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Author Archives: Todd McMurtry

Can You Bring a Legal Malpractice Suit Even if Your Case Settled?

Author By Todd McMurtryPosted on

Legal malpractice is generally defined as failing to adhere to the professional duty of care that an attorney owes to clients. Usually, a malpractice claim is lodged after the client received a disappointing result in an underlying court case. But does the client have the right to sue if the case below settled?

The short answer is yes. You can sue for malpractice even if your underlying case never saw the inside of a courtroom. However, proving malpractice in a settlement scenario presents unique challenges. Courts generally presume that settlements are entered into voluntarily, which can make it difficult to argue that the settlement was the result of attorney negligence or misconduct.

The attorney’s duty of care requires him or her to act with the diligence and promptness expected of an attorney of similar ability and training under the circumstances. This includes adequately preparing for and researching the case, effectively communicating with the client and acting in the client’s best interest at all times. When the attorney fails to adhere to this duty in any respect, it could lead to an unfair or inadequate settlement

Here are specific types of conduct that can justify a legal malpractice claim:

  • Misrepresentation or fraud — If an attorney misleads a client about the strength of their case or pressures them into settling under false pretenses, this could constitute malpractice. For example, if an attorney assures the client that their case is weak when it is not, to coerce them into accepting a low settlement offer.
  • Failure to investigate or prepare — An attorney’s failure to properly research or prepare a case can leave the client in a weaker bargaining position and lead to a less favorable settlement. This might include failing to gather key evidence or neglecting to consult with necessary experts.
  • Conflict of interest — If an attorney has a personal or financial interest that conflicts with the client’s interest, such as a desire to settle quickly to move on to other cases or personal relationships with the opposing party, this could compromise the attorney’s ability to advocate effectively for the client.
  • Failure to communicate — Attorneys must keep their clients informed about significant developments in their case, including settlement offers. Failure to communicate such offers, or to adequately explain the implications of accepting or rejecting them, can be grounds for a malpractice claim.
  • Failure to negotiate effectively — If an attorney accepts an unreasonably low settlement without attempting to negotiate more favorable terms, this might also be seen as a breach of their duty of care.

To succeed in a legal malpractice lawsuit based on a settlement, the client must prove that but for the attorney’s negligence, a better settlement or verdict would have been likely. This often requires expert testimony from other legal professionals who can attest to the average recoveries for similar cases in the same geographic area. Since settlements are typically confidential, comparing the settlement to verdict sizes in similar cases can be a useful way to gauge whether the attorney made a substandard effort. A professional malpractice attorney can build the strongest case possible in this regard.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

 

The Most Frequent Causes of Business Litigation

Author By Todd McMurtryPosted on

As a business owner or operator, protecting your company’s interests requires understanding how to avoid and cope with problems that can end up in litigation. Disputes related to business operations, transactions, and partnerships can escalate quickly if not addressed proactively. 

Here is a summary of some of the most common causes of commercial litigation:

  • Breach of contract — When a party fails to meet their contractual commitments, such as by non-delivery of goods, late payments or substandard performance, it can disrupt your business immediately and in a longer term. Litigation may be needed to redress the issue. Business owner can mitigate these risks by ensuring that contracts are clear, detailed and enforceable.
  • Intellectual property infringement — Your intellectual property (IP) is one of your business’s most valuable assets. Protecting your IP through proper registration and vigilant monitoring can safeguard your competitive edge in the market. However, litigation may be needed if you believe another entity has infringed upon your patents, trademarks, copyrights or trade secrets. 
  • Negligence and business torts — Negligence and other tort claims may arise when another party’s careless actions cause harm to your business or its assets. These can include defamation, interference with contractual relationships or failure to exercise reasonable care in shipping. Such cases often require comprehensive evidence to establish fault and quantify damages.
  • Trade issues and disputes — Operating in a global marketplace exposes your business to complex trade disputes, including conflicts over international trade agreements, import/export regulations, and compliance with trade laws. Navigating these issues requires a deep understanding of both domestic and international legal frameworks.
  • Misrepresentation and fraud — If you’ve been misled by false information or intentional deception in a business transaction, you may have grounds for a fraud claim. Misrepresentation can have severe financial repercussions, and addressing it swiftly is critical. Proving fraud involves demonstrating intent, false representation, reliance, and damages.
  • Partnership and joint venture disagreements — Business partnerships and joint ventures can be lucrative but also fraught with potential conflicts over management decisions, profit-sharing, and fiduciary responsibilities. Disputes can escalate if there are ambiguities in your partnership agreements or if parties breach their fiduciary duties. Regularly reviewing these agreements can help prevent misunderstandings.
  • Non-disclosure agreement (NDA) disputes — NDAs protect your sensitive business information. If a party breaches an NDA by improperly disclosing confidential information, it can jeopardize your competitive position. Ensuring that NDAs are comprehensive and enforceable is key to protecting your business secrets.

