Disease, has died in the United States. Two others, health care workers who treated the first patient, have been diagnosed with the illness.
- Last week, the District of Kansas granted summary judgment to Boeing in U.S. ex rel. Smith v. The Boeing Company, Case No. 05-10730MLB (D. Kan.), a False Claims Act case in which the qui tam relators effectively tried to second-guess the professional judgment of the Federal Aviation Administration (FAA).
- One of the Equal Employment Opportunity Commission’s (EEOC) enforcement priorities is to target policies that discourage or prohibit individuals from exercising their rights under employment discrimination statutes or that impede the EEOC's investigative or enforcement efforts. Recently, the EEOC has targeted settlement provisions that appear to prohibit filing EEOC charges or that appear to restrict the ability of an employee to provide the EEOC with information to assist in investigating and prosecuting discrimination claims.
- Today, a business’s online reputation is a large component of how it is perceived by customers and potential customers. Businesses must be aware of what customers are saying about them online and via social media.
- Yesterday, the United States Supreme Court heard oral arguments in Integrity Staffing Solutions, Inc. v. Busk, U.S., No. 13-433, which will address whether the Fair Labor Standards Act (FLSA), as amended by the Portal-to-Portal Act, requires payment for time employees spend waiting for and engaging in security screenings at the end of a shift.
- Workplace bullying is a topic that is garnering a lot of attention. A new poll commissioned by CareerBuilder found that 28% of workers feel that they have been bullied at work and 19% of those workers have left their jobs because of the bullying. Twenty-Seven percent of those bullied are management employees (manager, director, team leader, vice president and above); 19% of employees bullied earn more than $50,000 a year.
- Effective January 1, 2015, Ohio’s minimum wage will increase to $8.10 an hour for non-tipped employees, and $4.05 for tipped employees. The increase applies to employers with more than $297,000 in annual gross receipts.
- If given the opportunity, anyone that has been defamed on Reddit would surely “downvote” the popular website for its policy on defamation removal. According to Reddit, it is uncommon for administrators of the website – self-branded as “a source for what’s new and popular on the web” – to remove defamatory content.
- Paige Kohn, an associate in the Vorys Columbus office and a member of the litigation group, authored “Legal Industry Moves Away From Billable Hour to Alternative Fee Arrangements” for the October 2014 edition of Columbus C.E.O. magazine.
- Dave Froling and Jeffrey Miller, attorneys in the Vorys Columbus office and members of the tax group, co-authored an article titled “The Ohio Supreme Court Decides Two Important Municipal Income Tax Cases Involving the Ohio Constitution” for the Fall 2014 edition of the Journal of State Taxation.
- Whitney Gibson co-authored an article for Texas Lawyer titled “SCOTX Internet Defamation Ruling Helps Mitigate Damages.”
- On September 26, 2014, the Ohio Seventh District Court of Appeals in Hupp et al. v. Beck Energy Corp. et al. reaffirmed the ongoing viability of several typical oil and gas lease terms in Ohio, reversing a lower court decision that had held that commonly-used habendum clause and delay rental provisions created no-term leases that violated public policy and were therefore void from their very inception.
- Natalia Steele, an associate in the Vorys Cleveland office and a member of the litigation group, authored an article for the American Bar Association Insurance Services: Safe Talk newsletter. The article highlighted the increasing trend of lawsuits being filed against banks and their directors and officers on behalf of shareholders regarding a bank merger or acquisition.
- It is no secret that people are more comfortable publishing harmful statements on the internet when their identities are masked. As such, the sources of internet defamation and other online reputation attacks typically publish damaging content anonymously or pseudonymously.
- Allen Kinzer, a partner in the Vorys Columbus office and a member of the labor and employment group, authored an article titled “Bonus Dispute Makes DOL Seem Like 'Department Of Languor'” for Employment Law360.
- Businesses and individuals have increasingly become victims of false online reviews. When a party has been the subject of such damaging internet posts, there are a variety of techniques an attorney or other hired professional (e.g. PR or ORM expert) can utilize to assist his or her client.
- The latest edition of the Ohio Statehouse Update covers two high profile pieces of legislation that were passed this spring, as well as ongoing legislative committee hearings and meetings regarding pending bills and policy issues.
- Whitney Gibson, a partner in the Cincinnati office and the leader of the firm’s internet defamation group, authored an article for Social Media Explorer about “Twitter parties.”
- If your company sponsors a self-insured health plan, there are two November deadlines you may have overlooked in the midst of preparation for the ACA’s pay or play penalties and 2015 open enrollment.
- Now that Ohio’s Captive Insurance Legislation is effective, companies are likely thinking: “What are my next steps?” Each Captive is unique and its creation and operation will depend on a number of factors, including the business purpose behind forming the Captive. A company considering the use of a Captive will need to weigh the positives and negatives associated with forming and operating a Captive.
- With developments over the recent years that include a number of high profile data breaches (e.g., Snowden and Target), the National Institute of Standards and Technology release of its recommendations titled the "Framework for Improving Critical Infrastructure Cybersecurity," and the enhanced regulatory exam focus on identifying an institution’s preparation and protections related to cyber risks, institutions and boards that fail to focus and create plans to deal with cyber risks do so at their own peril.
- Life as a mutual thrift is a good news/bad news proposition. The "good news" is that you’re not constantly facing shareholder pressures for performance and returns because you don’t have shareholders to worry about. The "bad news" is that your only current direct option for raising capital, when needed or desired, is severely restricted to the long-term mechanism of accumulating retained earnings.
- While the "big" banks and bank holding companies have been issuing preferred stock to raise capital for years, we have recently seen increased interest from community banks and bank holding companies in issuing convertible preferred stock to raise capital. In the past 12 to 18 months, there have been a number of convertible preferred stock offerings, including both registered offerings and private placements, by community bank and thrift holding companies.
- On February 24, 2014, the Federal Reserve provided better insight into issues that may delay or prevent its approval of applications and notices relating to transactions, including mergers and branch or line of business expansions. The Federal Reserve’s supervisory letter also announced that it would begin publishing a semi-annual report in the second half of 2014 to enhance transparency in the bank applications and notice process.
- In Eisenbarth v. Reusser, 7th Dist. Monroe No. 13 MO 10 (Aug. 28, 2014), the Seventh Appellate District of Ohio recently addressed issues concerning application of the 1989 version of the Ohio Dormant Mineral Act (DMA).
- There is good news for FCA defendants out of the First Circuit: According to a recent decision, settlement payments in excess of the government’s single damages are tax deductible if the defendant can show that the excess sums are compensatory, rather than punitive. The Internal Revenue Code allows businesses to deduct its “ordinary and necessary expenses” but not “any fine or similar penalty paid to a government for the violation of any law.” Applying this guidance to FCA settlements is complicated by the FCA’s treble damages provisions, which clearly implicate a punitive damages component.
- J.B. Lind, an associate in the Vorys Cincinnati office and a member of the litigation group, authored an article for the September issue of the Cincinnati Bar Association’s CBA Report titled “CALL Class XVIII: Youth Court.”
- Tanya Curcio, an associate in the Vorys Washington D.C. office and a member of the intellectual property, media and entertainment group, authored an article for PR Daily titled “5 Things to Consider When Naming a Brand.”
- Kevin Gormly, a partner in the Pittsburgh office, and Abbi Marusic, an associate in the Pittsburgh office, provided the Pennsylvania Oil and Gas Update in the Rocky Mountain Mineral Law Foundation Mineral Law Newsletter, Vol. 31, No. 3. The article covered the Commonwealth Court's decision on Act 13 issues, the forced pooling provision of oil and gas conservation law, and the Pennsylvanaia Superior Court's decision on "Title Washing."
- 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.
- Nelson Cary, a partner in the Vorys Columbus office and a member of the labor and employment group, authored an article for Law360 titled “New Limits On Employers During Union Organizing Efforts.”
- Whitney Gibson, a partner in the Vorys Cincinnati office and the leader of the firm’s internet defamation group, authored an article for Social Media Explorer titled “How to Respond to Online Brand and Reputation Attacks.”
- Nelson Cary authored an article for Ohio Matters about the ongoing debate regarding “savings clauses,” or a disclaimers, stating that employees should not interpret any of an employer’s rules in a way that would deny rights under the National Labor Relations Act.
- 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.
- Whitney Gibson, a partner in the Vorys Cincinnati office and the leader of the firm’s internet defamation group, authored an article for PR Daily titled “What Marketers Should Know About the FTC's Pinterest Contest Rules.”
- Margaret Everett, of counsel in the Vorys Cleveland office, authored an article for Crain’s Cleveland Business. In the article, Everett states that an estimated 200,000 Ohio employers might be eligible for premium refunds from the Ohio Bureau of Workers’ Compensation (BWC) following a settlement in litigation between state-funded employers and the BWC.
- Heather Lutz, an associate in the Vorys Cleveland office and a member of the litigation group, authored an article for Crain’s Cleveland Business. In the article, Lutz describes the common types of the licenses that protect open source software code.
- Whitney Gibson and Jordan Cohen, attorneys in the firm’s internet defamation group, authored a column entitled “How A Hotel's Anti-Negative Review Policy Backfired,” which appeared in the August 6, 2014 edition of Hospitality Law360.
- Jolie Havens, a partner in the Vorys Columbus office and chair of the firm’s health care group, authored an article for Columbus C.E.O. titled “Employers Should Move Ahead Despite ACA Questions.”
- President 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.”
- As 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.
- The 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
- Each 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.
- Carey Jordan and Iona Kaiser, partners in the Houston office and members of the intellectual property group, co-authored an article for Nanotechnology Law & Business titled "2013 Nanotechnology Patent Literature Review: Graphitic Carbon-Based Nanotechnology and Energy Applications Are on the Rise."
- Several Vorys attorneys authored an article titled “Mental Health Parity and Addiction Equity Act Parity Analysis is Fine Tuned” for National Bar Association's Health Law Section July 2014 Newsletter.
- On 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.
- Jackie Ford, a partner in the Vorys Houston and Columbus offices, authored an article for Texas Lawyer titled “NLRB, Fifth Circuit Sacrifice Employee Privacy for Speculation.” The article was about the U.S. Court of Appeals for the Fifth Circuit's decision to uphold the National Labor Relations Board finding in Flex Frac Logistics v. NLRB.
- Whitney Gibson, a partner in the Vorys Cincinnati office and the leader of the firm’s internet defamation practice, authored an article for HOTELS Magazine titled “How to Protect Against False Online Reviews.” In the article, Gibson outlines the importance of having a positive online reputation in the hotel industry.
- In 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).
- Last 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.
- Today, 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.
- Herb Hedden and Judy Marsh, both partners in the firm’s Columbus office, authored a chapter for Mergers and Acquisitions of Franchise Companies (Second Edition, 2014, American Bar Association). Hedden and Marsh’s chapter is titled “Real Estate Matters in Acquisitions and Mergers.”
- 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.
- Whitney Gibson, a partner in the Vorys Cincinnati office and the leader of the firm’s internet defamation group, authored an article for Social Media Explorer titled “Celebrity Spokespersons and the Federal Trade Commission.”
- 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.
- Lisa Forbes, a partner in the Vorys Cleveland office and a member of the litigation group, authored an article titled "Avoiding Liability: Considerations and Guidelines for Not-for-Profit Directors and Officers" for the Cleveland Metropolitan Bar Association.
