A Judicial Valentine

By J.F. McKenna

President Donald Trump got a jump on Cupid this year, handing America a Valentine in the person of a federal judge with, as the Associated Press notes, “a writer’s flair and polished legal pedigree.” The President’s intention is to send him to the Supreme Court to succeed Justice Antonin Scalia, who died February 13, 2016.

Like Justice Scalia, Judge Neil Gorsuch is not only a writer with flair and an enviable legal background but a jurist for whom the terms “textualist” and “originalist” are no strangers. Having served on the 10thCircuit Court of Appeals since 2006, Judge Gorsuch called his nomination “a most solemn assignment.”

“It is the rule of judges to apply, not alter, the work of the people’s representatives,” the judge said at President Trump’s announcement Tuesday. “A judge who likes every outcome he reaches is very likely a bad judge.”

All in all, quite a judicial Valentine, don’t you think?

Of course, given the sore-loser approach of Senate Democrats, this Valentine in 2017 could translate into a pre-Thanksgiving pink slip in 2018 for Sherrod Brown. The senior Ohio senator’s vote on the Gorsuch confirmation might be a nail in Brown’s political coffin, especially to voters who passed on the donkey for the elephant in 2016.

As soon as the Gorsuch pick was known, Brown announced his opposition. He declared the nominee to be “far outside of the judicial mainstream,” with rulings that deem corporations are people, are hostile toward anti-discrimination and criminal justice protections, and oppose women’s rights to basic healthcare at places like Planned Parenthood. “The people of Ohio deserve Supreme Court justices who will defend the rights of working families over Wall Street and corporate special interests – and Judge Gorsuch’s record doesn’t pass that test,” said a statement from Brown.

Memo to Senator Brown: It’s not too late to change your mind and vote in favor of the 49-year-old from Denver.

As Senator Ted Cruz of Texas said, “His academic record, his background are extraordinary,” Cruz said. “He was a law clerk to Byron White, who is John F. Kennedy’s only Supreme Court nomination – he was a Democrat himself, Byron White – and Judge Gorsuch’s record is such that he has demonstrated the intelligence, the humility, the faithfulness to law that I think Republicans are going to vote for, but I also hope and believe a number of Democrats will as well.”

More important, Senator Cruz vowed that Senate Democrats would not be able to derail Gorsuch’s nomination, telling Fox News that “one way or another, I believe the Senate will confirm Judge Gorsuch to the Supreme Court.”

To non-lawyers like me, Gorsuch is right in the mold of Antonin Scalia. The first Italian-American to sit on the Supreme Court, Antonin Gregory Scalia embraced an originalist, or textualist, approach to his decision-making.

“The Constitution,” Scalia declared, “is not an organism. It means today what it meant when it was adopted.”  See https://clevelandbusinessreview.org/2016/02/14/a-man-of-words-a-man-of-law/ .

In time Justice Gorsuch will be a “lion of the law,” just as Gorsuch called Scalia.

CBR contributor J.F. McKenna, a longtime West Park resident, is a business journalist, former magazine editor, and marketing-communications consultant. McKenna and his wife, Carol, now live in Steeler Country with their Papillions, Lord Max and Prince Teddy. Reach him at jfmckwriter23@yahoo.com .



Trafiic Cameras a Scam?

Battleground Ohio: Legislation to outlaw trafffic cameras after a judge calls them a scam.http://hotair.com/archives/2013/03/11/ohio-considers-bill-to-ban-traffic-cameras-after-judge-calls-them-a-scam/

We Have to Stop Them!

Obtaining Injunctions in Business Litigation

By Tim Warner

In many business disputes, it is simply not enough for a company to file a Complaint and await a trial, a year or more later, in the hope of obtaining relief. 

When faced with immediate, irreparable harm, a party’s only remedy may be to seek an injunction from the court immediately upon the filing of a Complaint.  The party seeking an injunction can request both a Temporary Restraining Order (TRO) and a Preliminary Injunction.  These instruments are designed to stop the defendant from continuing its improper activities, to preserve the status quo and to prevent further damage while litigation is pending.

A request for a TRO and a Preliminary Injunction is governed by Ohio Rule of Civil Procedure 65.  This rule relates to the Federal Rule of Civil Procedure and requires a similar analysis.  According to the Ohio rule, a party may request a TRO without having notified the other party or its counsel if it clearly appears that immediate and irreparable injury, loss or damage will result to the applicant before the defending party or his attorney can be heard in opposition.  This is a high standard and, in practice, some courts will not grant a TRO without notification to the other party and an opportunity for them to be heard.

