The Journal of Financial Services Professionals, through its Kenneth Black, Jr. Journal Author Award Program, has recognized John E. Schiller for his 2008 article, “Trustee Liability: A Litigator’s Perspective.” John’s article placed second among the top three pieces published in the Journal, as determined by an independent panel of judges. Named in honor of Kenneth Black, Jr., PhD, CLU, editor of the Journal for forty-one years, these awards were issued on the basis of the originality of the authors’ research and on the articles’ clarity, timeliness and appropriateness for the Journal’s readership.
Category: Litigation
Trustee Liability: A Litigator’s Perspective, Journal of Financial Service Professionals, November 2008
Walter Haverfield
August 16, 2014
A Physician’s Last Chance
Walter Haverfield
In the article, “A Physician’s Last Chance,” published by the Federal Litigation Section of the Federal Bar Association (Vol. 10, No. 1, Winter 2010), Walter | Haverfield partner John Schiller and Michael J. Jordan Esq. discussed the challenges facing attorneys when contesting, through the state or federal court system, a physician’s loss of hospital privileges.
Mediation in the United States Circuit Courts of Appeals: A Survey
Walter Haverfield
July 15, 2014
In an article published in the Fall 2014 issue of The Federation of Defense and Corporate Counsel Quarterly and titled, “Mediation in the United States Circuit Courts of Appeals: A Survey,” Craig A. Marvinney asserted that mandatory mediation programs appear to be here to stay in most circuit courts of appeals. Consequently, Counsel must be familiar with the rules governing mediation practice, as well as the rules governing appellate procedure, in order to best represent their clients’ interests.
U.S. Supreme Court Upholds Michigan Constitutional Ban on Affirmative Action
Walter Haverfield
April 5, 2014
In a blog posted on the website of the Federation of Defense and Corporate Counsel (FDCC) and titled, “U.S. Supreme Court Upholds Michigan Constitutional Ban on Affirmative Action,” Craig A. Marvinney reviewed the Court’s decision in the case of Schuette v. BAMN, etc. In this decision, the Court upheld the Michigan electorate’s approval of “Proposal 2,” which addressed the statewide debate on the issue of racial preferences in the context of governmental decision-making.
Businesses increasingly find mediation a valuable tool for navigating the e-discovery process
Walter Haverfield
February 15, 2014
In a Crain’s “Legal Guest Blog,” titled “Businesses increasingly find mediation a valuable tool for navigating the e-discovery process,” Sara Ravas Cooper explained how parties in a litigation matter can benefit from the use of a mediator to address e-discovery issues.
Served via social media – the new ‘face’ of litigation
Walter Haverfield
January 15, 2014
In a “Law You Can Use” article, titled “Served via social media – the new ‘face’ of litigation” and published by the Ohio State Bar Association and Akron.com, Sara Ravas Cooper addressed the concept of “service of process” by social media in litigation matters.
A New Approach to Managing E-Discovery
Walter Haverfield
November 20, 2013
In an article published in theandnbsp;Cleveland Metropolitan Bar Journal, titled “A New Approach to Managing E-Discovery,”andnbsp;Sara Ravas Cooperandnbsp;recommended that parties to a lawsuit consider the use of a mediator to handle potential disputes which may arise over ESI or e-discovery issues.
Compliance Deadline Alert: FCC Changes in Express Consent Standards to Take Effect on October 16, 2013
Walter Haverfield
September 28, 2013
Byandnbsp;Mark S. Fuscoandnbsp;andandnbsp;Sara Ravas Cooper
Effective October 16, 2013, two key provisions of the Federal Communications Commission’s (“FCC”) Telephone Consumer Protection Act (“TCPA”) are set to take effect.
First, one prior exception from liability under the TCPA for phone calls or text messages using an automatic telephone dialing system (“robocalls”) or a prerecorded message was for those calls or messages that were made with the recipient’s “prior express consent.” Under the new interpretation from the FCC of the prior consent exception, with limited exceptions, a business can invoke the prior express consent exception for autodialed or prerecorded calls to a cell phone or for prerecorded telemarketing calls to a residential line only if the called party has physically or electronically signed an agreement that clearly authorizes calls or texts to be made to their phone number by that particular sender. The burden is placed on the business to retain these consent records for at least four years.
Second, the other significant change to the TCPA rules is the elimination of the “established business relationship” (“EBR”) exception for prerecorded telemarketing calls to residences. Previously, businesses may have been able to avoid TCPA liability for prerecorded telemarketing calls that otherwise were prohibited by claiming that they had an EBR with the consumer by virtue of a previous purchase or other business interactions. The new regulations eliminate the EBR exception. Consequently, businesses are now required to obtain prior written consent for all prerecorded telemarketing to residential phone numbers – even those that are for previous customers. These consent records must also be kept for at least four years.
Notably, these changes areandnbsp;in addition toandnbsp;the modifications to the rule that went into effect on January 14, 2013. Since that time the rule has required that prerecorded telemarketing messages that could be answered by a live person must include an automated opt-out mechanism. This opt-out option must be announced at the outset of the call, made available throughout the duration of the call, automatically add the called party’s number to the caller’s do-not-call list and must immediately disconnect the call. For prerecorded telemarketing calls that are answered by an answering machine or voicemail, businesses must now ensure that the message contains a toll-free number that the consumer can call to be connected to an automated opt-out system.
