Robison, Curphey & O'Connell Feed Dec 2017firmwise on E-Discovery and Related Federal Rules Dec 2017News<p>Attorney Bob Tucker gave a presentation on Federal Civil and Local Rules and Default E-Discovery Standards as part of the Toledo Bar Association&rsquo;s E-Discovery Primer seminar.</p> Agreements: The Basics Dec 2017News<p>Many of our clients&rsquo; business transactions start with a Confidentiality Agreement (&ldquo;CDA&rdquo;) or Non-disclosure Agreement (&ldquo;NDA&rdquo;), which for purposes of this article reference exactly the same thing. The primary purpose of these agreements is to establish the rules governing the treatment of either or both parties&rsquo; confidential information.</p> <p><i>What is a Confidentiality Agreement?</i>&nbsp; A Confidentiality Agreement is a binding contract between two or more parties setting forth legally binding rules governing how a receiving party must treat a disclosing party&rsquo;s Confidential Information.&nbsp; There are two basic types of Confidentiality Agreements:</p> <ul> <li>&ldquo;One-way&rdquo; or &ldquo;Unilateral&rdquo; agreements where only one party is disclosing Confidential Information, or</li> <li>&ldquo;Bilateral&rdquo; or &ldquo;Mutual&rdquo; agreements where all parties are disclosers and receivers of Confidential Information.</li> </ul> <p>Generally, the disclosing party is under no obligation to disclose any confidential information to the receiving party and normally limits disclosure to only that confidential information necessary to further the purpose of such disclosure (i.e., the stated purpose/project).&nbsp; The receiving party&rsquo;s obligations are (1) <b><i>not to disclose</i></b> the confidential except as expressly permitted by the Confidentiality Agreement, and (2) <b><i>not to use</i></b> the confidential information except for the express purpose stated in the Confidentiality Agreement.</p> <p><i>Why do we use Confidentiality Agreements?</i>&nbsp; As a valuable asset of the disclosing party, the disclosing party has a vested interest in protecting its intellectual property, trade secrets, and other strategic non-public information.&nbsp; Without the protection of a Confidentiality Agreement, merely discussing the disclosing party&rsquo;s intellectual property, trade secrets, and other strategic non-public information is tantamount to giving it away.&nbsp; Once made public or otherwise disclosed, in any form or medium, a party owning intellectual property, trade secrets, and other strategic non-public information loses its protection and the right to exclude others from using such information. Thus, Confidentiality Agreements are used to protect the disclosing party&rsquo;s intellectual property, trade secrets, and other strategic non-public information so as to allow the free flow of information between the parties and facilitate work on a mutually beneficial goal or project.</p> <p>In summary, if you are going to conduct any sort of discussions with a third party which <b><i>might</i> </b>involve or require your disclosing any type of confidential information, you should have a Confidentiality Agreement in place <b><i>prior</i></b> to commencing any such discussions.</p> Welcomes Guests to the Steam Plant Nov 2017News<p>Attorneys Amy Luck, Kayla Henderson, and Chad Thompson attended a networking and happy hour hosted by ProMedica in the newly renovated Steam Plant in Downtown Toledo. CEO Randy Oostra spoke about upcoming projects and guests were able to take a behind-the-scenes tour of the building.</p> <p><img src="" hspace="0" vspace="0" align="absmiddle" alt="" border="0" width="435" height="580" /></p> <p><img src="" hspace="0" vspace="0" align="absmiddle" alt="" border="0" width="435" height="326" /></p> Sets New Annual Gift Exclusion Amount Nov 2017News<p>On October 19, 2017, the Internal Revenue Service issued Revenue Procedure 2017-58 setting the 2018 inflation adjusted amounts for various tax provisions. This included an increase to $15,000.00 in the annual exclusion amount for gifts. The annual gift exclusion has been set at $14,000.00 since 2013.</p> <p>Annual exclusion gifts are the amount a person can give away to one person in one year without having to report the gift to the IRS. If more than the annual exclusion is given to one person in one year, the gift must be reported by filing a gift tax return. However, a gift tax is only paid if the individual making the gift has exceeded the basic exclusion amount for gift and estate tax purposes. The basic exclusion amount for 2018 will be $5,600,000.00.