The Finney Law Firm has joined with Maurice Thompson of the 1851 Center for Constitutional Law in filing suit to challenge the rental housing inspection program in the City of Portsmouth, Ohio.  The suit alleges that the program mandates warrantless searches of rental property in violation of the 4th Amendment to the United States Constitution.

The Finney law Firm is representing eight Plaintiffs owning 82 properties in the City of Portsmouth in challenging the program.

In Portsmouth, the City has targeted more than 2,100 properties under the program, although City fathers have acknowledged in media reports that problem properties are fewer than 10 in the entire City.

You can read the Complaint and Motion for Temporary Restraining Order below.

Portsmouth Complaint by Finney Law Firm, LLC

Motion for TRO and Preliminary Injunction against City of Portsmouth by Finney Law Firm, LLC

It has been simply remarkable month for the Finney Law Firm.

We won two separate cases for our client, COAST at the United States Supreme Court, Susan B. Anthony List and COAST v. Ohio Elections Commission announced on June 16th and COAST Candidates PAC v. Ohio Elections Commission announced on June 23.

They are two cases brought one year apart, dealing with two separate “False Claims” statutes of the state of Ohio.  The Supreme Court’s decisions did not strike the offending statutes, but rather simply ruled that COAST had “standing” to be in Court raise the constitutional arguments.

The first case is now back in front of U.S. District Court Judge Timothy Black and the second is in front of U.S. District Court Judge Michael Barrett.  We expect both will take an additional two-to-three years to fully adjudicate.

The United States Supreme Court today again unanimously ruled in favor of Finney Law Firm client, COAST Candidates PAC, in a second case against the Ohio Elections Commission.  You can read the docket entry here.

Our firm presently has three cases pending against the Ohio Elections Commission, and is about to bring a fourth, challenging the Ohio statutes that empower the Commission to sit in judgment of the truth or falsity of statements made during the course of political campaigns.

To date, the Ohio Elections Commission has avoided judicial scrutiny of the statutes using “standing arguments, saying essentially that litigants are always in court at the wrong time, and that there is no time at which an action is proper to challenge the constitutionality of the statute and OEC’s enforcement procedures.

With these two rulings from the United States Supreme Court, they have found that COAST in each case does in fact have legal standing to raise the constitutional challenges and the matters proceed to full determination at the trial court.

The third case remains pending in Franklin County Common Pleas Court, Magda v. Ohio Elections Commission, where it has been for more than a year and a half.  The fourth case will be filed in Federal District Court shortly.

When closing a real estate transaction, every state requires that one or both parties report to the local taxing authority the sales price of the property.  This report is used for two primary reasons: (i) to establish the amount of the transfer tax or conveyance fee for the transaction and (ii) to establish the taxable value of the property for real estate taxation purposes going forward.

In Ohio the sale price is signed by the grantee under the deed, and is reported on a state-mandated conveyance fee form.  In Kentucky, the grantor and grantee must sign an affidavit of consideration attesting to the sales price.  Both forms are prerequisites to getting a deed of record.

Now, before we go any further with this post, it is important to note that the amount reported is not discretionary and not to be treated lightly.  In both Ohio and Kentucky, the reporting form is a sworn statement (i.e., under oath), the falsification of which is a felony.  So we are not suggesting misrepresenting anything on those forms.  But  an honest approach to the consideration question can yield different results depending on the circumstances.

With those items as background, many considerations drive the reported sales price on the conveyance fee form or consideration affidavit: (i) the stated contract price, (ii) federal tax considerations (e.g. basis and capital gains), (iii) the value to be “booked” for a sale, and (iv) appearances for banks and equity partners.  But frequently overlooked by the dealmakers is one of the most significant consequences of the price reported: the real estate taxes for years and years going forward will either be dictated by or strongly influenced by the number appearing on that form.

Many times we find in our property tax valuation work that buyers and sellers thoughtlessly put a high value on those forms, which may include the value of the business operating inside the property, furniture, fixtures and equipment, and other factors unrelated to the actual value of the real estate acquired.

With annual rates of taxation in Ohio ranging between 1.7% to 3.2% of the valuation and annual rates of taxation in Kentucky being around 1.1% annually, the consequence of unnecessarily over-reporting the sales price can be costly year after year after year.

Thus, we carefully counsel buyers to consider stripping  from the reported sales price the FF&E, the goodwill, cash and A/Rs of a business being acquired, and other factors that are unrelated to the real estate transaction.  The net effect can be an annualized savings going forward of 1.1 to 3.2 percent of the excised property’s value going forward.

The meat of the SBA List case is clarification or revision of the federal court’s standing doctrine in First Amendment cases. No matter how the Court slices it, it’s decision is invariably precedential as to future cases.

