Monthly Archives: October 2014

My Sister’s Facebook Keeper: How Delaware Is Changing the Landscape of Online Asset and Account Management

Author: Stephen Doyle, Associate Member, University of Cincinnati Law Review 

On August 12, 2014, Gov. Jack Markell signed the Fiduciary Access to Digital Assets and Digital Accounts Act (FADADAA),[1] which will make Delaware the first state to permit heirs to inherit a decedent’s digital accounts or assets.[2] The law will become effective on January 1, 2015.[3] With increased technology use over the past decade, individuals have shifted from storing documents in physical locations to online accounts. Thus, this legislation provides many benefits for the decedent’s beneficiaries or any fiduciaries for the accounts, especially in the event of an unexpected death. However, the FADADAA poses potential privacy and contract issues, primarily for individuals and organizations not directly involved in the transfer of an asset under the law. Although it is too early to tell exactly what effects the Act will have, the advantages for beneficiaries and fiduciaries outweigh the negative implications the Act could have on third parties and consumer electronics companies.

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College Athletes Demand Pay, But May Have Sacked Themselves

Author: Matt Huffman, Associate Member, University of Cincinnati Law Review

The National Collegiate Athletic Association (NCAA) and its member schools collect hundreds of millions of dollars each year from the Football Bowl Subdivision (FBS) and Division I Basketball broadcasts and video games. The schools make a substantial amount of money from licensing players’ names, likenesses, and images to television and video game companies. However, players do not receive any of this money. They agree to give up the use of their names, likenesses, and images when they accept an athletic scholarship, and in return, their schools may provide tuition, room and board, and book expenses. But players may soon receive a part of television and video game revenue if the recent decision in O’Bannon v. National Collegiate Association is upheld.[1] While student-athletes have long sought to receive a portion of the huge sums of broadcasting and video game revenue they help generate, the proposed payments in O’Bannon could not be treated as athletic scholarships under § 117 of the Internal Revenue Code (§ 117) and would not comply with Title IX. In fact, paid student-athletes under the O’Bannon settlement framework would likely be considered employees of the school and would be required to include the payments in their gross income, resulting in significant tax liabilities for both players and universities.

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Kentucky’s Top Court Upholds Bar on Ineffective-Assistance-of-Counsel Waivers

Author: Brynn Stylinski, Associate Member, University of Cincinnati Law Review

In a system where nine out of ten criminal cases end in pleas, debate over the ethics of plea bargain content is common. On August 21, the Kentucky Supreme Court effectively ruled that plea bargains in the state may not ethically include waivers of the right to sue for ineffective assistance of counsel (IAC).[1] In Kentucky Bar Ass’n, the court upheld Kentucky Bar Association Ethics Opinion E-435 (E-435), which states that criminal defense attorneys may not advise clients to accept plea bargains that contain IAC waivers, and federal prosecutors may not propose plea bargains that contain IAC waivers.[2] The court’s rationales reflect current legal trends in criminal law, and this decision improves the quality of the criminal justice system in Kentucky. It holds all attorneys to a higher ethical standard, prevents inherent conflicts of interest, prevents prosecutors from limiting the ways in which defendants can challenge their convictions, and allows defendants to enforce their right to effective counsel without also having to show that attorney error led to them to sign an IAC waiver. If the issue is brought before other state courts, they would be wise to follow Kentucky’s example.

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Free Speech in the Age of Terrorism & Mehanna v. United States: SCOTUS Passes Up an Opportunity to Clean Up an Old Mess

Author: Rebecca Dussich, Associate Member, University of Cincinnati Law Review 

In the order following the Supreme Court’s September conference, the Court declined to hear a case that would have clarified §§ 2339A and B of Title 18 of the U.S. Code and prevented unlawful encroachment on free speech rights. Tarek Mehanna, convicted of providing “material support” to a foreign terrorist organization, asked the Court to clarify its interpretation of the statute under which he was prosecuted.[1] The standard used to support this conviction, established in Holder v. Humanitarian Law Project, requires action “in coordination with, or at the direction of” the terrorist organization in question.[2] Because HLP did not adequately explain this standard, the government has been able to convict defendants like Mehanna despite insufficient evidence to support the “coordination” requirement. Now, the Court has passed up an opportunity to correct this error by denying Mehanna’s petition for writ of certiorari, leaving his conviction in place, and effectively supporting an improper and ineffective standard. If the Supreme Court were to give courts and juries a more workable set of guidelines under which to establish “coordination,” they could more fairly decide these cases.

