President’s Podium

By Kip T. Bollin

Sometimes a person can make a real difference. He can touch other’s lives in such a way that at the mention of his name, we smile or feel compelled to tell a story about him. Or he can shape and mold an organization in such a way that to think of that organization is to conjure up an image of the man.  If you’re lucky you’ll know a few men and women like this through your lives, and if you’re even luckier you’ll have the opportunity to follow in the footsteps of such a person. For the past year I was that lucky; I had the chance to lead an organization that for decades was synonymous with Stan Fisher.

As we all know, Stan passed away earlier this year after a storied career and a very well-celebrated life. As his FBA successor (many times removed), I was privileged to offer a resolution at the Federal Bar Association’s Annual Meeting of the National Council, honoring our former leader and friend. I did not know Stan well, but hearing the stories from his FBA friends and seeing the true affection the man inspired, I was reminded of the great trust that has been placed in our organization and its leaders, and of the responsibility we have to do good work. 

Our Chapter has done good work. In the past year, we’ve held dozens of events to educate and celebrate the bar and our bench. We have held terrific, interesting, tightly-run seminars. We have offered substantive law committees to help focus on the needs of our federal lawyers. We have hosted social and networking events, and honored both our new and our departed judges. We have partnered with others already doing good work in our legal community in the hopes that by joining forces we’d multiply our effect. We have worked with our law schools to build a bridge to the next generation of lawyers. We did things that I think Stan would have liked. 

And I think Stan also would have recognized that every seminar, speech, networking breakfast, judicial tribute, investiture, reception, legal clinic or law school presentation occurred because, for each, someone stood up and took ownership of the event. Our chapter benefits from the imagination and effort of dozens of members who give of their time and talents to create meaningful events and programs. They invest themselves and create something useful that teaches or inspires. Simply put, they lead. And from their efforts, the next generation of FBA leaders is formed.

So in the end, this article is not really about Stan Fisher as much as it is about a couple of the lessons he inspired: Hold your convictions close, and work hard at something that’s bigger than you. Find something—a charity, a child’s soccer team, even a professional organization like the FBA—in which to invest your time and energies so as to make the world a slightly better place than you found it. I barely knew Stan Fisher. But for a brief time I got to stand on his shoulders and enjoy the view. You should, too.

Kip T. Bollin is a partner in the litigation area of Thompson Hine’s Cleveland office. He focuses primarily on the defense of complex product liability and business claims, including putative class actions.  Kip is the immediate past president of FBANDOC and delegate to the National Council of the Federal Bar Association, Northern District of Ohio Chapter. Prior to joining Thompson Hine, Kip was a law clerk to the Honorable Sam H. Bell of the Northern District of Ohio, Eastern Division, 1995-1997.

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District Court Clerk's Corner

Geri Smith

Magistrate Judge Burke
Kathleen B. Burke, Esq. entered on duty as a magistrate judge with duty station in Akron, Ohio, on Aug. 20, 2011. Magistrate Judge Burke was one of five finalists recommended to the Court by the Merit Selection Panel and she was ultimately selected by the Court to fill the magistrate judgeship vacancy that was created when Judge Benita Y. Pearson was elevated to the District Judgeship in Youngstown last December. Magistrate Judge Burke will serve an eight-year term, subject to reappointment. Magistrate Judge Burke received both her Bachelor’s Degree and Juris Doctor from St. John’s University. Magistrate Judge Burke began her law career as an associate for Jones Day in 1973, and became partner in 1982. While at Jones Day, she practiced civil trial and appellate litigation. In 2009, she was named executive director of the Ohio Lottery Commission, serving in that capacity until 2011. She is a member of the American Bar Association, Ohio State Bar Association, Cleveland Metropolitan Bar Association, Ohio Women’s Bar Association, Ohio State Bar Foundation, American Law Institute, American Bar Foundation, Cleveland Law Library Association, and Catholic Lawyers Guild of the Diocese of Cleveland.

Alternative Dispute Resolution—Modifications to Local Civil Rules 16.4 - 16.10
The Court significantly revised its Local Rules regarding Alternative Dispute Resolution (LR 16.4 - 16.10) upon the recommendation of our attorney Advisory Group and suggestions made during the public comment period. Perhaps the most significant change is that the revised rules now permit ADR Panel neutrals to charge up to $275 per hour for court-annexed ADR services. Under the prior rule, the first four and one half 4.5 hours of service were provided by the panelist free of charge. Panelists may now charge for those hours on cases referred to ADR on or after Aug. 1, 2011. The fees shall be split equally between the plaintiffs and the defendants, unless otherwise agreed. It should be noted that, as in the past, the panelists, and not the Court, are responsible for collecting their fees from the parties.

To retain some of the aspects of pro bonoservice that have been in place since the inception of our ADR program, the rules provide that neutrals will not be compensated for preparation time. In addition, if the Court determines that a party does not have the financial resources to pay the panelist’s charge, the Court may assign a panelist who will provide 4.5 hours of service, in addition to any necessary preparation time, without charge. No panelist will be required to provide more than 4.5 hours of free service per year.

Modifications to Local Civil Rule 67.1 Deposits
The Court modified Local Rule 67.1 Deposits, changing the Court’s depository from Bank of America’s Court On-Line Banking System to the Administrative Office of the U.S. Court’s Court Registry Investment System (CRIS) which invests in the Bureau of Public Debt’s Federal Investment Program of Government Accounting Series (GAS) securities. The Administrative Office strongly encouraged courts to take this action. The benefits of investing registry funds in CRIS include the elimination of collateralization requirements and the enhanced safety of registry funds in treasury securities. Attorneys are reminded that pursuant to Local Rules 67.1 Deposits and 67.2 Disbursements, parties should contact the Clerk’s Office finance department to review all proposed orders of deposit and disbursement prior to filing in order to comply with the rules and to prepare for the efficient transfer of funds, preferably by wire transfer.

Digital Video Recording (Cameras) Pilot Project for Civil Cases
The U.S. District Court for the Northern District of Ohio is among 14 district courts selected to participate in the Judicial Conference’s Digital Video Recording (Cameras) Pilot Project, which permits a limited exception to the ban on cameras and broadcasting of district court proceedings. The project will evaluate the effect of cameras in the courtroom for civil cases. Under the pilot program, no proceedings may be recorded without the approval of the presiding judge, and parties must consent to the recording of each proceeding in a case. The recordings are made publicly available on the Judiciary’s website at www.uscourts.gov/multimedia/cameras/player.aspx. The pilot recordings will not be broadcast live, but will be made available as soon as possible. The presiding judge can choose to stop a recording if it is necessary, for example, to protect the rights of the parties and witnesses, preserve the dignity of the court, or choose not to post the video for public view. Coverage of the prospective jury during voir dire is prohibited, as is coverage of jurors or alternate jurors. The pilot project began on July 19, 2011. The first recording was submitted by the Western District of Tennessee and posted on USCourts.gov (July 21). It involved a temporary restraining order proceeding relating to a website posting allegedly defaming a local television reporter. The second posting followed soon after (Aug. 2). It was a recording of an entire jury trial presided over by our very own Judge Donald C. Nugent, The matter involved a contract dispute between a local hospital and a service provider which lasted three days. A personal injury trial in the Southern District of Iowa was scheduled for recording and posting (week of Aug. 29). In addition to Judge Nugent, the other district judges who have expressed interest in participating include, Judge Dan Aaron Polster, Judge David D. Dowd Jr. and Judge James G. Carr. Local Civil Rule 83.1 has been amended accordingly.

Case Filings
For the statistical year ending June 30, on which the Court budget is based, total civil filings (traditional and MDL) rose 13.9 percent from 3,737 in 2010 to 4,258 in 2011. The increase was due to MDL case filings nearly doubling from 748 in 2010 to 1,436 in 2011. On the other hand, traditional civil case filings fell 5.6 percent from 2,989 in 2010 to 2,822 to 2011.

