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COVID-19 Crisis: Finney Law Firm and Ivy Pointe Title quickly step up to the plate

Author By Christopher P. FinneyPosted on

With the advent of the COVID-19 Crisis, Finney Law Firm and Ivy Pointe Title have quickly stepped to the plate, with technology that allows for the practice of law with appropriate social distancing, with attorneys who focus on practice areas to help their clients, and with cutting edge information on emerging programs to help businesses and individuals in need.

Technology allowing for electronic interaction

Finney Law Firm and Ivy Pointe Title  have carefully developed the tools to be prepared for a day such as this:

  • DocuSign allows for execution of documents from your computer.  By federal and state law, e-signed documents are fully enforceable as with “inked” documents. Our team is licensed and trained in DocuSign technology for all documents in which clients will allow an electronic signature.
  • Electronic notary.  Finney Law Firm and Ivy Pointe Title contracted with one of only a handful of licensed e-notaries in Ohio for exclusive provision of e-notary services. Using the platform DocVerify, we have the strongest technology to allow real estate closings and other transactions to proceed.  By Ohio law, it is permissible to have documents signed and acknowledged (notarized) without person-to-person interaction via electronic signature and electronic notary.
  • Electronic payments. We use e-billing and credit card payments (and wire transfers and EFTs) for clients who prefer this method of billing and payment.
  • Electronic discovery and electronic depositions. Your litigation does not need to stop because of the COVID-19 crisis. Most of the work pre-trial can still move forward using e-mail, Zoom.US or Microsoft Teams for depositions, and motion work that can be electronically filed with almost all Courts.
  • Work-from-Home. If you do need to visit our offices, you will find that most of our professionals are not at their desks. Rather, they are safely (for you and them) working from home with the latest technology including Microsoft Surface laptops, Microsoft Teams Video Conferencing, Microsoft Office 365 data in the cloud, so we can access your data from anywhere in the planet, but with tremendous Microsoft security technology and backups.

Practice areas to help your business

Our business lawyers are up to date and prepared to help you through the thicket of issues that arise or are heightened with the COVID-19 crisis:

Attorney Isaac T. Heintz is proficient in contract interpretation, including how to enforce or avoid obligations under a lease or other agreement. He has already written purchase agreements with COVID-19 contingencies to extend due diligence periods to the declared end of the crisis. As you might expect, Isaac has also had many clients initiate their estate planning, or finish long-delayed estate planning work.

Attorney Stephen E. Imm heads our employment law group, and is advising clients on a myriad of new COVID-19 legislation and addressing employment law claims under previously existing law and the new enactments.

Attorney Bradley M.  Gibson heads our litigation group which is dealing with a multitude of business-to-business disputes, including those arising because of the COVID-19 crisis.

Attorney Richard P. Turner runs Ivy Pointe Title and in that capacity has been using every tool at our disposal to continue to close your transactions “accurately and on time, every time.”  These include closings respecting social distancing, and we stand prepared to be one of the first agencies in Ohio to implement fully electronic closings.  We also can do drive-by closings where you come to our office and sign documents from your car, or we come to you and you can sign them on our car hood.

Attorney Christopher P. Finney heads our public interest practice, and the host of issues addressing government-to-business and government-to-individual interaction arising from the COVID-19 crisis.

CARES Act assistance for your small business

Congress just passed the CoronaVirus Aid, Relief and Economic Security Act, which includes the Paycheck Protection Program that will provide what essentially are grants to businesses with fewer than 500 employees and enhanced Economic Injury Disaster Loans (EIDL).

Attorney Rebecca L. Simpson has been counseling clients through this program, and on Thursday night she joins other presenters on a panel addressing “CARES Act, Including Paycheck Protection and Funds for Businesses.”

Conclusion

We are working furiously to meet the needs of our clients in this fast-emerging crisis. Let us know how we can help you or your small business navigate these turbulent waters to come to the other side safely and profitably.

And our hope is that each of you remain healthy throughout this pandemic.