In sum, the new changes in effect on October 16, 2013, will:
- Require prior express written consentandnbsp;for telemarketing calls made to cell phones using an automatic telephone dialing system or a prerecorded message, but maintain the prior express consent requirement for non-telemarketing calls to cell phones;
- Require prior express written consentandnbsp;for telemarketing calls made to residential landlines using a prerecorded message; and
- Eliminate the EBR exception to the obligation to obtain consent for telemarketing calls made to residential landlines using a prerecorded message.
What Constitutes “Express Consent”?
The TCPA defines “prior express written consent” as a signed written agreement that contains a “clear and conspicuous” disclosure to the consumer that by signing the agreement, he or she authorizes the seller to call or text a designated phone number for telemarking purposes using an automatic telephone dialing system or an artificial or prerecorded voice. The agreement must also include a notice that the person signing is not required to sign the agreement “as a condition of purchasing any property, goods, or services.”
The required signature from a consumer may be obtained electronically by email, website form, text message, telephone keypress, or voice recording.
What Should Your Business Do?
The FCC, state Attorneys General, and private plaintiffs have the right to enforce consent requirements. Thus, compliance with these rules is very important. Prior to October 16, 2013, businesses should assess their calling and text messaging practices to first determine if they engage in telemarketing calls. The term “telemarketing” is defined as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” Then, the business should determine the source of the numbers it calls and whether prior written consent exists for each number. Based on this assessment, businesses should adjust accordingly in order to comply with the impending change to the FCC’s rules as well as in an attempt to avoid potential liability to the extent possible.
If arbitration is the answer, you may have asked the wrong question
Walter Haverfield
April 18, 2013
In a Crain’s “Legal Guest Blog,” published on April 18, 2013 and titled, “If arbitration is the answer, you may have asked the wrong question“, Mark Fuscoandnbsp;provides business owners and corporate decision makers items to be aware of when considering arbitration.
Help avoid a lawsuit with a pre-emptive strike
Walter Haverfield
February 28, 2013
In a Crain’s “Legal Guest Blog,” published on February 28, 2013 and titled,andnbsp;“Help avoid a lawsuit with a pre-emptive strike“andnbsp;Mark Fuscoandnbsp;comments on how to gain the upper hand when confronting a lawsuit from out of state.
Physician Apologies and General Admissions of Fault: Amending the Federal Rules of Evidence, 72 Ohio St. L.J. 687 (2011)
Walter Haverfield
June 17, 2011
Physician Apologies and General Admissions of Fault: Amending the Federal Rules of Evidence, 72 Ohio St. L.J. 687 (2011)
Review Contracts and Agreements with Out-of-State Companies to Keep Your ‘Home Team’ Advantage in Litigation
Walter Haverfield
March 20, 2010
Byandnbsp;Mark S. Fuscoandnbsp;andandnbsp;Sara R. Cooper
Unfortunately, all other options have failed and your company is forced to file suit against an out-of-state vendor or customer. For a variety of reasons – not the least of which is cost – you would like to keep this lawsuit in state court rather than federal court. In fact, you have added a ‘forum selection clause’ to all of your contracts with vendors and customers requiring all disputes to be resolved in the county where your company is located, in accordance with Ohio law. Unfortunately, despite this seemingly clear provision, your lawsuit has been removed to federal court anyway and your ‘home team’ advantage wiped away.Why?
While Ohio law permits your company to specify where you want disputes to be heard, Federal law allows defendants to remove a lawsuit to federal court if the case was filed in a state court other than their home state and the amount at issue is more than $75,000. Defendants may waive their right to remove a case to federal court, but the waiver must be ‘clear and unequivocal.’ Unfortunately, this means that the forum selection clause you drafted may not be enough to keep your case from being removed to federal court.andnbsp;How clear does my company have to be?
The Sixth Circuit Court of Appeals has determined that a defendant has not ‘clearly and unequivocally’ waived the right to remove the case to a federal court if the language in a forum selection clause such as that noted above does not (a) mention the possibility of the case being removed to federal court or (b) specifically say that the defendant can remove the case to federal court in certain situations unless this right is waived, and require a waiver of this right. Ohio businesses relying on forum selection clauses that do not expressly mention this right and require a waiver may find themselves in federal court even though their contracts specify that disputes must be settled in state courts.andnbsp;So, what can my company do?
Review your contacts and agreements with out-of-state vendors or customers if you would like to keep your ‘home field’ advantage and make sure you are not subjecting your business to litigation in federal court.
Walter | Haverfield attorneys regularly assist businesses in reviewing their day-to-day corporate documents to make sure these documents are meeting the needs and expectations of the business. For more information on this or other business litigation issues, please contact the Walter | Haverfield attorney with whom you regularly work, or any of the attorneys in theandnbsp;Business Litigation Groupandnbsp;in our office.