Since any of these outbreaks disrupting your business, it is vital to consult with a skilled business litigation attorney immediately when a dispute arises. Early intervention allows for a thorough assessment of your case, the preparation of a strong defense and the exploration of alternative dispute resolution strategies, such as mediation or arbitration, which can save your business time and resources.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

 

When Can a Company Sue Over Commercial Disparagement?

Author By Todd McMurtryPosted on

Commercial disparagement, also known as trade libel, is a cause of action by which a business can seek damages when false and damaging statements about its products, services or overall operations cause economic harm. The core elements of a claim typically include a public false statement, the presence of malice or intent to cause harm and demonstrable financial damage to the business.

Commercial disparagement can occur through written publications, spoken statements, digital communications, advertisements and even social media posts. If a competitor claims that a company’s product is defective or unsafe or alleges unethical business practices without a factual basis, these statements can damage the company’s brand and diminish customer goodwill, leading to loss of revenue. Rapid spread of information online increases the potential impact of disparaging statements.

Although commercial disparagement and business defamation have similarities, such as the underlying falsity of the statements made, there are key differences. Defamation is damage to the reputation of a company or its owners, whereas commercial disparagement is injury to the company’s economic interests. In business defamation cases, harm to reputation often presumed. In contrast, plaintiffs in commercial disparagement cases must provide concrete evidence of a direct link between the disparaging remark and the financial damage incurred.

Companies suing for commercial disparagement can seek compensatory damages, covering actual financial losses directly caused by the disparaging statements. These can include lost profits, decreased sales and harm to business relationships. In cases where malice or fraudulent intent is proven, punitive damages may also be awarded to punish the offending party and deter similar conduct in the future. Additionally, injunctive relief may be sought to prevent further dissemination of the false information.

Defendants in commercial disparagement lawsuits have several potential defenses. Truth is the most powerful defense; if the statement in question is factually accurate, it cannot be considered disparagement. Another defense is privilege, where certain communications are protected due to the context in which they are made, such as in legal proceedings or governmental reports. Additionally, the defense of opinion may apply if the statement is clearly a subjective view rather than a factual assertion. Lack of malice or intent to harm can also be a defense, asserting the statement was made negligently rather than with deliberate intent to damage the business.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

Why Company Buy-Sell Agreements Need Regular Updating

Author By Todd McMurtryPosted on

A buy-sell agreement is an essential document for any business with multiple owners. It outlines the procedures for the transfer of ownership interests in the event of specified triggering events, such as the death, disability, retirement or exit of an owner, whether voluntary or not. Keeping a buy-sell agreement up to date ensures that it reflects the current circumstances of the business, the owners’ intentions and applicable legal requirements. Neglecting to review and revise a buy-sell agreement periodically can have adverse consequences.

