Latest News - Taft Stettinius & Hollister LLP

Environmental Liability and Insurance Recovery

Kelly Sharpe — Wed, 16 May 2012 07:12:44 -0500

Taft environmental attorneys Frank J. Deveau and David L. Guevara, Ph.D. designed and edited a new book titled Environmental Liability and Insurance Recovery. The book was published in May 2012 by ABA Book Publishing and was sponsored by the ABA's Tort Trial and Insurance Practice Section.

Environmental law and insurance law demand the mastery of an intricately involved set of concepts, definitions, rules, and regulations – all of which are continuously developing. Environmental Liability and Insurance Recovery addresses the legal issues at the crossroads of environmental law and insurance law. Specifically, Environmental Liability and Insurance Recovery addresses the diverse ways in which a party may be exposed to environmental liability and how insurance coverage may provide financial support for such liability.

To purchase a copy of this book, please click here.

CERCLA Apportionment Defense Dismissed

Kelly Sharpe — Wed, 16 May 2012 07:22:31 -0500

A federal district court recently dismissed a defendant’s apportionment defense, asserted pursuant to Burlington Northern and Santa Fe Railway Company v. United States (“BNSF”), 556 U.S. 599 (2009), because the defendant failed to address the entirety of the harm resulting from the contamination.

In Pakootas v. Teck Cominco Metals, Ltd., 2012 WL 1133656 (E.D.Wash. Apr. 4, 2012), the plaintiffs moved to dismiss, and for partial summary judgment against, defendant Teck’s affirmative defense seeking to apportion the harm resulting from the alleged release or threatened release of hazardous substances from the Upper Columbia River Site (the “Site”), which the plaintiffs, The Confederate Tribes of The Colville Reservation (the “Tribes”) and the State of Washington (the “State”), claimed to cause the Tribes and the State to incur response costs and natural resource damages.

To learn more. please read Bill Wagner's recent blog post on Commonground.

Synergy of Energy: Environmental and Energy Regulations and Their Impact on Economic Development

Kelly Sharpe — Wed, 09 May 2012 07:45:44 -0500

Proposed FAR Amendment Pertaining to the Nondisplacement of Qualified Workers Under Service Contracts

Kelly Sharpe — Mon, 14 May 2012 12:05:06 -0500

On September 13, 2011, we told you about the Department of Labor’s (“DOL”) August 29, 2011 final rule implementing Executive Order 13495, Nondisplacement of Qualified Workers Under Service Contracts. According to Executive Order 13495, the Federal Government’s procurement interest in economy and efficiency are better served when a successor contractor who wins a follow-on contract for the same or similar services at the same location, hires the predecessor’s employees. The Government believes that using the carryover workforce reduces disruption to the delivery of services during the period of transition between contractors, and provides the Federal Government the benefits of an experienced and trained workforce that is familiar with the Federal Government’s personnel, facilities, and requirements.

The DOL’s rule requires contractors, and its subcontractors, who win a follow-on services contract for performance of the same or similar services at the same location, to offer those employees employed under the predecessor contract (other than managerial and supervisory employees) the right of first refusal of employment under the successor contract in positions for which they are qualified, if their employment would otherwise be terminated as a result of the award of a successor contract to another company.

On May 3, 2012, the FAR Council issued a proposed rule which would amend the FAR to implement Executive Order 13495. It will apply to all service contracts above the simplified acquisition threshold ($150,000). The proposed FAR rule requirements are taken from the Executive Order and adopt, in part, the DOL’s final rule. Both rules require many successor contractors and their subcontractors to offer employment to their predecessor's workforces for performance of the same or similar work at the same location. Both rules also include similar exemptions, similar preparation of waiver requirements, similar notification requirements for incumbent employees, and a similar requirement that the outgoing contractor furnish the contracting officer with a list of the names of all service employees working under its contract and subcontracts.

The two rules are different in that the proposed FAR rule does not repeat those elements of the DOL rule relative to enforcement mechanisms, investigation techniques or review methods, except as necessary to ensure that contracting officers and contractors are aware of the DOL requirements. The FAR rule does, however, include additional administrative burdens for all parties and an additional exemption whereby the agency may waive the application of the Executive Order if its application would impair the ability of the Government to procure services on an economical and efficient basis.

