Tuesday’s Wall Street Journal has this piece on a recent NLRB decision that makes franchisors “joint employers” in labor complaints for franchised restaurants.

Although the decision from the NLRB General Counsel directly impacts McDonalds only, the McDonalds Corporation sees the decision as having far-ranging implications, according to its official response:  “this decision changes the rules for thousands of small businesses, and goes against decades of established law regarding the franchise model in the U.S.”

The decision comes as the franchised restaurant industry is the target of labor organizing campaigns and legislative efforts to dramatically increase the minimum wage.

From Forbes: “The NLRB general counsel has just issued a ruling that the various separate claims can be treated together and that McDonald’s is a joint employer. Legally this is akin to turning the franchise owners into corporate co-managers and all the restaurant workers into employees of corporate headquarters in addition to their local small businesses.

This decision may in fact result in dramatic changes to the fast food and other segments of the restaurant industry, but could well have far-reaching impact upon franchisors other sectors of the economy as well.  Stay tuned for further developments.

Today’s Cincinnati Enquirer featured a significant article on our firm and our public interest law practice.  In all, I think writer James Pilcher did a fair-to-good job with the story.  But of course they are trying to sell papers, and thus create “controversy” where none exists.

We were invited by the new, reform-minded Board in the Northwest School District to submit a proposal for legal services.  We assembled a great team and a strong proposal, and won the bid.  The entire process was conducted with RFPs and in public.   Our team won a majority vote for the contract. The notion that there was something improper in the process or the selection is entirely unfounded.

First, some balance about my firm, and for this I don’t at all fault Mr. Pilcher.  He would have no way of knowing what else my firm does. Our firm generates lots of headlines for our Public Interest Law work. But less newsworthy is our important and significant transactional practice (corporate work, real estate work and estate planning work)  and our commercial litigation practice (commercial dispute resolution, bankruptcy, and property tax valuation work).  These each comprise a projected 40% of our firm’s income, and public interest litigation about 20%.

We carefully and aggressively pursue the practice of law in these two areas, with significant success.  Our attorneys who practice in these areas are every bit as accomplished as our public interest lawyers.

Then, the public interest arena.  It seems the reporters’ storyline of late has been the amount of fees we reap from this work, and it is significant.  But the work underlying each of these victories is significant as well and spans many years.  And, importantly, in each instance in which we have been awarded fees, the Congress or the Ohio legislature — for important policy reasons — has many years ago authorized or mandated “fee shifting,” meaning the losing government entity pays our fees in the end.  This litigation falls in the following categories:

  • Violations of the US Constitution;
  • Illegal expenditures of tax dollars by cities and counties in Ohio;
  • Other illegal conduct by cities and counties in Ohio;
  • Violations of Ohio Open Meetings laws; and
  • Violations of Ohio Public Records Laws.

In each instance, either the governmental entity settled a claim, in which cases the fee awards are usually very small, or they fought to defend their unconstitutional or illegal conduct, unnecessarily running up fees and expenses that they full well they knew they would have to pay if they lost.

The legislative decision to allow or require fee shifting is important as a matter of public policy because without “fee shifting,” the government entities would get away with their illegal conduct, and no one could afford to challenge their conduct in these areas.

Such is the case with Ohio Public Records Law.  The Ohio Supreme Court in two decisions in January effectively neutered what was a well-written statute by all but eliminating attorney fee awards. That’s their decision, but as a matter of public policy few attorneys will pursue this area of law until the statute is fixed.  Thus, state and local governments now will be able to avoid disclosing public records.

Later, we will write in more detail about a few of these public interest cases, but I wanted to specifically address two mentioned in the sidebar to the article: Preschool Development v. City of Springboro and the Kings School District case.

The Preschool case was a Fifth and Fourteenth Amendment “takings” case of which we are especially proud.  The City of Springboro one day — with no advance notice to our client — closed our client’s “curb cut” on S.R. 73, the main route through the City, and required them to access their preschool building through a defective easement (not a public road) on adjoining property.  The City had, with this precipitous action, significantly impaired the value of our client’s property.

When we were retained, we first gave Springboro the chance to settle — pre-litigation — by fixing what they had done.  Instead, the City decided to fight to the death over the issue.  We sued at the Ohio Supreme Court — and lost!  And then proceeded into Federal Court in a procedurally and substantively difficult case.  After about three or four years of legal battles, Judge Spiegel ruled in our client’s favor and he was made whole, including all of the legal fees expended to fight this battle.  Only weeks after this important decision, our client succumbed to a prolonged battle with cancer.

Another battle mentioned in the article is about the five special needs children we represent in the Kings School District that — with the full knowledge of the administration – were abused day in and day out by the teacher in their classroom.  The cover up extended into the administration, the County Sheriff and Prosecutor, and the Ohio Department of Education.  These parents could not possibly afford to litigate these claims — and stop this kind of abuse — without some hope of fee shifting or financial recovery.  How else is this type of behavior to be remedied?

So, the whole story cannot be told by these “in depth” articles in the newspaper, but we love what we do and enjoy making a difference for our clients in the public interest law arena.






Here’s our Constant Contact announcement of today to our clients and friends of our twin victories at the United States Supreme Court.

To commemorate this important occasion, we carefully tracked down and obtained permission to use this beautiful print of the United States Supreme Court from the Kamil Kubik foundation.

Thanks to our clients and our fantastic legal team for making this victory possible.  It is possibly a once-in-a-lifetime experience.