The components of a buy-sell agreement include:

  • The specification of triggering events, which can be an owner’s death, divorce, bankruptcy or desire to sell their shares. 
  • A valuation method stipulating how the business will be appraised, commonly by a fixed price, a formula-based approach or an independent valuation by a third party. 
  • Mechanisms for funding a buyout, which often involve life insurance policies, installment payments or financing arrangements. 
  • The process for transferring ownership interests, including timelines, required documentation and approval processes.

As a business grows and evolves, an outdated agreement might not accurately reflect the current value of the business, leading to disputes over compensation during a buyout. Additionally, changes in tax laws, business regulations and personal circumstances of the owners can render existing provisions inadequate or even legally non-compliant. This can result in costly litigation, strained relationships among stakeholders, and potential financial instability for the business.

A company should engage experienced business counsel who can tailor to buy-sell agreement to the business’s unique needs. Legal counsel can identify outdated provisions, suggest necessary modifications, and ensure that the agreement complies with current laws and best practices. The updating process should involve a comprehensive review of the existing agreement, a thorough assessment of the current business environment and consultations with all relevant stakeholders. An attorney can help address complex issues such as valuation disputes, funding challenges, and succession planning, providing strategic advice to safeguard the company’s future.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

 

Do’s and Don’ts of Business Divorce Negotiations

Author By Todd McMurtryPosted on

In a business divorce, where owners of an enterprise part ways, structuring negotiations effectively can help prevent prolonged disputes, preserve relationships and ensure a fair division of assets and responsibilities. 

Here are some do’s and don’ts of conducting business divorce negotiations, along with insights on when mediation may be beneficial.

Do’s:

  • Prioritize respectful communication — Discuss reasons for the split between owners in a dispassionate, professional manner. Respectful communication fosters trust and can prevent misunderstandings that might escalate the conflict.
  • Establish Shared Goals — Identifying the parties’ intentions can serve as a foundation for the negotiation. Whether it’s the continued success of the business or fair compensation to a departing owner, keep the focus on constructive outcomes rather than on personal grievances.
  • Prepare a comprehensive agenda — Your agenda should cover and prioritize all relevant issues, including treatment of financial assets, intellectual property, customer lists, ongoing projects, liabilities and personnel. This helps guide the discussions and allows parties to gauge progress.
  • Involve legal and financial experts — Professionals can clarify complex issues, help prevent costly mistakes and provide unbiased perspectives that aid in reaching fair settlements.
  • Be open to compromise — Flexibility in negotiations can bring about a less acrimonious outcome, which is important if the parties must maintain any future business relationships.

Don’ts: 

  • Don’t let emotions speak for you — Remain calm and focused on the business aspects. Outbursts or even passive aggressiveness can throw the negotiations off course.
  • Don’t rush the process — While efficiency is important, rushing through negotiations often leads to missed details or unresolved issues. Take the necessary time to address every point thoroughly to avoid future conflicts or financial repercussions.
  • Steer clear of public disputes — Dragging the split into the public sphere can only hurt the business’s image and reputation. Try to project a message that all is well with the company.
  • Avoid taking intractable positions — Approaching negotiations with a combative mindset can derail progress. Refrain from issuing ultimatums or threats, which tend to create hostility and resistance.

If business divorce negotiations become contentious or reach an impasse, mediation provides a cooperative environment to work out solutions. The mediator, a neutral third party, can guide discussions, defuse emotions and divide the dispute into smaller elements, which can help move past gridlocks. Mediation is especially beneficial when there’s a power imbalance or if one party is less experienced in business negotiations. A mediator can level the playing field and ensure that both parties feel heard and respected. 

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

 

How Business Defamation Differs From Personal Defamation

Author By Todd McMurtryPosted on

Defamation is a false statement presented as fact that injures the reputation of the person or entity about whom it is made. In a lawsuit alleging defamation of a business, the damages that need to be proved must be related to the business’s economic losses. These can consist of harmed relationships with customers, suppliers, and investors, ultimately affecting sales, profits, and overall market position. Unlike in personal defamation actions, business defamation damages are usually not presumed.

