By:  Shila J. Nalawadi, Esq.

This issue of the Advisor offers articles on very different subject matter covering both business and personal concerns.  For business clients of Buckingham Cleveland^SM, attorneys Robert Hager and Jay Ballard describe a new service in their article, “The No-Cost Legal Check-Up.”  Next, Buckingham Cleveland^SM attorneys David Drechsler and Ryan Morley discuss the importance of protecting a crucial business asset—customer information—in “Employers Should Take Measures to Protect Customer Information.”  The final two articles in this edition address topics more personal in nature but just as important.  In “Health Care Decisions: Advance Directives,” attorneys Dianne Blocker Braun, Buckingham Canton^SM, and Christopher Gagic, Buckingham Boca Raton^SM, explain how advance directives can help you and your loved ones.  Finally, attorney Lawrence Friedlander, Buckingham Cleveland^SM, provides useful information about the interplay between Social Security Disability and retirement.  This issue also congratulates the Buckingham attorneys listed in the 2005-2006 edition of Best Lawyers in America^®.  I hope that you find this issue of the Advisor informative and useful.  If you would like to see a specific legal topic addressed in the Advisor, please call or email me.

Shila Nalawadi is an Associate attorney and member of the Health & Medicine Practice Group.  She can be contacted at snalawadi@bdblaw.com or 330.491.5238.

Employers Should Take Measures To Protect

Customer Information  

By: David L. Drechsler, Esq. and Ryan J. Morley, Esq.

A business’s customer information is almost always of economic value, as is any other type of trade secret. To have its customer information treated as a trade secret in a possible lawsuit, however, an employer must put “reasonable” protective measures into place. The use of these procedures helps shows that the customer information is intended to be secret and properly qualifies it as a business asset.

In 1999, the Ohio Supreme Court in Siegel v. Arter & Hadden, 85 Ohio St. 3d 171, held that a customer list is presumed to be a secret when the owner takes measures designed to prevent it, in the ordinary course of business, from being available to persons other than those selected by the owner to have access to the information for formative purposes.  The statute to which the Court referred defines a trade secret as, 

Information, including the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation, program, device, method, technique, or improvement, or any business information or plans, financial information, or listing of names, addresses, or telephone numbers, that satisfies both of the following: 

(1)      it derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use;

(2)      It is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. 

The Siegel Court held that the employer’s customer list merited trade secret protection because the employer maintained the list on a computer in a password-protected file; kept copies of the customer list in a filing cabinet that was often locked; and most likely told its employees that the customer list was confidential and could never be removed from the office.  The Court found these secrecy measures to be reasonable.

Since Siegel, numerous courts have ruled on whether a customer list is entitled to trade secret protections under Ohio law.  More often that not, the determination hinges upon the efforts made by the employer to maintain the secrecy of the customer list.  Three appellate court decisions since Siegel provide guidance.  In the Third Appellate District Court case, Hildreath v. Hildreath, (2003), the Court found that the employer’s information was readily available to outside sources because nearly all of the employer’s customers were members of an industry association. The association published both a list of its members and information similar in content to the employer’s customer list.  As a result, the Court ruled that even if the employer had taken reasonable measures to protect the information, it would not be protectable trade secret information.  The Court explained that the measures the employer took were not adequate in any regard.  The employer locked the building when it was closed, had a receptionist, and equipped the front door with a buzzer to alert office personnel when someone entered the building.  The Court stated that these measures were not enough protection to qualify the customer list as a trade secret.  According to the Court, appropriate protections should include having employees sign non-disclosure agreements, designating confidential information with “confidential” markings, and limiting the information to those with a need to know.

In the case of J.J. Orr & Associates, Inc., d/b/a That Paper Guy v. Weinshenk, (2004), the Ninth Appellate District emphasized the importance of maintaining the secrecy of customer information by limiting computer information to those with a need to know, having the information password-protected, maintaining customer lists or other information in a locked filing cabinet, designating the information as confidential, and not removing it from the office.  In J.J. Orr, the employer took the position that the customer list was valuable (which the Court did not dispute), and that it should be protected since the employee took the information to a competitive business.  Because the employer did not take reasonable steps to protect the information, however, the Court ruled in favor of the employee.

The First Appellate District in Kenneth Box Company v. Riemeier Lumber Company (2000) also describes some measures that can be taken to qualify customer lists as trade secrets.  The Court explained that reasonable efforts include limiting the distribution of the information to the necessary employees and informing employees of the value and confidentiality of the information. 

The bottom line is that while customer information can be extremely valuable and, in some cases, the backbone of a company, that fact alone will not provide an employer with trade secret protection even if an employee intentionally takes the information.  It is imperative to take appropriate measures to safeguard the information so that if an employee does misappropriate it, a court can find in your favor. 

David Drechsler is a Shareholder in the Litigation Practice Group of Buckingham, Doolittle & Burroughs, LLP.  He can be reached at ddrechsler@bdblaw.com or 216.615.7344.

Ryan Morley is a Associate in the Litigation Practice Group of Buckingham, Doolittle & Burroughs, LLP.  He can be reached at rmorley@bdblaw.com or 216.615.7338.

By: By: Dianne Blocker Braun, Esq. and Christopher Gagic, Esq.

