FOR IMMEDIATE RELEASE

BENESCH AND DANN PECAR ANNOUNCE MERGER

CLEVELAND, OH and INDIANAPOLIS, IN  –  March 2, 2010 – The law firms of Benesch Friedlander Coplan & Aronoff LLP and Dann Pecar Newman & Kleiman P.C. announced that they will merge their practices, effective March 1, 2010.

            “We are very excited about our firms joining together.  It is another step in what we hope will be many in executing our growth plan and our plan to continuously enhance the quality of service that we provide to our clients,” said Ira Kaplan, Benesch’s Managing Partner.  He added, “both of our firms have long lasting relationships with our clients, including in the real estate area as well as other sectors.  Our strategic plan calls for growth in core practices and Benesch and Dann Pecar match up very well in that regard.  It also is important to us to expand our Midwest presence which provides us with broader reach and depth to better serve our clients.”

            Dann Pecar also is excited about the combination as a way to expand their current market and client base.  “In looking at our growth plan this combination with Benesch made perfect sense to us.  In addition to similar clients, we have similar values and a great cultural fit,” said Jeff Abrams, Managing Partner.  “Our firm has been strong in recognized practice areas in Indianapolis.  We see this as the right time to take it to the next level and expand our opportunities.”

            The firm will do business as Benesch/Dann Pecar in the Indianapolis market.  “Dann Pecar has a great reputation and a century long history in Indianapolis.  We want to make sure that the business and legal communities understand that we are here to partner with Dann Pecar to expand their continued service to the community” said Kaplan, who will continue as the combined firm’s Managing Partner.  Jeff Abrams will be Partner-in-Charge of the Indianapolis office and a member of the firm’s Executive Committee.

            Both firms have strong roots in their communities.  David Kleiman who is a named partner at Dann Pecar said “we were very impressed with Benesch’s support for the arts and other not-for-profits, a value we share and intend to grow.”  He added, “we expect that the transition will be seamless as both parties share the same values, culture and commitment to quality client service.  We are looking forward to the combination of our two firms.  We pride ourselves on our ability to deliver superior legal services to our clients.  Now, by joining forces with Benesch, our clients will benefit from the additional knowledge, resources and experience of a strong Midwest firm with an entrepreneurial spirit.”

            According to law firm consultant, Altman Weil’s year-end MergerLine report, the number of law firm mergers dropped by a significant 24 percent in 2009.  Thomas S. Clay, a consultant with Altman who was retained by both firms to facilitate the combination, said, “in a year when a number of firms backed off of expansion plans, Benesch kept true to their strategic plan and forged ahead with their growth strategies.  Over the last year, they have advanced several of their core practice areas with the addition of 17 other lawyers, the opening of a New York office and the addition of several practice groups including an Energy Practice Group, Corporate Compliance & Regulatory Enforcement Practice Group and International Trade & Supply Chain Management Practice Group.”  “We are always seeking growth opportunities that make good business sense and enhance client service,” said Kaplan.  He added, “our goal and strategic plan is to expand our reach in a way that complements our core practice areas.”

            Benesch has offices in Cleveland, Columbus, Philadelphia, Shanghai, White Plains and Wilmington, and Dann Pecar is located in Indianapolis.  This combination will greatly reinforce the core practice areas for the two firms, specifically in the areas of Real Estate, Commercial Litigation and Bankruptcy as well as in the Transportation/Logistics and Construction industries.  Additionally, other areas that will be strengthened are Intellectual Property, Health Care, Labor, Public Finance and Commercial Finance & Banking.

Facts About the Two Firms:

Benesch:

Benesch was founded in 1938 and currently employs 145 attorneys and 288 in total staff.   Benesch services national and international clients that include public and private, middle market and emerging companies as well as private equity funds, entrepreneurs, non-profit organizations, trusts and estates.  Benesch’s practice and industry groups include Business Reorganization, the China Group, Compensation & Benefits, Construction, Commercial Finance & Banking, Corporate & Securities, Litigation, Energy, Health Care, Intellectual Property, Labor & Employment, Polymer Industry, Private Equity, Public Finance, Public Law, Real Estate & Environmental, Tax, Transportation & Logistics, and Estate Planning & Probate. For more information, visit www.beneschlaw.com

Dann Pecar:

Dann Pecar was founded in 1911 and currently employs 26 attorneys and 43 in total staff.  Dann Pecar’s practice and industry groups include Bankruptcy, Reorganization and Commercial Law; Corporate, Partnership and Venture Law; Employee Benefits; Employment; Estate Planning, Probate and Taxation; Governmental Law and Finance; Intellectual Property; Litigation; and Real Estate, Construction and Environmental. 

