The Chapter/The “Elevator Speech”
Those in marketing often talk about “the elevator speech”: What you could say to another person who asked you to tell him or her about your firm/company/organization during the short ride to another floor. My “elevator speech” about our Chapter is:

The Chapter is the bar association for those who practice in the U.S.
District Court, Northern District of Ohio, which includes Cleveland, Toledo, Akron, Youngstown and Canton. Our Chapter is one of the FBA’s largest (just shy of 500 members) and most active. We work closely with the Northern District judges and court personnel—many of whom are Chapter and Board of Director members—to provide a wide range of CLEs and other programs that assist attorneys in effectively practicing in the District Court. The Chapter’s Web site (www.fba-ndohio.org) has more information about the Chapter and its upcoming programs and events.

Chapter’s Unique Asset
The “elevator speech” makes reference to the fact that the Chapter works closely with the Northern District’s judges and court personnel. That relationship is quite unique for FBA Chapters and is one our Chapter truly appreciates. Northern District Judges Baxter, Pearson, Polster and White, are board members as is the District’s Clerk of Court, Geri Smith, and law clerk, Catherine Garcia-Feehan. They and others with the District Court are active participants in our many CLEs, Brown Bag lunches and other events. Chief Judge James Carr is very supportive of our Chapter’s activities and freely gives of his time by participating in the Chapter’s State of the Court Luncheon, the annual swearing-in of the Chapter’s board and officers, and many other Chapter programs. We also permit all District Court law clerks to attend all Chapter CLEs for free. Finally, our Chapter is the beneficiary of financial support from the Northern District’s Attorney Admission Fund, and we are continually grateful for that support.

E-Newsletter
Our Chapter is pleased to be able to provide our award winning Chapter newsletter, Inter Alia, to you free in electronic format as a public service to all attorneys admitted to practice in the Northern District of Ohio. This is the first issue available in electronic format only—which is very “green.”

Please feel free to offer suggestions on how we can improve our newsletter, whether in content or format. We also welcome submission of articles as well as any professional news about you that you would like to be included in the newsletter. Click here for information about submission of articles or professional news items.

Chapter Events/Benefits of Membership
As noted in this edition of Inter Alia, our recent events were well received and attended. I thank all that took part in them as coordinators, speakers and attendees. The evaluations turned in for the CLEs were very positive. Feel free to suggest new programs, and of course, we welcome anyone that would like to participate.

FBA members receive significant Chapter CLE discounts and attend our “members only” events—our quarterly networking breakfasts and summer social at Severance Hall—for FREE. They also can attend the Chapter’s Ethics, Professionalism & Substance Abuse CLE for FREE. Click here for additional information about membership.

Northern District of Ohio—A Great Place to Practice Law
I had the privilege of representing our Chapter in speaking to some two dozen new federal court law clerks that are with the Sixth Circuit and Northern District who were in Cleveland as part of their orientation. In addition to discussing our Chapter, I urged them to consider spending the remainder of their legal careers in the Northern District because it is a great place to practice law and live. It has all the advantages of being in the Midwest (reasonable cost of living and legal services, friendly people, ease of travel, urban/rural mix, etc.) in the context of extremely professional legal community, which is reflected not only in the high quality of our federal judges and clerks but also in those that are in the private and public practice of law. It is no wonder that so many attorneys that have a choice of where to file a federal case, do so in the Northern District. Our District’s large MDL docket is but one illustration of that fact.

Speaking of MDLs, in addition to Judge Carr’s discussion of them in his Judge’s Corner article, future editions of Inter Alia will also include articles about our District’s MDL practice, and the Chapter’s Advance Federal Practice CLE has and will continue to include MDL practice as an intergral component of the program.

Chapter Coaching Garrett Morgan HS Mock Trial Team
It is important to increase understanding of our legal system as well as encourage more students to consider law as a career, particularly those presently underrepresented in the profession.

One of my initiatives as Chapter president is to increase our level of participation by providing attorneys for the Cleveland Municipal School District’s Garrett Morgan High School so it can compete in the 2010 Cleveland Mock Trial Competition on May 7, 2010. The school’s Street Law teacher told me his students were “absolutely delighted” that they would be able to participate for the first time in the competition with the assistance of our Chapter’s attorneys as their coaches. Tom Baker, a Tucker Ellis & West partner, will coordinate the Garrett Morgan Mock Trial Team program.

Our Chapter is a strong supporter of programs that help urban students learn about the law. In 2008 our Chapter received a Chapter Activity Presidential Citation Award for its level of participation in the award winning Cleveland Metropolitan Bar Association’s 3Rs program, which places some 500 attorneys in Cleveland Municipal School District 10th grade U.S. History classes, where they teach monthly lessons regarding Constitutional Rights, Responsibilities and Realities (the “3Rs”). Two lessons focus entirely on career counseling. I had the privilege of serving as the CMBA’s 3Rs Committee Chair for two of its first three years of existence, overseeing major changes in its curriculum.

Carter E. Strang is President of the Northern District of Ohio Chapter of the FBA. He is a partner in the Cleveland office of Tucker Ellis & West LLP. He is a trial lawyer who focuses on environmental, mass tort and product liability litigation. He has handled a broad range of matters in both state and federal court. He is a frequent lecturer and author regarding legal issues.

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The Gavel: Caseloads

By Chief Judge James G. Carr, U.S. District Court for the Northern District of Ohio

The funding the government provides to federal courts depends on caseloads. As caseloads go down, funding decreases, and fewer court staff are available to handle the reduced workload. The opposite is also true, of course. When caseloads go up, funding increases, and staff and resources may expand.

In 1991 Congress deemed our District’s caseloads excessive on a per judge basis and authorized an additional “temporary” judgeship. This position was to expire with the first vacancy occurring five years thereafter. Shortly before Congress took that action, the average civil filings per judgeship were 838 with criminal filings per judgeship of 38 and a weighted average of 450.

Congress extended that judgeship at five year intervals until 2006. Since then, Congress has extended it annually, with the term presently due to expire November 15, 2010.

Unless Congress further extends this judgeship, the first vacancy after November 15, 2010, will not be filled, thereby reducing the number of judgeships from the current 12 to 11.

In recent years, both actual and weighted average filings have trended downward throughout the District, though somewhat less so in the Western than the Eastern Division. In 1994, there were 626 civil and 38 criminal actions per judge for a total of 415. By 2002 the number of civil cases was at 1173 and criminal was 48 for a total of 535. At no time since has the total been above 500, and since 2005 the total has steadily declined to the 2009 total of 395:

Actions Per Judgeship Source: Annual Federal Court Management Statistics
Year	Civil	Criminal	Weighted Average
2002	1173	48	535
2003	312	42	421
2004	797	53	452
2005	663	55	467
2006	366	48	402
2007	379	46	377
2008	339	42	378
2009	437	43	395

What accounts for this decline? I believe that at least three factors are at work.

First, the overall economic decline in our region probably plays a major role. Less economic activity, as all too many lawyers know all too well, means less legal work and less litigation.

Second, ADR has increasingly been utilized to keep cases from the courts, both federal and state. The Supreme Court continues to espouse a policy — most noticeably in Circuit City Stores v. Adams, 532 U.S. 105 (2001) -- which favors arbitration. Today, mandatory mediation or arbitration clauses are found in many ordinary consumer transactions. If you are unhappy, moreover, with how your credit card company or stockbroker treats you, you will be before arbitrators, rather than a judge and jury.

Perhaps most significantly, with regard to our caseloads, in Circuit City the Supreme Court upheld mandatory arbitration clauses in employment applications. This, in turn, has led, I believe, to a decline in discrimination litigation (and, I fear, in dilution of the protections afforded by Title VII, the ADEA, ADA and other employee-protective statutes).

To some extent, the third factor — the costs of litigation — may also be affecting our caseloads. Whether the transfer of some types of cases from courts to arbitration really has saved money when disputes arise is, I understand, often an open question. In any event, I suspect that fewer persons with consumer or employment-related disagreements proceed with arbitration than might have pursued litigation. This suspicion is one reason for my concern that mandatory arbitration clauses weaken the protections afforded by Title VII and similar statutes.

That may be too pessimistic an assessment of the reason for a declining caseload. At least in the area of employee disputes, it may be that anti-discrimination legislation has had a beneficial effect over the past 40 years. Many employers may be well attuned to the law’s requirements, and willing, indeed perhaps anxious, to comply with those requirements, than was so 10, 20 or 30 years ago. Litigation is expensive, and, perhaps as well, employers do a better job when real problems arise than might have been so in years past.

Regardless of the causes — and I may be missing some, though these are those that occur to me — our cases loads indisputably have declined. While this is not so in some parts of the country, namely the Southwest, it is so in our District.

Nonetheless, most of us seem to find plenty to do to keep ourselves busy — even as the number of trial days also declines. To some extent, this reflects the increasing complexity of many of the cases — especially large drug, corruption, and healthcare fraud prosecutions, which have increasingly become more common.

The Judges in our District have, moreover, reached out to accept a sizable number of assignments from the Judicial Panel on Multi-District Litigation. This is apparent from the following chart:

Multi-District Litigation Case Filings
MDL	2002	2003	2004	2005	2006	2007	2008	2009	2005-2009	Total
Aldrich (MDL2066) Oral Sodium Phosphate	0	0	0	0	0	0	0	113	113	113
Carr (MDL1953) Heparin	0	0	0	0	0	0	65	245	310	310
Dowd (MDL1593) Capital Consultants	0	0	9	1	0	0	0	0	1	10
Economus (MDL1561) Travel Agent	0	4	0	0	0	0	0	0	0	4
Gaughan (MDL2044) Vertrue Marketing/Sales	0	0	0	0	0	0	0	14	14	14
Gwin (MDL1481) Meridia	31	77	16	1	1	1	0	0	3	127
Gwin (MDL2001) Whirlpool Corporation	0	0	0	0	0	0	4	6	10	10
Katz (MDL1742) Ortho McNeil	0	0	0	0	323	763	290	74	1450	1450
Nugent (MDL1488) Crown Victoria	14	16	2	0	0	0	0	0	0	32
Oliver (MDL2003) National City	0	0	0	0	0	0	17	4	21	21
O'Malley (MDL1401) - Sulzer Inter‑Op Hip	203	8	9	1	1	0	0	0	2	222
O'Malley (MDL1490) Commercial Money	24	13	2	0	0	0	0	0	0	39
O'Malley (MDL1535) Welding Fumes	0	4081	4694	2305	307	146	953	91	3802	12577
Polster (MDL1909) - Gadolinium	0	0	0	0	0	0	364	213	577	577
Total	272	4199	4732	2308	632	910	1693	760	6303	15506

Why do we seek out and express our willingness to the panel to accept these assignments? The most fundamental reason is simply to help out. A second reason is to be challenged by new and different problems and issues. A third, and perhaps less altruistic reason, is to respond to the decline in the rest of our caseloads.

That we have been as willing as we have to take on this extra work, which has proven for many of us to be a very substantial amount of extra work, helped, I believe, our case when we have sought extension of the temporary judgeship. Indeed, had we not been so willing to take on the extra work, I doubt that we would have been successful in that effort.

Why is keeping the 12th judgeship important? There is one looming reason: namely, the 42,000 maritime asbestos cases filed in this district and transferred to the Eastern District of Pennsylvania for the past 20 years. Our District has more than twice as many of these filings as any other district, and we have recently learned that we can expect the cases to be coming back for trial within the next 18 months or so.

In the meantime, we have also learned that several hundred “land” asbestos cases are likely to be coming back for trial during the coming year. While a vast majority of the 5,000-plus “land” cases filed in our district and transferred for pretrial proceedings to the Eastern District of Pennsylvania have been dismissed or settled, the residue will be ours to deal with.

We earnestly hope that no more than 1500-2000 maritime asbestos cases will ultimately find their way back to our District. But at this point no one can say. When and if these cases start returning, the present apparent excess of judicial capacity will be but a fond memory.

To be sure, the asbestos clog will, at some point in time, pass on through, and we will, I hope and trust, find ourselves with our normal civil rights, commercial, and personal injury caseloads, along with the other types of cases, lesser in number, but also needing our attention. When we do, we may find retaining the 12th judgeship again to be uncertain.

As to that, only time will tell. Our region still has natural and other resources on which a strong economy again may be built. With the revival of economic activity will come, for better or worse, more work for lawyers, including litigators, and judges. I may not be around to help handle that workload — but I hope that enough judges are here in the Northern District of Ohio to do so efficiently and effectively. To that end, I also hope that we keep, rather than lose our 12th judgeship.

Judge James G. Carr is the Chief Judge of the U.S. District Court for the Northern District of Ohio. He has served as Chief Judge since 2005 and as a judge with the district court since 1994. He previously served as a magistrate judge with the Northern District of Ohio from 1978-1994.

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District Court Clerk’s Corner

By Geri M. Smith, Clerk of Courts, U.S. District Court

Local Rule Changes
The U.S. District Court for the Northern District of Ohio has adopted: 1) new Local Patent Rules, and 2) modifications to the Supplemental Local Rules for Admiralty and Maritime Claims, that became effective October 22, 2009. In addition, the Court has also adopted modifications to Local Civil Rules 7.1, 48.1 and 72.3 that became effective on Dec. 1, 2009 when related modifications to the Federal Rules of Civil Procedure went into effect.

Local Patent Rules— Effective October 22, 2009
The new Local Patent Rules were recommended by a Local Patent Rules Committee and the Northern Ohio Advisory Group. The new rules set forth time lines and guidelines for claims construction, discovery and case processing. The new Patent Rules will apply to all newly filed patent cases but could also be applied to pre-existing cases upon order of the Court. The Clerk’s Office staff will enter a docket entry to all newly filed patent cases indicating that the new Local Patent Rules apply. The docket entry will also include a link to the Local Patent Rules. The Local Patent Rules are available at:

http://www.ohnd.uscourts.gov/Clerk_s_Office/Local_Rules/local-patent-rules.pdf

Supplemental Local Rules for Admiralty and Maritime Claims— effective October 22, 2009
Earlier this year, the Court asked its Northern Ohio Attorney Advisory Group to consider a proposed set of model local admiralty rules drafted by the Maritime Law Association. An ad hoc committee of admiralty law practitioners recommended that the Court not adopt the model rules. Instead, the committee proposed, and the Court adopted, minor revisions to the pre-existing Supplemental Local Rules for Admiralty and Maritime Claims. The modifications to the Supplemental Local Rules for Admiralty and Maritime Claims are available at:

http://www.ohnd.uscourts.gov/Clerk_s_Office/Local_Rules/supplemental_admiralty_redline.pdf

Modifications to LR 7.1(e), LR 48.1 and LR 72.3— Effective December1, 2009
Congress approved the Statutory Time-Periods Technical Amendments Act of 2009 to extend from five to seven days, and from 10 to 14 days, counting holidays and weekends, specified deadlines affecting court proceedings to harmonize them with recent amendments to the federal time-computation rules, which are intended to provide predictability and uniformity to the current process of calculating court deadlines. The amendments became effective December 1, 2009. To conform with those changes, the Court modified LR 7.1(e), Reply Memoranda, and LR 72.3, Review and Appeal, by changing response dates from 10 to 14 days. In short, both the federal and local rules no longer provide additional response time due to intervening weekends or holidays in order to make it easier to calculate response dates . Local Rule 48.1, Number of Jurors, was also modified to conform to the corresponding Federal Rule, which states that civil trial juries should begin with at least six and no more than 12 members, and that each juror must participate in the verdict unless excused under Fed. R. Civ. P. 47(c). The modifications are available at:

LR 7.1: http://www.ohnd.uscourts.gov/Clerk_s_Office/Local_Rules/LR7-1.pdf
LR 48.1: http://www.ohnd.uscourts.gov/Clerk_s_Office/Local_Rules/LR48-1.pdf
LR 72.3: http://www.ohnd.uscourts.gov/Clerk_s_Office/Local_Rules/LR72-3.pdf

Local Rules
The complete Local Rules for the Northern District of Ohio can be found at:

http://www.ohnd.uscourts.gov/Clerk_s_Office/Local_Rules/local_rules.html

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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Bankruptcy Clerk’s Corner

By Ken Hirz, Clerk of Court, U.S. Bankruptcy Court, Northern District of Ohio

Changes to Bankruptcy Rules, Code and Forms
It’s that time of year again to prepare for the changes to the federal rules. On May 7, 2009, the Statutory Time Period Technical Amendments Act of 2009 was enacted (Pub.L.No. 111-016). Therefore, on December 1, 2009, amendments to the Federal Rules of Bankruptcy Procedure, Civil Procedure, and Appellate Procedure took effect. These are the time computation amendments that no longer require the counting of weekends and holidays.

