Latest News - Taft Stettinius & Hollister LLP

Occupational Safety and Health Claims

Kelly Sharpe — Mon, 06 Feb 2012 15:04:04 -0600

Tom Terp and Kim Burke co-authored the chapter "Occupational Safety and Health Claims" in the Business and Commercial Litigation in Federal Courts, Third Edition, Volume 8, Chapter 91. The Treatise was published in December 2011 by Thomson Reuters and the American Bar Association Section of Litigation. Robert L. Haig is the Editor-in-Chief.

Ed Diller, Bill Seitz and George Glover Named to Cincy Magazine's Power 100 List

Kelly Sharpe — Thu, 02 Feb 2012 15:30:29 -0600

Ed Diller, Partner-in-Charge of Taft's Cincinnati office, Bill Seitz, a Taft partner and member of the Ohio Senate, and George Glover, Managing Director of Taft affiliate Focused Capitol Solutions, have been named to Cincy Magazine's Power 100 list. The eighth annual listing names the TriState's most influential leaders in business, politics, media and community involvement, according to the magazine's editors.

A Staged Approach to Preparing for the America Invents Act

Kelly Sharpe — Wed, 01 Feb 2012 13:24:48 -0600

Advising Insolvent Entrepreneurs - Guaranties Pre-Bankruptcy Planning Exemptions and Reorganizations

Kelly Sharpe — Wed, 01 Feb 2012 10:28:29 -0600

Portland Cement Facilities Challenge New EPA Rules

Kelly Sharpe — Sun, 22 Jan 2012 12:08:10 -0600

On December 9, 2011, the United States Court of Appeals for the District of Columbia invalidated and delayed the implementation of certain provisions in the United States Environmental Protection Agency’s (“EPA”) new rules governing hazardous pollutants emitted from cement kilns. EPA passed the rules pursuant to the National Emission Standards for Hazardous Air Pollutants (“NESHAP”) and New Source Performance Standards (“NSPS”) sections of the Clean Air Act.

EPA’s NESHAP and NSPS rules regulate certain emissions created by portland cement facilities. These facilities that create portland cement do so by mixing raw materials in a kiln and heating the mixture to create “clinker,” which is then manufactured into powder. The kiln firing process causes emissions of hazardous chemicals, including particulate matter. Additionally, clinker is stored in large piles, which creates the potential for additional emissions. Several cement manufacturers, including the Portland Cement Association (“PCA”) claimed that the rules violated the Clean Air Act and that EPA acted unreasonably in creating the rules.

The central issue was whether EPA’s development of a definition regarding commercial and industrial solid waste incinerators (“CISWI”), which aimed to create a separate category of stationary sources subject to emission standards distinct from the NESHAP, was vague, ambiguous and overly broad. For example, CISWI would apply to kilns combusting secondary fuels, like solid waste, as alternative fuels. Thus, certain kilns could be regulated under the CISWI provisions even though the facility would not trigger regulation under the portland cement NESHAP.

Moreover, EPA developed the CISWI definition together with its new NESHAP standards, but intentionally failed to finalize the CISWI definition until after it passed the NESHAP. Consequently, several cement manufactures, including the PCA, alleged that EPA should have treated CISWI and the NESHAP as closely interrelated rather than distinct and separate.

Agreeing with PCA’s argument, the court noted that EPA had previously indicated that it would reevaluate the NESHAP standards after finalizing the CISWI definition. However, EPA took a much different course of action. Rather than finalizing the CISWI definition concurrently with the finalized NESHAP standard, EPA proposed CISWI after the comment period for NESHAP closed. Stressing the precedential importance of “reasoned decision-making,” the court chided EPA for willfully ignoring the relevant relation between CISWI and its impact on the NESHAP. The court correctly held that EPA did not have the discretion to apply a dataset before it properly defined “the universe of relevant data.” In short, EPA unlawfully based its decision to postpone finalization of CISWI on a premise that it had already planned to change.