- On 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.
- On Wednesday, June 11, 2014, the Substance Abuse and Mental Health Services Administration (SAMHSA) will hold a public listening session to solicit information regarding the Confidentiality of Alcohol and Drug Abuse Patient Records Regulations, 42 C.F.R. Part 2. Under these regulations, a federally assisted substance abuse program generally may only release identifiable patient information related to substance abuse treatment services with the individual’s express consent.
- Whitney Gibson co-authored an article for Texas Lawyer titled “Five Things to Consider Before Filing an Internet Defamation Claim.”
- Whitney Gibson, a partner in the Vorys Cincinnati office and the leader of the firm’s internet defamation practice, authored an article for eSchool News about social media usage and teens.
- Jeffrey E. Smith, Anthony D. Weis and Thomas O. Ruby, partners in the Columbus office, authored this article on Issues in Participation Agreements, Continued for the Spring 2014 issue of The Bankers' Statement.
- Brenda K. Bowers, of counsel in the Columbus office, authored this article on Ohio House Bill — The Ohio Legacy Trust Act and Due Diligence Concerns for the Spring 2014 issue of The Bankers' Statement.
- Susanne M. Hopkins, a partner in the Washington, D.C. office, authored this article on Patent Trolls Continue to Target Financial Institutions, but Change May Be Near for the Spring 2014 issue of The Bankers' Statement.
- David A. Froling, a partner in the Columbus office, authored this article on New Focus on Tax Sharing Agreements for Financial Institutions for the Spring 2014 issue of The Bankers' Statement.
- A recent decision dismissing a whistleblower’s complaint with prejudice is good news for companies facing a False Claims Act (FCA) case that turns on the interpretation of a regulation or contractual provision. In U.S. ex rel. Thompson v. Honeywell Int’l, Inc., Case No. CV 12-2214-JAK (C.D. Cal.), the court articulated a clear and defendant-friendly formulation of the pleading standard for scienter in such cases.
- On June 2, 2014, the Supreme Court issued a unanimous decision in the case of Limelight Networks, Inc. v. Akamai Technologies, Inc. (Case No. 12-786), that will have the immediate impact of limiting liability for inducement to infringe under 35 U.S.C. § 271(b) where no party is liable for direct infringement under §271(a). In at least the short-term future, defendants accused in a patent suit of inducing infringement of a method claim, where no one party has performed or controlled the performance of all steps of the method, should have a solid basis for seeking dismissal of that suit for failure to state a cause of action.
- Kevin Gormly, a partner in the Pittsburgh office, and Abbi Marusic, an associate in the Pittsburgh office, provided the Pennsylvania Oil and Gas Update in the Rocky Mountain Mineral Law Foundation Mineral Law Newsletter, Vol. 31, No. 2. The article covered the Pennsylvania Supreme Court Act 13 decision, the new provisions of the Pennsylvania Oil and Gas Lease Act, Pennsylvania natural gas severance tax, and seismic testing litigation.
- Paige Kohn, an associate in the Vorys Columbus office and a member of the litigation group, authored “E-Data Explosion: Growth in Electronic Information Drives New Costs and Approaches to Litigation” for the June 2014 edition of Columbus C.E.O. magazine.
- Vorys Attorneys Fredrick Waite, Kimberly Young and William Barrett authored an article for Prime Magazine, which is published by Steel Orbis. The article, was titled "US Whistleblower Statute Aims to Combat Schemes to Evade AD/CVD Duties."
- Carey Jordan and Iona Kaiser, partners in the Houston office and members of the intellectual property group, co-authored an article for Intellectual Property & Technology Law Journal titled "Working with Inventors Post-AIA: Managing Inventor Challenges and Preventing Common Mistakes."
- Legislators returned to Columbus this week after the Memorial Day weekend for what is likely their last two weeks of work before they break for the summer. Several high profile bills are scheduled for action before the summer break. They include SB 310, a controversial measure to put a two-year freeze on renewable and alternative energy standards, and HB 483, one of the Mid Biennial Budget Review (MBR) bills introduced by Governor John Kasich earlier this year.
- The Ohio Senate last week passed the state’s main mid-biennium budget bill, Substitute House Bill 483 (HB 483). HB 483 now heads to a conference committee to be reconciled with the version of HB 483 passed by the Ohio House. HB 483 includes a number of proposed tax law changes. Meanwhile, the Ohio Senate Finance Committee amended Substitute House Bill 492 (HB 492) last week to include a number of proposed tax law changes. HB 492 now heads to the full Senate for consideration.
- Whitney Gibson, a partner in the Vorys Cincinnati office and the leader of the firm’s internet defamation practice, authored an article titled “Should you pay bloggers for product reviews?” for PR Daily.
- Whitney Gibson and Jordan Cohen, attorneys in the Vorys Cincinnati office and members of the internet defamation group, authored an article for Hospitality Law360 titled "Hotels Must Be Proactive About Improving Online Reviews."
- The Ohio House Finance and Appropriations Committee recently amended Amended Substitute Senate Bill 263 (SB 263) to expand the bad debt sales tax deduction. The amendment would extend the sales tax deduction to retailer vendors that make sales to customers through private label credit cards when the consumers later default, i.e., fail to pay the full purchase price to the credit card lender. Thus, in these special circumstances, the bad debt may be incurred by the lender, not just the vendor.
- This is the 4th of 4 installments on tips when contracting for technology products and services. Every business runs at least in part on technology – and when contracting for technology products and services, the “gotchas” don’t discriminate based on size or industry.
- On May 14, 2014, a substitute version of House Bill 375 (the Bill) was passed by the Ohio House of Representatives. The Bill contains several significant changes to the version of House Bill 375 that was first introduced in December 2013. If enacted, the Bill would make several significant changes to Ohio’s existing oil and gas severance tax laws. The most significant proposed changes in the Bill are summarized in this alert.
- Jackie Ford, partner in the Vorys Houston and Columbus offices, authored an article for Privacy Law360 about privacy rights of individuals engaged in a private communication. In the article, Ford uses the Donald Sterling story as a vehicle for analyzing what forms of private communication are and are not legally protected.
- On May 8 the Ohio Division of Oil and Gas Resources Management (the Division) made several changes to its Procedural Guidelines for Unitization Applications filed under Section 1509.28 of the Ohio Revised Code. The changes below will undoubtedly present new challenges to applicants submitting applications to the Division.
- Sheila Nolan Gartland co-authored an article titled “Real Estate Lawyers in Non-Real Estate Transactions” in the May 2014 edition of The Practical Real Estate Lawyer.
- This is the 3rd of 4 installments on tips when contracting for technology products and services. Every business runs at least in part on technology – and when contracting for technology products and services, the “gotchas” don’t discriminate based on size or industry.
- Evelyn Lundberg Stratton, of counsel in the Vorys Columbus office who prior to joining Vorys served as justice on the Supreme Court of Ohio for 16 years, co-authored an article for the May/June 2014 edition of the Ohio State Bar Association’s Ohio Lawyer magazine.
- Carey Jordan, a partner in the Houston office and a member of the intellectual property group, authored an article for IPWatchdog titled "Strategic Considerations Before Filing and During Early Stages of Patent Prosecution."
- Qui tam relators and the Department of Justice continually push the FCA envelope with implied certification cases. A recent case from the District of Massachusetts, U.S. ex rel. Julio Escobar, et al. v. Universal Health Services, Inc., illustrates how FCA plaintiffs try to use this theory to shoehorn non-fraudulent regulatory non-compliances into FCA violations—and how to beat such claims.
- Carey Jordan, a partner in the Houston office and a member of the intellectual property group, authored an article for IPWatchdog titled "Strategic Uses of New USPTO Initiatives and Procedures: How to Improve Prosecution Expedience."
- Whitney Gibson, the head of the Vorys internet defamation practice, authored an article for Columbus C.E.O. magazine on the importance of online reputations in the digital age.
- Many companies and businesses want to control the distribution of their products and do not want their products sold by third parties on the internet, especially below retail prices. Vorys Partner Whitney Gibson authored a white paper to help companies learn about strategies they can use to reduce unauthorized sales and ensure safe product distribution.
- With the boom in oil and gas production issues in Ohio, irrespective of the type, charter bank and thrift lenders can find a significant resource for safe and sound lending guidance in the newly issued addition to the Comptroller’s Handbook on “Oil and Gas Production Lending.”
- Capping one of the most significant periods of antitrust enforcement in the history of the health care industry, today the Sixth Circuit delivered its opinion in ProMedica Health System, Inc. vs. Federal Trade Commission (No. 12-3583), denying ProMedica’s petition for review of the Federal Trade Commission’s (FTC) prior order, directing the divestiture of ProMedica’s acquisition of St. Luke’s Hospital in Toledo, Ohio.
- Physicians are vulnerable to reputation attacks for a number of reasons, and false reviews are especially challenging to physicians because of HIPAA restrictions. Unlike, say, a restaurant owner hoping to practice damage control and remedy a customer’s bad experience, a physician obviously cannot register a Yelp account and respond to an angry patient.
- Fifteen states and the District of Columbia have laws that restrict the collection of personal identification information at the point of sale when payment is made by a credit card. Retailers received good news recently from the U.S. District Court for the District of Columbia in Hancock v. Urban Outfitters.
- The Supreme Court of Ohio issued its decision dated March 4, 2014, in the case of FirstMerit Bank, N.A. v. Inks, et al (2014-Ohio-789), confirming important Ohio statutory protections for lenders in workout situations under Ohio Revised Code Section 1335.05.
- When the New York attorney general’s office cracked down on 19 companies in September for false reviews, it sent a loud and clear message to many businesses. For others, the combined $350,000 in fines may have simply been a wakeup call to get more creative with their deceptive online advertising practices.
- On April 9, 2014, following the release of an injunction against the disclosure of the information, Centers for Medicare and Medicaid Services (CMS) posted all Medicare provider and utilization data (data) on its website.
- It is not uncommon for people to create fake social media profiles of celebrities and other public figures. Unfortunately, some people also imitate non-public figures, often for harassment purposes. This is especially problematic on Facebook, which refers to these accounts as “impostor Timelines.”
- In Walker v. Noon, the Seventh District Court of Appeals recently addressed two issues concerning the 1989 version of the Ohio Dormant Mineral Act (DMA). In Walker, the Court of appeals held: (1) for the purposes of the DMA, a severed mineral interest was not the “subject of” a title transaction that conveyed the surface with a restatement of a prior mineral reservation; (2) the 1989 version of the DMA automatically vested a surface owner with a severed mineral interest where no savings events occurred within the statute’s look-back period, and that such vesting was not disturbed by the amendment of the DMA in 2006.
- Kevin M. Gormly and Melissa McCoy Gormly, attorneys in the Vorys Pittsburgh office and members of the energy group, recently obtained a preliminary injunction in the U. S. District Court for the Western District of Pennsylvania on behalf of ION Geophysical Corporation. In the case, Hempfield Township attempted to prevent ION from conducting seismic testing on the township’s roads and rights-of-way. Instead of passing an ordinance regulating or banning seismic testing, the township had its solicitor send ION a letter informing ION that the township would not permit such seismic activity.
- This is the 2nd of 4 installments on tips when contracting for technology products and services. Every business runs at least in part on technology – and when contracting for technology products and services, the “gotchas” don’t discriminate based on size or industry.
