Cavitch Familo & Durkin, Co., L.P.A. FindLaw IM Template2026-09-16T09:10:00Zhttps://www.cavitch.com/feed/atom/WordPress/wp-content/uploads/sites/1603528/2022/05/cropped-cavitch-site-icon-32x32.jpgby James Disantis<![CDATA[When Does it Make Sense to File a 706 for Portability?]]>https://www.cavitch.com/?p=2576112026-08-31T19:57:28Z2026-08-31T14:43:04Zby Michael Rasor<![CDATA[M&A NDA Guide: Why Every Buyer Should Have a Non-Disclosure Agreement First]]>https://www.cavitch.com/?p=2575582026-08-05T16:59:12Z2026-08-24T13:00:06ZCustomarily, the seller is the party who insists on a non-disclosure agreement prior to M&A talks heating up.
But what should you do, if you’re the buyer and the seller has not produced a Non-Disclosure Agreement (NDA) for signature, whether for lack of sophistication, carelessness, or being rushed? You should insist on an NDA yourself.While parties assume that the NDA serves only the target company, a sophisticated buyer should be equally—if not more—insistent on executing a robust, properly drafted NDA.Why? Because, if the target company’s proprietary technology, source code, customer lists, or manufacturing processes lose their legal status as "trade secrets" during due diligence, then the buyer ends up purchasing compromised assets. Most trade secrets law (state and federal) protects proprietary information only if the owner takes "reasonable measures under the circumstances" to maintain its secrecy. If a target company shares its most sensitive operational secrets with a prospective buyer (as well as the buyer’s advisors, accountants, and lenders) without a binding NDA in place, that disclosure can be treated in court as a failure to maintain reasonable secrecy.How does this play out? Assume the buyer acquires a technology firm. Six months after closing, an employee leaves, steals a key algorithm, and launches a competing product. The buyer files suit under the DTSA. The defense demonstrates that, during the pre-closing M&A process, the target company disclosed the algorithm to your deal team without a strict NDA. The court could rule that the secret lost its legal protection prior to the acquisition due to unprotected disclosure—leaving you without a trade-secrets remedy. Of course, this is not to say that the buyer should draft a seller-friendly NDA. Rather, the NDA should do the bare minimum to retain trade-secrets protection, without going overboard on remedies to the seller—particularly where the buyer and seller compete in the same market. In fact, the buyer’s counsel should insist upon notice and cure periods, heightened standards of proof of misappropriation, and clear-cut freedom-to-operate clauses within the NDA, with venue clauses and fee-shifting to deter a litigious and potentially angry seller if the buyer needs to walk.The NDA operates as an essential structural tool that preserves the underlying legal value of trade secrets being acquired. Without it, the deal process itself risks destroying the trade secrets that generated the company's value in the first place.To discuss your M&A strategy or protect your rights in an upcoming transaction, contact Michael R. Rasor and the attorneys at [nap_names id="FIRM-NAME-1"] today.]]>On Behalf of Cavitch Familo & Durkin Co., L.P.A.<![CDATA[15 Cavitch Attorneys Named to 2027 Best Lawyers List]]>https://www.cavitch.com/?p=2575572026-08-05T15:03:04Z2026-08-20T13:00:47Z[nap_names id="FIRM-NAME-1"] is pleased to share that fifteen of its attorneys have been recognized in the 2027 edition of The Best Lawyers in America®. This recognition is based on a confidential peer-review process where other leading lawyers evaluate the professional abilities of their colleagues within the same geographic region and practice area.
Attorneys Included on Best Lawyers List
Thirteen Cavitch attorneys were selected for inclusion in the 2027 edition of The Best Lawyers in America®. This list highlights top legal talent across the nation. The recognized attorneys are:
The inclusion of these attorneys reflects their performance and dedication to their respective legal fields.
