In litigation, parties may exchange thousands of documents, some of which may contain sensitive information about personal matters, privileged documents and documents containing sensitive financial and tax information.  As a result, many times parties want to enter a “Protective Order” from the Court that allows for such documents to be produced with varying levels of agreed confidentiality protection.  In this blog entry, we explore (a) the true and fundamental need for such protections (usually most of it it is just a waste of time) and (b) some of the abuses we have experienced under such Orders.

In short, (a) they should not be entered casually — but carefully and thoughtfully, (b) there needs to be escape or corrective clauses for inappropriate unnecessary designation of documents as confidential, and (c) there should be penalties on counsel for abusing the Protective Order privileges.

What is a Protective Order?

Typically, a Protective Order allows one party or the other to designate documents as “confidential,” and those documents so designated are protected from public release.  Further, when sharing them with expert witnesses and other third parties (such as a technical consultant for organizing electronic discovery).  That makes sense.  The parties should not post on social media or circulate to competitors truly confidential business plans, financial documents and tax documents.

That’s fine as far as it goes, but then the Protective Order typically provides that filing any such document with the Court must be under seal.  To me, this runs contrary to the principle that trials in the U.S.A are to be held in the public.  Shielding the truth from public view should be done with caution, sparingly.  But beyond that is the hassle of carefully making sure you follow the correct procedures.  It drives up the cost of litigation, and the penalties for making an innocent mistake.

And then, beyond all of those protections, are production “for attorney eyes only.”  Huh?  We can’t share certain documents with our clients?  Ridiculous in 99.997% of instances.  What is so confidential that our own clients can’t be part of information sharing to develop their claims or defenses?  Really?

Further many times Protective Orders contain “claw back” provisions wherein documents that are privileged from disclosure (such as attorney-client or spousal privilege documents) can be (or must be) returned as if unseen, and copies not retained.

Digging your own grave.

There is nothing so deadly in the law as concessions and admissions you yourself make, and a Protective Order is of the type that the Judge will say: “Well, you agreed to this.”  Thus, a Protective Order is a grave you have dug for yourself.  Sign on with great caution.

Judges hate discovery disputes.

Judges are busy with other things, criminal trials, search warrants, temporary restraining orders, and on and on.  The rules of discovery are fairly clear and the parties should play fair.  But they don’t.  And then we must burden a Judge — who might have a murder trial in front of us — with playground disputes about non-production. It’s tedious and unproductive, but sometimes necessary.  But this is complicated when a party thoughtlessly agrees to handle documents in a certain way that later becomes impractical or burdensome.  Asking the Judge to unwind a dispute over the designation and use of documents as defined and prescribed by a Protective Order is more burden for the Court, a burden with which they don’t want to deal, and may simply refuse to address.

Judges are mixed on requiring Protective Orders.

As a result, I generally oppose the use of most protective orders — it just increases the cost and time for litigation.  We are talking tens of thousands of wasted dollars and years of wasted time. So, the request for a Protective Order then ends up before a Judge.

In one active case I have now, we are litigating against a “pay lake” operator.  He has five small lakes, and charges the public to fish in them, and charges for works, beer, coke and chips.  That’s about the level of privacy and complexity of his finances.  “He sells worms, for God’s sake, I say.”  He insisted that his financials and tax returns be disclosed under a Protective Order.  Huh?  What is secret and confidential about selling worms and renting the right to fish in stocked lates at $15 per day?  But sure enough, the issue of a protective order was pursued through the Magistrate and further into the Common Pleas Court with Objections to Magistrate’s decision – attorneys can and will fight over everything.  Fortunately, in this already expensive litigation, the Court rejected the requirement for a Protective Order, allowing us to access the documents sought without restrictions.

In a second case, a personal injury case against a major public utility, the utility sought and obtained (and as discussed below, abused) the Protective Order, complicating already overly-expensive litigation.

Discovery abuse.

