KMK Legal Update Seminar

Wednesday, December 3, 2014

One East Fourth Street | Suite 1400 | Cincinnati, OH 45202 513.579.6400 | kmklaw.com

Table of Contents

Tab 1 Attorney Professionalism: Beyond Civility ° Bea Larsen, Esq., Senior Mediator, Center for the Resolution of Disputes ° Robert Rack, Esq., Mediator/Co-founder of Beyond Civility

Tab 2 Strategies for Dealing with Financially-Troubled Customers & Suppliers ° Robert G. Sanker, Business Representation & Transactions Partner, KMK Law

Tab 3 Electronic Signatures: The Law, Emerging Practice & Potential Pitfalls ° Robert C. Lesan, III, Business Representation & Transactions Partner, KMK Law

Tab 4 FLSA Avoidance & Litigation Strategies: In-house Counsel Panel Discussion ° Kasey L. Bond, Labor & Employment Partner, KMK Law ° Christopher Brown, Esq., Corporate Counsel, Total Quality Logistics, Inc. ° Ralph Lee, Vice President of Human Resources, Total Quality Logistics, Inc. ° Gregory M. Utter, Litigation Partner, KMK Law

Tab 5 10 Recent Litigation Decisions Every Attorney Should Know ° Joseph M. Callow, Jr., Litigation Partner & Practice Group Co-Leader, KMK Law

Tab 6 Commercial Real Estate Panel: Legal Update & Financing Trends ° Jody T. Klekamp, Real Estate Partner, KMK Law ° Kenneth P. Kreider, Real Estate Partner, KMK Law ° Geoffrey G. Leder, Real Estate Attorney, KMK Law ° Barrett P. Tullis, Real Estate Partner, KMK Law ° Daniel P. Utt, Real Estate Partner & Practice Group Leader, KMK Law

Tab 7 Ethics Panel: Supervision and Legal Outsourcing ° Mark J. Chumley, Labor & Employment Partner, KMK Law ° Danielle M. D’Addesa, Litigation Partner, KMK Law ° Emerson C. Moser, Vice President & Assistant General Counsel, General Cable Corporation ° Erica O’Brien, Esq., Senior Labor & Employment Practices Counsel, Cintas Corporation ° F. Mark Reuter, Business Representation & Transactions Partner, KMK Law

Page 2

Tab 8 Attorney Professionalism: Providing Effective Leadership in our Supervisory Roles ° Deborah Pearce, Communications Consultant, Pearce Communications Group, LLC

Tab 9 Speaker Contact Information

Additional Resources Available Online

Additional resources are available to event attendees on our event website: http://www.kmklaw.com/news-events-259.html

Nothing in this presentation is intended to be legal advice. Please consult with counsel of your choice with regards to any specific questions you may have.

© 2014 Keating Muething & Klekamp PLL. All Rights Reserved.

Page 3 KMK Legal Update Seminar

Wednesday, December 3, 2014

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Introduction

James C. (Jim) Kennedy Business Representation & Transactions Attorney KMK Law

Page 4 Attorney Professionalism: Beyond Civility

Bea Larsen, Esq. Senior Mediator Center for the Resolution of Disputes

Robert (Bob) Rack Mediator/Co-founder Beyond Civility

Page 5 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.

Page 6 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.

Page 7 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.

Page 8 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.

Page 9 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.

Page 10 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 11 th , 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. Sittenfeld & Local Tea Party Founder Mike Wilson • November 12th, 2012 Side-by-Side: Vice-Mayor Roxanne Qualls & State Senator Bill Seitz

Other Events

• Communication Workshop Fall 2014 • Community Dialogue: July 12th, 2014 • Communication Workshop Spring 2014 • January 21st, 2014 A Forum on Civility • Communication Workshop 2013 • Communication Workshop 2012

Page 11 Beyond Civility Steering Committee Conveners Beth Myers, Esq. Judge, Hamilton County Court of Common Pleas, past President of the Cincinnati Bar Association Timothy Black, Esq. United States District Judge, Southern District of Ohio, Western Division at Cincinnati Founders Bea Larsen, Esq . Senior Mediator, Center for the Resolution of Disputes Robert Rack, Esq. Retired Chief Circuit Mediator, United States Court of Appeals for the Sixth Circuit Members Gene Beaupre, Assistant Director, Philosophy, Politics and the Public Honors, Xavier University Lou Blessing, Esq. Former Speaker Pro tem, Ohio House Tim Burke, Esq. Chair, Hamilton County Democratic Party and President of the Democratic County Chairs of Ohio Denise Driehaus , Ohio State Representative Bill Fee , Retired Vice President & General Manager of WCPO-TV Pat Fischer, Esq. Judge, Ohio First District Court of Appeals; past President of the Ohio State Bar Association Kevin Flynn, Esq. Member, Cincinnati City Council Colin Groth, President, Charter Committee of Greater Cincinnati, Director of Strategic Assistance, Strive Together David Holthaus, Former Editorial Page Editor, The Cincinnati Enquirer Dan Hurley , Producer and host of Local 12 Newsmakers and reporter for the station for over 30 years. David Mann, Esq. Vice-Mayor, Cincinnati City Council; Former US Congressman, First District of Ohio Amy Murray , Member, Cincinnati City Council Jerry Newfarmer , Former Cincinnati City Manager, President and CEO of Management Partners Dan Peters, President, the Lovett & Ruth Peters Foundation Ken Parker, Assistant US Attorney, Office of the US Attorney, Southern District of Ohio Yvette Simpson, Esq. Member, Cincinnati City Council David Singleton, Esq. Executive Director, Ohio Justice and Policy Center; Assistant Professor, Chase Law School Dale Stalf, Esq. Chair, Litigation Practice Group at Wood & Lamping LLP; Member of the Board of Trustees of the Cincinnati Bar Foundation. Alex Triantafilou, Esq. Chairman, Hamilton County Republican Party George H. Vincent, Esq. Managing Partner, Dinsmore & Shohl LLP

CBA Representative Maria Palermo, Esq. Assistant Counsel, Cincinnati Bar Association

Page 12 Cincinnati Enquirer 06/17/2013 Copy Reduced to %d%% from original to fit letter page Page : A10

CINCINNATI.COM FACEBOOK.COM/OPINIONATI @CINCIENQUIRER

MARGARET E. BUCHANAN President and publisher CAROLYN K. WASHBURN Editor and vice president DAVID HOLTHAUS opinion» Editorial page editor PAGE A10 MONDAY, JUNE 17, 2013 CIVIL WAYS TO SOLVE REAL PROBLEMS an partisan politicians govern collaboratively? We still hope so. ROBERT In an Enquirer op-ed RACK JR. last September, a local Cgroup of civic leaders calling itself Beyond Civility: Communication for Effective Governance announced its Robert Rack Jr. is retired chief circuit intention to address the disabling mediator, U.S. Court of Appeals for the problem of political polarization. We 6th Circuit in Cincinnati. noted that in a healthy democracy, as in any healthy relationship, it is criti- the change in their attitude. It seems cal that people with different views the stories transformed the present- be able to hear and be heard by each ers from political symbols to people other. We reported on communication with families and influences and trou- workshops for elected and civic lead- bles not so unlike our own, opening ers, and promised a series of Side-by- the space for empathy and enabling a Side presentations in which pairs of more genuine human connection. high-profile leaders would tell stories In a unique event we called a Back- of their early political and social for- to-Back, Republican State Rep. Lou mation. Now, a year later, we’d like to Blessing and Democratic State Rep. share what we’ve learned from this Denise Driehaus bravely took the experience. stage at the College of Mount St. Jo- First, we learned from recent stud- seph to argue as persuasively as pos- ies in psychology and neuroscience sible the opposing party’s position on that people form what moral psychol- several controversial statewide is- ogist Jonathan Haidt calls our moral sues. And they had to keep explaining intuitions early in life. Those beliefs until the other said, “I couldn’t have steer our thinking and listening into said it better myself.” and through adulthood. They dictate It’s hard to measure the true im- whom we trust and believe and what pact of something like this, but the we accept as true or false. As anyone audience reported in overwhelming who has tried to change another per- percentages that the reverse debate son’s mind on a political or religious format contributed to their ability to topic knows, these beliefs are usually “hear and appreciate the different unshakable. To argue facts against perspectives presented.” More than them is not just futile, but often 80 percent said they felt “much better counter-productive. informed about the issues,” and al- The next discovery was the power most half said their opinions were of stories to build connections be- affected by the presentations. While tween people. After our Side-by-Side changing minds was not the goal, presenters described their families opening minds was, and that appears and the people and events that shaped to have occurred. them from childhood, audiences re- The Beyond Civility group now is ported in overwhelming percentages redesigning the communication work- that their negative assumptions and shops and planning another series of attitudes about the presenting indi- Side-by-Sides to start in the fall. If viduals were softened or even there are more public figures willing changed. While they might still dis- to engage in Back-to-Back issue dis- agree with the presenter whose party cussions, we’d love to do that again, affiliation was different from their also. Other initiatives are on the own, they said they believed they drawing board and will be announced. could more easily have a productive Meanwhile, we hope leaders and citi- conversation with that person and zens alike will experiment with ways that they would be more likely to to increase real, problem-solving Republican State Sen. Bill Seitz and Democratic Cincinnati Vice Mayor Roxanne Qualls listen to what he or she had to say in conversation. A healthy democratic were the first to come together at Beyond Civility’s “Side-by-Side” events in the future. Many were surprised by society depends on it. ■ November. PROVIDED

