Client Alerts, News Articles & Blog Posts

Everything you need to know about BMD and the industry.

CLIENT ALERT: Ohio Incentivizes Cybersecurity Measures

On November 2, 2018, Ohio’s Data Protection Act (“DPA”) went into effect.  The DPA incentivizes Ohio businesses to proactively address cybersecurity and data protection by providing an affirmative defense/safe harbor for claims related to data breach. However, the safe harbor is only applicable if the organization can prove “reasonable compliance” to the DPA.

Brennan Manna Diamond (“BMD”) can assist your business by creating written policies that demonstrate compliance with Ohio law in the spirit of the DPA.  Additionally, BMD can educate your organization as to implementing and adhering to those policies.

The DPA is the culmination of Ohio’s efforts to foster a legal, technical, and collaborative cybersecurity environment to help businesses thrive. The only way to reap this benefit is to meet its requirements.

How to Comply

Any organization maintaining personal information of Ohio residents can be subject to Ohio’s breach notification laws and potential civil liability for data breach compromising such information.  The DPA rewards proactivity vs. reactivity by incentivizing businesses to implement policies and procedures to protect the security and confidentiality of personal/restricted information, protect against any anticipated threats or hazards to the security or integrity of the personal/restricted information and protect against unauthorized access of information that is likely to result in a material risk of identity theft or other fraud. Businesses should take the following steps:

  • Businesses must determine “reasonable” security measures. Such analysis must consider:
    •  The size of the business;
    • The nature, sensitivity and use of information;
    • The resources available to the business; and
    • The cost to implement and maintain the reasonable security measures to protect against a breach of security relative to the business’ resources.
  • Businesses must implement a cybersecurity framework and the DPA recognizes certain existing frameworks of which businesses can utilize in order to qualify for safe harbor. These include:
    • Industry recognized cybersecurity frameworks, (i.e., those recommended by administrative bodies, like the National Institute of Standards and Technology (NIST);
    • Regulatory frameworks required by federal or state law (i.e., HIPAA, Gramm-Leach-Bliley); or
    • A framework that combines the payment card industry (PCI) data security standard with a current version of an applicable industry recognized cybersecurity framework.
  • Businesses must create and maintain written cybersecurity policies and procedures. Such policies and procedures must contain administrative, technical, and physical safeguards for the protection of personal/restricted information.
  • Businesses must periodically review changes in regulations and framework updates and must likewise update its cybersecurity program.

BMD's Solution

In addition to implementing industry standard cybersecurity frameworks, prudent businesses will create and maintain written policies as it relates to cybersecurity and data protection. BMD can assist in crafting the policies and identifying proper security frameworks so that your business qualifies for the safe harbor. The Ohio legislature was mindful not to be hyper-technical with the regulations so that businesses can still qualify for the safe harbor by demonstrating reasonable efforts to comply. BMD can help navigate these regulations.

In today’s ever-changing cybersecurity landscape, data breaches are at times, inevitable. BMD can also provide post-breach solutions including meeting applicable reporting requirements and litigation defense. As now enacted by Ohio, perhaps the best defense involves proactively investing in front end compliance.

For more information, please contact Brandon T. Pauley. 

CLIENT ALERT: Construction Law Update: Communication is Key! And Other Lessons Learned From A Recent Public Project Court Decision

In a recent decision, the Ohio Court of Claims entered a $2.2 million judgment in favor of the general trades contractor, and against a public university, in connection with an on-campus renovation project. Mid American Construction, LLC v. Univ. of Akron, Ct. of Cl. No. 2016-00685JD, 2018-Ohio-4513.

CLIENT ALERT: Update on Discrimination

The “#metoo” presence and the recent Kavanaugh confirmation hearings have brought sexual discrimination issues to the forefront of the American mind. Always an incendiary and confusing topic, it also includes various permutations of issues involving sex, sex stereotyping, sexual orientation, and transgender situations.

CLIENT ALERT: Ohio Supreme Court Rules that a Subcontractor's Construction Defects are Not a Covered "Occurrence" Under a CGL Policy

Although a growing number of states have held that CGL policies provide coverage for damages caused by the defective work of subcontractors, the Ohio Supreme Court has refused to join the national trend. In Ohio N. Univ. v. Charles Constr. Servs., Inc., 2018-Ohio-4057, the Ohio Supreme Court recently ruled that a subcontractor’s faulty workmanship is not a covered “occurrence” under a typical CGL policy.

CLIENT ALERT: Taxpayer Passport Application will be Denied Due to Unpaid Taxes

In late 2015, Congress passed The Fixing America’s Surface Transportation Act (FAST) into law. This law allows the IRS and State Department to refuse to issue a Passport if the taxpayer has a seriously delinquent tax debt. The law also permits the IRS and State Department to revoke a taxpayer’s Passport for these same delinquent tax debts. To be considered a seriously delinquent tax debt, the tax debt must total more than $51,000.

CLIENT ALERT: New Opportunity Zone Incentives Promise to Spur Economic Development

Created as part of the recently passed Tax Cuts and Jobs Act, “Opportunity Zones” are designed to encourage long-term investments in underserved communities. By offering tax benefits to private investors who choose to invest their capital at the nexus of need and opportunity, the program supports a broad array of investments and offers opportunity for creative problem-solving strategies to address community needs. The program offers investors tiered tax benefits depending on the term of the investment, including a temporary deferral and partial reduction of unrealized capital gains, as well as the potential to exclude all future appreciation on the investment. The program is designed to tap into the estimated $6T+ of unrealized capital gains held by U.S. individuals and companies by incentivizing investors to re-invest that capital in low-income communities to spur economic development and job creation.