KMK Law Complex Litigation Blog

Just before the end of 2022, the Ohio Supreme Court decided the case TWISM Ents., L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors. In TWISM, the Court took steps similar to those taken by the United States Supreme Court when chipping away at the Chevron doctrine by limiting the scope and power of the rule that courts should defer to an administrative agency’s interpretation of a statute when the administrative agency is tasked with enforcing that statute.

Getting a trial court to rethink its prior decision is a steep climb. The United States Supreme Court’s decision in Kemp v. United States, issued June 13, 2022, makes achieving such outcomes easier in one sense, but more difficult in another.

Asking an appellate court to reconsider its decision is rarely going to be successful. Even less likely to be successful is the argument that the appellate court addressed the issues and considered the evidence and facts, but simply got it wrong. But a recent Ohio Supreme Court decision gives hope for a narrow band of motions in which the litigants argue just that.

The Supreme Court’s recent opinion in TransUnion LLC  v. Ramirez will have a significant impact in alphabet and data breach litigation specifically and class action litigation generally.  We talk about the TransUnion opinion in more detail in the attached Legal Alert.  Anyone who is involved in class action litigation should become familiar with the case as the latest Supreme Court opinion to impact the class action litigation landscape.

On December 8, 2020, the Associated General Contractors of America, Inc. (“AGC”) filed suit in the United States District Court for the District of Columbia against the Small Business Administration (“SBA”) and Office of Management and Budget (“OMB”).[1] The lawsuit seeks declaratory and injunctive relief prohibiting the SBA from using a “Loan Necessity Questionnaire” to collect information from borrowers who received Paycheck Protection Program (“PPP”) loans in excess of $2 million.

During the summer, Ohio Governor Mike DeWine and the Ohio Liquor Control Commission instituted new rules governing alcohol sales.  The emergency measure, intended to combat the spread of COVID-19, mandated that all alcohol-serving establishments cease alcohol sales at 10 p.m.^[1]  The primary targets of the order were bars and restaurants which, according to the Governor, had contributed to outbreaks in Cleveland, Columbus, and Toledo.^[2]  Customers could be served until 10 p.m., but had until 11 p.m. to finish their drinks.

The last-call order was to remain in effect for 120 days ...

As part of the next phase of Healthy at Work/Reopening Kentucky, Kentucky restaurants have begun reopening for dining, while bars are not slated to reopen until June 29, 2020.  In addition to complying with Kentucky’s general Healthy at Work requirements, Kentucky restaurants must also comply with specific social distancing and other requirements. Most notably, restaurants must limit their indoor dining capacity to 33%, and not only are party sizes limited to 10 people, but persons not living within the same household should not permitted to sit at the same table. Restaurants should also maximize their use of outdoor seating. Restaurants must also maintain 6 feet of space between seated customers, i.e. no person can be within 6 feet of a person seated at another table.

As part of the next phase of Responsible RestartOhio, Ohio restaurants and bars have begun reopening for outdoor patio dining, with inside dining to resume on May 21, 2020. While continuing to comply with food safety and sanitation guidelines, and after instituting special protocols for employees during weeks of carryout-only operations, restaurant and bar owners are now faced with the challenge of enforcing social distancing requirements as the number of diners increases and the risk of crowds forming at their premises rises. Current steps restaurants and bars must take with respect to customers include:

This past month, the Supreme Court avoided providing guidance on “cy pres” class-action settlements—instead, it reaffirmed the importance of its Spokeo decision (Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)) in class action jurisprudence and deferred the complicated cy pres issues for another day.  See Frank v. Gaos, 139 S. Ct. 1041 (2019).[1]

The Court had granted review in Frank to review whether so-called “cy pres” class-action settlements—settlements that distribute monetary relief to public interest organizations instead of the plaintiffs—are proper ...