The FAR Council has indicated that it is considering adding language to this proposed rule that encourages agencies to enter into bilateral modifications which obligate predecessor contractors to inform their service employees of their right of first refusal, and to provide the list of impacted employees to the contracting officer no less than 30 days before contract completion. The FAR Council has specifically requested public comment on this proposed language.

The FAR Council has also requested public comment on (1) the level to which waiver authority may be delegated under the rule; and (2) the steps that could be taken (as agencies transition to the requirements of the new FAR clause) to reduce instances where service employees of the predecessor contractor and successor contractor do not receive notice of their rights, and where successor contractors receive employee lists less than 30 days before the end of the predecessor contract.

Comments on the proposed rule will be accepted until July 2, 2012.

Quorum Call: NLRB’s New Election Rules Struck Down

Kelly Sharpe — Tue, 15 May 2012 08:39:11 -0500

On May 14, 2012, a federal court struck down the National Labor Relations Board’s new election rules because the NLRB issued the final rules without a participating quorum. This decision is a major setback to the NLRB’s effort to make it easier for unions to win elections.

The NLRB’s proposed new election rules are summarized here. On December 16, 2011, the NLRB tried to finalize some of these new rules, including rules that would have significantly altered how the NLRB processes union election petitions. The new rules were designed to speed up elections. Unions control when a petition for election is filed and will only file the petition when they have a substantial advantage. Faster union elections maximize the unions’ advantage by preventing employers from communicating the many disadvantages of unions to their employees in time to affect the election.

The NLRB needs three members to have a quorum. The NLRB had three members on December 16. The NLRB tried to finalize the new election rules through a December 16 electronic vote. Two members voted to finalize the new rules, but the third member took no action (either for or against the new rules). The NLRB published the final rules on December 16 without waiting for the third member to vote or confirming that the third member was abstaining.

The court found that although the NLRB had a quorum of three members, the December 16 vote to finalize the new rules was invalid because all three members did not participate in the vote. The court emphasized that it was not ruling on the merits of the new rules and that the NLRB could readopt the rules after fixing the quorum problem. But the NLRB may not currently have a quorum as there are court challenges attacking three recent recess appointments to the NLRB. If these recess appointments are struck down, the NLRB would only have two members.

The NLRB will almost certainly appeal the court’s decision. In the meantime, employers facing union election petitions should insist that the petitions be processed under the old rules. We will pass on further developments.

Abrams Elected Member of CBA Board of Governors

Kathy Major — Mon, 14 May 2012 13:29:17 -0500

James D. Abrams has been elected as a Member of the Columbus Bar Association Board of Governors. He and five other new Board Members will be inducted at the 2012 CBA Annual Meeting and Luncheon on Friday, June 15 from 12:00 pm - 1:30 pm at the Sheraton Columbus Hotel at Capitol Square.

Mr. Abrams extends his thanks and gratitude to those fellow CBA members who voted for him. Further, he reinforced that he “is committed to continued service with the CBA and to advancing the causes that will sustain the Association and the interests of our members.” As a CBA Board of Governors Member, he looks forward to making a notable and positive impact in our Greater Columbus business community.

Mr. Abrams has been active in the CBA for years. He is currently Chair of the Pro-Bono Committee and formerly was the Co-Chair of the Federal Courts Committee. Mr. Abrams is a successful litigation partner at Taft Stettinius & Hollister LLP (who merged with Chester, Willcox & Saxbe in January 2012). Having invested over 20 years in his career as a business executive with major U.S. retailers and manufacturers, Mr. Abrams brings real-life perspective to client legal matters. Mr. Abrams is also a member of the Construction and Sports practice groups at Taft.

About the Columbus Bar Association
The Columbus Bar Association is a diverse community of nearly 5,000 central Ohio legal professionals. Founded in 1869, the association is led by a Board of Governors consisting of 11 members, three Officers, and the Executive Director. The Board oversees the activities of its various committees and staff. Through the active involvement of our broad and diverse membership, the Columbus Bar delivers innovative and cost effective services to members of the legal profession and to the general public. For more information, visit http://www.cbalaw.org.

