Robison, Curphey & O'Connell Feed Nov 2019firmwise Law Sponsors Memory Matters Symposium Nov 2019News<p>On Wednesday, November 20, RCO Law will be co-sponsoring <i>Memory Matters Symposium</i>, an educational conference for health care workers and families designed to address learning, loving and living with memory loss. Event sponsors include StoryPoint, Waterville, and St. Luke&rsquo;s Hospital.&nbsp; This conference will be held in the St. Luke&rsquo;s Auditorium, 5901 Monclova Rd., Maumee, &nbsp;from 9 a.m. to 3 p.m. Registration begins at 8:15 a.m., with a complimentary lunch at 12:15.</p> <p>Nationally-recognized expert, Beth A.D. Nolan, Ph.D., Director of Research and Policy for Positive Approach to Care (PAC), a dementia care training and product company, is the keynote speaker.&nbsp; Dr. Nolan has served as Assistant Professor and Senior Associate Director for the Evaluation Institute at the University of Pittsburgh Graduate School of Public Health.&nbsp; Her years of experience includes educating caregivers on best practices for providing support to those with dementia.</p> <p>To learn more and to register, go to: <a href="" target="_blank"></a></p> Law Sponsors Charity Bed Build in Waterville Nov 2019News<p>RCO Attorney Paul Croy joined with approximately 60 volunteers from the Waterville community on Saturday, November 9, to build 30 beds for children who do not own beds. J&amp;R Contracting hosted the event. RCO Law provided the lunch for volunteers.</p> <p>The event was co-sponsored by the Waterville Community Foundation and the Ohio Maumee Valley Chapter of Sleep in Heavenly Peace, a national organization founded in 2012 to deliver beds to provide the physical, emotional, and mental support that a child needs. Every night children in northwest Ohio sleep on floors and couches, or with another family members rather than in a bed of their own. The Waterville Community Foundation purchased materials for the build and recruited volunteers for this community initiative.</p> <p><img src="" hspace="0" vspace="0" align="absmiddle" alt="" border="0" width="437" height="291" /><br /> Attorney Paul Croy (right) works on a bed frame with Bill Wilson, Express Transmission, at the Charity Bed Build for local children on November 9&nbsp; (Photo by <i>The Mirror Newspaper</i>)</p> Jean Sieler Profiled in UT College of Law Newsletter Nov 2019News<p>The University of Toledo College of Law features RCO Attorney Jean Sieler in its quarterly newsletter published today.</p> <p>Jean is a 1986 graduate of the College of Law and has been associated with RCO Law for 33 years focusing her practice on construction law, medical malpractice defense, commercial litigation, and agribusiness in Ohio and Michigan.</p> <p>According to Jean, a Michigan native, she is passionate about persuasive writing and trial practice at RCO Law.</p> <p>&ldquo;I also support our family's construction company. At home, I am passionate about family and my grandsons. I have long been involved with Blissfield Rotary and their projects. If I get involved with something, I usually jump in with both feet,&rdquo; she said.</p> <p>&ldquo;I have loved being an attorney for the past 33 years. It is a great career with so many opportunities. I have always believed that you can have a great job and a great family life as an attorney.&rdquo;</p> <p>To read more:&nbsp;;</p> Co-Sponsors Surviving Family Business Transition Inside, Outside or ESOP Oct 2019News<p>RCO Law is a co-sponsor of a seminar for family businesses on &ldquo;Surviving Family Business Transition Inside, Outside or ESOP&rdquo; on Wednesday, November 20, from 4 to 7 p.m. at the Catawba Island Club, 4235 East Beach Club Road, Port Clinton. This complimentary seminar will focus on future strategies for selling the business or keeping it in the family.&nbsp; The seminar is designed to assist business owners with making decisions that are in the best interest of the family and the business. Co-Sponsors include Huntington Bank and Ownership Advisors, Cleveland.</p> <p>Presentations will include Kevin Ward, Senior Vice President of Commercial Banking, Huntington Bank; Richard Tanner, President, Ownership Advisors, Cleveland; and Paul Croy, Attorney, RCO Law.&nbsp;</p> <p>A panel discussion will feature Tom Kern, Chairman, Style Crest Inc., Fremont; and Kevin Leininger, President, Ohio &amp; Michigan Paper Company, Perrysburg.