North America

Barry Chatz, George Apostolides provide content for Financier Worldwide’s Global Reference Guide: Americas Restructuring 2011

Arnstein & Lehr attorney Barry A. Chatz

Barry A. Chatz

Arnstein & Lehr attorney George P. Apostolides

George P. Apostolides

An article entitled, “Midwest word from the street: times still are disconcerting” written by Chicago Partners Barry Chatz and George Apostolides was featured in Financier Worldwide’s Global Reference Guide: Americas Restructuring 2011. Financier Worldwide’s Global Reference Guides deliver valuable insight and extensive professional coverage of issues and development driving the international business community. Barry and George’s article addresses the continued concerns facing Midwestern businesses and corporations.

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Recognition of 18 lawyers from RSS by The Best Lawyers in Canada 2012

RSS is pleased to announce that 18 lawyers from the firm were recognized for their expertise in The Best Lawyers in Canada 2012. Best Lawyers ® has come to be regarded, both by members of the profession and the public, as the definitive guide to legal excellence since its inception in Canada six years ago. This new edition is based on a rigorous national survey involving more than 373,000 detailed evaluations of lawyers by other lawyers.

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Ohio Statehouse Update: Week in review: September 16, 2011 — Our top "4" subjects you should know

Week in review

September 16, 2011 — Our top “4” subjects you should know

1. Ohio House approves new Congressional district map

The Ohio House held session this week to vote on two pieces of legislation, House Bills 318 and 319. House Bill 318, which moves next year’s primary election from March to May, was approved by a 63-29 vote. An attempt to add an emergency clause in the bill did not receive the necessary two-thirds majority for inclusion. Therefore, the bill will not be in effect for the December 7 filing deadline for the March primary. 

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Multistate Tax Alert: Beware non-Ohio residents: If you sell debt or equity of an Ohio business, be prepared to pay tax on the gain!

Surprisingly, Ohio has a Rule that has the potential to be very costly to non-Ohio residents. Specifically, the Rule applies to the sale of debt or equity in certain Ohio businesses. The non-Ohio resident who sells either a closely-held pass-through entity or closely-held C corporation is expected to pay a hefty tax to Ohio on the capital gain in Ohio. The Rule, which is partially contained in Ohio Revised Code Section 5747.212, is the subject of much debate among Ohio tax practitioners. There are many details to the Rule, which is described in this Alert, but suffice it to say, the Rule should be thoughtfully considered by any non-resident who is considering the sale of an Ohio entity that is a “section 5747.212” entity.

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Labor & Employment Alert: NLRB continues on its mission to revamp labor law: Modifies standard for determining…

In our January 10, 2011 alert, “Inch by Inch, Row by Row,” we advised that the National Labor Relations Board (the Board) was re-evaluating how it determines an appropriate bargaining unit in non-acute health care facilities. In (Specialty Healthcare and Rehabilitation Center of Mobile), 357 NLRB No. 83 (Member Hayes dissenting…again), the Board found that Certified Nursing Assistants (CNA) may comprise an appropriate bargaining unit without including other nonprofessional employees. In doing so, the Board announced that it overruled Park Manor Care Center, Inc., 305 NLRB 872, 875 (1991) as “obsolete.”

As discussed previously, the Board historically has taken a more flexible approach as to what constitutes an appropriate bargaining unit for unionization of non-acute health care facilities, opting to evaluate appropriate bargaining units on a case-by-case basis. See 29 CFR § 103.30(g). Under this case-by-case approach, the Board has typically applied a “pragmatic” or “empirical”, “community-of-interests” standard, grouping employees by, among other things, similarity of wages and hours, extent of common supervision, frequency of contact with other employees, areas of practice, and patterns of bargaining in a non-acute care setting. 

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Energy Alert: Attention Ohio business owners: Are you making the best electricity choice?

A smart electricity choice for your business can save your company a considerable amount of money. Because Ohio now has a deregulated electricity environment, almost invariably you can get a much cheaper price by shopping your electricity load rather than accepting the electricity pricing provided by your current utility. Even the smallest company can benefit from shopping.

