Monday, September 29, 2008

Proposed Federal Trade Commission Rules for Adjudicative Proceedings

Marcia Coyle at the National Law Journal has an article posted this morning about the Federal Trade Commission’s proposing “new rules to improve and streamline enforcement actions tried before administrative law judges” last Thursday.

Part 3 and sections of Part 4 of the Commission’s Rules of Practice concern the process of administrative adjudication at the agency. It is these that are being revised. ( Proposed Rules )

“The Part 3 process, ‘has long been criticized’ as being too protracted and leading to three undesirable consequences,” Coyle writes. “First, in merger cases, drawn-out proceedings may result in parties abandoning transactions before their merits can be adjudicated. Second, protracted Part 3 proceedings may lead to substantially increased litigation costs, both for the commission and for private parties. Third, protracted proceedings do not necessarily lead to decisions that are more just or fair.”

Interested parties may submit written comments electronically or in paper form, but should refer to “Parts 3 and 4 Rules of Practice Rulemaking- P072104” to facilitate the organization of comments.

The Federal Trade Commission, however, also notes that, “Because paper mail in the Washington area, and specifically to the FTC, is subject to delay due to heightened security screening, please consider submitting your comments in electronic form. Comments filed in electronic form should be submitted by using the following weblink: (and following the instructions on the web-based form). To ensure that the Commission considers an electronic comment, you must file it on the web-based form at the weblink: . If this document appears at , you may also file an electronic comment through that website. The Commission will consider all comments that forwards to it. You may also visit the FTC website at to read this document and the news release describing it.”

Press Release

Current Rules of Practice for Adjudicative Proceedings (16 CFR Pt. 3)
Current Miscellaneous Rules ( 16 CFR Pt. 4 )

Thursday, September 25, 2008

New Federal Evidence Rule 502

Senate Bill 2450 – signed by President Bush last Friday-- establishes a new federal rule of evidence that states “the inadvertent disclosure of privileged material would not result in a waiver of attorney client and work product privilege as long as the party responsible for the disclosure took reasonable steps to prevent that release of material.”

The new rule, BNA’s U.S. Law Week (subscription) recently reported, is an attempt to “resolve long-standing disputes and conflicting decisions in federal court about the consequences of inadvertent disclosures,” and has several subsections:

  • Rule 502(a) establishes scope of waiver from inadvertent disclosure, stating any waiver is limited to actual material disclosed and not all material on the same subject; if inadvertent disclosure is made in federal court, protection against privilege waiver applies in state court. If disclosure is done intentionally to gain tactical advantage, waiver would be extended to all material.

  • Rule 502(b) states inadvertent disclosure of protected communications or information does not result in privilege waiver if disclosing party took reasonable steps to prevent the disclosure & correct the error after it occurred.

  • Rule 502(c) states that an inadvertent disclosure first made in a state court proceeding does not waive privilege in subsequent federal proceedings.

  • Rule 502(d) establishes “controlling effect” of a court order issued during litigation, stating that a privilege is not waived by disclosure.

  • Rule 502(e) states that an agreement between parties that protects against privilege waivers in the event of inadvertent disclosures is binding only on those parties, and doesn’t apply to nonparties unless incorporated in a court order.

  • Rule 502(f) and (g) state that new rule also applies to court-ordered arbitration and is limited to attorney-client privilege & work product protection.

U.S. Law Week also reported that Sen. Arlen Specter, who sponsored Senate Bill 2450, is also sponsoring a second bill (S 3217 ), which would “bar the Justice Department from forcing corporations to waive attorney-client privilege in return for leniency in criminal prosecutions.