Copyright © 2013, The Enquirer. All rights reserved. Use of this site signifies your agreement toJune the 17,Terms 2013 of 11:39 Service am and/ Powered Privacy by Policy TECNAVIA , updated March 2007. 06/17/2013 Page 13 




 

  



 




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Page 14 feature article An Insider’s Take

By Michael A. Hirschfeld

was somewhat taken aback when I the downtown branch of the Cincinnati and nonpro t organizations. It was an received a letter this summer from Public Library. We were greeted by the incredibly diverse group in terms of IU. S. District Court Judges Sandra project planners, mediator and former backgrounds, political a liations and IBeckwith and Timothy Black asking if CBA President Bea Larsen and former leanings. As we introduced ourselves, I would be interested in participating Federal Court Mediator Robert Rack, I was secretly thinking of the fun (and in “Beyond Civility: Communication who were the originators and key drivers challenges) this might present. !rough for E "ective Governance.” Although of the concept. Our class, the third so the course of the three workshops spread I believed I had exhibited appropriate held, was composed of lawyers, judges, across over just one month, we had the professionalism and civility as a practic- elected o cials, government relations opportunity to learn more about each ing attorney for more than 37 years, my executives and consultants, as well as participant as a person — their back- initial reaction was that it must be some members of the media and for-pro t ground, and the environment and people form of an intervention. !eir letter went on to explain that it was really a series of three separate workshops with a diverse participant group. !e focus was on Back-to-Back CLE Series: Understanding Your Ideological Opposite improving civil discourse in our commu- nity and beyond to address the problems A collaboration of Beyond Civility and the Cincinnati Bar Associaton of increasing political polarization and gridlock. Never one to refuse the request of a federal judge (much less two I re- spect highly), I responded a rmatively and marked my calendar for the meeting !#"($&!#&"%(*& '')#' dates, not really sure what adventures may lay ahead. Hear Hamilton County Prosecutor Joe Deters In late September I received a warm and Ohio Justice & Policy Center Director welcoming letter and, packet from the David Singleton argue the other side’s judges and Sean Comer, the Beyond position on controversial death penalty issues. Civility project manager, providing a list of the 16 other participants along with Tuesday, February 11, 2014 a con dential “framing style inventory” 5:30 to 6:30 p.m. Registration & Light Refreshments to be completed and returned prior to 6:30 to 8 p.m. Program the rst session, to determine the beliefs I hold about interpersonal relationships 1.5 Hours CLE Credit and communications. A #er completing and analyzing the inventory, it became Location clear to me that perhaps I wasn’t as un- St. John’s Unitarian Universalist Church derstanding of my own style as I thought, 320 Resor Ave. and that there could be some interesting Cincinnati, OH 45220 lessons for me to learn. Our initial workshop was held on a Pre-registration required at (513) 699-4028 or beautiful Friday morning in October at at cincybar.org.

www.CincyBar.org FebruaryFeb ruary 20120144 CCBABA PageREPREPORTORT 15 l 9! ! feature article

who played important roles in shap- ect include the “Side-by-Side” series A recent poll conducted by AP-GfK ing their views and outlook. Learning in which local political gures from found that Americans are suspicious of more about each individual provided di !erent parties share memories of early each other in everyday encounters, and fascinating insights, dispelling initial experiences that in uenced their current less than one-third of Americans believe impressions and stereotypes, and signi - thinking and positions, and the “Back- most people can be trusted, a continu- cantly changing my perspective. Led by to-Back” discussions of current issues in ing decline from prior polls. "e Beyond our facilitators, Sherri Goren Slovin, a which partisan advocates are challenged Civility project attempts, one participant Cincinnati lawyer, mediator and con ict to present convincingly the opposite at a time, to rebuild the “social trust” resolution trainer, as well as professors side’s point of view until the other side necessary to facilitate communications, Gail Fairhurst and Heather Zoller of the concedes “I couldn’t have said it bet- open dialogue and compromise, in which University of Cincinnati, we also learned ter myself.” Both series are open to the people are willing to work for the com- various tools and techniques to encour- public and well worth attending. mon good with those who are di !erent age more active listening, to recognize I’ve attempted to adopt the tools and from them. "e project’s goal is that this those social triggers that generate certain strategies learned during the workshops level of honest and open discourse can responses in both the speaker and listen- in my professional and personal life, and ow throughout our community and be- er, to develop a repertoire for reframing have found them to be useful in avoiding yond, particularly as our society appears the conversation, to enter into dialog that stereotyping, hasty judgments, unfound- increasingly fragmented and divided. both maintains one’s own values but al- ed assumptions and my own biases. As a "e Beyond Civility project provides lows others the space to hold their values result, I hope I’ve become a better listener solutions to bridge those gaps and allow and positions, to enter into appropriate and problem solver, able to “drill down” us to engage constructively in controver- discussion and civil engagement, and to on what others are really saying (and sial topics. We lawyers owe it to those we problem solve when di !ering values are feeling), as well as better able to under- serve to strive to achieve those goals. present. stand how my own circumstances may "e nal workshop was held at the color my interpretation of others’ expres- Hirschfeld is a partner at Graydon Head & Ritchey Cincinnati Bar Association o #ces and sions and emotions. LLP. concluded with a wine and cheese recep- tion including the convening judges, planners, steering committee members, present and past participants of the Be- yond Civility workshops, and benefactors of the project including representatives from the Cincinnati Bar Foundation and the Seasongood Good Government Foundation. "e goals of the Beyond Civility project — to elevate public discourse and problem solving by connecting those who may be in a position to best model and in uence appropriate com- munication and problem solving skills and behaviors in a productive man- ner — became clearer as the workshops progressed. It was fascinating to hear personal stories of the di #cult com- munication situations participants personally had experienced, and their e!orts to handle them, both successfully and unsuccessfully, were tremendous learning opportunities. Particularly powerful were the discussions among Keith A. Hock, CPA, CFF, MAFF, CVA 312 Walnut Street political leaders who acknowledged their Director, Financial Advisory Services Suite 1600 $ public and private discussions are o en Cincinnati, OH 45202 approached very di !erently, given the media’s need for a quick “sound bite,” as [email protected] www.gbqconsulting.com opposed to nuanced explanations. 513.252.0223 In addition to the workshops, other initiatives of the Beyond Civility proj-

10 l February 2014 CBA REPORT ! ! www.CincyBar.orgPage 16 Strategies for Dealing with Financially-Troubled Customers & Suppliers

Robert G. (Bob) Sanker Business Representation & Transactions Partner KMK Law

Topics to Cover: • Planning strategies for dealing with a financially- troubled customer • Remedies available upon discovering your customer is insolvent • Planning strategies for dealing with a financially- troubled supplier • Remedies available upon discovering your supplier is insolvent • Immediate concerns upon the bankruptcy of your customer or supplier

Page 17 Topics Beyond Our Scope: • Collection and litigation strategies • Long-term bankruptcy strategies

Managing Credit Risk for Sellers • Use your credit application effectively – Choice of law – Forum selection – Personal guaranty – Interest on delinquent accounts – Attorneys’ fees, collection costs – Security interest

Page 18 Managing Credit Risk for Sellers • Consider using secured credit – Mortgage on real estate – Security interest in tangible and intangible personal property

Managing Credit Risk for Sellers • Security agreement – Signed by the debtor (in credit application) – Express grant of security interest in collateral (inventory, equipment, accounts, general intangibles) – Perfect by filing UCC-1 with Secretary of State where debtor is organized – Priority defined by date of filing except for Purchase Money Security Interest

Page 19 Managing Credit Risk for Sellers • Purchase Money Security Interest (PMSI) – Equipment: First priority in equipment delivered and proceeds if perfected within 20 days of delivery – Inventory: First priority in inventory delivered if notice given to existing secured party prior to delivery; limited priority on proceeds

Managing Credit Risk for Sellers Other credit enhancements • Guaranties – In credit application or separate guaranty by principals, parent corporation, affiliates – Kentucky Statute: KRS 371.065 places limits on open-ended guaranties. Must: (i) be written on the instrument being guaranteed; or (ii) expressly refer to the instrument guaranteed; or (iii) specify the aggregate maximum amount and a termination date. – Guaranty written on the credit agreement satisfies the statute

Page 20 Managing Credit Risk for Sellers Other credit enhancements • Letter of Credit: Commercial/trade letter of credit v. standby letter of credit • Credit insurance • Deposit: Require evergreen deposit, replenished in the amount of each shipment

UCC Remedies Upon Discovering Buyer of Goods Is Insolvent • Demand for Adequate Assurance § 2-609 – When “reasonable grounds for insecurity” arise for performance – Suspend performance until received – Failure of buyer to provide adequate assurance in reasonable time (not exceeding 30 days) is a repudiation of the contract