The following are types of damages that a business can prove in a defamation lawsuit:

  • Actual damages — A business can demonstrate that the defamatory statements have caused direct financial harm, such as loss of sales, customers or contracts; reduced profits; or expenses incurred in counteracting the defamatory statements. Actual damages are often the primary form of relief sought, as they represent the concrete impact on the business’s bottom line.
  • Reputational harm — In proving reputational harm, the business must show that the defamatory statement resulted in a loss of goodwill, that is, the trust and loyalty among customers that the company has built over time. This may be difficult to quantify precisely but can be inferred from other evidence, such as customer testimonials, expert testimony, or financial performance indicators.
  • Loss of business relationships — Defamation can cause a company to lose valuable relationships with suppliers, distributors or other business partners. If the defamatory statement falsely suggests that the business is unreliable or unethical, it could result in a diminution of trust and credit, which could harm the company’s operations and bottom line.
  • Punitive damages — These damages might be awarded if the business can prove that the defamation was committed with actual malice, that is, with knowledge of the falsity of the statement or with reckless disregard for the truth. Punitive damages are awarded not to compensate for harm but to punish the wrongdoer and deter similar conduct in the future.

The primary difference between defamation of a business and defamation of an individual lies in the relative availability of presumed damages. For certain types of defamation of an individual, damages for reputational harm need not be proved, such as when the defamatory statements are classified as libel per se or slander per se. Examples are false statements alleging someone committed a crime, has an infectious or contagious disease, has been engaged in sexual promiscuity or is unfitness to perform their profession. The reason for presumed damages is that an individual’s personal reputation is usually of unique importance and that defamation has a direct, immediate social impact. 

For a business, however, presumed damages are generally not awarded unless the plaintiff can show actual malice or demonstrate that the defamation was of a nature that inherently caused harm to the business’s commercial reputation. An example is where the false statements impugned the plaintiff’s trademark or brand to the point that it is irreparably weakened. Although the harm is speculative, it may warrant damages if it is reasonably quantifiable and traceable to the alleged defamation. 

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

 

Proving “the Case Within the Case” in a Legal Malpractice Action

Author By Todd McMurtryPosted on

A person or company alleging legal malpractice bears a unique burden often referred to as proving “the case within the case.” Essentially, the plaintiff must show two layers of causation: first, that the defendant attorney’s conduct fell below the standard of care, and second, that if the attorney had handled the underlying case competently, the outcome would have been more favorable. The malpractice trial must simulate or recreate the original case so that the factfinder — usually a jury — can determine the probable result if the attorney had acted appropriately.

To meet the burden of proof in a legal malpractice case, the plaintiff must present evidence that not only establishes what the attorney did wrong but also enables a jury to assess what the result would likely have been if the lawyer had handled it correctly. In a negligence case, this would involve presenting testimony and other evidence that would have been on record in the underlying trial. If it was a criminal case in which the plaintiff was convicted and/or received a heavy sentence, it would have to be shown that the outcome would have likely been an acquittal or a lesser sentence if the attorney had been more diligent.

In structuring the case within the case, a judge must apply the same procedural and evidentiary rules and jury instructions as in the original trial. The judge must make sure that the jury’s focus is on the evidence rather than on conjecture. This sometimes involves the judge giving specific instructions to clarify that the jury is not reconsidering the underlying case itself but instead determining what the outcome should have been.

The case within the case becomes more complex when the underlying case ended in a settlement rather than a trial. The plaintiff still must prove that a more favorable outcome could have been achieved. However, settlements involve numerous factors, including the strengths and weaknesses of the case, the risks of litigation and the plaintiff’s own preference for certainty over potential future gains. In these instances, the jury does not evaluate what a judge or jury would have decided in the original case but instead assesses whether the plaintiff could have obtained a better settlement if the attorney had handled the matter more competently.