If a TRO is granted, with or without notice to the defending party, the TRO will only last for 14 days.  It can be extended for an additional 14 days for good cause shown, and can be extended for a longer period of time only if all parties consent to the extension.  Here again, some courts are loathe to continue a TRO beyond the initial 14 days unless all parties agree.

Regardless of the outcome of the request for a TRO, an aggrieved party must also request a Preliminary Injunction to gain relief beyond 14 to 28 days.  Unlike a TRO, a request for a Preliminary Injunction can only be granted after reasonable notice to the adverse party.  Upon receiving a request for a Preliminary Injunction, the court will schedule a hearing to review the request.  This hearing is typically akin to a trial with witness testimony and experts if needed.  The Civil Rule allows the court to consolidate the hearing with a trial on the merits if the court so wishes.

Importantly, no TRO or Preliminary Injunction will operate until the party obtaining the relief gives a bond executed by sufficient surety in an amount fixed by the court.  In lieu of a bond, a party may deposit money or an equivalent.  Courts have upheld contracts indicating that injunctive relief can be had absent such a bond, but without such a contractual clause a bond or equivalent is necessary.

In determining whether injunctive relief should be issued under Civil Rule 65, Ohio courts consider the following criteria:

  • Whether there is substantial likelihood that a party will prevail    on the merits
  • Whether a party will suffer irreparable injury if the injunction is not granted
  • Whether third parties will be unjustifiably harmed if the injunction is granted
  • Whether the public interest will be served by the injunction

 The court will consider each of the issues individually.

The first criterion – likelihood of success on the merits – requires a determination of whether a party can succeed in proving at least one of the claims set forth in its Complaint.  For instance, if a party alleges breach of contract, the court will analyze whether the party can fulfill the elements of a breach of contract claim:

  1. A contract existed
  2. The complaining party fulfilled its obligations
  3. Breach by the opposing party
  4. Resulting damages

At this stage a company does not need to prove by a preponderance of evidence that it will prevail, but it must satisfy the court that it has likelihood of success on the merits.

While all four of the criteria to be considered by the court are important, the need to prove irreparable injury is the most closely scrutinized element.  A company must show that monetary damages alone will not fully compensate it for its loss.  If the court determines that monetary damages constitute adequate compensation, the request for injunctive relief will be denied.

The issue of unjustifiable harm to third parties frequently centers upon the effect of granting an injunction on free and fair competition.  Illegal competition, though, is not protected.  If widespread, repeated impropriety is found, the chances for an injunction improve.

When considering the final criterion – the interest of the general public – a company must convince the court that an injunction should be granted to deter future unlawful conduct and preserve its legitimate interests.  The public is always interested in seeing blatant wrongdoers enjoined from continuing improper activities.

Asking a court for injunctive relief can be arduous, time consuming and expensive.  It should not be considered lightly.  In those instances where a company is truly faced with a continuing wrong which must be immediately stopped, the only remedy is to petition the court for injunctive relief.  At the very least, the complaining party will focus the court’s attention upon its urgent need for relief.

Tim Warner is a partner with Cavitch Familo & Durkin, and serves as a trusted advisor and legal resource to corporate entities and individuals.  He is a member of the Board of Directors for The Gathering Place and is also a member of the Community Advisory Committee of WVIZ/ideastream.  He can be reached at twarner@cavitch.com

Don’t Lose Your Right to Arbitrate a Dispute

By Tim Warner

Rightly or wrongly, arbitration has been touted as a cure-all for the business community over the years.  As part of the arbitration push, businesses have been urged to add clauses to contracts mandating the arbitration of all or specific disputes.  Having taken the trouble to add them, it is troubling to see those provisions sometimes ignored by companies either overly eager to have a dispute litigated before a court or anxious to respond to a complaint that had been filed.

By inadequately considering options before racing to the courthouse or responding to a filed complaint, many businesses inadvertently waive the arbitration rights they worked hard to have added to their contracts.

It is the intent of this article to help educate businesses about this issue and assist in the preservation of arbitration clauses.

While there are many cases that demonstrate different scenarios by which a company may lose its right to arbitrate, they can be summarized by observing that such a situation will occur when an organization acts in a way contrary to its contractual right to arbitrate.  When a party files a complaint with a court, rather than with an arbitrator or an arbitration panel, that act will typically be deemed contrary to an arbitration clause, and the right to arbitration will be waived.  As alluded to earlier, this can happen when a representative of a company – perhaps a hasty attorney – races to a courthouse without having fully read and considered the contracts involved and any remedies available under the terms of those contracts.

Complete consideration of all contractual provisions should be considered prior to seeking the jurisdiction of a court of law.