Two Attorneys Named "Ones to Watch"
Two Cavitch attorneys are featured in the 2027 edition of Best Lawyers: Ones to Watch. This award identifies attorneys who are earlier in their careers but have already shown outstanding professional excellence. The recognized attorneys are:
This recognition highlights Martinson and Maruna's significant contributions to the legal community. Please join us in congratulating all our recognized attorneys.]]>by Bradley Somogyi<![CDATA[Ohio House Bill 446: A Comprehensive New Framework for Trust Protectors – What It Could Mean for Your Estate Plan]]>https://www.cavitch.com/?p=2576102026-08-10T16:22:35Z2026-08-10T16:22:35ZOhio Law Already Recognizes Protector-Like Roles
HB 446 would not introduce the concept of a trust protector to Ohio for the first time. Since 2013, Ohio Revised Code Section 5808.08 has expressly allowed a trust to give a trustee or another person the power to direct the modification or termination of the trust. That statute also provides that, unless the trust says otherwise, a nonbeneficiary holding a power to direct is presumptively a fiduciary who must act in good faith with regard to the trust's purposes and the beneficiaries' interests.
Ohio Revised Code Section 5815.25 likewise already addresses directed-trust arrangements. It generally protects an “excluded fiduciary” from liability for losses resulting from compliance with an authorized direction and relieves that fiduciary from certain investment-review obligations when investment authority has been assigned to someone else.
The important point, therefore, is not that HB 446 would recognize trust protectors for the first time. Rather, it would replace Ohio's current handful of general rules with a comprehensive operating code governing a protector's powers, duties, liability, appointment, removal, compensation, communications, and relationship with the trustee.
What Is a Trust Protector?
Under the proposed Act, a “protector” would be a trust officeholder, other than a trustee, who holds a power of direction under the terms of the trust. The definition applies regardless of whether the trust uses the title “protector,” “advisor,” “director,” or something else.
A protector's role is determined by the trust instrument. HB 446 would not automatically give every protector every power listed in the statute, and it would not add a protector to a trust that does not provide for one. Instead, the Act supplies rules for powers that the trust's creator chooses to grant.
Powers a Trust Could Grant
Depending on the language of the trust, a protector's powers could include the authority to:
Direct trust decisions: issue binding directions concerning investments, administration, or distributions, or approve or veto proposed actions.
Change trust officeholders: appoint or remove trustees, investment advisors, or other trust officeholders, subject to special rules when the drafting attorney serves as protector.
Modify the trust: amend provisions to address tax-law changes, preserve favorable tax treatment, or respond to changed beneficiary circumstances.
Adjust beneficial interests: increase or decrease beneficiary interests, add or remove beneficiaries, or modify powers of appointment if the trust grants that authority.
Address administrative issues: change the trust's situs or governing law, make binding interpretations, add or remove administrative powers, or terminate the trust.
These are potentially significant powers. Careful drafting is essential because the trust instrument—not the title “trust protector”—determines which powers the protector actually holds and the standards governing their exercise.
Fiduciary Status and Liability
HB 446 would continue and refine, rather than create, Ohio's existing fiduciary presumption. Under the proposed Act, a protector would be a fiduciary unless the trust expressly provides otherwise. The trust could also make a protector a fiduciary for some powers but not others, allocate different powers among multiple protectors, and establish different standards of liability for different responsibilities.
When acting as a fiduciary, a protector generally would be subject to the same fiduciary obligations and limitations that would apply to a trustee holding the same power. When acting in an authorized nonfiduciary capacity, the protector generally could act in the protector's sole and absolute discretion. Even then, however, the trust could not eliminate liability for the protector's willful misconduct or self-dealing.
The House-passed bill also contains several safeguards. A protector could not use a power of direction to engage in self-dealing, solely benefit the protector apart from permitted compensation, or exculpate a trust officeholder from liability for that officeholder's willful misconduct. Unless the trust expressly provides otherwise, a protector also could not compel a distribution to or for the protector's own benefit.
Directed Trusts and Trustee Liability
One of HB 446's most consequential features is its detailed allocation of responsibility between a protector and the trustee or other officeholder receiving a direction. After actually receiving a trust directive, the officeholder generally must take reasonable steps to implement it. The officeholder may presume that the directive is valid, rely on information provided by the protector, ask for clarification, and require a verbal directive to be put in writing.
The directed officeholder generally would not be liable for implementing or complying with the directive unless the officeholder's own conduct constitutes willful misconduct. The bill also provides that trustees and protectors generally have no duty to monitor or supervise one another, warn beneficiaries that another officeholder might have acted differently, or second-guess decisions outside their assigned roles. They would, however, have limited duties to share information reasonably related to one another's powers and responsibilities.