The amendments bring uniformity to the 7-14-21-28 day cycles. Most deadlines of less than 30 days in Bankruptcy Rules 1007, 1011, 1019, 1020, 2002, 2003, 2006, 2007, 2007.2, 2008, 2015, 2015.1, 2015.2, 2015.3, 2016, 3001, 3015, 3017, 3019, 3020, 4001, 4002, 4004, 6003, 6004, 6006, 6007, 7004, 7012, 8001, 8002, 8003, 8006, 8009, 8015, 8017, 9006, 9027 and 9033 have been changed to multiples of seven in order to allow for the expiration of a deadline to occur on a weekday. Under the revised rules:

• Five-day deadlines become seven days;

• 10 and 15-day deadlines become 14 days;

• 20-day deadlines become 21 days; and

• 25-day deadlines become 28 days.

Similarly, the five-day deadlines in the following Bankruptcy Code sections have become seven-day deadlines: 109(h)(3)(A)(ii), 322(a), 332(a), 342(e)(2), 521(e)(3)(B), 521(i)(2), 704(b)(1)(B), 749(b) and 764(b).

Among the time-computation amendments to the above Federal Rules of Bankruptcy Procedure are changes to 12 rules that result in a reduction by one day (from 15 to 14 days) of the time to take action. The affected rules are: BR 1007, 1019, 1020, 2015, 2015.1, 2016, 3015, 4001, 4002, 6004, 6007 and 8009. Take note of these changes and particularly the new 14-day deadlines for filing schedules, statements, and other documents under Rule 1007(c); for filing a chapter 13 plan under Rule 3015(b); and for filing appellate briefs under Rule 8009(a).

The following forms have been amended:

• Exhibit D— Official Form 1 is amended to incorporate the new seven-day window for the exigent circumstances exception to the pre-filing credit counseling requirement. The form also changes the deadline from 15 to 14 days for filing a copy of a certificate and debt repayment plan, if any;

• Official Form B8 requires the debtor to provide additional information indicating the debtor’s intention to use leased personal property and property subject to security interests;

• Official Form B9F deletes reference to the debtor’s telephone number to protect the debtor’s privacy;

• Official Form B10 includes information and instructions about health care-related claims and revises the definition of “creditor” and “claim”; and

• Official Form B23 includes code reference to filing deadlines.

The Administrative Office of the U.S.Courts has issued amended Director’s Procedural Forms for use in bankruptcy cases. The forms were amended to incorporate the time-computations amendments to the Federal Rules of Bankruptcy Procedure. These forms include:

• Form B200, Required Lists, Schedules, Statements and Fees

• Form B201A, Notice to Individual Consumer Debtor(s)

• Form B201B, Certification of Notice to Individual Consumer Debtor(s)

• Form B210, Notice of Transfer of Claim Other than for Security

• Form B231A, Order Fixing Time to Object to Proposed Modification of Confirmed Chapter 12 Plan

• Form B231B, Order Fixing Time to Object to Proposed Modification of Confirmed Chapter 13 Plan

• Form B250A, Summons in an Adversary Proceeding;

• Form B250B, Summons and Notice of Pretrial Conference in an Adversary Proceeding;

• Form B250C, Summons and Notice of Trial in an Adversary Proceeding;

• Form B250D, Third-Party Summons, and

• Form B250E, Summons to Debtor in Involuntary Case.

There are seven new Forms that include:

• Form 27, Cover sheet to be filed with the reaffirmation agreement

• Form B240, Reaffirmation Documents

• Form B240B, Motion for Approval of Reaffirmation Agreement

• Form B240C, Order on Reaffirmation Agreement

• Form B250F, Summons in a Chapter 15 Case Seeking Recognition of a Foreign Nonmain Proceeding

• Form B18RI, Discharge of Individual Debtor in a Chapter 11 Case, and

• Form B261C, Judgment in an Adversary Proceeding

Finally, the current “five working days” requirement to submit the signature declaration form (Declaration re: Electronic Filing of Documents and Statement of Social Security Number) has been changed to “seven days” effective December 1, 2009. A fillable version of this form is posted on the court’s Web site at www.ohnb.uscourts.gov and can be found on the Electronic Case Filing link under ECF Miscellaneous Documents. For background and purpose of this form, refer to the ECF Administrative Procedures Manual (APM), section II (B)(2)(b), in the ECF General Information heading on the above page.

A link to all the bankruptcy official and procedural forms can be found on the Research and Forms/Bankruptcy Forms menu of our website. A link to the local forms can be found on the Research and Forms/Local Forms menu of the Web site.

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Supreme Court Alters Landscape of Election Campaign Financing

By James F. Lang, partner, Calfee, Halter & Griswold LLP

The U.S. Supreme Court has changed the landscape of corporate, and likely labor union, spending in election campaigns with its 5-4 decision in Citizens United v. Federal Election Commission. The divided court struck down limits on corporate political spending just in time to impact the 2010 election season.

Based on this decision by the Supreme Court, corporations and labor organizations:

• Can buy media time or space to directly advocate for or against a specific candidate in a federal election; but

• Cannot contribute directly to the campaigns of federal candidates.

While this decision increases corporate and union ability to participate in election campaigns, key restrictions remain in place. Thus, any corporation or labor organization interested in using its own funds to engage in political advocacy should review FEC regulations requiring disclaimers and disclosure.

About the Case
The court’s ruling declares that key portions of the McCain-Feingold Campaign Finance Act violate the First Amendment by restricting corporations from funding independent political messages in general and in the run-up to elections. The McCain-Feingold law had attempted to rein in independent campaign spending by corporations and unions for advertisements that advocate for or against a candidate. The appeal filed by Citizens United involved its claimed First Amendment right to distribute on a cable system via video-on-demand a movie it had produced called Hillary: The Movie, which was a 90-minute documentary that was highly critical of then-Senator Hillary Clinton and questioned her qualifications to become President of the United States. Citizens United was willing to pay $1.2 million to the cable company to make Hillary: The Movie freely available for viewing by the company’s 34.5 million subscribers. The Court determined that this movie amounted to express political advocacy against Senator Clinton. However, as Justice Anthony Kennedy wrote for the majority in upholding Citizens United’s right to use corporate funds to publicly disseminate its movie, “The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.”

The Limits Addressed in the Citizens United Decision
The Citizens United decision involved two related limits that Congress placed on the expenditures of corporations and labor organizations in connection with federal elections. First, except for certain limited exceptions, Congress prohibited corporations and labor organizations from making an independent expenditure — meaning, an expenditure that is not coordinated with the campaign of a federal candidate but promotes the election or defeat of a particular candidate. Second, Congress prohibited any corporation or labor organization from making an electioneering communication, which is a communication that refers to a clearly identified federal candidate and is publicly and widely distributed by television stations, radio stations, cable television systems or satellite systems within 30 days of a primary or 60 days of a general election. A federal district court determined that Citizens United’s plan to make Hillary: The Movie available through video-on-demand within 30 days of the 2008 primary elections violated the ban on electioneering communications.

However, the Supreme Court determined that the absolute bans on independent expenditures and on electioneering communications ran afoul of the First Amendment. As Justice Kennedy wrote, “it is inherent in the nature of the political process that voters must be free to obtain information from diverse sources in order to determine how to cast their votes.” Although limits on direct contributions to political campaigns may be justified by the governmental interest in ensuring against the reality or appearance of quid pro quo corruption, no compelling justification exists to support a ban on independent expenditures by corporations or labor organizations. Thus, the Court struck down this ban.

Citizens United also sought to avoid the application to it of federal disclaimer and disclosure provisions, but the Supreme Court determined that these served a valid purpose of promoting transparency and were not unlawful. As a result, when a corporation or labor organization uses its own funds to independently place a television or radio advertisement that advocates for or against a federal candidate, the advertisement must include a disclaimer stating that it “is responsible for the content of this advertisement.” As the Court noted, this will, at the very least, avoid confusion by making clear that the advertisement is not funded by a candidate or political party. In addition, corporations or labor organizations which spend more than $10,000 on electioneering communications within a calendar year must file a disclosure statement with the Federal Elections Commission. In a nod to modern communications, the Court observed that the internet now can be used to provide prompt disclosure of expenditures, which “enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

How This Ruling Impacts Ohio Campaign Finance Laws
Notably, although the Citizens United decision involved federal expenditures, its reasoning should apply equally to Ohio’s existing ban on corporations and labor organization expenditures in support of or opposition to any state candidate. The Supreme Court expressly overruled one of its earlier decisions upholding a Michigan law prohibiting corporate independent expenditures that supported or opposed any candidate for state office. Thus, the Ohio General Assembly will have to rewrite Section 3599.03 of the Ohio Revised Code to bring it into conformance with the First Amendment. This can be done by eliminating the ban on independent expenditures but retaining the ban on campaign contributions. Ohio law currently allows corporations and labor organizations to make expenditures in support of or opposition to ballot issues, and this language can be expanded to include independent expenditures in support of or opposition to state candidates.

James F. Lang is with Calfee, Halter & Griswold LLP. His multi-disciplinary legal interests include constitutional law, telecommunications and energy, information technology, ad valorem taxation, and municipal and public law. Jim heads the firm’s telecommunications and public utility practice and also is co-chair of its e-discovery practice area. He can be reached at jlang@calfee.com or (216) 622-8563.

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Chapter President Carter E. Strang (L)
and Hon. Dan A. Polster

Judge Dan Aaron Polster, United States District Court Judge, N.D. Ohio

By Donald S. Scherzer, partner, Roetzel & Andress

Judge Dan Aaron Polster, a lifelong Clevelander, was nominated to the U.S. District Court, N.D. Ohio, by President Bill Clinton in 1997 and was confirmed by the U.S. Senate on July 31, 1998. He is a cum laude graduate of Harvard College, where he received his A.B. in 1972, and a cum laude graduate of the Harvard Law School, where he received his J.D. in 1976. Upon law school graduation, Judge Polster joined the Cleveland office of the Antitrust Division of the U.S. Department of Justice as a trial attorney. He remained with the Antitrust Division until 1982 at which time he transferred to the U.S. Attorney’s Office for the Northern District of Ohio as an Assistant U.S. Attorney in the Economic Crimes Division, a position he remained in until joining the bench.

Judge Polster has been married for 33 years to Deborah A. Coleman, a partner at Hahn Loeser & Parks. Deborah focuses her practice on complex commercial litigation, with an emphasis on antitrust and intellectual property issues. She is also a well-regarded mediator and arbitrator of complex business disputes. Judge Polster and his wife were law school classmates and are the proud parents of three children: Josh, who is a law student at NYU; Shira, who is a mathematics program coordinator and educator in Houston; and Ilana who is a junior at Shaker Heights High School. His family resides in Shaker Heights where Judge Polster has lived nearly his entire life. He is a 1969 graduate of Shaker Heights High School and a member of its Hall of Fame.

Judge Polster has numerous interests outside of the law. He has been a long-time active volunteer in a variety of community and charitable activities that are too numerous to mention. Since joining the bench, Judge Polster has been an active member of the Board of Directors, and a very strong supporter, of the Northern Ohio Chapter of The Federal Bar Association. Judge Polster has hosted several Brown Bag luncheon programs for attorneys; spoken at several Chapter CLE’s including the Annual Advanced Practice CLE program, where he discussed the Gadolinium MDL that he is handling; and participated on an annual basis in the Chapter’s Summer Associate Reception.

Because of Judge Polster’s indefatigable dedication to community service, and his earnest commitment to the Federal Bar, current Northern Ohio Chapter President, Carter Strang, selected him to preside at his installation. One particular activity with which Judge Polster is involved illustrates his commitment to the community and merits special mention. For the past four years, the judge has assisted the Cleveland Municipal School District as a 3Rs instructor. 3Rs is the Cleveland Metropolitan Bar Association’s award-winning program through which Cleveland-area attorneys teach students about the Constitution and provide personal and career counseling to 10th graders during monthly visits to their classrooms. Judge Polster and his chambers staff have formed a team, teaching first at East Tech and now at Lincoln West. Judge Polster has also served as a weekly reading tutor to an elementary school student through the Jewish Community Federation’s Public Education Initiative.

He is an ardent sports enthusiast. He has been a dedicated runner since his days as a letterman on the Shaker High School cross country team. During much of the year, in warm weather or cold, he is known to cycle long distances throughout the East Side of Cleveland. He still plays in the Young Lawyers softball league. He has been a Browns season ticket holder for more than 30 years and he loves to attend Indians and Cavs games. Whatever the athletic event he is attending, he is a vocal fan.

Judge Polster was blessed with wonderful parents who taught him many valuable and valued lessons as he was growing up. His father, Lewis, passed away in 1987, but his mother, Elinor, is still vigorous and active at age 84. He proudly acknowledges that each and every day, both in his personal and professional lives, the values instilled in him by his parents guide him. Two of the guiding principals he learned from his parents have particularly influenced his conduct as a judge: work hard every day and treat each and every person with respect. Judge Polster is convinced that both of these principals are readily attainable because they are strictly within his personal control.

Judge Polster greatly admires his judicial colleagues, both past and present. He describes the men and woman who sit on the bench with him as a terrific group of jurists who strive day in and day out to be fair and impartial and to work together to honor and preserve the rule of law. Over the years, he has had many role models and he has learned much from his colleagues. He is especially reminded of the awesome responsibilities of a U.S. District Court Judge each and every day he puts on one of his two judicial robes. One of the robes was a gift to him by Judge William K. Thomas and the other was a gift to him by Judge Sam Bell. At the time he gave Judge Polster his robe, Judge Thomas told him that his own first robe was in turn given to him by another long-time U.S. District Court Judge, Ben Greene. Judge Polster thinks about these extraordinary predecessors each time he dons the robe and he believes, as did they, that a judge must be the same person when on the bench and when he is not.

After nearly 34 years as an attorney, the past 12 of which have been on the federal bench, Judge Polster continues to hold the U.S. judicial system in awe. He readily describes his role as a judge as being part of something much greater than himself. He believes the ultimate responsibility of a judge is to enhance the rule of law in our society. He states that a judge must never lose sight of the U.S. Constitution and of its mandates. He is committed to enforcing not only the Constitution but also the statutory and common law of our country. Judge Polster recalls that early in his judicial career, during the course of one of his first suppression hearings, while he was evaluating the arguments made by the prosecution and the defense, he actually felt the presence of the Constitution right in his courtroom.

Judge Polster cites a passage from the Bible; “Justice, Justice you shall pursue,” as influencing the manner in which he administers his court. He interprets that passage to mean that there are two equally important components to justice: substantive justice and procedural justice. In dispensing substantive justice, Judge Polster looks to follow the Constitution, statutory and case law and higher court precedent. In assuring that he dispenses procedural justice, Judge Polster works hard to demonstrate to all involved that his hearings and trials are fair so that each litigant knows that they have had the opportunity to be heard and to believe that she or he has had a just day in court. As anyone who has appeared before Judge Polster will attest, he treats everyone, whether they are counsel, clients, witnesses or jurors, with courtesy and respect. He understands that each litigant appearing before him considers her or his own case to be the most important case in the world. He makes a special effort in every case to demonstrate to the litigants that he understands and respects their views. At the same time, he knows that the litigants who appear in his court expect him to preserve the rule of law.

Because he knows that trials are time consuming, expensive, and often draining for the parties, Judge Polster devotes substantial time to mediating cases. He acknowledges that there are differing views among judges, and among members of the bar, as to whether a trial judge should take on the role of mediator, but he strongly believes that assuming this role is a very effective use of his time. His greatest satisfaction as a judge comes from helping parties resolve their conflicts. He believes that if he is able to assist parties in recognizing that their dispute is a problem to be resolved, rather than simply a fight to be won, he can help to facilitate a resolution. Sometimes cases can be mediated in a matter of a few hours, but other times it could take days, weeks or even months to resolve a case. Yet, he believes the time he devotes to mediating a matter is well spent because when he helps to settle a case on a negotiated basis he knows he has made a difference.

