NEWS
  1. BLF JOINS CLASS ACTION AGAINST CHAMPION PET FOODS
    July, 2018
    On April 9, 2018, Brown Law Firm joined as counsel a class action lawsuit filed by Strauss Troy and Barnow and Associates in US District Court for the Southern District of Ohio on behalf of plaintiff Lisa Hodge against Champion Petfoods USA Inc. for violating the Ohio Deceptive Trade Practices Act and Breach of Express and Implied Warranties. The lawsuit is among the earliest of many filed against Champion Petfoods USA nationwide alleging that the company engaged in deceptive trade practices by making false representations about the quality of its premium priced dog food, such as the claim that Orijen and Arcana dog food brands contain “FRESH, RAW or DEHYDRATED ingredients, from minimally processed poultry, fish and eggs that are deemed fit for human consumption prior to inclusion in our foods.” However, as alleged in lawsuits filed in Ohio, Wisconsin, Tennessee, Kentucky, and elsewhere, Champion-brand dog food products are not composed of high quality ingredients fit for human consumption, but are actually contaminated with high levels of harmful and toxic heavy metals, including arsenic, lead, cadmium, and mercury. Much of the data supporting recent class action allegations against Champion Petfoods is drawn from specific research published by Champion that is known as the “white paper.” A white paper is a marketing tool used to promote a product or service and is often founded on some empirical data. The Champion white paper is a four page pamphlet that sets forth the purported findings of some third-party studies conducted on the heavy metals levels in Orijen and Arcana dog food brands. It discloses high concentrations of arsenic, lead, cadmium, and mercury in the company’s dog foods and concludes that the concentrations of these heavy metals in Champion dog food products are far below dangerous or inappropriate levels. Like class actions filed elsewhere, the current litigation in Ohio contends that the Champion white paper data is accurate but its conclusion is not. Recently, in Loeb v. Champion Petfoods USA Inc. et al., another class action filed against Champion Petfoods in the United States District Court for the Eastern District of Wisconsin, Champion sought to have the complaint dismissed and argued that the plaintiff could not simultaneously rely on the white paper’s data and disagree with its conclusion. The court disagreed: “Defendants again rely on the mistaken assumption that the White Paper – which they authored – conclusively establishes the safety and quality of the products.” The court denied Champion’s motion to dismiss. The Court in Ohio has taken judicial notice of this ruling in Wisconsin. To see a copy of the complaint filed in Ohio, click here.
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  2. BLF FILES FIRST LAWSUIT IN OHIO AGAINST APPLE FOR SLOWING DOWN IPHONES
    January, 2018
    On December 20, 2017, Apple Inc. publicly admitted that recent updates to the iOS 10 and iOS 11 Updates deliberately slowed down older iPhones, including the iPhone 6 and iPhone 7. These updates damaged the functionality of older phones and even rendered them inoperable. On December 28, 2017, after much public criticism, Apple issued an apology for "how we have communicated." While Apple now claims that the deliberate slow-down in functionality was designed to offset shut-down issues with older batteries, customers have instead experienced reduced battery life since the iOS 10 and iOS 11 updates. Apple Inc. did not warn iPhone 6 and iPhone 7 owners of the potential consequences of downloading the iOS 10 and iOS 11 updates until months after the updates were released to the public. Instead, Apple Inc. deceptively touted the necessity of the updates and the purported improvements that would result from the updates. For example, in advertising for the security updates on its website, Apple Inc. emphasized the necessity of the updates by stating: "Keeping your software up to date is one of the most important things you can do to maintain your Apple product's security." Nowhere did Apple Inc. ever disclose to its customers that the updates would negatively affect the iPhones and their functionality. On January 4, 2018, Brown Law Firm filed the first complaint in Ohio against Apple Inc. for violating the Ohio Deceptive Trade Practices Act §4165.01 et seq and committing Common Law Fraud.
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  3. OHIO DEPARTMENT OF EDUCATION AWARDS "EXEMPLARY" RATING TO BLF CLIENT
    January, 2018
    Brown Law Firm is proud to announce that a sponsor it represents was rated “Exemplary” for its Compliance in the recent Ohio Department of Education ratings. As you know, ODE rates sponsors on three equal components: • Academic Performance (4 points) • Compliance with Laws and Rules (4 points) • Quality Practices (4 points) For the most part, academic performance is primarily within the bailiwick of the school – not the sponsor. For the Compliance component, sponsors are evaluated on compliance with all applicable laws and rules, including their obligation to monitor schools’ compliance. There are 19 items identified for sponsor level certification, using 9 key documents, and 251 items identified for school level certification, using 76 documents per school. A rating of exemplary requires that the number of items not in compliance is less than 3. The Quality Practices Component is based on adherence to quality practices developed by the National Association of Charter School Authorizers and other national organizations. It includes the following areas: • Commitment and Capacity • Application Process and Decision-making • Oversight and Evaluation • Termination and Renewal Decision-making • Technical Assistance and Special Requirements in Rule and Law Among the documents evaluated for both Compliance and Quality Practices are the Sponsorship Agreement and the Site Visit Form. These are evaluated for both meeting legal and regulatory requirements and promoting “best practices.” Among ODE’s recommended “best practices”: • Recommendation for Governing Authority to appoint Finance Committee. • School Performance measurements using cohorts and subgroups. The 10 subgroups evaluated in Ohio are: all students; American Indian/Alaska Native Students; Asian/Pacific Island Students; Black; non-Hispanic Students; Hispanic Students; Economically Disadvantaged Students; Students with Disabilities; and Students with Limited English Proficiency. • Requiring high-stakes review of Schools as part of Sponsorship Contract renewal process. Including these “best practices” in your documentation hold potential to add points to both your Compliance and Quality Practices scores. For further information, feel free to contact us.