- Lisa Pierce Reisz, a partner in the Vorys Columbus office and a member of the health care group, authored a portion of the first edition of the American Health Lawyers Association’s HIPAA/HITECH Resource Guide.
- This is the 1st of 4 installments on tips when contracting for technology products and services. Every business runs at least in part on technology – and, when contracting for technology products and services, the “gotchas” don’t discriminate based on size or industry.
- Sylvia Brown, an associate in the Vorys Columbus office and a member of the health care group, authored a column titled “No Settled Answers On State Medicaid Waivers," which appeared in the March 31, 2014 edition of Health Law360.
- Evelyn Lundberg Stratton, of counsel in the Vorys Columbus office and a member of the litigation group, authored an article for the National Law Journal titled "The Judge's Role As an Agent of Change."
- Yesterday, the NLRB’s regional director for Region 13, Peter Ohr, issued a 24-page ruling in which he held that college football players at Northwestern University were employees entitled to the right to organize. Ohr reasoned that the players met the standard for an employee under the NLRA and common law: a person performing services for another under a contract of hire, subject to the employer’s control or right of control, in return for payment.
- A recent False Claims Act decision serves as an important reminder that although qui tam relators may “stand in the shoes” of the government for purposes of bringing a lawsuit, they are not entitled to substitute their judgment for that of key government decision-makers to avoid summary judgment.
- On March 20, 2014, the Centers for Medicare and Medicaid Services (CMS) posted a “Transition Plan Toolkit” to assist states in developing their Home and Community-Based Settings (HCBS) 1915(c) waiver and section 1915(i) state plan amendment or renewal application(s) so that they comply with new requirements in the HCBS Final Rule, released earlier this year.
- The state’s two-year Capital Appropriations measure, House Bill 497, was introduced in the Ohio House on March 18. This year’s Capital Bill allocates $2.39 billion, largely bond-backed funding for brick-and-mortar construction and renovation projects for state agencies, colleges, universities and school districts. Also, for the first time in six years, the Capital Bill goes beyond funding construction and renovation needs for state-owned properties, providing approximately $160 million in funding for additional “community projects” identified as priorities across various regions of the state.
- Thanks to mobile apps such as Secret and Whisper, people can now divulge their deep secrets anonymously, with fewer consequences – the key here being fewer, as there is no absolute guarantee of anonymity.
- As discussed in Vorys’ September 3, 2013 Client Alert, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) previously issued final rules interpreting Section 503 of the Rehabilitation Act (Section 503) and the Vietnam Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). The final rules, aimed to improve hiring and employment opportunities for disabled and veteran workers, impose numerous new affirmative action obligations on federal contractors or subcontractors covered by Executive Order 11246 (contractors). The final rules take effect on March 24, 2014. However, any contractor with an affirmative action plan (AAP) already in place may maintain that AAP until the end of the AAP year.
- In November of 2013, the U.S. Commodity Futures Trading Commission (CFTC) issued Final Rules on the Protection of Collateral of Counterparties to Uncleared Swaps (the Final Rules).
- As investigators work to recover the data related to Malaysia Airlines Flight 370, we are reminded that the deletion of data discovered through forensic analysis is something that has played a significant role in many of our cases.
- Laura Kulwicki, an attorney in the Vorys Akron office and a member of the probate and tax group, authored an article titled "2013 Year in Review: Selected Nexus Highlights and Key Trends," for the Spring 2014 edition of the Journal of State Taxation.
- On March 12, 2014, the Supreme Court of Ohio accepted an appeal in Dodd v. Croskey (7th Dist. 2013) on one issue pertaining to the 2006 version of the Dormant Mineral Act, Ohio Revised Code § 5301.56. The Court will consider whether a notice of preservation timely filed after an abandonment notice was effective to preserve a mineral interest where no savings events occurred within the 20 years preceding the abandonment notice.
- Kevin Gormly, a partner in the Pittsburgh office, and Abbi Marusic, an associate in the Pittsburgh office, provided the Pennsylvania Oil and Gas Update in the Rocky Mountain Mineral Law Foundation Mineral Law Newsletter, Vol. 31, No. 1.
- As most bankers know, Ohio adopted a new Ohio Financial Institutions Tax (FIT), which is based on a consolidated entity formula explained below. Given the new consolidated approach to taxing financial institutions with a presence in Ohio and the bank regulatory issues that accompany any type of inter-company and bank liability sharing or exchange, it is important that financial institutions have in place an appropriate tax sharing agreement.
- Jackie Ford, a partner in the Vorys Houston and Columbus offices, authored an article for the Houston Business Journal about new law in Texas that attempts to balance employers’ liability concerns with society’s interest in getting criminals out of crime and into legitimate employment.
- On March 13, 2014, President Barack Obama signed a presidential memorandum directing the U.S. Department of Labor (DOL) to “propose revisions to modernize and streamline the existing overtime regulations” related to the overtime exemptions for executive, administrative and professional employees. The memorandum does not specify exactly what the new rules should include. However, the administration’s intent to narrow these overtime exemptions is apparent from President Obama’s statement that, “Because these regulations are outdated, millions of Americans lack the protections of overtime and … the minimum wage.”
- Trademark counterfeiting, in general, refers to the placement of a trademark on a product that is not the legitimate product offered by the trademark owner. Meanwhile, the Lanham Act – the U.S. federal trademark statute – defines a counterfeit as “a spurious mark that is identical with, or substantially indistinguishable from a registered mark.”
- On March 10, 2014, U.S. EPA published proposed revisions and confidentiality determinations for the petroleum and natural gas source category of the Greenhouse Gas (GHG) Reporting Rule, 40 CFR Part 98, Subpart W. The proposed revisions to Subpart W include amendments of general applicability, revised calculation methods and reporting requirements for specified emission sources within the source category, and confidentiality determinations for the new and substantially revised data elements associated with the proposed amendments to the rule.
- On March 6, the Ohio Board of Tax Appeals (BTA) issued its long-awaited decision in L.L. Bean, Inc. v. Levin, Case No. 2010-2853 (Ohio BTA March 6, 2014), the lead “test case” on Ohio’s controversial commercial activity tax (CAT) nexus standard. Although this is the first case in a long line of CAT nexus challenges, the BTA’s decision offers very little in the way of any meaningful guidance.
- For several years now, news outlets have grappled with how to civilize the comments sections on their online articles. Some have chosen the path of requiring users to sign in through their Facebook accounts, while many still permit readers to comment anonymously on their websites.
- Defamatory content posted online can significantly harm the reputation of a business or individual, especially when it is listed among top search engine results.
- Two appellate cases were recently decided by the Seventh District Court of Appeals enforcing arbitration clauses within oil and gas leases. There are two major questions Ohio courts must answer when they evaluate arbitration clauses and their applicability to disputes involving parties to an oil and gas lease.
- In a recent decision in a Delaware Chapter 11 case, the court took the unusual step of capping the amount of a secured lender’s loan that could be used in the lender’s credit bid in a Section 363 sale.
- At the beginning of each fiscal year, which for the federal government starts October 1, the U.S. Citizenship and Immigration Services (USCIS) makes available an allocation of new H-1B visa numbers.
- The problem for the individuals upset with TheDirty.com (that want to sue the owner) is that ythe owner is not the speaker of these controversial statements. Rather, other people (members of the so-called “Dirty Army”) submit the content to him directly through his website or via email.
- Evelyn Lundberg Stratton, of counsel in the Vorys Columbus office, authored a chapter in the book The Attorneys Guide to Defending Veterans in Criminal Court, published by the Veterans Defense Project.
- All too often, dishonest companies damage their competitors’ reputations online by making a series of false statements on review-based websites. Competitors regularly seek refuge on websites such as Ripoff Report, Pissed Consumer and Yelp, which are structured such that users can anonymously post false reviews.
- The Department of Justice (DOJ) and the Department of Health and Human Services (HHS) recently announced that 2013 was a record breaking year for health care fraud recovery. In total, $4.3 billion was returned to the federal government, primarily to the Medicare and Medicaid health care programs.
- Carey Jordan and Iona Kaiser, partners in the Houston office and members of the intellectual property group, co-authored an article for IPWatchdog titled "Nanotechnology Innovation Trends."
- Since launching the internet defamation group, we have encountered several misconceptions about the removal of information from the internet. If you or your company has been disparaged online, realize you are not helpless and have several options on how to deal with your potential internet crisis.
- Ohio Statehouse Update: Governor Kasich Announces New Initiatives at Ohio State of the State AddressGovernor John R. Kasich announced new policy initiatives relating to education, workforce development and tax reform at his Monday night State of the State address in Medina. His proposals will be presented to the legislature as part of the Mid-Biennial Budget Review (MBR). The timetable for introduction of the MBR remains uncertain.
- Based on the negative impact on its business, a company may initially believe certain statements or information posted about it online are defamatory. Although the content may be very damaging, it might not be defamatory at all.
- The employer pay or play penalties were originally scheduled to apply in 2014 but the IRS gave employers a one-year reprieve. Final regulations and FAQs published February 10, 2014 explain how the penalties will work in 2015 and provide several helpful transitional rules.
- Pissed Consumer, as the name suggests, has become a destination for disgruntled consumers to share their unpleasant experiences with various products or services. In fact, the website reports having more than a quarter million reviews about 40,000-plus companies spanning 120 industries.
- Companies often instruct individual employees to register domain names for the construction of a website on the companies’ behalf. In these instances, the employee will enter his or her own name as the domain registrant, thereby giving the employee administrative control over the domain.
- This past year proved active for Ohio’s oil and gas industry. We saw exploration and drilling operations increase substantially and migrate further south (there are currently 44 rigs operating in Ohio, and some operations have extended further south into Washington County). We also saw the first quarterly production report issued by the Division of Oil and Gas Resources Management (“Division”), showing strong production results for the third quarter of the year (33.6 Bcf of natural gas and 1.33 MMbbls of oil). And we saw significant midstream infrastructure growth throughout the year, including the opening of the Momentum processing and fractionation plant and the opening – and temporary closing – of Dominion’s Natrium processing and fractionation plant right across the Ohio River near Natrium, W.Va.
But the activity hasn’t been only on the operational side – there have been several substantial developments on the legal side of Ohio’s oil and gas industry as well. To assist our clients and friends, we have summarized a number of those developments. - In 1878, the nation’s first commercial natural gas well was drilled in Murrysville, Pennsylvania. Since then, oil and natural gas have played a vital role in Pennsylvania’s economy. Despite this history of oil and natural gas production, the Commonwealth has relatively little case law and legislative regulation to guide the industry. Due to the recent surge in production of Marcellus Shale gas, Pennsylvania’s production of natural gas increased by 72% from 2011 to 2012. According to a report issued by the U.S. Energy Information Administration on December 17, 2013, Pennsylvania is the fastest-growing natural gas-producing state, and preliminary data suggests that Pennsylvania may have been the second-largest producer of natural gas in 2013. Not surprisingly, the current state of oil and gas law in Pennsylvania reflects the Commonwealth’s attempts to manage this rapid increase in natural gas production.
