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Judge Susan Dlott certifies class action in Tea Party v. IRS litigation

Author By Christopher P. FinneyPosted on

Today, U.S.  District Court Judge Susan Dlott certified a class action in the lawsuit against the IRS for its illegal targeting of Tea Party groups.

The Finney Law Firm is proud to join lead attorney Eddie Greim of Graves Garrett in Kansas City and local attorney David Langdon in representing the Tea Party groups in this litigation.

The scandal, which broke into the news in the summer of 2013 with stories of how the IRS first segregated applications for tax exempt status from Tea Party groups and then subjected those applications to prolonged delays, intrusive questioning, and additional scrutiny that other groups seeking the same tax treatment did not receive.  Lois Lerner was widely identified as having conceived and advanced the discriminatory treatment of liberty groups.

The Wall Street Journal has today’s development here and the Cincinnati Enquirer has good coverage of the topic here.  Previously, Judge Dlott ruled in favor of the Tea Party groups in denying the government’s motion to dismiss the suit, and has compelled production of key evidence the government has sought to conceal.

 

Cuyahoga County Court of Appeals analyzes primary and implied assumption of the risk in case involving a foul ball at the Cleveland Indians fireworks night

Author By Finney Law FirmPosted on

A recent Cuyahoga County Court of Appeals case distinguishes implied assumption of the risk with the primary assumption of the risk/recreational activity defense discussed in an earlier post here, and recently at Eugene Volokh’s Washington Post blog here.

In July 2012 a spectator was injured by a foul ball at a Cleveland Indians game. As discussed in my earlier post, the Cleveland Indians would generally be immune from liability for the fan’s injuries. However, in Rawlins v. Cleveland Indians Baseball Company, Inc., 2015-Ohio-4587, the Cuyahoga County Court of Appeals found that the trial court erred in granting summary judgment in favor of the Indians on the basis of the doctrine of primary assumption of the risk.

Reds fans may recall that during fireworks Fridays at the Reds games, the ushers and public address announcer wait until after the final out before asking fans near the fireworks to move from their seats. As Sam Wyche once said, “You don’t live in Cleveland.” The ushers at the Indians game may have jumped the gun in moving fans out of certain sections in preparation for the fireworks show. I say may have because there was conflicting testimony in depositions. The original complaint alleged that Rawlins was ordered from his seat, but during his deposition he testified that the usher merely stared at him with her hands on her hips, and that he had overheard other people saying the ushers were telling people to leave their seats.

Primary Assumption of the risk means that in activities which involve risk, each participant (or spectator) assumes the risk for any injury resulting from the risk associated with that injury. As the Court in this case referred to it, the Baseball Rule means that getting hit by a foul ball is a risk normally associated with going to a baseball game – whether you are sitting in your seat or walking to the refreshment stand (or being distracted by the San Diego Chicken). But, when you are being ordered to leave your seat before the final out of the game in preparation for the post-game fireworks show, the club has created a circumstance outside the normal routine of baseball game attendance. In those cases, the club may be liable for injuries resulting from being hit by a foul ball.

 

 

Are you entitled to a refund on Indian Hill School District Class Action Settlement? Here are the details

