Joe Nicholas Named 2019 “Lawyer of the Year” for Transportation Law by Best Lawyers

Mazanec, Raskin & Ryder Co., LPA (MRR) is proud to announce that attorney Joseph F. Nicholas, Jr. has been chosen Cleveland’s 2019 “Lawyer of the Year” in Transportation Law by Best Lawyers. Only one lawyer in each practice area from each of the major metropolitan areas in Ohio is honored as “Lawyer of the Year.” Best Lawyers compiles its lists of outstanding attorneys by conducting thousands of confidential peer-review surveys. Lawyers honored as “Lawyers of the Year” have received particularly high ratings by earning the respect of their peers for their abilities, professionalism, and integrity.

Joe is President and Managing Partner of MRR, which has offices in Cleveland and Columbus, Ohio, and Lexington, Kentucky. He has a diverse legal practice with an emphasis on handling commercial trucking (long haul and short haul) and commercial coach carrier matters. His practice also includes the defense of professionals including lawyers, accountants, doctors, dentists, architects and insurance agents and brokers throughout his career.

In addition, he has significant experience litigating bad faith claims as well as defending various third-party matters, including general liability, product liability and construction defects. Joe has an AV Preeminent rating from Martindale-Hubbell Law Directory and was also selected as a Best Lawyer in America for Transportation Law in 2018.

Prior to being named President and Managing Partner in 2012, Joe served as the firm’s Administrative Partner of its Cleveland office from 2000-2012.

Active in a number of professional organizations, he is a member of the Ohio State Bar Association; the Cleveland Metropolitan Bar Association; the Professional Liability Defense Federation (Past Chair of Insurance Agents & Brokers Committee); Claims and Litigation Management Alliance; the Trucking Industry and Defense Association; and Your House Counsel, in which he currently serves as the Group Chair.

MRR Attorneys named to 2019 Best Lawyers in America® list

Mazanec, Raskin & Ryder Co., LPA (MRR) is pleased to announce that nine attorneys have been named to the 2019 Edition of Best Lawyers®, the oldest and most respected peer-reviewed publication in the legal profession. Lawyers on The Best Lawyers in America© list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise.

MRR would like to congratulate the following attorneys named to the 2019 Edition of The Best Lawyers in America© list:

Todd M. Raskin (Cleveland), Civil Rights Law

John T. McLandrich (Cleveland), Civil Rights Law

Thomas S. Mazanec (Cleveland), Product Liability Litigation – Defendants

Joseph F. Nicholas, Jr. (Cleveland), Transportation Law

George V. Pilat (Cleveland), Insurance Law

Elisabeth “Lisa” Gentile (Columbus), Medical Malpractice – Defendants

Stacy V. Pollock (Columbus), Education Law

Barry M. Miller (Lexington), Commercial Litigation; Litigation – Insurance

Casey C. Stansbury (Lexington), Litigation – Insurance

 

About Best Lawyers®

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Over 79,000 leading attorneys globally are eligible to vote, and we have received more than 12 million votes to date on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2016 Edition of The Best Lawyers in America©, 6.7 million votes were analyzed, which resulted in more than 55,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.” For more information, visit bestlawyers.com.

Barry Miller presents A.M. Best webinar “Claims: Cyber Intruders Target the Insurance Legal Community”

Selected by A.M. Best, MRR’s Lexington Partner Barry M. Miller  participated on August 2, 2018 in “Claims: Cyber Intruders Target the Insurance Legal Community” along with three other expert panelists from across the nation.

Click here to view and listen.

New forms of cyber exposure, including new types of fraud, disruption and cyber spoofing, threaten the relationships of insurers and outside legal counsel. Access the link above and listen to Barry and his webinar partners discuss: How firms and cyber experts are responding to the growing range of risks; Which strategies seem most popular among cyber intruders; and How insurers are developing new information-sharing strategies?

Thank you to Carl Cormany for his 17 years of dedication and service!