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Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.

The team was 7th quick in  final practice and qualified 15th for the race.  Make your way out to the Indianapolis Motor Speedway for the race or catch it LIVE on VERSUS at 12:15pm (ET) on May 22, 2009.

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.

Those of you who know me know that I love racing, and I don’t think I’m alone when I say that one of the reasons that I love it is the element of danger.  The intensity created by watching cars, or motorcycles, battle for position at 200MPH is unmatched in any sport.  I’m not watching to see the accident; rather, I’m marveling at the skill it takes to maneuver a vehicle at those speeds and NOT crash.  However, when I see NASCAR hyping “The Big One” in its pre-race broadcast (as they did yesterday at Talladega) and then see Keselowski intentionally spin a competitor on the final lap, I get sick to my stomach.

This morning I was thinking more and more about this issue and realized that NASCAR, and its tracks and drivers, may be risking much more than huge insurance claims (assuming the insurance company will even honor the claim) and hits to their reputation, they may in fact be risking criminal prosecution.  Let me explain.  Assume that a wreck (notice I didn’t call it an accident;  accidents aren’t intentional….) like the one yesterday were to have killed a spectator.  I would posit that, a charge of negligent homicide is conceivable.

You see, the standard for negligent homicide (in most jurisdictions) is taking a substantial and unjustifiable risk that a person will be killed, when a reasonable and prudent person would not take the risk.  In the present case Keselowski seems to have clearly hit Edwards intentionally; afterall , it was the only way for him to move Edwards out of way so that he could win the race!  The question is whether or not hitting him in that manner was unjustifiable.  I would say that it most certainly was not justifiable.  Afterall, this was not a case of typical bump drafting (which I don’t agree with either), but was a case of intentionally spinning a competitor.  Keselowski had to have known that if he hit Edwards like that in the rear quarter panel, he was going to spin him.  It’s a simple principle that all racers know.  I also believe that Keselowksi and others NASCAR drivers are keenly aware that if you spin in the manner that Edwards spun, there is a high likelihood that the car will become airborne, and when a car becomes airborne in the tri-oval section of the track it is most certainly going to have a violent impact with the fence.  Fortunately, accidents like this are relatively rare, but I think can think of several that stick in my memory (including Bobby Allison at Talladega).  A reasonable person knows that this risk exists and wouldn’t have spun Edwards in the manner Keselowski did; it was simply to dangerous (not to mention a violation of the rules).

While NASCAR and ISC (the track owner) didn’t directly participate in the actions of Keselowski, they certainly didn’t do much to stop it.  Afterall, NASCAR acknowledges that bump drafting is part of the sport and even promotes the big crashes, as one of the reasons to watch the superspeedway races.

Granted, it would be a tough case for a prosecutor, but no one ever thought that hockey fights could bring about criminal charges and we’ve seen a couple of those in the last few years.  Something for the NASCAR attorneys to think about at least…

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.

If you can’t blame him, then who can you blame?  You can blame the players; they do certainly shoulder the ultimate blame.  But come on, in what other industry can the chief executive be aware of a significant issue, take improper steps to address it, and then say he’s not to blame?  You can’t think of one… That industry doesn’t exist!  The chief executive is ultimately in charge and must be accountable for the actions of the company.  That’s why he gets paid the big $$$$s.  For Selig to think differently shows an astounding lack of accountability.  …maybe he should apply for a job as a Wall Street CEO?

Given Selig’s position, let’s take a look at his justification.  Selig says that there is nothing more he could have done.  He says he was in favor of a strict policy, but was hesitant push too hard, because he was afraid that the Player’s Union would strike.  From my seat in the stands that’s terrible reasoning and weak negotiating.  Of course it wouldn’t be good if the players strike, but can you imagine how badly the players would look if they elected to strike over the implementation of a steroid testing policy? Granted, steroids wasn’t such a hot button topic 10 years ago, but the media would have ripped the players to shreds.  I just don’t buy it.  Selig didn’t implement drug testing because he simply didn’t push hard enough.  The Player’s Union would have eventually caved in.

