Business Law Advisory

August 31, 2006

Employers May Arrange for 401(k) Participants to Receive Investment Advice

Under recent amendments to ERISA, employers may arrange for 401(k) participants to receive investment advice.  The investment advice generally must be provided “fiduciary advisers,” which include registered investment advisers, banks or similar financial institutions, and insurance companies.  The fiduciary adviser must provide clear and conspicuous disclosure to the employees about specific matters, including fees and the past performance of available investment options.  Employers have no duty to monitor the specific investment advice given by the fiduciary adviser to employees, but do have a duty to prudently select and periodically review the fiduciary adviser.  The amendments will be effective with respect to investment advice provided after December 31, 2006.  For further information, please contact Karen M. McLaughlin at or 513.651.6199.


If you receive a preference demand letter, don't send the debtor the check just yet.  

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) improved creditors' defenses to preference demands in several ways.  Improvements include venue restrictions on smaller claims, easier means to establish an ordinary course of business defense, increased time in which to perfect a security interest, and limiting preference actions to transfers in excess of $5,000.  For further information, please contact Beth A. Buchanan at or 513.651.6831.


Patent reform legislation recently introduced in both houses of Congress. 

Among the most notable changes in the patent reform legislation recently introduced, would be a shift from the “first to invent” system to a “first to file” system.  Under the current system, where all other conditions are satisfied, patents are awarded to the first to invent; whereas the proposed reform would simplify things by awarding the patent to the first to file a patent application, regardless of who invented first.  Another notable change would be the introduction of a post-grant opposition system, where third parties would have an expanded opportunity to challenge the validity of patents in administrative proceedings at the Patent Office.  For further information, please contact Andrew B. Ulmer at or 513.369.4811.


The Ohio Minimum Wage Initiative - Privacy Concerns

A coalition is collecting signatures to place a minimum wage amendment to the Ohio Constitution on the November 2006 ballot.  The proposed amendment would raise the minimum wage for workers in Ohio from $4.25 per hour to $6.85 per hour, adjusted annually for inflation.  Under the proposed amendment, employers would be required to begin to pay the new minimum wage on January 1, 2007.  Employees under the age of 16, employees of businesses with annual gross receipts of $250,000 or less (adjusted annually for inflation), and employees that receive tips are excepted from the proposed amendment.  The proposed amendment requires employers to maintain detailed records related to employee wages and to provide the information on request to an employee or person acting on behalf of an employee. 

An opposing group has raised concerns about the possible misuse of the requirement to provide pay records, including home addresses, to any person acting on behalf of an employee, which, it is feared, could result in the invasion of an employee’s privacy and identity theft.  Other concerns about the proposed amendment include the onerous nature of the recordkeeping requirements and the inability of the legislature to remedy any unintended consequences of the proposed constitutional amendment.  For further information, please contact Ray Neusch at or 513.651.6704.

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