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  4. DEFAULT JUDGMENT IS NOT NECESSARILY THE END OF THE STORY
    December, 2017
    A lawsuit is filed against a business owner. The business owner attempts to send a copy of the complaint to his attorney. Due to an inadvertent miscommunication, the complaint never reaches its intended destination and the business owner’s attorney is never notified of the lawsuit. Consequently, a default judgment is entered against the business owner and he or she is ordered to pay tens of thousands of dollars, despite the fact that the business owner has meritorious defenses. End of the story? Not necessarily. Recently, we had a case involving this situation. We successfully challenged the default judgment and obtained a favorable outcome for our client. The Ohio Rules of Civil Procedure allow a party to file a motion for relief from default judgment. If successful, the default judgment is overturned and the party against whom judgment was taken is given the opportunity to dispute the allegations and file any counter-claims that may apply. To prevail on a motion for relief, you must demonstrate that (a) you have a meritorious defense or claim to present if relief is granted; (b) you are entitled to relief for excusable neglect – or another ground set forth in the Rules; and (c) the motion is made within a reasonable time. Ohio courts are generally inclined to grant a motion for relief from judgment if you are able to demonstrate that the failure to answer a complaint was because the complaint never reached the appropriate person. Ohio courts have found excusable neglect when a party or its attorney demonstrates that the failure to respond to a filed complaint is due to a lack of notification of the proper person and that such occurrences are rare, isolated events. The most important thing to do if an adverse default judgment has been taken against you is to consult with an attorney as soon as possible. The longer a default judgment is left unopposed, the more difficult it becomes to set it aside.
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  1. WATCH YOUR LANGUAGE WHEN SIGNING A PERSONAL GUARANTEE FOR AN LLC
    December, 2017
    Lenders, landlords and other creditors often require a personal guaranty from LLC members. A personal guarantee acts to bind LLC members to personal liability for the obligations of the LLC. The language in the guaranty matters! . WATCH HOW YOU SIGN Signing your name followed by your business title (“president” or “manager”) does not negate your personal liability. You may be able to negate personal liability by using “by,” “per,” or “on behalf of” with the name of the LLC. READ CAREFULLY – YOUR PERSONAL GUARANTY MAY LIVE BEYOND A SINGLE TRANSACTION Phrases such as “now or at any time hereafter” or “all obligations incurred” or “now existing or hereafter contracted” may create a continuous personal guaranty of future transactions by the LLC with the creditor. CREDITORS MAY BE WILLING TO NEGOTIATE THE TERMS OF THE PERSONAL GUARANTY Consider proposing elimination of the guaranty when certain conditions are met. For example, ask for a dollar amount cap on the guaranty or set a period of time for the guaranty or limit the guaranty to certain assets. The moral: WATCH YOUR LANGUAGE!
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  2. IS YOUR DISCIPLINARY POLICY COMPLIANT WITH OHIO LAW?