Judge Polster believes that there is no higher calling or privilege than to serve on the bench. He has been a judge for nearly 12 years now, and he expects to stay on the bench for many more years. We in the bar appreciate just how lucky we are to have such a bright, hardworking and humble person in our District, and we look forward to appearing in his court for many years to come.

Donald Scherzer is in the Cleveland office of Roetzel & Andress. He and Judge Polster were former colleagues at the U.S. Department of Justice, Antitrust Division, and they remain frequent cycling partners.

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Berckmueller

Fritz E. Berckmueller

Zell

Eric. S. Zell

Cooperation with the SEC Now a Two-Way Street: Navigating the SEC’s Enforcement Cooperation Initiative

By Fritz E. Berckmueller, partner, Calfee, Halter & Griswold LLP, and Eric. S. Zell, associate, Calfee, Halter & Griswold LLP

On January 13, 2010, the Securities and Exchange Commission announced its new “Enforcement Cooperation Initiative,” a program explicitly designed to strengthen the SEC’s enforcement authority by encouraging greater cooperation from individuals and companies in both investigations and enforcement actions. The SEC Division of Enforcement now has explicit, written authority to offer additional incentives to gain cooperation of individuals and corporations. More importantly, individuals and corporations targeted by the SEC now have explicit guidance on when and to what extent they can seek credit for their cooperation in an SEC investigation or enforcement action. Both sides will likely have disagreements, at least initially, over the interpretation and use of these new provisions, but hopefully they will both find ways to use these initiatives to create better and earlier resolutions for in appropriate situations.

Prior to the Initiative, the SEC Did Little to Negotiate with Individuals or Corporations.
Before the Initiative, the SEC Division of Enforcement typically resolved investigations in one of three ways: declining to bring an action; entering into a settlement and consent decree under which the target neither admitted nor denied the claims, but which was publicly available and acted as a black mark on the target’s reputation; or filing a formal action. It had no delineated authority to negotiate any reduction in charges or another benefit in exchange for the cooperation of the target in the investigation, and oftentimes a target would be unwilling to enter into a consent decree because of the impact such an agreement could have on the individual or company. While other options might have been available, they were rarely discussed or awarded, and individuals and corporations had no guarantees of consistency or redress. And while the SEC had decided, in 2008, to publish an Enforcement Manual outlining, among other things, its approach to negotiating settlement with individuals and corporations, that document was just a first step towards more clarity, more options and more accountability in SEC investigations. The Initiative takes the next step towards achieving some of those goals.

The Enforcement Cooperation Initiative Expands the SEC’s Options and its Accountability in Employing those Options.
As part of the SEC’s Initiative, the SEC Enforcement Manual now has a new Section 6 entitled “Fostering Cooperation” that provides not only an outline of the new tools available to the Division, but also the considerations and processes that the Division must follow in applying these tools fairly to all.

Cooperation Credit Considerations
The Initiative sets out four main issues that the SEC must now consider when determining how much, and in what manner, to credit cooperation from individuals or corporations:

1. Level of assistance provided by the cooperating person or corporation;
2. The importance of the underlying matter;
3. Society’s interest in ensuring that the cooperating individual is held accountable for his or her misconduct; and
4. The appropriateness of cooperation credit based on a consideration of the profile of the cooperating individual.

The ultimate goal of the SEC in deciding whether to grant cooperation credit is to weigh the extent to which the individual can assist the SEC in the investigation against the public’s interest in obtaining justice, and to determine when the individual deserves credit after consideration of both the person’s bad acts and his or her character in general. Individuals and corporations should now rely on, and make maximum use of, this list when seeking credit or early resolution of SEC investigations, both in their informal and formal communications with the SEC.

Cooperation Tools
The Initiative also outlines the five separate Cooperation Tools that the Division can use, the first two being existing tools that were reworked through the Initiative, and the last three being new:

1. Proffer Agreements: the Division can agree that any statements made by a person on a specific date may not be used against that individual in subsequent proceedings.

2. Immunity Requests: the Division offers to protect the individual from criminal prosecution if he or she agrees to substantially assist the SEC in its investigation.

3. Deferred Prosecution Agreements: the Division agrees to defer prosecution while the individual or corporation cooperates truthfully and fully in the investigation, consents to tolling the applicable statute of limitations period, pays any agreed upon disgorgement or penalties, and complies with express prohibitions or requirements established by the SEC at a risk that the failure to do so will result in the Commission pursuing charges.

4. Cooperation Agreement: the Division agrees to recommend to the SEC that the individual or company receive cooperation credit for their truthful and full assistance in the investigation, while the target also agrees to waive the statute of limitations on any possible charges that the SEC could assert.

5. Non-Prosecution Agreements: the SEC agrees to not prosecute an individual or company provided they cooperate truthfully and fully with the investigation, consent to waive the applicable statute of limitations, agree to disgorgement or payment of penalties and comply with express undertakings required by the SEC at the risk that the Commission may use information compiled in the investigation against the target if the terms of the agreement are violated.

As noted, the first two tools were already in use by the Division prior to the announcement of the Initiative. The third tool - deferred prosecution agreements - seems to be little more than a mere recasting of the old settlement and consent decree approach. Indeed, it reaches the same results and offers virtually no new benefits. It is the fourth and fifth tools — cooperation and non-prosecution agreements — that provide the new grounds for early and more favorable resolutions to potential targets, be they individuals or corporations.

Take Advantage of the Changing Landscape of SEC Investigations
The revisions and amendments to the SEC Enforcement Manual prompted by the SEC’s Enforcement Cooperation Initiative provide targets of investigations and enforcement actions, and their attorneys, with greater clarification and guidance in determining what options and credits are available to them in an SEC investigation. The Enforcement Manual now provides a more helpful roadmap to employ during negotiations with the SEC, particularly if the SEC has issued a Wells Notice. Attorneys and those targeted by the SEC would be wise to consider the requirements and elements of each tool now available to the SEC as a result of the Initiative, and structure their communications and negotiations appropriately in order to better serve their interests.

Fritz Berckmueller is with Calfee, Halter & Griswold LLP in Cleveland, Ohio, and focuses his practice on securities litigation, white-collar defense and investigations, and corporate and commercial litigation.

Eric Zell is with Calfee in the litigation and white collar defense and investigations groups.

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Chapter Directors Jim Satola (L) and Aaron Bulloff (R)
congratulate Boots Fisher Award winner Diana Thimmig (C)

FBA-NDOC’s Own, Diana Thimmig, Awarded 2009 Elaine R. “Boots” Fisher Award at FBA Annual Meeting

In addition to the impressive collection of Chapter activity, programming, and newsletter awards received by the FBA Northern District of Ohio Chapter at this year’s Annual Meeting (in fact, the most of any Chapter), the FBA-NDOC can be proud of another accolade this year — that one of its own, Diana Thimmig, was awarded the 2009 Elaine R. “Boots” Fisher Award. The Boots Fisher award, which recognizes exemplary community, public and charitable service by a member of the Federal Bar Association, is among the highest-level national awards presented at each year’s Annual Meeting. This year’s award was presented to Ms. Thimmig by former Northern District of Ohio Chapter President James W. Satola at the culminating event of the national meeting, the Saturday evening Presidential Installation Banquet, held in the Grand Ballroom of the Skirvin Hilton, in Oklahoma City, Oklahoma.

Diana Thimmig, who practices with the law firm of Roetzel & Andress in Cleveland, was chosen for the Boots Fisher Award from among a list of nominees identified by FBA Chapters throughout the country. Her selection was based on outstanding contributions to the Cleveland legal and social communities, including her record of public service with the Legal Aid Society of Cleveland (LASC), with which she has been associated for more than 20 years, including serving as president of the organization from 2003 to 2005, as a Trustee from 2000 to 2006, and as the organizer of participation by the FBA Northern District of Ohio Chapter in “briefing clinics” held in partnership with the LASC at various times throughout the year. In addition to her work with the LASC, Diana was acknowledged for her initiation of the Bankruptcy Pro Bono Project for the Northern District of Ohio and particularly her recent efforts to secure grants and funding for the training of attorney volunteers to serve the project, as well as her oversight of the FBA-NDOC's participation in the C.A.R.E. Program to educate young students in financial literacy. Also recognized were Ms. Thimmig’s service on numerous community service boards, including the Women’s City Club of Cleveland, and her receipt of the Order of Merit at the German Embassy in April 2008, in Washington, D.C., in recognition of her service as Honorary Consul for the Federal Republic of Germany since 1988.

A significant element of the Boots Fisher Award is the opportunity for the recipient to designate a $500 grant, to be presented from the Award’s endowment fund, to a charitable organization, in keeping with the spirit for which the Award was created. Diana Thimmig designated that the monetary portion of this year’s award go to the Legal Aid Society of Cleveland.

The Boots Fisher Award was created by the Northern District of Ohio Chapter (then the Cleveland Chapter) in 1989 in honor of Elaine R. “Boots” Fisher, the late wife of former FBA National President, and former Cleveland Chapter President, Stanley M. Fisher. The award stands as a memorial to the outstanding and unselfish contributions made by Boots Fisher to improve the quality of life and opportunities to all persons in the community, including her longtime work with United Cerebral Palsy, for which she was a volunteer and a strong advocate for programs fostering independence for people with disabilities. All of us in the Northern District of Ohio Chapter can be proud to know that the laudable charitable and public service work of Elaine R. “Boots” Fisher is being continued today by one of our own members. Congratulations, Diana!

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Chief Judge James G. Carr (far right) and other members
of the judiciary welcome Steven M. Dettelbach (third from right)
during reception.

Toledo Welcomes New U.S. Attorney Steven Dettelbach

On November 17, 2009, the U.S. District Court House in Toledo played host to a reception welcoming the newly appointed U.S. Attorney for the Northern District of Ohio, Steven Dettelbach. Chief Judge James G. Carr, District Court Judges David A. Katz and Jack Zouhary, and Magistrate Judge Vernelis K. Armstrong greeted lawyers and other guests from throughout Northwest Ohio in welcoming the newly-appointed Dettelbach. Those in attendance were treated to welcome remarks by Dettelbach, as well as a brief question and answer session with Dettelbach and Executive Assistant U.S. Attorney Carole Schwartz Rendon. The reception was co-sponsored by U.S. District Court for the Northern District of Ohio, the Northern District of Ohio Chapter of the Federal Bar Association, and the Toledo Bar Association.

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Panelists, including David Cohen, Peter Broadhead, Hon. Dan A. Polster (seated center) and Charma Sherman, speak during AFP seminar.

Advanced Federal Practice CLE Features Judges Polster and Zouhary

The Chapter’s Advanced Federal Practice CLE returned to Cleveland on Friday, November 6, 2009. It featured US District Judges Dan Polster and Jack Zouhary. Speakers included MDL Special Master David Cohen, and an MDL panel discussion moderated by Mr. Cohen, that included Charna Sherman of Squire Sanders & Demsey, Peter Brodhead of Spangenberg Shibley & Liber, and Judge Polster. The panel discussed the Gadolinium MDL.

Ken Bravo of Ulmer Berne discussed e-discovery issues — by use of highly-entertaining PowerPoint slides, including a final slide featuring the OSU fight song, in response to David Cohen’s final slide that said “GO BLUE.”

Brian Hoyer of Thompson Hine discussed the important aspects of consumer class action litigation, then he moderated a panel on the topic, which included Jack Landskroner of Landskroner, Grieco & Madden, Sharon Luarde of Electrolux, and Judge Zouhary.

The program closed with a presentation by program chair Carter Strang of Tucker Ellis & West, who discussed corporate representative depositions, which is a topic he has also discussed in articles he co-authored in the two previous editions of Inter Alia.

The CLE was first offered by the Chapter in 2006. It has since become so popular that earlier this year it was also offered in Toledo, featuring a Toledo area judges and attorneys program. The November 6 CLE has been recorded in DVD format — complements of Rennillo Deposition and Discovery as a public service to our Chapter — and was replayed for credit on December 11, 2009.

Next year’s program has already been scheduled for November 12, 2010. It will focus on MDL practice and removal actions.

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Living in Jesse’s World

By Jimmy Tyree, Pretrial Services and Probation Officer Employment Specialist for the Northern District of Ohio

I was born into hustling. I started selling dope when I was 12 years old. I didn’t have a father at home, so the drug game really taught me about the streets and what a father should have taught me about life. I dropped out of school in the 11th grade. I remember at that time my mother started using drugs, so I had to play big brother and father. This turned me into a person I didn’t want to be. I became bitter and negative about life.

My life changed when I caught my federal case. I got busted and was given a 10 year mandatory minimum. At the time, I was 23 years old. This was a wake up call. When I look back at my life, I realize that I never really had a stable job. I had worked odd jobs, but selling dope was a way of life for me. It gave me a purpose in life.

I am glad to be in this program (Federal Courthouse Adult Literacy Program) because it can lead me to bigger and better things. This program provides structure in my life. I am challenged and I feel like I have accomplished something.

—Jesse*

From age 12 until his 20s, Jesse relied almost exclusively on selling drugs to support himself and his family. As a juvenile, he was in and out of jail for drug-related crimes. It was not until he turned 33 years old, that he realized the toll trafficking drugs had taken on him and his family . After his release from the Bureau of Prisons, he accepted the challenges of turning his life around. He enrolled in an Adult Literacy Program to earn his GED and has been in this program for 12 weeks now. He admits that for the first time in his life, he is excited about his employment prospects. He wants to earn his GED, attend community college and start a new career.

Jesse is a participant in the Adult Literacy Program (ABLE) at the Carl B. Stokes U.S. Courthouse, a collaborative initiative between Cuyahoga Community College and the Northern District of Ohio Defendant/Offender Workforce Development (DOWD) Program. This program is designed to help federal clients in Cuyahoga County secure their GED, return to school and obtain stable employment

Like Jesse, there are countless other federal clients with similar stories all over the country. They include men from the ages of 18 to 34 who are young and poor, have low levels of education, limited work experience and lack vocational skills. Their convictions are mostly drug-related and they received lengthy sentences. They have been incarcerated during a significant portion of the “prime of their economic and reproductive years” and are behind in life stages. When most “young men were finishing school, starting a career and getting married, they were incarcerated,” (Hattery, 2007) serving mandatory minimums of five, 10 and 20 year sentences. Do you recognize Jesse as a client you have represented?

Felony Convictions, Employment & Race
Research has shown that people like Jesse, with extensive criminal convictions, face extreme barriers to securing employment. Many employers do not want to hire people with criminal records. Devan & Quillian (2001) found in a study conducted with 350 employers in the Milwaukee area that only “60% of the employers claimed they were willing to hire individuals recently convicted of a drug crime.” But, when confronted with the applicant, “fewer than 20% offered these applicants an interview.” The study further pointed out racial disparities. Regardless of conviction and education, black applicants received less “call backs” than their white counterparts. The study offers evidence that employers have deep-seated negative beliefs and fears about individuals who have felony convictions and that race may play a role in the hiring process.

In helping Jesse find employment, we need to ask ourselves the following questions: How do we engage his motivations, attitudes, interests and needs? How do we create a safe, inclusive learning environment for him to consider change? How can we better prepare him for the workplace? Can we play a positive role in educating employers about the benefits of hiring him?

Program Overview
The Northern District of Ohio DOWD Program was launched in June 2008. A major goal of the program is to help unemployed/underemployed federal clients like Jesse, become self-sufficient, self-determined and focused in pursuing career goals. The objectives include delivering an employer-specific curriculum that examines how personal beliefs and attitudes impact motivation, critical thinking and the power to change. Listed below are brief descriptions of the different projects offered in this program.

Soft Skills/Life Management Program
The West African Proverb, “I am because we are and we are because I am” helps us understand the interdependence needed in helping clients develop the motivation to succeed. Walters, Clark, Gingerich and Meltzer (2007) report that we can better prepare clients for change by helping them identify their readiness to change and provide resources that allow them the opportunity to identify personal relevance in the process. They must see themselves as personally endorsing change.