Tuesday, September 23, 2008

Ohio Supreme Court's gun control holding

Last Thursday, reminiscent of the U.S. Supreme Court’s District of Columbia v. Heller decision back in June of this year, the Ohio Supreme Court struck down the City of Clyde’s ordinance banning the possession of firearms in public parks because it conflicted with a general state law permitting licensed individuals to generally carry concealed weapons. ( Summary )( Holding )

Clyde is a town of about 6,000 , about 49 miles southeast of Toledo. ( Locator )

In Jan. 2004, the Ohio General Assembly enacted ORC § 2923.126, allowing persons meeting certain qualifications and obtaining a license, carry a concealed firearm except in locations specified in that statute. That statute was amended in 2007 and again, two weeks ago, by SB 184. In June 2004, Clyde enacted its municipal ordinance prohibiting anyone within the confines of any city park from possessing a deadly weapon, expressly including “persons licensed to carry a concealed firearm pursuant to RC 2923.125.”

Suit was filed in Sandusky common pleas in August 2004, but while it was still pending, the 6th. District Court of Appeals upheld a strikingly similar ordinance in Toledo v. Beatty . Relying on the 6th. District’s ruling, the trial court in Sandusky found in favor of Clyde, reaffirming enforceability of its ordinance.

That too was appealed, but while that appeal was pending, the state enacted the new legislation , reaffirming its intent to enact a statute that would “provide uniform laws throughout the state” regulating the concealed carry of firearms and explicitly stating that Ohioans have a fundamental constitutional right to possess a firearm where such possession is not expressly prohibited by the U.S. or Ohio constitutions or by a state or federal law. Thus the appeal to the Supreme Court.

Monday, September 22, 2008

Ohio Southern District Fair Housing/Sex Disrimination settlement....?

Victims of a former Forest Park, Ohio landlord achieved a potentially major victory last week in the largest sex discrimination case in the history of the Fair Housing Act, but they may never see a dime of their victory, according to an article in last Friday’s Enquirer, because the defendant in that case has “no asstes.”

U.S. Southern Ohio District Judge Susan Dlott, who oversaw the almost $1 million settlement, rebuked Justice Department lawyers, according to the article, for putting out misleading information earlier this month. “Doesn’t the government know, in fact, that this man has no assets and that this money will not be paid? Isn’t it already known that he is arrears on a criminal fine?” she asked
( Judgment )

Commentary Period for New Ohio Protection Order Notification Forms

The Ohio Supreme Court this morning announced that it will be seeking public comment on proposed judicial firearm notification forms for those charged with domestic violence or subject to protective orders.

Portions of House Bill 562, which was passed by the General Assembly June 10th., and, in its pertinent part here became effective June 24th., requires judges to provide oral or written notices about firearm disqualifications for misdemeanor domestic violence offenders.

Rules 10.01 through 10.03 of the Rules of Superintendence for the Courts of Ohio cover domestic violence civil protection orders, domestic violence temporary protection orders, criminal protection orders and civil stalking or sexually oriented offense protection orders. Protection order warning pages have been revised to include new language that clarifies federal law [ 18 U.S.C. §922 (g)(9) ]and recommends offenders contact their attorneys to determine if they are “weapons disqualified.” Proposed changes can be viewed here.

Comments on the proposed amendments should be submitted in writing to: Diana Ramos-Reardon, Domestic Violence Program Manager, Supreme Court of Ohio, 65 S. Front St., 6th Floor, Columbus, OH 43215, or

Thursday, September 18, 2008

Ohio Supreme Court certified post-judgment interest rate question

The Ohio Supreme Court resolved a certified question last Tuesday as to whether a bill adjusting post-judgment interest rates applied to final judgments entered prior to the bill’s effective date, but not paid in full pending appeals.
The Court answered in the affirmative. ( Court’s summary )( Decision )

A Marion, Ohio court awarded compensatory and punitive damages to a man in a workplace injury case against his employer in April 2003. The employer withheld payment while appealing the trial court’s decisions. In the interim, the statute was amended from a rate of 10% to “a variable rate to be recalculated annually by applying a new statutory formula.” The employer used this new rate as the basis of his calculations for post-judgment interest, which the man challenged.

The 3rd. District Court of Appeals sided with the man’s position and said he was entitled to the 10% rate from the date of the trial court’s judgment to the date of the employer’s final satisfaction because that was the rate in force at the time of the judgment entry. But the 3rd. District also certified the case, recognizing that it was in conflict with a 2005 10th. District appropriations case, and a 2006 arbitration case from the 8th. District.