On the one hand, they were clear in the United States v. Alvarez and SBA List oral arguments that they wanted someone to have standing to challenge state speech restrictions like those present in our case. The Sixth Circuit’s too-restrictive approach was obviously unacceptable to the Justices.  On the other hand, they want to be restrained in establishing a standard that would throw open the courthouse doors to entirely new categories of litigation.

This SCOTUS Blog commentary explores Clarence Thomas’ approach to this issue in his unanimous opinion, being the rule going forward for pre-enforcement standing due to a “credible threat of enforcement” in First Amendment actions.

When a client is being sued, it is important to fully explore all defenses available to them, but many times litigants and their counsel fail to come to the table with clean hands.  And in the right circumstances, that’s when you can turn the tables on your opponent.

Indeed, the law requires that certain counterclaims claims are compulsory, and the failure to bring them in the context of the litigation presented could be a bar to recovery in the future.

When exploring commercial disputes, the tools available to litigants are:

  1. Meritorious counterclaims;
  2. Actions for frivolous conduct against the party and his attorney under O.R.C. §2323.51, a statute designed to protect against being false dragged into court; and
  3. Actions for frivolous conduct against the party and his attorney under Civil Rule 11.

These tools are all too frequently used imprudently, which can either unnecessarily increase the length and expense of litigation or even expose the client to claims of frivolous conduct, but when carefully considered can change the calculus of litigation in favor of the client.

Please contact us to learn how we can help you with your litigation challenges, either defending against a business or personal claim, or prosecuting a meritorious claim you hold.

Read below four related topics:

Navigating turbulent waters: Very early settlement discussions

Navigating turbulent waters: The litigation end game

Navigating turbulent waters: Economics of litigating low-dollar claims

Navigating turbulent waters: It’s not all black and white for Judges

In litigation, the reality of many business disputes is that neither party is 100% in the right, or 100% in the wrong, and, more importantly, even for the cases we believe passionately in, Judges tend to view them in more tempered terms than clients and their paid advocates.

Typically when Finney Law Firm attorneys meet with a client for the first time about their business or personal dispute, they are passionate about their position in the litigation.  They believe they have been wronged and want compensation for their losses, or that they have been unfairly sued, and want a vigorous defense of a disputed if not entirely frivolous claim against them.

However, as we get into the file more deeply, frequently we find the case is not at all just plain black and white, but rather shades of grey.

This has two consequences, at least: (i) it will take skill and attention to develop and present the case to convince the court that our client’s position is correct (read: more costly), and (ii) the odds of winning the case come down, if even slightly, as a result of the ambiguities present.

Clients and attorneys easily can fall into the trap of failing to see the weaknesses in their own case, and to assess them appropriately.

What we experience is that Judges and juries tend to see things less one-sided than we and our clients do initially   As a result, from the commencement of litigation to the day we are heading into trial, we attempt to paint for the client a realistic picture of their prospects for success.

Please contact us to learn how we can help you with your litigation challenges, either defending against a business or personal claim, or prosecuting a meritorious claim you hold.

Read below four related topics:

Navigating turbulent waters: Very early settlement discussions

Navigating turbulent waters: The litigation end game

Navigating turbulent waters: Economics of litigating low-dollar claims

Navigating turbulent waters: Turning the tables on the opposing party

For individual and small business clients of the Finney Law Firm, brace yourselves.

Anything other than the simplest litigation involving disputes of under $50,000 are difficult to resolve in a fashion advantageous to the client.  Even cases under $100,000 can be tough to resolve economically.  This is because the cost and aggravation of litigation, along with the time and unpredictability, make the cost-benefit of the proceeding difficult, if not upside down.

The exception to this  general rule is litigation in which punitive damages or “fee shifting” are involved.  Punitive damages are for the purpose of punishing the other party.  In Ohio in certain circumstances, punitive damages are limited by statute.  But in any event that means a multiplier above and beyond the actual damages can potentially be obtained in such cases.  Fee shifting means that when you win, the other side pays your legal fees.

But these remedies are limited to only certain types of litigation in Ohio, for example (i) cases involving intentional torts such as fraud, (ii) certain statutory actions where the legislature has specifically provided for these types of remedies, and (iii) cases in which a commercial contract calls for “fee shifting.”

Further, we find that Judges, especially state court Judges, are loathe to award punitive damages and attorneys fees to a prevailing party except in the clearest of circumstances.  Thus, litigants (except in public interest cases) should be exceedingly cautious in assuming that “the other guy” is going to be forced to pay your legal fees when you win.  The :”American Rule” on fees is that each party pays their own litigation expenses, and that’s almost always how it pans out.

What all this means is that for smaller disputes, the cost of litigation can well exceed the recovery, and clients should be cautious about proceeding even the first step down that path.  The reason is that litigation, once commenced, frequently becomes a slippery slope that is easy to enter but hard to exit.