 

 

Important News for Small Business Owners >>> Critical and significant relief is here for any business with under 500 employees

Author By Christopher P. FinneyPosted on

You will soon hear the terms SBA 7(a) program and “Payroll Protection Program” as an important and significant program to help virtually every small business in the nation.

While labeled as a “loan program,” it in fact can operate as a generous grant program for any business or non-profit under 500 employees. The “loan” is 2.5 times your monthly payroll expenses. More details are available in this article from National Law Review.

Here are the key features:

  • You apply for a “loan” through an SBA-approved lender. Here is the SBA link to Cincinnati-Area approved lenders.  The Cincinnati-area list is very short: US Bank, Fifth Third Bank, The Huntington National Bank, First Financial Bank, PNC Bank, Center Bank and People’s Bank from Marietta.
  • The “loan” is in an amount that is 2.5 times your monthly business’ payroll, being the monthly average over the 12 months prior to the date the loan is made.
  • The “loan” is in a maximum amount of no more than $10 million.
  • The “loan” has no fees associated with it.
  • The “loan” requires no personal guarantees.
  • The “loan” requires no collateral.
  • The “loan” does not require proof that funds cannot be received elsewhere.
  • The “loan” has a simplified application process.
  • The “loan” will be funded quickly to avoid the economic impact of the COVID-19 crisis.
  • Most importantly, borrowers are eligible for loan forgiveness equivalent to the sum spent on covered expenses during the eight-week period after the loan is originated. 
  • Covered expenses include wages, benefits, rent, mortgage payments, and utility charges.
  • The “loan” is forgiven if you maintain your pre-crisis level of full-time equivalent employees for eight weeks after the loan is made.
  • If you fall below that level of employment, your loan forgiveness is reduced in proportion to the reduction in headcount. The same applies to salary reductions.
  • If you already have made staffing reductions, you qualify for loan forgiveness if you re-hire back to pre-crisis levels by June 30, 2020.
  • You do not need to demonstrate actual economic harm in order to qualify. Rather, you simply need to make a series of good faith certifications, primarily that (a) current economic conditions necessitate the loan to support ongoing business operations, and (b) that the funds will be used to maintain payroll and address other covered expenses.

In order to apply, you need to contact an SBA-approved lender Qualified SBA lenders are awaiting further instruction from the SBA.  Contact your lender to get on their email list to obtain application instructions as they become available.  We will update this BLOG as new information is forthcoming.

Here is an excellent article explaining the Payroll Protection Program from Inc. Magazine.

You may contact attorney Christopher Finney (513.943.6655 (o) or 513.720.2996 (c)) at any time for more information.

Ohio Employment Law: Update on COVID-19 paid sick leave and family medical leave

Author By Matthew S. OkiishiPosted on

Last week, I wrote a comprehensive overview of the new federal requirements for paid sick leave and family medical leave under the Families First Coronavirus Response Act (the “Act”). Since then, the Department of Labor has published its first guidance on the application and enforcement of those provisions.

The Effective Date of the Act Has Changed:

The Act states that its provisions shall go into effect within 15 days of enactment. As the Act was signed by President Trump on March 18, 2020, I took a conservative approach and wrote that the new paid sick leave and family medical leave provisions would be effective on April 2, 2020. Per the new Department of Labor guidelines, the Act will be effective on April 1, 2020, one day ahead of schedule.

Under-the-radar sick time provision:

Nestled in to the Act’s paid sick leave provision is a prohibition against employers requiring the use of other paid sick leave (this includes ALL accrued time off, whether vacation time, bereavement, sick time and other time off. In many companies this is known in their personnel policy as  “PTO” or “Paid Time Off”). This is an easy provision to run afoul of, and employers should consider consulting with competent legal counsel to ensure compliance with the Act.

Small Business Exemption Still Vague, Non-Enforcement Grace Period:

The Act exempts employers with less than 50 employees from its requirements if compliance would jeopardize the viability of the business. Department of Labor regulations on the topic are forthcoming and should be released in April 2020.