As can be imagined, it is common for a business defending a complaint filed against it to inadvertently waive an arbitration clause.  In responding to a complaint, a company should immediately move to stay court proceedings in light of an applicable arbitration clause or, at the very least, reference the need for arbitration somewhere in the response to the complaint.  The failure to at least mention the need for arbitration will typically be deemed by a court as a waiver of the right to arbitrate.

Even if the right to arbitrate is stated in an answer to a complaint, a lengthy delay in the request to the court to arbitrate, demonstrated by an extensive involvement in the litigation process, will also typically be deemed a waiver of the right to arbitrate.  There isn’t an actual pivot point in any litigation for which an application to preserve a right to arbitrate can be determined, so a court is usually left to opine upon the circumstances and actions of the defending party.

When that defending party invokes the jurisdiction of the court by filing a counterclaim or a third-party complaint, the right to arbitration is typically waived.  A court will not usually allow the defending party to state in an untimely manner that it is seeking arbitration while aggressively responding with counterclaims or third-party complaints.  Effectively, a company will not be allowed to forum shop by gauging its position in the litigation prior to moving to mandate arbitration.

As part of its inquiry, a court may attempt to determine whether the company that is not requesting arbitration has been prejudiced by the requesting party’s inconsistent acts.

Tim Warner is a partner with Cavitch Familo & Durkin, and serves as a trusted advisor and legal resource to corporate entities and individuals.  He is a member of the Board of Directors for The Gathering Place and is also a member of the Community Advisory Committee of WVIZ/ideastream.  He can be reached at twarner@cavitch.com


Of Bailouts and Bombast

By Doug Magill

Last week the Plain Dealer printed a front-page article that blithely and blindly repeated the administration’s talking points about the bailouts of General Motors and Chrysler.  Not so coincidentally, President Obama two days later wandered by the Jeep plant in Toledo and bragged about the bailout and how he more or less singlehandedly rescued the automobile industry.

As it is with most things Obamaian, there is always more to the story, and less that meets the eye.

First, a caveat.  There is no earthly way to truly evaluate whether the bailout of those two American icons was better than the alternatives.  There are too many variables, and a cascading array of multiple decisions that cannot be predicted.

As to the facts of the speech, a number of analysts have typed the literary equivalent of groans and guffaws at the President’s continuing distortion and disguising of the truth.

The president’s claim that Chrysler has repaid everything is problematic, as he didn’t cite in his comments money that had been lent to Chrysler under the previous administration.  Contrary to his claims of breaking even “and more”, the government will, in fact, lose money on the Chrysler bailout.

Continuing in a similar vein, Obama claimed that GM would be rehiring everyone that had been laid off during the recession.

Well, not exactly.

He was only referring to those workers that had been let go during his time in office, and excluded a much larger number that had been let go at the beginning of the recession.  And, most of the workers let go in 2008 were only on temporary furlough anyway.

As we all know, Obama tends to reward friends, and the unionized employees of the auto companies are highly visible and enmeshed with the Democrat Party.  So, his claims that Republicans were going to let the companies fail and all of the facilities and jobs would therefore disappear is not only untruthful, but also economic nonsense.

Again, no one knows what would have happened, but all of the assets (plants, equipment, employees, brands) have value and would have been acquired and put to use by someone.  And perhaps, at a cost level that would have made those companies truly competitive.

Even though the government is on the hook for the pension plans of both companies, the story isn’t ended relative to the uncompetitive cost basis that still exists within those organizations.

The damage that was also done to the sanctity of contracts and bankruptcy laws has not been measured yet.  By abrogating the rights of senior debt holders and placing unions ahead of lawful claimants to the assets of those companies incalculable damage has been done to the rule of law, and to the rights of owners.

This story will get uglier.

Despite all of the Plain Dealer’s obsequiousness, it is still hard to fathom why GM’s board and CEO were all placed in their positions by the administration: none of them had any experience in the car industry.  Running a car company requires long-term planning and an understanding of the industry that is lacking.

As a result, the Chevy Volt looks like a good idea, because the boss says so.

Forget those guys that truly know the business, such as Johan de Nysschen, the president of Audi of America, who said “there are not enough idiots who will buy it.”  May sales for the Volt were 481, and for the Leaf were 1142.  To reach the President’s goal of a million vehicles on the road we need to plan out decades, not 2015, which is what he said he wanted.

But, as is his way, the President , while crowing about saving jobs at GM and Chrysler, didn’t mention how he was devastating employment in other industries.

Just ask the guys out of work in the Gulf of Mexico because the administration has been so slow to issue drilling permits.

On another front the EPA is now producing regulations that, according to an analysis from National Economic Research Associates, will costs hundreds of thousands of jobs in the coal industry.  As a result, American Electric Power has announced it will close down five coal-fired power plants while still spending billions to comply with those regulations.