About Taft
At Taft Stettinius & Hollister LLP, delivering outstanding legal performance to help clients succeed is what drives and motivates our more than 330 attorneys every day. Taft has offices in Cincinnati, Cleveland, Columbus and Dayton, Ohio; Indianapolis, Indiana; Covington, Kentucky; and Phoenix, Arizona. The firm practices across a wide range of industries, in virtually every area of law, including Business and Finance; Litigation; Labor and Employment; Intellectual Property; Business Restructuring, Bankruptcy and Creditor Rights; Environmental; Health and Life Sciences; Private Client Services; Real Estate; and Tax. With a proven track record of experience since 1885, the firm offers breadth and depth of legal expertise coupled with a trusted business perspective to help our clients, big and small, regionally, nationally and internationally, reach their goals.

Taft Attorneys Frank Deveau and David Guevara Publish Book Titled “Environmental Liability and Insurance Recovery"

Kelly Sharpe — Thu, 10 May 2012 14:40:34 -0500

INDIANAPOLIS, IN — Taft attorneys Frank J. Deveau and David L. Guevara, Ph.D., designed and edited a new book titled Environmental Liability and Insurance Recovery. The book was published in May 2012 by ABA Book Publishing and was sponsored by the ABA’s Tort Trial and Insurance Practice Section.

Environmental law and insurance law demand the mastery of an intricately involved set of concepts, definitions, rules, and regulations – all of which are continuously developing. Environmental Liability and Insurance Recovery addresses the legal issues at the crossroads of environmental law and insurance law. Specifically, Environmental Liability and Insurance Recovery addresses the diverse ways in which a party may be exposed to environmental liability and how insurance coverage may provide financial support for such liability.

Frank J. Deveau serves as co-chair of Taft's Environmental practice group and represents clients in relation to all aspects of environmental law. For over 30 years he has advised and defended clients in relation to environmental litigation involving private parties, and federal and state government. A substantial amount of his practice has also involved all facets of environmental insurance recovery. Mr. Deveau has been routinely recognized as an Indiana Superlawyer and has been listed in Best Lawyers in America since 1991. He also was recently named Best Lawyers in America’s 2012 Environmental Lawyer of the year for Indianapolis.

David L. Guevara, Ph.D., is a member of the firm’s Environmental Law and Litigation practice groups and concentrates his practice in complex environmental litigation and insurance law. Mr. Guevara’s other publications include "The Application and Regulation of Institutional Controls in Indiana" in Implementing Institutional Controls at Brownfields and Other Contaminated Sites. Mr. Guevara serves as the Chair of the Environmental Law Section of the Indianapolis Bar Association. Mr. Guevara attended the University of Notre Dame Law School where he was the recipient of the Graham Law Fellowship. While at Notre Dame, Mr. Guevara was Editor-in-Chief of The Journal of College and University Law. Mr. Guevara was selected by Law & Politics Magazine as an Indiana Rising Star in 2012.

To purchase a copy of this book, please click here.

New Kentucky “Pill Mill Bill” Places New Restrictions on Pain Management Facilities and Controlled Substances Prescribing

Kelly Sharpe — Tue, 08 May 2012 07:21:50 -0500

On April 24, Governor Beshear signed into law Kentucky House Bill 1, which introduces restrictions on pain management clinics, strict new limits on prescribing controlled substances, and increased reporting requirements for practitioners using Kentucky’s “KASPER” electronic controlled substances monitoring system. Proponents of the new law hailed it as an important step in battling the prescription drug abuse epidemic that has arisen in Kentucky. Critics of the bill (including the Kentucky Medical Association) argue that it overreaches by intruding into the physician patient relationship and creating burdensome requirements on physicians.

HB 1 defines a “Pain Management Facility” as a facility where the majority of the patients of practitioners at the facility are provided treatment for pain that includes the use of controlled substances and either (i) the facility’s primary practice component is the treatment of pain or (ii) the facility advertises in any medium for any type of pain management services. Specifically excluded from this definition are educational institutions, hospices, ambulatory surgical centers, long-term care facilities, hospitals, and offices of hospital-employed physicians. HB 1 requires each pain management facility to be owned only by licensed physicians and to be operated by a certified pain management specialist (whether the owner or his or her designee).