The court went on to require EPA to grant PCA’s petition for administrative review of the NESHAP rule. Additionally, the court delayed implementation of the NESHAP standards applicable to clinker storage piles. As to PCA’s NSPS challenge, the court rejected PCA’s arguments and upheld the rule as a reasonable exercise of EPA’s discretion.

For additional information regarding EPA’s new NESHAP and NSPS rules, contact Frank Deveau or any member of Taft’s Environmental Practice Group.

*Significant contributions were made to this article by Julian Harrell.

Taft Sponsors OVA Summit VII on February 10

Kathy Major — Fri, 27 Jan 2012 12:47:18 -0600

Taft Stettinius & Hollister LLP is the keynote sponsor of the Ohio Venture Association (“OVA”) Venture Capital Summit VII: From Entrepreneur to Exit.

Summit Details:
7:30 am – 1:30 pm
Friday, February 10, 2012
Corporate College
4400 Richmond Road (1/2 mile south of Tri-C Campus)

From 10:00 – 11:00 am, Taft attorney Howard Bobrow will moderate a panel discussion titled, “Capital Innovation – Is the ‘Valley of Death’ Dead?”

Mr. Bobrow, a business and transactional lawyer in the firm’s Business & Finance practice group, is a trusted advisor to private equity funds, venture capital funds, and emerging growth companies. He counsels private equity and venture capital funds and other institutional investors, as well as angel investors, on all aspects of acquisitions, dispositions, capital formation, and private placements.

About OVA
The Ohio Venture Association is a group of northeast Ohio business people dedicated to providing an atmosphere for the interchange of ideas on entrepreneurship, new ventures and venture capital. The Association provides a scheduled forum for this interchange. In addition to he OVA also has monthly meetings (except July and August) at The Union Club, 1211 Euclid Avenue. For more information or to register, visit www.ohioventure.org.

Employer Not Liable Under CERCLA For Employee's Actions

Kelly Sharpe — Wed, 11 Jan 2012 13:15:04 -0600

On November 9, 2011, the United States District Court for the District of Minnesota (No. 0:11-cv-00619-DWF-FLN), ruled that Northern States Power Company, through its wholly owned subsidiary Xcel Energy, (“Xcel”) was not liable for the unauthorized actions of its former employee that resulted in environmental contamination.

Without the Xcel’s knowledge, one of its long-time employees took a number of electrical capacitors containing Polychlorinated Biphenyls (“PCBs”) and stored the capacitors on his property. The employee subsequently died and his property passed to his wife. Sometime later, the wife asked Xcel to remove the capacitors from the property. In doing so, Xcel discovered that the capacitors had leaked PCBs onto the property.

After discovering the PCB contamination, the wife contracted to sell the property to Plaintiffs. However, she did not disclose the previous presence of the capacitors on the property. Consequently, Plaintiffs sued Xcel, alleging that the PCB-containing capacitors caused the property to lose virtually all of its value and caused Plaintiffs to suffer substantial and varying forms of harm. Plaintiffs sought to recover their alleged damages under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), and other Minnesota state environmental laws.

Xcel moved to dismiss Plaintiffs’ CERCLA claim arguing that Plaintiffs failed to allege facts sufficient to establish Xcel was a “responsible party” or that the employee’s actions were within the scope of his employment. In granting Xcel’s motion, the district court noted that all of Plaintiffs’ claims were based on the assumption that Xcel was responsible for the capacitors that the employee transported to his property. However, Plaintiffs’ complaint did not allege any facts demonstrating how the employee acquired the capacitors. Nor did the complaint offer any facts to buttress Plainitffs’ assertion that Xcel somehow knew of or facilitated the employee’s transportation or storage of the capacitors to the property.

The statutory prerequisites to properly assert and maintain a CERCLA claim are well-established. However, the court noted that Plaintiffs’ complaint failed to make even a prima facie showing of these elements. For example, Plaintiffs did not allege that Xcel was a “covered person,” that Xcel owned or operated the “facility” where the PCBs were released, that Xcel “arranged for disposal” of the PCBs, or that Xcel accepted the PCBs for transport and disposal. Consequently, the court dismissed Plaintiffs’ claim and ruled in favor of Xcel.