Author By Christopher P. FinneyPosted on
This firm was privileged to serve as class action co-counsel along with Maurice Thompson of the 1851 Center for Constitutional Law and Paul DeMarco of the Cincinnati firm of Markovits, Stock and DeMarco in securing a refund of illegally-collected taxes levied by the Indian Hill School District for 2010 through 2014.  That legal team has settled claims for our clients relating to the over-assessment and payment of taxes totaling $5.5 million.
A recent article in the Cincinnati Enquirer about the law suit (Sanborn v. Indian Hill Local School District) and the settlement are here.
In the Spring of 2016, class members should be receiving notices from the Settlement Administrator about how to obtain their refund.  Taxpayers must respond in order to get their refund check.
  • PLEASE NOTE: If you or someone you know owned property in the Indian Hill School District for those years and have since sold the property, the Auditor’s Office, and therefore the Settlement Administrator, may not have your address and you may not be notified of your right to receive a refund.  In order to obtain notices about the refund, please be sure to contact the Settlement Administrator noted below and provide the following information: (a) your name and address, (b) the property you owned, and (c) the period you owned the property.
The class includes every property owner who paid the illegal levy for the years in question and includes both residential and commercial property owners.  The amount of the refund will vary by property and payor, but we estimate the average refund will exceed $800.
Here is what is going to transpire on this settlement:
    1. The court-appointed Settlement Administrator will send a letter to every class member who can be identified in the Spring.
    2. The Settlement Administrator will have calculated the pro-rata share of refund due to each taxpayer, which amount will be included in each notice.
    3. The recipients of the letters must respond to receive their refund.  They can also opt to donate the monies to the Indian Hills Public Schools Foundation.
    4. If payors of tax bills cannot be identified, or if they fail to respond, their pro-rata share of their refund will be paid to the Indian Hills Public Schools Foundation.
    5. Inquiries should be sent to the Settlement Administrator:
Dr. Harvey Rosen, Ph.D.
Burke, Rosen & Associates
2800 Euclid Ave., Suite 300
Cleveland, OH 44115
(216) 566-9300
There is also a web site about the settlement: IndianHillSettlement.Com.
If you have any questions, please give Chris Finney of this office a call at 513-943-6655 or email him at [email protected].

Rundown on some of Friedrichs/U.S. Supreme Court oral argument coverage

Author By Christopher P. FinneyPosted on

Traditional media as well as Twitter and other social media outlets are ablaze with coverage, advocacy and commentary on the U.S. Supreme Court oral argument today in Friedrichs v. California Teacher’s Association, which has positioned itself to overturn forty years of precedent allowing public employees to be forced, as a condition of their employment, to pay dues to a chosen labor union.

Those counting votes noted an apparent Court majority that appears in favor of reversing the precedent in Abood v. Detroit Board of Education that in 1977 allowed unions and government entities to negotiate such compulsory arrangements.  It is always difficult to predict the outcome of a court case, high-profile Supreme Court cases being no exception.

Links to some of the major articles are below:

New York Times: Supreme Court seems poised to Deal Unions a Major Setback

Washington Post: Justices critical of forced union fees for public workers

Wall Street Journal: High Court appears to oppose public-sector union fees

The Hill: Supreme Court casts doubt on mandatory union fees

LA Times: Supreme Court conservatives appear ready to overturn mandatory union fees

A decision is expected before the Supreme Court adjourns for this term in June.

Advocating in the halls of government: Indian Hill class action settlement approved by Judge Steve Martin

Author By Christopher P. FinneyPosted on

For those readers following the Indian Hill School District class action litigation (read here for more), yesterday, Hamilton County Common Pleas Court Judge Steve Martin approved the global settlement.  This is good news for all involved, as a six-year legal battle has now wound to a successful end.

Today’s Cincinnati Enquirer has an update here.

We will run a blog entry next week with specific instructions on how those who now or during the class action period did own property in Indian Hill can obtain refunds.  The average refund will be around $800.

Pillars of strength: An agreement to agree upon something later is no agreement at all

Author By Christopher P. FinneyPosted on

When drafting leases, contracts and other agreements, frequently my client informs me that a key provision has been negotiated or an impasse has been resolved by making an agreement to negotiate an agreement later.

For example, the question the parties have is: “what is to be the lease rate upon a renewal in five years?”  Or, “what will be the location of a utility easement across land of the seller to serve new property being acquired by the buyer?”  And the answer the parties provide is: “will be negotiated at that time” or “we will decide at a later date.”

These answers are, of course, not answers at all.  And they constitute no agreement at all, for what if the parties fail to agree?