</p> <p>Reservations can be made by calling 419-418-6941, or <a href=""></a>. Reservation deadline is Friday, November 15.</p> Bill Beach and Amy Luck to Address Employers' Association on the New Overtime Rule Oct 2019News<p>RCO Attorneys Bill Beach and Amy Luck will be presenting <b><i>The New Overtime Rule: What Employers Need to Know</i></b> at The Employers&rsquo; Association meeting on Tuesday, October 29, from 8:30 to 10 a.m. at the Hilton Garden Inn, Levis Commons.&nbsp; The U.S. Department of Labor, Wage and Hour Division&rsquo;s Final Rule updates earnings thresholds necessary to exempt executive, administrative, and professional employees from the Fair Labor Standards Act&rsquo;s minimum wage and overtime pay requirements. The meeting is open to EA members and nonmembers.</p> <p>The New Overtime Rule was announced on September 24, 2019, and becomes effective on January 1, 2020.&nbsp; It will increase the currently enforced salary threshold of $23,660 to $35,568. &nbsp;Among other things, the Final Rule will allow employers to count a portion of certain bonuses and commissions towards meeting the salary thresholds.</p> <p>The presentation will include:&nbsp;</p> <ul type="disc"> <li>How to handle the new salary threshold for the FLSA overtime exemption;</li> <li>A review to see if employees are classified correctly; and</li> <li>How to factor in annual bonuses and incentive payments toward salary thresholds.</li> </ul> <p>To register for the EA seminar, please go to: <a href="" target="_blank"></a></p> Luck to Moderate Toledo Women's Bar Association Discussion on Immigration Oct 2019News<p>RCO Attorney Amy J. Luck will be moderating an upcoming TWBA presentation on &ldquo;#TrendingImmigrationTopics: How Non-Immigration Lawyers Can Help!&rdquo; on Wednesday, October 16, from 5:30 to 7 p.m. at Poco Piatti, 329 N. Huron St., Upper Level, in Toledo. The panel discussion will feature ABLE Attorney Eugenio Mollo, Jr., and Attorneys Cheri Budzynski &nbsp;and Mechelle Zarou.&nbsp; This presentation will provide 1.5 CLE credit (approval pending).&nbsp; The cost is $50 for TWBA members; $60 for non-members; and $25 for UT Law students.&nbsp; Doors open at 5 p.m. for registration. The presentation will begin at 5:30 p.m.</p> <p>For additional information contact Amy at <a href=""></a>.</p> <p>Register online at: <a href="" target="_blank"></a></p> Croy to Moderate Candidates' Night in Waterville Oct 2019News<p>Attorney Paul E. Croy will be the moderator for Candidates&rsquo; Night on Thursday, October 10, from 7 to 9 p.m.&nbsp;at Browning Masonic Community&rsquo;s Harmony Hall, 8883 Browning Road, Waterville. The event is sponsored by the Waterville Chamber of Commerce, the Fallen Timbers Republican Club, and the Anthony Wayne Area Democratic Club.</p> <p>Participants include candidates for the Anthony Wayne Board of Education; the Monclova Township Board of Trustees; Waterville City Council; and the Waterville Township Board of Trustees.&nbsp;Each candidate will have two minutes to present their ideas in opening statements followed by a question and answer period.</p> <p>For additional information: <a href="" target="_blank"></a></p> Department of Labor Announces New Overtime Final Rule Sep 2019News<p>On September 24, 2019, the U.S. Department of Labor, Wage and Hour Division announced its Final Rule to update the earnings thresholds necessary to exempt executive, administrative, and professional employees from the Fair Labor Standards Act&rsquo;s minimum wage and overtime pay requirements. This Final Rule, known as the &ldquo;overtime rule&rdquo; or &ldquo;salary threshold,&rdquo; strikes a balance, increasing the currently enforced annual salary threshold of $23,660 to $35,568. Among other things the Final Rule will also allow employers to count a portion of certain bonuses and commissions towards meeting the salary threshold. The Final Rule becomes effective on January 1, 2020.&nbsp;</p> <p>For additional information, planning assistance or implementation questions, please contact Attorney <a href="/?t=3&amp;A=7128&amp;format=xml&amp;p=6664">Bill Beach</a> or Attorney <a href="/?t=3&amp;A=13853&amp;format=xml&amp;p=6664">Amy Luck</a>.