    November, 2017
    House Bill 410 became law in April 2017 – with many of its provisions effective at the beginning of the 2017 – 2018 school year. All community schools (and school districts) must adopt discipline policies to comply. Schools MUST change their zero tolerance policies, removing “excessive absences” as a cause for disciplinary action. Schools CANNOT expel or suspend a student only for being absent. School policy on truancy must include these intervention strategies: > Truancy intervention plan for student. > Counseling. > Request or require parent to attend parental involvement programs. > Request or require parent to attend truancy prevention mediation program. Schools must recognize the difference between excessive absenteeism and habitual truancy. Tracking and reporting attendance: > Schools must report and track attendance based on hours, not days. This means that schools must track time due to tardies and early dismissals and report to nearest hour. This time must be counted toward absences. It is no longer acceptable to track and report attendance in half-day or full-day increments. Schools have additional EMIS reporting requirements: > Date school notifies parent of a student’s excessive absences – must be reported on EMIS. > Date student absent without legitimate excuse 30 or more consecutive hours, 42 or more hours in one month, or 72 or more hours in one school year – must be reported on EMIS. > Date student, who is adjudged an unruly child for habitual truancy, violates a court order regarding that adjudication – must be reported on EMIS. > Date absence intervention plan has been implemented for a student – must be reported on EMIS. School must establish Absence Intervention Team, which must include: (1) school representative; (2) school representative who knows student; and (3) parent. Others may be included as well. School must make three “good faith efforts” to secure parent participation on student’s Absence Intervention Team. Parent may appoint designee to participate or participate via phone. School should define “good faith efforts” in its policy. Timeline for Habitual Truancy: > Within 7 days of triggering absence the school will do the following: > Notify parent in writing of excessive absenteeism. > Select Absence Intervention Team members. > Make three good faith efforts to secure parent participation. Within 10 days of triggering absence, the school will assign student to Team. Within 14 school days after assignment, the school will develop student’s Absence Intervention Plan. Within 7 days after Plan is developed, school will provide parent in writing. The student has 60 days to make progress under the Plan. Filing a Complaint with Juvenile Court for Habitual Truant: > On the 61st day after implementation of Absence Intervention Plan, school attendance officer must file a complaint against student in Juvenile Court if the following apply: > Student was absent without legitimate excuse for at least 30 consecutive hours, at least 42 hours in one school month, or at least 72 hours in a school year; > School has made meaningful attempts to re-engage the student through an Absence Intervention Plan and other intervention strategies and there was no significant progress. Timeline for Excessive Absenteeism (with excuses): > Notify parent within 7 days of the triggering absence. > Follow truancy plan outlined in Absence Intervention Policy. > Student and family may be referred to community resources. There is NO complaint filed in Juvenile Court.
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  3. PROTECT YOUR RIGHTS IF ODJFS ACTS TO REVOKE YOUR LICENSE
    October, 2017
    The Ohio Department of Job and Family Services (“ODJFS”) oversees issuing and revoking Type A and B licenses for childcare. Professional childcare providers in Ohio rely on their licenses because they allow reimbursement by the government for providing childcare. When ODJFS decides to revoke a childcare provider’s license, it usually means the end of that person’s business and livelihood. Unfortunately, childcare providers are sometimes swiftly shepherded through the ODJFS administrative process without being fully aware of their legal rights and options. Many, for example, are unaware that their Type A or B license is a valid property interest that may not be taken away without due process of law. The Due Process Clause of the Fourteenth Amendment to the United States Constitution provides that certain substantive rights - life, liberty, and property - may not be deprived except through constitutionally adequate procedures that safeguard fundamental rights of the individual. The “due course of law” provision in Section 16, Article I, of the Ohio Constitution is the equivalent under Ohio law. It is a well-settled point of law that a Type A and B childcare license is a property interest that may not be taken away without due process of law. Due process rights guaranteed by the United States and Ohio Constitutions apply in ODJFS administrative proceedings. In an administrative hearing, you have a fundamental right to a notice and a hearing, i.e., an opportunity to be heard. Regarding notice, the agency must properly inform you of your right to a hearing and include: the charges or other reasons for the proposed action; the law or rule directly involved; and as a statement informing you that you are entitled to a hearing if requested within thirty days of the mailing the notice. If you are the subject of a Type A or Type B revocation hearing, it is crucial to confer with an attorney as early as possible to ensure that your legal rights are protected. This could make the difference between losing your license or retaining it.
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  4. END OF AN ERROR: ODJFS ANNOUNCES NEW PAYMENT SYSTEM
    January 2018
    For years, childcare providers licensed by the Ohio Department of Job & Family Services (ODJFS) have had to deal with an antiquated and cumbersome automated payment system known as Ohio Electronic Child Care (ECC) to track attendance and calculate payments for publicly funded childcare services. Among the worst aspects of the ECC payment system were the swipe cards, which had to be swiped into a point-of-service device inside the home or childcare center by each parent or caretaker every single time that a child checked in and out. This necessitated that the parent or caretaker be present for every pick-up or drop off in order to properly record the child’s attendance. Equally problematic is the ODJFS-endorsed practice of “back-swiping” whereby parents or caretakers may retroactively enter their child’s attendance into the point-of-service device. Each date and hour must be inputted correctly and any error is liable to have severe consequences for providers, including non-payment for services rendered, revocation actions and even felony charges. Fortunately, ODJFS recently announced that it will do away with the unwieldy ECC payment system and replace it with a new system called the Child Care Time, Attendance and Payment (TAP) System, which is said to be more efficient, accurate, and user-friendly than ECC. The TAP system reportedly does away with the use of swipe-cards and features a mobile tablet that will allow parents to enter child attendance on the mobile tablet instead of a stationary point-of-service device. As ODJFS rolls out the new system over the coming months, licensed providers are encouraged to monitor the new system for possible problems and learn all aspects of its functionality. Remember: if something goes wrong and raises ambiguity about the hours of childcare services provided, ODJFS is likely to resolve the matter in manner detrimental to the provider.
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