Page 21 UCC Remedies Upon Discovering Buyer of Goods Is Insolvent • Withhold delivery - § 2-702(1) – Demand payment in cash for goods previously delivered and future deliveries

• Stop delivery of goods in transit - § 2-705 – Written notice to carrier

UCC Remedies Upon Discovering Buyer of Goods Is Insolvent • Reclaim the goods - § 2-702(2): – Make demand within 10 days after receipt unless buyer made written misrepresentation of solvency within 3 months of delivery – Applies only to goods still in buyer’s possession – Subject to rights of buyer in ordinary course – Successful reclamation precludes other remedies

Page 22 Strategies For Managing Credit Risk for Buyers • Effective use of purchase order and contract terms – Financial reporting – Ownership of tooling, software, intellectual property – Right to terminate: Cannot be tied to bankruptcy or insolvency – 11 USC §§ 365(c)(h) and 541(b)(6) – Back-loaded installment payments

Strategies for Managing Credit Risk for Buyers • Consider alternative arrangement – Convert sale and purchase to processing arrangement: • Direct purchase and ownership of inventory • Ownership of tooling – Add terms to services contract to allow for control or transition to another supplier • Software escrow • Access to premises and people

Page 23 Strategies for Managing Credit Risk for Buyers

• Other credit enhancements – Guaranties – Performance bond

UCC Remedies Upon Discovery Supplier Is Insolvent • Demand adequate assurance of performance § 2-609 – Suspend payment until received – Failure to provide adequate assurance within reasonable time not exceeding 30 days is repudiation

Page 24 UCC Remedies for Repudiation or Breach by Supplier § 2-711 • Cancel the contract, “cover,” or seek damages for the breach • Recover goods that have been identified to the contract § 2-502 – Buyer’s rights to identified goods are senior to Seller’s unsecured creditors • Specific performance in appropriate circumstances

Bankruptcy: Immediate Concerns • Automatic stay: – Any act to collect a debt or to exercise control over property of the estate is stayed – Dunning Letters – Litigation: Trials and appeals – Garnishments – Creation, perfection of liens, security interests

Page 25 Bankruptcy: Immediate Concerns • Doing business with the debtor in possession: – Debtor-in-possession is authorized to continue to operate its business – No obligation to do business with a debtor-in- possession unless party to an executory contract – Free to negotiate new credit terms – Credit extended for post-petition transactions is entitled to administrative expense status – Cannot demand payment of pre-petition debt as a condition to further shipments – violation of the automatic stay

Bankruptcy: Immediate Concerns • Executory contracts: – Definition: A contract under which there remains material obligations to perform on both sides – Must perform if debtor performs post-petition – Debtor has the right to assume or reject the contract – Debtor does not have to “cure” prepetition defaults unless and until it assumes the contract, i.e. upon confirmation of a plan unless sooner ordered to do so

Page 26 Bankruptcy: Immediate Concerns • Administrative expense claim under Section 503(b)(9): – Value of “goods” received by the debtor within 20 days prior to bankruptcy – Mixed contract for goods and services: preponderance test v. allocation of value – Goods must have been sold to debtor in ordinary course of business

Bankruptcy: Immediate Concerns • Reclamation under Section 546(c): – All goods received by the debtor within 45 days prior to bankruptcy are subject to reclamation – Notice must be in writing and must be received within 45 days of receipt of goods by the debtor – If bankruptcy intervenes during the 45-day period, then notice must be given within 20 days after bankruptcy petition date – Goods must be in the possession of debtor – Reclamation rights are subordinate to rights of secured lenders – If reclamation fails, seller can still make Section 503(b)(9) claim

Page 27 Bankruptcy: Immediate Concerns • Critical vendor status: – Certain vendors deemed to be “critical” to the reorganization may have pre-petition claims paid – Not authorized by the Bankruptcy Code, but very common – Must be authorized by the Bankruptcy Court – No right to be included; DIP’s discretion – Read the agreement and order carefully: • Waiver of rights • Agreement to future credit terms • Conditional partial payments

Filings to Make • Notice of Appearance: – Bankruptcy Code and Rules do not require all pleadings to be served on all creditors – To ensure that all notices are received, a notice of appearance and request for service of papers is advisable • Proof of claim: – Chapter 7 - Always must file – Chapter 11 - Unliquidated, contingent or disputed must file • Time for Filing: – Chapter 7 - 90 days after meeting of creditors – Chapter 11 - set by court by order or local rule – No asset case - no proof of claim necessary

Page 28 Bankruptcy Litigation • Claims Objections: – Can be brought before or after confirmation of a plan or conversion of a case from Chapter 11 to Chapter 7 – Can be done in “global” fashion – carefully review “omnibus” objections – Objections on the merits (i.e. amount) or on “bankruptcy grounds” (e.g. contingent claim for contribution, duplicate claim, exceeds amount of statutory cap) – Claims that will take too long to liquidate are estimated

Bankruptcy Litigation • Fraudulent Conveyances: – Transfer of the debtor’s property with the intent to hinder, delay or defraud creditors – Transfer of debtor’s assets in exchange for less than equivalent value – payment of another’s debts, etc. – Reachback period: • 2 years prior to bankruptcy under Bankruptcy Code • Statute of limitations vary under state law

Page 29 Bankruptcy Litigation • Preferences: – Prima Facie Case: i. Transfer by the debtor ii. On account of an antecedent debt iii. While the debtor was insolvent (presumed insolvent during 90 days prior to bankruptcy) iv. Within 90 days (1 year for insider) v. Enables creditor to receive more than Chapter 7 distribution

Bankruptcy Litigation • Statutory Preference Defenses: – Contemporaneous exchange – must be intended to be and actually be substantially contemporaneous – Ordinary course of business – must be ordinary between the parties (history of payment terms; variation during months leading up to bankruptcy; dunning letters, wire transfers, cashier checks, post-dated checks) – Subsequent new value – must be supplied after the payment received, credited only backward – De minimis – aggregate preference amount less than $6,225 – Statute of limitations – case must be commenced by the earlier of the close of the case or the later of: i. 2 years after the case began, or ii. 1 year after the appointment of a trustee

Page 30 Bankruptcy Litigation • Planning to Avoid Preference Liability: – Payment from non-debtor (e.g. letter of credit) – Cash in advance – Cash on delivery – Security – Stay within terms – If not within terms, stay within established practice – Avoid obvious collection tactics (dunning letters, post-dated checks) – When in Doubt – Take the Money!

Page 31 Electronic Signatures: The Law, Emerging Practice & Potential Pitfalls

Robert C. (Rob) Lesan, III Business Representation & Transactions Partner KMK Law

Six key questions 1. What is an electronic signature? 2. Are electronic signatures enforceable? 3. How do I prove it is authentic? 4. Will it be admissible as evidence? 5. What are the key benefits? 6. What are the key risks?

Page 32 Functions of signatures • They identify the signatory (authentication) • They provide certainty as to the personal involvement of that person in the act of signing • They associate that person with the contents of the document

Purpose of records • Memorializing agreements • Communicating information • Preserving information for later reference • Providing notice • Undertaking obligations • Transferring rights • Confirming information

Page 33 Types of signatures • “Wet” Signatures : typical pen on paper • Electronic Signatures : An electronic sound, symbol or process attached or logically associated with an electronic record adopted by the person intending to sign the electronic record. Examples : Fax/PDF; electronic signature routing tools; clickwrap or browsewrap signatures; PIN numbers • Digital Signatures : A type of security generated using a specific type of technology (Public Key Infrastructure or PKI-cryptology) utilizing both a “public” and “private” key that may involve a trusted third party

Digital signatures

Page 34 Six key questions 1. What is an electronic signature? 2. Are electronic signatures enforceable? 3. How do I prove it is authentic? 4. Will it be admissible as evidence? 5. What are the key benefits? 6. What are the key risks?