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Follow Up: “The Davis Good Faith Exception to the Exclusionary Rule”

On September 24, 2014, the Supreme Court of Ohio heard oral argument in the case of State of Ohio v. Sudinia Johnson, 2013-1973. At issue was “whether, in the absence of binding appellate precedent, the Davis good faith exception to the exclusionary rule can apply to prevent the suppression of evidence when the officer who committed the Fourth Amendment violation reasonably believed the search was legal.” (from LegallySpeakingOhio)

Blog editor Cameron Downer wrote about Davis for the UC Law Review Blog here. Cameron has since covered the Johnson case for LegallySpeakingOhio, both previewing oral argument and assessing its aftermath. Both articles are worth a read in an important follow up to the Davis case.

Ohio Considers Joining the Fight Against Patent Trolls

Author: Jon Kelly, Associate Member, University of Cincinnati Law Review

Patent trolls have become a serious headache for small businesses, and states are beginning to fight them without the federal government.  The Ohio General Assembly is currently debating House Bill 573 (H.B. 573), which would allow patent holders to sue patent trolls for “bad faith” claims.[1] Although Ohio has a strong interest in preventing patent trolls from hindering small businesses’ operations, it is uncertain whether the federal government’s exclusive jurisdiction over patent law would preempt H.B. 573 and prevent state courts from accepting patent abuse cases under the law. Considering the current state of relevant case law, however, Ohio’s H.B. 573 should survive any preemption challenge because the law does not attempt to validate patents themselves, but instead sanctions the conduct of patent trolls.

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“Costanza Defense” Potentially No Longer Applicable in Class Action Securities Claims

Author: Collin L. Ryan, Associate Member, University of Cincinnati Law Review

George Costanza once imparted to Jerry Seinfeld the infamous advice, “It’s not a lie, if you believe it.”[1] Although this advice is entertaining, the Supreme Court granted certiorari last March to resolve a circuit split regarding the extent to which Mr. Costanza’s advice applies in class action securities litigation.[2] The Supreme Court will review the Sixth Circuit’s decision in Indiana State District Council v. Omnicare, Inc. from May 23, 2013.[3] The Court will likely determine the pleading standard for plaintiff-investors filing suit under § 11 of the Securities Act of 1933 (§ 11 or section 11) against a defendant-corporation. In particular, the Court will determine whether the plaintiff’s plea that the defendant’s misstatement or omission was objectively false satisfies federal pleading requirements, or whether the plaintiff must also plead that the defendant subjectively knew that the misstatement or omission was misrepresentative.[4]

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Don’t Let the Door Hit You on the Way Out: Smith v. Robbins (In re IFS Financial Corporation) [1]

Author: A.J. Webb, Articles Editor, University of Cincinnati Law Review

In November 2011, W. Steve Smith traveled to New Orleans, Louisiana, to attend a bankruptcy hearing for IFS Financial, for which he served as a bankruptcy trustee in a chapter seven liquidation.[2] While the hearing lasted only one day, Smith extended his stay by three additional days. This decision ultimately cost him his job as a trustee on all of his bankruptcy cases.[3] The Bankruptcy Court for the Southern District of Texas removed Smith as a trustee under Bankruptcy Code (Code) § 324, a provision that allows the court to remove a trustee for cause after notice and a hearing.[4] The District Court for the Southern District of Texas recently affirmed this decision.[5] The decision by the district court highlights three important issues with regard to bankruptcy trustees. First, it demonstrates the willingness of courts to remove trustees for relatively minor improprieties. Second, it demonstrates the fundamental principle of a trustee’s job in bankruptcy: to protect estate assets and ensure their distribution to creditors. Finally, it raises the question as to whether trustees have a “right” to their job under the Code or the United States Constitution.

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