I don’t think Selig is a bad guy, and actually think he’s done some pretty decent things for the game.  However, for him to come out and make such a public statement about not being the guy to blame, is just wrong.  He’s not the only one to blame, but if you’re going to blame someone, he’s certainly right at the top of the list.

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.

Alex Rodriguez

As for A-Rod, I was listening to Mike & Mike on ESPN Radio yesterday and they were discussing a very interesting topic.  Greeny and Golic were bantering back and forth about whether or not the Yankees could get out of A-Rod’s contract based on his use of steroids.  Each of them concluded that they probably could not, but cited fraud and misrepresentation as one possible approach that they could take.  Their reasoning was that A-Rod used steroids when he was in Texas and the Yankees accepted A-Rod’s $250,000,000 contract based on his performance in Texas.  However, since he was violating MLB’s rules by using steroids to enhance his performance, he was in fact misrepresenting his ability by cheating.  The problem with this reasoning, which Greeny and Golic acknowledged, is that A-Rod’s performance did not deteriorate when he went to the Yankees. ….and supposedly stopped using steroids.  Thus, the fraud and misrepresentation claims would be hollow, as the Yankees suffered no damage.

This got me to thinking.  Maybe A-Rod didn’t defraud the Yankees, but he may very well have hurt their reputation, as well as his own.  This brings me to my point (…which I’m sure Hank & Hal Steinbrenner have already thought of) if you really want terminate A-R0d, or just negotiate his salary down, the morality clause is the key.  You see, in just about every professional sports contracts, and most employment agreements for that matter, there is a clause that says something along the following lines:

Athlete agrees to conduct himself with due regard to public conventions and morals, and agrees that he will not do or commit any act or thing that will tend to degrade him in society or bring him into public hatred, contempt, scorn or ridicule, or that will tend to shock, insult or offend the community or ridicule public morals or decency.

A-Rod’s relatively squeaky clean image has most certainly been significantly tarnished by his admission to the use of steroids.  In fact, he has been scorned and ridiculed by just about every newspaper in the country over the course of the last week.

The question is, will the Steinbrenners do anything about it?  I doubt it.  Sure, they might be successful in negotiating his contract down, but if they do that are they going to get 100% effort from A-Rod?  Maybe, maybe not.  It’s an interesting legal exercise, but unless the player was clearly on the downslide or had done something that would truly impact the image of the team, I don’t think they’re going to go down that road.

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.

In my prior column I offered rulings from other jurisdictions tending to show that Logan would very likely be successful with her claim and that it would be in the IHSAA’s best interest to settle this claim quickly.  Well, it appears that the IHSAA agrees and is amending it’s rules such that baseball and softball are not considered alternatives, which would mean that girls are eligible for high school baseball.  Attached is the motion which was jointly filed by Logan and the IHSAA staying the case while the IHSAA approves the amendment.  According to the motion, subject to the IHSAA rules being amended, the lawsuit would be dropped by Logan.  The amendment will not be finalized until May, but the IHSAA commissioner sees no reason to believe it will not be finalized.

While I’m not yet sure if I agree with the outcome (I struggle with the concept that baseball and softball are really that different), the IHSAA’s rules on the topic will now largely comport with those standards which have been adopted recently in other jurisdictions.

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.

Before I get ahead of myself, let’s look at what Reckless Homicide is.  For our purposes, Reckless Homicide is generally defined as the conscious disregard of a substantial and unjustifiable risk that a person may be killed.  That is, the person must act in a way that is a gross deviation from the way that an ordinary person would act in the same or similar circumstances.  This is where I have trouble with this case.  Football coaches all across the country require their players to run wind sprints in full pads in hot August weather all the time.  This is a generally accepted practice. Is it a completely safe activity?  Certainly not.  Extreme heat, coupled with hot gear can create a dangerous situation.  However, until our sports culture changes significantly, it is still something that an ordinary football coach would do.