YES

Page 35 Uniform Electronic Transactions Act • “UETA” for short • State model act drafted in 1999 by the National Conference of Commissioners on Uniform State Laws (“NCCUSL”) • First widely-adopted act regarding the enforceability of electronic signatures • Adopted by 47 states in the U.S. (all but Illinois, New York and Washington) as well as the District of Columbia and the U.S. Virgin Islands • Common state-by-state variations : Consumer consent, exclusions, display and formatting requirements

Electronic Signatures in Global and National Commerce Act • Public Law 106-229, June 30, 2000 • Became effective on October 1, 2000 • Scope : Applies to a “transaction” conducted in or affecting interstate or foreign commerce, where “transaction” is defined as “an action or set of actions relating to the conduct of business, consumer or commercial affairs between two or more persons” • ESIGN allows a state to “modify, limit, or supersede” if: – state adopts “clean” UETA; or – state adopts different provisions that are consistent with ESIGN’s four pillars and technically neutral

Page 36 Four pillars of UETA/ESIGN 1. A record or signature may not be denied legal effect or enforceability solely because it is in electronic form; 2. A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation; 3. If a law requires a record to be in writing, an electronic record satisfies the law; and 4. If a law requires a signature, an electronic signature satisfies the law (UETA § 7)

UETA/ESIGN definitions • “Record ” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form • “Electronic record ” means a record created, generated, sent, communicated, received, or stored by electronic means • “Electronic signature ” means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record

Page 37 Key similarities • Effectuate the legal validity of electronic signatures and records • Voluntary • Procedural rather than substantive • Technology neutral

Differences between ESIGN and UETA

1. ESIGN requires clear and conspicuous consumer disclosures and consent to transact electronically 2. ESIGN has no rules on when a record or notice has been sent or received 3. ESIGN has no express provision allowing variations by agreement 4. ESIGN has no express provision regarding attribution 5. UETA has more specific rules regarding transactions by electronic agents, including handling of errors 6. No guidance on the admissibility of electronic records or electronic signatures

Page 38 Exclusions under both ESIGN & UETA • Creation and execution of wills, codicils, and testamentary trusts • UCC (other than Sections 2 (sale of goods) and 2(A) (leases)) • Family law matters • Official court documents • Notices regarding cancelation/termination of utility services • Notices regarding default, foreclosure, or eviction • Notices regarding cancelation of health insurance, benefits, or life insurance • Product recalls • Documents regarding transportation of hazardous materials

Notarization and affidavits

• If a law requires a signature or record to be notarized, acknowledged, verified, or made under oath, the requirement is satisfied if the electronic signature of the person authorized to perform those acts , together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record (UETA § 11) • UETA does not change any other notarial requirements (e.g. in-person signing, identify signer, confirm lack of duress, etc.) • Virginia Electronic Notarization Assurance Standard allows for notarization via digital signatures and two-way video or audio communication

Page 39 Six key questions 1. What is an electronic signature? 2. Are electronic signatures enforceable? 3. How do I prove it is authentic? 4. Will it be admissible as evidence? 5. What are the key benefits? 6. What are the key risks?

Authentication

• Legal sufficiency vs. authentication – UETA and ESIGN answer the question “is it a signature?” – Do not answer the question “is it your signature?” • Burden of proof is on the party seeking to enforce the agreement • Methods of proving electronic signatures: – How does your paper process provide proof? (e.g. handwriting recognition) – UETA uses common law rules: Surrounding circumstances or efficacy of agreed-upon security procedure – Different risks may require different kinds of evidence

Page 40 Case Law: Authentication by process

• Person v. Google, Inc. Google could not produce the actual agreement signed by the plaintiff, but did produce the agreement all users who signed up for AdWords in 2003 were asked to sign. The court relied on proof of process as opposed to proof by the document itself. (456 F. Supp.2d 488 (S.D.N.Y. 2006)) • Bar-Ayal v. Time Warner Cable Inc. Court accepted a re-enactment of the agreement formation process (where the plaintiff had to click on the Accept button eight times) in order to refute the plaintiff’s claim that he never saw the agreement. (2006 WL 2990032 (S.D.N.Y. Oct. 16, 2006))

Case Law: Repudiation

• Zulkiewski v. General American Life . Dispute over life insurance policy. Idle conjecture about impersonation is not enough to overcome reasonable facts (knowledge-based authentication and email confirmation) supporting attribution. (2012 WL 2126068 (Mich. Ct. App. 2012)) • Fteja v. Facebook . Sign-up process required plaintiff to click “sign up” button after being presented with Terms and Conditions. That he was not “forced” to read the terms was irrelevant. Clicking a hyperlink to see an agreement “is the twenty-first century equivalent of turning over the cruise ticket.” (841 F. Supp. 2d 829, 834-35 (S.D.N.Y. 2012))

Page 41 Case Law: Record integrity • Adams v. Quicksilver . The system did not protect the signed record against post-execution alteration, and the post-execution audit trail maintained by the vendor showed that two Quicksilver employees had accessed the record after it was first saved and submitted for storage. (Adams v Superior Court [Adams v. Quicksilver, Inc.], no. G042012 (Cal. App. 4th Div. Feb. 22, 2010) (unpublished))

Six key questions 1. What is an electronic signature? 2. Are electronic signatures enforceable? 3. How do I prove it is authentic? 4. Will it be admissible as evidence? 5. What are the key benefits? 6. What are the key risks?

Page 42 Case Law: Admissibility

• Lorraine v. Markel American Insurance Co. Insurance coverage claim involving $36,000 damage to a yacht allegedly caused by a lightning strike. In an opinion addressing the enforcement of an arbitor’s ruling, a Maryland District Court Magistrate Judge authored a 101 page opinion that consisted of a treatise on admissibility of electronically stored information (“ESI”). Focused on authentication under FRE 901: – Testimony of a witness – Distinctive characteristics (e.g. e-mail address and header information) – Evidence about a process or system – Importance of an audit trail (original writing rule) (241 F.R.D. 534 (D. Md. 2007))

Six key questions 1. What is an electronic signature? 2. Are electronic signatures enforceable? 3. How do I prove it is authentic? 4. Will it be admissible as evidence? 5. What are the key benefits? 6. What are the key risks?

Page 43 Benefits of electronic vs. wet signatures

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Six key questions 1. What is an electronic signature? 2. Are electronic signatures enforceable? 3. How do I prove it is authentic? 4. Will it be admissible as evidence? 5. What are the key benefits? 6. What are the key risks?

Page 44 Risk v. Reward

• Whether or not it makes sense to use an electronic signature solution depends on the circumstances, including the size of the deal and your familiarity with the other party • For one-time, high dollar value transactions ( e.g. large real estate sale) a Wet signature may be more appropriate • For high volume, low dollar value transaction, electronic signatures present clear advantages

Electronic signature checklist • Does the user have authority to sign the electronic record? • Does the system provide evidence of the user’s intent to sign the record? – Does it establish intent to use an electronic signature? – Does it identify the reason the person is signing the electronic record? – Does it provide assurance that the person knows which record is being signed? • Is the signature contained in the electronic record associated with or otherwise linked to the record? • What is the method or process for attributing the signature to the person? • What is the process for storing the electronic record? – Does it prevent or allow for the detection of any alteration to the record after it has been signed? – Who has access to the record?

Page 45 Consider substantive laws • Use of electronic signatures in the U.S. requires a two-part analysis: – Does it comply with the procedural requirements of ESIGN/UETA? – Does it comply with substantive law: Gramm- Leach-Bliley Act, FDA 21 CFR Part 11, HIPAA/HITECH, COPPA, IRS 4506-T, UCC-9?

Conflicts of laws • Where the parties to an electronic transaction reside in different states, analyze any differences in each state’s UETA enactment • When in doubt, comply with ESIGN’s consumer consent requirements

Page 46 “Clickwrap, Browsewrap, Clickthrough”

• “Clickwrap” agreements generally stand the best chance of enforcement • Use a clear call-to-action and a link to the terms and conditions, e.g.: “By clicking ‘I Agree’ you are indicating that you have read and agree to the Terms of Use ” • Require users to opt-in, rather than opt-out ßI agree to the terms and conditions XI do not agree to the terms and conditions

Data privacy • Electronic records should be stored with appropriate security in mind • E-mail is not a secure form of communication - take care to ensure that electronic records and notices do not contain personally identifiable information (esp. in consumer transactions) • Companies will often send an e-mail to the consumer notifying the consumer of a change and inviting them to visit a website for more information (Beware of “phishing” attacks)

Page 47 E-mails as enforceable contracts • Courts have held that an e-mail (or a chain of e-mails) can create a binding, legal contract when: – The e-mail sets out the material terms of the agreement – The e-mail contains a manifestation of mutual accord – The party to be charged, or its agent types its name under circumstances that show an intent to treat that name as a signature – Forcelli v. Gelco Corp., 2013 WL 3812103, at *6 (N.Y. App. Div. July 24, 2013) and Preston Law Firm L.L.C. v. Mariner Health Care Mgmt. Co., 622 F.3d 384 (5 th Cir. 2010) • Be careful that your e-mails do not create new contracts or modify existing contracts

E-mail disclaimer • Automated signature blocks may not show intent to sign (See Forcelli, 2013 WL 3812103 at *6 ) • A disclaimer in an e-mail can foreclose any contention that a party intended to form a valid contract via that e- mail (Dhillon v. Zions First Nat’l Bank, 462 Fed. App’x 880, 883 (11 th Cir. 2012) and McCoy v. Gamesa Tech. Corp., Inc., 2012 WL 983747, at *3 (N.D. Ill. Mar. 22, 2012)) • Disclaimer Language : “This e-mail neither constitutes an agreement to conduct transactions by electronic means nor creates any legal binding contract or enforceable obligation in the absence of a fully signed written contract”

Page 48 FLSA Avoidance & Litigation Strategies: In-house Counsel Panel Discussion

Kasey L. Bond Ralph Lee Labor & Employment Vice President of Human Partner Resources KMK Law Total Quality Logistics

Christopher (Chris) Gregory M. (Greg) Brown, Esq. Utter Corporate Counsel Litigation Partner Total Quality Logistics, KMK Law Inc.

