By L. Lin Wood & Todd McMurtry

The next time you land an interview with a prospective employer, apply to college, or use an online dating service, be certain that your online presence is free of false and defamatory accusations.

Indeed, 70% of employers use social media to screen a candidate’s personality before hiring,[1] 68% of colleges use an applicant’s online presence as a factor for determining admission,[2] and 89% of surveyed dating app users report “researching” their dating matches online prior to going on the first date.[3]  Employers are especially self-conscious about generating controversy that will potentially put them in a bad light with customers and shareholders.[4]

Nicholas Sandmann, a young teenager unwittingly made the centerpiece of the Covington Catholic media attack, will never have the chance to restore his online presence, despite his innocence.  The internet’s permanence—negative, false and defamatory articles and headlines never ceasing to appear upon a Google search of the word “Sandmann”—will function as a perpetual thorn in Nicholas’s side throughout his adolescence and entire adult life.  Consider what the future might hold.  What follows the internet and the adoption of 5G technologies?  Things could actually get worse. Only our imaginations limit what could be done. This is perpetual reputational harm.[5]

Legal commentators suggest that Nicholas’s prayers for relief against The Washington Post, a demand totaling $250 million, and against Cable News Network, Inc. (CNN), totaling $275,000,000, do not represent an accurate reckoning for the damage caused to Nicholas’s reputation by the Post’s and CNN’s negligence and reckless disregard of the truth in furtherance of their political agendas.[6]  We unequivocally disagree.

Misguided critics justify their flawed analysis of the damages claim on an outdated understanding of the news media landscape.[7]  Before the internet and the twenty-four-hour news cycle, amnesia about certain stories was commonplace.[8]  Yesterday’s news faded into obscurity on archival tapes and yellowing paper.[9]  In contrast, with widespread access to the internet in 2019, it is impossible to completely eliminate a news story.  The internet never forgets.  Consider the following example from the “Duke Lacrosse case.”[10]

In 2006, Duke University athletes Colin Finnerty and Reade Seligmann were falsely accused of raping a dancer in Durham, N.C. who was hired to perform at a private party.[11]  The two men were exonerated after DNA evidence and witness testimony proved their innocence.[12]  To this day, nearly fourteen years after Finnerty and Seligmann’s exoneration, a Google search of the words “Finnerty and Seligmann” yield—on the first page of results—two original articles from 2006 accusing the two men of rape.[13]

Linda Fairstein, a reputable author and former prosecutor, explained in a 2007 Dateline interview that the public’s rush to judgment in the Duke Lacrosse case will forever place an “asterisk” after the names Finnerty and Seligmann.  She stated that because of perpetual reputational damages, there was “no way” to make the falsely accused whole again.[14]

Let us not forget: Nicholas is a private figure that had no platform to defend himself from the baseless media assault that defamed him.  He will never forget the death threats he received.  The perpetual reputational harm he will suffer was not brought on by free choice, but by a plot to assassinate his character in order to advance a political agenda.  Regardless of your politics, an innocent high school student should not be an acceptable casualty in a rhetoric war against the president.

It is time to recognize that the media landscape has changed, and so has the longevity of the harm that is caused to the subject of a defamatory article.  Punitive damages are aimed at deterrence and retribution.[15]  Without an adequate legal deterrence mechanism, news publishers will continue to be insulated from the consequences of their false and defamatory publications that, as in this case, caused irreparable and perpetual harm to an innocent minor.

Still, the fact remains:  Nicholas has many years left to live in the shadow created by The Post’s, CNN’s and other’s reckless disregard of the truth.

Lin Wood and Todd McMurtry are co-counsel for Nicholas Sandmann in defamation cases brought against multiple media defendants, including The Washington Post and Cable News Network, Inc.

 

[1] Lauren Salm, 70% of Employers are Snooping Candidates’ Social Media Profiles, CareerBuilder.com (June 15, 2017), https://www.careerbuilder.com/advice/social-media-survey-2017; Saige Driver, Keep it Clean: Social Media Screenings Gain in Popularity, BusinessNewsDaily.com (Oct. 7, 2018, 7:23 AM), https://www.businessnewsdaily.com/2377-social-media-hiring.html.