Who Could Serve as Protector?
Generally, any person could serve as protector so long as that person is not concurrently serving as trustee of the same trust. If one instrument creates multiple separate trusts, a person could serve as trustee of one trust and protector of another.
HB 446 would impose additional safeguards when the attorney who prepared or supervised execution of the trust—or a person related to that attorney—is appointed as protector. Unless an exception applies, the attorney would have to make specified disclosures concerning alternative appointees, protector compensation, additional legal fees, and removal powers, and the settlor would sign a separate written acknowledgment. A drafting attorney serving as protector also could not remove a trustee without petitioning a court and showing good cause.
Why Might a Trust Include a Protector?
A protector can be valuable when a trust is expected to continue for many years or hold assets requiring specialized oversight. Depending on the plan, a protector may provide:
Tax flexibility: authority to respond to future changes in federal or state tax law without requiring a full court proceeding.
Adaptability: a way to respond to marriages, divorces, births, disabilities, substance-use issues, or other material changes in beneficiary circumstances.
Administrative continuity: a mechanism to replace an unsuitable trustee, resolve ambiguities, or change the trust's situs or governing law.
Specialized decision-making: the ability to assign investment, business, tax, distribution, or family oversight to the person best suited for that responsibility.
A protector is not necessary for every trust. Broad amendment, beneficiary, or removal powers can also create complexity, tax concerns, family conflict, and additional administrative expense. The protector's identity, powers, fiduciary status, succession, and compensation should therefore be tailored to the particular plan.
What HB 446 Could Mean for Existing Estate Plans
As passed by the House, the proposed Act generally would apply to trusts whenever created if they are wholly or partly administered in Ohio or governed by Ohio law, subject to the trust's terms and constitutional limitations. That does not mean the Act would insert a protector into every existing trust or grant new powers that the document does not contain.
Because HB 446 remains pending, most clients do not need to make immediate changes solely because of the bill. If it is enacted, however, individuals creating or reviewing long-term trusts may wish to consider whether a carefully designed protector provision would improve flexibility, clarify responsibility, or reduce the need for future court involvement.
At Cavitch, we will continue monitoring HB 446 as it moves through the General Assembly and evaluating how any final legislation may affect both new and existing estate plans.
If you have questions about HB 446, trust protectors, directed trusts, or whether your estate plan should be reviewed, please contact Bradley Somogyi, Esq. at 216.621.7860 or bsomogyi@cavitch.com.]]>by Katherine Mangan<![CDATA[Planning for Tomorrow: Is a Third-Party Supplemental Needs Trust Right for Your Family?]]>https://www.cavitch.com/?p=2574412026-07-29T16:35:07Z2026-07-29T16:33:39ZUnderstanding The Basics Of A Third-Party Supplemental Needs Trust
A third-party supplemental needs trust differs from other types of special needs trusts because it is funded with assets belonging to someone other than the beneficiary. Parents, grandparents, siblings, or other family members can establish and fund the trust to provide for a loved one with a disability, either during their lifetime or as part of their estate plan.
For many families, a third-party supplemental needs trust is an important long-term planning tool. Rather than leaving an inheritance directly to a loved one with a disability, assets can be directed into the trust upon the death of the person creating the estate plan. The trust assets are then managed by a trustee for the beneficiary's benefit and may be used to pay for supplemental expenses that improve the beneficiary's quality of life, while helping preserve eligibility for government benefits. This approach allows families to provide financial security for a loved one without unintentionally affecting the public benefits on which they may rely.
The Importance Of A Third-Party Supplemental Needs Trust
Planning for the future of a loved one with a disability often means preparing for uncertainties that extend well beyond your own lifetime. Families naturally want to ensure that their loved one will continue to receive the care, financial support, and opportunities they deserve while preserving access to essential public benefits. A third-party supplemental needs trust provides peace of mind by creating a structured plan for managing and distributing assets in a way that complements, rather than replaces, government assistance.