Our Soft Skills/Life Management Program (40 hours of training) provides a forum for clients to discuss the continuum of change and identify personal beliefs that impact attitudes and behaviors. Clients engage in workplace scenarios that require them to question antisocial values, negative attitudes and personal beliefs that disrupt the workplace. They learn how to resolve conflicts, set goals and make better decisions. Clients also learn how to prepare a budget, obtain a credit report, write resumes and cover letters, and practice job interviews.

Adult Literacy Program (ABLE) formerly known as GED
The U.S. Department of Labor projects that “90 percent of the fastest growing occupations through 2014 will require not only a high school education, but also post secondary education training.” Getting a GED will be a gateway to higher education and finding better employment. Many of our clients lack basic communication skills and dropped out of school during their grade/high school years. Accordingly, we joined with Cuyahoga Community College to establish an Adult Literacy site at the Carl B. Stokes U.S. Courthouse. Only federal clients are eligible to participate at this site. Clients are tested in Language Arts (reading and writing), Social Studies, Science and Mathematics. We hope to offer ESOL (English for Speakers of Other Languages) next year.

Ohio Benefits Bank Program
The Ohio Benefits Bank is a counselor-assisted internet-based computer program. The program allows moderate and low income individuals/families to estimate their eligibility for public benefits and tax credits. The Northern District of Ohio DOWD Program is a site that offers this service.

What happens when an individual meets with one of our officers/staff trained as a benefits bank counselor?

The client meets one-on-one with a trained officer/counselor and he/she guides them through the online application process to estimate eligibility for some of the programs. The programs include the Supplemental Nutrition Assistance Program (food stamps), Ohio Works First (cash assistance and job support), medical benefits (Healthy Families, Healthy Start, Medicare Premium Assistance, Medicaid Buy-Ins), Nutrition Assistance (free and reduced lunches for school children), voter registration and FAFSA forms. The Benefits Bank also assists in filing federal and state income tax forms.

Successful Transition After Release (STAR) Program
Since January 2009, in partnership with the Northeast Ohio Reenty Coalition (NORC), we have presented monthly forums for federal clients to meet at the Carl B. Stokes U.S. Courthouse to network with providers and enroll in community programs. The STAR forum consists of representatives from a diverse group of local area community programs that offer services to formerly incarcerated individuals.

The forum presenters, a few of whom are formerly incarcerated individuals themselves, acknowledge the difficulties associated with reentering society. Together, they provide an atmosphere of encouragement, provide resources, and instill a sense of hope that local community programs are willing to lend a hand. This forum is in Cleveland and we anticipate expanding in some format to Akron, Youngstown and Toledo.

Career Resource Room
Does your client need help in writing his/her resume? Do they need access to a personal computer to write their cover letters? What is the job outlook in your area? What are the high wage occupations in Ohio that are in demand by employers and are projected to stay in demand? The Career Resource Center, located on the 3rd floor on the Probation side of the office, can provide resources and answers to these questions and more. Additionally, at the Career Resource Center, clients can secure individual Interest and Career assessments as well as be referred to various community agencies for further assistance.

Prepare for Success Program
This program provides free interview/start up work clothes to clients in need of appropriate dress attire. A dressing room and clothing storage room on the Pretrial side of our office has been designated for use. Participation in this program is open to all federal clients on supervision in the Northern District of Ohio.

Employer Outreach/Community Partnerships/Offender Employment Specialist Training Program
This program provides both employer outreach and community partnership training through a speaker’s bureau. Presenters deliver discussions on: Offender Employment Specialist Training, Workforce Development issues ( i.e., Benefits of Hiring Ex-offenders), Drugs and Alcohol, Computer Crimes, HIV and AIDS, Project Penalty Awareness and a host of other topics.

If you have any questions about these programs or would like to play a role in helping our clients reach their full potential (employment), feel free to contact the Northern District of Ohio Defendant/Offender Workforce Development Program.

References

* Fictitious name used to protect identity (personal interview with GED participant, November 11, 2009).

Devan, P. (2003). The Mark of a Criminal Record . American Journal of Sociology. Volume 108 Number 5, 937-975.

Western, B. (2004). Incarceration & Invisible Inequality. Manuscript unpublished. Princeton. University

Hattery, A. & Smith, E (2007). African American Families: Issues of Health, Wealth & Violence. Thousand Oaks Ca: Sage Publications

Walters, S.; Clark, M.; Gingerich., R. & Meltzer, M. (2007). Motivating Offenders to Change. National Institute of Corrections.

Jimmy Tyree is a U.S. Pretrial Services and Probation Officer Employment Specialist for the Northern District of Ohio.

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ADA Accommodations Must Be Considered When Applying Policies Limiting Leave Time

By David H. Peck, partner, Taft, Stettinius & Hollister LLP

The rigid application of policies limiting the amount of leave employees can take does not insulate employers from liability under the Americans with Disabilities Act. Policies that provide for termination after an employee exhausts a predetermined amount of leave, such as nine months or one year, must be administered consistent with the reasonable accommodation requirements of the ADA.

A recently approved $6.2 million settlement between Sears and the Equal Employment Opportunity Commission demonstrates the importance of the above point. The settlement resolved a class action lawsuit in which the EEOC alleged that Sears violated the ADA through an “inflexible” policy of terminating injured employees who exhausted their workers’ compensation leaves rather than seeking to return them to work. According to the EEOC, Sears terminated hundreds of employees who exhausted their available leave without “seriously considering” whether a short extension of leave or other reasonable accommodation would enable them to return to work.

As part of the settlement, Sears agreed to notify employees, at least 45 days before their leaves expire, of their right to ask for accommodations that would enable them to return to work. Sears’ notice will also provide examples of accommodations such as reassignment, additional leave and light duty work.

Employers maintaining leave policies with mandatory termination provisions may want to consider taking the following steps.

• State in the policy that it will be administered consistent with the ADA and other applicable law.

• Send a letter to employees whose leave is close to expiring, asking for updated medical information regarding work restrictions and prospect for returning to work. In addition, state the company’s willingness to consider reasonable measures that may help the employee return to work.

An employee’s response to the request for updated medical information will be an important factor in determining how best to administer the leave policy. If the employee fails to respond, or reports that that timing of his or her return to work remains unknown, this bolsters the case for termination. (Courts have held that indefinite leave is not a reasonable accommodation required by the ADA.) If the employee indicates he or she can return with restrictions, the interactive process can be used to determine whether the restrictions can be accommodated. If additional leave is requested, the employer can consider whether granting the additional leave is reasonable under the totality of the circumstances.

Requests for an extension of leave beyond the stated maximum raise an important practical consideration: Is there a compelling reason to terminate now, as compared to granting additional leave? There may be little if any cost associated with continuing an employee on leave, and termination may only serve to unnecessarily or prematurely trigger litigation. Moreover, each extension of leave is further evidence of the employer’s reasonableness and the employee’s ongoing inability to return to work.

Employers frequently, and understandably, express concern about the need to uniformly administer leave policies to reduce the threat of discrimination claims. The analysis, however, is not whether everyone is terminated after precisely six months of leave, for example. Rather, the question is whether similarly situated individuals are treated equally. An employee who requests a one-week extension of leave to accommodate a pending doctor appointment is not similarly situated to an employee who indicates an ongoing inability to perform work of any kind and requests additional, indefinite leave.

Sears’ settlement with the EEOC does not equate to a mandate that employers eliminate policies limiting the amount of leave an employee may take. Rather, the case reflects the need to administer leave policies consistent with the ADA and the increasing importance of the interactive process.

David H. Peck is with the Labor and Employment Department of Taft Stettinius & Hollister LLP. He represents management in all aspects of labor and employment law, with an emphasis on the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), ERISA and COBRA.

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The Medicare Section 111 Mandatory Reporting Program Separating Fact from Fiction

By Victoria Vance, counsel, Tucker Ellis & West LLP

Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA Section 111) (P.L. 110-173), imposes new mandatory reporting requirements on Group Health Plans that provide coverage to Medicare beneficiaries, and on liability insurance providers (including self-insurance), no-fault insurance, and workers’ compensation plans that pay settlements, judgments, awards or other payments to Medicare beneficiaries. (See 42 U.S.C. 1395y(b)(7) and (8).) Reporting obligations took effect Jan. 1, 2009, for the group health plans; the non-group health plans (liability insurers, no-fault insurance, self insurance, and workers’ compensation) have largely completed the registration process, and are preparing to start reporting by second quarter 2010, if not before. This article will solely address the non-group health plan (NGHP) reporting requirements, with particular focus on the impact this new program will have on the settlement and payment practices of liability insurers and self-insured entities.

The purpose of the Section 111 reporting process is to enable The Centers for Medicare & Medicaid Services (CMS) to pay appropriately for Medicare-covered items and services furnished to Medicare beneficiaries by determining primary versus secondary payer responsibility. In general, when the injured party is a Medicare beneficiary and the date of incident is on or after December 5, 1980, liability insurance (including self-insurance) and no fault insurance are primary payers to Medicare. By law, workers’ compensation is always primary to Medicare, regardless of the date of injury.

CMS will use the reported data to undertake appropriate reimbursement/recovery actions to recover funds paid for services rendered to its beneficiaries. These reporting responsibilities do not replace or eliminate existing obligations for any person or entity to make appropriate reimbursement to Medicare, or to assist Medicare in its efforts to recover monies. For example, Medicare beneficiaries who receive a liability settlement, judgment, award or other payment have an obligation to refund associated conditional payments within 60 days of receipt of such settlement, judgment, award or other payment.

The Reporting Process

Overview
The Responsible Reporting Entities (RREs) will submit information electronically on liability insurance (including self-insurance), no-fault insurance and workers’ compensation where a settlement, judgment award or other payment is made to an injured party who is a Medicare beneficiary, and where medical expenses were either claimed or released as a part of the claims-handling process. The actual data submission process will take place between the RREs and the CMS Coordination of Benefits Contractor (COBC). The COBC will manage the technical aspects of the Section 111 data submission process for Section 111 RREs.

The RRE electronically transmits a claim “data file” to the COBC. The COBC processes the data in this input file and determines whether the submitted information identifies the injured party as a Medicare beneficiary. Other insurance information for Medicare beneficiaries derived from the input file is posted to other CMS databases by the COBC. This is then used by other Medicare contractors for claims processing to make sure Medicare pays secondary when appropriate and/or is passed to the CMS Medicare secondary payer recovery contractor (MSPRC) for recovery efforts.

Query: A New Tool to Ascertain Medicare Status
These new reporting obligations only pertain to Medicare beneficiaries. Accordingly, RREs must implement a procedure in their claims review process to determine whether an injured party is a Medicare beneficiary and gather the information necessary for the Section 111 reporting. CMS has issued Model Language that RREs can use to request confirmation of a claimant’s Medicare status. This Model Form is drafted to remind Medicare Beneficiaries of their obligation to cooperate in the coordination of benefits process. (The CMS Model language is available on the CMS Section 111 Web page www.cms.hhs.gov/MandatoryInsRep/.)

In addition, CMS is allowing RREs to query CMS on a monthly basis to ascertain Medicare coverage of claimants/plaintiffs. Use of the query process is optional, however, it is a tool that promises to be of benefit to the RREs, and CMS strongly encourages RREs to use the query function prior to submitting claim information for Section 111 reporting. The query will assist the RRE in determining whether the claim must be reported under Section 111. Cautionary note: the query process is to be used only for Section 111 reporting purposes, and not for ancillary information gathering or surveillance purposes.
Section 111 Reporting: FAQs

Q. Who must report?
3Rs: Relationships, roles, and responsibilities are the keys to determining the reporting obligations.

• By law, reporting is to be done by “an applicable plan,” which means liability insurance (including self-insurance), no-fault insurance, and workers’ compensation laws or plans.

• RREs may contract with Agents (for example, their TPA) to assist in the reporting process. The CMS User Guide provides rules for the scope of services such approved Agents may perform. However, CMS cautions that accountability for submitting the reports in the manner and form required, and the accuracy of the submitted information, continues to rest with each RRE.

• In complex business organizations, CMS has established specific rules governing which corporate family members may be designated to carry out the reporting obligations.

• For re-insurance, excess, or umbrella insurance, or guaranty fund payments, the key in determining whether such insuring entity is a RRE is whether or not the payment it makes is to the injured claimant versus payment being made to the self-insured entity to reimburse the self-insured entity. Where payment is being made to reimburse the self-insured entity, the self-insured entity is the RRE and no reporting is required by the insurer.

Q. For whom must the report be submitted?
RREs are to report only with respect to Medicare beneficiaries (including a deceased beneficiary if the individual was deceased at the time of the settlement, judgment, award or other payment). If a reported individual is not a Medicare beneficiary, CMS will reject the record for that individual.

Q. What must be reported?
The identity of a Medicare beneficiary whose illness, injury, incident or accident was at issue, as well as such other information about the beneficiary, the incident, the injured party’s attorney or representative, any involved product, and the payment, as specified by the secretary to enable an appropriate determination concerning coordination of benefits, including any applicable recovery claim.

Q. What claims are to be reported?
Claims involving payment due to a settlement, judgment or award, or other payment (that is, a single payment obligation regardless of how the payout is actually structured), with no separate assumption of ongoing responsibility for medicals, are to be reported only if the settlement, judgment, award or other payment date is on or after January 1, 2010, and meets specified dollar-value reporting thresholds. CMS has agreed to certain interim dollar thresholds for reporting, in an effort to ease the transition and initial burden on the RREs. These reporting thresholds are expressed on a sliding scale, and will be phased out through December 31, 2013. For example, the threshold exempts reporting on settlements less than or equal to $5000, which are entered January 1, 2010-December 31, 2011. The detailed rules for the reporting thresholds are set forth in the CMS ALERT issued March 20, 2009, and in the User Guide, Version 2.0, Section 11.4 (issued July 31, 2009), both of which are available on the CMS Section 111 Web site, www.cms.hhs.gov/MandatoryInsRep.

RREs must all report claims where an assumption of ongoing responsibility for medicals (ORM) occurred prior to July 1, 2009, and the claim was still open, or subject to additional requests for payment on or after July 1, 2009.

Q. When do the Section 111 obligations begin?
CMS’ Revised Implementation Timeline, announced May 12, 2009, requires:

• RREs to register on the COBC Secure Section 111 Web site during the period May 1, 2009-December 31, 2009. (Note: The registration process will remain open indefinitely. Entities that do not currently contemplate the need to report, or entities that change their corporate structure or see the need for additional RRE IDs in the future, will have the opportunity for ongoing registration.)

• RREs then test their claim submission procedures during the period Jan. 1, 2010, through March 31, 2010.

• Live production and submission of reports begins no later than 2nd Quarter 2010. But if RREs complete their testing in time, they may begin submitting live production files during their designated seven-day reporting window in the 1st Quarter of 2010.

• Once underway, RREs are required to make quarterly reports. The RRE will be assigned a 7-day window each quarter during which the RRE must report.

Q. How to manage the technical issues?
All reporting is done electronically by submitting required data elements to the CMS Coordination of Benefits Contractor (COBC). The COBC will manage the technical aspects of the Section 111 data submission process. The COBC will assign each registered RRE an Electronic Data Interchange representative (EDI Rep) to work with them on all aspects of the reporting process.

On The Eve of Reporting: Separating Fact From Fiction
As Responsible Reporting Entities (RREs) move quickly to finalize reporting protocols, there is still a great deal of uncertainty — and quite frankly misinformation — about the scale, scope and extent of the reporting obligations.

Fiction: The new reporting program applies to both Medicare and Medicaid recipients.
Fact: This is a Medicare only reporting program. Only those settlements, judgments, awards or other payments made to, or with respect to, a Medicare beneficiary, where medicals are claimed, or where the payment has the effect of releasing medical expenses, must be reported (subject to certain thresholds and exemptions). Settlements, judgments, awards, or other payments to Medicaid recipients are not subject to reporting under this CMS-sponsored program.

Fiction: Only personal injury settlements need to be reported.
Fact: Any payment that entails a release of a Medicare beneficiary’s claimed medical expenses is reportable, regardless of the nature of the underlying dispute that gave rise to the claim. While this will most commonly occur in the context of personal injury claims, medical expenses may also be claimed as an item of alleged damages in connection with a variety of actions, including employment, contract, professional liability or D&O disputes. If a settlement, judgment, award or other payment has the effect of releasing claimed medical expenses, the payment must be reported in accordance with the Section 111 Reporting Rules.

