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Category Archives: Miscellaneous

National Association of Realtors to feature African American Realtors arrested for simply showing homes

Author By Christopher P. FinneyPosted on

Two years ago, Finney Law Firm was proud to represent African American Realtor Jerry Isham and his African American home buyer, Tony Edwards, who were accosted by seven Cincinnati Police officers, guns drawn, then handcuffed for nearly five minutes, and forcibly searched, simply for the “crime” of showing a home listed for sale (and really it was no more complicated than that).  The City of Cincinnati settled the civil claim 16 hours and 30 minutes after the suit was filed by Finney Law Firm attorneys.

Then, in August of this year, the Isham story appeared to repeat itself in Grand Rapids, Michigan with the arrest of African American Realtor Eric Brown of Keller Williams and his buyer, Roy Thorne, who were arrested simply for viewing a home listed for sale. Read about that here.

On November 13, the National Association of Realtors will feature Isham and Brown in a symposium entitled “Race & Real Estate” at its annual Realtors  Conference & Expo in San Diego, California to shine a spotlight on the extra challenges faced by African Americans in the real estate industry.

Our firm was proud to represent Jerry Isham, a top real estate professional in Cincinnati and the owner of Movement Realty, who did not deserve this shabby treatment by Cincinnati Police, in this matter.  We are pleased that his case has been given this important platform for further exploration of racism in the real estate industry.

Isham is the former President of both the Ohio and Cincinnati Realtists Associations and is currently the Region VIII Vice President of the National Association of Real Estate Brokers.

Our Public Interest Law team at Finney Law Firm, including Chris Finney and Curt Hartman, pursued the public records (mostly dash cam and body cam videos) of the incident, and filed this case in federal court on behalf of Isham and Edwards.

If you are attending the National Association of Realtors’ Convention & Expo, we encourage you to attend this important session.

  • For more background on the Isham story and the work of the Finney Law Firm’s Public Interest Law team, read here and watch here. The story captivated Cincinnati television viewers and was the topic of radio talk shows for weeks.  Watch here, here, here, and here and read here and here.  It even made news internationally.  Read here. Veteran Cincinnati reporter Jennifer Edwards Baker of WXIX, Channel 19, initially broke the story. The Youtube video linked to this story analyzing in detail the Isham/Edwards arrest has had more than 5.6 million views, so the story has since captivated the nation.

 

 

How do private covenants restrict property use versus zoning restrictions

Author By Christopher P. FinneyPosted on

Frequently we are asked by clients whether they are permitted to do “x” on their property: Move lot lines, build above a certain height, use a certain type of siding or trim or modify building setback lines. What rules govern these concerns?

The answer is: Both governmental restrictions and private contracts or covenants.

Let us explain.

Governmental restrictions

Zoning code, building code, fire code, subdivision regulations, engineer rules, and on and on and on, there a host of governmental regulations that dictate the use of, development of and construction on private property. And for each of these restrictions, there is a procedure for altering or “varying” the strict compliance with the restriction. These might include a board of zoning appeals, a board of building appeals,  or even an administrative appeal in Ohio Common Pleas Court or Kentucky Circuit Court.

So, once you jump through the hoops to get governmental approval, you are good to go, right?  Ummm, wrong.

Private covenants

For most modern subdivisions, commercial and residential, and for older ones going back decades, there are a series of private covenants against the land that many times mirror and then exceed the requirements in the governmental regulations. These covenants are recorded in the land records — in Ohio the County Recorder’s Office and in Kentucky in the County Clerk’s office. These covenants — whether the property owner is actually aware of them or not — are binding on each property owner in the subdivision as if the owner himself signed them. They are, in essence, a contract to which each subdivision property owner has expressly agreed.  These covenants may be in a textual document (many exceeding 50-100 pages) and they may be on a plat of subdivision as a graphically-drawn easement or restriction or text on the face of a plat.  Each have equal weight under the law. (Consider: did you understand as a property buyer that you were entering into 100-page contract and were bound to each provision thereof?)