</p> <p>Planning with annual exclusion gifts can be an effective way to reduce potential estate tax liability. To learn more about this kind of planning, contact one of the Wealth Preservation professionals at RCO Law.</p>…Knowing the Difference: Deductible vs Tipping Nov 2017News<p>Indemnification Baskets in Acquisition Transactions</p> <p>Some of the most critical aspects of any acquisition transaction are the indemnification provisions. However, it is an aspect of the transaction that is often overlooked by clients.&nbsp; Buyers often conduct exhaustive due diligence on numerous aspects of the seller&rsquo;s business, but that does not guarantee that there are not any unknown liabilities lurking about or events that have happened prior to closing that will cause problems that do not arise until after closing.&nbsp; Indemnification provisions serve to allocate the risks of known and unknown liabilities between the buyer and the seller.</p> <p>Generally, seller and buyer agree to indemnify each other for breaches of representations and warranties.&nbsp; Many times, the seller will also indemnify the buyer for certain claims arising after the closing, but which occurred before the closing.&nbsp; Sellers seek to walk away from closing without any continuing responsibility for a business it no longer operates.&nbsp; Buyers want protection from any possible losses or damages that are related to the business before they took over operations.</p> <p>In many instances, the seller does not wish to deal with indemnifying the buyer for small or insignificant amounts.&nbsp; In those cases, the parties will often negotiate and implement what is known as a basket.&nbsp; A basket provides that the seller&rsquo;s indemnity obligations do not begin until damages or losses reach a certain dollar amount.&nbsp; There are two distinct types of baskets: the deductible basket and the tipping basket.</p> <p>With a deductible basket, the buyer can only recover those losses or damages that are in excess of the agreed upon basket amount.&nbsp; For example, if the parties agree upon a deductible basket amount of $100,000, the seller only has to indemnify the buyer for losses or damages that exceed $100,000.&nbsp; The buyer is responsible for the first $100,000 of losses or damages.</p> <p>With a tipping basket, once losses or damages exceed the agreed upon basket amount, the buyer is indemnified for the full amount of the losses and damages.&nbsp; So if the parties agree upon a tipping basket amount of $100,000, once the losses or damages exceed $100,000 the buyer can recover the full amount of such losses, not just those in excess of $100,000.&nbsp;</p> <p>As you would expect, sellers like to have a very large basket while buyers often want a very small basket. However, in many cases, during the early stages of the deal neither party is thinking about the indemnification provisions.&nbsp; It&rsquo;s only after counsel has had the opportunity to discuss how important and impactful these provisions can be that clients take an interest in the indemnification provisions.&nbsp; Baskets are only a small part of what will need to be negotiated when it comes to indemnity obligations.&nbsp; Survival periods, caps, and exceptions, are just a few other aspects of the indemnification provisions that parties should consider when buying or selling a business.</p> Mike Olsaver talks “BIG SIX” Oct 2017News<p>Mike Olsaver presented to NWO AFP(Association of Fundraising Professionals)/TAPPP annual meeting on the proposed &ldquo;Big Six&rdquo; tax reform plan. Mike discussed how charitable organizations may be impacted by the proposals and what opportunities tax reform may present. Mike also discussed what tax exempt organizations may and may not do to advocate for their causes in the political arena.</p> <p><img src="" hspace="0" vspace="0" align="absmiddle" alt="" border="0" width="435" height="580" /></p> defense of legal malpractice action against criminal defense lawyer Oct 2017Case<p><strong>Issue</strong></p> <p>Our client, a lawyer, was sued for legal malpractice by her former client, whom she represented in a criminal case. The plaintiff was convicted and sentenced to prison in the underlying criminal case.