Wednesday, September 17, 2008

Wall Street's meltdown

The Jurist reported yesterday morning that several members of Congress were speaking out about “regulatory changes & investigations following the stock market drop propelled by Lehman Brothers’ Chapter 11 bankruptcy filing and the sale of Merrill Lynch Monday.”

Included in that posting was mention of the Senate Banking, Housing & Urban Affairs Committee’s rescheduling of a hearing slated for yesterday, originally dealing with “recent regulatory actions regarding Fannie Mae and Freddie Mac,” now to include this past week’s developments.

FBI Investigative Guidelines

The Justice Department and FBI, last week, re-announced plans to implement new guidelines extending agency investigatory powers relating to terrorism. The University of Pittsburgh’s Jurist relates that “the plan calls for a merging of the Guidelines on General Crimes, National Security Investigative Guidelines, and the confidential Supplemental Foreign Intelligence Guidelines.

Senate Judiciary Committee leaders Arlene Specter and Patrick Leahy wrote Attorney General Michael Mukasey last month, asking the implementation be postponed until after Congress had had a chance to review changes. That letter was accompanied in proximity with one from four other members of that committee. Mukasey had defended the proposed guidelines before the Senate Judiciary Committee the first part of last month, but agreed. ( See Previous Post )

“Review of the guidelines generated intense interest and occasional criticism from lawmakers & others over the summer,” the New York Times said Monday, “and the Justice Department took the unusual step last Friday of holding briefings for reporters & civil rights advocates, showing them the draft plan.” The article said the guidelines were likely to be made final soon after FBI Director Robert Mueller’s testimonies before the House and Senate Judiciary Committees yesterday and today.

Also, a letter from House Judiciary Chairman John Conyers, Crime Subcommittee Chairman Robert Scott, and Constitution Subcommittee Chairman Jerrold Nadler back on Sept. 5th. had asked Director Mueller to consider questions including the FBI’s anthrax investigation, its approach to the mortgage fraud crisis, and the expanded investigative & intelligence gathering powers prior to its hearing. (Press Release)

Friday, September 12, 2008

Ohio "castle doctrine" law

“Castle Law” is a doctrine of protection & self-defense having roots as far back as feudal common law. In its simplest form it’s the idea that you can protect your home and family from all invaders with whatever means necessary.

Wikipedia has an excellent overview of the subject, noting that “each state differs with respect to the specific instances in which castle doctrine can be invoked, and what degree of retreat or non-deadly resistance (if any) is required before deadly force can be used.” Wikipedia also points out that “any state imposing a duty to retreat while in the home does not have a ‘castle law’: the duty-to-retreat clause expressly imposes an obligation on the home’s occupants to retreat as far as possible and verbally announce their intent to use deadly force before they can be legally justified in doing so to defend themselves…. Other states expressly relieve occupants of any duty to retreat or announce their intent to use deadly force.” Kentucky and Indiana have this second – no duty to retreat anywhere – law.

Ohio’s SB 184, passed in June and becoming effective this past Monday, is slightly a slightly weaker rendition, with no duty to retreat if in one’s home or car.

“Castle law” nuances aren’t without testing or sometimes in the news, though. The Kentucky Supreme Court on Wednesday heard oral argument in two Jefferson County cases; one a murder conviction, the other manslaughter.

Ohio’s Supreme Court has a case pending with a different twist – a case arising out of an individual’s unprovoked attack against two store employees who died when those employees, with the help of two customers, tried capturing him while they were defending themselves.

New Ohio laws

There are some 14 bills passed by the Ohio General Assembly which have gone into effect this week or will be next week, including Ohio’s “Castle Doctrine” law (SB 184) which became effective Tuesday.