In an effort to help employers navigate this uncertainty, the Department of Labor’s Field Assistance Bulletin has instructed its officers to not enforce the Act’s provisions until April 17, 2020. The Department of Labor will not bring about any enforcement actions provided that an employer makes “reasonable, good faith efforts to comply with the Act.” Employers will only be found to behave reasonably and in good faith when all of the following are satisfied:

  1. The employer remedies any violations, including by making all affected employees whole as soon as practicable;
  2. The violations of the Act were not “willful” based on the criteria set forth in McLaughlin v. Richland Shoe, 486 U.S. 128, 133 (1988) (the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”); and
  3. The Department receives a written commitment from the employer to comply with the Act in the future.

Employers who may require use of the small business exemption should consult with competent legal to prepare for the upcoming regulations and ending of the grace period. Employers should also be aware that the Field Assistance Bulletin does not limit the right or ability of an employee to bring a private action for violations of the Act.

Conclusion

Our labor and employment attorneys are well-versed in the rights and obligations of both employers and employees, including the rapidly-evolving COVID-19 changes. For assistance with these matters, consult Stephen E. Imm (513.943.5678) and Matthew S. Okiishi (513.943.6659).

Ohio Constitutional Law: Finney Law Firm sues Ohio Supreme Court Justices over elections decision

Author By Christopher P. FinneyPosted on
Sculpture outside the Ohio Supreme Court building in Columbus, Ohio

Fox 19’s Jennifer Baker this week writes on a suit filed by Finney Law Firm on behalf of Ohio State Representative Thomas E. Brinkman, Jr.  against the Ohio Supreme Court over its recent decision upholding the last-minute cancellation of the 2020 primary election by Secretary of State Frank LaRose.

The Ohio Constitution pretty clearly requires:

“The decisions in all cases in the Supreme Court shall be reported, together with the reasons therefor.”

(Article IV, section 2(C) of the Ohio Constitution), but the election-cancellation decision did not provide reasoning for upholding the cancellation.

Brinkman seeks to force the Justices to follow the Constitution and state clearly the “why,” the reasoning behind the decision.

Since the suit is against the very Justices who violated the Constitutional provision, we expect they will recuse from the case and appoint sitting lower court judges from throughout the state to sit by designation to consider the issue, an issue of first impression before the Court.

Read the Channel 19 story here.

You can read the lawsuit here.

To speak with a member of our Constitutional Law team, contact Christopher P. Finney (513.943-6655).

 

COVID-19 Developments: The Ohio Stay-At-Home Order is not all that broad

Author By Christopher P. FinneyPosted on

Here is the Ohio Stay-at-Home order.

Read it carefully, as it is not as broad as the reports of today’s press conference might lead you to believe.

For example, as it relates to Finney Law Firm, and Ivy Pointe Title, law firms, title companies, Realtors, insurance companies and lenders are all deemed essential and thus the purchase and sale of real estate can continue unless the closing of auditor’s and Recorder’s office (in Ohio) and Clerk’s offices (in Kentucky) cause title to become uninsurable.

What the order says

The meat of the order is:

All businesses and operations in the State except Essential Businesses and Operations as defined below, are required to cease all business activities within the State except Minimum Basic Operations, as defined below.

Moreover, all Essential Businesses and Operations are encouraged to remain open. In other words, unless you are forced to be closed, they want you to continue operating and presumably at full strength.

But the exceptions are incredibly broad

Then the order goes on to except or define as Essential Businesses and Operations, which is virtually everyone:

  • Working from home and home-based businesses
  • Food service providers (production, distribution, fulfillment, and storage)
  • The construction industry
  • Building management and maintenance
  • Airport operations
  • The entire utility industry
  • The oil and gas industry
  • Distribution centers
  • Garbage collectors
  • Computer and internet-related companies
  • All governmental functions
  • Grocery stores and pharmacies
  • Food, beverage and marijuana production (including farming, manufacturing, processing, and cultivating)
  • Animal shelters, rescues and kennels
  • Religious facilities
  • Media and news companies
  • Other first amendment speech activities, which would include activities relating to the primary and general elections, protests, and rallies.
  • Hardware stores and stores selling HVAC, plumbing or electrical equipment and materials
  • tradesmen such as plumbers, electricians, janitors, exterminators, painters and HVAC repairmen
  • Everyone involved in the postal or shipping industry
  • Schools that already have not been ordered closed as long as 6-feet of distance is maintained
  • Laundromats and dry cleaners
  • Restaurants for carryout food only
  • All means of transportation
  • Home-based healthcare
  • Professional services such as law, insurance, title and real estate
  • Banks and other lending institutions
  • Labor union functions
  • Hotels and motels
  • Funeral services