Criminal case filings increased 8 percent from 487 to 526 and the number of new criminal defendants rose 30 percent from 738 to 959, reflecting the filing of several large multi-defendant actions.

The district currently is the host to 13 multidistrict litigation actions comprised of 3,282 pending cases. Among the larger MDL’s on the Court’s docket are: MDL 2197--DePuy Orthopaedics Inc., 1,951 cases on Judge Katz’s docket; MDL 1909--Gadolinium Contrast Dyes, 507 cases on Judge Polster’s docket; and MDL 1953--Heparin Products Liability, 396 cases on Judge Carr’s docket. Judges Gwin, Nugent, Oliver, Zouhary, and O’Malley (sitting by designation), also preside over current MDL matters.

Attorney Workroom Available in the Akron Courthouse
We are pleased to announce the opening of the Attorney Lounge/Workroom contiguous to the cafeteria on the B3 level of the Akron Courthouse. Wireless access is available, along with a phone for local calls, a copier and public computer access to the court systems.

Closure of Public Research Rooms at Federal Records Center
The National Archives and Records Administration (NARA) has announced that it will no longer provide on-site court case review services to the public at its Federal Records Centers. This change applies to all closed bankruptcy, civil, criminal, and court of appeals case files that remain in the legal custody of the courts but are physically stored at NARA’s Federal Records Centers. Following the closures, NARA will continue to provide public access to court records by mail, fax, telephone, or online. The schedule for the closing of the on-site case review is as follows:

July 1, 2011: Atlanta, GA; Dayton, OH; Denver, CO; Philadelphia, PA; Seattle, WA; and Suitland, MD; and

Oct. 1, 2011: Chicago, IL; Fort Worth, TX; Lee’s Summit, MO; Lenexa, KS; Riverside, CA, and San Bruno, CA.

Geri M. Smith was appointed the Clerk of Court for the U.S. District Court Northern District of Ohio on July 1, 1991, having joined the court in 1982. She serves as the chief administrative officer of the court as well as the administrative assistant to the Chief Judge. Smith is a member of the FBA-NDOC Board of Directors.

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The Judge's Gavel: State of the Court

Solomon Oliver Jr., Chief Judge

It is an honor to have this opportunity on behalf of the judges of our court to address the state of our court. I am pleased to say the current state of our court is very good. However, I must quickly add that there is a relatively serious threat on the horizon—brought on by the serious political and budgetary fight that has been, and is, playing out in Washington. I will share with you in a few minutes what we currently know about the impending budgetary situation. First, I will bring you up to date on the state of our judicial resources at this time.

Judicial Resources and Personnel
As you all know by now, the district lost its temporary judgeship last December when Judge Kathleen M. O’Malley was elevated to the Court of Appeals for the Federal Circuit. The loss of the temporary judgeship reduces the district’s number of authorized judges from 12 to 11. Currently the court has 10 active district judges on board, with a vacancy in Toledo, 4 senior judges and 8 magistrate judges, including recalled Magistrate Judge Vernelis Armstrong in Toledo.

Although President Obama has nominated Jeff Helmick to fill the vacant district judgeship in Toledo that was created in June of 2010 when Judge Carr took senior status, the Senate has yet to act on his nomination. We are all crossing our fingers and urging our Senators to confirm him as soon as possible.

Attorney Kathleen B. Burke was selected by the Court to fill the Akron magistrate judgeship vacancy that was created when Magistrate Judge Benita Y. Pearson was elevated to the District Judgeship in Youngstown last December. Magistrate Judge Burke was sworn in on Aug. 20. We look forward to celebrating her investiture on Oct. 21, 2011, at the University of Akron School of Law. Magistrate Judge Burke received her Bachelor’s Degree from St. John’s University in 1969 and her Juris Doctor from St. John’s University School of Law in 1973, graduating cum laude. Magistrate Judge Burke began her law career as an associate for Jones Day in 1973 and became partner in 1982. While at Jones Day, she practiced civil trial and appellate litigation. In 2009, she was named executive director of the Ohio Lottery Commission, serving in that capacity until 2011. She is a member or the American Bar Association, Ohio State Bar Association, Cleveland Metropolitan Bar Association, Ohio Women’s Bar Association, Ohio State Bar Foundation, American Law Institute, American Bar Foundation, Cleveland Law Library Association and Catholic Lawyers Guild of the Diocese of Cleveland. She served as the first female president of the Ohio State Bar Association. She distinguished herself at the bar and we are confident she will also distinguish herself on the bench.

Court Caseload
For the year ending June 30, total civil filings (traditional and MDL) rose 13.9 percent from 3,737 in 2010 to 4,258 in 2011. The increase was due to MDL case filings nearly doubling from 748 in 2010 to 1,436 in 2011. On the other hand, traditional civil case filings fell 5.6 percent from 2,989 in 2010 to 2,822 to 2011.

Criminal case filings increased 8 percent from 487 to 526 and the number of new criminal defendants rose 30 percent from 738 to 959, reflecting the filing of several large multi-defendant actions.

The district currently is the host to 13 multi-district litigation actions comprising 3,282 pending cases. One of the most recent MDL actions is a case before Judge Katz involving hip implants, comprising 1,951 cases as indicated below.

    

Pending MDL Actions Cases
Carr (MDL 1953)--Heparin Products Liability	396
Gaughan (MDL2044)--Vertrue Marketing and Sales	14
Gwin (MDL 2001)--Whirlpool	10
Katz (MDL 1742)--Ortho Evra	67
Katz (MDL 2197)--DuPuy Orthopaedics Inc	1951
Nugent (MDL 2220)--Kaba Simplex Locks	14
O’Malley (MDL 1401)--Sulzer	1
O’Malley (MDL 1490)--Commercial Money Center	12
O’Malley (MDL 1535)--Welding Rod	121
Oliver (MDL 2003)--National City Corp.	8
Polster (MDL 1909)--Gadolinium Contrast Dyes	507
Polster (MDL 2066)--Oral Sodium Phosphate Solutions	144
Zouhary (MDL 2196)--Polyurethane Foam	37
Total	3282

The MDL Panel responsible for deciding MDL assignments will be meeting in Cleveland in July, 2012. Judge Dan Polster is working with the bar associations and some members of the MDL panel to put together a CLE program on Multi-District Litigation.

Budget
The national budget impasse has deeply affected the federal judiciary with court units across the country attempting to downsize through attrition and being forced to consider whether it will be necessary to implement furloughs or involuntary terminations in order to remain within budget. Northern Ohio is among those affected, particularly due to an overall decline in filings over the past several years, coupled with a decrease in the number of judicial officers, and the loss of our temporary judgeship. The fact that our Clerk of Court, Geri Smith, is on the Budget and Finance Advisory Committee of the Administrative Office of the Courts has been helpful in our receiving timely information and planning.

Building Project
The budget crisis has also impacted the new Toledo Courthouse Project. We have completed the design development phase, but construction funding has been put on hold.

Programs

A. ADR
The Court significantly revised its Local Rules regarding Alternative Dispute Resolution (LR 16.4 - 16.10) upon the recommendation of our attorney advisory group and suggestions made during the public comment period. Perhaps the most significant change is that the revised rules now permit ADR panel neutrals to charge up to $275 per hour for court-annexed ADR services. Under the prior rule, the first 4.5 hours of service were provided by the panelist free of charge. Panelists may now charge for those hours on cases referred to ADR on or after Aug. 1, 2011. The fees shall be split equally between the plaintiffs and the defendants, unless otherwise agreed. In should be noted that, as in the past, the panelists, and not the Court, are responsible for collecting their fees from the parties.