In the lease scenario, five years goes by, and the tenant exercises a renewal option subject to a “will negotiate the rental rate later” provision.  Then, the parties negotiate and cannot come up with an agreement.  Is the renewal effective?  If so, at what rate?  If the parties don’t set some sort of procedure (e.g., an appraiser will decide the rate) or some sort of benchmark (e.g., applying CPI inflation rate since the signing off the lease).  The “agree to something later” formulation is the recipe for conflict if not disaster.

In the easement scenario, the seller agrees to provide water, sanitary sewer and electricity easements after the closing on the property being sold, at a location to be decided between the parties. But what if the seller offers access only at a location costly and inconvenient to the buyer?  What if the buyer demands access in a location that makes the remainder of seller’s property undevelopable?  Again, without some procedure (a neutral third party will arbitrate disputes) or benchmark (as close to the east property line as practical), the agreement to provide agreed utility easements at a later date is a hallow promise and an illusory contract.

Now, if the parties trust one another, have a history of getting along, or have economic motivations to cooperate, it may make sense for parties to an agreement to “agree to agree later,” but don’t labor under the illusion that the agreement reached is in itself meaningful, binding or clear.

 

 

 

Navigating turbulent waters: Seven tips on settlement agreements

Author By Christopher P. FinneyPosted on

Ahhh, the peace that comes with conflict resolution!

Whether at the end of a long and raging litigation battle or at the beginning of a minor dispute, the parties have finally entered into settlement discussions.  This is going to be good, right?  Well, even settlement can be fraught with risks, so let’s be sure to get that one last step right.

Here are some valuable tips about settlement discussions:

1. Oral settlements are binding, unless the parties agree that the settlement agreement must be in writing.

Many of the disputes this firm handles are subject to the Statute of Frauds (such as the purchase and sale of real estate, see here).  As a result, many clients are under the misapprehension that a settlement of a dispute about that transaction is likewise subject to the Statute of Frauds (i.e., that the settlement agreement must be in writing and signed by the parties).  This simply is not true.  If the parties to a dispute reach resolution of the dispute orally, that settlement is binding, at least in Ohio and Kentucky.

Of course, oral agreements can be the source of misunderstanding, fraud in and of themselves (“I never agreed to that!”), being incomplete and being not well-thought-through.   Thus, one should be cautious about entering into oral settlement discussions.

However, many times nothing can get a dispute resolved faster and more commodiously than letting the parties — who many times have a long business relationship — hash things out in person, and even without lawyers.  I don’t want to interfere with those positive interactions, so in such circumstances, I recommend a “letter agreement” between the parties that says that the parties are going to engage in such informal conversations, but that nothing is binding on either of them unless and until they reach a final written agreement, signed by both of them.  The letter agreement should further provide that a waiver of the “written agreement” requirement cannot be amended except in writing.

2.  Be careful who you are releasing or from whom you are getting a release.

To get an effective release, the parties identified in a release can be more important than the release language itself. It goes without saying that a release is only binding upon the parties released and only benefits the released parties.  Make sure the parties with the real claims are the ones subject to the form of release.

Further, we usually include in the releasor class and the releasee class “heirs, successors and assigns” of the parties, as well as their “employees, directors, owners, agents, and attorneys.”

Finally on this point, it is important that the releasor(s) acknowledge and represent that they have not assigned their claim in the litigation.

3.  Be careful what you are releasing or what is being released.

As a general rule, when I am representing a defendant who is paying money to settle a claim, I want a full, complete and final release from the plaintiff.  This is so for several reasons, the biggest one being that the plaintiff now knows the “pain threshold” that will get my client to pay money.  If we leave unreleased some of the claims, we have a plaintiff who may well just come back for more.  Further, by paying a plaintiff money, you just help him finance phase two of the litigation.