FLSA Statistics • 2013 – 7,764 FLSA cases filed throughout U.S., which represents a 10% increase over 2012 • 2012 – $4.8 million ‰ average FLSA class settlement amount – DOL increased investigations into wage and hour violations, collecting over $225 million in settlements for employees

Page 49 BRING YOUR OWN DEVICE (“BYOD”)

BYOD • What is it? – Employees use their own personal mobile device (i.e., iPhones, iPads, Android smartphones, etc.) for both personal and work purposes • Wage and Hour implications – Off-the-clock work – Employer policies/recommendations for employers

Page 50 BYOD • Off-the-clock work – Unauthorized overtime ‰ still compensable – Unreported overtime ‰ depends what employer knows/should know • Both the FLSA and state laws require that non- exempt employees be paid for all time worked, including overtime • Includes all time employees are “suffered or permitted” to perform work. 29 U.S.C. §§ 203(g), 207(a); 29 C.F.R. § 785.11

BYOD • De minimis defense? – Insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded – Applies only where there are uncertain and indefinite periods of time involved, a few seconds or minutes in duration, and where the failure to count such time is justified by industrial realities – Rutti v. Lojack Corp ., 596 F.3d 1046 (9 th Cir. 2010)

Page 51 BYOD • LinkedIn Corp. Settlement – Settled off the clock overtime case for nearly $6 million following DOL investigation involving 400 current and former employees in California, Illinois, Nebraska and New York – LinkedIn failed to properly pay and account for “off- the-clock” hours worked by non-exempt employees – $6 million settlement consisted of $3.35 million in back wages and $2.51 million in liquidated damages

BYOD • West v. Verizon Communications, Inc. , 2009 U.S. Dist. LEXIS 82665 (M.D. Fla. 2009) – Former Verizon personal account managers alleged company failed to pay overtime for time spent working from home on company-issued BlackBerries – Court denied class certification based on a finding that employees were not similarly situated after employer presented evidence that many employees had opportunities to engage in non-work-related activities during “on-call” time

Page 52 BYOD • Rulli v. C.B. Richard Ellis Group, Inc. (E.D. Wis. March 13, 2009) – Maintenance employee alleged he and others were given PDAs such as BlackBerries in order to access work-related email, voicemail and work orders 24/7 – Conditionally certified – Confidentially settled in September 2011

BYOD • Agui v. T-Mobile (E.D.N.Y. 2009) – Claim that policy required responding to texts, emails and calls via company issued PDAs • Zivali v. AT&T (S.D.N.Y. 2011) – AT&T’s motion for decertification of 4,100 plaintiff opt-in was granted because court determined it involved an individualized determination on whether managers were on notice and if the time was compensable

Page 53 BYOD

• Allen v. City of Chicago , No. 1:10-CV-03183 (N.D. Ill. May 24, 2010) ‰ one to watch – Police sergeant filed collective action on behalf of himself and similarly situated employees alleging city failed to pay overtime for time spent outside of work reading and responding to emails on their city-issued BlackBerries – Court conditionally certified the collective action but “wondered about the ability to treat on a class basis the broad range of situations in which police personnel may respond to messages sent to them on PDAs, the extent to which those responses might constitute work, and the extent to which any work might not be compensable because it is de minimis.” – Defense strategy: Defendants have successfully defeated the similarly situated requirement due to the varied extent of personal device use among putative class members; in light of varied usage levels, courts have found that collective action treatment is unwarranted

BYOD • Employer Policies – Policy Requirements • Clearly state you will pay employees for all hours worked • Expressly prohibit off-the-clock work • Require manager/supervisor approval before receiving overtime • Inform employees that working unauthorized overtime could subject employees to discipline

Page 54 BYOD • Employer Policies – Require employees to record all time worked, including time worked out of the office and outside regular office hours • Policy can expressly require employees to record time spent responding to emails and answering phone calls while out of the office • Policy can require prior written authorization to work remotely via mobile device • Falsification of or failure to keep accurate timekeeping records could subject employees to discipline

BYOD

• Employer Policies – Communicating Policy • Employers must communicate policies to affected employees and consistently enforce them to ensure all time spent accessing work-related emails or making/receiving work-related phone calls is tracked and recorded and that employees who do not comply with the policy are appropriately disciplined • Managers should be trained to comply with the policy and recognize when they are putting nonexempt employees in jeopardy of working outside of working hours

Page 55 BYOD • Recommendations for Employers – Implement policies • Create or modify existing policies such as time recording and overtime policies • Determine which employees should be permitted to participate in a BYOD program and those that should not, such as nonexempt staff who could claim the dual-use device caused them to work “off the clock” – Address off-the-clock work • Remind nonexempt staff to record all work time and revise policies if necessary to make this clear • Educate managers to be careful when sending emails and texts and making phone calls to nonexempt staff during off-hours – Consequences for failure to comply • Remind employees that a violation of relevant policies will lead to disciplinary action, up to and including termination

FLSA Exemptions

Page 56 FLSA Exemptions • 2 requirements: – Duties ‰ must entail a certain amount of exempt work – Salary level and salary basis ‰ must be paid in a specified form (salary, or sometimes fee, instead of hourly) and in a specified minimum amount – Both duties and salary must be perpetually maintained

FLSA Exemptions

• “White Collar” Exemptions – Executive • Minimum salary of $455/week • Primary duty must be managing the enterprise in which employee is employed, or a customarily recognized department or subdivision • Customarily and regularly directs the work of 2+ FT employees (or FT equivalent) • Authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight • Typically exempt: Plant manager, department supervisor, etc.

Page 57 FLSA Exemptions – Administrative • Minimum salary (or fee) of $455/week • Primarily performs office or non-manual work directly related to management and general business operations of employer or employer’s customers • Exercises discretion and independent judgment in matters of significance • Typically exempt: HR managers, executive/admin. assistant, etc.

FLSA Exemptions

– Administrative • Highly fact-intensive determination – Non-Exempt » Little v. Belle Tire Distributors , 2014 U.S. App. LEXIS 20638 (6 th Cir. 2014) (assistant manager) » Harper v. Government Employees Insurance Co. , 2014 U.S. App. LEXIS 19310 (2 nd Cir. 2014) (telephone claims reps) – Exempt » Foster v. Nationwide Mut. Ins. Co. , 710 F.3d 640 (6 th Cir. 2013) (insurance special investigators) » Blanchar v. Standard Insurance Co. , 736 F.3d 753 (7 th Cir. 2013) (director of sales/product manager) » Adams v. BSI Management Systems America, Inc. , 523 Fed. Appx. 658 (11 th Cir. 2013) (supply chain security program manager) » Lutz v. Huntington Bancshares, Inc. , 2014 U.S. Dist. LEXIS 86435 (S.D. Ohio 2014) (home lending underwriters)

Page 58 FLSA Exemptions – Professional • Minimum salary (or fee) of $455/week • Primarily performs work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment • Advanced knowledge must be in a field of science or learning • Advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction • Generally, registered nurses, accountants, lawyers, doctors and engineers – Creative Professional • Minimum salary (or fee) of $455/week • Primary duty is the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor (generally actors, musicians, writers, etc.)

FLSA Exemptions – Computer Employee • Either minimum salary (or fee) of $455/week or, if paid hourly, at a rate not less than $27.63/hour • Employed as a computer systems analyst, computer programmer, software engineer or similarly skilled worker in the computer field • Primary duty consists of: – Application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications – Design development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications – Design, documentation, testing, creation or modification of computer programs related to machine operating systems, or – A combination of the above duties, requiring same level of skill

Page 59 FLSA Exemptions

– Outside Sales • Primary duty is making sales or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer • Must be customarily and regularly engaged away from the employer’s place or places of business – Highly Compensated Employees • Highly compensated employees performing office or non-manual work and paid total annual compensation of $100,000 or more (which must include at least $455/week paid on a salary or fee basis) and who customarily and regularly perform at least one of the duties of an exempt executive, administrative or professional employee

Litigation Strategies

Page 60 Litigation Strategies • Avoiding Class Certification – 216(b) collective action vs. Rule 23 class action certification – 216(b) collective action • Similarly situated employees • Putative class members must opt into the case • Question is whether class members were victims of a single decision, policy or plan in violation of the law • 2 stages – Conditional certification (notice stage) » Lenient standard » Opportunity to opt-in • Decertification – Higher standard (benefit of discovery) – If decertified, opt-in plaintiffs dismissed and original plaintiffs proceed to trial based on individual claims

Litigation Strategies • Defense Strategies – Emphasize individual circumstances to show dissimilarity of putative class members – Factors considered • Disparate factual and employment settings of the individual plaintiffs (i.e., job duties, geographic locations, employer supervision, compensation, etc.) • Testimonial evidence, including statements from other employees contradicting plaintiffs’ allegations, may help to establish wide variances in duties and circumstances of employment among members of the proposed class; evidence of no unified company decision, policy or plan that connects the proposed plaintiff’s claims may also aid employers • Various defenses available to employer which appear to be individual to each plaintiff • Fairness and procedural considerations