[2] Scott Jaschik, Social Media as ‘Fair Game’ in Admissions, InsideHighered.com (April 23, 2018), https://www.insidehighered.com/admissions/article/2018/04/23/new-data-how-college-admissions-officers-view-social-media-applicants#.XG9OKs_pP8Y.link.

[3] Molly Fedick, To Google or Not to Google, HingeIRL.com (last accessed Feb. 21, 2019), https://hingeirl.com/advice/should-i-google-my-dates/.

[4] See id.

[5] See Richard J. Peltz, Fifteen Minutes of Infamy: Privileged Reporting and the Problem of Perpetual Reputational Harm, 34 Ohio N.U. L. Rev. 717 (2008), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1669693.

[6] See, e.g., Fox News, Your World w/ Cavuto, TheDailyBeast.com (Feb. 20, 2019), https://www.thedailybeast.com/judge-napolitano-explains-to-fox-news-host-covington-kids-lawsuit-impossible-to-prove.

[7] See generally, Peltz, supra note 5.

[8] See Jason Feifer, Commentary: When Should the Internet Just Forget?, Wash. Post & ChicagoTribune.com (Oct. 30, 2015, 9:00 PM), https://www.chicagotribune.com/news/opinion/commentary/ct-right-to-be-forgotten-internet-20151030-story.html.

[9] Peltz, supra note 5, at 719.

[10] See generally, Peltz, supra note 5.

[11] Peltz, supra note 5, at 717.

[12] Lara Setrakian, Charges Dropped in Duke Lacrosse Case, ABC News (April 11, 2007), https://web.archive.org/web/20070518222004/https://abcnews.go.com/US/LegalCenter/story?id=3028515&page=1.

[13] Search Query of “Finnerty and Seligmann,” Google.com, http://google.com (search “Finnerty and Seligmann” without quotations, scroll to bottom of first results page) (last accessed Feb. 22, 2019).

[14] ABC Dateline, Collapse of a Case—Duke Case Dismissed, YouTube at 6:39 (April 10, 2007), https://youtu.be/3gh8oGF4iXQ?t=399.

[15] State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003) (citing Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001)).

 

Just uttering the word conflict is enough to make anyone nervous—but not attorneys, right? When their own interests may collide with that of a client’s, however, it’s a different story. Jobs and reputations could be at stake. In fact, “conflict of interest” (including perceived conflict) was the most-cited legal malpractice claim of 2018. Good lawyers know conflicts of interest will eventually happen; smart lawyers know how to plan for them.

Defining Conflicts of Interest

While the American Bar Association gives Model Rules of Professional Conduct, each area has its own interpretation of these rules. In her article, “Analyzing Conflicts: A Necessity for Every Lawyer,” author Marian C. Rice points out that in most jurisdictions, however, conflicts can be analyzed within the following four categories.

PERSONAL CONFLICTS BETWEEN A LAWYER AND A CLIENT

As Rice states, this type of conflict of interest can be broadly interpreted. Romantic entanglements can of course become an issue, as can many other types of personal relationships. Any financial or business interests the lawyer has with a client may also be called into question.

CONFLICTS CONFRONTED IN THE SIMULTANEOUS REPRESENTATION OF CLIENTS WITH DIFFERING INTERESTS

When multiple client interests are involved, the lawyer’s professional judgement can be impaired. An attorney attempting to represent two individuals engaged in divorce proceedings would be an example of this.

CONFLICTS BETWEEN A CURRENT AND FORMER CLIENT

“Current” and “former” can be complex to define, but this conflict may be the easiest to avoid. A closing letter sent by the firm verifying the end of its representation is usually enough to clarify the client’s status.

CONFLICTS INVOLVING THIRD PARTIES

Every decision and action performed by an ethical attorney hinges on his or her duty of loyalty to their own client. Any outside influence that may call that commitment into question should be analyzed. This may include someone other than the client paying the attorney’s fees, or a previous prospective client who divulged information.