The judiciary, legislature and regulatory agencies have attempted to balance the benefits of natural gas production against the concerns of the public. However, many issues remain unresolved. To assist our clients and friends in navigating this quickly developing area of the law, we have summarized a number of the important decisions and enactments of the past year. - A recent pro-employer decision by the federal Sixth Circuit Court of Appeals has provided some helpful guidance for employers looking to avoid and defend against claims for unpaid time under the federal Fair Labor Standards Act (FLSA). White v. Baptist Memorial Health Care Corp., 699 F. 3d (6th Cir. 2012). The Sixth Circuit is the federal court of appeals for Ohio, Michigan, Tennessee and Kentucky.
- On February 12, 2014, a substitute version of House Bill 375 (the Bill) was introduced in the Ohio General Assembly. The Bill proposes several significant changes to the version of House Bill 375 that was first introduced in December 2013, and if enacted, the Bill would make several significant changes to Ohio’s existing oil and gas severance tax laws. The most significant proposed changes in the Bill are summarized in this alert.
- On the popular business review website Yelp, it is no secret that many individuals post fake reviews and sometimes defamatory content. Under Section 230 of the Communications Decency Act, Yelp cannot be held liable for false or defamatory statements made by its users.
- A positive about Yelp is that content can be removed and, thus, the impact it may have on businesses can be mitigated. This alert outlines the options available to businesses.
- A recent holding from the Eastern District of Pennsylvania contains some helpful analysis for defendants facing a fraud-in-the inducement False Claims Act (FCA) case. A fraud-in-the-inducement case is a rare sub-species of FCA cases, with different rules. Unlike a traditional FCA case, there is nothing “false,” factually or legally, on the face of the claims for payment at issue in a fraud-in-the inducement case. Instead, the otherwise unobjectionable claims are false by virtue of the fact that they were submitted under a contract that was procured through the use of false statements.
- Wikipedia is home to more than 30 million articles and has nearly 80,000 active contributors, according to the website. These figures are a product of its “openly editable model,” where virtually anyone with internet access can add or edit content on the website. The online encyclopedia’s strength relies in its founders giving their power to the people, but in doing so they opened the door to abuse.
- The Office of Inspector General posted OIG Advisory Opinion No. 14-01 on January 21, 2014 in response to a nonprofit senior housing and geriatric care provider’s question of whether it may pay an independent placement agency a fee for referring new residents to certain of its facilities. Despite concerns that the arrangement could potentially generate prohibited remuneration under the Anti-Kickback Statute (AKS), the OIG found that the facts and circumstances of the arrangement sufficiently mitigated any fraud and abuse risks.
- In a recently published final rule, CMS established the requirements for settings that may be eligible sites for the delivery of reimbursable Medicaid home and community-based services (HCBS) provided under sections 1915(c), 1915(i) and 1915(k) of the Medicaid statute.
- Recently, the Fourth Circuit became the first court of appeals to address whether the public disclosure bar, as amended in 2010 by the Affordable Care Act, remains a jurisdictional defense to False Claims Act allegations. The opinion in U.S. ex rel. Radcliffe v. Purdue Pharma L.P. is significant because the district courts are divided on whether the public disclosure bar remains jurisdictional after the amendment.
- A Look Back... Before we delve into what we anticipate for Ohio’s taxes in 2014, the Vorys state and local tax team takes a look back at some of our Top Tax Topics to Watch for 2013. There were varying degrees of development with respect to the topics we identified last year, but several are worth noting.
- Summary: ACA mandates don’t apply to health plans classified as “excepted benefits.” The government has proposed regulations expanding the definition of excepted benefits to include self-insured dental and vision coverage even if that coverage is provided without employee contributions.
- The U.S. District Court for the Southern District of Ohio recently certified two important questions of law concerning the Ohio Dormant Mineral Act (DMA) to the Supreme Court of Ohio.
- Susanne Hopkins, a partner in the Vorys Washington, D.C. and Cleveland offices, authored a column for the Crain’s Cleveland Business Health Care Report on the U.S. Supreme Court’s decision in Association for Molecular Pathology v. Myriad Genetics.
- Lisa Babish Forbes, a partner in the Cleveland office and Elizabeth E.W. Weinewuth, an associate in the Cincinnati office, authored this article on Fiduciaries Under Fire for the Winter 2014 issue of The Bankers' Statement.
- Kelsey M. Toulouse, an associate in the Cleveland office, authored this article on the 2010 Amendments to Article 9 of the Uniform Commercial Code for the Winter 2014 issue of The Bankers' Statement.
- Marcel C. Duhamel, a partner in the Cleveland office and Andrew P. Guran, an associate in the Akron office, authored this article on 365/360 Interest Calculation for the Winter 2014 issue of The Bankers' Statement.
- Lisa Babish Forbes, a partner in the Cleveland office and Elizabeth Davis Conway, an associate in the Cleveland office, authored this article on the Ohio Uniform Fiduciaries Act for the Winter 2014 issue of The Bankers' Statement.
- The Ohio Supreme Court issued a decision today confirming the constitutionality of the state's decision to expand the Medicaid program through an action of the Controlling Board. The Court rejected a constitutional challenge made by six legislators.
- On November 18, 2013, Columbus City Council passed Ordinance No. 2649-2013 (the Ordinance), which expands both the geographic area covered by the Downtown Community Reinvestment Area (the CRA) and expands the scope of real property tax exemptions available within the CRA.
- On December 4, 2013, House Bill 375 (the Bill) was introduced in the Ohio General Assembly. If enacted, the Bill would make several significant changes to Ohio’s existing oil and gas severance tax laws. The most significant proposed changes in the Bill are summarized in this alert.
- Most businesses use music in some capacity to create the right ambiance, draw a crowd or even to pacify holding telephone customers. The right music can influence purchasing decisions, how fast patrons at a restaurant eat and how satisfied customers feel in their dealings with your business. For these reasons, music is a valuable asset to your business. However, it is also a valuable asset to those that create it.
- On October 30, 2013, in a letter to Representative Jim McDermott, U.S. Department of Health and Human Services (HHS) Secretary, Kathleen Sebelius clarified that qualified health plans (QHPs) available in the health insurance Marketplaces created under the Affordable Care Act (ACA) are not “federal health care programs.”
- The Vorys state and local tax group scored an important municipal income tax victory for taxpayers. The decision also helps clarify a complex area of Ohio Constitutional law. Gesler et al. v. City of Worthington Income Tax Board of Appeals et al. involved competing Ohio Constitutional provisions. On one hand, the Ohio Constitution confers upon home rule municipalities all powers of local self-government which includes the power to levy taxes. On the other hand, the Ohio Constitution confers upon the Ohio General Assembly the power to limit home rule municipalities’ power to levy taxes.
- New final regulations under the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) apply to group health plans in plan years beginning on or after July 1, 2014 (January 1, 2015 for calendar year plans). The regulations generally incorporate the 2010 interim final regulations and subsequent FAQs, with some notable clarifications.
- A new Ohio House Bill (HB 72) adds a requirement that a lessor or surface owner record a “notice of failure to file” in connection with the statutory procedures used to forfeit an oil and gas lease; and abandon mineral interests to a surface owner. HB 72 focuses on the modernization of the county recorders’ offices and appears innocuous. However, it includes a new step to the procedures relating to the oil and gas lease forfeiture statute (Ohio Revised Code 5301.332) and to the Dormant Mineral Act (Ohio Revised Code 5301.56). As such, surface owners, lessors, lessees, operators, lawyers, landmen and the like should be aware of the additional step and incorporate it into their practices.
- Carey Jordan, a partner in the Houston office and a member of the intellectual property group, authored an article for Texas Lawyer titled "U.S. Supreme Court to Review the Extraterritoriality of U.S. Patents."
- The IRS has added a second exception to the use-or-lose rule for health flexible spending accounts (FSAs). Employers now have three alternatives for end-of-year health FSA credit balances...
- Zachary Brumfield, a staff attorney in the Vorys Columbus office, authored an article for the Fall 2013 edition of the John Marshall Law School Global Markets Law Journal. His article focused on possible strategies to protect customer segregated accounts from insolvent futures commission merchants.
- To expand the scope of their business – either geographically or into additional product categories – many companies license their trademarks. Company "A" sells milk, for instance, and shipping milk far from its source of production may not make economic sense. A restaurateur wishes to open restaurants in other states. Another company has expertise in selling men's clothes, but would like to expand to men's shoes.
- Specifics about copyright and fair use can be complicated. In this easy-to-navigate chart, we clarify 10 of the most common misconceptions regarding copyright and fair use.
- Jackie Ford, partner in the Vorys Houston and Columbus offices, authored an article for Employment Law360 about policies employers should have in place regarding regarding online reviews.
- Statutory protections, indemnification and director and officer liability insurance (D&O insurance) all combine to provide some level of comfort and protection to bank directors in the proper performance of their duties as directors. The hope is that directors can begin and complete their terms of office knowing that these protections exist, but never having to call on the protections or their potential limitations.
- Evelyn Lundberg Stratton, of counsel in the Vorys Columbus office, authored an op-ed for the Columbus Dispatch about the successful juvenile-justice reform efforts in Ohio.
- Ease, simplicity, and low start-up costs are just some of the reasons customers turn to software-based "cloud" applications and services. This client outlines the risks associated with using these applications and provides possible solutions.
- The IRS and DOL issued new guidance prohibiting the application of pre-tax funds to the payment of individual health insurance premiums and imposing new conditions on health flexible spending accounts and health reimbursement arrangements.
- On September 23, 2013 the IRS issued Notice 2013-61. The Notice sets forth streamlined refund procedures for overpayments of federal employment taxes paid by employers and employees relating to health benefits provided to legally married same-sex spouses. The Notice addresses health benefits provided both in 2013, and prior open years. The IRS had previously released Revenue Ruling 2013-17 setting forth its position that same-sex partners legally married under the laws of any state would be considered married for federal tax purposes regardless of where the couple resides. Under this state of celebration standard, the laws of the state where the marriage was celebrated (rather than the state of domicile) governs marital status for federal income tax purposes.
- Whitney Gibson, a partner in the Vorys Columbus office and leader of the firm’s internet defamation group, authored column for the Eastern Hills Journal. The column outlined the impact that false reviews can have on a company’s reputation. Gibson also outlines the steps consumers can take to identify fake reviews and prevent faulty purchasing decisions.
- The failure of the U.S. Congress to reach a budget deal is causing a partial shutdown of U.S. government offices and services. The full extent to which the government shutdown will affect various aspects of the immigration process is not yet clear.
- Laura Kulwicki, an attorney in the Vorys Akron office and a member of the probate and tax group, authored an article, titled "A 'Patchwork Quilt' of Nexus: A Report on This Year's New State Nexus Laws," for the September-October 2013 edition of the Journal of State Taxation.
- Just like the students who head back to school in August and the birds that start their journey south for the winter, legislators began their migration to Columbus in September. And your U. S. senators and congressmen are back at work in Washington.
- The domain world as we know it is about to change. Currently, there are about 24 top-level domains (tld). These are the portion of a web address that appears after the "dot" such as .com or .org. However, there are 1,409 new possibilities on the horizon and an infinite number of future tlds.
- On September 18, 2013, the Securities and Exchange Commission proposed new pay ratio rules pursuant to Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.
- Jolie Havens authored a column for the Houston Business Journal outling 7 possible strategies that large Texas employers can consider to comply with the Affordable Care Act’s employer cost-sharing mandate.
- This client alert provices an update on the Clean Water Act “jurisdictional waters” guidance and the Science Advisory Board's review of USEPA’s water body connectivity scientific literature search.