</p> <p><a href="/7599B1/assets/files/Documents/U.S._Department_of_Labor_FACT_SHEET_September_24_2019.pdf" target="_blank"><strong>Here</strong></a> is the <strong>U.S. Department of Labor Fact Sheet</strong>.</p> a Consignor's Priority Interest in Consigned Goods Sep 2019News<p>In a recent decision the U.S. Court of Appeals for the Ninth Circuit addressed the intersection of consignment and bankruptcy. Debtor was a seller of petroleum products. IPC provided debtor with bulk petroleum products on consignment. Because a consignor retains title to the consigned goods until they are sold by the consignee, like many consignors IPC did not bother to file a financing statement to perfect its interest in the consigned goods. As a result, since under Uniform Commercial Code section 9-319 a consignee has only the same interests in consigned goods that the consignor has, and because IPC did not perfect its interest in the consigned fuel, the debtor/consignee&rsquo;s interest in the fuel also was unperfected, and the bankruptcy trustee&rsquo;s judicial lien on property of the estate trumped IPC&rsquo;s interest in the consigned products and the proceeds from the sale of those products.</p> <p>The real fight in the case was over the cash proceeds from the sale of the consigned goods that were in the possession of the debtor at the time it filed its petition. Although debtor&rsquo;s arrangement with IPC was for debtor&rsquo;s customers to pay IPC directly for petroleum they purchased from debtor, many of debtor&rsquo;s customers continued to pay it directly, and debtor would periodically transfer those payments to IPC. When debtor filed its petition, it had on hand a substantial amount of cash proceeds and accounts receivable for sales it had made to its customers out of the consigned inventory. The trustee sought to avoid all of IPC&rsquo;s interests in both the consigned inventory and the cash proceeds and accounts receivable.</p> <p>Under the UCC, as to a consignee&rsquo;s creditors, a consignee is deemed to have the same rights to consigned goods as the consignor. Since IPC had not perfected its interest in the consigned goods, it conceded that the trustee&rsquo;s lien had priority over IPC&rsquo;s interest in the consigned goods, but it vigorously challenged the trustee&rsquo;s rights as to the cash proceeds and accounts receivable. IPC argued that 9-319 applies only to goods, and cash and A/Rs are not goods. IPC lost at the Bankruptcy Court and the Bankruptcy Appellate Panel, and the Ninth Circuit affirmed. The court closely examined the UCC&rsquo;s treatment of consignments and held that the term &ldquo;goods&rdquo; in 9-319 includes the proceeds of those goods. It also looked at the policy behind 9-319 &ndash; primarily to deny priority to secret liens &ndash; and determined that cleaving the proceeds of sales of consigned goods from the goods would defeat the goal of protecting subsequent secured parties from being primed by secret liens.</p> <p>The message here is that businesses that sell goods on consignment should not relax because they retain title to the goods until sold &ndash; consignors should perfect a security interest in both the consigned goods and the proceeds from sales of those consigned goods. Consignors also should be diligent in not letting cash proceeds accumulate with consignees. The commercial lawyers at Robison, Curphey &amp; O&rsquo;Connell are well equipped to assist clients in protecting their interests in consigned goods.</p> Manufacturer's Post Sale Duty to Warn - An Update Aug 2019News<p><sup><a href="#fn1">1</a></sup>In 2008, RCO Law (Robison, Curphey &amp; O&rsquo;Connell) published a state-by-state analysis addressing whether states had either (i) adopted the Restatement (Third) of Torts: Products Liability &sect;10 (1998), which imposes a duty on manufacturers under certain circumstances to warn consumers of potential dangers associated with products after the products have been sold, or (ii) imposed that duty on manufacturers through case law without specifically adopting the Restatement. That article was updated in 2013. This memorandum is a further update.</p> <p>Since the 2013 update there have been developments in the law in this area in three states &ndash; Minnesota formally adopted the Restatement (Third), and Illinois and South Carolina adopted the duty to warn about latent defects.