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Category: Litigation

Supreme Court Issues Opinions on Social Media Liability in Regards to Terrorist Content Overseas


May 22, 2023

On Thursday, May 18, the Supreme Court unanimously shielded both Google and Twitter in cases alleging social media liability in regards to terrorist attacks in France and Turkey. The pair of decisions protect the widely used social media companies from potential lawsuits regarding terror-related content. The decisions reflect the Court’s stance in not expanding the scope of liability online.

Federal anti-terrorism law allows civil lawsuits against anyone who “aids and abets by knowingly providing substantial assistance” to a terrorist in executing acts of violence.

In both cases, family members of the victims argued that the tech giants were complicit in the attacks by their failure to remove terror-related content from their sites through their content moderation algorithms and software. They also alleged that the content served as a recruitment tactic for radicals.

However, the Court ruled that the legal standard has not been met in either case involving Google and Twitter.

In an opinion for Twitter v. Taamneh, Justice Clarence Thomas said that families of victims of a 2017 attack by ISIS in Istanbul could not effectively demonstrate that social media had “aided and abetted” the extremists in violation of federal law. “It might be that bad actors like ISIS are able to use platforms…for illegal – and sometimes terrible – ends. But the same could be said of all cell phones, email, or the internet generally.”

The Court followed suit in an opinion for the Google case, which was brought by a family of an American killed in a 2015 terrorist attack in Paris.

Notably, the Court declined to address the application of Section 230, which many refer to as a blanket immunity from liability for social platforms. The Court’s silence offers little insight on how to best measure a corporation’s approach when moderating its online social platform and spaces.

This ruling comes as a relief to Google, Twitter and others in the tech space that continue to urge the Supreme Court not to apply legal limitations to the internet.

To download the full Twitter case opinion, click here.

Mark S. Fusco is a partner and the Chair of the Walter Haverfield Litigation Group. He can be reached at mfusco@walterhav.com or 216-619-7839.

Anthony R. Santiago is an associate at Walter Haverfield who focuses his practice on commercial litigation matters. He can be reached at asantiago@walterhav.com or 216-658-6219.

The Winning Streak of the Walter | Haverfield Trial Team


June 28, 2019

John SchillerJamie Price

Two members of the Walter | Haverfield Litigation group are earning widespread recognition for their hard work and legal talents after back-to-back victories across state lines. The trial team, led by attorneys John Schiller and Jamie Price, worked tirelessly to restore clients’ reputations and preserve their financial well-being and future in three separate cases.

At a bench trial in Des Moines, Iowa, an Iowa shareholder, who owned 50% of a company, sued two Ohio shareholders who owned the other half of the company. The case involved the defense of an alleged breach of fiduciary duty by the Ohio shareholders, Schiller and Price’s clients. However, as the facts bore out, the plaintiff had hijacked the company from their clients in an attempt to extort $1 million from them. Not only did the judge rule in their clients’ favor, he also awarded them equitable relief on their counterclaims, attorney fees, sanctions and punitive damages.

In a jury trial in Cleveland, Schiller and Price successfully defended a trustee of an ultra-high-net-worth family trust against claims that their client breached certain fiduciary duties by failing to properly oversee the management of trust assets. The plaintiffs’ claimed that Schiller and Price’s client allowed the investment manager, charged with overseeing the trust, to invest too heavily in precious metals and in particular, gold. The plaintiffs also sued the investment manager who successfully argued that a short statute of limitations applied, leaving their client as the principal target. Rather than succumb to demands for millions of dollars in alleged “damages,” their client chose to proceed to trial. During the first five days of trial before the jury, Schiller and Price demonstrated that the claims against their client were absolutely without merit. As a result of the vigorous cross examination of the primary plaintiff, plaintiffs’ counsel dismissed all claims against their client before they rested their case. This outcome completely vindicated the client.