Take for example building setbacks.  Zoning might require a minimum front yard of 25′, but the private covenants may require 50′. As to front entry garages, zoning may allow them, but private covenants may prohibit them.

Under private covenants, the “varying” or waiver could require unanimous approval of all lot owners, could require approval of the homeowners association board or an architectural committee thereof. Some covenants can be waived simply by a signature of the developer. The bottom line is that they are a matter of contract.  What the restrictions are and how they are waivered or varied is a question typically answered in the document itself.

Effect of governmental variance on private covenants (and vice versa)

So, as a property owner, once you go through the entire governmental variance process to allow a front entry garage or a smaller front yard setback, does that then solve the covenant problem?  Absolutely not. These two sets of restrictions each stand alone and must be modified or waived independently.

Similarly, if a property owner were to pursue a variance from requirements from a homeowners’ association, would that “fix” the violation of the governmental restriction? Still, no.

Thus, it will many times require two sets of approvals to get around a restriction that is in both the zoning code and the subdivision covenants.

Conclusion

For assistance with a zoning or covenant issue, please contact Jennings Kleeman (513.797.2858), Eli Krafte-Jacobs (513.797.2853) or Isaac Heintz (513.943.6654).

How Can an Anti-SLAPP Statute Affect a Defamation Claim?

Author By Todd McMurtryPosted on

Wealthy companies and individuals rarely welcome news reporting and other commentary critical of the way they go about their business. In fact, they will sometimes go to great lengths to silence their critics and opponents. One of the ways they do this is by filing a strategic lawsuit against public participation — or SLAPP suit — against the critic. The person or entity bringing a SLAPP suit typically alleges defamation but often doesn’t care about having the court rule on the merits of the claim. Rather, the plaintiff uses its deep pockets to draw the speakers into litigation and to drain their resources.

In attempts to counteract the chilling effect of SLAPP suits on speech, anti-SLAPP laws have been enacted. Today, 30 states and the District of Columbia have such laws, which prohibit people from using litigation to intimidate writers, speakers and others from expressing themselves freely. The scope of these statutes varies greatly state to state. Some laws protect defendant-speakers only when they have publicly spoken out against the government. Others are broader, shielding speech connected to any matter of public interest.

Most frequently, anti-SLAPP laws are used by journalists and news organizations to protect themselves from meritless lawsuits filed by entities or people who were the subjects of investigative stories. When a speaker or writer is sued for defamation, he or she can file a motion seeking to have the case dismissed. If the defendant prevails, the plaintiff is required to pay their legal fees.

Kentucky does not have an anti-SLAPP law but a group of Kentucky lawmakers are currently pushing for passage of one. A pending bill introduced by Rep. Nima Kulkarni, a Democrat, received a hearing in early August and appears to have some level of bipartisan support. The measure could be considered at the next legislative session, which starts in January 2022. Until the bill becomes law, Kentucky defamation litigation will continue to be governed by common law, which requires proof of the falsity of the speech at issue as well as the speaker’s carelessness in failing to check its veracity.

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.

 

When Can a Personal Representative of an Estate be Held Personally Liable?

Author By The Right of Shareholders to Inspect Corporate RecordsPosted on

A personal representative is someone charged with handling the administration of a decedent’s estate, whether as an executor under a will or as a court-appointed administrator if the decedent had no will. The personal representative must carry out his or her role in accordance with Kentucky law. In certain circumstances, failure to adhere to relevant laws could result in personal liability, meaning the representative might have to pay the estate’s creditors or beneficiaries out of pocket for any diminution of property or other losses.

