Milwaukee, Wisconsin (January 31, 2011) – O’Neil Cannon is pleased to announce that Attorney John R. Schreiber and Attorney Joseph M. Maier have been elected as shareholders of the firm.

Attorney Schreiber will continue his practice in the Banking and Creditors’ Rights practice group assisting creditors, commercial landlords and other entities, in the enforcement, collection and workout of loans, leases and other obligations.

Schreiber received his undergraduate Bachelor’s degree from the University of Wisconsin and his law degree from the Marquette University Law School, cum laude. He was selected as a 2008, 2009 and 2010 Wisconsin Super Lawyers Rising Star, Law and Politics and Milwaukee Magazine, and is a member of the Board of Directors for Groundwork Milwaukee.

Attorney Maier will continue to assist businesses in employee benefit design and ERISA issues, executive compensation planning, income tax planning, state and succession planning, operation and liquidation of business entities and the creation, formation, merger and acquisition of businesses.

Maier received his B.B.A. in accounting, summa cum laude, from the University of Wisconsin-Milwaukee and earned his J.D., summa cum laude, graduating #1 in his class from the University of Wisconsin-Madison. He was a member of the UW Law Review and is a member of the Society of Financial Services Professionals.

O’Neil Cannon, founded in Milwaukee in 1973, is a full-service legal practice that primarily focuses on providing business law and civil litigation services to closely-held businesses and their owners. The firm represents corporations, institutions and partnerships at all stages of the business life cycle, helping them start, grow and transition from one generation to the next. We also assist business owners with their personal legal needs including tax and estate planning, family law and litigation – including personal injury litigation.

Fifteen attorneys from O’Neil Cannon have been selected for inclusion on the Wisconsin Super Lawyers 2010 list.

Super Lawyers is a peer-nominated award that recognizes the top 5% of outstanding attorneys across the state of Wisconsin. The Super Lawyers are selected using a rigorous, multiphase rating process. Peer nominations and evaluations are combined with third party research, and each candidate is evaluated based on 12 indicators of peer recognition and professional achievement.

Super Lawyers:

• James G. DeJong
• Seth E. Dizard
• Peter J. Faust
• John G. Gehringer
• Dean P. Laing*
• Gregory W. Lyons
• Patrick G. McBride
• Steven J. Slawinski

Rising Stars:

• Timothy C. Caprez
• Gregory S. Mager
• Chad J. Richter
• John R. Schreiber
• Robert J. Tess

*Top 50 Super Lawyers Recipient

Attorney Jason Scoby of O’Neil Cannon was recently appointed to serve as Chair of the Corporate, Banking and Business Section of the Milwaukee Bar Association (“MBA”). In this role, Attorney Scoby will focus on providing continuing legal education presentations and resources, as well as networking opportunities for attorneys and other professionals in the corporate, banking, and business field.

Some of the topics to be addressed in upcoming presentations may include:

• Choice of Business Entity and the Associated Business and Tax Implications
• Various Subjects in Mergers and Acquisitions

vLending Issues:

• Ethical Issues Involved in Business Transactions
• Contract Drafting

If you would like further information regarding an upcoming MBA event, of if you are interested in making a presentation for the MBA’s Corporate, Banking and Business Section, please contact Jason.

Attorney Scoby is an associate at O’Neil Cannon, where he assists clients on a wide variety of corporate and business-related issues, including commercial transactions, mergers and acquisitions, franchising, business entity selection, and regulatory compliance.

O’Neil Cannon, founded in Milwaukee in 1973, is a full-service legal practice that primarily focuses on providing business law and civil litigation services to closely-held businesses and their owners. The firm represents corporations, institutions and partnerships at all stages of the business life cycle, helping them start, grow and transition from one generation to the next. We also assist business owners with their personal legal needs including tax and estate planning, family law and litigation—including personal injury litigation.

The following O’Neil Cannon attorneys were selected for inclusion in the 17th edition of The Best Lawyers in America 2011 in the following practice areas:

• James G. DeJong—Corporate Law
• Seth E. Dizard—Bankruptcy and Creditor-Debtor Rights Law
• John G. Gehringer—Construction Law, and Real Estate Law
• Dennis W. Hollman—Real Estate Law
• Dean P. Laing—Personal Injury Litigation, and Product Liability Litigation
• Thomas A. Merkle—Family Law

The Best Lawyers in America “is the oldest and most respected peer-review publication in the legal profession,” and is based on more than 3.1 million detailed evaluations of lawyers by other lawyers.” Lawyers “are not required or allowed to pay a fee to be included in The Best Lawyers in America,” and “have no say in deciding which practice areas they are included in;” they are selected for inclusion in the publication, and assigned practice areas, based entirely on the votes they receive from their peers.

