“I am proud to help guide an organization that through their global network directly impacts the lives of millions of people affected by cancer,” said Cleves. “The mission of the organization is so vital: To ensure that all people impacted by cancer are empowered by knowledge, strengthened by action, and sustained by community.”

In addition to his community work, Cleves is the head of DBL’s construction law practice.  He has extensive experience in developing and revising contract documents and procedures for construction and real estate clients.  Cleves was recently named the 2013 “Lawyer of the Year” in Cincinnati Construction Law by Best Lawyers and is the co-founder of the Lean Construction Institute’s Ohio Valley Chapter,

A Cincinnati hot dog stand, Famous Franks serves tasty, Chicago-style hot dog concoctions, such as the Slaw Dog. This local vendor’s vision is to bring back the culture behind the “dog,” creating nostalgic memories of youth, baseball and pure summer fun.

DBL Law is a proud supporter of Market in the Park and the community spirit created by this weekly farmers market, located in the heart of Cincinnati.

Mark your calendar for the next DBL Law Market in the Park event on Monday, June 17, 2013.

The one obvious means of discouraging lawsuits in general has not received any serious consideration, the losing party being required to pay the attorney fees of the successful party.  The almost universal rule in the United States is just the opposite.  Known as the American Rule, each party to a lawsuit pays its own attorney fees.  Only a few states deviate from this standard rule.  There are two commonly recognized exceptions to the American Rule, where a statute provides that an award of attorney fees may be made to the prevailing party and where a contract between the parties allows for an award of attorney fees.

Courts in Kentucky have recognized a third exception, which is applicable in limited circumstances, including when a person has filed a frivolous lawsuit.  Dating back to at least 1938, court cases have permitted an award of attorney fees to the successful party where such an award is “equitable.”  By this “equitable rule,” an award of counsel fees is within the discretion of the trial court “depending on the circumstances of each particular case.”  One such circumstance is the filing of a frivolous lawsuit.  Another circumstance is where the lawsuit was filed in “bad faith.”  In a recent case, the Court of Appeals agreed that “bad faith” is a legitimate reason to award attorney fees, but required the trial court to make specific findings of fact in support of the award.  These same rules apply in federal courts, as the United States Supreme Court has announced in several cases over the last 25 years.

Therefore, despite the American Rule, an award of attorney fees is a potent tool for discouraging frivolous lawsuits or lawsuits brought in bad faith.  That such awards of attorney fees are few and far between most probably attests to the erroneous belief, though commonly held belief, that the courts are inundated with frivolous lawsuits.  Insurance companies and other business interests promote the myth of a tsunami of frivolous lawsuits.  If this were actually true, there would be many more awards of attorney fees to the victims of frivolous or bad faith lawsuits.  Naturally, it is an understandable reaction when sued that the lawsuit is thought to be frivolous.  But under the “equitable” exception to the American Rule, a neutral person, the trial court judge, will decide if the lawsuit is truly frivolous or was brought in bad faith.  While by no means perfect, this “equitable” approach is a sound and practical means of discouraging frivolous lawsuits.

Richard Meyer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

DBL Law is the title sponsor for this 3CDC event that brings together local businesses, many from Findlay Market, with the OTR community. “We are pleased to be a part of this exciting time with the growth of this Cincinnati community and in helping to create events that support local businesses,” said Alan Hartman, Partner-in-Charge of DBL’s Cincinnati office.

The next DBL Market in the Park will be on Monday, June 10, 2013, from 4-8 pm.

DBL Law, a Cincinnati business since 1997, is committed to supporting the Cincinnati community and has joined with 3CDC to sponsor Market in the Park, a new summer event in historic Over-the-Rhine. Every Monday from 4pm to 8pm, starting June 3 and continuing through August 26, the DBL Law Market in the Park events will feature fresh produce, baked goods, tasty treats, handmade crafts and more, all from local vendors based around the Over-the-Rhine neighborhood.