Unlike relying on family members to manage an inheritance informally or hoping government benefits alone will meet a loved one's needs, a third-party supplemental needs trust allows a trusted trustee to manage assets specifically for the beneficiary's supplemental needs. The trust can be used to enhance the beneficiary's quality of life by paying for expenses not covered by public benefits.
A third-party supplemental needs trust also offers significant planning advantages. There are no contribution limits or asset caps on the trust itself, allowing families to transfer substantial assets for the beneficiary's future care. Equally important, because the trust is funded with assets belonging to someone other than the beneficiary, it is not subject to a Medicaid payback requirement upon the beneficiary's death. Instead, any remaining trust assets may be distributed to the family members, charities, or other beneficiaries designated by the person who created the trust, allowing the family's legacy to pass according to their wishes.
If a third-party supplemental needs trust sounds like it may benefit your family, we encourage you to contact the attorneys at [nap_names id="FIRM-NAME-2"]. We would be happy to discuss your circumstances and help you determine whether this planning tool is the right fit for your estate plan and your loved one's future.]]>On Behalf of Cavitch Familo & Durkin Co., L.P.A.<![CDATA[Ten Cavitch Attorneys Recognized on the 2027 Ohio Super Lawyers Lists]]>https://www.cavitch.com/?p=2574402026-07-28T18:07:41Z2026-07-28T18:07:41Z
Six Cavitch attorneys were named to the Ohio Super Lawyers list.
Four Cavitch attorneys were named to the Ohio Rising Stars list.
This achievement underscores our commitment to providing clients with high-caliber legal representation. We commend our recognized attorneys for their dedication and professionalism that led to this distinction.
Ohio Super Lawyers List
The selection process for the Ohio Super Lawyers list is rigorous, with no more than five percent of the state's attorneys receiving this designation each year. Congratulations to the following Cavitch attorneys:
The Ohio Rising Stars list recognizes exceptional attorneys who are either 40 years old or younger or have been in practice for 10 years or less. Only 2.5 percent of eligible attorneys in the state are named to this list annually. Congratulations to:
Super Lawyers is a rating service that selects outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made through a patented multi-phase process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area. The lists are published nationwide and are designed to be a credible, comprehensive resource for identifying exceptional attorneys.]]>by José Valdez<![CDATA[How to Minimize the Risk of Copyright Litigation: A Guide to Fair Use]]>https://www.cavitch.com/?p=2573452026-07-20T15:11:10Z2026-07-20T15:11:10Z17 USC § 106, a copyright owner has the exclusive right to reproduce, prepare derivatives, and distribute copies for sale of copyrighted works. For literary, musical, dramatic, choreographic, motion picture, or other audiovisual works, the copyright owner also has the exclusive right to perform and display the work publicly. Those rights can last a long time. In many cases, copyright protection extends for the life of the author plus 70 years under 17 U.S.C. § 302.
These rights are not without teeth, as US copyright law provides for severe penalties for copyright infringement. These penalties consist of actual damages or statutory damages. Under 17 USC § 504(b), a copyright holder is entitled to their actual and real loss or injury resulting from a violation or infringement. For example, if a musician whose song is uploaded and sold illegally online, the musician is entitled to lost sales or streaming revenue.
On the other hand, a copyright holder may choose to receive statutory damages instead. Under 17 USC § 504(c), the statutory penalties may range from $750 to $30,000 per infringement, and may increase to as much as $150,000 for willful infringement. Willful infringement may also expose an infringer to criminal penalties under 17 U.S.C. § 506 and 18 U.S.C. § 2319.
The Digital Millennium Copyright Act also reshaped copyright enforcement for the internet era by creating notice-and-takedown procedures for online service providers. This is the mechanism through which copyright owners can request a takedown of YouTube videos that use their work.
But U.S. copyright law recognizes the need to promote the progress of science and useful arts. In 1976, Congress codified the long-standing judicial doctrine of fair use into law as 17 USC § 107.
Under 17 U.S.C. § 107, fair use may permit limited use of copyrighted material for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Courts evaluate fair use by considering several factors, including the purpose and character of the use, whether the use is commercial or nonprofit educational, the nature of the copyrighted work, the amount used, and the effect of the use on the potential market for the original work.