Read more about these huge wins, these two cases and our team here.

UPDATE: This National Review piece covers the dueling Halbig and Kings decisions very well also.

Here’s a quick summary of today’s DC Circuit Court opinion in Halbig:

1)  No noticeable effect anytime soon;

2) Potentially far-reaching effects direct and indirect from the decision;

3)  Conflicting decision released within hours;

4)  The U.S. Supreme Court’s going to have to decide things.

Here’s a pretty good quick analysis of the impact of Halbig.



Most states have “sunshine laws” that apply to state and local government, laws that require government meetings to be held in the open and government records to be accessible to the public.  Frequently, those laws have real teeth, giving private litigants an award of statutory and attorneys fees if they prevail.  (This is absolutely necessary in order for the common man to fight for open records and public meetings in court, an expensive proposition, against a well-funded and intransigent government.) Such is the case in Ohio, that has well-written open meetings and public records laws.

Unfortunately, the Courts have managed to neuter both in Ohio.  In the public records context, the Ohio Supreme Court has interpreted the open records statute, in this decision, to say that if the records are produced before the end of the litigation, no attorneys fees are to be awarded under the Ohio statute.  Now, the Ohio statute does not say that, but … it does now.  In the open meetings context, this decision (for Hamilton County) and this decision (for Butler, Clermont and Warren Counties) say that “discussions” do not have to be in public, but “deliberations” do.  The judicial districts in Ohio disagree on this standard, and the Ohio Supreme Court has declined to clarify the issue. Thus, that distinction between discussions and deliberations is also not in the statute, but … it is now.

This article addressing frustrations with judicial interpretations of the state of Michigan open meetings laws shows that Courts in other states have managed to muddy the waters as well.

In short, most states have fairly clear open meetings and public records laws.  It is up to the Courts to determine if we get to keep them.

It’s fun to turn a losing case into a winner.

The Ohio Real Estate Recovery Fund (O.R.C. Section 4735.12) has the potential of taking a case that can’t be “won,” because the client can’t collect against the defendant, into a “winner” by accessing this special professional indemnity pool.

A plaintiff client who has a claim against an Ohio real estate agent who is insolvent — uncollectable — would typically just “walk away.”  “You can’t get blood from a turnip,” they say.  “Throwing good money after bad.”

But these are not necessarily losing claims.

In the limited instance in which the claim is (i) against an Ohio real estate salesperson or broker, (ii) “on the grounds of conduct that is in violation of” the real estate brokerage laws of the state, and (iii) for an act that “is associated with” Ohio real estate brokerage activities, a plaintiff can recover from the state of Ohio up to $40,000 per licensee (not per claim) any unpaid judgment “that represents the actual and direct loss sustained by the applicant.”

The statute is highly technical to invoke, and the Ohio Division of Real Estate that administers the fund and the Ohio Attorney General’s Office that defends against claims from the fund guard the funds zealously, meaning you have to carefully jump through a lot of hoops to access these funds.

Attorneys in our firm have successfully made a claim for funds from the Ohio real estate recovery fund.

There are separate and similar recovery funds for losses arising from the misdeeds of:

  • Ohio appraisers in the scope of their licensed activities (O.R.C. Section 4763.16).  Claims from that fund are limited to $10,000 per judgment.
  • Ohio auctioneers in the scope of their licensed activities (O.R.C. Section 4707.25).  Claims from that fund are limited to $50,000 per judgment.

Allow us to “make a difference” for you by pursuing claims against a statutory recovery fund of Ohio licensees.

Frequently our firm is asked to represent parties against whom claims have been made, either defendants in a law suit or recipients of a demand for payment pre-litigation.

It’s easy to just dive in and either respond to a demand letter or to defend such a suit, but that impulsive response can unnecessarily cost the client money.

One question that should be addressed early in the engagement is: Are their insurers or indemnitors who might cover the cost of the claim and/or the cost of the defense of the claim?

Almost all individuals and businesses maintain insurance policies of some sort such as property and casualty insurance (property and auto) or public liability insurance.  Some individuals and businesses will also have a variety of specialty insurance policies such as professional liability (i.e., malpractice) insurance, title insurance and fiduciary coverage.  These all are contractual arrangements whereby the risk for many typical occurrences in personal and business life that give rise to claims and suits are shifted to an insurance company — both the underlying claim and the attorneys fees associated with defending the claim.

In addition, the client may have a variety of contractual relationships that transfer the risk to a third party (not an insurance company).  Commercial leases, for example, many times contain risk-shifting provisions for various occurrences (both shifting risk from landlord to tenant and from tenant to landlord).  Employers frequently cover claims against their employees.

In addition to contractual relationships that give rise to indemnity claims, the positioning or actions of parties can cause risk-shifting as well.  For example, if someone borrows your car and wrecks it, injuring others, or if someone trespasses on your property and causes damage to property or injury to person, those third parties can be responsible to the client and the claimant for the costs of the claim and its defense.

An aggressive and creative attorney will — near the outset of the relationship — thoroughly explore insurance and indemnity issues so as to minimize or eliminate costs to the client — costs of both the attorneys fees to defend the claim as well as the costs of the substantive claim itself.

The idea is not for the attorney to make money — but rather to maximize the value to the client by retaining our firm.  If we can shift the risk near the beginning of the relationship to an insurer or indemnity, we have provided that value.  We have “made a difference” for our client!

Read here one example where we made a difference for a client whose prior counsel had failed to advise him of insurance and indemnity issues in a defamation claim.