It will be interesting to see if Plaintiff's appeal the Court's ruling or seek to amend their complaint to include the proper CERCLA allegations. This ruling indicates that CERCLA’s broad net of liability does not always ensnare all those who have come in contact with a hazardous substance that is later released. Before filing a CERCLA claim, a CERCLA plaintiff should ensure that it can satisfy all of the well-established prerequisites of its CERCLA claim.

For more information regarding CERCLA or state environmental law claims, contact Frank Deveau or any member of Taft’s Environmental Practice Group.

*Significant contributions were made to this article by Julian Harrell.

IRS Reopens Offshore Voluntary Disclosure Program

Kelly Sharpe — Thu, 26 Jan 2012 11:49:04 -0600

The Internal Revenue Service recently reopened its Offshore Voluntary Disclosure Program (OVDP) as a part of its efforts to help people hiding offshore accounts get current with their taxes.

The IRS decided to reopen the OVDP following an influx of taxpayer requests to enter into the program after the closure of the 2009 and 2011 programs. The influx of taxpayer requests comes in the wake of the IRS’s ongoing efforts to work on a wide range of international tax issues and work with the Department of Justice to pursue criminal prosecution of tax evasion. IRS Commissioner Doug Shulman has sent the following warning to taxpayers: “As we’ve said all along, people need to come in and get right with us before we find you. We are following more leads and the risk for people who do not come in continues to increase.”

The IRS says the new program is similar to the 2011 program in many ways, but with a few key differences.

Deadline. Unlike the 2009 and 2011 programs, the new program will be open for an indefinite period unless otherwise announced. The IRS has cautioned, however, that the terms of the program could change at any time going forward or the IRS may decide to end the program entirely at any point.

Penalty Structure. The overall penalty structure for the new program is the same as it was for 2011, except for taxpayers in the highest penalty category. Under the new program, the penalty framework requires individuals to pay a penalty of 27.5% of the highest aggregate balance in foreign bank account/entities or value of foreign assets during the eight full tax years prior to the disclosure. That is up from 25% in the 2011 program and 20% in the 2009 program. A reduced penalty rate of 12.5% or 5% is available in certain circumstances. For example, a reduced rate of 12.5% is available for taxpayers whose offshore accounts or assets did not surpass $75,000 in any calendar year covered by the new OVDP. As under the prior programs, taxpayers who feel that the penalty is disproportionate may opt instead to be examined.

Filing & Payment Obligations. Participants must file all original and amended tax returns and include payment for back-taxes and interest for up to eight years in addition to paying accuracy-related and/or delinquency penalties. Participants must also file all delinquent Forms TD 90-22.1, Report of Foreign Bank and Financial Accounts (FBARs).

The IRS is also aware of dual citizens and others who may be delinquent in filing, but owe no U.S. tax, and is currently developing procedures for these taxpayers to come into compliance with U.S. tax laws.

Supremes Slam U.S. EPA’s Wetlands Heavy-Handedness During Oral Argument

Kelly Sharpe — Tue, 24 Jan 2012 07:06:54 -0600

Justice Alito called EPA’s position “outrageous.” This was one of the many barbs aimed at EPA during oral argument in Sackett v. EPA, a case where property owners seek pre-enforcement judicial review of an EPA administrative order.

The Sacketts wanted to build a home on a small lot (0.63 acres) in a built-up residential subdivision along a lake. After they graded the lot, EPA issued an administrative order against them claiming the Sacketts filled in jurisdictional wetlands without a permit in violation of Section 404 of the Clean Water Act (CWA). When the Sacketts asked to be heard on the administrative order, EPA refused. This left the Sacketts with two unattractive options.