Then, once a Protective Order is in place, invariably opposing counsel will abuse his privileges under the Protective Order:

  • In the case of the public utility defendant noted above, they designated 1,500 pages of materials that they themselves previously had posted on line.
  • In another case, the Defendants marked more than 200 entirely blank pages as “Confidential.”
  • In a recent case, the Protective Order had been entered that included the right to designate hyper-sensitive documents as “For Attorneys Eyes Only.”  The case was about residential (Single Family Home) property management.  The opposing attorney designated Quick Books records of the financials of the properties as “for attorneys eyes only.”  Now, this was ridiculous.  What is so hyper-sensitive that we could not share property management financial details with our own client?  It was ridiculous.

Confusion about use at trial.

Then, the funniest thing we had recently in a case with a Protective Order: The Order allowed use of the documents marked as “confidential” for “litigation purposes,” which to me means using them as Exhibits at depositions and at trial.

Well, opposing counsel threw a fit about me using a document — a second purchase contract that came after the one being contested at trial — as an Exhibit at Trial.  Huh?  If that’s not “litigation purposes,” I don’t know what is.

Well, the Judge agreed with me and we were able to use it at trial, but not after significant (15+ minutes) or discussion before the Judge and the Judge slobbering all over himself apologizing that this super-secret document had to come into the record.

One more thing to argue about.

The point of this blog entry is that I don’t like to use Protective Orders and they only should be requested — and permission granted — when they really are needed.  Otherwise, they become one more thing the client pays to draft, negotiate and then endlessly argue over as the litigation progresses.

Just say “no.”

 

 

As we approach our 10th anniversary (more on that to come later), here are the accomplishments and market position of Finney Law Firm, LLC and Ivy Pointe Title, LLC by the numbers.

  • 17 attorneys.
  • 9 paralegals.
  • 3 office locations.
  • 3 wins at the U.S. Supreme Court.
  • 5 wins at the Ohio Supreme Court.
  • More than 18 wins at the Federal and Ohio Courts of Appeals.
  • 8 certified class actions.
  • 13,652 Tweets (now, “X”s).
  • 867 blog posts.
  • 63 newsletters.
  • 9,794 successful real estate closings (est.).
  • $56 million in property tax savings (est.).
  • 73 civil rights cases and taxpayer actions.

Thanks for being a part of it!  Much more to come!

Many people have become familiar with the concept of “reasonable accommodation” under the Americans with Disabilities Act (“ADA”). Basically, the law requires employers to “accommodate” the needs of a disabled employee if it can be done reasonably, and without causing an “undue hardship” to the employer.

Less well-known is the employer’s duty to accommodate the religious beliefs of its employees. This duty arises under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of such characteristics as race, color, sex, and religion.

The classic example of a religious accommodation case under Title VII is whether an employer must excuse an employee from working on their Sabbath day if their religion prohibits it. As in the case of the ADA, the law requires employers covered by the Act to reasonably accommodate the sincerely held religious beliefs of an employee if it can be done without causing an undue hardship for the employer.

But what constitutes an “undue hardship“? If providing an accommodation would cause some inconvenience, difficulty, or expense for an employer, how do we determine whether it is significant enough to be considered an “undue” hardship under the law? How much hardship is “too much”?

Recently, in a case called Groff v. DeJoy, the United States Supreme Court provided some guidance on this question. In doing so, it significantly increased the burden of proof employers must meet in order to show that a proposed accommodation of an employee’s beliefs would impose upon it an “undue hardship.”

Previously, the Court had suggested that any hardship that was more than “de minimis“ – meaning, “barely noticeable” – was enough to constitute an “undue” hardship in the context of a reasonable accommodation. This was a pretty low burden for employers to meet. In Groff, however, the Court held that the employer must meet a significantly higher burden. Specifically, employers must be able to show that a proposed accommodation would impose a burden that is “substantial,” such as by causing the employer to incur “substantially increased costs,” if it wanted to deny an accommodation on the basis of undue hardship. If it cannot show a “substantial“ hardship, then the employer must ordinarily accommodate the beliefs of the employee.