Seeing Conflicts Management as Risk Management

Conflict of interest rules need to be established by the firm, and a management plan put into place for their discovery. In fact, conflicts attorney Michelle Turbanic urges legal practices to view conflict management as “very necessary risk management procedures that ultimately protect you, your practice, and your firm.”

Another way to approach conflicts of interest is to think about them in a different way. In her article “Dealing With a Lawyer Conflict of Interest,” author Lori Tripoli encourages lawyers not to panic when these issues arise. “Would we flinch quite so easily,” she wonders, “if conflicts of interest were labeled something more neutral, such as client engagement opportunities or client-centered considerations?” Remember that the ABA and jurisdictions have set up these model ethics rules and regulations not to hinder legal practices, but protect them. If a potential conflict of interest arises or is discovered, it doesn’t necessarily mean the relationship with the client must be terminated. Oftentimes a lawyer can proceed with a known conflict of interest provided there is informed consent, firewall, or other protective prerequisites put into place.

At its core, a management plan should consider how conflicts will be identified, how they will be assessed, how they will be managed, and any long-term goals the firm or its attorneys may be considering. (Will the practice be expanding into other areas of the law? Is an attorney gaining a larger foothold with clients in a particular legal area?) For the most comprehensive management plan, Tripoli further urges attorneys to plan ahead for possible complications by thinking about: at what point a conflict can be discovered, who can discover it, whom should be approached once it is discovered, and what further action will be taken.

The Conflicts Checklist Database

Firm-hopping is on the rise, which means new lawyers may not be aware of a firm’s conflicts of interest. Therefore, a maintained conflicts database system is crucial for every firm, solo or multi-location. Ethics-defense attorney Eric Cooperstein warns attorneys should never “rely on their memories to determine whether they have a conflict.” While some may rely on a binder system (or maintain the boast of elephant-like recall powers), the database system most recommended is a digital one—such as Microsoft Excel or Google Drive. Everyone at the firm should be on the same page and have access to the same information.

In his article for Lawyerist.com, “Making a List: The Conflicts Check” attorney Josh Camson outlines the five elements an effective conflicts checklist database should include.

LIST OF CLIENTS

Include client first and last names, what type of case they are associated with, and a link to the file number.

OPEN OR CLOSED CASE

Anyone consulting the conflicts database should be able to tell at a glance the status of the associated case.

FIRM RELATIONSHIP

Turbanic advises firms to notate the relationship the firm had with each name in the database as “client,” “adversary,” or “third-party.”

CLIENT RELATIONSHIPS

Cooperstein refers to these database entries as “related names.” The information should include names of: spouses, children, employers, beneficiaries, and expert/key fact witnesses. 

ATTORNEYS AT THE FIRM

As a cross-reference check, there should be a section in the database listing all lawyers at the firm, including previous ones. The information included here should be, first and foremost, past clients. Also notate the attorney’s area of expertise; then link to information on past issues and the other parties involved.

Once the information for the database has been gathered, the system should be maintained and utilized on a regular basis. Everyone in the firm should be trained on best practices for inputting new information. Additionally, it should be standard procedure for all members to run a conflicts check after every prospective client meeting. Even if no legal conflict exists, Camson encourages attorneys to continually keep their firm’s image and reputation top of mind when considering new clients.

As I always advise, planning is simply the best way to avoid malpractice. If you want to stay in the game and out of trouble, always look ahead. Having systems like a conflicts database in place aren’t just a good idea; they’re business practices your firm’s protection and future are dependent on.