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

Emerson to Address the 50th Annual AFA Convention and Trade Exhibition

Kathy Major — Mon, 23 Jan 2012 12:31:28 -0600

Shawn C. Emerson, attorney in the Labor and Employment practice in Taft's Dayton office, will provide a Legal Update to the attendees of the 50th Annual AFA Convention and Trade Exhibition.

The convention will be held at the Miami Beach Convention Center on January 25 - 27, 2012.

AFA (the American Fence Association) is the largest organization representing the entire fence, deck, and railing industry in the United States and parts of Canada. With 30 member chapters serving the association, AFA offers educational and certification options, along with providing networking opportunities to keep its members above and beyond their competition. AFA also reaches out to members from over 18 foreign countries.

63 Taft Attorneys Honored as Ohio Super Lawyers 2012

Kathy Major — Wed, 04 Jan 2012 16:50:07 -0600

Sixty-three attorneys from Taft Stettinius & Hollister’s Ohio offices are honored as Ohio Super Lawyers 2012. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi‐phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

Additional Honors
Taft attorneys who received the highest point totals in the Ohio nomination, research and blue ribbon review process include the following.

Top 100 Ohio Super Lawyers
Michael H. Diamant
Stephen C. Fitch
David H. Wallace

Top 25 Women Super Lawyers
Catherine T. Dunlay
Pamela S. Krivda
Elizabeth M. Stanton

Top 25 and Top 50 Cincinnati Women Super Lawyers
Doreen Canton

Top 50 Columbus Super Lawyers
Stephen C. Fitch
Charles R. Saxbe

Top 50 Ohio Women Super Lawyers
Doreen Canton
Catherine T. Dunlay

Top 50 Cleveland Super Lawyers
Michael H. Diamant
David H. Wallace

The Taft attorneys recognized as Ohio Super Lawyers 2012 are:

James D. Abrams
General Litigation

Kevin D. Barnes
Mergers & Acquisitions

John W. Bentine
Utilities, Energy & Natural Resources

Donald C. Brey
Political Law

Kim K. Burke
Environmental Litigation

Doreen Canton
Employment & Labor

Ronald C. Christian
Non-Profit

L. Clifford Craig
Business Litigation

Michael H. Diamant
Business Litigation

Edward D. Diller
Real Estate

G. Jack Donson, Jr.
Antitrust Litigation

Scott M. Doran
Environmental

W. Stuart Dornette
Business Litigation

Catherine T. Dunlay
Health Care

Samuel M. Duran
Workers' Compensation

Stephen C. Fitch
Business Litigation

Lance A. Gildner
Tax

Gerald S. Greenberg
Mergers & Acquisitions

Stephen M. Griffith, Jr.
Real Estate

Jennifer Hann Harrison
Workers' Compensation

Jill F. Helfman
Family Law

Timothy E. Hoberg
Securities & Corporate Finance

Daniel J. Hoffheimer
Estate Planning & Probate

Timothy J. Hurley
Bankruptcy & Creditor/Debtor Rights

Aimee L. Keller
Family Law

J. Anthony Kington
Business/Corporate

Pamela S. Krivda
Employment & Labor

Michael A. Laing
Employee Benefits/ERISA

Thomas J. Lee
Business Litigation

Eugene B. Lewis
Family Law

Bruce J.L. Lowe
Bankruptcy & Creditor/Debtor Rights

Julia B. Meister
Business Litigation

W. Timothy Miller
Bankruptcy & Creditor/Debtor Rights

Patrick J. Mitchell
Tax

Jeffrey A. Mullins
Employment & Labor

Carl A. Murway
Family Law

Stephen M. Nechemias
Tax

Stephen M. O'Bryan
General Litigation

R. Joseph Parker
Business Litigation

Craig B. Paynter
Construction/Surety

David H. Peck
Employment & Labor

William M. Phillips
Real Estate

Timothy P. Reilly
Employment & Labor

Richard S. Rivitz
Real Estate

Gregory P. Rogers
Employment & Labor

Richard A. Rosner
Real Estate

Charles R. Saxbe
General Litigation

Russell S. Sayre
Business Litigation

Thomas R. Schuck
Business Litigation

Melvin S. Shotten
Banking

Elizabeth M. Stanton
Employment Litigation

William J. Stavole
Bankruptcy & Creditor/Debtor Rights

Mark J. Stepaniak
Employment & Labor

Jeffrey A. Swillinger
Employment & Labor

David R. Tavolier
Tax

Thomas T. Terp
Environmental

Fred A. Ungerman, Jr.
Employment & Labor

Mark J. Valponi
Employment & Labor

Missia Vaselaney
Estate Planning & Probate

David H. Wallace
Business Litigation

Susan E. Wheatley
Estate Planning & Probate

Michael J. Zavatsky
Immigration

Timothy L. Zix
Workers' Compensation

About Super Lawyers
Super Lawyers is published as a special supplement in leading newspapers and city and regional magazines across the country. Super Lawyers Magazine is distributed to all attorneys in the state or region, the lead corporate counsel of Russell 3000 companies and the ABA-approved law school libraries. Polling, research and selection are performed by Law & Politics, a publication of Key Professional Media, Inc. For more information, visit www.superlawyers.com.

21st Annual Business & Industry's Sustainability & EHS Symposium

Kelly Sharpe — Tue, 10 Jan 2012 12:54:44 -0600

Chou-il Lee Joins Taft's Litigation Practice Group

Kelly Sharpe — Fri, 20 Jan 2012 14:23:55 -0600

Taft Stettinius & Hollister LLP announces that Chou-il Lee has joined the firm’s Litigation Practice Group as of counsel in its Indianapolis office.

Lee concentrates his practice on all matters involving litigation and municipal representation. Prior to joining the firm he practiced at Modesitt Law Firm, P.C., in Terre Haute, Indiana. He served as a Felony Trial Deputy for both the Vigo County and Clay County Prosecutors office where he was first chair for the conviction of five A Felonies over the past five years. Lee has served as the City Attorney for Terre Haute, Indiana, since 2008.

Lee received his B.A. from Case Western Reserve University in 1995. He earned his J.D. from the Indiana University Maurer School of Law – Bloomington in 1998.

Jindal Selected for C-Change Class 7

Kathy Major — Fri, 20 Jan 2012 08:10:40 -0600

Sonya S. Jindal has been selected by C-Change as a participant in Class 7. C-Change is a year-long leadership-development program for emerging leaders in the Greater Cincinnati region. Applicants are selected through a highly competitive process. The curriculum combines personal leadership development with community engagement for a program that enhances current leadership roles and prepares participants for future ones, both professionally and personally. In addition, the program offers opportunities to connect with a talented roster of professionals in the community

Taft is confident that Ms. Jindal will make a significant contribution to the program and that the program will allow her to make an even greater contribution to our community in the future. The program kicked off with a reception on January 18, 2012. The Class will meet nine times over the upcoming year, with a graduation ceremony on December 14, 2012 culminating the exciting program

Ms. Jindal is an attorney in the Tax Practice Group at Taft. She received her bachelor's degree in finance in 2003 from Xavier University, where she graduated cum laude, was a member of Beta Gamma Sigma Honor Society, and received the Financial Executives International Outstanding Finance Student Award.

B. Ronan Johnson Joins Board of Directors For Meals On Wheels of Central Indiana

Kelly Sharpe — Thu, 19 Jan 2012 12:57:16 -0600

B. Ronan Johnson, an associate in Taft's Business & Finance Practice Group, has joined the Board of Directors for Meals on Wheels of Central Indiana.

Mr. Johnson graduated from the University of California at San Diego with a Bachelor of Arts degree in Economics. He earned his Juris Doctorate from the Washington University School of Law in St. Louis, where he served as an associate editor of the Journal of Law & Policy.