These factors are not applied mechanically, and the list is not exhaustive. The Sixth Circuit has recognized that courts consider the statutory factors in context, including whether the challenged use is commercial. NRA of Am. v. Handgun Control Fed’n of Ohio, 15 F.3d 559, 561 (6th Cir. 1994).
A key question is whether the new use is transformative, rather than merely substituting for the original.. The Supreme Court has described “transformative” as adding something new and important to a copyrighted work. Google LLC v. Oracle Am., Inc., 593 U.S. 1, 29 (2021). For example, the Supreme Court highlighted that the use of an advertising logo is fair use if it is used to make a comment about consumerism. Id. Further, parodies are transformative because they comment and criticize the original even if it mimics the original. Id. at 30.
Because copyright disputes are highly fact-specific, individuals and businesses should carefully evaluate their use of copyrighted material before copying, reposting, adapting, distributing, or monetizing another’s work. Taking proactive steps, such as obtaining permission, securing an appropriate license, or conducting a fair use analysis, can help reduce the risk of infringement claims. Particular attention should be given to whether the use aligns with one or more of the purposes identified in 17 U.S.C. § 107, such as criticism, comment, news reporting, teaching, scholarship, or research, and whether the use is sufficiently transformative to add new meaning, purpose, or character to the original work. A thoughtful assessment of these factors before publication or distribution can be an important safeguard against costly copyright litigation.
Before you publish, share, or monetize content containing third-party works, consider making sure your assets are legally secure. Contact Jose Mendez Valdez and the attorneys at [nap_names id="FIRM-NAME-2"] to schedule a comprehensive fair use analysis and help minimize the risk of costly copyright litigation.]]>On Behalf of Cavitch Familo & Durkin Co., L.P.A.<![CDATA[Cavitch Shareholders Gregory E. O’Brien and Roy A. Krall Recognized in Chambers and Partners Rankings 2026]]>https://www.cavitch.com/?p=2573442026-07-15T15:19:55Z2026-07-15T15:19:55ZGregory E. O’Brien and Roy A. Krall, have been recognized by Chambers and Partners in their latest rankings. This prestigious acknowledgment highlights their exceptional legal skills, unwavering dedication, and outstanding contributions to their respective fields.
Chambers and Partners rankings are the result of an independent and in-depth research process, which includes extensive interviews with clients, peer attorneys, and industry leaders. This rigorous methodology ensures that only the most talented and effective legal professionals are identified and honored.
Gregory E. O’Brien is being recognized for his work in the field of Insurance Law. Greg is a robust advocate on behalf of insurers in complex state and federal tort, coverage, and bad faith disputes. Greg’s Band 1 ranking reflects both his strategic expertise in handling challenging insurance litigation and his standing as a leading advocate in the insurance sector.
Roy A. Krall is being recognized for his exceptional contributions to Private Wealth Law and deep expertise in trusts and estates. Furthering his commitment to guiding clients through sophisticated wealth planning strategies. Roy’s inclusion in these esteemed rankings speaks to his long-standing dedication to helping individuals and families navigate complex matters related to asset protection, estate administration, and intergenerational wealth transfer, providing invaluable and thoughtful counsel.
This recognition by Chambers and Partners underscores [nap_names id="FIRM-NAME-2"]‘s commitment to delivering top-tier legal services and reinforces our reputation as a trusted resource for complex legal challenges across various practice areas.
Cavitch congratulates Greg and Roy on these outstanding achievements.]]>On Behalf of Cavitch Familo & Durkin Co., L.P.A.<![CDATA[Hannah Mahaffey Named To Providence House PHriends Associate Board]]>https://www.cavitch.com/?p=2573092026-07-08T16:24:21Z2026-07-08T16:24:21ZHannah Mahaffey has been named to the Providence House PHriends Associate Board.
Providence House, a historic emergency shelter based in Cleveland, operates to provide shelter for children newborn through twelve years old who are actively living in crisis situations. They also offer critical family support services to help families stay together. The PHriends Associate Board brings together emerging local professionals who act as ambassadors to raise awareness, organize fundraising events, and drive community engagement in support of the organization’s mission.