The personal representative’s numerous responsibilities include:

  • Using reasonable efforts to locate the most recent will (if any)
  • Starting the probate process by filing the appropriate petition in court
  • Within two months of being appointed, file an inventory of all the estate’s assets and debts, which means getting documentation from banks and investment firms, locating real estate deeds and mortgage information and tracking down valuables that may be in the deceased’s home or safety deposit boxes
  • Determining which assets belong in probate and which can pass outside of probate
  • Opening a bank account in the name of the estate and deposit all liquid assets into it
  • Arranging for probate proceedings in any other state where the deceased owned property
  • Collecting any debts owed to the deceased
  • Paying valid creditor claims according to the priority set forth by law
  • Filing final income tax returns
  • After all debts and taxes are paid, distributing any remaining assets to the heirs/beneficiaries
  • Filing an accounting for the final settlement of the estate in probate court

A personal representative could become personally liable at various points during this process. For example:

  • A personal representative is liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration for which he or she is personally at fault
  • Creditors have six months to file claims against the estate. If the representative distributes estate property to heirs before six months have passed and there is not enough property left to satisfy a valid creditor claim, the representative could be personally liable
  • If the personal representative enters into a contract on behalf of the estate without identifying the estate or revealing that he/she is acting as a representative, he or she could be personally liable for fulfilling the contractual obligations

Executors and administrators can best avoid being held personally liable by retaining legal counsel to make sure all the bases are covered. A probate and estate attorney can help the personal representative understand and complete all the required tasks while avoiding conflicts of interest and minimizing the chances of creating personal liability. The attorney’s fees are a legitimate expense of the estate, so they usually should not cost the personal representative anything.

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.

 

Do CGL Insurance Policies Cover Copyright Infringement Claims?

Author By Todd McMurtryPosted on

In the digital age, intellectual property holders have become increasingly aggressive in litigating against anyone believed to have unlawfully used copyrighted material. If you are engaged in any activities that could possibly be viewed as infringement, you need to be sure that your commercial general liability insurance policy provides adequate coverage. That, in turn, depends on the language of your specific CGL policy.

The issue of whether CGL policies should cover intellectual property claims has evolved greatly over the past few decades. Copyright infringement had long been considered an “advertising injury” and insurance companies were required to cover policyholders who were accused of stealing ideas or infringing copyrights in their advertising. That started changing when internet communication became the norm, overtaking print media. The internet made it easier for one party to find and use someone else’s material, so the number of infringement claims skyrocketed, resulting in higher defense costs and claim payouts for insurance companies. In response, insurers began changing their CGL policy language to exclude or limit coverage for copyright claims.

Today, many CGL policies still contain language saying that the policyholder is covered for advertising injuries, including copyright infringement. However, the circumstances under which these policy provisions apply have been narrowed significantly. Generally, CGL policies will require the insurer to cover the policyholder in copyright litigation only if all three of the following are true:

  • The plaintiff alleges an advertising injury that is specifically enumerated in the policy
  • The advertising activity caused injury to the plaintiff
  • The policyholder was engaged in advertising when the alleged injury occurred

These three parts of an infringement claim depend entirely on the facts of the specific case, which makes it very difficult to definitively conclude in advance that the CGL policy language is sufficient. Because CGL coverage for intellectual property infringement has been steadily eroded over time, your business may want to consider purchasing IP insurance that is designed specifically to cover you if you are accused of infringing on someone else’s copyright.

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.

 

City of Cincinnati adds yet one more renter protection

Author By Julie M. GuginoPosted on

Ohio has a broad landlord/tenant statute, Ohio Revised Code Chapter 5321, that contains tenant protections that landlords throughout Ohio must follow.

But in addition to those procedures and protections, the City of Cincinnati has its own laws providing extra regulation of the landlord/tenant relationship. We have written about some of those here, including rental registration, late fee regulation, and security deposit regulation. As we address here, it also layers more regulation than set forth in the Ohio Revised Code Chapter 5313 for Land Installment Contracts.

Hamilton County alone has 49 cities, villages and townships. These laws apply only in the City’s 52 neighborhoods, and none of the areas outside of City limits.

Now Cincinnati has enacted one more landlord/tenant regulation: a “pay to stay” ordinance, similar to laws passed in Toledo and Dayton, that allows tenants facing eviction for non-payment of rent to assert that rent has been paid, or that rental assistance has been applied for, as an affirmative defense in any proceeding. Here are the details:

  • A tenant can cure his lease default and maintain a right to continued occupancy in property prior to the filing of an eviction action by paying the full amount of delinquent rent plus the statutorily-permitted late fee (see above). Typically, this would be after the provision of a statutory 3-day notice to vacate, but before the filing of the eviction action.
  • Additionally, a tenant can cure his lease default after the filing of an eviction action, but before a writ granting possession back to the landlord, by paying (a) back rent in full, (b) up to $125 in attorneys fees, and (c) the court costs of the eviction action.