MRR would like to thank Carl E. Cormany for his dedication and service to the firm over the past 17 years.  Mr. Cormany retired from the practice of law on July 2. His focus was on the defense of claims against local governments and their employees, particularly law enforcement officers, and defense of employment claims against governmental and private entities.

With more than 25 years of legal experience, Carl practiced at all levels of the federal and state courts and in federal agencies including the Equal Employment Opportunity Commission and state agencies such as the Ohio Civil Rights Commission.

“Carl was an integral part of MRR’s success and he will be missed at the firm,” said Todd M. Raskin, Co-Founding Partner of MRR. “We wish him the very, very best as he enters a new chapter in his life!”


MRR Lexington Obtains Big Win in Reversal of Defamation Verdict

Miller

Vessels

Combs

Congrats to MRR Lexington’s Barry Miller, Chrissy Vessels and Tia Combs  for obtaining a reversal of a defamation verdict rendered against its client, R.J. Palmer, stemming from an advertisement Mr. Palmer used in a race for a Kentucky Senate seat.

Case Summary: The opponent, Dr. Ralph Alvarado, had been a vocal critic of legislation in Kentucky intended to limit the prescription of certain narcotic painkillers. Mr. Palmer’s consultant created an advertisement using footage from a court hearing involving a patient of Dr. Alvarado’s, who was in possession of narcotics. The judge in the hearing “clearly expressed her displeasure with Dr. Alvarado,” according to the opinion.

Dr. Alvarado argued at trial that the consultant spliced the courtroom video, presenting certain statements out of order. The Court of Appeals held that the ad still accurately stated the gist of the judge’s remarks. Because the gist was accurate, and because the ad was protected political speech, the Court of Appeals reversed a unanimous jury verdict. It quoted a Kentucky Supreme Court case, holding that “unfettered political discussion is a necessary and fundamental principle of our constitutional system of government, assuring that political decisions will be made through persuasion rather than power.” It also found that the political context of the ad was important. Those who enter politics must understand that “politics ain’t bean-bag,” wrote it, quoting a renowned newspaper columnist.

MRR is proud to have assisted its client in upholding this fundamental principle of constitutional government.

US Supreme Court holds that Cell-Site Data is Generally Protected by the Fourth Amendment

By: Ami Imbrogno

Technology has changed rapidly over the past 50 years.  Indeed, just 15 years ago, most people did not imagine that they would be carrying the entire world wide web in one pocket or purse, or that all of their movements would be tracked via cell phone. As technology has developed, more people have become increasingly concerned about the sheer amount of data that is collected by mobile telephone devices, and how this data could be used to invade their privacy. One of last week’s decisions from the Supreme Court, Carpenter v. United States, addressed how privacy concerns, vast amounts of electronic data, and the Fourth Amendment could intersect.

Eight years ago, a string of robberies took place in Michigan and Northern Ohio. Police obtained phone numbers of some suspects involved in the robberies, and subpoenaed cell-site location information (CSLI) for the numbers, absent a search warrant, which they used as evidence placing Carpenter nearby each of the robberies at the times they occurred.  It is not uncommon for law enforcement to obtain this information, and this type of evidence is sometimes even used in insurance fraud prosecutions.

Under the Stored Communications Act, the police did not need or a warrant supported by probable cause to obtain these records from Carpenter’s cell phone provider, but instead, only needed “reasonable grounds” for believing that the records were “relevant and material to the ongoing investigation.”  Carpenter moved to suppress the CSLI evidence, alleging that it was the product of an illegal search under the Fourth Amendment.  The trial court denied the motion, and the Sixth Circuit affirmed the denial based on a decades-old concept called the “third-party doctrine.”