HB 1 also places tight restrictions on health care practitioners prescribing controlled substances, whether or not in the context of a pain management facility. Specifically, HB 1 requires that prior to the initial prescribing or dispensing of certain classes of controlled substance, the practitioner shall:

Obtain a complete medical history and conduct a physical examination of the patient and document the information in the patient’s medical record;
Query KASPER for all available data on the patient;
Make a written treatment plan stating the objectives of the treatment and further diagnostic examinations required;
Discuss the risks and benefits of the use of controlled substances with the patient, including the risk of tolerance and drug dependence; and
Obtain written consent for the treatment.

In addition, a practitioner must periodically monitor the course of treatment and query KASPER no less than once every three months before issuing any new prescription refills for the controlled substances. The practitioner must also create and maintain detailed records regarding the patient and the controlled substances prescribed. The bill also mandates that each health care professional licensing board in the Commonwealth establish regulations regarding controlled substances, including establishing mandatory prescribing and dispensing standards, prohibiting a practitioner from dispensing greater than a forty-eight hour supply of certain controlled substances, and establishing procedures for suspending a practitioner’s license to protect patients and the public.

HB 1 transfers operation of KASPER from the Cabinet for Health and Family Services to the Attorney General, and it requires all licensed health care practitioners and pharmacists to register to use KASPER. Dispensers of certain controlled substances must report data to KASPER within twenty-four hours of dispensation. Practitioners must query KASPER prior to prescribing or dispensing certain controlled substances.

Finally, HB 1 authorizes an interstate compact to permit state prescription monitoring programs to share prescription data among themselves. The provisions of the bill regarding the compact are to become effective and binding upon the legislative enactment of the compact into law by no less than six states.

HB 1 becomes effective on July 12, 2012.

Labor & Employment Breakfast Briefing - Indianapolis

Kelly Sharpe — Tue, 24 Apr 2012 08:06:27 -0500

Light The Night Walk: Taking Steps To Cure Cancer

Kathy Major — Wed, 02 May 2012 10:59:21 -0500

Trent Sandifur Quoted In Indiana Lawyer Article

Kelly Sharpe — Tue, 01 May 2012 14:50:58 -0500

Taft Stettinius & Hollister partner Trent Sandifur, based in the firm’s Indianapolis office, was quoted in the Indiana Lawyer article titled, "Changing world inspires law school program" on April 25, 2012.

Sandifur commented on the role that globalization has played in increased enforcement of the Foreign Corrupt Practices Act (FCPA). According to Sandifur, the FCPA has “become more of an enforcement priority largely because the Department of Justice and (the U.S. Securities and Exchange Commission) view it as a way to help developing countries…come out of a culture where bribery is much more accepted and a tolerated way of doing business. My job is to help companies set up programs to help employees and distributors and sales agents in remote areas of the world put procedures in place to prevent it.” Please click here to read the article in its entirety.

Sandifur is a member of Taft’s FCPA and International Anti-Corruption Practice Area and concentrates his practice on FCPA and international anti-corruption compliance, investigations, and defense. For more information about Taft’s FCPA and International Anti-Corruption Practice Area, please click here.

Trent Sandifur To Present At FCPA Conference

Kelly Sharpe — Tue, 01 May 2012 14:31:43 -0500

Taft Stettinius & Hollister partner Trent Sandifur, based in the firm’s Indianapolis office, will present at the American Conference Institute’s 15th Foreign Corrupt Practices Act (FCPA) Boot Camp in Chicago on June 25.

In a workshop titled, “The Fundamentals of FCPA Compliance: An In-Depth Guide to Navigating the Foreign Corrupt Practices Act and Lessons Learned from Recent Developments in Caselaw and Enforcement,” Sandifur will discuss the development and implementation of effective anti-corruption compliance programs. For more information about the FCPA Boot Camp, please click here.

Sandifur is a member of Taft’s FCPA and International Anti-Corruption Practice Area and concentrates his practice on FCPA and international anti-corruption compliance, investigations, and defense. For more information about Taft’s FCPA and International Anti-Corruption Practice Area, please click here.

Robert Bilott Quoted in News Stories

Kelly Sharpe — Fri, 27 Apr 2012 11:28:04 -0500

Taft partner Robert Bilott was recently quoted in an article picked up by many media outlets, including a nation-wide AP article, in connection with the announcement of a link between cancer and exposure to a chemical in the drinking water of class members who settled a West Virginia class action lawsuit back in 2005 (and relating to the consequences of this cancer link for those class members). He was also quoted in an article related to the recent selection of a medical panel in the same case. See below for a few examples of where these articles were picked up.