It also allows for travel:

  • To visit healthcare providers;
  • To obtain services from Human Service Operations, which include nursing homes, day cares, residential facilities for those with developmental disabilities and substance abuse issues, vocational services, rehabilitation services, adoption agencies, and those providing services to the indigent
  • To shop
  • To go to and from Essential Businesses and Operations

Enforcement

There is no enforcement mechanism for the Order, and indeed the Governor said as much in today’s press conference that they don’t intend to put anyone in jail for violating the Order. Thus, it is aspirational in nature, or perhaps just intended to get everyone’s attention to stop interacting with others as much as possible.

Conclusion

Certainly, the Governor intended something by the order, but given the incredibly broad exceptions, and the lack of any intent to enforce it, it appears to be an attempt to educate the public on the dangers of work and social interactions more than a heavy hand telling Ohio citizens what they can and cannot do in their work life.

Call our any of attorneys if we can advise you on COVID-19-related developments.

Tax Law: IRS extends 2019 filing deadlines and due dates for tax payments (annual and quarterlies) to July 15

Author By Christopher P. FinneyPosted on

The Treasury Department and Internal Revenue Service announced Friday that the federal income tax filing due date is automatically extended from April 15, 2020, to July 15, 2020.

They also announced that taxpayers can also defer federal income tax payments due on April 15, 2020, to July 15, 2020, without penalties and interest, regardless of the amount owed. This deferment applies to all taxpayers, including individuals, trusts and estates, corporations and other non-corporate tax filers as well as those who pay self-employment tax.

The IRS announcement is here. These are unquestionably remarkable times.

Ohio Real Estate Law: Ivy Pointe Title goes the extra mile to assure we continue to be “Accurate and On Time” during the COVID-19 pandemic

Author By Christopher P. FinneyPosted on

In order to protect the safety of all parties to a real estate closing, Ivy Pointe Title has a team of closers willing “go the extra mile” to obtain signatures and notarize documents for buyers and sellers.

Curb-side service

To minimize social interaction, if you drive to either of our two offices (Mt. Adams or Eastgate), you can sign documents from the comfort of your car. We will come to you with the documents, obtain signatures, and notarize those that need to be acknowledged.

Travel to your location

We will also travel to the homes or workplaces of buyer and sellers to obtain signatures and notarize documents.  When all signatures are obtained and the transaction is funded, we will record the documents, issue the title insurance policies and disburse.

Best closing practices for hygiene and safety

We use “best practices” in all of our closings, including (a) we will not meet in person with any buyer or seller who is ill or exhibiting flu symptoms, (b) none of our closers will work or attend any in-office or remote closing if he or she is ill, (c) we wash hands, use hand sanitizer, and use Clorox wipes of all pens, equipment and surfaces before and after each closing, (d) we will not shake hands and will maintain a safe distance from all closing participants and (e) almost all of our Ivy Pointe personnel are working remotely from home to limit human-to-human interaction at the company.

Teleconferencing for Realtors and lenders

At closings, we also have the technology and have trained our personnel to teleconference in lenders and Realtors from our laptops so they may participate at all stages, all while keeping a social distance and minimize the amount of people gathered at one time.  Ahhh, this probably won’t fly for roadside service closings, but we can try with FaceTime!

A great future together

Let’s all cooperate to keep the closings moving forward and stay safe!