Others include:

SB183 IMPORTUNING requires the imposition of a mandatory prison term for the offense
of "importuning" if an offender previously has been convicted of a sexually
oriented offense or a child-victim oriented offense; adds the following prohibitions that constitute the offense of "compelling prostitution" (R.C. 2907.21(A)(2)(b), (3)(b), (4)(b), and (5)(b)): Eff. 9/11/2008

HB138 JUDICIAL SALE-PROPERTY - To require purchasers of real property at a judicial sale to provide certain identifying information and to make other changes in judicial sales of real property.
Eff. 9/11/2008

SB229 RADIOLOGIST ASSISTANTS -Requires the State Medical Board to regulate the practice of radiologist assistants and establishes criminal penalties for unauthorized practice
Eff. 9/11/2008; sec. 4774.02 9 months later

HB404 VIATICAL SETTLEMENTS Making numerous changes to the law governing viatical settlements, including requiring a business that is licensed as a viatical settlement broker to
maintain at least one individual who individually is licensed as a viatical settlement broker, and individuals who are licensed as viatical settlement brokers to complete continuing education requirements.
Eff. 9/11/08; sec. 3916.02(A) 90 days later

SB302 WILL SIGNING - To require a will to be attested and subscribed by the witnesses in the conscious presence, instead of in the presence, of the testator and to provide that a decedent who signs a document that is a purported will sign in the conscious presence of the witnesses. Eff. 9/11/2008

SB334 WORKERS' COMPENSATION - To prohibit an employee from receiving workers' compensation benefits in this state if the employee has received a decision on the merits of a claim filed in another state for the same injury or occupational disease, to allow an Ohio employer to obtain, through the Administrator of Workers' Compensation or an insurance company, worker's compensation insurance for claims arising in other states, and to make other changes to the Workers' Compensation Law regarding interstate workers' compensation claims. Eff. 9/11/2008

HB499 OHIO TRUST CODE –Modifications to the Ohio Trust Code, including provision that the administration of a trust is governed by the law designated in the terms of the trust to govern trust administration and, in the absence of such designation, the law of the trust's principal place of
administration.; Adds powers of trustees; and Outright repeals former fiduciary law that limits the liability of any excluded fiduciary when certain powers, including the authority to direct the acquisition, disposition, or retention of any investment, are granted to other persons and retains a similar provision in the OTC.
Eff. 9/12/2008

SB175 GRIEVING PARENTS ACT - To enact the Grieving Parents Act, regarding fetal death certificates for, and burials of, the product of human conception that suffers a fetal death.
Eff. 9/12/2008

HB346 HOSPITAL STAFFING GUIDELINES - Requires each hospital to create a nursing care committee to create & recommend written nursing services staffing plans and specifies the committee's duties and membership
Eff. 9/12/2008

HB181 SCHOOL RECORDS-MISSING CHILDREN - To require public and nonpublic schools to mark the records of students identified as missing children and to notify law enforcement of requests for those records. Eff. 9/12/2008

HB428 SCHOOL EMPLOYEES MISCONDUCT - Regarding the reporting of and the discipline for school employee misconduct. Eff. 9/12/2008

HB283 PHARMACY SCHOOLS - To permit pharmacy schools to accept for instructional purposes donations of certain dangerous drugs, including expired drugs. Eff. 9/12/2008

SB268 COUNTY CONTRACTS - To allow a county contracting authority to use competitive sealed proposals instead of competitive sealed bidding when doing so would be advantageous to the county. Eff. 9/12/2008

HB285 SMALL BUSINESSES - To waive fines or penalties for paperwork violations that are first-time offenses committed by small businesses. Eff. 9/16/2008

Thursday, September 11, 2008

Ohio "non-recourse" funding legislation

Anthony Sebok devoted one of his FindLaw commentaries earlier this week to what he terms “Ohio’s wisely correcting a mistake that was made by its Supreme Court five years ago.” ( Here )

“In 2003,” he writes, “in Ransman v. Interim Settlement Funding Corp. the Ohio high court held that the ‘non-recourse’ funding of litigation violated the common law of the state. This decision shut down an entire industry that had fulfilled an important social function. I argued five years ago that that decision was wrong. Now, Ohio has overruled the decision by legislation.” He devotes the rest of the article to a review of the new legislation, and “asks a few questions about its limited scope.”

Ohio "Next-of-Kin" Database

The State of Ohio, last Monday, became one of a relatively small number of states having a “next-of-kin” database built around its drivers license and state ID records. Florida has a like program, started two years ago.

