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Category Archives: Miscellaneous

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.

 

What do all of these contingencies mean? Strategies for buying a home in a competitive market without abandoning all reason

Author By Casey A. JonesPosted on

With interest rates dropping, the housing market is becoming even more saturated with buyers. Practically speaking, that means that buying a home has, once again, become super competitive and provisions that were once a “given” in Contracts to Purchase are now being eliminated in favor of making the offer more appealing to sellers, including the removal of financing, appraisal, and inspection contingencies.

But what is not always understood is what happens if these contingencies are removed and things go south.

I have had at least three clients or potential clients call me in the past month with varying levels of “buyers’ remorse.” Either they had simply changed their minds, or they had agreed to waive the inspection contingency altogether, or they had agreed to pay significantly more than the property’s appraised value – and, now, they wanted to walk away. Each of these clients were under the understandable, but mistaken belief that they could simply forfeit their earnest money and everyone would go their separate ways. Unfortunately, it is not so simple.

Financing Contingency

This contingency allows you to justifiably terminate a Contract if you are unable to obtain financing. If you are getting a loan/outside financing (versus paying cash for the property), you NEED to keep this contingency. This protects you in the event you lose your job, or experience a significant change in your income or financial situation. Buyers are generally required, however, to apply for financing within a set number of days and to act in good faith in attempting to obtain financing. In other words, if you experience a change of heart, ghosting your lender so that they deny your financing is likely not a feasible strategy.

Appraisal Contingency

We most often see this contingency removed in cash purchase situations. When using outside financing, your lender will almost certainly require that the home appraise for the purchase price or for the purchase price less the amount you are planning to put “down” (i.e., pay out of pocket at closing). Buyers (in both cash and financed transactions) sometimes add provisions that they will pay $“x” or “x”% over the appraised value to make their offer more competitive. What this means is that the Buyer agrees to bring the difference between the appraised value and amount for which the property was required to appraise to closing. If this contingency is removed entirely or amended to allow for a certain amount above the appraised value, the buyer may be contractually obligated to pay significantly more than the fair market value of the home, resulting in a negative equity situation.

Inspection Contingency/”As-Is” Purchase

Removal of the inspection contingency is, by far, the most popular among buyers seeking to make their offers more competitive. This can be done in a few ways: 1) designating the purchase “as-is” or stating that inspections are for “informational purposes only,” 2) forfeiting the right to terminate based on inspections, and 3) waiving inspections altogether.

  • An as-is purchase does not necessarily mean that you waive inspections. It can also mean that you are performing inspections but that you will not seek repairs or a price reduction from the seller based on what you may find during inspections (or that you will only seek repairs/a reduction based on defects or conditions estimated above a certain dollar value). Under an “as-is” purchase or when inspections are for “informational purposes only,” you can still maintain the right to terminate based on the inspections. However, the contract language should be clear as to what is intended as the above terminology can be somewhat ambiguous.

 

  • The inverse of No. 1 above, buyers sometimes agree that they will perform inspections but they will not terminate based on the inspections. Instead, they will allow the seller the opportunity to “fix” any defective conditions. Candidly, this can create a whole host of issues. For example, what happens if there is a dispute between seller and buyer as to whether the issue was fixed or fixed properly? What if the seller refuses to drop the price or fix a condition, or disagrees that it is defective? Under a prototypical inspection contingency, the buyer could terminate in this situation (i.e., where no agreement can be reached between the parties) but, here, the buyer has ostensibly forfeited its right to terminate. While there could be defenses to the enforceability of such forfeiture, it could also be quite expensive to litigate that issue to conclusion.

 

  • Finally, buyers in a competitive market often waive inspections altogether. This means they will not perform any due diligence as to the physical condition of the property. While this can allow for a faster closing and obviously sounds great to the seller, it is very risky if things go awry. Under such circumstance, the buyer will have essentially no recourse if they discover a defect after closing, the exception to this harsh result being if they can prove that (a) the seller knew about the defect, (b) the buyer did not know about the defect, (c) the defect would not have been discovered had the buyer performed reasonable inspections (e., it was a “latent” defect and not an open and obvious one), (d) the seller did not disclose the defect on the Residential Property Disclosure Form or otherwise misrepresented the same, and (e) the buyer suffered damages as a result. These are the elements of a cause of action for fraud and are not easily proven. Further, unless the cost of remedying the defect is at least $30-40,000+, it is often not financially worthwhile to pursue given the legal/expert fees and expenses. A buyer can seek reimbursement for its attorney’s fees upon satisfying the elements of fraud, but such reimbursement can never be fully guaranteed.