Taft Welcomes Associate Andrew Woods to the Dayton Office

Jen Mixson — Thu, 26 Apr 2012 14:19:41 -0500

DAYTON, OHIO – Taft Stettinius & Hollister LLP is pleased to announce that Andrew M. Woods recently joined the firm’s Dayton office as an associate in the Private Client practice group. He focuses his practice on estate planning, probate, tax planning and tax litigation. Prior to joining Taft, Woods was a tax consultant for Deloitte Tax LLP’s International Tax Services group.

Woods received his J.D. from the University of Denver Sturm College of Law and his B.S., cum laude, from the University of Arizona Eller College of Management. He is licensed to practice in Ohio.

About Taft

At Taft Stettinius & Hollister LLP, delivering outstanding legal performance to help clients succeed is what drives and motivates our more than 330 attorneys every day. Taft has offices in Cincinnati, Cleveland, Columbus and Dayton, Ohio; Indianapolis, Indiana; Covington, Kentucky; and Phoenix, Arizona. The firm practices across a wide range of industries, in virtually every area of law, including Business and Finance; Litigation; Labor and Employment; Intellectual Property; Business Restructuring, Bankruptcy and Creditor Rights; Environmental; Health and Life Sciences; Private Client Services; Real Estate; and Tax. With a proven track record of experience since 1885, the firm offers breadth and depth of legal expertise coupled with a trusted business perspective to help our clients, big and small, regionally, nationally and internationally, reach their goals.

Taft Attorneys Hicks and Berlin Recognized as Leadership in Law Honorees

Kelly Sharpe — Wed, 25 Apr 2012 12:34:08 -0500

INDIANAPOLIS, IN — Taft Stettinius & Hollister LLP is pleased to announce two Indianapolis attorneys were recently recognized as Leadership in Law honorees. Partner Robert J. Hicks was honored as a Distinguished Barrister and associate Keith R. Berlin was recognized as an Up and Coming Lawyer by The Indiana Lawyer.

The Indiana Lawyer annually honors Indiana attorneys who make meaningful contributions not only to the legal profession but to their communities and beyond. The Distinguished Barrister and Up and Coming Lawyer Awards honor such members of the legal community.

Mr. Hicks is partner-in-charge of Taft’s Indianapolis office. He focuses his practice on complex business and commercial transactions, private equity and venture capital transactions, mergers and acquisitions, structured financings, business advisory services, and structural tax matters. He is a 1986 graduate of the William and Mary Law School, Williamsburg, Virginia, and a 1984 graduate of Butler University, Indianapolis.

Mr. Berlin is an associate in Taft’s litigation and environmental practice groups. He is a litigator with significant experience in complex litigation, primarily in the environmental context. He received a B.A., magna cum laude, in Psychology from Southern Illinois University in 2005 and earned his juris doctorate, summa cum laude, from Indiana University Robert H. McKinney School of Law in May 2008. Mr. Berlin is a member of the Indianapolis Bar Association and currently serves as the Chair of its Pro Bono Standing Committee (“PBSC”).

Ed Diller Appointed to Board of Ten Thousand Villages of Cincinnati, Inc.

Kelly Sharpe — Fri, 20 Apr 2012 13:37:08 -0500

Ed Diller was appointed to the Board of Ten Thousand Villages of Cincinnati, Inc., a world fair trade organization that strives to improve the livelihood of tens of thousands of disadvantaged artisans though the sale of handmade jewelry, crafts and art. Ed is the Partner-in-Charge of Taft's Cincinnati office and a member of the Business & Finance and Real Estate Practice Groups.

Taft Partner Edward Diller Elected to Downtown Cincinnati Inc. Board

Kelly Sharpe — Thu, 19 Apr 2012 13:51:35 -0500

Taft Stettinius & Hollister LLP is pleased to announce that Edward D. Diller, partner-in-charge of Taft Stettinius & Hollister’s Cincinnati office, has been elected to the Board of Downtown Cincinnati Incorporated (DCI). DCI is a non-profit business organization with a mission to build a dynamic metropolitan center valued as the heart of the region. DCI provides leadership and advocacy for important issues that ensure long-term downtown vitality, and plays an important role in working with strong partners to improve downtown.