If the matter was settled, the court may rely more on expert testimony to help the jury understand how settlements are evaluated, particularly if they involve specialized fields like corporate law, intellectual property or personal injury. Experts can provide insight into typical settlement values and how specific errors by the attorney — such as failing to pursue certain claims or neglecting evidence that would have strengthened the plaintiff’s position — may have impacted the settlement. Additionally, the judge may instruct the jury to consider how the attorney’s actions influenced the plaintiff’s decision to settle, such as if the attorney failed to fully advise the client of the risks or potential outcomes of going to trial.

A person bringing such a lawsuit should entrust the matter to a professional malpractice attorney who understands the underlying case and can vividly show how the defendant’s conduct fell short of the applicable standards of care.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

A Guide to Effective Preparation for Commercial Litigation

Author By Todd McMurtryPosted on

Even the most well-run companies can become involved in disputes that end up in court. These disputes can arise in a variety of situations and can impact a business’s operations, finances, and reputation. Examples of common commercial disputes include breaches of contract, intellectual property disputes, employment issues and regulatory compliance matters. 

Whether your company finds itself as a plaintiff or defendant, careful and thorough preparation is crucial to the outcome. To prepare for impending commercial litigation, the following are among the essential steps to follow:

  • Assess the situation — Understanding the nature of the dispute is vital. Determine the facts and legal issues involved, identify the parties and assess the potential risks and impacts on the business. This initial assessment will help in formulating a response and determining whether to pursue litigation, seek a settlement or explore alternative dispute resolution methods.
  • Gather and preserve evidence — Companies should assemble and organize all relevant documents, emails, contracts and other records related to the dispute. It is equally important to preserve this evidence to prevent loss or destruction, which could lead to adverse inferences in court. Implementing a legal hold on relevant data can be an effective way to ensure preservation.
  • Review insurance policies and notify carriers — Review any relevant insurance policies to determine if they provide coverage for the dispute. This could include comprehensive general liability (CGL) insurance, directors and officers (D&O) insurance, or errors and omissions (E&O) insurance. Understanding coverage options can help in planning for legal costs and potential liabilities. It is also important to notify your insurance carriers that coverage claims may ensue. 
  • Consult with legal counsel — Engaging a skilled business litigation attorney early in the process is essential. An attorney can provide guidance on the legal issues, help develop a strategy and represent the company’s interests. Legal counsel can also assist in navigating complex legal procedures and negotiating with the opposing party.
  • Develop a litigation strategy — Based on the initial assessment and consultation with legal counsel, develop a comprehensive litigation strategy outlining the desired outcomes, key arguments and mitigation of potential risks. 
  • Identify and interview witnesses — Identify witnesses who can provide testimony or evidence in support of the company’s position. Interview these witnesses to understand their perspectives and gather detailed information. Witness testimony can significantly impact the outcome of the case.
  • Manage public relations — Litigation can attract public attention and affect a company’s reputation. Develop a public relations strategy to manage communication with the media, stakeholders and the public. Clear and consistent messaging can help protect the company’s image and prevent misunderstandings.
  • Evaluate settlement options — Not all disputes need to be resolved in court. Evaluate settlement options throughout the litigation process. Settlement can be a cost-effective and time-saving alternative to a lengthy trial. 

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

Compliance With HIPAA Rules for Employee Data Security

Author By Todd McMurtryPosted on

The Health Insurance Portability and Accountability Act (HIPAA) imposes strict requirements on
employers, particularly those classified as covered entities or business associates, to protect the privacy
and security of employees’ protected health information (PHI). HIPAA mandates that these entities
implement safeguards to ensure the confidentiality, integrity, and availability of PHI, including physical,
administrative and technical measures.


Common HIPAA violations in the workplace include the following:


  1.  Unauthorized access and disclosure — Allowing unauthorized individuals to view or receive PHI,
    such as sharing health information without patient consent or displaying it publicly.
    2. Lack of safeguards — Failing to secure electronic PHI (ePHI) through encryption, proper access
    controls, or secure transmission methods.
    3. Insufficient training — Not providing adequate training for employees on HIPAA compliance,
    leading to mishandling of PHI.
    4. Inadequate data disposal — Improper disposal of records containing PHI, such as not shredding
    documents or securely erasing electronic files.
    5. Social media misuse — Sharing PHI on social media platforms without consent.