Also in Cleveland, Schiller and Price defended the estate of a matriarch of a high-net-worth family against a claim of undue influence by two of her adult children. The plaintiffs claimed that their mother’s will and trust were the product of undue influence exerted by the youngest of her five children. Schiller and Price represented the estate of the matriarch, as well as the accused child and the two other adult siblings in their capacities as executors and trustees. With the help of other skilled lawyers hired by the individual defendants, Schiller and Price coordinated a strategic defense of the case based on the firm belief that the plaintiffs would not prevail at trial because no undue influence ever occurred. In an example of less is more, Schiller and Price allowed the witnesses for the plaintiffs to demonstrate that no undue influence had taken place. At the close of the plaintiffs’ case, Schiller moved the court for a directed verdict. Though rarely granted in a jury trial, the judge in this case agreed that the plaintiffs had not presented sufficient evidence on the substantial elements of their case for it to proceed further with the jury. Schiller’s Motion for a Directed Verdict was granted. This result, as well as the others, demonstrates the value of thorough preparation and effective lawyering.

John Schiller and Jamie Price are attorneys at Walter | Haverfield who represent clients in complex business, shareholder, partnership, fiduciary, trust and estate, and contract disputes. Furthermore, Schiller is a member of the Million Dollar Advocates Forum, which only includes attorneys who have obtained a jury verdict in excess of $1 million. Schiller can be reached at jschiller@walterhav.com or at 216-928-2941. Price can be reached at jprice@walterhav.com or at 216-928-2931.

Public Officials, Social Media and the Law


May 15, 2019

Darrell ClayWalter | Haverfield partner Darrell Clay speaks to Cleveland’s Fox 8 News about first amendment rights after an Akron resident sues his councilman for a move he made on Facebook. Watch the story here.

Alleged Defamation Arising from Form U-5s


April 4, 2019

In an article in the Cleveland Metropolitan Bar Journal, Walter | Haverfield attorney Doug Eppler explains defamation claims arising from Form U-5s and the issue of “privilege” defense under Ohio Law for former employers.

Appellate Court Hears Cities’ Challenge to Central Tax Filing for Business Income


September 30, 2018

Walter | Haverfield’s Darrell Clay described how Ohio municipalities have constitutional home rule authority to levy taxes, in an article published in The Hannah Report.

Trust but verify insurance policy coverage before it’s too late


July 9, 2018

Nick BuzzyCraig Marvinney

 

 

 

 

 

 

 

You trusted your insurance agent with your company’s insurance coverage. What could go wrong? The Ohio Supreme Court recently made it clear that upon receiving that new policy or renewal you must, as President Ronald Reagan used to say, “trust, but verify.”

The Ohio Supreme Court puts the onus on the policyholder to educate himself/herself of policy exclusions before an insurance company denies coverage or other problems arise. The ruling starts the clock on the time period of when one may sue for any agency errors, omissions, or professional malpractice claims once an insurance company issues the written policy of insurance.

The time in which a plaintiff can file a lawsuit is the statute of limitations. This varies depending on the type of case, i.e. personal injury, contract dispute, etc. After the statute of limitations expires, a plaintiff cannot bring suit to recover damages. In Ohio, the statute of limitations normally begins when an injury or damage occurs. One exception to this general principle is the “delayed-damage rule.” Under this rule, the statute of limitations period does not begin until the wrongful conduct causes actual damage.

In LGR Realty, Inc. v. Frank and London Insurance Agency, the Supreme Court put the “delayed-damage rule” in the spotlight. A business made a claim under its insurance policy to defend a significant lawsuit involving one of its properties. The insurance company denied coverage on the basis of an exclusion provision for that property in the policy. As a result, the business paid over $420,000 in attorney fees and expenses over the next few years to defend the lawsuit. These were the “delayed damages.”

The business then filed a professional malpractice lawsuit against its insurance agent for these fees and expenses. It claimed that the agent neglected to make sure the particular property was insured. The trial court dismissed the lawsuit because it was filed more than four years after the policy took effect. This exceeded the statute of limitations. The Ohio Court of Appeals reversed the trial court and instead followed the delayed-damage rule. The appeals court reasoned that the business was not actually harmed until the insurance carrier denied the claim thereby leading the business to pay significant attorney fees in defending the lawsuit.

The Ohio Supreme Court reversed the appeals court, ruling that the delayed-damage rule does not apply in professional malpractice claims. The court held that the statute of limitations period begins when an individual or business is issued an insurance policy. The court stressed that it was the policyholder’s duty to determine whether there were any policy exclusion errors.

The LGR decision means that individuals and businesses should check the new or renewed policy with their agent to ensure all the coverages intended actually exist in the new policy at or near the time the policy is received. The decision tightens the timeframe for an individual or business to seek recourse against an insurance agency if the agent fails to disclose all the coverages are what were intended.