Page 61 Litigation Strategies • Rule 23 class action – Rule 23(a) • Numerosity • Commonality • Typicality • Representative party – Rule 23(b) requirements ‰ grounds for certification (must meet one of the three requirements) – Rigorous analysis ‰ generally more stringent than 216(b) collective action

Litigation Strategies • Lay v. Gold’s Gym Int’l, Inc ., 2013 U.S. Dist. LEXIS 144264 (W.D. Tex. 2013). – No evidence of nationwide de facto policy of encouraging employees to work off-the-clock without OT compensation – Court concluded evidence supported conditional certification of a regional class only • Pullen v. McDonald’s Corp ., 2014 U.S. Dist. LEXIS 128364 (E.D. Mich. 2014). – Court denied notice stage certification – 1,000 - 3,000 potential class members had varying pay rates, hours worked, and various deduction methodologies – Practical consideration ‰ no sense certifying a class that will unquestionably be decertified down the road

Page 62 Litigation Strategies • Sanchez v. JMP Ventures, LLC ., 2014 U.S. Dist. LEXIS 14980 (S.D.N.Y. 2014) – Notice and opt-in process is not a discovery device to determine whether conditional certification is appropriate – Factual record, limited to plaintiff’s affidavit, was insufficient to support inference that a common policy or plan existed – Plaintiff did not provide any detail as to observations – Challenge conclusory or unsupported allegations in plaintiff’s motion

Litigation Strategies • Offer of Judgment – Quickly resolve claim of individual bringing lawsuit by offering full relief to the named plaintiffs under FRCP 68 – Genesis Healthcare Corp. v. Symczyk , 133 S.Ct. 1523 (2013) – Anjum v. J.C. Penney Co., Inc ., 2014 U.S. Dist. LEXIS 144199 (E.D.N.Y. 2014) • “Pick off” is a legitimate strategy for obtaining dismissal of FLSA actions – But see Silva v. Tegrity Personnel Services, Inc., 986 F. Supp.2d 826 (S.D. Tex. 2013) – Uncertainty among circuits regarding Rule 68 offers in FLSA collective actions – Other plaintiffs may come forward

Page 63 Litigation Strategies • Disproving plaintiff’s estimate of overtime hours worked – To establish liability for unpaid overtime, plaintiff must prove as a matter of “just and reasonable inference” he performed work for which he was not properly compensated and that employer had actual or constructive knowledge of that work

Litigation Strategies • Evidence typically relied on by Plaintiffs – Their own testimony – Testimony of co-workers – Building entry and exit records – Parking ingress and egress records – Computer sign off and sign on records – Work-related emails sent after hours – Telephone records showing work-related calls made after hours – Security cameras (date/time)

Page 64 Litigation Strategies • Employer strategies for disproving such claims – Employers rely on the same or similar evidence – Employer’s own policies and records of hours worked • Note, the FLSA requires employers to maintain accurate records of an employee’s compensation and hours worked. 29 U.S.C. § 211(c) • Clear written policy – Directing employees to report all time worked accurately and completely – Employees must be paid for all time worked – Clearly advise employees they must not perform any work that is not reported – Inform employees that no supervisor/manager is authorized to require work that is not reported and compensated; provide a confidential means for employees to report violations

Litigation Strategies • Employer Strategies for disproving such claims – Employer’s own policies and records of hours worked • Communicate policy to all nonexempt employees and secure employee acknowledgment • Train supervisors on basics of FLSA and on employer policy – Walk-throughs at start/end of shift – Noting emails sent outside regularly scheduled hours – Be prepared to pay overtime even if unbudgeted – Use disciplinary system to assure nonexempt employees do not work unauthorized overtime • Maintain a reliable system for recording time worked that cannot be altered without a trace (i.e., computerized swipe cards, time clocks or similar automated system) • Disputing employee’s testimony creates a fact issue, but can be bolstered and made nearly irrefutable by maintaining relevant policies and accurate records of hours worked

Page 65 Litigation Strategies • Oldham v. United States Postal Service , 465 Fed. Appx. 440 (6 th Cir. 2012) – Plaintiff reported his own time, including some OT, so employer had no reason to believe plaintiff’s self-reports were incorrect – Because plaintiff self-reported time and failed to report additional hours worked, any additional recovery barred • Frye v. Baptist Memorial Hospital, Inc ., 2011 U.S. Dist. LEXIS 45605 (W.D. Tenn. 2011) – Where an employee is aware of his/her employer’s system for reporting work falling outside normal working hours, but fails to report that work, courts have denied recovery in FLSA actions

Page 66 10 Recent Litigation Decisions Every Attorney Should Know

Joseph M. (Joe) Callow, Jr. Litigation Partner & Co-Practice Group Leader KMK Law

10 Recent Decisions Every Attorney Should Know 1. Halliburton Co. v. Erica P. John Fund, Inc ., 2014 WL 2807181 (S. Ct. June 23, 2014) (affirming Basic ; allowing defendants “to present evidence before a class is certified showing that the alleged fraud had no effect on the price” at the class certification stage).

Page 67 10 Recent Decisions Every Attorney Should Know 2. In re Front-Loading Washer Products Liability Litig. (Glazer v. Whirlpool Corp. ), 722 F.3d 838 (6 th Cir. 2013), cert. denied , 134 S. Ct. 1277 (Feb. 24, 2014) (certification of liability class post- Comcast ).

10 Recent Decisions Every Attorney Should Know 3. Dart Cherokee Basin Operating Co. v. Owens , Case No. 13-719 (S. Ct.) (argued Oct. 7, 2014; issue presented - whether a defendant seeking removal is required to include evidence supporting federal jurisdiction in the notice of removal or is a “short and plain statement of the grounds for removal” sufficient).

Page 68 10 Recent Decisions Every Attorney Should Know 4. FTC v. Wyndham Hotels & Resorts, LLC , Case No. 14-3514 (3d Cir.) (Brief of FTC filed Nov. 5, 2014; issue presented – whether a company’s unreasonable failure to protect the security of customer data can constitute an “unfair act or practice” under Section 5 of the Federal Trade Commission Act).

10 Recent Decisions Every Attorney Should Know 5. In re: Target Corporation Customer Data Security Breach Litig ., Case No. 0:14-md-02522 (D. Minn.) (data breach; consolidation of approximately 100 class action complaints in MDL proceeding) and Earls v. The Home Depot, In c., Case No. 3:14-cv-4315 (N.D. Cal.) (data breach class action).

Page 69 10 Recent Decisions Every Attorney Should Know 6. Food Lion LLC v. Dean Foods Co. (In re Southeastern Milk Antitrust Litig. ), 739 F.3d 262 (6 th Cir. 2014) (reversing district court’s exclusion of expert after Daubert challenge).

10 Recent Decisions Every Attorney Should Know 7. Integrity Staffing Solutions, Inc. v. Busk , Case No. 13-433 (S. Ct.)(oral argument Oct. 8, 2014) (issue presented: whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal to Portal Act).

Page 70 10 Recent Decisions Every Attorney Should Know 8. Painter v. Atwood , 2014 U.S. Dist. Lexis 153342 (D. Nev. Oct. 28, 2014) (plaintiff sanctioned for destroying Facebook posts and text messages).

10 Recent Decisions Every Attorney Should Know 9. Good v. American Water Works Co., Inc ., 2014 U.S. Dist. Lexis 154788 (S.D. W. Va. Oct. 29, 2014) (Rule 502(b), Rule 502(d), and computer aided review of privileged documents and claw back provision).

Page 71 10 Recent Decisions Every Attorney Should Know 10. ? ? ?

Page 72 Commercial Real Estate Panel: Legal Updates & Financing Trends

Jody T. Klekamp Barrett P. (Bear) Tullis Real Estate Partner Real Estate Partner KMK Law KMK Law

Kenneth P. (Ken) Kreider Daniel P. (Dan) Utt Real Estate Partner Real Estate Partner & KMK Law Practice Group Leader KMK Law Geoffrey G. (Geoff) Leder Real Estate Attorney KMK Law

Current Financing Trends • Can I obtain non-recourse mortgage secured debt financing for an investment property? • Is it really non-recourse? • What kind of loan should I evaluate if I will have to make improvements during the loan term?

Page 73 Current Financing Trends • If I am planning on selling, can I do a tax-free exchange? • If I am purchasing for investment, can I acquire a partial interest with proceeds from an exchange and finance that interest?

Property Development Considerations • Strategies for efficiently managing the property acquisition process, from site selection to disposition • Retail leasing considerations/national vs. regional tenants; exclusive uses; the co-tenancy puzzle • Office leasing – buildout allowances and operating expense considerations • Entitlement and zoning considerations • Real estate valuations and appeals – current climate

Page 74 New Markets Tax Credit Matters • Introduction of parties to a NMTC transaction • Explanation of eligible projects • Typical structure of a NMTC transaction • Benefits from utilizing NMTCs in projects • Strategies for obtaining allocation of credits • Special considerations regarding Ohio state credits

Benefits from Condominium Developments

• Condominium Form of Ownership and the Pros and Cons • Differences between a Condominium Association and Homeowners Association • Budgets, Reserves, and the Ohio Requirements • Differences between Common Elements, Limited Common Elements, and Exclusive Use Area

Page 75 Ethics Panel: Supervision and Legal Outsourcing

Mark J. Chumley Erica O’Brien, Esq. Labor & Employment Senior Labor & Partner Employment Practices KMK Law Counsel Cintas Corporation Danielle M. D’Addesa Litigation Partner F. Mark Reuter KMK Law Business Representation & Transactions Partner KMK Law Emerson C. Moser Vice President & Assistant General Counsel General Cable Corporation

“No matter what your profession – doctor, lawyer, architect, accountant – if you are an American, you better be good at the touchy- feely service stuff, because anything that can be digitized can be outsourced to either the smartest or the cheapest producer.”