At a recent seminar hosted by the Kentucky Chamber of Commerce, officials from unemployment advised that copies of any policies or documents that are pertinent to the reason for termination should be presented as exhibits. Witnesses with first hand knowledge should be present to testify for the hearing. Having a witness who only has hearsay evidence will not be given as much weight as someone with first hand knowledge. The parties are now asked to submit a witness list and any exhibits five days prior to any telephonic hearings. The witness list and exhibits must be sent to unemployment as well as to the other party. It is best to fax the information to the unemployment office so that you have confirmation of receipt.

There are numerous reasons for the denial of unemployment benefits which are set out in KRS 341.370. Generally the most often litigated issue in unemployment hearings is whether the employee committed “misconduct”. Employers must prove misconduct by a preponderance of evidence which means more likely than not the employee committed the infraction the burden of proof for misconduct remains with the employer. It is a very important distinction for employers to prove that the employee’s conduct was deliberate and not merely unsatisfactory work. If an employer can show that an employee had a willful disregard of the employer’s interest, by recurring carelessness or negligence or intentional and substantial disregard, misconduct can be proven. This is a very high burden for employers to meet and requires careful preparation of witnesses and exhibits to prove it.

Although the unemployment office rarely does in-person hearings due to the sheer number of hearings and lack of referees, in certain situations employers can request an in-person hearing, which in some cases may be very beneficial to the employer’s case.

For employers who have participated in numerous unemployment hearings, they are aware that hearings are evidentiary in nature requiring a direct and cross examination of witnesses and introduction of exhibits. The opposing side is not required to notify if legal counsel will be present, so employers can feel ambushed at these hearings when a lawyer for the employee shows up.

According to the 2011 Trust Report issued last year, there were 173,000 unemployment claims filed in Kentucky. Out of the 83,000 of those were protested, 66% of claimants were denied benefits in the first round. Of the 22,000 cases heard on appeal, 84% of those were appealed by the claimant. The Kentucky Unemployment Insurance office hears approximately 135 hearings per day for a total of almost 22,000 per year.

The Kentucky Unemployment Insurance Trust has been insolvent since January 2009 and had to borrow money from the federal government to pay its claims. In 2011 Kentucky employers paid $443.3 million to Unemployment Insurance contributions but workers received benefits in the amount of $554.6 million resulting in $111.3 million benefits paid above what was received. The maximum weekly benefit for an employee is $415.00 a week. This has been the maximum benefit for several years and will not be raised until the unemployment insurance trust is solvent again.

Workers are currently able to receive a maximum of 53 weeks of benefits. Employers should be advised that in order to qualify for benefits an employee must have worked 10 weeks for a covered employer. However, a week counts if the person only worked one day that week for chargeability purposes.

A recent change made by the Unemployment office to assist employers was to allow employers 15 days to respond to the initial paperwork instead of 10. Employers are now able to get some of the initial paperwork electronically sent via email to eliminate the paper system and hopefully allow for quicker response times. However, the Unemployment office highly recommends that multiple users have access to this email account due to vacations or illnesses. The 15 day deadline is a hard and fast rule and if missed by the employer will result in the employee receiving benefits.

Employees who fraudulently receive benefits can be charged with a class D felony. Some examples of fraudulently obtaining benefits are employees who fail to report wages earned and still collect unemployment. The state of Kentucky has six fraud investigators whose fulltime job is to prosecute those fraudulently receiving benefits. Employers are encouraged to report violators.

When an employer loses multiple hearings and benefits are paid it will affect the experience rating, which therefore affects the amount of premiums paid by the employer. Therefore, it is of great benefit to adequately prepare for these hearings and challenge the hearings that are worth challenging in order to win them. However, it is advisable not to challenge benefits in a case where the chance of winning is minimal and it may upset an employee causing the employee to file either a EEOC claim or lawsuit. So a careful analysis must be done to determine if an appeal is worth pursuing.

Kelly Schoening is a Cincinnati attorney practicing at Dressman Benzinger LaVelle psc.

Pay-if-paid clauses, on the other hand, provide that payment from owner to contractor is a condition precedent to the contractor’s duty to pay subcontractors. In other words, the contractor has no duty to pay the subcontractor until the owner pays the contractor.