Todd V. McMurtry is a Member at Hemmer DeFrank Wessels, PLLC.  He is a 2019 Top 50 Kentucky Super Lawyer and Harvard trained mediator, who is dedicated to professional excellence.  Todd has been married to his wife, Maria C. Garriga, for 32 years.  They have three adult children. You may reach him at [email protected] or (859) 578-3855

 

FOR IMMEDIATE RELEASE

March 4, 2019 

In a span of 3 days beginning on January 19, The Washington Post rushed to claim leadership of a mainstream and social media mob of bullies who falsely attacked, vilified and threatened Nicholas Sandmann, an innocent 16-year old boy. Late last Friday evening, 41 days after it launched its false attacks on a minor, the Post published an Editor’s Note and delivered to Nicholas’ lawyers a letter from its General Counsel, Jay Kennedy. With its unlimited financial resources, the Post likely spent tens of thousands of dollars on media defense lawyers to publicly parse and spin its false coverage in an effort to avoid accountability and limit its legal responsibility for its wrongdoing. The Post’s efforts were too little and too late.

The Friday night efforts by the Post to whitewash its wrongdoing were untimely, grossly insufficient and did little more than perpetuate the lies it published – lies that will haunt and adversely impact Nicholas for the rest of his life.

The Post ignored its own culpability and wrongdoing. Mr. Kennedy’s letter stated that the Post “provided accurate coverage.” It did not and its belated public relations efforts change nothing and fool no one. The Post made no effort to retract and correct the lies it published.

The Post did not have the integrity to unequivocally admit its negligent and reckless violations of fundamental journalistic standards documented by its complete failure to investigate the incident at the National Mall before publishing lies about a child. One need only review the Post’s published list of its own Policies and Standards at https://www.washingtonpost.com/policies-and-standards/?utm_term=.ec515ec8b6aa to find violation after violation after violation.

The Post did not have the character to apologize to Nicholas and seek his forgiveness.

Highlighting its arrogance and lack of contrition, the Post announced its “deletion” of one of its false and defamatory tweets about the incident and Nicholas by re-posting the tweet so that its lies will also forever remain available on the Internet and in social media.

False accusations against an adult destroy a lifetime of accomplishments. False accusations against children forever rob them of their inherent right to define their lives for themselves and force them to suffer a life tainted and damaged by the permanent shadow of the lies.

Last Friday night the Post made clear that it has learned no lesson and remains willing in the future to falsely attack others to further its political agenda, including false attacks on children. 

The Post has now double downed on its lies. As Nicholas’s lawyers, we will now double down on truth and aggressively continue our legal efforts to hold the Post accountable and obtain justice for Nicholas in a court of law.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

 

Warren County Auditor Matt Nolan and the Finney Law Firm will give a presentation to the Real Estate Investor’s Association of Greater Cincinnati (REIAGC) covering the property valuation challenge process.

The correct valuation of real property can mean the difference between success and failure for residential and commercial landlords, and their tenants.

On Thursday, March 7, our attorney and Matt Nolan will discuss the procedure for bringing a challenge, issues to consider prior to bringing a challenge, and next steps if the initial challenge is not successful.

Click on this link to the REIAGC’s website for more information or to register to attend. Registration is free for members, $35.00 for non-members.

Learn more about Warren County Auditor Matt Nolan here. Learn more about Finney Law Firm’s Property Valuation practice here.

Today, Lin Wood and Todd McMurtry filed their first lawsuit on behalf of Nicholas Sandmann against The Washington Post. The lawsuit filed is included below. The suit seeks $250 million in both compensatory and punitive damages. Lin and Todd will continue to bring wrongdoers before the court to seek damages in compensation for the harm so many have done to the Sandmann family. This is only the beginning.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

 

Every legal claim that a person can file in civil court is subject to a “statute of limitations.” This is the period of time that the victim of a civil wrong has, after the claim arises, to bring legal action over the wrongdoing. If the claim is not filed within that specified statute of limitations, normally the claim is forever barred and cannot be raised thereafter.

In the field of employment law, some of these time periods are very short. In particular, the most important federal laws that prohibit employment discrimination and harassment – Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA) – require fast action by the employee to preserve his or her rights. An employee who believes he or she has one of these federal claims must file a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) within just 300 days of the date on which the discriminatory action occurred. If the employee does not file within this fairly short time frame, then his or her federal claim is extinguished.

For instance, if an employee is fired from a job, and believes that his or her discharge was the result of race, age, or sex discrimination, he or she must file a charge with the EEOC no later than 300 days after the date on which notice of the discharge was received.