For assistance in landlord/tenant matters, contact Julie Gugino at 513.943.5669.

 

How Independent Contractors Can Secure and Protect Copyright Interests in Works Made for Hire

Author By Todd McMurtryPosted on

In general, the creator of a work — whether it is musical, verbal, visual, digital or another form — is entitled to the copyright. However, federal law makes exceptions for “works made for hire.” These are works created by employees during the course of their employment or by independent contractors. In those cases, the employer or the person or company commissioning the work may be the copyright owner. However, independent contractors may retain their ownership if certain conditions are met.

While an employer automatically owns the copyright of work created by an employee, an independent contractor generally retains ownership unless their work falls into one of nine categories that the Copyright Act considers made for hire: a contribution to a collective work, a part of a motion picture or audiovisual work, a translation, a supplementary work, a compilation, an instructional text, an atlas, a test or answer material for a test.

If the agreement or contract commissioning the work is silent on copyright of works not within those nine categories, the independent contractor generally retains ownership. But some agreements contain ambiguous language that could suggest the parties’ intent to consider the works made for hire. If this intent is unclear from the agreement or the surrounding circumstances, a court deciding a dispute over copyright ownership or infringement will consider a number of factors, including:

  • Who controlled the means by which the work was created
  • Which party provided the tools necessary to produce the work
  • Where the work was performed (i.e., at the hiring party’s workplace or the creator’s premises)
  • Whether the hiring party withheld taxes or provided employee benefits
  • Which party controlled the hours worked by the work’s creator
  • Whether the creator of the work was paid hourly or per project

The more that these factors suggest a relationship closer to employment than to independent contracting, the more likely that made-for-hire status will be found.

For these reasons, it is imperative that independent contractors thoroughly review any agreement or other commissioning document before signing it and commencing work. A contract or rider may contain a provision by which the contractor acknowledges the hiring party to be the copyright owner or agrees to assign the copyright ownership to the hiring party. Rather than give up the rights to the work entirely, an independent contractor may be able to negotiate an agreement in which they grant a license to the commissioner for limited use of the work. This arrangement allows the creator of the work to retain the valuable ownership rights, which can be licensed in the future to other parties in exchange for royalties.

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.

 

Finney Law Firm sues Ohio Department of Education over simply bizarre speech restrictions regarding Critical Race Theory

Author By Christopher P. FinneyPosted on

Whether one agrees or disagrees with the Ohio Department of Education’s adoption of Critical Race Theory and the 1619 Project’s for implementation throughout Ohio’s school systems, we should all agree that an open and robust debate about that policy before public bodies is appropriate and required under the U.S. Constitution. But that’s not how the Ohio Board of Education sees things.

Once they hastily adopted the new policies, they then formally forbade speakers before them from criticizing their decision. The ODE allows public comment on all other topics, but specifically not these two.

So, last week, the Finney Law Firm filed suit against ODE challenging these restrictions on speech during the public comment section of Board meetings. Read that suit here.

The Board did not just quietly and unconstitutionally squelch in a public forum,  but they explained why they were privileged — indeed compelled — to trample on the Constitution in this instance:

  • “[O]ur board president has instituted a policy that prevents people from speaking to our group in reference to any of these issues about critical race theory, etc.…  I’m not sure why we have a filter on what we’re allowed to hear here, but we do.”
  • “I was really glad when [LAURA KOHLER] said we weren’t going to have those speeches anymore”
  • “I would just prefer that we not have a conversation about critical race theory, or 1619….”
  • “I don’t want to sit here again and listen to two months of people – they have their opinions….  This is not what I’m here for”
  • “I’m using race and I don’t feel ashamed about that”
  • That if such public comments or testimony were allowed then the meeting of the OHIO STATE BOARD OF EDUCATION “would not longer be a safe space for me”

I suppose if you are that delicate and thin-skinned, perhaps you should not sign up for the rough and tumble of public office. Just a thought.