I have read some reports that suggest that the coach in this case may not have provided his players with enough water and did not call for emergency help as quickly as some would have liked.  These claims seem to have arisen from Max’s parents in the course of their civil litigation against Mr. Stinson and the school district.  On the other hand, there are allegations that Max had recently taken creatine and was on Adderall for ADHD.  Creatine is a perfectly legal supplement and widely accepted as safe when used correctly.  However, when used incorrectly it can cause dehydration.  Adderall, also perfectly legal with a prescription is a stimulant, which also could have been a contributing factor in Max’s heat stroke.

The presentation of these facts will likey be key to the jury’s determination of guilt or innocence.  Whatever the outcome, this case is the first of it’s kind and will likely cause coaches across the country to think twice before demanding that final wind sprint. I’ll try to update this article as the case progresses.

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.

In an opinion issued earlier this week by the Wisconsin Supreme Court, it was held that cheerleading is a contact sport.  At least that’s what all of the sports reporters would have you believe… Who knew?…  Well, certainly not the Wisconsin Appeals Court, whose decision was reversed by the Supreme Court.  Now before you macho readers get all fired up and start bad mouthing cheerleading, some perspective is in order.

The case is Noffke v. Bakke and the facts are pretty straightforward.  A high school cheerleader, Brittany Noffke, suffered a head injury when she fell during a warm-up.  She alleges that her injury was caused by the negligent act of a fellow cheerleader, Kevin Bakke; that is, Bakke was supposed to be standing in a position that would allow him to catch her when she fell.  The facts were not contested.

At issue in this case is the interpretation of Wis. Stat. § 895.525(4m)a, which provides immunity to those persons who negligently cause injury to fellow participants in an amateur sport involving physical contact.  Noffke, the injured cheerleader, argued that the statute is inapplicable because cheerleading is neither a contact activity, nor a sport.  Bakke argued to the contrary and the Wisconsin Supreme Court agreed.  In reaching their decision, they relied upon the common dictionary definition of “sport” and “contact”.  Sport being defined as, “[a]n activity involving physical exertion and skill that is governed by a set of rules or customs”, and contact as “1.a. A coming together or touching, as of objects or surfaces. b. The state or condition of touching or of immediate proximity.”  Man, that was easy; straight out of the dictionary.

Clearly, the Wisconsin court applied a very literal interpretation standard to the case, as I believe that most of us would agree that cheerleading is not a “contact sport” in our culture’s traditional definition of the term.  Traditionally, a contact sport is one in which relatively violent impacts between individuals are an accepted and sometimes necessary part of the game.  Football, soccer, basketball and rugby are good examples of traditional contact sports.  Whereas, baseball would probably not traditionally be considered as such.  However, under the Noffke case it most certainly would be.  After all, physical contact between individuals is a requirement of the game, in as much as it is sometimes required to tag a player out.

Given the difference between the traditional definition of “contact sport” and that which many sports reporters believe was ascribed by the Wisconsin Supreme Court, can we say that the court erred in this decision?  I don’t think so.  The court properly pointed out that words in a statute are to be given their plain meaning and that a dictionary may be used to ascertain such common meaning.  If the statute is unambiguous using such plain meaning, no additional inquiry is necessary.  The statute in this case did not contain the phrase “contact sport,” instead it says “physical contact between persons in a sport.”  This is an important point.  While not discussed by the court, I can’t help but think that the subtle differences between these two phrases were considered by the court.  “Contact sport” conjures up a very different notion and image than “physical contact between persons in a sport.”  The former being a culturally defined term, while the latter is a softer and more descriptive literal phrase.  The difference in meaning and emotion between these word combinations is quite striking and intriguing.  Many sports reporters seemed to miss this and ran with the “contact sport” headline.  So did I, but at least I used a question mark!

The moral – don’t get your legal insite from the sports page.  …unless, of course, The Guru is asked to write for ESPN.

Finally, I’ll leave you with this to think about.  What about golf?  What if Tiger Woods toes a drive and lays out a Vijay Singh with a shot to the back of the head on a nearby hole?  Could Tiger be liable, or would the statute provide immunity? (Note: Wis. Stat. § 895.525(4m)(b) is the corollary for professional sports)  Afterall, he and Vijay probably shook hands before the round – that’s physical contact, isn’t it?

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.