One exception to this general rule that I consider when representing a defendant, and insist upon when representing a plaintiff, in a dispute relating to the sale of real property, is preserving the warranty covenants that may be contained in a deed for the property.  To me, these are critically important promises from a seller to a buyer, and usually unrelated to other property defects or contract claims.

Additionally, a plaintiff can release claims that do exist as of the time of the settlement, but what about releasing prospective claims?  Typically, it is inappropriate, and may not be possible, to release claims that may arise in the future.

4.  Clear up all ancillary claims and get the litigation dismissed.

In a matter closely related to the “what” of the release, is the issue of clearing up all ancillary disputes in conjunction with a dispute.

Many times a civil claim is attendant with criminal matters, license law complaints, mechanics liens and other impairments of title to real estate, administrative complaints and a host of other sticky issues.  Now, this article is a broad-brush treatment of this issue, and some tricky ethical and other considerations may require very delicately addressing those matters, but when we have the emotional “high” of a settlement, use that Kumbaya moment to put all the bad feelings (and paperwork and proceedings) behind you.

And, of course, make sure the underlying litigation is dismissed concurrent with the settlement.

5. Something I always (almost) forget — the court costs.

So, the defendant is going to pay money and the plaintiff is going to dismiss the lawsuit, but who is going to pay the court costs of the litigation?

In many instances, the court costs are a small number, but in others they can be tens of thousands of dollars.  In any event, it can be the “final insult” or the “icing on the cake” in a settlement.

And in the euphoria and rush of settlement discussions, it is many times the last thing I think of in terms of dispute resolution.  So, I have to remind myself of this component of a settlement.

In my experience, insurance companies routinely pay the court costs as a part of a settlement, but where the litigants have hard feelings or the expenses are significant, it can be a sticking point to have the court costs paid as a part of a settlement.  Thus, the court costs issue should be addressed at the front end of settlement discussions.

6.  Get a mutual release.

Don’t kid yourself that the person writing you a check for settlement may be carefully plotting his retaliation against the plaintiff in another or perhaps even unrelated matter.  “Paybacks are hell,” so they say.

When resolving the dispute for your plaintiff client, ask for a release from the defendant for any claims he may have against the plaintiff as well.  Now, I have had many a defendant say: “if you want a release from me, then pay me some money,” but it is certainly worth seeking such a release.

7.  Indemnities provide unlimited access to your checkbook.

Frequently, defendants paying money to plaintiffs  to settle a claim want the plaintiff to indemnify, defend or “hold harmless” the defendant from claims that may be made by third parties relating to the same events that are subject to the release.

These are not “throw away” provisions or boilerplate.  Rather, they provide open-ended access to a party’s checkbook.  Thus, such provisions could contain the seeds of financial disaster for the plaintiff.  At a minimum, these requests should be carefully considered.  Occasionally, an limited indemnity of “duty to defend” provision may be appropriate, but in most circumstances, requested indemnities are major “red flags” that I reject when representing a plaintiff releasing claims.

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A settlement is a fine end to a dispute, but make sure through these steps that it in fact really the end and really is fine.

Important case impacting public employee unions hits U.S. Supreme Court on Monday

Author By Christopher P. FinneyPosted on

United States Supreme Court watchers are excited about Monday’s oral argument in Friedericks v. California Teacher’s Association, which could stop once and for all compelled payment of union dues to public employee unions.

Ten teachers in California have sued the teacher’s union claiming they were forced to pay money to support positions advanced by the union — in lobbying, in negotiations and otherwise — with which they disagree.

There is so much happening with this case.  Read here the synopsis from the Center for Individual Rights, which organized the suit and today’s story in the New York Times on the topic.

If the High Court is true to form in the timing of releasing decisions in high-profile cases right before their summer recess, expect a decision in this landmark case at the end of May.

Finney Law Firm represents Plaintiffs in Indian Hill Schools property tax class action settlement

Author By Christopher P. FinneyPosted on

Christopher P. Finney has been pleased to serve as one of three attorneys in the case of Fred Sanborn et al v. The Board of Education of the Indian Hill Exempted Village School District, et al..  This case is featured in a thorough analysis in today’s Cincinnati Enquirer.