To retain some of the aspects of pro bono service that have been in place since the inception of our ADR program, the rules provide that neutrals will not be compensated for preparation time. In addition, if the Court determines that a party does not have the financial resources to pay the panelist’s charge, the Court may assign a panelist who will provide 4.5 hours of service, in addition to any necessary preparation time, without charge. No panelist will be required to provide more than 4.5 hours of free service per year.

B. Digital Video Recording (Cameras) Pilot Project
Northern Ohio is among 14 district courts selected to participate in the Judicial Conference’s Digital Video Recording (Cameras) Pilot Project which permits a limited exception to the ban on cameras and broadcasting of district court proceedings. The project will evaluate the effect of cameras in the courtroom for civil cases. Under the pilot program, no proceedings may be recorded without the approval of the presiding judge, and parties must consent to the recording of each proceeding in a case. The recordings will be made publicly available on Judiciary’s website at www.uscourts.gov. The pilot recordings will not be broadcast live, but will be made available as soon as possible. The presiding judge can choose to stop a recording if it is necessary, for example, to protect the rights of the parties and witnesses, preserve the dignity of the court, or choose not to post the video for public view. Coverage of the prospective jury during voir dire is prohibited, as is coverage of jurors or alternate jurors. The pilot project began on July 18, 2011, and one of Judge Nugent’s civil trials is currently available online.

C. Civil Pro Bono Protocol
In February 2007, the court established a Pro Bono Civil Case Protocol under which counsel may be assigned to represent pro se litigants in civil cases. Assignment of counsel is not a right of a pro se litigant in civil cases but may be utilized at the discretion of the judicial officer in those limited cases in which the judicial officer believes such an assignment is warranted. The court reimburses assigned counsel for actual expenses incurred in providing representation up to $1,500 from its Attorney Admissions Fund. More than 50 attorneys have volunteered to provide Pro Bono Services. I encourage you to consider volunteering to serve as counsel through this Program.

D. Attorney Admissions Fund Grants
The court established an Attorney Admissions Fund Grant Program in 2008 to provide local bar associations, law schools and other organizations with assistance for educational and outreach programs that benefit the bench and the bar in the administration of justice. Since then, 89 grants have been awarded to sponsor mock trials, panel discussions and other educational programs, as indicated below:

     

Year	Funded Grants
2008	9
2009	30
2010	24
2011	26

E. Pretrial and Probation
Our district was very excited to host this year’s 6th and 7th Circuit Pretrial and Probation Chiefs and Deputy Chiefs meeting Sept. 21-23.

I previously announced that we have re-entry courts in Toledo and Cleveland. We have now begun a program in Youngstown and anticipate beginning a program in Akron early next year. The Program works with our most high-risk offenders when they return from prison and are on supervision. It is team approach involving the court, U.S. Attorney’s Office, Federal Public Defender’s Office and the Pretrial and Probation Office.

We have partnered with Cuyahoga Community College to offer a GED program to ex-offenders. The Pretrial and Probation Office is also working to establish partnerships for providing GED Programs to offenders in the other courthouse locations.

National Leadership
Our judges continue to offer leadership and assistance to our national court system. In addition to handling various MDL’s, our judges continue to sit by designation on the 6th Circuit, and have also sat on the 9th Circuit and various district courts in need, including in the District of Arizona, whose Chief, John Roll, was gunned down in January of this year. It is obvious that we will have to cut back on some of these activities in the future. However, because of the willingness of our senior judges to maintain substantial caseloads, we will certainly be able to maintain some of these activities.
           
The judges on our court have been actively involved in the various committees of the Judicial Conference of the United States in recent years. Currently, Judge Katz serves as chair of the Committee on Audits and Administration Accountability, Judge Gaughan serves on the Committee of Federal-State Relations, Judge Harris on the Bankruptcy Rules Committee and I serve on the Civil Rules Advisory Committee. I am aware that at least two of our judges have participated in the training programs for Assistant U.S. Attorneys held in South Carolina, and all of our judges are involved in local and national education programs with the bench and bar. 

Finally, I wish to thank the Federal Bar Association for the many programs it sponsors for lawyers and its continuous support of the judiciary. Indeed, we are blessed with wonderful bar associations in the greater Cleveland area. I have had the opportunity to work with the Cleveland Metropolitan Bar Association in many of its efforts, including those aimed at increasing opportunities for minorities, as well as with the Norman Minor Bar Association. I look forward to working with the Asian American Bar Association and the Women’s Bar Association on programs of mutual interest as we move forward.  

Judge Oliver received his B.A. degree from the College of Wooster and his J.D. from New York University.  He was appointed to the U.S. District Court for the Northern District of Ohio in May of 1994.  Previously, he served as Associate Dean and Professor of Law at Cleveland-Marshall College of Law.

He also served as Chief of the Civil Division and Chief of Appellate Litigation in the U.S. Attorney’s Office in Cleveland.  Judge Oliver clerked for the late William H. Hastie of the U.S. Court of Appeals for the Third Circuit.  He served as Secretary to the Council of the American Bar Association’s Section of Legal Education and Admissions to the Bar, and Co-chair of the Litigation Section’s Minority Trial Lawyer Committee.  He is a member of the American Law Institute, the Board of Trustees of the College of Wooster, and the Judicial Conference of the United States.

Judge Oliver received the Distinguished Alumni Award from the College of Wooster and from NYU’s Black, Latino, Asian Pacific American Law Alumni Association.  His most recent publication is a chapter on summary judgment in a six-volume treatise entitled, Business and Commercial Litigation in Federal Courts.

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Law School Corner

Case Western Reserve University School of Law

Case Western Reserve University School of Law has two energetic student representatives on the chapter board. Britney Bennett and Mirela Turc are both native Clevelanders who already have recruited dozens of new student FBA members this year.

Britney is in the J.D.-M.B.A. program and a member of the Case Western Reserve Journal of International Law. A graduate of Spelman College, she has externed for Magistrate Judge Kenneth S. McHargh of the U.S. District Court and is now serving as a teaching assistant at the Weatherhead School of Management. Her principal professional interests are in corporate and criminal law. She also has been active in the street law program, has studied in Costa Rica, and will be spending a semester as an exchange student in Shanghai next year.

Mirela is a member of Health Matrix: Journal of Law Medicine and secretary of Phi Alpha Delta law fraternity. She received her B.A. magna cum laude in Political Science and History from CWRU and was elected to Phi Beta Kappa. Last summer she interned for Judge Colleen A. Falkowski of Lake County Common Pleas Court and worked at Reminger Co. L.P.A. Her principal professional interests relate to litigation.

 

University of Toledo College of Law

Jonnie Short and Ryan Saunders will serve as student representatives for the Federal Bar Association, Northern District of Ohio for the 2011-12 academic year.

Short, a 3L, will graduate in May 2012 and says:

“At a young age I gravitated toward the practice of law. The interest continued through college where I majored in Paralegal Studies at Kent State University. After careful consideration and time spent as a post-collegiate paralegal at Squire Sanders and Dempsey in Cleveland, Ohio, I decided to become a lawyer. It is truly the best decision I have ever made. Being a lawyer will allow me to use skills I value most: advocating, listening, analyzing, and problem-solving. There are few jobs that have such a profound impact on our daily lives and I am looking forward to contributing to the profession. As I finish my final year of law school I look back on some incredible experiences. The summer after my first year of law school I had the privilege of interning for Magistrate Judge Armstrong in the Northern District of Ohio. The Fall semester of my second year I interned for Judge Speer in the U.S. Bankruptcy Court for Northern District of Ohio. In addition, this past summer I worked for the U.S. Attorney’s Office in Cleveland, Ohio. I recently accepted a federal clerkship starting September 2012 clerking for Magistrate Judge Knepp in the Northern District of Ohio - Western Division after graduation. I look forward to being a part of the Federal Bar Association and helping others as I have been helped and mentored along the way.”