Each state has laws governing Advance Directives. Our Florida clients can use a combined form entitled Living Will and Designation of Health Care Surrogate.  Ohio clients can create a Health Care Power of Attorney, a Living Will, or both documents.  Ohio (as well as other states) has developed model forms, which are recommended for use.  Florida’s statute provides guidance to practitioners but there is no formal model for use in Florida.  Using standard forms is helpful as medical providers familiar with their state forms are less likely to delay matters by having legal counsel review an unfamiliar document.   Once valid Advance Directives are in place, medical providers in other states should honor them.  Still, we advise clients moving to a different state, to consider signing that state’s model Advance Directive (or use documents that reflect that state’s statutory provisions).  If the client is no longer competent to execute new Advance Directives, existing documents should still be honored.

Certain restrictions do exist, limiting what a Surrogate/Agent can do.  In Ohio, unless the treating physician and a second physician have determined that the patient is in a terminal condition (suffering from an irreversible, incurable and untreatable condition caused by disease, illness, or injury) or is permanently unconscious (to a reasonable degree of medical certainty the condition is irreversible; the individual is unaware of his or her being and environment and has total loss of cerebral cortical functioning, resulting in a loss of capacity to experience pain or suffering), the Agent cannot:  (i) withdraw life-sustaining treatment, (ii) withdraw treatment given to provide comfort care or relieve pain; (iii) refuse care if that care would terminate a patient’s pregnancy unless there is substantial risk to the patient; (iv) withdraw treatment supplying artificial nutrition or hydration unless that treatment will not longer provide comfort or relieve pain; and, (v) if the patient previously consented to care, withdraw that care unless the patient’s condition has significantly changed so that the care is less beneficial or is not achieving the purpose the patient had intended.

In either Ohio or Florida, if a patient who signed a Living Will is in a terminal condition or is permanently unconscious, the Surrogate/Agent cannot override the directives the patient set forth in a Living Will.  Even though the Surrogate/Agent has the power to withdraw life support and, under limited circumstances, to direct the withdrawal of a feeding tube, those powers are suspended when there is a Living Will directing that such care be continued.

Alternatively, a Surrogate/Agent may want to continue life support, but if the patient signed a Living Will that directs the withdrawal of such care, the Surrogate/Agent cannot override the directive in the Living Will.

Dianne Blocker Braun is a Partner in the Trusts & Estates Practice Group of Buckingham, Doolittle & Burroughs, LLP.  She can be reached at dbraun@bdblaw.com or 330.491.5222.

Christopher Gagic is a Associate in the Trusts & Estates Practice Group of Buckingham, Doolittle & Burroughs, LLP.  He can be reached at cgagic@bdblaw.com or 561.995.2998.

By: Lawrence Friedlander, Esq.

Individuals who are approaching retirement have a number of financial issues to consider. Social Security benefits form a significant part of many people’s retirement income; therefore, it is vital to be aware of the changing circumstances under which individuals of different ages become eligible for this benefit. The Social Security Act provides for two levels of payment: Those who take early retirement at age 62 receive a lower level of benefits, and the higher benefit level is paid to those who take general retirement, which is available at increasingly higher ages depending on year of birth. Individuals planning to retire early (based on their age category) should consider whether they might be found to be disabled within the meaning of the Social Security Act, thus qualifying themselves to draw benefits equivalent to a full retirement.

As many of us know, the age of retirement for Social Security was originally set at age 62 for early retirement and at age 65 for general retirement. The age of general retirement continues to be modified, however, with each successive year pushing back the age of general retirement in increments of six months.  For example, if you were born between the years 1943 and 1954, your full retirement age is 66.  Early retirement remains the same (age 62 years) but results in total monthly benefits being reduced by 25% for four years, until the age of 66 is reached. Qualifying for disability enables the individual to draw full retirement benefits before age 66, and also to become eligible for Medicaid. Therefore, a person with significant medical problems who is considering retirement before age 66 should consider whether the severity of his or her condition warrants a filing for disability under the Social Security Act.

The rules and regulations of the Social Security Act outline the circumstances under which an individual can be found to be disabled. The physical or mental limitations must have lasted, or be expected to last, at least one year (there is no partial disability under Social Security).  The disabilities must preclude any substantial gainful activity based on age, education, and transferable skills. 

The issue of disability is complex since Social Security will take into consideration multiple medical and psychological problems that affect both exertional and non-exertional activities.  Also, Social Security takes into consideration past job experience, education, and a category known as “transferable skills” to determine whether the applicant is capable of returning to a job that requires heavy, medium, light or sedentary activities and whether substantial, gainful jobs of this type exist in sufficient numbers

Although the process of applying for disability at Social Security seems simple, care must be taken to get the necessary medical records, test results and medical opinions in advance. Making a full presentation at the initial application level will help avoid denial and the need to go through a lengthy appeal process, which can last from a few months to over a year.   During this period, if the claimant is without work and without any source of income, both the claimant and claimant’s family can experience a tremendous hardship.

It therefore becomes vital to consult with the individual’s medical providers (and, if necessary, obtain vocational expertise) and with legal counsel in determining whether an application for disability benefits is justified. These advisors can help the individual decide what information would provide the best chances for obtaining Social Security disability.

The cost of attorney representation is governed by the Social Security Act and is subject to the review by the Social Security Administration.  If you have any questions concerning eligibility, I encourage you to contact a specialist in Social Security disability.

Lawrence Friedlander is a partner and member of the Litigation and Workers’ Compensation practice groups.  He can be reached at lfriedlander@bdblaw.com or at 216.615.7358.