– Thomas L. Friedman, The World Is Flat: A Brief History of the Twenty-First Century , 2005.

Page 76 “I do have concern about confidence, confidentiality, privacy, conflict of interest, ethical values, and those are issues that are a real concern.” – Jerome Shestack, former President of the American Bar Association on “Outsourcing Legal Services.” The Law Report-Damien Carrick, ABC Radio, 21 Feb. 2006.

Legal Outsourcing Defined: • Legal outsourcing broadly refers to an attorney in a law firm or corporate legal department obtaining legal support services from any source

Page 77 Examples of Legal Outsourcing • Traditional: – Assigning work to legal assistants and paralegals – In-house counsel sending work to an outside law firm – Sending out-of-state matters to local counsel – Engaging co-counsel to assist with a case – Sending large copy jobs to outside vendors

Examples of Legal Outsourcing • New: – Hiring contract attorneys to assist with document review – Hiring discovery services firms to manage electronically stored information (ESI) in discovery – Legal process outsourcing or LPO – the exporting of legal services to low-wage markets overseas*

Page 78 Model Rules Applicable to Outsourcing Generally • Rule 1.1 Competence: A lawyer shall provide competent representation to a client. – Comment [6]: Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client. • Rule 1.6 Confidentiality of Information – Comment [18] Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.

Model Rules Applicable to Outsourcing Generally

• Rule 5.1 Responsibilities of Partners, Managers, and Supervisory Lawyers – (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. • Rule 5.3 Responsibilities Regarding Nonlawyer Assistance – (b) A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.

Page 79 Model Rules Applicable to Outsourcing Generally

• Rule 5.5 Unauthorized Practice Of Law; Multijurisdictional Practice Of Law – (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. – Comment [1] - Paragraph (a) applies to unauthorized practice of law by a lawyer, whether through the lawyer’s direct action or by the lawyer assisting another person . For example, a lawyer may not assist a person in practicing law in violation of the rules governing professional conduct in that person’s jurisdiction.

Outsourcing Case Study #1 • Gloria Jones works for the law firm of Smith, Smith & Smith (SS&S) as a legal assistant. • SS&S has an ethics policy that employees are required to read and sign annually and a related online training program that requires employees, including Gloria, to participate in a one hour program once a year. • Topics covered preserving attorney client privilege, basic legal ethics and avoiding conflicts of interest. • Employees who are notaries are required to take an additional training annually on their obligations when notarizing documents.

Page 80 Outsourcing Case Study #1 – cont. • Gloria’s boss, Joe Smith, drafts an affidavit to be signed by a client. • Gloria is a duly licensed Ohio notary. However, she neglects to get the affidavit executed, instead forging the signature and notarizing it. • The forgery is later exposed and has a significant adverse impact on the case.

• Are Joe Smith and/or SS&S in violation of ethical standards?

Outsourcing Case Study #1 – cont. • Mahoning Cty. Bar Assn. v. Lavelle, 107 Ohio St.3d 92, 2005-Ohio-5976: – “[I]t is a lawyer’s duty to establish a system of office procedure that ensures delegated legal duties are completed properly.” Disciplinary Counsel v. Ball (1993), 67 Ohio St.3d 401, 404, 618 N.E.2d 159. – Whatever safeguards respondent may have established to ensure that his office functioned properly and professionally were clearly inadequate.

Page 81 Legal Process Outsourcing:

• Most LPOs are located in : – India – South Africa – Philippines • Typical services include : – Legal research – Document drafting – Patent research – Case analysis and strategy formulation – General paralegal support

LPO – Potential Risks: • Inadvertent disclosure of confidential information • Unauthorized practice of law • Waiver of privileges • Ineffective conflict checks • Inappropriate fee-sharing and other billing concerns • Privacy concerns

Page 82 LPO – Potential Risks (cont.): • Data theft and misuse • Difficulties associated with proper supervision, especially of vendors in another country • Differing legal systems and privilege standards • Language barriers / cultural differences

Authority Specifically Applicable to LPO

• The ABA, Supreme Court of Ohio Bd. of Commissioners on Grievances and Discipline and several bar associations throughout the U.S, have weighed in on the issue • A non-exhaustive list includes: – ABA Committee on Ethics and Professional Responsibility Formal Opinion 08-451 (2008) – The Supreme Court of Ohio, Opinion 2009-6, August 2009 – Los Angeles County Bar Association, Opinion 518 (2006) – North Carolina State Bar, Formal Ethics Opinion 12 (2007) – San Diego Bar Association Legal Ethics Opinion 2007-1 (2007) – Florida Bar Opinion 07-2 (2008)

Page 83 Authority Specifically Applicable to LPO – cont.

– The Association of the Bar of the City of New York Formal Opinion 2006-3 (August 2006) – Virginia State Bar Standing Committee On Legal Ethics Seeking Public Comment On Legal Ethics Opinion 1850 – Colorado State Bar Ethics Opinion 121: Use of Temporary Lawyers and Other Professionals not Admitted to Practice in Colorado (“Outsourcing”), June 2009 – District of Columbia Bar Ethics Committee issued Opinion 362, June 30, 2012 – District of Columbia Court of Appeals Committee on the Unauthorized Practice of Law Opinion 21-12, January 12, 2012

Authority Specifically Applicable to LPO – cont.

• The American Bar Association amended the ABA Model Rules of Professional Conduct in August 2012 to “provide guidance regarding the ethical implications of retaining lawyers and nonlawyers outside the firm to work on client matters (i.e. outsourcing).” • Revisions were made to: – The Comments to Model Rule 1.1 (Competence); – The title and Comments to Model Rule 5.3 (Responsibilities Regarding Nonlawyer 8 Assistants); and – The Comments to Model Rule 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice of Law)

Page 84 Authority Specifically Applicable to LPO – cont.

• The opinions and authorities overwhelmingly conclude that an attorney may ethically outsource legal work • However, the opinions emphasize the need for an attorney to address ethical obligations including, but not limited to: – Avoiding unauthorized practice of law through adequate supervision – Competent representation – Duty to disclose – Avoiding conflicts of interest – Preservation of client confidences and secrets

Attorney Obligations in Outsourcing

• Avoiding unauthorized practice of law through adequate supervision: – Outsourcing legal work overseas does not constitute aiding and abetting the unauthorized practice of law where the outsourcing lawyer enacts an appropriate degree of supervision: • Supervision obligation is the analogous to duty owed when delegating work to a paralegal or legal assistant • Seniority and experience level of LPO lawyers does not matter

Page 85 Attorney Obligations in Outsourcing

• Competent representation: – Some or all of the following may be appropriate: • Conduct reference checks • Investigate the background of the lawyers, nonlawyers and service provider • Interview the principal lawyers involved in your matters and assess their educational background • Inquire into the LPO company’s hiring practices to evaluate the quality and character of the employees likely to have access to client information

Attorney Obligations in Outsourcing

• Competent representation – cont.: – Some or all of the following may be appropriate: • Investigate the security of the provider’s premises and computer network • Conduct a site visit • Assess the country to which services are being outsourced for its legal training, judicial system legal landscape, disciplinary system and core ethical principle • Disclose the outsourcing relationship to the client and obtain informed consent

Page 86 Outsourcing Case Study #2 • An attorney has filed a notice of appeal in a civil case on a client’s behalf. • The attorney charges an hourly rate for the appellate services. • Shortly thereafter, the attorney receives a solicitation from an LPO in India to draft the appellant’s opening brief for a comparatively low hourly fee. • The LPO employs both lawyers (none of whom are licensed to practice law in the U.S.) and nonlawyers. • LPO promises to deliver a ready-to-file brief, to be signed by the attorney.

Outsourcing Case Study #2 – cont. • LPO also promises to refund all fees paid to the LPO for the brief if the appeal is unsuccessful. • The attorney decides to hire the LPO to write the brief but has not decided yet whether to pass the charge through to the client or to treat payment for the work as an internal cost.

• Must the attorney advise the client of the LPO’s involvement or can he treat the work as an internal cost?