A typical payment clause might expressly state that the owner’s payment to contractor is a condition precedent to the contractor’s duty to pay subcontractors. The majority of courts, including Ohio, hold that condition precedent language alone is not enough to constitute a pay-if-paid clause. A condition precedent is an event that must occur before a duty or right arises. This means that, if a certain event does not occur, a party’s obligation under the contract is not necessary. One might wonder, then, why such language does not create a pay-if-paid clause. Ohio courts strongly disfavor condition precedents. Whether language creates a condition precedent is a question of intent. If the parties’ intent to create a condition precedent is at all ambiguous, the courts will not consider an event a condition precedent. Consequently, Ohio courts hold that bare “condition precedent” language does not protect a contractor who withholds funds because the owner has not paid the contractor. And the contractor must pay its subcontractors within a reasonable time even if the owner has failed to pay.

Common sense supports the majority view. The general contractor of a project contracts directly with the owner. Thus, contractors stand in better position to know the owner’s financial stability than subcontractors.

A successful pay-if-paid clause must expressly provide that the subcontractor will bear the risk of the owner’s nonpayment. If the parties do not expressly shift the risk of the owner’s nonpayment to the subcontractors, the courts will interpret the clause to be a pay-when-paid clause.

Timing of payments can be critical to the success of a company. Whether you are a contractor or subcontractor, it is important to have legal counsel review this and other contract language.

Kelli Kleisinger is a Cincinnati attorney practicing at Dressman Benzinger LaVelle psc.

DBL Law is proud to be the title sponsor of Market in the Park, supporting its community partner, 3CDC. This weekly market will be held in Washington Park in Cincinnati’s historic Over-the-Rhine (OTR).

Starting on June 3rd and running every Monday until August 26th from 4pm to 8pm, DBL Law Market in the Park brings together regional businesses and vendors in Washington Park, filling the gap on the one day when Findlay Market is closed. This summer celebration in the park will feature fresh produce, baked goods, prepared dinner foods, beverages, crafts and distinctive handmade items, all from local vendors in and near OTR.

Jim Dressman, managing partner, said “Since DBL first opened its Cincinnati office in January 1997, we’ve been actively committed to supporting our Cincinnati community. We’re delighted to share in 3CDC’s vision of ‘creating a diverse marketplace with the highest-quality, locally-produced products available.’ DBL has been part of Greater Cincinnati since 1955, in both business and community service, and we’re proud to support this new summer event.”

Under Dodd-Frank, parties entering into a swap agreement must be “eligible contract participants” (ECPs), which are typically entities holding more than $10 million in assets. Thus pursuant to the new rules, guarantors of swap obligations must now be ECPs. While many borrowers hold more than $10 million in assets and qualify as ECPs, guarantors are often smaller subsidiaries or individuals who do not meet this threshold. Lenders and borrowers often rely on the guarantees of subsidiaries and owners to meet underwriting requirements, and these new rules may cause roadblocks in the approval process.

For Dodd-Frank to apply, the guaranty agreement must guarantee the obligations of the swap agreement. However, most guaranty agreements define the guaranteed “obligations” broadly to include swap obligations. In these situations, unless the guarantor is an ECP, the subject guaranty is either (a) unenforceable to the extent that it guarantees swap obligations, or (b) unenforceable in its entirety. It is not yet clear which position courts will adopt, but Lenders should modify loan documents to plan for the worst.

Lenders have two realistic options: (1) include language in the guaranty agreement specifically excluding all swap obligations from the guarantee, i.e. a carve-out provision, or (2) utilize a “keepwell” agreement. In a keepwell agreement, ECP parties to the swap agreement provide assets to non-ECP parties at the time the swap is initialized, allowing the non-ECP party to cover the shortfall from the $10 million. The non-ECP party may then lawfully enter into the swap transaction. Lenders should adopt one of these solutions (or an alternative) in future transactions, as well as existing transactions where the swap has yet to initialize.

Unfortunately, rule makers left several questions unanswered. In addition to the issues discussed above, it is not clear whether the new rules affect other documents that secure swap obligations, such as security agreements, assignments or mortgages. At this point, until a rule or interpretation states otherwise, it is reasonable to continue to secure swap obligations with these documents. However, lenders, borrowers and other loan parties should monitor developments in this area.

Anthony Bickel is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.