Media coverage of this is below:

For inquiries on this story, contact Curt Hartman (513.379.2923) or Chris Finney (513.943.6655).

Does the President Have the Legal Authority to Cancel Student Loans by Executive Order?

Author By Todd McMurtryPosted on

One of the biggest issues faced by the Biden Administration is the nation’s student loan crisis. Congressional leaders and various organizations are calling on President Biden to cancel up to $50,000 in student loans per borrower by executive order. Biden supports the idea in principle but questions whether he has the legal authority to take executive action. Generally, Congress has authority pertaining to the approval of federal spending, the category under which student loans fall.

However, Senate Democratic Leader Chuck Schumer, Senator Elizabeth Warren and other senators have introduced a resolution outlining a way that the president could use his authority under the Higher Education Act of 1965 to cancel student loan debt and to ensure federal student loan borrowers do not incur tax liability as a result. A section of the act gives the Secretary of Education the power “to modify, compromise, waive, or release any right, title, claim, lien, or demand, however acquired, including any equity or any right of redemption.” The resolution seeks the sense of Congress that through the Secretary of Education, student loans can be cancelled by execution action.

Calls for federal student debt cancellation have also been lodged by more than 325 undersigned community, civil rights, climate, health, consumer, labor and student advocacy organizations.

With Congress embroiled in debate over the pending COVID-19 stimulus package, it is unlikely that legislative action on student debt will be taken soon. In the meantime, an automatic forbearance has been applied to federal student loans due to the pandemic. Debtors also may have other options for easing their financial burdens. These may include:

  • Refinancing — By combining federal or private student loans into a single loan, you may be able to lower your interest rate, which can help you pay off the debt faster.
  • Income-driven repayment plans — If your monthly payments are higher than you can afford, you can negotiate with the lender about entering into a repayment plan that suits your income level. Depending on your financial circumstances, you may be able to enroll in a plan that drastically lowers your monthly payments.
  • Forgiveness — You may be eligible for forgiveness, cancellation, or discharge of your student loans based on certain reasons, such as if you are totally and permanently disabled, are employed by a government or not-for-profit organization or have a history of working as a full-time teacher in a low-income elementary school, secondary school or educational service agency. A student loan may be discharged in bankruptcy if you can prove economic hardship.

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.

 

How to Determine the Strength of Your Company’s Claim for Defamation

Author By Holly J. KlostermanPosted on

Defamation is a common law tort that can be directed at a person, business, a business owner or employees of a company. The defamatory statement can be written (libel) or spoken (slander). In order to be considered defamation, it must be a false statement of fact, not an opinion, about the business entity or one of its officers or employees. The statement has to be made publicly, as in a newspaper or on the internet, or be spoken to a third party.

The business that has been defamed must prove that it has suffered actual damages — such as lost revenue, diminished ability to hire new employees or decreased business volume — as a result of the false statement.

An investigation to determine the potential impact of a defamatory statement may be necessary. It would include determining the print and online circulation of a newspaper that published the defamatory statement. For a defamatory statement on the internet, a diligent investigator might examine the web traffic for the website that published the statement in question. That examination can count how many “views” were made of the statement and the number “clicks” on the piece containing the statement, thereby showing to what extent the defamatory statement may have spread. If the statement was made on Facebook, Twitter or other social media, the poster’s number of followers is also an indicator of the statement’s reach.

If the defamatory statement was first spoken, the third parties who heard the statement should be located and identified. If the statement was repeated, or otherwise memorialized, the letters, emails, tweets or other communications containing the statement should be tracked down.

Certainly, one of the key components of any business is its reputation in its industry or, for a small business, its community. Once the defamatory nature of the statement is confirmed, the business law attorney representing the company can issue a cease-and-desist letter to the person or entity that made the statement. The attorney can also demand that the person or entity that made the statement issue a retraction. A properly worded retraction might go a long way towards restoring the good reputation of the damaged business and stemming any losses the business is incurring because of the defamatory statement.

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.

 

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