- House Bill 59, which becomes effective on September 29, 2013, amended several sections of Ohio law governing the disposal of waste substances generated from oil and gas production operations. On September 16, 2013, Ohio EPA released three draft Guidance documents to facilitate the implementation of the new oil and gas-related waste management requirements.
- Lisa Pierce Reisz, a partner in the Vorys Columbus office, and Brian Donato, the firm’s chief information officer, co-authored an article for the September 2013 edition of Peer-To-Peer titled “In Their Hands and in the Cloud: Managing Mobile Risks.”
- In a recently published policy memorandum, the Centers for Medicare & Medicaid Services (CMS) provided guidance regarding the automatic assignment of Medicare Provider Agreements upon a change of ownership.
- OSHA’s proposed silica rule, supported by 800 pages of background information and scientific literature, was published in the Federal Register on September 12, 2013. The comment period, which commences with this date of publication will last 90 days (i.e., until December 11, 2013). Hearings will begin on March 4, 2014.
- Marriages between same-gender spouses will be recognized for federal income tax purposes if valid where performed (the state of celebration) regardless of whether the state in which the spouses live (the state of residence) recognizes the marriage.
- On August 27, 2013, the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) issued final rules interpreting Section 503 of the Rehabilitation Act (Section 503) and the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA).
- Mark A. Norman, a partner in the Cincinnati office, authored this article on environmental lender liability for the Summer 2013 issue of The Bankers' Statement.
- Lisa Pierce Reisz, a partner in the Vorys Columbus office and a member of the health care group, authored an article for Communications Professional Resources Online (CommPRO.biz). In the article, she provides an overview of the information that public relations professionals need to know about the latest HIPAA breach notification rules, which become law in September 2013.
- The Centers for Medicare & Medicaid Services recently published a final rule that adds a new Condition of Participation that requires long-term care facilities that choose to arrange for the provision of hospice care with one or more Medicare-certified hospice providers to have in place a written agreement with the hospice that specifies the roles and responsibilities of each entity.
- Our August issue of the Vorys Shale Report provides an overview of a recent court decision that enforces a change-in-ownership provision contained in an oil and gas lease. The newsletter also provides a report on activity in the Utica and Point Pleasant Shales.
- Whitney Gibson, a partner in the Vorys Cincinnati office, and Christopher Anderson, Ph.D., co-founder of Cyber Investigation Services, LLC, co-authored an article for the Bloomberg BNA: Social Media Law & Policy Report about techniques that companies can use to remove misinformation and defamation from the internet.
- The Occupational Safety and Health Administration (OSHA), in collaboration with the National Institute for Occupational Safety and Health (NIOSH), has issued a "Hazard Alert" for the oil and gas industry regarding worker exposure to crystalline silica. The alert merits the attention of all who are involved with hydraulic fracturing operations.
- The postponement of the pay or play penalties and related reporting from 2014 to 2015 gives employers a welcome opportunity to reassess their compliance strategies and plan for a more measured implementation of new systems. However, the pay or play penalties are related to the availability of federal premium assistance for the purchase of health insurance on an exchange. The absence of pay or play penalties and related reporting in 2014 may increase the number of employees buying health insurance on an exchange with federal premium assistance in 2014.
- Jackie Ford, partner in the Vorys Houston and Columbus offices, authored an article for Employment Law360 about laws being passed by some state legislatures that ban employers from asking employees and/or job applicants for social media passwords.
- Our July issue of the Vorys Shale Report provides an overview of how energy companies are facing specific, targeted scrutiny from the federal government on wage-and-hour issues.
- The White House and Treasury announced on July 2nd that they are delaying enforcement of the ACA’s employer coverage mandate (which requires employers with 50+ full-time equivalent employees to provide affordable, adequate health coverage to substantially all of the employer’s full-time employees and their children) until 2015 to enable a more orderly roll-out of the reporting and disclosure requirements that will form the basis for the imposition of the employer penalties.
- The United States Supreme Court recently issued its long-awaited decision in United States v. Windsor, No. 12-307, ruling that the section of the Defense of Marriage Act (DOMA) that required federal laws to ignore same-sex marriages that are legally entered into under an applicable state law is unconstitutional.
- On June 26, 2013, the Supreme Court of the United States held in United States v. Windsor that Section 3 of the Defense of Marriage Act (DOMA) violated the equal protection clause of the Fifth Amendment of the Constitution.
- On Sunday June 30, 2013, Governor Kasich signed Ohio’s biennial budget bill, which includes numerous provisions impacting Ohio taxpayers. Though the tax reforms in the final bill are not as sweeping as originally proposed, they will still impact virtually every state tax in some fashion.
- On June 30, 2013, Governor Kasich signed Am. Sub House Bill 59 (H.B. 59), which is the operating budget bill for state fiscal year 2014. H.B. 59 includes language authorizing the establishment of a "Lake Facilities Authority" to rehabilitate, improve or promote an "impacted watershed."
- The United States Supreme Court recently handed down an important decision regarding the proof required for plaintiffs asserting retaliation claims under Title VII. In University of Texas Southwestern Medical Center v. Nassar, the Court held that Title VII retaliation plaintiffs must prove that their protected activity was a "but-for" cause of the adverse employment action suffered by the employee, rather than simply a "motivating factor."
- On June 30, 2013, Governor Kasich signed Am. Sub House Bill 59 (H.B. 59), which is the operating budget bill for state fiscal year 2014. H.B. 59 expands upon the scope of the sales and use tax exemption for purchases of certain tangible personal property that will be used at an eligible computer data center (the Data Center Exemption).
- On Sunday evening, Governor John Kasich signed House Bill 59, the state's two-year, $62 billion budget into law, just in time for the beginning of the new state fiscal year on July 1, 2013.
- On June 30, 2013, Governor Kasich signed Am. Sub House Bill 59 (H.B. 59), which is the operating budget bill for state fiscal year 2014. H.B. 59 includes several economic development incentives-related provisions, the most significant of which are described in this alert.
- Benita Kahn and Eric Whisler authored an article for STORES Magazine titled “Regulators’ Scrutiny and Guidance for Mobile Apps.” In the article, the authors state that the increase in consumers’ use of smartphones and tablets has caught the attention of regulators.
- Last night on a 4-2 party line vote the Conference Committee on House Bill 59, led by the chairmen of the House and Senate Finance Committees, Rep. Ron Amstutz (R-Wooster) and Sen. Scott Oelslager (R-Canton), reported a compromise version of the state’s biennial budget bill that will now head to the House and Senate floor for a final vote to accept the changes.
- The U.S. Supreme Court has limited who is deemed a "supervisor" for purposes of Title VII hostile work environment claims, holding that the individual must have been empowered to take tangible employment action against the party claiming harassment.
- Mary Henkel, of counsel in the Vorys Cincinnati office, authored a column entitled "Trending: Broad Whistleblower Protection", which appeared in the June 21, 2013 edition of Employment Law360.
- The United States Court of Appeals for the Sixth Circuit recently clarified the operation of the Ohio Uniform Fiduciaries Act (UFA) when it affirmed the dismissal of a complaint alleging multiple claims against a banking client. The Complaint arose out of the misappropriation of funds by the authorized fiduciary of trust and estate accounts held at the bank.
- Ryan Elliott, an associate in the Vorys Columbus office, authored an article for the American Bar Association’s Real Property, Trust & Estate Law Section’s RPTE eReport.
- Carey Jordan and Iona Kaiser, partners in the Houston office and members of the intellectual property group, co-authored an article for Law360 titled "Takeaways from USPTO's 1st Covered Business Method Review."
- New final regulations for wellness programs apply to plan years beginning on and after January 1, 2014. If you have a wellness program and a health plan operating on a calendar year, you will want to consider the new requirements in preparing for 2014 open enrollment.
- Laura Kulwicki, an attorney in the Vorys Akron office and a member of the probate and tax group, authored an article titled "Another Taxpayer Victory on Due Process Grounds—Consolidated Filing and Use of Trademarks Are Not Enough to Constitutionally Create Franchise Tax Nexusfor the May-June 2013 edition of the Journal of State Taxation.
- Carey Jordan and Iona Kaiser, partners in the Houston office and members of the intellectual property group, co-authored an article for Nanotechnology Law & Business titled "2012 Nanotechnology Patent Review."
- Yesterday afternoon the Senate Finance Committee unveiled a substitute version of House Bill 59, the state biennial budget bill. The substitute legislation incorporates many changes, significant among which is the replacement of an across-the-board 7% income tax cut proposed in the House-passed version of the bill with a tax cut package specifically targeted at helping small businesses in Ohio.
- Employers must distribute a new Notice of Coverage Options to all employees (full-time and part-time, regardless of eligibility for benefits). The initial distribution of the Notice must be before October 1, 2013. Thereafter, the Notice must be given to each new employee within 14 days after work begins.
- Whitney C. Gibson, a partner in the Cincinnati office, published this article regarding internet defamation in the Spring 2013 issue of The Bankers' Statement.
- Linda R. Mendel, of counsel in the Columbus office, published this article regarding employer pay-or-play penalties in the Spring 2013 issue of The Bankers' Statement.
- Lisa Babish Forbes, a Cleveland partner, and Elizabeth E.W. Weinewuth, a Cincinnati associate, published this article in the Spring 2013 issue of The Bankers' Statement.
- Jeffery E. Smith, a partner in the Columbus office, published this article regarding the Consumer Financial Protection Bureau's new mortgage-related rules in the Spring 2013 issue of The Bankers' Statement.
- “Use” of a trademark or service mark under U.S. trademark law is often misunderstood. Even the best-intended trademark owners encounter unexpected, sometimes fatal, barriers in their attempts to register their marks and maintain their registrations.
- Raymond Pinkham, an associate in the Vorys Washington, D.C. office, authored a column for the Spring 2013 American Bar Association Professional Liability Litigation E-Newsletter.
- On May 1, 2013, the Ohio Environmental Protection Agency published notice of proposed revisions to its Best Available Technology (BAT) program.
- Lisa Pierce Reisz, a partner in the Vorys Columbus office, and Stephanie Angeloni, an associate in the Vorys Akron office, authored an article about HIPAA compliance for the May 13, 2013 edition of Crain’s Cleveland Business.
- Under the pay-or-play penalties going into effect next year, an employer is subject to penalties if it does not offer "affordable" health coverage to its full-time employees (using the new 30-hour federal standard). The IRS has now proposed that premium discounts and other rewards for participation in an employer-sponsored wellness program not be taken into account in determining whether the health coverage offered by your company is affordable.
- The U.S. Customs and Border Protection (CBP) recently published an interim final rule indicating its intention to automate its Form I-94, Arrival/Departure Record.
- The U.S. Citizenship and Immigration Services (USCIS) recently published a revised Employment Eligibility Verification Form I-9 for use by employers.
- On April 24, 2013, the Centers for Medicare and Medicaid Services (CMS) issued a Proposed Rule revamping the Medicare Incentive Reward Program (IRP) and providing CMS with greater discretion to deny or revoke enrollment privileges to certain providers and suppliers posing a higher risk of fraud to the Medicare program.
- On April 17, 2013, the Office of Inspector General (OIG) of the United States Department of Health and Human Services (HHS) issued a notice completely revising its Provider Self-Disclosure Protocol (SDP). OIG originally published the SDP in 1998 to establish a process for providers to voluntarily identify, investigate, disclose and resolve potential fraud involving federal health care programs.