Ohio provides additional opportunities for the sophisticated buyer. A company can reduce its electricity costs by taking its load to auction and/or by negotiating directly with electricity providers in order to secure a better rate. AEP recently filed a settlement with interested parties for its new Electric Security Plan beginning January 2012. While the plan is now pending Public Utilities Commission (PUCO) approval, a key item in this plan is a cap on the percentage of customers switching from AEP to a retail supplier. McDonald Hopkins can help you navigate energy choices during this transition period. Additional options for energy savings are available for mercantile customers, defined as commercial or industrial customers that use at least 700,000 kilowatt hours per year. Among these options are:

  • Obtaining a waiver for the costly efficiency rider
  • Exploring alternative tariff rate options
  • Pursuing a unique arrangement
  • Taking advantage of the proposed economic development incentive
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Ohio Court of Appeals Upholds Usage of Undefined, Industry "Term-of-Art" in No-Compete

When drafting no-competes, questions about the required level of detail always arise; more detail is generally better than less, but not always. The required level of detail in a no-compete was among the questions addressed by the Ohio Court of Appeals last week in Osei-Tutu Owusu, M.D. v. Hope Cancer Of Northwest Ohio, Inc., a no-compete case involving a physician, Dr. Owusu.

During negotiations over the terms of his no-compete, Dr. Owusu rejected a proposal that he be restricted from practicing within a specific 35-mile radius. Nevertheless, he ultimately signed a no-compete which defined his post-employment restricted area as “the primary service area of Lima, Ohio and the primary service area of Van Wert, Ohio.”

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Employers’ summer of discontent: Obama labor board pushes anti-employer agenda

Arnstein & Lehr attorney Mark A. Spognardi

Mark A. Spognardi

While employers have been increasingly worried about a double dip recession, the National Labor Relations Board has had a busy summer proposing and implementing rules and issuing decisions designed to promote the unionization of America’s workforce. The Obama Labor Board has taken over where the President has failed, delivering victories to organized labor at a time when the public sentiment towards unions has become, at best, distrustful, and at the worst, disdainful.

Applicable to all employers falling under the Board’s jurisdiction, the Board has issued a final regulatory rule requiring employers to notify employees of their rights under the National Labor Relations Act. The Notice informs employees that they have a right to act together to improve wages and working conditions, to form, join, and assist a union, to bargain collectively with their employer, and to refrain from these activities. Employers will be required to post the notice where other workplace notices are typically posted, by November 11, 2011. The rule also specifies when the notice must be posted in a foreign language. The notice, on an 11 by 17 inch poster, is now available from the Board’s website at, and in the future from the Board’s regional offices. A failure to post the notice is an unfair labor practice.

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Aftershocks from D.C.’s "Labor Law Earthquake" Likely to be Felt Throughout the U.S. Hospitality Industry

By:  Kara M. Maciel and Mark M. Trapp

On August 23, 2011 the Washington D.C. area experienced a 5.9 magnitude earthquake. A week later, a “labor law earthquake” of far greater magnitude had its epicenter in a federal agency in D.C. In the coming weeks and months, its aftershocks will be felt by unprepared employers, particularly those operating hotels, restaurants, spas and clubs in the hospitality industry.

In an opinion that America’s largest private sector labor union called a“monumental victor[y] … for unions,” the National Labor Relations Board (“NLRB” or “Board”) upended decades of precedent and placed virtually all employers at risk of organizing by so-called “micro unions.” The decision, Specialty Healthcare and Rehabilitation Center, 357 NLRB No. 83 (Aug. 26, 2011), was made public on August 30, 2011.

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Tampa attorneys win case in favor of Porsche

Arnstein & Lehr attorney Robin S. Trupp

Robin S. Trupp

Arnstein & Lehr attorney Brian R. Cummings

Brian R. Cummings

Arnstein & Lehr Tampa Partner Robin Trupp and Associate Brian Cummings, with co-counsel Brit Brown, Benjamin Escobar, and James Rogers from the Houston firm of Beirne, Maynard & Parsons, LLP, secured a jury verdict of no liability Friday in favor of Porsche A.G. and two Porsche subsidiaries after a week-long trial in U.S. District Court for the Middle District of Florida.

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