Fiction: Year-end settlements that were agreed upon with Medicare beneficiaries in 2009 are exempt from reporting.
Fact: If the negotiations occurred in 2009 but the settlement agreement is signed in 2010, it will be subject to the new reporting rules. Similarly, if the settlement is subject to a court approval that occurs in 2010, the settlement will be subject to the new reporting rules. But if all documents were signed in 2009 and all necessary court approvals occurred in 2009, the mere fact that the settlement was funded in 2010 will not trigger reporting.

Fiction: Smaller companies, government entities, and certain business categories are exempt from reporting.
Fact: The statutory mandate for the reporting obligations that apply to non-group health plans (NGHPs) does not recognize any exemption for reporting entities based on size of workforce, revenue stream, governmental status (e.g., state or local municipalities) or religious affiliation (i.e., parochial school, church or university). If the circumstances of the claim and payment otherwise meet the reporting threshold and program requirements, the settlement, judgment, award, or other payment must be reported to CMS (42 C.F.R. §411.50)

Fiction: CMS must be notified in advance of every potential settlement and consulted during the negotiation about the amount of any lien and how repayment obligations will be met.
Fact: The Section 111 Reporting Program does not require RREs to notify or consult with CMS prior to achieving a liability settlement, judgment, award or other payment. Although some insurance companies or liability payors, acting pursuant to a Medicare beneficiary’s written consent, do contact the CMS recovery coordinator during the pendency of a claim to obtain detailed information about conditional payments that Medicare may have made, this is an infrequent occurrence. Most of the contacts with the Medicare Secondary Payor Recovery Contractor (MSPRC) are made by the beneficiary or a representative acting on behalf of the beneficiary. (For further information about the Mandatory Secondary Payor recovery process, visit http://www.msprc.info/.)
Note: Section 111 reporting does not change existing obligations under the Medicare Secondary Payor provisions for any entity.

Fiction: Starting in 2010 a Medicare Set Aside Fund (MSA) must be established as part of every settlement, judgment, award or other payment to a Medicare beneficiary.
Fact: CMS has not mandated the use of MSAs with respect to liability payments.

Fiction: Settlements paid to Social Security Disability Income (SSDI) recipients must be reported.
Fact: While SSDI recipients may eventually be entitled to Medicare after a certain waiting period, future beneficiary status, alone, is not enough to trigger reporting. The key to reporting under the Section 111 program is Medicare beneficiary status as of the date of the TPOC payment. RREs can check the plaintiff/claimant’s beneficiary status by querying the CMS database.

Fiction: Persons having a TIN but no SSN are reportable.
Fact: Noncitizens working in the United States may have a TIN assigned for IRS purposes but are not eligible for, and thus do not have, a SSN. Those individuals cannot be Medicare beneficiaries and therefore settlements, judgments, awards, or other payments made to them are not reportable under the Section 111 Program.

Conclusion
January 1, 2010, marked the start of a new decade and a new phase of active testing, data collection and reporting under the Medicare Section 111 Reporting Program. Even as production and full reporting are about to commence, questions and controversy remain. Guidance for reporting high volume (mass tort) and low dollar (medical bill write-offs, courtesy adjustments and in-kind service recovery gestures such as the issuance of gift cards) payments has been delayed while undergoing final clearance within CMS. On February 5, 2010, two property/casualty insurance industry groups and a self-insurance group asked the Secretary of Health and Human Services to delay implementation of the Section 111 program, citing concerns about security, confidentiality, and program readiness.

(http://www.aiadc.org) Only time will tell whether the Section 111 Reporting Program accomplishes the goal of providing CMS with reliable timely data to effectuate accurate coordination of benefits and enhance recoveries. But what we can say with certainty now is that these reporting rules are adding cost and bureaucracy for companies that pay claims, extending the time to close out settlements, and introducing further risk and uncertainty into the predictably unpredictable world of litigation.

Sidebar:

A Few Key Terms
Some of the most frequently used terms in describing the new Medicare reporting obligations are set forth here.

CMS: The Centers for Medicare & Medicaid Services; an agency of the federal government, part of the U.S. Department of Health and Human Services. CMS is responsible for the oversight of the Medicare program, including implementing the Section 111 reporting provisions.
RRE: Responsible Reporting Entity; the entity responsible for complying with Section 111.
ORM: Ongoing Responsibility for Medicals; refers to the RRE’s responsibility to pay, on an ongoing basis, for the injured party’s (Medicare beneficiary’s) medicals associated with the claim. This typically only applies to no-fault and workers’ compensation claims.
TPOC: the Total Payment Obligation to the Claimant; refers to the dollar amount of a settlement, judgment, award or other payment obligation — generally a “one-time” or “lump sum” payment — to or on behalf of the injured party, separate and apart from ORM.
MSP: Medicare Secondary Payer; is the term used when the Medicare program does not have primary payment responsibility (that is, another entity has the responsibility for paying before Medicare). Medicare is a secondary payer to Group Health Plan coverage in certain situations and is always a secondary payer to liability insurance (including self-insurance), no-fault insurance and workers’ compensation.

Resources & References

Statutes
Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA) (P.L. 110-173), amended the MSP provisions found at 42 USC 1395y(b).
42 USC §1395 y(b)(7)—mandatory reporting requirements for Group Health Plans.
42 USC §1395y(b)(8)—mandatory reporting requirements for non-Group Health Plans (liability insurance, including self-insurance, no-fault insurance and workers’ compensation).

Regulations
42 C.F.R. Part 411.
42 C.F.R. §411.23 — Requires a beneficiary’s cooperation in CMS's recovery efforts.
42 C.F.R. §411.24 — Sets forth procedures and rules for CMS's recovery of conditional payments. Addresses release of information, right to initiate recovery, methods of recovery, claim filing process, and how CMS calculates the recovery amount.
42 C.F.R. § 411.50 — Includes CMS's definitions of various insurance and payment terms.

Web sites
www.cms.hhs.gov/MandatoryInsRep: The CMS Section 111 website that contains all official implementing instructions and information, including the 224-page User Guide, Version 2.0, transcripts of Section 111 teleconference calls, registration and training opportunities for Section 111 RREs and agents. Refer to this website for the latest version of guidance documents and other important announcements. To receive email updates of Section 111 news and information, click on the “For email updates and notifications” link on this page.

www.Section111.cms.hhs.gov: The Medicare COBC’s secure website for Section 111 reporting.

www.cms.hhs.gov/ICD9ProviderDiagnosticCodes/06_codes.asp: List of valid ICD-9 diagnosis codes; updated annually; optional for use in completing cause of injury and diagnosis fields in claim files until Dec. 31, 2010; mandatory thereafter.

www.cdc.gov/nchs/datawh/ftpserv/ftpicd9/icdguide08.pdf and www.cdc.gov/nchs/datawh/ftpserv/ftpicd9/ftpic9.htm: Additional information on ICD-9-CM.

www.msprc.info: Provides supplemental guidance on the Medicare secondary payer and recovery process.

www.cms.hhs.gov/manuals/IOM: Source for CMS’ Internet-only Manuals (IOMs). The IOMs are a replica of the official CMS manuals. The IOMs are a good source of general information about the Medicare and Medicaid programs. They also contain day-to-day operating instruction, policies and procedures, and are used by providers, contractors, state survey agencies and others to administer CMS programs. The “Medicare Secondary Payer Manual” is Publication #100-05, and available on this website.

Technical Assistance
Each RRE will be assigned a COBC EDI Rep to be the main contact for Section 111 file transmission and reporting issues. Call the COBC EDI Department be at 646.458.6740 for assistance.

CMS also provides the following contacts for more complex technical problems that require assistance above the level of the EDI Rep. Escalate your calls in this order:

Jeremy Farquhar (EDI Department Supervisor)
(646) 458-6614
JFarquhar@ehmedicare.com.

William Ford (EDI Department Manager)
(646) 458-6613
WFord@ehmedicare.com.

Jim Brady (COBC Project Manager)
(646) 458.6682
JBrady@ehmedicare.com.

Training and Education
During implementation of the Section 111 reporting, CMS has been conducting a series of teleconferences to provide information and answer questions regarding the procedures. The schedule of upcoming teleconferences is posted on the Section 111 website at www.cms.hhs.gov/MandatoryInsRep. Transcripts of prior calls are also available on the web.

CMS is making available a curriculum of computer-based training (CBT) courses to Section 111 RREs. These courses are designed to provide overviews of Medicare and the Secondary Payer program, and in-depth training on the Section 111 reporting requirements and procedures. Sign up information is posted on the website, www.cms.hhs.gov/MandatoryInsRep.

Victoria L. Vance has joined the Cleveland office of Tucker Ellis & West LLP as Counsel. Ms. Vance is the former Senior Counsel and Director of Litigation for The Cleveland Clinic Foundation.

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FBA Annual Meeting and Convention 2009, Discovering Oklahoma City

By James W. Satola, senior attorney, Squire, Sanders & Dempsey LLP

While the 2009 FBA Annual Meeting in Oklahoma City was over six months ago, parts of it are as memorable as yesterday, particularly attendees’ visit to the Oklahoma City National Memorial & Museum on Friday afternoon, September 11. I was among the attendees who truly found much to discover in our welcoming host city, highlighting the Annual Meeting’s theme of “Discover Oklahoma City.” Hats off to the FBA Oklahoma City Chapter for putting on a wonderful convention, and especially so for putting it together on little more than a year’s planning. It was a remarkable event.

The Annual Meeting brings together FBA members from throughout the country to formally swear in its incoming President and new National officers, as well as to allow conference attendees to partake in the various business, educational, and social events offered throughout the three-day event. This past year’s meeting, at which Lawrence R. Baca was inducted as this year’s FBA National President, was held from September 10-12, 2009. And, in what has become almost a tradition at these annual gatherings, the Northern District of Ohio Chapter garnered an armload of national awards, recognizing our efforts in Chapter activity and programming, community service, and the continuing top-quality of this newsletter. One of our Chapter members even walked away with the FBA’s national award for exemplary community, public, and charitable service by a member of the FBA, the Elaine R. “Boots” Fisher Award, which given out at the Saturday evening Presidential Installation Banquet. It was a good year, and a good conference, for our Chapter.

For any Chapter member who has been to a previous FBA Annual Meeting, you know that attendance offers a mix of CLE programming, business meetings, leadership sessions aimed at sharing information and ideas on Chapter programming and service to members, and social offerings, such as recognition luncheons and evening events highlighting the unique sights of the host city. The Oklahoma City Annual Meeting followed suit.

The convention opened on Thursday, September 10, with a plenary session featuring keynote speaker Professor Charles Ogletree, Harvard Law School professor of law and executive director of the Charles Hamilton Houston Institute for Race and Justice (and who many might also remember as the lawyer representing fellow Harvard Law School Professor Henry Louis Gates, Jr., in the events culminating in the famous — or infamous — depending on your point of view, “Beer Summit” held this past July at the White House). Professor Ogletree presented on “The Ethical Challenges of a Lawyer President,” drawing on, among other things, his experiences as former professor, and present advisor, to the current Lawyer President and First Lady, as well as lessons the legal profession can learn from the past conduct of President Bill Clinton and independent counsel Kenneth Starr.

Thursday’s opening session was followed by a morning and afternoon of CLE programming, on both general subjects, such as “Energy and the Environment,” “Sentencing after Booker,” “Federal Court-Assisted Recovery Efforts [&] Innovations to Reduce Post-Conviction Substance Abuse and Recidivism,” “The Roberts Court on Criminal Law,” and “How to Conduct a Jury Trial,” as well as on CLE programs tracking the conference’s featured Indian Law theme, such as “Criminal Jurisdiction in Indian Country,” “The Cherokee Freedmen,” “Issues and Ethics for Lawyers Working With Corporate and Tribal General Counsel,” and “Delivery of Veterans Services in Indian Country.” In between these CLE sessions, the Foundation of the FBA held its annual FBA Fellows Luncheon, which was followed by the Foundation of the FBA Board Meeting. The day’s events were capped off with an evening reception at the Oklahoma History Center.

Friday morning opened with another plenary session, featuring keynote speaker Dean Erwin Chemerinsky, of the School of Law at the University of California, Irvine (formerly the Alston & Bird professor of law and professor of political science at Duke University), author of four books and over 100 law review articles (and countless newspaper and magazine articles and commentary on legal issues for national and local media), who spoke on “Enhancing Government, Federalism for the 21st Century.” Again, the opening session was followed by continued CLE offerings, including “The Roberts Court on Indian Law,” “Bankruptcy Creditors’ Rights and Fraud,” “Homeland Security and Civil Rights,” and “Expert Discovery Issues in Civil Cases.” Friday’s activities also included the Younger Federal Lawyers Awards Luncheon, the Younger Lawyers Division Board Meeting, and a training session keyed toward Vice Presidents of the Circuits Training.

As noted earlier in this article, Friday’s conference events included for many attendees a visit to the Oklahoma City National Memorial and Museum, located within walking distance of the conference hotel (the recently-restored, almost century-old, Skirvin Hilton). Our visit began with a panel discussion at the Museum 4th Floor Visitors’ Center Library, featuring four persons who lived through the April 19, 1995 bombing of Oklahoma City’s Alfred P. Murrah Federal Building. The discussion was hosted by moderator Ed Kelley, former Editor of The Oklahoman newspaper, Robert Dennis, Clerk of Court for the U.S. District Court for the Western District of Oklahoma, former U.S. Magistrate Judge Ronald Howland, who conducted the initial criminal proceedings in United States v. McVeigh and United States v. Nichols (at Tinker Air Force Base outside of Oklahoma City, due to damage caused to the Oklahoma City federal courthouse adjacent to the bombed Alfred P. Murrah Federal Building, as well as for security concerns), and Terri Watkins, currently the public information officer for the Oklahoma State Auditor’s Office, who, in 1995, was an investigative reporter for KOCO TV, the Oklahoma City ABC affiliate covering the Oklahoma City bombing.

Following the panel discussion, attendees had the opportunity to see the museum portion of the facility, three floors of artifacts, news items, and displays focusing on the events and aftermath of the Oklahoma City bombing. The unadorned exhibits filling the museum powerfully recall, and in some elements serve to explain and perhaps heal, the sad events of the bombing. Of all the displays, for me the most moving was the second floor “Gallery of Honor,” a small round room containing 168 clear glass boxes, dedicated to the 168 persons killed in the explosion, including 19 children who were in the building’s day care center. In these boxes, the surviving families have gathered photographs and personal items from those who lost their lives in the blast. It is impossible to not be moved when one views the photographs of that day’s youngest victims surrounded by the small stuffed animals and toys left behind.

A fitting close to the sobering exhibits of the museum was the experience of viewing the grounds of the adjacent memorial, which stand in the footprint of the Alfred P. Murrah Building. Before the tour, attendees had the opportunity to hear a presentation given by the designers of the memorial grounds, husband and wife design team Hans and Torrey Butzer, in the Visitor’s Center Library. The design of the memorial was selected from among 624 entries submitted from every state and 23 countries. It was an inspired choice. The grounds of the park provide not only an uplifting and comforting setting, but also represent a remarkably complex yet well-fitting array of symbolism and imagery, capturing both the memorial elements of the park and the beauty of the elements that survived. Most famous of all is perhaps the “Field of Empty Chairs” display, comprised of 168 bronze and stone chairs arranged in nine rows, one for each of the floors of the Murrah Building, placed according to the floor on which each of the 168 persons killed were working or visiting at the time of the explosion. Each of the chairs rests on a glass base etched with the name of a victim. Nineteen of the chairs are smaller than the rest, representing the 19 children killed in the day care center. Included at the edge of the Field of Empty Chairs is a surviving corner of the original Murrah Building. In all, there are nine distinct areas of the memorial park, each containing elements of both the original site and the memorial. For example, a reflecting pool running through the center of the park traces the location of the former portion of Fifth Avenue on which the Murrah Building once stood. A “Survivor Tree” plaza surrounds the more than 90-year-old American Elm tree that continues to stand in what was once the Murrah Building parking lot. (A description of these and other symbolic elements of the park can be found at www.oklahomacitynationalmemorial.org).

