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Category Archives: Business & Civil Litigation

CDC clarifies temporary eviction moratorium

Author By Julie M. GuginoPosted on

 

The Centers for Disease Control and Prevention on Friday clarified the nationwide eviction moratorium that it had issued on September 4, 2020, lasting through the end of the year. That clarification (“Frequently Asked Questions”) is linked here.

Some important points from the FAQ:

  • The Order does not prevent owners from commencing eviction proceedings so long as the actual eviction (which we interpret to mean the set out) does not take place until January. As we see it, this means that evictions can proceed to writ, but the set out must wait until January.
  • As set forth in this blog entry, the protection to a tenant under the eviction moratorium is trigged when the tenant signs a CDC form that certifies all of the following (every adult residing in the unit must sign the form for the moratorium to take effect).
    • The individual has used best efforts to obtain government assistance for the payment of rent.
    • The individual falls below the above-income thresholds.
    • The individual can’t pay rent due to loss of income or medical expenses.
    • The individual is using best efforts to pay the rent or as much of it as he can.
    • Eviction would render the individual homeless.
  • An owner may cross examine (or perhaps conduct discovery as the Court would allow) as to the truthfulness of those certifications. Previously, the rule was ambiguous on this point, leading to inconsistent application throughout the thousands of jurisdictions handling executions in the nation.
  • Landlord are not required to inform tenants of their rights under the CDC Order.
  • The clarification reiterates that (a) tenants still owe their rent and (b) tenants have a duty to make partial rent payments as they are able.
  • The clarification reiterates the criminal penalties for tenants making material misrepresentations on the CDC form.

Friday’s FAQ pronouncement tilts the effect of the moratorium in favor of landlords. Given that the set out in Ohio typically is six-to-eight weeks after the start of the process (the 3-day notice), the real delay in recovering possession of a landlord’s property from a non-paying tenant is now under 30 days.

The scope of the moratorium is limited to situations where the default is solely the non-payment of rent. Our firm has successfully worked with landlords who need to recover possession of their property from hold over tenants, squatters, those causing physical damage to property, those involving illegal use and sale of drugs, too many occupants and other lease violations.

Please call our experienced landlord/tenant litigators if you have questions. Contact Julie Gugino (513.943.5669) for more information.

 

Understanding Shareholders’ Rights in Derivative Actions

Author By Todd McMurtryPosted on

When someone who controls a corporation, such as a CEO or director, engages in conduct that a shareholder believes has harmed the corporation in some way, what can the shareholder do about it? In some circumstances, a shareholder may file a derivative lawsuit.

Shareholders are investors in a corporation but they do not have control over business operations. They elect directors who in turn appoint officers and executives to handle management. However, shareholders have a variety of rights, and one of the most important is the right to sue an officer or director who allegedly has harmed the corporation. Such a lawsuit is called a derivative action because the shareholder is stepping into the shoes of the corporation, sticking up for its interests when its own leaders fail to do so.

Shareholder derivative lawsuits allege that a director or officer has engaged in such mismanagement, fraud or some other wrongful act or has failed in discharging their fiduciary duties. The shareholder suit against fast food giant Wendy’s, for example, alleges that directors breached their fiduciary duty by approving inadequate security practices that led to a massive data breach.

For a corporation to be sued derivatively:

  • The plaintiff must be shareholder when the alleged wrong occurred.
  • The shareholder must first make a demand on the corporation, insisting that it take the desired action.
  • If the shareholder doesn’t make a demand, he or she must convince the court that such a demand would be futile.
  • Assuming a demand is made, the board of directors may, in its business judgement, refuse to act on the demand.
  • It is then the plaintiff’s burden to explain why the refusal to act on the demand is anything but a valid use of business judgment.

The business judgment element is a critical part of a derivative lawsuit. There is a legal presumption that directors, when making a business decision, do so in good faith, with enough information and with the honest belief that they are acting in the company’s best interest. Kentucky case law holds that “if the requirements of the traditional business judgement rule are met, the board’s decision [to refuse the demand] will be respected by a reviewing court.”

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.

 

Constitutional Law: Finney Law Firm client Kalahari Water Park and Convention Center win Preliminary Injunction against Dr. Amy Acton

Author By Christopher P. FinneyPosted on
Ohio’s largest hotel and convention center, Kalahari Park in Sandusky

In a second State Court win against the arbitrary and unconstitutional shut-down Orders of Dr. Amy Acton and Governor Mike DeWine, the 1851 Center for Constitutional Law (Maurice Thompson) and Finney Law Firm (Christopher Finney and Julie Gugino) today obtained a Preliminary Injunction for the re-opening of Kalahari Water Park and Convention Center in Sandusky, Ohio.

Read the Order here and below. More on this will follow.

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Constitutional Law: Music festivals are latest client of Finney Law Firm to sue Dr. Amy Acton to reopen

Author By Christopher P. FinneyPosted on

As is reported here by Jennifer Baker of Fox 19, today Finney Law Firm filed suit against Dr. Amy Action, former director of the Ohio Department of Health, to allow planned summer music festivals to proceed.

Read the story here.

David Nethers of Fox 8 in Cleveland also has the story here.

Read the Complaint here.

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How COVID-19 Might Affect Your Estate Tax Planning

Author By Todd McMurtryPosted on

  • posted: Jun. 11, 2020
  • Todd McMurtry
  • Taxation

It should not take a pandemic to remind us all of our own mortality and the need to plan for our loved ones. However, the lethal spread of the COVID-19 virus highlights why it is so important to have a sound strategy in place to minimize taxes and maximize the value of your estate. We still don’t know when or how this national emergency will end, but there are steps you can take right now to adjust to the financial turmoil and protect the people who matter most.