</p> <p>It is common knowledge that manufacturers have certain duties to consumers who purchase their products as well as, in certain circumstances, members of the general public who may be affected by those products. The duties traditionally have included such common sense requirements as avoiding designing or manufacturing products negligently or in a way that is likely to lead to an injury. An enormous body of law surrounding product liability has developed to implement these requirements.</p> <p>Throughout the development of the common law, the manufacturer&rsquo;s duties typically ended when the product was sold to the consumer or distributor.&nbsp;In other words, while a manufacturer could be held liable for a failure to meet its duties with respect to designing and manufacturing the products prior to the sale of the products, and a breach of those duties could lead to liability to parties injured long after the product was sold, that liability was focused solely on the manufacturer&rsquo;s actions or omissions <b>prior to the sale</b> of the products, and there were no specific actions the manufacturer was required to take (or avoid) once the sale occurred. Approximately 50 years ago, courts began to consider whether any post-sale duties also should be applied to manufacturers.&nbsp;At that time, the Second Restatement of Torts did not address any such post-sale duties.<sup><a href="#fn2">2</a></sup><span style="font-size: 8.33333px;"> </span>Despite the absence of a reference point in the Restatement, some courts began to hold that manufacturers had a post-sale duty to warn consumers in certain circumstances when the manufacturer learned <b>after the sale</b> of the product that it presented a hazard.&nbsp;By the mid-1990s, the American Law Institute determined that a sufficient number of state supreme courts had created a post-sale duty to warn that the topic should be addressed in the Third Restatement.</p> <p>Accordingly, the Restatement (Third) of Torts: Products Liability &sect;10 (1998) provides as follows:</p> <p style="margin-left: 40px;">(a) One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons or property caused by the seller's failure to provide a warning after the time of sale or distribution of a product if a reasonable person in the seller's position would provide such a warning.</p> <p style="margin-left: 40px;">(b) A reasonable person in the seller&rsquo;s position would provide a warning after the time of sale if:</p> <p style="margin-left: 80px;">(1) the seller knows or reasonably should know that the product poses a substantial risk of harm to persons or property; and<br /> (2) those to whom a warning might be provided can be identified and can reasonably be assumed to be unaware of the risk of harm; and<br /> (3) a warning can be effectively communicated to and acted on by those to whom a warning might be provided; and<br /> (4) the risk of harm is sufficiently great to justify the burden of providing a warning.</p> <p>When will this provision apply? It will apply to all products sold by a manufacturer as to which the manufacturer learns of a defect or hazard in one of its products after some or all of that model or type of products have been sold, the end users can be identified and communicated with, and the risk of injury or death resulting from the hazard is greater than the burden of providing the notice to the end users. In some cases, depending on the manufacturer&rsquo;s distribution system, the notice/warning will be sent through independent distributors who in turn will have to notify their customers. In other cases, the manufacturer will have information on the end users from, for example, returned warranty registration cards, and will provide the notice directly. The Third Restatement provision offers no guidance on the specific type of notice that would be required.</p> <p>Note that this provision requires only a warning to consumers, not a recall. In fact, &sect;11 of the Third Restatement makes it clear that a manufacturer is not liable for a failure to recall products unless a recall is required by a statute or regulation or unless the manufacturer voluntarily initiates a recall but implements it negligently. Accordingly, the following materials focus exclusively on the post-sale duty to warn that was recognized for the first time in the Third Restatement in 1998.