Sometimes it can be unclear, however, as to exactly when a discriminatory act “occurred,” and thus when the 300 day period begins to run. And in some cases – like sexual harassment – the discriminatory action or conduct is ongoing, and it doesn’t necessarily occur at a single time and place. These cases can require close examination and detailed analysis to determine whether or not they are time-barred.

Furthermore, many states – like Ohio – have their own laws against employment discrimination and harassment, and these laws carry their own statutes of limitation that can be longer (or shorter) than the 300 day period governing many Federal claims. Thus, in some circumstances, even if a person’s federal claim is time-barred they may still be able to pursue a claim under state law.

Needless to say, the issue of timeliness is critically important in the field of employment law, and it can be a dangerous minefield for the unwary. Both employers and employees should always promptly consult with a qualified employment attorney as soon as they have notice of a potential claim.

On January 18, in the span of a few hours, Nick Sandmann’s peaceful attendance with his Covington Catholic classmates at the March for Life in Washington, D.C. was turned into a personal nightmare when Nick became the focus of false and defamatory accusations published and broadcast across the nation and the world. A mob comprised of activists, church and school officials, members of the mainstream print and broadcast media, and individuals on social media, including elected public officials and celebrities, rushed to condemn and vilify this young man by burying him in an avalanche of false accusations, false portrayals, and cyberbullying that have threatened his reputation and his physical safety. Nick Sandmann is 16 years old. He is an eleventh-grade high school student. He is not the face of evil and he did absolutely nothing wrong or inappropriate in connection with the incident to deserve the heinous accusations made against him by uninformed or agenda-driven individuals and media entities.

Nick and his family have experienced one of the worst sides of our present society. As their lawyers, we intend to exercise our best efforts as advocates to show Nick and his family another side of our society – that we are a society that survives and flourishes from the fact that it is based on the rule of law. A system of justice that demands that truth prevail and the wrongdoers be held accountable for the harm they have inflicted on Nick and his family.

In the coming weeks, we will be carefully reviewing all of the false accusations and threats made against Nick. We fully expect that a multitude of civil lawsuits will be filed and aggressively pursued. We recognize that justice for Nick will not be achieved quickly, but we are dedicated to achieving it for this young man regardless of time or expense.

At this time, Nick, his family and their lawyers will not be engaging in media interviews. There is work to be done. If any member of the public has information, they believe is helpful to Nick, that information can be communicated to us by email to [email protected].

Nick and his family sincerely appreciate the fair-minded individuals who respect our system of justice and refused to rush to judgment before the truth was revealed. Our efforts are not about politics, race or religion. Our efforts are only about justice for Nick.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

 

Medical records typically contain personal information that care providers must keep private in accordance with federal and state law. In most cases, only patients and their care providers may access these records without written permission.

Although most of these rules come from federal laws like the Health Insurance Portability and Accountability Act, or HIPAA, there are Kentucky state laws that also dictate how care providers should handle these records. The following are some of the general rules healthcare organizations in Kentucky must know and understand:

  • Access: The patient and his or her medical provider always have access to medical records. However, a patient may choose to release these records to another party, such as a spouse, the Social Security Administration or a military recruiter, by signing a release form.
  • Mandatory reporting: There are some diseases the state of Kentucky requires care providers to immediately report to the Cabinet for Health and Family Services. However, the cabinet must keep this information confidential, and it will not be available in public records requests.
  • Privileges: Counselor-patient and psychotherapist-patient privileges may apply to medical records in Kentucky, which means patients could prevent counselors or psychiatrists who know about their medical background from disclosing it or testifying about their mental or physical health.
  • Protective orders: Physicians, hospitals or patients in Kentucky may ask to limit or entirely prohibit the use of medical records via protective orders, which they must obtain through a court. Conversely, patients may also waive their right to privacy of their medical records, giving certain people access to them.
  • HIV/AIDS: Kentucky has specific rules regarding the testing and disclosure of HIV and AIDS. Each local public health department provides anonymous or confidential testing for HIV, along with counseling services for people who test positive for these diseases. There are limitations to the disclosure of these test results.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