While the exact contours of this definition are still somewhat unclear, the Court is certainly saying an employer must now show much more than a “minimal” hardship in order to legally deny a requested accommodation of an employee’s religious beliefs.

Both employers and employees should be mindful of this new standard, and should seek competent employment counsel for guidance when these issues arise.

Although there is a lot of conversation and worry regarding the issue, estate and gift taxes do not affect most households.

In Ohio, there is currently no estate taxes for state taxation purposes.  The Ohio estate tax was repealed effective January 1, 2013.

There is a federal estate and gift tax that is 40% on assets subject to the tax; however, there is a large exemption that covers the average household.

The estate and gift tax exemption is the amount of money that can be transferred without having to pay estate taxes.  For 2023, the estate and gift tax exemption is $12.92 million individual, and $25.84 million for a married couple.  There will likely be a substantial reduction at the end of 2025. Unless new legislation is passed, the estate and gift tax exemption is scheduled to sunset back to the 2017 exemption amount (indexed to inflation), and will be approximately $7 million per individual, and $14 million for a married couple, depending on inflation over the next two years.

If your wealth exceeds your available estate and gift tax exemption, there is an opportunity to make gifts using the higher exemption amount prior to the sunset.  For individuals or couples close to the exemption amount after the sunset, it makes sense to explore options in order to try to avoid making the federal government a beneficiary of your estate.

As real estate attorneys and licensed Ohio title insurance agents, we must constantly be on the lookout for the latest scheme to defraud buyers, sellers, lenders and others in real estate transactions.  We have already written about ever-persistent attempts at wire fraud.  (This one is never going away, we fear.)  But yet another fraud that is borne from the bountiful information available on and the anonymity of the internet is on the rise: Seller impersonation schemes.

According to one of our underwriters, First American Title Insurance, Seller impersonation schemes have increased 73% in 2023.  We personally have seen this attempted — but caught — to two separate commercial Realtor clients.

Here’s how the scam works, according to First American:

  1. Scammers search public records to identify real estate that is free of a mortgage or other liens. These often include vacant lots or rental properties. The identity of the landowner is also obtained through these public records searches.
  2. Scammers pose as property owners and contact a real estate agent to list the property for sale. All communications are through email and other electronic means and not in person.
  3. The listing price of the property is typically set below the current market value to generate immediate interest in the property.
  4. When an offer comes in, the scammer quickly accepts it, with a preference for cash sales.
  5. The title company or closing attorney transfers the closing proceeds to the scammer. The fraud is typically not discovered until the time of recording of transferring documents with the applicable county.

The natural reaction of a Realtor or buyer is: “that it’s the job of the closing attorney or title agent to ascertain the true identity of the seller,” but in the cases of limited liability companies and corporations, there typically is no public information at all (including the Secretary of State’s records), to ascertain the true owners and officers of these entities.  In the case of individual sellers, if they are shipping to Ohio a notarized deed signed out of state, it is possible that no one even asked for their I.D.

Thus, not only is it not negligence on the part of the attorney or title agent to fully ferret out the “authority” question, it’s something that’s not even possible in many instances.  In short, it’s one of the inherent risks in real estate transactions.

Thus — and it sounds self-serving to say this, but it’s true — one of the only sure ways a buyer can protect himself against his scam is to purchase an Owner’s Policy of Title Insurance at the time of the acquisition.  (And, no, simply buying coverage for the lender is simply insufficient — it is in fact NO COVERAGE AT ALL for the buyer).  In the above scenario, a non-fraudulent buyer who purchases an Owner’s Policy is covered if they fall victim to this scam.