Ohio’s program was given birth to back in Nov. 2007, and was signed into law in last May..( Bill )

Given 180 days from its July 31st. effective date, Ohio’s Bureau of Motor Vehicles was directed to “adopt rules establishing the next of kin database and having it operational.” Registration began at noon, Monday, Sept. 8th.; the next day BMV’s website was sporting cautions to viewers that “due to the popularity and extraordinarily large number of individuals attempting to access the new ‘Next of Kin’ online application, you may experience slow-downs or, in some instances, not be able to login and complete the form.” ( BMV website )

BMV has “frequently asked questions” posted here.

Wednesday, September 10, 2008

Ohio Supreme Court oral argument streaming

The Ohio Supreme Court has announced that, beginning Tuesday, Sept. 16th., it will begin a transition from streaming live oral arguments and other programs using the Real Media (.rm) format to Flash Video (.flv).

The Court’s announcement says that “Beginning with the Sept. 16 and 17 oral argument sessions, users will have the option of accessing either the Real Media stream, which requires the free RealPlayer, or the Flash Video stream, which requires the free Adobe Flash Player; but, beginning Sept. 30, the Court will stream live events exclusively in Flash.”

Oral arguments and other events are currently archived only in RealMedia format, but these will eventually be transposed to the new Flash Video as well.

Ohio Supreme Court public record rules

Ohio Supreme Court Justice Ann Lanzinger last week announced that the commission appointed by the Supreme Court on rules governing public access to court records approached its task balancing two important concepts: protecting the public’s right to know while at the same time protecting the individual’s right of privacy.

“Some have argued that the rules limit the public’s right to access,” she said, “but that is a misunderstanding, for we do not intend to shield court records from the public eye. In making our recommendation, the commission tried to strike a balance between the presumption that court records are open with the need to protect the personal identifying information within them.”

“The Commission on the Rules of Superintendence received more than 50 separate responses to our initial draft from court officials, media, private investigators, state licensing boards, police, attorneys and others. After fully considering all submissions, we made substantial revisions and offer them for another public review.

For a second time, the proposed rules governing public access to court records are being published for 30 days of public comment until Sept. 17th. (See Court’s previous announcement )

Comments may be made before that time to: Jo Ellen Cline, Legislative Counsel, Supreme Court of Ohio, 65 South Front Street, 7th Floor, Columbus, Ohio 43215, or

Additional information can be obtained from prior postings on Nov. 19th. 2007; March 24 and July 11, 2008.

Friday, September 05, 2008

Ohio CAT unconstitutional when applied to grocers

The 10th. District Ohio Court of Appeals last Tuesday ruled that the state’s commercial activities tax (CAT ), “when applied to gross receipts from the wholesale sale of food and the retail sale of food for consumption off of the premises where sold, operates as, and is, an excise tax levied or collected on the sale or purchase of food, which is prohibited by Sections 3 and 13 of Article XII of the Ohio Constitution.” ( Ruling )

Ohio’s CAT, enacted in 2005 and codified in ORC Chapter 5751, is levied “on each person with gross receipts for the privilege of doing business in this state.” Appellants had contended that since the Ohio Supreme Court has “repeatedly held that a tax levied on a business’ gross receipts was an ‘excise tax’ [i.e. East Ohio Gas Co. v. Limbach (1986)], and both Sections 3(C) and 13 of Art. XII prohibit ‘excise taxes’ from being imposed on certain food was clearly unconstitutional.” The state’s view had been that CAT was “a franchise tax as it is imposed for the privilege of doing business in Ohio, and what the Ohio Constitution prohibits are excise taxes levied on the sale of food in certain situations..” (highlights mine) The Tenth District agreed with the earlier contention, noting several cases [i.e. Wesnovtek Corp. v. Wilkins (2005) and Keycorp v. Tracy (1999)] in holding that “a franchise tax was an excise tax.”

The decision is apparently going to be appealed to the Ohio Supreme Court, according to an article in the Dayton Daily News on that day.