Individuals and businesses should consult with counsel to make sure there are no uncertain areas of coverage or exclusions in their policies. Otherwise, if a claim arises it may be too late to seek coverage or file a lawsuit if an insurance company denies coverage for the claim.

Craig Marvinney is a partner at Walter | Haverfield who focuses his practice on business, commercial, insurance and complex litigation. He can be reached at cmarvinney@walterhav.com or at 216-928-2889.

Nick Buzzy is a former attorney at Walter | Haverfield who focused his practice on litigation.

 

 

 

Walter| Haverfield Expands its Litigation and Real Estate Teams


June 29, 2018

Committed to its mission of offering personalized service to our growing number of clients, Walter | Haverfield has hired Nicholas Buzzy to its Litigation team and Gail Bisesi to its Real Estate team.

Buzzy is a dedicated, dynamic attorney with experience in wide-ranging complex litigation. The Northeast Ohio native has successfully defended multiple cases at trial, valued at more than six figures. That includes personal injury as well as business interruption cases.

“I’m passionate about my work as a litigator and proud of the success I’ve had thus far in defending big cases,” said Buzzy. “I now have the opportunity to continue to do what I love on an even bigger scale with a strong, hard-working team, and I’m very thankful for that.”

Buzzy has also defended a variety of corporations in products liability cases as well as individuals on a variety of disputes. Buzzy most recently worked at the Cleveland-based law firm of Gallagher Sharp as a litigation attorney. Prior to that, he served as an assistant prosecuting attorney for Summit County, Ohio.

Bisesi brings more than two decades of real estate experience to Walter | Haverfield. She joins the firm as a paralegal and previously worked at law firms, in banks and with developers in the Northeast Ohio region.

“I was looking for a firm that has a strong real estate practice group, and that’s why I sought out Walter | Haverfield,” said Bisesi, who is also a Northeast Ohio native and enjoys working at the Cleveland Film Festival each year.

“Our goal is to find highly skilled and qualified individuals to serve our clients in ways that align with our strong values and high standards,” said Ralph Cascarilla, managing partner of Walter | Haverfield. “Nick and Gail will be able to deliver that superior service, and I’m happy to have them on board.”

Since 1932, Walter | Haverfield attorneys have served as strategic counselors to private businesses, public entities and high net-worth individuals, providing creative and customized solutions that deliver outstanding results at an exceptional value. Our track record has allowed us to sustain year-after-year growth. Walter | Haverfield has more than doubled in the past decade to become one of Cleveland’s top ten law firms. Today, our team of nearly 80 attorneys is focused primarily in the areas of corporate transactions, real estate, intellectual property, labor and employment, tax and wealth management, liquor control law, litigation, public law and education.

 

Click at your own peril


July 31, 2017

Small Claims Recovery Increased to $6,000 – Should Your Business Be Thinking Small?


March 31, 2017

“Small Claims Recovery Increased to $6000 – Should Your Business Be Thinking Small?,” also appeared online in Crain’s Cleveland Business on April 3, 2017.

Late last year, Governor Kasich signed a law that doubled the maximum amount of money recoverable in small claims court, from $3,000 to $6,000. As with any new law, the increase in maximum recovery in small claims court has both positive and negative consequences on Ohio businesses.

On the plus side, one of the main purposes of this change was to permit businesses to recover debts, while avoiding the high cost and length of litigation often found in other courts. For example, in Cleveland Municipal Court, the filing fee for a complaint is $122, but a small claims complaint only costs $37 to file. Because there is typically no discovery, small claims cases tend to be resolved much more quickly. And, under Ohio law, a company can – subject to strict limits – be represented in small claims court by a non-lawyer. (Importantly, although a company may file and present its claim or defense, it cannot engage in cross-examination, argument, or other acts of advocacy without representation by an attorney. Think carefully before selecting this route.)

On the other hand, the new law also has the potential for negative effects. For example, businesses may see an uptick in cases being filed against them in small claims court. As there are no subject matter limitations in small claims court, these filings could include breach of contract and other business disputes, routine slip and falls, and others. Additionally, the monetary increase has the potential for an increase in meritless and frivolous filings. This is because potential plaintiffs now stand to recover twice as much as they could have previously.