Whether you believe your estate will be subject to estate tax or not, it’s worthwhile to review and possibly revise your plan based on potential changes such as:

  • Stock market losses — Most stocks have dropped sharply since coronavirus started causing widespread harm in the United States. In light of the decreased value and uncertainty ahead, you might want to check to see if your estate plan reflects your current intentions. While nobody likes to watch their stock portfolio drop, the hidden silver lining is that now may be a good time to transfer assets that have reduced in value to loved ones, saving room under the annual $15,000 tax exemption for gifts to each recipient.
  • Interest rate drops — With exceptionally low interest rates, legal instruments such as Grantor Retained Annuity Trusts (GRATs) and Intentionally Defective Grantor Trusts (IDGTs) can be especially advantageous when it comes to lowering your taxable estate. In an IDGT, the grantor sells an asset to the trust in exchange for a payment of above market return. Paying above market is less of a burden when the interest rate is near zero. The grantor pays income taxes during their lifetime, but the underlying assets in the trust are allowed to grow, tax free, passing to the person’s estate without such growth impacting the taxable amount.
  • Estate tax threshold — Right now, the federal estate tax exemption is at an all-time high of $11.58 million for an individual, double that for a couple. Given the amount of government money expended to deal with the coronavirus pandemic, it’s possible that the exemption could revert to its much lower level when the law is set to sundown at the beginning of 2026.

An attorney who is familiar with complex tax laws and the latest developments in this area can help you guard your estate’s value against present and future threats.

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.

 

Here’s the media wrap just this evening on the suit against Dr. Amy Acton to re-open Kings Island amusement park

Author By Christopher P. FinneyPosted on

The story on our lawsuit to open Kings Island Amusement Park has gotten significant media coverage:

Ohio Constitutional Law: Finney Law Firm sues Dr. Acton to reopen Kings Island

Author By Christopher P. FinneyPosted on

Today, Finney Law Firm attorneys, along with Maurice Thompson of the 1851 Center for Constitutional Law, filed suit in Warren County Common Pleas Court against Ohio Director of Health Dr. Amy Acton to reopen Kings Island amusement park.

This is the seventh in a series of cases filed by Finney Law Firm to re-open businesses in Ohio.

Here and below is the Complaint.

Here is the Fox19 story on this case by Jennifer Edwards Baker.

Here is the Enquirer story on this case by Hannah K. Sparling.

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Ohio Real Estate Law: Finney Law Firm suit swiftly re-opens Hamilton County evictions

Author By Christopher P. FinneyPosted on

Faith is the Overcoming Victory! 1 John 5:4-5 - Therefore Now ...

Well, that didn’t take long.

On Monday, Finney Law Firm filed suit against Hamilton County’s Municipal Court Judges  at the Ohio Supreme Court to make them re-open eviction proceedings that had been shut down since March 15.

Just last week, presiding Judge Heather Russell had signed an order extending the eviction moratorium through July 1, and the Clerk was not scheduling new hearings until the end of July. In fact, the Clerk’s office was telling prospective plaintiffs that they had no idea when eviction court would re-open.

As is reported here, Hamilton County was the second-to-last of Ohio’s 88 counties to re-open eviction court.

On Wednesday, the Judges met and, possibly motivated by our law suit, voted to re-open eviction proceedings  essentially immediately, Monday, June 8. We’ll consider that a victory for our client!

We also want to thank the Cincinnati Real Estate Investors’ Association (CREIA) and the Ohio Real Estate Investors’ Association (OREIA)  for their initiation and funding of the suit!

Finally, our co-counsel, Curt Hartman led the legal team on this quick and successful battle.

Jennifer Edwards Baker of Fox 19 has the story here.

Dan Horn of the Enquirer has the story here.

Complying with Corporate Annual Meeting Requirements during the COVID-19 Quarantine

Author By Todd McMurtryPosted on

How do you hold a corporate annual meeting when the entire country is in lockdown? On the surface, it might seem like a simple matter of using a favorite video conferencing tool and perhaps checking to see if it’s been hacked. Annual meetings for corporations are more than get-togethers. They are legally mandated proceedings that could put the company at risk if proper rules are not followed.

Before you break out Zoom, Skype or Google Meet, you should be familiar with the state laws, corporate bylaws and SEC regulations that apply to your business. Here are some tips to get you started:

  • The SEC issues up-to-date guidelines on best practices — Corporations that issue stock are required to hold annual meetings in compliance with state law. These meetings have notice, publication, procedural and voting rules. There are numerous regulations stating how a corporation must go about changing the date, time and location of a meeting. In light of the restrictions related to COVID-19, the SEC has issued helpful guidance about how to comply with these regulations.
  • States differ on the validity of virtual meetings — Whether a virtual meeting fulfills your company’s legal obligation depends on its state of incorporation. For example, Delaware allows virtual meetings, with no particularly onerous requirements or regulations. New York accepts hybrid meetings where parties can join in online, but there must be an in-person component.
  • Don’t forget your bylaws — Check your corporate bylaws to determine if a meeting conducted through an online communication tool is allowed, and to see what types of notice might be required.
  • Take security precautions — With millions more people working and attending classes virtually, it is not surprising that many of our online video conferencing providers have struggled. Some have had latency or downtime issues, while others have suffered security breaches. Before you select a vendor for your virtual meeting, you will need to ensure that the platform is secure enough for confidential corporate discussions and appropriate for your particular needs, particularly if a large group of stockholders requires access.

Along with making security and technical arrangements, it’s wise to work with a knowledgeable attorney who can outline the federal, state and internal regulations that must be considered when adjusting the format of a corporate meeting in reaction to the coronavirus pandemic.

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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