APRIL NEWSLETTER

On March 9, 2004, the U.S. District Court in Dayton issued an order unsealing an oral decision from July 2004; the order had been sealed originally to assure that an arbitrator hearing related issues was not influenced by the Court's analysis of legal issues and witnesses' credibility. In that July 2004 oral decision, the Court, after a four-day evidentiary hearing, denied a motion for preliminary injunction that was sought by a dealer. FI&C represented the manufacturer that successfully defended a preliminary injunction action that was brought based upon the antitrust laws, a written dealer agreement and the Ohio Motor Vehicle Dealer Act. Jeff Ireland and Laura Sanom with the assistance of Adam Sherman and Don Burton persuaded the Court that the dealer was unlikely to prevail on the merits, that the dealer had not suffered irreparable injury, and that the balance of hardships favored the manufacturer, not the dealer.

In a decision on March 14, 2005, the U.S. District Court for the Northern District of Ohio rejected challenges to a tortious interference claim that had been brought by one of the firm's clients against a competing manufacturer. In that case, there were cross-motions for judgment on the pleadings as both sides tried to dismiss the other's claims for tortious interference and unfair competition. The only surviving claim was that of FI&C's client against its competitor: as a result of the Court's ruling, the firm will be pursuing a tortious interference claim against the competitor. That case is being handled by Jeff Ireland, Laura Sanom, Adam Sherman and Chad Burton.

On March 25, 2005, Ohio's Second District Court of Appeals affirmed an earlier decision by the Montgomery County Court of Common Pleas that FI&C client The Dayton Power and Light Company ("DP&L") is entitled to summary judgment on a former employee's claims of wrongful termination in violation of public policy and constructive discharge. As reported in FI&C's May 2004 Newsletter, Paul Horstman, Melinda Burton, and Karl Neudorfer were successful in their attempts to obtain a summary judgment for DP&L, and last month the Court of Appeals affirmed that decision. The principal issue in the case was whether DP&L violated a clear public policy favoring workplace safety when it terminated an "at will" employee who refused to return to work after he was assaulted by a fellow employee. The Court of Appeals agreed with the trial court in concluding that DP&L had not violated such a policy, and unanimously affirmed summary judgment in favor of DP&L.

On March 23, 2005, FI&C attorneys Bob Bartlett, Tom Kraemer, and Karl Neudorfer obtained a summary judgment in favor of Miami Valley Broadcasting Corporation d/b/a WHIO-TV ("WHIO"), Becky Grimes, Cox Broadcasting, Inc. and Cox Enterprises, Inc. on defamation claims brought by the proprietors of various adult entertainment enterprises. Plaintiffs alleged that they had been defamed in a series of television news stories broadcast by WHIO about live sex acts being displayed over the Internet. FI&C mounted a two-pronged defense to those claims, arguing first that Plaintiffs were limited purpose public figures under the U.S. Supreme Court's First Amendment jurisprudence, and second that Plaintiffs could not meet the enhanced burden of proof required of public figure defamation plaintiffs. The Montgomery County Court of Common Pleas agreed with both points, and granted the motion for summary judgment in its entirety.

Bob Bartlett and Karl Neudorfer have successfully defended Dayton Newspapers, Inc. ("DNI") against claims of disability discrimination brought by a DNI employee. On March 14, 2005, the United States District Court for the Southern District of Ohio granted DNI's motion for summary judgment on every claim made in Plaintiff's complaint. FI&C argued that as a matter of law Plaintiff could not establish a disability discrimination claim, and the Court agreed, writing, "[t]here are no genuine issues of material fact on . . . two critical issues raised by [DNI]: whether Plaintiff suffered from a disability within the meaning of the ADA and whether the accommodation she requested was reasonable. Since either of those two conclusions is fatal to Plaintiff's case, Defendant is entitled to Judgment as a matter of law."

On March 11, 2005, based upon memoranda prepared by Jeff Sharkey and Erin Stefanec, the Warren County Common Pleas Court dismissed four claims filed by the City of Franklin against FI&C client Miami Wabash Paper LLC ("MWP"). The City asserted that MWP committed various violations of Ohio Rev. Code Chapter 6111 in those claims, and the City sought fines of up to $25,000 per violation, per day. FI&C persuaded the Court that the Ohio Director of Environmental Protection had sole authority to file claims under Chapter 6111, and that the City of Franklin thus lacked standing to enforce that Chapter.

Ron Raether was a presenter in March at a day-long seminar sponsored by the National Business Institute titled "Overcoming Your Fears: Utilizing Technology in Litigation." Ron's portion of the presentation relied on his technology related experience, focusing on electronic data discovery and data management, and multimedia trial presentation applications and techniques. Ron will be speaking about electronic data discovery and preservation topics on June 13, 2005 at a CLE in Cincinnati titled "E-Discovery and Computer Forensics." The written materials for Ron's presentation can be found at http://www.ficlaw.com/raethertech.htm

On March 11, 2005, Don Burton, Julie Zink, John Fischer and Erin Bair presented a mock Markman hearing at the University of Dayton School of Law for members of the Dayton Intellectual Property Law Association, as well as students and faculty of the university. Taking on the various roles of the participants of a claim construction hearing involving two fictional corporations in a patent infringement dispute, the team provided claim construction arguments that might be advanced for the interpretation of the phrase "substantially flattened." The presentation offered the members of DIPLA and interested UD students an opportunity to observe the procedures of a Markman hearing.