Given that less than 3% of all attorneys in the U.S. are included in The Best Lawyers in America, it is a true honor for O’Neil Cannon to have approximately 25% of its attorneys selected for inclusion in this highly-respected publication.

Randy Nash and Jason Scoby recently published an article in the Spring/Summer 2010 edition of the American Bar Association’s Health Law Litigation newsletter entitled “New Rules Dramatically Affect Health Care Expert Witness Disclosures.”

The article discusses the existing Federal Rules of Civil Procedure and a proposed change to Rule 26 involving the disclosure of expert witness draft reports and communications between the attorney and an expert witness in a case. This proposed rule change has the potential to impact expert witness disclosures before the federal courts. It is expected to go into effect on December 1, 2010.

Under the current rule, an expert witness’s entire file with regard to the matter in litigation, including any drafts of the expert’s report and any communications with the attorney, is discoverable by the opponent in the lawsuit.

The Committee on Rules of Practice and Procedure has recommended that the current rule be amended, stating that the rule has caused “significant practical problems.” The Committee described the problem as follows:

Lawyers and experts take elaborate steps to avoid creating any discoverable record and at the same time take elaborate steps to attempt to discover the other side’s drafts and communications. The artificial and wasteful discovery-avoidance practices include lawyers hiring two sets of experts—one for consultation, to do the work and develop the opinions, and one to provide the testimony—to avoid creating a discoverable record of the collaborative interaction with the experts. The practices also include tortuous steps to avoid having an expert take any notes, make any record of preliminary analyses or opinions, or produce any draft report. Instead, the only record is a single, final report.

Recognizing these issues, many have sought to change the discovery rules. The proposed amendment to Rule 26 attempts to avoid disclosure of experts’ draft reports and attorney/expert communications. The goal is to permit the attorney to communicate freely with the expert about the attorney’s thoughts and opinions relating to the case without fear of those communications being discovered by opposing counsel. The Rule also aims to avoid the unnecessary costs caused by hiring multiple experts and to prevent attorneys from taking other intricate maneuvers to evade the discovery of communications or drafts of expert opinions.

The Supreme Court recently approved these amendments to Rule 26 of the Federal Rules of Civil Procedure. It is expected that Congress will approve the amended Rule, and if it does, the amended Rule 26 will go into effect on December 1, 2010. A full copy of “New Rules Dramatically Affect Health Care Expert Witness Disclosures” can be found here.

O’Neil Cannon is pleased to announce that Attorney Joseph E. Gumina has recently been elected as a shareholder of the firm. Joe will continue his labor and employment practice representing management in the states of Illinois and Wisconsin, and will represent clients in litigation matters in both state and federal courts, including the federal district courts in Illinois, Indiana, and Wisconsin.

O’Neil Cannon, founded in Milwaukee in 1973, is a full-service legal practice that primarily focuses on providing business law and civil litigation services to closely-held businesses and their owners. The firm represents corporations, institutions and partnerships at all stages of the business life cycle, helping them start, grow and transition from one generation to the next. We also assist business owners with their personal legal needs including tax and estate planning, family law and litigation – including personal injury litigation.

Attorney Gregory S. Mager has been selected to serve on the State Bar of Wisconsin Family Law Section’s Board of Directors from July 2010 to July 2013.

Attorney Mager is a shareholder with O’Neil Cannon, where he concentrates his practice on family law. He has served as Editor in Chief of the Wisconsin Journal of Family Law, and as chair and vice-chair of various committees of the American Bar Association’s Family Law Section. He is a member of the Collaborative Family Law Council of Wisconsin, Inc. and the Divorce Cooperation Institute. Attorney Mager received his B.A., M.A., and J.D. from Marquette University.

O’Neil Cannon, founded in Milwaukee in 1973, is a full-service legal practice that primarily focuses on providing business law and civil litigation services to closely-held businesses and their owners. The firm represents corporations, institutions and partnerships at all stages of the business life cycle, helping them start, grow and transition from one generation to the next. We also assist business owners with their personal legal needs including tax and estate planning, family law and litigation – including personal injury litigation.

The below article, discussing a decision of the Wisconsin Court of Appeals in a case being handled by Attorney Dean Laing of our firm, was published in the June 28, 2010 edition of the Milwaukee Journal Sentinel. Our client, Lake Beulah Management District, was successful in the appeal.

On June 16, 2010 the Wisconsin Court of Appeals issued a significant decision in a case of first impression being handled by our firm. The case has a long history. In 2005, the Wisconsin Department of Natural Resources (the “DNR”) issued a permit to the Village of East Troy (the “Village”) authorizing the Village to construct and operate a high capacity well approximately 1,400 feet from the shores of Lake Beulah, an 834-acre lake located in Walworth County, Wisconsin, with the capacity to withdraw 1,400,000 gallons of groundwater per day (“gpd”). The Village requested approval to construct and operate the well purportedly to eliminate current deficiencies and supplement for future growth.