Mr. Diller has been an attorney in the Business and Finance Department at the law firm of Taft Stettinius & Hollister LLP since 1976, and a partner since 1984. He is a member of the firm’s Executive and Development Committees. Mr. Diller practices primarily in the areas of real estate, health care and general corporate law.

After receiving his undergraduate degree from Bluffton University, Mr. Diller attended the University of Oregon and later received his law degree from Harvard Law School. He is currently a Director of Messer, Inc., Messer Construction Company and Saturday Knight Ltd. From 2009 until 2011 he served as Moderator of the Mennonite Church USA. In addition to the DCI Board, he is a member of the Boards of Trustees of Cincinnati Museum Center (as well as secretary and chair of its Governance Committee), Mennonite Central Committee - US (as well as Treasurer), and the Dan Beard Council, Boy Scouts of America (previously serving as chair of the Board). For many years, he served on the Board and as Board Chair of Bluffton University and Family Service of the Cincinnati Area and the Family Service Foundation Board, and as Board Member and Vice-Chair of the Mennonite Education Agency.

Mr. Diller has been listed in The Best Lawyers in America since 1987 and has been included among the 100 Ohio Super Lawyers listings jointly developed by the publishers of Cincinnati Magazine and Law & Politics magazine. He also is listed in Chambers USA. He was named the Southwest Ohio region's Lawyer of the Year in Real Estate Law for the 2009 edition of The Best Lawyers in America.

About Taft’s Community Involvement
Since the firm's founding, one of Taft's fundamental principles has been that giving back to the community is an integral part of what defines a responsible company and its employees. Today, Taft attorneys and staff are actively involved in more than 150 organizations in the communities where we live and work. From the arts and cultural groups to non-profits and professional organizations, the firm takes great pride in its volunteer service.

Taft Partner Ed Diller Re-elected to Board of Mennonite Central Committee

Kelly Sharpe — Thu, 19 Apr 2012 13:49:38 -0500

Taft Stettinius & Hollister LLP is pleased to announce that Edward D. Diller, partner-in-charge of Taft Stettinius & Hollister’s Cincinnati office, has been re-elected to the Board of Mennonite Central Committee US and will serve as its Treasurer. Mennonite Central Committee US (MCC) is a worldwide ministry of Anabaptist churches which focus on disaster relief, sustainable economic development and peace and justice issues. MCC has workers or financial commitments in more than fifty countries around the world, including the U.S. and Canada.

Mr. Diller has been an attorney in the Business and Finance Department at the law firm of Taft Stettinius & Hollister LLP since 1976, and a partner since 1984. He is a member of the firm’s Executive and Development Committees. Mr. Diller practices primarily in the areas of real estate, health care and general corporate law.

After receiving his undergraduate degree from Bluffton University, Mr. Diller attended the University of Oregon and later received his law degree from Harvard Law School. He is currently a Director of Messer, Inc., Messer Construction Company and Saturday Knight Ltd. From 2009 until 2011 he served as Moderator of the Mennonite Church USA. In addition to the Mennonite Central Committee Board, he is a member of the Boards of Trustees of Cincinnati Museum Center (as well as secretary and chair of its Governance Committee), Downtown Cincinnati Inc. and the Dan Beard Council, Boy Scouts of America (previously serving as chair of the Board). For many years, he served on the Board and as Board Chair of Bluffton University and Family Service of the Cincinnati Area and the Family Service Foundation Board, and as a Board member and Vice-Chair of the Mennonite Education Agency.

Mr. Diller has been listed in The Best Lawyers in America since 1987 and has been included among the 100 Ohio Super Lawyers listings jointly developed by the publishers of Cincinnati Magazine and Law & Politics magazine. He also is listed in Chambers USA. He was named the Southwest Ohio region's Lawyer of the Year in Real Estate Law for the 2009 edition of The Best Lawyers in America.

About Taft’s Community Involvement
Since the firm's founding, one of Taft's fundamental principles has been that giving back to the community is an integral part of what defines a responsible company and its employees. Today, Taft attorneys and staff are actively involved in more than 150 organizations in the communities where we live and work. From the arts and cultural groups to non-profits and professional organizations, the firm takes great pride in its volunteer service.

Penetrating the China Market

Kathy Major — Tue, 17 Apr 2012 15:55:41 -0500