Saunders, a 2L, has interest in the areas of Healthcare and Labor and Employment Law.

“After working as Summer Associate with the Legal Aid Society of Cleveland in a Medical Legal Partnership with MetroHealth in the Summer of 2011, my desire to work in the area of Healthcare law has increased.”

Saunders is attending law school because of the insights into the law he received while pursuing a degree in political science at John Carroll University. His desire to be a lawyer stemmed just as much from learning about the flaws of the legal system to the great successes it has provided.

“After law school, I have a strong interest in working for a large firm and remaining very active in the Cleveland community. I plan on continuing my participation in the Brief Advice Clinics and Volunteer Legal Program that the Legal Aid Society so graciously provides to the community.”

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Members in the News

Tim L. Collins, Collins & Scanlon LLP and FBA-NDOC treasurer, has been named a 2012 Ohio Super Lawyer by Ohio Super Lawyers Magazine. He is recognized in the area of business litigation. Collins has also been included on the Irish Legal 100 list by the Irish Voice magazine for 2011-2012. Also included on the Irish Legal 100 list from the state of Ohio are Associate Justice of the Supreme Court of Ohio Terrence O’Donnell, and fellow ND Ohio FBA chapter member Thomas J. Scanlon. The honorees will attend a reception in the residence of the Irish Ambassador to the United States in Washington, D.C., on Oct. 13, 2011.

Carter E. Strang, 2009-2010 FBA-NDOC president, has been named the president-elect of the Cleveland Metropolitan Bar Association. Strang has also been named an Ohio State Bar Foundation Fellow, one of 25 attorneys selected from around Ohio. Fellows meet regularly to collaborate on a signature class project beneficial to the legal system and the communities served by it.

 

 

Dustin B. Rawlin has joined Tucker Ellis & West as a Partner in the firm’s trial department, where he will work within the Medical and Pharmaceutical Liability, Mass Tort and Product Liability, and Business Litigation Practice groups.

Submit your news story for “Members in the News” by email to admin@fba-ndohio.org.

 

 

 

 

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Omission Note from Editor

Photos published in the FBA Northern District of Ohio Chapter Joins in Memorial Tribute article in the June 2011 issue of Inter Alia are credited to the Cleveland Metropolitan Bar Association.

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FBA-NDOC wins national recognition

The Northern District of Ohio Chapter of the Federal Bar Association was presented with the “2011 Chapter Activity Presidential Excellence Award” at an Awards Luncheon held Saturday, Sept. 10, at the Federal Bar Association’s Annual Meeting and Convention in Chicago.

In addition, the Chapter’s newsletter Inter Alia was named a recipient of the 2011 Meritorious Newsletter Recognition Award by the national organization. Inter Alia is distributed throughout the year to the over 10,000 lawyers admitted to practice in the courts of the Northern District of Ohio.

“Our chapter is grateful and honored to be identified as one of the few recipients of this national award from the FBA,” said Kip T. Bollin, 2010-2011 chapter president and a partner at Thompson Hine LLP. “The awards are testimony to the work of our Board, our judges, and those members who have contributed to make our chapter one of the fastest-growing and most dynamic FBA chapters in the country. We are very proud of this recognition.”

The Presidential Excellence Award is based on a number of criteria including attraction and retention of members; quality of and participation in chapter events, involvement of federal judges in chapter activities; activities for young lawyers; and opportunities for continuing legal education. The Chapter enjoys participation by several federal judges, lawyers in private practice, staff from the U.S. Attorney’s Office, and Federal Public Defender Dennis G. Terez, who serves as the Chapter’s secretary.

Bollin extended special thanks to former Chapter President James Satola, who compiled the award entries, and to Stephen H. Jett, who chaired the Chapter’s newsletter committee.

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Judge Randolph Baxter Bids farewell to the bench

By Dr. M. Susan Murnane

Reprinted with permission from the Cleveland Metropolitan Bar Association

The Metzenbaum Courthouse in Cleveland, Ohio, is 568 miles and worlds away from Columbia, Tennessee, the self-proclaimed mule capital of the world.  Retiring Bankruptcy Judge Randolph Baxter’s journey between those worlds represents a remarkable accomplishment by a remarkable man.  Judge Baxter will be sorely missed when he takes off his judge’s robe in the Metzenbaum Courthouse for the last time on August 15, 2011.

Judge Baxter was born in Columbia, Tennessee, on August 15, 1946, the ninth of eleven children born to a custodian and a domestic worker.  Although of modest means, Judge Baxter’s parents were highly respected members of their community and loving parents.  Judge Baxter enjoyed the privilege of a happy childhood.  Columbia was a sports lovers’ paradise.  Emmy winning NBC sports producer Kenneth Edmundson came from Columbia.  Legendary sportscaster Lindsey Nelson also grew up in Columbia, and started his career as a reporter for the Columbia Daily Herald.

Columbia also had a darker side.  The ancestral home of President James K. Polk, Columbia received national publicity in 1946 when conflict between an African-American World War II veteran and a white store clerk erupted into the first race riot of the post-war era.  Thurgood Marshall directed the defense of the African-Americans charged with criminal offenses as a result of the conflict, all but one of whom were acquitted by all-white juries.  Justice Marshall’s courage and ability became part of Columbia’s folklore.

Judge Baxter decided to become a lawyer as a very young man, and he decided to go to Tuskegee Institute while in middle school, after reading about Dr. George Washington Carver. Judge Baxter played the trumpet in the Tuskegee concert band, and he played in an ensemble that backed up the Tuskegee choir during a concert tour that came through Akron.  Judge Baxter liked Akron and decided to attend law school at the University of Akron School of Law.

Judge Baxter took basic and advanced ROTC at Tuskegee.  He completed the advanced ROTC course at the end of his first year at the University of Akron School of Law.   That summer, Judge Baxter received his commission as a second lieutenant, tank unit commander in the armor branch of the U.S. Army.  Judge Baxter received basic officer training at Fort Knox, Kentucky; advanced tank training with the 5th Mechanized Infantry Division at Fort Carson, Colorado; red eye missile training at Fort Bliss in El Paso, Texas, and he was assigned for overseas duty in Vietnam with the 11th Armored Cavalry Regiment.  In preparation for combat, Judge Baxter was sent to the U.S. Army jungle expert school in the Panama Canal Zone at Fort Sherman.  He arrived in Vietnam on July 20, 1969, the same day that Neil Armstrong and Buzz Aldrich landed on the moon.  Judge Baxter served one year in Vietnam as a tank platoon leader and participated in the invasion of Cambodia in May, 1970.  He received the Bronze Star for Valor.  Judge Baxter extended his military service an additional year in the United States and resigned his commission at the rank of Captain. 

Judge Baxter returned to the University of Akron School of Law in 1971 and received his law degree in 1974.  When he entered law school, Judge Baxter intended to return to Detroit, Michigan, to practice law, where he had lived with older siblings after the death of his parents.  However, Judge Baxter fell in love with Akron native Yvonne Williams.  They married, and Judge Baxter stayed in northern Ohio.  Judge Baxter and Mrs. Baxter enjoy four children and six grandchildren.

Judge Baxter held various jobs during law school, including a stint at the City of Akron Department of Planning and Urban Development and B.F. Goodrich Tire Company.  After graduation, Judge Baxter served as Deputy Director of Public Service under Akron Mayor John S. Ballard.  In 1978, President Jimmy Carter appointed James R. Williams as the United States Attorney for the Northern District of Ohio. U.S. Attorney Williams had been Judge Baxter’s boss at the Akron Department of Planning and Urban Development, and Williams hired Judge Baxter as an Assistant United States Attorney in the Civil Division.  Judge Baxter’s immediate supervisor at the United States Attorney’s office was future U. S. District Court Judge Solomon Oliver. In August 1982, U. S. Attorney William Petro made Judge Baxter chief of Appellate Litigation.  Judge Baxter worked for the office of the U. S. Attorney until his appointment as Bankruptcy Judge in 1985.