__________

We are tremendously proud of the title presence we have in Ohio and Kentucky through Ivy Pointe Title.  Our residential division headed by Rick Turner (513.943.5660), and our commercial division headed by Eli Krafte-Jacobs (513.797.2853) are — as our tag line says — “accurate and on time, every time.”  They are here to protect you from these kinds of scams and schemes.  Let us know how we can help you safely close your next transaction.

Image

Our own Chris Finney will be speaking on a legal panel — Legal Issues Forum – Avoiding Legal Nightmares — at the Ohio Association of Realtors convention to be held in Cincinnati on Wednesday, September 13, 2023 at the Hyatt Regency in Cincinnati.

The planned topics for the program — in addition to panel discussion and Q & A from the Realtors in attendance — include (a) Avoiding Scams, (b) Taxes can be Taxing, and (c) Disclosure issues.  Mr. Finney will be teaching with Cincinnati attorneys Chip Brigham and Roccina Niehaus.

For both commercial properties as well as single family homes, owners have flooded us with inquiries about their notices from County Auditors in Hamilton, Butler, Clermont and Montgomery Counties as to new property valuations.  We can’t imagine the number of calls the County Auditors must be getting.

A few guideposts for you:

  • First, read this important blog entry that essentially tells you that the first 30% of the valuation increases in southwest Ohio will not result in an increase (or at least not a significant increase) in your actual tax bill.
  • Second, Auditor’s property valuation is not some magical number — for the January 2024 tax bill, it is to be the fair market value as of January 1, 2023.  Thus, if your property was worth more then than in the prior valuation period, you should expect a valuation increase — perhaps one even above average for all properties in the marketplace.  Some clients seem to think that since valuations were less than what they thought the property was actually worth in the past, the Auditor’s valuation process is supposed to yield a lower number.  Well, it’s not.
  • Third, if your property was purchased since the last triennial valuation date (January 1, 2020), the sale price likely will be reflected in the valuation.  As this blog entry addresses, a recent arm’s length sale essentially — and largely irrebuttably — IS the value by law.
  • Fourth, if your property falls in one of the gazelle categories of properties whose values have leaped ahead of the market — single family homes, warehouse and industrial properties, and apartment buildings — you should both celebrate your good fortune and expect a bigger tax bill as a result.
  • Fifth, on the flip side, if you are a victim of the weak office market or the mall or downtown retail market weaknesses, you should should see some tax relief in the January tax bills.
  • Sixth, gas prices are up, grocery prices are up, car prices are up.  You have not had a valuation increase in three years.  Wouldn’t you expect your tax bill would rise some, at least modestly?
  • Seventh, for both buyers and sellers in today’s market, the looming valuation increases create both a possible problem and an opportunity as to contractual tax prorations for sales between now and January when the new — very different — valuations come out.  Read here for more detail on this.
  • Eighth, remember, the Board of Revision process to challenge property valuations is a two-way street.  If your property truly is undervalued, you risk an increase.  Cautiously keep in mind the upward dynamics of the real estate market over the past three years.  You could wind up with an increased valuation as opposed to the sought reduction if you overplay your hand.
  • Finally, I had a client recently ask me “why would single family home valuations be increasing in Cincinnati?” and I swear he must live under a rock.  I responded, “haven’t you seen newspaper articles explaining that Cincinnati has had one of the hottest housing markets in the nation since the start of COVID?”  The response, “ummm, no.”  It is surprising since we deal with this every day, and to some extent it is just denial of the obvious fact that we are blessed in Cincinnati with a fantastic housing and commercial real estate market.  Enjoy it while it lasts!

If, after reading this and the prior blog entry on the new valuations coming out in January, you still have tax valuation questions, please contact me (513.943.6655) or another member of our tax team.  We are glad to help.

In the category of “you learn something new all the time,” this week I learned something new about Remote Online Notaries (“RONs”) used for real estate closings.