&nbsp; Plaintiff&rsquo;s claims relied entirely on protestations of his actual innocence of the underlying crime.</p> <p><strong>Approach</strong></p> <p>We filed a Motion for Summary Judgment because Plaintiff was collaterally estopped from asserting in a legal malpractice case that he is actually innocent of the criminal charges for which he was convicted.&nbsp; As a result, we argued that a claim for legal malpractice that relies on the allegation of actual innocence fails as a matter of law.</p> <p><strong>Result</strong></p> <p>The Court granted our Motion for Summary Judgment and dismissed the claims against our client with prejudice.</p> rebuttal of medical malpractice plaintiff’s specious negligence per se claim Oct 2017Case<p><strong>Issue</strong></p> <p>A plaintiff originally hurt himself by putting his arm through a window and cutting his arm on the broken glass. He then went to the emergency room for treatment.&nbsp; He claimed that the emergency room physician committed medical malpractice by failing to remove all of the glass from his wound, and sued our clients, the emergency room physician and hospital.</p> <p><strong>Approach</strong></p> <p>We filed a motion to dismiss Plaintiff&rsquo;s complaint because Plaintiff did not attach an affidavit of merit to the Complaint.&nbsp; Plaintiff argued that he did not need to attach an Affidavit of Merit because this was a case was a foreign objects case or a negligence <i>per se</i> case.&nbsp; We responded to this argument distinguishing the fact pattern from true foreign objects cases where a surgical implement is left within a patient.&nbsp;</p> <p><strong>Result:</strong></p> <p>The Court agreed with us that Plaintiff needed an affidavit of merit, and allowed Plaintiff 90 days in which to file such an affidavit of merit, otherwise the Complaint would be dismissed without prejudice.&nbsp; Rather than obtaining an affidavit of merit, Plaintiff dismissed his case instead.</p> pursuit of contribution for adulterated animal feed from toll miller Oct 2017Case<p><strong>Issue</strong></p> <p>Our clients, an animal feed company and its insurer, were faced with over two dozen complaints from ranchers that feed sold to them by the animal feed company was rancid and damaging their animals. The ranchers&rsquo; potential claims against the animal feed company were a threat of significant exposure.&nbsp;</p> <p><strong>Approach</strong></p> <p>Working with the animal feed company and its insurer, we managed the settlement of almost all of the ranchers&rsquo; claims.&nbsp; We then filed suit in federal court against the animal feed company&rsquo;s toll miller, whom our clients believed caused the feed to be rancid in the milling process.&nbsp; This lawsuit lasted over four years and involved extensive discovery, including discovery into each of the over two dozen ranchers&rsquo; animal husbandry practices and experience with the bad feed.&nbsp; These ranchers were located across ten states and a Canadian province.</p> <p><strong>Result</strong></p> <p>Two months before trial, and in the midst of obtaining trial depositions from all of the ranchers, we were able to reach a negotiated settlement satisfactory to our clients.</p> S. Wiley and Chad M. Thompson Present to the Society of Ohio Healthcare Attorneys’ Fall Conference in Columbus, Ohio Sep 2017News<p>RCO Law Attorneys Julia S. Wiley and Chad M. Thompson presented to the Fall Conference of the Society of Ohio Healthcare Attorneys (&ldquo;SOHA&rdquo;) in Columbus, Ohio on September 29, 2017. In attendance were members of SOHA, the Ohio Hospital Association (&ldquo;OHA&rdquo;), and the Ohio Society of Hospital Risk Managers (&ldquo;OSHRM&rdquo;).</p> <p>Attorneys Wiley and Thompson spoke to the gathering about the &ldquo;physician-patient termination rule,&rdquo; its impact on Ohio&rsquo;s one year statute of limitations for medical claims, and how Ohio courts are adjudicating increasing attempts to abrogate the one year limitations period through use of the &ldquo;termination rule.&rdquo;</p> <p>Julia S. Wiley and Chad M. Thompson are Attorneys in RCO Law&rsquo;s litigation practice group, where they represent clients in state and federal courts throughout the region.</p>