Before 1984, the District Court appointed bankruptcy judges for six year terms.  In 1984, Congress changed the method of appointing bankruptcy judges: the Circuit Court appointed bankruptcy judges to fourteen year terms from a slate of candidates selected by a merit selection panel.  Judge Baxter was a seasoned litigator before the Sixth Circuit Court of Appeals, and in October 1985, Judge Baxter was the second bankruptcy judge in the Northern District of Ohio appointed by the Sixth Circuit Court of Appeals under the new procedure.  He was the first African-American to be appointed bankruptcy judge in northern Ohio.

Judge Baxter assumed the seat vacated by Judge Alice Batchelder upon her appointment to the District Court.  When he assumed the bench, Judge Baxter inherited from Judge Batchelder the only case assigned to him to go before the U. S. Supreme Court: the Nordic Village Chapter 11 reorganization.¹ Judge Baxter has presided over some of the district’s more notorious cases.  For example, in June 2002, creditors filed an involuntary Chapter 7 bankruptcy against Level Propane Gases.  In 2004, Judge Baxter inherited LTV’s second bankruptcy when Judge Bodoh retired.  In all, Judge Baxter presided over more than 81,000 bankruptcy cases and 6,000 adversary proceedings.

During his long career, Judge Baxter presided over the demise of some of Cleveland’s most venerable institutions.  The hardware wholesaler, George Worthington Co., was Cleveland’s oldest business; 16 year old George Worthington began selling picks and shovels to canal workers in 1929.  Geo. Worthington filed for reorganization under Chapter 11 in 1986 and emerged in 1988, but the company could not survive and closed permanently in 1991. No birthday in Cleveland could be celebrated without cake from the Hough Bakery, established in 1903, but Hough filed bankruptcy in 1992 and liquidated.  Unhappy customers called Judge Baxter’s chambers with advice on administering the case.  In December 2007, auto parts supplier Johnson Rubber Co., founded in 1895, filed a petition for reorganization; the firm liquidated in April 2008.

Judge Baxter served on bankruptcy courts in other districts over the course of his long career.  He served as visiting bankruptcy judge in Nashville, Tennessee in the late 1980s.  He also served in Miami, Florida, numerous times from the early 1990s, always in winter, and in West Palm Beach, Florida, also in the winter.  He served in Albany, NY in 2000 and in Flint, Michigan in 2006.  In 2005, Judge Baxter served in Delaware for a year.  The bankruptcy court in the district of Delaware asked for assistance because it had only two bankruptcy judges and an immense case load.  Judge Baxter handled approximately 56 cases in Delaware, almost all of them billion dollar cases. 

Judge Baxter worked diligently to improve the administration of the bankruptcy courts.  In 1996, Judge Baxter was appointed a charter member of the Sixth Circuit’s Bankruptcy Appellate Panel for a two year term.  In 1995, Chief Justice Rehnquist appointed Judge Baxter to a four year term on the U.S. Judicial Conference’s Bankruptcy Education Committee, where he worked with the Federal Judicial Center to develop training programs for the nation’s bankruptcy judges.  In 2008, Judge Baxter was appointed by the Administrative Office of the United States Courts Director James C. Duff to the Bankruptcy Judges Advisory Group.  This group is the principal medium for the bankruptcy courts to communicate with the United States Judicial Conference, the principal policy making organization for the administration of the United States judiciary.  The judicial conference is charged with management of the business of the courts, and the continuous study of the operation of court rules and procedures in order to make recommendations for improvements in the administration of justice.

Judge Baxter served as chief judge of the bankruptcy court from January 2004 to January 2008.  During that time he initiated the bankruptcy court’s history project.  Under its auspices, a manuscript for a published history of the bankruptcy court for the northern district of Ohio has been completed and is expected to be published soon.

Judge Baxter is proud of his service on the bankruptcy court.  He continuously sought to maintain the integrity of the court and to assure litigants of a level playing field.  He is proud to say that he is not aware of any scandals in the bankruptcy courts of the Northern district of Ohio during the twenty-five years that he served on the bench.

Judge Baxter has thoroughly enjoyed the collegiality of the bankruptcy bench and bar.  There are 350 bankruptcy judges nationally, and he found them to be gracious, helpful, and cooperative.  He considered it a pleasure associating with them.  Judge Baxter was active in the National Conference of Bankruptcy Judges, serving on numerous committees.  He previously served as national secretary of the Conference.  When Judge Baxter assumed the bench, he was comfortable in a courtroom, but he had minimal bankruptcy law experience.   He found the bankruptcy bar in northern Ohio to include many highly professional and competent lawyers with years of practice.  They generously assisted him in every way possible as he settled into his new role as a bankruptcy judge.

While Judge Baxter will miss his professional associations, he hopes to fill his time with travel and with his grandchildren.  He may return to teaching.  Judge Baxter taught real estate law at Kent State University’s College of Business from 1974 to 1978, and he taught bankruptcy and business reorganization at the University of Akron School of Law from 1989 to 1998.  Judge Baxter plays trumpet with the Cleveland Clinic Orchestra, and expects to continue to do so.  We wish him well.

¹ United States v. Nordic Village, Inc., 503 U.S. 30 (1992).

Dr. M. Susan Murnane currently works as an independent legal historian. Most recently, she authored the history of the bankruptcy court for the Northern District of Ohio which will be published soon. She received her PhD in American History from Case Western Reserve University. Dr. Murnane practiced law for eighteen years before pursuing her doctorate. Dr. Murnane holds an undergraduate degree from Carleton College, a JD from the University of Minnesota, and an LLM in Taxation from Georgetown University. She can be reached at susanmurnane@sbcglobal.net.

The Cleveland Metropolitan Bar Association, Bankruptcy and Commercial Law Section, and the Federal Bar Association, Northern District of Ohio Chapter, with the assistance of the Planning Committee, including Rocco Debitetto, Lauren Helbling, Stuart Larsen, Scott Opincar, Beth Ann Schenz, David Simon, Andrew Turscak, Jr. and Phyllis Ulrich, gratefully acknowledge their sponsors and those who served on the Planning Committee for the Reception for the Honorable Randolph Baxter, United States Bankruptcy Judge:

Sponsors:
Cleveland Metropolitan Bar Association, Bankruptcy and Commercial Law Section
Federal Bar Association, Northern District of Ohio Chapter
Panel of Chapter 7 Trustees: David O. Simon, Lauren A. Helbling, Steven S. Davis, Brian A. Bash, Sheldon Stein, Virgil I. Brown, Jr., Mary Ann Rabin, Alan J. Treinish, Marvin A. Sicherman, Richard A. Baumgart, Waldemar W. Wojcik

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FBA Annual Meeting And Convention 2011, A Wonderful Time In The Windy City

By James W. Satola

Chicago has always been one of my favorite cities. The architecture (and the fascinating architectural tours available through the Chicago Architecture Foundation), the music, the museums, Millennium Park, Grant Park (home of the Chicago Blues Festival every June), the Magnificent Mile, the Lakeshore and a thousand other things make it a wonderful place to visit. And for each of these reasons, and more, Chicago made a fine and welcoming host city for the 2011 Federal Bar Association Annual meeting and Convention.

The three-day convention, which ran from Sept. 8 through Sept. 10, at the Sheraton Chicago Hotel and Towers, provided a great opportunity for FBA members from all over the country – and territories, the Puerto Rico Chapter is always well represented, and will be hosting the 2013 FBA convention – to share ideas about FBA Chapter leadership, membership building, effective CLE programming, and social activities to each of our respective Chapter members. It is also the forum where the FBA’s newly-elected national officers, directors, and leaders are installed. Perhaps most importantly, the convention allows all of the attendees to get to know each other better through a full schedule of social activities held throughout the annual meeting.
       