The scenario was that a seller was unaware until he reached the closing table that the signature of his wife — married since the house was acquired — was needed on the deed in order to release her rights of dower.  Unfortunately, the wife was (a) a non-citizen of the USA, (b) she had a green card and had resided in the US for years, and (c) was physically located in Germany as of the time of the closing.

In the days before RONs, the only option was (a) email the deed to the signer and have them print it out in the remote jurisdiction (usually on funny-sized paper), (b) make an appointment at the U.S. Embassy for an overseas equivalent of a notary (or acknowledgement) (typically you can’t just drop in unannounced), (c) wait for that  appointment and (d) Fed Ex the deed back to Cincinnati.

The wife was able to get a quick appointment at the U.S. Embassy and would be able to get a deed back to Cincinnati about five days after the initial closing (even including an intervening weekend).  Unfortunately, the buyer just could not wait the five days and was throwing a fit, demanding thousands of dollars of concessions for (what we saw as) a relatively short delay.

So, RON to the rescue, right?

Not so fast.  The title underwriter’s (the guys who ultimately make the call as to whether we can close or not) first reaction was “so long as she is a US citizen, we can use a RON closing.”  I replied, “well no, in addition to being out of the country she is not a US citizen.”

Digging deeper (which we appreciate our title underwriter doing), it turns out that the “US citizen” thing is not a bright line test.  Rather, RON closings use sophisticated Knowledge-based Authentication (“KBA”).  These are whose odd security questions that pull and query minute details from your past (many times when I am asked a KBA question, I don’t even know the answer, even though the question is about something I should know!).  Well, as it turns out, those KBA questions are primarily pulled from information contained deep in your credit report, and — if your contacts to the US and its credit-reporting system ae sufficiently robust — RONs can possibly work for non-US citizens, including those who at the time are overseas.  (You actually find out “if it works” during the execution of a RON closing.)

So, the closing was saved — RON got it done within hours of the first phone call.  And I learned more about RON, citizenship and what “KBA” is.

#MakingADifference

 

Many employers require their employees to sign noncompete agreements as a condition of employment. These agreements purport to prohibit employees from working for a competitor for a period of time after their employment ends, usually a year.

These agreements are enforceable in most states, with certain restrictions. They have to be reasonable in time and scope, and they cannot impose an undue hardship on the employee, or be injurious to the public interest.

In recent years, however, many states have passed laws to place significant limits on noncompete agreements, and even to outlaw them altogether. In Ohio, Kentucky, and Indiana, however, these agreements are still legal and enforceable in most instances.

Now, noncompete agreements are under attack on a national level. The Federal Trade Commission has proposed a rule that would ban noncompetes nationwide, except in very limited circumstances. The FTC is currently receiving public comment on its proposed rule, and a final rule is expected to be issued early next year.

The National Labor Relations Board has also gotten into the act. This Board, which regulates employer-employee relations and the rights of workers to act in concert with one another, recently issued a ruling banning confidentiality clauses and non-disparagement clauses in  employees’ severance agreements. Recently, the general counsel (lead attorney) of the NLRB issued a memorandum expressing the view that noncompete agreements violate the legal right of workers to engage in “concerted activity” about their working conditions, because they effectively prevent workers from resigning, or threatening to resign, over unsatisfactory conditions in the workplace. Although the general counsel’s memorandum does not have the force of law, it signifies that the Board may make that ruling in the near future.

As of now, noncompete agreements are still often enforceable in Ohio and surrounding states. That could be changing very soon, however. Stay tuned!

As we reported here, Finney Law Firm participated in a successful class action to force the City of Cincinnati to stop collecting alarm registration fees and to refund illegally-collected fees for years past.

Those refund checks were dropped in the mail over the past few weeks and the final batch is to be mailed this week.

In the event that you did not properly receive a refund check due to you, contact the City’s False Alarm Reduction Unit at (513) 352-1272.

If you continue to have problems, do let Chris Finney (513.943.6655) know.