Conclusion

Even in the most difficult times and the most difficult transactions, Ivy Pointe’s team is willing to go the extra mile to be “Accurate and On Time” in your real estate closing. Contact Rick Turner (513.943.5660) or Eli Kraft-Jacobs (513.797.2853) to close your real estate transaction quickly and accurately.

Ohio Commercial Litigation: Game still (mostly) “on” with respect to litigation

Author By Christopher P. FinneyPosted on

Most Courts have taken a hiatus for an unknown period of time in response to the COVID-19 crisis for most (but not all) trials and live hearings, but nonetheless, litigation work with the team at Finney Law Firm still marches on. (For example, emergency Probate guardianship hearings still are proceeding and criminal proceedings cannot be stayed indefinitely due to Constitutional speedy trial requirements).

Components of litigation

Litigation at the trial level typically consists of four components, (a) the initial pleadings (Complaints, and Motions to Dismiss or an Answer), (b) discovery (consisting of document production, written interrogatories and requests for admission), (c) motion work and then (d) pre-trial and trial work.

Certainly the initial pleading stage and the discovery can be completed without any person-to-person interaction.

Initial pleadings

For the initial pleading stage, we can exchange documents and emails and interview the client over the phone or on a web chat.  We then prepare the pleading and can, in most jurisdictions, file it electronically or via fax. If not, it can be mailed in.

Discovery

Typically, the first phase of discovery is written discovery, wherein each side asks the other for relevant documents, paper and electronic, and certain questions in the form of interrogatories and “requests for admissions.”  This can all, of course, occur, without any personal meetings. Again, we can gather documents from the client electronically and can interact over the telephone or computer.

Depositions are somewhat trickier, but we have consulted with our Court Reporter, and they assure us that both in-state and out-of-state depositions can be conducted using Skype, Teams or Zoom.Com without any two people being in the same room.

Thus, each component of discovery can be “socially distant” and not endanger any of the litigants, their counsel or the Court reporter.

Motion work

Again, motion work is mostly in writing. In federal Courts, evidence at the motion stage is admitted via a Declaration that does not need to be sworn before a notary public. The attorney does need to maintain an original signature of the Declarant in his files, but that can be mailed between the client and counsel.  Audio-visual materials may need to be physically filed with the Court, but again that can be addressed through the mails. State Court evidence is admitted via Affidavit, which means it does need to have a notary public personally witness the signature, but there are notaries still working throughout the COVID-19 crisis.

Certain motions by statute or by Court Rule require evidentiary hearings or in-person argument (Restraining Orders, Rule 11 Motions, and hearings on Motions to Set Aside Settlement).  However, other than limited statutory exceptions, litigants do not have a right to have an in-person appearance before a Judge on motions.  As a result, the trial Courts could proceed with their work by either eliminating hearings on motions entirely or calling for motion hearings to be held via web or telephone.

Many cases are resolved on motion work, including Default Motions, Motions to Dismiss and Motions for Summary Judgment. If so, the case is “over” or on to the Court of Appeals (see below) without any person-to-person contact.

Thus, all motion work could easily be handled without person-to-person contact or even live court appearances.

Pretrial and trial 

Herein lies the rub. Ohio law and the US and Ohio Constitution require that all trials — civil and criminal — be conducted in public and that means in-person attendance. If this crisis progresses, we suspect that our government officials may feel compelled to allow both litigants and observers to appear via web cam.  (Surprisingly, that change was just recently more or less unilaterally-declared by the Ohio Attorney General for meetings of public bodies in Ohio.)

But until that change occurs, litigation could well be jammed-up indefinitely at the trial stage. And because it will require Constitutional action, that could take some time and procedural maneuvering as well.

 Appellate work

Appeals work at the Ohio and federal Courts of Appeals and Supreme Courts historically is mostly done via paper filings, appellate briefs and occasionally motion work. But by tradition, not by any constitutional or statutory requirement, Appellate Courts have held oral arguments on the merits of an appeal. This is not a right of litigants and therefore the tradition of oral arguments can be waived or modified (such a conference calls or web cams) by the Courts, and if this crisis is protracted, we expect them to do so.