The first day of the convention, Thursday, Sept. 8, opened with welcoming remarks by Chief Judge James Holderman, of the U.S. District Court for the Northern District of Illinois, and FBA outgoing President Ashley Belleau, followed by a morning plenary session, titled “The U.S. Reaction Since 9/11,” which focused on freedom of speech issues in light of national security concerns, lead by Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit and Geoffrey Stone, professor at the University of Chicago Law School (incidentally, both of whom were law clerks to Justice William Brennan).

Thursday’s activities also offered CLE programming on a variety of topics pertinent to federal practitioners, including a presentation on the 2010-2011 Supreme Court Term by Erwin Chemerinsky, founding Dean and distinguished professor of the University of California-Irvine School of Law, and a multimedia presentation on the landmark 1963 Supreme Court Gideon v. Wainwright decision, presented by Paul Rashkind, chief of the appellate division of the Florida Public Defender, which included vintage film clips and interviews with Clarence Earl Gideon, his Supreme Court counsel (and later Supreme Court Justice) Abe Fortas, counsel for Florida Bruce Jacob, Gideon’s retrial counsel W. Fred Turner, and constitutional scholar John Hart Ely, who, as a law student, played a significant role in the original Supreme Court briefing.

In between Thursday’s CLE sessions, the Foundation of the FBA held its annual FBA Fellows Luncheon, at which five new Fellows were inducted into the Foundation, including one Life Fellow. In addition, at the Foundation luncheon, the Northern District of Ohio Chapter was awarded one of the first-ever Foundation Chapter Grants for Chapter community service and outreach projects, given for the Chapter’s upcoming program, co-sponsored with the Association of Corporate Counsel, providing pro bono legal assistance to non-profit community service organizations. Other awardees of FBA Foundation grants were the Massachusetts Chapter and the Minnesota Chapter.

Thursday’s events were capped off with an evening reception at Chicago’s world famous John G. Shedd Aquarium, including up close and personal visits with the aquarium’s dolphins and beluga whales.
 
Friday morning opened with a swearing in ceremony to the bar of the United States Court of Appeals for the Seventh Circuit, conducted by Seventh Circuit Chief Judge Frank Easterbrook. Over 20 attending FBA members (including this author) can now add admission to the Seventh Circuit to their list of bar admissions. The swearing in ceremony was followed by additional CLE offerings, the Younger Federal Lawyers Awards Luncheon, and a training session for incoming Circuit Vice Presidents.

Friday afternoon and evening offered back-to-back social events for conference attendees, first, an afternoon Architectural Boat Tour along the Chicago River lead by the Chicago Architecture Foundation, followed by an evening reception at the newly opened Modern Art Wing of the Art Institute of Chicago. Late Friday evening also included a Circuit Vice Presidents Dinner, held at Chicago’s Navy Pier.

Saturday’s morning and afternoon events were dedicated to FBA leadership meetings and chapter training programs, including the Vice Presidents of the Circuits Meeting, the Sections and Divisions Leadership Meeting, and a Chapter Education Program lead by the Circuit Vice Presidents, where attending participants first break into smaller groups to discuss programs and other ideas that have worked well for their respective Chapters, then all rejoin at the end of the meeting in a plenary session to share the ideas discussed in the small group breakouts among the full assembled group. This final day also hosted the FBA Awards Luncheon, at which the FBA Northern District of Ohio Chapter was presented with a “Presidential Excellence Award” for Chapter activities and a “Meritorious Newsletter Award” for this publication.
 
The Awards Luncheon on Saturday was followed by the central business meeting of the convention, the FBA National Council Meeting. The primary issues addressed at the meeting were the establishment of an FBA Law Student Division and the approval of proposed changes to the FBA bylaws, relating to national headquarters and staff; membership; dues procedures; election scheduling, procedure, and requirements; meetings; standing committees; divisions; public positions taken by the FBA; and procedures relating to amendment of the FBA constitution and bylaws. Both proposals were adopted and passed by the National Council. A copy of the changes to the FBA Bylaws, as contained in the National Council Agenda materials can be viewed here.  The National Council Meeting also included reports from outgoing FBA President Ashley Belleau, a report of the Chair of the Nominations and Elections Committee (formally presenting the results of this past summer’s FBA elections), the FBA Fiscal Year 2012 Budget and recognition of the Chicago Convention Committee (presented by incoming FBA President Fern Bomchill), a San Diego Convention update (the site of the 2012 FBA Annual Meeting), and reports from the Membership Committee, Foundation of the FBA, Government Relations Committee, Federal Bar Building Committee, the FBA Delegate to the ABA, and the FBA Executive Director, Jack Lockridge.

This year’s National Council Meeting also included an additional element, memorials to three pillars of the FBA who passed away within the past year, former FBA National President Paul Dembling (who served as FBA National President in 1982-1983, and who was a principal architect of the 1958 charter launching the 1958 National Aeronautics and Space Administration, drafted the legislation creating NASA, and was one of its first employees), former FBA Executive Director John Blanche (FBA Executive Director from 1981 to 1987), and the FBA Northern District of Ohio’s own Stanley Fisher, who served as the FBA National President from 1986 to 1987, and as the President of the then-Cleveland Chapter of the FBA from 1971 to 1972. Members of Stan’s family, his second wife, Beverly Ludwig Fisher, and his children (former Ohio Attorney General) Lee Fisher and Suzanne Miller, along with their spouses Peggy Zone Fisher and Steven Miller, attended the National Council Meeting to hear the remembrances given by Stan’s good friend, James Bland (FBA National President 1987-1988), and the presentation of a memorial resolution read by 2010-2011 FBA Northern District of Ohio Chapter President Kip Bollin. A copy of the resolution honoring Stan Fisher can be read here.

The convention concluded on Saturday night with the Presidential Installation and Banquet, which marked the formal installation of Fern Bomchill as the FBA National President for 2011-2012 and the swearing in of the FBA’s newly-elected national officers, board members, and circuit vice presidents. The event also showcased the presentation of the most prestigious FBA national awards, including the presentation of the Elaine R. “Boots” Fisher Award for outstanding community, public, and charitable service (created in honor of Stanley Fisher’s first wife, Elaine Fisher), awarded this year to Alan Sullivan and Christopher Martinez of the FBA Utah Chapter for their work for the Rocky Mountain Innocence Center. Other awards presented at the Installation Banquet were the Earl W. Kintner Award (the FBA’s highest award), given to Virginia Laughlin Schlueter of the FBA New Orleans Chapter; the Sarah T. Hughes Civil Rights Award, awarded to Mary Meg McCarthy, Director of the National Immigrant Justice Center; and the “President’s Award,” given annually by the outgoing FBA National President to an FBA member demonstrating “extraordinary service and commitment to the Federal Bar Association,” given by outgoing FBA National President Ashley Belleau to FBA Government Relations Counsel Bruce Moyer and FBA Executive Director Jack Lockridge.

Next year’s Annual Meeting will be held in San Diego, from Sept. 20 to Sept. 22, 2012. It will include a reception at the San Diego Zoo and another onboard an aircraft carrier (and, perhaps, if we’re really lucky, one of the San Diego Zoo pandas onboard an aircraft carrier . . . just kidding about that one). It will also welcome the induction of next year’s FBA National President, Robert DeSousa, of the Middle District of Pennsylvania Chapter. As always, it promises to be a great event. Mark your calendars.

James W. Satola currently serves as FBA National Circuit Vice President for the Sixth Circuit, a position he has held since October 2010. He is also a Past President of the FBA Northern District of Ohio Chapter.

