I have recently witnessed lenders taking a confession of judgment on a promissory note which did not contain the statutory warning require by Ohio Revised Code 2323.13(D) which states:

“(D) A warrant of attorney to confess judgment contained in any promissory note…is invalid and the courts are without authority to render a judgment based upon such a warrant unless there appears on the instrument evidencing the indebtedness, directly above or below the space or spaces provided for the signature of the makers… in such type size or distinctive marking that it appears more clearly and conspicuously than anything else on the document:

“Warning — By signing this paper you give up your right to notice and court trial. If you do not pay on time a court judgment may be taken against you without your prior knowledge and the powers of a court can be used to collect from you regardless of any claims you may have against the creditor whether for returned goods, faulty goods, failure on his part to comply with the agreement, or any other cause.” [Emphasis Added]

The first thing any maker or borrower under a promissory note should due upon receiving notice that a judgment has been taken is to review the actual promissory note. There may be a defect in the language of a promissory that enables a maker or borrower to argue for a motion for relief from judgment under Civ. Rule 60(B).

The most common defects involve the failure to include the statutory warning in Ohio Revised Code 2323.13(D):

• in the exact and verbatim manner set forth in Ohio Revised Code 2323.13(D)
• “more clearly and conspicuously than anything else on the document”
• directly above or below the signature of each maker (such as splitting the warning on 2 pages)

My next post will disclose some of the applicable case law on this point.

The US Occupational Safety & Health Administration (OSHA) issued a news release last week encouraging retailers to take precautions to prevent worker injuries.  You can review the radio station transcript or statements here. OSHA also publishes a fact sheet outlining crowd management safety guidelines which, although expressly stating it does not impose any new compliance requirements, outlines good practices for retailers. OSHA’s guidelines breaks its guidelines into 4 main elements:

• Planning
• Pre-Event Setup
• During the Sales Event
• Emergency Situation

Many of OSHA’s guidelines are common sense and a few that jump out at me are:

• hiring trained security or crowd management personnel and have a crowd management plan in place
• set up barricades away from the front entrance with sufficient breaks and turns to avoid pushing
• make sure crowd management has communications devices to reach store employees and emergency responders
• using wristbands, tickets or lottery system in the lines
• allowing customers into the store in small batches and limiting the number of customers  in the store at one time
• communicate with the customers and advise them of the retailer’s entrance process and policies
• make sure security and crowd management personnel are located at the sides of the entering and exiting public and not directly in their path of travel
• provide a safe entrance for people with disabilities.

I recently purchase the new IPhone 4s form the Apple store in Legacy Village in Cleveland, Ohio the day it was released around 10:30 AM. There was a small line at the time. After reading OSHA’s guidelines and reflecting on that purchase, Apple appears to have designed their crowd management policy for the release of the new IPhone taking into account OSHA’s guidelines. Apple set up a barricaded area slightly away from the store entrance, had turns, had exterior security, issued tickets and limited customers in the store at one time. I expect they also implemented many of the behind the scenes items outlined in OSHA’s guidelines.

Hopefully retailers will review the guidelines and implement safe crowd management policies this holiday season.  Landlord may also want to request and review retailer’s crowd management plan before they authorize a retailer to set up exterior barricades for Black Friday.

On a related note, the City of Cleveland also recently voted to extend its moratorium on internet sweepstakes cafes as published in the city record. It likes operators looking to open these cafes are going to have to find municipalities that have been proactively banning the activity.

How is this change implemented?

The amendment to 1707.11 of the Ohio Revised Code removed the requirement to file a consent to service of process under Ohio’s Rule 506 exemption transaction requirements (Ohio Revised Code 1707.03(X)). HB 153 also grants the Division of Securities the right to waive any fees in connection with these transactions. The Division of Securities has told the State Regulation of Securities Committee of the American Bar Association that the Division will no longer require issuers to file the Form U-2 even before the effective date. It would be a good idea for issuers to confirm this with the Division of Securities when they make their Form D filing.

What does this mean for issuers?

Issuers will have one less form to file in the State of Ohio and not will only be required to the federal Form D with the Division of Securities. I expect that the Division is going to update their current Rule 506 guidance (available here) to reflect this change shortly.

Thank you to the ABA State Regulation of Securities Committee for getting this information out to the public.

Based upon the Codified Ordinances of Woodmere Village, the Woodmere Village Mobile Telephone Operating Ordinance (“Ordinance”) was adopted on December 19, 2001 as Section 331.45.

In general, the Ordinance prohibits the dialing, answering, talking or listening of a mobile telephone unless “the operating maintains both hands on the applicable steering device” while on a street or highway. Section 331.45(e)(1). The Ordinance provides an exception for use of a phone to (A) contact public safety, (B) if the vehicle is in park, or (C) with a hands free device that allows the operator to maintain both hands on the vehicle while using the mobile telephone. Section 331.45(e)(2).

The purpose of the opinion was to address whether “it is ethical for a lawyer to propose, demand, and or agree to personally satisfy any and all claims by third persons as to settlement funds” during the settlement of a matter. The Board decided that such agreements (a) are not authorized by Ru.e 1.15(d) of the Rules of Professional Conduct, (b) violate Rule 1.8(e) of the Rules of Professional Conduct, and (c) violate Rule 1.7(a)(2) of the Rules of Professional Conduct. The Rules of Professional Conduct are available here.

This opinion was issued to address the growing practice of defendants in personal injury lawsuits that will require the plaintiff and/or the plaintiff’s attorney to indemnify the defendants from any obligation to reimburse third party payors of medical bills (Medicare, Medicaid or insurance companies). This occurs because of the long and complicated process that is often involved in settling these reimbursement amounts. The rule is now clear. Plaintiff’s lawyers will need to resolve the payors of third party medical bills as part of the settlement. A likely result is that it will take longer for plaintiff’s to receive their settlement proceeds.

The US Equal Opportunity Commission (EEOC) issued its final regulations today to implement the amendments in the ADA Amendments Act (ADAAA). The EEOC indicates the goal is ” to simply the determination of who has a disability and make it easier for people to establish that they are protected by the Americans with Disabilities Act (ADA).”

The press release is available here and a copy of the regulations are available here. The press release indicates the following highlights in the regulations:

• The ADA’s definition of “disability” remains the same but the new regulations made significant changes in how the terms within the definition or interpreted.
• The regulations list principles to guide the determination of whether a person has a disability.
• The regulations clarify that “major life activities” includes major bodily functions such as the immune system, cell growth, neurological functions, brain functions and endocrine system functions.
• The regulations clarify that not all impairments constitute a disability.
• The regulations include examples of impairments that are disabilities such as HIV infection, diabetes, epilepsy and bipolar disorder.

The press release also reminds business that the EEOC publishes guidance materials on this issue available here.

More to come on this issue after I review the new ADAA regulations.

Image used under the Creative Commons license from Dennis Hill.

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