- The Ohio House Finance and Appropriations Committee accepted a substitute version of House Bill 59, the state’s biennial budget bill, at a hearing yesterday afternoon. Among numerous significant changes in the bill, the substitute legislation removes Governor Kasich’s proposed tax reforms and replaces them with an across the board 7% income tax reduction, and removes the proposed expansion of Medicaid that was projected to leverage $2.4 billion in federal funds to provide coverage for uninsured Ohioans over the next two years.
- The U.S. Customs and Border Protection (CBP) published an interim final rule on March 27, 2013, indicating its intention to automate its Form I-94, Arrival/Departure Record. Form I-94, among other purposes, provides documentation of the admission and approved length of stay for individuals in a temporary immigration status.
- The U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petition to reach the statutory cap for the fiscal year 2014. USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2014 cap-subject petitions received through April 5, 2013.
- Jeffrey A. Marks, a partner in the Vorys Cincinnati office, authored a chapter for Inside the Minds: Creditors’ Rights in Chapter 11 Cases. Marks’ chapter was titled “Real Estate Chapter 11 Filings: Key Issues.”
- Vorys attorneys Daniel Buckley, Lisa Babish Forbes, Elizabeth Weinewuth and Elizabeth Davis Conway authored an article for the Probate Law Journal of Ohio titled "Important Guidance for Ohio Trustees: Newcomber V. National City Bank."
- Jonathan Ishee, of counsel in the Vorys Houston office and a member of the health care group, authored “The Rise of Hospital Outpatient Departments in the Era of Decreased Provider Reimbursement” for the April 2013 edition of the American Health Lawyers Association’s Business Law & Governance publication.
- On March 14, 2013, Representative Jared Polis (D-CO) introduced a bill (H.R. 1154) to amend the Clean Air Act (CAA) to eliminate the exemption for aggregation of hazardous air pollutants from oil and gas sources. CAA § 112(n)(4) currently prohibits the aggregation of emissions from "any oil or gas exploration or production well (with its associated equipment) and emissions from any pipeline compressor or pump station."
- Recently, the Office of Federal Contract Compliance Programs (OFCCP) officially withdrew the Bush-era guidance regarding pay discrimination. In its place, the OFCCP issued Directive 307, accompanied by a fact sheet and answers to frequently asked questions.
- At the beginning of each fiscal year, which starts October 1, the U.S. Citizenship and Immigration Services (USCIS) makes available an allocation of new H-1B visas. The number of these new visas that are available each year is capped at approximately 65,000 (plus an additional 20,000 that are exempt from the cap for individuals with advanced degrees from an accredited U.S. college or university). Applications for these new visas can be filed as soon as April 1.
- The Centers for Medicare and Medicaid Services (CMS) recently released a final rule on the Physician Payment Sunshine Act. The final rule imposes new reporting requirements on group purchasing organizations (GPO) and manufacturers of drugs, devices, biologicals or medical supplies for which payment is available under Medicare, Medicaid or the Children’s Health Insurance Program.
- Asset protection planners in Ohio will soon have one more arrow in their quivers. Effective March 27, 2013, Ohio law will permit the creation and funding of a domestic asset protection trust.
- Evelyn Lundberg Stratton, who prior to joining Vorys served for 16 years on the Ohio Supreme Court, authored an op-ed on the proposed expansion of Ohio’s Medicaid program for the Cleveland Plain Dealer.
- On March 8, 2013, the U.S. Citizenship and Immigration Services (USCIS) published a revised Employment Eligibility Verification Form I-9 for use by employers.
- At the beginning of each fiscal year, which starts October 1, the U.S. Citizenship and Immigration Services makes available an allocation of new H-1B visas. The number of these new visas that are available each year is capped at approximately 65,000.
- U.S. District Court for the Northern District of Georgia Judge Thomas W. Thrash, Jr. recently granted a motion to dismiss qui tam claims from two relators who alleged that Lockheed Martin violated the False Claims Act by inflating the reported number of hours its employees worked on government contracts.
- Zachary Brumfield, a staff attorney in the Vorys Columbus office, authored an article for the March 2013 edition of the Real Estate Law Journal. The article focused on how the new FHFA short sale rules promote economic efficiency.
- Recent government guidance addresses permissible employee cost sharing under your company's group health plan. This Vorys Client Alert summarizes what you need to know about out-of-pocket limits, annual and lifetime dollar limits, first dollar preventive care, and tobacco surcharges.
- Ohio Governor John Kasich’s FY 2014‑2015 biennial budget bill (House Bill No. 59) was recently introduced. Within the bill are significant Ohio sales and use tax reform proposals.
- Recently, the Department of Labor (DOL) issued a final rule implementing and interpreting changes to the Family and Medical Leave Act (FMLA) enacted by the National Defense Authorization Act (NDAA) and the Airline Flight Crew Technical Corrections Act. The final rule will take effect on March 8, 2013.
- On February 12, 2013, the Ohio General Assembly released the "As Introduced" version of House Bill 59 (the Bill), which is the operating budget bill for state fiscal years 2014 and 2015. The Bill contains significant tax reform elements.
- Ohio Governor John Kasich's FY 2014-2015 biennial budget bill was introduced this week. Weighing 22 pounds in print, covering over 4,200 pages and containing almost 130,000 lines of text, the bill does not lack in length or ambition.
- Evelyn Lundberg Stratton, of counsel in the firm’s Columbus office who before joining Vorys served for 16 years on the Ohio Supreme Court, authored an op-ed for the Columbus Dispatch in support of Ohio Senate Bill 350. According to her op-ed, the proposed legislation would allow probate judges to order outpatient treatment for somebody who does not need a full, expensive and often unavailable hospitalization.
- The new year has brought with it several permanent changes to the state and federal estate tax laws. These changes will have a major impact on estates and the terms of estate planning documents on a going forward basis.
- The Ohio EPA has proposed a new exemption from its Stage II vapor recovery requirements for new gasoline dispensing facilities (GDFs) that install low permeation hoses and notify the Ohio EPA of their intent to comply with the requirements of the new rule.
- G. Ross Bridgman, a partner in the Columbus office and chair of the Vorys health care group, co-authored an article with Scott R. Mote, the executive director of Ohio Lawyers Assistance Program, for the January/February 2013 edition of the American Bar Association's GP Solo.
- Elizabeth Turrell Farrar, a partner in the Columbus office, published this article in the Winter 2013 issue of The Bankers' Statement.
- Elizabeth Turrell Farrar, a partner in the Columbus office, published this article in the Winter 2013 issue of The Bankers' Statement.
- Jackie Ford, a partner in the Vorys Houston and Columbus offices, authored an op-ed for the Houston Chronicle about a proposed Texas law that would prohibit employers from asking employees and job seekers for passwords to their social media accounts
- Published in The Evaluator, this article details why property owners should act now if they wish to challenge their Ohio 2012 tax valuations.
- This article, published in The Evaluator, explains tax reforms endorsed by the OSBA Council of Delegates. These reforms are focused on efforts to both improve the efficiency of the BTA while also addressing several areas of concern with the operation of the BTA.
- This article, originally published in The Evaluator, details recent decisions made by the Supreme Court of Ohio as well as in the state legislature.
- This article, originally published in The Evaluator, details recent decisions of the Ohio Board of Tax Appeals.
- On December 20, 2012 Governor John Kasich signed into law Amended Substitute House Bill 510 to change the way Ohio taxes financial institutions. Beginning January 1, 2014, Ohio imposes a new business privilege tax on financial institutions doing business in Ohio.
- Alycia Broz and Robert Krummen, partners in the litigation group of the Vorys Columbus office, authored an article entitled “Flash Cookies Litigation: The Next Wave or a “Flash” in the Pan?”for the Winter 2013 edition of What’s in Store, a publication of the American Bar Association’s Section of Antitrust Law’s Consumer Protection Committee, Privacy and Information Security Committee, and Private Advertising Litigation Committee.
- A recent trial victory on behalf of a major banking client clarifies three key points of law in Ohio fiduciary litigation. In June 2012, a Vorys trial team led by Daniel J. Buckley and Lisa Babish Forbes defended a trustee in a five-day bench trial against numerous breach of fiduciary duty claims brought by successor trustees and beneficiaries.
- On January 10, 2013, the Consumer Financial Protection Bureau (CFPB) issued a number of mortgage-related rules, including its long-awaited qualified mortgage (QM) rules in an 804-page set of complex guidelines for residential real estate lending mandated by the Dodd-Frank Act. The rules take effect in January 2014.
- On January 15, 2013, the Ohio Department of Developmental Disabilities (DODD) issued guidance to intermediate care facilities for individuals with intellectual disabilities (ICF/IID) regarding the state-wide assessments that will be completed by DODD during the first quarter of calendar year 2013.
- In Revenue Procedure 2013-12, the IRS recently updated the Employee Plans Compliance Resolution System (EPCRS). The EPCRS program permits a retirement plan sponsor to correct operational, coverage and plan documentation errors in certain prescribed ways so as to preserve the tax-qualified status of the retirement plan.
- On January 17, 2013, HHS announced the release of the long-awaited final omnibus HIPAA rule. According to HHS Office for Civil Rights Director Leon Rodriguez, "This final omnibus rule marks the most sweeping changes to the HIPAA Privacy and Security Rules since they were first implemented. ..."
- On March 16, 2013, the First-to-File provisions of the American Invents Act (AIA) take effect, thus moving the United States from a First-to-Invent patent system to a First-to-File patent system. The United States Patent and Trademark Office (USPTO) rules and examination guidelines for the First-to-File provisions will apply to all patent applications having an effective filing date on or after March 16, 2013.
- Bankers will recall that certain mortgage servicing organizations, many affiliated with large banking organizations, agreed to a comprehensive settlement process with regard to a variety of claims relating to residential mortgages generated in the 2009-2010 timeframe as part of enforcement actions commenced in 2011.
- With the recent commencement of the 130th Ohio General Assembly, 2013 is already shaping up to be a pivotal year for Ohio tax issues. With that in mind, the Vorys state and local tax team and the Vorys governmental relations team present the Top Ten Tax Topics to Watch for in 2013.
- Jeffery E. Smith, a partner in the Columbus office, published this article in The Bankers' Statement, and it details why institutions should review their policies and procedures for buying and selling loan participation interests.
- Jeffery E. Smith, a partner in the Columbus office, published this article in The Bankers' Statement, which details Basel III.
- This article on online banking security procedures for commercial customers appeared in the Winter 2013 issue of The Bankers' Statement.
- IRS proposed regulations (published December 28, 2012) are a roadmap to the employer pay-or-play penalties going into effect in 2014 under the Patient Protection and Affordable Care Act (the ACA). Employers may rely on the proposed regulations until further guidance or final regulations are published.
- Carey Jordan and Iona Kaiser, partners in the Houston office and members of the intellectual property group, co-authored an article for Law360 titled "Texas Could Lead the Nanotech Revolution."
- The banking world has been rocked in recent weeks by news of very significant settlements between banks and federal regulators for alleged violations of laws and regulations pertaining to bank secrecy and money laundering. The level of these settlements should serve to remind bankers that the regulatory agencies take compliance with those laws and regulations very seriously.