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Community Relations and Public Service Committee participates in Legal Aid Society of Cleveland Brief Advice and Referral Clinic

On Saturday, Sept. 17, the FBA teamed up with the Northeast Ohio chapter of the Association of Corporate Counsel (NEO ACCA) to staff the Legal Aid Society of Cleveland Brief Advice and Referral Clinic at the Spanish American Committee on the near West Side. The event was organized by Jennifer Lesny Fleming of the FBA and Cindy Binns of NEO ACCA and the FBA.

The event was extremely well attended, with more than a dozen FBA lawyers attending, matched with many in-house lawyers from NEO ACCA. Advice was provided to nearly 50 needy individuals in our community. After the event, the FBA lawyers and their in-house counterparts enjoyed lunch together at the Market Garden Brewery, courtesy of NEO ACCA.

The event was very successful and the outreach committee of the FBA will be looking for many more opportunities to team up with our friends at NEO ACCA. We invite your continued participation.

 

 

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Justice Elena Kagan Inducted as Honorary Life Fellow of the Foundation of the FBA

What do 18 members of the FBA Northern District of Ohio Chapter share with Justice Elena Kagan and five other present or retired Justices of the Supreme Court of the United States? All are Fellows of the Foundation of the Federal Bar Association, chartered by Congress in 1954 to serve the charitable and educational initiatives of the FBA. The Foundation’s mission is to promote and support legal research and education, advance the science of jurisprudence, facilitate the administration of justice, and foster improvements in the practice of federal law. As part of its charitable mission, it also administrates the endowment funds for the FBA-NDOC’s Elaine R. “Boots” Fisher Award, given annually at the FBA national convention.

 
On Sept. 19, at a ceremony held in the East Conference Room of the Supreme Court, Associate Justice Elena Kagan was inducted as an Honorary Life Fellow of the Foundation of the FBA. She joins Associate Justices Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Retired Justice Sandra Day O’Connor as Honorary Life Fellows. Following the induction ceremony, conducted by Fellows Chair Carl Gilmore, FBA National President Fern Bomchill, and FBA District of Columbia Chapter President Robie Beatty, the approximately 75 persons attending the event (including FBA-NDOC Board Member and FBA National Sixth Circuit Vice President Jim Satola) gathered across the hall in the West Conference Room for a reception with Justice Kagan.

To find out more about the Foundation, click on the “Foundation of the FBA” tab found at the FBA website, www.fedbar.org.

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Summer Associate and Law Clerk Reception

By Mike Mumford

On July 19, 2011, the Northern District of Ohio Chapter of the Federal Bar Association held its 8th Annual Summer Associate and Law Clerk Reception. The reception was attended by roughly 160 people, including approximately 130 summer associates, interns and law clerks. The Chapter would like to thank District Court Judges Oliver and Polster, District Bankruptcy Judge Baxter, and Magistrate Judge White for their attendance. With the support of the federal judiciary, events like this would not be possible. In addition, the Chapter would like to thank its generous sponsors for this event:

The Attorney Admissions Fund for the U.S. District Court for the Northern District of Ohio
Baker & Hostetler LLP
Calfee Halter & Griswold LLP
Collins & Scanlon, LLP
Hahn Loeser & Parks LLP
Jones Day
McDonald Hopkins LLC
Roetzel & Andress
Squire, Sanders & Dempsey LLP
Taft Stettinius & Hollister LLP
Thompson Hine LLP
Tucker Ellis & West LLP
Vorys Sater Seymour and Pease LLP

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N.D. OH FBA Members named to New Civil Rights Section

The FBA has created a new national Section for Civil Rights. The new Civil Rights Section is intended to create a working group of attorneys and judges across the United States who will further the professional development of civil rights practitioners and work to develop a more open and fair judicial system.
 
Diane Citrino of Thacker Martinsek’s Cleveland office has been named the first chair of the new Section. Citrino has received numerous awards for her civil rights work including being selected as one of 10 “Ohio Lawyers of the Year” by Ohio Lawyers Weekly in 1999 for her work litigating a sexual discrimination in housing case for female tenants, the Rosa Parks Congressional Medal in 2005, and the Nirmal Sinha Commissioner’s Award from the Ohio Civil Rights Commission in 2006. Other N.D. of Ohio FBA members joining Ms. Citrino as leaders of the new Section are Joel Hlavaty of Franz Ward LLP as Secretary; Marilyn Tobocman of the Ohio Attorney General’s office and Steve Dane, former Toledo Bar President, as a co-chairs of the Discrimination in Employment, Housing and/or Public Accommodations Committee; and The Honorable Judge Dan Aaron Polster, N.D. Ohio as Chair of the Freedom of Thought/Conscience committee.

The new Civil Rights Section is actively seeking new members. Section dues are $10. You may join the new section through this link: www.fedbar.org/Membership/Membership-Application.aspx?FT=.pdf

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Criminal Law Committee inaugural event huge success

The FBA’s Criminal Law Committee held its first CLE on July 19 in the Jury Assembly Room at the District Courthouse in Cleveland. District Court Judges Christopher Boyko, Dan Polster and Benita Pearson discussed their views on do’s and don’ts, common mistakes and best practices as they relate to pleas, sentencing memorandum and sentencing hearings. Afterward, the Judges took a variety of questions from the audience.  This unique event was well attended by members of the local defense bar, the United States Attorney’s office and several Federal Public Defenders. Many thanks to the Judges and attendees.

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Criminal and Civil Intellectual Property Enforcement Actions

On June 30, 2011, the Chapter presented a seminar titled, “Criminal and Civil Intellectual Property Enforcement Actions,” at the U.S. District Courthouse in Cleveland. The content of the seminar was inspired by a Memorandum of Opinion and Order entered in Unique Properties Solutions v. Hy-Grade Valve, Case No. 5:10-CV-1912, in which, Judge Polster found that, “the qui tam provision of the False Marking Statute, 35 U.S.C. §292(b) is unconstitutional under the Take Care Clause of the United States Constitution, U.S. Const. Art. II, §3.”

The following topics were presented:

• Overview of Criminal IP Statutes, by Robert W. Kern, U.S. Attorney’s Office, Northern District of Ohio, Cleveland.

• The Patent False Marking Statute, 35 U.S.C. § 292—Overview of § 292, Important Case Law, Practical Advice to Patent Holders, The Plaintiff’s Perspective, Comparison to Other Qui Tam Statutes, and Constitutional Challenges, by Honorable Dan A. Polster, U.S. District Court, Northern District of Ohio, Cleveland; Warner D. Mendenhall, The Law Offices of Warner Mendenhall, Akron; and Jennifer B. Wick and Georgia E. Yanchar, Calfee Halter & Griswold LLP, Cleveland.

• Criminal Liability for Trade Secrets Theft, by Fritz E Berckmueller, Calfee Halter & Griswold LLP, Cleveland.

Subsequent publication of an article in the Federal Circuit Bar Journal, Vol. 21, No. 21, titled, “Reformation of the False Marking Statute is Necessary; Elimination of the Qui Tam Provision is Not,” may be of interest to the presenters and those who were in attendance at the seminar. Judge Polster’s opinion is discussed in the article.

The Leahy-Smith America Invents Act, effective September 16 2011, amended 35 USC Section 292 (False Marking) to limit standing to file suit to obtain the statutory penalty for false marking to only the US Government, but preserved the rights of an injured party to recover actual damages by bringing a civil suit.

 

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Judge Boyko Welcomes 20 New Citizens to the United States

One of the most rewarding duties of a federal judge is the opportunity to swear in and welcome new citizens to the United States. Northern District of Ohio District Judge Christopher Boyko did so in a special way at the annual “One World Day” celebration, held on Aug. 28, at many locations throughout the Cleveland Cultural Gardens. As part of the events, surrounding the rededication of the restored Ukrainian Cultural Garden, Judge Boyko swore in twenty new citizens to the United States, from eleven countries of origin—Bosnia-Herzogovenia, Columbia, Dominican Republic, Ghana, Mexico, Romania, Somalia, Spain, Syria, Ukraine and the United Kingdom. “One World Day” was a wonderful all-day celebration of our country and all the others of the world, and a truly special day for our 20 new U.S. citizens. In addition to Judge Boyko, the swearing in event was attended by FBA-NDOC President-Elect Diana Thimmig and Past FBA-NDOC President and FBA Sixth Circuit Vice President James Satola.