</p> <p>We believe that it is useful for our clients to have current knowledge about what states have adopted the post-sale duty to warn provisions of the Third Restatement, and more generally what the status of the post-sale duty to warn is throughout the country, including in states that have implemented the concept through a statute or through common law even if the Third Restatement provision was not formally adopted. As the summary at the beginning the materials reveals, only three states have formally adopted Section 10 of the Third Restatement. Many other states, however, have adopted some form of the post-sale duty to warn concept.&nbsp;</p> <p>We believe that information about the marketplace and the manufacturers&rsquo; duties in that marketplace is important to our clients in assessing both their responsibilities and their potential costs of producing the goods. Since the American tort system is largely one of state law, we believe that this state-by-state survey of where and when a post-sale duty to warn exists will assist our clients in determining what aspects of this legal concept will be applicable to them in each state where they sell their products. Since a slight majority of the states impose some form of post-sale duty to warn on manufacturers, manufacturers with a national distribution of goods should factor in this duty generally whenever they learn of a potential hazard in a product. Manufacturers with a less than national scope of sales will want to carefully calibrate their obligations in light of the status of this duty in the states where there products are sold.</p> <p>We have prepared the following summary depicting the status of the post-sale duty to warn in each state.&nbsp;We also have prepared a detailed explanation of the status of this legal concept in each state, including citations to the leading cases.&nbsp;&nbsp; Please contact a member of the Manufacturing Practice Group at RCO Law to request a copy of the complete report or to discuss any particular situation or a planning process for identifying and managing the post-sale duty to warn.</p> <p align="center"><b>Adopted Restatement 3d &sect; 10</b></p> <p align="center">Alaska Iowa Massachusetts Minnesota</p> <p align="center"><b>Limited Post-Sale Duty to Warn </b><br /> <b>(only for latent defects)</b></p> <p>Arizona<br /> Colorado<br /> Hawaii<br /> Illinois<br /> Kansas<br /> Michigan<br /> New Mexico<br /> Pennsylvania<br /> South Carolina</p> <p align="center"><b>Post-Sale Duty to Warn </b><br /> <b>(not expressly limited to latent defects)</b></p> <p>Connecticut<br /> Georgia<br /> Louisiana<br /> Maryland<br /> New Jersey<br /> New York<br /> North Carolina<br /> North Dakota<br /> Ohio<br /> South Dakota<br /> Washington<br /> Wisconsin</p> <p align="center"><b>Split/Uncertain</b></p> <p>Kentucky<br /> Nevada<br /> Virginia</p> <p align="center"><b>Adoption of Duty Predicted by Federal Court</b></p> <p>New Hampshire<br /> Utah<br /> Virginia</p> <p align="center"><b>No Post-Sale Duty </b><br /> <b>(either expressly or no case law support for such duty)</b></p> <p>&nbsp;</p> <table width="100%" border="0" cellpadding="1" cellspacing="1"> <tbody> <tr> <td>Alabama</td> <td>Arkansas</td> <td>&nbsp;</td> </tr> <tr> <td>California</td> <td>Delaware</td> <td>Florida</td> </tr> <tr> <td>Idaho</td> <td>Missouri</td> <td>Indiana</td> </tr> <tr> <td>Mississippi</td> <td>Oklahoma</td> <td>Montana</td> </tr> <tr> <td>Nebraska</td> <td>Rhode Island</td> <td>Utah</td> </tr> <tr> <td>Oregon</td> <td>Texas (exceptions)</td> <td>Wyoming</td> </tr> <tr> <td>Tennessee</td> <td>West Virginia</td> <td>&nbsp;</td> </tr> <tr> <td>Vermont</td> <td>&nbsp;</td> <td>&nbsp;</td> </tr> </tbody> </table> <br /> <br /> <p><sup><a name="fn1">1</a></sup>This material was compiled for the Manufacturing Practice Group of RCO Law (Robison, Curphey &amp; O'Connell) by Zack Lemon, with limited direction from David Arnold.&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;</p> <p><sup><a name="fn2">2</a></sup>Restatements of the law are compilations of general and generally applicable statements of law in different areas published by the American Law Institute. The Restatements are not binding but are very influential in the evolutionary progression of the law.</p>