 

Written By: Todd V. McMurtry

“It’s just not working out anymore.” You may have heard or uttered these words as a marital partner, but as a business one? It can happen. Business divorce among privately-held companies is common, and can be just as emotional as one involving spouses. Organizations experience “life events” too, and smart business owners know to prepare for them ahead of time. In his article “The Business Divorce,” California attorney Michael Gold outlines seven key provisions that should be included in every business agreement from the start. Much like a prenuptial agreement, these discussions can be uncomfortable. A thorough agreement developed with a knowledgeable attorney, however, can save future headaches and heartaches for all parties. Does your business agreement include the following provisions?

Provision #1: Responsibilities and Deadlock Breaking

It is important to establish partner responsibilities upfront. This section should also include agreed-upon values, purpose, and vision each partner will adhere to moving forward as the business develops. In the Forbes article, “How I Survived My Business Divorce,” Kathy Steele discusses how not having a values alignment with her business partner led to nasty arbitration. Another critical component of this provision is a deadlock-breaking mechanism. A deadlock provision will resolve a situation where there is a majority disagreement between partners, but no side has the majority vote.

Provision #2: Estate Planning

What happens when a partner passes away? Most business agreements account for the transfer of the business interest to a trustee, but stop there. According to Gold, “The company is then left with a shareholder or partner who is a mere stakeholder and plays no productive role in the company.” Be sure the obligations for heirs or trustees who absorb the interest of the previous partner are clearly outlined.

Provision #3: Buyout Triggers

While death or disability of a partner are the most obvious causes for transfer of interest, other triggers can be overlooked. A partner involved in any of the following scenarios may directly impact the business:

  • Divorce
  • Bankruptcy
  • Moral turpitude, felony charge or conviction
  • Poor performance

Many companies choose to omit performance as a buyout trigger when crafting an agreement. Unfortunately, this can sometimes lead to a situation where a fired, under-performing partner remains a stakeholder in the company.

Provision #4: Valuation and Payment

According to attorney Jay R. McDaniel, in most business divorces, one side of the dispute will eventually purchase the interests of the other side of the dispute. Therefore, valuation must be included in every business plan. In most cases, fair value is determined early on but rarely updated. Gold adds that all funding other than cash flow needs to be considered, and this provision should include payment terms that adjust for the company’s financial condition.

Provision #5: Post-buyout Competition Restriction

The conclusion of a business divorce can be far from a clean break. It is easy to overlook the protection needed once a partner is expelled. He or she can turn around and start a competing business or go work for a competitor. The partners should agree at the outset that every buyout will include covenants of confidentiality, non-competition and non-disparagement.

Provision #6: Dispute Resolution

Include methods of solving disagreements that don’t require litigation as the only option. Look to alternative dispute resolution (such as mediation) which often times saves individuals thousands of dollars over traditional litigation. As I have written in the past, the courts too often take too much time and cost too much. Instead, include provisions that first require mediation and then arbitration. Put these provisions in your organizational documents. In “How to Execute a Business ‘Divorce’ Without Hard Feelings,” author Malini Bhatia also encourages turning to outside professional entities, such as consultants or advisory boards, to provide objective insight. Together with your partner(s), think about specific scenarios and consult with your attorney on the best remedy for each.

Provision #7: Spousal Consents

Personal and professional lives sometimes collide in the face of marital divorce. How? According to Gold, “[the business] partner’s spouse can claim that the [business] agreement is unfair or in breach of the partner’s fiduciary duty to his spouse.”  Obtain written consent to the business agreement terms from all stakeholder spouses. Failing to do so may cause undue scrutiny from a family court.

No one enjoys thoughts of terminating a business partnership when it may still be in its infancy. Planning for a successful future means anticipating all scenarios, even the unpleasant ones. Taking the time to review your business plan together with your partners and a qualified attorney isn’t just good business, it’s a match made in heaven.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.