The third-party doctrine was an eventual product of the Supreme Court’s 1967 landmark decision Katz v. United States.  In Katz, the Court announced the rule that under the Fourth Amendment, a “search” occurs when the government intrudes into a sphere in which one has a reasonable expectation of privacy, so long as society is also prepared to recognize that expectation as reasonable. In Katz, the court determined that one has a reasonable expectation of privacy in a conversation held within a closed telephone booth – a concept that seems foreign to those living in 2018.  Since 1967, Fourth Amendment “search” jurisprudence has been based on Katz. Specifically, in the late 1970s, the Court held in United States v. Miller and Smith v. Maryland that one has no reasonable expectation of privacy in papers or effects that he or she trusts to the hands of a third party – i.e., banking records or records of phone numbers dialed.  Thus, the third-party doctrine was born.

Perhaps recognizing that most people entrust their entire lives to third parties in the digital age (who doesn’t have their emails, schedules, search histories, and location data stored by a third party like Google or Apple?) the Court ruled in Carpenter’s favor and crafted a narrow decision holding that generally, the government’s acquisition of cell-site records constitutes a search under the Fourth Amendment.  Though the records are stored by third parties, cases involving CSLI are inherently different than previous cases involving bank records or dialed phone numbers because they provide a complete picture of a person’s movements for a period extending to five years. And, though CSLI technology was less complete at the time of Carpenter’s arrest and could only provide information about a general area in which a particular mobile device is located, the Court expects that CSLI will only get more precise as technology improves.

The Court was careful to clarify that its decision does not apply to any aspect of technology other than CSLI, and that it was not announcing an opinion relating to security cameras, national security measures, or other forms of technology.  However, Carpenter opens the door for defendants to at least argue that certain types of technological evidence cannot be obtained absent a warrant, if they implicate privacy interests. If the third-party doctrine does not apply to CSLI, to what other types of evidence will courts refuse to apply the doctrine?  What records are so intrusive upon privacy that the third-party doctrine does not apply to them?

Furthermore, the majority opinion in Carpenter was only supported by five of the nine justices.  All four dissenting justices filed separate dissenting opinions.  Justice Gorsuch and Justice Thomas both suggested in their dissents that the Court scrap the “reasonable expectation of privacy” test announced in Katz and consider that the founding fathers originally intended the Fourth Amendment to be a protection of property rights, not a protection of “privacy.” A search would therefore occur when the government searched a person’s “property.”

The ideas set forth by Justice Gorsuch and Justice Thomas were not unlike those espoused by the late Justice Scalia in United States v. Jones (which involved the placement of a GPS tracker on a defendant’s vehicle).  Should these justices persuade other justices to their point of view, or if like-minded justices join the Court, we could see a radical shift in the definition of a “search” under the Fourth Amendment, which would necessitate new rules for when warrants are required prior to a search.

It is also unclear under Carpenter whether police will be able to obtain these records if a third party voluntarily provides them to police, absent solicitation from law enforcement.  Specifically, if an insurance company were to obtain CSLI from a provider, and then the insurance company provides that information to the police absent a police request, will the evidence be available to use in a prosecution of the insured for insurance fraud?  Prior to last Friday, it would be easy to say that the records could likely be used without implicating the Fourth Amendment.  In the wake of Carpenter, however, it is not unforeseeable that a defendant may try to argue that the special character of CSLI bars the police from using the non-solicited records, too.

For the time being, it is clear that under Carpenter, a “search” occurs when the government obtains CSLI.  One must not forget that warrants only need to be obtained for “unreasonable” searches.  The Court did not state how much CSLI data must be sought before a search is considered unreasonable.  In addition, the Court also held that exceptions to the warrant requirement, like exigent circumstances, would still apply to CSLI.

The current best practice for law enforcement in the wake of Carpenter is to obtain a warrant whenever possible when seeking CSLI.  Should the data be needed in exigent circumstances – for example, quickly to save a person’s life – a warrant may not be needed.  However, if an officer has probable cause to support a warrant, and exigent circumstances do not exist, it is best to obtain a warrant, no matter how much data is being requested.  Moreover, law enforcement should not be surprised if searches not backed by warrants are challenged more frequently in courts of law, and may expect to see further changes to the law and procedure down the road.


For more information or questions regarding this article, contact Ami Imbrogno at aimbrogno@mrrlaw.com.

Ami Imbrogno