KMK Legal Update Handouts Wednesday, December 3, 2014 One East Fourth Street | Suite 1400 | Cincinnati, OH 45202 513.579.6400 | kmklaw.com Table of Contents Beyond Civility Page 1. Attorney Professionalism Beyond Civility 1 Electronic Signatures Page 2. Electronic Signatures 12 10 Recent Decisions Every Attorney Should Know Page 3. Halliburton Co. v. Erica P. John Fund_ Inc._ 134 S. Ct. 2398 51 4. Food Lion, LLC v. Dean Foods Co. (In re Southeastern Milk Antitrust Liti... 76 5. Glazer v. Whirlpool Corp. (In re Whirlpool Corp. Front-Loading Washer Pr... 94 6. Whirlpool Corp. v. Glazer, 134 S. Ct. 1277 111 7. Good v. Am. Water Works Co., 2014 U.S. Dist. LEXIS 154788 112 8. Painter v. Atwood, 2014 U.S. Dist. LEXIS 153342 116 Commercial Real Estate Panel - Legal UPdates and Financing Trends Page 9. 26 CFR 145D-1 122 10. IRC Sec. 45D 144 11. OAC Ann. 12222-1-05 152 12. ORC Ann. 5725.33 165 13. ORC Ann. 5726.54 169 14. ORC Ann. 5729.16 171 15. ORC 5733.058 173 Ethics Panel - Supervision and Legal Outsourcing Page 16. Supervision & Legal Outsourcing 176 Providing Effective Leadership in our Supervisory Roles Page 17. Coaching Supervision - KMK - Dec. 2014 281 18. Average Leadership Is Ruining Business 300 19. Bad Good Great Managers 305 20. Building a High Trust Culture- Respect 308 Beyond Civility Page 1 of 309 Beyond Civility Communication for Effective Governance Political gridlock in Washington accomplished at least one useful thing. Local political leaders and public officials knew they could do better and decided to address the problem from the ground up by building relationships and improving communication—starting with their own! On the tenth anniversary of 9/11 a bi-partisan group of judges, elected officials, Democratic and Republican Party leaders, business people, academics and media representatives began a non-profit organization called Beyond Civility: Communication for Effective Governance (BC). Our goal was to reduce the polarizing demonization of ideological adversaries and the dysfunction it causes; to increase the ability of advocates on different sides of important issues to communicate to solve problems rather than endlessly arguing about them. The approaches we developed vary. Communication Workshops bring politically diverse groups of 12 to 20 people to three half-day sessions to identify specific barriers to problem solving dialogue and to learn and practice techniques for overcoming them. Side-by-Sides place two well known elected officials, a Democrat and a Republican, on stage to answer questions about the people and events from their early years that helped form their world views and thus their political positions today. Back-to-Backs have engaged high profile advocates known to hold opposite views on such critical and controversial issues as the death penalty, income disparity, taxes, voter ID laws, and the like in a kind of reverse public debate. All these programs are designed to build personal relationships and respect for different points of view and the people who hold them. They bring citizens together to witness partisan leaders demonstrate understanding and respect for people and ideas we frequently demonize and often don’t understand. Beyond Civility events offer unique opportunities for citizens to see the people behind the political personas and sound bites, to engage with leaders as normal, interesting human beings. Beyond Civility Page 2 of 309 Why Go “Beyond Civility”? Many of us observe the national political scene with dismay and yearn for greater civility. We’d like to keep those wolves, polarization and demonization, away from our door here in River City. But what do we mean by civility? When someone addresses us, ever so politely, by saying “with all due respect,” we hear the undertone and think that what they are really saying is “you don’t have a clue.” Which is precisely why our group selected the name “Beyond Civility,” with the emphasis on the word “Beyond”. Our mission is to find ways to diminish divisive communication in governance, and in the public arena, so that well reasoned problem-solving can take place, so that even when positions or beliefs are polarized, a useful conversation continues, rather than being shut down with combative language. Then reasonable, evidence-based, compromises can be explored. In the last couple of years, we’ve learned a lot in our Beyond Civility “movement”. First, that when you come to understand how your negotiating partner’s belief system was formed, what have come to be their “moral intuitions,” and know something of their life story, the influences of their formative years, of family, teachers, friends, and other leaders, it becomes much easier to talk meaningfully and problem solve together. This is true for our public servants, the engaged citizenry and even in our very personal relationships. And, we have learned that communication is a choice. The mindful selection of the words we speak matters. They drive another away and evoke an angry response, or encourage meaningful listening and a