As the story relates, the case is in part about the tremendous persistence of an 87-year old lead Plaintiff, Fred Sanborn, who doggedly researched and pursued the reversal of an illegal tax exacted by the Indian Hill School District and in part about the creative legal skills of Maurice Thompson and the 1851 Center for Constitutional Law.

The Finney Law Firm entered the case after the Ohio Supreme Court victory was secured, in a second action that ended up before Hamilton County Common Pleas Court Judge Steve Martin to certify the class of taxpayers deserving a refund and to process the refund of the illegal-collected monies from the School District.  Paul DeMarco of Markovitz, Stock and DeMarco provided invaluable assistance in the class action proceeding as well.

The initial question before the Ohio Supreme Court addressed a statute that allows a school district to raise additional revenue without a vote of the people in limited circumstances there the revenue was “clearly required.”  Cynically, the Indian Hill School Board in 2009 attempted to effectuate the tax hike even though they held a $24 million surplus at the time.  Thompson and the 1851 Center argued that either the words in the statute have meaning in restraining the discretion of the School Board, or they do not.  The Supreme Court decided that the statute had real teeth and determined that the School Board’s enactment of the tax was illegal.

The victory will result in a handsome tax refund for current and former property owners in the Indian Hill School District, but also stands as important precedent that clips the wings of Ohio School Boards seeking an un-voted tax increase that is not “clearly required.”  Boards of Education in Ohio are no longer able to ignore the clear language of the statute narrowly limiting the discretion to enact such a tax.

Additionally, Thompson had the prescience six years ago to concurrently commence a second action in Hamilton County Common Pleas Court to certify a class for purposes of fulfilling complex statutory requirements that would secure taxpayer rights to a refund upon the completion of the Supreme Court proceeding.  This was required because Ohio law is fairly hostile to taxpayers seeking retroactive refund of taxes, even those that clearly are illegal.  These dual suits show the incredibly sophisticated legal battlefield, filled with landmines, that Plaintiffs faced.

This saga is really an heroic tale of both dogged citizen activism and enormous legal talent, mostly by Thompson and 1851.  We are proud to have played a small part in this important victory for taxpayers.

What a year it was!

Author By Christopher P. FinneyPosted on

2015 was our second year at the Finney Law Firm, and what a year it was!

Last year — our first year — we largely put the basics of our team in place. This year was the year to deepen our bench and to drive home even better results for clients.  We delivered on that challenge:

  1. Amazingly, we brought home our third “win” from the U.S. Supreme Court.  As is explained more in this blog entry, two of the three wins were won with paper pleadings only; we had only one oral argument.  Further, each of the three victories resulted in the 6th Circuit Court of Appeals decision being reversed or vacated, but the matters were remanded back to the trial court or appellate court for more proceedings.  As a result, we continue to await final disposition of each of the cases.
  2. We won other important victories for clients, including a class action victory against the Indian Hill School District where we obtained (ultimately, by settlement) a $5.5 million refund for taxpayers because of an illegal tax and for the Ohio Republican Party against Cuyahoga County for long-sought public records.
  3. Our title company, Ivy Pointe Title, LLC, closed a record number and dollar volume of residential and commercial transactions.
  4. We broadened and deepened our transactional practice with the addition Dylan Sizemore, an Iraqi war veteran who is practicing in the area of real estate, corporate and estate planning.
  5. We brought a new class action lawsuit for products liability.
  6. We argued cases to preserve our client professional licenses, and handled an increases volume of mediation, arbitration, litigation and appellate cases.
  7. We settled three major civil cases involving abuse of school children.

Thank you — as an employee, as a client, as a vendor — for your continued support for this undertaking.  It has been enormously rewarding for each of us to be a part of it.

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