Friday’s activities completed with a Dinner and Reception at the National Cowboy and Western Heritage Museum. The Museum, founded in 1955, is home to an internationally renowned collection of Western art and artifacts reflecting Western history and culture. While I did not expect it before arriving, this museum is not only beautiful, it’s also huge, containing room after room of wonderful paintings, sculpture, and Western memorabilia — including a glass-ceilinged entrance lobby housing the immense, and immediately-recognizable, plaster sculpture “End of the Trail,” created in 1915 for the Panama-Pacific International Exposition in San Francisco by American sculptor James Earle Fraser (even if the name is not familiar, look up “End of the Trail” on the internet or in an encyclopedia — you’ll recognize it). A bit of trivia. While this iconic symbol of Western art is well-known as a brass sculpture, the plaster version found at the museum is the true original. The “End of the Trail” was intended to be cast in bronze, but material shortages due to the First World War prevented it. The original plaster statue then slowly deteriorated over the subsequent years, until it was obtained by the National Cowboy and Western Heritage Museum in 1968, and restored. A bronze replica now sits where the original once sat near San Francisco. Some might also recognize the artist, James Earle Fraser, as the creator of the Indian Head (Buffalo) nickel.

Saturday’s morning and afternoon events were dedicated primarily 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 where participants first break into smaller groups by Circuit to discuss programming that has worked well for each respective Chapter, then all rejoin to discuss and share the results among the full group. This final day of the Annual Meeting 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, an Outstanding Newsletter Award for this publication, and two Presidential Citation Awards for the Chapter’s “Members-Only Networking Breakfasts” and its “New Lawyer Training Curriculum Series” (both of which continue this program year). The Awards Luncheon was followed by the central business meeting of the convention, the FBA National Council Meeting, which included reports from the outgoing FBA President, Juanita Sales Lee, and the President Elect (and now current President) Lawrence Baca, as well as reports from the Treasurer, the Chair of the Nominations and Elections Committee (announcing the incoming National Directors and Officers), the President of the Foundation of the Federal Bar Association, the Chair of the Government Relations Committee, the President of the Federal Bar Building Corporation, the FBA’s ABA Delegate, the Chair of the Membership Committee, and finally from FBA Executive Director Jack Lockridge (who, it was also announced, had been chosen by his peers as the 2009-2010 President of the National Association of Bar Executives).

The convention concluded on Saturday night with the Presidential Installation and Banquet, which marked the formal installation of Lawrence R. Baca as the FBA National President for 2009-2010 and the swearing in of the FBA’s newly-elected National officers. The Installation Banquet began with the Presentation of Colors by the Kiowa Black Leggings Warrior Society, reflecting the historic milestone of the installation of Larry Baca, the first ever Native American president of a major national bar association. The event also showcased the presentation of the various FBA national awards, including the presentation of the Elaine R. “Boots” Fisher Award for outstanding community, public, and charitable service, to Northern District of Ohio Chapter member, and current Chapter Vice President, Diana M. Thimmig. (I write about this presentation more fully elsewhere in this edition of Inter Alia). The Chapter also received, as it has in past years, a $2,500 grant from the FBA’s Ilene & Michael Shaw Public Service Grant Fund to continue the Chapter’s successful sponsorship of the “A Book of Your Own” community service program, which collects books for distribution to students in the Cleveland public schools. Other awards presented at the Installation Banquet were the Earl W. Kintner Award (the FBA’s highest award) presented to The Honorable Pamela A. Mathy, United States Magistrate Judge for the Western District of Texas, and the Sarah T. Hughes Civil Rights Award, presented to The Honorable Walter R. Echo-Hawk, Jr., Justice of the Pawnee Nation Supreme Court, and internationally respected lawyer, tribal judge, scholar, and activist in the advancement of the civil and human rights of Native Americans.

Next year’s Annual Meeting and Convention will be held September 23-25, 2010, in New Orleans, Louisiana, hosted by the FBA New Orleans Chapter. It will welcome the induction of next year’s FBA National President, Ashley L. Belleau, and incoming officers. It also promises to be a great event. Mark your calendars.

James W. Satola is with Squire, Sanders & Dempsey LLP, as well as a past president and current board member of the FBA Northern District of the Ohio Chapter. The photographs accompanying this article were taken by the author during his visit.

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How to Deal with a Cat’s Paw and Other Sly Topics in Employment Law

Employment Law Speaker Leigh Gross Latherow.

Are you wondering what possible connection a “cat’s paw” could have with federal employment litigation? On December 1, attendees at the FBA-NDOC’s Second Annual Federal Employment Litigation Seminar, received answers to that question and others on the newest theories of recovery in federal court.

Julie Galassi, of Hasselberg, Rock, Bell & Kuppler, in Peoria, Illinois, gave her hands-on experience of using the “cat’s paw” in the seminal Seventh Circuit case on this new theory of proving employment discrimination. As the plaintiff’s attorney in Straub v. Proctor Hospital, Galassi was able to give a birds-eye view of how to successfully use or defend against such cases. Under the “cat’s paw” theory, courts can impose liability on an employer based on the unlawful intent of an employee who did not make the formal decision to take an adverse employment action against the plaintiff-employee. Liability may arise when a supervisor or even a co-worker provides false, misleading or selective information that is relied upon by a neutral decision-maker. A writ for certiorari before the U.S. Supreme Court is pending on the Straub case and in November the Court requested that the U.S. Solicitor General file a brief expressing the views of the United States on the case.

FBA-NDOC Board Member John Gerak from Ogletree Deakins and FBA Member Jason Bristol from Cohen, Rosenthal & Kramer, LLP presented a lively discussion on litigating collective actions under the Fair Labor Standards Act (FLSA). Having recently settled a case that was pending before Judge James Gwin, Gerak and Bristol were able to share their real life war stories on discovery and settlement battles they have experienced while litigating that case as well as other complex FLSA cases. They also confirmed the theory that it is better to litigate against a formidable and knowledgeable opposing counsel.

Leigh Gross Latherow, of VanAntwerp, Monge, Jones, Edwards & McCann, LLP, of Ashland, Kentucky, shared her perspective as defense counsel in a recent high-profile Sixth Circuit case on retaliation claims by third-parties and bystanders. In Eric Thompson v. North American Stainless, in an en banc decision, the Sixth Circuit Court of Appeals rejected an employee’s claim for third-party protection from retaliation under Title VII. Ms. Latherow explained the defense team’s strategy in convincing the court not to hold the employer liable because the plaintiff alleged his termination was based solely upon his relationship with his fiancée, who had filed a claim against the employer, rather than his own actions. A writ for certiorari is also pending in this case and the U.S. Supreme Court invited the Solicitor General to submit a brief on behalf of the United States on this case.

If you have any ideas for the next federal employment litigation seminar, which will be held in December 2010, please contact one of the seminar’s co-chairs, Ellen Toth at Ogletree Deakins (ellen.toth@ogletreedeakins.com), or Rebecca Bennett at Frantz Ward (rbennett@frantzward.com).

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“2010, A Law Oddity” — Receives Rave Reviews

Speaker Brian Kaufman entertained the audience with
a bit of magic with help U.S. Northern District Clerk
of Court Geri Smith.

Ethics, Professionalism and Substance Abuse are typically somber topics for a Continuing Legal Education Seminar. But you would not have known it from the smiles and laughter in the 7th Floor Auditorium of the U.S. District Courthouse on Friday, December 11, 2009.

Hahn, Loeser and Parks attorney Art Kaufman brought his unique blend of comedy and compassion to those serious topics, along with guest speakers James M. Drozdowski, also of Hahn Loeser. Drozdowski spoke about ways that lawyers can support, and yet deal effectively with, the problems posed by lawyers impaired by substance abuse problems.

Fresh from the comedy circuit, Art’s son Brian Kaufman, a professional magician and entertainer, shared his own personal, moving story. In closing, Art delivered “Stand Up Ethics” as only Art can.

The CLE--which is free for Chapter members-- was well attended as always and received rave reviews from the attorneys who completed the post-CLE evaluation forms. Everyone agreed that a spoonful of humor indeed helps the ethics medicine go down.

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Coffee and Contacts with FBA Members

Margaret Wong, a former Chapter President, hosted the first Networking Breakfast of 2010 at the Cleveland offices Margaret W. Wong & Assoc. Co., LPA on Chester Avenue. Almost 20 FBA members and guests joined Margaret and several of her colleagues on the morning of January 14 to start off the year right by networking with their fellow federal practitioners.

While immigration law and the growth of Margaret W. Wong & Assoc.’s practice both here and across the county was a topic of discussion, the group also covered hot topics in university law, the challenges encountered by solo practitioners and small firms, the advantages and disadvantages of electronic filing in the 6th Circuit, upcoming judicial races, and numerous other topics.

The members-only breakfasts allow federal practitioners to discuss issues with colleagues and describe their practices for case referral purposes. The next networking breakfast is scheduled for April 29, 2010 and will be hosted by Tucker Ellis & West LLP in Cleveland. For more details, go to the Chapter’s Web site at www.fba-ndohio.org.

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Chapter’s Law School Initiative

The Chapter has moved forward on an initiative proposed by President Carter Strang and enthusiastically supported by the Chapter Board of Directors that creates a partnership between the law schools in the U.S. Northern District and our Chapter. Akron University College of Law, Case Western Reserve College of Law, Cleveland-Marshall College of Law, and the University of Toledo College of Law are participating in the partnership. Each school has provided representatives to the Chapter’s Board. The Representatives fully participate in all Board meetings and all Chapter activities. The representatives of each law school are as follows:

Akron
Dean Martin Belsky
Timothy Gallagher (3L)
Jackie Walsh (2L)

Case Western
Associate Dean Jonathan Entin
Rebecca Gibson-Wilkins (3L)
Zach Smigel (2L)

Cleveland-Marshall
Professor Ken Kowalski
Drew Odum (3L)
Mona Ma (2L)

Toledo
Dean Douglas Ray
Assistant Dean Heather Karns
Brooke Stokke (3L)
Mark Abramowitz (2L)

As part of the partnership, the Chapter will work with each law school in planning an event at each during the second semester of this school year. Students, faculty and staff at each law school will be invited to the events at their respective schools Please check our Chapter’s calendar of events for details regarding the each school’s event.

Another component of the partnership is payment of the Federal Bar Association’s annual membership fee of $20. The Chapter wishes to thank Renillio Deposition & Discovery for underwriting that cost. Law students are future Chapter members, and the FBA’s membership fee has been a barrier to law student membership. That barrier is now removed. Students will, through each law school’s representatives, be invited to become FBA members at no cost to them and to participate in the Chapter’s many activities.

As yet another component of the partnership, the Chapter will be providing an annual $1,000 award to the University of Toledo College of Law to be awarded in 2010 to the top students in Constitutional Law. The Chapter has for many years provided and will continue the same award at Case Western College of Law, Cleveland-Marshall College of Law and at the University of Akron College of Law.

Also, the Chapter sponsored the luncheon for those attending Toledo Law’s Military Commissions Act Symposium held Feb. 19, 2010.

It is the Chapter’s hope that through the partnerships law students will not only be more likely to continue to be FBA and Chapter members after leaving law school, but that our efforts will assist in reversing the “brain drain” from Northern Ohio because the students will want to live and work in the Northern District as a result of being more knowledgeable about the practice of law in it.

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Library Bookends

By Irene M. Milan, U.S. Courts Librarian, U.S. Courts Libraries of the Northern District of Ohio

Situated like bookends near the geographic far sides of the region jurisdictionally covered by the U.S. District Court for the Northern District of Ohio, two U.S. Courts Libraries provide support for the reference and research needs of the District’s bench and bar. The Western Division is served by the library located on the fourth floor of Toledo’s U.S. Courthouse at 1716 Spielbusch Avenue, and the Eastern Division, by library located on the 20th floor of Cleveland’s Carl B. Stokes U.S. Courthouse at 801 W. Superior Avenue. Both libraries are open from 8:30 a.m.- 5 p.m., Monday through Friday, and are available for use by attorneys doing research or waiting for attendance at a court proceeding. Materials do not circulate outside of the courthouses, but books may be signed out by counsel for use in the federal courthouse courtrooms during case-related appearances.

In addition to providing peaceful environments for quiet contemplation and study, both libraries also have several public access computers, accommodate wi-fi access, and are furnished with comfortable chairs, spacious tables, and carrels. By prior arrangement, a small conference room and two study rooms at the Cleveland library may even be reserved for short term use.

Lexis and Westlaw access on public access computers is by personal subscription or by law firm provided password. Many materials available through these fee based database services are also available in hard copy format at no charge as part of the Libraries’ shelved collections. Hard copy components include numerous federal practice oriented treatises, with extensive and detailed indexes, as well as jury instruction sets, federal and Ohio current statutory or legislative history materials, and broad based general legal research resources, such as legal encyclopedias and ALR’s. Materials not currently available anywhere online are also collected. In addition, federal and Ohio case reporters are still current in Cleveland.

If photocopies are needed, there is a charge for more than five copies made: six-10 pages is $1.00, and $.10 per page for copies in excess of 10 pages. For more lengthy research projects, materials may be reserved for up to two weeks at study carrels located in the Cleveland library, with this period extendable upon request.

The libraries are staffed by two professional law librarians: Marianne Mussett in Toledo, (419) 213-5655; and Irene M. Milan in Cleveland, (216) 357-7275. Great library technical services support staff are also available at both libraries.

We would be very pleased to welcome you to the U.S. Courts Libraries of the Northern District of Ohio.

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Safier

Kristen L. Safier

Vitullo

Maria P. Vitullo

The New Civil Rule Amendments: The “Days Are Days” Approach

By Kristen L. Safier, associate, Taft Stettinius & Hollister LLP, and Maria P. Vitullo, associate, Taft Stettinius & Hollister LLP

On Dec. 1, 2009, new time computation rules for the Federal Rules of Civil Procedure took effect.

The Amendment Process
The process for amending the Federal Civil Rules of Procedure begins several years before the amendment becomes effective. For the rule amendments that became effective on December 1, 2009, proposed amendments were originally released for public comment on August 15, 2007. The process actually began much earlier, as the proposed amendments usually have their genesis in recommendations from the Advisory Committee on the Federal Rules of Civil Procedure. For example, the Advisory Committee on the Federal Rules of Civil Procedure recommended the amendments to Rules 13, 15 and 48, and the adoption of Rule 62.1, to the Standing Committee on Rules of Practice and Procedure (“Standing Committee”) in December 2006.¹

The most recent round of amendments included long-discussed changes to the time computation rules, which had been debated since at least the early 1990s.² In response to that debate, the Standing Committee created a Time-Computation Subcommittee in 2005.³ In June 2007, the Subcommittee sent its recommendations to the Standing Committee. These recommendations were overwhelmingly adopted into the Rules. For example, the Subcommittee recommended the “days-are-days approach,” in which Saturdays, Sundays and legal holidays are included in the computation, and thereby sought consistency in computation under the rules and under other federal statutes.⁴

After the Standing Committee released the proposed amendments, the public was given six months to comment, during which time the Advisory Committee held public meetings to discuss the proposed amendments to the Rules. Regarding the time computation amendments. Some commentators expressed concern that the time computation amendments would disrupt the orderly process of judicial business as court officials and practitioners learned how to compute time under the new rules.⁵

Nevertheless, after the comment period, the Standing Committee recommended that the Judicial Conference approve the time computation amendments, as well as the amendments to Rules 13, 15, 48 and 81, and the adoption of Rule 62.1, in June 2008.⁶ The Judicial Conference approved the amendments at its September 2008 session and sent the Supreme Court of the United States its recommendation for approval November 2008.⁷ The Supreme Court adopted the proposed amendments and sent them to Congress in March 2009.⁸The amendments became effective on December 1, 2009.⁹

Congress, in turn, enacted the Statutory Time-Periods Technical Amendments Act of 2009.¹⁰ Pursuant to that act, relevant statutory time periods were amended to be consistent with the time computation amendments.