Conclusion

First, most litigation work that does not require the Judge’s involvement (hearings on motions and trials) can proceed in typical fashion with attorneys working from their home or office.  We expect that if this crisis extends into summer, the Courts will free up the logjam by modifying rules to allow at least motion hearings via conference call or web-conferencing. If the crisis extends into the fall, the courts may need to consider evidentiary matters coming into the record in ways other than in-person testimony, including Affidavits, video depositions and Skype, Teams or Zoom video conferencing.

For more information on moving forward with your commercial litigation project, please fell free to contact Brad Gibson (513.943-6661), Casey Taylor (513.943.5673), or Christopher P. Finney (513.943.6655.

Ohio Employment Law: New COVID-19 rights extended to workers

Author By Matthew S. OkiishiPosted on
Attorney Matthew S. Okiishi

In the wake of the Covid-19 pandemic, Congress and the Trump Administration have greatly expanded the protections available to workers affected by the disease. On April 2, 2020, both the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and Emergency Paid Sick Leave Act (“EPSLA”) will go into effect, and both will remain in effect until December 31, 2020.

Emergency Family and Medical Leave Expansion Act

The EFMLEA applies to all employers with fewer than 500 employees. Employees who worked for the employer for at least 30 days prior to the designated leave are entitled to up to 12 weeks of job-protected leave. However, the reason for the emergency leave is especially narrow, and only applies to an employee who is unable to work or telework due to the need to care for the employee’s child if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency. Due to the proactive measures taken by Governor Mike DeWine, many employees in Ohio may find themselves covered under the EFMLEA.

Employees who qualify for leave under the EFMLEA are entitled to partially paid leave. For the first 10 days of the leave, employees are not entitled to pay. However, employees can substitute accrued paid leave or EPSLA (explained below) to bridge this gap. After the 10-day period, a full-time employee is entitled to pay at a rate two-thirds their regular rate, capped at $200 per day and $10,000 aggregate. Hours for part-time employees are to be calculated as the average of the hours worked in the preceding six months.

At the conclusion of the leave, employers with 25 or more employees must return the employee to the same or equivalent position. Employers with fewer than 25 employees are excluded from the requirement if the employee’s position no longer exists following leave due to an economic downturn. However, the employer must still make a reasonable attempt to return the employee to an equivalent position.

The EFMLEA further permits the Secretary of Labor to exclude emergency responders and healthcare providers from eligibility, and to exempt small businesses (defined as employing less than 50 employees) if the leave would jeopardize the viability of their business.

Emergency Paid Sick Leave Act

The EPSLA applies to employers with fewer than 500 employees, but healthcare providers and emergency responders may elect to be exempt. Employees qualify for paid sick leave under the EPSLA if the employee is:

  1. subject to a federal, state or local quarantine or isolation order related to COVID-19;
  2. advised by a health care provider to self-quarantine due to COVID-19 concerns;
  3. experiencing COVID-19 symptoms and seeking medical diagnosis;
  4. caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns;
  5. caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
  6. experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Qualifying employees are generally entitled to 80 hours of paid sick leave at their regular rate under the EPSLA (employees who are taking sick leave for the fourth, fifth, or sixth listed reason above are entitled to a two-thirds pay rate). The paid sick leave is capped at $511 per day for the employee’s own use, and $200 to care for others.

A Word of Caution

Because the EFMLEA amends the Family Medical Leave Act, the anti-retaliation and discrimination provisions of the same apply. It is illegal for employers to interfere with employees exercise of their rights under the FMLA or to otherwise discriminate against them.

Similarly, the EPSLA prohibits employers from requiring employees to use other paid leave provided by the employer to the employee before the employee uses EPSLA sick time. Further, the EPSLA prohibits employers from retaliating or discriminating against employees who elect to utilize the EPSLA.

Conclusion

Our labor attorneys are well-versed in the rights and obligations of both employers and employees, including the rapidly-evolving COVID-19 changes. For assistance with these matters, consult Stephen E. Imm (513.943-5678) and Matthew S. Okiishi (513.943-6659).

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