- As all bankers know, the FDIC as receiver has "ramped up" it’s efforts to bring actions against directors, officers and "institution-affiliated parties" (IAPs) of failed institutions during the current banking challenges. The FDIC may elect to bring suit against former IAPs and others based upon simple negligence or gross negligence, and actions for both are often included in the complaint.
- On December 28, 2012, Governor Kasich announced the establishment of the new Ohio Incumbent Workforce Training Voucher Program (the Program), which is designed to offset a portion of a company’s costs to upgrade the skills of its incumbent workforce, and will provide reimbursement to eligible companies for specific training costs.
- Ohio Governor John Kasich today signed the Amended Substitute House Bill 380, which requires the full disclosure of all asbestos bankruptcy trust claims made by plaintiffs with asbestos lawsuits in Ohio. The law will go into effect 90 days from today.
- On Thursday, the Ohio General Assembly concluded its business for the 2011-2012 legislative session. The House and Senate debated a number of important measures during the fast-paced "Lame Duck"session following the November general election.
- On December 7, 2012, the Supreme Court of Ohio ruled in favor of a coalition of businesses and county engineers that Ohio commercial activity tax (CAT) revenue derived from sales of gasoline and other motor vehicle fuels must be spent for highway purposes.
- The Ohio General Assembly this week passed Amended Substitute House Bill 380, which requires the full disclosure of all asbestos bankruptcy trust claims made by plaintiffs with asbestos lawsuits in Ohio. The bill is headed to Governor John Kasich’s desk; he is expected to sign the bill.
- The Ohio Supreme Court recently decided a case involving the appropriate method for calculating civil penalties for violations of an air permit. In State ex rel. Ohio Atty. Gen. v. Shelly Holding Co., Slip Opinion No. 2012 – Ohio – 5700 (Dec. 6, 2012), the Court was asked to determine whether a violation of an air permit could be considered a continuous violation until the permit holder demonstrated compliance.
- The regulatory agencies (the IRS, DOL, and HHS) have started to fill in some (but by no means all) of the gaps in the Affordable Care Act guidance needed to implement the transformation of health coverage that is supposed to happen in 2014.
- On November 29th, the Federal Communications Commission (FCC) granted a request for declaratory ruling filed by Soundbite Communications Inc. (Soundbite). The FCC held that a one-time text message confirming a consumer's request to opt-out of receiving text messages, if it meets specific requirements, does not violate the Telephone Consumer Protection Act (TCPA).
- The employer, an electrical utility construction contractor, assigned its apprentice lineman (employee) to work at a site replacing old electrical power lines along Route 60 in New London, Ohio. The employer held a daily job-briefing in which it instructed workers that they were required to use protective rubber gloves and sleeves, (protective equipment) in case power lines became energized.
- The Internal Revenue Service (IRS) has released final regulations on the excise tax imposed on the sale of certain medical devices (the Device Tax) under the Affordable Care Act. The Device Tax will impact the sale of any taxable medical device by the manufacturer, producer, or importer of the device, at a rate of two-point-three percent (2.3%) of the sale price.
- Jackie Ford, a partner in the Vorys Houston and Columbus offices, wrote an op-ed for the
- On November 16, 2012, Institutional Shareholder Services Inc. (ISS) released the 2013 Updates to its U.S. Corporate Governance Policy (the 2013 Updates). The 2013 Updates will be effective for shareholder meetings on or after February 1, 2013, unless otherwise noted within the alert.
- Allen S. Kinzer, a partner in the Vorys Columbus office, authored several sections of the XpertHR employment law manual for the states of Ohio and Kentucky. XpertHR is a unique online service to help employers comply with federal, state and municipal law, presented in a practical format designed specifically for HR Professionals.
- Allen S. Kinzer, a partner in the Vorys Columbus office, and Barton A. Bixenstine, a partner in the Vorys Cleveland office, authored numerous how to documents for XpertHR. XpertHR is a unique online service to help employers comply with federal, state and municipal law, presented in a practical format designed specifically for HR Professionals.
- Allen S. Kinzer, a partner in the Vorys Columbus office, and Barton A. Bixenstine, a partner in the Vorys Cleveland office, authored numerous policy documents for XpertHR. XpertHR is a unique online service to help employers comply with federal, state and municipal law, presented in a practical format designed specifically for HR Professionals.
- In Washington State Nurses Association v. Sacred Heart Medical Center, the Supreme Court of Washington held that when employees miss a legally mandated rest break, both the missed rest break and the additional labor provided during that missed break constitute "hours worked." In effect, missing a rest break extends the employees' workday, which may entitle them to overtime compensation under Washington law.
- The federal government is increasing requirements for oil and gas operators. Pursuant to the recently published New Source Performance Standards (NSPS) for the Oil and Natural Gas Sector, 40 C.F.R., Part 60, subpart OOOO, effective October 15, 2012, owners or operators of hydraulically fractured natural gas wells must notify USEPA not later than two days prior to commencing well completion operations.
- The licensure process for intermediate care facilities (ICFs) currently licensed by the Ohio Department of Health (ODH) as nursing homes has recently changed. ICF providers who are currently licensed by the ODH as nursing homes will need to apply for a residential facility license through the Ohio Department of Developmental Disabilities (DODD) by February 1, 2013.
- This alert details results of the 2012 primary election.
- Jackie Ford, a partner in the Vorys Houston and Columbus offices, authored an op-ed for the Houston Business Journal . In the op-ed, Ford says that despite the growing significance of social media in everyday communication, employers still face increasing hazards in responding to its challenges.
- Jonathan Ishee, of counsel in the Vorys Houston office and a member of the health care group, authored “Accountability in Cross-Jurisdictional Telemedicine and Health” for the November 2012 edition of the American Health Lawyers Association’s HIT News.
- Mark Knueve, a partner in the Vorys Columbus office, authored an article for the Human Resources Association of Central Ohio Connections about the recent increase in Fair Labor Standards Act lawsuits. He says that the trend is related to non-exempt employee use of smart phones or computers to perform work outside of regularly-scheduled work time.
- The state of Ohio requires county auditors to reappraise properties every six years and update those values in the middle of that cycle. The auditors for several Ohio counties listed below are currently finalizing property values to meet this obligation.
- With the elections right around the corner, Vorys is providing you with unique insights from both sides of the aisle on the upcoming races.
- This summer the Ohio legislature passed significant changes to real property taxation that will impact all property owners. These changes include clarifying how a property is to be valued for real property tax purposes, changing how a recent sale should impact the value of property for taxation purposes, as well as other changes that will impact the filing of complaints at local Boards of Revision.
- During the past quarter, the Ohio Supreme Court issued several decisions regarding real property taxation.
- This article, originally published in The Evaluator, details recent decisions by the Ohio Board of Tax Appeals and Appellate Courts.
- In this quarterly publication, our attorneys will research and write articles that are insightful, interesting and helpful to you. If something is on the horizon that you should know, we'll tell you how it affects you and what you should do to prepare.
- The 2012 elections are just less than a month away. Many states allow employees to take time off, sometimes with pay, so that they can vote. The chart below provides a general overview of each state’s law as to time off, pay, and what, if any, advance notice is required before taking time off to vote.
- With the November 6 General Election only five weeks away, the political campaign season is kicking into high gear. Here is a preview of the major candidate races and issues that will be on the ballot in Ohio.
- On October 1, 2012, New York Stock Exchange LLC (NYSE) amended the proposed listing standards it issued on September 25, 2012 implementing the requirements imposed by Section 10C of the Securities Exchange of 1934 and Exchange Act Rule 10C-1.
- The Ohio Constitutional Modernization Commission held its first meeting on September 13, 2012. The Commission was created through the passage of House Bill 188 earlier this year, and is tasked with conducting a comprehensive review of the Ohio Constitution, and making recommendations to the General Assembly regarding changes to the Constitution, including recommendations for changes to the process for proposing constitutional amendments.
- On September 25 and 26, 2012, respectively, New York Stock Exchange LLC (NYSE) and The NASDAQ Stock Market LLC (NASDAQ) proposed amendments to their listing standards to comply with the requirements of Section 10C of the Securities Exchange Act of 1934 (the Exchange Act), as set forth in Exchange Act Rule 10C-1, relating to the independence of compensation committees and compensation advisers.
- Whitney Gibson, an attorney in the Vorys Cincinnati office, and Christopher Anderson, Ph.D., co-founder of Cyber Investigation Services, LLC, authored a column for PR News with tips to help public relations professionals identify an individual who is seeking to hurt a business online.
- Vorys partners Sheila Nolan Gartland and Reginald Jackson served as editors for the American Bankruptcy Institute’s When Gushers Go Dry: The Essentials of Oil & Gas Bankruptcy.
- Jeffrey Marks, a partner in the Vorys Cincinnati office, authored a column about the decision from U.S. Court of Appeals for the Sixth Circuit in Onkyo Electronics V. Global Technovations for Law360.
- After many attempts, it appears that clothing designs may finally gain protection in the United States. On Monday, September 10th, Senator Charles Schumer re-introduced a new version of what is now called the Innovative Design Protection Act (IDPA) to provide quasi-copyright protection to “fashion designs.”
- The most significant changes under the Patient Protection and Affordable Care Act (ACA) are scheduled to go into effect in 2014. One of those changes is the imposition of shared responsibility penalties on large employers that fail to offer health coverage to all of their full-time employees (or offer health coverage to full-time employees that is deemed to be unaffordable or inadequate).
- Anthony D. Weis, a partner in the Columbus office, published this article in the Summer 2012 edition of The Bankers' Statement regarding the JOBS Act and what it means for financial institutions.
- Kimberly J. Schaefer, a partner in the Cincinnati office, published this article in Summer 2012 edition of The Bankers' Statement," regarding financial institutions' use of vendors.
- J. Bret Treier, a partner in the Akron office, published this article in the Summer 2012 edition of The Bankers' Statement regarding copying and removing financial institution and supervisory records from an institution.
- Carey Jordan and Iona Kaiser, partners in the Houston office and members of the intellectual property group, co-authored an article for Nanotechnology Law & Business titled "Nanotechnology Patent Survey: Who Will be the Leaders in the Fifth Technology Revolution?"
- On August 22, 2012, the U.S. Securities and Exchange Commission (the SEC) adopted its final rule requiring public disclosure by certain companies that file reports with the SEC and whose products contain tin, tantalum, tungsten or gold (conflict minerals).
- Victor Walton and Joseph Harper, attorneys in the Vorys Cincinnati office, authored a column for Law360 about theories that have been used for calculating damages in False Claims Act (FCA) fraudulent inducement cases.
- The U.S. Patent and Trademark Office has instituted a pilot program in which it will be pulling some post-registration Declarations of Use and requesting proof of use for additional items listed in the goods/services description, instead of only one in a class, as is the custom now.
- Jackie Ford, a partner in the Vorys Columbus and Houston offices, authored an article for the National Association of Independent Schools Advocate. In the article, Ford discuss two electronic challenges commonly faced by independent schools: the use of electronic background checks for employees and the policing student misconduct online.
- On Tuesday, July 10, 2012, the chairman of the Ohio Industrial Commission issued a notice of changes being implemented in the policy regarding hearing continuances and hearing procedures via the publication of a temporary IC Resolution, effective from July 11, 2012 through September 8, 2012.