Procedurally, the small claims process is fairly straightforward. First, a claim is filed. Typically, this is a single page form identifying the parties, stating the basis for the claim, and including the amount of money the plaintiff seeks to recover from the defendant. After the complaint is filed, the court will set the trial date, usually around 30 to 60 days after the complaint is filed. A party who is sued can counter-sue by filing a counterclaim at least seven days before the trial. Typically, there is no discovery. Witnesses can be compelled to appear by serving them with a subpoena.

On the date of the small claims trial, the parties appear, exchange any documents they want to present to the judge, and possibly discuss settlement. Absent a settlement, the presiding judge begins the trial and it is concluded in approximately 15 to 20 minutes.

In contrast, civil litigation in municipal or common pleas court is not as quick or simple. First, the complaint requires a written response from the defendant. Then, the court sets a status conference for the parties to meet, discuss the case, and set a trial date – which could be a year or more away. Next, written discovery is exchanged and depositions are taken. The legal fees and expenses resulting from this process can amount to an expenditure of time and money that is disproportionate to the value of the claim itself.

For example, before the law was changed, a business seeking to recover on an unpaid debt for $4,000 had to file in municipal court. Because a business cannot pursue a claim without legal representation, it had to make a decision whether it wanted to pursue the claim and pay an attorney or simply let it go. No longer does that business have to make such a determination due to the changes made by this law.

With the increase in the amount of recovery, now is a good opportunity for businesses to review their policies and procedures with respect to documenting losses. If an accident occurs, it is important to document what occurred, who are the witnesses, and take written statements and photographs. As time passes, employees come and go, memories fade and it becomes increasingly difficult to prosecute or mount a defense to a claim. For example, the time period to file a slip and fall case is two years and a breach of written contract is eight years. To that end, it is important to ensure that when the time does come to either present or defend a small claims lawsuit, that your business is in the best position to do so. In order to accomplish that, immediately contact your attorney and provide him/her with your claim or the small claims complaint and any supporting documents that you may have in your possession regarding the incident or business dispute.

Companies big and small can be dragged into small claims court, so do not believe that your company is immune from litigation. Many plaintiffs may consider small businesses as easy targets and try to focus their claims on those businesses. On the other hand, plaintiffs will just as likely target large businesses due to their erroneous belief that a small claims complaint will get lost in the day-to-day operations, no one will appear to defend the claim and an easy award of $6,000 can be obtained. Therefore, it is recommended that if a company is sued or wishes to pursue a small claims action, that it retains an attorney. Without an attorney and in the likely event that the opposing party appears, the company’s representative cannot question their claims or defenses. That will significantly hamper the company’s ability to prevail on its claim or defense.

With the increase in the amount of recovery to $6,000, the prospect of lengthy and expensive litigation becomes minimized. As such, companies should begin to consider and incorporate the strategies discussed into their business plans and start thinking small . . . small claims that is.

For additional information or legal guidance, contact David M. Kroh at (216) 619-7838 or dkroh@walterhav.com.

Marvinney Teaches Oral Advocacy Class at Case Western Reserve University School of Law


March 27, 2017

On March 27, 2017, Craig A. Marvinney, along with Supreme Court of Ohio Justice Sharon L. Kennedy, jointly taught a class on Oral Advocacy at Case Western Reserve University School of Law. This class, which was presented to the entire First Year Class and upper class Moot Court Co-Curricular students of CWRU, took place at the university’s Tinkham Veale Student Center. Justice Kennedy spoke with a “View from the Bench,” using excerpts from video footage of actual oral arguments to the Ohio Supreme Court.

From left to right: Craig A. Marvinney (Adjunct Professor of Law at CWRU Law School),
Ohio Supreme Court Justice Sharon Kennedy, CWRU Law School Dean Michael Scharf,
and CWRU Law Professor Dan Jaffe

Common Sense Communication Cuts Cyber Risk


January 11, 2017

It’s early in the year. Famco’s employees are looking to get their taxes done. Anticipated refunds will ease the pain from holiday excess. The small manufacturer’s CFO sighs in relief that the rush to complete the corporate W-2s is done. Down the hall, Famco’s controller opens an email from his CEO. Nothing out of the ordinary in how it looks, but its message is a bit odd. The CEO says she’s working on a significant project for tax purposes and needs all employee 2016 W-2s pronto in .pdf form. She’s a hard driver. The controller fears wasting her time if he raises questions, so he dutifully rolls all the W-2’s into one attachment and responds.