During law school, Mr. Johnson served as a judicial extern for Magistrate Judge Clifford J. Proud of the U.S. District Court for the Southern District of Illinois and worked as a legal intern for the Office of the City Attorney for the City of San Diego. Prior to joining the firm, Mr. Johnson was an associate for the Los Angeles office of a large international law firm and worked as a staff attorney for the Legal Aid Foundation of Los Angeles’ Eviction Defense Center. Prior to law school, he worked in management and sales for a Fortune 1000 company.

Mr. Johnson serves on the Executive Board of the Indianapolis Bar Association’s Young Lawyers Division and is a 2011-2012 participant in the United Way of Central Indiana's Leadership United - Generation Now Leadership Series.

National Law Review Publishes Article Authored by Bill Wagner

Kelly Sharpe — Fri, 13 Jan 2012 14:03:10 -0600

The National Law Review published Bill Wagner's article “The $24 Million Vapor Intrusion Remedy" on January 13, 2012.

Bill Wagner is a partner focused on environmental law and complex litigation. He is an experienced trial lawyer and trusted advisor to manufacturers, municipalities, commercial property owners, and individuals in cases involving hazardous waste, environmental contamination, enforcement actions brought by federal and state agencies, class action personal injury and toxic tort claims, and remediation cost recovery and allocation claims.

B. Ronan Johnson Elected to Executive Board of Indianapolis Bar Association's Young Lawyers Division

Kelly Sharpe — Tue, 10 Jan 2012 12:56:17 -0600

B. Ronan Johnson has been elected to the Executive Board of the Indianapolis Bar Association’s Young Lawyers Division. Mr. Johnson is an associate in Taft’s Indianapolis Business & Finance Practice Group.

Mr. Johnson serves on the Board of Directors of Meals on Wheels of Central Indiana and is a 2011-2012 participant in the United Way of Central Indiana's Leadership United - Generation Now Leadership Series.

31 Taft Attorneys Selected as Ohio Rising Stars 2012 by Super Lawyers

Kathy Major — Thu, 05 Jan 2012 12:02:16 -0600

Taft Stettinius & Hollister LLP is pleased to announce that 31 attorneys throughout the Ohio offices of Taft have been selected for inclusion in Super Lawyers–Rising Stars Edition 2012.

Criteria for selection is through a rigorous nomination process of the best attorneys who are age 40 or under, or who have been practicing for 10 years or less, and have been personally observed in action — whether as opposing counsel or co-counsel, or through other firsthand courtroom observation by senior attorneys. No more than 2.5 percent of the lawyers in the state are named to the Rising Stars list.

Taft Rising Stars 2012 are:

Brian E. Ambrosia
Employment Litigation

Douglas C. Anspach Jr.
Employment & Labor

Leon D. Bass
Intellectual Property

Philip R. Bautista
Business Litigation

Ryan M. Bednarczuk
Intellectual Property

Gregory W. Bee
Health Care

David J. Butler
Business Litigation

Julie A. Crocker
Business Litigation

Amelia Workman Farago
Business Litigation

Benjamin J. Helwig
Real Estate

Aaron M. Herzig
Business Litigation

Kevin M. Hilvert
Health Care

Catherine E. Howard
Business Litigation

Kimberlie L. Huff
Business Litigation

Mark R. Jacobs
Business Litigation

Elizabeth A. Kastner
Health Care

Patrick J. Krebs
Business Litigation

Christopher A. Kuhnhein
Mergers & Acquisitions

Edward J. Leader
Real Estate

Jessica A. Mager
Family Law

Ryan M. Martin
Employment & Labor

Peter S. Nealis
Securities & Corporate

Joseph C. Pickens
General Litigation

Kristen L. Safier
Business Litigation

Beth A. Silvers
Bankruptcy & Creditor/Debtor

Julia E. Tarvin
Estate Planning & Probate

Janica P. Tucker
Employment & Labor

Aaron J. Weir
Business/Corporate

Lisa K. Wiseman
Estate Planning & Probate

Michael J. Zbiegien Jr.
Business Litigation

James M. Zimmerman
Business/Corporate

About Super Lawyers
Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi‐phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.