By definition, the cost of electricity will have to rise, costing jobs in other industries.

We also know that the lack of aggressiveness in increasing petroleum production has allowed the cost of gasoline to remain high, costing more jobs.  Expensive gasoline will also adversely affect sales of the vehicles from the company the President claims to have saved.

The administration is also hostile to additional development of natural gas, which will affect employment as well.

And the effects of government hostility to American enterprise are felt in indirect ways as well.  Claiming that his bailout of Chrysler benefited local businesses in Toledo, the President mentioned New Chet’s Restaurant, a favorite of Jeep workers for over 90 years.  The owners announced less than a week after his visit that they were closing the restaurant due to the effects of the overall economy, as well as a recently-enacted smoking ban.

So, while President Obama touts his success in saving his friends in one area, he is ruthlessly destroying others in areas that don’t fit his vision.  Remember, just days before the announcement that the Twinsburg Stamping Plant was to be closed, the President told reporters that the impending bankruptcy of Chrysler “will not disrupt the lives of the people who work at Chrysler or live in communities that depend on it.”

Sometimes, even his friends aren’t safe.


Doug Magill worked at Jeep Corporation in Toledo and is a consultant, freelance writer, and voice-over talent.  He can be reached at doug@magillmedia.net

Connecting Cleveland to Hollywood

By Doug Magill

Elizabeth Kelley knows how chance affects one’s life.  While deciding what to do with her newly-received law degree, a chance meeting with a judge initiated her career as a criminal defense attorney.  A fortuitous encounter with a cameraman led to her recognition as a telegenic legal expert and analyst.  Another chance meeting with a radio producer led her to her current avocation part-time role as host of Cleveland’s Celebrity Court Radio, broadcast from 2 to 3 p.m. Sundays on WHK, 1420 AM.

Perhaps that is why she speaks so passionately about her belief in second chances, both for criminal defendants and for the legal system that itself makes mistakes.  Her website prominently features a blog that discusses second chance issues in the legal system, and her radio show also has a segment on second chances.

A native of Spokane, Washington, she attended Mills College and received a Master’s in English at the University of Chicago before finding her way here at Case Western Reserve University’s Law School.   Some childhood encouragement via drama lessons helped her develop calmness the spotlight and a fierce resolve that evidences itself in the courtroom and on-air today.

As dedicated to service as she is to her career, Elizabeth serves on the board of the National Association of Criminal Defense Lawyers and is a Life Member of the Ohio Association of Criminal Defense Lawyers.  She has been to Liberia to train local attorneys on courtroom techniques and is admitted to practice before the United States Supreme Court.

Elizabeth is one of the leading attorneys that focus on representing intellectually-disabled and mentally ill patients.  Her dedication and success led her to become a national spokesperson and sought after legal analyst on numerous radio stations as well as national programs on CNN, HLN, Fox, MSNBC, and TruTV.

Recognizing the country’s fascination with Hollywood celebrities, she discerned a way to entertain people while educating them about our legal system through Celebrity Court Radio.  The weekly show is a breezy and informative look at the legal issues that some of our television and motion picture actors manage to find themselves entangled in.

The show covers the top five celebrity legal stories of the week, which may involve high profile stories about Charlie Sheen or Lindsay Lohan, but may also include stories about other celebrities such as former Illinois Gov. Rod Blagojevich.  Supplementing Elizabeth’s viewpoint are national commentators such as civil rights attorney Gloria Allred, Judge Alex of the eponymous television show and author Brad Meltzer among others.

The second chances segment discusses wrongly-convicted defendants as well as opportunities for the legal system to correct past mistakes.

Celebrity Court Radio is growing in popularity, providing an entertaining and informative interlude on a Sunday afternoon.  It also showcases a high profile and respected legal expert who brings national attention to the type of professional that our region is blessed with (although sometimes other show hosts will casually mention that she is from “somewhere in Ohio”).

Since the show’s producer is a New York-based media expert, don’t be surprised to hear about a move to syndicate Celebrity Court Radio.  Particularly since Talkers Magazine just released its list of the top 250 radio talk show hosts and Elizabeth made it for the first time.

Syndication would fit her plans nicely.  Elizabeth subscribes to the philosophy of another Cleveland transplant, the late Bob Feller.  “Every day is a new opportunity,” he said.  “That’s the way life is, with a new game every day.”

Even if the show doesn’t achieve immediate success, we know that Elizabeth Kelley will find a way to get a second chance to make it right.

You can contact Elizabeth at ZealousAdvocacy@aol.com, and her web site is www.elizabethkelleylaw.com


Doug Magill is a consultant, freelance writer and voice-over talent who can be reached at doug@magillmedia.net