As noted above, there are a number of ways that each of these contingencies can be crafted, limited, or even removed and the resulting implications can vary widely. This is why it is so critical to consult with an attorney before agreeing to deviate from standard language. If you are found to be in breach of the contract or decide to “walk away” without legally adequate justification, your liability is often not limited to your earnest money – in fact, it can add up to tens, if not hundreds, of thousands of dollars.

There are other options and terms that can be included in an offer to “sweeten the deal” for sellers and help get your offer noticed, even in a competitive market, without jeopardizing the rights and protections that are so vital to buyers.

We can help make sure you understand the potential consequences of the contract language and even draft or revise an offer to make sure you are protected, whether you are working with an agent or purchasing a home on your own. Making a competitive offer does not have to mean taking on substantial additional risk.

Please reach out to Casey A. Jones, Esq. at casey@dev.finneylawfirm.com or (513) 943-5673 for assistance.

Employment Law Update: New Federal Trade Commission Rule Bans Noncompete Agreements

Author By Matthew S. OkiishiPosted on

On April 23, 2024, the Federal Trade Commission (“FTC”) released its long-awaited rule concerning the validity of employee noncompete agreements. Following its effective date (projected to be 120 days after April 23, noncompete agreements will be considered a restraint of trade except where they are executed in connection with the sale of a business.

All existing noncompete agreements, with the exception of those signed by  “senior executives” (defined as policy-making employees earning at least $151,164 in annual compensation)  in existence prior to the rule’s effective date, will retroactively become unenforceable, and they will not be permitted going forward.

The rule does not apply to noncompete agreements that were breached prior to the effective date.  So cases currently in court over an alleged breach are not affected by the new rule.

The new FTC rule will also impose an affirmative duty on all employers with existing noncompete agreements to notify workers that those agreements are no longer in effect by the effective date. Because the duty to notify is triggered at the rule’s effective date, employers should make arrangements to ensure compliance with the new rule.

There will likely be legal challenges to the FTC’s authority to make this Rule, so stay tuned. But if it survives it will be a true game changer for American workers.

How a Solid Buy-Sell Agreement Can Avoid a Bad Business Breakup

Author By Todd McMurtryPosted on

Like a prenuptial agreement in a marriage, a buy-sell agreement is a crucial tool for preventing a messy and potentially disastrous business divorce. This goes beyond disputes over division of money and property. A solid agreement can safeguard the continued existence and success of the business you’ve worked hard to build. By stipulating how owners’ shares may be valued and reassigned if any owner leaves the business, the agreement fosters clarity, control and financial security, allowing you to avert unpleasant and interruptive litigation.

A buy-sell agreement offers these benefits in the case of a business divorce:

  • Orderly succession — A buy-sell agreement defines the process for transition, whether the breakup is due to a planned retirement, a sudden disability or unforeseen circumstances like death or bankruptcy. This pre-determined path promotes a smooth transition, minimizing disruption and maintaining business stability.
  • Avoiding costly battles for control — A buy-sell agreement establishes clear procedures for purchasing the departing owner’s interest in the case of a buyout, retirement or death. This saves everyone time, money and stress, allowing the business to focus on productivity.
  • Setting a price for ownership interests — Closely-held businesses are not valued based on market indicators, so ownership shares are difficult to measure in dollar amounts. A buy-sell agreement can set a fixed price or establish a valuation method, providing both the departing owner and the remaining partners with financial predictability. The agreement can also specify a third-party to serve as the valuation expert.
  • Keeping out intruders — Outsiders with incompatible values or interests may wish to take an ownership stake. A buy-sell agreement gives current owners the power to keep them out. It allows co-owners or the business itself the right or obligation to purchase a departing owner’s stake, effectively acting as a gatekeeper against undesirable takeovers.
  • Job stability — A well-crafted buy-sell agreement can provide job security for remaining owners and key non-owner employees. Knowing the business’s future is secure can boost morale and foster a sense of stability within the organization. It can also help in recruiting new talent.
  • Funding the transition — In an ownership dispute, one of the chief issues is how any buyout offer will be financed. The agreement can provide for insurance policies and other financing to be obtained to make sure purchasing owners or the company itself have the funds to pay for the departed owners’ shares.

No business founders want to think of the possibility of a breakup in the foreseeable future. Nevertheless, engaging in some effective planning at the onset can avert a painful and costly ordeal later on. An experienced business divorce attorney can help you put a well-structured buy-sell agreement in place, one that you can safely rely upon for years to come.