No questions asked–just obedience–even though he knows the CEO never works hands-on at this level. But, if that’s what she wants…

The next week, one of Famco’s sales managers stops by the CFO’s door complaining that he couldn’t file his taxes electronically. The IRS claimed to already have his return on file. He expects a substantial refund and is frustrated. The next day, Famco’s logistics coordinator emails the CFO asking about problems with the IRS refusing to accept tax returns.

Curious now, the CFO visits the IRS website. He sees an IRS Notice about false tax returns being filed by criminal elements claiming taxpayer refunds. The ruse is discovered when the taxpayer’s efforts to file electronically are rejected. The Notice warns this is now a common internet scam, “phishing”, where the scammer duplicates a corporate email style and uses what looks like a CEO’s email address as the originating email to a CFO or controller seeking employee W-2s. But the key to the scam is that the email’s return domain is almost imperceptibly varied. Instead of “CEO@famcorp.com”, it might be CEO@famcoorp.com, “CEO@famcorp.rus” or some other slight, but significant, shift.

Famco’s CFO immediately calls his staff together. The controller mentions the CEO’s email and how he timely and duly responded, no questions asked. Copies of the relevant emails are produced. Indeed, the controller’s response with the W-2s was routed not to the CEO, but rather to the internet’s dark underbelly, putting all employee personal identifying information, “PII” (e.g., here: names, addresses, social security numbers and earnings), instantly in scammers’ hands. Sickened, the CFO takes this information to the CEO.

Famco has a serious, immediate problem, and the CEO is very concerned. Suddenly the entire cybersecurity of the company is in doubt. The company’s counsel must be involved. The Tech Support team verifies there was no breach of their firewalls or security in software or hardware. Costly and embarrassing employee notifications must be issued. But how? When?
Federal or state mandated public notification may be necessary. Risk scenarios have to be determined. Do law enforcement authorities need notification? Is that confidential? Board or even shareholder notification requirements may apply. Identity protection needs to be purchased for impacted people at the company’s expense. What about cyber-risk insurance coverage? Intercepted Famco employee refunds need recompense.

The list goes on. Even for a small company such an event can crush profits or worse, with remediation costs running deep into the thousands, tens of thousands of dollars or even more. Larger companies can expect remediation costs running into the millions of dollars as the number of those impacted skyrockets. Bad publicity, loss of goodwill and reputational damage just pile it on.

Some corporate leaders may scoff, “that will never happen to us!” In reality, the question is not “if”, but “when”. Thousands of upstanding companies, large and small, around the country were scammed like this in the past two years alone. Walter | Haverfield’s Cybersecurity Team received a number of client calls here as tax season unfolded last year. No doubt new scams are developing for 2017.

But this sort of phishing scam is avoidable if the company creates an atmosphere of 360-degree verification on trade secret, intellectual property, PII, and other confidential information. Had the controller simply verified the email request with the CFO or even the CEO, the entire disaster would have been avoided. A priority must be stressed within the company of verifying questionable or even routine-looking requests for such information up the chain of responsibility. Company policies need to be in place – with employees trained — requiring verification either in person, by phone, or by separate (not “reply”) email before response to such emails, regardless of the person purportedly seeking the information.

Although Famco is a fictitious name here, these incidents are as real as real can be. The time to “respond” to an incident is before the incident by putting the company’s response outline in place in advance of a breach. Only the scammer knows when that will happen. Experienced cybersecurity attorneys can assist in developing such policies and even more importantly can help create an Incident Response Plan or Cyber Incident Management Plan. If disaster strikes your company—whether or not you had adequate plans in place–make sure you have the right legal resources to help assist in getting through these problems efficiently, effectively and economically.

Craig Marvinney can be reached at 216-928-2889 or cmarvinney@walterhav.com.

Disposing of Household Waste: What Does the Law Require?


December 22, 2016

In the “Law You Can Use” consumer legal information column provided by the Ohio State Bar Association (OSBA), published on December 22, 2016 and titled “Disposing of Household Waste: What Does the Law Require?,” Leslie G. Wolfe answered questions about the proper disposal of unwanted items.