Page 87 Attorney Obligations in Outsourcing • Duty to disclose : – Outsourcing lawyer is almost always obligated to disclose the nature of the outsourcing relationship to client • If any client confidential information is to be disclosed, the client must be informed – San Diego Bar Association Opinion notes that duty to inform the client is determined by the client’s reasonable expectation as to who will perform services

Attorney Obligations in Outsourcing

• Duty to disclose – cont. : – Ohio Opinion discusses marking up the cost of LPO outsourcing: • …if any amount beyond cost is added…The decision must be communicated to the client preferably in writing, before or within a reasonable time after commencing the representation… – The ABA Opinion states: • In the absence of an agreement with the client authorizing a greater charge, the lawyer may bill the client only its actual cost plus a reasonable allocation of associated overhead, such as the amount the lawyer spent on any office space, support staff, equipment, and supplies for the individuals under contract.

Page 88 Attorney Obligations in Outsourcing

• Duty to disclose – cont. : – Los Angeles County Bar Association, Opinion 518 states that: • The attorney may elect simply to pay Company for the cost of the legal research or brief without passing on any of the cost to the client; or • Attorney may pass cost on to client for direct payment; or • Mark up the cost and pass marked up cost on for payment; or • Charge a flat fee. – Each scenario has different consequences and requirements

Attorney Obligations in Outsourcing

• Avoiding conflicts of interest: – Outsourcing attorneys should investigate LPO providers’ conflict checking procedures and satisfy themselves that no conflicts exist – Steps may include: • Asking the LPO provider about its conflict checking procedures and about how it monitors work performed for other clients • Developing a conflict-of-interest questionnaire for the LPO provider • Ensuring that the LPO provider is familiar with the applicable state’s conflict rules.

Page 89 Attorney Obligations in Outsourcing

• Preservation of client confidences and secrets: – The ABA recommends the following for those considering legal outsourcing: • Depending on the sensitivity of the information being provided to the service provider, the lawyer should consider investigating the security of the provider’s premises, computer network, and perhaps even its recycling and refuse disposal procedures. • In some instances, it may be prudent to pay a personal visit to the intermediary’s facility, regardless of its location or the difficulty of travel, to get a firsthand sense of its operation and the professionalism of the lawyers and nonlawyers it is procuring.

Outsourcing Case Study #3

• K-N Industries engages McSmith & McSmith (M&M) to represent it in connection with investigation by federal and state governments relating to a pending qui tam case. • In the investigation, over 160 custodians were identified and over 1.3 million electronic files were gathered. • An overseas LPO specializing in managing electronic discovery was engaged to handle the ESI. • In consultation with M&M, a series of search term filters were utilized to remove privileged documents. • Next, U.S. contract attorneys were hired to review the results prior to the production of documents.

Page 90 Outsourcing Case Study #3 – cont. • Despite these efforts, over 3,900 privileged documents were inadvertently produced. • Several months later, in a second production, another 2,700 privileged documents were inadvertently produced.

• Assuming no obvious errors in judgment or technological failures, is M&M responsible for the inadvertent disclosure of privileged materials?

Outsourcing Case Study #3 – cont.

• In a tentative ruling in the J-M Manufacturing Company, Inc. v. McDermott Will & Emery litigation, upon which the case study is loosely based, the Judge noted: – A process need not be foolproof for it to be reasonable, especially given the demands and volume of modern-day discovery – Mistakes are to be expected when it comes to large discovery projects, perhaps in the era of e-discovery – Even a single entity’s history of mistakes, in such a context, does not necessarily mean that the continued use of that entity to perform a complicated task is unreasonable – However, the analysis is potentially somewhat different when the same entity makes the same mistakes with respect to the same collection of documents and/or process

Page 91 Outsourcing Tips • Perform due diligence on LPO providers through: – Interviews – Obtaining references and conducting reference checks – Background checks, if possible – Even visiting the service provider’s facilities • Investigate service provider’s conflict-checking process • Ask for work samples or do a pilot-project prior to engaging LPO provider to assess the abilities of the provider and its employees

Outsourcing Tips – cont. • Conduct a quality control review of the outsourced work product – especially for privilege determinations • In the engagement letter or service contract, include confidentiality/non-disclosure provisions • Fully disclose relationship to client and clearly bill for services • Others?

Page 92 QUESTIONS?

Page 93 Attorney Professionalism: Providing Effective Leadership in our Supervisory Roles

Deborah Pearce Communications Consultant Pearce Communications Group, LLC

Coaching Supervision

Deborah Pearce Pearce Communications Group LLC www. pearce-communications.com

Page 94 If you manage or supervise others…

You are being watched!

What kind of relationships are you creating?

The role of Supervisor is directly linked to the retention of talented associates…

¢ It's not that younger workers don't embody loyalty — it's actually the opposite. Millennials are very loyal — they're just not loyal to a company; they're loyal to their bosses. Marston, author of the book "Motivating the 'What's In It For Me' Workforce ," says that effective bosses are the number one reason why Millennials stay at a job.

¢ Furthermore, the number one reason Millennials quit their jobs is because they're dissatisfied with their bosses.

Business Insider September 2012 Vivian Giang

Page 95 COACHING SUPERVISION DEFINED…

Definition:

“A relational approach to managing and supporting employees that helps them to develop problem-solving skills – i.e. the ability to think through options, prioritize and communicate effectively.”

What are the skills and characteristics of a Coaching Supervisor? ¢ Self-awareness ¢ Self management ¢ Active listening ¢ Problem solving ¢ Giving and receiving effective feedback ¢ Understanding motivation ¢ Conflict management ¢ Appropriate recognition and praise ¢ Co-creating a high performance team

Page 96 What a Coaching Supervisor Does

• Creates a relationship with the employee • Helps develop an employee’s skill set • Is effective in addressing employee issues: • Clearly presents the problem • Gathers information from the employee’s perspective • Engages in problem solving with the employee • Models effective communication practices

They build a feedback-rich culture.

¢ How’s your week going? ¢ Is there anything you’re working on that you think I need to know more about? ¢ Where do you need more of me right now? ¢ Is there anything I’m doing that’s making your job more difficult? ¢ What else do we need to talk about?

Page 97 True/False question for the audience…

Your current organization is feedback rich. There’s a lot of feedback to each member and few surprises.

a. True b. False

They build a “Thinking Team.”

“What are the options you see?” “What are your ideas about what we can do?” “What would it take to keep this situation from repeating itself?” “What might happen if we follow that plan?” “How will others feel about this decision?” “What’s your best thinking about what we can do?”

Page 98 They build a High Performance Team .

So how do you know if you are creating a high performance team?

You are getting results!

People hold themselves and others to high expectations; there is personal and collective accountability.

Page 99 So how do we know if you are creating a high performance team?

You are getting results!

People understand and embrace change.

So how do you know if you have created a high performance team?

You are getting results!

People operate within an open communication system – one that does not avoid conflict.

Page 100 True/False question for the audience…

Your organization manages employee conflicts in a timely and effective way.

a. True b. False

So how do you know if you have created a high performance team?

You are getting results! People interact from a foundation of trust.

(vulnerability-based trust: judgment and pride morph into support, compassion and empathy.)

Page 101 So how do you know if you have created a high performance team?

You are getting results!

People share the vision; they know that their work has purpose.

So how do you know if you have created a high performance team?

You are getting results!

People celebrate success; they are recognized.

Page 102 How does a person become a Coaching Supervisor?

¢ Start with yourself. Watch what you do!

¢ Solicit feedback!

¢ Get trained in the skills of Coaching Supervision.

¢ Commit to new behaviors!

Page 103

Speaker Contact Information

James C. (Jim) Kennedy Business Representation & Transactions Attorney KMK Law 513.579.6599 [email protected]

Bea Larsen, Esq. Senior Mediator Center for the Resolution of Disputes 513.478.9944 [email protected]

Robert (Bob) Rack, Esq. Mediator/Co-founder Beyond Civility 513.564.7330 [email protected]

Robert G. (Bob) Sanker Business Representation & Transactions Partner KMK Law 513.579.6587 [email protected]

Robert C. (Rob) Lesan, III Business Representation & Transactions Partner KMK Law 513.579.6939 [email protected]

Kasey L. Bond Labor & Employment Partner KMK Law 513.579.6491 [email protected]

Gregory M. (Greg) Utter Litigation Partner KMK Law 513.579.6540 [email protected]

Page 104

Joseph M. (Joe) Callow, Jr. Litigation Partner & Co-Practice Group Leader KMK Law 513.579.6419 [email protected]

Jody T. Klekamp Real Estate Partner KMK Law 513.579.6954 [email protected]

Kenneth P. (Ken) Kreider Real Estate Partner KMK Law 513.579.6579 [email protected]

Geoffrey G. (Geoff) Leder Real Estate Attorney KMK Law 513.562.1403 [email protected]

Barrett P. (Bear) Tullis Real Estate Partner KMK Law 513.562.1445 [email protected]

Daniel P. (Dan) Utt Real Estate Partner & Practice Group Leader KMK Law 513.579.6564 [email protected]

Mark J. Chumley Labor & Employment Partner KMK Law 513.579.6563 [email protected]

Page 105

Danielle M. D’Addesa Litigation Partner KMK Law 513.579.6545 [email protected]

F. Mark Reuter Business Representation & Transactions Partner KMK Law 513.579.6469 [email protected]

Deborah W. (Debbie) Pearce Communications Consultant Pearce Communications Group, LLC 414.446.4744 [email protected]

Page 106