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 an “Opinion” Become a Defamatory Statement?

Author By Todd McMurtryPosted on

Defamation is publishing a false statement that causes harm to another person’s or organization’s reputation. A defamation lawsuit can be brought only if the statement is an assertion of fact, not an opinion. Certainly, statements of opinion can tarnish reputations, but in the United States, opinions are protected by the constitutional right of free speech. However, sometimes a statement that purports to be an opinion is capable of being construed by an audience to have a factual basis. If so, and if the statement is false, it can amount to defamation.

One of the most problematic situations in defamation cases is when a statement mixes opinion and fact. A simple statement of opinion is based on underlying facts that have been established. But a mixed statement intertwines opinions with undisclosed or implied facts — or in recent parlance, “alternative facts.”

To resolve the fact/opinion dilemma, courts use a multi-factor test, analyzing the following:

  • Precision of wording — Courts evaluate whether the language used implies an assertion of fact. If the language is loose, figurative or exaggerated, it may lean toward being an opinion. On the other hand, if the statement contains specific details, it might be treated as an assertion of fact.
  • Verifiability — Factual statements are typically capable of being proven true or false through external sources. Opinions, by contrast, convey the speaker’s own sense of morality, propriety or other personal standards.
  • General context — Courts consider how and where the statement was made, taking into account the medium and its audience. Statements made in an editorial, commentary or opinion piece may be more likely to be considered as expressions of opinion, while statements presented as news reports are typically treated as assertions of fact.
  • Broader context — This level of analysis seeks to ascertain the credibility that might be accorded to the statement by any reasonable reader.

The fact/opinion analysis is especially difficult when it comes to statements made on the internet. Fact and opinion are routinely mixed in postings on social media platforms like Facebook, Twitter and Tik-Tok and discussion forums like Reddit, Quora and Digg. These online apps serve as news aggregators, and there is little or no effort by their hosts to control content. Posters often express opinions while linking to sources of uncertain veracity, thereby potentially spreading misinformation.

Despite the challenges posed in evaluating statements made on those new forms of media, the opinion defense is still a force to be reckoned with in defamation cases. Nevertheless, it is not bullet-proof. An experienced defamation attorney can demonstrate how statements alleged to be opinions might contain or imply untrue statements of fact for which you may be entitled to recover damages.

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.

Random thoughts on the Ohio tax valuation process

Author By Christopher P. FinneyPosted on

Now that new Auditor’s valuations are out in Hamilton, Butler, Clermont and Montgomery counties (as well as another 20-25 counties throughout Ohio), our firm is experiencing a record number of calls and emails on property tax valuation challenges.  We also have taught four seminars on the topic just in the past week to more than 200 participants.  Based upon our experience and questions raised in these seminars, here are some random thoughts, hopefully providing some wisdom on the topic:

  1. Most — if not all — of our calls and emails start with this line: “I am calling [writing] because the Auditor raised my valuation by xx% from last year.”  OK, that’s interesting and certainly may seem extreme, but (a) it is utterly the wrong starting point and (b) it is completely irrelevant to our analysis and that conducted by the Board of Revision.
  2. The reason this is entirely irrelevant is that (a) a property owner in 2024 (for their 2023 valuation) is entitled to have his property valued at fair market value as of January 1, 2023.  Fair market value is defined as “what a reasonable buyer would pay a reasonable seller, neither party being under undue duress or motivation.”  This is the same valuation formula in which buyers, sellers, lenders, Realtors and appraisers typically engage.  You are not entitled to a lower number because it was lower last year and (b) thus, comparing a newer (and possibly proper) valuation to an earlier incorrect valuation places the analysis in the wrong framework.  The question is not to compare to last year’s valuation.  Rather, the question is: Does your current valuation reflect the value of the property as of January 1, 2023 (the valuation date in question for challenges this year)?
  3. Property owners, including homeowners, are frequently lulled into a belief that they have a statutory right to a lower valuation than “fair market value” — that the Auditor or Board of Revision somehow look at valuation differently than those transactional parties.  This simply is not so.  So, getting the first tax bill at full fair market value can be a jolt.
  4. To my surprise, I received an email last year from a friend and former client who lives in Western Hills: “How could the Auditor think property values have increased 30% over the past three years?”  My response: “Maybe because the nation is experiencing an unprecedented housing boom and Cincinnati/Hamilton County are ground zero of the boom.”  His response: “I had no idea.”  My response: “Do you live under a mossy rock?  It’s been in the newspaper three times per week for the past three years.”  You really do need to be out of touch not to understand the aggressive housing market that has existed some the pandemic began.
  5. The previous blog entries I wrote indicating that tax rates would roll back nearly the same percentage as the average valuation increases turns out not to be accurate.  The rate rollback certainly is there, but it is smaller than I expected and it varies by property categories (commercial, agricultural and residential) and by taxing district — school district and city, village, and township.  Our quick analysis, for example, is that in the City of Cincinnati/Cincinnati Public Schools (the largest taxing district in southwest Ohio) valuation went up 26.65% and the rate rollback was slightly more than 10%, yielding an overall average tax hike of 16.05%.
  6. For many property owners, we are recommending that they not challenge their valuation.  Despite the sticker shock of all of this, most residential properties and certain commercial properties (such as apartment buildings and industrial/warehouse buildings) have in fact soared in value.  Remember, the Board of Revision can INCREASE a valuation as well as provide a REDUCTION, so be careful about asking them to take a close look at your valuation.
  7. This is so also because frequently, the cost of the proceeding (maybe $2,500 for a residential property and $10,000 for a commercial property) exceeds the available savings.  We recommend paying a small sum to an appraiser to get a preliminary valuation before deciding if you want to proceed further, comparing the 3-year savings (a “win” is guaranteed by law to last at least three years) to the out-of-pocket costs.
  8. Unless a recent sale is involved, we generally recommend against proceeding without an appraisal.  For recently arm’s length sales, the sale price is the proper valuation.
  9. When reacting to your new tax valuation, remember that this is a cumulative increase since the last revaluation three years ago.  If we had an average of 8.0% property valuation growth during those three years, the compounded valuation hike would be 25%, and 10% per year would be a 33% bump.  So, (to that fellow who lives under a mossy rick in Western Hills) it’s not hard to see how Auditors in southwest Ohio are seeing average increases of 30% to 40% over the triennial.

If you need help with an Ohio or Kentucky property valuation challenge, or to learn more about the process, contact Chris Finney (513.943.6655) or Jessica Gibson (513.943.5677).

Protecting the Rights of Nursing Mothers: FLSA Protections for Employees to Pump Breast Milk at Work

Author By Samantha B. IsaacsPosted on

The decision to breastfeed your baby is a personal one, and many mothers choose to provide this valuable nourishment to their infants. However, the commitment to breastfeeding can pose challenges when returning to work. Fortunately, the Fair Labor Standards Act (FLSA) includes important protections for those employees who need to express milk in the workplace, ensuring that women can continue to provide for their children without sacrificing their career.

In 2010, Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) was amended to require employers to provide a nursing mother reasonable time to express breast milk after the birth of her child. Under what has become known as the “Break Time for Nursing Mothers” provision, employers are required to provide a reasonable break time to new mothers for one year after the child’s birth.  Importantly, the law stipulates that the space provided for expressing milk must be “shielded from view and free from intrusion” by coworkers and the public. Therefore, a bathroom does not meet the requirements under the FLSA. Instead, a private, non-bathroom space that is clean and safe must be provided for employees to pump during the workday.

While this provision to the FLSA is a vital step towards creating a more supportive and inclusive workplace for women who are committed to both their careers and children, it is important to note the limitations of the law. First, employers with fewer than 50 employees are not subject to these requirements if they can demonstrate that providing the necessary accommodations would create an undue hardship for their business operations. Additionally, an employer is not required to compensate an employee for the break time that is needed to pump. However, an employee must either be “completely relieved from duty” or paid for the break time.

On December 29, 2022, President Biden signed the PUMP Act into law as part of the Consolidated Appropriations Act, 2023. The law amended the FLSA to extend coverage of the right to express milk at work to nearly all employees covered by the FLSA regardless of whether they are exempt from minimum wage and overtime requirements, with the exception of certain employees of railroads, airlines, and motor coach carriers. If an employer fails to abide by the law, employees must provide the employer with notice of the violation and ten days to remedy the issue.  If an employer fails to remedy the violation, the employee may be entitled to damages.

Mothers should not have to choose between their professional lives and their role as caregivers. Therefore, if you are a breastfeeding mother and your employer is not providing the necessary accommodations, it is important to know your rights.  Employers and employees should consult experienced legal counsel to be fully advised of their rights and obligations under the law. For assistance in this important area, feel free to consult the Employment Team at the Finney Law Firm.

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