The Time-Computation Amendments

The amendments to the Federal Rules of Civil Procedure have simplified the approach to computing all time frames by adopting a “days are days” approach.¹¹ Under the former rules, intermediate weekends and holidays were only sometimes counted.¹² The new amendments count intermediate weekends and holidays, and extend deadline periods to offset the effect of including these additional days in the calculation.¹³ In addition, the amendments change most periods shorter than 30 days to multiples of seven days (i.e., seven, 14, 21, 28 days).¹⁴ In all, 23 Civil Rules have been amended to reflect the new time-computation method. Some amendment highlights include:

• Rule 6 (Computing and Extending Time for Motion Papers): Every day, including intermediate Saturdays, Sundays and legal holidays, are to be counted in the computation of time when the time period is stated in days or longer unit of time.¹⁵ With some exceptions, written motions and notice of the hearing must be served at least 14 days before the time specified for the hearing (formerly five days).¹⁶ Opposing affidavits must be served at least seven days before the hearing (formerly 1 day).¹⁷

• Rule 12 (Defense and Objections): Must serve answer, answer to counterclaim or crossclaim, and reply to answer within 21 days (formerly 20 days).¹⁸ Responsive pleading if Rule 12 motion is denied, or if court grants motion for a more definite statement, must be served within 14 days after notice of the court’s action or after the more definite statement is served (formerly 10 days).¹⁹

• Rule 15 (Amended and Supplemental Pleadings): A party may amend its pleadings once as a matter of course within 21 days after serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar (formerly 20 days).²⁰ A required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading (formerly 10 days).²¹

• Rule 23 (Class Actions): An appeal from an order granting or denying class-action certification may be permitted if petition for permission to appeal is filed with the clerk within 14 days after the order is entered (formerly 10 days).²²

• Rule 38 (Right to a Jury Trial; Demand): Party may demand a jury trial by serving written demand no later than 14 days after last pleading directed to the issue is served (formerly 10 days).²³

• Rule 50 (Judgment as a Matter of Law in Jury Trial; Related Motion for a New Trial; Conditional Ruling): No later than 28 days after entry of judgment or after the jury is discharged, the movant may file a renewed motion for judgment as a matter of law (formerly 10 days).²⁴ Motion for a new trial under Rule 59 by party against whom judgment as a matter of law is rendered must be filed no later than 28 days after entry of judgment (formerly 10 days).²⁵

• Rule 52 (Findings and Conclusions by the Court; Judgment on Partial Findings): Court may amend its findings or make additional findings and amend judgment on a party’s motion filed no later than 28 days after entry of judgment (formerly 10 days).²⁶

• Rule 54 (Judgment; Costs): Clerk may tax costs on 14 days’ notice (formerly one day). Court may review clerk’s action on motion served within the next seven days (formerly five days).²⁷

• Rule 56 (Summary Judgment): A party may move for summary judgment at any time until 30 days after the close of all discovery. A party opposing the motion must file a response within 21 days after motion is served or responsive pleading is due, whichever is later. Movant may file reply within 14 days after the response is served.²⁸

• Rule 59 (New Trial; Altering or Amending a Judgment): A motion for a new trial must be served no later than 28 days after entry of judgment (formerly 10 days).²⁹ Opposing party has 14 days to file opposing affidavits after being served with motion for a new trial based on affidavits (formerly 10 days).³⁰ Court, on its own, may order a new trial no later than 28 days after entry of judgment (formerly 10 days).³¹ Motion to alter or amend judgment must be filed no later than 28 days after entry of judgment (formerly 10 days).³²

• Rule 62 (Stay of Proceedings to Enforce a Judgment): Except as otherwise stated in the rule, no execution may issue on a judgment, or proceedings taken to enforce it, until 14 days have passed after its entry (formerly 10 days).³³

• Rule 65 (Injunctions and Restraining Orders): Temporary restraining order expires at the time after entry — not to exceed 14 days (formerly 10 days) — that the court sets, unless before that time the court extends it for good cause or adversary consents to longer extension.³⁴

• Rule 68 (Offer of Judgment): At least 14 days before the date set for trial, a defending party may serve an offer of judgment (formerly more than 10 days before trial begins).³⁵ Opposing party must serve written notice accepting offer within 14 days of being served (formerly 10 days).³⁶ If liability has been determined, liable party may serve offer of judgment at least 14 days before date set for a hearing to determine liability (formerly 10 days).³⁷

• Rule 72 (Magistrate Judges; Pretrial Order): Party may serve and file objections to a magistrate’s order relating to non-dispositive matters within 14 days of being served with a copy of the order (formerly 10 days).³⁸ Within 14 days of being served with a copy of a recommended disposition of a dispositive motion, a party may serve and file objections (formerly 10 days).³⁹ A party may respond to another party’s objections within 14 days after being served with a copy (formerly 10 days). ⁴⁰

• Rule 81 (Applicability of the Rules in General; Removed Actions): A defendant who did not answer before removal must answer or present defenses/objections within 21 days after receiving a copy of the initial pleading stating claim for relief (formerly 20 days), or within 21 days after being served with the summons for an initial pleading on file at the time of service (formerly 20 days), or within seven days after notice of removal is filed (formerly five days), whichever period is longest.⁴¹ If all necessary pleadings have been served at time of removal, a party entitled to a jury trial must be given one if it serves a demand within 14 days after it files a notice of removal or it is served with a notice of removal (formerly 10 days).⁴²

In conjunction with the Federal Civil Rule time-computation amendments, the District Court for the Northern District of Ohio has likewise amended its local rules for consistency. New Local Rule 7.1(e) provides that reply memorandum in support of any dispositive motion must be filed and served within 14 days after service of the memorandum in opposition (formerly 10 days).⁴³ Local Rule 7.1(e) has been further amended to reflect that intermediate weekend days and legal holidays are now to be included in computing the rule’s time periods.

In addition, Local Rule 72.3(a) now provides that a party may appeal from a magistrate judge’s order on nondispositive matters within 14 days after service of the order (formerly 10 days). With respect to dispositive matters, a party may object to a Magistrate Judge’s findings within 14 days after being served with a copy thereof (formerly 10 days)⁴⁴, and a party may respond to another party’s objections within 14 days after being served with a copy thereof (formerly 10 days).⁴⁵

End notes

¹Memorandum from Hon. Lee H. Rosenthal to Hon. David F. Levi, Re: Report of the Civil Rules Advisory Committee (Dec. 12, 2006). According to Judge Frank H. Easterbrook, Chief Judge of the U.S.Court of Appeals for the Seventh Circuit, a majority of members of the Standing Committee first urged changes to the time computation rules 16 years before the new Rule amendments took effect. Easterbrook, Judge Frank H., Comments on Proposed Rules (Dec. 12, 2007) (e-mail). ²Memorandum from Judge Mark R. Kravitz and Catherine Struve to Judge David F. Levi, Re: Time-Computation Project (June 29, 2007).
³Id. at 3-4.
⁴Comments of the Committee on Civil Litigation of the U.S. District Court for the Eastern District of New York on the Proposed Time-Computation Amendments (2007).
⁵The timeline for these process and the relevant recommendations are available at http://www.uscourts.gov/rules/archive.htm#proposed0807 (last visited Jan. 9, 2010).
⁶Id.
⁷Id.
⁸Fed. R. Civ. P. (2010).
⁹H.R. 1626 (2009).
¹⁰Memorandum to Hon. John G. Roberts, Jr., Re: Summary of Proposed Amendments to the Federal Rules (Dec. 1, 2008), available at http://www.uscourts.gov/rules/2008-Supreme%20Court-summary.pdf (lasted visited Jan. 11, 2009).
¹¹Id.
¹²Id.
¹³Id.
¹⁴Fed.R.Civ.P. 6(a)(1)(B). The time-computation in Rule 6(a) does not apply when the time period is established by the court, or when computing a time period set by statute if the statute specifies the method of computing time.
¹⁵Fed.R.Civ.P.6, Committee Note, Subdivision (a).
¹⁶Fed.R.Civ.P. 6(c)(1).
¹⁷Fed.R.Civ.P. 6(c)(2).
¹⁸Fed.R.Civ.P. 12(a)(1).
¹⁹Fed.R.Civ.P. 12(a)(4).
²⁰Fed.R.Civ.P. 15(a)(1).
²¹Fed.R.Civ.P. 15(a)(3).
²²Fed.R.Civ.P. 23(f).
²³Fed.R.Civ.P. 38(b).
²⁴Fed.R.Civ.P. 50(b).
²⁵Fed.R.Civ.P. 50(d).
²⁶Fed.R.Civ.P. 52(b).
²⁷Fed.R.Civ.P. 54(d).
²⁸Fed.R.Civ.P. 56(c). These rules apply unless a different time is set by local rule or the court. Id.
²⁹Fed.R.Civ.P. 59(b).
³⁰Fed.R.Civ.P. 59(c).
³¹Fed.R.Civ.P. 59(d).
³²Fed.R.Civ.P. 59(e).
³³Fed.R.Civ.P. 62(a).
³⁴Fed.R.Civ.P. 65(b)(2).
³⁵Fed.R.Civ.P. 68(a).
³⁶Id.
³⁷Fed.R.Civ.P. 68(c).
³⁸Fed.R.Civ.P. 72(a).
³⁹Fed.R.Civ.P. 72(b)(2).
⁴⁰Id.
⁴¹Fed.R.Civ.P. 81(c)(2).
⁴²Fed.R.Civ.P. 81(c)(3)(B).
⁴³Local Rule 7.1(e).
⁴⁴Local Rule 72.3(a).
⁴⁵Local Rule 72.3(b).

Kristen L. Safier is with the Litigation Department of Taft Stettinius & Hollister LLP. She practices general commercial litigation, with a focus on environmental and trust litigation.

Maria Vitullo is with the Litigation Department at Taft Stettinius & Hollister LLP.

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Smith v. Spisak, 130 S.Ct. 676 (2010): Piling On the Sixth Amendment

By Alan Rossman, assistant federal public defender, Office of the Federal Public Defender for the Northern District of Ohio

“From counsel’s function as assistant to the defendant derive[s] the overarching duty to advocate the defendant’s cause.” With that previously unassailable caveat well noted, the Supreme Court decided Strickland v. Washington, the leading case governing ineffective assistance of counsel claims under the Sixth Amendment. For 26 years Strickland has beaconed the clearly established law from which all constitutional challenges to a lawyer’s competency draw their ethical and legal authority.

Strickland was a capital case. Since the 1932 trial of the Scottsboro Boys in Powell v. Alabama, the Supreme Court has recognized the constitutional need for a competent advocate to safeguard the constitutional underpinnings of death sentences. Since Furman v. Georgia, it remains the voice of the defense advocate more than any other protection that gives assurance to constitutional due process in a context where every case is more heinous than the next and where every death sentence is reserved for the “worst of the worst.”

On January 12, 2010, in Smith v. Spisak, 130 S.Ct. 676 (2010), the Supreme Court recognized for the first time that there are cases and clients so bad, it does not matter whether the client has a zealous advocate or not because the case cannot be won. In a unanimous decision, the Court reversed a grant of habeas based upon counsel’s closing mitigation phase argument.¹ In voicing a closing argument on mitigation that seriously understated the facts upon which defense mitigation experts had based their mental illness conclusions, not once did counsel ever ask for a sentence less than death. Counsel routinely disparaged his client, told the jury Spisak had never done a good deed in his life and would never change, pointed out the victims’ family members in the courtroom while telling the jury “it was awfully important to them what the jury did,” advised the jury that defense counsel and the judge would be proud of them whatever they decided, and spent most of the argument detailing the killings in graphic, meticulous detail. Although the Court indicated counsel made several references to our being a humane society, had generally emphasized mental illness as a mitigating factor, and referred the jury to the experts' testimony, the Court assumed under Strickland’s first prong that counsel had performed deficiently at the penalty phase of the capital murder trial.

In spite of the mental illness mitigation, the Court ruled under Strickland’s second prong that Spisak was not prejudiced. Spisak had, after all, admitted to committing the three murders and two other shootings. Moreover, the jury had “fresh in their minds” the defense experts’ explanation and specific facts upon which they had based their conclusions; had learned of defendant’s family background and his struggles with gender identity, and similarly understood the link between defendant's mental illness and the crimes. They also had “fresh in their minds the government's evidence regarding the killings — which included photographs of the dead bodies.” The Court concluded: “We do not see how it could have made a significant difference had counsel gone beyond his actual argument.”

In his concurrence, Justice John Paul Stevens lambasted counsel’s closing argument as “grossly transgress[ing] the bounds of what constitutionally competent counsel would have done in a similar situation.” Nonetheless, he felt compelled to go along with the majority because, in light of Spisak’s “monstrous” crimes, “even the most skillful of closing arguments — even one befitting Clarence Darrow — would not have created a reasonable probability of a different outcome in this case.”

Unlike previous ineffective assistance of counsel analyses, Spisak takes the Court into dangerous new IAC territory, suggesting that in spite of the presence of substantial mitigation, it did not matter how constitutionally deficient counsel’s advocacy was on his client’s behalf, the case simply could never have been won, “not even by Clarence Darrow.”

Such reasoning if not cynical, is dangerously ironic. Darrow defended Leopold and Loeb, self- professed Nietzeschean supermen who, after seven months of detailed planning, cold-bloodedly committed kidnaping and murder in a failed attempt to commit the “perfect crime.” Unlike Spisak, there was no diagnosed mental illness underlying this “thrill of the kill” crime. Sensationalized as a hopeless and the purportedly unwinnable case, Darrow’s closing argument nevertheless succeeded in winning a life imprisonment sentence for the defendants.

The Spisak case is troubling procedurally as well. The Court granted review on the issues of whether the Sixth Circuit had failed to give AEDPA deference to the state court decision, and whether the Circuit had misapplied United States v Cronic rather than Strickland. In reversing the Circuit and ordering Spisak’s death sentence re-imposed, the Supreme Court sidestepped answering the certiorari questions. The Spisak decision (like the Circuit decision) does not even reference Cronic, implicitly accepting Spisak’s argument that the Circuit had applied Strickland. The much more nationally significant question — how or if AEDPA applies to summary unreasoned state decisions (an issue that was neither identified nor briefed by the government) — was also avoided. As the Court noted, “[W]e need not decide whether deference under § 2254(d)(1) is required here. With or without such deference, our conclusion is the same.”

(http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.01&
referencepositiontype=T&referenceposition=SP%3be07e0000a9f57
&fn=_top&sv=Split&docname=28USCAS2254&tc=-1&pbc=6B821614
&ordoc=2021084058&findtype=L&db=1000546&vr=2.0&rp=%2ffind
%2fdefault.wl&mt=Westlaw.)

Rather than ruling the case improvidently granted or ordering full briefing on the AEDPA issue, the Court decided Spisak on the merits. It ruled, much like an appellate court, that regardless of counsel’s deficient advocacy, no argument could have swayed even a single juror to vote for life. It is one thing for the Court in its collective opinion to proclaim Spisak as the “worst of the worst” and deserving of death. It is quite another to give its imprimatur to lower courts who similarly might believe in a capital trial, but nonetheless reach the conclusion that, in spite of substantive mitigation and given the nature of the crime and the character of the defendant, the case cannot be won no matter how expertly (or poorly) advocated. That mind-set goes well beyond Spisak — and speaks to the heart and soul of the Sixth Amendment by in fact now calling it into question.

Alan Rossman is an assistant federal public defender in the capital habeas unit of the Office of the Federal Public Defender for the Northern District of Ohio. Prior to his appointment to that position, Mr. Rossman was in private practice, primarily in the area of capital defense. Mr. Rossman was defense counsel along with Professor Michael Benza of Case Western Reserve University’s School of Law in Smith v. Spisak.

Endnotes

¹This article does not address the jury instruction claim pursuant to Mills v. Maryland, in which the Court in Spisak reversed the Sixth Circuit’s grant of the writ, and ruled that Ohio’s “acquittal first” jury instruction does not implicate the clearly established law of Mills.

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“Picking Cotton” Duo Visit Cleveland

On October 26, 2009, Jennifer Thompson-Cannino and Ronald Cotton visited Cleveland to give a presentation on their recently published book, “Picking Cotton.” Their book, authored with Erin Torneo, recounts Thompson-Cannino’s story as a rape victim, her role in identifying Cotton as the alleged perpetrator of the crime, and the trial and appeal process that was unwound 11 years later through DNA evidence. Their story is one that underscores flaws inherent in the way eyewitness identifications are conducted in criminal investigations and the power of forgiveness each one has for the other. The two now regularly give joint presentations throughout the country, and are involved with innocence projects in a number of states. Thompson-Cannino has also testified before Congress as to the value of DNA evidence in criminal proceedings. The FBA-sponsored event marked the first time the Chapter held a program in the auditorium of the Cleveland Public Library. These arrangements were made possible thanks to the efforts of former FBA Chapter President Ellen Toth and the CPL staff. The Chapter looks forward to holding future events in the CPL auditorium.