The Lake Beulah Management District (the “District”), which consists mostly of residents owning frontage on the lake, objected to the issuance of the permit, contending that the proposed well would negatively impact the waters of the lake. The District contended that the DNR has a duty under the Public Trust Doctrine to determine whether a high capacity well, regardless of capacity, will negatively impact the waters of the State before issuing a permit to construct and operate such a well, and the DNR made no such determination in connection with the Village’s permit application. The Public Trust Doctrine is a long-standing legal doctrine which requires the State to steadfastly preserve the State’s waters for fishing, hunting, recreation and scenic beauty.

In 2006 the District filed a lawsuit in the circuit court challenging the issuance of the permit. In the lawsuit, the Village argued that the DNR has no authority to consider whether a high capacity well, with withdrawal capacity of less than 2 million gpd, will negatively impact the waters of the State in considering an application for such a well, because sections 281.34 and 281.35, Wis. Stats., only grant the DNR that authority for wells with withdrawal capacities of more than 2 million gpd. The DNR took a contrary position, arguing that while it has the authority to consider that issue for wells with withdrawal capacities of less than 2 million gpd, it had no duty to do so with respect to the Village’s permit application because no scientific evidence was presented to it indicating that the proposed well would negatively impact the waters of Lake Beulah. The District countered by arguing that not only did the DNR have the authority to consider whether the proposed well will negatively impact the waters of Lake Beulah, it had the duty to do so because the DNR had an affidavit of a licensed geologist, prior to issuing the permit, indicating that the well “would cause adverse environmental impacts to the wetland and navigable surface waters of Lake Beulah.”

The Wisconsin Court of Appeals agreed with the District. Initially, the court rejected the Village’s argument that the DNR has no authority to consider whether high capacity wells with withdrawal capacities of less than 2 million gpd will negatively impact the waters of the State before issuing a permit for construction and operation of such a well, holding that “[t]he permit process has to be, as a matter of common sense, more than a mechanical, rubber-stamp transaction,” and “[t]he DNR’s mission must be to protect waters of the state from potential threats caused by unsustainable levels of groundwater being withdrawn by a well, whatever type of well that may be.” (emphasis added)

The Court of Appeals further held that the geologist’s affidavit was “certainly” sufficient to warrant “further, independent investigation,” and remanded the case to the DNR to reconsider the Village’s permit application in light of that affidavit.

The Court of Appeals’ 25-page decision, issued by a unanimous 3-judge panel, will have far reaching impact on municipalities requesting high capacity well permits from the DNR, as the DNR must now consider the Public Trust Doctrine in connection with every application for such a permit, regardless of the well’s capacity, whenever there is information suggesting that the proposed well may negatively impact the waters of the State.

The District was represented by Dean P. Laing of our firm in this case. A copy of the Court of Appeals’ decision can be found here.

Effective July 1, 2005, the Wisconsin law requires all mortgage brokers to use mortgage broker agreements and consumer disclosure statements in a form prescribed by the Wisconsin Department of Financial Institutions (“WDFI”) with their consumer clients. See Wis. Stat. § 224.79. The WDFI has stated that “no change to the wording of either form is acceptable or approved.” McGlone Mortgage Company, Inc. (“McGlone”), a Wisconsin licensed mortgage broker, did not begin using the WDFI prescribed forms until July 2008.

On February 20, 2009 John J. Avudria filed a class action lawsuit against McGlone on behalf of all persons who retained McGlone from July 2005 to July 2008, alleging that McGlone’s failure to use the WDFI prescribed forms during that period of time entitled them to damages of twice the amount of the loan origination fees charged by McGlone or their actual damages, whichever is greater, pursuant to section 224.80(2), Wis. Stats. John J. Avudria v. McGlone Mortgage Company, Inc., Milwaukee County (WI) Case No. 09-CV-2782.

Dean P. Laing of our firm represented McGlone in its defense of this class action lawsuit. On February 3, 2010 Mr. Laing filed a motion for summary judgment on behalf of McGlone, seeking dismissal of the lawsuit on various legal grounds.

On June 17, 2010 the trial court, the Honorable William W. Brash III, presiding, granted McGlone’s motion for summary judgment and dismissed the class action lawsuit, in its entirety, on the following legal grounds: (1) the statutes require a person to be “aggrieved” by a mortgage broker’s failure to use the State prescribed forms in order to state a claim upon which relief can be granted, meaning that the person must have suffered actual damages as a result thereof, which the plaintiff admitted in his deposition he did not, and (2) the statutes were not designed to allow claims against mortgage brokers which “inadvertently” fail to use the State prescribed forms, as the statutory scheme is aimed at egregious, not innocent, conduct.