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NLRB Approves Requirement for Employers to Post Notice of Collective Bargaining Rights Under Federal Law

By Christopher Carney & Stephen Bond, Brouse McDowell

On Aug. 25, the National Labor Relations Board announced the issuance of a “Final Rule,” giving notice that employers will now be required to formally post a Notice that advises employees of their rights to engage in collective bargaining. This rule will formally take effect on Nov. 14, of this year.

The rule applies whether or not there is a union in place. In general, this rule will apply to any employer that would otherwise be subject to federal labor law. For retail sales operations in general, the threshold is $500,000 in gross annual volume of business. The Rule announced some other monetary minimums for other types of employers, such as:

Employer category	Jurisdictional standard
Amusement industry	$500,000
Apartment houses, condominiums, cooperatives	$500,000
Art museums, cultural centers, libraries	$1 million
Cemeteries	$500,000
Colleges, universities, other private schools	$1 million
Communications (radio, TV, cable, telephone, telegraph)	$100,000
Day care centers	$250,000
Gaming industry	$500,000
Health care institutions
Nursing homes, visiting nurses associations	$100,000
Hospitals, blood banks, other health care facilities (including doctors’ and dentists’ offices)	$250,000
Hotels and motels	$500,000
Law firms; legal service organizations	$250,000
Newspapers (with interstate contacts)	$200,000
Office buildings; shopping centers	$100,000
Private clubs	$500,000
Restaurants	$500,000
Social services organizations	$250,000
Symphony orchestras	$1 million
Taxicabs	$500,000
Transit systems	$250,000

For other types of non-retail businesses, the jurisdictional test is whether the business is engaged in an annual out-of-state inflow or outflow of goods or services of at least $50,000.

The rule does not apply to governmental entities.

The posters will be similar to those required by other federal agencies, except that they must be 11” x 17”. They will be available for free from the NLRB or from their website. The text of the new posters will state the following:

EMPLOYEE RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT

The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity or to refrain from engaging in any of the above activity. Employees covered by the NLRA* are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA. Contact the National Labor Relations Board (NLRB), the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace.

Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.

• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.

• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

Under the NLRA, it is illegal for your employer to:

• Prohibit you from talking about or soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in nonwork areas, such as parking lots or break rooms.

• Question you about your union support or activities in a manner that discourages you from engaging in that activity.

• Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity.

• Threaten to close your workplace if workers choose a union to represent them.

• Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.

• Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.

• Spy on or videotape peaceful union activities and gatherings or pretend to do so.

Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to:

• Threaten or coerce you in order to gain your support for the union.

• Refuse to process a grievance because you have criticized union officials or because you are not a member of the union.

• Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall.

• Cause or attempt to cause an employer to discriminate against you because of your union-related activity.

• Take adverse action against you because you have not joined or do not support the union.

If you and your co-workers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement.

Illegal conduct will not be permitted. If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity. You may inquire about possible violations without your employer or anyone else being informed of the inquiry. Charges may be filed by any person and need not be filed by the employee directly affected by the violation. The NLRB may order an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits, and may order an employer or union to cease violating the law. Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency’s Web site: http://www.nlrb.gov.

You can also contact the NLRB by calling toll-free: 1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (1-866-315-6572) for hearing impaired.

If you do not speak or understand English well, you may obtain a translation of this notice from the NLRB’s Web site or by calling the toll-free numbers listed above.

The National Labor Relations Act covers most private-sector employers. Excluded from coverage under the NLRA are public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors (although supervisors that have been discriminated against for refusing to violate the NLRA may be covered).

This is an official Government Notice and must not be defaced by anyone.

We anticipate that a lot of employers, particularly non-union employers, are going to be surprised and unhappy, both in being told that they must comply with this new requirement, and in the announcement to their employees of rights which they, and perhaps the employers themselves, did not realize were available. It may also lead to an onslaught of Unfair Labor Practice Charges at the NLRB, both for failure to comply with the regulation, and for the alleged breaches of rights to which employees will now be educated.

Christopher Carney is a Certified Labor & Employment Law Specialist and is Chair of the Labor & Employment Practice Group at Brouse McDowell. Stephen Bond is a Partner in the Labor & Employment Practice Group. They represent management in all aspects of labor & employment law.

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Help us feed the hungry in Northeast Ohio

Join your friends at the FBA-NDOC in combating hunger in our community  Members of the Northern District of Ohio Chapter of the Federal Bar Association will volunteer at the Cleveland Foodbank on Nov. 15, 2011, from 6-8 p.m.
The Cleveland Foodbank provides food for local shelters, food pantries and other programs offering hunger relief in Northeast Ohio. Food is obtained from food manufacturers, wholesalers, retailers and community groups. The food is then sorted and distributed to more than 600 hunger programs in Northeast Ohio. Volunteers provide a helping hand in sorting and packing foods which are distributed to those in need. The Cleveland Foodbank is conveniently located close to downtown Cleveland at 15500 South Waterloo Road, Cleveland, Ohio 44110.

Please contact Bozana Lazic Lundberg at blundberg@ralaw.com for more information. You can also visit www.clevelandfoodbank.org for more information about Cleveland Foodbank.
Visit our website to register online www.fba-ndohio.org.

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Save Lives With Your Donation at December Blood Drive

In December, the FBA-NDOC and the U.S. District Court for the Northern District of Ohio are partnering to save lives with your help. We ask our members to give blood at a blood drive to be held at the Carl B. Stokes U.S. Court House. The Red Cross will be running the blood drive on Thursday, Dec. 8, 2011, from 9 a.m. to 1 p.m. The Court House is located at 801 West Superior Avenue, Cleveland, Ohio 44113. Please contact Bozana Lazic Lundberg at blundberg@ralaw.com for more information. We hope to have your support and see you there!

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Summer Social at the Capitol Theatre

By Tim Collins and Tony LaCerva, Co-Chairs, Summer Social 2011

“Hot town, summer in the city,
back of my neck gettin’ dirty and gritty.”

So begins the famous song by the Lovin’ Spoonful, “Summer in the City.” However, at the FBA Summer Social, we were reminded Cleveland is “hot” in many other ways as well. Starting with our venue, the assembled members, guests, and speakers, a relaxing yet stimulating night was had by all.

Built in the 1920s, the newly refurbished and revived Capitol Theatre was the venue for the third annual FBA members-only Summer Social event. The hungry and thirsty crowd of judges, lawyers and guests were sated by refreshments served in the main theater, enveloped with the sounds of period jazz music by a live local trio, and silent film on the main screen. FBA President Kip Bolin regaled us with his love of film stories derived from his undergraduate days at NYU; Joy Roller offered a chronicle of the Gordon Square redevelopment, including theater and the arts; Marcie Goodman related the intense and charming personal connections Clevelanders have established with the Cleveland International Film Festival; and Ivan Schwartz, a Southern California film industry veteran, inspired us with his vision to create a film industry, with permanent roots, in Cleveland, for film and other creative arts. Given the filming immersion Cleveland has experienced this summer in downtown, suburban and residential neighborhoods, we are all proud to assist Ivan in his efforts. All lawyers and guests greatly enjoyed the atmosphere and the themes of each speaker. We also took away inspiration for Cleveland as it is, with improvements like the Capitol Theatre, and other exciting developments now in process throughout the city.

“Cool town, evening in the city
dressing so fine and looking so pretty”

Until next summer…

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Welcome New Chapter Members

New FBA-NDOC Members (August 2010 to December 31, 2010)

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