- Securities Alert: New SEC Rule and Disclosure Requirements Adopted Governing Compensation CommitteesOn June 20, 2012, the Securities and Exchange Commission (SEC) adopted a new final rule and amendments to current proxy disclosure rules regarding compensation committees. The new rule implements compensation committee listing requirements.
- Jessica Knopp, an associate in the Vorys Akron office and a member of the litigation group, authored an article for the Akron Law Journal titled “The Unconstitutionality of Ohio’s House Bill 125: The Heartbeat Bill as Analyzed Under the First Amendment of the United States Constitution.”
- On June 11, 2012, Governor Kasich signed into law Substitute SB 315 (SB 315), modifying the Ohio regulatory structure for oil and gas operations contained in Revised Code 1509.
- On June 11, 2012, Governor Kasich signed into law Am. Sub H.B. 487 (H.B. 487). That legislation includes changes to R.C. 5713.03, the section of the Revised Code that pertains to the valuation of real property in Ohio.
- On June 15, 2012, the secretary of homeland security announced that effective immediately, certain young people who were brought to the United States as young children will be considered for relief from removal or from entering into removal proceedings.
- The future of the Patient Protection and Affordable Care Act (ACA) will be determined by the Supreme Court decision expected this month. In the meantime, the regulatory agencies have continued to develop guidance that will apply to employers' group health plans – assuming health care reform survives intact.
- At the governor's request, Senate Bill 315 was introduced in the Ohio Senate on March 22, 2012. After significant revisions, Senate Bill 315 passed the Ohio Senate on May 15, 2012.
- This Independence Day, businesses in Ohio will have one more tool to attempt to resolve claims brought under the Ohio Consumer Sales Practices Act (CSPA). Effective July 3, 2012, companies sued under Ohio's CSPA can follow a statutory process to attempt to settle a claim at the beginning of a case.
- In recent examinations, the FDIC has identified issues arising from the existence of "optionality" provisions in participation agreements that provide the originating lender with the option of repurchasing the participated portion of the loan upon a borrower default.
- Elizabeth Mykytiuk authored the District of Columbia chaper of The Law of Lawyer’s Liability. The book was released in 2012 by First Chair Press and the American Bar Association (ABA).
- Michael Bronson and Patrick Hagan, attorneys in the Vorys Cincinnati office, co-authored a column entitled “An Unconstitutional FCA Provision Lurking In PPACA?” The column was originally posted in the May 30, 2012 editions of Government Contracts Law360, Health Law360 and Public Policy Law360.
- Rosemary Welsh, of counsel in the Vorys Cincinnati office, outlined the steps employers can take to reduce the longevity of workers’ compensation claims in the May/June 2012 edition of the Ohio Chamber of Commerce’s Ohio Matters magazine.
- The Centers for Medicare and Medicaid Services (CMS) has issued two rulemakings aimed at alleviating procedural and administrative burdens on providers in response to the president's Executive Order 13563, Improving Regulation and Regulatory Review.
- Gregory D. Russell, a partner in the Vorys Columbus office, outlined the review of Ohio’s oil and natural gas regulations conducted by the State Review of Oil and Natural Gas Environmental Regulations Inc. (STRONGER Inc.), a stakeholder organization consisting of environmental, state and industry representatives with expertise in the exploration for and production of oil and natural gas resources, in Crain’s Cleveland Business.
- Beginning May 1, 2012 and continuing through June 15, 2012, the State of Ohio is conducting a General Tax Amnesty Program that under the right set of circumstances could provide significant savings for businesses and individuals with Ohio tax concerns. The General Tax Amnesty Program is separate from the Consumer Use Tax Amnesty Program, which began October 1, 2011 and runs through May 1, 2013.
- Anthony J. Giuliani, a partner in the Vorys Columbus office, outlined the U.S. Environmental Protection Agency’s (EPA) proposed emission standards for chromium electroplating and anodizing facilities in an article published in the May 2012 edition of Products Finishing Magazine.
- Effective April 13, 2012, the Department of State adjusted the visa processing fees applicable to beneficiaries applying for a new visa stamp at a U.S. Embassy or Consulate. Most nonimmigrant visa applications and Border Crossing Cards will increase, except for the E visas (treaty-traders and treaty-investors) and K visas (for fiancés of U.S. citizens).
- The Patient Protection and Affordable Care Act (PPACA) established the Patient-Centered Outcomes Research Institute to study the effectiveness of various treatments. The Institute's work will be supported by the Patient-Centered Outcomes Research (PCOR) fee.
- Jeffery E. Smith, a partner in the Columbus office, published this article in The Bankers' Statement, regarding banks' choices when it comes to bank charters.
- Jeffery E. Smith, a partner in the Columbus office, published this article in The Bankers' Statement, regarding branch purchase and sale transactions, involving sales and acquisitions of defined assets and assumption of defined liabilities (P&A transactions).
- Sheila Nolan Gartland, a partner in the Columbus office, details Ohio's history of oil and gas production in this article, which was originally published in the November/December edition of Ohio Lawyer, a publication of the Ohio State Bar Association.
- Bank officers and directors, as well as bank legal counsel should take heed of the FDIC's Financial Institution Letter dated March 19, 2012 (FIL-14-2012).
- The redevelopment of environmentally contaminated brownfield sites remains a key component to economic development activities throughout Ohio. Remediation, however, can be expensive.
- U.S. Citizenship and Immigration Services updated its count of FY2013 cap-subject H-1B petitions and advanced degree cap-exempt petitions receipted. As of April 9, 2012, nearly 17,400 H-1B cap-subject petitions were receipted.
- For the first time in decades, an Ohio agency has issued a statement on the status of the corporate practice of medicine prohibition. On March 15, 2012, the State Medical Board of Ohio (the Medical Board) published a statement unequivocally declaring that Ohio law does not prohibit an Ohio licensed physician from rendering medical services as an employee of a corporation or any other form of business entity.
- As we discussed in a prior client alert, the Ohio Certificate of Need (CON) Program was changed to permit some inter-county bed relocations. Historically, Ohio CON law has prohibited relocating long-term care beds across county lines.
- On March 22, 2012, House Bill 489 and Senate Bill 314 (collectively, the Bills) were introduced in the General Assembly. The Bills represent the “JobsOhio II legislation,” which is follow up legislation to the provisions of House Bill 1, which was enacted in February 2011.
- Glenn Whitaker and Whitney Gibson, attorneys in the firm’s Cincinnati office, co-authored a column titled “A Guide To Preventing False Claims Act Litigation” for Law360.
- In a long-awaited move, the U.S. House on Thursday passed, as part of the JOBS Act, proposed legislation that includes raising the threshold for SEC registration for banks and bank holding companies from 500 shareholders to 2,000 shareholders. The threshold for deregistration would be increased from 300 shareholders to 1,200 shareholders.
- Rosemary Welsh, of counsel in the firm’s Cincinnati office, authored an article for the March 2012 edition of the Cincinnati Bar Association’s CBA Report about the new prescription controls that were passed into law by Ohio H.B. 93.
- The Department of Homeland Security (DHS) has announced the expansion of TSA Precheck, a passenger pre-screening initiative. Under this initiative, the Transportation Security Administration (TSA) focuses its efforts on passengers the agency knows less about, while providing expedited screening for travelers who volunteer information about themselves before flying.
- Paige Kohn, an associate in the Vorys Columbus office and a member of the litigation group, authored “When Will Ohio Law Recognize the Modern Family?” for the Spring 2012 edition of Columbus Bar Lawyers Quarterly.
- As you may know, the annual cap for the current fiscal year allocation of H-1B visas was reached on November 22, 2011. Since that time, employers have not been able to file H-1B visa petitions subject to the annual cap.
- Every 10 years, following the census, the Ohio Apportionment Board is tasked with redrawing Ohio’s House and Senate districts to reflect changes in population. The Ohio legislative districts must include 99 House Districts and 33 Senate Districts.
- An SBC is a standardized explanation of health coverage intended to help individuals make apples-to-apples comparisons of their options for health coverage. The Internal Revenue Service, Department of Labor and the Department of Health and Human Services (the Departments) published proposed SBC rules and an SBC template on August 22, 2011.
- The development of oil and gas from Utica shale is one of the most significant opportunities for economic development in Ohio in the recent past. For example, geologists have estimated that Ohio’s portion of Utica shale alone could contain up to 15 trillion cubic feet of natural gas and 5 million barrels of oil-related liquids.
- On February 1, 2012, the Ohio EPA issued its final general permit for oil and gas production sites. The general permit covers equipment used for production activities at Marcellus or Utica/Point Pleasant shale wells in Ohio.
- The IRS issued Notice 2012-9 on January 3, 2012, clarifying some of its earlier guidance in Notice 2011-28 on reporting the cost of health coverage on Form W-2. The aggregate cost of health coverage will be reported in Box 12 with Code DD, starting with 2012 Form W-2s (distributed in January 2013).
- The New York Stock Exchange (NYSE) published Information Memo 12-4 on January 25, 2012, in which NYSE altered its previous position under NYSE Rule 452 of allowing brokers to vote customer shares in certain situations without specific client instructions.
- Anthony J. Giuliani, a partner in the firm's Columbus office, analyzed the U.S. Environmental Protection Agency’s 1994 “Common Sense Initiative” in an article published in Products Finishing Magazine.
- On December 21, 2011, Governor Kasich signed Substitute House Bill 225 (the Bill). As enacted, the Bill includes changes to Ohio’s New Community Authority (NCA) law, permits the county boards of revision to adopt procedures for the electronic filing of real property tax valuation complaints and makes county auditors responsible for the review and approval of property tax exemption applications for certain types of publicly owned property.
- Starting in 2014, every non-grandfathered individual health insurance policy and insured small employer group health plan will have to cover essential health benefits.
- S. Hopkins and A. Zytcer. (2014). Extending patent term for nanomedical inventions – A nexus between the FDA and the patent system. In: Handbook of Clinical Nanomedicine: From Bench to Bedside, Pan Stanford Series in Nanomedicine (Raj Bawa, Series Editor), Volume 1, Pan Stanford Publishing, Singapore.
- Mr. Hedden authored the Ohio law chapter of the American Bar Association's publication titled Covenants Against Competition in Franchise Agreements in 2012.
- Susan Harty, a partner in the firm’s Columbus office, authored an article for the December 2011 issue of Ceramic Industry Magazine about how government regulators are struggling to expand existing regulatory frameworks to cover nanomaterials.
- Sheila Nolan Gartland, a partner in the firm’s Columbus office, authored an article on Ohio’s oil and gas regulatory structure for the November/December 2011 edition of the Ohio State Bar Association’s Ohio Lawyer magazine. Gregory D. Russell and John K. Keller, partners in the firm’s Columbus office, authored an article entitled “Ohio’s Dormant Mineral Act,” which also appeared in the November/December 2011 edition.
- Mark E. Vannatta, a partner in the Vorys Columbus office, authored an article entitled “Creditor Claims at Death and Nonprobate Assets: Never the Two Shall Meet?” for the November 2011 edition of the Probate Law Journal of Ohio.
- Paige Kohn, an associate in the Vorys Columbus office and a member of the litigation group, authored "Learning How to Be a Lawyer," for the Fall 2011 edition of Columbus Bar Lawyers Quarterly.
- The impact of the Genetic Information Nondiscrimination Act ("GINA") of 2008 upon workers’ compensation requests for medical information is not entirely clear from the regulations in Title II and the explanatory notes in the Preamble to the regulations
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