When the Finney Law Firm is engaged for resolution of small disputes, we attempt to explain the risks and anticipated costs up front to empower the client to decide on the best path for himself. We also explore ways to provide value to the client in small cases, including a very early settlement, preemptive resolution, fee shifting and punitive damages, and even turning the table on opponents.

Please contact us to learn how we can help you with your litigation challenges, either defending against a business or personal claim, or prosecuting a meritorious claim you hold.

Read below four related topics:

Navigating turbulent waters: Very early settlement discussions

Navigating turbulent waters: The litigation end game

Navigating turbulent waters: It’s not all black and white for judges

Navigating turbulent waters: Turning the tables on the opposing party

We missed this podcast, which has been “up” for more than a month, until now, on the important case the Finney Law Firm has pending before the United States Supreme Court, Susan B. Anthony List, et al. v. Ohio Elections Commission, et al.

The National Constitution Center has an interesting dialogue on how the “best Amicus Brief ever” came to be.  The praise was heaped by bloggers and newspaper reporters nationwide over a brief authored by D.C. attorney Ilya Shipro on behalf of his clients the CATO Institute and humorist P.J. O’Rourke.  The brief was filed in support of the positions taken by the client of the Finney Law Firm, the Coalition Opposed to Additional Spending and Taxes (COAST) in that Supreme Court case.

The Finney Law Firm, along with other attorneys, appeared in April before the United States Supreme Court on behalf of two clients seeking to engage in political speech in Ohio without threat of the Ohio “False Claims Statute” hanging over their heads.  The “False Claims Statute” criminalizes political speech in Ohio that a panel — the Ohio Elections Commission — deems “false.”  Finney Law Firm clients challenge the constitutionality of the statute.

The podcast, featuring brief author Ilya Shipro of the CATO Institute and his other client, humorist P.J. O’Rourke, is here.

The case is expected to be decided this month.  You can read more about it here, here and here.

The Finney law Firm is prepared to fully and vigorously litigate your claim, through appeals if necessary.  Indeed, our attorneys have handled appeals of a case all the way through the U.S. Supreme Court.  So, please do not read this article as a lack of resolve to pursue a case through the end.  Rather it reports the practical reality of the economics of the difficult process that litigation can be.

As is explained in these articles, here, here and here, litigation is typically lengthy, expensive, and unpredictable.

Frequently, but not always, the process is withering for the typical business and individual litigant.  With some exceptions noted in the next paragraph, because of the time, cost and uncertainty of litigation, an early settlement is preferential to protracted litigation.

WatersAs a result, one technique Finney Law Firm attorneys frequently employ and may recommend to you an attempt at a very early settlement of your case, whether as Plaintiff or Defendant.

As a Plaintiff, if you can resolve a case before incurring legal fees, expert witness fees, court reporter charges, and other expenses attendant to litigation, if you can tie up a settlement and eliminate the risk — however small — of a loss in Court, and if you can avoid the life distraction of two-to-three years to resolve your Complaint, it may be in your interest to comprise your claim and settle it.

As  Defendant, if you can similarly avoid the costs of litigation, reduce the risk of a large judgment, and avoid the collateral damage to your business that litigation can bring, a settlement can be in your interest.

In our experience, rarely do Judges see things as black and white as do our clients on the original intake meeting.

For cases under, say, $50,000 in value, the two parties frequently can reasonably be expected to spend more than half that in expenses to bring a case all the way through trial.  Even resolving a claim on Summary Judgment, after significant dollars have been expended, can be an expensive approach.

Thus, one approach frequently recommended to clients of the Finney Law Firm is to attempt to settle a claim in the very early stages (i.e., before filing a law suit or before filing a formal answer).

Now, the response to these approaches, is all too often, regrettably, that the other side will not entertain an early settlement.  However, sometimes we are able to settle a claim before the monies of both parties are eaten up on legal fees.  But even when settlement is not accepted in the early stages, it can set the stage for favorable terms later in the proceedings, as the opposing counsel knows the other party and his attorney was and is always willing to attempt to resolve the claim.

And even more unfortunate, the opposing party and their counsel frequently will interpret, incorrectly, that taking a stab at preemptive settlement of a claim shows lack of resolve to see a matter through to conclusion.  Such is the posturing that accompanies much of the “litigation game,” but we prefer to start with the client analyzing the costs and risks of a full litigation of a claim before (not always instead of) embarking on the most expensive path available — litigation.

Read below four related topics:

Navigating turbulent waters: The litigation end game

Navigating turbulent waters: The economics of litigating low-dollar claims

Navigating turbulent waters: It’s not all black and white for judges

Navigating turbulent waters: Turning the tables on the opposing party