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Recap of “Introduction to Federal Court Practice” conducted January 22, 2010

”Introduction to Federal Practice“ was held on Friday, January 22, 2010, in Courtroom 16A of the Carl B. Stokes U.S. Courthouse in Cleveland. The seminar played to an almost full house, with close to 60 people in attendance. Attendance at this program satisfies the training requirement of Local Rule 83.5.

Judge Solomon Oliver Jr. welcomed the group on behalf of all of the judges of the court and proceeded to offer suggestions to be effective practitioners. As he began his comments, Judge Oliver provided an overview of the composition of the judicial officers of the court, noting that the attorneys will enjoy their practice in the Northern District of Ohio and would find the judges to be well trained counselors interested in resolving their cases in a fair way.

Judge Oliver stressed the importance of knowing the differences between state and federal court practice, noting that you cannot go from state court to federal court casually, that the differences are fundamental and not hard to remember. Some general pointers from Judge Oliver included: always be prepared when you come to federal court; never assume a case management conference is just for scheduling purposes; make sure you understand your case and that your client is there and prepared to discuss the facts of the case; view every conference before the court as an opportunity to demonstrate your knowledge and confidence in your case; educate your clients - they often don't appreciate the pluses and minuses of their case so they may not appreciate the benefits of a proposed settlement. Judge Oliver then discussed the importance of motion practice in federal court, noting that 95 percent of cases are settled or dismissed with very few cases actually going to trial. He advised attorneys to write clearly and accurately, to anticipate, and to set forth the legal authority and supportive facts. He cautioned attendees not to over cite a case, and when filing a motion for extension of time, to always confer with opposing counsel to obtain their agreement without assuming a second motion for extension of time will be granted. He concluded with the sage advice to always be respectful of the court, opposing counsel and witnesses in trial, and to always have sufficient witnesses available to complete a full day of testimony.

Magistrate Judge Nancy Vecchiarelli discussed the jurisdiction and role of the magistrate judge. She began by describing the rigorous manner in which magistrate judges are selected pursuant to procedures governed by the Judicial Conference of the United States. In a nutshell, a vacancy announcement for the position is advertised for 30 days, a merit selection committee is appointed by the district judges to review all applicants and make a recommendation to the Court of finalists to interview. The Court then interviews the finalists and, by majority vote, selects the magistrate judge. Magistrate judges serve eight-year terms and are presumptively reappointed to subsequent terms following public notice and an opportunity for comment. Judge Vecchiarelli proceeded to discuss the legislative history of the creation of the magistrate judge position, citing the Federal Magistrates Act of 1968, which built on and superseded the U.S. Commissioner system; and the jurisdictional amendments in 1976, which expanded the duties of the magistrate judges to assist district judges with case management, including evidentiary hearings; Judge Vecchiarelli also referenced the Federal Magistrate Judge Act of 1979, which authorized magistrate judges to try civil cases with the consent of the parties and expanded magistrate judges’ trial jurisdiction to all federal misdemeanors; and the Federal Courts Improvement Act of 2000, which eliminated the requirement of the defendant’s consent in petty offense cases and expanded the magistrate judge contempt authority. The judge explained how magistrate judges are randomly drawn and paired with a District Judge in both civil and criminal cases, but that only magistrate judges are assigned to misdemeanors. She explained that although magistrate judges cannot try a felony case, they can select the jury for that case. She also described the post indictment duties and responsibilities which magistrate judges may be assigned by the district judges, such as supervised release, probation violation, and suppression hearings. In all these matters the magistrate judge would prepare a report and recommendation and submit it to the district judge. In describing the jurisdiction of the magistrate judges on civil cases with the consent of the parties, the judge noted that consent forms are provided upon the filing of the complaint and if all parties agree, the magistrate judge will assume jurisdiction over the case and conduct all further proceedings through final judgment. The judge went on to discuss referrals to a magistrate judge by a district judge, noting that social security and habeas corpus cases are automatically referred to a magistrate judge upon filing, pursuant to local rule, and that more often than not, the parties end up consenting to the magistrate judge on Social Security matters.

John Bianco, IT Director, provided a demonstration of the functionality of the equipment in the electronic courtrooms, available to the bar in all district judge courtrooms throughout the district. Hands-on training for the bar is available on an as needed basis by contacting the Court.

I had the privilege of presenting on various matters, including the following. The Court’s case assignment system (local civil rules 3.4 and 3.8), the goals of which are to equalize distribution of cases among the judges within the division, minimize inconvenience to counsel and the parties, and avoid the potential of judge shopping or judge avoidance. I also provided an overview of the amenities available to practitioners in the Northern District of Ohio, which includes an attorney workroom on the seventh floor of the Carl B. Stokes U.S. Courthouse in Cleveland; satellite circuit court libraries in Cleveland and Toledo; and the availability of wireless access in all locations, including the courtrooms, attorney workrooms, and many public areas. I also took the opportunity to comment on the Court’s cell phone policy, which is posted on the Court’s website, and reminded attendees of the requirement that all cell phones must be turned off all in the courtroom and chambers, unless permission is granted by the presiding judge.

Martin Jester, the court’s architect, provided the participants with a whirlwind tour of the courthouse following their being sworn-in to practice before the Northern District of Ohio by me at the conclusion of the presentations.

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Members in the News

Anthony J. LaCerva (C) receives Distinguished Service Award
from Dean Douglas Ray (L) and Dean Heather Karns (R).

• Chapter President Carter E. Strang has been appointed by Shaker Heights Mayor Earl M. Leiken to the city’s Safety & Public Works Committee, which advises the city on new policy initiatives and monitors the annual action plans for the Fire, Police & Public Works Departments.

• Effective Jan. 1, 2010, Rocco I. Debitetto was elected to partnership in Hahn Loeser & Parks LLP. Rocco focuses his practice on creditors’ rights, business bankruptcy and business reorganization, and has served on the FBA Cleveland Chapter Board of Directors since 2006.

• Thomas W. Baker has been elected to partner at Tucker Ellis & West LLP. Baker has broad experience in complex commercial and product liability litigation. He represents product manufacturers and suppliers, and corporations involved in business disputes and Great Lakes shipping carriers in maritime litigation.

• Toledo Law hosted a holiday reception in Cleveland on December 17, 2009.Supreme Court of Ohio Justice Maureen O’Connor was the guest of honor, Dean Douglas Ray shared good news about the law school, and Anthony J. LaCerva ‘85, attorney with Collins & Scanlon L.L.P., was presented with a Distinguished Service Award in recognition of outstanding leadership and service to the law school.

• Jonathan Entin co-authored ”The Constitution Matters in Taxation“ (with Erik Jensen), in the January issue of the Cleveland Metropolitan Bar Journal.

• Chapter Treasurer Jason Hill has taken a new position as the Assistant Court Administrator for the Ohio Sixth District Court of Appeals in Toledo. Additionally, Jason was nominated and selected for the inaugural class of the Ohio State Bar Association Leadership Academy. The Leadership Academy is designed to identify future leaders in the legal community and provide them with support and training.

• Steven D. Strang is an associate at the Cleveland offices of Gallagher Sharp LLP. Steven is a 2009 cum laude graduate of Case Western Reserve College of Law, where he was Executive Notes Editor of the Health Matrix: Journal of Law-Medicine and a member of the Ault Mock Trial Team. He was a summer intern with the U.S. Attorney’s Office in Cleveland in 2008. Steven is a 3Rs volunteer at Cleveland’s John Marshall High School.

• FBA Member Reginald S. Jackson, Jr., principal of the firm of Connelly Jackson & Collier, LLP and former president of the Ohio State Bar Association, has been selected as the recipient of the Ohio State Bar Association’s highest honor, the Ohio Bar Medal. This award is presented annually to an individual who exemplifies unusually meritorious service to the legal profession, community, and to humanity. Jackson has also served as president of the Ohio State Bar Foundation, the Toledo Bar Association and as a member of the House of Delegates of the American Bar Association. The Ohio Medal will be presented during the OSBA Annual Luncheon on Thursday, May 6, 2010, in Dayton.

• Chief Judge James G. Carr is the recipient of the 2010 Distinguished Service Award presented the Annual Access to Justice Awards Dinner. The Access to Justice Awards Dinner recognizes extraordinary service in the public interest by attorneys and community leaders in northwest Ohio. During Judge Carr’s tenure as president of the Toledo Bar Association, he promoted the expansion of the Pro Bono program and his initiatives included the framework for an expanded Pro Bono Advisory Board with functioning sub-committees that could fundraise and promote public awareness of the Program. The Distinguished Service Award will be presented at the Access to Justice Awards Dinner on May 26th in Toledo.

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Join FBA's "Race for the Place Team"

Race for the Place

Sunday, June 6, 2010

Beachwood Mall

The FBA Northern District of Ohio Chapter is sponsoring a team of runners and walkers for the 2010 Race for the Place to benefit the Gathering Place. As many of you know, The Gathering Place is a cancer support center with locations in Beachwood and Westlake offering a wide variety of programs and services, all free of charge, addressing the social, emotional, physical and spiritual needs of persons with cancer and their families and friends. Some of our own FBA chapter members can attest to the incredible impact The Gathering Place has had in their lives and in our community. Please mark your calendars for June 6, 2010, and look for registration information via e-mail. If you would like more information about the Race or The Gathering Place, please e-mail Stephen Jett at sjett@taftlaw.com or Rebecca Bennett at rbennett@frantzward.com.

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"Bring a buddy" Membership Campaign

Our Chapter is delighted to announce the new “Bring A Buddy” Membership Campaign. In appreciation for every new member that you refer to our Chapter, you will receive a certificate for $25 off any Chapter CLE seminar registration fee. Help us grow by bringing along your friends and colleagues! All you need do is send a confirming e-mail to admin@fba-ndohio.org with the name of the new member who you have referred. For details, Click here for additional information about Membership.

Our membership, which includes federal judges and practitioners from the public and private sector, is currently over 465 strong and growing. The Chapter is one of the FBA’s largest, most vibrant and honored Chapters. The mission of the Chapter and FBA as a whole is to advance the science of jurisprudence and to promote the welfare, interests, education, and professional growth of the members of the federal legal profession—hence its moto: “Raising the Bar to New Heights.” You can help us achieve our mission.

As noted in the President’s Page, one of our Chapter’s greatest strengths is its close relationship with the federal judiciary. Many of the judges in the Northern District are members of the Chapter’s Board of Directors and active participants in the Chapter’s committees and other activities. The Chapter’s programs include CLEs on substantive litigation and practice areas (at a deep discount to Chapter members and members receive a free Ethics, Professionalism and Substance Abuse CLE), small group lunches with the federal judges, annual State-of-the-Court luncheons, new judge and retiring judge receptions, an annual summer associate reception and several programs designed exclusively for our members such as our free Members-Only Quarterly Networking Breakfasts and our annual Members-Only Reception (to be held this August at Cleveland’s Severance Hall).

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Write an Article!

Members of the Northern District of Ohio Chapter of the Federal Bar Association are invited to submit an article for an upcoming issue.

If you are interested in writing an article, please contact me at (216) 706-3874 or sjett@taftlaw.com.

Stephen H. Jett
Taft Stettinius & Hollister LLP
2008-09 Newsletter Editor

The views expressed herein do not necessarily represent those of the FBA. This newsletter is published with the understanding that the FBA-NDOC is not engaged in rendering legal or professional services. © FBA-NDOC. Send any and all corrections, articles or other contributions you may have to:

Stephen H. Jett
Taft Stettinius & Hollister LLP
200 Public Square, Suite 3500
Cleveland, Ohio 44114-2302
e-mail at sjett@taftlaw.com

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Welcome New Chapter Members

Michelle L. Conrad, Cuyahoga County Prosecutor’s Office
Timothy J. Fiorta, Jones Day
Lisa C. Ghannoum, Baker & Hostetler, LLP
Brian J. Halliday, Rosner & Associates Co., LPA
Laura A. Hauser, Thompson Hine LLP
Christa A. Heckman, Hanna Campbell & Powell, LLP
Thomas M. Horwitz, McIntyre Kahn & Kruse Co., LPA
Kimberly M. Lord, Attorney at Law
Karen N. Neilsen, National Labor Relations Board
Jared C. Roberts, Wayne County Prosecutor’s Office
Katrina L. Serrat, Jones Day
Christopher M. Sullivan, Attorney at Law
Victoria L. Vance, Tucker Ellis & West LLP
Nicholas D. Wittenberg
Tiffany R. Wright, Attorney at Law

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Officers, Directors and Representatives 2009-2010
Officers	President Carter Strang President-Elect Kip T. Bollin Vice President Diana Thimmig	Secretary Virginia Davidson Treasurer Jason A. Hill Immediate Past President & Delegate to National Council Ellen Toth
Directors	Hon. Randolph Baxter Rebecca Bennett Kenneth A. Bravo Aaron Bulloff Annette G. Butler J. Philip Calabrese Tim L. Collins Joseph T. Dattilo Virginia Davidson Rocco I. Debitetto Keven Eiber Catherine Garcia-Feehan Lisa Forbes John Gerak Edward A. Icove Stephen H. Jett Arthur M. Kaufman Kenneth Kowalski Anthony LaCerva	Charles A. LoPresti George L. McGaughey Michael Mumford Steven Paffilas Hon. Benita Pearson Hon. Dan A. Polster Meggan A. Rawlin James W. Satola Harris A. Senturia Geri M. Smith Dennis G. Terez Anthony J. Vegh Vicki Ward Sanford Watson Hon. Greg White Bruce Wilson Dennis Zapka
Representatives	Public Representative Barbara Paynter Akron University College of Law Dean Martin Belsky Timothy Gallagher Jackie Walsh Case Western Reserve University College of Law Associate Dean Jonathan Entin Rebecca Gibson-Wilkins Zach Smigel	Cleveland-Marshall College of Law Professor Ken Kowalski Drew Odum Mona Ma University of Toledo College of Law Dean Douglas Ray Assistant Dean Heather Karns Brooke Stokke Mark Abramowitz

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Upcoming Events

April 29, 2010 - Members Only Breakfast at Tucker Ellis & West LLP

May 4, 2010 - 70th Judicial Conference of the Sixth Circuit, Columbus

May 7, 2010 - Professionalism Law Office Management and Client Funds Management, Cleveland

May 12, 2010 - Board Meeting at Calfee Halter & Griswold

May 25, 2010 - Reception for Judges Carr, Gallas and Perelman at Carl Stokes Court House

June 9, 2010 - Board Meeting at Brouse McDowell (Akron Office)

June 18, 2010 - Iron Lawyer Competition

June 21, 2010 - Judge Cook Brown Bag Lunch in Akron

July 2010 - Standing Up, A Practical Guide to On-Your-Feet Experiences in Court

July 14, 2010 - Board Retreat at Squire Sanders & Dempsey

July 15, 2010 - Judge Limbert Brown Bag Lunch in Youngstown

July 21, 2010 - Summer Associate Reception

August 5, 2010 - Members-Only Reception at Severance Hall from 6:00 p.m. to 9:00 p.m.

August 11, 2010 - Board Meeting at Hahn Loeser & Parks

August 20, 2010 - Criminal Law CLE

September 8, 2010 - Board Meeting at McDonald Hopkins

September 22 - 25, 2010 - FBA National Convention in New Orleans

November 12, 2010 - Advanced Federal Practice CLE

November 19, 2010 - What You Need to Know About . . .

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April 2010 Issue

Information

President’s Podium

The Gavel: Caseloads

2002

1173

48

535

2003

312

42

421

2004

797

53

452

2005

663

55

467

2006

366

48

402

2007

379

46

377

2008

339

42

378

2009

437

43

395

MDL

2002

2003

2004

2005

2006

2007

2008

2009

2005-2009

Total

Aldrich (MDL2066) Oral Sodium Phosphate

0

0

0

0

0

0

0

113

113

113

Carr (MDL1953) Heparin

0

0

0

0

0

0

65

245

310

310

Dowd (MDL1593) Capital Consultants

0

0

9

1

0

0

0

0

1

10