Hannah joined Cavitch in May 2025 and is a member of the firm’s Litigation and Employment Practice Groups. She focuses her practice on complex commercial litigation, general litigation, and labor and employment matters, representing employers and corporate clients in both state and federal courts. Her appointment to the Associate Board aligns with Cavitch's long-standing tradition of community stewardship and leadership in Northeast Ohio.
A lifelong Cleveland resident, Mahaffey earned her Juris Doctor cum laude from the Cleveland State University College of Law in 2023, where she served as Vice Chair of the Moot Court Team. Her appointment to the Associate Board continues a momentum of recent professional achievements; she was also recently invited to join the Judge John M. Manos Inn of Court and was selected for the competitive Ladder Down Cleveland Class of 2026.
About [nap_names id="FIRM-NAME-1"]
Founded in 1886, [nap_names id="FIRM-NAME-2"] is a full-service law firm located in Cleveland, Ohio. For over 140 years, Cavitch has provided sophisticated legal counsel and creative solutions to individuals, executives, and closely held businesses throughout Northeast Ohio across a wide spectrum of practice areas, including corporate law, litigation, employment, and estate planning.]]>by William Hatt<![CDATA[Stablecoins, Private Lending, and Regulatory Reality in 2026]]>https://www.cavitch.com/?p=2573012026-06-24T17:51:38Z2026-06-29T13:00:51ZSEC Treatment: Stablecoins Are (Mostly) Not Securities
Under current federal guidance, properly structured stablecoins used for payment purposes are not treated as securities. In April 2025, the SEC issued a Staff Statement clarifying that “Covered Stablecoins” – those fully back 1:1 by U.S. dollars, non-interest-bearing, and used solely as a payment mechanism – do not qualify as securities. This position aligns with the anticipated framework of the proposed GENIUS Act, which would formally exempt payment stablecoins like USDC from securities regulation once enacted (expected rollout in 2026-2027).
As a result, an individual may loan stablecoins to another person and receive repayment in U.S. dollars or another digital asset without triggering SEC registration requirements, so long as the transaction is private and not part of a broader lending platform or investment product.
Taxes Are the Real Regulatory Hook
While SEC oversight is limited, the IRS is very involved. The IRS treats stablecoins as property – not currency – meaning nearly every stage of a loan has tax consequences:
Repayment in USD is treated as a disposal of the stablecoin, potentially triggering capital gains or losses.
Repayment in another cryptocurrency (e.g., lending USDC and receiving Bitcoin) is treated as a crypto-to-crypto exchange, with capital gains calculated at the time of receipt.
Interest payments, whether in USD or crypto, are taxed as ordinary income.
Private lenders must self-report interest income and any dispositions of digital assets, typically on Schedule 1 (Form 1040) and Form 8949.
If you use a lending platform, they are now required to send you a Form 1099-DA, with a duplicate going straight to the IRS. While these forms currently focus on your total sales (gross proceeds), starting in 2026, they will also track your "cost basis" (what you originally paid) for each specific wallet. Essentially, the IRS is moving toward automated tracking, and the days of "estimating" your crypto gains are over.
Where the Line is Drawn
Importantly, the regulatory risk increases when lending activity becomes a business model rather than a private transaction. Platforms offering interest-bearing stablecoin products may still be treated by the SEC as issuing investment contracts, requiring registration and compliance with federal securities laws. In fact, the regulatory boundary isn’t just about ‘how much’ you lend, but ‘how’ you lend it. Under the 2026 interpretation of the GENIUS Act, as long as you aren’t acting as an ‘unregistered broker’ – meaning you aren’t facilitating loans for others or promoting a yield product to the public – you remain in the clear. The moment you offer your lending ‘services’ to the public, the SEC’s registration requirements (and the heavy fines associated with them) kick in.
Bottom Line
Private stablecoin lending is currently permissible under federal securities law, but it is not tax-free, nor regulation-free. Structure, scale, and purpose matter – and the shift from personal use to business activity can dramatically change the compliance landscape.
The compliance landscape for digital assets is moving faster than ever. If you are leveraging stable coins for private financing or business transactions, clear boundaries are your best defense against heavy fines and tax surprises.
At [nap_names id="FIRM-NAME-2"], we can help bridge the gap between traditional corporate finance and the realities of the evolving regulatory landscape for digital assets. Contact us for more information.]]>