search for understanding and solutions. We do not fool ourselves into believing we can influence campaign rhetoric. But once the dust settles and our public servants take a seat at the governance table, how they choose to communicate with each other, in private and in public, and the words we choose as we communicate with our public servants, as well as with others who agree or disagree with our thinking, makes a difference. Beyond Civility Page 3 of 309 Side-by-Side It is easy to objectify and demonize people we don’t know personally. We know that with many friends and family members relationships foster empathy and compassion that can trump animosities that arise from differences in values and opinions. Unfortunately, it seems Americans have few personal relationships with people other than family who don’t share their politics or ideology. Side-by-Side events break down stereotypes and invite audiences to come to know local political figures as unique individuals. Typically, two politicians — a Democrat and a Republican – take turns answering questions designed to elicit stories about and reflections on their formative early life experiences. Audiences report overwhelming increases in respect for the politicians holding views least like their own and in confidence that they could have a constructive conversation with them. Similarly, Side-by-Side presenters themselves seem to find bonds of recognition and respect that can support trust and collaboration in the future. Beyond Civility Page 4 of 309 Back-to-Back Arguments are rarely productive when we feel we aren’t being heard or understood. We tend to keep repeating ourselves, usually at higher volumes! If you want to stop someone from shouting and improve the chances of their listening to you, first demonstrate that you understand their point. In Back-to-Backs, high profile advocates of opposing positions on important legal or public policy issues agree to articulate as convincingly as possible the other side’s views. They must keep at it until the person on the other side says “I couldn’t have said it better myself.” Back-to-Backs are challenging, as you can imagine, but they’re fun, engaging and informative. They also demonstrate a skill notably lacking in today’s polarized political climate: the ability to understand and show respect for someone else’s position even while believing and advocating to the contrary. Trying on the shoes of others, especially those with whom we most strongly disagree, can open minds and soften hearts. Doing this requires self-confidence, courage and determination. We are grateful to all of our participants for stepping forward to demonstrate this depolarizing exercise, and hope others – politicians and citizens alike – will follow their example and try it themselves. Beyond Civility Page 5 of 309 Communication Workshops One of Beyond Civility’s first initiatives to improve governance was to invite a bi- partisan group of approximately 20 local elected and civic leaders to explore together the neurological and social barriers to constructive dialogue between people who view each other as adversaries. The morning was structured much like a class, led by a communication professor, in which various communication techniques were explained and demonstrated. Several versions of workshops followed until the current, revised format was developed in 2013. Today, select bi-partisan groups of fifteen to twenty business, media and government leaders, with direct or indirect involvement in local politics, spend three half days together developing and practicing strategies for conducting difficult conversations successfully. Communication experts still facilitate the sessions and present the latest in brain research and communication theories, but participants are incorporated as experts themselves and participate in teaching as well as learning. Perhaps the core value of the meetings comes from sharing specific communication challenges and brainstorming solutions by the participants themselves and, of course, from the relationships formed in the process. Plans are underway to extend workshop opportunities to civic and governmental boards that sometimes face fractious internal deliberations and contentiously expressed public opinion. Beyond Civility Page 6 of 309 Events Back-to-Backs • September 16th, 2014 Income Disparity Back-to-Back: David Mann & George Vincent • February 11th, 2014 Death Penalty Back-to-Back: Joe Deters & David Singleton • November 21st, 2013 Voter Suppression v. Voter Fraud Back to Back: Tim Burke & Alex Triantifilou • May 2nd, 2013 State Legislation Back-to-Back: Lou Blessing & Denise Driehaus Side-by-Sides • November 11th, 2014 Side-by-Side: John Cranley & Steve Chabot • March 12th, 2014 Side-by-Side: Chris Monzel & Wendell Young • October 22nd, 2013 Side-by-Side: Greg Hartmann & Todd Portune • May 20th, 2013 Side-by-Side: Yvette Simpson & Amy Murray • March 12th, 2013 Side-by-Side: Former Cincinnati Mayors Ken Blackwell & Jerry Springer • January 10th, 2013 Side-by-Side: Councilman P.G.