Penalties for HIPAA violations depend on the level of negligence and can range from financial fines to
criminal charges. The Department of Health and Human Services’ Office for Civil Rights (OCR) categorizes
violations into four tiers, with penalties escalating based on the level of culpability:


  1.  Tier 1 — Violations where the entity was unaware and could not have reasonably avoided the
    violation, with fines ranging from $137 to $68,928 per violation.
    2. Tier 2 — Violations due to reasonable cause, but not willful neglect, with fines from $1,379 to
    $68,928 per violation.
    3. Tier 3 — Willful neglect violations corrected within 30 days, with fines starting at $13,785.
    4. Tier 4 — Willful neglect violations not corrected within 30 days, with penalties up to $2,067,813
    annually.


An employment law attorney experienced with HIPAA compliance can advise companies on how to
avoid significant penalties by taking positive actions, such as the following:


  1.  Implement comprehensive training programs — Regular training for all employees on HIPAA
    regulations and the proper handling of PHI.
    2. Establish robust security measures — Use encryption, access controls and secure
    communication channels to protect ePHI.
    3. Develop clear policies and procedures — Establish clear protocols for accessing, using and
    disclosing PHI, and ensure all employees understand these policies.
    4. Regular audits and risk assessments — Conduct regular audits and assessments to identify and
    address potential vulnerabilities in PHI protection.


In the event of a breach, companies must act swiftly by notifying affected individuals and the OCR,
conducting a thorough investigation and implementing corrective actions to prevent future incidents.


About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

 

How Businesses Can Deal With the FTC Ban on Noncompetes

Author By Todd McMurtryPosted on

A recent action by the Federal Trade Commission (FTC) purports to make illegal any contract whereby an
employee agrees not to enter into competition with the employer during or after the employment
period. Noncompete agreements typically restrict the employee from joining a competing firm, starting
a competing business or sharing proprietary information within a certain geographic area and for a
specified time period.


The FTC rule announced in April 2024 bans most noncompete agreements in employment contracts
across the United States. This rule aims to eliminate barriers to worker mobility, enhance competition,
and promote innovation by preventing employers from limiting employees’ future employment
opportunities. The regulation not only applies to future noncompete agreements but also requires the
rescission of most existing ones, compelling employers to notify workers that their noncompetes are no
longer in effect.


Before this rule, noncompete agreements were subject to state laws, which varied significantly. In
Kentucky, for instance, noncompetes were enforceable if they were reasonable in scope, duration and
geographic area. Courts would typically uphold these agreements if they were necessary to protect
legitimate business interests, such as trade secrets or goodwill. Ohio had similar requirements,
emphasizing that noncompetes must be no broader than necessary to protect the employer’s legitimate
interests, must not impose undue hardship on the employee and must not be injurious to the public.


With the FTC’s new rule, the enforceability of noncompete agreements will undergo a fundamental
shift. While the rule broadly prohibits noncompetes, it does allow for some exceptions, particularly in
the sale of a business where the restriction may be necessary to protect the value of the sold business.
However, these exceptions are narrowly defined, and the general presumption under the new rule is
against the enforceability of noncompetes. Employers in Kentucky, Ohio and other states will need to
reassess their employment agreements to ensure compliance with federal law.


In the new regulatory landscape, businesses are encouraged to explore alternative means of protecting
their interests, such as nondisclosure agreements (NDAs) and non-solicitation agreements, which are
not covered by the FTC’s ban and can still be used to prevent the misuse of confidential information and
the poaching of clients or employees. A business contracts attorney experienced with restrictive
covenants can advise you about provisions suitable for your company’s needs.


About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

 

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